HomeMy WebLinkAboutThe Olson Company, LLC - 2022-09-06 (2) Recorded in Official Records, Orange County
Hugh Nguyen,Clerk-Recorder
II MII liii I I II IIII 11111 1 II II NO FEE
* $ R 0 0 1 4 0 9 4 6 8 0 $ *
RECORDED AT THE REQUEST OF
2022000398229 3:51 pm 12/05122
AND WHEN RECORDED RETURN 227 NC-5 R09 5
0.00 0.00 0.00 0.0012.00 0.00 0.000.000.00 0.00
TO:
City Clerk
City of Huntington Beach
1 2000 Main Street
Huntington Beach, CA 92648
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Covenant Release Agreement is recorded at the request and
a for the benefit of the City of Huntington Beach and is exempt
from the payment of a recording fee pursuant to Government Code
Sections 6103 27383.
COVENANT RELEASE AGREEMENT
The City of Huntington Beach,a California municipal corporation, ("City"),hereby
grants this COVENANT RELEASE (the "Covenant Release") in favor of Olson Urban V—
4 Huntington Beach 4, LLC ("Owners") by the City of Huntington Beach, a California
municipal corporation,("City").
RECITALS:
A. Owner is the owner in fee of that certain 2.065 acre property located at 8371-8461
Talbert Avenue in the City of Huntington Beach, California, and more particularly described in
the legal description attached hereto as Exhibit A (the "Property") and inco incorporated bythis
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reference.
B. On or about April 20, 1972, the then owner of the Property granted the City of
Huntington Beach that certain"Covenant and Agreement with the City of Huntington Beach"
against the Property. The Covenant and Agreement with the City of Huntington Beach was
recorded April 20, 1972 in book 10090, page 174 of the Official Records in the Office of the
Orange County Recorder.
C. The Covenant and Agreement contemplated conditions and improvements to be
performed in connection with Division of Land No. 72-9, which were generally to be completed
at the time individual parcels within the approved plot plan were developed.
D. All conditions and improvements described in the Covenant and Agreement with
1 the City of Huntington Beach have been satisfied. As a result,Property is no longer subject to the
{ Covenant and Agreement with the City of Huntington Beach.
COVENANTS:
Based upon the foregoing Recitals, which are incorporated herein by this reference, and
for good and valuable consideration, the receipt and sufficiency of which is acknowledged by
both parties, Owner and City agree as follows:
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i
i
1
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN
TO:
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Covenant Release Agreement is recorded at the request and
for the benefit of the City of Huntington Beach and is exempt
from the payment of a recording fee pursuant to Govemment Code
Sections 6103 27383.
COVENANT RELEASE AGREEMENT
The City of Huntington Beach, a California municipal corporation, ("City"), hereby
grants this COVENANT RELEASE (the "Covenant Release") in favor of Olson Urban V —
Huntington Beach 4, LLC ("Owners") by the City of Huntington Beach, a California
municipal corporation, ("City").
RECITALS:
A. Owner is the owner in fee of that certain 2.065 acre property located at 8371-8461
Talbert Avenue in the City of Huntington Beach, California, and more particularly described in
the legal description attached hereto as Exhibit A (the "Property") and incorporated by this
reference.
B. On or about April 20, 1972, the then owner of the Property granted the City of
Huntington Beach that certain"Covenant and Agreement with the City of Huntington Beach"
against the Property. The Covenant and Agreement with the City of Huntington Beach was
recorded April 20, 1972 in book 10090, page 174 of the Official Records in the Office of the
Orange County Recorder.
C. The Covenant and Agreement contemplated conditions and improvements to be
performed in connection with Division of Land No. 72-9, which were generally to be completed
at the time individual parcels within the approved plot plan were developed.
D. All conditions and improvements described in the Covenant and Agreement with
the City of Huntington Beach have been satisfied. As a result, Property is no longer subject to the
Covenant and Agreement with the City of Huntington Beach.
COVENANTS:
Based upon the foregoing Recitals, which are incorporated herein by this reference, and
for good and valuable consideration, the receipt and sufficiency of which is acknowledged by
both parties, Owner and City agree as follows:
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1. From and after the date that this Covenant Release is recorded,the Property
shall be released from and not be burdened by any of the provisions of the Covenant and
Agreement with the City of Huntington Beach.
2. City shall cooperate in executing any further or additional documents, in
recordable form if necessary, as may be reasonably requested by any existing or prospective
owner or holder of a mortgage or deed of trust of the Property to confirm said Covenant Release.
The form of any such additional documents shall be prepared by such existing or prospective
owner or holder at no cost to City, and shall be in a form approved by the City Attorney.
3. No later than ten (10) days after receipt by Owner of a conformed copy of the
executed Covenant Release from the Orange County Recorder's Office, Owner shall deliver a
copy of said conformed copy to City at the following address: City of Huntington Beach; Office
of Business Development; 2000 Main Street, Huntington Beach, CA 92648.
IN WITNESS WHEREOF, City has executed this Covenant Release from as of this
5 - day of D eC, 2022.
CITY OF H INGTO BEACH, a
Cali i ' al co oration
By: Al Zelin a
Its: 0,-1%4 E^r -Ca"-
ATTEST: APPROVED AS TO FORM:
CITY ATTORNE
/j_City Cler Patt Espa MIC AEL E. GATES, City Attorney
D ed: , 2022
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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.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On December 5, 2022 before me, Donna Switzer, Notary Public, personally
appeared Al Zelinka and Patty Esparza who proved to me on the basis of
satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity
upon behalf of which the persons 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.
DONNA SWITZER
WITNESS my hand and official seal. ! COMMISSION
231CaMom1601
I� ORANGE COUNTY
3 _ — My Comm Ezpra Nov 5_2023
(Seal)
(Notary Signature)
—3—
EXHIBIT A TO
COVENANT
RELEASE
LEGAL DESCRIPTION OF RELEASED
PROPERTY
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Exhibit"A"
Legal Description
Real property in the City of Huntington Beach, County of Orange, State of California, described as
follows:
PARCELS 2, 3 AND 4, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA,AS PER PLAT RECORDED IN BOOK 42, PAGE 34 OF PARCEL MAPS, RECORDS OF SAID
COUNTY.
EXCEPTING THEREFROM ANY PORTION LYING WITHIN TRACT NO. 8933, AS SHOWN ON A MAP
RECORDED IN BOOK 376, PAGES 43 AND 44 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF ORANGE COUNTY.
2000 Main Street,
Huntington Beach, CA
` 92648
_ City of Huntington Beach
File #: 22-586 MEETING DATE: 9/6/2022
REQUEST FOR CITY COUNCIL / HOUSING AUTHORITY ACTION
SUBMITTED TO: Honorable Mayor and City Council Members / Honorable Chair and Board
Members
SUBMITTED BY: Al Zelinka, City Manager/ Executive Director
VIA: Ursula Luna-Reynosa, Director of Community Development
PREPARED BY: Charles Kovac, Housing Manager
Subiect:
Approve and authorize execution of a Density Bonus and Affordable Housing Agreement with
The Olson Company, LLC for the 34-unit townhome project located at 8375 Talbert Avenue
Statement of Issue:
It is recommended that the City Council approve a Density Bonus and Affordable Housing Agreement
("Agreement") by and between the City of Huntington Beach ("City") and The Olson Company, LLC
("Developer") to facilitate the development of a 2.07 acre site located at 8375 Talbert Avenue
("Project"). The Project consists of thirty-four (34) townhomes, of which this Agreement will restrict
three (3) units for low and moderate income households for a period of 45 years.
Financial Impact:
Not applicable.
City Council and Housing Authority Recommended Action:
A) Approve the Density Bonus and Affordable Housing Agreement by and between the City and The
Olson Company, LLC for the development of 34 ownership units at 8375 Talbert Avenue; and,
B) Authorize the City Manager, or designee, to implement and execute the Density Bonus and
Affordable Housing Agreement for the Project, including all necessary related documents; and
C) Authorize the Housing Authority Executive Director or designee to execute all necessary
implementing agreements and related documents.
Alternative Action(s):
Do not approve and direct staff accordingly.
Analysis:
The Project proposes to redevelop a 2.07 acre infill site with 34 attached townhome units located at
City of Huntington Beach Page 1 of 3 Printed on 8/31/2022
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File #: 22-586 MEETING DATE: 9/6/2022
8375 Talbert Avenue. All of the units will range from 1,258 square feet to 1,846 square feet and will be
either two or three stories with an attached two-car garage. Bedrooms will range from three to four,
and bathrooms from two and a half to three. The site is currently developed with three single family
units and some accessory structures, which are proposed to be demolished. The proposed Project
will allow the site to be redeveloped into a townhome project that is consistent with the character of
the area and will add to the housing stock, including deed restricted affordable units.
On May 10, 2022, the Developer received approval from the Planning Commission for the Project
development application consisting of 1) General Plan Amendment No. 21-002; 2) Tentative Tract
Map No. 19157; 3) Conditional Use Permit (CUP) No. 21-004; and 4) Mitigated Negative Declaration
No. 21-003. The Developer is seeking to exercise a five percent (5%) density bonus option for the
Project pursuant to California Government Code Section 65915 (the "State Density Bonus Law"), as
implemented under Huntington Beach Zoning and Subdivision Ordinance, Chapter 230.14
("Ordinance"). Under the State Density Bonus Law, Developer would construct thirty-two (32) base
residential units and two (2) density bonus residential units, for a total of thirty-four (34) residential
units, of which, three (3) units will be affordable units for low and moderate income households. (The
Developer will also be paying a housing in-lieu fee under the City's Inclusionary Housing Ordinance
for the remaining two-tenths of a unit.) In order to take advantage of the increase in allowable
density, Developer must ensure, pursuant to the terms of the Agreement, that no less than one
residential unit will be used and occupied or available for use and occupancy by a low income
household as defined in Health and Safety Code Section 50079.5, and no less than two residential
units will be used and occupied or available for use and occupancy by moderate income households
as defined in Health and Safety Code Section 50093.
Pursuant to State Density Bonus Law, developers of housing projects that include specified levels of
affordable housing are entitled to apply for and receive additional incentives or concessions and
waivers in order to facilitate the economic feasibility of those projects. In exchange for providing
three units of the 32 total base units affordable to low and moderate income households per the
Ordinance, the State Density Bonus Law provides that the developer may receive up to one incentive
or concession and unlimited amount of waivers. The Developer requested the following waivers to
existing development standards: 1) common and private open space dimensions; 2) aboveground
transformer and vault within 15 foot Talbert Avenue setback; and 3) reduced Talbert Avenue/Newland
Street corner unit building setback. Pursuant to Government Code Section 65915(e), the Developer
also requested to waive the City's parking standards and instead implement the parking ratio allowed
under State Density Bonus Law.
In order to receive the concession and waivers described above, the Developer must ensure that
three units of the total 32 base units remain affordable to low and moderate income households for
45 years. The proposed Agreement memorializes this requirement, and covenants implementing the
Agreement will be recorded on the property title ensuring that three units will be owned and occupied
by low and moderate income households, as defined in Health and Safety Code Sections 50079.5
and 50093, for 45 years. The Owner will build the Project in a multiple phases and sell individual
units to eligible homebuyers. The maximum low and moderate income sales prices for both units will
be set in accordance with the Agreement.
The proposed Agreement is consistent with State Density Bonus Law and the Ordinance, was
prepared by the City Attorney's Office, and is included as Attachment 1. Once the proposed
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File #: 22-586 MEETING DATE: 9/6/2022
Agreement is approved by the City Council, the Housing Authority will administer and oversee the
implementation of the three affordable units to ensure that the affordability covenants remain in place
throughout the duration of the 45 year term.
Environmental Status:
A Mitigated Negative Declaration was prepared for the Project in compliance with California
Environmental Quality Act (CEQA) guidelines and concluded that no significant impacts are
anticipated with implementation of mitigation measures in the areas of biological resources, cultural
resources, geology, and tribal cultural resources.
Strategic Plan Goal:
Economic Development & Housing
Attachment(s):
1. Density Bonus and Affordable Housing Agreement by and between the City of Huntington
Beach and The Olson Company, LLC
City of Huntington Beach Page 3 of 3 Printed on 8/31/2022
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# Recorded in Official Records,Orange County
Hugh Nguyen, Clerk-Recorder
NO FEE
* $ R 0 0 1 4 0 2 6 6 2 6 $
RECORDED AT THE REQUEST OF AND 2022000343715 4:00 pm 10124122
227 NC-5 Al2 74
WHEN RECORDED RETURN TO:
j 0.00 0.00 0.00 0.00 219.00 0.00 0.000.000.00 0.00
City Clerk
3 City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space Above For Recorder's Use)
.t
This Density Bonus and Affordable Housing Agreement is
r recorded at the request and for the benefit of the City of
4
Huntington Beach and is exempt from the payment of a
recording fee pursuant to Government Code Sections 6103
and 27383.
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DENSITY BONUS AND AFFORDABLE
HOUSING AGREEMENT FOR
8375 TALBERT AVENUE,
HUNTINGTON BEACH
BY AND BETWEEN
i
CITY OF HUNTINGTON BEACH,
a California Municipal Corporation
i
and
Olson Urban V—Huntington Beach 4,LLC,
a Delaware Limited Liability Corporation
t
i
t
v
i
i
t
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RECORDED AT THE REQUEST OF AND
WHEN RECORDED RETURN TO:
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space Above For Recorder's Use)
This Density Bonus and Affordable Housing Agreement is
recorded at the request and for the benefit of the City of
Huntington Beach and is exempt from the payment of a
recording fee pursuant to Government Code Sections 6103
and 27383.
DENSITY BONUS AND AFFORDABLE
HOUSING AGREEMENT FOR
8375 TALBERT AVENUE,
HUNTINGTON BEACH
BY AND BETWEEN
CITY OF HUNTINGTON BEACH,
a California Municipal Corporation
and
Olson Urban V—Huntington Beach 4, LLC,
a Delaware Limited Liability Corporation
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DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
This DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT ("Agreement") is
entered into as of the 20th day of October , 2022 ("Effective Date") by and between the
CITY OF HUNTINGTON BEACH, a California municipal corporation("City"), and OLSON URBAN
V — HUNTINGTON BEACH 4, LLC, a Delaware limited liability company ("Owner"). City and
Owner are hereinafter sometimes referred to collectively as the "Parties" and individually as a
"Part y•"
RECITALS
A. City is a municipal corporation and charter city organized and existing pursuant to the
Constitution and laws of the State of California.
B. Owner is the owner in fee of that certain real property located at 8375 Talbert
Avenue, Huntington Beach, consisting of approximately 89,949 square foot (2.07 acres) lot, and
more particularly described in the legal description attached hereto as Exhibit "A" (the "Property").
C. Owner has submitted to City plans to develop the Property as a thirty-four (34) unit
townhome development, as more particularly depicted in the attached Exhibit "B" (the "Project").
Owner will build the Project in a multiple phases and sell individual units to individual homebuyers.
D. Pursuant to California Government Code Section 65915 (the "State Density Bonus
Law"), as implemented under Huntington Beach Zoning and Subdivision Ordinance ("HBZSO"),
Chapter 230.14, developers of housing projects that include specified levels of affordable housing are
entitled to apply for and receive certain density bonuses and additional incentives in order to facilitate
the economic feasibility of those projects. Owner is proposing an increase in the number of units
allowed per the State Density Bonus Law and will meet the affordability requirements as outlined in
HBZSO Chapter 230.14. In exchange for making at least ten percent (10%) of the 32 total base units
affordable to both Low and Moderate Income Households per HBZSO Chapter 230.14, the State
Density Bonus Law provides that the developer may receive up to one "incentive or concession."
(Gov't § 65915(d)(2)(A).)
E. The City's Inclusionary Housing Ordinance as outlined in HBZSO Chapter 230.26
requires that ten percent (10%) of new housing within the Project be affordable to households
earning less than 120% of Orange County Median Income. In compliance with HBZSO Chapter
230.14 requirement, Owner agrees to provide as part of the thirty-four (34) ownership units
permitted under the City development standards,(32 "base"units and two density bonus units),three
units to be affordable to Low Income (one unit) and Moderate Income (two units) Households,
which are more particularly described in the legal description attached hereto as Exhibit "A" (the
"Affordable Units").
F. Pursuant to Government Code Section 65915(e), Owner has applied for waivers and
reduction of development standards on the basis that they would physically preclude the construction of
the Project with the density bonus. Since the Project will be providing 10 percent of the total dwelling
units for Low and Moderate Income Households,the Owner seeks relief in the form of a concession from
the City parking standards and is implementing the parking ratio under the State Density Bonus Law
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regulations. The Owner has applied for waivers to existing development standards related to the
following: 1) common and private open space dimensions; 2) aboveground transformer and vault within
15 foot Talbert Avenue setback; and 3) reduced Talbert Avenue/Newland Street corner unit building
setback.
G. On May 10, 2022, the Planning Commission approved the Project application
consisting of a 1) General Plan Amendment No. 21-002; 2) Tentative Tract Map No. 19157; 3)
Conditional Use Permit(CUP)No. 21-004; and 4) Mitigated Negative Declaration No. 21-003. As part
of the entitlements,the Planning Commission approved Owner's request to exercise a five percent(5%)
density bonus option for the Project, in which Owner would construct thirty-two (32) base residential
units and two (2) density bonus residential units, for a total of thirty-four(34) residential units of which
three (3) units will be Affordable Units. In order to take advantage of the increase in allowable density,
Owner must ensure, pursuant to the terms of this Agreement, that no less than one residential unit will
be used and occupied or available for use and occupancy by a Low Income Households as defined in
Health and Safety Code Section 50079.5 at the time of this Agreement, and no less than two residential
units will be used and occupied or available for use and occupancy by Moderate Income Households as
defined in Health and Safety Code Section 50093 at the time of this Agreement. As approved, the
Project includes the aforementioned concession and waivers. In order to take advantage of the
c o n c e s s i o n a n d w a i v e r s, Owner must ensure, pursuant to the terms of this Agreement, that no
less than ten percent (10%) of the thirty-two(32) units permitted under City development standards are
affordable to Low and Moderate Income Households.
H. This Agreement sets forth the terms and conditions for the implementation of the
Project's requirement to provide affordable housing units in exchange for receiving the density
bonus concession and waivers of development standards as set forth herein.
I. The development of the Project on the Property pursuant to this Agreement, and the
fulfillment generally of this Agreement, are in the vital and best interests of City and the welfare
of its residents, and in accordance with the public purposes and provisions of applicable federal, state,
and local laws and requirements.
COVENANTS
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated herein
by this reference, and of the mutual covenants hereinafter contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. The following terms when used in this Agreement shall be defined
as follows:
1.1.1 "Adjusted For Family Size Appropriate To The Unit" means a
household of one person in the case of a studio unit, a household of two persons in the case of a one-
bedroom unit, a household of three persons in the case of a two-bedroom unit, a household of four
persons in the case of a three-bedroom unit, and a household of five persons in the case of a four-
bedroom unit.
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1.1.2 "Affordable Housing Cost" for a Low Income Household means that
purchase price which would result in an annual Monthly Housing Cost which does not exceed the
product of Thirty Percent (30%) times Seventy Percent (70%) of the current Orange County monthly
median income for a household adjusted for family size appropriate to the Unit under Health and
Safety Code Section 50052.5(b)(3). Affordable Housing Cost for a Moderate Income Household
means that purchase price which would result in an annual Monthly Housing Cost which does not
exceed the product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current
Orange County monthly median income for a household adjusted for family size appropriate to the
Unit under Health and Safety Code Section 50052.5(b)(4). Affordable Housing Cost shall be
calculated pursuant to the City Housing Regulations.
1.1.3 "Affordable Units"means the three(3)units,consisting of three(3)three-
bedroom Units that are designated pursuant to Section 3.2 to be sold to and occupied by one (1) Low
Income Household and two (2) Moderate Income Households in the Project.
1.1.4 "Affordable Housing Covenant" means the Declaration of Conditions,
Covenants and Restrictions for Low and Moderate Income Affordable Housing to be recorded against
each Affordable Unit in the form attached hereto as Exhibit "C."
1.1.5 "Base Units" means the Thirty-Two (32) Units that Owner would be
authorized to develop without application of the State Density Bonus Law.
1.1.6 "City Housing Regulations" means the "Affordable Ownership Housing
Regulations-Homeowner Requirements of the City of Huntington Beach," dated August 15, 2011, as
they exist now, and as they may be amended in the future.
1.1.7 "Condominium Map" means that certain final map for condominium
purposes for Tract No. 19157 that will create the Units within the Project.
1.1.8 "Density Bonus Units" means the Two (2) Units in addition to the Base
Units that Owner shall develop pursuant to the density allowance in the State Density Bonus Law and
the terms and conditions of this Agreement, of which Owner would not be entitled to develop without
providing that at least Three (3) Units of the Base Units will be Affordable Units designated for
occupancy by Low Income Households and Moderate Income Households.
1.1.9 "Effective Date" means the date the City Council of City approves this
Agreement, which date shall be inserted in the preamble to this Agreement.
1.1.10 "Household"means all persons residing in a Unit.
1.1.11 "Incentives and Concessions" means the incentives and concessions
identified in Recital F above.
1.1.12 "Low Income Household" means a Household whose income does not
exceed the qualifying limits for lower income households for Orange County, adjusted for household
size, pursuant to Health and Safety Code Section 50079.5, and as established annually by HCD income
regulations.
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1.1.13 "Market Rate Units" means the Units within the Project to be rented
or sold by Owner to a Household without restriction as to income levels, rental rate or sales price.
1.1.14 "Median Income" means the Orange County area median income,
adjusted for household size, as established by the United States Department of Housing and Urban
Development, and as published periodically by the California Department of Housing and Community
Development.
1.1.15 "Moderate Income Household" means a Household whose income does
not exceed the qualifying limits for moderate income households pursuant to Health and Safety Code
Section 50093, which is those Households whose income does not exceed one hundred twenty percent
(120%) of Median Income, adjusted for family size. The income level of a Household shall be
determined in accordance with the City Housing Regulations.
1.1.16 "Monthly Housing Cost"shall include all of the following associated with
the Affordable Unit: (i) principal and interest payments on a mortgage loan; (ii) property taxes and
assessments; (iii) the cost of fire and casualty insurance covering replacement value of property
improvements; (iv) homeowner's association fees; (v) reasonable Unit maintenance and repair costs;
and (vi) reasonable utility allowance, all as determined according to the City Housing Regulations. In
determining monthly housing payments, the City will assume principal and interest payments on a
conventional home mortgage after paying a ten percent (10%) down payment.
1.1.17 "Project" means that certain housing development as more particularly
described in Recital C and Section 2 of this Agreement. In the event of any inconsistency between the
description of the Project in this Agreement and the entitlements and permits for the Project, the
approved entitlements and permits shall govern. In no event shall any development be permitted that is
not permitted under the entitlements in effect at the time of development.
1.1.18 "Qualified Purchaser"means a Household that complies with all income
verification requirements in this Agreement, and earns not more than the qualifying limits for lower
income households, adjusted for family size, as established annually by HCD income regulations, for
the one Lower Income Household Unit,and one hundred twenty percent(120%)of the Median Income,
adjusted for family size, as established annually by HCD income regulation, for the two Moderate
Income Household Units.
1.1.19 "State Density Bonus Law" means Government Code Sections 65915-
65918 as they exist on the Effective Date.
1.1.20 "Unit" means a residential dwelling unit within the Project to be sold
by Owner pursuant to this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement:
Exhibit"A" — Legal Description of the Affordable Units
Exhibit"B"— Depiction of the Project
Exhibit"C"— Declaration of Conditions, Covenants and Restrictions for Moderate
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Income Affordable Housing, with attachments
Exhibit"D"—Density Bonus and Affordable Housing Agreement Release Agreement
2. DEVELOPMENT OF THE PROPERTY
2.1 Project. Owner shall develop the Project as a thirty-four (34) unit
condominium residential community in accordance with and subject to all applicable entitlements and
permits. The Project shall have thirty-one (31) Market Rate Units, and three (3) Affordable Units.
There shall be three (3) three-bedroom Affordable Units. Owner shall not construct or develop, or
otherwise claim a right to construct or develop,more than Two(2)Density Bonus Units on the Property.
Owner expressly understands and agrees that the State Density Bonus Law at the time of this Agreement
allows up to a five percent (5%) increase in the number of the Base Units because Owner shall restrict
ten percent (10%) of the Base Units for occupancy by Low and Moderate Income Households.
2.2 Market Rate Units. The Project shall have no more than Thirty-One (31) Market
Rate Units with Unit sizes as may be determined by Owner.
2.3 Affordable Units. Project shall have no less than Three (3) Affordable Units
pursuant to the terms and conditions of this Agreement. The Project shall have no less than One (1)
Affordable Unit designated for a Low Income Households, and no less than Two (2) Affordable Units
designated for Moderate Income Households. The average square footage of the Affordable Units
shall be no more than approximately 20 percent lower than the average square footage of the Market
Rate Units of the same number of bedrooms. The Affordable Units shall be constructed with the same
exterior appearance and interior features, fixtures, and amenities, and shall use the same type and
quality of materials as the Market Rate Units in the Project. The Affordable Units shall be dispersed
throughout the Project. At its discretion, Owner may increase the number of Affordable Units.
2.4 Authorized Waivers and Modifications, and Incentives and Concessions. In
accordance with the State Density Bonus Law and pursuant to the entitlements for the Project, City
authorized the Waivers and Modifications, and Incentives and Concessions described in the Recitals,
above.
2.5 Compliance with Laws. Owner at its sole cost and expense shall secure or cause
to be secured any and all permits that may be required by City or any other federal, state, or local
governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any
and all permits, Owner shall carry out and perform the development, and marketing of the Project in
conformity with all applicable federal, state, and local laws and regulations, and all conditions of
approval of Tentative Map No. 19157.
2.6 Mechanic's Liens; Indemnification. Owner shall take all actions reasonably
necessary to prevent and remove any mechanic's liens or other similar liens (including design
professional liens) against the Property or Project, or any part thereof, by reason of work, labor,
services, or materials supplied or claimed to have been supplied to Owner or anyone holding the
Property or Project, or any part thereof, through or under Owner, that arises from the original
construction of the Affordable Units. In the event any such mechanics lien or other similar lien is filed
against the Property or Project that arises from the original construction of the Affordable Units, Owner
shall, at its sole cost and expense, bond against or discharge such lien within thirty (30) days after the
initial filing of the same. Upon request by the City, Owner shall provide to the City updated
22-11508/288280
-6-
information from Owner's title insurer. City hereby reserves all rights to post notices of non-
responsibility and any other notices as may be appropriate upon a filing of a mechanic's lien. Owner
shall indemnify, defend (with counsel of City's choosing and the consent of Owner, which shall not
be unreasonably withheld, and which may be joint defense counsel upon City's and Owner's consent),
and hold harmless City and all of its officials, officers, employees, representatives, volunteers and
agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any
third party by reason of a mechanic's lien or work, labor, services, or materials supplied or claimed
to have been supplied to Owner or anyone holding the Property or Project, or any part thereof, through
or under Owner, that arises from the original construction of the Affordable Units.
3. AFFORDABLE UNITS
3.1 Execution and Recording of This Agreement. Owner shall execute this
Agreement prior to City Council consideration of approval of this Agreement. No later than thirty (30)
days after the recordation of the Condominium Map, Owner shall record an executed original of this
Agreement against the Property in the Official Records for Orange County, California.
3.2 Designation of Affordable Units. At least three (3) months prior to the
recordation of the Final Map with the approval of the California Department of Real Estate,Owner shall
obtain the approval from the City's Housing Manager of the designation of the three(3)Affordable Units.
The Affordable Units shall be disbursed throughout the buildings of the Project. Immediately following
the recordation of each Condominium Map for the Project, Owner shall cause the Affordable Housing
Covenant (Exhibit "C") to be recorded against any Affordable Units within the Condominium Map.
3.3 Prohibition of Leasing of Market Rate or Affordable Units by the Owner. Owner
agrees to market and sell all Market Rate and Affordable Units at the Project. City would not grant the
aforementioned Waiver and Reduction of Development Standards, the Incentives and Concessions, nor
the modification of parking standards unless Owner agrees to market and sell all the Units in the Project
as ownership housing. While Market Rate Units may be leased by the individual owner once purchased
from the Owner, in no event may Owner lease any Units.
3.4 Term of Affordable Unit Covenants. Each Affordable Unit designated for Low
and Moderate Income Households shall be restricted for use and occupancy by a Low Income
Household or Moderate Income Household, for a total period of forty-five (45) years, commencing on
the date that the Owner conveys title to the first purchaser of each Affordable Unit. By way of
explanation of the foregoing sentence, it is possible that the affordability term for one Affordable
Unit will neither commence on the same date nor terminate on the same date as another Affordable
Unit, and it is possible that the affordability terms for all Affordable Units will commence on different
days and terminate on different days.
3.5 Memorializing Commencement of Affordability Term. The Notice of
Affordability Restrictions is attached as an exhibit to Exhibit "C", the Declaration of Conditions,
Covenants, and Restrictions for Low and Moderate Income Affordable Housing. This Notice shall be
recorded concurrently with conveyance of title to the first buyer of each Affordable Unit and the
affordability term for each Affordable Unit shall begin as of the recordation date of the Notice.
3.6. Sale of Affordable Units to Low and Moderate Income Households. When
22-11508/288280
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marketing the Affordable Units, Owner shall comply with the City Housing Regulations.
Owner shall not convey title to any Affordable Unit to a Household that the City has not verified as
a Low or Moderate Income Household, as determined pursuant the City Housing Regulations. Owner
shall not convey title to any Affordable Unit to a Low or Moderate Income Household at a price that
exceeds the Affordable Housing Cost for that Affordable Unit as established by the City. In the event
that Owner desires to sell an Affordable Unit, Owner shall comply with the requirements of Section 6.4
of the Affordable Housing Covenant.
4. TERM OF THIS AGREEMENT AND RELEASE OF UNITS
4.1 The term of this Agreement shall commence on the Effective Date and shall
continue until the date Owner conveys fee title to buyers of all of the Affordable Units of the
Project in accordance with the requirements of this Agreement. Upon satisfaction of the foregoing,
the City shall, at the request of Owner, record a termination of this Agreement in the form of Exhibit
"D" to this Agreement The recording of such a termination document shall remove this Agreement
as an encumbrance upon title to the Property. Notwithstanding any other provision herein to the
contrary, Owner's indemnity obligations under Sections 2.4 (Replacement Housing), 2.5 (Mechanic's
Liens) and 5.3 (Indemnification) hereof shall survive the termination of this Agreement.
4.2 Owner shall have the right at the time that it enters into a sales agreement for
each of the Units to request that City execute a Unit Release for the Unit in the form of Exhibit E to this
Agreement.
5. DEFAULT AND TERMINATION; INDEMNIFICATION
5.1 Default. Failure or delay by any Party to perform any term or provision of this
Agreement which is not cured within thirty (30) days after receipt of notice from the other Party
specifying the default (or such other period specifically provided herein) constitutes a default under
this Agreement; provided, however, if such default is of the nature requiring more than thirty (30)
days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within such
thirty (30) day period, and thereafter diligently pursuing such cure to completion within an
additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of ninety
(90) days). Except as required to protect against further damages, the injured Party may not institute
proceedings against the Party in default until the time for cure has expired. Failure or delay in giving
such notice shall not constitute a waiver of any default, nor shall it change the time of default.
5.2 _Rights and Remedies Cumulative. The rights and remedies of the Parties are
cumulative, and the exercise by either Party of one or more of its 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 the other Party.
5.3 Indemnification. In addition to any other indemnity specifically provided in
this Agreement, Owner shall defend (with counsel of City's choosing and the consent of Owner,
which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and
Owner's consent), indemnify and hold harmless City and its officers, officials, agents, employees,
representatives, and volunteers from and against any loss, liability, claim, or judgment arising from
any act or omission of Owner in connection with its obligations under this Agreement.
22-11508/288280
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6. ASSIGNMENT
6.1 Assignment by Owner. The qualifications and identity of Owner are of
particular concern to City. It is because of those qualifications and identity that City has entered
into this Agreement. Accordingly, Owner shall not sell, transfer, or assign the Property or Project in
whole or in part, or transfer or assign Owner's rights and obligations in this Agreement, without
City's prior written approval, which shall not be unreasonably withheld. In considering whether to
grant its approval of any proposed transfer or assignment by Owner of its interest in the Property,
Project, or this Agreement, City shall consider factors such as the financial strength and capacity of
the proposed transferee or assignee to perform Owner's obligations in this Agreement, and the
proposed transferee's or assignee's experience and expertise in the planning, financing, development,
and operation of similar projects.
6.2 Subsequent Assignment. As used in this Agreement, the term "Owner" shall be
deemed to include any such transferee or assignee after the date such transfer or assignment occurs in
compliance with this Agreement.
6.3 Unpermitted Assignments Void. Any sale, transfer, or assignment made in
violation of this Agreement shall be null and void, and City shall have the right to pursue any
right or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales,
transfers, or assignments.
7. MISCELLANEOUS
7.1 Notices. As used in this Agreement, "notice" includes, but is not limited to,
the communication of notice, request, demand, approval, statement, report, acceptance, consent,
waiver, appointment or other communication required or permitted hereunder. All notices shall be in
writing and shall be considered given either: (i) when delivered in person to the recipient named
below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United
States mail in a sealed envelope as either registered or certified mail with return receipt
requested, and postage and postal charges prepaid, and addressed to the recipient named below;
or (iii) five (5) days after deposit in the United States mail in a sealed envelope, first class mail and
postage prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with
a known and reliable next-day document delivery service (such as FedEx), charges prepaid and
delivery scheduled next-day to the recipient named below, provided that the sending party receives a
confirmation of delivery from the delivery service provider. All notices shall be addressed as follows:
If to CITY: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: Director of Community Development
& Housing Manager
22-11508/288280
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If to OWNER: Olson Urban V—Huntington Beach 4, LLC
3010 Old Ranch Parkway, Suite 100
Seal Beach, CA 90740-2751
Attn: John Reekstin, Senior Vice-President
7.2 Change of Address. Either Party may, by notice given at any time, require
subsequent notices to be given to another person or entity, whether a party or an officer or
representative of a party, or to a different address, or both. Notices given before actual receipt of notice
of change shall not be invalidated by the change.
7.3 Entire Agreement. This Agreement and all of its Exhibits and attachments set
forth and contain the entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret
or determine the terms or conditions of this Agreement.
7.4 Amendments. The terms of this Agreement may only be modified or
amended by an instrument in writing executed by each of the parties hereto; provided, however, the
City Manager shall have the authority to issue interpretations, waive provisions and enter into
amendments of this Agreement on behalf of City so long as such actions do not substantially change
the uses or development permitted on the Property.
7.5 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform,taking
into consideration the purposes of this Agreement.
7.6 Interpretation and Governingt Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California
without regard to conflict of law principles. This Agreement shall be construed as a whole according
to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto,
and the rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not be employed in interpreting this Agreement, all Parties having been represented by counsel
in the negotiation and preparation hereof.
7.7 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
7.8 Singular and Plural. As used herein,the singular of'any word includes the plural,
and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include the
other as context so dictates.
7.9 Joint and Several Obligations. If at any time during the term of this Agreement
the Property and/or Project is owned, in whole or in part, by more than one Owner, all obligations of
such Owner under this Agreement shall be joint and several, and the default of any such Owner shall
be the default of all such Owners.
22-11508/288280
-1�-
7.10 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
7.11 Days. Unless otherwise specified in this Agreement or any Exhibit attached
hereto,use of the term"days"shall mean calendar days. For purposes of this Agreement and all Exhibits
attached hereto, "business days" shall mean every day of the week that City Hall of the City is open for
business to the general public.
7.12 Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the
default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict
compliance by the other Party with the terms of this Agreement thereafter.
7.13 Force Majeure. Neither Party shall be deemed to be in default where failure
or delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, pandemics, fires, wars, riots or similar hostilities, strikes and other
labor difficulties beyond the Party's control (including the Party's employment force), court actions
(such as restraining orders or injunctions), government regulations or other causes beyond the Party's
control. If any such events shall occur, the term of this Agreement and the time for performance by
either Party of any of its obligations hereunder may be extended by the written agreement of the Parties
for the period of time that such events prevented such performance.
7.14 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the
covenants to be performed hereunder by such benefited Party.
7.15 Successors in Interest. The burdens of this Agreement shall be binding upon,
and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon
every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding
upon each Party and each successor in interest during ownership of the Property or any portion
thereof.
7.16 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the
validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County
of Orange, State of California, or any other court in that county, and the Parties hereto waive all
provisions of law providing for the filing, removal or change of venue to any other court.
7.17 Project as a Private Undertaking. It is specifically understood and agreed by
and between the Parties hereto that the development of the Project is a private development, that
neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of any kind is formed by this
22-11508/288280
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DocuSign Envelope ID:CD2019D6-B385-4C87-B612-45F97356E6E7
Agreement. The only relationship between City and Owner is that of a government entity regulating
the development of private property and the Owner of such property.
7.18 Attorneys' Fees and Costs. If either Party to this Agreement commences an
action against the other Party to this Agreement arising out of or in connection with this Agreement,
each party shall bear its own attorneys' fees and costs of suit.
7.19 Authority to Execute.The person or persons executing this Agreement on behalf
of either Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their agency, corporation, partnership or business entity and
warrants and represents that he or she/they has/have the authority to bind the Party to the performance
of its obligations hereunder.
7.20 Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
set forth above.
"OWNER" "CITY"
OLSON URBAN V—HUNTINGTON BEACH 4,
LLC a Delaware limited liability company CITY OF HUNTINGTON BEACH
a C6 i rnia mlinicipal co orat' n IZ
By: OLSON URBAN COMMUNITIES V, LLC
a Delaware limited liability company By:6
Its Sole Member Name: Barbara Del
Ti Ma or
By: OLSON URBAN VENTURES V, LLC
a Delaware limited liability company By:
Its Sole Member Name: Al el c
Title: City M nager
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability company
Its Operating Member ATTEST:
By: IN TOWN LIVING, INC.
a Delaware corporation City Clerk Donna Swit
Its Managing Member Robin Estanislau
Docuftned by:
B �� ��� APPROVED AS ORM:
Na 485Ac47E son
Title: President of Community DevelopmentA�r
DocuSigned by:
ity ttorney
B ,,, IPA �� M' hael E. Ga't'�s
Na 474E1BBADD2ea00
Title: senior vice-President/community Developmen
22-11508/288280
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COUNTERPART
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.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On October 20, 2022 before me, Tania Moore, Notary Public, personally appeared
Barbara Delgleize, Al Zelinka and Donna Switzer who proved to me on the
basis of satisfactory evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or
the entity upon behalf of which the persons 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 Y y��::..�r, ?ANIAMOORE
Notary public•California
Orange county
Commission M 2358365
My Comm.Expires May 20,2025
(Seal)
so—
(Notary Sign kure)
Agreement. The only relationship between City and Owner is that of a government entity regulating
the development of private property and the Owner of such property.
7.18 Attorneys' Fees and Costs. If either Party to this Agreement commences an
action against the other Party to this Agreement arising out of or in connection with this Agreement,
each party shall bear its own attorneys' fees and costs of suit.
7.19 Authority to Execute.The person or persons executing this Agreement on behalf
of either Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their agency, corporation, partnership or business entity and
warrants and represents that he or she/they has/have the authority to bind the Party to the performance
of its obligations hereunder.
7.20 Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
set firth above.
"OWNER" "CITY"
OLSON URBAN V—HUNTINGTON BEACH 4,
LLC a Delaware limited liability company CITY OF HUNTINGTON BEACH
a California municipal corporation
By: OLSON URBAN COMMUNITIES V, LLC
a Delaware limited liability company By:
Its Sole Member Name:
Title:
By: OLSON URBAN VENTURES V, LLC
a Delaware limited liability company By:
Its Sole Member Name:
Title:
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability company
Its Operating Member ATTEST:
By: IN TOWN LIVING, INC.
a Delaw a corporation City Clerk
Its Ma ing ember
By: APPROVED AS TO FORM:
Name: Off-}"
Title:
City Attorney ,IU
By: `U
Name:
Title: PR rSr►7t/V"' (rj(b�1 h'`�� cLc-, i"
22-11508/288280
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C®UZVTERP T
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 OrOIA22t )
On �p4"tw,--Ia�2 'j ,U L-L before me, VO-W 4 W-e t-.R- , W a-�O-� P WWC,
(insert name and title of the fficer)
personally appeared 3,4 w
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
*my
' VALERIE WEISEL
Notary Public•California
WITNESS my hand and official seal. Ora CountyCommis ison k 132267
Comm.Expires Jun 23,2025
1 n l
Signature V�/� (Seal)
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 Oy- )
On C�e*�tk"�2)) .22 before me, \fo�-Az\t. WRdSd N otg,N-
(insert name and title of the officer)
personally appeared T'5 4 d (-)� S: 1
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
*my
VALERIE WEISEL
Notary Public•California
WITNESS my hand and official seal. Orange County
Commission#2362267
Comm.Expires Jun 23,2025
Signature V � (Seal)
EXHIBIT A
TO DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
(Legal Description)
That real property located in the City of Huntington Beach, County of Orange, State of California,
described as follows:
PARCEL A: (APN 167-531-24) PARCELS 2 AND 3, IN THE CITY OF HUNTINGTON BEACH, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 42, PAGE 34
OF PARCEL MAPS, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM THE NORTH 130.00
FEET THEREOF.
PARCEL B: (APN 167-531-23) PARCEL 4, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 42, PAGE 34 OF
PARCEL MAPS, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM THE NORTH 130.00 FEET
THEREOF.
APN: 167-531-23 AND 167-531-24
22-11508/288280
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EXHIBIT B
TO DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
(Project Depiction)
22-11508/288280
-14-
Mimi'�6 i�'p P)1d375 TW.AAw. Pb W.
111 j �1jy� $ Itla glop Bach,G 92647 :Ina1t-m,a
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s,cton Tpe TBw V41 1.
" H F'xe sprclbar 1FPA 13D
fn .0 M T7pa 0n43rtle
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FmM Yxd Sebal'k 15' 15'(pmvided)
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;: -N,=. Q (ahaw2sbnes.3'br e�sceEin925'Ic91E)
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;w..... M»e.•"@.. ,... -� Rex YaN SHhack 10. 13'(ProMed)
` 3 10'.3'tor . 25'
W Gmsa
Sb BawrM i Ana
- _ Sib Area 1p5.8B9 SF 3.4J AC
Z -Bib Area a9.949 SF 2,07 AC
Die1ir191hv1a' N W 'DeN/y Bons 10%
25'min.Back Up Space For 90- --Property cmae oeaa4r u.o MAC
Degree Parking(Section 231.18D) `^ `'- Line NH Dens 16A De'AC
Lot Covara e
Parking
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pace Dimension,
n
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= Mforvehle aasso ax*
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stacking ftikln
§
F/C EIRE ACCE.B eOAO - - �---- --_-- -'- I
( « Fc to =:�1 le _-"" -_ .-. .`•. ':a Sight-line Tawnhawn w.arrow.
I
_ 54 i GFA Btl %ToIWGFA GFAs
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TotY 3/ t 3 100a% 5e0 8 1
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200 I
6 7 8 6 3 1 2 1 AK; �1 i %
T30D ,280 y00 1 _t99 r-1 T00 K ..�0 T_z00 t 3W PI 3he6roxnlMia 20 56J%
4he6wom lkBa 14 412%
YI Street corner roal M 166%
visibility triangle, 9Mroern ce.m i x
- ---- F _ 13 1 per City 3be0wanbbl 60 61.7%
A S ENE N T w-" nL
n n
I1IC __ n§. 4badnbmlotel 58 48.3%
tB.w.P. o,m - -- - � a" ac _ti A/C _a"• °: AA; r I Standard Taal 116 100%
�'e•'• _ _____________ _ _11F'Y1SF®q„7L__---__----R l ftq
_______ R I P•rRir
---- - ' Front I..e tAe
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t- ----J ResOx4 zo 66
triangle,per City 41 Setback aep DSO 11
Standard T A L B E R T AVE. Street Side Patios Projections Cont. p R.' Pa kft 2A
Setback (Section 230.68) P.,Adw lit Pwridetl
Dead End Parkin Maneuvering-- Gx Sp- 2.0 ea
9 9 -Bay Window Projections(B.W.P-)Into Street Ultimate Right Go Sp 0.47 16
3'min.(Section 231.18B) Side Yard Setback 2.5'max.(Section 230.68) of Way ^=ceesieb 0a3 1
TOYIPwvIdeA 2M is
iwlM
P'rv' Patios Projections Into Street Side Yard 0p.6Sp.w Q5%otloW--SF) 14,WS SF 426.6 SFAW
Setback 4'max.(Section 230.68)
A I8.Y.um toa I1Y...le1w
' M I S C. LEGEND CaP.^Swlxl .1D) 6.snW 22%
Pd.ale Open sp.w Inn B z.466 SF
Tobl n Spao YlnBrn OY1.n.bew 11,N6 6F 324.6 3FA
G- Gas Meters Buildl M ear i OC N Newland S[.TOS(FF)Rei h[DiHerenre
( E- Electrical Cab. 1 d6.46 46.57 0.11 n IA)T M BlLren C.Be 81.1.Ylei.
' '^`*a --" 3••. C- CableJDate Cab. 2 46.46 46.7 0.z4 Pde!Open space Ibu 11-M -APrxa 1,545 SF 8.09%
e' A/C-Air Condenser UnHs
3 46.46 96.34 _Q)2 Oirr Lxlia Spew Denim wk l0- 17,5478E 91.91%
4 46.46 45.n -0.74 Tohl n 8 u NDT YYY-DYiMIe1M 1 6F 1161.5 6FAiir
46,46 46.27 -0.19 Te 10Al1 B Ca 1278P
N 6 46.46 46.54 0.08
Bdir19 Colara9a 31A17 BF 34.82%
Aft7 4G46 46.1E -0.28 Pwxn.KCwwrapa 2B,506 SF 31 A9%
8 46.46 45 EW -0.6 30.127 8F 33.49%
9 46.46 45.11
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EXHIBIT C
TO DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
(Affordable Housing Covenant)
22-11508/288280
-15-
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
IIHT II III I II III II III I II I II 175.00
* $ R 0 0 1 4 7 2 2 3 1 9 $ *
•• 2023000319389 10:58 am 12/29/23
376 CR-SCO6 D02 57
•
0.00 0.00 0.00 0.00 168.00 0.00 0.000.000.00 0.00
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Huntington
Beach 2000 Main Street
• Huntington Beach,CA 92648
SPACE ABOVE THIS LINE FOR RECORDERS'USE ONLY
DECLARATION OF CONDITIONS, COVENANTS AND
RESTRICTIONS FOR LOW AND MODERATE INCOME AFFORDABLE HOUSING
8375 TALBERT AVENUE, HUNTINGTON BEACH
(17962 SUNDIAL LANE, 17951 CONCH LANE, & 17952 SUNDIAL LANE)
This Declaration Of Conditions, Covenants And Restrictions For Low and
Moderate Income Affordable Housing ("Resale Restrictions") is made as of t' -1 ',
2023, by and between OLSON URBAN V— HUNTINGTON BEACH 4, LLC, a Delaware
• Limited Liability Corporation (the "Owner"), and the CITY OF HUNTINGTON BEACH, a
California municipal corporation (the "City"), and the HOUSING AUTHORITY OF THE
CITY OF HUNTINGTON BEACH, a public body corporate and politic (the "Authority").
At the option of the City and Authority, the Authority may enforce these Resale
Restrictions in place of the City.
RECITALS
A. Owner is the owner in fee of that certain real property located at 17962
Sundial Lane, 17951 Conch Lane, and 17952 Sundial Lane, Huntington Beach, as
more particularly described in the legal description attached hereto as Exhibit."A" and
are referred to herein individually as a "Restricted Unit', and collectively as the
"Restricted Units". •
B. Owner submitted to City plans to develop a thirty-four (34) unit residential
community at 8375 Talbert Avenue, Huntington Beach, to be subdivided as a
condominium development. Owner will build the Project In multiple phases and sell .
individual units to individual homebuyers. Pursuant to California Government Code
Section 65915 (the "State Density Bonus Law"), as Implemented under Huntington
Beach Zoning and Subdivision Ordinance ("HBZSO"), Chapter 230.14, developers of
housing projects that include specified levels of affordable housing are entitled to apply
for and receive certain density bonuses and additional incentives in order to facilitate the
economic feasibility of those projects. Owner is proposing an increase in the number of
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22-1150B/327642
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Huntington
Beach 2000 Main Street
Huntington Beach,CA 92648
SPACE ABOVE THIS LINE FOR RECORDERS'USE ONLY
DECLARATION OF CONDITIONS, COVENANTS AND
RESTRICTIONS FOR LOW AND MODERATE INCOME AFFORDABLE HOUSING
8375 TALBERT AVENUE, HUNTINGTON BEACH
(17962 SUNDIAL LANE, 17951 CONCH LANE, & 17952 SUNDIAL LANE)
This Declaration Of Conditions, Covenants And Restrictions For Low and
Moderate Income Affordable Housing ("Resale Restrictions") is made as of t'a-?' ,
2023, by and between OLSON URBAN V - HUNTINGTON BEACH 4, LLC, a Delaware
Limited Liability Corporation (the "Owner"), and the CITY OF HUNTINGTON BEACH, a
California municipal corporation (the "City"), and the HOUSING AUTHORITY OF THE
CITY OF HUNTINGTON BEACH, a public body corporate and politic (the "Authority").
At the option of the City and Authority, the Authority may enforce these Resale
Restrictions in place of the City.
RECITALS
A. Owner is the owner in fee of that certain real property located at 17962
Sundial Lane, 17951 Conch Lane, and 17952 Sundial Lane, Huntington Beach, as
more particularly described in the legal description attached hereto as Exhibit "A" and
are referred to herein individually as a "Restricted Unit", and collectively as the
"Restricted Units".
B. Owner submitted to City plans to develop a thirty-four (34) unit residential
community at 8375 Talbert Avenue, Huntington Beach, to be subdivided as a
condominium development. Owner will build the Project in multiple phases and sell
individual units to individual homebuyers. Pursuant to California Government Code
Section 65915 (the "State Density Bonus Law"), as implemented under Huntington
Beach Zoning and Subdivision Ordinance ("HBZSO"), Chapter 230.14, developers of
housing projects that include specified levels of affordable housing are entitled to apply
for and receive certain density bonuses and additional incentives in order to facilitate the
economic feasibility of those projects. Owner is proposing an increase in the number of
1
22-11508/327642
units allowed per the State Density Bonus Law and will meet the affordability
requirements as outlined in HBZSO Chapter 230.14. In exchange for making at least
ten percent (10%) of the 34 total units affordable to both Low and Moderate Income
Households per HBZSO Chapter 230.14, the State Density Bonus Law provides that the
developer may receive up to one "incentive or concession." (Gov't § 65.915(d)(2)(A).)
C. On May 10, 2022, the Huntington Beach Planning Commission approved
the Project application consisting of a 1) General Plan Amendment No. 21-002; 2)
Tentative Tract Map No. 19157; 3) Conditional Use Permit (CUP) No. 21-004; and 4)
> Mitigated Negative Declaration No. 21-003. As a condition of approval of the Tentative
Tract Map and CUP, the Project includes three (3) units which are to be occupied by,
and sold at prices affordable to Low and Moderate Income Households for a term of 45
years (the "Restricted Units"). Tentative Tract Map No. 19157 was later recorded as
Final Tract Map No. 19157 at Instrument No. 202300002812 of the Records of Orange
County, California.
D. In order to secure the long term affordability of the Affordable Units, the
City and Owner entered into the "Density Bonus and Affordable Housing Agreement for
8375 Talbert Avenue," which was recorded as Instrument No. 2022000343715 in the
Records of Orange County, California (the "Density Bonus Agreement"). The Density
Bonus Agreement provides that Owner shall designate three (3), three-bedroom units as
the Restricted Units. Owner has designated 17962 Sundial Lane and 17951 Conch
Lane to be occupied and sold to Moderate Income Households; and 17952 Sundial
Lane to be occupied by and sold to a Low Income Household.
NOW, THEREFORE, the Parties hereto agree and covenant as follows:
1. Affordability Covenants. Owner agrees for itself and the successors and
• assigns to Owner's interest in the Restricted Units, including each Low Income
Household and Moderate Income Household purchasing one of the Restricted Units,
that for a term of forty-five (45) years from' the date of the close of escrow for the initial
sale of each such Restricted Unit, that, during the Affordability Period (as defined in
Section 4.1 below):
1.1 The Restricted Units shall only be owned and occupied by a Low
Income Household or Moderate Income Household, which shall mean persons or
families in a Low Income Household earning not more than 80% of the Orange County
median income, and persons or families in a Moderate Income Household earning not
more than 120% of the Orange County median income, adjusted for household size as
appropriate to the Unit.
1.2 The Restricted Units shall only be sold at an Affordable Housing
Cost to Low and Moderate Income Households.
2. Definitions and Exhibits.
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2.1 Definitions. In addition to the terms that may be defined elsewhere
in this Covenant, the following terms when used in these Resale Restrictions shall be
defined as follows:
2.1.1 "Adjusted for family size appropriate to the Unit" means a
household of one person in the case of a studio unit, a household of two persons in the
case of one-bedroom unit, a household of three persons in the case of a two-bedroom
unit, a household of four persons in the case of a three-bedroom unit, and a household
of five persons in the case of a"four-bedroom unit.
2.1.2 "Affordable Housing Cost" for for a Low Income Household
means that purchase price which would result in an annual Monthly Housing Cost
which does not exceed the product of Thirty Percent (30%) times Seventy Percent
(70%) of the current Orange County monthly median income for a household adjusted
for family size appropriate to the Unit under Health and Safety Code Section
50052.5(b)(3). Affordable Housing Cost for a Moderate Income Household means that
purchase price which would result in an annual Monthly Housing Cost which does not
exceed the product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%)
of the current Orange County monthly median income for a household adjusted for
family size appropriate to the Unit under Health and Safety Code Section
50052.5(b)(4). Affordable Housing Cost shall be calculated pursuant to the City
Housing Regulations.
2.1.3 "City Housing Regulations" means the "Affordable
Ownership Housing Regulations-Homeowner Requirement of the City of Huntington
Beach," dated August 15, 2011, as they exist now, and as they may be amended in the
future.
2.1.4 "Default" means the failure of a Party to perform any action
or covenant required by these Resale Restrictions within the time periods provided
herein following notice and opportunity to cure.
2.1.5 "First Lien" means the lien of a primary Lender which
secures the obligations of the Owner to repay amounts owed to the Lender.
2.1.6. "Owner" means the then-current owner of a Restricted Unit.
Initially, Owner refers to OLSON URBAN V — HUNTINGTON BEACH 4, LLC, a
Delaware Limited Liability Corporation. Subsequent to the initial sale of a Restricted
Unit, Owner refers to each subsequent owner of any legal or equitable interest in a
Restricted Unit. ' •
2.1.7. "Lender" means a lender making a purchase money loan to
the Owner for the purchase of the Restricted Unit.
2.1.8. "Low Income Household" means a a Household whose
income does not exceed the qualifying limits for lower income households for Orange
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22-11508/327642
•
County, adjusted for household size, pursuant to Health and Safety Code Section
50079.5, and established annually by HCD regulations.
2.1.9 "Median Income" means the Orange County, California
area median income, adjusted for household size, as established by the United States
Department of Housing and Urban Development, and as published periodically by the
State of California Department of Housing and Community Development.
2.1.10 "Moderate Income Household" means a Household whose
income does not exceed one hundred twenty percent (120%) of Median Income,
adjusted for family size. The income level of a Household shall be determined in
accordance with the City Housing Regulations.
2.1.11 "Monthly Housing Cost" shall include all of the following
associated with the Restricted Units: (i) principal and interest payments on a mortgage
loan; (ii) property taxes and assessments; (iii) the cost of fire and casualty insurance
covering replacement value of property improvements; (iv) homeowner's association •
fees; (v) reasonable Unit maintenance and repair costs; and (vi) reasonable utility
allowance. In determining monthly housing payments, the City will assume principal
and interest payments on a conventional home mortgage after paying a ten percent
(10%) down payment. All Monthly Housing costs shall be determined by the City
according to the City Housing Regulations.
2.1.12 "Qualified Purchaser" Means a person or family who
complies with all income verification requirements of these Resale Restrictions, and
•
earns not more than eighty percent (80%) of the Median Income, adjusted for family
size, for the one Low Income Household Unit, and one hundred twenty percent (120%)
of the Median Income, adjusted for family size, for the two Moderate Income Household
Units as to be determined in accordance with the City Housing Regulations.
2.1.13 "Transfer" shall mean any sale, assignment, conveyance,
lease, or transfer, voluntary or involuntary, of any interest in the Restricted Unit. Without
limiting the generality of the foregoing, Transfer shall include (i) a transfer by devise,
•
inheritance or intestacy; (ii) the creation of a life estate; (iii) the creation of a joint
• tenancy interest; (iv) a gift of all or any portion of the Restricted Unit; or (v) any voluntary
conveyance of the Restricted Unit.
3. Attachments. The following documents are attached to, and by this
reference made a part of, these Resale Restrictions:
Exhibit A— Legal Description of Restricted Units
Exhibit B — Notice of Affordability Restriction
Exhibit C — Promissory Note
Exhibit D —Affordable Housing Deed of Trust
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4. Term of Resale Restrictions.
4.1 The term of these Resale Restrictions shall commence on the date
of the initial sale of each Restricted Unit from Owner to a Qualified Purchaser as
evidenced by a deed recorded with the Orange County Recorder's Office and shall
continue, with respect to each such Restricted Unit, for forty-five (45) years from said
date (the "Affordability Period"). The Covenant contained in this Section shall run with
each Restricted Unit and shall automatically terminate and be of no further force or
effect upon the expiration of the Affordability Period. By way of explanation of the
foregoing sentence, it is possible that the affordability term for one Restricted Unit will
neither commence on the same date nor terminate on the same date as another
Restricted Unit, and it is possible that the affordability terms for all Restricted Units will
commence on different days and terminate on different days. The beginning and
expiration dates of the Affordability Period for each Restricted Unit shall be established
by the City in the Notice of Affordability Covenant (Exhibit B) recorded in connection with
each sale of the Restricted Units.
4.2 Prior to the termination of the Affordability period, each Qualified
Purchaser of a Restricted Unit shall enter into a Notice of Affordability Restriction,
Promissory Note and Deed of Trust in the forms attached as Exhibits B, C, and D to
these Resale Restrictions.
5. Covenant Regarding Use and Sale of Restricted Units. During the
Affordability Period, the Restricted Units shall be owned and occupied as the principal
residence of a Low Income Household or Moderate Income Household, and in no
event may the Restricted Unit be leased to a third party. During the Affordability
Period, no transfer of a Restricted Unit shall occur until the City determines that: (a) the
proposed purchaser intends to occupy the Restricted Unit as the proposed purchaser's
principal residence; (b) the proposed purchaser is a either a Low Income Household or
Moderate Income Household; and (c) the proposed transfer occurs at an Affordable
Housing Cost.
6. Permitted and Prohibited Transfers of Restricted Units.
6.1 The following Transfers, made in compliance with the terms and
conditions of these Resale Restrictions and the City Housing Regulations, shall
constitute "Permitted Transfers": (i) a Transfer to a surviving joint tenant or other
permitted co-Owner of the Restricted Unit by devise, descent, or operation of law on the
death of an Owner; (ii) a Transfer to a spouse such that the spouses become co-
Owners of the Restricted Unit; (iii) a Transfer by decree of dissolution, legal separation
agreement, or from an incidental property settlement by which the spouse becomes an
Owner of the Restricted Unit, provided that in each case the transferee spouse occupies
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22-11508/327642
or will occupy the Restricted Unit; (iv) a Transfer to an inter vivos trust in which Owner is
and remains the beneficiary and occupant of the Restricted Unit; and (v) a Transfer to a
Low Income Household or Moderate Income Household at Affordable Housing Cost. A
Transfer that is not a Permitted Transfer specified above is a "Prohibited Transfer."
During the Affordability Period, the occurrence of a Prohibited Transfer is a Default
under these Resale Restrictions.
6.2 All Transfers Prohibited Without City Approval. During the
Affordability Period, Owner shall not sell, transfer, use as security for any loan, or
convey any interest in a Restricted Unit, except with the express written consent of the
City, which consent shall be given only if the Transfer is a Permitted Transfer and in
strict compliance with the provisions of this Section 6.
6.3 Maximum Sale Price of Restricted Unit. In the event that Owner
decides to sell or otherwise Transfer the Restricted Unit, Owner shall contact the City to
obtain the current Affordable Housing Cost, which shall be the maximum sales price of
the Restricted Unit. City shall provide the Affordable Housing Cost pursuant to its
current Affordable Housing Regulations. Regarding the Affordable Housing Cost,
Owner acknowledges that:
OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER,
UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME
OF A PROPOSED SALE OR OTHER TRANSFER OF THE
RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING
INTEREST RATES, THE OFFERED TERMS OF SALE, THE
ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER
AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF
THE SAME OR OTHER SIMILAR REAL PROPERTY WHICH IS NOT
ENCUMBERED BY THIS COVENANT. OWNER, AND EACH
SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER
ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE
TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND
THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO A
LOW INCOME HOUSEHOLD AND MODERATE INCOME
HOUSEHOLDS AT AN AFFORDABLE HOUSING COST.
wner's Initials
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22-1 1 5 0 8/3 27642
6.4 Procedure to Verify a Proposed Transfer. In the event that
Owner desires to sell the Restricted Unit, Owner shall send written notice thereof to the
City at the following address:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention: Housing Manager
City shall process the sale of the Restricted Unit pursuant to the City Housing
Regulations within thirty (30) days after receipt of such written notice from Owner
notifying City of Owner's desire to sell such Restricted Unit. The City shall not be
obligated to approve a transfer unless and until the proposed purchaser has submitted
to the City such information and completed such forms as necessary to verify the
proposed purchaser's intent with respect to his/her/its residency of the Restricted Unit,
his/her/its gross income, and an affidavit of the proposed purchaser disclosing and
certifying the amount of the proposed purchase price.
Prior to conveyance of the Restricted Unit, each approved purchaser shall also
submit to the City an executed disclosure statement which certifies that the purchaser is
aware that: (i) the purchaser buying the Restricted Unit may only sell the Restricted Unit
at an Affordable Housing Cost to either a Low Income Household or a Moderate Income
Household as provided in Section 1 above, (ii) the maximum permitted sales price may
be less than fair market value and (iii) the Restricted Unit must be owner-occupied at all
times and cannot be rented or leased. The approved purchaser shall also submit an
executed promissory, trust deed, notice documents, and any other documentation
reasonably required by the City to effectuate the Affordable Housing Program. Owner
shall cooperate with the City in providing such forms to proposed purchasers and in
assisting proposed purchasers to prepare such forms and to provide any required
information to the City in connection with only the Owner's sale of the Restricted Unit.
7. Non-Discrimination Covenants. Owner covenants by and for itself, it
successors and assigns, and all persons claiming under or through them that there shall
be no discrimination against or segregation of any person or group of persons on
account of race, color, religion, sex, sexual orientation, creed, ancestry, national or
ethnic origin, age, family or marital status, handicap or disability, in the sale, transfer,
use, occupancy, tenure or enjoyment of the Restricted Unit, nor shall Owner itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, subtenants, or vendees in the Restricted Unit.
Owner and its successors and assigns shall refrain from restricting the sale of the
Restricted Unit on the basis of race, color, religion, sex, sexual orientation, creed,
ancestry, national or ethnic origin, age, family or marital status, handicap or disability, of
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any person. All such deeds or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clause:
(a) In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, 'administrators and
assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of
persons on account of race, color, religion, sex, sexual orientation,
creed, ancestry, national or ethnic origin, age, family or marital status,
handicap or disability, in the sale, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of
tenants, or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In contracts: "There shall be no discrimination against or
segregation of, any person or group of persons on account of race,
color, religion, sex, sexual orientation, creed, ancestry, national or ethnic
origin, age, family or marital status, handicap or disability, in the sale,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall
the transferor himself or herself of any person claiming under or though
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use of occupancy of tenants, subtenants or vendee of the
premises."
(c) In leases: "The lessee herein covenants by and for himself
or herself, his or her heirs, executors, administrators, and assignees,
and all persons claiming under or though him or her, and this lease is
made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of
any person or group of persons on account of race, color,
religion, sex, sexual orientation, creed, ancestry, national or
ethnic origin, age, family or marital status, handicap or disability,
in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or though him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, sublessees,
subtenants, or vendees in the premises herein leased."
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Nothing in this Section 7 shall be construed to authorize the rental or lease of the
Restricted Unit if such rental or lease is not otherwise permitted.
8. Encumbrances.
8.1 Financings on Transfer. This Section 8 shall not prohibit the
encumbering of title for the sole purpose of securing financing of the purchase price of
the Restricted Unit upon a Transfer thereof; however, any such financing shall be for the
Owner and (i) must be a First Lien, (ii) must not be in excess of the Affordable Housing
Cost of the Restricted Unit as of date of approval for the financing, (iii) must be in
compliance with these Resale Restrictions and the Affordable Housing Deed of Trust,
and (iv) shall be subordinate to these Resale Restrictions.
8.2 Subordination. These Resale Restrictions shall have priority over
all monetary liens and encumbrances for the Affordability Period. However, the
Affordable Housing Deed of Trust only may be subordinated to a First Lien on the
Restricted Unit that secures the payment of a principal amount that is not in excess, as
of the date of approval for said financing, of the Affordable Housing Cost of the
Restricted Unit. The City shall execute a written instrument for the subordination of its
rights under the Affordable Housing Deed of Trust in the form approved by the City
Attorney as may reasonably be requested by the Lender. The City's agreement to so
subordinate its rights is subject to agreement in writing by the Lender providing the City
the following rights:
(a). Upon the occurrence of a Default under any of the First
Lien documents, the holder of the First Lien shall promptly notify the City
of the occurrence of such Default, which notification shall be provided to
the City contemporaneously with the delivery to Owner of any notice of
Default under any of the First Lien documents; and
(b) The City shall have the right, during the cure periods which
apply to the Owner pursuant to the First Lien documents and any cure
period which may apply to the City under applicable law, to cure the
Owner's Default relative to the First Lien; and
(c) After a Default on any of the First Lien documents but prior
to a foreclosure sale or deed in lieu assignment of the Restricted Unit,
the City shall have the right to take title to the Restricted Unit and cure
the Default relative to the First Lien documents, without the holder of the
First Lien exercising any right it might otherwise have to accelerate the
obligations secured by the First Lien by reason of such title transfer, so
long as the City promptly cures any such Default upon taking title to the
Restricted Unit.
8.3 Request for Notice of Default. The City may cause a Request for
Notice to be recorded on the Restricted Unit subsequent to the recordation of the First
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Lien deed of trust or mortgage requesting a statutory notice of Default as set forth in
California Civil Code Section 2924b.
8.4 Further Encumbrances Prohibited. Owner shall not record or
cause or permit the recordation of any deed of trust, mortgage, lien or other instrument
creating a security interest in or to the Restricted Unit (a "Further Encumbrance") other
than these Resale Restrictions, the First Lien and the Affordable Housing Deed of Trust.
9. Uses. The Restricted Unit shall be used as the principal residence of
Owner and owner's family and may not be rented or leased. Owner covenants and
agrees to devote, use, and maintain the Restricted Unit in accordance with these Resale
Restrictions. All uses conducted on the Restricted Unit, including, without limitation, all
activities undertaken by the Owner pursuant to these Resale Restrictions, shall conform
to all applicable provisions of federal, state, and local laws, including the Huntington
Beach Municipal Code, and the City Housing Regulations.
10. Maintenance of Unit. Owner shall maintain the Restricted Unit in a
manner consistent with community standards which will uphold the value of the
Restricted Unit, in accordance with the Huntington Beach Municipal Code. Owner
also shall comply with all applicable federal, state and local laws.
11. Effect of Violation of the Terms and Provisions of These Resale
Restrictions.
11.1 Covenants Run with the Land. These Resale Restrictions are
_designed to create equitable servitudes and covenants running with the Restricted
Unit, in accordance with the provisions of Civil Code Section 1468, and the State
Density Bonus Law and the Huntington Beach Zoning and Subdivision Ordinance. The
covenants, conditions, restrictions, reservations, equitable servitudes, liens and
charges set forth herein shall run with the Restricted Unit and shall be binding upon all
persons having any right, title or interest in the leasehold interest in the Restricted Unit,
or any part thereof, their heirs, successive owners and assigns; shall inure to the
benefit of the City and its successors and assigns, shall be binding upon Owner, and its
successors and assigns; and may be enforced by City and its successors and assigns.
Owner hereby declares its understanding and intent that the burden of the covenants
set forth herein touch and concern the land and that the Owner's interest in the
Restricted Unit is rendered less valuable thereby. Owner hereby further declares its
understanding and intent that the benefit of such covenants touch and concern the
land by enhancing and increasing the enjoyment and use of the Restricted Unit by
Owner, and by furthering public purposes for City.
In amplification and not in restriction of the provisions hereinabove, it is intended
and agreed that City is deemed a beneficiary of the agreements and covenants
provided herein both for and in its own right and also for the purposes of protecting the
interests of the community. All covenants without regard to technical classification or
designation shall be binding for the benefit of City and such covenants shall run in
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22-11508/327642
favor of City for the entire period during which such covenants shall be in force and
effect, without regard to whether City is or remains an owner of any land or interest
therein to which such covenants relate. However, all such covenants and restrictions
shall be deemed to run in favor of all real property owned by the City which real
property shall be deemed the benefited property of such covenants. Furthermore, all of
the covenants, conditions, and restrictions contained herein shall also constitute
easements in gross running in favor of the City. City shall have the right, in the event
of any breach of any such agreement or covenant, to exercise all the rights and
remedies, and to maintain any action at law or suit in equity or other proper
proceedings to enforce the curing of such breach of agreement or covenant.
11.2 Notice of Default. Failure or delay by Owner to perform any term
or provision of these Resale Restrictions which is not cured within thirty (30) days after
receipt of notice from the City constitutes a Default under these Resale Restrictions;
provided, however, if such Default is of the nature requiring more than thirty (30) days
to cure, Owner may avoid Default hereunder by immediately commencing to cure
within such thirty (30) day period, and thereafter diligently pursuing such cure to
completion within sixty (60) days after the expiration of the initial thirty (30) day period,
for a total of ninety (90) days. Failure or delay in giving notice by the City shall not
constitute a waiver of any Default, nor shall it change the time of Default.
11.3 City's Remedies. Upon the declaration of a Default, the City
may (i) apply to a court of competent jurisdiction for specific performance, for an
injunction prohibiting any act or omission in violation of these Resale Restrictions,
or for any such other relief as may be appropriate, (ii) exercise the City's rights
under these Resale Restrictions and the Affordable Housing Deed of Trust, including,
without limitation, foreclosure of the Restricted Unit, and (iii) pursue such other rights
and remedies permitted under these Resale Restrictions and by applicable law.
11.4 Prohibited Transfers Void. Any attempt by the Owner to make
a Prohibited Transfer of title to or any interest in the Restricted Unit in violation of these
Resale Restrictions shall be void and subject to rescission, specific performance, or
any other right or remedy available at law or in equity.
12. Governing Law. Owner hereby agrees to comply with all ordinances,
rules and regulations of the City, including the City Housing Regulations. Nothing in
these Resale Restrictions is intended to be, nor shall it be deemed to be, a waiver
of any City ordinance, rule or regulation. These Resale Restrictions shall be
governed by the laws of the State of California without regard to conflict of law
principles. Any legal action brought under these Resale Restrictions must be instituted
in the Superior Court of the County of Orange, State of California, or in the Federal
District Court in the Central District of California.
13. Attorneys' Fees and Costs. If either Party to these Resale Restrictions
institutes any action against the other Party arising out of or in connection with to these
Resale Restrictions, each Party shall bear its own attorney's fees and costs of suit.
11
22-11508/327642
14. Severability. So long as the material bargain of the Parties may be
preserved, any provision of these Resale Restrictions that is deemed to be illegal,
invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be
ineffective to the extent of the invalidity or unenforceability of such provision and shall
be deemed stricken from these Resale Restrictions. Any stricken provision shall not
affect the legality, enforceability or validity of the remainder of these Resale
Restrictions. If any provision of these Resale Restrictions is stricken in accordance with
the provisions of this Section, then the stricken provision shall be replaced, to the
extent possible, with a legal, enforceable and valid provision that is as similar in tenor
and intent to the stricken provision as is legally possible. Any such invalidity or
unenforceability of any provision in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Exhibits. Each of the Attachments referenced in these Resale
Restrictions and attached hereto is incorporated into these Resale Restrictions by
this reference as though fully set forth in this Section.
IN WITNESS WHEREOF, the Parties have caused this instrument to be
executed on their behalf by their respective officers hereunto duly authorized as of the
date set forth above.
OWNER:
S-e-e- oLCcc�
The Olson Company, LL , rcv� S�� tca
a California limited lia• y compa ,P
By: IA)
Michelle Johnson
Its: Sr. • ce 'resident of Sales/Markoting
Broker/Offs
By:
William Holfor
• President Olson Communities
•
CITY:
CITY OF HUNTINGTON BEACH,
a - �rnia municipal corporation
-w
0
Dov,\(31,c_*
Mayor crace1 flan per Moo.
12
22-11508/327642
OLSON URBAN V— HUNTINGTON BEACH 4, LLC
a Delaware limited liability company
By: OLSON URBAN COMMUNITIES V, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN VENTURES V, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability company
Operating Member
By: IN TOWN LIVING, INC.
a Delaware corporation
Managing ember
By:
Name: Michelle Johnson
r. ce res dent o Sa es Marketing
Title: ffirer
By:
Name: William Holford
Title: President Olson Communities
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached,and not the truthfulness,accuracy,or validity of that document.
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On December 28, 2023 before me, N. Steinkellner, Notary Public, personally appeared Michelle Johnson &
William Holford who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf
of which the person(s)acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
fr
WISE.. ,tif' N.STEINKER � � d(Ae-
V"—
Notary Public•CaLLNElif
€ ;-4r -&- Orange County J Notary Public
Commission rY 2349954 State of California
t,.00." My Comm.Expires Mar 3,2025
(SEAL)
ATTEST:
erfri -
-*City Clerk Donna SWit
AUTHORITY:
HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH,
a public body corporate and politic
de-D-.
By: ,
quaArylcut
GraCey Vuv1 D'e( Mar.
ATTEST:
Authority Clerk Donna S fur
APPROVED AS TO FORM:
F........A._- ___e__., k_____,_,
k City Attorney/Authority Counsel
Pain o'Alessandro
INITIATED AND APPROVED:
ity Manager/Ex utive Director
ilk s 11171916'n5
13
22-11508/327642
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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 Decev ' be , 2_02_3 before me, Kim D. Radding, Notary Public,
personally appeared Travis Hopkins, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by
his 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.
_� s Notary Public-California
y .e Orange County
Commission It 2361781
o•" My Comm.Expires Jun 22,2025
Signature 7 fcCi`t
(Notary Seal Above)
EXHIBIT A
LEGAL DESCRIPTION OF THREE AFFORDABLE UNITS SUBJECT
TO THE AFFORDABLE HOUSING COVENANT FOR
8375 TALBERT AVENUE, HUNTINGTON BEACH
(17962 SUNDIAL LANE, 17951 CONCH LANE, & 17952 SUNDIAL LANE)
(The Affordable Housing Covenant Is Exhibit C To Density Bonus And
Affordable Housing Agreement For 8375 Talbert Avenue, Huntington Beach)
14
22-11508/327642
EXHIBIT A
LEGAL DESCRIPTION OF 17951 CONCH LANE
File Number: RCO-7027595
Exhibit"A"
LEGAL DESCRIPTION OF AFFORDABLE UNIT AT 17951 CONCH LANE, HUNTINGTON BEACH
SUBJECT TO THE AFFORDABLE HOUSING COVENANT.
Real property in the City of Huntington Beach, County of Orange, State of California, described as
follows:
UNIT 14 OF TRACT 19157
PARCEL NO. 1:
A ONE-SEVENTH (1/7TH) UNDIVIDED FRACTIONAL FEE INTEREST AS A TENANT-IN-COMMON IN AND
TO THE COMMON AREA SHOWN AND DESCRIBED AS`MODULE B"ON THAT CERTAIN CONDOMINIUM
PLAN FOR HB WALK, PHASE 1 (AS SAME MAY BE AMENDED FROM TIME TO TIME,THE"PHASE 1
CONDOMINIUM PLAN"), RECORDED ON JUNE 21, 2023,AS INSTRUMENT NO. 2023000148259, OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA C'OFFICIAL RECORDS"). THE COMMON AREA
CONSISTS OF A THREE-DIMENSIONAL VOLUME OF AIRSPACE LOCATED ABOVE LOT 1 OF TRACT NO.
19157,WHICH TRACT IS SHOWN ON A MAP RECORDED IN BOOK 1003,AT PAGES 43 TO 45,
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE RECORDER FOR ORANGE COUNTY,
CALIFORNIA.
PARCEL NO. 2:
UNIT 14,AS SHOWN AND DESCRIBED ON THE PHASE 1 CONDOMINIUM PLAN,AND AS DEFINED IN
THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR HB WALK, RECORDED ON JUNE 21, 2023,AS INSTRUMENT NO. 2023000148339 OF
OFFICIAL RECORDS (AS SAME MAY BE RE-RECORDED, RESTATED AND/OR AMENDED FROM TIME TO
TIME,THE"DECLARATION"). EXCEPT AS OTHERWISE PROVIDED HEREIN,THE CAPITALIZED TERMS IN
THIS GRANT DEED SHALL HAVE THE SAME MEANINGS AS PROVIDED IN THE DECLARATION.
PARCEL NO. 3:
EXCLUSIVE USE EASEMENTS FOR THE BENEFIT OF THE PROPERTY,APPURTENANT TO PARCEL NOS. 1
AND 2 DESCRIBED ABOVE, FOR PATIOS, PORCHES, DECKS AND AIR CONDITIONER COMPRESSORS
AND COMPRESSOR PADS (ALL AS APPLICABLE),AND FOR INTERNAL AND EXTERNAL TELEPHONE
WIRING PURPOSES,AS APPLICABLE, OVER THOSE PORTIONS OF THE CORPORATION PROPERTY
SHOWN IN THE PHASE 1 CONDOMINIUM PLAN OR AS DESCRIBED IN THE DECLARATION.
PARCEL NO. 4:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, USE AND ENJOYMENT ON, OVER AND ACROSS ALL PORTIONS OF THE
CORPORATION PROPERTY PRESENTLY INCLUDED OR SUBSEQUENTLY ANNEXED INTO THE
COMMUNITY WHICH ARE INTENDED FOR SUCH USE AND WHICH DO NOT CONSTITUTE EXCLUSIVE
USE CORPORATION PROPERTY APPURTENANT TO A CONDOMINIUM UNIT IN THE COMMUNITY AND
WHICH ARE NOT SUBJECT TO RIGHTS RESERVED IN FAVOR OF GRANTOR OR OTHERS AS PROVIDED
IN THE DECLARATION.
PARCEL NO. 5:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, DRAINAGE, SUPPORT, ENCROACHMENT, MAINTENANCE, REPAIR, USE,
ENJOYMENT AND FOR ALL OTHER PURPOSES AS SET FORTH IN THE DECLARATION AND AS MAY BE
SHOWN ON THE PHASE 1 CONDOMINIUM PLAN AND THE MAP.
APN: 167-531-23 & 167-531-24
EXHIBIT A
LEGAL DESCRIPTION OF 17962 SUNDIAL LANE
File Number: RCO-7027595
Exhibit"A"
LEGAL DESCRIPTION OF AFFORDABLE UNIT AT 17962 SUNDIAL LANE, HUNTINGTON
BEACH SUBJECT TO THE AFFORDABLE HOUSING COVENANT.
Real property in the City of Huntington Beach, County of Orange, State of California,described as
follows:
UNIT 18 OF TRACT 19157
PARCEL NO. 1:
A ONE-SEVENTH (1/7TH) UNDIVIDED FRACTIONAL FEE INTEREST AS A TENANT-IN-COMMON IN AND
TO THE COMMON AREA SHOWN AND DESCRIBED AS"MODULE B"ON THAT CERTAIN CONDOMINIUM
PLAN FOR HB WALK, PHASE 1 (AS SAME MAY BE AMENDED FROM TIME TO TIME,THE"PHASE 1
CONDOMINIUM PLAN"), RECORDED ON JUNE 21, 2023,AS INSTRUMENT NO. 2023000148259, OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA("OFFICIAL RECORDS").THE COMMON AREA
CONSISTS OF A THREE-DIMENSIONAL VOLUME OF AIRSPACE LOCATED ABOVE LOT 1 OF TRACT NO.
19157,WHICH TRACT IS SHOWN ON A MAP RECORDED IN BOOK 1003,AT PAGES 43 TO 45,
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE RECORDER FOR ORANGE COUNTY,
CALIFORNIA.
PARCEL NO. 2:
UNIT 14,AS SHOWN AND DESCRIBED ON THE PHASE 1 CONDOMINIUM PLAN,AND AS DEFINED IN
THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR HB WALK, RECORDED ON JUNE 21, 2023,AS INSTRUMENT NO. 2023000148339 OF
OFFICIAL RECORDS (AS SAME MAY BE RE-RECORDED, RESTATED AND/OR AMENDED FROM TIME TO
TIME,THE"DECLARATION"). EXCEPT AS OTHERWISE PROVIDED HEREIN,THE CAPITALIZED TERMS IN
THIS GRANT DEED SHALL HAVE THE SAME MEANINGS AS PROVIDED IN THE DECLARATION.
PARCEL NO. 3:
EXCLUSIVE USE EASEMENTS FOR THE BENEFIT OF THE PROPERTY,APPURTENANT TO PARCEL NOS. 1
AND 2 DESCRIBED ABOVE, FOR PATIOS, PORCHES, DECKS AND AIR CONDITIONER COMPRESSORS
AND COMPRESSOR PADS (ALL AS APPLICABLE),AND FOR INTERNAL AND EXTERNAL TELEPHONE
WIRING PURPOSES,AS APPLICABLE, OVER THOSE PORTIONS OF THE CORPORATION PROPERTY
SHOWN IN THE PHASE 1 CONDOMINIUM PLAN OR AS DESCRIBED IN THE DECLARATION.
PARCEL NO. 4:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, USE AND ENJOYMENT ON, OVER AND ACROSS ALL PORTIONS OF THE
CORPORATION PROPERTY PRESENTLY INCLUDED OR SUBSEQUENTLY ANNEXED INTO THE
COMMUNITY WHICH ARE INTENDED FOR SUCH USE AND WHICH DO NOT CONSTITUTE EXCLUSIVE
USE CORPORATION PROPERTY APPURTENANT TO A CONDOMINIUM UNIT IN THE COMMUNITY AND
WHICH ARE NOT SUBJECT TO RIGHTS RESERVED IN FAVOR OF GRANTOR OR OTHERS AS PROVIDED
IN THE DECLARATION.
PARCEL NO. 5:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, DRAINAGE, SUPPORT, ENCROACHMENT, MAINTENANCE, REPAIR, USE,
ENJOYMENT AND FOR ALL OTHER PURPOSES AS SET FORTH IN THE DECLARATION AND AS MAY BE
SHOWN ON THE PHASE 1 CONDOMINIUM PLAN AND THE MAP.
APN: 167-531-23 & 167-531-24
EXHIBIT A
LEGAL DESCRIPTION OF 17952 SUNDIAL LANE
File Number: RCO-7027595
Exhibit"A"
LEGAL DESCRIPTION OF AFFORDABLE UNIT AT 17952 SUNDIAL LANE, HUNTINGTON
BEACH SUBJECT TO THE AFFORDABLE HOUSING COVENANT.
Real property in the City of Huntington Beach, County of Orange, State of California, described as
follows:
UNIT 17 OF TRACT 19157
PARCEL NO. 1:
A ONE-SEVENTH (1/7TH) UNDIVIDED FRACTIONAL FEE INTEREST AS A TENANT-IN-COMMON IN AND
TO THE COMMON AREA SHOWN AND DESCRIBED AS"MODULE B"ON THAT CERTAIN CONDOMINIUM
PLAN FOR HB WALK, PHASE 1 (AS SAME MAY BE AMENDED FROM TIME TO TIME,THE"PHASE 1
CONDOMINIUM PLAN"), RECORDED ON JUNE 21, 2023,AS INSTRUMENT NO. 2023000148259, OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA("OFFICIAL RECORDS"). THE COMMON AREA
CONSISTS OF A THREE-DIMENSIONAL VOLUME OF AIRSPACE LOCATED ABOVE LOT 1 OF TRACT NO.
19157,WHICH TRACT IS SHOWN ON A MAP RECORDED IN BOOK 1003,AT PAGES 43 TO 45,
INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE RECORDER FOR ORANGE COUNTY,
CALIFORNIA.
PARCEL NO. 2:
UNIT 14,AS SHOWN AND DESCRIBED ON THE PHASE 1 CONDOMINIUM PLAN, AND AS DEFINED IN
THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR HB WALK, RECORDED ON JUNE 21, 2023, AS INSTRUMENT NO. 2023000148339 OF
OFFICIAL RECORDS (AS SAME MAY BE RE-RECORDED, RESTATED AND/OR AMENDED FROM TIME TO
TIME,THE"DECLARATION"). EXCEPT AS OTHERWISE PROVIDED HEREIN,THE CAPITALIZED TERMS IN
THIS GRANT DEED SHALL HAVE THE SAME MEANINGS AS PROVIDED IN THE DECLARATION.
PARCEL NO. 3:
EXCLUSIVE USE EASEMENTS FOR THE BENEFIT OF THE PROPERTY,APPURTENANT TO PARCEL NOS. 1
AND 2 DESCRIBED ABOVE, FOR PATIOS, PORCHES, DECKS AND AIR CONDITIONER COMPRESSORS
AND COMPRESSOR PADS (ALL AS APPLICABLE),AND FOR INTERNAL AND EXTERNAL TELEPHONE
WIRING PURPOSES,AS APPLICABLE, OVER THOSE PORTIONS OF THE CORPORATION PROPERTY
SHOWN IN THE PHASE 1 CONDOMINIUM PLAN OR AS DESCRIBED IN THE DECLARATION.
PARCEL NO. 4:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, USE AND ENJOYMENT ON, OVER AND ACROSS ALL PORTIONS OF THE
CORPORATION PROPERTY PRESENTLY INCLUDED OR SUBSEQUENTLY ANNEXED INTO THE
COMMUNITY WHICH ARE INTENDED FOR SUCH USE AND WHICH DO NOT CONSTITUTE EXCLUSIVE
USE CORPORATION PROPERTY APPURTENANT TO A CONDOMINIUM UNIT IN THE COMMUNITY AND
WHICH ARE NOT SUBJECT TO RIGHTS RESERVED IN FAVOR OF GRANTOR OR OTHERS AS PROVIDED
IN THE DECLARATION.
PARCEL NO. 5:
A NONEXCLUSIVE EASEMENT APPURTENANT TO THE AFORE-DESCRIBED CONDOMINIUM UNIT FOR
INGRESS, EGRESS,ACCESS, DRAINAGE, SUPPORT, ENCROACHMENT, MAINTENANCE, REPAIR, USE,
ENJOYMENT AND FOR ALL OTHER PURPOSES AS SET FORTH IN THE DECLARATION AND AS MAY BE
SHOWN ON THE PHASE 1 CONDOMINIUM PLAN AND THE MAP.
APN: 167-531-23 & 167-531-24
EXHIBIT B
NOTICE OF AFFORDABILITY RESTRICTION
(The Notice is an Exhibit to the Affordable Housing Covenant,
which is Exhibit C to Density Bonus And Affordable Housing Agreement
For 8375 Talbert Avenue, Huntington Beach)
15
22-11508/327642
Recording Requested By:
Housing Authority of
the City of Huntington Beach
2000 Main Street, 5th Floor
Huntington Beach, California 92648
Attention: Community Enhancement
SPACE ABOVE THIS LINE FOR RECORDER'S USE
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
NOTICE IS HEREBY GIVEN by ("Owner"), owner of the
property located at 8375 Talbert Avenue, Unit , Huntington Beach, California
92646, Assessor's Parcel Map No. , and more particularly described in
Exhibit "A" attached hereto (the "Property"), that:
1. On , 2022, the "Declaration of Conditions, Covenants and
Restrictions," were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of
Orange (the "Resale Restrictions"). Further, concurrently with this Notice, a
"Deed of Trust with Assignments of Rents to Secure the Affordability
Restrictions on Transfer of the Property" ("Deed of Trust") was recorded
concurrently with this Notice. Among other things, the Resale Restrictions, as
amended by the Deed of Trust, limit the price that the Property may be sold to
an "Affordable Housing Cost" for "Moderate Income Households," as those
terms are defined in the Resale Restrictions, and further defined in the current
Affordable Housing Regulations of the City of Huntington Beach and the Deed
of Trust.
2. The administration of the Resale Restrictions shall be governed by the
Affordable Housing Regulations of the City of Huntington Beach, dated
August 15, 2011, as they exist now and may be amended in the future.
3. In summary, the Property may only be sold to a "Moderate Income
Household" ["Low Income Household"] at a price that does not exceed the
"Affordable Housing Cost." The Affordable Housing Cost is the purchase price
that results in monthly housing payments which do not exceed Thirty-Five
Percent (35%) of One Hundred Ten Percent (110%) [Thirty Percent (30%) of
Eighty Percent (70%)] of the current Orange County monthly median income
22-11508/286735
for a household equal to the number of bedrooms in the unit plus one (1)
person. In determining monthly housing payments, the City will assume
principal• and interest payments on a conventional home mortgage after
paying a ten percent (10%) down payment. The mortgage interest rate will be
the prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected
equivalent. Monthly housing costs will also include homeowner's association
dues, utilities, homeowner's insurance, maintenance costs and property
taxes. Further, a qualifying buyer of the Property shall be a "Moderate
Income Household" whose income does not exceed Thirty-Five Percent
(35%) of One Hundred Ten Percent (110%) ("Low Income Household" whose
income does not exceed Thirty Percent (30%) of Seventy Percent. (70%)] of
the current Orange County monthly median income for a household equal to
the number of bedrooms in the unit plus one (1) person.
4. The effect of relying on prevailing interest rates to determine the Affordable
Housing Cost is to make the resale price of the Property sensitive to interest
rates. For example, if interest rates rise, the resale price will fall, and if
interest rates fall, the resale price will rise. This could result in the Affordable
Housing Cost decreasing below the original purchase price.
5. In the event that Owner decides to sell or otherwise Transfer of the Property,
Owner shall contact the City to obtain the current Affordable Housing Cost,
which shall be the maximum sales price of the Property. City shall provide the .
Affordable Housing Cost pursuant to its current Affordable Housing
Regulations. Regarding the Affordable Housing Cost, Owner acknowledges
that:
OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER,
UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE
TIME OF A PROPOSED SALE OR OTHER TRANSFER OF THE
RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING
INTEREST RATES, THE OFFERED TERMS OF SALE, THE
ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER
AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF
THE. SAME OR SIMILAR REAL PROPERTY WHICH IS NOT
ENCUMBERED BY THIS COVENANT. OWNER, AND EACH
SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER
ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE
TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND
THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO
MODERATE INCOME HOUSEHOLDS [LOW INCOME
HOUSEHOLDS] AT AN AFFORDABLE HOUSING COST.
22-11508/286735
6. The City shall approve a Transfer of the Property if such Transfer complies
with the Resale Restrictions.
7. The Property shall be owner-occupied at all times and shall not be leased or
rented.
8. The Resale Restrictions imposed on the Property began on , 20_
and expire forty-five years later, on , 20 .
This Notice is recorded for the purpose of providing notice only and does not modify
the provisions of the Resale Restrictions or the Deed of Trust.
Dated: By:
APPROVED AS TO FORM:
Dated: By:
City Attorney
Exhibit A
Legal Description
22-11508/286735
EXHIBIT C
PROMISSORY NOTE
(The Promissory Note is an Exhibit to the Affordable Housing Covenant,
which is Exhibit C to Density Bonus And Affordable Housing Agreement
For 8375 Talbert Avenue, Huntington Beach)
•
16
22-11508/327642
PROMISSORY NOTE TO SECURE
AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
THIS PROMISSORY NOTE (the "Note") is dated this day of
, 202_, between ("Promissor") and the Housing
Authority of the City of Huntington Beach ("Authority") with reference to the following
facts:
A. This Promissory Note is made in reference to that property in the City of
Huntington Beach, County of Orange, State of California, with the street address Unit
, 8375 Talbert Avenue, Huntington Beach, California 92646, and the Assessor's
Parcel Map No. (the "Property").
B. On , 2022, the "Declaration of Conditions, Covenants and
Restrictions for Property," were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of Orange (the
"Resale Restrictions"). Among other things, the Resale Restrictions limit the price that
the Property may be sold to an "Affordable Housing Cost" to either "Low Income
Households" or "Moderate Income Households," as those terms are defined in the
Resale Restrictions, and further defined in the Affordable Housing Regulations. The
Affordable Housing Regulations, as they may be amended from time to time, are
utilized to implement the provisions of the Resale Restrictions.
C. The Affordable Sales Price pursuant to the Resale Restrictions shall be
the purchase price that would result in monthly housing payments for a Low Income
Household which does not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%), and for a Moderate Income Household that does not exceed Thirty-Five
Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County
monthly median income for a household equal to the number of bedrooms in the
Property plus one (1) person. In determining monthly housing payments, the City will
assume principal and interest payments on a conventional home mortgage after paying
a ten percent (10%) down payment. The mortgage interest rate will be the prevailing
Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes. Further, a qualifying
buyer of the Property shall be a "Low Income Household" whose income does not
exceed Thirty Percent (30%) of Seventy Percent (70%) and for a "Moderate Income
Household" whose income does not exceed Thirty-Five Percent (35%) of One Hundred
Ten Percent (110%) of the current Orange County monthly median income for a
household equal to the number of bedrooms in the unit plus one (1) person.
The effect of relying on prevailing interest rates to determine the Affordable
Housing Cost is to make the resale price of the Property sensitive to interest rates. For
example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale
22-11508/286734 1
price will rise. This could result in the Affordable Housing Cost decreasing below the
original purchase price.
D. Concurrently with executing this Note, Promissor has executed a Deed of
Trust securing and amending the Resale Restrictions (the "Authority of Deed of Trust").
E. Pursuant to the Resale Restrictions, the City has approved the transfer of
the Property to Promissor at an Affordable Housing Cost. To insure that any further
sale, transfer or assignment of the Property occurs with the City's approval and at an
Affordable Housing Cost, the City has required as a condition of the Promissor's
transfer of the Property that Promissor execute this Note.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Incorporation of Recitals. The recitals set forth above are incorporated by
reference as though fully set forth herein.
2. Amount of the Note.The Amount of this Note is the "Transfer Price" of the
Property, less the "Affordable Housing Cost." The Transfer Price shall be determined
according to the circumstances that cause the Amount of the Note to become due
pursuant to Section 3 of this Note. In the case of the sale of the Property without the
City's consent, the Transfer Price shall be the market sales price. In the case of the
financing or refinancing of the Property without the City's consent, the Transfer Price
shall be the loan amount in excess of the last loan balance on the First Mortgage that
the City previously approved. In all other cases, the Transfer Price shall be the fair
market value of the Property as established by the Director of Community Development
of the City pursuant to an appraisal. The term "Affordable Housing Cost" shall be
defined according to the current Affordable Housing Regulations as adopted by the City
of Huntington Beach.
Promissor promises to pay the Amount of this Note when due to the Housing
Authority at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92648, or at
such other address as Authority may direct from time to time in writing. All sums
hereunder shall be payable in lawful money of the United States of America and all
sums shall be credited first to interest then due and the balance to principal.
3. Due on Sale, Transfer or Refinancing. Promissor agrees to notify the
Authority not less than thirty (30) days prior to (i) the sale or transfer of the Property or
(ii) any financing or refinancing of the Property. This Note shall be due and payable
upon (i) such sale or transfer without the City's consent, (ii) the financing or refinancing
of the Property without the City's consent, (iii) Promissor is no longer an occupant of the
Property, or (iv) Promissor is in material default of any other obligation under the Resale
Restrictions, or the Authority Deed of Trust.
4. Expiration of the Note Obligation. In the event Promissor does not sell or
transfer the Property, does not fail to occupy the Property, does not refinance, or is not
in material breach of any other provision of the Resale Restrictions or the Authority
22-11508/286734 2
Deed of Trust before the forty-fifth (45) anniversary of the date of this Note, Promissor
shall have no obligation to pay the Note Amount to Authority upon later sale, transfer or
refinancing of the Property.
5. Default. The entire unpaid Amount of this Note shall be due and payable
in full in the event of a default. The following shall be deemed to be an event of default:
(i.) The City determines that the Promissor has made a
misrepresentation to obtain the benefits of purchase of the Property or in
connection with its obligations under the Resale Restrictions;
(ii.) The Promissor fails to occupy the Property as required
pursuant to the Resale Restrictions and the Authority Deed of Trust, and
such failure continues following written notice by the City and sixty (60) days
opportunity to cure following the date of such notice;
(iii.) The Promissor rents the Property in violation of the Resale
Restrictions and the Authority Deed of Trust, and such failure continues
following written notice by the City and sixty (60) days opportunity to cure;
(iv.) The Promissor fails to provide information to the City
necessary to determine Promissor's compliance with the requirements of the
Resale Restrictions;
(v.) The Promissor makes a transfer of the Property in violation of
the Resale Restrictions;
(vi.) The Promissor otherwise fails to comply with the requirements
of the Resale Restrictions, and such violation is not corrected to the
satisfaction of the City within thirty (30) days after the date of written notice
by the City to the Trustor of such violation;
(vii.) A notice of default is issued under the First Mortgage Loan or
other financing secured by the Property;
(viii.) A lien is recorded against the Property other than the lien of a
bona fide mortgage loan.
(ix.) Promissor places a mortgage on the Property without the prior
approval of the Authority.
(x.) Promissor declares bankruptcy or makes an assignment of
assets for the benefit of creditors.
(xi.) The Promissor fails to pay any real property taxes or
insurance premiums on the Property as they become due.
(xii.) Promissor continues to materially breach the Resale
Restrictions or the Authority Deed of Trust, following the City or the
Authority giving notice of the breach and an opportunity to cure.
22-11508/286734 3
(viii.) Promissor fails to pay the Note Amount when due.
6. This Note is secured by a concurrently executed Deed of Trust, to the City
of Huntington Beach, as Trustee, executed by Promissor in favor of the Authority.
7. Notice. All payments, notices, consents, waivers and other
communications under this Agreement must be in writing and shall be deemed to have
been given when (a) delivered by hand, or, (b) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in each case
addressed as set forth below:
If to PROMISSOR: If to AUTHORITY:
Housing Authority of the
8375 Talbert Avenue, Unit City of Huntington Beach
Huntington Beach, CA 92646 2000 Main Street
Huntington Beach, CA 92648
Attn: City Clerk
and
Deputy Director of Community Development
City of Huntington Beach
2000 Main Street, 5th Floor
Huntington Beach, CA 92648
8. Governing Law. This Agreement is governed by and shall be construed in
accordance with the laws of the State of California without giving effect to the conflict of
laws principles thereof. The parties agree to personal jurisdiction in the State Courts in
Orange County, California and specifically waive any claims of forum non-conveniens.
9. Modification. This Agreement shall not be amended or modified, except in
writing, signed by both parties.
10. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns under this Note. This Note shall not be
assigned without the express written consent of Authority.
22-11508/286734 4
PROMISSOR
•
Dated: By:
HOUSING AUTHORITY OF THE CITY OF
HUNTINGTON BEACH
Dated: By:
Deputy Director of Community Development
APPROVED AS TO FORM:
Dated: By:
City Attorney k o ,_
22-11508/286734 5
EXHIBIT D
AFFORDABLE HOUSING DEED OF TRUST
(The Affordable Housing Deed of Trust is an Exhibit to the Affordable
Housing Covenant, which is Exhibit C to Density Bonus And Affordable Housing
Agreement For 8375 Talbert Avenue, Huntington Beach)
17
22-11508/327642
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
Housing Authority of
the City of Huntington Beach
2000 Main Street, 5th Floor
Huntington Beach, California 92648
Attention: Community Enhancement
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENTS OF RENTS TO SECURE
RESALE RESTRICTIONS ON TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
THIS DEED OF TRUST is made this day of , 202_
by and among (the "Trustor"), whose address is Unit
8375 Talbert Avenue, California 92646 ("Trustor") and the CITY OF HUNTINGTON
BEACH, a municipal corporation (the "Trustee") and the HOUSING AUTHORITY OF
THE CITY OF HUNTINGTON BEACH, a public body corporate and politic (the
"Beneficiary"), whose address is 2000 Main Street, Huntington Beach, California 92648,
with reference to the following facts:
A. This Deed of Trust is made in reference to that property in the City of
Huntington Beach, County of Orange, State of California, described legally in the Legal
Description attached hereto as Exhibit "A" and incorporated herein with the street
address Unit , 8375 Talbert Avenue, Huntington Beach, California, 92646, and the
Assessor's Parcel Map No. (the "Property").
B. The City has adopted an Inclusionary Housing Ordinance (the
"Inclusionary Ordinance," currently Section 230.26 of the City Zoning Code).
C. On , 202_, the "Declaration of Conditions, Covenants
and Restrictions for Property," were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of Orange (the "Resale
Restrictions"). Among other things, the Resale Restrictions limit the price that the
Property may be sold to an "Affordable Housing Cost" to "Low Income Households" and
"Moderate Income Households," as those terms are defined in the Resale Restrictions,
and further defined in the Affordable Housing Regulations. The Affordable Housing
Regulations, as they may be amended from time to time, are utilized to implement the
provisions of the Resale Restrictions.
D. The Affordable Sales Price pursuant to the Resale Restrictions shall be
the purchase price that would result in monthly housing payments for a Low Income
22-11508/288311 1
Household which does not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%), and for a Moderate Income Household that does not exceed the product
of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current.Orange
County monthly median income for a household equal to the number of bedrooms in the
Property plus one (1) person. In determining monthly housing payments, the City will
assume principal and interest payments on a conventional home mortgage after paying a
ten percent (10%) downpayment. The mortgage interest rate will be the prevailing
Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes. Further, a qualifying
buyer of the Property shall be a "Low Income Household" whose income does not
exceed Thirty Percent (30%) of Seventy Percent (70%) and for a "Moderate Income
Household" whose income does not exceed Thirty-Five Percent (35%) of One Hundred
Ten Percent (110%) of the current Orange County monthly median income for a
household equal to the number of bedrooms in the unit plus one (1) person.
The effect of relying on prevailing interest rates to determine the Affordable Sales Price is
to make the resale price of the Property sensitive to interest rates. For example, if
interest rates rise, the resale price will fall, and if interest rates fall, the resale price will
rise. This could result in the Affordable Sales Price decreasing below the original
purchase price.
E. The administration of the Resale Restrictions, as modified by this Deed
of Trust, shall be governed by the Affordable Housing Regulations of the City of
Huntington Beach, as they exist now and may be amended in the future.
F. Pursuant to this Deed of Trust, the Resale Restrictions expire on
, 20_ (the "Expiration Date").
NOW, THEREFORE, TRUSTOR HEREBY irrevocably grants, transfers and
assigns, to Trustee, in trust, with power of sale of the Property, together with (a) all
buildings, improvements and fixtures, now or hereafter placed thereon, it being
understood and agreed that all classes of property attached or unattached used in
connection herewith shall be deemed fixtures, (b) rents, issues and profits thereof, (c)
any water rights and/or stock are appurtenant or pertain to said land, and (d) all sums of
money payable on the purchase price of the Property secured by a lien thereon or
payable under any agreement for the sale thereof, SUBJECT, HOWEVER, to the right,
power and authority hereinafter given to and conferred upon Beneficiary to collect and
apply such rents, issues and profits, and all sums of money payable on the purchase
price of the Property secured by a lien thereon or payable under any agreement.
A. FOR THE PURPOSE OF SECURING:
1. Payment of the indebtedness evidenced by a promissory note
executed by Trustor concurrently with this Deed of Trust (the "City Note"). The Amount
of the City Note is the "Transfer Price" of the Property, less the "Affordable Housing
22-11508/288311 2
Cost." The calculation of the Amount is'set forth with specificity in the Note, which is on
file with the Community Development Department of the City of Huntington Beach.
2. Performance of each and every obligation, covenant, promise
and agreement of the Resale Restrictions.
B. TO PROTECT THE SECURITY OF THIS DEED OF TRUST,
TRUSTOR AGREES:
1. Restriction on Resale or Transfer of Property.
Trustor agrees for itself, and its successors and assigns, and every successor
to Trustor's interest in the Property, or any part thereof until the Expiration Date, to
perform all obligations due under the Resale Restrictions, as those obligations are
restated and modified as set forth below:
(a) The Property shall only be owned and occupied by persons or
families of "Low Income" or "Moderate Income." "Low Income" shall mean persons or
families earning eighty percent (60%) or less of Orange County median income, adjusted
for appropriate family size. "Moderate Income" shall mean persons or families earning
one hundred twenty percent (120%) or less of Orange County median income, adjusted
for appropriate family size.
(b) The Property may only be sold to "Low Income" or "Moderate
Income" households at an "Affordable Housing Cost," as those terms are further defined
in Affordable Housing Regulations. Generally, those Regulations define Affordable
Housing Cost to mean that purchase price which would result in monthly housing
payments, which do not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%) for Low Income Households, and for Moderate Income Households the
product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current
Orange County monthly median income for a household equal to the number of
bedrooms in the unit plus one (1) person. In determining monthly housing payments, the
City will assume principal and interest payments on a conventional home mortgage after
paying a ten percent (10%) downpayment. The mortgage interest rate will be the
prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes.
The effect of relying on prevailing interest rates to determine the
Affordable Housing Cost is to make the resale price of the Property sensitive to interest
rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall,
the resale price will rise. This could result in the Affordable Housing Cost decreasing
below the original purchase price of the Property.
(c) The Trustor shall further comply with the Affordable Housing
Regulations.
22-11508/288311 3
(d) No transfer of the Property shall occur until the City of Huntington
Beach determines (a) that the proposed purchaser intends to occupy the Property as the
proposed purchaser's principal residence, (b) that the proposed purchaser is a person or
family of either Low Income or Moderate Income, and (c) that the proposed transfer
occurs at an Affordable Housing Cost. The City of Huntington Beach shall not be
obligated to approve a transfer until and unless the proposed purchaser has submitted to
the City of Huntington Beach such information and completed such forms as the City of
Huntington Beach shall request to certify the proposed purchaser's intent with respect to
its residency of the Property and its gross income, and the proposed purchaser has
submitted an affidavit disclosing and certifying the amount of the proposed purchase
price. Prior to conveyance of the Property, each approved purchaser shall submit to the
City of Huntington Beach an executed disclosure statement which certifies that the
purchaser is aware that the purchaser may only sell the unit at an Affordable Housing
Cost to a Low Income or Moderate Income person or family, that the maximum permitted
sales price may be less than fair market value and that the unit must be owner-occupied
at all times and cannot be rented or leased.
TRUSTOR AND EACH SUCCESSOR, HEIR OR ASSIGN OF TRUSTOR
UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE
HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST
RATES, THE TERMS OF SALE OFFERED TO AND THE ECONOMIC
CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER
FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT
THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS
THAN THE FAIR MARKET VALUE OF THE PROPERTY AND MAY NOT
INCREASE OR DECREASE IN THE SAME MANNER AS OTHER
SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS
RESTRICTION. TRUSTOR AND EACH SUCCESSOR, HEIR OR
ASSIGN OF TRUSTOR FURTHER ACKNOWLEDGES THAT AT ALL
TIMES IN SETTING THE TRANSFER PRICE THE PRIMARY
OBJECTIVE OF THE BENEFICIARY AND THIS DEED OF TRUST IS TO
PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT AN
AFFORDABLE HOUSING COST.
Trustor Initials Trustor Initials
(e) The City of Huntington Beach may impose any conditions on the
approval of any transfer of the Property as it determines are reasonably necessary for
the effective administration of its Affordable Housing Program. Such conditions may
include, but are not limited to, requiring the prospective purchaser to sign: (i) a
promissory note in favor of the City by which he or she agrees to pay any excess
proceeds of sale or in excess rental proceeds to the City, and (ii) a deed of trust on the
Property securing both the Resale Restrictions and the promissory note.
22-11508/288311 4
(f) The Trustor shall occupy the Property as the Trustor's principal
place of residence and shall not lease or rent the Property. The Trustor shall provide an
annual written certification to the City that the Trustor is occupying the Property as his or
her principal place of residence, and that the Trustor is not renting the Property to
another party.
(g) The Resale Restrictions shall run with the land and shall
automatically terminate and be of no further force or effect on , 20 .
2. Defaults.
(a) The following events shall constitute a Default by the Trustor
under the Resale Restrictions:
(1) The City determines that the Trustor has made a
misrepresentation to obtain the benefits of purchase of the Property or in connection
with its obligations under the Resale Restrictions;
(2) The Trustor fails to occupy the Property as his or her
principal place of residence as required pursuant to Section 1(f) above, and such
failure continues following written notice by the City and sixty (60) days opportunity to
cure following the date of such notice;
(3) The Trustor rents the Property in violation of Section 1(f)
above, and such failure continues following written notice by the City and sixty (60)
days opportunity to cure;
(4) The Trustor fails to provide information to the City
necessary to determine Trustor's compliance with the requirements of the Resale
Restrictions;
(5) The Trustor transfers the Property in violation of the
Resale Restrictions;
(6) The Trustor otherwise fails to comply with the
requirements of the Resale Restrictions, and such violation is not corrected to the
satisfaction of the City within thirty (30) days after the date of written notice by the City
to the Trustor of such violation;
(7) A notice of default is issued under the First Mortgage
Loan or other financing secured by the Property;
(8) A lien is recorded against the Property other than the
lien of a bona fide mortgage loan.
(9) Trustor places a mortgage on the Property in violation of
Section 9 below; or
22-11508/288311 5
(10) Trustor declares bankruptcy or makes an assignment of
assets for the benefit of creditors.
(b) Upon a declaration of Default by the City under the Resale
Restrictions, the City may exercise any remedies at law or in equity, including without
limitation, any or all of the following, none of which shall be an exclusive remedy:
(1) Declare the City Note due and payable without further
demand and accelerate payments due under the City Note;
(2) Invoke the power of sale under this Deed of Trust;
(3) 'Apply to a court of competent jurisdiction for such relief
at law or in equity as may be appropriate;
(4) Take such enforcement action as is authorized under
the Huntington Beach Municipal Code; and
(5) Declare a Default under the City Note and this Deed of
Trust and pursue all City remedies under the City Note and the City Deed of Trust.
3. Notice of Default and Foreclosure.
A request for notice of default and any notice of sale under any deed of trust
or mortgage with power of sale encumbering the Property shall be recorded by the City
in the Office of the Recorder of the County of Orange. The City may declare a Default
under this Resale Agreement upon receipt of any notice given to the City pursuant to
Civil Code section 2924b, and may exercise its rights as provided in Sections 2 and 4.
In the event of default and foreclosure, the City shall have the same right as
the Trustor to cure defaults and redeem the Property prior to the foreclosure sale.
Nothing herein shall be construed as creating any obligation of the City to cure any
such default, nor shall this right to cure and redeem operate to extend any time
limitations in the default provisions of the underlying deed of trust or mortgage.
If the City failed to file the request for.notice of default, the City's right to
purchase the Property shall commence from the date a notice of default is given by the
City to the Trustor.
4. Purchase Option Upon Default.
Notwithstanding, and in addition to the remedies provided the City in
Section 2, the Trustor hereby grants to the City the option to purchase the Property
following written notice by the City to the Trustor of the declaration of a Default by the
City under the Resale Restrictions. This option to purchase is given in consideration of
the economic benefits received by the Trustor resulting from ownership of the Property
made possible by the City's Affordable Housing Program.
22-11508/288311 6
The City shall have thirty (30) days after a Default is declared to notify the
Trustor and the First Lender of its decision,to exercise its option to purchase under this
Section 4. Not later than ninety (90) days after the notice is given by the City to the
Trustor of the City's intent to exercise its option under this Section 4, the City shall
purchase the Property for the Affordable Housing Cost calculated in the manner set
forth in Section 1.
5. Restrictions on Foreclosure Proceeds.
If a creditor acquires title to the Property through a deed in lieu of
foreclosure, a trustee's deed upon sale, or otherwise, the Trustor shall not be entitled
to the proceeds of sale to the extent that such proceeds otherwise payable to the
Trustor when added to the proceeds paid or credited to the creditor exceed the
Affordable Housing Cost. The Trustor shall instruct the holder of such excess
proceeds to pay such proceeds to the City in consideration of the benefits received by
the City through purchase of the Property under the City's Inclusionary Housing
Program.
6. Restrictions on Insurance Proceeds.
If the Property is damaged or destroyed and the Trustor elects not to rebuild
the Property, the Trustor shall pay the City the portion of any insurance proceeds
received by the Trustor for such destruction or damage which is in excess of the
Affordable Housing Cost calculated pursuant to Section 2 above.
7. Superiority of Resale Restrictions.
The Trustor covenants that he or she shall has not, and will not, execute any
other agreement with provisions contradictory to or in opposition to the provisions
hereon, and that, in any event, the Resale Restrictions are controlling as to the rights
and obligations between and among the Trustor, the City and their respective
successors.
8. Subordination.
(a) Notwithstanding any provision herein, the Resale Restrictions shall
not diminish or affect the rights of the First Lender under the First Lender Deed of Trust
or any subsequent First Lender Deeds of trust hereafter recorded against the Property
in compliance with the Resale Restrictions.
(b) The City may subordinate the Resale Restrictions and this Deed of
Trust to the lien of a First Lender Deed of Trust, in which case the Resale Restrictions
and this Deed of Trust shall not impair the rights of the First Lender, or such lender's
assignee or successor in interest, to exercise its remedies under the First Lender Deed
of Trust by the Trustor. Such remedies under the First Lender Deed of Trust include
the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure.
After such foreclosure or acceptance of a deed in lieu of foreclosure, the Resale
Restrictions and this Deed of Trust shall be forever terminated and shall have no
22-11508/288311 7
further effect as to the Property or any transferee thereafter; provided, however, if the
holder of such First Lender Deed of Trust acquires title to the Property pursuant to a
deed or assignment in lieu of foreclosure, the Resale Restrictions and this Deed of
Trust shall automatically terminate upon such acquisition of title, only if (i) the City has
been given written notice of default under such First Lender Deed of Trust with a sixty
(60) day cure period, (ii) the City shall not have cured the default within such sixty (60)
day period or commenced to cure and given its firm commitment to complete the cure
in form and substance acceptable to the first lender, or (iii) the City shall not have
exercised its option to purchase the Property pursuant to Section 4 above within such
sixty (60) day period and then proceeded diligently to cure the default within sixty (60)
days of acquiring title to the Property.
9. Refinance of First Mortgage Loan; Further Encumbrance of Property.
Trustor may not refinance of the first mortgage on the Property and/or add a second
mortgage on the Property without approval of the City. The City shall only approve
refinancing in compliance with the Affordable Housing Regulations.
10. Interpretation of Resale Restrictions.
The terms of the Resale Restrictions shall be interpreted so as to avoid
speculation on the Property and to ensure to the extent possible that its sales price and
mortgage payments remain affordable to Low Income Households and Moderate Income
Households.
11. Covenants Running with the Land.
(a) Trustor hereby subjects the Property to the covenants and restrictions
set forth in the Resale Restrictions. Trustor hereby declares its express intent that the
covenants and restrictions set forth in the Resale Restrictions shall be deemed
covenants running with the land in perpetuity, shall pass to, and be binding upon all
parties having any interest in the Property throughout the term of the Resale Restrictions.
Each and every contract, deed, lease or other instrument covering, conveying or
otherwise transferring the Property or any interest therein, as the case may be, shall
conclusively be held to have been executed, delivered and accepted subject to the
Resale Restrictions regardless of whether the other party or parties to such contract have
actual knowledge of such Resale Restrictions.
(b) The Trustor and the City hereby declare their understanding and intent
that: (i) the covenants and restrictions contained in the Resale Restrictions shall be
construed as covenants running with the land pursuant to California Civil Code section
1468 and not as conditions which might result in forfeiture of title by Trustor; (ii) the
burden of the covenants and restrictions set forth in the Resale Restrictions touch and
concern the Property in that the Trustor's legal interest in the Property may be rendered
less valuable thereby; and (iii) the benefit of the covenants and restrictions set forth in the
Resale Restrictions touch and concern the land by enhancing and increasing the
enjoyment and use of the Property by eligible purchasers, the intended beneficiaries of
such covenants and restrictions.
22-11508/288311 8
(c) All covenants and restrictions contained herein in the Resale
Restrictions without regard to technical classification or designation shall be binding upon
Trustor for the benefit of the City and eligible purchasers and such covenants and
restrictions shall run in favor of such parties for the entire period during which such
covenants and restrictions shall be in force and effect, without regard to whether the City
is the owner of any land or interest therein to which such covenants and restrictions
relate.
12. Trustor's Acknowledgement of Resale Restrictions.
Trustor hereby acknowledges and agrees that:
(1) Trustor hereby subjects the Property to certain restrictions and
limits the price for which Trustor may sell the Property and the persons to whom Trustor
may sell the Property. The Affordable Housing Cost and other provisions contained in
the Resale Restrictions restrict the full benefits of owning the Property. Trustor may not
enjoy the same economic or other benefits from owning the Property that Trustor would
enjoy if the Resale Restrictions did not exist.
(2) Absent the provisions of the Inclusionary Ordinance and the
provisions of the Resale Restrictions, the Property could not be made available to Low
Income Households and Moderate Income Households at the Affordable Housing Cost,
including Trustor.
(3) Trustor understands all of the provisions of the Resale
Restrictions. In recognition of the acknowledgments and agreements stated in this
Section 12, Trustor accepts and agrees to the provisions of the Resale Restrictions with
the understanding that upon the transfer of the Property, the Resale Restrictions will
expire on , 20_, and will remain in full force and effect as to the Property
until such expiration date.
Trustor Initials Trustor Initials
13. Non-Discrimination.
(a) Trustor covenants by and for itself, its successors and assigns, and all
persons claiming under or through them that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the said property, nor shall Trustor itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
22-11508/288311 9
(b) Trustor and its successors and assigns, shall refrain from restricting the
rental or lease (if permitted by Trustor) or sale of the Property on the basis of race, color,
religion, sex, marital status, national origin or ancestry of any person. All such deeds,
leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color,
religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessee or
vendees in the land herein conveyed. The foregoing covenants shall run with
the land."
(2) In leases: "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, and this lease is made and accepted
upon and subject to the following conditions:
"There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, religion, sex,
marital status, ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person
claiming under to through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees in the premises herein
leased."
(3) In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons on account of race; color, -
religion, sex, marital status, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor
shall the transferee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessee or vendees of the
premises."
22-11508/288311 10
(c) Nothing in this Section 13 shall be construed to authorize the rental or
lease of the Property if such rental or lease is not otherwise permitted.
(d) The covenants in this paragraph shall run with the land in perpetuity.
14. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Deed of Trust shall defeat or render invalid or in
any way impair the lien or charge of any mortgage or deed of trust or security interest.
15. Trustor has made certain representations and disclosures as a
requirement under the Resale Restrictions in order to induce Beneficiary to approve the
sale of the Property to Trustor. In the event that Trustor has made any material
misrepresentation or failed to disclose any material fact regarding said transaction,
Beneficiary at its option and without notice, shall have the right to declare a material
breach of the Resale Restrictions and the Note. Beneficiary may make a written
declaration of default and demand for sale as to paragraph No. 6 herein set forth.
Trustee, upon presentation to it of an affidavit signed by Beneficiary setting forth facts
showing a default by Trustor under this paragraph, is authorized to accept as true and
conclusive all facts and statements therein, and to act thereon hereunder.
16. All covenants without regard to technical classification or designation
shall be binding for the benefit of the Beneficiary and such covenants shall run in favor of
the Beneficiary for the entire period during which some covenants shall be in force and
effect, without regard to whether the Beneficiary is or remains an owner of any land or
interest therein to which such right to exercise all the rights and remedies and to maintain
any action at law or suits in equity or other proper legal proceedings to enforce and to
cure such breach to which it or any other beneficiaries of those covenants against
discrimination which may be enforced at law or in equity at any time in perpetuity.
17. Upon default by Trustor in the obligations of the City Note, in the
performance of any obligation under this Deed of Trust, the Resale Restrictions, or under
the terms of any First Lender's Deed of Trust which is or appears to be prior or superior
to this Deed of Trust, Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustee of a written declaration of default
and demand for sale and a written notice of default and election to sell the Property.
Default in the payment of any indebtedness secured by this Deed of Trust, in the
obligation of the Note, or in the performance of any agreement under this Deed of Trust
constitutes a default only under this Deed of Trust and the Note and does not constitute a
default under the First Deed of Trust. Trustee shall cause the notice of default to be
recorded. Beneficiary also shall deposit with Trustee this Deed of Trust, the Note, and all
documents evidencing any additional expenditures secured by this Deed of Trust. After
the lapse of such time as then may be required by law following recordation of such
notice of default, and notice of sale having been given as then required by law, Trustee,
without demand on Trustor, shall sell the Property at the time and place fixed by it in
such notice of sale, whether as a whole or in_separate parcels, and in such order as it
may determine, at public auction to the highest bidder qualified under said Resale
22-11508/288311 11
Restrictions and this Deed of Trust in lawful money of the United States, payable at time
of sale. Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter may
postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its Deed conveying the Property
so sold, but without any covenant or warranty, express or implied. The recital in such
Deed of any matters of fact shall be conclusive of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such
sale. Trustee may also sell at any such sale and as part thereof any shares of corporate
stock securing the obligations secured hereby, and Trustor waives demand and notice of
such sale. (Beneficiary at its option may also foreclose on such shares by independent
pledge sale, and Trustor waives demand and notice of such sale.) After deducting all
costs, fees and expenses of Trustee, and of this Trust, including cost of evidence of title
in connection with this sale, Trustee shall apply the proceeds of sale to payment, first; all
sums expended under the terms hereof, not then repaid, with accrued interest at the rate
then payable under the First Lender Deed of Trust secured hereby, and then of all other
sums secured hereby, and, if there are any proceeds remaining, shall distribute them to
the person or persons legally entitled thereto.
18. Trustor shall keep the Property in good condition and repair; to allow
Beneficiary or its representatives to enter and inspect the Property at all reasonable
times and access thereto, shall be permitted for that purpose; not to remove or demolish
any building thereon; not to make alterations thereto without the consent of the
Beneficiary; to suffer or permit no change in the general nature of the occupancy of the
Property without Beneficiary's written consent; to complete or restore promptly and in
good workmanlike manner any building which may be constructed, damaged or
destroyed thereon, including, without restricting the generality of the foregoing, damage
from termites and dry-rot; to pay when due all claims for labor performed and materials
furnished in connection with the Property and not to permit any mechanic's lien against
the Property; to comply with all laws affecting the Property or requiring any alterations or
improvements to be made thereon; not to initiate or acquiesce in any zoning
reclassification without Beneficiary's written consent; not to commit or permit waste
thereon; not to commit, suffer or permit any act upon the Property in violation of the law;
to paint, cultivate, irrigate, fertilize, fumigate, prune, and do all other acts that from the
character or use of the Property may be reasonably necessary; and to promptly pay all
amounts due others upon agreements of lease or conditional sale of all fixtures,
furnishings and equipment located thereon.
19. Trustor shall provide, and maintain in force at all times with respect to
the Property, fire and other types of insurance as may be required by Beneficiary. All of
such insurance shall have a loss payable endorsement in favor of Beneficiary, shall be
for a term and in form, content, amount and in such companies as may be satisfactory to
Beneficiary, and the policies therefore shall be delivered to and remain in possession of
Beneficiary as further security for the faithful performance of these trusts. At least thirty
(30) days prior to the expiration of any such insurance policy, a policy or policies
renewing or extending such expiring insurance shall be delivered to Beneficiary together
22-11508/288311 12
with written evidence showing payment of the premium therefore and, in the event any
such insurance policy and evidence of the payment of the premium therefore are not so
delivered by Trustor to Beneficiary, Trustor by executing this Deed of Trust specifically
requests Beneficiary to obtain such insurance and Beneficiary, without obligation to do
so, without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may obtain such insurance through or from any insurance agency or
company acceptable to it, pay the premium thereof, and may add the amount thereof to
the indebtedness secured hereby, which amount shall bear a like rate of interest.
Beneficiary may furnish to any insurance agency or company, or any other person, any
information contained in or extracted from any insurance policy delivered to Beneficiary
pursuant hereto and any information concerning the loan secured hereby. Neither
Trustee nor Beneficiary shall be responsible for such insurance or for the collection of
any insurance monies, or for any insolvency of any insurer or insurance underwriter. In
case of insurance loss, Beneficiary is hereby authorized either (a) to settle and adjust
any claim under the insurance policies provided for in this document without the consent
of the Trustor, or (b) to allow Trustor to agree with the insurance company or r companies
on the amount to be paid upon the loss. In either case, the Beneficiary is authorized to
collect andmake receipt of any such insurance money. If Trustor is obligated to restore
or replace the damaged or destroyed buildings or improvements under the terms of any
lease or leases which are or may be prior to the lien of this Deed of Trust and such
damage or destruction does not result in cancellation or termination of such lease, such
proceeds, after deducting therefrom any expenses incurred in the collection thereof, shall
be used to reimburse the Trustor for the cost of rebuilding or restoring the buildings or
improvements on said premises. In all other cases, such insurance proceeds shall either
be applied for the cost of the rebuilding or restoring the buildings or improvements on
said premises. Such buildings and improvements shall be so restored or rebuilt as to be
of at least equal value and substantially the same character as prior to the damage or
destruction, and shall be in a condition satisfactory to Beneficiary. Such application or
release shall not cure or waive any default or notice of default hereunder or invalidate
any act done pursuant to such notice. Any and all unexpired insurance shall inure to the
benefit of, and pass to the purchaser of, the property conveyed at any Trustee sale held
hereunder.
20. Trustor shall pay: (a) at least ten (10) days before delinquency, all
general and special City and County taxes, and all assessments on appurtenant water
stock, affecting the Property, (b) when done, all special assessments for public
improvements, without permitting any improvement bond to issue for any special
assessment, (c) when done, all encumbrances, charges and lines, with interest, on the
Property, or any part thereof, which are or appears to be prior to superior hereto, (d) if
the security of this Deed of Trust is leasehold estate, to make any payment or do any act
required of the Lessee or its successor in interest under the terms of the instrument or
instruments creating said leasehold, (e) all costs, fees and expenses of this trust, (f) for
any statement regarding the obligation secured hereby any amount demanded by
Beneficiary not to exceed the maximum allowed by law thereof at the time when such
request is made, (g) such other charges for services rendered by Beneficiary and
22-11508/288311 13
furnished at Trustor's request or that of any successor in interest to Trustor as the
Beneficiary may deem reasonable.
21. Should Trustor fail to make any payment or do any act as provided in
this Deed of Trust, the Beneficiary or Trustee, but without obligation to do so and without
notice to or demand upon Trustor and without releasing Trustor from any obligation
hereof, may (a) make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon the Property for such purposes, (b) commence, appear in, or defend any
action or proceeding purporting to affect the security hereof or the property covered by
this Deed of Trust, or the rights or powers of Beneficiary or Trustee, (c) pay, purchase,
contest or compromise any encumbrance, charge or lien, which in the judgment of either
is or appears to be prior or superior hereto, and (d) in exercising any such powers, pay
necessary expenses, employ counsel and pay his reasonable fees. Trustor agrees to
repay any amount so expended on demand of Beneficiary, and any amount so expended
may be added by Beneficiary to the indebtedness secured hereby and shall bear a like
rate of interest.
22. Trustor shall appear in and defend any action or proceeding purporting
to affect the security hereof or the Property which is covered by this Deed of Trust, or the
rights or powers of Beneficiary or Trustee, and whether or not Trustor so appears or
defends, to pay all costs and expenses, including cost of evidence of title and attorney's
fees in a reasonable sum, in any such action or proceeding in which Beneficiary or
Trustee may appear by virtue of being made a party defendant or otherwise irrespective
of whether the interest of Beneficiary or Trustee in the Property is directly questioned by
such action, including any action for the condemnation or partition of said premises, and
in any suit brought by Beneficiary to foreclose this Deed of Trust.
23. Trustor shall pay immediately and without demand, all sums expended
under the terms of this Deed of Trust by Beneficiary or Trustee, with interest from the
date of expenditure at the rate which the principal obligation secured hereby bears at the
time such payment is made, and the repayment of such sums shall be secured hereby.
24. Should Trustor or any successor in interest to Trustor in the Property
drill or extract, or enter into a lease for drilling or extraction of oil, gas or other
hydrocarbon substances or any mineral of any kind or character, or sell, convey, further
encumber, or alienate the Property, or any party thereof, or any interest therein, or be
divested of his title or any interest therein in any manner or way, whether voluntarily or
involuntarily, Beneficiary shall have the right, at its option, to declare any obligations
secured hereby irrespective of the maturity date specified in any Note evidencing the
same, immediately due and payable, and no waiver of this right shall be effective unless
in writing.
25. Any award, settlement or damages for injury or damages to the
Property, or in construction with the transaction financed by such loan, and any award of
damages in connection with any condemnation for public use of or injury to the Property,
22-11508/288311 14
or any part thereof, is hereby assigned and shall be paid to Beneficiary, who may apply
or release such monies received by it in such manner and with the same effect as above
provided for the disposition of proceeds of fire or other insurance.
26. By accepting payment of any sums secured by this Deed of Trust after
its due date, or by making any payment, performing any act on behalf of Trustor, that
Trustor was obligated hereunder, but failed, to make, or perform, or by adding any
payment so made by Beneficiary to the indebtedness secured hereby, Beneficiary does
not waive its right either to require prompt payment when due of all other sums so
secured or to declare a default for failure so to pay.
27. At any time, or from time to time, without liability of the Beneficiary or
Trustee thereof, and without notice, upon written request of Beneficiary and presentation
of this Deed of Trust and the Note secured hereby for endorsement, and without affecting
the personal liability of any person for payment of the indebtedness secured hereby, or
the lien of the Deed of Trust upon the remainder of the Property for the full amount of the
indebtedness then or thereafter secured hereby, or the rights or powers of Beneficiary or
the Trustee with respect to the remainder of the Property, Trustee may: (a) reconvey any
part of the Property, (b) consent to the making of any map or plat thereof, (c) join in
granting any easement thereon, (d) join in any agreement subordinating the lien or
charge hereof.
28. The lien hereof shall remain in full force and effect during any
postponement or extension of time of payment of the indebtedness secured hereby, or
any part thereof.
29. As additional security, Trustor irrevocably assigns to Beneficiary the
rents, issues, and profits. of the Property for the purposes and upon the terms and
conditions set forth below. This assignment shall not impose upon Beneficiary any duty
to produce rents from the property affected by this Deed of Trust, or cause Beneficiary to
be (a) "mortgages in possession" for any purpose; (b) responsible for performing any of
the obligations of the lessor under any lease; or (c) responsible for any waste committed
by lessees or any other parties, for any dangerous or defective condition of the property
affected by this Deed of Trust, or for any negligence in the management, upkeep, or
control of such rights to rents, issues and profits is not contingent upon, and may be
exercised without possession of, the property affected by this Deed of Trust.
Beneficiary confers upon Trustor a license ("License") to collect and retain the
rents, issues and profits of the property affected by this Deed of Trust as they become
due and payable, until the occurrence of a default hereunder. Upon such default, the
License shall be automatically revoked and Beneficiary may collect and retain the rents,
issues and profits without notice and without taking possessions of the property affected
by this Deed of Trust. This right to collect rents, issues and profits shall not grant to
Beneficiary or Trustee the right to possession, except as otherwise provided herein; and
neither said right, nor termination of the License, shall impose upon Beneficiary or
Trustee the duty to produce rents, issues or profits or maintain all or any part of the
22-11508/288311 15
Property affected by this Trust Deed. If Trustor shall default as aforesaid, Trustor's right
to collect any such money shall cease and Beneficiary shall have the right, with or
without taking possession of the property affected hereby, to collect all rents, issues,
royalties and profits and shall be authorized to, and may, without notice and irrespective
of whether declaration of default has been delivered to Trustee and without regard to the
adequacy of the security for the indebtedness secured hereby, either personally or by
attorney or agent without bringing any action or proceeding, or by receiver to be
appointed by the Court, enter into possession and hold, occupy, possess and enjoy the
Property, make, cancel, enforce and modify leases, obtain and eject tenants, and set and
modify rents and terms of rents, and to sue, and to take, receive and collect all or any
part of the said rents, issues, and profits of the property affected hereby, and after paying
such costs of maintenance, operation of the Property, and of collection including
reasonable attorneys' fees, as in its judgment it may deem proper, to apply the balance
upon any indebtedness then secured hereby, the rents, issues, royalties and profits of
the Property being hereby assigned to Beneficiary for said purposes. The acceptance of
such rents, issues, royalties and profits shall not constitute a waiver of any other right
which Trustee or Beneficiary may enjoy under this Deed of Trust or under the laws of
California. Failure of or discontinuance by Beneficiary at any time, or from time to time,
to collect any such rents, issues, royalties or profits shall not in any manner affect the
subsequent enforcement by Beneficiary of the right, power and authority to collect the
same. The receipt and application by said Beneficiary of all such rents, issues, royalties
and profits pursuant hereto, after execution and delivery of declaration of default and
demand for sale as hereinafter provided, or during the pendency of Trustee's sale
proceedings hereunder, shall not cure such breach or default nor affect sale
proceedings, or any sale made pursuant thereto, but such rents, issues, royalties and
profits, less all costs of operation, maintenance, collection and reasonable attorneys'
fees, when received by Beneficiary, shall be applied in reduction of the indebtedness
secured hereby, from time to time, in such order as Beneficiary may determine. Nothing
contained herein, nor the exercise of the right by Beneficiary to collect, shall be, or be
construed to be, an affirmation by Beneficiary of any tenancy, lease or option, nor an
assumption of liability under, nor subordination of the lien or charge of this Deed of Trust
to, any such tenancy, lease or option.
30. If the security of this Deed of Trust is a leasehold estate, the Trustor
agrees that: (a) the term "Lease" as used herein shall mean the lease creating the
"leasehold estate"' (b) Trustor shall not amend, change or modify his leasehold interest,
or the Lease, or agree to do so, without the written consent of the Beneficiary; (c) Trustor
will promptly advise Beneficiary regarding any notice, request or demand received by him
from the lessor under the Lease and promptly furnish Beneficiary with a copy of any such
notice, request or demand; (d) as long as any of the indebtedness secured hereby shall
remain unpaid, unless the Beneficiary shall otherwise consent thereto in writing, the
leasehold estate shall not merge with the fee title but shall always be kept separate and-
distinct, notwithstanding the union of said estates in any party; (e) Trustor agrees that it
will promptly, strictly, and faithfully perform, fulfill, and comply with all covenants,
agreements, terms, conditions and provisions under any lease affecting the premises
and to neither do anything, nor to permit anything to. be done which may cause
22-11508/288311 16
modification or termination of any such lease or of the obligations of any lessee or person
claiming through such lease or the rents provided for therein or the interest of the lessor
or the Beneficiary therein or thereunder. Trustor further agrees he will not execute a
Deed of Trust or mortgage which may be or become superior to any leasehold estate
that is security for this Deed of Trust. In the event of a violation of any of the covenants
set forth in this paragraph, Beneficiary shall have the right, at its option, to declare all
sums secured hereby immediately due and payable. Consent to or waiver of one of said
violations shall not be deemed to be a consent to or waiver of any other violation. If the
security for this Deed of Trust is a leasehold estate, the term "property" as used in this
Deed of Trust shall be deemed to mean the leasehold estate whenever the context so
requires for the protection of the Beneficiary.
31. Trustor waives, to the fullest extent permissible by law, the right to plead
any statute of limitations as a defense to any demand secured hereby.
32. Beneficiary may, from time to time, by instrument in writing, substitute a
successor :or successors to any Trustee named herein or acting hereunder, which
instrument, executed and acknowledged by Beneficiary and recorded in the office of the
recorder of the county or counties where the Property is situated, shall be conclusive
proof of property substitution of such successor Trustee or Trustees, who shall, without
conveyances from the Trustee predecessor, succeed to all its title, estate, rights, powers
and duties, including but not limited to the power to reconvey the whole or any part of the
property covered by this Deed of Trust. Such instrument must contain the name of the
original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed
of Trust is recorded. If notice of default shall have been recorded, this power of
substitution cannot be exercised until after the costs, fees and expenses of the then
acting Trustee shall have been paid to such Trustee, who shall endorse receipt thereof
upon such instrument. The procedures herein provided for substitution of Trustee shall
not be exclusive of other provisions for substitution provided by law.
33. This Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors, successors and
assigns. The term "Beneficiary" shall mean the owner and holder, including pledgee, of
the Note secured hereby, whether or not names as Beneficiary herein. In this Deed of
Trust, whenever the context so requires, the masculine gender includes the feminine
and/or neuter, and the singular number includes the plural.
34. That in the event of a demand for, and the preparation and delivery of a
written statement regarding the obligations secured by this Deed of Trust pursuant to
Sections 2943 and 2954 of the Civil Code of California, Beneficiary shall be entitled to
make a reasonable charge, not exceeding the maximum amount which is permitted by
law at the time the statement is furnished. Beneficiary may also charge Trustor a
reasonable fee for any other services rendered to Trustor or rendered in Trustor's behalf
in connection with the Property of this Deed of Trust, including changing Beneficiary's
records, pertaining to this Deed of Trust in connection with the transfer of the Property, or
22-11508/288311 17
releasing an existing policy of fire insurance or other casualty insurance held by
Beneficiary and replacing the same with another such policy.
35. Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not obligated to
notify any party hereto of pending sale under any other Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by
Trustee.
36. Any notice which any party hereto may desire or be required to give to
the other party shall be in writing. The mailing thereof must be certified mail addressed
to the Trustor at his address hereinabove set forth or to the Beneficiary at his office or at
such other place as such parties hereto may designate in writing.
THE UNDERSIGNED TRUSTOR REQUESTS that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at his address hereinbefore
set forth.
22-11508/288311 18
TRUSTOR
Dated: By:
HOUSING AUTHORITY OF THE CITY OF
HUNTINGTON BEACH
Dated: By:
Deputy Director of Community Development
CITY OF HUNTINGTON BEACH
By:
Dated: Deputy Director of Community Development
APPROVED AS TO FORM:
By:
City Attorney op
22-11508/288311 19
EXHIBIT A
Legal Description
22-11508/288311 20
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Huntington
Beach 2000 Main Street
Huntington Beach, CA 92648
SPACE ABOVE THIS LINE FOR RECORDERS'USE ONLY
DECLARATION OF CONDITIONS, COVENANTS AND
RESTRICTIONS FOR LOW AND MODERATE INCOME AFFORDABLE HOUSING
8375 TALBERT AVENUE, HUNTINGTON BEACH
This Declaration Of Conditions, Covenants And Restrictions For Low and
Moderate Income Affordable Housing ("Resale Restrictions") is made as of ,
2022, by and between THE OLSON COMPANY, LLC, a California limited liability
company (the "Owner"), and the CITY OF HUNTINGTON BEACH, a California
municipal corporation (the "City"), and the HOUSING AUTHORITY OF THE CITY OF
HUNTINGTON BEACH, a public body corporate and politic (the "Authority"). At the
option of the City and Authority, the Authority may enforce these Resale Restrictions in
place of the City.
RECITALS
A. Owner is the owner in fee of that certain real property consisting of Units
and located at 8375 Talbert Avenue, Huntington Beach (APN
and ), as more particularly
described in the legal description attached hereto as Exhibit "A" and are referred to
herein individually as a "Restricted Unit", and collectively as the "Restricted Units".
B. Owner submitted to City plans to develop the Property as a thirty-four (34)
unit residential community to be subdivided as a condominium development. Owner will
build the Project in multiple phases and sell individual units to individual homebuyers.
Pursuant to California Government Code Section 65915 (the "State Density Bonus
Law"), as implemented under Huntington Beach Zoning and Subdivision Ordinance
("HBZSO"), Chapter 230.14, developers of housing projects that include specified levels
of affordable housing are entitled to apply for and receive certain density bonuses and
additional incentives in order to facilitate the economic feasibility of those projects.
Owner is proposing an increase in the number of units allowed per the State Density
Bonus Law and will meet the affordability requirements as outlined in HBZSO Chapter
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22-1 1 5 0 8/28 803 5
230.14. In exchange for making at least ten percent (10%) of the 34 total units
affordable to both Low and Moderate Income Households per HBZSO Chapter 230.14,
the State Density Bonus Law provides that the developer may receive up to one
"incentive or concession." (Gov't § 65915(d)(2)(A).)
C. On May 10, 2022, the Huntington Beach Planning Commission approved
the Project application consisting of a 1) General Plan Amendment No. 21-002; 2)
Tentative Tract Map No. 19157; 3) Conditional Use Permit (CUP) No. 21-004; and 4)
Mitigated Negative Declaration No. 21-003. As a condition of approval of the Tentative
Tract Map and CUP, the Project includes three (3) units which are to be occupied by,
and sold at prices affordable to Low and Moderate Income Households for a term of 45
years (the "Affordable Units"). Tentative Tract Map No. 19157 was later recorded as
Final Tract Map No. 19157 at Instrument No. of the Records of Orange
County, California.
D. In order to secure the long term affordability of the Affordable Units, the
City and Owner entered into the "Density Bonus and Affordable Housing Agreement for
8375 Talbert Avenue," which was recorded as Instrument No. in the Records
of Orange County, California (the "Density Bonus Agreement"). The Density Bonus
Agreement provides that Owner shall designate three (3), three-bedroom units as the
Affordable Units.
NOW, THEREFORE, the Parties hereto agree and covenant as follows:
1. Affordability Covenants. Owner agrees for itself and the successors and
assigns to Owner's interest in the Restricted Units, including each Low Income
Household and Moderate Income Household purchasing one of the Restricted Units,
that for a term of forty-five (45) years from the date of the close of escrow for the initial
sale of each such Restricted Unit, that, during the Affordability Period (as defined in
Section 4.1 below):
1.1 The Restricted Units shall only be owned and occupied by a Low
Income Household or Moderate Income Household, which shall mean persons or
families in a Low Income Household earning not more than 60% of the Orange County
median income, and persons or families in a Moderate Income Household earning not
more than 120% of the Orange County median income, adjusted for household size as
appropriate to the Unit.
1.2 The Restricted Units shall only be sold at an Affordable Housing
Cost to Low and Moderate Income Households.
2. Definitions and Exhibits.
2.1 Definitions. In addition to the terms that may be defined elsewhere
in this Covenant, the following terms when used in these Resale Restrictions shall be
defined as follows:
2
22-11508/288035
2.1.1 "Adjusted for family size appropriate to the Unit" means a
household of one person in the case of a studio unit, a household of two persons in the
case of one-bedroom unit, a household of three persons in the case of a two-bedroom
unit, a household of four persons in the case of a three-bedroom unit, and a household
of five persons in the case of a four-bedroom unit.
2.1.2 "Affordable Housing Cost" for for a Low Income Household
means that purchase price which would result in an annual Monthly Housing Cost
which does not exceed the product of Thirty Percent (30%) times Seventy Percent
(70%) of the current Orange County monthly median income for a household adjusted
for family size appropriate to the Unit under Health and Safety Code Section
50052.5(b)(3). Affordable Housing Cost for a Moderate Income Household means that
purchase price which would result in an annual Monthly Housing Cost which does not
exceed the product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%)
of the current Orange County monthly median income for a household adjusted for
family size appropriate to the Unit under Health and Safety Code Section
50052.5(b)(4). Affordable Housing Cost shall be calculated pursuant to the City
Housing Regulations.
2.1.3 "City Housing Regulations" means the "Affordable
Ownership Housing Regulations-Homeowner Requirement of the City of Huntington
Beach," dated August 15, 2011, as they exist now, and as they may be amended in the
future.
2.1.4 "Default" means the failure of a Party to perform any action
or covenant required by these Resale Restrictions within the time periods provided
herein following notice and opportunity to cure.
2.1.5 "First Lien" means the lien of a primary Lender which
secures the obligations of the Owner to repay amounts owed to the Lender.
2.1.6. "Owner" means the then-current owner of a Restricted Unit.
Initially, Owner refers to The Olson Company, LLC, a California limited liability company.
Subsequent to the initial sale of a Restricted Unit, Owner refers to each subsequent
owner of any legal or equitable interest in a Restricted Unit.
2.1.7. "Lender" means a lender making a purchase money loan to
the Owner for the purchase of the Affordable Unit.
2.1.8. "Low Income Household" means a a Household whose
income does not exceed the qualifying limits for lower income households for Orange
County, adjusted for household size, pursuant to Health and Safety Code Section
50079.5, and established annually by HCD regulations.
3
22-11508/288035
2.1.9 "Median Income" means the Orange County, California
area median income, adjusted for household size, as established by the United States
Department of Housing and Urban Development, and as published periodically by the
State of California Department of Housing and Community Development.
2.1.10 "Moderate Income Household" means a Household whose
income does not exceed one hundred twenty percent (120%) of Median Income,
adjusted for family size. The income level of a Household shall be determined in
accordance with the City Housing Regulations.
2.1.11 "Monthly Housing Cost" shall include all of the following
associated with the Restricted Units: (i) principal and interest payments on a mortgage
loan; (ii) property taxes and assessments; (iii) the cost of fire and casualty insurance
covering replacement value of property improvements; (iv) homeowner's association
fees; (v) reasonable Unit maintenance and repair costs; and (vi) reasonable utility
allowance. In determining monthly housing payments, the City will assume principal
and interest payments on a conventional home mortgage after paying a ten percent
(10%) down payment. All Monthly Housing costs shall be determined by the City
according to the City Housing Regulations.
2.1.12 "Qualified Purchaser" Means a person or family who
complies with all income verification requirements of these Resale Restrictions, and
earns not more than eighty percent (60%) of the Median Income, adjusted for family
size, for the one Low Income Household Unit, and one hundred twenty percent (120%)
of the Median Income, adjusted for family size, for the two Moderate Income Household
Units as to be determined in accordance with the City Housing Regulations.
2.1.13 "Transfer" shall mean any sale, assignment, conveyance,
lease, or transfer, voluntary or involuntary, of any interest in the Restricted Unit. Without
limiting the generality of the foregoing, Transfer shall include (i) a transfer by devise,
inheritance or intestacy; (ii) the creation of a life estate; (iii) the creation of a joint
tenancy interest; (iv) a gift of all or any portion of the Restricted Unit; or (v) any voluntary
conveyance of the Restricted Unit.
3. Attachments. The following documents are attached to, and by this
reference made a part of, these Resale Restrictions:
Exhibit A— Legal Description of Restricted Units
Exhibit B — Notice of Affordability Restriction
Exhibit C — Promissory Note
Exhibit D —Affordable Housing Deed of Trust
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22-1 1 508/28803 5
4. Term of Resale Restrictions.
4.1 The term of these Resale Restrictions shall commence on the date
of the initial sale of each Restricted Unit from Owner to a Qualified Purchaser as
evidenced by a deed recorded with the Orange County Recorder's Office and shall
continue, with respect to each such Restricted Unit, for forty-five (45) years from said
date (the "Affordability Period"). The Covenant contained in this Section shall run with
each Restricted Unit and shall automatically terminate and be of no further force or
effect upon the expiration of the Affordability Period. By way of explanation of the
foregoing sentence, it is possible that the affordability term for one Restricted Unit will
neither commence on the same date nor terminate on the same date as another
Restricted Unit, and it is possible that the affordability terms for all Restricted Units will
commence on different days and terminate on different days. The beginning and
expiration dates of the Affordability Period for each Restricted Unit shall be established
by the City in the Notice of Affordability Covenant (Exhibit B) recorded in connection with
each sale of the Restricted Units.
4.2 Prior to the termination of the Affordability period, each Qualified
Purchaser of a Restricted Unit shall enter into a Notice of Affordability Restriction,
Promissory Note and Deed of Trust in the forms attached as Exhibits B, C, and D to
these Resale Restrictions.
5. Covenant Regarding Use and Sale of Restricted Units. During the
Affordability Period, the Restricted Units shall be owned and occupied as the principal
residence of a Low Income Household or Moderate Income Household, and in no
event may the Restricted Unit be leased to a third party. During the Affordability
Period, no transfer of a Restricted Unit shall occur until the City determines that: (a) the
proposed purchaser intends to occupy the Restricted Unit as the proposed purchaser's
principal residence; (b) the proposed purchaser is a either a Low Income Household or
Moderate Income Household; and (c) the proposed transfer occurs at an Affordable
Housing Cost.
6. Permitted and Prohibited Transfers of Restricted Units.
6.1 The following Transfers, made in compliance with the terms and
conditions of these Resale Restrictions and the City Housing Regulations, shall
constitute "Permitted Transfers": (i) a Transfer to a surviving joint tenant or other
permitted co-Owner of the Restricted Unit by devise, descent, or operation of law on the
death of an Owner; (ii) a Transfer to a spouse such that the spouses become co-
Owners of the Restricted Unit; (iii) a Transfer by decree of dissolution, legal separation
agreement, or from an incidental property settlement by which the spouse becomes an
Owner of the Restricted Unit, provided that in each case the transferee spouse occupies
or will occupy the Restricted Unit; (iv) a Transfer to an inter vivos trust in which Owner is
and remains the beneficiary and occupant of the Restricted Unit; and (v) a Transfer to a
Low Income Household or Moderate Income Household at Affordable Housing Cost. A
Transfer that is not a Permitted Transfer specified above is a "Prohibited Transfer."
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During the Affordability Period, the occurrence of a Prohibited Transfer is a Default
under these Resale Restrictions.
6.2 All Transfers Prohibited Without City Approval. During the
Affordability Period, Owner shall not sell, transfer, use as security for any loan, or
convey any interest in a Restricted Unit, except with the express written consent of the
City, which consent shall be given only if the Transfer is a Permitted Transfer and in
strict compliance with the provisions of this Section 6.
6.3 Maximum Sale Price of Restricted Unit. In the event that Owner
decides to sell or otherwise Transfer the Restricted Unit, Owner shall contact the City to
obtain the current Affordable Housing Cost, which shall be the maximum sales price of
the Restricted Unit. City shall provide the Affordable Housing Cost pursuant to its
current Affordable Housing Regulations. Regarding the Affordable Housing Cost,
Owner acknowledges that:
OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER,
UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME
OF A PROPOSED SALE OR OTHER TRANSFER OF THE
RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING
INTEREST RATES, THE OFFERED TERMS OF SALE, THE
ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER
AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF
THE SAME OR OTHER SIMILAR REAL PROPERTY WHICH IS NOT
ENCUMBERED BY THIS COVENANT. OWNER, AND EACH
SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER
ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE
TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND
THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO A
LOW INCOME HOUSEHOLD AND MODERATE INCOME
HOUSEHOLDS AT AN AFFORDABLE HOUSING COST.
Owner's Initials
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6.4 Procedure to Verify a Proposed Transfer. In the event that
Owner desires to sell the Restricted Unit, Owner shall send written notice thereof to the
City at the following address:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attention: Housing Manager
City shall process the sale of the Restricted Unit pursuant to the City Housing
Regulations within thirty (30) days after receipt of such written notice from Owner
notifying City of Owner's desire to sell such Restricted Unit. The City shall not be
obligated to approve a transfer unless and until the proposed purchaser has submitted
to the City such information and completed such forms as necessary to verify the
proposed purchaser's intent with respect to his/her/its residency of the Restricted Unit,
his/her/its gross income, and an affidavit of the proposed purchaser disclosing and
certifying the amount of the proposed purchase price.
Prior to conveyance of the Restricted Unit, each approved purchaser shall also
submit to the City an executed disclosure statement which certifies that the purchaser is
aware that: (i) the purchaser buying the Restricted Unit may only sell the Restricted Unit
at an Affordable Housing Cost to either a Low Income Household or a Moderate Income
Household as provided in Section 1 above, (ii) the maximum permitted sales price may
be less than fair market value and (iii) the Restricted Unit must be owner-occupied at all
times and cannot be rented or leased. The approved purchaser shall also submit an
executed promissory, trust deed, notice documents, and any other documentation
reasonably required by the City to effectuate the Affordable Housing Program. Owner
shall cooperate with the City in providing such forms to proposed purchasers and in
assisting proposed purchasers to prepare such forms and to provide any required
information to the City in connection with only the Owner's sale of the Restricted Unit.
7. Non-Discrimination Covenants. Owner covenants by and for itself, it
successors and assigns, and all persons claiming under or through them that there shall
be no discrimination against or segregation of any person or group of persons on
account of race, color, religion, sex, sexual orientation, creed, ancestry, national or
ethnic origin, age, family or marital status, handicap or disability, in the sale, transfer,
use, occupancy, tenure or enjoyment of the Restricted Unit, nor shall Owner itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, subtenants, or vendees in the Restricted Unit.
Owner and its successors and assigns shall refrain from restricting the sale of the
Restricted Unit on the basis of race, color, religion, sex, sexual orientation, creed,
ancestry, national or ethnic origin, age, family or marital status, handicap or disability, of
any person. All such deeds or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clause:
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22-1 1 5 0 8/2 8 803 5
(a) In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of
persons on account of race, color, religion, sex, sexual orientation,
creed, ancestry, national or ethnic origin, age, family or marital status,
handicap or disability, in the sale, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of
tenants, or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In contracts: There shall be no discrimination against or
segregation of, any person or group of persons on account of race,
color, religion, sex, sexual orientation, creed, ancestry, national or ethnic
origin, age, family or marital status, handicap or disability, in the sale,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall
the transferor himself or herself of any person claiming under or though
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use of occupancy of tenants, subtenants or vendee of the
premises."
(c) In leases: "The lessee herein covenants by and for himself
or herself, his or her heirs, executors, administrators, and assignees,
and all persons claiming under or though him or her, and this lease is
made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of
any person or group of persons on account of race, color,
religion, sex, sexual orientation, creed, ancestry, national or
ethnic origin, age, family or marital status, handicap or disability,
in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or though him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, sublessees,
subtenants, or vendees in the premises herein leased."
Nothing in this Section 7 shall be construed to authorize the rental or lease of the
Restricted Unit if such rental or lease is not otherwise permitted.
8
22-1 1 508/28803 5
8. Encumbrances.
8.1 Financings on Transfer. This Section 8 shall not prohibit the
encumbering of title for the sole purpose of securing financing of the purchase price of
the Restricted Unit upon a Transfer thereof; however, any such financing shall be for the
Owner and (i) must be a First Lien, (ii) must not be in excess of the Affordable Housing
Cost of the Restricted Unit as of date of approval for the financing, (iii) must be in
compliance with these Resale Restrictions and the Affordable Housing Deed of Trust,
and (iv) shall be subordinate to these Resale Restrictions.
8.2 Subordination. These Resale Restrictions shall have priority over
all monetary liens and encumbrances for the Affordability Period. However, the
Affordable Housing Deed of Trust only may be subordinated to a First Lien on the
Restricted Unit that secures the payment of a principal amount that is not in excess, as
of the date of approval for said financing, of the Affordable Housing Cost of the
Restricted Unit. The City shall execute a written instrument for the subordination of its
rights under the Affordable Housing Deed of Trust in the form approved by the City
Attorney as may reasonably be requested by the Lender. The City's agreement to so
subordinate its rights is subject to agreement in writing by the Lender providing the City
the following rights:
(a) Upon the occurrence of a Default under any of the First
Lien documents, the holder of the First Lien shall promptly notify the City
of the occurrence of such Default, which notification shall be provided to
the City contemporaneously with the delivery to Owner of any notice of
Default under any of the First Lien documents; and
(b) The City shall have the right, during the cure periods which
apply to the Owner pursuant to the First Lien documents and any cure
period which may apply to the City under applicable law, to cure the
Owner's Default relative to the First Lien; and
(c) After a Default on any of the First Lien documents but prior
to a foreclosure sale or deed in lieu assignment of the Restricted Unit,
the City shall have the right to take title to the Restricted Unit and cure
the Default relative to the First Lien documents, without the holder of the
First Lien exercising any right it might otherwise have to accelerate the
obligations secured by the First Lien by reason of such title transfer, so
long as the City promptly cures any such Default upon taking title to the
Restricted Unit.
8.3 Request for Notice of Default. The City may cause a Request for
Notice to be recorded on the Restricted Unit subsequent to the recordation of the First
Lien deed of trust or mortgage requesting a statutory notice of Default as set forth in
California Civil Code Section 2924b.
9
22-11508/288035
8.4 Further Encumbrances Prohibited. Owner shall not record or
cause or permit the recordation of any deed of trust, mortgage, lien or other instrument
creating a security interest in or to the Restricted Unit (a "Further Encumbrance") other
than these Resale Restrictions, the First Lien and the Affordable Housing Deed of Trust.
9. Uses. The Restricted Unit shall be used as the principal residence of
Owner and owner's family and may not be rented or leased. Owner covenants and
agrees to devote, use, and maintain the Restricted Unit in accordance with these Resale
Restrictions. All uses conducted on the Restricted Unit, including, without limitation, all
activities undertaken by the Owner pursuant to these Resale Restrictions, shall conform
to all applicable provisions of federal, state, and local laws, including the Huntington
Beach Municipal Code, and the City Housing Regulations.
10. Maintenance of Unit. Owner shall maintain the Restricted Unit in a
manner consistent with community standards which will uphold the value of the
Restricted Unit, in accordance with the Huntington Beach Municipal Code. Owner
also shall comply with all applicable federal, state and local laws.
11. Effect of Violation of the Terms and Provisions of These Resale
Restrictions.
11.1 Covenants Run with the Land. These Resale Restrictions are
designed to create equitable servitudes and covenants running with the Restricted
Unit, in accordance with the provisions of Civil Code Section 1468, and the State
Density Bonus Law and the Huntington Beach Zoning and Subdivision Ordinance. The
covenants, conditions, restrictions, reservations, equitable servitudes, liens and
charges set forth herein shall run with the Restricted Unit and shall be binding upon all
persons having any right, title or interest in the leasehold interest in the Restricted Unit,
or any part thereof, their heirs, successive owners and assigns; shall inure to the
benefit of the City and its successors and assigns, shall be binding upon Owner, and its
successors and assigns; and may be enforced by City and its successors and assigns.
Owner hereby declares its understanding and intent that the burden of the covenants
set forth herein touch and concern the land and that the Owner's interest in the
Restricted Unit is rendered less valuable thereby. Owner hereby further declares its
understanding and intent that the benefit of such covenants touch and concern the
land by enhancing and increasing the enjoyment and use of the Restricted Unit by
Owner, and by furthering public purposes for City.
In amplification and not in restriction of the provisions hereinabove, it is intended
and agreed that City is deemed a beneficiary of the agreements and covenants
provided herein both for and in its own right and also for the purposes of protecting the
interests of the community. All covenants without regard to technical classification or
designation shall be binding for the benefit of City and such covenants shall run in
favor of City for the entire period during which such covenants shall be in force and
effect, without regard to whether City is or remains an owner of any land or interest
therein to which such covenants relate. However, all such covenants and restrictions
10
22-11508/288035
shall be deemed to run in favor of all real property owned by the City which real
property shall be deemed the benefited property of such covenants. Furthermore, all of
the covenants, conditions, and restrictions contained herein shall also constitute
easements in gross running in favor of the City. City shall have the right, in the event
of any breach of any such agreement or covenant, to exercise all the rights and
remedies, and to maintain any action at law or suit in equity or other proper
proceedings to enforce the curing of such breach of agreement or covenant.
11.2 Notice of Default. Failure or delay by Owner to perform any term
or provision of these Resale Restrictions which is not cured within thirty (30) days after
receipt of notice from the City constitutes a Default under these Resale Restrictions;
provided, however, if such Default is of the nature requiring more than thirty (30) days
to cure, Owner may avoid Default hereunder by immediately commencing to cure
within such thirty (30) day period, and thereafter diligently pursuing such cure to
completion within sixty (60) days after the expiration of the initial thirty (30) day period,
for a total of ninety (90) days. Failure or delay in giving notice by the City shall not
constitute a waiver of any Default, nor shall it change the time of Default.
11.3 City's Remedies. Upon the declaration of a Default, the City
may (i) apply to a court of competent jurisdiction for specific performance, for an
injunction prohibiting any act or omission in violation of these Resale Restrictions,
or for any such other relief as may be appropriate, (ii) exercise the City's rights
under these Resale Restrictions and the Affordable Housing Deed of Trust, including,
without limitation, foreclosure of the Restricted Unit, and (iii) pursue such other rights
and remedies permitted under these Resale Restrictions and by applicable law.
11.4 Prohibited Transfers Void. Any attempt by the Owner to make
a Prohibited Transfer of title to or any interest in the Restricted Unit in violation of these
Resale Restrictions shall be void and subject to rescission, specific performance, or
any other right or remedy available at law or in equity.
12. Governing Law. Owner hereby agrees to comply with all ordinances,
rules and regulations of the City, including the City Housing Regulations. Nothing in
these Resale Restrictions is intended to be, nor shall it be deemed to be, a waiver
of any City ordinance, rule or regulation. These Resale Restrictions shall be
governed by the laws of the State of California without regard to conflict of law
principles. Any legal action brought under these Resale Restrictions must be instituted
in the Superior Court of the County of Orange, State of California, or in the Federal
District Court in the Central District of California.
13. Attorneys' Fees and Costs. If either Party to these Resale Restrictions
institutes any action against the other Party arising out of or in connection with to these
Resale Restrictions, each Party shall bear its own attorney's fees and costs of suit.
14. Severability. So long as the material bargain of the Parties may be
preserved, any provision of these Resale Restrictions that is deemed to be illegal,
11
22-11508/288035
invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be
ineffective to the extent of the invalidity or unenforceability of such provision and shall
be deemed stricken from these Resale Restrictions. Any stricken provision shall not
affect the legality, enforceability or validity of the remainder of these Resale
Restrictions. If any provision of these Resale Restrictions is stricken in accordance with
the provisions of this Section, then the stricken provision shall be replaced, to the
extent possible, with a legal, enforceable and valid provision that is as similar in tenor
and intent to the stricken provision as is legally possible. Any such invalidity or
unenforceability of any provision in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Exhibits. Each of the Attachments referenced in these Resale
Restrictions and attached hereto is incorporated into these Resale Restrictions by
this reference as though fully set forth in this Section.
IN WITNESS WHEREOF, the Parties have caused this instrument to be
executed on their behalf by their respective officers hereunto duly authorized as of the
date set forth above.
OWNER:
The Olson Company, LLC,
a California limited liability company
By:
Its:
By:
Its:
CITY:
CITY OF HUNTINGTON BEACH,
a California municipal corporation
Mayor
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22-1 1 508/28803 5
ATTEST:
City Clerk
AUTHORITY:
HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH,
a public body corporate and politic
By:
Chairperson
ATTEST:
Authority Clerk
APPROVED AS TO FORM:
City Attorney/Authority Counsel a/
INITIATED AND APPROVED:
City Manager
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22-1 1 5 0 8/28 803 5
EXHIBIT A
LEGAL DESCRIPTION OF THREE AFFORDABLE UNITS
AT 8375 TALBERT AVENUE HUNTINGTON BEACH SUBJECT
TO THE AFFORDABLE HOUSING COVENANT FOR
8375 TALBERT AVENUE, HUNTINGTON BEACH
(The Affordable Housing Covenant Is Exhibit C To Density Bonus And
Affordable Housing Agreement For 8375 Talbert Avenue, Huntington Beach)
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22-11508/288035
EXHIBIT B
NOTICE OF AFFORDABILITY RESTRICTION
(The Notice is an Exhibit to the Affordable Housing Covenant,
which is Exhibit C to Density Bonus And Affordable Housing Agreement
For 8375 Talbert Avenue, Huntington Beach)
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22-11508/288035
Recording Requested By:
Housing Authority of
the City of Huntington Beach
2000 Main Street, 5" Floor
Huntington Beach, California 92648
Attention: Community Enhancement
SPACE ABOVE THIS LINE FOR RECORDER'S USE
NOTICE OF AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
NOTICE IS HEREBY GIVEN by ("Owner"), owner of the
property located at 8375 Talbert Avenue, Unit , Huntington Beach, California
92646, Assessor's Parcel Map No. , and more particularly described in
Exhibit "A" attached hereto (the "Property"), that:
1. On , 2022, the Declaration of Conditions, Covenants and
Restrictions," were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of
Orange (the "Resale Restrictions"). Further, concurrently with this Notice, a
"Deed of Trust with Assignments of Rents to Secure the Affordability
Restrictions on Transfer of the Property ("Deed of Trust ) was recorded
concurrently with this Notice. Among other things, the Resale Restrictions, as
amended by the Deed of Trust, limit the price that the Property may be sold to
an "Affordable Housing Cost" for "Moderate Income Households," as those
terms are defined in the Resale Restrictions, and further defined in the current
Affordable Housing Regulations of the City of Huntington Beach and the Deed
of Trust.
2. The administration of the Resale Restrictions shall be governed by the
Affordable Housing Regulations of the City of Huntington Beach, dated
August 15, 2011, as they exist now and may be amended in the future.
3. In summary, the Property may only be sold to a "Moderate Income
Household" ["Low Income Household"] at a price that does not exceed the
"Affordable Housing Cost." The Affordable Housing Cost is the purchase price
that results in monthly housing payments which do not exceed Thirty-Five
Percent (35%) of One Hundred Ten Percent (110%) [Thirty Percent (30%) of
Eighty Percent (70%)] of the current Orange County monthly median income
22-11508/286735
for a household equal to the number of bedrooms in the unit plus one (1)
person. In determining monthly housing payments, the City will assume
principal and interest payments on a conventional home mortgage after
paying a ten percent (10%) down payment. The mortgage interest rate will be
the prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected
equivalent. Monthly housing costs will also include homeowner's association
dues, utilities, homeowner's insurance, maintenance costs and property
taxes. Further, a qualifying buyer of the Property shall be a "Moderate
Income Household" whose income does not exceed Thirty-Five Percent
(35%) of One Hundred Ten Percent (110%) ["Low Income Household" whose
income does not exceed Thirty Percent (30%) of Seventy Percent (70%)] of
the current Orange County monthly median income for a household equal to
the number of bedrooms in the unit plus one (1) person.
4. The effect of relying on prevailing interest rates to determine the Affordable
Housing Cost is to make the resale price of the Property sensitive to interest
rates. For example, if interest rates rise, the resale price will fall, and if
interest rates fall, the resale price will rise. This could result in the Affordable
Housing Cost decreasing below the original purchase price.
5. In the event that Owner decides to sell or otherwise Transfer of the Property,
Owner shall contact the City to obtain the current Affordable Housing Cost,
which shall be the maximum sales price of the Property. City shall provide the
Affordable Housing Cost pursuant to its current Affordable Housing
Regulations. Regarding the Affordable Housing Cost, Owner acknowledges
that:
OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER,
UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE
TIME OF A PROPOSED SALE OR OTHER TRANSFER OF THE
RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING
INTEREST RATES, THE OFFERED TERMS OF SALE, THE
ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER
AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF
THE SAME OR SIMILAR REAL PROPERTY WHICH IS NOT
ENCUMBERED BY THIS COVENANT. OWNER, AND EACH
SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER
ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE
TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND
THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO
MODERATE INCOME HOUSEHOLDS [LOW INCOME
HOUSEHOLDS] AT AN AFFORDABLE HOUSING COST.
22-11508/286735
6. The City shall approve a Transfer of the Property if such Transfer complies
with the Resale Restrictions.
7. The Property shall be owner-occupied at all times and shall not be leased or
rented.
8. The Resale Restrictions imposed on the Property began on , 20_
and expire forty-five years later, on , 20_.
This Notice is recorded for the purpose of providing notice only and does not modify
the provisions of the Resale Restrictions or the Deed of Trust.
Dated: By:
APPROVED AS TO FORM:
Dated: By:
City Attorney M/
Exhibit A
Legal Description
22-11508/286735
EXHIBIT C
PROMISSORY NOTE
(The Promissory Note is an Exhibit to the Affordable Housing Covenant,
which is Exhibit C to Density Bonus And Affordable Housing Agreement
For 8375 Talbert Avenue Huntington Beach)
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22-11508/288035
PROMISSORY NOTE TO SECURE
AFFORDABILITY RESTRICTIONS ON
TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
THIS PROMISSORY NOTE (the "Note") is dated this day of
, 202 , between ("Promissor") and the Housing
Authority of the City of Huntington Beach ("Authority") with reference to the following
facts:
A. This Promissory Note is made in reference to that property in the City of
Huntington Beach, County of Orange, State of California, with the street address Unit
8375 Talbert Avenue, Huntington Beach, California 92646, and the Assessor's
Parcel Map No. (the "Property").
B. On , 2022, the Declaration of Conditions, Covenants and
Restrictions for Property," were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of Orange (the
"Resale Restrictions"). Among other things, the Resale Restrictions limit the price that
the Property may be sold to an "Affordable Housing Cost" to either "Low Income
Households or Moderate Income Households," as those terms are defined in the
Resale Restrictions, and further defined in the Affordable Housing Regulations. The
Affordable Housing Regulations, as they may be amended from time to time, are
utilized to implement the provisions of the Resale Restrictions.
C. The Affordable Sales Price pursuant to the Resale Restrictions shall be
the purchase price that would result in monthly housing payments for a Low Income
Household which does not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%), and for a Moderate Income Household that does not exceed Thirty-Five
Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County
monthly median income for a household equal to the number of bedrooms in the
Property plus one (1) person. In determining monthly housing payments, the City will
assume principal and interest payments on a conventional home mortgage after paying
a ten percent (10%) down payment. The mortgage interest rate will be the prevailing
Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes. Further, a qualifying
buyer of the Property shall be a "Low Income Household" whose income does not
exceed Thirty Percent (30%) of Seventy Percent (70%) and for a "Moderate Income
Household" whose income does not exceed Thirty-Five Percent (35%) of One Hundred
Ten Percent (110%) of the current Orange County monthly median income for a
household equal to the number of bedrooms in the unit plus one (1) person.
The effect of relying on prevailing interest rates to determine the Affordable
Housing Cost is to make the resale price of the Property sensitive to interest rates. For
example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale
22-11508/286734 1
price will rise. This could result in the Affordable Housing Cost decreasing below the
original purchase price.
D. Concurrently with executing this Note, Promissor has executed a Deed of
Trust securing and amending the Resale Restrictions (the "Authority of Deed of Trust").
E. Pursuant to the Resale Restrictions, the City has approved the transfer of
the Property to Promissor at an Affordable Housing Cost. To insure that any further
sale, transfer or assignment of the Property occurs with the City's approval and at an
Affordable Housing Cost, the City has required as a condition of the Promissor's
transfer of the Property that Promissor execute this Note.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Incorporation of Recitals. The recitals set forth above are incorporated by
reference as though fully set forth herein.
2. Amount of the Note.The Amount of this Note is the "Transfer Price" of the
Property, less the "Affordable Housing Cost." The Transfer Price shall be determined
according to the circumstances that cause the Amount of the Note to become due
pursuant to Section 3 of this Note. In the case of the sale of the Property without the
City's consent, the Transfer Price shall be the market sales price. In the case of the
financing or refinancing of the Property without the City's consent, the Transfer Price
shall be the loan amount in excess of the last loan balance on the First Mortgage that
the City previously approved. In all other cases, the Transfer Price shall be the fair
market value of the Property as established by the Director of Community Development
of the City pursuant to an appraisal. The term "Affordable Housing Cost" shall be
defined according to the current Affordable Housing Regulations as adopted by the City
of Huntington Beach.
Promissor promises to pay the Amount of this Note when due to the Housing
Authority at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92648, or at
such other address as Authority may direct from time to time in writing. All sums
hereunder shall be payable in lawful money of the United States of America and ail
sums shall be credited first to interest then due and the balance to principal.
3. Due on Sale Transfer or Refinancing. Promissor agrees to notify the
Authority not less than thirty (30) days prior to (i) the sale or transfer of the Property or
(ii) any financing or refinancing of the Property. This Note shall be due and payable
upon (i) such sale or transfer without the City's consent, (ii) the financing or refinancing
of the Property without the City's consent, (iii) Promissor is no longer an occupant of the
Property, or (iv) Promissor is in material default of any other obligation under the Resale
Restrictions, or the Authority Deed of Trust.
4. Expiration of the Note Obligation. In the event Promissor does not sell or
transfer the Property, does not fail to occupy the Property, does not refinance, or is not
in material breach of any other provision of the Resale Restrictions or the Authority
22-11508/286734 2
Deed of Trust before the forty-fifth (45) anniversary of the date of this Note, Promissor
shall have no obligation to pay the Note Amount to Authority upon later sale, transfer or
refinancing of the Property.
5. Default. The entire unpaid Amount of this Note shall be due and payable
in full in the event of a default. The following shall be deemed to be an event of default:
(i.) The City determines that the Promissor has made a
misrepresentation to obtain the benefits of purchase of the Property or in
connection with its obligations under the Resale Restrictions;
(ii.) The Promissor fails to occupy the Property as required
pursuant to the Resale Restrictions and the Authority Deed of Trust, and
such failure continues following written notice by the City and sixty (60) days
opportunity to cure following the date of such notice;
(iii.) The Promissor rents the Property in violation of the Resale
Restrictions and the Authority Deed of Trust, and such failure continues
following written notice by the City and sixty (60) days opportunity to cure;
(iv.) The Promissor fails to provide information to the City
necessary to determine Promissor's compliance with the requirements of the
Resale Restrictions;
(v.) The Promissor makes a transfer of the Property in violation of
the Resale Restrictions;
(vi.) The Promissor otherwise fails to comply with the requirements
of the Resale Restrictions, and such violation is not corrected to the
satisfaction of the City within thirty (30) days after the date of written notice
by the City to the Trustor of such violation;
(vii.) A notice of default is issued under the First Mortgage Loan or
other financing secured by the Property;
(viii.) A lien is recorded against the Property other than the lien of a
bona fide mortgage loan.
(ix.) Promissor places a mortgage on the Property without the prior
approval of the Authority.
(x.) Promissor declares bankruptcy or makes an assignment of
assets for the benefit of creditors.
(xi.) The Promissor fails to pay any real property taxes or
insurance premiums on the Property as they become due.
(xii.) Promissor continues to materially breach the Resale
Restrictions or the Authority Deed of Trust, following the City or the
Authority giving notice of the breach and an opportunity to cure.
22-11508/286734 3
(viii.) Prom issor fails to pay the Note Amount when due.
6. This Note is secured by a concurrently executed Deed of Trust, to the City
of Huntington Beach, as Trustee, executed by Promissor in favor of the Authority.
7. Notice. All payments, notices, consents, waivers and other
communications under this Agreement must be in writing and shall be deemed to have
been given when (a) delivered by hand, or, (b) when received by the addressee, if sent
by a nationally recognized overnight delivery service (receipt requested), in each case
addressed as set forth below:
If to PROMISSOR: If to AUTHORITY:
Housing Authority of the
8375 Talbert Avenue, Unit City of Huntington Beach
Huntington Beach, CA 92646 2000 Main Street
Huntington Beach, CA 92648
Attn: City Clerk
and
Deputy Director of Community Development
City of Huntington Beach
2000 Main Street, 5th Floor
Huntington Beach, CA 92648
8. Governing Law. This Agreement is governed by and shall be construed in
accordance with the laws of the State of California without giving effect to the conflict of
laws principles thereof. The parties agree to personal jurisdiction in the State Courts in
Orange County, California and specifically waive any claims of forum non-conveniens.
9. Modification. This Agreement shall not be amended or modified, except in
writing, signed by both parties.
10. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns under this Note. This Note shall not be
assigned without the express written consent of Authority.
22-11508/286734 4
PROMISSOR
Dated: By:
HOUSING AUTHORITY OF THE CITY OF
HUNTINGTON BEACH
Dated: By:
Deputy Director of Community Development
APPROVED AS TO FORM:
Dated: By:
City Attorney
22-11508/286734 5
EXHIBIT D
AFFORDABLE HOUSING DEED OF TRUST
(The Affordable Housing Deed of Trust is an Exhibit to the Affordable
Housing Covenant, which is Exhibit C to Density Bonus And Affordable Housing
Agreement For 8375 Talbert Avenue, Huntington Beach)
17
22-11508/288035
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
Housing Authority of
the City of Huntington Beach
2000 Main Street, 5th Floor
Huntington Beach, California 92648
Attention: Community Enhancement
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENTS OF RENTS TO SECURE
RESALE RESTRICTIONS ON TRANSFER OF PROPERTY
(Unit , 8375 Talbert Avenue, Huntington Beach, CA 92646)
THIS DEED OF TRUST is made this day of , 202_
by and among (the "Trustor"), whose address is Unit ,
8375 Talbert Avenue, California 92646 ("Trustor") and the CITY OF HUNTINGTON
BEACH, a municipal corporation (the "Trustee") and the HOUSING AUTHORITY OF
THE CITY OF HUNTINGTON BEACH, a public body corporate and politic (the
"Beneficiary"), whose address is 2000 Main Street, Huntington Beach, California 92648,
with reference to the following facts:
A. This Deed of Trust is made in reference to that property in the City of
Huntington Beach, County of Orange, State of California, described legally in the Legal
Description attached hereto as Exhibit "A" and incorporated herein with the street
address Unit , 8375 Talbert Avenue, Huntington Beach, California, 92646, and the
Assessor's Parcel Map No. (the "Property").
B. The City has adopted an Inclusionary Housing Ordinance (the
"Inclusionary Ordinance," currently Section 230.26 of the City Zoning Code).
C. On , 202_, the "Declaration of Conditions, Covenants
and Restrictions for Property, were recorded against the Property as Instrument No.
in the Office of the County Recorder of the County of Orange (the "Resale
Restrictions"). Among other things, the Resale Restrictions limit the price that the
Property may be sold to an "Affordable Housing Cost" to "Low Income Households" and
"Moderate Income Households," as those terms are defined in the Resale Restrictions,
and further defined in the Affordable Housing Regulations. The Affordable Housing
Regulations, as they may be amended from time to time, are utilized to implement the
provisions of the Resale Restrictions.
D. The Affordable Sales Price pursuant to the Resale Restrictions shall be
the purchase price that would result in monthly housing payments for a Low Income
22-11508/288311 1
Household which does not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%), and for a Moderate Income Household that does not exceed the product
of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current Orange
County monthly median income for a household equal to the number of bedrooms in the
Property plus one (1) person. In determining monthly housing payments, the City will
assume principal and interest payments on a conventional home mortgage after paying a
ten percent (10%) downpayment. The mortgage interest rate will be the prevailing
Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes. Further, a qualifying
buyer of the Property shall be a "Low Income Household" whose income does not
exceed Thirty Percent (30%) of Seventy Percent (70%) and for a "Moderate Income
Household" whose income does not exceed Thirty-Five Percent (35%) of One Hundred
Ten Percent (110%) of the current Orange County monthly median income for a
household equal to the number of bedrooms in the unit plus one (1) person.
The effect of relying on prevailing interest rates to determine the Affordable Sales Price is
to make the resale price of the Property sensitive to interest rates. For example, if
interest rates rise, the resale price will fall, and if interest rates fall, the resale price will
rise. This could result in the Affordable Sales Price decreasing below the original
purchase price.
E. The administration of the Resale Restrictions, as modified by this Deed
of Trust, shall be governed by the Affordable Housing Regulations of the City of
Huntington Beach, as they exist now and may be amended in the future.
F. Pursuant to this Deed of Trust, the Resale Restrictions expire on
20_ (the "Expiration Date").
NOW, THEREFORE, TRUSTOR HEREBY irrevocably grants, transfers and
assigns, to Trustee, in trust, with power of sale of the Property, together with (a) all
buildings, improvements and fixtures, now or hereafter placed thereon, it being
understood and agreed that all classes of property attached or unattached used in
connection herewith shall be deemed fixtures, (b) rents, issues and profits thereof, (c)
any water rights and/or stock are appurtenant or pertain to said land, and (d) all sums of
money payable on the purchase price of the Property secured by a lien thereon or
payable under any agreement for the sale thereof, SUBJECT, HOWEVER, to the right,
power and authority hereinafter given to and conferred upon Beneficiary to collect and
apply such rents, issues and profits, and all sums of money payable on the purchase
price of the Property secured by a lien thereon or payable under any agreement.
A. FOR THE PURPOSE OF SECURING:
1. Payment of the indebtedness evidenced by a promissory note
executed by Trustor concurrently with this Deed of Trust (the "City Note"). The Amount
of the City Note is the "Transfer Price" of the Property, less the "Affordable Housing
22-11508/288311 2
Cost." The calculation of the Amount is set forth with specificity in the Note, which is on
file with the Community Development Department of the City of Huntington Beach.
2. Performance of each and every obligation, covenant, promise
and agreement of the Resale Restrictions.
B. TO PROTECT THE SECURITY OF THIS DEED OF TRUST,
TRUSTOR AGREES:
1. Restriction on Resale or Transfer of Property.
Trustor agrees for itself, and its successors and assigns, and every successor
to Trustor's interest in the Property, or any part thereof until the Expiration Date, to
perform all obligations due under the Resale Restrictions, as those obligations are
restated and modified as set forth below:
(a) The Property shall only be owned and occupied by persons or
families of "Low Income" or "Moderate Income." "Low Income" shall mean persons or
families earning eighty percent (60%) or less of Orange County median income, adjusted
for appropriate family size. "Moderate Income" shall mean persons or families earning
one hundred twenty percent (120%) or less of Orange County median income, adjusted
for appropriate family size.
(b) The Property may only be sold to "Low Income" or "Moderate
Income households at an Affordable Housing Cost," as those terms are further defined
in Affordable Housing Regulations. Generally, those Regulations define Affordable
Housing Cost to mean that purchase price which would result in monthly housing
payments, which do not exceed the product of Thirty Percent (30%) times Seventy
Percent (70%) for Low Income Households, and for Moderate Income Households the
product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current
Orange County monthly median income for a household equal to the number of
bedrooms in the unit plus one (1) person. In determining monthly housing payments, the
City will assume principal and interest payments on a conventional home mortgage after
paying a ten percent (10%) downpayment. The mortgage interest rate will be the
prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected equivalent.
Monthly housing costs will also include homeowner's association dues, utilities,
homeowner's insurance, maintenance costs and property taxes.
The effect of relying on prevailing interest rates to determine the
Affordable Housing Cost is to make the resale price of the Property sensitive to interest
rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall,
the resale price will rise. This could result in the Affordable Housing Cost decreasing
below the original purchase price of the Property.
(c) The Trustor shall further comply with the Affordable Housing
Regulations.
22-11508/288311 3
(d) No transfer of the Property shall occur until the City of Huntington
Beach determines (a) that the proposed purchaser intends to occupy the Property as the
proposed purchaser's principal residence, (b) that the proposed purchaser is a person or
family of either Low Income or Moderate Income, and (c) that the proposed transfer
occurs at an Affordable Housing Cost. The City of Huntington Beach shall not be
obligated to approve a transfer until and unless the proposed purchaser has submitted to
the City of Huntington Beach such information and completed such forms as the City of
Huntington Beach shall request to certify the proposed purchaser's intent with respect to
its residency of the Property and its gross income, and the proposed purchaser has
submitted an affidavit disclosing and certifying the amount of the proposed purchase
price. Prior to conveyance of the Property, each approved purchaser shall submit to the
City of Huntington Beach an executed disclosure statement which certifies that the
purchaser is aware that the purchaser may only sell the unit at an Affordable Housing
Cost to a Low Income or Moderate Income person or family, that the maximum permitted
sales price may be less than fair market value and that the unit must be owner-occupied
at all times and cannot be rented or leased.
TRUSTOR AND EACH SUCCESSOR, HEIR OR ASSIGN OF TRUSTOR
UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE
HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST
RATES, THE TERMS OF SALE OFFERED TO AND THE ECONOMIC
CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER
FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT
THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS
THAN THE FAIR MARKET VALUE OF THE PROPERTY AND MAY NOT
INCREASE OR DECREASE IN THE SAME MANNER AS OTHER
SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS
RESTRICTION. TRUSTOR AND EACH SUCCESSOR, HEIR OR
ASSIGN OF TRUSTOR FURTHER ACKNOWLEDGES THAT AT ALL
TIMES IN SETTING THE TRANSFER PRICE THE PRIMARY
OBJECTIVE OF THE BENEFICIARY AND THIS DEED OF TRUST IS TO
PROVIDE HOUSING TO ELIGIBLE PERSONS OR FAMILIES AT AN
AFFORDABLE HOUSING COST.
Trustor Initials Trustor Initials
(e) The City of Huntington Beach may impose any conditions on the
approval of any transfer of the Property as it determines are reasonably necessary for
the effective administration of its Affordable Housing Program. Such conditions may
include, but are not limited to, requiring the prospective purchaser to sign: (i) a
promissory note in favor of the City by which he or she agrees to pay any excess
proceeds of sale or in excess rental proceeds to the City, and (ii) a deed of trust on the
Property securing both the Resale Restrictions and the promissory note.
22-11508/288311 4
(f) The Trustor shall occupy the Property as the Trustor's principal
place of residence and shall not lease or rent the Property. The Trustor shall provide an
annual written certification to the City that the Trustor is occupying the Property as his or
her principal place of residence, and that the Trustor is not renting the Property to
another party.
(g) The Resale Restrictions shall run with the land and shall
automatically terminate and be of no further force or effect on , 20_.
2. Defaults.
(a) The following events shall constitute a Default by the Trustor
under the Resale Restrictions:
(1) The City determines that the Trustor has made a
misrepresentation to obtain the benefits of purchase of the Property or in connection
with its obligations under the Resale Restrictions;
(2) The Trustor fails to occupy the Property as his or her
principal place of residence as required pursuant to Section 1(f) above, and such
failure continues following written notice by the City and sixty (60) days opportunity to
cure following the date of such notice;
(3) The Trustor rents the Property in violation of Section 1(f)
above, and such failure continues following written notice by the City and sixty (60)
days opportunity to cure;
(4) The Trustor fails to provide information to the City
necessary to determine Trustor's compliance with the requirements of the Resale
Restrictions;
(5) The Trustor transfers the Property in violation of the
Resale Restrictions;
(6) The Trustor otherwise fails to comply with the
requirements of the Resale Restrictions, and such violation is not corrected to the
satisfaction of the City within thirty (30) days after the date of written notice by the City
to the Trustor of such violation;
(7) A notice of default is issued under the First Mortgage
Loan or other financing secured by the Property;
(8) A lien is recorded against the Property other than the
lien of a bona fide mortgage loan.
(9) Trustor places a mortgage on the Property in violation of
Section 9 below; or
22-11508/288311 5
(10) Trustor declares bankruptcy or makes an assignment of
assets for the benefit of creditors.
(b) Upon a declaration of Default by the City under the Resale
Restrictions, the City may exercise any remedies at law or in equity, including without
limitation, any or all of the following, none of which shall be an exclusive remedy:
(1) Declare the City Note due and payable without further
demand and accelerate payments due under the City Note;
(2) Invoke the power of sale under this Deed of Trust;
(3) Apply to a court of competent jurisdiction for such relief
at law or in equity as may be appropriate;
(4) Take such enforcement action as is authorized under
the Huntington Beach Municipal Code; and
(5) Declare a Default under the City Note and this Deed of
Trust and pursue all City remedies under the City Note and the City Deed of Trust.
3. Notice of Default and Foreclosure.
A request for notice of default and any notice of sale under any deed of trust
or mortgage with power of sale encumbering the Property shall be recorded by the City
in the Office of the Recorder of the County of Orange. The City may declare a Default
under this Resale Agreement upon receipt of any notice given to the City pursuant to
Civil Code section 2924b, and may exercise its rights as provided in Sections 2 and 4.
In the event of default and foreclosure, the City shall have the same right as
the Trustor to cure defaults and redeem the Property prior to the foreclosure sale.
Nothing herein shall be construed as creating any obligation of the City to cure any
such default, nor shall this right to cure and redeem operate to extend any time
limitations in the default provisions of the underlying deed of trust or mortgage.
If the City failed to file the request for notice of default, the City's right to
purchase the Property shall commence from the date a notice of default is given by the
City to the Trustor.
4. Purchase Option Upon Default.
Notwithstanding, and in addition to the remedies provided the City in
Section 2, the Trustor hereby grants to the City the option to purchase the Property
following written notice by the City to the Trustor of the declaration of a Default by the
City under the Resale Restrictions. This option to purchase is given in consideration of
the economic benefits received by the Trustor resulting from ownership of the Property
made possible by the City's Affordable Housing Program.
22-11508/288311 6
The City shall have thirty (30) days after a Default is declared to notify the
Trustor and the First Lender of its decision to exercise its option to purchase under this
Section 4. Not later than ninety (90) days after the notice is given by the City to the
Trustor of the City's intent to exercise its option under this Section 4, the City shall
purchase the Property for the Affordable Housing Cost calculated in the manner set
forth in Section 1.
5. Restrictions on Foreclosure Proceeds.
If a creditor acquires title to the Property through a deed in lieu of
foreclosure, a trustee's deed upon sale, or otherwise, the Trustor shall not be entitled
to the proceeds of sale to the extent that such proceeds otherwise payable to the
Trustor when added to the proceeds paid or credited to the creditor exceed the
Affordable Housing Cost. The Trustor shall instruct the holder of such excess
proceeds to pay such proceeds to the City in consideration of the benefits received by
the City through purchase of the Property under the City's Inclusionary Housing
Program.
6. Restrictions on Insurance Proceeds.
If the Property is damaged or destroyed and the Trustor elects not to rebuild
the Property, the Trustor shall pay the City the portion of any insurance proceeds
received by the Trustor for such destruction or damage which is in excess of the
Affordable Housing Cost calculated pursuant to Section 2 above.
7. Superiority of Resale Restrictions.
The Trustor covenants that he or she shall has not, and will not, execute any
other agreement with provisions contradictory to or in opposition to the provisions
hereon, and that, in any event, the Resale Restrictions are controlling as to the rights
and obligations between and among the Trustor, the City and their respective
successors.
8. Subordination.
(a) Notwithstanding any provision herein, the Resale Restrictions shall
not diminish or affect the rights of the First Lender under the First Lender Deed of Trust
or any subsequent First Lender Deeds of trust hereafter recorded against the Property
in compliance with the Resale Restrictions.
(b) The City may subordinate the Resale Restrictions and this Deed of
Trust to the lien of a First Lender Deed of Trust, in which case the Resale Restrictions
and this Deed of Trust shall not impair the rights of the First Lender, or such lender's
assignee or successor in interest, to exercise its remedies under the First Lender Deed
of Trust by the Trustor. Such remedies under the First Lender Deed of Trust include
the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure.
After such foreclosure or acceptance of a deed in lieu of foreclosure, the Resale
Restrictions and this Deed of Trust shall be forever terminated and shall have no
22-11508/288311 7
further effect as to the Property or any transferee thereafter; provided, however, if the
holder of such First Lender Deed of Trust acquires title to the Property pursuant to a
deed or assignment in lieu of foreclosure, the Resale Restrictions and this Deed of
Trust shall automatically terminate upon such acquisition of title, only if (i) the City has
been given written notice of default under such First Lender Deed of Trust with a sixty
(60) day cure period, (ii) the City shall not have cured the default within such sixty (60)
day period or commenced to cure and given its firm commitment to complete the cure
in form and substance acceptable to the first lender, or (iii) the City shall not have
exercised its option to purchase the Property pursuant to Section 4 above within such
sixty (60) day period and then proceeded diligently to cure the default within sixty (60)
days of acquiring title to the Property.
9. Refinance of First Mortgage Loan: Further Encumbrance of Property.
Trustor may not refinance of the first mortgage on the Property and/or add a second
mortgage on the Property without approval of the City. The City shall only approve
refinancing in compliance with the Affordable Housing Regulations.
10. Interpretation of Resale Restrictions.
The terms of the Resale Restrictions shall be interpreted so as to avoid
speculation on the Property and to ensure to the extent possible that its sales price and
mortgage payments remain affordable to Low Income Households and Moderate Income
Households.
11. Covenants Running with the Land.
(a) Trustor hereby subjects the Property to the covenants and restrictions
set forth in the Resale Restrictions. Trustor hereby declares its express intent that the
covenants and restrictions set forth in the Resale Restrictions shall be deemed
covenants running with the land in perpetuity, shall pass to, and be binding upon all
parties having any interest in the Property throughout the term of the Resale Restrictions.
Each and every contract, deed, lease or other instrument covering, conveying or
otherwise transferring the Property or any interest therein, as the case may be, shall
conclusively be held to have been executed, delivered and accepted subject to the
Resale Restrictions regardless of whether the other party or parties to such contract have
actual knowledge of such Resale Restrictions.
(b) The Trustor and the City hereby declare their understanding and intent
that: (i) the covenants and restrictions contained in the Resale Restrictions shall be
construed as covenants running with the land pursuant to California Civil Code section
1468 and not as conditions which might result in forfeiture of title by Trustor; (ii) the
burden of the covenants and restrictions set forth in the Resale Restrictions touch and
concern the Property in that the Trustor's legal interest in the Property may be rendered
less valuable thereby; and (iii) the benefit of the covenants and restrictions set forth in the
Resale Restrictions touch and concern the land by enhancing and increasing the
enjoyment and use of the Property by eligible purchasers, the intended beneficiaries of
such covenants and restrictions.
22-11508/288311 8
(c) All covenants and restrictions contained herein in the Resale
Restrictions without regard to technical classification or designation shall be binding upon
Trustor for the benefit of the City and eligible purchasers and such covenants and
restrictions shall run in favor of such parties for the entire period during which such
covenants and restrictions shall be in force and effect, without regard to whether the City
is the owner of any land or interest therein to which such covenants and restrictions
relate.
12. Trustor's Acknowledgement of Resale Restrictions.
Trustor hereby acknowledges and agrees that:
(1) Trustor hereby subjects the Property to certain restrictions and
limits the price for which Trustor may sell the Property and the persons to whom Trustor
may sell the Property. The Affordable Housing Cost and other provisions contained in
the Resale Restrictions restrict the full benefits of owning the Property. Trustor may not
enjoy the same economic or other benefits from owning the Property that Trustor would
enjoy if the Resale Restrictions did not exist.
(2) Absent the provisions of the Inclusionary Ordinance and the
provisions of the Resale Restrictions, the Property could not be made available to Low
Income Households and Moderate Income Households at the Affordable Housing Cost,
including Trustor.
(3) Trustor understands all of the provisions of the Resale
Restrictions. In recognition of the acknowledgments and agreements stated in this
Section 12, Trustor accepts and agrees to the provisions of the Resale Restrictions with
the understanding that upon the transfer of the Property, the Resale Restrictions will
expire on , 20_, and will remain in full force and effect as to the Property
until such expiration date.
Trustor Initials Trustor Initials
13. Non-Discrimination.
(a) Trustor covenants by and for itself, its successors and assigns, and all
persons claiming under or through them that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the said property, nor shall Trustor itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
22-11508/288311 9
(b) Trustor and its successors and assigns, shall refrain from restricting the
rental or lease (if permitted by Trustor) or sale of the Property on the basis of race, color,
religion, sex, marital status, national origin or ancestry of any person. All such deeds,
leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color,
religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessee or
vendees in the land herein conveyed. The foregoing covenants shall run with
the land."
(2) In leases: "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, and this lease is made and accepted
upon and subject to the following conditions:
"There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, religion, sex,
marital status, ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person
claiming under to through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants,
lessees, sublessees, subtenants or vendees in the premises herein
leased."
(3) In contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons on account of race, color,
religion, sex, marital status, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor
shall the transferee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessee or vendees of the
premises."
22-11508/288311 10
(c) Nothing in this Section 13 shall be construed to authorize the rental or
lease of the Property if such rental or lease is not otherwise permitted.
(d) The covenants in this paragraph shall run with the land in perpetuity.
14. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Deed of Trust shall defeat or render invalid or in
any way impair the lien or charge of any mortgage or deed of trust or security interest.
15. Trustor has made certain representations and disclosures as a
requirement under the Resale Restrictions in order to induce Beneficiary to approve the
sale of the Property to Trustor. In the event that Trustor has made any material
misrepresentation or failed to disclose any material fact regarding said transaction,
Beneficiary at its option and without notice, shall have the right to declare a material
breach of the Resale Restrictions and the Note. Beneficiary may make a written
declaration of default and demand for sale as to paragraph No. 6 herein set forth.
Trustee, upon presentation to it of an affidavit signed by Beneficiary setting forth facts
showing a default by Trustor under this paragraph, is authorized to accept as true and
conclusive all facts and statements therein, and to act thereon hereunder.
16. All covenants without regard to technical classification or designation
shall be binding for the benefit of the Beneficiary and such covenants shall run in favor of
the Beneficiary for the entire period during which some covenants shall be in force and
effect, without regard to whether the Beneficiary is or remains an owner of any land or
interest therein to which such right to exercise all the rights and remedies and to maintain
any action at law or suits in equity or other proper legal proceedings to enforce and to
cure such breach to which it or any other beneficiaries of those covenants against
discrimination which may be enforced at law or in equity at any time in perpetuity.
17. Upon default by Trustor in the obligations of the City Note, in the
performance of any obligation under this Deed of Trust, the Resale Restrictions, or under
the terms of any First Lender's Deed of Trust which is or appears to be prior or superior
to this Deed of Trust, Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustee of a written declaration of default
and demand for sale and a written notice of default and election to sell the Property.
Default in the payment of any indebtedness secured by this Deed of Trust, in the
obligation of the Note, or in the performance of any agreement under this Deed of Trust
constitutes a default only under this Deed of Trust and the Note and does not constitute a
default under the First Deed of Trust. Trustee shall cause the notice of default to be
recorded. Beneficiary also shall deposit with Trustee this Deed of Trust, the Note, and all
documents evidencing any additional expenditures secured by this Deed of Trust. After
the lapse of such time as then may be required by law following recordation of such
notice of default, and notice of sale having been given as then required by law, Trustee,
without demand on Trustor, shall sell the Property at the time and place fixed by it in
such notice of sale, whether as a whole or in separate parcels, and in such order as it
may determine, at public auction to the highest bidder qualified under said Resale
22-11508/288311 11
Restrictions and this Deed of Trust in lawful money of the United States, payable at time
of sale. Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter may
postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its Deed conveying the Property
so sold, but without any covenant or warranty, express or implied. The recital in such
Deed of any matters of fact shall be conclusive of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such
sale. Trustee may also sell at any such sale and as part thereof any shares of corporate
stock securing the obligations secured hereby, and Trustor waives demand and notice of
such sale. (Beneficiary at its option may also foreclose on such shares by independent
pledge sale, and Trustor waives demand and notice of such sale.) After deducting all
costs, fees and expenses of Trustee, and of this Trust, including cost of evidence of title
in connection with this sale, Trustee shall apply the proceeds of sale to payment, first; all
sums expended under the terms hereof, not then repaid, with accrued interest at the rate
then payable under the First Lender Deed of Trust secured hereby, and then of all other
sums secured hereby, and, if there are any proceeds remaining, shall distribute them to
the person or persons legally entitled thereto.
18. Trustor shall keep the Property in good condition and repair; to allow
Beneficiary or its representatives to enter and inspect the Property at all reasonable
times and access thereto, shall be permitted for that purpose; not to remove or demolish
any building thereon; not to make alterations thereto without the consent of the
Beneficiary; to suffer or permit no change in the general nature of the occupancy of the
Property without Beneficiary's written consent; to complete or restore promptly and in
good workmanlike manner any building which may be constructed, damaged or
destroyed thereon, including, without restricting the generality of the foregoing, damage
from termites and dry-rot; to pay when due all claims for labor performed and materials
furnished in connection with the Property and not to permit any mechanic's lien against
the Property; to comply with all laws affecting the Property or requiring any alterations or
improvements to be made thereon; not to initiate or acquiesce in any zoning
reclassification without Beneficiary's written consent; not to commit or permit waste
thereon; not to commit, suffer or permit any act upon the Property in violation of the law;
to paint, cultivate, irrigate, fertilize, fumigate, prune, and do all other acts that from the
character or use of the Property may be reasonably necessary; and to promptly pay all
amounts due others upon agreements of lease or conditional sale of all fixtures,
furnishings and equipment located thereon.
19. Trustor shall provide, and maintain in force at all times with respect to
the Property, fire and other types of insurance as may be required by Beneficiary. All of
such insurance shall have a loss payable endorsement in favor of Beneficiary, shall be
for a term and in form, content, amount and in such companies as may be satisfactory to
Beneficiary, and the policies therefore shall be delivered to and remain in possession of
Beneficiary as further security for the faithful performance of these trusts. At least thirty
(30) days prior to the expiration of any such insurance policy, a policy or policies
renewing or extending such expiring insurance shall be delivered to Beneficiary together
22-11508/288311 12
with written evidence showing payment of the premium therefore and, in the event any
such insurance policy and evidence of the payment of the premium therefore are not so
delivered by Trustor to Beneficiary, Trustor by executing this Deed of Trust specifically
requests Beneficiary to obtain such insurance and Beneficiary, without obligation to do
so, without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may obtain such insurance through or from any insurance agency or
company acceptable to it, pay the premium thereof, and may add the amount thereof to
the indebtedness secured hereby, which amount shall bear a like rate of interest.
Beneficiary may furnish to any insurance agency or company, or any other person, any
information contained in or extracted from any insurance policy delivered to Beneficiary
pursuant hereto and any information concerning the loan secured hereby. Neither
Trustee nor Beneficiary shall be responsible for such insurance or for the collection of
any insurance monies, or for any insolvency of any insurer or insurance underwriter. In
case of insurance loss, Beneficiary is hereby authorized either (a) to settle and adjust
any claim under the insurance policies provided for in this document without the consent
of the Trustor, or (b) to allow Trustor to agree with the insurance company or companies
on the amount to be paid upon the loss. In either case, the Beneficiary is authorized to
collect and make receipt of any such insurance money. If Trustor is obligated to restore
or replace the damaged or destroyed buildings or improvements under the terms of any
lease or leases which are or may be prior to the lien of this Deed of Trust and such
damage or destruction does not result in cancellation or termination of such lease, such
proceeds, after deducting therefrom any expenses incurred in the collection thereof, shall
be used to reimburse the Trustor for the cost of rebuilding or restoring the buildings or
improvements on said premises. In all other cases, such insurance proceeds shall either
be applied for the cost of the rebuilding or restoring the buildings or improvements on
said premises. Such buildings and improvements shall be so restored or rebuilt as to be
of at least equal value and substantially the same character as prior to the damage or
destruction, and shall be in a condition satisfactory to Beneficiary. Such application or
release shall not cure or waive any default or notice of default hereunder or invalidate
any act done pursuant to such notice. Any and all unexpired insurance shall inure to the
benefit of, and pass to the purchaser of, the property conveyed at any Trustee sale held
hereunder.
20. Trustor shall pay: (a) at least ten (10) days before delinquency, all
general and special City and County taxes, and all assessments on appurtenant water
stock, affecting the Property, (b) when done, all special assessments for public
improvements, without permitting any improvement bond to issue for any special
assessment, (c) when done, all encumbrances, charges and lines, with interest, on the
Property, or any part thereof, which are or appears to be prior to superior hereto, (d) if
the security of this Deed of Trust is leasehold estate, to make any payment or do any act
required of the Lessee or its successor in interest under the terms of the instrument or
instruments creating said leasehold, (e) all costs, fees and expenses of this trust, (f) for
any statement regarding the obligation secured hereby any amount demanded by
Beneficiary not to exceed the maximum allowed by law thereof at the time when such
request is made, (g) such other charges for services rendered by Beneficiary and
22-11508/288311 13
furnished at Trustor's request or that of any successor in interest to Trustor as the
Beneficiary may deem reasonable.
21. Should Trustor fail to make any payment or do any act as provided in
this Deed of Trust, the Beneficiary or Trustee, but without obligation to do so and without
notice to or demand upon Trustor and without releasing Trustor from any obligation
hereof, may (a) make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon the Property for such purposes, (b) commence, appear in, or defend any
action or proceeding purporting to affect the security hereof or the property covered by
this Deed of Trust, or the rights or powers of Beneficiary or Trustee, (c) pay, purchase,
contest or compromise any encumbrance, charge or lien, which in the judgment of either
is or appears to be prior or superior hereto, and (d) in exercising any such powers, pay
necessary expenses, employ counsel and pay his reasonable fees. Trustor agrees to
repay any amount so expended on demand of Beneficiary, and any amount so expended
may be added by Beneficiary to the indebtedness secured hereby and shall bear a like
rate of interest.
22. Trustor shall appear in and defend any action or proceeding purporting
to affect the security hereof or the Property which is covered by this Deed of Trust, or the
rights or powers of Beneficiary or Trustee, and whether or not Trustor so appears or
defends, to pay all costs and expenses, including cost of evidence of title and attorney's
fees in a reasonable sum, in any such action or proceeding in which Beneficiary or
Trustee may appear by virtue of being made a party defendant or otherwise irrespective
of whether the interest of Beneficiary or Trustee in the Property is directly questioned by
such action, including any action for the condemnation or partition of said premises, and
in any suit brought by Beneficiary to foreclose this Deed of Trust.
23. Trustor shall pay immediately and without demand, all sums expended
under the terms of this Deed of Trust by Beneficiary or Trustee, with interest from the
date of expenditure at the rate which the principal obligation secured hereby bears at the
time such payment is made, and the repayment of such sums shall be secured hereby.
24. Should Trustor or any successor in interest to Trustor in the Property
drill or extract, or enter into a lease for drilling or extraction of oil, gas or other
hydrocarbon substances or any mineral of any kind or character, or sell, convey, further
encumber, or alienate the Property, or any party thereof, or any interest therein, or be
divested of his title or any interest therein in any manner or way, whether voluntarily or
involuntarily, Beneficiary shall have the right, at its option, to declare any obligations
secured hereby irrespective of the maturity date specified in any Note evidencing the
same, immediately due and payable, and no waiver of this right shall be effective unless
in writing.
25. Any award, settlement or damages for injury or damages to the
Property, or in construction with the transaction financed by such loan, and any award of
damages in connection with any condemnation for public use of or injury to the Property,
22-11508/288311 14
or any part thereof, is hereby assigned and shall be paid to Beneficiary, who may apply
or release such monies received by it in such manner and with the same effect as above
provided for the disposition of proceeds of fire or other insurance.
26. By accepting payment of any sums secured by this Deed of Trust after
its due date, or by making any payment, performing any act on behalf of Trustor, that
Trustor was obligated hereunder, but failed, to make, or perform, or by adding any
payment so made by Beneficiary to the indebtedness secured hereby, Beneficiary does
not waive its right either to require prompt payment when due of all other sums so
secured or to declare a default for failure so to pay.
27. At any time, or from time to time, without liability of the Beneficiary or
Trustee thereof, and without notice, upon written request of Beneficiary and presentation
of this Deed of Trust and the Note secured hereby for endorsement, and without affecting
the personal liability of any person for payment of the indebtedness secured hereby, or
the lien of the Deed of Trust upon the remainder of the Property for the full amount of the
indebtedness then or thereafter secured hereby, or the rights or powers of Beneficiary or
the Trustee with respect to the remainder of the Property, Trustee may: (a) reconvey any
part of the Property, (b) consent to the making of any map or plat thereof, (c) join in
granting any easement thereon, (d) join in any agreement subordinating the lien or
charge hereof.
28. The lien hereof shall remain in full force and effect during any
postponement or extension of time of payment of the indebtedness secured hereby, or
any part thereof.
29. As additional security, Trustor irrevocably assigns to Beneficiary the
rents, issues, and profits of the Property for the purposes and upon the terms and
conditions set forth below. This assignment shall not impose upon Beneficiary any duty
to produce rents from the property affected by this Deed of Trust, or cause Beneficiary to
be (a) "mortgages in possession" for any purpose; (b) responsible for performing any of
the obligations of the lessor under any lease; or (c) responsible for any waste committed
by lessees or any other parties, for any dangerous or defective condition of the property
affected by this Deed of Trust, or for any negligence in the management, upkeep, or
control of such rights to rents, issues and profits is not contingent upon, and may be
exercised without possession of, the property affected by this Deed of Trust.
Beneficiary confers upon Trustor a license ("License") to collect and retain the
rents, issues and profits of the property affected by this Deed of Trust as they become
due and payable, until the occurrence of a default hereunder. Upon such default, the
License shall be automatically revoked and Beneficiary may collect and retain the rents,
issues and profits without notice and without taking possessions of the property affected
by this Deed of Trust. This right to collect rents, issues and profits shall not grant to
Beneficiary or Trustee the right to possession, except as otherwise provided herein; and
neither said right, nor termination of the License, shall impose upon Beneficiary or
Trustee the duty to produce rents, issues or profits or maintain all or any part of the
22-11508/288311 15
Property affected by this Trust Deed. If Trustor shall default as aforesaid, Trustor's right
to collect any such money shall cease and Beneficiary shall have the right, with or
without taking possession of the property affected hereby, to collect all rents, issues,
royalties and profits and shall be authorized to, and may, without notice and irrespective
of whether declaration of default has been delivered to Trustee and without regard to the
adequacy of the security for the indebtedness secured hereby, either personally or by
attorney or agent without bringing any action or proceeding, or by receiver to be
appointed by the Court, enter into possession and hold, occupy, possess and enjoy the
Property, make, cancel, enforce and modify leases, obtain and eject tenants, and set and
modify rents and terms of rents, and to sue, and to take, receive and collect all or any
part of the said rents, issues, and profits of the property affected hereby, and after paying
such costs of maintenance, operation of the Property, and of collection including
reasonable attorneys' fees, as in its judgment it may deem proper, to apply the balance
upon any indebtedness then secured hereby, the rents, issues, royalties and profits of
the Property being hereby assigned to Beneficiary for said purposes. The acceptance of
such rents, issues, royalties and profits shall not constitute a waiver of any other right
which Trustee or Beneficiary may enjoy under this Deed of Trust or under the laws of
California. Failure of or discontinuance by Beneficiary at any time, or from time to time,
to collect any such rents, issues, royalties or profits shall not in any manner affect the
subsequent enforcement by Beneficiary of the right, power and authority to collect the
same. The receipt and application by said Beneficiary of all such rents, issues, royalties
and profits pursuant hereto, after execution and delivery of declaration of default and
demand for sale as hereinafter provided, or during the pendency of Trustee's sale
proceedings hereunder, shall not cure such breach or default nor affect sale
proceedings, or any sale made pursuant thereto, but such rents, issues, royalties and
profits, less all costs of operation, maintenance, collection and reasonable attorneys'
fees, when received by Beneficiary, shall be applied in reduction of the indebtedness
secured hereby, from time to time, in such order as Beneficiary may determine. Nothing
contained herein, nor the exercise of the right by Beneficiary to collect, shall be, or be
construed to be, an affirmation by Beneficiary of any tenancy, lease or option, nor an
assumption of liability under, nor subordination of the lien or charge of this Deed of Trust
to, any such tenancy, lease or option.
30. If the security of this Deed of Trust is a leasehold estate, the Trustor
agrees that: (a) the term "Lease" as used herein shall mean the lease creating the
leasehold estate (b) Trustor shall not amend, change or modify his leasehold interest,
or the Lease, or agree to do so, without the written consent of the Beneficiary; (c) Trustor
will promptly advise Beneficiary regarding any notice, request or demand received by him
from the lessor under the Lease and promptly furnish Beneficiary with a copy of any such
notice, request or demand; (d) as long as any of the indebtedness secured hereby shall
remain unpaid, unless the Beneficiary shall otherwise consent thereto in writing, the
leasehold estate shall not merge with the fee title but shall always be kept separate and
distinct, notwithstanding the union of said estates in any party; (e) Trustor agrees that it
will promptly, strictly, and faithfully perform, fulfill, and comply with all covenants,
agreements, terms, conditions and provisions under any lease affecting the premises
and to neither do anything, nor to permit anything to be done which may cause
22-11508/288311 16
modification or termination of any such lease or of the obligations of any lessee or person
claiming through such lease or the rents provided for therein or the interest of the lessor
or the Beneficiary therein or thereunder. Trustor further agrees he will not execute a
Deed of Trust or mortgage which may be or become superior to any leasehold estate
that is security for this Deed of Trust. In the event of a violation of any of the covenants
set forth in this paragraph, Beneficiary shall have the right, at its option, to declare all
sums secured hereby immediately due and payable. Consent to or waiver of one of said
violations shall not be deemed to be a consent to or waiver of any other violation. If the
security for this Deed of Trust is a leasehold estate, the term "property" as used in this
Deed of Trust shall be deemed to mean the leasehold estate whenever the context so
requires for the protection of the Beneficiary.
31. Trustor waives, to the fullest extent permissible by law, the right to plead
any statute of limitations as a defense to any demand secured hereby.
32. Beneficiary may, from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed and acknowledged by Beneficiary and recorded in the office of the
recorder of the county or counties where the Property is situated, shall be conclusive
proof of property substitution of such successor Trustee or Trustees, who shall, without
conveyances from the Trustee predecessor, succeed to all its title, estate, rights, powers
and duties, including but not limited to the power to reconvey the whole or any part of the
property covered by this Deed of Trust. Such instrument must contain the name of the
original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed
of Trust is recorded. If notice of default shall have been recorded, this power of
substitution cannot be exercised until after the costs, fees and expenses of the then
acting Trustee shall have been paid to such Trustee, who shall endorse receipt thereof
upon such instrument. The procedures herein provided for substitution of Trustee shall
not be exclusive of other provisions for substitution provided by law.
33. This Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors, successors and
assigns. The term "Beneficiary" shall mean the owner and holder, including pledgee, of
the Note secured hereby, whether or not names as Beneficiary herein. In this Deed of
Trust, whenever the context so requires, the masculine gender includes the feminine
and/or neuter, and the singular number includes the plural.
34. That in the event of a demand for, and the preparation and delivery of a
written statement regarding the obligations secured by this Deed of Trust pursuant to
Sections 2943 and 2954 of the Civil Code of California, Beneficiary shall be entitled to
make a reasonable charge, not exceeding the maximum amount which is permitted by
law at the time the statement is furnished. Beneficiary may also charge Trustor a
reasonable fee for any other services rendered to Trustor or rendered in Trustor's behalf
in connection with the Property of this Deed of Trust, including changing Beneficiary's
records, pertaining to this Deed of Trust in connection with the transfer of the Property, or
22-11508/288311 17
releasing an existing policy of fire insurance or other casualty insurance held by
Beneficiary and replacing the same with another such policy.
35. Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not obligated to
notify any party hereto of pending sale under any other Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by
Trustee.
36. Any notice which any party hereto may desire or be required to give to
the other party shall be in writing. The mailing thereof must be certified mail addressed
to the Trustor at his address hereinabove set forth or to the Beneficiary at his office or at
such other place as such parties hereto may designate in writing.
THE UNDERSIGNED TRUSTOR REQUESTS that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at his address hereinbefore
set forth.
22-11508/288311 18
TRUSTOR
Dated: By:
HOUSING AUTHORITY OF THE CITY OF
HUNTINGTON BEACH
Dated: BY:
Deputy Director of Community Development
CITY OF HUNTINGTON BEACH
By:
Dated: Deputy Director of Community Development
APPROVED AS TO FORM:
By:
City Attorney
22-11508/288311 19
EXHIBIT A
Legal Description
22-11508/288311 20
EXHIBIT D
TO DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
(Density Bonus and Affordable Housing Agreement Release Agreement)
22-11508/288280
-1 7-
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Unit Release is recorded at the request and for the benefit of
the City of Huntington Beach and is exempt from the payment
of a recording fee pursuant to Government Code Sections 6103
27383.
RELEASE OF DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
This RELEASE (the "Release") is being entered into by and between the CITY OF
HUNTINGTON BEACH, a California municipal corporation (the "City"), and THE
OLSON COMPANY, LLC, a California limited liability company (the "Owner"). City
and Owner are hereinafter sometimes referred to collectively as the "Parties" and
individually as a "Party."
RECITALS:
A. City is a municipal corporation and charter city organized and existing
pursuant to the Constitution and laws of the State of California.
B. Owner and/or its successors and assigns is the owner in fee of that
certain real property located at 8375 Talbert Avenue, Huntington Beach, and more
particularly described in the legal description attached hereto as Exhibit "A" (the
"Property").
C. On or about , 2022, Owner and City entered into that certain
Density Bonus and Affordable Housing Agreement (the "Affordable Housing
Agreement") relating to the Property, recorded on , 2022, as Instrument
No. of the Official Records for Orange County, California. Pursuant to the
Agreement, Owner has developed the Property as an thirty-four (34) unit residential
community to be subdivided as a condominium development. Further, the Owner
agreed to include in the Project three (3) units that will be sold at an Affordable Housing
Cost to Low (one unit) and Moderate Income (two units) Households, consisting of three
(3), three-bedroom units, with the remaining units to be sold at market prices.
D. Pursuant to the Affordable Housing Agreement, when the Owner has sold
all of the Affordable Units on the Property pursuant to the terms and conditions of the
Affordable Housing Agreement, Owner and City may execute and record or cause to be
executed and recorded for the benefit of Owner and/or its successors and assigns
this Release, whereupon the Property would be released from the terms and
conditions of the Affordable Housing Agreement.
22-11508/286733 -1-
COVENANTS:
Based upon the foregoing Recitals, which are incorporated herein by this
reference, and for good and valuable consideration, the receipt and sufficiency of
which is acknowledged by both parties, Owner and City agree as follows:
1. From and after the date that this Release is recorded, the Property shall
be released from, not be burdened by any of the provisions of the Affordable Housing
Agreement.
2. Nothing in this Release terminates or releases, or shall be deemed or
construed to terminate or release, the Affordable Housing Covenant recorded against
each Affordable Unit owned in fee by a Qualified Purchaser or said Qualified
Purchaser's successor in interest or assignee.
3. This Release shall not constitute evidence of compliance with or
satisfaction of any obligation of Owner to any holder of a mortgage, or any insurer of
a mortgage, securing money loaned to finance the construction or operation of work
on Property, or any part thereof.
4. No later than ten (10) days after receipt by Owner of a conformed copy
of the executed Release from the Orange County Recorder's Office, Owner shall
deliver a copy of said conformed copy to City at the address identified in the
Affordable Housing Agreement for delivery of notices.
IN WITNESS WHEREOF, City has executed this Release as of this day of.,
CITY OF HUNTINGTON BEACH,
a California municipal corporation
By:
Its:
ATTEST:
City Clerk
APPROVED AS TO FORM:
OFFICE OF HUNTINGTON BEACH
CITY ATTORNEY
MICHAEL E. GATES, City Attorney W, Dated: , 20_
22-11508/286733 -2-
ATTACHMENT 1 TO UNIT RELEASE
LEGAL DESCRIPTION OF RELEASED UNIT(S)
22-11508/286733 -3-
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On ,before me, , Notary Publi
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Notary Public
22-11508/286733 -4-
EXHIBIT E
TO DENSITY BONUS AND AFFORDABLE HOUSING AGREEMENT
FOR 8375 TALBERT AVENUE,HUNTINGTON BEACH
jUnit Release Agreement)
22-11508/288280
-18-
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn:
(Space Above For Recorder's Use)
UNIT RELEASE AGREEMENT
This Unit Release Agreement ("Release") is entered into as of , 202_, by and
between the CITY OF HUNTINGTON BEACH, a California municipal corporation (the "City"), and
OLSON URBAN V—HUNTINGTON BEACH 4, LLC, a Delaware limited liability company (the
"Owner") (City and Owner are hereinafter referred to collectively as the "Parties").
RECITALS
A. City and Owner have entered into a Density Bonus and Affordable Housing
Agreement for 8375 Talbert Avenue, Huntington Beach, dated , 2022 (the
"Agreement"), which was recorded in the official records of Orange County on ,
2022, as Document No.
B. The Agreement requires Owner to develop a thirty-four unit condominium residential
community (the "Project") on certain real property located at 8375 Talbert Avenue, Huntington
Beach, California, as described in the Agreement (the "Property"). The Agreement requires that three
condominium units in the Project (the "Affordable Units") be sold at an Affordable Housing Cost to
Low Income Households and Moderate Income Households (as those terms are defined in the
Agreement). The other thirty-one condominium units in the Project may be sold at a market rate
purchase price without any maximum income requirements as to the purchasers (the "Market Rate
Units").
C. The Agreement provides that City will sign and record a release of the Agreement as
to the Market Rate Units, at the request of Owner.
D. In order to facilitate the sale of completed Market Rate Units to homebuyers, Owner
has requested that the Agreement be released with respect to the following Market Rate Unit(s):
(the "Released Parcel(s)").
E. The Parties desire to memorialize the release of the Agreement from the Released
Parcel(s).
NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by
this reference, and of the mutual covenants hereinafter contained and for other good and valuable
22-11508/288280
-19-
consideration, the receipt and sufficiency of which is hereby acknowledged, City and Owner agree as
follows:
1. Release. From and after the date that this Release is recorded, the Agreement is
hereby released as to the Released Parcel(s), and no portion of the Released Parcel(s) shall thereafter
be bound or burdened by the Agreement.
2. No Release of Remainder of Property. Nothing in this Release terminates or
releases, or shall be deemed or construed to terminate or release, any portion of the Property or
Project other than the Released Parcel from the Agreement, which shall remain in effect in
accordance with its terms.
IN WITNESS WHEREOF, City and Owner have executed this Release as of the date set
forth in the preamble above.
CITY:
CITY OF HUNTINGTON BEACH, a California
municipal corporation
By:
City Manager
ATTEST APPROVED AS TO FORM:
City Clerk City Attorney Qv
22-11508/288280
-20-
OWNER:
OLSON URBAN V —HUNTINGTON BEACH 4,
LLC, a Delaware limited liability company
By:
Its: Sole Member
By:
Olson Urban Ventures, LLC
a Delaware limited liability company
Its: Sole Member
By:
Olson Urban Housing, LLC
a Delaware limited liability company
Its: Operating Member
By:
In Town Living, Inc.
a Delaware corporation
Its: Managing Member
22-11508/288280
-21-
City of Huntington Beach
2000 Main Street ♦ Huntington Beach, CA 92648
(714) 536-5227 ♦ www.huntingtonbeachca.gov
"e Office of the City Clerk
Robin Estanislau, City Clerk
October 24, 2022
Mr. John Reekstin
Senior Vice-President/Community Development
The Olson Company
3010 Old Ranch Parkway, Suite 100
Seal Beach, CA 90740-2751
Dear Mr. Reekstin:
Enclosed is a fully executed, recorded copy of the Density Bonus and Affordable
Housing Agreement for 8375 Talbert Avenue, Huntington Beach by and Between City
of Huntington Beach, a California Municipal Corporation and Olson Urban V—
Huntington Beach 4, LLC, a Delaware Limited Liability Corporation, approved by City
Council on September 6, 2022.
Sincerely,
4�� �&�aa'ea�
Robin Estanislau, CIVIC
City Clerk
RE:ds
Enclosure
Sister City. Anjo, Japan