2011 Habitat for Humanity of the Coachella Valley, Inc. - Amendment No. 1AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT
by and between
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic,
-T e7
HABITAT FOR HUMANITY OF THE COACHELLA VALLEY, INC.
a California nonprofit public benefit corporation
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AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT
This AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT
("Amendment") is entered into as of February 1 , 2011 (the "Effective Date"), by
and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic (the "Agency"), and HABITAT FOR HUMANITY OF THE COACHELLA
VALLEY, INC., a California nonprofit public benefit corporation (the "Developer").
The Agency and the Developer (collectively referred to as the "Parties") hereby
agree as follows:
SUBJECT OF AMENDMENT
A. Purpose of Amendment
On August 23, 2010, the Agency and the Developer entered into an
Affordable Housing Agreement ("Agreement"). The purpose of the Agreement is to
provide financial assistance for the development of two single-family homes within
Project Area No. 1 that will be sold to, and occupied by, persons or families that
meet the income qualifications for either a "lower -income household" or a "very
low-income household" as defined in Section IV.A.2.(c) of the Agreement. The
income restrictions on the homes are for a period of 45 years, as more fully
described in the Agreement. The homes that are the subject of the Agreement are
referred to hereinafter as Homes 1 and 2. The purpose of this Amendment is to
provide a similar funding structure for the construction of five additional single-
family homes (Homes 3 through 7, inclusive), to be built over the five-year period
commencing on July 1, 2013, and ending on June 30, 2018, in Project Area No. 1.
Homes 3 and 4 would be built on parcels that Developer currently owns within
Project Area No. 1. The parcels are as follows: (1) 53595 Avenida Vallejo (APN
774-122-017); and (2) 53380 Avenida Vallejo (APN 774 083 007). The other
three parcels needed for Homes 5, 6 and 7 will be acquired by the Developer.
B. Overall Concept
The overall concept of this Amendment is that Homes 3 thought 7, inclusive,
will be constructed in the same manner and with the same general level of
assistance as Homes 1 and 2, which are the subject of the Agreement. Homes 3
and 4 will be built on Developer's two parcels during the Fiscal Years 2013-2015.
Developer will acquire one parcel in Project Area No. 1 and will build Home 5 in
Fiscal Year 2015-2016. During the Fiscal Years 2016-2018, Developer will acquire
the final two parcels and construct Homes 6 and 7. The Executive Director shall
have the authority, with the consent of the Developer, to make minor modifications
to this schedule, and to extend the term of this Amendment for up to six (6)
months if necessary to complete the construction of Homes 3 through 7. The
Executive Director shall also have the authority to authorize the construction of
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more than one home at one time if the Agency has the funding available for the
second home construction.
II. AGENCY FINANCIAL ASSISTANCE
A. Amount and Purpose of Assistance
In order to facilitate the construction of Homes 3 through 7, inclusive,
including the acquisition of the three additional parcels, Agency shall provide
financing in an amount not to exceed a total of $1,100,000 for the construction of
Homes 3 through 7 by Developer (the "Additional Agency Financial Assistance")
pursuant to the terms of this Agreement. The parties agree and acknowledge that
the sole source of Agency funding for the implementation of this Amendment shall
be the Agency's 20% set aside in the Agency's Low and Moderate Income
Housing Fund. The allocation of the Additional Agency Financial Assistance as
between the five new homes to be constructed will not exceed the following:
Home 3 -53595 Avenida Vallejo $220,000
Home 4 - 53380 Avenida Vallejo $220,000
Home 5 — site not yet identified $220,000
Home 6 — site not yet identified $220,000
Home 7 — site note yet identified $220,000
TOTAL $1,100,000
At the discretion of the Executive Director, and with the concurrence of the
Developer, unexpended funds may be used to construct additional affordable
homes subject to the terms and conditions of this Amendment and the Agreement.
The Additional Agency Financial Assistance shall be evidenced by a promissory
note substantially in the form attached to the Agreement as Attachment No. 3 (the
"Promissory Note"). Repayment of the Promissory Note shall be secured by a deed
of trust substantially in the form of the Deed of Trust (Attachment No. 4) attached
to the Agreement.
Upon the Developer's sale of each of Homes 3 through 7, inclusive, to an Eligible
Household, and the Eligible Household's execution of a complete set of "Buyer
Affordable Housing Documents" (as that term is defined in Section ILD of the
Agreement), fifty percent (50%) of the Additional Agency Financial Assistance that
has been disbursed to Developer for development of that Home shall be credited to
Developer and deemed transferred to the Eligible Household purchasing said Home.
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B. Conditions Precedent to the Agency Funding of the Additional Agency
Financial Assistance
Prior to and as Agency's conditions to funding any portion of the Additional
Agency Financial Assistance, the Developer shall complete all of the conditions
contained in Section II.B. of the Agreement, with the conditions relating to the
applicable of Homes 3 though 7 rather than the two homes that were the subject
of the Agreement.
C. Disbursement Procedure
Prior to the disbursement of any Additional Agency Financial Assistance
Developer shall prepare and submit for the Executive Director's approval a schedule
of "Source and Use of Funds" for the Home(s) then purposed to be constructed.
The Source and Use of Funds will be formatted substantially in conformance with
Attachment 8 to the Agreement. The Agency will provide payments to Developer
to reimburse Developer for costs Developer incurs to construct Homes 3 though 7,
inclusive, provided such costs are described in the Source and Use of Funds
approved by the Executive Director. To request a disbursement from the Agency,
Developer shall submit to Agency itemized statements, with the supporting
information outlined below and any other such supporting information as Agency
may reasonably require, documenting the expenses incurred by Developer.
In connection with any request for a disbursement of Additional Agency
Financial Assistance, Developer shall present to Agency's Executive Director or
designee the following information:
1. An invoice, contract, or similar documentation verifying the
costs incurred by Developer and that the costs were incurred in
accordance with the terms of this Amendment and the
approved Source and Use of Funds;
2. Appropriate conditional or unconditional lien releases and
waivers, including for mechanic's liens, materialman's liens,
stop notice claims, and equitable lien claims, with said lien
releases and waivers to be in a form reasonably required by
Agency's Executive Director and in conformance with the
requirements of California Civil Code Section 3262; and
3. Any other documentation or evidence that may be reasonably
required by Agency.
In the event Agency's Executive Director or designee determines that
insufficient supporting documentation has been submitted with the reimbursement
request or that the request will not be approved, Agency shall promptly notify
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Developer and the parties shall promptly meet and confer in good faith in an effort
to resolve the dispute. Payment of a disbursement shall be made by Agency to
Developer within twenty-one (21) days after Agency has approved a payment
request. Notwithstanding the foregoing, Developer shall not request more than one
(1) disbursement per calendar month.
Notwithstanding anything herein to the contrary, Developer shall diligently
pursue potential sources of funding for the construction of Homes 3 though 7,
inclusive, that are in addition to those set forth in the "Source" section of the
approved Source and Use of Funds. In the event Developer obtains funds or
obtains a commitment for funds that are in addition to those set forth in the
"Source" section of the Source and Use of Funds, the amount of the Agency
Financial Assistance shall be reduced, on a dollar -by -dollar basis, by the amount of
such additional funds.
D. Buyer Affordable Housing Documents
In connection with the purchase of Homes 3 through 7 by an Eligible
Household, the Eligible Household will be required to execute all of the documents
set forth in Section II.D. of the Agreement, as modified to relate to Homes 3
through 7, as opposed to Homes 1 and 2.
E. Source of Funds
The Additional Agency Financial Assistance will be funded from the
Agency's Low and Moderate Income Housing Fund. Accordingly, Developer
acknowledges and agrees that the use of Homes 3 though 7, inclusive, shall be
subject to all of the income and affordability restrictions set forth in the Agreement,
and a Declaration of Covenants, Conditions and Restrictions substantially in the
form attached to the Agreement as Attachment No. 5, but with the adjustments
necessary to have that document apply to Homes 3 though 7, inclusive.
III. DEVELOPMENT OF THE PROJECT
A. Scope of Development
For Homes 3 through 7, Developer shall submit for the Executive Director's
approval a Scope of Development comparable to Attachment No. 1 to the
Agreement. Developer shall include construction of all on- and off -site public
improvements required by the City in connection with the development of the
specific home at issue. Once approved by the Executive Director, the Developer
shall construct the specific Home(s) at issue in accordance with the Scope of
Development.
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For Homes 3 though 7, the Developer shall submit for the Executive
Director's approval a Schedule of Performance comparable to Attachment No. 2 to
the Agreement. Once approved, Developer shall commence and complete
construction of the specific Homes at issue by the respective times established
therefore in the Schedule of Performance (Attachment No. 2).
The Scope of Development shall be deemed to include any plans and
specifications submitted to the City and/or Agency for approval, and shall
incorporate or show compliance with all mitigation measures.
B. Site Plan
By the time set forth therefor in the approved Schedule of Performance, the
Developer shall prepare and submit to the City for its approval a Site Plan and
related documents that conform to the requirements of the City and contain the
overall plan for development of the Home to be built in sufficient detail to enable
the City to evaluate the proposal for conformity to the requirements of the La
Quinta Municipal Code, the Agreement and this Amendment.
The landscaping and finish grading plans shall be prepared by a professional
landscape architect or registered civil engineer who may be the same firm as the
Developer's architect or civil engineer.
During the preparation of all drawings and plans, staff of the City and the
Agency and the Developer shall hold regular progress meetings to coordinate the
preparation of, submission to, and review of drawings, plans and related
documents by the City. The staff of City and the Agency and the Developer shall
communicate and consult informally as frequently as is necessary to insure that the
formal submittal of any documents to the Agency can receive prompt and speedy
consideration.
C. Review and Approval of Plans Drawings and Related Documents
The parties' rights and obligations regarding the approval of the plans,
drawings, and related documents relating to Homes 3 through 7, inclusive, shall be
as set forth in Section III.C. of the Agreement.
D. Cost of Development
With the exception of the Additional Agency Financial Assistance the
Agency has agreed to provide Developer hereunder, all costs for planning,
designing, and constructing Homes 3 though 7, inclusive, shall be borne exclusively
by the Developer. The Developer shall also bear all costs related to discharging the
duties of the Developer set forth in this Amendment and in the applicable portions
of the Agreement. The Developer assumes the responsibility to construct, and
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shall let contracts for or cause to be constructed, all off -site public improvements
developed pursuant to this Amendment, substantially in conformity with
procedures used by the Agency when competitive bidding is deemed to be
required. The Developer shall be responsible for all fees associated with
development of Homes 3 though 7, including, but not limited to, school facilities
fees, park fees, and impact fees. Developer shall make every attempt to use local
contractors and suppliers of material.
E. Construction Schedule
The Developer shall commence and complete the construction of Homes 3
though 7 by the respective times established therefor in the approved Schedule of
Performance.
F. Indemnity
The Developer's indemnification obligations shall be those set forth in
Section III.F. of the Agreement, with the "Last Home" being Home No. 7.
G. Additional Sections of Agreement Applicable to Construction.
The provisions of the Agreement set forth in Section III, Section G, though
III, Section N, shall apply to the construction of Homes 3 though 7.
IV. USE OF THE SITE
The use of the Homes 3 though 7, inclusive, shall be governed by Section IV
of the Agreement.
V. DEFAULTS AND REMEDIES
The parties agree that the default and remedy provisions of the Agreement
set forth in Section V shall apply to defaults and remedies relating to Homes 3
though 7.
VI. GENERAL PROVISIONS
The parties agree that the General Provisions contained in Section VI. of the
Agreement shall apply with equal force to the parties carrying out this Amendment.
[End of Agreement - Signature Page follows]
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IN WITNESS WHEREOF, the Agency and the Developer have signed this
Amendment on the respective dates set forth below.
Dated:
T. -
Veronica J. ntecino,
Agency Se retary
APPROVED AS TO FORM:
R A & TUCK LLP
M. Katherine Jens916ency Counsel
Dated:a lap !
Dated: . I
LA QUINTA REDEVELOPMENT
AGENCY, a public body corporate and
politye--°'1
BY: d 4�
Thomas P. Genovese,
Executive Director
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California
nonprofit public benefit corporation
a
By:
Its:yyrczt}1� 2e�Jt
By:
Its:
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1' AUG 30(UI1 iJ
RECORDING REQU T i,AykND 1
WHEN RECORDED MAIL TO-_ ---
La Quinta Redevelopment Agency
P.O. Box 1504
La Quinta, CA 92247
Attn: Executive Director
DOC # 2011-0364931
08/18/2011 22:22P Fee:NC
Page 1 of 6
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
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Exempt from Recordation Fee per Gov. Code § 27383
AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT AND
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS �62
This AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT AND
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (this
"Amendment No. 1") is made by and between HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California nonprofit public benefit corporation (the
"Developer") and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic (the "Agency") as of the 3 1*4 day of August, 2011.
RECITALS
A. Developer and Agency are parties to that certain Affordable Housing Agreement
and Declaration of Covenants, Conditions and Restrictions dated August 23, 2010, and recorded
in the Official Records of the County of Riverside on August 30, 2010, as Instrument No. 2010-
0414647 (the "Declaration"). Unless otherwise defined herein, terms used in this Amendment
No. 1 shall have the meanings ascribed thereto in the Declaration.
B. The Declaration was executed pursuant to an Affordable Housing Agreement
entered into by and between Developer and Agency and dated August 23, 2010, which was later
amended by that certain Amendment No. 1 to Affordable Housing Agreement dated February 1,
2011 (as amended, the "Original AHA"). The Original AHA provides for Developer's
construction on the real property encumbered by the Declaration of an affordable housing project
referred to in the Declaration as the "Project".
C. Pursuant to the Original AHA, (i) the Agency agreed to provide Developer with a
loan in the amount of One Hundred Seventy -Four Thousand Nine Hundred Forty Dollars
($174,940) (the "Original Agency Loan Amount") to construct the Project, and (ii) upon the
Developer's sale of each Home to an Eligible Household at an Affordable Sales Price and said
Eligible Household's execution of a complete set of Buyer Affordable Housing Documents, fifty
percent (50%) of the outstanding principle balance of the Original Agency Loan Amount was to
be credited to the Developer and deemed transferred to said Eligible Household, in the form of a
first trust deed loan.
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D. On or about August 3 , 2011, Agency and Developer entered into that certain
Amendment No. 2 to Affordable Housing Agreement ("Amendment No. 2 to AHA"), pursuant
to which Agency agreed to increase the amount of the Agency's financial assistance to
Developer by Five Thousand One Hundred Dollars ($5,100) (the "Additional Agency Financial
Assistance").
E. Agency and Developer now wish to amend the Declaration to provide that, upon
the transfer of the two Homes to Eligible Households, the Additional Agency Financial
—Assistance shall be credited to the Developer and transferred to said Eligible Households, all as
more fully described herein.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by this reference, and for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Agency and Developer hereby agree as follows:
1. The Declaration is hereby amended as follows:
A. As used in this Amendment No. 1 and in the Declaration, the tern
"Agency Loan" shall mean and refer to the sum of the Original Agency Loan Amount and the
Additional Agency Financial Assistance.
B. Upon Developer's sale of the Home to be constructed at 53220 Avenida
Alvarado to an Eligible Household at an Affordable Sales Price and the Eligible Household's
execution of a complete set of Buyer Affordable Housing Documents, Ninety Thousand Three
Hundred Seventy Dollars ($90,370) of the Agency Loan shall be credited to the Developer and
deemed transferred to said Eligible Household, in the form of a first trust deed loan. Upon
Developer's sale of the Home to be constructed at 53240 Avenida Alvarado to an Eligible
Household at an Affordable Sales Price and the Eligible Household's execution of a complete set
of Buyer Affordable Housing Documents, Eighty -Nine Thousand Six Hundred Seventy Dollars
($89,670) of the Agency Loan shall be credited to the Developer and deemed transferred to said
Eligible Household, in the form of a first trust deed loan. As used in the Declaration, the term
"Homebuyer Loan" shall refer to the portion of the Agency Loan transferred to the Eligible
Buyer in question pursuant to this paragraph.
2. In the event of any action between Agency and Developer seeking enforcement of
any of the terns and conditions to this Amendment No. 1, the prevailing party in such action
shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and
expenses, including without limitation its expert witness fees and reasonable attorney's fees.
3. This Amendment No. 1 shall be construed according to its fair meaning and as if
prepared by both parties hereto.
4. This Amendment No. 1 shall be governed by the internal laws of the State of
California and any question arising hereunder shall be construed or determined according to such
law. The Superior Court of the State of California in and for the County of Riverside, or such
other appropriate court in such county, shall have exclusive jurisdiction of any litigation between
the parties concerning this Amendment No. 1. Service of process on Agency shall be made in
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accordance with California law. Service of process on Developer shall be made in any manner
permitted by California law and shall be effective whether served inside or outside California.
5. Time is of the essence of this Amendment No. 1 and of each and every term and
provision hereof.
6. A waiver of a provision hereof, or modification of any provision herein contained,
shall be effective only if said waiver or modification is in writing, and signed by both Agency
and Developer. No waiver of any breach or default by any party hereto shall be considered to be
a waiver of any breach or default unless expressly provided herein or in the waiver.
7. This Amendment No. 1 may be executed in counterparts, each of which, when
this Amendment No. 1 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
8. The person(s) executing this Amendment No. 1 on behalf of each of the parties
hereto represent and warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so
executing this Amendment No. 1 such party is formally bound to the provisions of this
Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any
provision of any other agreement to which such party is bound.
9. Except as otherwise expressly provided in this Amendment No. 1, all of the terms
and conditions of the Declaration shall remain in full force and effect.
[End — Signature page follows]
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IN WITNESS WHEREOF, the Agency and Developer have caused this instrument to be
executed on their behalf of their respective officers hereunto duly authorized as of the date set
forth above.
Dated 3 2011
ATTEST: �/� �, , 0^
- kZ , r "7"i7�" '
Agency Secretary
APPROVED AS TO FORM
RUTAN & T C R, LLP
--
o eys for the
La Q inta Redevelol0ent Agency
Dated %/ 2 , 2011
Dated 7174 2011
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a pu ' bo y, corpo��nd tic
B:/
Its: Executive Director THOMAs GE9ov/E5E
"Developer"
HABITAT FOR HUMANITY OF THE
COACHELLA VALLEY, INC., a California
nonprofit public benefit corporation
By:
ATRIC 5WAB-f0ouT
Its:
SAL'CF-ig VAf4 W(NKLE
Its: C/ZETi9�
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State of California )
1
County of Riverside )
On August 3, 2011, before me, SUSAN MAYSELS, Notary Public, personally
appeared THOMAS P. GENOVESE 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 PE
California that the foregoing parag
WITNESS my hand and official seal.
Signature
DOCUMENT:
AMENDMENT NO. 1 TO AFFORDABI
DECLARATION OF COVENANTS, CC
between LQ Redevelopment Agency
Coachella Valley, Inc.
RY under the laws of the State of
is true and correct.
SUSAN MAYSELS
comm.018W79
Nor RLSTM 0
0amiu0=Affl 213
(seal)
HOUSING AGREEMENT AND
IDITIONS AND RESTRICTIONS
nd Habitat for Humanity of the
State of California
County of Riverside
On %o�d° �� ,before me, P AM n►e-+0 ,
II"- (insert Pnao o2e
CNotary Public, personally appeared rt o �cer)
IV/0.r�l�kl e
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.
PAMELA RIETO
Commbsion a 1"""
No"PuMk • CWDMIS
Signature
RWerside Cm"
My Comm. Expires May 2, 2016
(Seal)
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