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12-145 Predevelopment Grant Agreement (Cleo Avenue) Habitat for Humanity Silicon Valley $c.2 60- fo j — 6 ) ° i)o1 s 7o ? 7 PREDEVELOPMENT GRANT AGREEMENT (CLEO AVENUE HOMEOWNERSHIP DEVELOPMENT) Between City of Cupertino and Habitat for Humanity Silicon Valley 394\09\1041666.4 • • TABLE OF CONTENTS Page ARTICLE 1. DEFINITIONS AND EXHIBITS 2 Section 1.1 Definitions 2 Section 1.2 Exhibits. 3 ARTICLE 2. GRANT PROVISIONS 4 Section 2.1 Grant. 4 Section 2.2 Amount of Grant. 4 Section 2.3 Use of Grant Funds. 4 Section 2.4 Affordability Covenants 4 Section 2.5 Conditions Precedent to Disbursement for Predevelopment. 4 Section 2.6 Reports. 4 Section 2.7 Predevelopment Tasks and Schedule 5 Section 2.8 CDBG Requirements. 5 Section 2.9 Hazardous Materials. 6 Section 2.10 Maintenance and Damage 8 Section 2.11 Fees and Taxes. 9 Section 2.12 Notice of Litigation. 9 Section 2.13 Transfer. 9 Section 2.14 Non-Discrimination. 10 Section 2.15 Mandatory Language in All Subsequent Deeds, Leases and Contracts. 10 Section 2.16 Insurance Requirements. 11 Section 2.17 Representations and Warranties of Habitat 12 ARTICLE 3. AFFORDABILITY COVENANTS 14 Section 3.1 Requirements. 14 ARTICLE 4. DEFAULT AND REMEDIES 14 Section 4.1 Events of Default. 14 Section 4.2 Remedies 15 Section 4.3 Right of Contest. 15 Section 4.4 Remedies Cumulative. 15 ARTICLE 5. GENERAL PROVISIONS 16 Section 5.1 Relationship of Parties. 16 Section 5.2 No Claims. 16 Section 5.3 Amendments. 16 Section 5.4 Indemnification. 16 Section 5.5 Non-Liability of City Officials, Employees and Agents. 17 Section 5.6 No Third Party Beneficiaries. 17 394\09\1041666.4 TABLE OF CONTENTS Page Section 5.7 Discretion Retained By City. 17 Section 5.8 Conflict of Interest. 17 Section 5.9 Notices, Demands and Communications. 17 Section 5.10 Applicable Law. 18 Section 5.11 Parties Bound. 18 Section 5.12 Attorneys' Fees 18 Section 5.13 Severability. 18 Section 5.14 Force Majeure. 18 Section 5.15 City Approval 19 Section 5.16 Waivers. 19 Section 5.17 Title of Parts and Sections. . 19 Section 5.18 Entire Understanding of the Parties. 19 Section 5.19 Multiple Originals; Counterpart 19 EXHIBIT A: Legal Description of the Property EXHIBIT B: Predevelopment Budget EXHIBIT C: Predevelopment Tasks and Schedule ii 394\09\1041666.4 PREDEVELOPMENT GRANT AGREEMENT (CLEO AVENUE HOMEOWNERSHIP DEVELOPMENT) p-1"- _5-"? '?°7 4-P/C This Predevelopment Grant Agreement (the "Agreement") is entered into as of April 2012 by and between the City of Cupertino, a municipal corporation(the "City"), and Habitat for Humanity Silicon Valley, a California nonprofit public benefit corporation ("Habitat"), with reference to the following facts: RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The Parties intend to refer to those definitions in conjunction with the use of capitalized terms in these Recitals. B. The City has received funds from the United States Department of Housing and Urban Development ("HUD") under Title I of the Housing and Community Development Act of 1974, as amended ("CDBG Funds"). Such CDBG Funds must be used by the City in accordance with 24 CFR 570 et seq. C. Habitat desires to develop four(4) single family homes, affordable to low income homebuyers (the "Improvements"), on that certain real property located at 20624, 20626, 20628 and 20630 Cleo Avenue, City of Cupertino, California, as more particularly described in Exhibit A attached hereto and incorporated herein(the "Property"). Collectively, the Improvements and the Property shall be referred to as the "Development". D. Habitat wishes to receive a grant from the City and City wishes to extend to Habitat a grant in the amount of Two Hundred Fifty Thousand Nine Hundred Thirty Two Dollars ($250,932),to pay for certain predevelopment activities in connection with the development and construction of the Development (the "Grant"). The Grant will be evidenced by this Agreement and the Affordability Covenants. E. All of the Units in the Development will be sold to Eligible Purchasers. The City and Habitat intend to record Affordability Covenants against the Property ensuring that the Units be sold at affordable housing cost to Eligible Purchasers. The Affordability Covenants will remain as an encumbrance on the Property during construction of the Development. F. Until certain predevelopment activities are completed for the Development, which activities are to be funded with a portion of the Grant, it is not possible to provide meaningful information for environmental assessment of the Development in accordance with the provisions of the California Environmental Quality Act, as amended ("CEQA") and the National Environmental Policy Act, as amended ("NEPA"). It is the intention of the Parties to use the proceeds of the Grant to prepare the necessary environmental assessment under CEQA and NEPA prior to the discretionary actions of the City that would authorize and enable Habitat to proceed with the Development. 394\09\1041666.4 1 NOW, THEREFORE, in consideration of the recitals hereof, and other mutual covenants and promises contained herein and for other valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1. DEFINITIONS AND EXHIBITS Section 1.1 Definitions. The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided. (a) "Affiliate" shall have the meaning set forth in Section 2.13(c) below. (b) "Affordability Covenants" shall mean the Declaration of Affordability Covenants between the City and Habitat to be recorded against the Property concurrently herewith, requiring Habitat to sell the Units in the Development to Eligible Purchasers. (c) "Agreement" shall mean this Predevelopment Grant Agreement. (d) "CEQA" shall mean the California Environmental Quality Act(California Public Resources Code Section 21000 et seq.), and its implementing guidelines. (e) "City" shall mean the City of Cupertino, a municipal corporation. (f) "City Grant" or "Grant" shall mean the City Grant to Habitat pursuant to this Agreement in the principal amount of Two Hundred Fifty Thousand Nine Hundred Thirty-Two Dollars ($250,932). (g) "County" shall mean the Santa Clara County, a political subdivision of the State of California. (h) "Default" shall have the meaning set forth in Section 4.1 below. (i) "Development" shall mean the Property and the four (4) single-family homes and ancillary on-site improvements. (j) "Eligible Purchaser" shall mean a household that meets the income requirements set forth in the Affordability Covenants, to whom Habitat shall sell a Unit in the Development. (k) "Grant Documents" shall mean this Agreement and the Affordability Covenants. (1) "Habitat" shall mean Habitat for Humanity Silicon Valley, a California nonprofit public benefit corporation. (m) "Hazardous Materials Claim" shall have the meaning set forth in Section 2.9 below. (n) "Hazardous Materials Law" shall have the meaning set forth in Section 2.9 below. 394\09\1041666.4 2 7 (o) "Hazardous Materials" shall have the meaning set forth in Section 2.9 below. (p) "Homebuyer Disclosure Statement" shall mean the disclosure statement in a form to be provided by the City, to be executed and delivered to the City by an Eligible Purchaser. (q) "Homebuyer Resale Restriction" means the Resale Restriction and Option to Purchase Agreement between the Eligible Purchaser and the City in a form to be provided by the City, which places restrictions on the resale of the Units to Eligible Purchasers at specified eligible purchase prices, and which provides mechanisms to enforce such restrictions. The Homebuyer Resale Restriction will be recorded against each Unit at the time of conveyance to an Eligible Purchaser. (r) "HUD" shall mean the United States Department of Housing and Urban Development. (s) "Improvements" shall have the meaning set forth in Recital D. (t) "Parties" shall mean the City and Habitat. (u) "Predevelopment Budget" shall mean the predevelopment budget which will set forth the proposed uses of the Grant proceeds, attached hereto as Exhibit B. (v) "Property" shall mean the real property located in the Santa Clara County, California, more particularly described in the attached Exhibit A. (w) "Term" shall mean the term of this Agreement which shall commence on the date of this Agreement and continue until the earlier of the date that the last Unit is sold to an Eligible Purchaser or December 31, 2071. (x) "Transfer" shall have the meaning set forth in Section 2.13 below. (y) "Units" shall mean the four(4) Units to be sold to Eligible Purchasers pursuant to this Agreement and the Affordability Covenants. Section 1.2 Exhibits. The following exhibit is attached to this Agreement and incorporated into this Agreement by this reference: EXHIBIT A: Legal Description of the Property EXHIBIT B: Predevelopment Budget EXHIBIT C: Predevelopment Tasks and Schedule 394\09\1041666.4 3 ARTICLE 2. GRANT PROVISIONS Section 2.1 Grant. The City agrees to provide a grant to Habitat under the terms and conditions of the Grant Documents. Section 2.2 Amount of Grant. Subject to the terms of the Grant Documents, the City agrees to make and Habitat agrees to accept a grant in the total principal amount not to exceed Two Hundred Fifty Thousand Nine Hundred Thirty Two Dollars ($250,932) for the purposes set forth in Section 2.3 below. Section 2.3 Use of Grant Funds. Habitat shall use the City Grant funds to pay certain predevelopment activities consistent with the Predevelopment Budget attached hereto as Exhibit B, and other costs approved in advance by the City. Section 2.4 Affordability Covenants. As a condition of the Grant, Habitat agrees to record the Affordability Covenants against the Property to ensure that the Development shall remain affordable to Eligible Purchasers. The City agrees to reconvey the Affordability Covenants upon sale of individual Units in compliance with Article 3 below and the Affordability Covenants. Section 2.5 Conditions Precedent to Disbursement for Predevelopment. The City shall not be obligated to make any disbursements of the City Grant for predevelopment costs or take any other action under the Grant Documents unless the following conditions precedent are satisfied prior to the disbursement of the Grant: (a) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default under this Agreement. (b) Habitat has executed and delivered to the City the Grant Documents and all documents, instruments, and policies required under the Grant Documents. (c) The Affordability Covenants have been recorded against the Property in the Office of the Recorder of Santa Clara County, California. (d) Habitat has furnished the City with evidence of the insurance coverage meeting the requirements of Section 2.16 below. Section 2.6 Reports. (a) Progress Reports. Habitat shall make to the City (i) monthly oral or written progress-reports, and (ii) annual written reports advising the City on progress made on the 394\09\1041666.4 4 p , Development and the next steps to be taken by Habitat in the performance of the predevelopment tasks, set forth in Exhibit C. (b) Books and Records. Habitat shall keep and maintain on the Property, or at its principal place of business, or elsewhere with the City's written consent, full, complete and appropriate books, records and accounts relating to the Development. Books, records and accounts relating to Habitat's compliance with the terms,provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied. All such books, records, and accounts shall be open to and available for inspection by the City, its auditors or other City authorized representatives at reasonable intervals during normal business hours. Copies of all tax returns and other reports that Habitat may be required to furnish any governmental agency shall at all reasonable times be open for inspection by the City at the place that the books, records and accounts of Habitat are kept. Habitat shall preserve records for a period of not less than five (5) years after such statement is rendered. Section 2.7 Predevelopment Tasks and Schedule. Habitat shall perform the following tasks, as described in Exhibit C, with the proceeds of the Grant. The tasks shall be completed no later than the dates set forth in the Predevelopment Schedule attached to this Agreement as Exhibit C, and as approved by the City. Section 2.8 CDBG Requirements. (a) Habitat shall comply with all applicable laws and regulations governing the use of the Grant funds as set forth in 24 CFR 570 et seq. In the event of any conflict between this Agreement and applicable laws and regulations governing the use of the Grant funds, the applicable laws and regulations shall govern. (b) The laws and regulations governing the use of the Grant funds include (but are not limited to) the following: (i) Environmental and Historic Preservation. Section 104(f) of the Housing and Community Residence Act of 1974 and 24 CFR Part 58, which prescribe procedures for compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4361), and the additional laws and authorities listed at 24 CFR 58.5. (ii) Applicability of OMB Circulars. The applicable policies, guidelines, and requirements of OMB Circulars Nos. A-87, A-102, Revised, A-110 and A-122. (iii) Architectural Barriers. The requirements of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). (iv) Lead-Based Paint. The requirement of the Lead-Based Paint Poisoning Prevention Act, as amended (42 U.S.C. 4821 et seq.) and implementing regulations at 24 CFR Part 35. (v) Relocation. The requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and similar state laws. If and to the extent that 394\09\1041666.4 5 development of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then Habitat shall comply with all applicable local, state, and federal statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. Habitat shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. (vi) Handicap Discrimination. The requirements of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and federal regulations issued pursuant thereto, which prohibit discrimination against the handicapped in any federally assisted program, and the applicable requirements of Title II and/or Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq.). (vii) Training Opportunities. The requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701, requiring that to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and agreements for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in,the areas of the project. Habitat agrees to include the following language in all subcontracts executed under this Agreement: "The work to be performed under this agreement is a project assisted under a program providing direct federal financial assistance from HUD and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended 12 U.S.C. 1701. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and agreements for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in, the areas of the project." (viii) Davis-Bacon Act. The prevailing wage requirements of the Davis-Bacon Act and implementing regulations. (ix) Drug Free Workplace. The requirements of the Drug Free Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 CFR Part 24. (x) HUD Regulations. Any other HUD regulations present or as may be amended, added, or waived in the future pertaining to the Grant funds, including but not limited to HUD regulations as may be promulgated regarding subrecipients. Section 2.9 Hazardous Materials. (a) Habitat shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and ground water conditions. Habitat shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic 394\09\1041666.4 6 substances or related materials, including without limitation, any substances defined as or included in the definition of"hazardous substances," hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily kept and used in and about residential property of this type. (b) Habitat shall immediately advise the City in writing if at any time it receives written notice of(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Habitat or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party against Habitat or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as "Hazardous Materials Claims"); and (iii) Habitat's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" under the provision of California Health and Safety Code, Sections 25220 et seq. or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith paid by Habitat. Habitat shall indemnify and hold harmless the City and its city council members, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property including without limitation: (a) all foreseeable consequential damages; (b) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and(c) all reasonable costs and expenses incurred by the City in connection with clauses (a) and (b), including but not limited to reasonable attorneys' fees. This obligation to indemnify shall survive termination of this Agreement. (d) Without the City's prior written consent, which shall not be unreasonably withheld, Habitat shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the City's reasonable judgment, impair the value of the City's security hereunder; provided, however, that the City's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City's consent before taking such action, provided that in such event Habitat shall notify the City as soon as practicable of any action so taken. The City agrees not to withhold its consent, where such consent is required hereunder, if either(i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Habitat will or may be subjected to 394\09\1041666.4 7 civil or criminal sanctions or penalties if it fails to take a required action; (iii) Habitat establishes to the reasonable satisfaction of the City that there i is no reasonable alternative to such remedial action which would result in less impairment of the City's security hereunder; or (iv)the action has been agreed to by the City. (e) Habitat hereby acknowledges and agrees that(i)this Section is intended as the City's written request for information(and Habitat's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736. (f) In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the City's rights and remedies under the Grant Documents, the City may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a)to (1) waive its lien on such environmentally impaired or affected portion of the Property and(2) exercise (a)the rights and remedies of an unsecured creditor, including reduction of its claim against Habitat to judgment, and (b) any other rights and remedies permitted by law. For purposes of determining the City's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), Habitat shall be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(l), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and Habitat knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the City in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the lesser of ten percent (10%) or the maximum rate permitted by law, until paid, shall be due and payable to the City upon its demand made at any time following the conclusion of such action. Section 2.10 Maintenance and Damage. (a) During the course of both construc-.ion of the Development and the marketing and sale of the Units, Habitat shall maintain the portions of the Development and the Property not sold to Eligible Purchasers in good repair and in a neat, clean and orderly condition. If there arises a condition in contravention of this requirement, and if Habitat has not cured such condition within thirty (30) days after receiving a City notice of such a condition, then in addition to any other rights available to the City, the City shall have the right to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property. 394\09\1041666.4 8 (b) Prior to sale of the Units to the Eligible Purchasers, if any improvement on the Property is damaged or destroyed, then Habitat shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the City with such changes as have been approved by the City. Such work or repair shall be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be complete within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, then Habitat shall make up the deficiency. Section 2.11 Fees and Taxes. Habitat shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Development to the extent owned by Habitat, and shall pay such charges prior to delinquency. However, Habitat shall not be required to pay and discharge any such charge so long as (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the City, Habitat deposits with the City any funds or other forms of assurance that the City in good faith from time to time determines appropriate to protect the City from the consequences of the contest being unsuccessful. Section 2.12 Notice of Litigation. Habitat shall promptly notify the City in writing of any litigation affecting Habitat or the Property and of any claims or disputes that involve a material risk of litigation. Section 2.13 Transfer. (a) For purposes of this Agreement, "Transfer" shall mean any sale, assignment, or transfer, whether voluntary or involuntary, of(i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and Habitat retains title. (b) No Transfer shall be permitted without the prior written consent of the City, which the City may withhold in its sole discretion. The City hereby consents to the Transfer of Units to Eligible Purchasers. Habitat shall immediately repay to the City, the Grant in full upon any unauthorized Transfer. (c) Notwithstanding the provision of Section 2.13(b) above, the City hereby consents to the Transfer of this Agreement and the Development to an affiliate of Habitat (an "Affiliate"), provided such Affiliate enters into an assignment agreement in a form acceptable to the City, in which the Affiliate expressly assumes all of Habitat's obligations under this Agreement and in the Development. 394\09\1041666.4 9 Section 2.14 Non-Discrimination. Habitat covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, sex, sexual orientation, marital status, familial status, ancestry or national origin in the sale, lease, sublease,transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Habitat or any person claiming under or through Habitat establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property. Section 2.15 Mandatory Language in All Subsequent Deeds, Leases and Contracts. All deeds, leases or contracts made or entered into by Habitat, its successors or assigns, as to the transfer of any portion of the Property shall contain therein the following language: (a) In Deeds: "(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any person claiming under or through the grantee, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)." (b) In Leases: "(1) Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee or any person 394\09\1041666.4 10 claiming under or through the lessee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph(1)." (c) In Contracts: "(1) There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and(p) of Section 12955 of the Government Code shall apply to paragraph (1)." Section 2.16 Insurance Requirements. Habitat shall maintain the following insurance coverage throughout the Term of the Grant. (a) Worker's Compensation insurance as required by the Labor Code of the State of California, and Employer's Liability coverage with a limit not less than $1,000,000 each accident, including equivalent coverage of volunteers utilized by Habitat to construct the Improvements on the Property. (b) Comprehensive General Liability insurance with limits not less than $2,000,000 each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations. 394\09\1041666.4 11 (c) Comprehensive Automobile Liability insurance with limits not less than $1,000,000 each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable; provided, however, that if Habitat does not own or lease vehicles for purposes of this Agreement, then no automobile insurance shall be required. (d) Property insurance covering the Development, in form appropriate for the nature of such property, covering all risks of loss, excludi:ig earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. If the Property is located in a flood zone, Habitat shall also obtain flood insurance. Habitat shall cause any general contractor or agent working on the Development under direct contract with Habitat to maintain insurance of the types and in at least the minimum amounts described in subsections (a), (b), and (c) above, and shall require that such insurance shall meet all of the general requirements of subsections (e), (f), and (g)below, including, without limitation, the requirement of subsection (g). Subcontractors working on the Development under indirect contract with Habitat :-shall be required to maintain the insurance described in subsections (a), (b), and (c) above. Li ability and Comprehensive Automobile Liability insurance to be maintained by such contractors and agents pursuant to this subsection shall name as additional insureds the City, its officers, directors, agents, and employees. (e) The required insurance shall be provided under an occurrence form, and Habitat shall maintain such coverage continuously so long as this Agreement is in effect. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be three times the occurrence limits specified above. (f) Comprehensive General Liability, Comprehensive Automobile Liability and Property insurance policies shall be endorsed to name as an additional insured the City,the Agency, and their officers, directors, agents, and employees. (g) All policies and bonds shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or ir.tent not to renew to the address established for notices to the City. Section 2.17 Representations and Warranties of Habitat. As a material inducement to the City's entry into this Agreement, Habitat hereby represents and warrants the following to the City, as of the date set forth above: (a) Authority/Enforceability. Habitat is in compliance with all laws and regulations applicable to its organization, existence and transaction of business and has all necessary rights and powers to own and develop the Property and Development as contemplated by the Grant Documents. 394\09\1041666.4 I 2 (b) Binding Obligations. Habitat is authorized to execute, deliver and perform its obligations under the Grant Documents and such obligations shall be valid and binding obligations of Habitat. (c) Formation and Organizational Documents. Habitat has delivered to the City all formation and organizational documents of Habitat, and all such formation and organizational documents remain in full force and effect and have not been amended or modified since they were delivered to the City. Habitat shall immediately provide the City with copies of any amendments or modifications of the formation or organizational documents. (d) No Violation. Habitat's execution, delivery, and performance under the Grant Documents do not (1) require any consent or approval not heretofore obtained under any articles of incorporation, bylaws, or other document; (2) violate any governmental requirement applicable to the Development or any other statute, law, regulation or ordinance or any order or ruling of any court or governmental entity; or (3) conflict with, or constitute a breach or default or permit the acceleration of obligations under any agreement, contract, lease, or other document by which Habitat is or the Development are bound or regulated. (e) Compliance with Laws. Habitat has, and at all times shall have obtained, all permits, licenses, exemptions, and approvals necessary to construct, market and sell the Units, and shall maintain compliance with all governmental requirements applicable to the Development and all other applicable statutes, laws, regulations and ordinances necessary for the transaction of its business. (f) Litigation. There are not claims, actions, suits, or proceedings pending, or to Habitat's knowledge threatened, against Habitat or affecting the Development. (g) Accuracy. All reports, documents, instruments, information and forms of evidence delivered to the City concerning the Grant or required by the Grant Documents are accurate, correct and sufficiently complete to give the City true and accurate knowledge of their subject matter, and do not contain any misrepresentation or omission. (h) Tax Liability. Habitat has filed all required federal, state, county and municipal tax returns and has paid all taxes and assessments owed and payable, and Habitat has no knowledge of any basis for any additional payment with respect to any such taxes and assessments. (i) Utilities. All utility services, including, without limitation, gas, water, sewage, electrical and telephone, necessary for the development and occupancy of the Development are available at or within the boundaries of the Property, or Habitat has taken all steps necessary to assure that all such services will be available upon completion of the Development. 394\09\1041666.4 13 ARTICLE 3. AFFORDABILITY COVENANTS Section 3.1 Requirements. (a) Habitat shall use the Grant proceeds in accordance with Section 2.3 and to ensure that the Units will be sold to Eligible Purchasers. To ensure such affordability during the term of this Agreement,the Affordability Covenants shall be recorded against the Property. (b) Habitat intends to construct the Dev.lopment and to sell each Unit to an Eligible Purchaser. Upon the sale of the Unit to an Eligible Purchaser, the City shall reconvey and release the Affordability Covenants from that portion of the Property. Such partial reconveyance and release shall occur concurrently with the Eligible Purchaser's execution and recordation(as applicable) of the Homebuyer Resale Restriction and the Homebuyer Disclosure Statement. ARTICLE 4. DEFAULT AND REMEDIES Section 4.1 Events of Default. Each of the following shall constitute a "Default" by Habitat under this Agreement: (a) Breach of Covenants. Failure by Habitat to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Grant Documents, and such failure having continued uncured for thirty (30) days after receipt of written notice thereof by Habitat from the City or, if the breach cannot be cured within thirty (30) days, Habitat shall not be in breach so long as Habitat is diligently undertaking to cure such breach and such breach is cured within ninety (90) days; provided,however, that if a different period or notice requirement is specified under any other section of this Article 4, the specific provisions shall control. (b) Default Under Other Agreements. Failure to make any payment or perform any of Habitat's covenants, agreements, or obligations under the documents evidencing and securing any other Development financing following expiration of all applicable notice and cure periods. (c) Insolvency. A court having jurisdiction shall have made or entered any decree or order(i) adjudging Habitat to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Habitat or seeking any arrangement for Habitat under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Habitat in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up or liquidation of Habitat, if any such decree or order described in c]auses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days; or (v) Habitat shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. (d) Assignment; Attachment. Habitat shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have 394\09\1041666.4 14 been returned or released within ninety(90) days after such event or prior to sooner sale pursuant to such sequestration, attachment, or execution. (e) Suspension; Termination. Habitat shall have voluntarily suspended its business. (f) Liens on Property and the Project. There shall be filed any claim of lien(other than liens approved in writing by the City) against the Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Grant and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days without discharge or satisfaction thereof or provision therefor satisfactory to the City. (g) Condemnation. The condemnation, seizure, or appropriation of all or the substantial part of the Property and the Development. (h) Unauthorized Transfer. Any Transfer other than as permitted by Section 2.13. (i) Representation or Warranty Incorrect. Any Habitat representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the City in connection with any of the Grant Documents, proving to have been incorrect in any material respect when made. Section 4.2 Remedies. The occurrence of any Event of Default following the expiration of all applicable notice and cure periods will, either at the option of the City or automatically where so specified, relieve the City of any obligation to make or continue the Grant and shall give the City the right to proceed with any and all remedies set forth in this Agreement and the other Grant Documents, including but not limited to the following: (a) Repayment of the Grant. The City shall have the right to require Habitat to fully repay to the City the amount of the Grant. Additionally, Habitat shall be liable to pay the City on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees and expenses)paid or incurred by the City in connection with the collection of the Grant. (b) Specific Performance. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Habitat to perform its obligations and covenants under the Grant Documents or to enjoin acts on things which may be unlawful or in violation of the provisions of the Grant Documents. Section 4.3 Right of Contest. Habitat shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute a Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City hereunder. Section 4.4 Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement or the Grant Documents is intended to be exclusive of any other right,power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such 394\09\1041666.4 15 instrument, or by any statute or otherwise against Habitat and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. ARTICLE 5. GENERAL PROVISIONS Section 5.1 Relationship of Parties. Nothing contained in this Agreement shall be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and Habitat or its agents, employees or contractors, and Habitat shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Habitat has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the Development, Habitat shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each contract that contractors shall be solely responsible for similar matters relating to their employees. Habitat shall be solely responsible for its own acts and those of its agents and employees. Section 5.2 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person that Habitat may have employed or with whom Habitat may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the purchase of the Property and the construction of the Development, and Habitat shall include similar requirements in any contracts entered into for the purchase of the Property and the construction of the Development. Section 5.3 Amendments. No alteration or variation of the terms of this Agreement shall be valid unless made in writing by the Parties. Section 5.4 Indemnification. Habitat shall indemnify, defend and hold the City harmless against all claims made against it and expenses (including reasonable attorneys' fees) which arise out of or in connection with the development and construction of the Development, or the marketing and sale of the Units. This indemnity obligation shall not extend to any claini directly caused by the grossly negligent or willful acts of the City, its agents, and its employees. The provisions of this Section 5.4 shall survive the expiration of the Term and the release of the Affordability Covenants. 394\09\1041666.4 16 Section 5.5 Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Habitat in the event of any default or breach by the City or for any amount which may become due to Habitat or its successor or on any obligation under the terms of this Agreement. Section 5.6 No Third Party Beneficiaries. There shall be no third party beneficiaries to this Agreement. Section 5.7 Discretion Retained By City. The City's execution of this Agreement in no way limits the discretion of the City in the permit and approval process in connection with development of the Development. Section 5.8 Conflict of Interest. (a) Except for approved eligible administrative or personnel costs, no person described in Section 5.8(b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Habitat shall exercise reasonable diligence to ensure that the prohibition in this Section 5.8(a) is followed. (b) The conflict of interest provisions of Section 5.8(a) above apply to any person who is an employee, agent, consultant, officer, or any immediate family member of such person, or any elected or appointed official of the City or Habitat, or any person related within the third (3rd) degree of such person. Section 5.9 Notices, Demands and Communications. Formal notices, demands, and communications between the Parties shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows: City: City of Cupertino Community Development Department 10300 Tone Avenue, Cupertino, CA 95014 Attention: Senior Planner 394\09\1041666.4 17 Habitat: Habitat for Humanity Silicon Valley 513 Valley Way Milpitas, CA 95035 Attention: Executive Director Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section. Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable). • Section 5.10 Applicable Law. This Agreement shall be governed by California law. Section 5.11 Parties Bound. Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal representatives, successors, and assigns. This Agreement is intended to run with the land and shall bind Habitat and its successors and assigns in the Property and the Development for the entire Term, and the benefit hereof shall inure to the benefit of the City and its successors and assigns. Section 5.12 Attorneys' Fees. If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other Party. Section 5.13 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. Section 5.14 Force Majeure. In addition to specific provisions of this Agreement, performance by either Party shall not be deemed to be in default where delays or defaulls are due to war; insurrection; strikes; lock- outs; riots; floods; earthquakes; fires; quarantine restrictions; freight embargoes; lack of transportation; or court order; or any other similar causes (other than lack of funds of Habitat or Habitat's inability to finance the construction of the Development) beyond the control or without the fault of the Party claiming an extension of time to perform. An extension of time for any cause will be deemed granted if notice by the Party claiming such extension is sent to the other within ten (10) days from the commencement of t'ie cause and such extension of time is not rejected in writing by the other Party within ten (10) days of receipt of the notice. In no event 394\09\1041666.4 18 shall the City be required to agree to cumulative delays in excess of one hundred eighty (180) days. Section 5.15 City Approval. Whenever this Agreement calls for City approval, consent, or waiver, the written approval, consent, or waiver of the City Manager shall constitute the approval, consent, or waiver of the City, without further authorization required from the City Council. The City hereby authorizes the City Manager to deliver such approvals or consents as are required by this Agreement, or to waive requirements under this Agreement, on behalf of the City. Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, except where it is specifically provided that a sole discretion standard applies. The City Manager is also hereby authorized to approve, on behalf of the City, requests by Habitat for reasonable extensions of time deadlines set forth in this Agreement. The City shall not unreasonably delay in reviewing and approving or disapproving any proposal by Habitat made in connection with this Agreement. Section 5.16 Waivers. Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Habitat or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Habitat to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Habitat shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers. Section 5.17 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. Section 5.18 Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the Grant. Section 5.19 Multiple Originals; Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 394\09\1041666.4 19 WHEREAS, this Agreement has been entered into by the undersigned as of the date first above written. CITY: CITY OF CUPERTINO, a municipal corporation By: ` ' - it foNr HAB ITAT: HABITAT FOR HUMANITY SILICON VALLEY, a California nonprofit ublic benefit corporation By: 3 n‘ ' ,r- Si vvv vvvvra S Its: `E-.44 0. dri r r- 394\09\1041666.4 20 Certificate of Acknowledgement of Notary Public State of California County of Alameda On lcytc— / ,_2012_before me, Lucinda Lee, a notary public, personally app ed / / S'i/y. ir�S , who proved to me on the basis of satisfactory evidence be the person(s) whose name(s) isiare 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 is true and correct. LUCINDA LEE Witness my hand and official seal. :; _� Commission# 1810937 i'y� +-'<?2 Notary Public-California `` 1 Alameda County M Comm.Ex Tres Au 24,2012 Signature t�� _ � _ (Seal) O CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT y:• i; . ✓:•. . . .:r-is v: •;•' :.: > >• •: -..'.- ,' '.-S. • • • ••: - °'3 )) State of California rn_ ' 1 9 County of CQU-11,D•— J 9 9q (� 91 LA On 2U1 Z before me, �_-✓C 4 Date I Here Insert Name and Title of the Officer , n personally appeared C./ 9 LName(s)of Signer(s) ?) 9 ( AV who proved to me on the basis of satisfactory 9 evidence to be the person} whose names is/(e �� � subscribed to the within instrument and acknowledged IcO!! CHMIDT n 1923164 to me that /she/tKey executed the same in 9 Z Notary Public California- z hy�/her/th�r authorized capacity(i ), and that by 9 �...'h" Santa Clara county M Comm.Ex Tres Feb 21,2015+ h(S/her/tl-6ir signature(() on the instrument the 9 person( , or the entity upon behalf of which the person(p/) acted, executed the instrument. 9 9 I certify under PENALTY OF PERJURY under the 9 laws of the State of California that the foregoing 9 paragraph is true and correct. 9 A WITNESS my hand and official seal. AI LciA) Signature: GYX-4.1-----C • Place Notary Seal Above Signature of Notary Public 9 [,, OPTIONAL. 9 Though the information below is not required by law, it may prove valuable to persons relying on the document 1 (, and could prevent fraudulent removal and reattachment of this form to another document. 91 Description of Attached Docu ent (, o__o 9 • - - •. Title or Type of Document: bVAP_Q,t t A� ZQ Z-- Number of Pages:Document Date: �t� ( � 9 9 ( Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) 9 6 Signer's Name: Signer's Name: 9 • ❑ Corporate Officer—Title(s): [1 Corporate Officer—Title(s): 9. 1 I< ❑ Individual RIGHT THUMBPRINT [1 Individual RIGHT THUMBPRINT 9 OF SIGNER OF SIGNER (. ❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑Limited ❑General Top of thumb here 91 ❑ Attorney in Fact ❑Attorney in Fact 9 ❑ Trustee [1 Trustee 9 ❑ Guardian or Conservator [1 Guardian or Conservator 9 9 ❑ Other: [1 Other: 91 9 gSigner Is Representing: Signer Is Representing: 1 ` s . f. �k.�=�C'-;�£ 6E-c ea*s` .^�->` :� W�=cS�k. ._=A;�=�: ` o �c .' SC r s r ^t, .,..h�Uq4._ c:‹.. ^X ©2009 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-8827) Item#5907 EXHIBIT A Legal Description of the Property The land is situated in the State of California, Santa Clara County, and is described as follows: PARCEL ONE: A portion of Cleo Avenue(46.48 feet wide)as described in Parcel One in the Relinquishment No. 40230 to the City of San Jose, recorded January 28, 1970, In Book 8813, Page 14, Official Records of Santa Clara County and portions of those parcels of land described in the Deeds to the State of California recorded as follows: State Deed No. Recording Date Volume Page 20832 May 28, 1959 4432 25 20833 October 14, 1958 4199 471 20834 August 3, 1959 4500 526 all of Official Records of Santa Clara County, more particularly described as follows: Commencing at the Southeasterly terminus of that certain course described as"South 35° 23'09"East, 148.00 feet"in that Director's Deed DD-020838-01-01 recorded February 13, 1998, under Recorder's Serial No. 14052911, Official Records of Santa Clara County; thence along the Southeasterly prolongation of said course, South 35° 23'09"East, 186.58 feet; thence South 72° 21'32"East, 43.63 feet;thence South 37° 21' 17"East, 17.39 feet to the Southerly line of said parcel (State Deed No. 20832); thence along last said line and the Southerly lines of said parcels(State Deed No. 20833 and 20834), North 89° 08'42"West, 167.63 feet to the Westerly line of said parcel (State Deed No. 20834); thence along last said line and Its Northerly prolongation, North 00° 51' 10"East, 145.05 feet; thence North 47° 16'03"West, 16.28 feet to the curve with a radius of 30.13 feet described in Segment One in the Relinquishment No. 56062 to the City of Cupertino, recorded December 23, 2004, under Recorder's Serial No. 18159783, Official Records of Santa Clara County; thence along said curve, from a tangent that bears North 29°44'22"cast,along a curve to the left with a radius of 30.13 feet, through a central angle of 40° 54'55", an arc:length of 21.52 feet to the general Southerly line of that parcel of land described In said Director's Deed; thence along last said line, South 89° 08'42"East, 13.84 feet to the point of commencement. APN: 362-31-004 A-1 394\09\1041666.4 EXHIBIT B Predevlopment Budget Intended Use I Amount Acquisition - Due Diligence $ 23,136 Design Consultants Design -Architecture $ 28,137 Design -Structural Engineering $ 4,500 Design - Soils Engineering /Geotech $ 8,945 Design - Energy Analysis $ 1,050 Design - Landscaping $ 13,443 Design -Green Certification Fees $ 400 Design -Copying/Reproductions $ 1,484 Design -CEQA/NEPA(Acoustical) $ 1,750 Design - MEP $ 3,591 Design -Other Consultants $ - Other-Truss Design $ 2,300 Unit Construction $ 150,108 Administrative Fees Admin - Legal Fees $ 195 Admin - Opr Personnel/Homeowner $ 11,500 Admin - Other $ 394 Total Grant Amount $ 250,932 EXHIBIT C Predevelopment Tasks and Schedule Cleo Predevelopment Schedule 10.13.11 Task/Event Est. Start Date Est. Completion Date NEPA Approval Jan 2011 April 2011 Security City Addresses for Units Aug 2011 Sept 2011 Grading Nov 2011 Nov 2011 Retaining Walls Nov 2011 Nov 2011 Wet Utilities (sewer and water lines Dec 2011 Jan 2012 and storm drains) Dry Utilities (fiber optic, electrical, Dec 2011 Jan 2012 telephone and television cable lines Admin Salaries/Misc. Nov 2011 April 2012 C-1 394\09\1041666.4