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73 Cannery Circle (2) 24376567 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Regina A 1 comendras Santa Clara County - Clerk-Recorder City of Campbell 01/09/2020 08:30 AM 70 North First Street Campbell, CA 95008 Titles: 2 Pages: 11 Attention: Community Development Agency Taxes: g.gg Total : 0.00 EXEMPT FROM RECORDING FEES PER 'III"'1a iy ,ii a"'l5tiLlt ilkig" ri �uI 1I1 0dl i 'I II GOVERNMENT CODE§27383 Space above this line for Recorder's use. APN: 279-53-014 73 Cannery Circle, Campbell, CA 95008 ASSIGNMENT OF OPTION AND BELOW MARKET-RATE AFFORDABLE HOUSING AGREEMENT THIS ASSIGNMENT OF OPTION AND BELOW MARKET-RATE AFFORDABLE HOUSING AGREEMENT (this "Agreement") is entered into effective as of November 7, 2019 ("Effective Date") by and between the City of Campbell, a municipal corporation (the "City") and HouseKeys Resource & Education Center, Inc., a California nonprofit public benefit corporation ("HouseKeys"). The City and HouseKeys are collectively referred to herein as the "Parties." RECITALS A. HouseKeys, Inc., a California corporation and the City entered into that certain unrecorded Consultant Agreement dated as of June 23, 2017, (as subsequently amended, the "Consultant Agreement")pursuant to which HouseKeys, Inc. provides services to City in connection with the administration of City's Below Market Rate homebuyer assistance program (the "BMR Program"). B. HouseKeys is a nonprofit corporation established for a public purpose and provides related services to City in connection with the administration of City's BMR Program. C. Pursuant to the BMR Program, City provided certain financing or otherwise facilitated the purchase of the property located at 73 Cannery Circle in the City of Campbell, known as Santa Clara Assessor's Parcel No. 279-53-014 and more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property") by a household eligible to participate in the BMR Program. D. In connection with the purchase of the Property, a Resale Restriction Agreement and Option to Purchase dated September 30, 1999 and recorded on October 7, 1999 as No. 15009618, Book N/A, Page N/A (the "Resale Restriction Agreement") was recorded in the Official Records of Santa Clara County. E. Pursuant to the Resale Restriction Agreement, City assigned the City's option to purchase the Property to HouseKeys, Inc., a California corporation by that certain Assignment of Option and Below Market Rate Affordable Housing Agreement dated June 21, 2019 and recorded on July 30, 2019 as No. 24242092 in the Official Records of Santa Clara County. F. Thereafter, HouseKeys, Inc., a California corporation assigned its option to purchase the Property to the City by that certain Assignment of Option and Below Ma ket Rate Affordable Housing Agreement dated ,;4,,,,J, - , 2019 and recorded on / 9° c2e.zo as No. 1/3 765- ' in the Official Records of Santa Clara County. G. The owner of the Property desires to sell the Property, and pursuant to the Resale Restriction Agreement, City desires to assign to HouseKeys the City's option to purchase the Property. H. HouseKeys has agreed to purchase the Property and market it for sale at a restricted price to a qualified homebuyer who meets the eligibility requirements of the BMR Program ("Eligible Homebuyer"). I. To facilitate the purchase and sale of the Property, HouseKeys has requested that the City release and reconvey the Resale Restriction Agreement, and City is willing to do so upon satisfaction of the conditions and on the terms set forth in this Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Assignment of Option. City hereby assigns to HouseKeys, and HouseKeys hereby assumes from City, City's option to purchase the Property pursuant to the Resale Restriction Agreement. 2. Acquisition by HouseKeys; Property Maintenance. HouseKeys agrees that it will acquire the Property, and will diligently market the Property and arrange for its sale to an Eligible Homebuyer consistent with all requirements of the BMR Program and the provisions of the Consultant Agreement. HouseKeys agrees that throughout the period that HouseKeys owns the Property, HouseKeys shall take reasonable steps to ensure that the Property is protected from vandalism, shall maintain the Property in the same or better condition as its condition on the date of HouseKeys acquisition, shall maintain the landscaping on the Property and ensure that lawns and shrubbery are kept in a trimmed, neat and litter-free condition, and shall, with the consent of City, undertake any necessary or desirable repairs. 3. Recordation of Agreement; Release of Resale Restriction Agreement. City agrees that it shall cause to be recorded in the Official Records a release and reconveyance of the Resale Restriction Agreement and this Agreement concurrently with the closing for HouseKeys sale of 2 the Property to an Eligible Homebuyer, provided that(a)the new Eligible Homebuyer executes a new resale restriction agreement for the benefit of City in the form required by City pursuant to the BMR Program, and(b)the new resale restriction agreement is recorded against the Property concurrently with the closing for acquisition of the Property by the new Eligible Homebuyer. 4. Restrictions on Conveyance of the Property. HouseKeys acknowledges and agrees that the Property may only be sold to an Eligible Homebuyer in accordance with the requirements of the BMR Program, and HouseKeys agrees that it shall not, without City's prior written consent, sell, lease, rent, assign, hypothecate, mortgage or otherwise transfer or convey the Property or any part thereof. Notwithstanding the terms of this Paragraph 4, City acknowledges and agrees that HouseKeys may hypothecate the Property as security for a loan made to HouseKeys by a third-party lender in the principal sum of the acquisition price for the Property. The third-party lender shall be deemed by the City an approved encumbrancer of the Property, pursuant to the Resale Restriction Agreement. 5. Intentionally omitted. 6. Default and Remedies. HouseKeys failure to comply with the requirements of this Agreement and the BMR Program requirements shall constitute an event of default hereunder and shall entitle City to pursue any and all remedies available pursuant to this Agreement, and/or the Resale Restriction Agreement, or available in equity or under law, including without limitation, the exercise of option rights set forth in the Resale Restriction Agreement, seeking an order for specific performance, and/or seeking monetary damages. Each of the remedies provided herein is cumulative and not exclusive, and City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement or the Resale Restriction Agreement. 7. Binding on Successors. This Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law. The terms and conditions set forth herein are intended to run with the land and shall bind HouseKeys and all successors, heirs, grantees and assigns, unless and until this Agreement is terminated by the mutual written consent of the Parties. 8. Insurance. HouseKeys shall maintain in effect all policies of insurance required pursuant to the Consultant Agreement. In addition, throughout the period that HouseKeys owns the Property, HouseKeys shall maintain a policy of property insurance for the Property covering all risks of loss (other than earthquake), including flood (if required) for 100%of the replacement value of the improvements located on the Property, with deductible, if any, in an amount acceptable to City, and naming City as loss payee. Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A: VII. HouseKeys shall provide evidence of such policy prior to the closing date for HouseKeys acquisition of the Property. 3 9. Indemnity. HouseKeys shall indemnify, defend(with counsel approved by City) and hold the City and its elected and appointed officers, officials, employees, agents, consultants and contractors (collectively, the "Indemnitees") harmless from and against all liabilities, losses, costs, expenses (including without limitation attorneys' fees and costs of litigation), claims, demands, actions, suits,judicial or administrative proceedings, penalties, deficiencies, fines, orders, and damages (all of the foregoing collectively"Claims")that directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to HouseKeys ownership, operation, management, marketing or sale of the Property or HouseKeys failure to perform any obligation as and when required by this Agreement. HouseKeys indemnification obligations under this Section shall not extend to Claims resulting solely from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. 10. Miscellaneous. 10.1 Notices. All notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Parties in accordance with this Section. All such notices shall be sent by: (i)personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; or (iii)nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service. City: City of Campbell 70 N. First Street Campbell, CA 95008 Attention: Paul Kermoyan HouseKeys: HouseKeys Resource& Education Center 409 Tenant Station#395 Morgan Hill, CA 95037 Attention: BMR Program Administrator 10.2 Attorneys' Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements. 10.3 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time 4 for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties. 10.4 Headings; Interpretation. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. 10.5 Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City or its designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City determines in its discretion that such action or approval requires referral to City Council for consideration. 10.6 Entire Agreement. This Agreement, including Exhibit A attached hereto and incorporated herein by this reference, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof. 10.7 Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability. 10.8 No Third-Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties. 10.9 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. Except as City may specify in writing, HouseKeys shall not have any authority to act as an agent of City or to bind City to any obligation. 10.10 Time of the Essence. Time is of the essence for each condition, term, obligation and provision of this Agreement. 10.11 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Santa Clara County, California or in the Federal District Court for the Northern District of California. 10.12 Counterparts. This Agreement may be executed in one or more counterparts,each of which shall be an original and all of which taken together shall constitute one instrument. 5 SIGNATURES ON FOLLOWING PAGE. (ALL SIGNATURES ON THIS DOCUMENT, EXCEPT CITY ATTORNEY, MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC) 6 IN WITNESS, WHEREOF, the Parties have entered this Agreement as of the Effective Date. CITY: CITY OF MORGAN HILL, a mu • ipal c ration By: Brian Loventhal, City Manager Attest: jet) Wend r ood, City Clerk HOUSEKEYS By: J Julius/ yan Chief Executive Officer (ALL SIGNATURES ON THIS DOCUMENT, EXCEPT CITY ATTORNEY, MUST BE ACKNOWLEDGED BY A NOTARY PUBLIC) 7 CALIFORNIA ALL-PURPOSE 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 Santa Clara) ss. On i)kr7 , 2019, before me, r1dt eQ 5Q i( Q/'S , a Notary Public, who personally appeared Brian /weal . who proved to me on the basis of satisfactory evidence to be the pers•n,14 whose name/4ari subscribed to the within instrument and acknowledged to me that • a/tlbe�y executed the same in to = /tVr authorized capacity/ , and that by( • -r/tl r signature/a'on the instrument the person or the entity upon behalf of which the persona 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. .�� ,� ANDREASANDERS .'�' Notary Public-California "r-4 4- Santa Clara County r =�`" (^ Commission N 2257697 "°""� My Comm.Expires Sep 9,2022 WI ESS y han51,Vhd o icial seal /60a e„,e) Signature of N+ ry Public (ABOVE AREA FOR OFFICIAL NOTARIAL SEAL) 8 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 C iforn'a County of X 1U► i C10.f�. 1 On et1Q 1 a.oF before me,c ►- f CQ ai Q(S t (3eitai4R C,Date (rsxba � Here Insert Name and Title of fficer personally appeared Wvw Name(s)of Signer(s) who proved to me on the basis of satisfactory evidenc- to.r- the person)whose name 0i / e subscribed to the within instrument and acknow ed•ed t me that h:l /t'ey executed the same in 's{r e /t eir authorized capacity);and that,by h Oa thir signature on the instrument the person , or th�entity upon behalf of which the person(31`acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing .y.,,,, ANDREA SANDERS . `'A Notary Public-California paragraph is true and correct. T � •. a r Santa Clara County .", • Commission It 2257697 WITNESS my hand and official seal. r` " My Comm.Expires Sep 9,2022 Signature 4CA'K '4'X Ci' Place Notary Seal and/or Stamp Above Signa of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner— 0 Limited 0 General 0 Partner— ❑ Limited 0 General ❑ Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact ❑ Trustee ❑ Guardian of Conservator 0 Trustee 0 Guardian of Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2017 National Notary Association CALIFORNIA ALL-PURPOSE 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 Santa Clara) ss. On �(`A L fir,� ) , 2019z before me, J jCC>v CON , a Notary Public, who personally appeared __;) i%� `I,t>>-ic\(; 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 is true and correct. ABRAHAM VALLE ;` V. Notary Public-California Santa Clara County i z -4*t/ Commission*2168190 1__ _ Mz Comm.Expires Oct 15,2020 4 WITNESS my hand and official seal Signature of Notary Public (ABOVE AREA FOR OFFICIAL NOTARIAL SEAL) 9 Exhibit A PROPERTY THE LAND REFERED TO HEREIN BELOW IS SITUATED IN THE CITY OF CAMPBELL, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 14,AS SHOWN ON THE MAO ENTITLED"TRACT 8888", FILED FOR RECORD APRIL 2, 1997 IN BOOK 687 OF MAPS,AT PAGES 28, AND AS MODIFIED BY A CERTIFICATE OF CORRECTION (IN PART TO CHANGE NAME OF THE MAP TO "TRACT 8888A"), WHICH RECORDED FEBRUARY 27, 1998, RECORDER'S SERIES NO. 14074038, BOTH OF THE OFFICIAL RECORDS OF SANTA CLARA COUNTY RECORDS. EXCEPTING THEREFROM THE UNDERGROUND WATER AND RIGHTS THERETO. WITHOUT RIGHTS OF SURFACE ENTRY,AS CONVEYD TO SAN JOSE WATER COMPANY, A CALIFORNIA CORPORATION BY INSTRUMENT RECORDED JUNE 16, 1997 AS INSTRUMENT NO. 13741751, OFFICIAL REOCRDS. APN: 279-53-014 10