HomeMy WebLinkAboutAPEC International, LLC - Amended and restated (OPA) previously entered into with Hotel Fresno on March 92011, for the rehabilitation of 1241-1563 Broadway Plaza (APN 466-214-01)RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN
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This Agreement is recorded at the request and for the benefit of the
Redevelopment Agency of the City of Fresno and is exempt from the payment of a
recording fee pursuant to Government Code Section 6103.
CITY OF FRESNO, IN ITS CAPACITY
AS HOUSING SUCCESSOR TO THE
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
Bruce Rudd, City Manager
AMENDED AND RESTATED
OWNER PARTICIPATION AGREEMENT
by and between
The City of Fresno, in its capacity as Housing Successor
to the Redevelopment Agency of the City of Fresno,
a municiPal corPoration and
APEC INTERNATIONAL, LLC
Marlene Murphey
Executive Direçtor
1.
2.
3.
4.
5.
6.
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
1241 -1263 Broadw ay Plaza
Hotel Fresno Housing Project
Fresno, CA 93721
ATTACHMENTS
Legal Description of Property
Schedule of PerformanceiPayment Schedule
Budget/Financial Plan
Certificate of Completion
Scope of Development and Project Design
Form of Regulatory Agreement and Declaration
Covenants and Restrictions
Form of Promissory Note
Form of Deed of Trust
of
7.
8.
AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT
("Agreement") is entered as of the Effective Date (defined in this Agreement), between
the CITY OF FRESNO, lN ITS CAPACITY AS HOUSING SUCCESSOR TO THE
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a municipal corporation,
("Agency") and APEC INTERNATIONAL LLC, a California limited liability company
("Owner").
RECITALS
The parties enter this Agreement based on the following facts, understandings, and
intentions:
A. Agency entered into an Owner Participation Agreement with Hotel Frezno, LLC.
("Assignor"), with regard to the Property dated March 9,2011 (the "Original OPA').
B. Assignor assigned all rights and obligations under the Original OPA to Owner by
an Assignment dated November 4,2014.
C. By authority granted under California Redevelopment Law (the "Law"), the former
Redevelopment Agency has prepared and was responsible for carrying out the
redevelopment plan for the Central Business District Redevelopment Area (the "Plan").
D. To the extent provided in or allowed by the Law including Cal. H.&S.C. Sections
33334.2 and 33449, as provided by joint resolutions of the Fresno City Council and the
Agency, findings and determinations pursuant to Health and Safety Code Section
33334.2.(g), the Plan and limited to the terms and conditions therein, the Agency may
make improvements upon and/or construct and improve structures in order to provide
housing for persons and families of low or moderate income, including related on-site and
off-site improvements, by variously: (1) allowing the use of Housing Set Aside Funds
outside the Airport Area Revitalization, Central Business District, Central City Commercial
Revitalization, Chinatown Expanded, Convention Center, Freeway gg- Golden State
Corridor, FruiUChurch, Mariposa, Roeding Business Park, South Fresno lndustrial
Revitalization, South Van Ness lndustrial, Southeast Fresno Revitalization, West Fresno
l, West Fresno ll, West Fresno lll, redevelopment plans; (2) restricting the use of the
Housing Set Aside Funds to ceftain of the Community Development Block Grant eligible
areas of the City; (3) placing a priority on the use of the Housing Set Aside Funds from
certain Project Areas to be used either within or adjacent to the Central Area or adjacent
to certain Project Areas.
E. On February 1,2014, the former Redevelopment Agency was dissolved pursuant
to the provisions of California State Assembly Bill No. 1X26 ("AB 26') and upheld by the
California Supreme Court in California Redevelopment Assoc. v. Matosantos, S194861
(Dec. 29, 2011). On June 27, 2012, AB 26 was subsequently amended in part by
California State Assembly Bill No. 1484 (.AB 1484") (AB 26 and AB 1484 are referred to
collectively as the "Redevelopment Dissolution Lau/').
F. Pursuant to the Redevelopment Dissolution Law, the former Redevelopment
Agency's housing assets were transferred to the City of Fresno as the Housing Successor
to the former Redevelopment Agency. Agency, as the Housing Successor, assumed the
rights and obligations under the Original OPA.
G. Agency administers the Low and Moderate lncome Housing Fund established
pursuant to Cal. H.&S. C. Sections 33334.2 et seq.
H. The Agency shall permit owner pafticipation in the redevelopment of property in the
Plan area in conformity with the Plan and all owner participation rules and criteria, to the
extent provided by Cal. H.&S.C. Sections 33339, 33339.5, 33380 and 33381.
l. Owner holds, or will acquire, all rights, title and interest in fee to the certain real
property described in Exhibit "4" attached hereto and incorporated herein (the "Property"),
including improvements located thereon which shall be improved by Owner as
contemplated by this Agreement and known as 1241-1263 Broadway Plaza, Fresno,
California (the "Project"). The Property and Project are located within the territorial
jurisdiction of the Agency.
J. Owner proposes to develop a new mixed use residential rental project on the
Property consisting of seventy-nine (79) residential units. At least nineteen (19) but no
greater that forty (a0) of the residential units (the "Affordable Units") are to be rented and
preserved as "Affordable Rental Housing" (as defined below).
K. Owner agrees to undeftake improvements in accordance with the combined
Performance and Payment Schedule described in Exhibit "8" attached hereto and
incorporated herein (the "Performance and Payment Schedule").
L. To the extent Housing Set Aside Funds will exceed 50 percent of the cost of
producing the Affordable Units, the Agency has determined based on substantial
evidence, that the use of the Housing Set Aside Funds is necessary because the Agency
or Owner of the Affordable Units has made a good faith attempt but been unable to obtain
commercial or private means of financing the units at the same level of affordability and
quantity. The Project is not feasible and cannot be completed and restricted to the
affordable rental housing purposes and uses provided under Law and this Agreement
absent the financial support of the Agency.
M. The Property and associated onsite and offsite improvements are collectively
referred to in this Agreement as the "lmprovements" or the "Project," all of which will
directly benefit the Property and the Plan area, cannot otherwise be reasonably paid for
or financed solely through private financing, and are necessary to eliminate blight.
N. Agency is willing to assist Owner's construction of the Affordable Units by making
available to Owner as a loan certain Housing Set Aside (Tax lncrement) Funds in the
amount of $1,900,000 (the "Loan") as described in Section 1.25, upon the terms and
conditions specified in this Agreement.
O. The Loan shall be disbursed in accordance with the schedule set out in Exhibit "B"
to the Agreement and the Loan shall be repaid in accordance with the Promissory Note,
an example of which is attached hereto as Exhibit "G". The Loan and performance of the
affordability and other covenants and restrictions set forth in this Agreement shall be
evidenced by this Agreement, the Regulatory Agreement and Declaration of Covenants
and Restrictions, attached hereto as Exhibit "F", and the Deed of Trust and Assignment
of Rents, attached hereto as Exhibit "H," which shall be recorded against and run with
and encumber the Property.
P. Agency has further determined this Project is in the best interests of, and will
materially contribute to, Plan implementation. Further, Agency has found the Project:
(i) will have a positive influence in the Plan Area, and surrounding environs; (ii) is in
the vital and best interests of Agency and the health, safety, and welfare of City
residents; (iii) complies with applicable federal, state, and local laws and requirements;
(iv) will help eliminate blight; (v) will improve and preserve the community's supply of
low income housing available at affordable rent, as defined by Cal. H.&S.C. Sections
50052.5 and 50053, to persons and families of low income, as defined in Cal. H.&S.C.
Section 50093 of Code; (vi) will be available to meet the replacement housing
provisions in Cal. H.&S.C. Section 33413; (vii) will apply funds solely within the
respective Plan areas except to the extent othenruise provided herein and allowed by
Law; (viii) all planning and administrative expenses incurred in pursuit hereof are
necessary for the production, improvement, or preservation of low income housing;
(ix) will comply with all owner participation rules and criteria of Agency and the Plan;
and (x) will comply with any and all applicable review and other requirements of the
City's Historical Preservation Commission.
O. The Owner and the Agency have determined that this Agreement is not subject
to Article XXXIV of the California Constitution.
AGREEMENT
1. DEFINITIONS. Besides definitions contained elsewhere inthis Agreement, the
definitions in this Section will govern the construction, meaning, application,
and interpretation of the various terms used in this Agreement.
1.1 "ADA" means the Americans with Disabilities Act of 1990.
1.2 "Affordability Period" means a period of fifty-five (55) years commencing
from the date Agency records the Certificate of Completion.
1.3 "Affordable Rental Housing" or "Affordable Units" means the Units available
at affordable rent, as defined by Cal. H.&S.C. Section 50053 (b) , to persons
and families of extremely low (30% of area median income), very low (50%
of area median income), lower (80% of area median income) and/or
moderate income (120% of area median income), as defined in Cal. H.&S.C.
Section 50093 of Code and section 5.603, consistent with Recital J above
which requirements shall be enforceable by covenants running with the land.
As used in this Agreement, the term "Affordable lncome Rent" shall mean
annual rentals whose amount does not exceed the maximum percentage of
income that can be devoted to rent as set fotlh by Health & Safety Code
Section 50053, or its successor, for extremely low, very low, lower and
moderate income households, which is currently thirty percent (30%) of thirty
percent (30%) for extremely low, thirty percent (30%) of fifty percent (50%)
(for very-low), thirty percent (30%) of sixty percent (60%) (for lower), and
thirty percent (30%) of one-hundred ten percent (110%) (for moderate) of the
Fresno Metropolitan Statistical Area Median lncome adjusted for the family
size appropriate for the Unit. There will be no less than nineteen (19) and no
more than forty (40) Affordable Units. lf there are forty (40) Affordable Units,
no more than six (6) units shall be extremely low income, no more than 23
units shall be very low income, and the balance of eleven (1 1) or more units
shall be lower or moderate income. lf there are fewer than forty (40)
Affordable Units, the proportionate number of extremely low and very low
units shall not be greater than as set forlh above. For example, if there are
twenty (20) Affordable Units, no more than three (3) units may be extremely
low income. Nothing contained herein shall prevent Owner from setting all
Affordable Units at the moderate income level.
1.4 "Agency" means the City of Fresno in its capacity as the Housing Successor
to the Redevelopment Agency of the City of Fresno, a municipal corporation,
organized and existing under the Law, and any assignee of or successor to
its rights, powers, and responsibilities.
1.5 "Agreement" means this Owner Pafticipation Agreement.
1.6 "Budget" means the BudgelFinancial Plan for the Project attached hereto
and incorporated herein as Exhibit "C" (the "Budget").
1.7 "Certificate of Completion" means that Certificate issued in the form attached
as Exhibit "D" to Owner by Agency evidencing completion of the Project for
purposes of this Agreement.
1.8 "City" shall mean the City of Fresno, California, a municipal corporation.
1.9 "Conditions Precedent of Agency" means the conditions precedent to the
effectiveness of this Agreement against the Agency.
1.10 "Construction Completion Date" means the date specified in Exhibit B,
subject to extension pursuant to Section 4.5.
1.11 "Day" whether or not capitalized, means a calendar day, unless stated
otherwise.
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1.12 "Deed of Trust" shall mean the Deed of Trust recorded against the Property
securing the Loan, as shown in Exhibit "H" of this Agreement.
1.13 "Default" means a pady's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.14 "Director" means the Executive Director of Agency.
1.15 "Entitlements" mean all permits and fees that the City, County of Fresno, and
other governmental agencies with jurisdiction over the Project, the
lmprovements, or the Property may requrre.
1.16 "Effective Date" means the date of complete execution of the Agreement
following Agency Board approval thereof.
1.17 "Environmental Laws" means any federal, state, or local law, statute,
ordinance, or regulation pertaining to environmental regulation,
contamination, or cleanup of any Hazardous Materials or waste including,
without limitation, any state or federal lien or "super lien" law, any
environmental cleanup statute or regulation, or any governmentally required
permit, approval, authorization, license, variance or permission.
1.18 "Funding Source" means the Loan and other funding sources secured by
Owner to construct the lmprovements.
1.19 "Financing Plan" means the Budget including sources and uses of funds
sufficient for Owner to complete the lmprovements according to the
Performance and Payment Schedule.
1.20 "Hazardous Materials" means any substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of
California, or the United States Government including, without limitation, any
material or substance which is: (a) defined as a "hazardous waste,"
"extremely hazardous waste," or "restricted hazardous waste" under
Sections 25115,25117, or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, (b) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code,
(c) defined as a"hazafdous material," "hazardous substance," or "hazardous
waste" under Section 25501 of the California Health and Safety Code, (d)
defined as a "hazardous substance" under Section 25281 of the California
Health and Safety Code, (e) petroleum, (Ð friable asbestos, (g)
polychlorinated byphenyls, (h) listed under Article I or defined as
"hazardous" or "extremely hazardous" under Article 1 1 of Title 22, California
Administrative Code, (l) designated as "hazardous substances" pursuant to
Section 311 of the Clean WaterAct (33 U.S.C. 51317), (1) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation
and Recovery Act (42 U.S.C. 56901 et seq., or (k) defined as "hazardous
substances" pursuant to Section of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 59601, et seq.);
provided, however, hazardous materials shall not include: (1) construction
materials, gardening materials, household products, office supply products
or janitorial supply products customarily used in the construction,
maintenance, rehabilitation, or management of residential rental housing or
associated buildings and grounds, or typically used in household activities,
in a manner typical of other residential rental housing developments which
are comparable to the lmprovements; and (2) ceÉain substances which may
contain chemicals listed by the State of California pursuant to Health and
Safety Code Sections 25249.8 et seq., which substances are commonly
used by a significant portion of the population living within the region of the
Property, including, but not limited to, alcoholic beverages aspirin, tobacco
products, NutraSweet and saccharine.
1.21 "Household" means one or more persons occupying an Affordable Unit.
1.22 "Housing Set-Aside Funds" means those California Health and Safety Code
Section 33334.2 monies held and administered by Agency a portion of which
shall be made available as the Loan to Owner for eligible costs and expenses
incurred by Owner in constructing the lmprovements in such amounts, and
upon such terms and conditions specified in this Agreement.
1.23 "lmprovements" mean the construction of the Affordable Units and other
units that Owner will complete on the Property as part of the Project,
including associated fencing, and landscaping improvements.
1.24 "LaW' means the Community Redevelopment Law of the State (California
Health and Safety Code Sections 33000 et seq.) as modified by the
Redevelopment Dissolution Law.
1.25 "Loan" means the principal sum of $1,900,000 provided by Agency to Owner
as a loan, upon the terms and conditions set forth in this Agreement and the
Promissory Note attached hereto as Exhibit "G" to be secured by a no worse
than third position deed of trust lien against the Property, subject to Owner's
permanent financing in first position, and lnfill Grant or MHP Loan in second
position. lf the deed of trust securing the Promissory Note is recorded prior
to the recordation of the deed or deeds of trust securing the other Funding
Sources consistent with the Financing Plan, the Agency shall subordinate
such deed of trust to such other deed(s) of trust, provided the Agency's Deed
of Trust maintains no worse than 3rd position.
1.26 "Loan Documents" are collectively this Agreement and all exhibits and
attachments thereto any deed of trust given as security, as they may be
amended, modified or restated from time to time.
1.27 "Material Change" means a change, modification, revision or alteration to the
Loan Documents that significantly deviates from those previously approved
by the Agency, provided that fully funded change(s) which do not result in a
change in the number or type (i.e. residential, affordable) of Units and/or an
increase in the total Loan funding provided in this Agreement shall not
constitute Material Change(s).
1.28 "Owner" means APEC lnternational, LLC, or an affiliated company in which
it is a member, managing member, general partner, or principal.
1.29 "Plan" means the Redevelopment Plan for the Fulton Redevelopment
Project Area.
1.30 "Project" means the development of seventy nine (79) residential Units on
the Property, of which no less than nineteen (19) and no more than forty (a0)
Units shall be Affordable Units.
1.31 "Project Area" means the Fulton Redevelopment Project Area.
1.32 "Project Completion Date" means the date that Agency shall have
determined the Project has reached completion in accordance with the plans
and specifications in the Performance and Payment Schedule, as evidenced
by Agency's issuance of a Certificate of Completion.
1.33 "Property" means the real property described in Exhibit "4," attached hereto.
1.34 "Release of Restrictions" means a release of those covenants, conditions,
and restrictions contained in this Agreement.
1.35 "Restrictions" means the affordability restrictions contained in this
Agreement and Exhibit F thereto, containing all conditions, covenants, and
restrictions required by the Law, any other applicable laws and regulations,
the Plan, and this Agreement, running with the Property and the Affordable
Units thereon and burdening such for the Affordability Period.
1.36 "Performance and Payment Schedule" means the schedule attached as
Exhibit "8," setting forth the dates and times by which the parties must
accomplish certain obligations under this Agreement. The parties may revise
the Peformance and Payment Schedule from time to time on mutualwritten
agreement of Owner and Agency, but any delay or extension of the
Construction Completion Date is subject to the requirements in this
Agreement.
1.37 "Security Financing lnterest" means a security interest which Owner grants
in the Property and the lmprovements thereon before the Agency issues and
records a Release of Restrictions.
2.
1.38 "Unit" mean a residential unit constituting the Project.
1.39 "Urban Core" shall mean the area within the Agency's Merged Project Area
No. 1 boundaries, including any of the following project areas: Central
Business District, Chinatown Expanded, Convention Center, Fulton,
Jefferson, Mariposa, South Van Ness lndustrial, West Fresno l, or West
Fresno ll; and, the residential portion of the Freeway-99 Golden State
Corridor Redevelopment Project Area.
CONDITIONS PRECEDENT TO AGENCY'S OBLIGATION TO PERFORM
UNDER THIS AGREEMENT. The following are conditions precedent to
Agency's obligation to perform under this Agreement. Until each and all of
the conditions are satisfied, Agency is not obligated to take any action, or
provide any funding, or further funding, under this Agreement. Agency, in
writing by its authorized representative, may waive any condition or agree to
extend the time for satisfaction of any condition set fodh in this Section 2.
Agency may terminate this Agreement as provided herein for the failure of a
condition.
2.1 Owner shall pay for and provide a title report, recorded deed, or other
evidence acceptable to Agency that Owner owns the Property.
2.2 Owner has entered into, and provided Agency copies of agreements with
any and all Funding Sources and the general contractor for the Project.
All such Funding Source agreements shall contain a provision whereby the
party(ies) to each such agreement, other than Owner, agree to make
reasonable efforts to (i) notify Agency immediately of any event of default
by Owner under such agreement; (ii) notify Agency immediately of
termination or cancellation of such agreement; and (iii) provide Agency,
upon Agency's request,
agreement is in full force
such agreement.
estoppel certificate certifying that such
effect and Owner is not in default under
an
and
2.3 Owner has submitted evidence that the combined monies from the
Funding Sources, are not less than the greater of a total development
cost of $21,060,342 or the amount which Agency determines is necessaryto complete the lmprovements, including evidence of such Funding
Sources acceptable to the Agency. Owner intends to apply for one or
more of the following sources: (A) the lnfill lnfrastructure Grant Program
("lnfill Grant") administered by the California Housing and Community
Development Commission ("HCD") in the FY14-15 funding cycle with an
application date of December 10, 2014; (B) the Multi-Family Housing
Program (.MHP Loan") administered by HCD in the first round for the
next available funding cycle in 2015; and (C) the Low lncome Housing
Tax Credit program administered by California Tax Credit Allocation
Committee.
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2.4
2.5
2.6
2.7
lf owner fails to obtain both an lnfill Grant and the MHp Loan within ihe
timeframes set forth above, Agency reserves the right to cancel its
obligations hereunder, including the Loan described in section 1.25.
However, if owner is successful in obtaining either an lnfill Grant or an
MHP Loan as described above, Agency shall not terminate its obligations
pursuant to this section 2.3, but may terminate the agreement as
otherwise provided herein. Notwithstanding the foregoing, Agency's
obligation to provide the Loan shall expire one year foilowing the
Effective Date, unless the owner has obtained commitment for all
Funding sources by that date. lf Agency determines that the funds
described above are not sufficient to complete the project, owner may
satisfy this condition as agreed to by Owner and Agency in writing.
owner will submit its Financing Plan to the Agency for review and
acceptance provided that the purpose of Agency's review is solely to confirm
owner has sufficient funds available to complete the lmprovements and
maintain the Project as this Agreement requires.
After Agency accepts the Financing Plan, owner will not make any Material
change in the Financing Plan without first submitting such change to Agency
for review and acceptance, which shall not be unreasonably withheld,
delayed, or conditioned.
owner will submit financial information, as appropriate, to demonstrate
sufficient financial capacity to carry out the Project.
owner, at owner's expense, shall have investigated and determined all
environmental, soil, seismic, and other surface and subsurface conditions of
the Property and the suitability of such conditions for the project. owner's
responsibility and due diligence includes, but is not limited to, determining
the presence of Hazardous Materials. Both owner and Agency will prompfly
give the other copies of all reports and test results. owner will indemnify,
defend, and hold Agency harmless from any damages or claims arising out
of Owner's inspections and tests.
should owner's property assessmenuinspection revear any Hazardous
Materials or environmental conditions requiring remediation, owner will
promptly notify Agency. Not later than ten (10) days from and after such
notice, Owner shall, at its sole cost and expense, commence to make
required submittals, develop required remedial action plans, and thereafter
pursue remediation activities as to such Hazardous Materials or
environmental conditions and to diligently prosecute such to completion as
required by applicable federal, state and local law and in a manner and
according a reasonable time frame agreeable to Agency. Without limiting the
foregoing, any remediation will be performed pursuant to a remedial action
plan, if needed, approved by the governmental agencies having jurisdiction
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and will be performed according to applicable environmental laws and
governmental requirements.
2.8 Owner shall not be in default of this Agreement and all representations and
warranties of Owner contained herein shall continue to be true and correct
in all material respects.
2.9 Owner will have signed and delivered all documents required hereunder.
2.1O Owner will have received all land use and development approvals,
variances, permits and the like, if any, required by this Agreement.
2.11 Owner shall be in full compliance with the Performance and Payment
Schedule.
2.12 Owner will have provided proof of insurance as required by this Agreement.
2.13 This Agreement, the executed Deed of Trust, and the executed Restrictions
shall have been recorded with the Fresno County Recorder's Office.
OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS
PRECEDENT. The following obligations of Owner will run with the land and
survive this Agreement, and will become effective upon the date Owner
acquires fee title to the Property:
3.1 Owner will take all reasonable precautions to prevent the release into
the environment of any Hazardous Materials in, on, or under the Property
in violation of applicable laws or regulations. Owner will comply with all
governmental requirements with respect to Hazardous Materials. ln
addition, Owner shall install and use equipment and implement and follow
procedures that are consistent with reasonable standards for the
disclosure, storage, use, removal, and disposal of Hazardous Materials.
3.2 Owner will notify the Agency and give Agency a copy of all environmental
permits, disclosures, applications, entitlements or inquiries relating to the
Propefty including, without limitation, notices of violation, notices to comply,
citations, inquiries, cleanup or abatement orders, cease and desist orders,
repofis filed pursuant to self-reporting requirements and reports filed or
applications made pursuant to any governmental regulation relating to
Hazardous Materials. Within 3 days after each incident, Owner will repoft to
Agency any unusual or potentially important incidents respecting the
environmental condition of the Property.
lf a release of any Hazardous Materials into the environment occurs,
Owner will, as soon as possible after the release, furnish Agency with
a copy of any reports relating thereto and copies of all correspondence
with governmental agencies relating to the release. Upon request,
12
4.
Owner will furnish Agency with a copy of any other environmental
entitlements or inquiries relating to or affecting the Propefty including,
without limitation, all permit applications, permits, and reports, even
reports and other matters.
3.3 Owner shall indemnify, hold harmless and defend Agency, City and each of
their officers, officials, employees, agents and volunteers from any and all
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine,
penalty, punitive damage, or expense (including, without limitation,
reasonable attorneys' fees), arising out of (i) the presence, release, use,
generation, discharge, storage or disposal of any Hazardous Materials on,
under, in or about the PropeÉy, or the transportation of any Hazardous
Materials to or from the Property, or (ii) the violation, or alleged violation, of
any statute, ordinance, order, rule, regulation, permit, judgment or license
relating to any use, generation, release, discharge, storage, disposal or
transportation of Hazardous Materials on, under, in or about, to or from, the
Property. This indemnity will include, without limitation, any damage,
liability, fine, penalty, parallel indemnity after closing, cost or expense arising
from or out of any claim, action, suit or proceeding for personal injury
(including sickness, disease or death), tangible or intangible property
damage, compensation for lost wages, business income, profits or other
economic loss, damage to the natural resource or the environment,
nuisance, contamination leak, spill, release or other adverse effect on the
environment. Owner's obligations under the preceding sentence shall apply
regardless of whether Agency, City or any of their officers, officials,
employees, agents or volunteers are negligent, but shall not apply to any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine,
penalty, punitive damage, or expense caused solely by the gross negligence,
or caused by the willful misconduct, of Agency, City or any of their officers,
officials, employees, agents or volunteers. This section shall survive
expiration or termination of this Agreement.
3.4 The status and qualifications of Owner are of particular concern to
Agency. until the Restrictions expire, no voluntary or involuntary
successor-in-interest of Owner will acquire any rights or powers under this
Agreement, provided that the parties acknowledge the Owner shall hold
the Affordable Units for rental as Affordable Rental Housing as
provided in this Agreement. Notwithstanding anything to the contrary
herein, Owner shall have the right to transfer ownership of the Property
to a related entity having experience in the ownership and operation of
Affordable Rental Housing, as reasonably determined by Agency, which
approval shall not be unreasonably withheld.
DEVELOPMENT OF THE PROPERTY.
Except as set forth in this Agreement, before Owner begins constructing
the lmprovements or undedakes any other work of improvement on
4.1
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4.2
the Property, Owner, at its own cost and expense, will secure all land
use and other entitlements, permits, and approvals that Agency or any
other governmental agency with jurisdiction over the Project requires
for construction of the Project. Without waiver or limitation, Owner will
secure and pay all costs, charges and fees associated with, the following:
4.1.1 All permits and fees that the City, County of Fresno, and other
governmental agencies with jurisdiction over the Project, the
lmprovements, or the Property may require.
4.1.2 ADA/Barriers to the Disabled. The Project shall comply with all
applicable federal, state, and local accessibility requirements.
Scope of Development and Project Design. Owner has submitted a
general or basic concept drawing to Agency, which Agency has approved,
and a copy of which is attached as Exhibit "E" (the "Scope of Development
and Project Design"). Owner will complete the lmprovements on the
Property in one phase, according to the Scope of Development and
Project Design, and the plans, drawings, and documents that Owner
submits to Agency. Owner shall carry out construction of the Project
including the lmprovements in accordance with all applicable local, state
and federal laws, codes, ordinances and regulations, including without
limitation all applicable state and federal labor standards.
Books and Records. Owner shall make available for examination at
reasonable intervals and during normal business hours, all books,
accounts, reports, files and other papers or property with respect to all
matters covered by this Agreement, and shall permit Agency to audit,
examine, and make excerpts or transcripts from such records. Agency may
audit any conditions relating to this Agreement at Agency's expense, unless
such audit shows a materially significant discrepancy in information reported
by Owner to Agency in which case Owner shall bear the cost of such audit.
Owner shall also reasonably cooperate with and assist the Agency in
Agency's compliance with any applicable audit requirements of the California
Redevelopment Law including California Health and Safety Code Sections
33080 and 33080.1 . This section shall survive for a period of four years after
the expiration or termination of this Agreement.
Audit. Owner shall be accountable to Agency for all Loan funds disbursed
to Owner pursuant to this Agreement. Owner will cooperate fully with Agency
and the State of California in connection with any interim or final audit relating
to the Project that may be performed. Owner will maintain accurate and
current books and records for the Project using generally accepted
accounting principles. Owner agrees to maintain books and records that
accurately and fully show the date, amount, purpose and payee of all
expenditures financed with Loan funds and to keep all invoices, receipts and
other documents related to expenditures financed with Loan funds for not
4.3
4.4
14
45
less than four (4) years after the fiscal year in which such expenditures are
incurred. For purposes of this section, "books, records, and documents,'
include, without limitation, plans, drawings, specifications, ledgers, journals,
statements, contracts/agreements, funding information, purchase orders,
invoices, loan documents, computer printouts, correspondence, memoranda
and electronically stored versions of the foregoing. This section shall survive
for a period of four years after the expiration or termination of this Agreement.
owner shall cause the issuance of all necessary discretionary governmental
permits, approvals and entitlements, close any implicated funding or other
escrow and begin/complete construction of the lmprovements according to
the Peformance and Payment Schedule.
4.5.1 Construction Completion Date. Agency, acting through and in the
discretion of its Director, may extend the Construction Completion Date of
the Project for that period of time that Agency, in its reasonable discretion,
determines necessary to overcome any delay if and to the extent such delay
is due to a cause which is beyond owner's reasonable control, and if owner
could not, with reasonable diligence, have foreseen and avoided such cause
for delay. Such causes include, without limitation, acts of God, unusually
severe weather or flood, war, terrorism, riot or act of the public enemy, labor
disputes, unavoidable inability to secure labor, materials, supplies, tools or
transportation, or acts or omissions of any governmental authority having
jurisdiction. Agency will not extend the Construction Completion Date for acts
or omissions occurring through the fault of Owner, or for acts of Agency
permitted or contemplated by this Agreement. An extension of time as
provided in this subsection will be owner's sole remedy for any delays in the
Performance and Payment Schedule.
As a condition precedent to any extension requested by owner, owner will
give the Agency notice within ten (10) days after any cause for delay occurs,
stating the cause and the additional time owner anticipates needed to
complete the Project. Any extension by Agency must be in writing and signed
by the Director or the Director's designee, which approval shall not be
unreasonably withheld, delayed, or cond itioned.
subject to the terms of this Agreement, the Loan shall be disbursed to
owner according to the Performance and Payment schedule. All Loan
funds shall be used solely for costs of the Project and lmprovements. ln
the event Owner does not complete construction of the Project by the
construction completion Date, as may be extended pursuant to section
4.5.1, or othenruise does not go forward with the Project, any portion of
the Loan advanced to the Owner shall be immediately due and payable
upon the written demand of Agency.
certificate of completion. owner will notify Agency when owner deems the
Project complete. within ten (10) business days after such notice, Agency
46
4.7
15
4.8
will inspect the lmprovements. When Agency reasonably determines Owner
has completed the lmprovements as required in this Agreement, the Plan,
and the Law, Agency will furnish Owner with the Certificate of Completion.
Agency will not unreasonably delay, condition or refuse to issue the
Certificate of Completion. The recorded Certificate of Completion will be a
conclusive determination that Owner has satisfactorily completed the
lmprovements required under this Agreement. Any parties then owning or
subsequently purchasing, leasing or otheruise acquiring any interest in the
Property will not (because of that ownership, purchase, lease or acquisition)
after the recording, incur any obligation or liability under this Agreement for
constructing the lmprovements, but will take such interest in the Property
subject to the continuing covenants set forth in this Agreement.
4.7.1 lf Agency determines not to furnish the Certificate of Completion,
in accordance with Section 4.7 above, Agency will give Owner a written
notice stating why Agency has decided not to issue the Certificate of
Completion, or why it is delaying the issuance, and the reasonable actions
that, in Agency's opinion, Owner must take before Agency can issue the
Certificate of Completion. Agency's failure to give the notice within ten
(10) days, however, will not cause the Owner to be entitled to the
Certificate of Completion. The Certificate of Completion is not a notice of
completion as referred to in Section 3093 of the California Civil Code.
4.7.2 The following are conditions precedent to Agency issuing the
Certificate of Completion, and each submission will be in form and
substance satisfactory to the Director: Evidence that the time to file all
mechanics' liens or material men's liens has expired and any such liens
recorded against the Property or lmprovements have been released or, if
not released, sufficiently bonded (i.e. 150%) against as required by law.
To the extent economically feasible, consistent with the requirements of
any permitted encumbrance, or as otheruvise approved by Agency or
provided in the Agreement, if any building or improvement on the Property
is damaged or destroyed by an insurable cause, Owner shall, at its cost
and expense, diligently undertake to repair or restore said buildings and
improvements consistent with the Scope of Development and Project
Design for the Project. Such work or repair shall commence within ninety
(90) days after the insurance proceeds are made available to Owner
and shall be complete within one (1) year thereafter. All 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, Owner shall make up the deficiency.
lnspections. Owner shall permit, facilitate, and require its contractors to
permit and facilitate observation and inspection of the Project by Agency
during reasonable business hours and upon reasonable notice for the
purpose of determining compliance with this Agreement.
4.9
16
4.10 lf and to the extent that development of the Project results in the
permanent or temporary displacement of residential tenants, homeowners
or businesses, Owner shall comply with all applicable local, state and
federal statutes and regulations with respect to relocation planning,
advisory assistance and payment of monetary benefits. Owner shall be
solely responsible for payment of any relocation benefits to any displaced
persons and any other obligations associated with complying with said
relocation laws. For purposes of this Section 4.10 the parties acknowledge
that as of the Effective Date the Project Property is vacant and
unoccupied.
4.11 Reporting Requirements.
reports:
Owner shall submit to Agency the following
4.11.1 Annual Reports. Annually, beginning in the yearfollowing Agency's
issuance of the Ceftificate of Completion, and continuing until the
expiration of this Agreement, on such dates as are agreeable between the
parties and consistent with all federal and state reporting requirements
applicable to the Project, Owner shall submit an annual report to Agency,
in a form approved by Agency. Such annual report shall include for each
of the Affordable Units: the rent, the annual income, and the family size
of the Household occupying the Affordable Unit. Such annual repoft shall
also state the date the tenancy commenced for each Affordable Unit,
certification from an officer of Owner that the Affordable Unit is in
compliance with the Affordable Rental Housing requirements, and such
other information the Agency may be required by Law to obtain. Owner
shall provide any additional information reasonably requested by the
Agency provided such information is directly related to Owner's compliance
with this Agreement.
4.11.2 Annual Proof of lnsurance. Annually, beginning in the year following
Agency's issuance of the Certificate of Completion, and continuing until
the expiration of the Agreement, Owner shall submit proof of insurance
as required by this Agreement.
4.12 All Leases used to rent the Affordable Units are subject to the following:
4.12.1 Annual lncome Certification and Reporting. Owner shall include in
leases for all Affordable Units provisions which authorize Owner to
immediately terminate the tenancy of any Household one or more of
whose members misrepresented any fact material to the Household's
qualification as a Household as an extremely low, very low, lower, or
moderate income family, as applicable. Each such lease shall also provide
that the Household is subject to annual certification, and that, if the
Household's annual income increases above the applicable limits for low
income family such Household's rent may be subject to increase to the
17
amount payable by tenant under federal, state or local law, except that,
consonant with the Law, tenants of the Affordable Units that have been
allocated to low income housing tax credits by a housing credit agency
pursuant to section 42 ofthe lnternal Revenue Code of 1986 (26 U.S.C.
42) must pay rent governed by Section 42.
4.12.2 The leases for the Affordable Units shall provide that if the Project is
subject to state or federal rules governing low income housing tax credits,
the provision of those rules regarding continued occupancy by, and
increases in rent for, Households whose incomes exceed the eligible income
limitation shall apply in place of the provisions set forth in subsection 4.12.1
above.
4.13 With respect to the Project, Owner shall comply with the following:
4.13.1 Except to any extent otherwise provided in this Agreement, Owner is
specifically responsible for all management functions with respect to the
Affordable Units including, without limitation, the selection of tenants,
certification and re-certification of Household size and income, evictions,
collection of rents and deposits, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items and security. Agency
shall have no responsibility for management of the Affordable Units of the
Project.
4.13.2 Owner covenants and agrees the Affordable Units shall constitute
Affordable Rental Housing during the entire Affordability Period. lf Owner
fails to comply the requirement to lease the Affordable Units only to qualified
Households during the Affordability period, as described in the attached
Form of Regulatory Agreement and Declaration of Covenants and
Restrictions attached hereto as Exhibit "F," Agency shall be entitled to enjoin
Owner from leasing the Affordable Units in the Project, as Owner
acknowledges that damages are not an adequate remedy at law for such
breach.
INDEMNITY; INSURANCE
Owner shall indemnify, hold harmless and defend Agency, City and each
of their officers, officials, employees, agents from any and all loss, liability,
fines, penalties, forfeitures, costs and damages (whether in contract, torl
or strict liability, including but not limited to personal injury, death at any
time and propefty damage) incurred by Agency, City, Owner, or any other
person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have
arisen directly or indirectly out of Owner's peformance of this Agreement.
Owner's obligations under the preceding sentence shall not apply to any
loss, liability, fines, penalties, forfeitures, costs, or damages caused solely
by the gross negligence, or calrsed by the willful misconduct, of Agency,
5.1
18
5.2
City or any of their officers, officials, employees, agents or volunteers.
This section shall survive expiration or termination of this Agreement.
Following acquisition of the PropeÉy, and thereafter, throughout the life
of this Agreement, the Owner shall pay for and maintain in full force and
effect all policy(ies) of insurance required hereunder with an insurance
company either (1) admitted by the California lnsurance Commissioner
to do business in the State of California and rated not less than "A-Vll"
in Best's lnsurance Rating Guide, or (2) authorized by the Agency's
Risk Manager or his/her designee. The following policies of insurance
are required:
5.2.1 Until the Cedificate of Completion is recorded, Builders Risk
(Course of Construction) insurance in an amount equal to the
completed value of the project with no coinsurance penalty provisions.
5.2.2 Following the recording of the Certificate of Completion,
COMMERCIAL PROPERTY insurance which shall be at least as broad
as the most current version of lnsurance Service Office (lSO)
Commercial Propedy Form CP 10 30 (Cause of Loss - Special Form),
with limits of insurance in an amount equal to the full (100%) replacement
cost (without deduction for depreciation) of the lmprovements with no
coinsurance penalty provisions. Such insurance shall include coverage
for business income, including "rental value", in an amount equal to the
eighteen (18) months of the annual rent generated by the lmprovements.
Coverage for business income, including "rental value," shall be at least
as broad as the most current version of lnsurance Service Office (lSO)
Commercial Property Form CP 00 30.
Owner shall be responsible for payment of any deductibles contained
in any insurance policies required hereunder and Owner shall also be
responsible for payment of any self-insured retentions. Any deductibles
or self-insured retentions must be declared to, and approved by, the
Agency's Risk Manager or his/her desrgnee.
All policies of insurance required hereunder shall be endorsed to provide
that the coverage shall not be cancelled, non-renewed, reduced in
coverage or in limits except after 30 calendar day written notice has been
given to Agency. Upon issuance by the insurer, broker, or agent of a
notice of cancellation, non-renewal, or reduction in coverage or in limits,
Owner shall furnish Agency with a new certificate and applicable
endorsements for such policy(ies). ln the event any policy is due to expire
during the term of this Agreement, Owner shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less
than 15 calendar days priorto the expiration date of the expiring policy.
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5.3
The Builders Risk (Course of Construction) and Property insurance policies
shall be endorsed to name Agency as a loss payee.
Owner shall furnish Agency with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates and
applicable endorsements are to be received and approved by the Agency's
Risk Manager or his/her designee prior to Agency's execution of this
Agreement.
lf at any time Owner fails to maintain the required insurance in full force and
effect, Owner shall immediately discontinue all work under this Agreement
until Agency receives notice that the required insurance has been restored
to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the Agency. Owner's failure to maintain any required
insurance shall be sufficient cause for Agency to terminate this Agreement.
The fact that insurance is obtained by Owner shall not be deemed to release
or diminish the liability of Owner, including, without limitation, liability under
the indemnity provisions of this Agreement. The duty to indemnify Agency,
City and each of their officials, officer, employees, agents, and volunteers
shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Owner. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor
limit the liability of Owner.
Upon request of Agency, Owner shall immediately furnish Agency with a
complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underuvriter to be
a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
Owner will obtain and deliver payment and performance bonds issued
by an insurance company admitted in California in good standing as a
surety and meeting the criteria for Owner's other insurance under this
Agreement, each bond in an amount at least equal to 100% of Owner's
estimated construction costs, provided that the Agency hereby waives
any requirement for said bonds at all time during which Owner is in full
compliance with this Agreement and the Project remains fully funded.
Until Agency issues the Certificate of Completion Agency will have access
to the Property, after reasonable notice to the Owner (except in
emergencies), without charge or fee, during normal construction hours, for
purposes of assuring compliance with this Agreement. Agency
representatives will comply with all safety rules while on the Project or the
Property.
5.4
20
5.5 Owner will design and construct the lmprovements, and after that, prior to
any allowable transfer or sale thereof, Owner will maintain the Property
according to all applicable laws including, without limitation, all applicable
state labor standards, Agency zoning, and development standards,
building, plumbing, mechanical and electrical codes, all provisions of the
Fresno Municipal Code and all applicable access requirements. Agency
makes no representation about which, if any, of such laws, ordinances,
regulations, or standards apply to development of the Project.
Owner acknowledges that Owner, notAgency, is responsible for determining
applicability of and compliance with all local, state, and federal laws
including, but not limited to, any applicable provisions of the California Labor
Code, Public Contract Code, and Government Code. Agency makes no
express or implied representation as to the applicability or inapplicability of
any such laws to this Agreement or to the parties' respective rights or
obligations hereunder including, but not limited to, payment of prevailing
wages, competitive bidding, subcontractor listing, or similar or different
matters. Owner further acknowledges that Agency shall not be liable or
responsible at law or in equity for any failure by Owner to comply with any
such laws, regardless of whether Agency knew or should have known of the
need for such compliance, or whether Agency failed to notify Owner of the
need for such compliance.
5.6 Following acquisition of the Property, Owner will take reasonable efforts to
not permit any lien or stop notice to be filed against the Propefty, provided
Owner may reasonably determine to contest any such lien or stop notice. lf
Owner discovers that any lien or stop notice has been recorded against the
Property, Owner will notify the Agency within fifteen (15) days following such
discovery. lf a claim of lien or stop notice is recorded against the Property or
lmprovements, Owner, within 30 days after recordation of a claim of lien or
stop notice or within 5 days after Agency's demand, whichever first occurs,
will do the following:
5.6.1 Pay and discharge the same; or
5.6.2 Effect the release of such lien by recording and serving upon the
claimant a surety bond in sufficient form and amount (i.e. 150%), or
othen¡rise, and provide evidence of same to Agency; or
5.6.3 Give Agency other assurance which Agency, in its sole discretion,
deems satisfactory to protect the Agency from the effect of the lien or
stop notice.
SECURITY FINANCING AND RIGHTS OF HOLDERS.
Notwithstanding any other provision of this Agreement, Owner may not
grant a security interest in the Property before the Agency issues and
b.
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7.
records a Certificate of Completion, without the written consent of Agency,
provided that Agency hereby approves the recommended security interest
of Owner's financial institutions, including their respective successors or
assigns, as described in the Financing Plan.
CONTINUING OWNER OBLIGATIONS
7.1 ln its performance of this Agreement, Owner covenants by and for itself
and its successors and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of any
person, including contractors, subcontractors, bidders and vendors, on
account of race, color, religion, ancestry, national origin, sex, sexual
preference, âgê, pregnancy, childbirth or related medical condition, medical
condition (e.9., cancer related) or physical or mental disability, and in
compliance with all applicable federal, state and local laws, regulations
and rules including without limitation Title Vll of the Civil Rights Act of
1964,42 U.S.C. Sections 2000, ef seq., the Federal Equal pay Act of
1963, 29 U.S.C. Section 206(d), the Age Discrimination in Employment
Act of 1967,29 U.S.C. Section 621, ef seq., the lmmigration Reform
and Control Act of 1986, 8 U.S.C. Section 1324b, ef seq., 42 U.S.C.
section 1981, the california Fair Employment and Housing Act, cal.
Government code section 12900, et seq., the california Equal pay Law,
Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135,
the Americans with Disabilities Act, 42 u.s.c. section 12101, ef seq.,
and all other applicable anti-discrimination laws and regulations of the
united states and the state of california as they now exist or may
hereafter be amended. Owner will allow Agency representatives access to
its employment records related to this Agreement during regular business
hours and upon reasonable notice to verify compliance with these
provisions when so requested by the Agency.
7.2 Following acquisition of the Property, Owner will pay before delinquency all
ad valorem real estate taxes and assessments on the Property, subject to
the Owner's right to contest in good faith any such taxes. Owner will remove
any levy or attachment on the Property or any parl of it, or assure the
satisfaction of the levy or attachment within a reasonable time. Owner will.notify Agency prior to applying for or receiving any exemption from the
payment of propefty taxes or assessments on any interest in or to the
Property or the lmprovements. Owner further agrees that the prior consent
of Agency shall be required if the basis for such exemption is other than for
qualified property held by a nonprofit entity that has been determined to be
exempt from federal and state income taxation, which consent shall not be
unreasonably withheld.
COVENANTS AND RESTRIGTIONS RUNNING WITH THE LAND. The foilowing
covenants shall run with the land and shall bind owner, and owner's
successors in interest to the Property for the periods stated, and shall be fully
8.
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82
binding for the benefit of the Plan community and Agency without regard to
technical classification or designation, legal or othenruise.
8.1 Owner covenants for itself, its successors, assigns, and every successor
in interest to the Property or any part of it that, after closing of any
applicable escrow, during construction, and after completing the
lmprovements, the Owner shall devote the Affordable Units on the
Property to the uses specified in this Agreement for the Affordability
Period. All uses of the Affordable Units including, without limitation, all
activities Owner undeÉakes pursuant to this Agreement, shall conform with
this Agreement and the Law. Without waiver or limitation, each of the
Affordable Units to be constructed pursuant to this Agreement shall be
maintained as Affordable Rental Housing pursuant to this Agreement and
the Restrictions.
Owner and those taking under Owner will maintain the Property and all
lmprovements on site in reasonably good-condition and repair (and, as to
landscaping, if any, in a healthy condition), all according to the Scope of
Development and Project Design and related plans, as-amended from time
to time. Owner and those taking under Owner shall: (i) maintain all on-site
lmprovements according to all other applicable laws, rules, ordinances,
orders, and regulations of all federal, state, county, municipal, and other
governmental agencies and bodies having or claiming jurisdiction and all
their respective depaftments, bureaus, and officials; (ii) keep the
lmprovements free from graffiti; (iii) keep the Property free from any
accumulation of debris or waste material; (iv) promptly make repairs and
replacements to the on-site lmprovements; and (v) promptly replace any
dead, or diseased plants and/or landscaping (if any) with comparable
materials.
Agency will give Owner written notice of any breach of this Section 8.2.
Within 10 days from receipt of such notice, Agency and Owner will meet and
confer, and agree to corrective actions and a schedule of performance for
such corrective actions. Owner must cure the default within the agreed
schedule or within (a) 10 days after the Agency's notice for any default
involving landscaping, graffiti, debris, waste material, or general
maintenance on the PropeÉy; or (b) 30 days after Agency's notice for any
default involving the lmprovements. lf Owner does not cure the default within
the agreed schedule, Agency, without obligation to, may enter the Property,
cure the default, and protect, maintain, and preserve the lmprovements and
landscaping.
Agency may lien or assess the Property for the Agency's expenses in
protecting, maintaining, and preserving the on-site lmprovements and
aesthetics of the Property, including any lawful administrative charge in the
manner used by the Agency in the abatement of public nuisances. The notice
and opportunity to cure provided for herein will supplement the noticing,
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84
hearing, and nuisance abatement order used by Agency. Owner will
promptly pay all such amounts to Agency upon demand.
From the Effective Date untilthe expiration of the Affordability Period, Owner
covenants to use and operate the Affordable Units on the Property as
Affordable Rental Housing pursuant to this Agreement.
Owner covenants for itself and any successors in interest and all persons
claiming by, through or under them, in perpetuity, that there shall be no
discrimination against or segregation of any person or group of persons
because of race, color, creed, religion, sex, sexual preference, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Affordable Units, nor shall Owner
itself or any person claiming under or through Owner establish or permit any
such practice or practices of discrimination or segregation concerning the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Affordable Units.
All deeds, leases, or contracts concerning the Affordable Units shall contain
or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
ln deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and
all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of
persons because of race, color, creed, religion, sex, sexual
preference, marital status, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the grantee or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation concerning the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein, conveyed.
The foregoing covenants shall run with the land."
ln leases: "The lessee herein covenants by and for himself or herself,
his or her heirs, executors, administrators, and assigns, and all
persons claiming under or through him or her, and this lease is made
and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation
of any person or group of persons, because of race, color,
creed, religion, sex, sexual preference, marital status, national
origin, or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased
nor shall the lessee himself or herself, or any person claiming
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9.
under or through him or her, establish or permit any such
practice or practices of discrimination or segregation
concerning the selection, location, number, use, or occupancy
of tenants, lessees, sublessees, subtenants, or vendees in the
premises herein leased."
ln contracts: "There shall be no discrimination against or segregation
of, any person, or group of persons because of race, color, creed,
religion, sex, sexualpreference, marital status, national origin, or
ancestry, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor shall the transferee himself
or herself or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or
segregation concerning the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of
the premises."
8.6 Agency is the beneficiary of the covenants running with the land for itself
and for protecting the interests of the community and other parties, public
or private, in whose favor and for whose benefit the covenants are
provided, without regard to whether Agency has been, remains, or is an
owner of any land or interest in the Affordable Units on the Property.
Agency may exercise all rights and remedies, and maintain any actions
or suits at law or in equity or other proceedings to enforce the covenants
for itself or any other beneficiaries.
DEFAULTS AND REMEDIES
9.1 Subject to the extensions of time permitted under this Agreement, either
party's failure to perform any material action or material covenant as
required by this Agreement, following notice and failure to cure, is a
"Default" under this Agreement. A party claiming a Default shall give written
notice of Default to the other party specifying the Default complained of,
and the cure demanded. Except as otheruvise expressly provided in this
Agreement, the noticing party shall not begin any proceeding against the
other party until the other party is given an opportunity to cure the Default.
The other party will have 30 calendar days after receiving the notice to
cure the Default, or, if the party cannot reasonably cure the Default within
such 30 days, the other party must begin to cure within the 30 days and
diligently pursue the cure to completion, whereupon there shall be no
event of Default.
Subject to first giving the notice and opportunity to cure, a party may begin
an action at law to enforce, or in equity to seek specific performance of, the
terms of this Agreement, or to cure, correct, or remedy any Default, to
recover damages for any Default, or to obtain any other remedy consistent
with the purpose of this Agreement. A party must bring any legal action in
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9.3
the superior court of the county of Fresno, state of carifornia, in an
appropriate municipal court in Fresno County, or in the District of the United
States District Court serving Fresno County.
lf owner begins any legal action against Agency, it shail serve process on
the Agency by personal service on the Director, or in any other manner the
law permits. lf Agency begins any legal action against the owner, it will serve
process on the owner by personal service on owner, owner's Agent or in
any other manner the law permits.
Except as othenruise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and a party's exercise of one or more
rights or remedies will not preclude the party's exercise, at the same or
different times, of any other rights or remedies for the same or any other
Default of the other party.
A party's failure or delay in asserting any right or remedy will not be a waiver
of any Default or of any right or remedy, and will not deprive the party of its
right to begin and maintain any action or proceeding to protect, assert or
enforce any right or remedy.
The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
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10. GENERAL PROVISIONS
10.1 Any notice, demand, or other communication permitted or required
under this Agreement will be inwriting and given by personal delivery, or
byfirst-class U.S. mail, postage prepaid, to a party at its respective
address below:
To Agency:
City of Fresno,
Housing Successor to the
Redevelopment Agency of the
City of Fresno
ATTN: City Manager
2600 Fresno Street
Fresno, CA93721
With a Copy to:
Executive Director
Successor Agency to the
Redevelopment Agency of the City of Fresno
2344Tulare Street, Ste. 200
Fresno, CA93721
To Owner:
APEC lnternational, LLC
ATTN: Eugene Kim
770 South lrolo Street, Suite 1000
Los Angeles, CA 90005
A party may change its address for notices, demands and communications
by giving notice of the new address as provided in this section. The
notice shall be deemed given three (3) business days after the date of
mailing, or, if personally delivered, when received.
10.2 All of the terms, covenants, and conditions of this Agreement shall be
binding upon the Owner and its permitted successors and assigns.
Whenever the term "Owner" is used in this Agreement, such term shall
include Owner's successors and assigns as permitted under this
Agreement.
Owner may assign its interest to a California limited partnership with APEC
lnternational, LLC. (or another APEC affiliate designated by the APEC), as
the Administrative General Partner, a nonprofit corporation to be chosen by
27
Owner as the Managing General Partner, and a tax credit investor chosen
by Owner as a limited partner investor, subject to approval by Agency. The
amount and terms of the limited partner investor's obligation to make capital
contributions must be in a form and substance acceptable to the Agency.
10.3 The Agency may assign or transfer any of its interests, rights, or obligations
hereunder at any time to any public agency without the consent of the
Owner.
10.4 No member, official, or employee of the Agency shall be personally liable to
the Owner, or any successor in interest to Owner, for any Default or breach
by the Agency.
10.5 The relationship between the Agency and the Owner is that of
redevelopment agency and redeveloper respectively, as permitted by law,
and not that of a partnership or joint venture. Agency and Owner shall not be
deemed or construed for any purpose to be the agent of the other.
10.6 Whenever this Agreement references an action or approval required or
permitted by the Agency, the Director or his or her designee is authorized to
act for the Agency as agent of the Agency unless this Agreement, the Law,
Constitutional and/or local law provide otherwise, or the context otherwise
requires. Whenever this Agreement requires reasonable notice to be
provided, such notice shall be in writing and be at least four (4) business
days.
10.7 This Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute one and the same
agreement. The parties agree that this Agreement will be considered signed
when the signature of a party is delivered by facsimile or e-mail transmission.
A facsimile or e-mail signature shall be treated in all respects as having the
same effect as an original signature. The parties will sign three copies of this
Agreement, each of which is deemed to be original.
10.8 This Agreement includes the exhibits and attachments referenced and
incorporated in it. This Agreement contains the entire agreement between
the parties relating to the transaction contemplated by this Agreement and
supersedes all prior or contemporaneous agreements, understanding,
representation and statements, whether oral or written.
10.9 lf either party begins a lawsuit or arbitration proceeding, in law or equity, to
enforce or interpret any provision of this Agreement, the prevailing parly will
be entitled to recover from the other party reasonable attorneys' fees, court
costs, and legal expenses as determined by the couft or tribunal having
jurisdiction.
28
10.10 Any waiver, alteration, change, or modification of or to this Agreement, to be
effective, must be in writing, and signed by each party.
10.11 lf any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances is held invalid or unenforceable,
the remainder of this Agreement and its application to persons or
circumstances, other than those about whom or which it is held invalid or
unenforceable, shall not be affected, and shall remain valid and enforceable
to the fullest extent permitted by law.
10.12 Each party represents and warrants to the other that (a) each has read this
Agreement, and (b) is signing this Agreement with full knowledge of any
rights and obligations each may have, and (c) each has received
independent legal advice from their respective legal counsel as to the
matters set forth in this Agreement, or has knowingly chosen not to consult
legal counsel, and (d) has signed this Agreement without relying on any
agreement, promise, statement or representation by or for the other party, or
their respective agents, employees, or attorneys, except as specifically set
forth in this Agreement, and without duress or coercion, whether economic
or otherwise.
10.13 No member, official or employee of Agency has or shall have any personal
interest, direct or indirect, in this Agreement, not shall any such member,
official or employee participate in any decision relating to the Agreement
which affects his personal interests or the interests of any corporation,
partnership or association in which he is directly or indirectly interested.
Owner represents and warrants that it has not paid or given, and will not pay
or give, to any third party any money or other consideration for obtaining this
Agreement, other than normal costs of conducting business and costs of
professional services such as architects, consultants, engineers, and
attorneys.
10.14 The parties will execute such other and further documents, and will take any
other steps, necessary, helpful, or appropriate to carry out the provisions of
this Agreement.
10.15 No contractor, subcontractor, mechanic, material man, laborer, vendor, or
other person hired or retained by with Owner shall be, nor shall any of them
be deemed to be, third-party beneficiaries of this Agreement, rather each
such person shall be deemed to have agreed (a) that they shall look to
Owner as their sole source of recovery if not paid, and (b) except as
'othenruise agreed to by Agency and any such person in writing, they may not
enter any claim or bring any such action against Agency under any
circumstances. Except as provided by law, or as othenruise agreed to in
writing between Agency and such person, each such person shall be
deemed to have waived in writing all right to seek redress from Agency under
any circumstances whatsoever.
29
10.16 Owner hereby covenants and warrants that it is a duly authorized and
existing California limited liability company, in good standing; that it shall
remain in good standing; that it has the full right, power and authority to enter
into this Agreement and to carry out all actions on its part contemplated by
this Agreement; that the execution and delivery of this Agreement were duly
authorized by proper action of the Owner and no consent, authorization or
approval of any person is necessary in connection with such execution and
delivery or to carry out all actions of the Owner's part contemplated by this
Agreement, except as have been obtained and are in full force and effect;
and that this Agreement constitutes the valid, binding and enforceable
obligation of the Owner.
10.17 ln the event of any conflict between the body of this Agreement and any
exhibit or attachment to it, the terms and conditions of the body of this
Agreement will control.
ut
ut
ut
30
lN WITNESS WHEREOF, Agency and Owner have signed this Agreement, and
the Agency has approved this Agreement, on the dates and in the year set forth below.
City of Fresno in its capacity as Housing
Successor to the Redevelopment Agency
of the City of Fresno,
City Manager
Date:
Date:
ATTEST:
WONNE SPENCE, CMC
cit
By
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
APEC lnternational, LLC
a California limited liability company
By:áÞ
Eugene Kim
Managing Member
,/
Date: /
Deputy z/zs¡øs
Legal Description of Property
Performance and Payment Schedule
BudgelFinancial Plan
Certificate of Completion
Scope of Development and Project Design
Form of Regulatory Agreement and Declaration of Covenants and Exhibit
Restrictions
Form of Promissory Note
Form of Deed of Trust
APPROVED AS TO FORM
DOUGLAS T. SLOAN
31
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT clvrlcoDESltS9
ucl
personally appeared
JAMIS K. KIM
Commission # 2040148
Notary Public . California
Los Angeles County
who proved to me on the basis of satisfactory
evidence to be the person(s) whose nameþ) is/are
subscribed to the within instrument and acknowledged
to me that he/sfæ/they executed the same in
his/l-+erlt signature(¡) on the instrument the
person(d, or the entity upon behalf of which the
person(/ acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seâl Above
Signatu
OPTIONAL
Though the ¡nformat¡on below is not requtred by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this lorm to another document
Description of Attached ment t.lclTitle or Type of Document:
Document Date: I - )q - )-Ô l-ç Number of Pages
Signer(s) Other
Capacity(ies)
Signer's Name:
Than Named Above:
Claimed by Signer(s)
Signer's Name:
Corporate Officer - Title(s):
. lndividual
l l Corporate Officer - Title(s)
Partner - ll Limited il General
Attorney in Fact
Trustee
Guardian or Conservator
Other:
i- l lndividual
:-l Partner - fl Limited n General
[-ì Attorney in Fact
l-¡ Trustee
.: Guardian or Conservator
:-'l Other:
Signer ls Representing:Signer ls Representing:
@ 2012 Nalnnal Notary Assoctation . NationalNotary oe. 1-800-US NOTARY (1-800-876-6827)lten #5907
Notary acknowledgement
32
EXHIBIT ''4"
LEGAL DESCRIPTION OF PROPERTY
THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Lots 1 , 2, 3, 4, 5 and 6 in Block 63 of the Town (now City) of Fresno, according
to the mapthereof recorded June 8, 1876, in Book 1, Page2 of Maps, Fresno County
Records.
APN: 466-214-01
33
EXHIBIT "B''
Pedormance and Payment
Schedule
SCH EDULE OF PERFORMANCE
Items to be Completed Time for Performance Estimated
Date
Amended and Restated Owner Participation
Agreement Terms and Conditions.
The Developer, the City of Fresno, and the Housing
Successor Agency to the City of Fresno shall agree upon
the terms and conditions of the amended and restated
Owner Participation Agreement (originally dated March
9,2OLt).
Commitment Letter.
The Housing Successor Agency to the City of Fresno shall
issue a commitment letter to Developer consistent with
the terms and conditions of the amended and restated
Owner Participation Agreement.
Purchase and Sale Agreements.
The Developer, the City of Fresno, and the Housing
Successor Agency to the City of Fresno shall enter into
the necessary purchase and sale agreements or letter of
intent for the sale ofthat certain real property as
described therein to Developer.
Submission of lnfill Application. Developer shall submit
an application to the California Department of Housing
and Community Development lnfill lnfrastructure Grant
Program.
lnfillAward.
The Developer shall
Award.
receive notification of the lnfill
Prior to Dec 10,2O1,4
Prior to Dec 1,0,2014
Dec201.4
On or before Dec10,20L4
April 2015
34.
Items to be Completed Time for Performance Estimated
Date
Submission of Plans.
The Developer shall submit Building, Civil Engineering,
and Fire Protection Plans to the City of Fresno for
review.
Submittal of TCAC Application
The Developer shall submit a9%tax credit application to
TCAC
9%TCAC Award
The Developer shall receive notice of 9% tax credit
allocation from TCAC
Amended and Restated Owner Participation
Agreement Documents.
The Developer, the City of Fresno, and the Housing
Successor Agency execute all of formal documents
required to amend and restate the Owner Participation
Agreement. lncluding an Amended and Restated OPA,
Note, Deed of Trust, and Regulatory Agreement.
Submission and Approval--Certificates of lnsurance.
The Developer shall furnish the Agency appropriate
certificates of bodily injury and property damage
insurance policies,
Loan Disbursement.
The Agency shall disburse the loan proceeds in
accordance with the Amended and Restated OPA
documents.
Commencement of Construction of Developer's
lmprovements.
Within 30 days after receipt of the required building
permits by the Developer, construction shall commence
on the improvements to be constructed on the Project
Site.
May 2015
July 2015
Dec 20L4
Upon closing of site acquisition
On a schedule that will
coordinate with the
Deve lo pe r's Constructio n
Schedule.
Sept 2015
Dec20t4
Dec 2015
35
Items to be Completed Time for Performance Estimated
Date
Completion of Construction of Developer
lmprovements.
The Developer shall complete construction of the
lmprovements.
lssuance-Certificate of Completion. The Agency shall
furnish the Developer with a Certificate of Completion
on the Project.
On a schedule that will
coordinate with the
Develo per's Construction
Schedule.
Promptly after completion of
all construction and upon
written request thereof by the
Developer.
Dec 20L6
Jan20t7
The above Schedule of Performance is based upon the Developer obtaining an award from the
California Department of Housing and Community Development lnfill lnfrastructure Grant Program. lf
the Developer does not receive the lnfill award then the Schedule of Performance shall be revised to
allow the Developer to submit an application to the California Department of Housing and Community
Development Multi Family Housing Program in the first available application round in 2015.
lmprovements shall be completed with _ months of start of construction.
Construction to commence by: Month _ Day Year
Construction to be complete by: Month _ Day _ Year ("Completion Date")
SCHEDUTE OF AGENCY LOAN REPAYMENT
Agency shall receive 25% of the Residual Receipts (as defined in the Amended and Restated OPA), The
first payment date shall be May L5th of the year that is one (1) year after the certificate of completion is
filed for the Project.
SCHEDULE OF AGENCY LOAN REPAYMENT
a) Annual payments are due on May 15th of each year beginning on May 15th
("Annual Payment Date") of the year immediately following the Project Completion
Date set forth in the Certificate of Completion. The loan shall bear one percent
(1%) simple interest and will mature fifty-five (55) years afterthe deed of trust is
recorded.
36
b) On the first Annual Payment Date and on each Annual Payment Date thereafter,
Owner will submit to the Agency an audited project financial statement (covering
the previous calendar year) along with Lender's pro rata share of the annual Project
Residual Receipts (as defined below) as calculated by Owner. The actual and final
amount of Agency's share of Residual Receipts shall be determined by the Agency
upon review of the audited financial statement. "Residual Receipts" are determined
on a cash basis and defined as revenue minus the total of approved operating
expenses, deferred portion of the developer fees in the development budget,
approved debt service, deposits to operating and replacement reserve accounts
per contract, and approved related party expenses. At Loan maturity, the entire
outstanding principal, any accrued interest, and other amounts due to the Agency
under the OPA documents shall be due and payable. Agency's share of Residual
Receipts shall be 25%.
37
EXHIBIT "C"
BudgeUFinancial Plan
Hotel Fresno
12 4l Br oadw ay Plaza, Fresno
Proposed
Permønent Finøncing
lst Mortgage
Fresno/Successor Agency
LIHTC Equity
Infill Infrastructure
HTC Equity
Def. Dev. Fee
Total Permanent Sources
Constr uctíon Fin ancíng
Construction Loan
Fresno/Successor Agency
Infill Infrastructure
HTC Equity
LIHTC Equity
21,060,342
9,000,000
1,900,000
3,700,000
2,777,984
2,164,396
Def. Costs During Construction I,517,972
Total Construction Sources 21,060,342
As of I 1/I 3/14
Hotel Fresno
Proposed Sources tnd Uses
ACQUISITION
Total Land Cost or Value
Total Land Cost or Value
Existing Improvements Value
Off-site Improvements
Total Acquisition Cost
REHABILTTATION
Structures
General Requirements
Contractor Overhead
Contractor Profit
GC Insurance/Bond
Total Rehab. Costs
NEW CONSTRUCTION
Site Vy'ork
Parking/Structures
Contractor Overhead
Contractor Profit
Prevailing W
Total New Const. Costs
ARCHITECTURAL FEES
Design
Supervision
Total Architectural Costs
SURVEY & ENGINEERING
CONST. INTEREST & FEES
Const. Loan Interest
Origination Fees
Taxes
Insurance
Title and Recording
Total Const. Interest & Fees
PERÀIANENT FTNANCING
Loan Origination Fee
PERMANENT SOURCES
'alue
alue
'alue
rents
Cost
rts
ad
lìt
ork
fit
iS
sign
sion
osts
NG
Fees
axes
ance
ding
TOTAL
PROJECT
COST
RESIDENTIAL
COST
COMMER
C COST
LIHTC
Eouifv
lst
Mortsase
Infill Infra-
structure
Historic Tax
Credit Eouifv
Fresno/
Successor
Agencv Def. Dev. Fee
70%'PYC for
NC /Rehab or
30% PVC for
Fed Subsidized
NC/ Rehab
l,050.00(1.050.00c C 800 000 0 250,000 0 0 0 XXXXXXXX
1.050.00(1,050,000 0 80o,ooo 0 250,000 0 0 0 XXXXXXXX
I.450.00(1.450.000 C 750.000 r 00,000 0 0 600.000 0 XXXXXXXX
150-00t 150.00c C 0 0 150,000 0 0 0 XXXXXXXX
2,650.000 2,650,000 0 1.550.000 100.000 400.000 0 600.000 0 XXXXXXXX
10,000.00t 10,000,000 C 2.282.387 3.639.629 0 2,777,984 1,300,000 0 r 0.000.000
600-00t 600,000 C 600.000 0 0 0 0 0 600.000
400.00(400.000 c 400.000 0 0 0 0 0 400,000
400.00(400.00c c 400.000 0 0 0 0 0 400-000
175.00(175,000 c 175.000 0 0 0 0 0 175.000
11.575.000 11.575,000 0 3,857,387 3,639,629 0 2-177.984 1.300.000 0 I1,575,000
s0,000 s0,000 C 50.000 0 0 0 0 0 50.000
2.386.450 2.386,450 c -3 84,718 0 2.771.t68 0 0 0 2,386,450
1 55.1 87 I 55.1 87 c 0 0 I 55,1 87 0 0 0 1 55-1 87
I 55.1 87 155,1 87 c 0 0 I 55-t 87 0 0 0 155.1 87
103.458 r 03-458 c 0 0 r 03.458 0 0 0 103,45 8
2,850,282 2,850,282 -334,718 0 3,185,000 0 0 2,950,282
75.000 75,000 0 0 75.000 0 0 0 75,000
40,000 40,000 0 0 40,000 0 0 0 40-000
115.000 l 15.000 0 0 0 115.000 0 0 0 115,000
75.000 75,000 0 75.000 0 0 0 0 0 75,000
427 -50A 427,500 c 0 427.500 0 0 0 0 427.500
135.000 135 00c c 0 135.000 0 0 0 0 l 35,000
7s,000 75.00c c 75-000 0 0 0 0 0 75,000
4s,000 45,000 c 45-000 0 0 0 0 0 45.000
25.000 25,000 c 25.000 0 0 0 0 0 25.000
736,003 736-003 0 173,503 562,500 0 0 0 0 736,003
Fee 88.003 88,003 c 0 88.003 0 0 0 0 XXXXXXXX
Hotel Fresno
Proposed Sources ond Uses
Credit Enhance. & App. Fee
Title and Recolding
Total Perm. Financing Costs
LEGAL FEES
Lender Legal Pd. by Applicant
Other: Partnership Legal
Total Attorney Costs
RESERT,.ES
Operating Reserves
Total Reserve Costs
Total Appraisal Costs
TOTAL CONSTRUCTION
CONTINGENCY COSTS
OTHER
TCAC App/Alloc/Monitor F
Environmental Audi
Capital Needs Assessmen
Permit Processing F
Impact Ft
Marketi
Market Study
Accounting
Soft Costs Contingency
Total Other Costs
Subtotals
DEVELOPERCOSTS
Devel oper Overl.read/Profi t
Energy Consultant
Const. Mngmt Oversight
Total Developer Costs
TOTAL PROJECT COST
ng
ts
ldit
ent
ees
ees
ing
rdy
ing
0 C 0 0 0 0 0 XXXXXXXX
l0-000 10.000 0 10.000 0 (0 XXXXXXXX
9E.003 98,003 0 0 98,003 0 0 0 0 XXXXXXXX
TOTAL
PROJECT
COST
RESIDENTTAL
COST
COMMER
C COST
LIHTC
Equifv
lst
Mortsase
Infill Infra-
structure
Historic Tax
Credit Eouitv
Fresno/
Successor
Asencv Def. Dev. Fee
70% PVC for
NC /Rehab or
30% PVC for'
Fed Subsidized
NC/ Rehab
75.000 75.000 0 75.00c 0 C t c 0 75.000
75.00c 75-000 0 75,000 0 C C 0 75.000
150.000 150.000 0 r50.000 0 0 0 0 0 r s0.000
170,03 8 I 70.03 8 0 170,03 8 0 0 c 0 0 XXXXXXXX
170,038 170.038 0 170.038 0 0 0 0 0 XXXXXXXX
14.s00 t 4.500 0 14,500 0 0 0 0 0 14.500
721,264 721,264 0 721264 0 0 0 0 0 721264
47.553 47.553 0 47,553 0 0 0 0 0 XXXXXXXX
t5,000 r s.000 0 15.000 0 0 0 0 0 15,000
5,000 5.000 0 5,000 0 0 0 0 0 5,000
140,000 r 40.000 r 40-000 0 0 0 0 0 140.000
t40-000 140.000 140.000 0 0 0 0 0 140.000
5,000 5.000 5,000 0 0 0 0 0 XXXXXXXX
8,500 8,500 8.500 0 0 0 0 0 8-500
15,000 15.000 c 15.000 0 0 0 0 0 15.000
30,000 30,000 C 30.000 0 0 0 0 0 30.000
406,053 406,0s3 0 406.053 0 0 0 0 0 353.500
19,s61,142 19,561,142 C 16,590,549
1,400,00c 1.400.000 0 332.394 0 0 0 1.067.606 900.00c
60.00c 60,000 0 60,000 c 0 0 0 0 60.00c
39,20C 39.200 0 i9,200 c 0 0 0 0 39.20C
L,499,200 1,499.200 0 431.s94 0 0 0 0 1,067,606 999,200
21,060,342 21,060,342 0 7,214,620 4,400,132 3,700,000 2,177,984 1,900,000 1.067.606 17,589,749
Total LIHTC Eligible Basis 17.589.749
Less Historic
Total LIHTC Eligible
2,924,193
14.665.556
Hotel f,'resno
Proposed Sources ønd Uses
Ihreshold Basis (Maximum)Limits # Units Total
I bedroom 155.852 39 6,078,228
2 bedroom l 88.000 28 5.264.00C
3 bedroom 240-640 t2 2.887.680
Elisible Basis - based on proposed Droiect costs 14,665.556
30oá Increase 19.06s.222
Aoolicable Fraction l% of affoldable units)051
Oualihed Basis 9.653,277
oá Reduction 0
Basis dreduction 9.653.277
Federal Credits á) 7.55%728.822
l0 Years 7,288,224
Eouitv (99.99Yo) 99.001 7.2t4.620
Fundins Gap 7.214.620
Equity (99.9Yo) State Credits 0
Svndication Lesal/Cons.0
Net Eouitv 7,214,620
QCT for'2014
Nov 2014 ratesMaxium Basis 79 14,229,908
Elevator t0%1.422,991
Enerev Effic.rp to 10olo 569.196
Seismic/Environ.uo to l5olo 0
Distrib. Energy 5o/o 0
Impact fees estimated costs 140,000
Max. Basis 16.362.095
Reside¡rtial lncome
LamdС & MisccllÐcous
GROSS INCOME
Vacucy
EFFECTIW GROSS INCOME
Opemtiog Expenses
High Speed Imernet
Real Estate Tãe¡
Social Serviws
Replaæmeat Resewe
NOI BEFORE DEBT SERVICE
Cæh Available for Debt Swice
Ac¡ul Deb,t Service
Debt Covemge Ratio
UnitOpøatingExp: 4.500
Unit Operating Resv: 3 nontlis
Replacement Rèservè; 300iuit
ConsonctionCosts: 14,425,282
Larurdry Inc/Yø: $5,135
ConventionalloæRate: 5.00%
ConventionaÌLoæYn: 30
ConvenûomlLmType: AMORTT7FD
DebtCovemgeRatio: 1 15
YEAR1 YEAR2 YEAR3 YEAR4 YEARs YEAR6 YEART YEARE YEARg YEARTO YEARII YEAR T2 YEARl3 YEAR 14 YEAR 15
s7s5,568 5774;4s7 S793,8r9 $813.664 $834,006 $854,856 9876,227 $898,133 $920,586 $943,60r $967,191 $991,371 $1,016,155 $r,041,s59 $1,067,s98
$5,135 $5,315 S5,50r $s,693 $5,893 $6,099 56,3t2 36,533 86,762 $6,998 $7,243 57,497 57,759 S8,031 58,312
î760,7A3 î779,772 î799,3t9 88t9,357 8839,898 $86A,955 8882,539 ö901,666 .f9?7,348 ï950,599 8974,134 $998;868 $1,023,9t1 ti1,019,590 ï1,075,910
I 8 722
î722,668 5710,783 87t9,353 5778,389 5797,903 8838,4 I 2 ,069
(s3,000) ($3,150) (s3,308) ($3.473) ($3,647) ($3,82e) ($4,020) ($4,22r) ($4,432) ($4,654) ($4,887) ($5.131)
($4,500) ($4,5e0) ($4.682) (54,775) ($4.871) ($4,e68) (S5,068) ($5,16e) (s3272) (s5,378) ($5,485) ($5,5e5)
($s,388) ($5,6s7) ($5,%o)
($5,707) ($5,821) ($5,e38)
($r0,000) ($10.350) ($10,712) ($11,087) (s11,475) ($il,877) (st2,291') ($t2,723) ($13,168) ($13,62e) (S14,106) ($14,600) ($15,111) ($1s,640) ($16.187)
6325,968 8331,05t 8336,13t î.31t,205 8316,266 $3s1,310 fi356,3.32 ï361,324 8366,282 8i71,199 6376,067 8380,679 5i85,628 ï390,306 ï39t,901
$2E3,450
1.15 I.l7 1.19. I 20 I 22 t.21 1.26 1.27 1.29. I 31 1.33 Li4 1.36 1.38 1.39
Residential Income
Laudry & Miscdlæeous
GROSS INCOME
Vamcy
EFFECT]VE GROSS INCOME
Opemling Expemes
High Spæd Intemet
Real Estate Tæs
Social Swices
Replacement Reservo
NOI BEFORE DEBT SERV]CE
Cash Available for Debt Scrvice
Actual Debt. Seryice
Debt Covaage Ratio
YEA,RI6 YEARIT YEARIE YEART9 YEAR2O YEAR21 YEAR22 YEAR23 YEAR24 YEAR2s YEAR26 Y.EAR27 YEAR28 YEAR29 YEAR3O
($6.237) ($ó.54e) ($6,876) (57,220\ ($7,581) (S7.e60) ($8,358) ($s,776) ($e,2ls) ($e.67s) ($l0.l5e) ($10,667) ($11,200) ($11,760) ($12,34s)($6,0s6) ($6,178) ($6,3-01) (56,427) ($6,556) ($6,687) (s6320) ($6,957) ($20e6) ($7,238) ($7,383) ($7,530) (s7,681) (S7,s35) (s7,eet)
($16,7s3) (S17,340) ($17,947) ($18,575) (S19,225) ($1e,898) ($20,s94) ($21,315) ($22,061) ($22,s33) ($23,632) ($24,460) ($25,316) ($26,202) ($27,lle)
5.i99,113 $103,:823 8408,126 $112,309 $416,362 8420,271 8121,032 fi127,624 8111,036 54i1,2s3 5437,262 8-H0,0t7 8442,591 $144,877 54+6.8.88
l.1l I.t2 1.14 1.15 1.47 I 48 1.50 1.5t 1.52 1.53 1.51 1.55 1.56 1.57 I 58
Ilotel Fresno
Proposed Income Information
(a)
# of Bedrooms
(b)
# of Units
(c)
Proposed
Monthly Rent
(Less Utilities)
(d)
Total Monthly
Rents
(bxc)
(e)
Monthly
Utilrty
Allowance
(Ð
Monthly
Rent
Plus
(c+e)
(e)
7o ofArea
Median
Income
F re s no/S u c c e s s o r Ag e ncy
I bdrm/lba 2 267 534 40 307 3001
I bdrm/lba J 370 1.1 10 40 4t0 4001
l bdrm/lba 5 473 2,365 40 513 50%
I bdrm/1ba 4 575 2.300 40 61s 6001
I bdrm/lba 10 1,026 r0,260 r,026 l00o/r
Lofts/1ba 15 1,050 15,750 1,050 1000/,
2bdrrn/lba 2 314 628 55 369 3001
2bdrmllba J 438 1.3r4 55 493 40%
2bdrm/Iba 5 561 2.805 55 616 s0%
2bdrnllba 4 684 2.73(55 739 60%
2bdrnlIba 13 1,232 16.01é 1.232 r00%
3 bdrrnl2ba 2 358 7t(68 426 30%
3bdrml2ba 3 501 1,503 68 s69 40%
3bdrrt/2ba 4 643 ) 57)68 111 50%
3bdrml2ba J 185 , ?ss 68 Bs3 60%
Total # Units 78 Total 62.964
Total # Units
AGGREGATE MONTHLY RENTS
FOR ALL TINITS
AGGREGATE ANNUAL
RENTS FOR ALL LINITS
s62,964
x12
$755,568
Hotel Fresno
Proposed Income Information
Miscellaneous Ineome
Annual Income from Laundry Facilities
TOTAL IVtrSCELLANEOUS INCOME
TOTAL A¡INUAL POTENTIAL GROSS INCOME
Monthly Resident Utility Allowance by Unit Size (utility allowances must be
itemized and correlated with the PHA u allowance schedule)
Name of PHA Providing lJtility Allowances: City of Fresno HA
EXHIBIT "D''
Gertificate of Gompletion
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO:
City of Fresno in its capacity as
Housing Successor to the
Redevelopment Agency of City of Fresno
2600 Fresno St.
Fresno, Ca.93721
Attention: City Manager
(spAcE ABOVE TH|S LtNE FOR RECORDER'S USE)
This Certificate of Completion is recorded at the request and for the benefit of the City of
Fresno in its capacity as the Housing Successor to the Redevelopment Agency of the
City of Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
City of Fresno in its capacity as Housing
Successor to the Redevelopment Agency of the
City of Fresno, a municipal corporation
Bruce RuddIts: City Manager
Dated:
Marlene Murphey
Executive Director
Dated:
By:
By:
38
Certificate of Completion
1263 Broadway Plaza
Mixed Use Residential Rental Project
RECITALS:
and Restated Owner Participation Agreement (the "Agreement")
2014 bet'¡teen APEC lnternational, LLC., a California limited
A. By an Amended
dated
B. The Agreement was recorded
Records of Fresno County, California
liability company ("Owner") and the City of Fresno in its capacity as the Housing
Successor to the Redevelopment Agency of the City of Fresno, a municipal corporation
("Agency"), Owner agreed to construct certain residential units on the premises legally
described in Attachmerìt "4" hereto (the "Property") and preserve the Affordable Units, as
defined in the Agreement as rental housing for I I lncome Households with the
assistance of Agency housing set aside funds while meeting the Affordable Housing,
income targeting and other requirements of the Community Redevelopment Law set forth
at California Health and Safety Code Sections 33000 et seq. for a fifty-five (55) year
Affordability Period according to the terms and conditions of the Agreement.
ont 1,20 in the Official
as lnstrument No.
C. Under the terms of the Agreement, after Owner completes the construction on the
Property, Owner may ask Agency to record a Certificate of Completion.
D. Owner has asked Agency to furnish Owner with a recordable Certificate of
Completion.
E. Agency's issuance of this Certificate of Completion is conclusive evidence that
Owner has completed the construction on the Property as set forth in the Agreement.
NOW THEREFORE:
1. Agency ceftifies that Owner commenced the construction work on the Project on
1,20_, and completed the construction work on the Project
20_, and has done so in full compliance with the Agreement.
2. This Certificate of Completion is not evidence of Owner's compliance with, or
satisfaction of, any obligation to any morlgage or security interest holder, or any mortgage
or security interest insurer, securing money lent to finance work on the Property or Project,
or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to in
California Civil Code section 3093.
4. Nothing contained herein modifies any provision of the Agreement.
39
lN WITNESS WHEREOF, the Agency has executed this Certificate of Completion
as of this _ day of 20
By:
The City of Fresno in its capacity as Housing Successor to the
Redevelopment Agency of the City of Fresno,
a municipal corporation
By:.
Bruce Rudd
City Manager
Marlene Murphey
Executive Director
Dated:
Owner hereby consents to recording this Certificate of Completion against the Properly
described herein.
Dated: ,20-
APEC lnternational, LLC, a California limited liability company
Eugene Kim
Managing Member
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC.
ATTEST:
WONNE SPENCE, CMC
City Clerk
By:
Deputy
APPROVED AS TO FORM
DOUGLAS T. SLOAN
City Attorney
By:
By:
Deputy
40
EXHIBIT A
LEGAL DESCRIPTION
THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Lots 1 ,2, 3,4, 5 and 6 in Block 63 of the Town (now city) of Fresno, according
to the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno
County Records.
APN: 466-214-01
41
EXHIBIT ''E''
SCOPE OF DEVELOPMENT AND PROJECT DESIGN
1. Hotel Fresno Design Scope-attached
2. Hotel Fresno Preliminary Drawings-attached
42
HOTEL FRESNO DESIGN SCOPE
The Hotel Fresno building will be completely renovated and transformed into a mixed-income
multi-family project with 79 residential housing units and coÍrnon area spaces. Upon
completion the Hotel Fresno project will consist of six floors of apartments, common space and
offices space on the ground floor, and a structured parking ganage (to be located on property to
the rear of the building). The residential areawill include a community room with fulI kitchen,
guest restrooms, and management offrces. There will be 24 one-bedroom units, 28 two-bedroom
units, 12 three-bedroom units, and 15 loft-style units. The units will range in average sizes from
one-bedroom units of approximately 550 square feet; two-bedroom of approximately 800 square
feet; the three-bedroom units of approximately 1,100 square feet, and loft-style units of
approximately 900 square feet. All units will have central heat and air conditioning. The
property will have controlled access, and will include laundry rooms on site. In addition, we plan
to install a wireless high speed intemet network that meets TCAC standards. Therefore, tenants
will also have access to free high speed wireless internet in each unit and the community rooms.
Renovations will be made to the building exterior and certain interior spaces which are intended
to meet the Secretary of Interior Standards, so that the Hotel Fresno project may qualify to be
placed on the National Register of Historic Places.
6E FRE Àto-
1241-1263 Broadway Plaza, Fresno, Cp.93721
An Adaptive Reuse Project
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BASEMENT PARKING PLAN
ON.GRADE PARKING PLAN
DECK PARKING PLAN
SITE PUN
FIRST FLOOR PßN
BASEMENT PLAN
SECOND FLOOR PNN
THIRD FLOOR PUN
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NORTH & ilST ELEVATIONS
SOUTH & WESÍ ELEVATIONS
SECTION
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BUITDING TABULATIONS
UNITS SO. FT.64,707 Sq.Ft.
13,802 Sq.Ft.
I,181 Sq.Ft.
86,690 Sq.Ft.
NOTES:
1. FIRE SPRINKLER SYSTEM TO MEET NFPA 1 3
2. FIRE SPRINKLERS TO BE PROVIDED TO
INCLUDE ALL EXIT ACCESS WAYS.
UNITS TABULATION
Recreation Room, Laundry, Corridors, Lounge, Office, To¡lets
MISCELLANEOUS AREA:
Stairs Shaft, Elevator Shaft, Trash Room, Storage
OBR lBR 1BR
(H)
2BR 2BR
(H)
3BR Total
Un¡ts
152ND FLR l5
BUITDING CONSTRUCfION 3RD FLR 6 o '14
4TH FLR 4 4 4 12
GARAGE:
CONSTRUCTION, TYPE I
WITH FIRE SPRINKLERS
OCCUPANCY GROUP, R-3
PARKING/GARAGE AREA:
Subterraneân '16,'189 Sq.Ft.
On G¡ade 16,'189 Sq.Ft.Deck t6,104 Sq.Ft.
Totel Garage Area ........... 48,482 Sq.Ft.
APARTMENTS:
CONSTRUCTION, 7 STORIES
ryPE HR WITH FIRE SPRINKLERS
5TH FLR 4 4 4 12
6TH FLR 4 4 4 12
7TH FLR Þ I 14
Totals 15 24 28 12 79
THIS PROJECT SHALL COMPLY WITH :
9L;ÇUPANUY GKUUI , K-3 (3ó UNt I !; AKts A|-I-ORUABLE)
APARTMENT BUILDING AREA = 86,690 sQ. FT.2013 Californ¡a Building Code
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EXHIBIT ''F"
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND
RESTRICTIONS
FREE RECORDING REQUESTED
BY AND WHEN RECORDED MAIL
TO:
CIry OF FRESNO IN ITS
CAPACITY AS HOUSING
SUCCESSOR TO THE
REDEVELOPMENT
AGENCY OF THE CITY OF
FRESNO
2600 Fresno Street
Fresno, CA 93721
Attn: City Manager
ltffi" Above This Line for Recorder's office Use
REGU LATORY AGREEMENT AND
DECLARAÏION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ("Agreement") is made and entered into this , by and
betweentheClTY OF FRESNO lN ITS CAPACITY AS THE HOUSING
SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF
FRESNO, a municipal corporation ("Agency"), and APEC INTERNATIONAL, LLC., a
California limited liability company ("Owner").
RECITALS:
A. Pursuant to an Amended and Restated Owner Participation Agreement by
and between Agency and Owner dated ,2014 (the "OPA"), Agency
has provided to Owner financial assistance in the amount of One Million Nine Hundred
Thousand Dollars ($1,900,000.00) in Agency Loan funds (the "Agency Assistance"), for
the purpose of assisting Owner in the acquisition of real properly and the construction of
a residential apartment complex thereon wherein no less than nineteen (19) and no more
than forty (a0) of the residential units shall be rented to Extremely Low, Very Low, Lower,
and/or Moderate lncome households, on that ceftain real property located in the City of
Fresno, County of Fresno, State of California, more particularly described in Exhibit "4"
attached hereto and incorporated herein by reference (the "Property").
B. Pursuant to the OPA, Owner has agreed to construct and maintain a rental
apartment housing project consisting of seventy nine (79) total residential units (hereinafter
43
referred to collectively as the "Project") on the Property. The Project is also referred to in
the OPA as the "Project," and is further described in the Scope of Development and Project
Design attached to the OPA.
C. Agency, City, and Owner now desire to place restrictions upon the use and
operation of the Project, in order to ensure that the Project shall be operated continuously
as a rental apartmenthousing projectwith no lessthan nineteen (19) and no morethan
fofty (a0) of the units available for rental by Extremely Low, Very Low, Lower, and/or
Moderate lncome persons for the term of this Agreement.
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by and
for themselves, their heirs, executors, administrators and assigns, and all persons claiming
under or through them, that the Property shall be held, transferred, encumbered, used,
sold, conveyed, leased and occupied, subjectto the covenants and restrictions hereinafter
set forth, all of which are declared to be in furtherance of a common plan for the
improvement and sale of the Property, and are established expressly and exclusively for
the use and benefit of the Agency, the residents of the City of Fresno, and every person
renting a dwelling unit on the Property.
AFFORDABILITY RESTRICTIONS RUNNING WITH LAND
ln addition to the covenants and conditions contained in the OPA, the following
California Community Redevelopment Law (California Health & Safety Code Section
33000 et seq.) affordability requirements shall be imposed upon the fofty (a0) Affordable
Units on the Property funded under the Agreement and shall bind the Owner and all
purchasers of the Property and their successors until the date that is fifty-five (55) years
following recordation of the Agency's Certificate of Completion as defined in the OPA.
The Affordable Units on the Property are held and will be held, transferred,
encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions,
and limitations set forth in this Agreement, all of which are in furtherance of the Project,
the Agency's Community Redevelopment Law and Plan Area obligations including
Agency's obligations set forth at California Health & Safety Code sections 33334.2 et seq
and 33413 (a) with respect to Housing Set Aside Funds and replacement dwelling units at
affordable rent within the jurisdiction of the Agency. All of the restrictions, covenants and
limitations will run with the land and will be binding on all parties having or acquiring any
right, title or interest in the Affordable Units upon the Property or any part thereof, will inure
to the benefit of the Agency, and will be enforceable by it. Any purchaser under a contract
of sale or other transferee of an interest covering any right, title or interest in any part of
the Affordable Units upon the Property, by accepting a deed or a contract of sale or
agreement of purchase, accepts the document subject to, and agrees to be bound by, any
and all restrictions, covenants, and limitations set forth in this Agreement until the date that
is fifty-five (55) years following recordation of the Agency's Certificate of Completion.
44
1. Restrictions. The following covenants and restrictions ("Restrictions") on the use
and enjoyment of the Affordable Units upon the Property shall be in addition to any other
covenants and restrictions affecting the Property, and all such covenants and restrictions
are for the benefit and protection of the Agency and shall run with the Affordable Units
upon the Property and be binding on any future owners of the Property and inure to the
benefit of and be enforceable by Agency. These covenants and restrictions are as follows:
a. From the date of recordation of this Agreement until the expiration of the
Affordability Period, the no less that nineteen (19) but no greater than forty (40) Affordable
Units funded under the OPA are to be used as Extremely Low, Very Low, Lower, and/or
Moderate lncome Affordable Rental Housing and affordable dwellings as provided for in
the OPA and this Agreement. Owner agrees to file a recordable document setting forth the
Project Completion Date and the Affordability Period as and when determined by the
Agency. Unless otheruise provided in the Agreement, the term "Affordable Rental
Housing" shall include without limitation compliance with the following requirements:
Nondiscrimination. There shall be no discrimination against nor segregation
of any person or group of persons on account of race, color, creed, religion,
sex, marital status, nationalorigin, ancestry, or handicap in the sale, transfer,
use, occupancy, tenure, or enjoyment of any of the Property, nor shall Owner
or any person claiming under the Owner, establish or permit any practice of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of owners or vendees of the Property.
Principal Residence. Each of the Affordable Units upon the Property shall
be leased only to natural persons, who shall occupy such as a principal
residence.
lncome Requirements. Each of the Units constituting Affordable Rental
Housing upon the Propefty may be leased only to (a) natural person(s)
whose annual household income at the time of initial occupancy is not
greater than thirty percent (30%), fifty percent (50%), eighty percent (80%),
and/or one hundred twenty percent (120%) of the most recent annual median
income calculated and published by HUD for the Fresno Metropolitan
statistical Area applicable to such household's size, and at an affordable
rent for Extremely Low, Very Low, Lower and/or Moderate lncome
households as applicable (as per the terms provided in the OPA), consistent
with the applicable California Redevelopment Law, including California
Health & Safety Code Section 50053(b) (collectively, the "Low-lncome
Requirements").
lnjunctive Relief and Recapture. Should any of the Affordable Units
constituting Extremely Low, Very Low, Lower and/or Moderate lncome
Affordable Rental Housing upon the Property not continue, subsequent to
the initial occupancy, to satisfy the Extremely Low, Very Low, Lower and/or .
Moderate lncome Requirements, then, during the Affordability Period, such
45
Unit(s) shall be made available for subsequent lease only to Households that
qualify as a required Extremely Low, Very Low-, Lower, or Moderate-lncome
Household, as defined in California Health & Safety Code Sections 50106,
50105, and 50079.5 for use as the Household's principal residence.
2. Enforcement of Restrictions. Without waiver or limitation, the Agency shall be
entitled to injunctive or other equitable relief against any violation or attempted violation of
this Agreement, including the Restrictions, and shall, in addition, be entitled to damages
for any injuries or losses resulting from any violations thereof.
3. lncome Computation and Certification Reportinq Requirements. Prior to each
Household's occupancy of an Affordable Unit, Owner shall comply with all of the following
requirements:
a. lncome Computation. Within 120 days prior to a Household's occupancy of
an Affordable Unit, Owner shall obtain and maintain on file an lncome Computation and
Certification form, attached hereto as Exhibit "8," from each such Household dated
immediately prior to the date of initial occupancy in the Project by such Household. ln
addition, the Owner will provide such further information as may be required in the future
by the Agency. Owner shall use its best efforts to verify that the income provided by an
applicant is accurate by taking the following steps as a part of the verification process: (i)
obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a written verification
of income and employment from applicant's current employer; (iii) obtain an income
verification form from the Social Security Administration and/or California Deparlment of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant
is unemployed or did not file a tax return for the previous calendar year, obtain other
verification of such applicant's income as is satisfactory to the Agency; and (v) obtain such
other information as may be requested by the Agency. A copy of each such completed
lncome Computation and Certification form shall be filed with the Agency prior to the
occupancy of an Affordable Unit by a Household whenever possible, but in no event more
than thirty (30) days after initial occupancy by said Household.
b. lncome Recertification. lmmediately prior to the first anniversary date of the
occupancy of an Affordable Unit by a Household and on each anniversary date thereafter,
Owner shall receftify the income of such Household by obtaining a completed lncome
Computation and Certification form based upon the current income of each occupant of
the Affordable Unit. ln the event the recertification demonstrates that such Household's
income exceeds the income at which such Household would qualify to rent the Affordable
Unit, such Household will no longer qualify for Affordable Rent. Owner shall provide the
Agency with a copy of each such completed recertification with the next submission of
Certificate of Continuing Program Compliance, as specified herein.
c. Certificate of Continuing Program Compliance. Upon the issuance of the
Certificate of Completion and annually by October 31 of each year, or at any time upon
the written request of Agency, Owner shall advise the Agency of the occupancy of the
Project by delivering a Certificate of Continuing Program Compliance, attached hereto as
Exhibit "C," certifying: (i) the number of Affordable Units of the Project which were
46
occupied or deemed occupied pursuant to this Agreement by a Household during such
period; and (ii) to the knowledge of Owner either: (a) no unremedied default has occurred
under this Agreement; or (b) a default has occurred, in which event the Certificate of
Continuing Program Compliance shall describe the nature of the default and set forth the
measures being taken by the Owner to remedy such default.
d. Maintenance of Records. Owner shall maintain complete and accurate
records pertaining to the Affordable Units, and shall permit any duly authorized
representative of the Agency to inspect the books and records of Owner pertaining to the
Project including, but not limited to, those records pertaining to the occupancy of the
Affordable Units.
e. Reliance on Tenant Representations. Each lease between Owner and a
Household shall contain a provision to the effect that Owner has relied on the income
certification and supporting information supplied by the Household in determining
qualification for occupancy of the Affordable Unit, and that any material misstatement in
such certification (whether or not intentional) will be cause for immediaie termination of
such lease.
4. Acceptance and Ratification. All present and future owners of the Property and
other persons claiming by, though, or under them shall be subject to and shall comply with
the above Restrictions. The acceptance of a deed of conveyance to the Property shall
constitute an agreement that the Restrictions, as such may be amended or supplemented
from time to time, is accepted and ratified by such future owners, tenant or occupant, and
such Restrictions shall be a covenant running with the land and shall bind any person
having at any time any interest or estate in the Propefty, all as though such Restrictions
were recited and stipulated at length in each and every deed, conveyance, mortgage or
lease thereof.
5. Benefit. This Agreement and the Restrictions herein shall run with and bind the
Property for a term commencing on the date this Agreement is recorded in the Office of
the Recorder of the County of Fresno, State of California, and expiring upon the expiration
of the Affordability Period. The failure or delay at any time of Agency and/or any other
person entitled to enforce these Restrictions shall in no event be deemed a waiver of the
same, or of the right to enforce the same at any time or from time to time thereafter, or an
estoppel against the enforcement thereof.
6. Costs and Attorney's Fees. ln any proceeding arising because of failure of Owner
or any future owner of the Property to comply with the Restrictions required by this
Agreement, as may be amended from time to time, Agency shall be entitled to recover its
respective costs and reasonable attorney's fees incurred in connection with such default
or failure.
7 . Waiver. Neither Owner nor any future owner of the Property may exempt itself from
liability for failure to comply with the Restrictions required in this Agreement.
47
8. SeverabilitL The invalidity of the Restrictions or any other covenant, restriction,
condition, limitation, or other provision of this Agreement shall not impair or affect in any
manner the validity, enforceability, or effect of the rest of this Agreement and each shall
be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference in this Agreement and the Restrictions herein to the
masculine, feminine, or neuter gender herein shall, unless the context clearly requires the
contrary, be deemed to refer to and include all genders. Words in the singular shall include
and refer to the plural, and vice versa, as appropriate.
10. lnterpretation. The captions and titles of the various articles sections, subsections,
paragraphs, and subparagraphs of this Agreement are inserted herein for ease and
convenience of reference only and shall not be used as an aid in interpreting or construing
this Agreement or any provision hereof.
11. Capitalized Terms. All capitalized terms used in this Agreement, unless otherwise
defined herein, shall have the meanings assigned to such terms in the opA.
12. Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real
property records of the County of Fresno.
13. Notice. Any notice required to be given hereunder shall be made in writing and shall
be given by personal delivery, or by certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may
be specified in writing by the parties hereto:
Agency:City of Fresno,
Housing Successor to
the Redevelopment
Agency of the City of
Fresno
2600 Fresno Street
Fresno, CA 93721
Attn: City Manager
City Attorney
Fresno City Hall
2600 Fresno St.
Fresno, CA 93721
Executive Director
Successor Agency to the
Redevelopment Agency of the City of
Fresno
Copies to:
48
2344Tulare Street, Ste. 200
Fresno, CA93721
Owner: APEC lnternational, LLC
Attention: Eugene Kim
770 South lrolo Street, Suite 1000
Los Angeles, CA 90005
The notice shall be deemed given three (3) business days after the
date of mailing, or, if personally delivered, when received.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
15. COUNTERPARTS: ELECTRONIC SIGNATURES. This Agreement may be
executed in counterparts, each of which shall be deemed an original and which
together shall constitute one and the same agreement. The parties agree that this
Agreement will be considered signed when the signature of a party is delivered by
facsimile or e- mail transmission. A facsimile or e-mail signature shall be treated
in all respects as having the same effect as an original signature.
16. FURTHER ASSURANCES. The parties will execute such other and further
documents, and will take any other steps, necessary, helpful, or appropriate to carry
out the provisions of this Agreement.
IEND-- SIGNATURES ON NEXT PAGEI
49
By:
lN WITNESS WHEREOF, the Agency and Owner have executed this
Regulatory Agreement and Declaration of Covenants and Restrictions by duly
authorized representatives on the date first written hereinabove.
The City of Fresno in its capacity as Housing Successor to the
Redevelopment Agency of the City of Fresno, a municipal corporation
By:
Bruce Rudd
City Manager
Marlene Murphey
Executive Director
Dated:
Owner hereby consents to recording this Certificate of Completion against the Property
described herein.
Dated:
APEC lnternational, LLC, a California limited liability company
Eugene Kim
Managing Member
Exhibit A: Legal Description of Property
Exhibit B: lncome Computation and Certification Form
Exhibit C: Certificate of Continuing Program
20
By:
50
STATE OF CALIFORNIA
COUNTY OF
On , before me, , personally
appeared
personally known to me (or 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/heltheir signatures(s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed the instrument.
\Mtness my hand and officialseal.
Notary Public
lsEALl
51
STATE OF CALIFORNIA
COUNTY OF
On
)
before me, , personally
appeared
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 signatures(s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed the instrument.
\Mtness my hand and officialseal.
Notary Public
lsEAL]
ilt
52
EXHIBIT A
LEGAL DESCRIPTION
THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Lots 1 , 2, 3,4, 5 and 6 in Block 63 of the Town (now city) of Fresno, according
to the map thereof recorded June 8, 1876, in Book 1 , Page 2 of Maps, Fresno county
Records.
APN: 466-214-01
53
EXHIBIT "B'TO REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIONS
City of Fresno as Housing
Successor to the
Redevelopment Agency of
the Gity of Fresno
Multi.Familv Housinq Proqram
INCOME COMPUTATION AND CERTIFICATION
*Household is a group of related or unrelated persons occupying the same house with at least one member being the head of the
household. lfroommates,pleasecompleteaboveformas"self'foreachroommate. Useaseparatepageforaàditional household
members.
Show income received from the following souÍces by all persons listed above. Do not show income from persons less than 14 years of
age.
2344 Tulare Street
Suite 200
Fresno, CA93721
r¡n¡nru.fresnorda.com
559.621.7628
lnformation
Name of Property:Number of Bedrooms
(see table on page 3
for allowable rents)
lncome
Category
Maximum lncome Level
of Household (percent
of Area Median lncome)Property Address:
Rental Agent (Name):n 0 (studio)Extremefv Low ! 30% of AMI
! 1 bedroom Verv Low ! 50% of AMI
Owner Certification (Signature):! 2 bedrooms Lower ! 80% of AMI
! 3 bedrooms Moderate n 120% of AMI
Owner has relied on the income certifÌcation and support¡ng information supplied by the ¡
misstatement in such certification by Applicant (whether or not intentional) mav be cause !
for immediate termination of such lease.¡
icant Gontact lnformation lnformation on lease
Name
(LAST, FIRST, M.t.)
Current Address
City, State, Zip Contact Phone No.Other Phone No.
1
2
1.
2.
(if different)
I
2
(if different)
1
2
(if different)
List all members of the household*to live at the address listed above.
54
Yes No Source of lncome
Gross lncome
(Current Yea¡)
Person Receiving lncome (As
Shown Abovel
ll tr Waqes or salary from emplovment.
D I Earnings from self-employment
¡tr Unemplovment Compensation
!I Social Security or Supplemental Security lncome (SSl)
!D Veteran's Benefits
tr D Workeds Compensation
!!Child support or alimonv pavments
tr tr Pensions or Annuities/Railroad Retirement
D n Property rental income
!tr Aid to Families w/Deoendent Children(AFDC)
n tr Dividends/lnterest
!¡Other types of income:
Total Gross lncome
Total Household Members
being duly sworn, depose and say that l/we are
year-round occupants of (ADDRESS, CrTY & ZtP CODE).
lÄ/úe the applicant(s) certify that all information in this certification and all information furnished in support of
this ceñification is correct and complete to the best of my/our knowledge. lÄlVe understand that the willful
falsification of this information (whether or not intentional) will be cause for immediate termination of such
lease. l/We agree to provide additional information that may be requested to process this income
certifìcation.
I certify that my income does not exceed the stated income level noted on page I of this document, and that
I am eligible for a unit made available at affordable rent for lower income households, as defined by California
Health & Safety Code ("H.&S.C.") Section 50053(b), to persons and families of low income, as defined in
H.&S.C. Section 50093, as shown in the table below.
lA/úe have read the aforementioned statement and release, and understand all of the items. l/l/i/e execute it
voluntarily, on the date listed below, with full knowledge of its significance. lÂ/i/e certify under penalty of
perjury that the facts and statements presented in this lncome Computation and Certification, as well as the
attached documents are true and accurate. Perjury is punishable by imprisonment in the state of California.
(CA Penal Code Section 1 18 & 126).
APPLICANT DATE
APPLICANT DATE
lncome Verification
Owner shall use its best efforts to verify that the income provided by an applicant is accurate by taking the
55
following steps as a part of the verificatÌon process: (i) obtain three (3) pay stubs for the most recent pay
periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii)
obtain an income verification form from the Social Security Administration and/or California Department of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed or
did not file a tax return for the previous calendar year, obtain other verification of such applicants income;
and (v) obtain such other information as may be requested by the Agency. A copy of each such completed
lncome Computation and Certification form shall be completed and made available for Agency review prior
to the occupancy of an Affordable Unit by a Household whenever possible, but in no event more than thirty
(30) days after initial occupancy by said Household.
2014 Maximum Rent Limits
a Affordable Rent for Extremely Low lncome Households is the product of 30% times 30% of the area median
income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and
Code Section 50053(bX1
a Affordable Rent for Very Low lncome Households is the product of 30% times 50% of the area median income
adjusted for family size appropriate to the unìt less a reasonable allowance for utilities (Health and Safety Code
Section
a Affordable Rent for Lower lncome Households is the product of 30% times 60% of the area median income
adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safety Code
Section
a Affordable Rent for Moderate lncome Households is the product of 30% times 1 10% of the area median income
adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safety Code
Section 50053(bX4
. Maximum Rents are calculated based on household sizes "appropriate to the unit" of 1 person for a studio unit;
2 persons for a one-bedroom apartment, 3 persons for a two bedroom apartment, 4 persons for a three bedroom
5 persons for a four bedroom Health & Safetv Code Section 50052.
Maximum Est. Utilitv Net
Maximum Rent for Extremely Low lncome Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Apartment 5303.7s $(3e.oo)5264.7s
Maximum Monthly Rent for a One-Bedroom Apartment $347.s0 s(3e,oo)S¡os.so
Maximum Monthlv Rent for a Two-Bedroom Apartment s391.2s $(so.oo)s34!.2s
Maximum Monthlv Rent for a Three-Bedroom Apartment s433.7s s(s8.oo)s37s.7s
2014 Maximum lncome Levqlg
Extremely Low (l 30% of AMI)
Very-Low lncome (S 50% of AMI)
Lower lncome - (S 80% of AMI)
Moderate lncome - (s 120% AMI)
One Two
Person Person
$12,150 $13,900
$20,300 $23,200
$32,450 $37,050
$48,6s0 $55,600
Three Four
Person Person
$'1 5,650 $17,350
$26,100 $28,950
$41,700 $46,300
$62,550 $69,500
Five Six
Person Person
$18,750 $20,150
$31,300 $33,600
$50,050 $53,750
$75,050 $80,600
56
Maximum Est. Utility Net
Maximum Rent for Very low lncome Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Apartment SsoT.so s(3e.oo)S468.so
Maximum Monthlv Rent for a One-Bedroom Apartment $s8o.oo s(39.00)Ss41,oo
Maximum Monthlv Rent for a Two-Bedroom Apartment $6s2.so s(s0.001 S6o2.so
Maximum Monthlv Rent for a Three-Bedroom Apartment Stzz.ts s(s8.00)s66s.7s
Maximum Monthlv Rent for a Four-Bedroom Apartment $782.so s(68.00)$zr+.so
Maximum Est. Ut¡litv Net
Maximum Rent for lower lncome Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Apartment S608.7s s(3e.00)$s69.7s
Maximum Monthly Rent for a One-Bedroom Apartment Sogs.oo s(3e.oo)$6s6.oo
Maximum Monthlv Rent for a Two-Bedroom Apartment S782.so S(so,oo)Szgz.so
Maximum Monthly Rent for a Three-Bedroom Apartment $868.7s sls8.00l Ssro,zs
Maximum Monthly Rent for a Four-Bedroom Apartment $938.7s s(68.00)Sszo.zs
. The utility allowance shown above is for a mid-rise (3-5 stories) project constructed in 20'l 1 or later.
Exhibit "C" TO REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
Maximum Est. Utilitv Net
Maximum Rent for Moderate Income Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Aoartment s1,1ls.00 $(3e.oo)$t,ozo.oo
Maximum Monthlv Rent for a One-Bedroom Apartment Sr,27s.oo ($3e.oo)S1,236.00
Maximum Monthly Rent for a Two-Bedroom Apartment 51,433.7s s(so,oo)S1,383.75
Maximum Monthly Rent for a Three-Bedroom Apartment S1,592,50 s(s8.oo)$t,s:+.so
Maximum Monthly Rent for a Four-Bedroom Apartment 5t,lzo.oo s(68.00)Sr,osz.oo
57
City of Fresno as Housing
Successor to the
Redevelopment Agency of t e
Gity of Fresno
Redevelopment Agency
Multi"FamilV Housinq proqram
CERTIFICATE OF CONTINUING PROGRAM GOMPLIANEE
Period Covered from to
Occupied Affordable Units Vacant Affordable Units
nform
The Owner cerlifies that the information contained in the Occupancy Summary attached is true and accurateand hereby cedifies that (1) a review of the activities of the Owner during súch period and of the Owner'sperformance under the OPA and the documents referred to therein has been made under the supervision ofthe undersigned, and (2) to the best knowledge of the undersigned, based on the review described in clause(1) hereof, the owner is not in default under any of the termè and provisions of the above documents (ordescribe the nature of any default and set forth the measures being taken to remedy such default)
lSignature on followíng page.l
2344 Tulare Street
Suite 200
Fresno, CA9372L
www.fresnorda.com
559.621,.7628
The undersigned, APEC lnternational, LLC., a California limited liability company (the "Owner"), has readand is thoroughly familiar with the provisions of the Owner Participation Agreement i"Oen"¡ and documentsreferred to therein executed by Owner and the Redevelopment Agency of the City of Fiesno ("Agency',)including but not limited to the Regulatory Agree rent and Declãratión of Coveñants and ResÍictioîó("RegulatoryAgreement"). As of the date of this Certificate, forthe period shown above, thefollowing numberof Units in the Project are: (i) occupied by tenants satisfying the Low-lncome Requirements (as oefined inthe Regulatory Agreement) as a principal residence ("Eligible Tenants"), or (ii) currenily vacant and beingheld available for such occupancy and have been so held continuously since'the date an Eligible Tenanivacated such Unit:
ation
Name of Property:
Number of Units by
Bedrooms (see table for
allowable rents)lncome Cateeorv
Number of Units by lncome
Level of Tenants (percent of
AMr)
Property Address:
0 (studio)Extremelv Low 30% of AMI
1 bedroom Verv Low 50% of AMI
2 bedrooms Lower 80% of AMI
3 bedrooms Moderate 120%o1ÃMl
owner completing this certificate has relied on the income certification and supporting
information supplied by each Applicant in determining qualification for occupancy of the
Affordable Unit.
58
APEC, lnternational, LLC
a California limited liability company
By:
Name: Eugene Kim
Its: Managing Member
Date:
By:
Its:
Date:
Occuoancv Summ
Unit
Number
Unit lncome
Gategory
Number of
Occupants Unit
Size
Number
of
Bedrooms
Monthly
Rental
Paid
Number
of
Months
Occupied
Number
of
Months
Vacant
2014 Maximum lncome Limits
Extremely Low (S 30% of AMI)
Very-Low lncome (S 50% of AMI)
Lower lncome - (l 80% of AMI)
Moderate lncome - (< 120% AM¡)
$12,150 $13,e00
$20,300 $23,200
$32,450 $37,050
$48,650 $55,600
Three Four
Person Person
$15,650 $17,350
$26,100 $28,e50
$41,700 $46,300
$62,550 $69,500
$18,750 $20,150
$31,300 $33,600
$50,050 $53,750
$75,050 $80,600
Fíve Six
Person Person
One TwoPerson Person
2014 Maximum Rent Limits
59
Maximum Est. Utility Net
Maximum Rent for Extremelv Low Income Households Rent Allowancet Rent
Maxímum Monthlv Rent for a Studio Anartment S3o3.7s $ (3e.00)$264.75
Maximum Monthlv Rent for a One-Bedroom Apartment S:+z.so $(3e.00)S3o8.so
Maximum Monthly Rent for a Two-Bedroom Apartment $391.2s s(so.oo)534L.25
Maximum Monthly Rent for a Three-Bedroom Apartment $433.7s $(s8.00)$szs.zs
Maximum Monthly Rent for a Four-Bedroom Apartment $468.7s $(68.00)S+oo.zs
Maximum Est. Utilitv Net
Maximum Rent for Very Low lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment $soz.so s(3e.oo)5468.so
Maximum Monthly Rent for a One-Bedroom Apartment Ssso.oo $(3e,00)$s+r.oo
Maximum Monthly Rent for a Two-Bedroom Apartment 56s2,so s(s0.00)Sooz,so
Maximum Monthlv Rent for a Three-Bedroom Apartment $tzz.ts $(s8.00)$e ss.zs
Maximum Monthly Rent for a Four-Bedroom Apartment S782.so s(68.00)S714.so
Maximum Est. Utilitv Net
Maximum Rent for Lower lncome Households Rent Allowance+Rent
Maximum Monthlv Rent for a Studio Aoartment s608.7s s(3e.00)$s69.7s
Maximum Monthlv Rent for a One-Bedroom Aoartment S69s.oo $(3e.oo)$6s6.oo
Maximum Monthlv Rent for a Two-Bedroom Apartment $zsz.so $(so,oo)$732.s0
Maximum Monthly Rent for a Three-Bedroom Apartment S868.7s $(s8.oo)$sro.zs
Maximum Monthly Rent for a Four-Bedroom Apartment S938.7s $(6s.oo)$szo.zs
60
Maximum Est. Utility Net
Maximum Rent for Moderate lncome Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Apartment S1,115.00 s(3e.00)S1,o76.oo
Maximum Monthlv Rent for a One-Bedroom Apartment 5L,27s.oo s(3e.00)$1,236.00
Maximum Monthlv Rent for a Two-Bedroom Apartment 5r,433.7s s(so,oo)$1,383.75
Maximum Monthly Rent for a Three-Bedroom Apartment S1,s92.so s(s8.oo)$t,sE+.so
Maximum Monthlv Rent for a Four-Bedroom Aoartment Si.,720.oo s(68,00)s1,6s2.00
" The utility allowance shown above is for a mid-rise (3-5 stories) project constructed in 201'l or later.
61
EXHIBIT ''G''
AGENCY PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When
Borrower for Cancellation.
$1,900,000.00
paid, this note must be surrendered to
Fresno, California
20
For value received, the undersigned, APEC lnternational, LLC., a California limited liability
company ("Borrower"), promises to pay to the order of the City of Fresno in its capacity
as Housing Successor to the Redevelopment Agency of the City of Fresno ("Lender" or
"Beneficiary"), the sum of One Million Nine Hundred Thousand Dollars ($1,900,000.00)
together with interest on unpaid principal at the rate of 1o/, per annum, with such interest
accruing as of the Payment Commencement Date, to the extent that such funds are
loaned to Borrower, all due and payable as described herein and pursuant to the Owner
Participation Agreement. This Promissory Note ("Note") is made and entered into in
accordance with the terms of the Amended and Restated Owner Parlicipation Agreement
dated I 1 2014, entered into between Borrower and Lender ("Agreement").
Commencing on May 15th of the year immediately following issuance of the
Ceftificate of Occupancy for the Project (the "Payment Commencement Date"), and
continuing on the same date each year thereafter until the date which is fifty five (55)
years after the Payment Commencement Date ("Maturity Date"), Borrower shall submit
to the Lender an audited project financial statement (covering the previous calendar year)
along with Lender's pro rata share of the annual Project Residual Receipts (as defined below)
as calculated by Borrower. The actual and final amount of Lender's share of Residual
Receipts shall be determined by the Lender upon review of the audited financial statement.
"Residual Receipts" are determined on a cash basis and defined as revenue minus the total
of approved operating expenses, deferred portion of the developer fees in the development
budget, approved debt service, deposits to operating and replacement reserve accounts per
contract, and approved related party expenses. Such annual payments shall contÍnue until
the Maturity Date at which time the entire remaining unpaid balance of principal together
with interest and unpaid penalties or late charges where applicable thereon shall be all
due and payable, along with attorney's fees and costs of collection, and without relief from
valuation and appraisement laws. Lender's share of Residual Receipts shall be 25%.
Any failure to make a payment required hereunder shall constitute a default under this
Note.
62
All capitalized terms used in this Note, unless othen¡rise defined, will have the respective
meanings specified in theAgreement. ln addition, as used in this Note, thefollowing terms
will have the following meanings:
"Business Day" means any day other than Saturday, Sunday, or public holiday or ihe
equivalent for banks generally under the laws of California. Whenever any payment to
be made under this Note is stated to be due on a day other than a Business Day, that
payment may be made on the next succeeding Business Day. However, if the extension
would cause the payment to be made in a new calendar month, that payment will be made
on the preceding Business Day.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust with
Assignment of Rents on real estate in Fresno County, California, that provides for
acceleration upon stated events, dated as of the same date as this Note, and executed
in favor of and delivered to the Lender ("Deed of Trust"), insured by First American Title
Company as no worse than an ALTA or CLTA second position lien.
Time is of the essence with respect to all terms of this Note. lt will be a default under this
Note if Borrower defaults under the Agreement, any other Loan Documents (as defined in
the Agreement), or if Borrower fails to pay when due any sum payable under this Note or
under any other obligation secured by a Deed of Trust or other lien senior to the Deed of
Trust which secures this Note after the expiration of the applicable cure period. Borrower
shall promptly inform Lender of any new or additionalfinancing or funding, and Borrower
shall provide Lender copies of all agreements with any and all Funding Sources for this
Project, in accordance with the terms set forlh in Section 2.2 of the Agreement. ln the
event of a default by Borrower, the Borrower shall pay a late charge equal to 2% of
any outstanding payment. All payments collected shall be applied first to payment of any
costs, fees or other charges due under this Note or any other Loan Documents then to
the interest and then to principal balance. On the occurrence of a default or on the
occurrence of any other event that under the terms of the Agreement or Loan Documents
gives rise to the right to accelerate the balance of the indebtedness, then, at the option
of Lender, this Note or any notes or other instruments that may be taken in renewal or
extension of all or any part of the indebtedness will immediately become due and payable
without any fufther presentment, demand, protest, or notice of any kind.
The indebtedness evidenced by this Note may, at the option of the Borrower, be prepaid
in whole or in part, at any time, without penalty. Lender will apply all the prepayments first
to the payment of any costs, fees, late charges, or other charges due under this Note, the
Agreement, or other Loan Documents, and then to the interest and then to the principal
balance.
Upon full payment and satisfaction of all amounts due under this Note, Lender shall notify
the Trustee under the Deed of Trust that all obligations due the Note.have been satisfied,
and shall deliver to the Trustee all documents required for the full reconveyance of the
'Deed of Trust, the termination oT the Regulatory Agreement, and cancellation of the Note.
63
All payments are payable in lawful money of the United States of America at any place
that Lender or the legal holders of this Note may, from time to time, in writing designate,
and in the absence of that designation, then to Lender at its address of record provided
in the Agreement.
Borrower agrees to pay all costs including, without limitation, attorney fees, incurred by
the holder of this Note in enforcing payment, whether or not suit is filed, and including,
without limitation, all costs, attorney fees, and expenses incurred by the holder of this
Note in connection with any bankruptcy, reorganization, arrangement, or other similar
proceedings involving the undersigned that in any way affects the exercise by the holder
of this Note of its rights and remedies under this Note. All costs incurred by the holder
of this Note in any action undertaken to obtain relief from the stay of bankruptcy statutes
are specifically included in those costs and expenses to be paid by Borrower. Borrower
will payto Lender all attorney fees and other costs referred to inthis paragraph on demand.
Any notice, demand, or request relating to any matter set forlh herein shall be in writing
and shall be given as provided in the Agreement.
No delay or omission of Lender in exercising any right or power arising in connection with
any default will be construed as a waiver or as an acquiescence, nor will any single or
padial exercise preclude any furlher exercise. Lender may waive any of the conditions in
this Note and no waiver will be deemed to be a waiver of Lender's rights under this Note,
but rather will be deemed to have been made in pursuance of this Note and not in
modification. No waiver of any default will be construed to be a waiver of or acquiescence
in or consent to any preceding or subsequent default.
The Deed of Trust provides as follows:
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its option, declare
immediately due and payable all sums secured by this Deed of Trust upon the sale or
transfer, without the Beneficiary's prior written consent, of all or any part of the propedy,
or any interest in the Property. A "sale or transfer" means the conveyance of the Properly
or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment sale contract, land contraci,
contract for deed, leasehold interest with a term greater than three (3) years, lease-option
contract, or by sale, assignment, or transfer of any beneficial interest in or to any landtrust holding title to the Property, or by any other method of conveyance of Properly
interest. lf any Trustor is a corporation, partnership or limited liability company, transfer
also includes any cumulative change in ownership of more than fifty percent (SO%) of the
voting stock, partnership interests or limited liability company interests, as the case may
be, of Trustor, other tharr a transfer to the managing member of Trustor or an affiliate o1
the managing member. However, this option shall not be exercised by Beneficiary if such
, exercise is prohibited by applicable law.
Lender may transfer this Note and deliver to the transferee all or any part of the Property
then held by it as security under this Note, and the transferee will then become vested
64
with allthe powers and rights given to Lender; and Lenderwillthen be forever relieved from
any liability or responsibility in the matter, but Lender will retain all rights and powers
given by this Note with respect to Property not transferred.
If any one or more of the provisions in this Note is held to loe invalid, illegal, or unenforceable
in any respect by a court of competent jurisdiction, the validity, legality, and enforceability
of the remaining provisions will not in any way be affected or impaired. This Note will be
binding on and inure to the benefit of Borrower, Lender, and their respective successors
and assigns.
Borrower agrees that this Note will be deemed to have been made under and will be
governed by the laws of California in all respects, including matters of construction,
validity, and performance, and that none of its terms or provisions may be waived,
altered, modified, or amended except as Lender may consent to in a writing duly signed
by Lender or its authorized agents.
The Loan shall be nonrecourse to the Borrower and all constituent members of the
Borrower.
The parties will execute such other and further documents, and will take any other steps,
necessary, helpful, or appropriate to carry out the provisions of this Note.
[Signatures on following page.]
65
WITNESS WHEREOF, Bonower has exee.uted this Note on the date first written
above.
Borrower
APEC lnternational, LLC, a California limited liability company
Name: Eugene Kim
Its: Managing Member
66
EXHIBIT "H''
DEED OF TRUST
Recording requested by,
and when recorded mail ts:
City of Fresno in its capacity as
Housing Successor to the
Redevelopment Agency of the City of Fresno
2600 Fresno Street
Fresno, Cê.93721
Attention: City Manager
INSTRUCTIONS TO COUNTY RECORDER:
lndex this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is
entered into between APEC lnternational, LLC., a California limited liability company
whose principal executive office is at 770 South lrolo Street, Los Angeles, CA 90005
(the "Trustor"), in favor of Commonwealth Land Title Company, 888South Figueroa Street, Suite 2100, Los Angeles, California
I0 0 1 7 (he "Trustee"), for the benefit of the CITY OF FRESNO lN ITS CAPACITY AS
THE HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF
FRESNO (the "Beneficiary"), with offices at 2600 Fresno St., Fresno, California 93721.
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE
TRUSTEE, in trust, with the power of sale, the real property in the City of Fresno,
Fresno County, California, more particularly described in Exhibit A attached hereto
and made part hereof by reference (the "Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property,
including without limitation all easements and rights used in connection therewith or
as a means of access thereto, all right, title and interest of the Trustor, now owned or
hereafter acquired, in any land lying within the right-of-way of any street, open or
proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other
areas of land adjacent to or used in connection with the Properly;
(ii) All oil and gas or other mineral rights in or pertaining to the Property
and all royalty, leasehold and other rights of the Trustor pertaining thereto;
67
(i¡i) All water rights pertaining to the Property and shares of stock evidencing
the same, and all deposits made with or other security given to utility companies by the
Trustor with respect to the Properiy;
(iv) The rents, issues and profits thereof, subject, however, to the right, power
and authority of Trustor to collect and apply such rents, issues and profits and set forth
in this Deed of Trust;
(v) All buildings and improvements of every kind and description now or
hereafter erected or placed on the Property, and all fixtures thereon, including, but not
limited to, all gas and electric fixtures, engines and machinery, radiators, heaters,
furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves,
ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and
other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and
refrigerators, whether mechanical or otheruvise, cooking apparatus and appurtenances,
and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed
that all such fixtures and furnishings shall to the extent permitted by law be deemed
permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the
Property and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be
erected on the Property which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for which they were or are to be
erected, and all other goods, chattels and personal property as are ever used or furnished
in operating a building, or the activities conducted therein, similar to the ones herein
described and referred to, and all renewals or replacements thereof or articles in
substitution therefor, whether or not the same are or shall be attached to the building or
buildings in any manner; subject, however, to (and only to) any purchase money security
interests in such personal property.
Said real property and personal property described above, together with appurtenances,
are referred to collectively in this Deed of Trust as the "Collateral"
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal
amount of One Million Nine Hundred Thousand Dollars ($1,900,000.00),
evidenced by a promissory note executed by the Trustor and payable to the order
of the Beneficiary, bearing the same date as this Deed of Trust, and any and all
modifications, extensions or renewals thereof or substitutions therefor (the "Note"),
and performance and satisfaction of each and all other obligations of the Trustor
underthe Note;
68
(b) Performance of every obligation or Trustor in this Deed of Trust, the
Note, the Owner Participation Agreement between Beneficiary and Trustor related to
the Property (the "Owner Participation Agreement") contemplating the improvement of
the "Project" (as that term is defined in the Owner Participation Agreement); and
(c) Payment of all sums, if any, and interest thereon that may hereafter
be loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its
successors, transferees and assigns, made to the Trustor while the Trustor is the
owner of record of fee title to the Property, or any portion thereof, or to the successors,
transferees or assigns of the Trustor while they are the owners of record of such
fee title, and evidenced by one or more notes or written instruments which recite that
they are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for
any purpose other than the use for which it was intended at the time this Deed of
Trust was executed, as provided in the owner Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery
of notice and expiration of the cure period, if any, provided therein), the Beneficiary,
at its option, may declare the whole of the obligations and sums secured hereby to
be immediately due and payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are
fully authorized, and have obtained any and all written authorizations, approvals or
consents necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed
of Trust are hereby assigned to the Beneficiary for the purpose of discharging the
obligations hereby secured. However, the Trustor shall be permitted, so long as no
default exists hereunder or under the Note, to collect such rents, profits and income
for use consistent with the provisions of the Owner Participation Agreement.
5. Upon default hereunder or under the Note (following delivery of notice
and expiration of the cure period, if any, provided herein or therein), for the purpose of
protecting its interests hereunder, the Beneficiary will be entitled to the appointment
by a court having jurisdiction, without further notice and without regard to adequacy
of any security for the indebtedness secured hereby, of a receiver to take possession
of and protect the Collateral described herein and operate same and collect the
rents, profits and income therefrom. The entering upon and taking possession of the
Propefty or other Collateral by such receiver, the collection of such rents, profits and
income and the application thereof shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice.
69
6. The Trustor, at its sole cost and expense, shall provide and maintain
on the entire Property, including all buildings and improvements thereon: (i) a policy
of broad-form builder's risk insurance sufficient to cover 100 percent of the
replacement value of all buildings and improvements on the Property including;
without limitation, labor and materials in place or to be used as part of the permanent
construction (including, without limitation, surplus miscellaneous materials and
supplies incidental to the work, and scaf[olding, staging, towers, forms and
equipment not owned or rented by the Beneficiary, the cost of which is not included
in the cost of work), insuring against loss or damage by fire, extended coverage perils
and such other hazards, casualties or other contingencies as from time to time may
be reasonably required by the Beneficiary; (ii) a policy of commercial general liability
insurance that includes contractual, products and completed operations coverages,
bodily injury and property damage liability insurance with combined single limits of
not less than $1,000,000 peroccurrence; and (iii) such other insurance as may be
reasonably required by the Beneficiary, in each case in such amounts, in such
manner and with such companies as the Beneficiary and Trustor may reasonably
approve. The foregoing minimum insurance coverage limits shall be subject to
reasonable adjustment from time to time by the Beneficiary. Each such policy shall
be endorsed with a standard mortgage clause with loss payable to the Beneficiary
and the Trustor, and shall provide that the policy shall not be canceled or materially
changed without at least thirty (30) days' prior notice to the Beneficiary. Upon request
by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary
certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, alltaxes
and assessments affecting the Collateral, including assessments on appurtenant
water stock; (ii) when due, all encumbrances, charges and liens, with interest, on the
Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all
costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in
connection with the trusts created under this Deed of Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair
and not remove or demolish any buildings on the Property; to the extent insurance
or condemnation proceeds are available; (ii) complete or restore promptly and in
good and workmanlike manner the buildings and improvements and any other
building or improvement which may be constructed, damaged or destroyed thereon;
(iii) pay when due all claims for labor performed and materials furnished therefore;
(iv) comply in all material respects with all laws affecting the Collateral or requiring
any alterations or improvements to be made thereon; (v) not commit or permit waste
of or on the Collateral; and (vi) not commit, suffer or permit any act upon the Property
in violation of law and/or any covenants, conditions or restrictions affecting the
Collateral.
9. The Trustor shall appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of the Beneficiary or
the Trustee, and shall pay all costs and expenses, including cost of evidence of title
and reasonable attorneys' fees, in any such action or proceeding in which the
70
Beneficiary or the Trustee may appear, or in any suit brought by the Beneficiary to
foreclose this Deed of Trust.
10. Should the Trustor fail to make any payment or do any act as herein
provided, then the Beneficiary or the Trustee, without obligation to do so, and
following notice to or demand on the Trustor, and without releasing the Trustor from
any obligation hereof: (i) may make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof, the Beneficiary
or the Trustee being authorized to enter on the Property for such purposes; (ii) may
commence, appear in and/or defend any action or proceeding purporting to affect
the security hereof or the rights or powers of the Beneficiary or the Trustee; (iii) may
pay, purchase, contest or compromise any encumbrance, charge or lien which in the
judgment of either appears to be prior or superior hereto (except for the deeds of
trust, encumbrances and liens securing the Construction/Permanent Financing
Loan(s) and the Agency Loan, as such terms are defined below); and (iv) in
exercising any such powers, may pay necessary expenses, employ legal counsel
and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary
or the Trustee hereunder shall be added to the obligations secured by this Deed of
Trust.
The term "ConstrLlction/Permanent Financing Loan" mearìs, collectively, the
construction financing and take-out financing, and any refinancing or replacement of
that financing from time to time, to be provided by a commercial or other lender(s);
provided, however, that (i) before entering into any Construction/Permanent
Financing Loan, the Trustor shall give the Beneficiary notice of the
Construction/Permanent Financing Loan and copies of the loan agreement and all
other loan documents evidencing the Construction/Permanent Financing Loan; (ii)
the funds disbursed from each Construction/Permanent Financing Loan shall be
used only for costs and charges associated with the loan and for the operation,
maintenance and/or improvement of the Project or the Property as provided in the
Owner Participation Agreement or to refinance existing indebtedness; (iii) the interest
on each Construction/Permanent Financing Loan shall be at a reasonable rate basedon all the facts and circumstances; and (iv) the combined amounts of all
Construction/Permanent Financing Loans or any re-financing thereof and the Note
secured by this Deed of Trust shall not exceed one hundred percent (100%) of the
fair market value of the Property as improved by the Project under the Owner
Participation Agreement (such value to be determined by a qualified appraiser
reasonably acceptable to Trustor and Beneficiary. Notwithstanding any limitationsset forth above, in the event of any subsequent refinancing of a
Construction/Permanent Financing Loan, Trustor may use funds from any
refinancing that are in excess of the original principal of the initial
Construction/Permanent Financing Loan to compensate Trustor for any negative
cash flow of the Project or to fund other prôjects by Trustor or a related entity in the
Urban Core of the City of Fresno. (By way of illustration only, and without limiting the
foregoing, if the initial Construction/Permanent Financing Loan for the Project is
$4,000,000 and, while satisf,Ting the rate and loan-to-value limits set fodh in
subparagraphs (iii) and (iv), Trustor subsequently obtains refinancing in the amount
71
of $5,000,000, Trustor may use the additional $1,000,000 in excess of the original
Construction/Permanent Financing Loan to compensate Trustor for negative cash
flow or for another project in the Urban Core without making any prepayment on the
Note secured by this Deed of Trust.)
11. The Beneficiary shall have the right, but not the obligation, to pay
when due fire or other insurance premiums required hereunder if the Trustor fails to
make such payments. All such amounts paid by the Beneficiary hereunder shall be
added to the obligations secured by this Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so
expended by the Beneficiary or the Trustee under this Deed of Trust, with interest
from date of expenditure at the legal rate.
13. lf the Trustor fails to pay any amount required by the Note or this Deed
of Trust when due and payable, or fails to perform all other covenants, conditions
and agreements of the Note, this Deed of Trust orthe Owner Participation Agreement
(following delivery of notice and expiration of the cure period, if any, provided
therein), the amount of the Note, including unpaid principal and late charges, and all
other charges and amounts required by the Note and this Deed of Trust shall, at the
option of the Beneficiary, become immediately due and payable. This shall be in
addition to and without limitation on any other remedy or right available to the
Beneficiary for such failure.
14. The Trustor shall not voluntarily create or permit to be created against
the Collateralany lien or liens except as specifically permitted by this Deed of Trust
or othetwise authorized by the Beneficiary. The Trustor shall keep and maintain the
Collateral free from the claims of all persons supplying labor or materials who will
enter into the construction, rehabilitation, renovation or repair of any and all buildings
or improvements now existing or to be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after
its due date or by accepting partial payment of any such sum, the Beneficiary does
not waive its right either to require prompt payment when due of all other sums so
secured or to declare default for the Trustor's failure to pay.
16. lf the Trustor, without the prior written consent of the Beneficiary: (i)
agrees to or actually sells, conveys, transfers or disposes of the Collateral or any
interest therein or portion thereof, or (ii) assigns or delegates any right or obligation
under the Owner Participation Agreement, the Note or this Deed of Trust, then all
amounts secured by this Deed of Trust may be declared immediately due and
payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably
withhold its consent to any such transaction. The Beneficiary's consent to one
transaction of this type shall not be a waiver of the right to require consent to future
or successive transactions.
72
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Property, or any interest in
the Property. A "sale or transfer" means the conveyance of the Propedy
or any right, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed,
installment sale contract, land contract, contract for deed, leasehold
interest with a term greater than three (3) years, lease-option contract,
or by sale, assignment, or transfer of any beneficial interest in or to any
land trust holding title to the Property, or by any other method of
conveyance of Property interest. lf any Trustor is a corporation,
partnership or limited liability company, transfer also includes any
change in ownership of more than fifty percent (50%) of the voting
stock, partnership interests or limited liability company interests, as the
case may be, of Trustor, other than a transfer to the managing member
of Trustor or an affiliate of the managing member. However, this option
shall not be exercised by Beneficiary if such exercise is prohibited by
applicable law.
17. As further security for the full and complete performance of each and
every obligation, covenant, agreement and duty of the Trustor contained herein or in
the Note, the Trustor hereby grants and conveys to the Beneficiary a security interest
in and lien on all of the Collateral. This Deed of Trust shall serve as a security
agreement and financing statement created pursuant to the California Commercial
Code, and the Beneficiary will have and may exercise all rights, remedies and powers
of a secured party under the California CommercialCode. Fufther, this Deed of Trust
is filed as a fixture filing pursuant to the California Commercial Code and other
applicable law, and covers goods which are or are to become fixtures.
18. Should the Property, the buildings or improvements thereon, or any part
of any of them be taken or damaged by reason of any public improvement or
condemnation proceeding, or damaged by fire or earthquake or in any other manner, the
Beneficiary will be entitled, subject to the rights of the holder of any senior deed of trust
securing a Construction/Permanent Financing Loan, to all of the Trustor's interest in
compensation, awards and other payments or relief therefor; and, following the
occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly
with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in its
own name, any action or proceeding, or to make any compromise or settlement, in
connection with such taking or damage. All such compensation, awards, damages,
rights of action and proceeds, including the proceeds of any fire and other insurance
affecting the Property or the buildings or improvements thereon, are hereby assigned to
the Beneficiary, subject to the rights of the holder of any senior deed of trust securing a
Construction/Permanent Financing Loan. After deducting therefrom all its expenses,
including reasonable attorneys' fees, and if there has not occurred a default under the
Note, the Beneficiary shall apply all such proceeds to restoring the Property or the
buildings or improvements thereon, or if there has been such default, or if the Trustor
73
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the
amount due under the Note and any amounts due under this Deed of Trust. Any balance
of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor.
19. lf the Trustor fails to perform any covenant or agreement in this Deed of
Trust or the Owner Participation Agreement, or if a default occurs under the Note, the
Beneficiary may declare all obligations and sums secured hereby immediately due and
payable by delivery to the Trustee of written declaration of default and demand for sale
and written notice of default and of election to cause the Collateral to be sold, which
notice the Trustee shall cause to be duly filed for record, and the Beneficiary may
foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to
be in default hereunder for failure to make any payment when due or for failure to pedorm
any other covenant or agreement contained herein until thirty (30) days after written
notice of such failure is given to the Trustor and Trustor is afforded a reasonable
opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this
Deed of Trust, the Note and all other documents evidencing the obligations or sums
secured hereby.
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then
required by law, the Trustee, without demand on the Trustor, shall sell the Property at
the time and place fixed by the Trustee in the notice of sale, either as a whole or in
separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. The Trustee
may postpone sale of all or any portion of the Property by public announcement at the
time and place of sale, and from time to time thereafter may further postpone the sale by
public announcement at the time fixed by the preceding postponement. The Trustee shall
deliver to the purchaser its deed conveying fee title to the Property or portion thereof so
sold, but without any covenant or warranty, express or implied. The recitals in the
Trustee's deed of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including the Trustor, the Trustee and the Beneficiary, may
purchase at the sale. The Trustee shall apply the proceeds of the sale to payment of: (i)
the expenses of the sale, together with the reasonable expenses of the trust created by
this Deed of Trust, including reasonable Trustee's fees and attorneys' fees for conducting
the sale, and the actual cost of publishing, recording, mailing and posting notice of the
sale; (ii) the cost of any search and/or other evidence of title procedure in connection with
the sale and of revenue stamps on the Trustee's deed; (iii) all sums expended under the
terms hereof not then repaid, with accrued interest at the legal rate; all other sums then
secured hereby; and (v) the remainder, if any, to the person or persons legally entitled
thereto.
21. The Beneficiary may from time to time subsiitute a successor or
successors to the Trustee named herein or acting hereunder to execute the trusts under
this Deed of Trust. Upon such appointment, and without conveyance to the successor
trustee, the latter shall be vested with all title, powers and duties conferred upon any
Trustee herein named or acting hereunder. Each such appointment and substitution
shall be made by written instrument executed by the Beneficiary, containing reference to
74
this Deed of Trust and its place of record, which instrument, when duly recorded in Fresno
County, California, shall be conclusive proof of proper appointment of the successor
trustee.
22. Upon written request of the Beneficiary stating that all obligations secured
hereby have been satisfied and all sums secured hereby have been paid, and upon
surrender of this Deed of Trust, the Regulatory Agreement, and the Note to the Trustee
for cancellation, termination, and retention, and upon payment of its fees, the Trustee
shall reconvey, without warranty, the Collateral then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The grantee in such reconveyance may be described as "the person or persons legally
entitled thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the
Trustor, the BeneficÌary and the Trustee and their respective administrators, executors,
officers, directors, transferees, successors and assigns. The term "Beneficiary" shall
include not only the original Beneficiary hereunder but also any future owner and holder,
including pledges, of the Note secured hereby. ln this Deed of Trust, whenever the
context so requires, the masculine gender includes the feminine and/or neuter, and the
singular includes the plural.
25. ln addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action
or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the
Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in
connection with such action or proceeding, including legal expenses and reasonable
attorneys'fees and court costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly
executed and acknowledged, is made public record as provided by law. Except as
otherwise provided by law, the Trustee is not obligated to notify any party hereto of
pending sale under this Deed of Trust or of any action or proceeding in which the Trustor,
the Beneficiary or the Trustee is a party, unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice
of sale hereunder be mailed to it at 770 South lrolo Street, Suite 1000, Los Angeles, CA
90005.
28. The Trustor shall cause a copy of each deed of trust securing a
Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately
upon its recordation, so that the Beneficiary may prepare and record a request for notice
of default and notice of sale thereunder pursuant to California Civil Code Section 2924b.
29. PROVIDED THAT NO NOTIGE OF DEFAULT HEREUNDER THEN
APPEARS OF RECORD AND SUBJECT TO THE GONDITIONS IN SECTION 10
75
ABOVE AND/OR IN THE OWNER PARTICIPATION AGREEMENT, THIS DEED OF
TRUST SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS
OF TRUST SECURING A GONSTRUCTION/PERMANENT FINANCING LOAN.
BENEFICIARY SHALL, UPON REQUEST OF TRUSTOR, EXECUTE SUCH
SUBORDINATION AGREEMENT OR OTHER DOCUMENTATION REASONABLY
NECESSARY TO SUBORIDINATE THE LIEN AND CHARGE OF THIS DEED OF
TRUST TO LIEN OF ANY DEED OR DEEDS OF TRUST SECURING A
CONSTRUCTION/PERMANENT F¡NANCING LOAN, AS PROVIDED ¡N THE
OWNER PARTICI PATION AGREEMENT.
30. This Deed of Trust shall be interpreted and enforced, and the rights
and duties (both procedural and substantive) of the parties hereunder shall be
determined, according to California law.
31. Capitalized terms not otherwise defined herein shall have the
meanings given them in the Owner Participation Agreement or the Note.
lN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date set forth above.
TRUSTOR:
APEC lnternational, LLC.,
a California limited liability company
By:
Name: Eugene Kim
Its: Managing Member
Attachment:
Exhibit A: Legal Description of Property
76
ACKNOWLEDGMENTS
srATE OF CALTFORNIA )
) ss.
couNTY oF FRESNO )
On before ffiê,Notary Public,
withinpersonally appeared
instrument and acknowledged to me that he/sheithey 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 cedify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph istrue and correct.
WITNESS my hand and official seal.
(sEAL)
77
EXHIBIT A
LEGAL DESCRIPTION
THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Lots 1 ,2, 3,4, 5 and 6 in Block 63 of the Town (now City) of Fresno, according to
the map thereof recorded June 8, 1876, in Book 1, Page 2 of Maps, Fresno County
Records.
APN: 466-214-01
78
HOTEL FRESNO DESIGN SCOPE
The Hotel Fresno building will be completely renovated and transformed into a mixed-income
multi-family ploject with 79 residential housing units and common area spaces. Upon
completion the Hotel Fresno ploject will consist of six floors of apaftments, common space and
offices space on the ground floor, and a structured parkiîg garage (to be located on property to
the rear. of the building). The lesidential arcawill include a comntunity room with full kitchen,
guest restrooms, and management offices. There will be 24 one-bedloom units, 28 two-bedroom
units, 12 ttnee-bedroorn units, and 15 loft-style units. The units will range in average sizes fi'om
one-bedroom units of approximately 550 square feet; two-bedroom of approximately 800 square
feet; the thlee-bedroom units of approximately 1,100 square feet, and loft-style units of
approximately 900 square feet. All units will have central heat and air conditioning. The
piıperty will have controlled access, and will include laundly rootlts on site. In addition, we plan
to install a wireless high speed internet network that meets TCAC standards. Therefore, tenants
will also have access to free high speed wireless internet in each unit and the community rooms.
Renovations will be made to the building exterior and certain interior spaces which are intended
to meet the Secretary of Interior Standards, so that the Hotel Fresno project may qualiff to be
placed on the National Registel of Historic Places.