HomeMy WebLinkAboutBastian Court LP HOME Investment Partnerships ProgramREPORT TO THE CITY COUNCIL AGENDA ITEM NO.'.
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COUNCIL MEETING: July 22. 2008
July 22, 2006 I CITYMANAGER ��/�• VJ .
FROM: NICK P. YOVINO. Director 4iav
Planning and Development Department
BYI KEITH BERGTHOLD, Assistant Directo�
Planning and Development Department
THROUGH: CLAUDIA CAZARES, Interim Manager i,rk.. La; w—
Housing and Community Development Division
SUBJECT: APPROVALOFHOME INVESTMENT PARTNERSHIPS(HOME)PROGRAM LOAN
FUNDS IN THE AMOUNT OF $2,100,000 TO BASTIAN COURT LP FOR THE 61 -UNIT
BASTIAN COURT AFFORDABLE MULTI -FAMILY DEVELOPMENT PROJECT
KEY RESULT AREA
One Fresno '.eew inr..ry rwn<a
re aifp$
RECOMMENDATION
Staff recommends Council:
1, Authorize negotiation and entry of a HOME Program Agreement in the amount of $2,100,000 to
Bastian Court LP for the construction of the 61 -unit mlzed-use Boston Court affordable multi -family
development project, subject to prior approval by the City Attorney; and
2. Adopt environmental assessment No. 01407206 Determination of aemptlon for the Bastian Court
affordable housing project.
EXECUTIVE SUMMARY
The City has received a HOME funding request in the amount of $4,050,000 tram Bastian Court LP for its
proposed Besides Court apartments. Staff is requesting approval of HOME funds in the amount of $2.100.000,
from FY 08-09. Staff will return to HCDC and Council In the read two fiscal years for approval of the atlditi0nal
$1,950.000 In HOME Program funds.
The proposed project is located in downtown Fresno (See Ekhiba A - Project Map) on the northwest corner a
Stanislaus and L Streets. The project will consist of 60 affordable rental housing units, of which all will be
available to very -low and low-income families, one managers unit and commercial ground floor space. The
HOME Program funds will be provided as a loan at Me applicable fede2l rate (Of 6me 0 disbursement), will
carry a 55 year affordability period, with the principal and Interest payable from residual receipts from the
project's net operating Income.
KEY OBJECTIVE BALANCE
The approval of HOME Program funds for the Bastian Court apartments presents an opportunity to make a
posture impact to the Customer Sardfaction, Employees Satisfaction, and Financial Management Key
Objectives. Approval Impacts the Customer Service aspect by demonstrating the CBYs commllmerd
REPORT TO CITY COUNCIL
RE: APPROVAL OF HOME AGREEMENT(BASTIAN COURT)
July 22, 2008
Page 2
to strengthening local and private gamerships to ensure adequate and afternoon housing for households at or
below fie% of area median income. The approval also coonbules t0 Employee Satisfaction by supporting
efforts that help achieve the Housing Element goals of producing affordable housing. In addition, It
demonstrates creative and resourceful Financial Management by encouraging Me practice of leveraging private
and public funds todevelop affordable housing.
BACKGROUND
The Bastian Chun development team consists of Mission Housing Development Corporation, Cornerstone
Foundation, and Bastian Partners LLC. The development team has over W years experience In development
of affordable housing, general contracting, and provision of community services. Mission Housing, the projects
co -managing general partner Is a non-profit, community based organization which creates and preserves high-
quality aflortlable housing for residents of low and moderate Incomes In the Mission District and San Francisco.
Mission Housing has partnered whim the development team to provide development and management expertise
to the project. The Cornerstone Foundation will provide coal input to the project as comanaging general
partner. Bastian Partners LLC is Me developer of record for this affordable housing project.
The total project cost is estimated at $14.7 million. Other projected sources of financing are tax exempt boos,
4% tax credits, deferred developer fee, and a general partner loan. The requested HOME funds will provide
gap financing to complete the project, The commercial construction will be financed separately through other
sources.
The HOME Program loan funs will carry an interest rate at the applicable federal rate (at Me date of
disbursement), will be rapid with residual receipts derived from Me net operating income of the project and will
be secured by a den of Most recorded against the property. Sixty units will be designated as very -low and low-
income available to households at, or below, W percent of area median Income as defined annually by the U.S,
Department of Housing and Urban Development (HUD) for Me Fresno metropolitan area. One additional unit
will be reserved for an on-site manager. The project will have 15 one bedroom units and 45 two-bedroom unite.
The project will remain affordable to very -low and low -Income families for a minimum of 55 years.
The HOME funding commitment In FY 08-09 is $2,100.O1)0, which will be available following Council
approval and contract execution. Staff will return to Council in the next two fiscal years requesting
approval of the additional HOME funs for the project Additionally. staff will collaborate with Bastian
Court LP to submit an application to the State of California Infill Infrastructure Grant Program, as fuming
becomes available. If awardeq these grant funds will underwrite the cost of capital improvements for me
project, and subsequently may reduce the amount of City subsidy (HOME Program funds) requested for this
project Infill Infrastructure Grant Program funds are allocated by the State through a competitive process and
are based on a points scale. Selection criteria include project readiness, housing affordability, density, proximity
and access to transit centers, parks, employment centers, and consistency with regional growth plans.
The project Is located on Me northwest corner of Stanislaus and L Streets in downtown Fresno. A site
map of the area, preliminary architectural elevations and site plan are shown in Exhibit A. The 048
acre site will be developed as a mixed-use development, with sixty-one multi -family units and approximately
7,500 square feet of ground floor commercial space. The five -story building vall incorporate wood construction
with stucco exterior, a second floor plea and energy efficient features. The Cornerstone Foundation will
provide community outreach for the residents and assist in connecting residents with existing community
Services and groups.
REPORT TO CITY COUNCIL
RE: APPROVAL OF HOME AGREEMENT(BASTIAN COURT)
July 22, 2008
Page 3
Development of Bastian Court helps to fulfill the affordable housing goals and objectives of the Housing
Element of the 2025 General Plan and the 2006-2010 Consolidated Plan to HUD.
Environmental review consistent with both state regulations (CEGA) and federal funds (NEPA) has been
completed. The project was found to be exempt from the provisions of CEGA (Exhibd B) and have no
significant impact on the environment based on NEPA guidelines.
HOUSING AND COMMUNITY DEVELOPMENT COMMISSION
The Housing and Community Development Commission considered and recommended approval of this Item on
July 9, 2008,
FISCAL IMPACT
HOME funds for this proposed project are budgeted in Me Planning and Development Department's FY 2009
Budget.
APPENDICES
Exhibit A — Project Map, Elevations, Site Plan
Exhibit B — CEOA Exemption
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4dKrazan&ASSOCIATES INC.
OCOTECRNICAL ENGINEERING . ENVIRONMBNTAL ENGINEERING
CONSTRUCTION TESTING h INSPECTION
ENVIRONMENTAL ASSESSMENT
EIU ZAN PROJECT NO.O1&09206
CITY OF FRESNO
RXEMPTION FROM THE PROVISIONS OF TRE
CALIFORNIA ENVDRONMENTAL QUALITY ACT
THE PROTECT DESCRIBED HEREIN IS DETERMNFD TO BE EXENUT FROM THE
PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO TIRE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) GUIDEI NES (CALIFORNIw
CODE OF REGULATIONS §15000 ET SEE)
APPLICANT: City of Frosno, Planning and Development Department,
PROJECT LOCATION: 2139 Sti oislaus and 1519 "L" Samets,. Fresno, CaEfrmia
PROJECT DESCRIPTION: The City of Fresno coed donally approved $4,050,000 in HUD
Home Investment Partnerships (HOME) Program funds for the
Project. The project will include acquisition of two parcels of
property, approximately 0.5 acres in size, locared on the
noMwest Comer of Stenislaus end "L' Str es in downtown
Fresno, California Fresno County Assessor's Petrel Nutrition
(APNs) 466-142-14 and -15. The convert Oa-site suucNre is
slated for demolition with a subsequent proposed mined-use
development including a W-unit five-story affordable housing
apartment complex with ground Boor commercial space N m
existing urban neighborhood.
EXPLANATION: Public Resources Code 21080.14 provulm exemption for
actions roleted tothe conshocfion, conversion, or use of income housing projects of 100 Sears or less in urban cross.
Provided the site is less than 5 acres, not a wildlife behind and
s assessd for environmental contamirams. The proposed
project includes 60 units, is approxlmemly 0.5 acres in size, is
not a wildlife habitat Rod was found to have m recognized
nvironmeoml conditions hasd upon December 3, 2007 End
March 14, 2008 Phase I Environmental Site Assessment
research. Therefore, environmeoud review under the provisions
of CEQA is not required.
DATE: March 20, 2008 J,
PREPARED BY: Arthur C. Farkas
R�ee�giis�tered/Envwvmenml Assessor
SUBMITTED BY: et .
Nick P. Yovino, Director
City of Fresno
Development Department
Recorded at the Requeel of
and when Recarded Rehm to:
FRESNO County Recorder
Robert CIkmer
DOC— 2008-0118280
City Fresno
Planning and Development Department
Housing and Community Devebpmem Division
Amanmon: Housing Manager
Tuesday,
T!I Pd
AUG 19, 2009 11:19:91
$0.00 Nbr-0002828898
JZG/R3/1-59
2EW Fresno Seem, Room 3076
Fresno, CA W721-3505
(SPILEPBOVE TRIS LME FOO RECORDERS USE OVLo
This Agreement Is recorded at the request and for the benefit of the City of Fresno and Is
exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
By:
Andrew T. T. Sou
City Manager
Date: t*6
CITY OF FRESNO HOME PROGRAM AGREEMENT
HOME Investment Partnerships Program Agreement
by and between
CITY OF FRESNO,
a municipal corporation
and
BASTIAN COURT, LP
a California Limited Liability Company
regarding
"Bastian Couff
APN: 466-142-15 and 466-142-14
An Affordable Multi -Family Mixed-Usa Apartment Project
TABLE OF CONTENTS
RECITALS............................................................................................................................3
ARTICLE I.
DEFINITIONS.................................................................................................4
ARTICLE2.
TERMS............................................................................................................7
ARTICLE 3.
GENERAL REPRESENTATIONSIWARRANTIES OF BASTIAN COURT .....
8
ARTICLE 4.
HOME PROGRAM REPRESENTATIONIWARRANTIES BY BASTIAN
COURT.................................................................................................................................
9
ARTICLE 5.
COVENANTS AND AGREEMENTS OF BASTIAN COURT ........................
15
ARTICLE 6.
DISBURSEMENT OF HOME FUNDS...........................................................
18
ARTICLE 7.
DEVELOPMENT AND CONSTRUCTION OF PROJECT .............................20
ARTICLE B.
PROJECT OPERATIONS.............................................................................25
ARTICLE 9.
INSURANCE AND INDEMNITY...................................................................27
ARTICLEI0.
DEFAULT AND REMEDIES.......................................................................29
ARTICLE 11.
GENERAL PROVISIONS...........................................................................
31
EXHIBIT
EXHIBITA: PROPERTY DESCRIPTION
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C: BUDGET AND CASH FLOW
EXHIBIT D: DECLARATION OF RESTRICTIONS
EXHIBIT E: CERTIFICATE OF COMPLETION
EXHIBIT F: PROMISSORY NOTE
HOME INVESTMENT PARTNERHIPS PROGRAM AGREEMENT
This HOME Investment Partnerships Program Agreement (hereinafter referred to as
Me "Agreamenr) is entered Into this, Li, 4� 2008, by and
between the CITY OF FRESNO, a municipal aorporafion, acting through its Planning and
Development Department - Housing and Community Development Division (hereinafter
referred to as Me "CITY"), and BASTIAN COURT, LP, a California limited partnership, in
good standing with principal offices in Fresno, California, (hereinafter referred M as
"BASTIAN COURT-).
:13NIL1[
A. The CITY has received a HOME Investment Partnerships Program (hereinafter
referred to as 'HOME Program') grant from Me U.S. Department of Housing and Urban
Development (hereinafter referred to as 'HUD"), order Title II of Me Cranston -Gonzalez
National Affordable Rental Housing Act of 1990, as amended (hereinafter referred to as Me
ACT').
B. To advance the supply of Affordable Rental Housing within the City of Fresno, Me
CITY desires, among other things, to encourage private investment in the affordable rental
housing market.
C. The Project will provide for the construction of sixty-one (61) affordable housing
units, of which sixty (60) will be HOME -assisted affordable rental housing units at the
Property Identified in EXHIBIT A.
D. BASTIAN COURT desires to act as owner, developer, and exercise effective project
control as to the construction of a sixty-one (61) unit apartment complex of which sixty (60)
units shall be constructed and preserved as Very Low. and Low -Income Rental Housing,
and related on-site and off-site improvements, hereinafter referred to as Me "Project", as
more particulady described in the Project Description attached hereto as EXHIBIT B,
Incorporated herein.
E. The Project will be constructed upon HOME eligible Property located within the
boundaries of the City of Fresno, as more particularly described In Me allached EXHIBIT A.
F. To further its goal to increase the supply of Affordable Rental Housing within the City
of Fresno, the CITY desires to assist BASTIAN COURT by providing a Two Million One
Hundred Thousand Dollars ($2,100,000) residual receipts HOME Program Loan to the
Project (hereinafter referred to as "Loan"), for a term of fifty-five (55) years, for payment of
HOME eligible Project cosh, as further identified In EXHIBIT C (Project Budget), to be
secured by the underlying real property and the Affordable Rental Housing covenants,
upon the terms and conditions in this Agreement. The Interest will be at the Applicable
Federal Rate (as of the date of initial disbursement) compounded annually, Principal and
Interest will be payable from residual receipts at times prior to the Maturity Date and in full
upon the Maturity Data
G. The CITY has conducted an environmental revlew of Me Project pursuant to Me
National Environmental Policy Act ("NEPA") resulting in afinding of no significant impact.
CITY has received related federal approval for release of HOME funds pursuant to 24 CFR
Part 58. Additionally, the City has conducted an environmental review of the Project
pursuant to the California Environmental Quality Act (°CEQI resulting in a categorical
exemption.
H. The CITY has determined that this Agreement is in the best interests of, and will
materially contribute to, the Housing Element of the General Plan. Further, the CITY has
found that Me Project (i) will have a positive Influence in Me neighborhood and surrounding
environs, (ii) is in Me vital and best interests of Me CITY, and the heaPh, safety, and
"Rare of CITY residents, (iii) complies with applicable federal, state, and local laws and
requirements, (iv) will Increase, improve, and preserve the community's supply of Low -
Income Housing available at Affordable Rental Housing cost to persons and families of
Low -Income, as defined hereunder, (v) planning and administrativeexpenses incurred in
pursuit hereof are necessary for the production, Improvement, or preservation of Low -
Income Housing, and (vi) will compty with any and all owner padicipatlon rules and cntena
applicable thereto.
1. The CITY and BASTIAN COURT have determined that the HOME Funded Project
constitutes rougm programmatic/grantee lender activities utilizing available and allocated
progra Wgrantee funding, outside the reach of California Constitution Article XXXIV and
enabling legislator.
NOW, THEREFORE, IN CONSIDERATION of the some recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledge, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terms have Me meaning and content set forth in this Article wherever used in
this Agreement, attached exhibits or attachments that are incorporated into MIs Agreement
by reference.
1.1 ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
1.2 Acquisition means vesting of the Property in fee title.
1.3 Art Intuitive Marketing means a good faith effort to attract eligible persons of
all racial, ethnic and gentler groups, In the housing market area, to rent Me proposed
Affordable Rental Housing Project units that are proposed for construction on Me eligible
Property, as hereinafter defined.
1.4 Affordability Period means the minimum Perad of fifty-five (55) years
commencing from Me date the CITY Issues and records the Certificate of Completion, as
more fully described In the Declaration of Restrictions (attached hereto as EXHIBIT D).
1.5 Affordable Rental Hous ng means the rental housing units of which sixty (60)
will be required to meet Me affordability requirements of 24 CFA 92.252.
1.6 Budge means the pro -forma Project Budget, attached hereto as EXHIBIT C,
as may be amended upon the approval of the CITY's Housing and Community
Development Division Manager, provided any increase in HOME Funds hereunder requires
City Council Approval.
1.7 Certificate of Completion means that certificate issued, In the form attached
as EXHIBIT E ("Certificate of Completion-), to BASTIAN COURT by the CITY evidencing
completion of the Project and a release of construction related covenants for Me purposes
of the Agreement.
1.8 CFR means the Code of Federal Regulebons.
1.9 Commencement of Construction means the time BASTIAN COURT or
BASTIAN COURT construction contractor begins substantial physical work on the
Property. Including, without limitation, delivery of materials and any work, beyond
maintenance of the Property in its status quo condition, and not later than sixty (60)
calendar days following the CITY's approval of commencement of construction.
1.10 Declaration of Restrictions means the Declaration of Restrictions in the farm
attached hereto as EXHIBIT D, which shall be recorded against the Property ro later than
the date of disbursement of Loan proceeds, setting out the Affordable Rental Housing
covenants and requirements of this Agreement which shall run with the land.
1.11 Deed of Trust means that standard, subordinate no worse than first (1')
Position Deed of Trust including assignment of rents and security agreement given by
BASTIAN COURT, as Trustor, to the CITY as beneficiary, issued through an escrow
established by BASTIAN COURT at its sole cost and expense with a title company
acceptable to CITY, recorded against the Property, Insured In the full amount of the Loan
and acceptable to the City Attorney, as well as any amendments to, modifications of and
restatements of said Deed of Trust. The terms of any such Deed of Trust are hereby
incorporated Into this Agreement by this reference.
1.12 EI c ble Cor; means any and all HOME Program eligible Project costs as
may be reimbursed by me Loan(s),. consistent with the Budget, attached as EXHIBIT C.
allowable under 24 CFR Part 92, as specified in 24 CFR 92.205, and 92.206, and not
disallowed by 24 CFR 92.214, provided, however, that costs incurred in connection with
any activity mat is determined to be ineligible under the Program by HUD or the CITY shall
not constitute Eligible Costs.
1.13 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.14 Family has the same meaning given Mat term In 24 CFR 5.403
1.15 Hazardous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous
substances; 'hazardous wastes," hmaides materials; "pollutants,"'contaminants" or
'toxic substances' under federal or state environmental and health safety laws and
regulations, including without limitation, Petroleum and petroleum byproducts, flammable
explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead.
HaZarcham Materials do not Include substances Mat are used or consumed In Me normal
course of developing, operating or occupying a Musing project, ro the extent and degree
that such substances are stored, used and disposed of in the manner and In amounts Mat
are consistent with normal practice and legal standards.
1.16 HOME Investment Partnership Funds(also referred to in this Agreement as
HOME Funds or HOME Program Funds) means the HOME Program monies Including the
Loan, in an amount not to exceed the sum of Two Million One Hundred Thousand Dollars
($2,100,000) to be used for HOME Program eligible Project costs.
1.17 Household means one or more persons occupying a Unit in the proposed
Affordable Rental Housing Project,
1.18 SL means the United States Department of Housing and Urban
Development.
1.19 Loan means the non -assumable loan of HOME Funds, in an amount not to
exceed the sum of Two Million One Hundred Thousand Dollars($2,100,000), made
available by the CITY to the Project pursuant to Mis Agreement, as more specdically
described in the Budget and in Me Promissory Note attached hereto as EXHIBITS C and F
respectively.
1.20 Loan Documents are collectively this Agreement, the Note, Deed of Trust,
Declaration of Restrictions and all related documentsrnstruments as they may be
amended, modified or restated from time to time along with all exhibits and attachments
Mento, relative to the Loan.
1.21 Low -Income Families means families whose annual income does not exceed
eighty percent (80%) of the median Income for the Fresno, California area as determined
by HUD, except as HUD may establish Income callings higher or lower than 130% of the
median for Me area on the basis of HUD findings that such variations are necessary,
1.22 -Na means Me non -assumable, Project Note In a principal amount not to
exceed the HOME Program per unit cap (24 C.F.R. 92.250) as determined by the CITY,
given by BASTIAN COURT as promissor, in favor of the CITY as promissee, evidencing
Me Loan and performance of the affordability and other covenants and restrictions set forth
In this Agreement, secured by a standard Deed of Trust as 1"positron lien upon Me
Property, naming the CITY as beneficiary and provided to the CITY no later Man the data
of Project funding hereunder. an exemplar of which Note is attached hereto as EXHIBIT F,
and incorporated herein, as well as any amendments to, modifications of and restatements
of said Note consented to by CITY.
1.23 Prooram Income has the meaning provided in the HOME program including
24 CFR 92.503.
1.24 Protect means each and all of the sixty-one (61) Low -Income and Very Low -
Income Affordable Rental Housing Units to be constmcted, membered, and rented as Low -
Income Housing, and related on-site and off-site improvements, all as descbbed in the
Project Description attached hereto and incorporated herein as EXHIBIT B, upon the
Property as more particularly described In EXHIBIT A. Sixty (60) HOME -units will be
rented to Very low- and Low -Income persons as identified In the Project Description, which
shall most HOME Program requirements.
1.25 Protect Completion Date means Me date that the CITY shall have determined
that the Project has reached completion in accordance with this Agreement. The Project
Completion Date for this project is Identified in EXHIBIT B.
1.26 Profs& Schedule means Me schedule for completion of the Project Included
within the EXHIBIT B Project Description and Schedule, consistent with the above Project
Completion Date.
1.27 Prom means the HOME Program eligible property located at Me northwest
corner of Stanislaus and L Streets, APN: 466-142-15 and 466142-14, Fresno, California,
more specifically described in the attached EXHIBIT A, to be acquired by BASTIAN
COURT, and developed for Affordable Rental Housing.
1.28 gent means Me total monthly payments a tenant pays for a Unit including Me
following: use and occupancy of the Unit and land and associated fac0lies, including
parking (other than parking services acquired by tenants on an optional basis), any
separately charged fees or service charges assessed by BASTIAN COURT which are
required of all tenants (other man security deposits), the cost of an adequate level of
service for utilities paid by Me tenant (including garbage collection, sewer, water, common
area electricity, but next telephone service), any other Interest, taxes, fees or charges for
use of the land or associated facilities and assessed by a public or private entity other Man
BASTIAN COURT, and paid by the tenant.
1.29 Unit means a dwelling unit of the Rental Housing.
1.30 Very Low -Income Families means families whose annual Income does not
exceed fifty percent (50%) of Me median income as established by HUD for Me Fresno,
California area, except as HUD may establish income callings higher or lower than 50% of
the median for Me area on the basis of HUD findings that such variations are necessary.
ARTICLE 2. TERMS
2.1 Loan of HOME Funds The CITY agrees to provide the Loan of HOME Funds
to BASTIAN COURT in an amount not to exceed Two Million One Hundred Thousand
Dollars ($2,100,000.00) under the terms and conditions provided in this Agreement. The
HOME Funds shall only be used for payment of HOME eligible costs.
2.2 Loan Documents. BASTIAN COURT shall execute and deliver to Me CITY
the Loan Documents including the Note and the Dead of Trust that shall be recorded
against the Property, as provided for in this Agreement.
2.3 Term of Aareement. This Agreement Is effective upon Me date of execution
and shall remain in fame for Me duration of Me Aftodabiliry Period unless earlier
terminated as provided herein. After the fifty-five (55) year Affordability Pence this
Agreement will expire. It is Understood and agreed upon, however, that it for any ressun
this Agreement should be terminated In whole or In pan as provided hereural without
default, by BASTIAN COURT prior to disbursement of HOME Program Funding hereunder,
Me CITY agrees to record a Nome of Cancellation regarding this Agreement, upon the
written request of BASTIAN COURT.
2.4 Loan Repayment antl Matuntv. The Loan will be We and payable in
amgmanm with the Note and not later than the maturity date provides in the Note.
2.5 Inmrooration of Dgmmem. The BASTIAN COURT proposal dated March
22, 2007, the CITY Council approved Minutes of duly 22, 2008, approving this Agreement,
the Low Documents, the Act and HUD regulations at 24 CFR Pan 92, and all exhibits,
attachments, documents and instruments referenced herein, as now in effect and as may
be amended from time to time, constants pan of this Agreement and are Inconewated
herein by reference. All such documents have been provded to Me tables herewith or
have been otherwise provided d/proauad by the pates and reviewed by each of them
prior to execution hereof.
2.6 Covenant; g(BASTIAN COURT. BASTIAN COURT for need and its
nomineaslassigns wrenante and agrees to comply with all the terms and conditions of this
Agreement and the requirements of 24 CFR Part 92.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF BASTIAN COURT
3.f Existence ant Qualification. BASTIAN COURT represents and warrents As
of the date hereof, that BASTIAN COURT Is a duly organized California limited partnership
corporation in gootl startling. BASTIAN COURT hes the requisite power, right, and legal
authority to execute, deliver, and perforin 9s obligations under this Agreement and has
taken all actions necessaryto authorize the execu0on, delivery, Pedonnznce, antl
observance of its oiNigalons under this Agreement. This Agreement, when executed antl
delivered, shall mnsMute Me legal, valid, ant binding obligations of BASTIAN COURT
mformable against BASTIAN COURT m amordarm with tis respeofive terms, except as
such enforceability may be limited by (a) bankruptcy, Insolvency, fraudulent conveyance,
reorgan mmir, rmramnum, or other similar laws of general applicability affecting Me
enforcement of credited; rgh5 generally, and (b) Me application of general principles of
equity without the joinder of any other party.
3.2 No ttlication Material to Financial Condition. BASTIAN COURT represents
and warrants as of the date hereof Mat, except as disclosed d and approved by CITY In
writing, no litigation or administrative proceeding before any mud or gowmmemal body or
agency is now pending, nor, to the best of BASTIAN COURTS knowledge, is any such
litigation or proceeding now threatened, or anticipated against BASTIAN COURT that, if
adversely determined. would have a material adverse affect on the financial condition,
business, or assets of BASTIAN COURT or on the operation of the Project.
3.3 No Conflict of Interest. BASTIAN COURT represents and warrents as of the
date hereof that no official, officer, agent, or employee of Me CfTY directly or midabci y,
awns or controls any interest in BASTIAN COURT, and no person, directly or indirectly
awning or dowelling any Interest in BASTIAN COURT, is an official, officer, agent, or
employee of the CITY
3.4 No Legal Bar. BASTIAN COURT represents and warrants as of the date
hereof that the execution, delivery, performance, or observance by BASTIAN COURT of
this Agreement will not, to the best of BASTIAN COURTS knowledge. materially violate or
contravene any provisions of: (a) any existing law or regulation, or any order of decree of
any court, governmental authority, bureau, or agency; (b) governing documents and
Instruments of BASTIAN COURT; or (c) any mortgage, indenture, security agreement,
contract, undertaking, or other agreement of instrument to which BASTIAN COURT is a
party or that is binding on any of Its properties or assets, the result of which would
materially or substantially impair BASTIAN COURTS ability to perform and discharge Its
obligations or Its abiltty to complete the Project under this Agreement.
3.5 No Violation of Law. BASTIAN COURT represents and warrants as of the
date hereof that, to the best of BASTIAN COURTs knowledge, this Agreement and the
operation of the Project as contemplated by BASTIAN COURT, do not violate any existing
federal, state, or local laws or regulations.
3.6 No Likai Material to Protect. BASTIAN COURT represents and warrants
as of the date hereof that, except as disclosed to, and approved by the CITY In writing,
Mere is no action, proceeding, or investigation now pending, or any basis therefor known or
believed to exist by BASTIAN COURT that questions Me validity of this Agreement, or of
any action to be taken under this Agreement, that would, 9 adversely determined,
materially or substantially Impair BASTIAN COURT's alllity to perform and observe Its
obligations under this Agreement, or that would either directly or Indirectly have an adverse
effect on or impair the completion of the Project.
3.7 Assurance of Governmental Ao0rovals and Licenses. BASTIAN COURT
represents and warrants, as of the date hereof, that BASTIAN COURT has obtained and
to the best of BASTIAN COURTS knowledge, is In compliance with all federal, state, and
local governmental reviews, consents, authorizations, approvals, and licenses presently
required by law to be obtained by BASTIAN COURT for the Project as of the date hereof.
ARTICLE 4. HOME PROGRAM REPRESENTATION AND WARRANTIES BY BASTIAN
COURT
BASTIAN COURT, for Itself and its development team, represents and warrants that:
4.1 Accessibility. BASTIAN COURT warrants, covenants and agrees that it shall
comply with all federal regulations concerning accessibility requirements In federally funded
housing, Including. but not limited to the following:
A. At least five percent (5%) of the dwelling units, or at least four (4) units,
whichever is greater, must DB constructed to be accessible for persons with mobility
disabilities. An additional two percent (2%) of the dwelling units, or at least two (2) units,
whichever is greater, must be accessible for persons with hearing or visual disabilities.
These units must be constructed in accordance with the Uniform Federal Accessibility
Standards (UFAs) or a standard that is equivalent or stricter. These mandates can be
found In 24 CFR Part 8, which implements Section 584 of the Rehabilitation Act of 1973
(29 USC. 794)
B. The design and construction requirements of the Fair Housing Act
(Ttlle VIII of Me Civil Rights Act of 1968, as amended), including Me following seven (7)
requirements of the Fair Housing Accessibility Guidelines:
1. Provide at least one accessible building entrance on an
accessible route.
it Construct accessible and usable public and common use areas.
III. Construct all doors to ce accessible and usable by persons in
wheelchairs.
Iv. Provide an accessible route into and Mrough the covered
dwelling unit.
V. Provide light switches, electrical outlets, thermostats and other
environmental controls In accessible locations.
V1. Construct reinforced bathroom walls for later installation of grab
bars around toilets, tubs, shower stalls and shower seats, where
such fadlities are provided.
vii. Provide usable kitchens and bathrooms such that an individual
who uses a wheelchair can maneuver about the space.
C. Title III of the Americana with Disabilmes Act of 1990 (ADA) as It
relates to Me required accessibllity of public and common use areas of the Project.
4.2 AMrmed" Marketing. BASTIAN COURT warrants, covenants and agrees
that it shall comply with all all irmative marketing requirements, including without limitation,
those set out at 24 CFR 92.350, 24 CFR 92.351, In order to provide information and
otherwise attract eligible persons from all racial, ethnic and gentler groups in the housing
market. BASTIAN COURT shall be responsible for complying with the CITY's "Affirmative
Marketing Policy- document, Incorporated hereln, as amended from time to time. BASTIAN
COURT shall maintain records of actions taken to all irmatively market units, and to assess
the results of these actions.
4.3 Availability of HOME Funds. BASTIAN COURT uncerstands and agrees that
the availability of HOME Funds Is subject to the control of HUD, or other federal agencies,
and should said Funds be encumbered, withdrawn or otherwise made unavailable to Me
CITY, whether earned by or promised to BASTIAN COURT, and/or should CITU in any
fiscal year hereunder fail to allocate said Funds, the CITY shall not provide saitl Funds
unless and until they are made available for payment to Me CITY by HUD and Me CITY
receives and allocates said Funds. No other funds owned or controlled by the CITY shall
be obligated under this Agreement.
44
Compliance
with Agreement.
BASTIAN COURT wanarrim covenants and
10
agrees that, in accordance with Me requirements of 24 CFR 92.252 and 24 CFR Pan 85,
upon any uncured default by BASTIAN COURT within Me meaning of Article 10 of this
Agreement, Me CITY may suspend or terminate this Agreement and all other agreements
with BASTIAN COURT without waiver or limitation of rightwerneNes otherwise available to
the CITY.
4.5 Conflict of (merest. BASTIAN COURT warrants, covenants and agrees that it
shall comply with the Conflict of Interest requirements of 24 CFR 92.356 including, without
limitation, that no officer, employee, agent or consultant of BASTIAN COURT (other Man
an employee or agent of BASTIAN COURT who occupies a unit as the project manager or
maintenance worker) may Occupy a Project Unit, BASTIAN COURT understands and
acknowledges that no employee, agent. consultant, officer or elected official or appointed
official of the CITY, who exercises or has exercised any functions or responsibilities with
respect to the Project, or who is in a position to participate in a decision making process or
gain inside information with regard to these activities, may obtain a financial interest or
benefit from the Project, or have an interest In any contract, subcontract or agreement with
respect thereto, or the proceeds thereunder, either for him Or herself or for anyone with
which that person has family or business ties, during his or her tenure or for one year
thereafter. To the extent provided at 24 CFR 91 no owner, developer or sponsor Of
the Project, or officer, employee, agent or consultant thereof, may occupy a Project Unit.
4.6 Construction Standard . BASTIAN COURT shall construct Me proposed
housing units assisted under this Agreement In compliance with all applicable local codes,
ordinances and zoning requirements In effect at the time of issuance of CenHiwtion of
Completion. In the absence of a local code for construction, BASTIAN COURT agrees t0
comply with the applicable standards identified in 24 CFR 92.251.
43 Covenants and Restrictions to Run with the Land. The CITY and BASTIAN
COURT expressly warrant, covenant and agree to ensure Mat Me covenants and
restrictions set forth In this Agreement are recorded and will run with the land, provided,
however, that, on expiration of this Agreement and Me Affordable Housing requirements
therein, said covenants and restrictions shall expire. BASTIAN COURT further warrants,
covenants and agrees to ensure that the covenants and restrictions set forth herein shall
run In favor of the CITY.
A. The CITY and BASTIAN COURT hereby declare their understanding
and intent that Me covenants and restrictions set farm herein directly benefit Me land (a) by
enhancing and increasing Me enjoyment and ownership of Me proposed Project by certain
Low -Income and Very Low -Income Families, and (b) by making possible the obeilning of
advantageous financing for construction.
B. BASTIAN COURT covenants and agrees that until Me expiration of Me
Affordability Period it shall cause the Affordable Rental Housing t0 be used for Affordable
Housing.
C. Without waiver or limitation, the CITY shall be emitted to Injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be entitled to damages available under law or contract
for any injuries or losses resulting from any violations thereof.
D. All present and future owners of the Rental Housing and other persons
claiming by, through, or under them shall be subject to and shall comply with the covenants
and restrictions. The acceptance of a deed of conveyance to the Rental Housing shall
constitute an agreement that the covenants and restrictions, as may be amended or
supplemented from time to time, are accepted and ratified by such Mum owners, tenant or
occupant, and all such covenants and restrictions shall be covenants running with the land
and shall bind any person having at any time any Interest or estate in Me Rental Housing,
all as though such covenants and restrictions were recited and stipulated at length in each
and every deed, conveyance, mortgage or lease thereof.
E. The failure or delay at any Nme of the CITY or any other person
entitled to enforce any such covenants or restrictions shall in no event be deemed a waiver
of the same, or of the right to enforce the same at any Mme or from time to true thereafter,
or an estoppel against the enforcement thereof.
4.8 Displacement of Persons. BASTIAN COURT warrants, covenants and
agrees that pursuant to 24 CFR 92.353, N will take all reasonable steps to minimize the
displacement of any persons (families, individuals, businesses, nonpro@ organizations and
farms).
4.9 Initial and Annual Income Cenfication. BASTIAN COURT warrants,
covenants and agrees that it shall comply with the procedures for annual Income
determinations at 24 CFR 92.203. BASTIAN COURT shall obtain, complete and maintain
on file, immediately prior to initial occupancy, and annually thereafter, income certifications
from each tenam Household renting any Unit. BASTIAN COURT shall make a good faith
effort to verify that the income provided by an applicant or occupying Household in an
income certification is accurate by taking one or more of the following steps as pan of the
verification process: (1) obtain a pay stub for the most record Pay pend; (2) obtain an
income verification form from the applicant's current employer; (3) obtain an income
verification form from the Social Security Administration and California Department of
Social Services N the applicant receives assistance from either of such agencies; (4) obtain
an income tax return for the most recent tax year, or (5) if the applicant is unemployed and
has no such tax return, obtain another form of independent verification. Copies of
household income certification and verification must be available for review and approval
by the CITY. BASTIAN COURT further warrants, comnams and agrees that it shall
cooperate with the CITY in the CITY's income cent catlonlaffordability monitoring activities.
4.10 Lead -Based Paint. BASTIAN COURT warrents, covenants and agrees that it
shall comply with all applicable requirements of Me Lead -Based Paint Poisoning
Prevention Ad of 42 U.S.C. 4821 at seq., 24 CFR Part 35 including Me HUD 1012 Rule,
and 24 CFR 982.4010), including any amendments thereto, in the All ridable Rental
Housing Project. These requirements apply to all units and common areas in Me
Affordable Rental Housing Project. BASTIAN COURT shall incorporate or cause
Incorporation of this provision In all contracts and subcontracts for work performed on the
Project, which involve the application of paint. BASTIAN COURT shall be responsible for
all disclosure, inspection, testing, evaluation, control and abatement activities.
4.11 Minority Outreach Activities. BASTIAN COURT warrants, covenants and
iF
agrees that it shall comply with all federal laws and regulations described in Subpart H of
24 CFR Part 92, including, without limitation, any requirement that BASTIAN COURT
comply with the CIIYs minority outreach program.
4.12 Other Laws and Regulations. BASTIAN COURT warrants, covenants and
agrees that, in addition to complying with the federal laws and regulations already cited in
this Agreement, BASTIAN COURT has reviewed and shall comply with, all other federal
laws and regulations that apply to the HOME Program, including, without limitation,
requirements of 24 CFR 58.6 and the Flood Disaster Protection Act of 1973, as amended
(42 U.S.C. 4001 4128) and Me following:
A. BASTIAN COURT does not Intend to use any financing that is secured
by a mortgage Insured by HUD in connection with the Project as part of Its acquisition
and/or construction of this Project.
B. The Project is not located In a tract identified by the Federal
Emergency Management Agency as having special flood requirements.
C. The Project requirements. Subpart F of 24 CFR Part 92, as applicable
and in accordance with the type of Project assisted, Including, but not limited to, the limit on
per-unit subsidy amount at 24 CFR 92.250.
D. The property standards at 24 CFR 92.251.
E. The Project "Labor' requirements, as applicable, of 24 CFR 92.354
including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
F. The provisions of Section 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction antl management of the
proposed Project.
G. BASTIAN COURT and he contractors, subcontractors and service
providers for the Project, shall comply with all applicable local, state and federal
requirements conceming equal employment opportunity, including compliance with E.O.
11246, "Equal Employment Opportunity," as amended by E.O. 11375, 'Amending
Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented
by regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor."
H. The provisions of the Copeland "Anti -Kickback" Act (18 U.S.C. 874), as
supplemented by Department of Labor regulations (29 CFR part 3, 'Contractors and
Subcontractors on Public Building or Public Work Financed In Whole or In Part by Loans or
Grants from the United States").
I. The provisions of the Clean Air Act (42 U.S.C. 7401 at sac.) and Me
Federal Water Pollution Control Act (33 U.S.C. 1251 at sect), ab amended.
13
J. The provisions of Ma Byrd Anti-Lobbying Amendment (31 U.S.C.
1352).
K. The provision of E.O.s 12549 and 12689, "Debarment and
Suspension; as set forth at 24 CFR part 24.
L The provisions of Me. Drug-Free Workplace Act of 1988 (42 U.S.C.
701), in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.
M. Title 8 of the Civil Rights Act of 1968 PL. 90.284.
N. Executive Order 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Act of 1968.
P. The Housing and Community Development Act of 1974.
4.13 Relidous Oraaneatfons. BASTIAN COURT warrants, covenants and agrees
Mat it will not engage in inherency religious activities, such as worship, religious instruction,
or proselylizahon, as part of the assistance funded by this Agreement as described in 24
CFR 92.257.
4.14 Reoorting Requirements. BASTIAN COURT warrants, covenants and agrees
that it shall submit performance reports to the CITY as detailed In Section 7.16.
Furthermore, BASTIAN COURT agrees to provide, at Me sale cost of BASTIAN COURT,
annual audited Financial Statements for the Project expenses and ongoing financial
transactions which occur as a result of this Agreement as detailed In Sections 5.6 and 5.7.
BASTIAN COURT agrees to account for the expenditure of HOME Funds using generally
accepted accounting principals, which financial documentation shall be made available to
the CITY and HUD upon Mair respective written request(s).
4.15 Hous'no Affordability. BASTIAN COURT warrants, covenants and agrees
Mat the Project will meet the Affordable Rental Housing, income targeting and other
requirements of 24 CFR 92.252 during the Affordability Period. The Units shall, at a
minimum, be rented to and occupied by, or, i vacant, available for rental and occupancy by
(a) persons) whose annual household income at the time of initial occupancy is not greater
Man sixty percent (60%) 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 price consistent with HOME Program regulations, for
the Affordability Period except upon foreclosure by a lender or transfer in lieu of foreclosure
following default under a Dead of Treat. However, If at any time following transfer by
foreclosure or transfer in lieu of foreclosure, but still during the Affordability Period, the
owner of record prior to the foreclosure or transfer in lieu of foreclosure, or any newly
formed entity Mac includes such owner of record or Mose whom such owner of record has
or had family or business hes, obtains an ownership interest in the Project or Property, the
Affordability Period shall be revived according to its original terms. In the event BASTIAN
COURT fails to comply with this Section at Me Affordability Period Is not revived following
transfer by foreclosure or transfer in lieu of foreclosure, BASTIAN COURT shall return to
CITY all HOME Funds disbursed to BASTIAN COURT by CITY.
14
4.16 Terminated Projects(s) . BASTIAN COURT understands and agrees that,0
the Project is terminated before completion, either voluntarily or otherwise, such constitutes
an ineligible activity and the CITY will not be required to provide any further HOME
Program assistance funding to the Project Units.
ARTICLES. COVENANTS AND AGREEMENTS OF BASTIAN COURT.
BASTIAN COURT covenants and agrees to the following, for the entire term of the
Agreement.
5.1 Adequate Repair and Maintenance. BASTIAN COURT shall maintain the
Project and Property in compliance with all applicable codes, laws, and ordinances.
5.2 Affordable Rental Housing. BASTIAN COURT covenants and agrees that the
Project shall constitute Affordable Housing with at least surly (60) units preserved as Low -
Income and Very Low -Income Rental Housing (as variously provided at 24 CFR 92.252)
during the entire Affordability Period. This covenant as to Affordable Housing shall remain
In effect and run with and restrict the land during Me entirety of the Affordability Period. In
the event that BASTIAN COURT fails to comply with the time period in which the Project
must constitute Affordable Housing, CITY shall without waiver or limttaflon be entitled to
injunctive relief, as BASTIAN COURT acknowledges that damages are not an adequate
remedy at law for such breach.
5.3 Compliance With Environmental taws. BASTIAN COURT shall cause the
Project to be in compliance with, and not to cause or permit Me housing project to be in
violation of, any environmental law, rule, regulation, ordinance, or statute. Although the
CITY will utilize its employees and agents for regular Inspection and testing of the eligible
Property, BASTIAN COURT agrees Mat, if Me CITY has reasonable grounds to suspect
any such violation, BASTIAN COURT shall be entitled to thirty (30) daya notice and
opportunity to cure such violation. If the suspected violation is not cured, the CITY shall
have Me right to retain an independent consultant to inspect and test the eligible Property
for such violation. If a violation is discovered, BASTIAN COURT shall pay for the
reasonable cost of the independent consultant.
Additionally, BASTIAN COURT agrees:
A. That Me CITY shall not be directly or Indirectly involved with the
inspection, testing, removal or abatement of asbestos or other hazardous or toxic
chemicals, materials, substances, or wastes and Mat all cost, expense and liability for such
work shall be and remain solely with BASTIAN COURT;
B. Not to transport to or from Me proposed project siM(s), or use,
generate, manufacture, produce, stare, release, discharge, or dispose of on, under, or
about the project site(s), or surrounding real estate, or transport W or from the project
artele), or surrounding real estate, any hazardous or toxic chemicals, materials, substance.
or wastes or allow any parson or entity, to do so except In such amounts and under such
terms and conditions Permitted by applicable laws, rules, regulations, ordinances, and
statutes;
15
C. To give prompt written notice to Me CITY of the following:
1. Any proceeding or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration thereof
from or to other property;
2. All claims made or threatened by any third parry against
BASTIAN COURT or such properties relating to any loss or injury resulting from any
hazardous or toxic chemicals, materials, substance, or waste; and
3. BASTIAN COURT's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of such properies Mat would cause such
properties or underlying or surrounding real estate or part thereof to be subject to any
restrictions on Me ownership, occupancy, transferability, or use of Me property under any
environmental law, rule, regulation, ordinance or statute; and
D. To Indemnity, defend, and hold the CITY harmless from any and all
claims, actions, causes of action, demands, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, costs, expenses (including
attorney's fees and expenses), and disputes of any kind whatsoever arising out of or
relating to BASTIAN COURT or any other path's use or release of any hazardous or toxic
chemicals, materials, substance, or wastes on the eligible Property regardless of muse or
origin, including any and all liability arising out of or relating W any investigation, site
monitoring, containment, cleanup, removal, restoration, or other remedial work of any kind
or nature.
5.4 Compliance With Laws. BASTIAN COURT shall promptly and faithfully
comply with, conform to and obey all present and future federal, state and local statutes,
regulations, rules, ordinances and other legal requirements applicable by reason of this
Agreement or otherwise to the Project. BASTIAN COURT acknov4edges that the use of
HOME Funds subjects the Project to extensive federal regulation and covenants and
agrees that it shall comply with, conform to and obey (and take such steps as are required
of BASTIAN COURT W enable Me CITY to comply with, conform to and obey) all federal
statutes, regulations, rules and policies applicable ro Me Program and Me Project.
5.5 Existence. Qualification, and Authority. BASTIAN COURT shall provide to
the CITY any evidence required or requested by Me CITY to demonstrate Me continuing
existence, qualMimtion, and auMomy of BASTIAN COURT to execute this Agreement and
to perform the acts necessary W carry out the Project.
5.8 Financial Statements and Audits. BASTIAN COURT, as a subrecipient of
federal financial assistance, is required W comply with the provisions of the Single Audit Act
of 1984 (31 U.S.C. Sections 7501 at seq.), m amended. Annually, within one hundred and
eighty (180) days following t) the end of fiscal year(s) in which the HOME Funds are
disbursed hereunder, and 2) Me end of fiscal year(s) In which this contract shall terminate,
and otherwise upon the CITY's, written request during the term of this Agreement,
BASTIAN COURT, at its sole cast and expense shall submit to the CITY.
IL
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed Mersin).
B. Audited Financial Statements covering Me income and expenses, and
the financial transactions for the Project during the prior fiscal year.
5.7 Intibeclion and Audit of Books, Records d Documents BASTIAN COURT
shall be accountable to Me CITY for all HOME Funds disbursed for this project pursuant to
this Agreement. Any duly authorized representative of the CITY, Me State, or HUD shall,
at all reasonable times, have access to and Me right to inspect. copy, make excerpts or
transcripts, audit, and examine all books of accounts, records, files and other papers or
property, and other documents of BASTIAN COURT pertaining to the Project or all matters
covered in this Agreement and for up to six (6) years after the expiration or termination of
this Agreement.
A. BASTIAN COURT will maintain books and records for the Project
using generally accepted accounting principles. BASTIAN COURT agrees to maintain
books and records Mat accurately and fully show the date, amount, purpose and payee of
all expenditures financed with HOME Funds and to keep all invoices, receipts and other
documents related to expenditures financed with HOME Funds for net 1053 than six (6)
years after the expiration or termination of Me Agreement. Books and records must be
kept accurate and current. For purposes of this section,'books, records and documents'
include, without limitation; plans, drawings, specificabons, ledgers, journals, statements,
contractstagreements, funding information, funding applications, purchase orders,
invoices, loan documents, computer printouts, correspondence, memoranda, and
electronically stored versions of Me foregoing. This section shall survive the termination of
Mis Agreement.
B. The CITY may audit any conditions relating to Mis Agreement at the
CR -Y's expense, unless such audit shows a significant discrepancy in information reported
by BASTIAN COURT in which case BASTIAN COURT shall bear Me cost of such audit.
BASTIAN COURT shall also comply with any applicable audit requirements of 24 CFR
92.506. This section shall survive the termination of MIs Agreement.
C. BASTIAN COURT will cooperate fully with the CITY, Me State, and
HUD in connection with any interim or final audit relatlng to Me Programs and the Project
Mat may be performed relative to the Performance of MIs Agreement.
5.13 Inspection of Property. Any duly authorized representative of Me CITY, the
State, or HUD shall, at all reasonable times, have access and the right to inspect the
Property until completion of Me Project and expiration of Me applicable Affordability Period
within 72 hours written notice.
5.9 No Other Liens. BASTIAN COURT shall not create or incur, or suffer to be
created or incurred, or to exist, any additional mortgage, pledge, encumbrance, lien,
charge, or other security interest of any kind on Me eligible Property, other than those
related to construction or pre -development loans in relation to the Affordable Rental
17
Housing Project consistent with Me attached Exhibit C project Budget, without Me prior
written consent of the CITY,
5.10 Nondiscrimination. BASTIAN COURT shall comply with and cause any and
all contractors and subcontractors to comply with any and all federal, state, and local laws
with regard to illegal discrimination, and BASTIAN COURT shall not illegally discriminate
against any persons on account of race, religton, sex, family status, age, handicap, or place
of national origin in its performance of this Agreement and the completion of the Protect.
5.11 n r hi . Except as required in pursuit hereof, BASTIAN COURT shall not
sell, lease, transfer, assign or otherwise dispose of all or any material part of any interest it
might hold In Me Property or the Project without Me prior written consent of the CITY,
which consent shall not be unreasonably withheld or delayed.
5.12 Payment of Liabilities: BASTIAN COURT shall pay and discharge In Me
ordinary course of its business all material obligations and liabiliges, the nonpayment of
which could have a material or adverse impact on its financial condition, business, or
assets or on the operation of the Project(s), except such obligations and liabilities that have
been disclosed to the CITY in writing and are being contested in good faith.
5.13 Report of Events of Default. BASTIAN COURT shall promptly give written
notice to the CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 6. DISBURSEMENT OF HOME FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of HOME
Funds:
6.1 Site of HOME Prooram Funds BASTIAN COURT warrants, covenants and
agrees that it shall request HOME Program Funds only for reimbursement of HOME
eligible costs as identified In the attached Budget, limited to the amount needed, including
costs allowable under 24 CFR 92.206, aggregating not more than Two Million One
Hundred Thousand Dollars ($2,10D,0p0). The CITY's obligations shall in no event exceed
the HOME Funds amount specified in this Agreement.
A. If any such Funds shall be determined to have been requested and/or
used by BASTIAN COURT for something other Man for HOME eligible costs, and subject
to the notice and cure provisions of Section 10.2 hereunder, an equal amount from
nonpublic funds shall become immediately due and payable by BASTIAN COURT to the
CITY; provided, however, that BASTIAN COURT shall, subject to its full cooperation with
the CITY, be entitled to participate In any opportunity to remedy, contest, or appeal such
determination.
B. In the event HOME Funds are requested to reimburse for Eligible
Costs which subsequently lose eligibility as Eligible Costs, BASTIAN COURT shall
Immediately return such HOME Funtls to the CITY.
C. The CRY will disburse HOME Funds, only to BASTIAN COURT
through proper Invoicing, for HOME eligible costs of the Project as provided In this Article 6.
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6.2 Conditions Precedent to Disbursement. The CITY shall not be obligated to
make or authorize any disbursements of HOME Funds or take any other action under Mis
Agreement unless the following conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any act,
failure, omission or condition that with me passage of time or the giving of notice or both
would constitute an Event of Default.
B. BASTIAN COURT has submitted evidence that the combined monies
from the Funding Sources and Me HOME Funds are not less than Fourteen Million Seven
Hundred Thirty Five Thousand Two Hundred Six Dollars and 00/100 ($14,735,206.00)
attached hereto in EXHIBIT "C', the amount necessary to complete Me Protect;
C. The CITY has approved Me requested payment of HOME eligible
Pmject/Property costs.
D. BASTIAN COURT has acquired insurance coverage and delivered to
Me CITY evidence of insurance as required In Article 9.
E. BASTIAN COURT Is cumene with its compliance of all reporting
requirements set forth in this Agreement.
F. BASTIAN COURT has provided Me CITY with a written request for
HOME Funds (in CITY -approved Form), for payment of HOME eligible Project costs, antl
detailing such Eligible Costs applicable to the rawest.
G. The Certification required by Section 6.4 of this Agreement.
H. The CITY has received and continues to the have the right to
disburse, HOME Funds.
6.3 Request for and Disbursement of HOME Program Funds. BASTIAN COURT
shall request disbursement of HOME Funds using the CITY's Request for Disbursement of
Funds Form, or a similar document. BASTIAN COURT shall only request a maximum of
Two Million One Hundred Thousand Dollars ($2,100,000) in HOME Program assistance -
All requests should provide in detail such Eligible Costs applicable to the request. All
requests for HOME funds disbursement shall be accompanied with the Certification
required by Sealon 6.4 of this Agreement.
6.4 BASTIAN COURT CeNftat'on. BASTIAN COURT shall submit to the CITY a
written certification that, as of Me date of the Request for Disbursement:
A. The representations and warranties contained in or incorporated by
reference In this Agreement continue to ba true, complete and accurate;
B. BASTIAN COURT has carried out all of its obligations and is in
compliance with all the obligations or covenants specified In this Agreement, to Me extent
19
net such obligations or covenants arerequired to have been carried out or are applicable
at the time of the request for the Disbursement;
C. BASTIAN COURT has not committed or suffered an act, event,
occurrence, or circumstance Mat constitutes an Event of Default or that with the passage of
time or giving of notice or both would constitute an Event of Default; and
D. The Disbursement requested will be used solely for reimbursement of
HOME eligible costs and must be supported by the itemized obligations that have been
properly incurred and are properly chargeable in connection with the Project.
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre:construction Meetina Recardina HOME Program Processes
Procedures. CITY will schedule, and BASTIAN COURT shall attend a meeting prior to
construction with the CITY's Housing and Community Development Division for the
purpose of outlining HOME program processes and procedures.
7.2 Commencement and Completion of Project. BASTIAN COURT shall
commence and complete construction in accordance with the Project Description and
Schedule as ident0ied in EXHIBIT B.
7.3 Contracts and Subcontracts. Consistent with Section 5.3, all demolition,
hazardous waste abatement, construction work and professional services for the Project
shall be performed by persons or entities licensed or otherwise legally authorized to
perform the applicable work or service in the State of Celifomla and the City of Fresno.
BASTIAN COURT shall provide the CITY with copies of all agreements with any and all
contractors or subcontractors for this Project. BASTIAN COURT shall require that each
contractor and subcontractor agreement contain a provision whereby the party(ies) to the
agreement other than BASTIAN COURT agree to (i) notify the CITY immediately of any
event of default by BASTIAN COURT thereunder; (ii) notify the CITY immediately of Me
filing of a mechanic's lien, (iii) notify Me CITY Immediately of termination or cancellation of
the agreement; and (iv) provide the CITY, upon the CITY's request, an Estoppel Certificate
certifying that the agreement is in full force and effect and BASTIAN COURT is not in
default thereunder. BASTIAN COURT agrees to notify Me CITY immediately of termination
or cancellation of any such agreement(s), notice of filing of a mechanic's lien, or breach or
default by other party(ies) thereto.
7.4 Damage to Probe To the indent consistent with the requirements of any
Permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 9 of
this Agreement, if any building or improvement constructed on the Property is damaged or
destroyed by an insurable cause, BASTIAN COURT shall, at his cost and expense,
diligently Undertake to repair or restore said buildings and improvements consistent with
the original Plans and Specifications of the Project Unit. Such work or repair shall
commence within ninety (90) days after the insurance proceeds are made available to
BASTIAN COURT 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
Par:
repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose,
BASTIAN COURT shall make up the deficiency.
7.5 Fees. Taxes and Other Levies. BASTIAN COURT shall be responsible for
payment of all fees, assessments, taxes, charges and levies imposed by any public
authority or utility company with respect to the Property or the Project, and shall pay such
Charges prior to delinquency. However, BASTIAN COURT shall not be required a pay and
discharge any such charge so long as; (a) the legality thereof is being contested diligently
and in good faith and by appropriate proceedings, and (b) if requested by the CITY,
BASTIAN COURT deposits with the CITY any funds or other fortes of assurances that the
CITY, in good faith, may determine from time to time are appropriate to protect the CITY
from Me consequences of the contest being unsuccessful.
7.8 Fin_ ancino. BASTIAN COURT shall promptly inform Me CITY of any new
financing or funding, and BASTIAN COURT shall provide Me CITY copies of all
agreements with any and all Funding Sources for this Project. BASTIAN COURT shall
require each agreement with any and all Funding Sources to contain a provision whereby
the party(ies) to the agreement other than BASTIAN COURT, agree to (i) notify the CITY
immediately of any event of default by BASTIAN COURT thereunder; (if) notify the CITY
immediately of termination or cancellation of the agreement; and (Ili) provide the CITY,
upon CITY's request, an Estoppel Certificate certifying that the agreement is in full force
and effect and BASTIAN COURT is not in default thereunder. BASTIAN COURT agrees to
notify the CITY immediately of termination or cancellation of any such agmement(s) or
receipt of notice of default thereunder. BASTIAN COURT shall comply with all obligations
of any such agreament(s) with any and all Funding Sources until the respective expiration
of such agreements). In Me event BASTIAN COURT fails to comply with its obligations of
this section, the loan shall become immediately due and payable as provided for in this
Agreement. This section shall survive expiration or termination of this Agreement.
7.7 Identification Signage. Before the start of construction, BASTIAN COURT
shall place a poster or sign, with a minimum four feat by four feet in sae, identifying the
City of Fresno, Housing and Community Development Division, Planning and Development
Department as a Project participant. The sign shall also Include Me CITY'S Housing Logo,
as well as the Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a
minimum of 4Inches. The poster/sign shall be appropriately placed, and shall be in place
throughout Me Project construction.
7.8 Inspections. BASTIAN COURT shall permit facilitate, and require its
contractors and consultants to permit and facilitate observation and Inspection at the job
site by the CITY and other public authorities during reasonable business hours, for
determining compliance with Me Agreement, including without limitation those biennial on-
site inspections required of the CITY by 24 CFR 92.504(4).
7.9 Insurance and Bonds. Upon CITY's reasonable request, BASTIAN COURT
shall submit for CITY approval bonds, certificates and applicable endorsements for all
insurance and bons required by this Agreement in accordance with Article 9.
7.10 Mechanic's Liens and Stop Notces. If any clalm of lien is filed against Me
Property or a stop notice Meeting any financing, HOME Program Funds or Funding
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Sources for Me Project Is served on the CITY or any other third party in connection with the
Project, BASTIAN COURT shall, within twenty (20) days of such filing or service, either pay
and fully discharge Me lien or stop notice, effect Me release of such lien or stop notice by
delivering to the CITY a surety bond In sufficient form and amount, or provide the CITY with
other assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or
discharged.
A. If BASTIAN COURT fails to discharge, bond or otherwise satisty the
CITY with respect to any lien, encumbrance, charge or claim referred to in tis Section
7.10, than, in addition M any other right or remedy, the CITY may, but shall not be
obligated to, discharge such lien, encumbrance, charge, or claim at BASTIAN COURT
expense. Alternatively, the CITY may require BASTIAN COURT to immediately deposit
with the CITY the amount necessary to satisfy such lion or claim and any costs, Pending
resolution thereof. The CITY may use such deposit to satisfy any claim or lien that Is
adversely determined against BASTIAN COURT. BASTIAN COURT hereby agrees to
indemnity and hold the CITY harmless from liability for such liens, encumbrances, charges
or claims together with all related costs and expenses.
7.11 Permits and licenses. Upon CITY's reasonable request, BASTIAN COURT
shall submit, for CITY approval, all Me necessary permits and licenses required for
Commencement of Construction. As the CITY may reasonably request, BASTIAN
COURT, at its sole cost and expense, shall provide to the CITY copies of any and all permit
approvals and authorizations including plot plan, plat, zoning variances, sewer, building,
and other permits required by governmental authorities other than the CITY in pursuit of Me
Affordable Rental Housing Project, and for its stated purposes in accordance with all
applicable building, environmental, ecological, landmark, subdivision, zoning codes, laws,
and regulations. BASTIAN COURT is responsible, at its sole cost and expanse, to
determine Me location W any utilities on the Property and to negotiate with the utility
companies for and M relocate Me utilities, if any, as necessary to complete Me Project.
7.12 Plans and Soecifcatons. Before Commencement of Construction,BASTIAN
COURT shall submit M the CITY, for its review and approval, the gnal Plans and
Specaications for the Project. BASTIAN COURT will construct the Affordable Rental
Housing In full conformance with the Plans and Specifications and modifications thereto
approved by the CITY. BASTIAN COURT shall obtain the CITY's prior written approval for
any modifications to the Plans and Specifications.
7.13 Project Resoons'b'I'tles/Publ'c Work -Preva I'no Wace Requirements.
BASTIAN COURT shall be solely responsible for all aspects of BASTIAN COURTS
conduct in connection with the Project, including but not limited to, compliance with all
local, state and federal laws including, without limitation, as to prevailing wage and public
bidding requirements. asapplicable. This Project is a"public work" project for federal
purposes including Davis Bacon and Related Acts wage requirements absent written
direction/determination otherwise by U.S. HUD or a court of competent jurisdiction. This
project is a "public work" project for state purposes including California labor Code Section
1720 at seq. wage requirements, to which Section 1771 applies, absent written
direclion/determinaflon otherwise by Me Caltiomia Department of Industrial Relations or a
court of competent jurisdiction. Based thereon BASTIAN COURT shall cause the Project
work to be performed as a "public work". The Council of the City of Fresno has adopted
22
Resolution No. 82-297 ascertaining Me general prevailing rate of per diem wages and per
diem wages for holidays and overtime In Me Fresno area for each craft, classification, or
type of workman needed in the execution of contracts for the City. A copy of the resolution
is on Nle at the Office of the City Clerk. Actual wage schedules are available upon request
at City's Construction Management Of ice. Without limiting the foregoing, BASTIAN
COURT shall be solely responsible for Me quality and sudabiltty of Me work completed, the
supervision of all contracted work, qualifications and financial conditions of and
Performance of all contractors, subcontractors, consultants and suppliers. Any review or
inspection undertaken by Me CITY with reference to Me Project and/or payroll
monitodng/audifing is solely for the purpose of determining whether BASTIAN COURT is
property discharging its obligation to Me CITY, and shall not be naked upon by BASTIAN
COURT or by any Mird parties as a warranty or representation by the CITY as to
governmental compliance and/or the quality of Me work completed for Me Project
7.14 Quality of Work: BASTIAN COURT shall ensure that construction of the
proposed Project employs building materials of a quality suitable for Me requirements of
the Project. BASTIAN COURT shall cause completion of construction of Me proposed
Project on the Property in full conformance with applicable local, state and federal laws,
statutes, regulations, and building and housing codas.
7.15 Relocation. If and to the extent that construction Of the proposed Project
results in the permanent or temporary displacement of residential tenants, homeowners or
businesses, BASTIAN COURT shall comply with all applicable local, state and federal
statutes and regulations with respect to relocation planning, advisory assistance and
payment of monetary benefits. BASTIAN COURT 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.
7.16 Rewe ina Reauirements. BASTIAN COURT shall submit to the CITY the
following Project reports:
A. From the date of Commencement of the Project, until issuance of the
final Certificate of Completion, BASTIAN COURT shall submit a Quarterty Report, in a forth
approved by the CITY, which will include, at a minimum, the following information:
progress of Me Project and aHinnatti o marketing efforts (as apglicabla). The Quattedy
Reports are due on each March 31 , June W"', September 30 , and December 31 , during
said pend.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the final Camisole of Completion, and continuing until Me lamination of the
Agreement, BASTIAN COURT shall submit an Annual Report to Me CITY, in a farm
approved by the CITY. The Annual Report shall Include, at a minimum, the following
Information: the rent. Me annual income and the family size of the Households. The report
shall also state Me date tenancy commenced for each rental Unit, certification from an
officer of BASTIAN COURT Mat Me Project is In compliance with Me Affordable Rental
Housing Requirements, and such other Information Me CITY may be required by law to
obtain. BASTIAN COURT shall provide any additional information reasonably requested
by the CITY.
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O. Annually, beginning on the first day of the month following the CITY's
Issuance of the final Certificate of Complefion, and continuing until Me expiration of Me
Agreement, BASTIAN COURT shall submit proof of insurance as required in Article 9.
7.17 9gh2dulina andof Time n Ie Delay in Performance. It
shall be the responsibility of BASTIAN COURT to coordinate and schedule the work to be
performed so that the Commencement of the Project and issuance of Me Certificate of
Completion will take place in accordance with the provisions of the Agreement. The CITY,
through Its Housing and Community Development Division Manager, may extend such time
in writing at hs sole and absolute discretion, and upon written request of BASTIAN COURT,
as follows:
A. The time for performance of provisions of Me Agreement by either
parry shall be extended for a period equal to the period of any delay directly affecting the
Project or this Agreement which is caused by: war, insurrection, strike or other labor
disputes, lock -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public
enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits
filed by third Parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of time for any of the above specified causes w111 be granted only
if written notice by Me party claiming such extension is sent m the other party within ten
(10) calendar days from the date the affected parry learns of Me commencement of the
cause and Me resulting delay and such extension of time Is accepted by the other party In
wring. In any event, the Project must be completed no later than one hundred eighty
(180) calendar days atter the scheduled completion date specified in this Agreement,
notwithstanding any delay caused by that included in this section.
B. Any and all extensions hereunder shall be by mutual written
agreement of the CITY's Housing and Community Development Division Manager and
BASTIAN COURT and shall not cumulatively exceed one hundred eighty (180) days.
7.18 Certificate of Completion Upon completion of the construction of the Project,
BASTIAN COURT shall certify In writing he the CITY that the Affordable Rental Housing has
been constructed In accordance with Me plans and specifications approved by the CITY.
Upon completion of the Affordable Rental Housing, BASTIAN COURT shall also submit to
the CITY a cost-certHying final budget where BASTIAN COURT shall Identify the actual
costs of construction of the Project. This final cost-ce ti ication shall identify costs in fine -
item format, consistent with the Project Budget. Upon a detenminafion by the CITY that
BASTIAN COURT is In compliance with all of BASTIAN COURT'S construction obligations,
as specified in this Agreement, the CITY shall furnish, within 30 calendar days of a written
request by BASTIAN COURT, a recordable Certificate of Completion for the Project In Me
form attached hereto as EXHIBIT E. The CITY Mil not unreasonably withhold or delay
furnishing the Cen'ticate of Completion. If Me CITY fails to provide Me Certificate of
Completion within the specified time, it shall provide BASTIAN COURT with a written
statement indicating in what respects BASTIAN COURT has failed to complete the Project
in conformance with this Agreement or has uthenaise failed to comply with Me terms of this
Agreement, and what measures BASTIAN COURT will need to take or what standards R
will need to meat in order to obtain the Certificate of Completion. Upon BASTIAN COURT
taking the specified measures and meeting Me specified standards, BASTIAN COURT will
certify to Me CITY In writing of such compliance and the CITY shall deliver the recordable
24
Certificate of Completion to BASTIAN COURT in accordance with the provisions of this
section.
ARTICLES. PROJECT OPERATIONS
8.1 Operation of the Pro'ec[. BASTIAN COURT shall lease, operate and manage
the Project in full conformity with the terms of this Agreement.
8.2 Occupancy Requirements. Forty-eight (48) Project Untts shall be rented and
occupied by, or X vacant, available for rental occupancy by (a) persons) whose annual
household income at the time of initial occupancy is not greater than sixty percent (60%) of
the most recent annual median income, and twelve (12) Project Units shall be rented and
occupied by, or n vacant, available for rental occupancy by (a) persons) whose annual
household income at the time of Initial occupancy is not greater Man fifty percent (50%) of
Me 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
price consistent with HOME Program regulations (as variously provided at 24 CFR 92.252)
for the term of this Agreement. BASTIAN COURT shell comply with the income targeting
requirements of 24 CFR 92.216.
8.3 Leasing the Proiect. Before leasing any Units, BASTIAN COURT shall
submit he proposed form of Lease for CITY's review and approval. BASTIAN COURT
covenants and agrees to utilize only Leases Mat have been approved in advance by CITY.
The CITY shall respond to BASTIAN COURTS submission of a sample Lease within thirty
(30( days. Should CITY not respond within thirty (30) days of Lease submblal, BASTIAN
COURT shall be authorized to use the submitted sample Lease. Additionally, BASTIAN
COURT agrees not to terminate Me tenancy or to refuse to renew a Lease with a tenant of
the AfiChill Rental Housing assisted with HOME Funds except for serious or repeated
violation of the terms and Conditions of the Lease, for violation of applicable federal, state,
or local law, or for other good cause. Any such termination or refusal to renew must be
preceded by not less Man 30 days written notice sewed by BASTIAN COURT or its
authorized management entity upon the tenant specifying the grounds for such action.
BASTIAN COURT agrees It shall annually report to CITY the number of Leases that were
not renewed or terminated and Me reason for such non -renewal or termination.
8.4 Lease Provisions. In addition to the requirements of 24 CFR 92.253, the
Leases are subject to Me following:
A. BASTIAN COURT shall Include in Leases for all Units, provisions
which authorize BASTIAN COURT to immediately terminate the tenancy of any Household
one or mare of whose members misrepresented any fact material to the Household's
qualification as a Household for Low -Income or Very Low -Income Families. Each such
Lease shall also provide that Me Household Is subject to annual certification, and Mat, If
the Household's annual income Increases above the applicable limits for Low -Income or
Very Low -Income Families such Household's rent may be subject to Increase to the lesser
of (1) the amount payable by tenant under state or local law: or (2) thirty percent (30%) of
Me Household's actual adjusted monthly in porn.
25
8.5 Final Management Plan. Before leasing the Affordable Rental Housing and
at least sixty (60) calendar days prior to the Project Completion Date, BASTIAN COURT
shall submit to the CITY, for review and approval, a plan for marketing and managing the
proposed Affordable Rental Housing ('Final Management Plan'). The Final Management
Plan shall address in detail how BASTIAN COURT or its designated management amity
plans ro market the availability of Units to prospective tenants and how BASTIAN COURT
plans to eerttly the eligibility of potential tenants. The Final Management Plan shall also
address how BASTIAN COURT and/or the management entity plan to manage and
maintain the Affordable Rental Housing, and shall include appropriate financial information
and documentation. The Final Management Plan shall contain detailed descriptions of
Policies and procedures with respect to tenant selections and evictions. Topics to be
covered in these procedures shall Include at a minimum Me following:
• Interviewing procedures for prospective tenants;
• Previous rental history of tenants with references;
• Credit reports and checks;
• Criminal background checks;
• Deposit amounts, purpose, use and refund policy;
• Employmentancome verification;
• Occupancy restrictions;
• Income Limits
• Equal Housing Opportunity Statement;
• Restrictions on use of the premises; and
Tenant/Landlord dispute resolution procedures.
The Final Management Plan shall contain copies of all standardized forms
associated with the above listed topics. The Final Management Plan shall include a form
Lease agreement that BASTIAN COURT proposes to enter Into with Project tenants.
BASTIAN COURT shall abide by me terms of this Final Management Plan, approved by
the CITY, in marketing, managing and maintaining the Housing.
At least ninety (90) calendar days prior to the Project Completion Date,
BASTIAN COURT shall also submit any proposed management contract to the CITY for
prior review. The CITY shall have the right to review any proposed amendments, other
man renewals to the management contract, and any new management contracts during the
term of this Agreement. Such management contract(s) shall contain a provision expressing
this right.
8.6 Prooaft Management. With respect to the Project, BASTIAN COURT shall
comply with me following:
A. Management Responsibilities. BASTIAN COURT directly ancvor
through its designated management entity, Is specifically responsible for all management
functions with respect to the Affordable Rental Housing Project including, without limitation,
the selection of tenants, certification and re -certification of Household size and income,
evictions, collection of Rents and deposits, construction management, affirmative
marketing, maintenance, landscaping, routine and extraordinary repairs, replacement of
capital items and security. The CITY shall have no responsibility for such management of
PI:
the Project
8.7 Maintenance and Security. BASTIAN COURT shall (1) at ds own expense
maintain the Affordable Rental Housing In good condition, in good repair and In decent,
safe, Sanitary, habitable and tenantable Irving conditions for the benefit of the Unit
occupants. BASTIAN COURT shall not commit or permit any waste on or to the Affordable
Rental Housing, and shall prevent andror rectify any physical deterioration of the housing.
BASTIAN COURT shall maintain the housing in conformance with all applicable federal,
state and local laws, ordinances, codes and regulations, the Final Management Plan, and
this Agreement.
8.8 Nondiscrimination. All of the Units shall be available for occupancy on a
continuous basis to members of the general public who are income eligible. BASTIAN
COURT shall not illegally discriminate or segregate in the development, construction, use,
enjoyment, occupancy or conveyance of any pad of the Affordable Rental Housing Project
or Property on the basis of race, color, ancestry, national origin, religion, sex, age, marital
status, family status, source of income/rental assistance subsidy, physical or mental
disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions
(ARC), sexual orientation, or any other arbitrary basis. BASTIAN COURT shall otherwise
comply with all applicable local, state and federal laws concerning nondiscrimination In
housing. Neither BASTIAN COURT nor any person claiming under or through BASTIAN
COURT, shall establish or permit any such practice or practices of illegal discrimination or
segregatlon With reference to the selection, recall number, use or occupancy of tenants
or vendees of any Unit or in connection with employment of persons for the constructed of
any Unit. All deeds or contracts made or entered into by BASTIAN COURT as to the Units
or the housing project or portion thereof, shall contain covenants conceming
nondiscrimination consistent with this section. BASTIAN COURT shall include a statement
In all advertisements, helices and signs for availability of Units for rent to the effect that
BASTIAN COURT is an Equal Housing Opportunity Provider.
A. Nothing in this section is Intended to require BASTIAN COURT to
change the character, design, use or operation of the Project; or to require BASTIAN
COURT to obtain licenses or permits other than those required for the Project.
8.9 Rent Schedule and Utility Allowances. BASTIAN COURT covenants and
agrees not to charge rent for Units in an amount which exceeds those rents prescribed In
HOME Program requirements applicable to Affordable Housing in the Fresno, California
area, as established by HUD, and further covenants and agrees not to impose a monthly
allowance for utility services to tenants of such Units in excess of an amount approved by
HUD in accordance with 24 CFR 92.262. BASTIAN COURT agrees to fumish to the CITY
a certificate sefting form the maximum monthly rentals for Units and the monthly
allowances for utilities and services to be charged during any annual period until the
expiration of the Affordability Period.
ARTICLE 9. INSURANCE AND INDEMNITY.
Without waiver of Initiation, the parties agree as follows regarding BASTIAN COURT
Insurance and Indemnity Obligations:
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9.1 Insurance Covered . Throughout Me life ofthis Agreement, BASTIAN
COURT shall itself and/or through I% consultands), contractors and subcontractors pay for
and maintain in full force and affect all policy(ies) of Insurance required hereunder with (an)
Insurance company(ies) either (1) admitted by the California Insurance Commissioner to do
business in the State of California and rated not less than -A-VII' in Bests Insurance Rating
Guide, or (2) authorized by Me CITY's Risk Manager. The following policies of insurance
are required:
1. BUILDERS RISK INSURANCE in an amount to provide
coverage to 100 percent (100%) of the replacement value of the Project, including terms of
labor and materials in place or to be used as pan of to permanent construction, including
surplus miscellaneous materials and supplies incidental to the work and such scaffolding,
staging, towers, forms and equipment as are not owned or rented by the BASTIAN
COURT, the cost of which is not included In to cost of work.
A. The above described policy of insurance shall be endorsed to provide
an unrestricted thirty (30) day written notice in favor of the CITY, of pofcy cancellation.
change or reduction of coverage. In the event Me policy is due d expire during the term of
this Agreement, a new certificate evidencing renewal of such policy shall be provided not
less than fifteen (15) days prior tote expiration data of the expiring policy. Upon issuance
by to insurer, broker, or agent of a notice of cancellation, change or reduction In coverage,
BASTIAN COURT or its contractorsmubcontractors, as the case may be, shall file with the
CITY a cendied copy of the new or renewal policy and certificates for such policy.
B. If at any time during the life of this Agreement or any extension,
BASTIAN COURT fails to maintain Me required insurance in full force and effect, all work
under this Agreement shall be discontinued immediately, and Me CITY shall not provide
further HOME funds to the Project unfit notes is received by the CITY that Me required
Insurance has been restored to full force and effect and that Me premiums therefore have
been paid for a period satisfactory to the CITY. Any failure to maintain Me required
Insurance, subject to Section 10.2, notice and cure, shall be sufficient cause for Me CITY to
terminate this Agreement.
9.2 Indemnity. BASTIAN COURT shall indemnity, hold harmless and deland Me
CITY and each of its officers, officials, employees, agents and volunteers from any and all
loss, liability, fires, penaaies, forfeitures, costs and damages (whether In contract, tort or
strict liability. including but not limited to Pemcnal injury, death at any time and property
damage) Incurred by the CITY, BASTIAN COURT or any ether person, and from any and
all claims, demands and actions in law or equity (including attomeys fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. BASTIAN COURTS obligations under Me preceding sentence shall apply
regardless of whether the CITY or any of Its officers, officials, employees, agents or
volunteers are passively negligent, but shall not apply to any loss, liability, firms, penalties,
forfeitures, costs or damages caused by Me active negligence or by the willful misconduct
of the CITY or any of its officers, officials, employees, agents or volunteers.
A. If BASTIAN COURT should contract all or any portion of the work to be
performed under this Agreement, BASTIAN COURT shall require each contractor and
subcontractor to Indemnify, hold homeless and defend the CITY and each of its officers,
W
officials, employees, agents and volunteers in accordance with the terms of the preceding
paragraph.
B. This section shall survive termination or expiration of this Agreement.
9.3 Property Insurance. BASTIAN COURT shall pay for and maintain, in full
force and effect, throughout the remaining IHe of this Agreement, a policy(ies) of property
insurance acceptable to the CITY, covering Me Project premises, with limits reflective of
the value of Me Project premises upon issuance of the Certificate of Completion, or
substantial completion of the Project referenced in this Agreement, including fire and
Extended Comprehensive Exposure (ECE) coverage in an amount, form, substance, and
quality as acceptable to Me CITY's Risk Manager. At Its request, the CITY shall be added
by endorsement as a loss payee thereon.
9.4 Band Oblcat'ons. Upon the CITY's request, BASTIAN COURT shall obtain,
pay for and deliver or cause to be obtained, paid for and delivered good and sufficient
surety bonds from a corporate surety, admitted by the California Insurance Commissioner
to do business in the State of California and Treasury- listed, In a form satisfactory to the
CITY and naming the CITY as Co-Obligeo.
A. The 'Faithful Performance Bond" shall be at least equal to 100% of
Owners estimated construction costs to guarantee faithful pedormance of the Project,
within the time prescribed, in a manner satisfactory to Me CITY, and that all materials and
workmanship will be free from original or developed defects.
S. The "Material and Labor Sond'shall be at least equal to 100% of
Owners estimated construction costs to satisfy claims of material supplies and of
mechanics and laborers employed for this Project. The bond shall be maintained by
BASTIAN COURT in full force and effect until the Project is completed and accepted by the
CITY, and until all claims for materials and labor are paid, and shall otherwise comply with
any applicable provisions of Chapter 7, This 15, Pad 4, Division 3 of Me California Civil
Cade.
ARTICLEI0. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall
constitute an "Event of Default' for purposes of this Agreement
A. BASTIAN COURTS use of HOME Funds for costs other than Eligible
Costs or for uses not perm Med by the terms of this Agreement;
B. BASTIAN COURTS failure to obtain and maintain the insurance
coverage requited under Nis Agreement;
C. Except as otherwise provided in this Agreement, Me failure of
BASTIAN COURT to punctually and properly perform any other covenant or agreement
contained in this Agreement including without limitation Me following: (1) BASTIAN
COURTS substantial deviation in the Project work specified in Me Project Description as
identified in this Agreement, without Me CITY's prior written consent; (2) BASTIAN
PR]
COURTS use of detective or unauthorized materials or defective workmanship in pursuit of
the Project; (3) BASTIAN COURTs failure to commence or complete the Project, as
specified In this Agreement, unless delay is Permitted under Section 7.17 Of this
Agreement; (4) the cessation of the Project for a period of more than fifteen (15)
consecutive days (other than as provided at Section 7.17 of this Agreement) prior to
submitting to the CITY, pursuant to Section 7. 18, certification that the Project is complete;
(5) any material adverse change in the condition of BASTIAN COURT or Me Project that
gives the CITY reasonable cause to believe that the Project cannot be completed by the
scheduled completion data according to Me terms of this Agreement; (8) BASTIAN
COURTS failure to remedy any deficiencies in record keeping or failure to provide records
to the CITY upon the CITY's request; (7) BASTIAN COURTS failure t0 substantially comply
with any federal, state or Iocai laws or applicable CITY restrictions governing Me Project,
including but not limited to provisions of this Agreement pertaining to equal employment
opportunity, nondiscrimination and lead-based paint;
O. Any representation, warranty, or certificate given Or furnished by or on
behalf of BASTIAN COURT shall prove t0 be materially false as of the date of which the
representation, warranty, or certification was given, or that BASTIAN COURT concealed or
failed to disclose a material fact M the CITY, provided, however, that if any representatlorl,
warranty, or certification that proves to be materially false Is due merely to BASTIAN
COURT's inadvertence, BASTIAN COURT shall have a thirty (30) day opportunity after
written notice thereof M cause such representation, warranty, Or certification to be true and
complete in every respect;
E. BASTIAN COURT shall file, or have filed against it, a petition of
bankruptcy, insolvency, Or similar law, state or federal, or shall file any petition or answer
seeking, consenting to, or acquiescing In any reorganization, arrangement, composition,
readjustment. liquidation, dissolution, or similar relief, and such petition shall not have been
vacated within fourteen (14) days; or shall be adjudicated bankrupt or Insolvent, under any
present or future statute, law, regulation, under state or federal law, and such judgment or
decree is net va0ated or set aside within fourteen (14) days;
F. BASTIAN COURT's failure, inability or admission in writing of its
inability to pay its debts as they become due or BASTIAN COURT assignment for the
benefit of creditors;
G. A receiver, trustee, or liquidator shall be appointed for BASTIAN
COURT or any substantial part of BASTIAN COURTS assets or properties, and not be
removed within ten (10) days;
H. The failure of BASTIAN COURT to cause completion of Me Project
prior to the completion date Identified in EXHIBIT B.
I. BASTIAN COURT's breach of any other material condition, covenant,
warranty, promise Or representation contained In this Agreement not otherwise identified
within this Section; and
J. Any substantial or continuous breach by BASTIAN COURT of any
material obligation owed by BASTIAN COURT imposed by any other agreement with
W
respect to Me financing, development, construction or operation of Me Project, whether or
not the CITY is a party to such agreement.
10.2 Notice of Default and Opportunity to Cure. The CITY shall give written notice
to BASTIAN COURT of any Event of Default by specifying (1) the nature of Me event or
deficiency giving rise to the default, (2) the action required to cure Me deficiency, rf any
action to cure Is possible, and (3) a date, which shall not be less than Me lesser of any time
period provided in this Agreement, any time period provided for in the notice, or thirty (30)
calendar days from Me date of Me notice, by which such deficiency must be cured,
provided that if Me specified deficiency or default cannot reasonably be cured within the
specified time, with the CITY's written consent, BASTIAN COURT shall have an additional
reasonable period to cure so long as it commences cure within the specified time and
thereafter diligently pursues the cure in good faith.
10.3 Remedies Upon an Event of Default Upon the happening of an Event of
Default by BASTIAN COURT and a failure to cure said Event of Default within the time
specified the CITY's obligation to disburse HOME Funds shall terminate. The CITY may
also at its option and without notice institute any action, suit, or other proceeding in law, In
equity or otherwise, which it shall deem necessary or proper for the protection of Its
interests and may without limitation proceed with any or all of the fallowing remedies in any
order or combination Mat the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice to
BASTIAN COURT;
B. Bring an action in equitable relief (1) making specific performance by
BASTIAN COURT of the terms and conditions of this Agreement, and/or (2) enjoining,
abating or preventing any violation of said terms and conditions, and/or (3) seeking
declaratory relief; and
C. Pursue any other remedy allowed by law or in equity or under this
Agreement.
ARTICLE 11. GENERAL PROVISIONS.
Without waiver of limitation, the parties agree that Me fallowing general provisions shall
apply In the performance hereof:
11.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made in writing and signed by Me parties hereto.
11.2 Attorney's Fees. If either parry is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party will be entitled to recover from the other party is reasonable attorney's fees
and legal expenses.
11.3 Bindina on All Suxessors and Ass ens. Unless otherwise expressly provided
in this Agreement, all Me terms and previsions of this Agreement shall be binding on and
31
Inure to the benefit of the parties hereto, and their respective nominees, heirs, successors,
assigns, and legal representatives.
11.4 Countemarts. This Agreement may be executed in counterparts, each of
which when executed and delivered will be deemed an original, and all of which together
will constitute one instrument. The execution of this Agreement by any parry hereto will not
become effective unfit counterparts hereof have been executed by all parties hereto.
11.5 Disclaimer of Relationsh'o. Nothing contained in this Agreement, nor any act
of the CITY or of BASTIAN COURT, or of any other person, shall in and by itself be
deemed or construed by any person to create any relationship of third parry beneilc",, or
of principal and agent, of limited or general partnership, or of joint venture.
11.6 Discretionary Governmental Actions. Certain planning, land use, zoning and
other permits and public actions required in connection with the Project including, without
limitation, the approval of this Agreement, the environmental review and analysis under
NEPA, CEOA or any other statute, and other transactions contemplated by this Agreement
are discretionary government actions. Nothing In this Agreement obligates the CITY or any
other governmental entity to grant final approval of any matter described herein. Such
actions are legislative, quasi-judicial, or otherwise discretionary In nature. The CITY cannot
take action with respect to such matters before completing the environmental assessment
of the Project under NEPA, CEOA and any other applicable statutes. The CITY cannot antl
does not commit in advance that it will give final approval to any matter. The CITY shall not
be liable, in contract, law or equity, to BASTIAN COURT or any of Its executors,
administrators, transferees, successors -in -interest or assigns for any failure of any
governmental entity to grant approval on any matter subject to discretionary approval.
11.] Effective Date. This Agreement shall be affective upon the date first above
written.
11 8 Entire Accordsnt. This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
11.9 Exhibits Each exhibit and attachment referenced in this Agreement is, by the
reference, Incorporated into and made a pad of this Agreement.
11.10 d Upon Event of Default. BASTIAN COURT shall reimburse
the CITY for all reasonable expenses and costs of collection and enforcement, including
reasonable attomey's fees, incurred by the CITY as a result of one or more Events of
Default by BASTIAN COURT under this Agreement.
11.11 Govemina"wand Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this Agreement,
including execution, interpretation, performance, and enforcement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, California.
32
11.12 Headinos. The headings of the tricks, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect Me
meaning or construction of any provision.
11.13 Interpretation. This Agreement in its final forth is Me result of the combined
efforts of the parties. Any ambiguity will not be construed in favor or against any party, but
rather by continuing the terms in accordance with their generally accepted meaning.
11.14 No Assignment or Succession. Except as may be otherwise expressly
provided by his Agreement, neither this Agreement, nor any Interest of BASTIAN COURT
in, under, or to this Agreement, or Me Project, may be assigned or transferred by BASTIAN
COURT without the prior written consent of the CITY, which consent shall not be
unreasonably withheld or delayed. Any assignment without consent is null and void.
11.15 No Third -Party Beneficiary. No contractor, subcontractor, mechanic,
matenalman, laborer, vendor, or other parson hired or retained by BASTIAN COURT shall
be, nor shall any of Mem be deemed to be, third -party heneficiamis of this Agreement, but
each such person shall be deemed to have agreed (a) Mat they shall look to BASTIAN
COURT as their sole source of recovery if not paid, and (b) except as otherwise agreed to
by the CITY and any such person in writing, they may not enter any claim or bring any such
action against the CM under any circumstances. Except as provided by law, or as
otherwise agreed to in writing between the CITY and such person, each such person shall
be deemed to have waived in writing all right to seek redress tram the CITY under any
circumstances whatsoever.
11.16 No Waver. Neither failure nor delay on the part of Me CITY in exercising any
right under this Agreement shall operate at a waiver of such right, nor shall any single or
partial exercise of any such right Produce any further exercise thereof or the exercise of
any other right No waiver of any provision of this Agreement or consent to any departure
by BASTIAN COURT Matterhorn shall be affective unless the same shall be in writing,
signed on behalf of Me CITY by a duly authorized officer thereof, and the same shall be
effective only In the specific instance for which it is given. No notice to or demand on
BASTIAN COURT in any rase shall entitle BASTIAN COURT to any other or further
notices or demands in similar or other circumstances, or Constitute a waiver of any of the
CITY's right to take other or further action In any circumstances without notice or demand.
11.17 Nonrellance. BASTIAN COURT hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares Mat in no
manner has it relied on the CITY, it agents, employees or attorneys in entering into this
Agreement.
11.18 Notice. Any notice to be given to either pact under the terns of this
Agreement shall be given by cortrfied United States mall, postage prepaid, return receipt
requested at the addresses specified below, or at such other addresses as may be
specified In writing by the parties.
It to the CITY: City of Fresno
Planning and Development Department
Housing and Community Development Division
33
Attn: Housing Manager
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
If to BASTIAN COURT:
Bastian Court, LP
Attn: Jaime Gonzalez
4321 N. West Ave.
Fresno, CA 93705
11.19 Precedence of Documents. In Me event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
11.20 Recording of Documents. BASTIAN COURT agrees to cooperate with Me
CITY and execute any documents required, promptly upon the CITY's request, the Deed of
Trust and any other documents Instruments Mat Me CITY requires to be recorded, in the
Official Records of Fresno County, California, consistent with Mis Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this Agreement
shall be cumulative arW in addition to those otherwise provided by law.
11.22 Severablift The invalidity, illegality, or un -enforceability of any one or more
of the provisions of this Agreement shall not affect Me validity, Iegalfty, or enforceability of
the remaining provisions hereof or thereof.
34
IN WITNESS WHEREOF, the parties have executed this Agreement In Fresno,
Caldornia, the day and year first above written
CITY OF FRESNO, a Municipal Corporation
By: )
AMraw T. Souza
City Manager
(AaacAnotary caRl�lre of ecMowleOgmanl
Date l dD/
ATTEST: OF Fq,s
REBECCA L. KLISCH s
City Clerk
By: L
D ty
Date: B/la/oR
APPROVED AS TO FORM:
JAMES SANCHEZ
CityAHorney
BY'.
Name'. Luta
Date:_ 9-u6.09
BASTIAN COURT LP, a California limited partnership
By: Smith & Gonzalez, LLC By: Mission Housing Development Corpoation
a California limited liability corporation, a California non-profit corporation,
its Geneal Partner
if its General Partner
By: Na BY
Mymn Smith Larry Del Carlo
Managing Member President
(Afta mWy ceNfimte of acknFOWMgmenl) (Albcp noE37f wit' le or acknowktlgmend
➢q3$ r�
Date:_
Y:
o ez
Cana
it
g Member
Date::
X-I-a8
Attachments:
EXHIBIT A:
PROPERTY DESCRIPTION
EXHIBIT 3.
PROBUDGECT NA SCHEDULE
EXHIBIT C:
T CASH FLOW
COF
EXHIBIT C:
DECLARATION RESTRICTIONS
EXHIBIT E:
CERTIFICATE
CERTIFICATE lETION
COMPLETION
EXHIBIT F'.
PROMISSORY NOTE
NOTE
➢q3$ r�
ACKNOWLEDGMENT
State of California
County of FRESNO
on AUGUST 12;2008 baoreme, THERESA SALDIVAR, NOTARY PUBLIC
pnsod name and tele ofthe omoar)
personally, appeared ANDREW T.SOUZA-
who proved to me on the basis of sati nedory evoence to be the perso whose Minegp Is ers.
subscribed to Me within instrument and acknowledged to me that h ffahodi executed the same In
his/her4Meir auMoritie l capacity(iysl, and that by hildhadslear signaturni on the Instrument the
personld). or the entity upon balax of Min to Pounds) acted, executed die Instrument
I codify under PENALIY OF PERJURY under Me laws athe State of California mat the foregoing
paragraph is we end correct.
THEIRISx SIlWVAIR
WITNESS my hand and oR lel seal. S nan a Gm
CO M 01649668aa9ase
omw o
nno County
a Comm Eli.3.2010
Signature-�%u-caro LJn�LQ.'✓Igl/ll
(Seal)
3c
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
Slue of Califmm
County of FASN fl
On /11761ST2 iOnIX before me, LIIF 776 Gr CANCI�tont¢�
O APmule.
If
I � )
personally appo ed ,T41MC EiDNZALE?
who proved tome on the basis ofsaisfactory evidence m be the pers a4) whose nut f isAmsubscribed m
Me within instrument and acknowledged tome that WshaWry executed fire Same in hisNreaM3cie authorized
capanity(flash and that by hisMvWwirsigretum{y on the inmumrntthe pemonlah Or the entity upon behalfof
which Me person(s) acted exaated the instrument_
I certify under PENALTY OF PERJURY under the laws of Me State ofCalifrmia that the foregoing paragraph
is true and correct.
aNI2ETTE G. CANCHOtA
y hand and official seal. COMMIX 1768935 -
s rxeaysmn Fe F0
WMT:MOo SFOR COMFLET GMS FORM
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
some of CallfooArria
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onfi a�F before me,
IZtiEF
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YYI--O'
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III the peraon(elsaamd, executed the inmunlalt.
I unify under PENALTY OF PERJURY under the
laws of the Sdte ofCalifomia that the foregoing perepaph
is we and correct.
rLIZETTE G. CANCHOLA
WI E ' mY M end ul,
s COMM M I IB 2
run
N MV Lammi E.n�rer SIPXr1a, 20�
r u+ry
a4wPnrfNmryfl le
ADDMONAL OPTIONAL INFORMATION
INSTROCTIONS FOR COMPLETING TFIS 1'ORM
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IN WITNESS WHEREOF, the parties have executed the Agreement in Fresno,
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By
EXHIBIT B-.
Andrew T. Souza
C.011
City Manager
EXHIBIT D.
(Attach nda Ili la
acknowledgmem)
Date:
EXHIBIT F.
ATTEST'.
F- xe>
REBECCA E. BUSCH
City Clerk
(' r
By: i )M,
—^
ty
U
Date: 91I1/n8
APPROVED AS TO FORM'.
JAMES SANCHEZ
City Attorney
By
Name'
Date. rob-oA
BASTIAN COURT I.P. a Califomia limited partnership
By. Smith & Gonzalez, LLC By: Mission Housing Development Corporation
a California limited liability corporation, a California non-profit corporation,
its General Partner its General Partner
By.
Myron Smith
Managing Member
(All nowt/ cer lflpete of acmcwledgmend
By
Jaime Gonzalez
Date
Attachments'.
Bv-11L,
Lptry DEI Carlo
esident
(Atari ni Qeerllfl toyy of acknowledgmenlj
Dattee'//� / �b
Viola Maestas, Chairperson
Board m 're to
Date-
EXHIBIT A.
PROPERTY DESCRIPTION
EXHIBIT B-.
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT
BUDGET AND CASH FLOW
EXHIBIT D.
DECLARATION OF RESTRICTIONS
EXHIBIT E
CERTIFICATE OF COMPLETION
EXHIBIT F.
PROMISSORY NOTE
ACKNOWLEDGMENT
sate Of Cagtomia
County N FRESNO t
on AUGUST 12,2008 ba&p,a, THERESA SALDIVAR, NOTARY PUBLIC
(insert name and tide of Me officer)
personalty appeared ANDREW T.SOUZA-
who proved to me on the basis of satisfactory evidence to be Nepemon(!1 whose name(A 1w
subscnbad to the wiMin Instrument and acknowledged to me Mat nalsIWUroy executed tthh same in
M1lsdaerlWeir augonzed capacilybe6), and Mat by M1lyM1erlMe'Irsgnatum(y) on the instrument the
Perturbs), or Me entity upon behalf of which Me penson(yfacted, executed the Instrument.
I cedify under PENALTY OF PERJURY under We tows of Me State of California that the finegolrq;
Paragraph Is true and camect.
1N[A[Z1 Ll01YAA
WITNESS my lord and offldal seal _ acoMM. Ifie9afie z
o ai`GUWrtC glM�lo�ma �
(/ � a Cunm Er p 3. A14t
Signature -9LZ l✓�-'rZC/vVF/tJ (Seal)
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
Stale of CaLfmn:a
r,
Courayof
I certify under PENALTY OF PERIORY under Me laws of dle State ofOalifomia toll the foregoing pamgaeph
as true and bowel.
R Romm
CalwMMpn / llalRl6
\ SS ly 6ewd end official aL gC ;,R R � a+Rnma
�.A will soloanenmj 31 N12
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ADDITIONAL OPTIONAL GIP'ORMATION
INSi0.tMONS FOR COMPLE GTHIS FORM
DESCRIPTION OFTHE ATTACHED IXICIIMENi
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EXHIBIT A: PROPERTY DESCRIPTION
The Property is located on the northwest comer of Stanislaus and L Street.
Legal Descriotion
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS:
Parcell:
Lots 14,15 and 16 in Block 89 of the Town (Now City) of Fresno, In the City of
Fresno, County of Fresno, Soda of California, according to the map thereof
recorded in Book 1, Page 2 of Plats, Fresno County Records.
APN: 466-142-15
Parcel 2:
Lots 12, 13, and Southerly 15 feet of Lot 11 in Block 89, of the Town (Now City)
of Fresno, in the City of Fresno, County of Fresno. State of California, according
to the map thereof in Book 1, Page 2 of Plats, Fresno County Records.
APN: 466-142-14
Page 1 of Exhibit A R/
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The Project will include the acquisition of property, demolition and construction of a sixty-one
(61) unit apartment complex of which sixty (60) HOME Program units will be constructed and
preserved as Very Low- and Low -Income Housing In accordance with the chert below, and
related on-site and off-site improvements. One unit will be reserved for an on-site manager.
HOME FUNDED
UNITS.
%of Modern
One Bedroom
' Units
Unita
Two Bedro748
50% or less
3
9
50 % to 6096
12
36Totals
HOME Funds will be made available by the CITY for payment of HOME eligible costs not to
exceed Two Million One Hundred Thousand Dollars ($2,100,000), as needed, for HOME
eligible project development costs.
II. PROJECT SCHEDULE
Obtain Buildino Permits
I November 2d, 2006
Stan Constmclion
December 152006
Complete Construction
1 May 31, 2010
Com fete Lease U
Ju 30 2010
43
Page 1 of Exhibit B
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EXHIBIT D: DECLARATION OF RESTRICTIONS
RECORDING REQUESTED BY AND for the
benefit 0 the City of Fresno and is exempt from
the payment of a reporting fee in accordance with
Government Cow Sections 6103 and 273&3.
AND WHEN RECORDED MAIL TO:
CITU OF FRESNO
Planning and Development Department
Housing and Community Development Division
Attn: Housing Manager
2600 Fresno Street, Am. W76
Fresno, CA 93M 1-3605
Title Order No. Escrow No.
Wi%C* Ani THS t
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ('Declaration"), is executed as of this
200_ by BASTIAN COURT LLC, ('Declarant") in favor of the City of Fresno,
acting by and through its Planning and Development Department, Housing and Commu ay
Development Division, ("City).
WHEREAS, Declarant Is the owner of the real estate in the county of Fresno, state of
California, consisting of APN: 466-142-15 and 466-142-14, which is more particularly
described M Exhibit "A", attached hereto and made a Pan hereof (the "Property"); and
WHEREAS, Pursuant to a crenain HOME Investment Partnerships Program
Agreement dated [---j Incorporated herein, ('HOME Agreement) and instruments referenced
Mersin, Declarant agrees to utilize and City agrees to provide certain HOME Program Funds
from Me United States Department of Housing and Urban Development, to Declarant for
certain Affordable Rental Housing (the "Project") upon the Properly, with no less than twelve
(12) of the proposed Units to be preserved as Very Low -Income Affordable Rental Housing
for tenants earning 5T1* or below of Me area median income for Me Fresno MSA, and with
no less than forty-eight (46) of the proposed Units to be Preserved as Low -Income Affordable
Rental Housing for tenants earning 60% or below of Me area median income for Me Fresno
MSA, subject to the terms and conditions set forth in Me HOME Agreement; and
WHEREAS, the HOME Program regulations promulgated by HUD, Including without
limitation 24 CFR Section 92.252, and Me HOME Agreement Impose certain affordability
requirements upon property benefited thereby, which affordability restrictions shall be
enforceable for a fifty-five 1551 year period commencing from the date the CITY issues and
records Me Certificate of Completion; and
Page 1 of Exhibit D itl
WHEREAS, these restrictions are Intended to bind Declarant and all purchasers and
Meir successors.
NOW THEREFORE, Declarant declares that the Property is held and will be held,
transferred, encumbered, used, sold, conveyed and occupied subject to the covenants,
restrictions, and limitations act forth In this Declaration, all of which are declared and agreed
to be In furtherance of Me proposed Affordable Rental Housing Project, Me City's general,
Consolidated and Annual Action Plans and Housing Element therein and HOME Program
requirements. All of the restrictions, covenants and IimOsdons will run with the land and will
be binding on all parties having or acquiring any right, tide or interest in the Property or any
part thereof, will inure to the benefit of Me City, and will be enforceable by It. Any purchaser
under a contract of sale covering any right. We or interest in any part of 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 limltafions set
forth In this Declaration for the period of f fty-five (u) years commencing from the date Me
CITY Issues and records the Certificate of Completion constituting the Affordabitity Period.
1. Declarations. Declarant hereby declares that the Property is and shall be
subject to Me covenants and restrictions hereinafter set forth, all of which are declared to be
in furtherance of the Project and the HOME Agreement, and are established and agreed
upon for the purpose of enhancing and protecting Me value of the Property and in
consideration for City entering Into the HOME Agreement with Declarant. All terms not
otherwise defined herein shall have the meaning ascribed to such term in the HOME
Agreement.
2. Restrictions. The following covenants and restrictions on the use and
enjoyment of Me Property shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are toy Me benefit and
protection of City, and shall run with Me Property and be binding on any future ownue's of the
Property and inure to the benefit of and be enforceable by City. These covenants and
restrictions are as follows:
a. Declarant for Itself and its suaossor(s) on title covenants and agrees
that from the date of recordation of the City's Certificate of Completion, until the expiration of
the Affordability Period it shall cause the Project Units to be used as Affordable Rental
Housing. Declarant further agrees to file a recordable document reeding forth the Project
Completion Date(s) and Me Affordability Period when determined by Me City. Unless
otherwise provided in Me HOME Agreement, Me term Affordable Rental Housing shall
Include, without limitation, compliance with Me fallowing requirements:
(i) 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, national origin, ancestry, or handicap in the sale, transfer, use, occupancy,
tenure, or enjoyment of any of the Property, nor shall Declarant or any Person claiming under
the Declarant, establish or permit any practice of discrimination or segregation with reference
to Me selection, location, number, use or Occupancy of owners or vendees of the Project
Property.
Page 2 of Exhibt D rO
(ii) Principal Residence. Each of Me Units constituting the Project
upon the Property shall be leased only to persons, who shall occupy such as a principal
residence. The foregoing requirement that the Property tenants occupy the Units as Meir
principal residence does not apply to persons, other Man natural persons, who acquire Me
Project Property or portion thereof by foreclosure or deed in lieu of foreclosure; or (ii) HUD
qualified entities that acquire the Property or porton thereof, with the consent of the City.
(iii) Income Reouirements. A total of twelve (12) Units constituting
Affordable Rental Housing upon the Property may be leased only to (a) pefson(s) whose
annual household Income at the time of initial occupancy is not greater than 50% 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 price consistent
HOME Program regulations. Additionally, a total of forty-eight (46) Units constituting
Affordable Rental Housing upon the Property may be leased only 0 (a) person(s) whose
annual household income at the time of initial occupancy is not greater than 60% of the most
recent annual median income calculated and published by HUD for Me Fresno Metropolitan
Statistical Area applicable to such household's size, and at an affordable price consistent with
HOME Program regulations
(Iv) Injunctive Relief and Recapture. Should any of Me Very Low -
Income Units constituting Affordable Rental Housing upon Me Property not continue to be,
after the time of initial occupancy, the principal resitlence of a Household whose annual
household income is not greater than fifty percent (50%) of the most recent annual median
income, during the period of Affordability, such Un@(s) shall be made available for
subsequent lease only to Households whose annual household income is not greater Man
fifty percent (50%) of the most recent annual median income, for use as the Household's
principal residence. Should any of the Low -Income Units constituting Affordable Rental
Housing upon the Property not continue to be, after the time of initial occupancy, the principal
residence W a Household whose annual household Income is not greater than sixty percent
(60%) of the mast recent annual median income, during Me period of Affordability, such
Units) shall be made available for subsequent lease only to Households whose annual
household income is not greater Man sixty percem (60%) of the most recent annual median
income, for use as the Household's principal residence.
Item (a) above is hereinafter referred to as Me Covenant and Restrictions
3. Enforcement of Restrictions. Without waiver or limitation, Me City shall be
entitled to injunctive or other equitable relief against any violation or attempted violabon of
any Covenant and Restriction, and shall, in addition, be entitled to damages for any Injuries
or losses resulting from any violations thereof.
4. Acceptance and Ratification. All present and future owners of Me Properly and
other persons claiming by, through, or under them shall be subject to and shall comply with
the Covenant and Restrictions. The acceptance of a deed of conveyance to the Property
shall constitute an agreement that Me Covenant and Restrictions, as may be amended or
supplemented from time to time, are accepted and ratified by such future owners, tenant or
occupant, and such Covenant and Restriction shall be a covenant running with the land and
Page 3 of Exhibit D 5
1
shall bind any person having at any time any interest or estate in the Property, all as though
such Covenant and Restriction was recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer In
lieu of foreclosure, or assignment of an FHA -insured mortgage to HUD, the Affordabilay
Period shall be terminated g Me foreclosure or other transfer In lieu of foreclosure or
assignment recognizes any contractual or legal rights of public agencies, nonprofit sponsors,
or others to lake actions that would avoid the termination of lOWtincome affordability.
However, the requirements with respect to Affordable Rental Housing shall be revived
according ro their original terns, if during the original Affordability Period, the owner of record
before the foreclosure or other transfer, or any entity Mat includes the farmer owner or Moan
with whom the former owner has or had formerly, family or business ties, obtains an
ownership interest in the Project or the Property, the Affordability Penod shall be revived
accoa ing to its anginal terms.
5. Benefit. This Declaration shall run with and bind the Property for a tern
commencing on the date this Declaration 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 City or any other person entitled to enforce this
Declaration shall In no event be deemed a waiver of the some, or of Me right to enforce the
same at any time or from time to time thereafter, or an estoppel against the enforcement
thereof.
6. Costs and Attorneys Fees. In any proceeding arising because of failure of
Declarant or any future owner of the Property to comply with the Covenant and Restrictions
required by this Declaration, as may be amended from time to hme, City shall be entified to
recover its costs and reasonable adomey's fees Incurred In connection with such defeatt or
failure.
]. Waiver. Neither Declarant nor any future owner of the Property may exempt
itself from liability for failure to comply with the Covenant and Restrictions required In this
Declaration.
B. Severability. The Invalidity of the Covenant and Restrictions or any other
covenant, restriction, condition. limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of Me rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless Me context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and rater to the plural, and vice versa, as
appropriate.
10. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for ease
and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
Page 4 of Exhibit D �• / i
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of City.
12 Recordation. Declarant acknowledges that this Declaration will be filed of
record in Me Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized tens used In this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in Mat certain
HOME Agreement by and between Declarard and City, of even data
14. Headings. The headings of the articles, sections, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed to affect Me meaning
or construction of any provision.
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on
the date first written above.
DECLARANT: BASTIAN COURT, LP
By:
(Attach nary Certificate W ackna Wipiment)
NAME:
TITLE:
By:
(Anach nary CedRlcate of a&nmrbdgemenp
NAME:
TITLE:
Page 5 of Exhibit D 0
EXHIBIT E: CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
Department of Planning and Development
Housing and Community Development Division
2600 Fresno Street, Room 3076
Fresno,CA g3721 -a606
Attention: Housing Manager
(SPACE ABOVE TITSUEinn nEUWDF SVSE(
This Certificate of Complet'ron is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Govemment Code.
Section 6103.
APN:
City of Fresno
By:
NAME:
Planning and Development Department
Page 1 of Exhibit E �q
CERTIFICATE OF COMPLETION
Recitals
A. By a HOME Investment Partnerships Program Agreement datetl ,200_,
("HOME Agreement") between the City of Fresno, a municipal corporation ("CITY"), and
BASTIAN COURT LP, a California limited partnership corporation, ("BASTIAN COURT"),
BASTIAN COURT agreed to develop a sixty-one (fit) unit affordable rental housing project,
of which sixty (60) units would be reserved for rental by Very Low. and Low -Income
households ("Pro)ee'), upon the premises legally described In EXHIBIT A allched to Die
HOME Agreement as amended from time to time, made a part hereof by this reference, (the
"Property') for the purposes of Affordable Rental Housing, with the assistance of HOME
funds while meeting the affordable housing, income targeting and other requirements of 24
CFR 92 according to the terms and conditions of the HOME Agreement and Me Loan
Documents and other documentimstruments referenced therein.
B. The HOME Agreement or a memorandum of it was recorded on
200[--] as Instrument No. in the Official Records of Fresno County,
California.
C. Under the terms of the HOME Agreement, after BASTIAN COURT completes the
Protect, BASTIAN COURT may ask CITY ro record a Certificate of Completion.
0. BASTIAN COURT has asked CITY to furnish BASTIAN COURT with a recordable
Certificate of Completion.
E. The CITY's Issuance of this Certificate of Completion is conclusive evidence that
BASTIAN COURT has completed construction the Project asset forth in the HOME
Agreement,
NOW THEREFORE:
1. CITY candies that BASTIAN COURT commenced the Project on _
200[-1 and completed the Protect on 2001—I.
and has done so In full compliance with the HOME Agreement.
2. This Certifkate of Completion is net evidence of BASTIAN COURT
compliance with, or satisfaction of, any obligation to any mortgage 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 Protect
3. This Certificate of Completion is not a notice of completion as referred to
In California Civil Coup Section 3093.
Page 2 of Exhibit E in V J
4. Nothing contained herein modifies any provision of the HOME
Agreement.
IN WITNESS WHEREOF, CITY has executed this Cendicate of Completion as of this
day of , 200[ ---
CITY OF FRESNO
By;
Nick P. Yovino, Director
Planning and Development Department
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
By: By:
Deputy AssistandDepury
Name:
Date: Date:
CONSENT OF OWNER
BASTIAN COURT LP, a California limited partnership, the owner of record of the Properly,
consents to recording this Certificate of Completion against the Property described herein.
(Attach notary certificate of acknowledgment)
Date:
By:
Name:
(Attach notary cealficete of acknowledgment)
Date:
Page 3 of Exhibit E 56
EXHIBIT F: PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
Loan Amount: $2,100,000.00 Date: 200[-1
For value received, the undersigned, BASTIAN COURT LP, a California Limited Partnership
Corporation ("Borrower"), promises to pay to the order of the City of Fresno, a California
municipal corporation, ('Lender'), the sum of Two Million One Hundred Thousand Dollars,
($2,100,000). The interest will be at the Applicable Federal Rate (as of the data of initial
disbursement) compounded annually. Principal and interest will be payable from residual
receipts from the projects net operating income after payment of debt service, deferred
developer fee payments, operating expenses and management fees at times prior to the
Maturity Date and in full upon the Maturity Date. Interest will accrue upon fund disbursement.
All capitalized terms used In this Note, unless otherwise defined, will have the respective
meanings specified in the HOME Agreement. In addition, as used in his Nate, the following
terms will have the following meanings:
Business Dav means any day other than Saturday, Sunday, or public holiday or the
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
Me payment to be made in a new calendar month, hat payment will be made on the next
preceding Business Day.
Maturity Date means 55 years commencing from Me date the CITY Issues and records the
Project Cemficate of Completion. The Affordability Period begins on he date the Lender
issues he Project Certificate of Completion.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust, Security
Agreement and Fixture Filing with Assignment of Rents on real estate In Fresno County,
California, that provides for acceleration upon stated events, dated as of the same data as
this Nate, and executed in favor of and delivered to the Lender ('Deed of Trust"), Insured as a
not worse than to Position lien on the Property.
Time is of the essence. It will be a default under this Note 0 Borrower defaults under the
HOME Agreement, defaults under any other Loan Documents, or If Borrower fails to pay
when due any sum payable under this Note. In the event at a default by Borrower, the
Borrower shall pay a late charge equal to the lesser of 2% of any outstanding payment or he
Page 1 of Exhibit F / (y
maximum amount allowed by law. 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 Men 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 Loan Documents give 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 Mat may be taken in renewal or extension of all or any part of
the indebtedness will immediatety become due without any further presentment, demand,
Protest, or notice of any kind.
The intlebtedness evidenced by this Note may, at the option of the Borrower, be prepaid In
whole or in part without penalty. Lender will apply all Me prepayments first to the payment of
any costs, fees, late charges, or other charges due under this NOW or under any of the other
Loan Documents and Men to the Interest and then to the principal balance.
All Loan 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 Mat designation at:
City of Fresno - Finance Department
Accounts Receivable
2600 Fresno St., Room 2156
Fresno, CA 93721
Borrower agrees t0 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 Me 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 Me holder of this Note M Its
rights and remedies under this Note. All costs incurred by the holder of Mis Note in any
action undertaken to obtain relief from Me stay of bankruptcy statutes are specifically
included in Moss costs and expenses to be paid by Borrower. Borrower will pay to Lender all
attorney fees and other costs referred to In Mis paragraph on demand.
Any notice, demand, or request relating t0 any matter act forth herein shall be in writing and
shall be given as provided in Me HOME 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 acquiescence, nor will any single or partial
exercise preclude any further exercise. Lender may waive any of Me conditions in this NOW
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 Dead of Trust upon the sale or
Page 2 of Exhibit F
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 Property or
any right, the 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, leaseroption contract, or
by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to
Me Property, or by any other method of conveyance of land interest. It any Trustor is a
corporation, partnership or limited liability, company, transfer also includes any change in
ownership of more than twenty-five percent (25%) of the voting stock, partnership interests or
limited liability company interests, as the case may be, of Trustor. However, his option shall
not be exercised by Beneficiary if such exercise Is prohibited by applicable law.
Lender may transfer this Note and deliver to Me transferee all or any part of the Property then
held by It as security under this Note, and the transferee will then become vested with all Me
powers and rights given to Lender, and Lender will Men 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 be 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 Mat 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.
In witness whereof, Borrower has caused this Promissory Note to be executed by Its
authorized agent(s) as of the date and year first above written.
BORROWER: BASTIAN COURT LP, a California limited partnership
By: Date:
Name:
Title:
(Attach notary certificate of acknowledgment)
By: Date:
Name:
Title:
(Attach notary certificate of acknowledgment)
Page 3 of Exhibit F yj