HomeMy WebLinkAboutCentral Community Development Center & Lockhart Family Center - HUD 811 Rental Housing Arbor Crt Laurel AvenueRecorded at the Request of
and When Recorded Return to
CIN of Fresno
Planning and Development Department
Housing and Commonly Development Division
Ahentlon: Housing Manager
2800 Fresno Street Room 3016
Fres o. CA W721-3605
APN: 183 120-10
This Agreement is recorded at the request and for die benefit of the Gay of Fresno and is exempt
"m the payment of a recoMing foe pursuant to Government Cada Section 6103
CITY OF FRESNO
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Jon Rwz. Assistenl Qty a gar
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HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION (CHDO)
AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
CENTRAL COMMUNITY DEVELOPMENT CENTER
a Cal'Romia non -proof public benefit corparetlon
and
LOCKHART FAMILY CENTER, INCORPORATED
a Califomia non-profit public benefit corporation
regarding
Construction of Affordable Multi -Family Disabled (HUD 811) Rental Housing
(Laurel Avenue East of Chestnut Avenue)
TABLE OF CONTENTS
Pace
ARTICLE 1.
DEFINITIONS....... .................................... .................. ................. ..............
..4
ARTICLE 2.
TERMS...... .......... ...... ........... .. .... - ..................................... ...... .....
9
ARTICLE 3.
GENERAL REPRESENTATIONS AND WARRANTIES OF CCDC..............
10
ARTICLE 4.
HOME PROGRAM REPRESENTATION AND WARRANTIES BY CCDC....
11
ARTICLES.
COVENANTS AND AGREEMENTS OF CCDC.................. _.. ........
17
ARTICLE 6.
DISBURSEMENT OF HOME FUNDS..... .............. ......... ........ .... ..................
20
ARTICLE 7.
DEVELOPMENT AND CONSTRUCTION OF PROJECT ...... _.._.......
23
ARTICLE e.
OPERATION OF RENTAL HOUSING.........................................................
27
ARTICLE 9.
INSURANCE, INDEMNITY AND BONDS....... ... ................................ ........
30
ARTICLE 10.
DEFAULT AND REMEDIES........................................................................
32
ARTICLE 11.
GENERAL PROVISIONS............................................................................34
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EXHIBITA: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT B: PROPERTY DESCRIPTION
EXHIBIT C: PROJECT BUDGET
EXHIBIT D: DECLARATION OF RESTRICTIONS
EXHIBIT E: CERTIFICATE OF COMPLETION
EXHIBIT F: RESIDUAL RECEIPTS PROMISSORY NOTE SECURED BY DEED OF TRUST
EXHIBIT G: SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
EXHIBIT H: [EXAMPLE] HUD -REQUIRED PROVISIONS RIDER
HOME INVESTMENT PARTNERSHIPS PROGRAM CHDO AGREEMENT
(AFFECTING REAL PROPERTY AND INCLUDING COVENANTS
RUNNING WITH THE LAND)
This HOME Investment Partnerships Program CHDO Agreement (hereinafter
referred to as the "Agreement") is entered into this, 1 1. 1 , 2005, by and
between the CITY OF FRESNO, a municipal corporation, acting through Its Planning and
Development Department- Housing and Community Development Division (hereinafter
referred to as the "CITY"), and CENTRAL COMMUNITY DEVELOPMENT CENTER, a
California ran -profit public benefit corporation for itself and its controlled affiliate, the
LOCKHART FAMILY CENTER. INCORPORATED, a California non-profit public benefit
corporation, jointly and severally, (hereinafter collectively referred to for convenience as
"CCDC" unless otherwise noted).
RECITALS
WHEREAS, 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 (heminafter referred to as 'HUD"), coder Title II of the Cranston -
Gonzalez National Affordable Housing Ad of 1990, as amended (hereinafter refemed to as
the "HOME Ae); and
WHEREAS, the HOME Program requires no less than fifteen percent (15%) of the
CITY's HOME Program annual allocation be used by Community Housing Development
Organizations (CH DO) for the development of Affordable Housing within the City of Fresno
as required in 24 CFR 92.300; and
WHEREAS, CCDC (but not the Lockhart Family Center, Incorporated) has been
certfied by the CITY as a CHDO in accordance wgh HUD's certification criteria; and
WHEREAS, CCDC desires to act as owner, CHDO developer, and exercise
effective project control as to a twenty (20) unit apartment complex of which nineteen (19)
units shall be constructed and preserved (for the term of the HUD Section 811 Program
capital advance documents) as very low-income (within 50 percent of the median Income
for the area) rental housing fora household, which may consist of a single quallf1w person,
where at least one household member must be 16 years old, or elder, and have a disability.
such as a physical or developmental disability, or chronic illness, and related on-site and
off-site improvements, (the "Project, as further defined herein) pursuant to and with
primary funding under HUD's Supportive Housing for Persons with Disabilities under
Section 811 of the National Affordable Housing Act of 1990 (P.L. 101-625) as amended by
the Housing and Community Development Act of 1992 (P.L. 102-550), the Rescission Act
(P. L. 10419) and the American Homeownership and Opportunity Act of 2000 (P.L. 106-
569), collectively hereinafter referred to as the ("Act"), Program regulations set out at 24
CFR Part 891 at seq. and related HUD capital advance documents (collectively'Sedion
811 Program" or the "Program") incorporated herein by this reference, the Program and the
Project as more particularly described In the attached EXHIBIT A, upon HOME eligible
property to be owned by CCDC, located at Laurel Avenue East of Chestnut Avenue, within
the boundaries of the City of Fresno, (the "Property') as more particularly described In the
attached EXHIBIT 8; and
WHEREAS, the Project will provide for the construction of nineteen (19) affordable
disabled rental housing units and one (1) apartment manager unit at the Property identified
in EXHIBIT B; and
WHEREAS, to further its goal to increase the supply of Affordable Housing within
the City of Fresno, the CITY desires to assist CCDC by providing a Seven Hundred Fifty
Thousand Dollars ($750,000) zero percent interest, deferred payment forgivable HOME
Program Loan to the Project, as further identified in EXHIBIT C (Project Budget), for HOME
eligible acquisttlon ($298,000) and for pre deveiopmerWdavelopmeot costs ($454,00), to
be secured by the underlying real property and the affordable housing covenants
(hereinafter refereed to as "Loan'), upon the terms and conditions in this Agreement; and
WHEREAS, 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 the Project (1) will have a positive Influence in the neighborhood and
surrounding environs, (ii) is in the vital and best Interests of the CITY, and the health,
safety, and wel(am of CITY residents, (iii) complies with applicable federal, state. and local
laws and requirements, (iv) will Increase, improve, and preserve the communhys supply of
low-income housing available at affordable (rousing cost to persons and families of very
low-income and low-income, as defined hereunder, (v) planning and administrative
expenses incurred In pursuit hereof are necessary for the production, Improvement, or
preservation of very low-income and Iow4mcome housing, and (vi) will comply with any and
all owner participation miss and criteria applicable thereto; and
WHEREAS, the environmental effects of the Project have been assessed resulting
in a finding of no significant impact pursuant to the National Environmental Policy Act
(NEPA), and an adoption of a mitigated negative declaration pursuant to the California
Environmental Quality Act (CEQA), and based thereon the HOME Funds have been
approved by the CITY for release pursuant to 24 CFR Part 58; and
WHEREAS, the CITY and CCDC have determined that the HOME Funded Pmject
constitutes routine programmaticlgrantee lender activities utilivng available and allocated
programlgrantee fundiig, outside the reach of California Constitution Article XXXIV and
enabling legislation.
NOW, THEREFORE, IN CONSIDERATION of the above recitals, which recitals are
contractual in nature, the mutual promises herein container, and for other goad and
valuable consideration hereby acknowledge, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terns have the meaning and content eel forth in this Article wherever used in
this Agreement, attached exhibits or attachments Nat are incorporated into this Agreement
by reference.
1.1 ADA means the Americans with Disabilities Add 1990, as most recently
amended.
1.2 Accu sitbn means vesting of the Property in fee title.
1.3 Affirmative Marketing means a good faith elicit to attract eligible parsons of
all racial, ethnic and gentler groups, in the housing market area, to purchase the proposed
Housing Unit(s) that am proposed for construction on the eligible Property, as hereinafter
defined.
1.4 Affordab'I tv Period means the fifty-five (55) year period commencing from the
date the CITY issues and records the Certificate of Completion, as more fully described in
the Declaration of Restrictions. attached hereto as EXH181T D.
1.5 Affordable Housing or Afforrable AffordableRental Hmeans the recital housing
units of which all will be required to meet the affordability requirements of this Agreement
and 24 CFR 92.252.
1.8 Buda et means the Budget for the acquisition, pre-0evelopment and
development of the Project, 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, attached hereto as EXHIBIT C.
1.7 CertHicate of Completion means that certificate issued, in the form attached
as EXHIBIT E ("Contrasts of Comple8on"), to CCOC by the CITY evidencing completion of
the Project and a release of construction related covenants for the pumoses of the
Agreement.
1.8 CFR means the Code of Federal Regulations.
1.9 Commencement of Construction means the time CCDC or CCDC's
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, which shall take place no later than thirty (30) calendar days following
the HUD Closing as hereinafter defined.
1.10 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT D. which CCOC shall record or cause to be recorded against
the Property no later than the date of Commencement of Constwition, setting out the
Affordable Housing covenants and requirements of this Agreement which shall run with the
land.
1.11 Deed of Trust means the Short Form Dead of Trust ant Assignmentof Rents
In use at First American Title Company ('Title Company") given by CWC, as Trustor, to
the CITY, as Beneficiary, with Title Company as Trustee, substantially in the form attached
hereto as Exhibit "G', recorded against the Property not later than date of the making of the
Loan, Insured in the full amount of the Loan by a CLTA lendefa policy, as well as any
amendments to, modifications of, and restatements of said Dead of Trust, which shall be
second and junior In lien m a deed of thief made by Trustor in favor of the Secretary of
Housing and Urban Development ("Secretary') securing a capital advance made by the
Secretary pursuant to the Section 811 Pmgmm and to a Regulatory Agreement and Use
Agreement between Trustor and the Secretary with respect to the Property referred to
herein. The terms of any such Dead of Trost are hereby incorporated into this Agreement
by this reference.
1.12 Disaitled or Disabled Household Person with Disabillty means as provitled
in the Act and Section 811 Program including 42 U.S.C. 8013 (b), 24 C.F.R. 891.305 and
24 C.F.R. 891.505.
1.13 Eligible Costs means those Project costs In the Budget, incurred by CCDC
before the CITU issues the Certificate of Completion, and related to Property acquisition
and Pal Pre -development and development costs for which HOME Funds may be used
as specified! in 24 CFR 92.205 and 92.208, and not disallowed by 24 CFR 92.214.
provided, however, that costs Incurred In connection with any activity that is determined to
be ineligible under the Program by HUD or the CITY shall trot constitute Eligible Costs.
1.14 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.15 Famil has the same meaning given Matte" in 24 CFR 5.403.
1.18 Hazartlous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined regulated or listed as 'hazardous
substances," "hazardous wastes," "hazardous 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.
Hazardous Materials do not include substances that are used or consumed in the normal
course of developing, operating of occupying a housing project, to the extent and degree
that such substances are stored, used and disposed of In the manner and in amounts that
are consistent with normal practice and legal standards.
1.17 HOME Investment Partnership CHDO Funds (also retained to in this
Agreement as HOME Funds or HOME CHDO Funds) means the HOME Program CHDO
monies in an amount not to exceed the sum of Seven Hundred Fifty Thousand! Dollars
($750,000), provided to CCDC as a zero Interest deferred payment forgivable loan, to be
used for eligible Property acquisition and Project pre+levelopment and development funds,
pursuant to this Agreement.
1.18 Household or Disabled Household means very low-mcome disabled
households consisting Mat least one member who Is 18 years of age or older meeting the
requirements of the HUD Section 811 Program during the term of me HUD capital advance
documents (as hereinafter defined),
1.19 HUD means the United States Department of Housing and Urban
Development.
1.20 HUD Capital Advance shall mean the financial assistance to be provided by
HUD to CCDC for the acquisition of the Development Parcel anal the development of the
Project Menson.
1.21 HUD Capital Advance Aamement shall mean the agreement between HUD
and CCDC pursuant to which HUD provides a HUD Capital Advance to CCDC for the
Project.
1.22 HUD Capital Advance Documents shall collectively refer to the HUD Note,
Deed of Trust, Regulatory Agreement, Use Agreement, Capital Advance Agreement,
Security Agreement, UCC Financing Saremends) and Protect Rental Assistance Contract
as required by the Section 811 Program and the Act.
Act. 1.23 HUD Capital Advance Proaram means the program established under the
1.24 HUD Closing shall mean the point In time when all wrMftions of the HUD
Figs Commitment are satisfied scanning the Project to commence construction.
1.25 HUD Deed of Trust means that Deed of Trust secunng the HUD Capital
Advance in favor of HUD.
1.26 HUD Finn Commitment shall mean the written commitment by HUD to the
CCDC to provide the HUD Capttal Advance on terms set forth in such commitment.
1.27 HUD Nola means the Promissory Note evidencing the HUD Capital Advance
In favor of HUD and secured by the HUD Dead of Trust.
1.28 HUDReaulatoryAgreement means the RegulatoryAgreementencumberirg
the Development Parcel by and between the CCDC and the Secretary of HUD.
1.29 HUD 811 Program means the Program established underthe AIX.
1.30 Loan means the nomlrherest bearing, defamed, forgivable loan of Seven
Hundred Fifty Thousand Dollars ($75.000) in HOME Funds, made by the CITY to CCDC,
for eligible Property acqulsttion ($298,000) and Project pre -development and development
wets ($454,000), pursuant to this Agreement, as more specifically described in this
Agreement and the Note.
1.31 Loan Documents are collectively this Agreement, the Note (attached hereto
as EXHIBIT F), Deed of Trust. Declaration of Restrictions, and all related documents and
instruments as they may to amended, modified or restated tram time to time along with all
exhibits and attachments thereto, relative to the Loan.
1.32 Low -Income Household means households 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
80% of the median for the area on the basis of HUD findings that such variations are
necessary. Notwithstanding the foregoing provisions during the term of the HUD Capttal
Advance Documents occupancy of the Project should be limited fo Very Low -Income
Disabled Households as provided In such HUD Capital Advance Documents.
1.33 Note means that certain non-interest bearing, deferred, forgivable, residual
receipts Note In a principal amount not to exceed Seven Hundred Fifty Thousand Dollars
($750,000), given by CCDC, as promissor, in favor of the CITY as promissee, evidencing
the Loan and performance of the affordability and other covenants and restrictions sal forth
In this Agreement, secured by a Deed of Trust as 2's location or better lien upon the
Property, naming the CITY as beneficiary and pmvided to the CITY no later than the date
of the HUD Closing, in the form attached hereto as EXHIBIT F, as well as any
amendments to, modifications of and restatements of said Note. The terms of the Note are
hereby incorporated into this Agreement by this reference.
1.34 Pmiect means the funding, development, acquisition and construction of a
twenty (20) Unit apartment complex (other than one (1) managers unit), commonly known
as Laurel Homes, at the Property, including HOME Funding assistance, and preservation
of the Project as rental housing for Very Low -Income Disabled Households for the term of
the HUD Capital Advance Documents and thereafter preservation of the Protect as
Affordable Rental Housing consistent with the income targeting and other requirements of
24 CFR 92.252, for a total (aggregate) fifty-five (55) year Affordability Period, all as
described in the Project Description attached hereto and incorporated herein as EXHIBIT
A, upon the Property as more particularly described in EXHIBIT B. provided that during the
tens of the HUD Capital Advance Documents the occupancy and tenant Income limitations
of the HUD 811 Program shall be applicable and In the event of a conflict the HUD Section
811 Program requirements shall control. In Me event of a cordlict between the HUD 811
Program requirements and Me HOME requirements not resolved by the parties per the
foregoing precedence of documents language then the matter shall be submitted to HUD
for determination.
1.35 Pro act Completion Date means the date that the CITY shall have determined
that the Project: 1) has reached completion in accordance with the plans and specifications
as approved by the CITY, 2) is in compliance with all Housing Standards, and 3) has been
issued a Certificate of Occupancy. For purposes of this Agreement, the Project Completion
Date for this Project shall be no later than August 31. 2007, or as extended by HUD and
noticed to the CITY.
1.36 Proect Schedule means Me schedule for completion of the Project included
In EXHIBIT A.
1.37 Prow or Development Parcel means the real proper y described in
EXHIBIT B.
1.38 Rent means the total monthly payments a tenant pays for a Unit Including Me
following: use and occupancy of the Unit and land and associated facilities, Including
parking (other than packing services acquired by tenants on an optional basis), any
separately charged fees or service charges assessed by CCDC which are required of all
tenants (other than security deposits), the cost of an adequate level of service for utilities
paid by the tenant (including garbage collection, sewer, water, electricity, gas and other
heating, cooking and reMgeration fuel, but not telephone service), any other interest, taxes,
fees or charges for use of the land or associated facilities and assessed by a public or
private enttty other than CCDC, and paid by the tenant.
1.39 Rental Housing is the twenty (20) unit disabled apartment complex to be
constructed, commonly known as Laurel Homes, to be located at the Property, and
preservation of nineteen (19) Units in the Project as rental housing for Very Low -Income
and Low -Income Households as provitletl In this Agreement.
1 AO Section 811 means Section 811 of the Act, Program regulations set out at 24
CFR Pad 891 at seg., and all HUD Capital Advance Documents thereunder.
1.41 Unit means a dwelling unit of the Rental Housing,
1.42 Very Low -Income Household means households whose annual income does
not exceed ftty percent (50%) of the median income for the Fresno. Cal'domla areas as
determined by HUD; except as HUD may establish income ceilings higher or lower than
50% of the median for the area on the basis of HUD findings that such violations are
necessary.
ARTICLE 2. TERMS
2.1 Loan of HOME CHDO Funds. The CITY agrees to provide a Loan of HOME
rustle to CCDC, in an amount not to exceed Seven Hundred Fifty Thousand Dollars
($750.00), as needed. under the terms and conditions provided In this Agreement. The
HOME Funds shall only be used by CCDC for Eligible Costs under the HOME Program.
The CITY acknowledges that the Loan of HOME Funds is to Pay for costs not included
within the HUD Capital Advance and that CITY Loan Funds may be disbursed before any
HUD Capital Advance funs.
2.2 Loan Documents. CCDC, shall execute an deliver, or cause to be executed
and delivered, to CITY the Loan Documents including the Note, as provided for In this
Agreement, and the Declaration of Restrictions which shall be recorded against the
Property.
2.3 Term of Aoieement. This Agreement is effective upon Me date of execution
and shall remain In fora until the end of the Pmjecfa Affordability Period, Itisunderstood
and agreed upon, however, that t for any reason this agreement should be terminated as
Provided hereunder. without default, by CCDC prior to disbursement of HOME Program
Funding hereunder, the CITY agrees to record a Notice of Cancellation regarding this
Agreement upon the written request of CCDC. After the fifty-five (55) year Affordability
Pen W, this Agreement will expire except for payment obligations then due and owing.
2.4 Loan Repayment and Maturity. The Loan shall be due and Payable In full
upon any carry termination of this Agreement including a termination due to an Event of
Default, provided that if CWC fully complies with the terms of this Agreement, the Loan
Documents and HUD regulations at 24 CFR 92, upon expiration of the Atfordablllty Period,
the Loan shall be forgiven and the Deed of Trust reconveyed, provided, further, that the
Loan shall not be accelerated during the term of the HUD Capital Advance Documents
without the prior written approval of HUD.
2.5 Incorporation of Documents The CCDC Proposal to City dated January 26,
2005, CCDC Resolution #06232005, dated June 23, 2005, [Lockhart Family Center,
Incorporated Resolution #08232005, dated June 23, 2005 authorizing pursuit of the Project
according to the terms and conditions herein, CITY Council approved Minutes of June 7,
2005, approving this Agreement, the Loan Documents, the Act and HUD regulations at 24
CFR Part 92, the Section 811 Program, the Act, and all Exhibits, attachments, documents
and instruments referenced herein, as now In effect and as may be amended from time to
time, constitute part of this Agreement and are incorporated herein by reference. All such
documents have been provided to the parties herewith or have been otherwjse provided
to/procured by the parties and reviewed by each of them prior to execution hereof.
2.6 Covenants of CCDC. CCDC covenants and agrees to comply with all the
terms and conditions of this Agreement and CCDC covenants aid agrees that the Project
will comply with all the requirements of the Act, the Section 811 Program, 24 CFR Pad 92
and this Agreement. In the event of any conflict between the HOME requirements and the
requirements of the HUD 811 Program Caphil Advance requirements the HUD 811
Program Capital Advance requirements shall control. In the event of a conflict between the.
HUD 811 Program requirements and the HOME requirements not resolved by the parties
per the foregoing precedence of documents language then the matter shall be submitted to
HUD for determination.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF CCDC
3.1 Existence and Qualification. CCDC represents and warrants as of the date
hereof that CCDC is a duly organized Calffomla non-proft corporation In good standing and
a qualified charitable organization exempt from certain taxes under IRC 501(cx3) and Cal.
R&T 23701 (d). CCDC is neither controlled by, nor under the direction of, Individuals or
entities seeking to derive profit or gain from the organization. CCDC has among its
corporate purposes the provision of decent housing that is affordable to Low -Income and
Very -Low Income persons. CCDC maintains accountability to Very Low-Incomeand Low-
Income community residents by maintaining al least one -thin of Its governing boar's
memberships far residents of Very Low -Income and Low -Income neighborhoods!
representatives thereof and by providing a formal process for Very Low -Income and Low -
Income program bera fciaries to advise CCDC In its affordable housing decision making.
CCDC and its development team have demonstrated capacity for carrying out the Project.
CCDC (but not Lockhart Family Center, Incoryomted) has a history of serving the
community within which the Pmject is located. CCDC has the requisite power, right, and
legal authority to execute, deliver, and perform its obligations under this Agreement and
has taken all actions necessary to authorize the execution, delivery, performance, antl
observance of its obligations under this Agreement. This Agreement, when executed and
delivered, shall constitute the legal, valid, and binding obligations of CCDC enforceable
against CCDC in accordance with its respective terms, except as such enforceability may
be limited by (a) bankruptcy, insolvency. fraudulent conveyance, reorganization,
moratorium, or other similar laws of general applicability affecting the enforcement of
creditors' rights generally. and (b) the application of general principles of equity without the
joinder of any other party.
3.2 No Litigation Material to Financial Condition. CCDC represents and warrants
as of the date hereof mat, except as disclosed to and approved by CITY in writing, no
litigation or administrative proceeding before any court or governmental body or agency is
now pending, nor, to the best of CCDC's knowledge, is any such litigation or proceeding
now threatened, or anticipated against CCDC that, if adversely determined, would have a
material adverse effect on me financial condition, business, or assets of CCDC or on the
operation of me Project.
10
3.3 No Legal Bar. CCDC represents and warrants as of the date hereof that the
execution, delivery, performance, or observance by CCDC of this Agreement will not, to the
best of CCOC's 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 CCDC; or (c) any
mortgage, indenture, security agreement, contract, undertaking, or other agreement or
instrument to which CCDC Is a parry or that is binding on any of its properties or assets, the
result of which would materially or substantially impair CCDC's ability to perform and
discharge its obligations or its ability to complete Me Project under this Agreement.
3.4 No Violation of Law. CCDC represents and warrants as of the dale hereof
that, to the best of CCDC'a knowledge. this Agreement and the operation of the Project as
contemplated by CCDC, do not violate any existing federal, state, or local laws or
regulations.
3.5 No Litigation Material to Pro'ect. CCDC represents and warrants as of the
date hereof that, except as disclosed to, add approved by the CITY in writing, there Is no
action, proceeding, or investigation now pending, or any basis therefor known or believed
to exist by CCDC that questions the validity of this Agreement, or of any action to be taken
under this Agreement, that would, R adversely determined, materially or substantlalty impair
CCDC's ability to perform and observe its obligations under this Agreement, or met would
either directly or indirectly have an adverse effect on or Impair the completion of the
Project.
3.6 Assurance of Governmental A d Licenses. CCDC represents and
warrants, as of the date hereof, that CCDC has obtained and, to the best of CCDC's
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 CCDC for the Project as of the date hereof, excluding the Project building and land use
permits and approvals which shall be obtained before commencement of contraction.
ARTICLE 4. HOME PROGRAM REPRESENTATION AND WARRANTIES BY CCDC.
CCDC, for Itself and its development team, represents and warrants that:
4.1 Accessibility. CCDC 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 one (1) unit,
whichever is greater, must be constructed to be accessible for persons with mobility
disabilities. An additional two Percent (2%) of the dwelling units, or at least one (1) unit,
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 504 of Me Rehabilitation Act of 1973
(29 U.S.C. 794).
S. All dwelling units must be designed to be accessible or adaptable for
persons with physical disabilities. This mandate can be found In 24 CFR Pad 891, which
Implements the Section 811 Program.
C. The design and construction requirements of the Fair Housing Act
(Title VIII of the Civil Rights Act of 1988, as amended), Including the following seven (7)
requirements of the Fair Housing Accessibility Guidelines:
I. Provide at least one accessible building entrance on an
accessible mute.
ii. Construct accessible and usable public and common use areas.
iii. Construct all doors to be accessible and usable by persons in
wheelchairs.
iv. Provide an accessible mute into and through the covered
dwelling unit.
V. Provide light switches, elecMwl outlets, thermostats and other
environmental controls In accessible locations.
vi. Construct reinforced bathroom walls for later installation of grab
bars around toilets, tubs, shower stalls and shower seats, where
such facilities are provided.
vii. Provide usable kitchens and bathrooms such that an individual
who uses a wheelchair can maneuver about Me space.
C. Tide III of the Americans with Disabilities Act of 1990 (ADA) as it
relates to the required accessibility of public and common use areas of the Pmjeot.
4.2 Affirmative Marketmi CCDC warrants, covenants and agrees that it shall
comply with all affirmative marketing requirements, including without limitation, those set
out at 24 CFR 92.350, 24 CFR 92.351, In order to provide information add otherwise attract
eligible persons from all racial, ethnic and gender groups in the housing market in Me sale
of Project Units. CCDC shall be responsible for complying with the CITYs "Affirmative
Marketing Policy" document as amended from time to time. CWC shell maintain records
of actions taken to affirmatively market units constructed in the future, and to assess the
results of Mese actions. CITY's Housing and Community Development Division Manager
shall accept Section 811 Program marketing documents and recons in lieu of those
required by this section. CCDC shall furnish CITY with a copy of Me Section 811 Program
marketing documents given to HUD.
4.3 Availability of HOME Funds. CCDC understands and agrees that Me
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 the CITY,
Mather earned by or promised to CWC. Me CITY shall not provide said Funds unless
and until they are made available for payment M the CITY by HUD and Me CITY receives
said Funds. No other funds owned or controlled by the CITY shall be obligated under this
Agreement.
4.4 Compliance with Agreement. CCDC warrants, covenants and agrees that, in
accordance with the requirements of 24 CFR 92.252 and 24 CFR Part 85, upon any
uncured default by CCDC whin the meaning of Article 10.1 of this Agreement, the CITY
may suspend or terminate this Agreement and all other agreements with CCDC without
waiver or limitation of rightshemetlles otherwise available to the CITY, subject to HUD prior
approval during the herrn of Me Capttal Advance Documents.
4.5 Conflict of Interest. CCDC represents and warrants as of the date hereof that
no official, officer, agent, or employee of the CITY directly or indirectly owns or controls any
interest in CCDC, and no person, directly or indirectly owning or controlling any interest in
CCDC, is an official, officer, agent, or employee of the CITY. CCDC warrants. covenants
and agrees that it shall comply with the Conflict of Interest requirements of 24 CFR 92.356
including, without limitation, that m officer, employee, agent or consultant of CCDC (other
than an employee or agent of CCDC who occupies a unit as the project manager or
maintenance worker) may occupy a Protect Unit. CCDC 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 regaN to these activities, may obtain a financial interest or beneftt from the
Project. or have an interest in any contract, subcontract or agreement with respect thereto,
or the proceeds there under, 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 92.356(f), no owner, developer or sponsor of the Project, or
officer, employee, agent or consultant therem, may occupy a Project Unit.
4.6 Construction Standards. CCDC shall construct the 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 Certification of Completion. In
the absence of a local code for construction, CCDC agrees to comply with the applicable
standards Identifed In 24 CFR 92.251.
4] Covenants and Restrictions to Run with the land. The CITY and CCDC
expressly warrant, covenant and agree to ensure that Me covenants and restrictions set
forth in this Agreement shall run with the land by Declaration of Restrictions and shall bind
all successors in his to the Rental Housing, provided, however that on expiration of this
Agreement and the Affordable Housing requirements therein said covenants and
reslnctions shall expire. CITY and CCOC further warrant, covenant and agree that the
covenants and restrictions set forth herein shall nun in favor of the CITY.
A. The CITY and CCDC hereby declare their understanding and intent
that the covenants and restrictions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and ownership of the Rental Housing by certain
Very Low -Income Households, and (b) by making possible the obtaining of advantageous
financing far construction.
B. CCDC covenants and agrees that from the recording of the Certificate
of Completion until the expiration of the Affordability Period It shall cause the Rental
Housing to be used for Affordable Housing.
C. In the event that CCDC fails to comply with the time period In which
the Project must constitute Affordable Housing, the CITY shall, without waiver of limitation,
be entitled to injunctive relief, as CCDC acknowledges that damages are not an adequate
remedy at law for such breach.
D. Without waiver or limitation, the CITY shall be entitled to injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be enfided to damages available under law or contract
for any injuries or losses resulting from any violations thereof.
E. 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 of this Agreement. The acceptance of a deed of conveyance to
the Renal Housing, shall constitute an agreement that the covenants and restnctions, as
may be amended or supplemented from time be time, are accepted and ratified by such
future owners, tenant or occupant, and all such covenants and restnctions shall be
covenants running with the land and shall bind any person having at any time any interest
or estate in the Rental Housing, all as though such covenants and restrictions were recited
and stipulated at length in each and every dead, conveyance, mortgage or lease thereof.
F. The failure or delay at any time of Me 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 time or from time to time thereafter,
or an estoppel against the enforcement thereof.
G. This Agreement, the Deed of Trust and the Declaration of Restrictions
shall be subject and subordinate to the HUD Deed of Trust, me HUD Regulatory
Agreement and Me HUD Use Agreement,
4.8 Displacement of Persons. CCDC warrants, covenants and agrees Mat
Pursuant to 24 CFR 92.353. it will take all reasonable steps to minimize the displacement of
any persons (families, individuals, businesses, nonprofit organizations and farms).
4.9 Initial and Annual Income Certififlitylson and Reporting. CCDC warrants,
covenants and agrees that It shall comply with me procedures for Initial and annual income
determinations at 24 CFR 92.203. CCDC, shall obtain, complete and maintain on file.
Immediately prior to initial occupancy, and annually thereafter, Income certifications from
each tenant Household renting any Unit CCDC, shall make a good faith effort to vainly that
the income provided by an applicant or occupying Household in an income certrticatlon is
accurate by taking one or more of the following steps as part of the verification process: (1)
obtain a pay stub for the most recent pay period; (2) obtain an income verification form
from the applicant's wren employer, (3) obtain an Income verification form from the Social
Security Administration and California Department of Social Services if the applicant
receives assistance from either of such agencies; (4) obtain an income tax return for the
most recent tax year, (5) If the applicant is unemployed am has no such tax return, obtain
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anotherfonn of independent verification, or (6) conduct a credit agency or similar search.
Copies of tenant Income certification and verification must be available for review by the
CITY upon request. CITYS Housing and Community Development Division Manager shall
accept Section 811 Program certifications and reporting In lieu of that required by his
section to he extent consistent therewith and In the event of a conflict the HUD
requirements shall control. CCDC shall furnish CITY with a copy of the Section 811
Program certifications and reporting given to HUD.
4.10 Lead -Based Paint. CCDC warrants, covenants and agrees that it shall
comply with all applicable requirements of the Lead -Based Paint Poisoning Prevention Act
of 42 U.S.C. 4821 at seq., 24 CFR Part 35 including the HUD 1012 Rule, and 24 CFR
982.4010), including any amendments thereto, in the development of the Rental Housing
Project. These requirements apply to all units and common areas In the Rental Housing
Project. CCDC 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.
CCDC shall be responsible for all disclosure, inspection, testing, evaluation, control and
abatement activdies.
4.11 Minority Outreach Act'vib CCDC warrants, covenants and agrees that it
shall comply with all federal laws and regulations described in Subpart H of 24 CFR Pad
92, including, without limitation, any requirement that CCDC comply with the CITY's
minority outreach program.
4.12 Other Laws and Regulations. CCDC warrants, covenants and agrees that, In
addition to complying with the federal laws and regulations already cited In this Agreement,
CCDC has reviewed, and shall comply with, all other federal laws and regulations that
apply to the HOME Program, including, without limitation, the following requirements:
A. The Road Disaster Protection Ad of 1973, as amended (42 U.S.C.
4001-4126), and all other regulations as identified in 24 CFR 58.6.
1. The Project is not located In a tract identified by the Federal
Emergency Management Agency as having special flood requirements.
B. The Project requirements, Subpart F of 24 CFR Pad 92, as applicable
and In accordance wtth the type of Project assisted, including, but not limited to, the limit on
per-unit subsidy amount at 24 CFR 92.250.
C. The property standards at 24 CFR 92.251.
D. The Project "Labof' requirements, as applicable, of 24 CFR 92.3%
including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 278a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
E. The provisions of Section 102 and 107 of he Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Pad 5), in regains to the construction and management of the
proposed Project.
15
F. CCDC and fits contractors, subcontractors and service providers for the
Project, shall comply with all applicable local, state and federal requirements concerning
equal employment opportunity, Including compliance with E.O. 11246, 'Equal Employment
OpporturvIV, 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.
G. The provisions of the Copeland "Anti-IGckback" 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').
H. The provisions of the Clean Air Act (42 U.S.C. 7401 at seq.) and the
Federal Water Pollution Control Act (33 U.S.C. 1251 at seq.), as amended.
1352). I. The pmvisions of the Byrd Anti -Lobbying Amendment (31 U.S.C.
J. The provision of Executive Orders 12549 and 12689, "Debarment and
Suspension," as set form at 24 CFR part 24.
K. The provisions of the Drug -Free Workplace Act of 1988 (42 U.S.C.
701). in accordance with the Act and with HUD's rules at 24 CFR pan 24, subpart F.
L.
This 8 of the Civil Rights Ad of 1968 PL. 90-284.
M. Executive Order 11063 on Equal Opportunity and Housing.
N. Sechon 3 of the Housing and Urban Development Act of 1968
O. The Housing and Community Development Act of 1974.
4.13 Faith Based Activities. CCDC warrants, covenants and agrees that Is shall
comply with the requirements of 24 GFR 92.257 including restrictions therein upon
Inherently religious activities.
4.14 Reporting Requirement . CCDC warrants, covenants ant agrees that it shall
submit performance reports to We CITY as detailed in Section 7.15. Furthermore, CCDC
agrees to provide, at the sole cost of CCDC, annual audited Financial Statements for the
expenses and ongoing financial transactions which occur as a result of this Agreement as
detailed in Section 5.6. CCDC agrees to account for the expenditure of HOME Funds
using generally accepted accounting principals, which financial documentation snail be
made available to the CITY and HUD upon their respective written request(s). CITY's
Housing and Community Development Division Manager City shall accept the annual
audited financial statemem submitted to HUD underthe HUD Section 811 Program as
compliance with this section. CCDC shall furnish CITY with a ropy of the Section 811
Program annual audited financial statement given to HUD.
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4.15 Affordability Period. CCDC warrants, covenants and agrees that the Rental
Housing will meet the Affordable 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 ITvacant, available for rental and ocoupancy by Low -Income and Very
Low -Income Households forthe Affordability Pernod except upon foreclosure by a lender or
transfer in lieu of foreclosure following default under a Deed of Trust. However, if at any
time following transfer by foreclosure or minter in lieu of foreclosure, but still during the
Affordability Pared, the owner of record prior to the foreclosure or transfer in lieu of
foreclosure, or any newly formed amity that includes such owner of record or those whom
such owner of record has or had family or business ties, obtains an ownership interest In
the Project or Property, the Affordability Period shall be revived according to its original
terms except as provided in section 11.23 hereof CITY'a Housing and Community
Development Division Manager shall accept the HUD Capital Advance Documents as
compliance with the previsions of this Section 4.15 and in the event of a conflict the HUD
Capital Advance Documents shall control. In the event of any conflict between the HOME
requirements and the HUD Capital Advance requirements not resolved by the parties per
the foregoing precedence of documents language then the matter shall be submitted to
HUD for determination.
4.16 Terminated Pm ects. CCDC understands and agrees that, If the Project Is
terminated before completion, either voluntadly or otherwise, such constitutes an Ineligible
activity and any HOME Funds disbursed hereunder must be repaid to the CITY's HOME
Investment Trust Fund in accordance with 24 CFR 92.503 (b) subject to HUD approval.
ARTICLE 5. COVENANTS AND AGREEMENTS OF CCDC.
CCDC, for itseH and its development team, covenants and agrees to the following, for the
entire term of the Agreement.
5.1 Adeauste Repair and Maintenance. CCDC shall, during the entire
Affordability Period, maintain the Project and Property In compliance with all applicable
codes. laws, and ordinances.
5.2 Compliance With Environmental Laws. CCDC shall cause the Project to be
in compliance with, and not to cause or permit the housing project to be in violation of, any
environmental law, rale, regulation, ordinance, or statute. Although the CITY will utilize its
employees and agents for regular inspection and testing of the eligible Property, CCDC
agrees that, it the CITY has reasonable grounds M suspect any such violation, CCDC shall
be entitled to thirty (30) days' notice and opportunity to cure such violation. ff the
suspected violation is not cured, the CITY shall have the right to retain an independent
consultant to Inspect and test the eligible Property for such violation. If a violation is
discovered, CCDC shall pay for the reasonable cost of the Independent consultant.
Additionally, CCDC agrees:
A. That the 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 that all cost, expense and liability for such
work shall be and remain solely with CCDC;
17
B. Not to transport to or from the proposed project suets), or use,
generate, manufacture, produce, store, release, discharge, or dispose of on, under, or
about the project slats), or surrounding real estate, or transport to or from the project
aRe(s)l or surrounding real estate, any hazardous or toxic chemicals, materials, substance,
or wastes or allow any person or entity to do so except in such amounts and under such
terms and conditions permitted by applicable laws, rules, regulations, ordinances, and
statutes;
C. To give prompt written notice to Na 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 Me surrounding real estate or the migration thereof
fmm or to other property;
2. All claims made or threatened by any third party against CCDC
or such properties relating to any loss or injury resulting from any hammlous or toxic
chemicals, materials, substance, or waste; and
3. CCDC's discovery of any occurrence or condition on any real
property adjoining or In the vicinity of such properties that would cause such properties or
underlying or surrounding real estate or part thereof to be subject to any restrictions on the
ownership, occupancy, transferability, or use of the property under any environmental law,
rule, regulation, ordinance or statute.
5.3 Compliance With Laws. CCDC shall promptly and faithfully comply with,
contorrn th and obey all present and future federal, state and local statutes, regulations,
rules, mdinances and other legal requirements applicable by reason of this Agreement or
otherwise to the Project Including without limitation prevailing wage and public bidding
requirements- The CITY'a annual resolution setting out per them wage rates Is available
fmm the CITYs Construction Management Division. CCDC acknowledges that the use of
HOME Funds subjects the Pmject to extensive federal regulation and covenams and
agrees that it shall comply with, conform to and obey (and take such steps as are required
of CCDC to enable the CITY to comply with, conform te and obey) all federal statutes,
regulations, miss and policies applicable to the Program and the Project. In the event of a
conflict between the requirements of the HOME Program and the HUD 811 Program
Capital Advance requirements the HUD 811 Program Capital Advance requirements shall
control. In the event of any conflict between the HOME requirements and the HUD 811
Program Capital Advance requirements not resolved by the parties per the foregoing
precedence of documents language then the matter shall be submitted to HUD for
determination. Nothing In this section shall limit or constitute a waiver by CCDC of rights
available to it under law.
5.4 Dischame of Lens and Stop Notices. CCDC shall discharge, bond, or Insure
over or otherwise release or collateralize to the CITY s reasonable satisfaction any
mechanic's, laborer's, materialman's, warehouseman's, or other lien or stop notice fled
against the Eligible Property or Pmject funding within twenty (20) days after the date the
lien or stop notice is fled,
5.5 Existence. Oualication. and Authority. CCDC shall provide to the CITY any
evidence required or requested by the CITY to demonstrate the continuing existence,
qualification, and authority of CCDC to execute this Agreement and to perform the acts
necessary to carry out the Project. CCDC shall maintain the existence, qualifications, and
authority necessary to continue its business and shall comply with all laws and regulations
applicable to It, its property, and its operations, the noncompliance with which could
materially affect its business, its financial condition, or the Projed.
5.6 Financial Statements and Audits. CCDC, as a subrecipient of federal
financial assistance, is requiretl to comply with the provisions of the Single Audit Ad of
1984 (31 U.S.C. Sections 7501 at seq.), as amended. Annually, within one hundred and
eighty It 80) days following 1) the end of fiscal years) in which the HOME Funds are
disbursed hereunder, and 2) the end of fiscal year(s) in which Nis contract shall terminal
and otherwise upon the CITY's, wciften request during the term of this Agreement, CCDC,
at Its sole cost and expense shall submit to the CITY:
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed therein).
B. Autl0ed Financial Statements covering the income and expenses, and
the financial transactions for the Project during Me prior fiscal year.
C. CITY's Housing and Community Development Division Manager City
shall accept the annual audited financial statement submitted to HUD under the HUD
Sedion 811 Program as compliance with this section. CCDC shall furnish CITY with a
copy of the Section 811 Program annual audited financial statement given to HUD,
5.7 Inspection and Audit of Books. Records and Documents. CCDC shall be
accountable to the CITY for all HOME Funds disbursed for this project pursuant to this
Agreement. Any duly authorloed representative of the CITY, the State, or HUD shall, at all
reasonable times, have access to and the right to inspect, copy, make excerpts or
transcripts, audft, and examine all books of accounts, records, files and other papers or
property, and other documents of CCDC 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 CCDC will maintain books and records for the Project using generally
accepted accounting principles. CCDC agrees to maintain books and records that
accurately and fully show the dale, 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 not less than six (6) years after Me
expiration or termination of the Agreement. Books and records must be kept accurate and
current. For purposes of this section, "books, records and documents' include, without
limitation; plans, drawings, specifications, lodgers, journals, statements,
contradsragreements. funding information, funding applications, purchase orders,
invoices, loan documents, computer printouts, correspondence, memoranda, and
electronically stored versions of the foregoing. This section shall survive the termination of
this Agreement, except as provided in section 11.23.
19
B. The CITY may audit any conditions relating to this Agreement at the
CITYs expense, unless such audit shows a significant discrepancy in information reported
by CCDC in which case CWC shall bear the cost of such audit. CCDC shall also comply
with any applicable audit requirements of 24 CFR 92.506. This section shall survive the
termination of this Agreement, except as provided in section 11.23.
C. CCDC will cooperate fully with Me CITY, the State. and HUD In
connection with any interim orfnal audit relating to the Programs and the Project that may
be performed relative to the performance of this Agreement.
5,8 Inspection of Prooery Any duly authorized representative of the CITY, the
State, or HUD shall, at all reasonable times and in any manner allowed by law, have
access and the right to inspect the Property until completion of the Project and expiration of
the applicable Affordability Period, provided reasonable effort shall be made to provide the
property manager with 24 hours prior notice except in emergencies.
5.9 No Other Liens. CCDC 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 the eligible Property, other than those related to the
Project's equity investment, deferred developer fee loan or grants and construction or pre -
development loans In relation to the Project, without the prior written consent of the CITY.
5.10 Nondiscrimination. CCDC shall comply with and cause any am all
contractors and subcontractors to comply with any and all federal, state, and local laws with
raged to illegal discrimination, and CCDC shall not illegally discriminate against any
Persons on account of race, religion, sex, family status, age, handicap, or place of national
origin in its performance of this Agreement and the completion of the Project.
5.11 Ownership. Except as provided in this Agreement or required In pursuit
hereof. CCDC shall not sell, lease, transfer, assign or otherwise dispose of all or any
material pan of any interest It might hod In the Property or the Project without the prior
written consent of the CITY Manager, which consent shall not be unreasonably withheld or
delayed, excluding the rental or leasing of apartments, and excluding (i) a transfer to HUD
or HUD's transferee and fill any transfer approved by HUD.
5.12 Payment of Liabilities. CCDC shall pay and discharge in the ordinary course
of its business all material obligations and liabildles, the nonpayment of which could have a
material or adverse impact on its financial condition, bUslnees, or assets or on the
operation of Me Project(s), except such obligations and liabilities that have been disclosed
to the CITY in writing and are being contested in good faith.
ARTICLE 6. DISBURSEMENT OF HOME FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of HOME
Funds:
6.1 Use of HOME Proomm Funds. CCDC warrants, covenants and agrees that It
shall request HOME Program Funds limited to the amount needed for eligible costs,
including costs allowable under 24 CFR 92.206, aggregating not more than Seven Hundred
20
Fifty Thousand Dollars ($750,000) and not otherwise paid by Section 811 Pmgmm Funds.
The CITY's obligatlens shall in no event exceed the HOME Funds amount specified in this
Agreement. Any Project costs exceeding Seven Hundred Fifty Thousand Dollars
($750,000), whether or not the costs qualify as Eligible Costs, shall be the sole
responsibility of CCDC.
A. If any such Funds shall be determined to have been requested and or
used by CCDC for something other than HOME eligible land acquisition, predevelopment
and development 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 CCDC to the CITY; provided, however, that CCDC 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 Eligible Costs
which subsequently lose eligibility as Eligible Costs, CCDC shall Immediately return such
HOME Funds to the CITY.
C. The CITY will disburse HOME Funds for land acquisition, only to a city -
approved escrow company, for land acquisition of the Project as provided in this Article fi.
D. The CIN acknowledges that the Loan of HOME Funds Is ro pay for
costs not Included within the HUD Capital Advance and that all CITY Loan Funds may be
disbursed before any HUD Capital Advance funds,
8.2 Conditions Precedent to Disbursement. The CITY shall not be obligatetl to
make or authorize any disbursements of HOME Funds or take any other action under this
Agreement unless the following conditions am safisfied:
A. There exists no Event of Default as provided In Article 10, nor any act,
failure, omission or condition that with the passage of time or the giving of notice or both
would constitute an Event of Default.
B. CCDC has received and delivered to the CITY fine commitments of, or
Agreements for, sufficient funds to finance the Project.
C. CCDC, as to any eligible construction costs hereunder, has entered
into, and provided the CITY copies of proposed Project surety bonds, and proposed
agreements with all Funding Sources and contractors for this Project, provided fully
executed bonds and agreements shall be provided when available. CCDC shall
immediately notify the CITY of any event such bonds and agreements are terminated,
cancelled or in default.
D. CCDC is current with its compliance of all reporting requirements set
forth in this Agreement.
E. For any construction reimbursements, the CITY has approved the
Project for commencement of construction.
21
F. CCDC has acquired insurance coverage and delivered to the CITY
evidence of insurance as required In Article 9.
G. CCDC has provided the CITY with a written request for HOME Funds,
as detailed in Section 6.3 below,
H. The CITY has received, and continues to the have the right to
disburse, HOME Funds.
6.3 Request for Disbursement of Funds. CCDC shall request disbursement of
HOME Funds using the CITY's Request for Disbursement of Funds Form, or a similar
document, CCDC shall only request a maximum of Two Hundred Ninety-Six Thousand
Dollars ($296,000) to be deposited in an established escrow account for payment of
property. acquisition. Accidentally, CCDC shall only request up to a maximum of Four
Hundred Fifly-Four Thousand Dollars ($454,000) to be deposited in an established escrow
account for pre-development and development costs. All requests should provide In detail
such Eligible Costs applicable to the request. The form of the HUD Section 611 Program
disbursement shall he accepted by the CITY on and after the HUD Closing.
A. Along with the request for such disbursements, CCDC shall submit to
the CITY such other documentation. including, but not limited to, invoices for work
completed and in place and for materials purchased and suitably stored. Notwithstanding
the foregoing, the parties acknowledge and agree that CITY HOME funds may be
disbursed before the Capital Advance funds.
B. CCDC's request for HOME funds disbursement shall be accompanied
with the Certification required by Section 6.4 of this Agreement.
6.4 Certification CCDC shall submit to the CITY a written certification signed by
CCDC that, as of the date of the Request for Disbursement'
A. The representations and warranties of CCDC contained in or
incorporated by reference in this Agreement continue to be true, complete and accurate.
B. CCDC has earned out all of its obligations and is in compliance with all
the obligations or covenants specified in this Agreement, to the extent that such obligations
or covenants are required to have been rear led out or are applicable at the time of the
request for the Disbursement;
C. CCDC has not committed or suffered an act, event, occuoence, or
circumstance that 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 Eligible Costs
identified in this Agreement. CCDC shall certify that the itemized obligations have been
properly incurred and are properly chargeable in connection with the Project.
22
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the "Mies agree as follows:
7.1 Pre -construction Meeting Regarding HOME Focal Process and
Procedures. CITY will schedule, and CCDC 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 ADAl6arriers to the Disabled. The proposed Affordable Rental Housing
Project shall be maintained to comply with all applicable federal, state and local accessibility
requirements, including without limitation. the multifamily residential construction or
rehabilitation accessibility requirements set out at 24 CFR parts 8 and 9. Forpurposesof
this Agreement, the number of accessible dwelling units shall be a minimum of one (1)
unless a greater number of once shall be required by law of HUD directive, whereupon such
greater number of units shall apply. Additionally, the number of dwelling units accessible for
the hearing and visually impaired shall be a minimum of one (1).
7.3 Commencement and Completion of Protect. CCDC shalt begin construction
of the Project no later Man thirty (30) days following the HUD Closing. The Project shall be
completed no later than August 31. 2007, unless extended by HUD.
7.4 Contracts and Subcontracts. 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 wont or service
in the State of California and the City of Fresno. CCDC shall provide the CITY with copies
of all agreements with any and all central or subcontractors for this Project, as the
CITY may reasonably request. CCDC shall notify the CITY immediately of any termination,
cancellation, filing of mechanic'stmaterialman's lien, or event of default under such
contracts and subcontracts.
T5 Damage to Prooertv. To the extent consistent with the requirements of any
permitted encumbrance, or as otherwise approved by the CITY or provided in this
Agreement, Rany building or Improvement constructed on the Property is damaged or
destroyed by an insurable cause, CCDC shall, at its cost and expense. diligently undertake
to repair or restore said buildings and improvements consistent with the original Plans and
Specifications of the Project. Such work or repair shall commence within ninety(90)days
after the insurance proceeds are made available to CCDC and shall be complete within
one (1) year thereafter. All insurance proceeds collected for such damage ordestruction
shall be applied to the cost of such repairs or restoration and, if such insurance proceeds
shall be insufficient for such purpose, CCDC shall utilize best efforts to make up the
deficiency.
7.6 Fees Taxes and Other Levies. CCDC 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 m
delinquency. However, CCDC shall not be required to pay and discharge any such charge
W long as; (a) the legality thereof is being contested diligently and in gone faith and by
appropriate proceedings, and (b) H requested by me CITY, CCDC deposits with the CITY
23
any funds or other forms of assurances that the CITY, in good faith, may determine from
time to time are appropriate to protect Me CITY from the consequences of the contest
being unsuccessful. Nothing herein prohibits CCDC from applying for or obtaining any tax
exemptions or abatements or relief allowed by law and consistent with HOME program
requirements.
7.7 Fi�ng. CCDC shall promptly inform the CITY of any new financing or
funding, am CCDC shall provide the CITY copies of all agreements with any and all
Funding Sources for this Pmject. CCDC agrees to notify the CITY immediately of
termination or cancellation of any such agmement(s) or event of efault thereunder, CCDC
shall comply with all obligations of any such agreements) with any and all Funding
Sources until Me respective expiration of such agreament(s). In the event CCDC fails to
comply with its obligations of this section, the grant shall become Immediately due and
payable as provided for In this Agreement. This section shall survive expiration or
termination of this Agreement except as provided in section 11.23 hereof. There shall be
no acceleration by the City of its Loan during the term of the HUD Capital Advance
Documents without the prior written approval of HUD.
7S Inspections. CCDC shall permit, facilitate, and require its contractors and
consultants to permit and facilitate observation antl inspection at the job site by the CITY,
during reasonable business hours, for the purpose of determining compliance with this
Agreement, including without limitation Mose annual on-site inspections required of the
CITY by 24 CFR 92.504(d).
7.9 Insurance and Bonds. CCDC shall submit for CITY approval bonds,
certificates and applicable endorsements for all Insurance and hams required by this
Agreement In accordance with Article 9.
7.10 Mechanic's Liens and Stop Notices. If any claim of lien is filed against Me
Properly or a stop notice affecting any financing, HOME Program Fume or Fuming
Sources far the Project is served on the CITY or any other third parry in connection with Me
Project. CCDC shall, within twenty (20) days of such filing or service, either pay and fully
discharge thenen or stop notice, effect the release of such Ilan or slop 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 slop notice will be paid or
discharged.
A. If CCDC falls to discharge, bond or othervise satisfy Me CITY with
respect to any lien, encumbrance, charge or claim referred to in the Section above, then, in
addition to any other right or remedy, the CITY may, but shall not be obligated to, discharge
such lien, encumbrance, charge, or claim at CCDC expense. CCDC hereby agrees to
indemnify and hold the CITY harmless from liability for such liens, encumbrances, charges
or claims together with all related coals and expenses.
7.f 1 Permits. Licenses and Approvals. CCDC shall submit, for CITY approval, all
the necessary permits and licenses required for Commencement of Construction, As the
CITY may reasonably request, CCDC, at its sole cost and expense, shall provide to the
CITY copies of any ant all permit approvals and authorizations Including plot plan, plat,
zoning variances, sewer, building, and other permits required by governmental authorities
24
other than the CITY in pursuit of the Affordable Housing Pmject, and for its stated purposes
in accordance with all applicable building, environmental, ecological, landmark, subdivision,
zoning codes, laws, and regulations. CCDC Is responsible, at its sole cost and expense, to
determine the location of any Willies on the Property and to negotiate with the utility
companies for and to relocate the utilities, if any, as necessary to complete the Project.
7.12 Plans and Specifications. Before Commencement of Construction, CCDC
shall submit to the CITY, for its review and approval, the final Plans and Specifications for
the Project, which approved Plans and Specifications are by this reference Incorporated
herein. CCDC will construct the Project: in full conformance with the Plans and
Specificatbns and modifications thereto approved by the CITY. CCDC shall obtain the
CITY's prior written approval for any modifications to the Plans and SpeciBcallons.
Additionally, during the tens of the HUD Capital Advance Documents Project change
orders approved by HUD shall be deemed approved by City.
7.13 Prolect Responsibilities. CCDC shall be solely responsible for all aspects of
CCDC's conduct in connection with the Project, including bud not limited to, the applicability
of and compliance with all local, state and federal laws, the quality and suitability of the
work completed the supervision of all contracted work, qualifications and fnancel
conditions of and performance of all contractors, subcontractors, consultants and suppliers.
Any review or inspection undertaken by Me CITY with reference to the Project is solely for
the purpose of determining whether CCDC is properly discharging its obligation to the
CITY, and shall not be relied upon by CCDC or by any third parties as a warranty or
representation by the CITY as to the quality of Me work completed for the Project.
7.14 Quality of Work. CCDC shall construct Me Project and shall employ building
materials of a quality suitable for the requirements of Me Project. CCDC shall cause
completion of construction of the Project on the Property in full conformance with applicable
local, state and federal laws, statutes, regulations, and building and housing codes.
7.15 Relocation. If and to the eident that construction of the proposed Project
results in the permanent or temporary displacement of residential tenants, homeowners or
businesses. CCDC shall comply with all applicable local, state and federal statutes and
regulations with respect to relocation planning, advisory assistance and payment of
monetary benefits. CCDC 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 Reoorfnci Requirements. CCDC shall submit to the CITY the following
Project reports provided the CITY'S Housing and Community Development Division
Manager shall accept Section 811 Program reports in lieu thereof:
A. From the date of execution of this Agreement, until Issuance of the
Final Certificate of Completion, CCDC shall submit a Quadedy Report, In a form approved
by the CITY, which will include, at a minimum, the following information: progress of The
Pnclect and affirmative marketing efforts. The Quarterly Reports are due on each March
31 , June 30", September 3d°, and December 31°, during said period.
25
B. Annually, beginning on the first day of the month following the ClTY's
issuance of the Certificate of Completion, and continuing until the termination of Ne
Agreement, CCDC shall submit an Annual Report to the CITY, in a form approved by the
CITY. The Annual Report shall include, at a minimum, the following Information:
information as to the occupancy/tenancy of each Affordable Housing Unit including (as
applicable): the annual income and the family size of the Household, the data the
accupancyhenancy commenced, certification from an officer of CCDC that the Project is in
compliance with the Affordable Housing Requirements, and such other information the
CITY may be required by Ise, to obtain. CCDC shall provide any additional information
reasonably requested by the CITY.
G Annually, beginning on Ne first day of the month following the CITY's
Issuance of Ne final Certificate of Completion, evidencing the construction of the Plojeal,
and continuing until the expiration of the Agreement, CCDC shall submit proof of insurance
as required in ANcle 9.
7.17 Scheduling and Extension of Time: Unavoidable Delay in Performance. It
shall be the responsibility of CCDC to coordinate and schedule the work to be perfamied
so that the Commencement of Construction and issuance of the Certificate of
CompleHon(s) will take place In accordance with the provisions of the Agreement. The
CITY, through its Housing and Community Development Manager, may extend such time
in writing at its sole and absolute discretion, and upon wi tten request of CCDC (as
provided below), provided any extension approved by HUD shall be deemed approved by
the City.
A. The time for performance of provisions of Ne Agreement by either
party shall be extended for a period equal to the pend of any delay directly affecting the
Project or this Agreement which Is caused by: war, insurrection, strike or other labor
disputes, lockouts, riots, foods, earthquakes, fres, 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 Nis Agreement, or unseasonable weather
conditions. An extension of time for any of the above specified causes will be granted only
it written notice by the party claiming such extension is sent to the other party within ten
It 0) calendar days from the date the affected party learns of the commencement of the
cause and the resulting delay and such extension of time Is accepted by the other party In
writing. In any event, Ne Protect must be completed no later than one hundred eighty
(180) calendar days after the scheduled completion date specified in this Agreement,
notwithstanding any delay cement by that Included In this section.
B. Any and all extensions hereunder shall be by mutual written
agreement of the CITYs Housing and Community Development Manager and CCDC and
shall not cumulatively exceed one hundred eighty (180) days.
7.18 Certificate of Completion. Upon completion of the construction of the Project,
CCDC shall certify in writing to the CITY that construction of the Project has been
completed In accordance with the plans and specBcations, approved by the CITY, and this
Agreement. Upon a determination by the CITY that CCDC is in compliance with all of
CCDC'a construction obligations, as spectfed in this Agreement. the CITY shall furnish,
within S0 calendar days of a written request by CCDC, a recordable Certificate of
W
Completion for the Project in the torte attached hereto as EXHIBIT E. The CITY will not
unreasonably withhold or delay furnishing the Certificate of Completion. If the CRY fails le
pmvitle the Certificate of Completion within the specified time, it shall provide CCDC with a
written statement indicating in what respects CCDC has failed to complete the Project in
conformance with this Agreement or has otherwise failed to comply with the terms of this
Agreement, and what measures CCDC will need to take or what standards R will need to
meet in order to obtain the Certificate of Completion. Upon CCDC taking the specified
measures and meeting the specified standards, CCDC will cantly to the CITY In wrlHng of
such compliance and the CITY shall deliver the recordable Certificate of Completion to
CCDC in accordance with the provisions of this section
7.19 Signage. CCDC shall. during the period of construction erect and maintain a
temporary sign Identifying the CITY as a project funding source at a place and in a manner
specified by the City's Housing and Community Development Manager.
ARTICLE 8. OPERATION OF RENTAL HOUSING
8.1 Operation of the Project. CCDC, its development team, and audrorized
agents thereof shall, Lease, operate and manage the Project In full conformity with the
terms of this Agreement. Compliance by CCDC with the requirements of the HUD Capital
Advance Documents shall constitute compliance with the provisions of this Article 8 and in
the event of a conflict between this Article 8 and the HUD Section 811 Program
requirements, the HUD requirements shall control. In the event of any conflict between the
HOME requirements and me HUD Capital Advance requirements not resolved by the
parties per the foregoing precedence of documents language then the matter shall be
submitted to HUD for determination.
8.2 Affordable Housirm. CCDC covenants and agrees mat during me tans of me
HUD capital advance documents all 19 Units of me Project shall constitute Affordable
Rental Housing for Very Low -Income Disabled Households, consistent with the Section 811
Program, with not less than [100%1 of the 19 units rented to disabled households with 50%
or less area median income, and thereafter all of me 19 units shall be preserver! as
Affordable Rental Housing for Very Low -Income and Low -Income disabled households, for
the balance of the affordability period. In the event that CCDC fails to comply with the time
period in which the Project must constitute Affordable Rental Housing, subject to any
required HUD approval the CITY shall be entitled to enjoin CCDC from leasing the Units in
the Project, as CCDC acknowledges that damages are not an adequate remedy at law for
suchbreach. Compliance by CCDC with the requirements of the HUD Capital Advance
Documents shall constitute compliance with the foregoing provisions of this section 8.2 and
in the event of a coni the HUD requirements shall control. In the event of any conflict
between me HOME requirements and the HUD Capital Advance requirements trot resolved
by the parties Per the foregoing precedence of documents language then the matter shall
be submitted to HUD for determination.
8.3 Occupancy Requirements All Project Units) shall be rented and occupied
by or, it vacant, available for rental and occupancy by Low -Income and Very Low -Income
Disabled Households for the term of this Agreement, in the manner set forth In Section 8.2.
CCDC shall comply with the income targeting and Affordable Housing requirements of 24
CFR 92.218.
27
8.4 Leasing the Project. Before leasing any Units. CCDC shall submd its
proposed forth of Lease for CITY's review and approval. CCDC covenants and agrees to
utilize only Leases that have been approved in advance by CITY. The CITY shall respond
to CCDC submission of a sample Lease within thirty (30) days. Should CITY not respond
within thirty (30) days of Lease submittal, CCDC shall be authorized to use Me submitted
sample Lease. Additionally, CCDC agrees not to terminate the tenancy or to refuse to
renew a Lease with a tenant of 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 than 30 days written notice served by
CCDC, or its authorized management entity, upon me tenant specifying the grounds for
such action. CCDC agrees it shall annually report to CITY the number of Leases that were
not renewed or terminated and the reason for such non -renewal or termination. During the
term of the Capital Advance Documents the CITY'S Housing and Community Development
Division Manager shall accept the form of lease required by HUD as compliance with the
requirements of this Section 8.4 and 8.5.
8.5 Lease Provisions. In addition to the requirements of 24 CFR 92.253, the
Leases are subject to the fallowing:
A. CCDC shall include in Leases for all Units, provisions which authorize
CCDC to immediately terminate the tenancy of any Household one or more of whose
members misrepresented any fact material to the Household's qualification as a Household
hereunder, Each such Lease shall also provide that the Household is subject to annual
certification, and that, if the Household's annual Income Increases above the applicable
limits for Low-Inwme or Very Low -Income Household such Households Rent may be
subject to Increase to the lesser of (1) Me amount payable by tenant under state or local
law; or (2) thirty percent (30%) of the Household's actual adjusted monthly income.
8.6 Final Management Plan. Before leasing the Rental Housing and at least sixty
(60) calendar days prior to the Project Completion Data, CCDC shall submit to CITY for
review and approval a plan for marketing and managing the Rental Housing Final
Management Plan (hereinafter retainetl to as the "Final Management Plan"). The Final
Management Plan shall address in detail how CCDC, or Its designated management entity,
plans to market the availability of Units to prospective tenants and haw CCDC plans to
certify the eligibility of potential tenants. The Final Management Plan shall also address
how CCDC and the management entity plan to manage and maintain the Rental Housing,
and shall include appropriate financial information and documentation. The Final
Management Plan shall contain detailed descriptions of polices and procedures with
respect to tenant selections and evictions. Topics to be covered in these procedures shall
Include at a minimum the 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;
• EmpbymenVlnmme verification;
28
• Occupancymsmctions;
• Restrictions on use of the premises; and
• Tenant/Landlom dispute resolution procedures.
I. 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 CCDC proposes to enter Into with Pmject tenants. CCDC shall
abide by Me terms of this Final Management Plan, approved by the CITY, in marketing,
managing and maintaining the Rental Housing. The CITY'S Housing and Community
Development Division Manager shall accept Section 811 marketing and management
plans/requirements in satisfaction of the requirements of this secgon.
8.7 Property Management. With respect to the Project and during the entire
Affordability Period, CCDC shall comply with the following:
A. Management Responsibilities. CCDC Is specifically responsible for all
management functions with respect to the Project and the Rental Housing Including,
without limitation, the selection of tenants, certification and re-cerificabim of Household
age, size and income, evictions, collection of Rents and deposits, maintenance,
landscaping, routine and i dmominary repairs, replacement of capital items and security.
The CITY shall have no responsibility for each management of the Project.
B. Management Enllty. At least ninety (90) calendar days prior to
submitting to the CITY certification that the Project Is complete, CCDC shall also submit
any proposed management contract to the CITY for prior review and approval. The CITY
shall not unreasonable delay or withhold said! approval. The CITY shall have the right to
review and approve any proposed amendments, other than renewals to the management
contract, and any new management contracts during the farm of this Agreement. Such
management commode) shall contain a provision expressing this right.
I. The CITY shall have the right to require a change in the
management agent at any time during the term of this Agreement, should the management
agent in place fail to perform satisfactorily. Any contracting of management services by
CCDC shall not relleve CCDC of its pnmary responsibilities for proper performance of
management duties. The CITY'S Housing and Community Development Division Manager
shall accept the management contract and any amendments approved by HUD in
satisfaction of the requirements of this section.
8.8 Maintenance and Security. CCDC shall during the entire Affordability Period
(i) at its own expense maintain the Rental Housing In good condition, In good repair and in
decent, safe, sanitary, habitable and tenantable living conditions for the benefit of Unit
occupants, (II) not commit or permit any waste on or to the Rental Housing, and shall
prevent and/or rectify any physical deterioration of the Rental Housing; and (iii) maintain
the Project in conformance with all applicable federal, state and local laws, ordinances,
codes and regulations, the Final Management Plan, and this Agreement.
8.9 Nondiscrimination. All 19 Affordable Rental Units shall be available for
occupancy on a continuous basis to members of Me general public who are eligible
hereunder. Consistent with the Section 811 Program, CCDC shall not illegally discriminate
29
or segregate in the development, construction, use, enjoyment, occupancy, conveyance,
lease, sublease or rental of any part of the Project or Property on the basis of race, color,
ancestry, national origin, religion, sex, age, marital status, family stat source of
incomelrentai assistance subsidy, physical or mental usability, Acquired Immune
Deficiency Syndrome (AI DSI or AIDS-related conditions (ARC), sexual orientation, or any
other arbitrary basis. CCDC shall otherwise comply with all applicable local, state and
federal laws concerning nondiscrimination in housing. Neither CCDC nor any person
claiming under or through CCDC, shall establish or permit any such practice or practices of
illegal discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sub -lessees, subtenants or vendees of any Unit or in
connection with employment of persons for the operationand management of any Unit. All
deeds, leases or contracts made or entered into by CCDC as to the Units or the Rental
Housing, or portion thereof, shall contain covenants containing nondiscrimination
consistent with this section. CCDC shall include a statement in all advertisements, notices
and signs for availability of Units for rent to the effect that CCDC is an Equal Housing
Opportunity Provider.
A. Nothing in this section is intended to require CWC to change the
character, design, use or operation of the Project; or in require CCDC to obtain licenses or
permits other than Nose requiretl for the Project.
8.10 Rent Schedule and Utility Allowances. CCDC covenants and agrees not to
charge rent for Units in excess of the rent limitation applicable under the Section 811
Program and to Affordable Housing in the Fresno, California area, as established by HUD,
and further covenants 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 92.252.
CCDC agrees to furnish to CITY a certificate setting forth the maximum monthly rentals for
Units and the monthly allowances for utilities and services to be charged during any annual
period until me expiration of the Affordability Period. CCDC shall reexamine the income of
each tenant Household living in the Units at least annually.
ARTICLE 9. INSURANCE, INDEMNITY AND BONDS.
Without waiver of limitation, the parties agree as follows regarding CCDC Insurance and
Indemnity Obligations:
9.1 Insurance Coverage. Throughout the life of this Agreement, CCDC, itself or
through its consultant(s), contractors and subcontractors shall pay for and maintain or
cause to be paid and maintained in full force and effect all poliries of insurance (or seff-
insurance upon approval by CITY'S Risk Manager) 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 hot less than -A-VII' in Best's Insurance Rating Guide.
or (2) authorized by the 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 part of the permanent construction, Including surplus
miscellaneous materials and supplies incidental to the work and such scaffolding, staging,
30
towers, fors and equipment as are not owned or rented by the CCDC, the cost of which is
not included in the 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 policy cancellation,
change or reduction of coverage. In Me event any policy Is due to 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 to the expiration date of the expiring policy(ies). Upon
issuance by the Insurer, broker, or agent of a notice of cancellation, change or reduction in
coverage, CCDC or is contractors, as the case may be, shall file with the CITY a certified
copy of the new or renewal policy and certificates for such policy.
B. Al all times hereunder CCDC shall maintain the required insurance in
full farce and effect.
C. During the ler of the HUD Caplet Advance Documents, compliance
with the insurance requirements of HUD Including all terms and conditions thereof shall be
deemed to satisfy Me insurance requirements of this Agreement, provided Me CITY and its
employees and representatives shall be named as additional insureds on any policies of
insurance.
9.2 Indemnity. CCDC(but not Lockhart Family Center, Incorporated, EXCEPT to
the extent of available residual receipts as that term is defined by HUD in the HUD
Regulatory Agreement and approved for distribution by HUD) shall indemnify, hold
harmless and defend the CITY and each of its officers, officials, employees, agents and
volunteers tram any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal Injury, death
at any time and property damage) incurred by the CITY, CCDC or any other person, and
tram any and all claims, demands and actions in law or equity (including attorney's fees
and litigation expenses), arising or alleged to have arisen directly or indirectly out of
performance of this Agreement. CCDC'a obligations under the 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, fines, penalties,
forfeitures, costs or damages caused by the active negligence or by the wilful misconduct
of the CITY or any of its officers, officials, employees, agents or volunteers.
A. If CCDC should contract all or any portion of the work to be performed
under the Agreement, CCDC shall require each contractor and subcontractor to Indemnify,
hold harmless and defend Me CITY and each of its officers, officials, employees, agents
and volunteers in accordance with the terms of the preceding paragraph.
B. This section shall survive lamination or expiration of this Agreement.
9.3 Property Insurance. Upon acquisition of the property, CCDC shall pay for
and maintain in full force and effect throughout the remaining Ile of this Agreement, a
policy(les) of property insurance acceptable to the CITY, covering the Project premises,
with limits raftective of the value of the Project premises upon issuance of the Certificate of
Completion, or substantial completion of the Project referenced in this Agreement,
including fire and EMended Comprehensive Exposure (ECE) coverage in an amount. form,
31
substance, mW quality as acceptable to the CITY's Risk Manager. The CITY shall be
added by endorsement as a loss payee thereon.
9.4 Bond Obligations. CCDC shall cause its contractor(s) to obtain, pay for and
deliver good and sufficient payment and performance bonds in a fond acceptable to HUD
from a corporate surety, admitted by the California Insurance Commissioner to do business
in the State of California. The CITY upon its request shall be provided with a copy of said
boodle).
A. The 'Perfonnance Bond" shall bs at least equal to 100% of estimated
construction costs as approved by HUD to guarantee faithful performance of the
mnstruction contract.
B. The "Payment Bond shall be at least equal l0 100% of mnstmctlon
costs approved by HUD to satisfy claims of material supplies and of mechanics and
laborers employed for this Project. The bond shall be maintained by CWC in full force and
effect until the Project is completed and unfit all claims for materials and labor are paid and
as required by the applicable provisions of Chapter 7. Title 15, Part 4, Division 3 of Me
California Civil Code.
ARTICLEI0. DEFAULT AND REMEDIES
10.1 Events of Default. CCDC shall promptly give written noticeto the CITY upon
becoming aware of any Event of Default under this Agreement. The parties agree that
each of the following shall constitute an 'Event of Default" for purposes of this Agreement
A. CCDC's use of HOME Funds for costs other Nan Eligible Costs or for
uses not permitted by the forms of this Agreement;
B. CCDC's failure to obtain and maintain the insurance coverage required
under this Agreement;
C. The failure of CCDC to make any payment according to the tenor and
effect of this Agreement and the Loan Documents, inclutling, but not limited to, any
payment of principal, interest, premiums, penalties, faces, etc., when and as Me same shall
became due and payable, whether at maturity, by acceleration, or otherwise;
D. Except as otherwise provided in this Agreement, the failure of CCDC
to punctually and properly perform any other covenant or agreement contained In this
Agreement including without kmitation the following: (1) CCDC's material deviation In the
Project work specked in the Project Description as identified in this Agreement, without the
CITY's prior written consent; (2) CCDC's use of defective or unauthorized materials or
detective workmanship in pursuit of the Pm)ect; (3) CCDC's failure to mmmenm or
complete the Proje4, as specified in this Agreement, unless delay Is permitted under
Section 7.16 of this Agreement; (4) the cessation of the Project for a period of more than 15
mnsocutive days (other than as provided at Section 7,17 of this Agreement) prior to
submitting to the CITY certification that the Project is complete; (5) any material adverse
change In the condition of CCDC or its development team, or the Project that gives the
CITY reasonable cause to believe that the Project cannot be completed by the scheduled
32
completion date according to the ferns of this Agreement; (S) CCDC's failure to remedy
any deficiencies In record keeping or failure to provide records to the CITY upon the CITY's
request; (7) CCDCa failure to comply with any federal, state or local laws or applicable
CITY restrictions governing Me Project, including but not limited to provisions of this
Agreement pertaining to equal employment opportunity, nondiscrimination and leabbasad
paint;
E. Any representation, warranty, or certificate given or furnished by or on
behalf of CCDC or its development team shall prove to be materially false as of the date of
which the representation, warranty, or certification was given, or that CCDC concealed or
failed to disclose a material fact to the CITY, provided, however, that if any representation,
warranty, or certification that proves to be materially false is due merely to CCDC's
inadvertence, CCDC shall have a thirty (30) day opportunity after written notice thereof to
cause such representation, warranty, or certification to be true and complete in every
respect;
F. CCDC and ds development team shall file, or have fled against lf, a
petition of bankruptcy, Insolvency, or similar law, state or federal, or shall file any pebtien 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 stale or federal law,
and such judgment or decree is not vacated or set aside within fourteen (14) days;
G. CCDC's failure, inability or admission in writing of its inability to pay its
debts as they become due or CCDC assignment for the benefit of creditors;
H. A receiver, trustee, or liquidator shall be appointed for CCDC or any
substantial part of CCDC's assets or properties, and not be removed within len It 0) days;
I. The failure of CCDC to cause completion of the construction and
Development of the Project on or prior to August 31, 2007 unless extended by HUD;
J. CCDC's breach of any other material condition, covenant, womanly,
promise or representation contained In this Agreement not otherwise identified within this
Section:
K. Any substantial or continuous breach by CCDC of any material
obligation owed by CCDC imposed by any other agreement with respect to the financing,
development, construction or operation of the Project, whether or not the CITY is a party to
such agreement; and
10.2 Notice f Default d Opportunity t Cum. The CITY shall give written notice
to CCDC of any Event of Default by specifying (1) the nature of the event or defciency
giving rise to the demuft, (2) the action required to cure the deficiency, if any action to cum
is possible, and (3) a date, which shall trot be less Man the lesser of any time petiod
provided in this Agreement, any time period provided for in the notice, or thirty (30)
calendar days from the data of the notice. by which such deficiency must be cured,
provided that lf the specified deficiency or default cannot reasonably be cured within the
33
specified! time, with the CITY's written consent, CCDC 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 CCDC and a failure to cure said Event of Default within the time specfed, the
CIT`Ps obligation to disburse HOME Funds shall terminate. The CIT)' may also at its
option and without notice institute any action, sand, 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 following remedies in any ober or
combination that the CITY may choose In Its sole discretion:
A. Terminate this Agreement immediately upon written notice to CCDC;
B. Bring an action in equitable relief (1) seeking specific Performance by
CCDC of the terms and conditions of this Agreement, and/or (2) enjoining, abating or
preventing any violation of said terms and conditions, andlor(3) seeking declaratory relief
and
C. Enter and take possession of me Property and any Project
improvements thereon and vest in the CITY the legal interest therein and Mereto, in any
manner provided by law for exercising power of termination and reverter. The CITY's night
W enter, possess, terminate and cause reverter/vesting in the CITY as above shall be
subject M and united by, and shall not invalidate or limit the HUD Section 811 Program
Capital Advance Documents.
D. Pursue any other remedy allowed by law or in equity or under this
Agreement.
Notwithstanding the foregoing, cutting the tern of the HUD Capital Advance
Documents City shall act terninate this Agreement or refuse to disburse HOME funds
without the prior written approval of HUD.
ARTICLE 11. GENERAL PROVISIONS.
Without waiver of limitation, the parties agree that the following 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 wining and signed by the parties hereto. The
parties acknowledge and agree that to the extent required by the HUD 811 Program,
CCDC may request an administrative amendment of this Agreement to add a HUD (811
Program) Required Provisions Rider substantially in the form attached hereto as Exhibit "H°
and Nat the Deed of Trust. Declaration of Restrictions and Me Note may also be amended
consistent with the provisions of the HUD (811 Program) Required Provisions Rider, and
that City Housing Manager shall reasonably consent thereto.
11.2 Attomey's Fees. If either party is required to commence any proceeding or
legal action to enforce or meaner any tens, covenant or condition of MIs Agreement, the
34
prevailing parry will be entitled to recover form the other party As reasonable attorney's fees
and legal expenses.
11.3 Binding on All Successors and Assign. Unlemotherwiseexpresslyprovided
In this Agreement, all the terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and their respective heirs, successors, assigns,
and legal representatives.
11.4 Counterparts. 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 party hereto will not
become effective until counlemarts hereof have been executed by all parties hereto.
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, norany act
of the CITY or of CCDC, or of any other person, shall in and by itself be deemed or
construed by any person to create any relationship of third party beneficiary, or of principal
and agent, of limited or general partnership, or of joint venture.
11.8 Discretionary Governmental Actions. Certain planning, land use, mining and
other permhs and public actions required In connection with the Project including, without
limitation, the approval of this Agreement, the environmental review and analysis under
NEPA 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, CEGA and any other applicable statutes. The CITY cannot and
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 CCDC 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.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written.
11.8 Entire Agreement. 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 part of this Agreement.
11.10 Expenses Incurred Upon Event of Default. CCDC shall reimburse the CITY
for all reasonable expenses and costs of collection and enforcement, including reasonable
attorney's fees, incurred by the CITY as a result of one or more Events of Default by CCDC
under this Agreement.
11.11 Govern no Law and Venue. Except to the extent preempted by applicable
federal law, the lawn of the State of California shall govern all aspects of this Agreement,
35
including execution, interpretation, performance, and enforcement. Venue for fling any
action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headmals. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be mad or construed to affect the
meaning or construction of any provision.
11.13 Interpretation. This Agreement In its final forth is the result of the combined
efforts of the parties. Any ambiguity will not be construed in favor or against any party, but
rather by construing the terms in accordance with their generally accepted meaning.
11.14 No Assignment or Succession. Except as may he otherwise expressly
provided by this Agreement, neither this Agreement, nor any Interest of CCDC in, under, or
to this Agreement, or the Project, may be assigned or transferred by CCDC without Me
prior written consent of the CITY, which consent shall not be unreasonabty withheld or
delayed. The parties acknowledge and agree that to Me extent required by the HUD 811
Program CCDC may request an administrative assignment to/assumption by Lockhart
Family Center, Incorporated and that City Housing Manager shall reasonably consent
thereto provided Me CITY shall not release or waive rights against CCDC and further
provided that CCDC shall at all times hereunder exercise continuing effective Project
control. Any assignment without consent is null and void. Notwithstanding the foregoing,
no CITY approval shall be required to transfer the Project to HUD or its transferee or any
transfer of the Project approved by HUD.
11.15 No Third -Party Beneficiary. No contractor, subcontractor, mechanic,
malerialman, laborer, vendor, or other person hired or retained by CCDC shall be, nor shall
any of them ba deemed to be, third -party beneficiaries of this Agreement, but each such
person shall be deemed to have agreed (a) Mat they shall look to CCDC 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
CITY under any circumstances. Except as provided by law, or as otherwise agreed to in
writing between Me CITY and such person, each such person shall be deemed to have
waived in writing all fight to seek redress from the CITY under any circumstances
whatsoever.
11.18 No Waiver. Neither failure nor delay on the part of the CITY in exercising any
right under this Agreement shall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of
any other right. No waiver of any provision of Mis Agreement or consent to any departure
by CCDC therefrom shall be effective unless the same shall be in writing, signed on behalf
of Me CITY by a duly authorized! officer thereof, and Me same shall be effective only In the
specific Instance for which itis given. No notice to or demand on CCDC in any case shall
entitle CCDC 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 fake other or further action In any
circumstances without notice or demand.
11.17 Nonreliari e. CCDC hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in no
C<Z
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 party under the terms of this
Agreement shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specRled below, or at such other addresses as may toe
specifed in writing by the parties.
If to the CITY:
If to CCDC:
City of Fresno
Planning and Development Department
Housing and Community Development Division
Aftn: Housing and Community Development Manager
2600 Fresno Street Room 3076
Fresno, CA 93721-3605
Central Community Development Center
Attention: President
211 S. Barton
Fresno, CA 93702
If to Lockhart Family Center, Incomorated:
Lockhart Family Center, Imwwrated
Ademon: President
211 S. Barron
Fresno, CA 93702
11.19 Precedence of Documents. In the event of any conflict between the hotly of
this Agreement ant any exhibit or attachment harem, unless expressly provided herein the
terms and conditions of the body of this Agreement will comml.
11.20 Recording of Documents. CCDC agrees to cooperate with the CITY and
execute any documents required. promptly upon the CITY's request, and to promptly
effectuate the recordation of this Agreement, Ne Declaration of Restrictions, the Dead of
Trost, and any other documenmAnsmlments that the CITY requires to be recorded, in the
Oficial Records of Fresno County, California, consistent with Reis Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this Agreement
shall be cumulative and in addition to those otherwise provided by law.
11.22 Severebill . The invalidity, Illegality, or un -enforceability of any one or more
of the provisions of this Agreement shall not affect the validity, legality, or enforceability of
the remaining provisions hereof or thereof.
11.23 HUD Pre-emption. Notwtthstanding anything to the contrary in this
Agreement, R any provision of this Agreement lends to contradict, modify or in any way
change the terms of the HUD 811 Program Regulatory Agreement encumbering the
Property to be entered Into between the Secretary of HUD and CCDC, the terms of the
37
Regulatory Agreement shall prevail and govern; or 1 any prevision of this Agreement In any
way limits the Secretary of the United States Department of Housing and Urban
Development ("HUD") in his administration of the HUD 811 Program or the Act, or the
regulations pursuant thereto. this Agreement shall be deemed amended so as to comply
with the Acts, Regulations and Regulatory Agreement. No other amendment to this
Agreement shall be effective without the prior written approval of the Secretary.
Notwithstanding anything herein to the contrary, if the Secretary of HUD should take We to
the Property through foreclosure, deed in lieu of foreclosure, or otherwise, all covenants,
conditions and restrictions set forth In this Agreement shall cease and terminate am be of
no further force and effect. During the tens of the HUD Capital Advance Documents any
monies owed City by CCDC shall be payable only from residual receipts as defined in the
HUD 811 Program Regulatory Agreement subject to the prior written approval of HUD.
if
/f
WE'
IN WITNESS WHEREOF, the parties have executed this Agreement in Fresno,
CalRomla, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By:1 = T� %
JON
Assistant
City Manager
(ApacF wary cetlNwta of acknowienomenp
Dale: b a
ATTEST:
REBECCA E. KLISCH
City Clerk
D uty
Dete:
CENTRAL COMMUNITY DEVELOPMENT
CENTER, a C Iffomis ocn-prortt public beneltt
wroprabon.
By:�
Donald Lockha
President
(Attach notarycer iiwteot acknowleJpmenp
Date
Attachments:
APPROVED AS TO FORM:
HILDA CANTU MONTOY
City Attorney
By: it
Dep/Assistant
Date:
LOCKHART FAMILY CENTER,
INCORPORATED, a Caliromta nonprofit public
benefit oorpmallon.
By
4 Lock art
President
(Attach rwtary cartfirale of acknoMetlpmanl)
EXHIBITA:
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT B:
PROPERTY DESCRIPTION
EXHIBIT C:
PROJECT BUDGET
EXHIBIT O:
DECLARATION OF RESTRICTIONS
EXHIBIT E:
CERTIFICATE OF COMPLETION
EXHIBIT F:
PROMISSORY NOTE
EXHIBIT G:
DEED OF TRUST
EXHIBIT H:
[EXAMPLE] HUD -REQUIRED PROVISIONS RIDER
39
CALIFOPNIA A"UPPOSE ACKNOWLEOOMENT
SUB or Common l
County y Fresno 111
so
On Jude 29, 2005 pefore me, Celeste YI.n atai�.Puhll�.
Normally appealed inn N
presently Name In me
k preee to me an pe basis of calisratlory
evidence
la be ins pemanl><I wdi n me(A Iraidga
Cft£91E"ea subscrted to tie stern instrument and
re embrancad to me Mat nef aecNW
od,Posi Y]a03030 the In Mai themed
'nFaio<bxir4° =enaetvuNO,x and That by msrygygL
areomn. waf Npt smraturalpl on meinshurmnf the pmsoi, or
the entity upon bsball of which the redee
acted. cocoons thomarumem.
l Ess nen oMklat sent.
mtoo th i a y"',ohnefw
awWas ,iawmnm..aw.a0e+e. e..ymPx.m iimum. mrn><m.nrmnaAre, u,nw..�nw..�,r
Oeacilptian at Atterchead Document
7,110 or Type of enactment Contract a7, 1th CCoc
Document Dame June 29 zoos Numcernl paaea.
Segment) Ofear en Named Bowe:
Capacity(les) ClaimeE by Sigmef
&error a Name. Jon Ruiz
. mmwdnm bay
I Corpmete onlwr — Mato
Panner— Li —Forwrrd
AflomeyinFact
trimmed
Guardian or Covarvnlp
OW.
Signer is RepmsenenaCity. of Fresco
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
Slate of CdiMmia
as
County Dl Fre
On Jim, 79. 2015 before me, Hoarsen L Samee Mnjll v Public
personally appeared Donald Lockhart x.�..�me.ns..am. +�•m•.wrnen
nawowny
n pemanery known to me
J pmaeJ to me on Me Lase 0 sa4staclory evidence
to be the amonls) whose neurals) Were suldrel
to the wiMln InaWrrem and acMowledged to me Mat
he/shalMey executed the dome in hrolernheir
autiondeel cepacitylias), and Dat by homendelr
vgnaNre(s) 0n Me Immanent Me paraoMs) or the
eMty upon behalf of which the amon(s) acted,
executed the Ins em
WITNES°S�my hand and office aril.
4P eP/TI
ilwph the urlonniXon masyrs Per mpWef by 4w p nmypore "o"A" bpmon¢ rayllgm Me consider
am oavovpwmffrieduesmmoral well mrlammam w Me four to mdMrlbcvmenl.
Description of Mfaehed Document
Too or Type of Decreed 01MM rpmeat beret C of F CCDC F Ln fah&= Fa ily P mer
D¢umwm Gme: NIA
Ceaollylles) Claimed by signers)
Ilgner'ervame. Donald Lockhart siwer8 Nene
n Individual L Individual
M Cooperate DMmr—Tuleleh President L Gpryrat@OIAwt—TJbI4}
1 P@Mer—1 Unseal Gerreral I_ Pedder—I. LIM@ad 0Groeral
J Atlarrey In Feet TW „e rooaF i Aroma
m Fetl
J
Trustee M U Trustee d@�
1 GuaMen or L nssrvatw p Geutllen or Gon¢wvalw
J Utwr: U GMer'.
Signer is PeproAdong Central II ggrer Is Pepresenling
Cm®uni[v Development Cent
o
d Lockhart Family Cecer. Inc
EXHIBITA: PROJECT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The project will acquire, develop and construct a twenty (20) unit (including a manager's unit) affordable
rental housing project restricted to very low-income disabled households for the du2Gon of Me HUD
capital advance documents and thereafter restricted as HOME program rental housing afpMabn W wry
ow -Income and low-income families. Primary funding for brbW acquisition and development is under
HUD's Supportive Housing for Persons with Disabilities under Section 811 of the. National Affordable
Housing Act of 1990 (P,L 101-(525) as amended by the Housing and Community Development Act of
1992 P.L. 102-550), Ma Rescission Act (P.L. 10419) and the American Homeownership and
Opportunity Act of 2000 (P. L. 106-569), collectively hereinafter referred to as the ('Act'), program
regulations set out at 24 CFR Part 891 at seq. and related HUD capital advance documents. Secondary
funding. for project acquisition and development includes City's HOME Program CHDO Funding.
The project will have 16 one bedroom units and 3 two bedroom units restricted as affordable rental
housing. An additional two bedroom unit will be reserved as a manager's unit. Al renters dump the
term of the HUD capital advance tlocuments will be verylow-Income disabled parsons. All renters
subsequent b the term of the HUD capital advance documents will be very low-income and low-income
households eligible under the HOME Program. The total (aggregate) affordability period shall be fifty -
Five (55) years.
During the affordability period all tenants will pay 30% of their monthly Income towards rent.
Project amenities shall include: a community room, laundry room, budge and a patio area.
The primary goal of the project is to promote to healHt and safety of all residents. All units will be
designed to accommodate the special accessibility needs of individuals with disabilities and maximize
vishability for all residents and Nstors.
CWC will construct a minimum of 1 unit to be fully accessible to the physically disabled; and a minimum
of 1 units will be fully accessible to the visually and hearing impelred.
Each one -bedroom unit will his approximately 540 total square feet in area. Each two-bedroom unit will
be approximately 800 total square feet in area. Each unit shell contain a kitchen with a full-size tango
and refrigerator, sink and sufficient cabinet antl counter space. Adjustable counteMps and removable
base cabinets will allow for lowering of countetops to wheelchair accessible height. An easily
accessible livingldlning area will also be constructed in each unit Additionally, each unit bathroom and
bedroom will be provided with an emergency call Wllcord system for the safety of residents.
I. PROJECT SCHEDULE
ASK
COMPLETION DAT
vats mens and Completion of Final Working DrawingsDecember
31 2005
omplaton of Plan Check, Contractor Bidding, Firm
cuments and at Tax Exam tons:
March 31, 2006
UD Initial Cloein :
Jul 31, 2006
-ommence Construction:
Au ust 15, 2006
m date Construction/Request Certificate of Completon:
August 31, 20W
Or as exlentled b HUD
Page 1 of Exhibit A
EXHIBITS: PROPERTY DESCRIPTION
The Property is located at 4830 E. Laurel Avenue, Fresno, CA (APN: 463-120-10), as
described below:
I�iH_1\ ]�YN31�iPP
The east 396 feet of the south 165 feet of the North 314 of the South 112 of Lot 48 of the
Easterby Rancho, in the City of Fresno, County of Fresno, State of California, according to
the map thereof recorded in Book 2, Page 6 of Plats, in the Office ofihe County Recorder
of said County. Together with the right of way for ingress and egress over and across the
North 30 feet of the South 165 feet of the North 3/4 of the South 1/2 of said lot 48 of the
Easterby Rancho, excepting therefrom the east 396 feet for the benefit of and as an
appurtenance to the property hereby conveyed.
Page 1 of Exhibft 8
EXHIBIT C: PROJECT BUDGET
LauM Hammes -cambial Celnmunl ba"I"Menl CElaer
TOTAL HUD Me C"w MOC TDTa
I.IANOCPsiS:
PUNum PM1lal
!320.00
$0
u00.
53$.80
6320.00
CbaIN C111 e
$0
$o
0 fo
EO
o
$ s00
bwelrel(c)
4.Rm
S0
65000
$0
Es
T07ALLANOCMTS
EO
80
$20.00
!39,00
$0
$0
$0
TOTu LANDC)
iOTTLLPNO COSTS
}523IXtl
0
f259.LG0
M
00,0$
!32300
2 FEESIPERMITs&STUDIES
&tlWYp femeMPamN lal
53500
$21,524
N3<R
SO
535000
STAN
$7.00
S9
SO
$7.000
En earnW OvmeMlelbnrtoac
Szabo
$2000
0
SO
5200
n.6 E�gmeOrO Faea
DaWi lbl
$115000
SICOM
0
$0
5115.000
Reembuea11ee(e)
$15.IX0
SI500
$0
SO
$15000
61mm[N:
.11NN
EI.' M
EO
w
EIMON
TOTALFEESPERMTS&STWIES
SL4,OW
IME24
$13476
w
5174.0.00
3. DIRECT CONSTRUCTION COSTS:
Reek00WICOmmama Uma(al
31 e57.7m
s1,I5570
$0
$0
$1.157,750
FaileWOO)
0
$0
$0
SO
$0
PVIIe MnWn+a^enb(cl
Si Now
515000
SO
SO
$151
LamuptrplmwOo^snlem (0)
siWom
0
$ISDOW
sA
SIMOO
Offsitelmpmwmno(0)
Swam
SO
$0
NOOD)
$SO,COD
GenmlCmlAma(0
ITELL0
53MON
SO
SO
53MOOD
b,NapmmIMOmIa
$51,275
531.275
320240
$0
$51275
SUWIXy
51,884,025
51,$61.025
$I7DOX
YSO.A'tl
E1.O4025
ebuaO^C OnAmLY(b)
_ Ei0,00
$100,03
$100.000
SO
$2w,000
sabeAb
42.04025
SI.M.025
$2700.00
w000
51.004.025
CaMaG0R 4YNW8 plMe(O
$188,275
$109.95
$p
SO
1165275
TOTAL DIRECT CONSTRUCTION COSTS
5226132
Ef.➢52bp
WOW
85000
E22T230
a. nOIRECT CONSTRUCTION COSTS
Dewlupe,Fea
$141,524
W5..624
$T6,03
35
$141.524
Doww',,,t meu0m$(S)
571.000
$ICON
$0
$3703
$72.00
wIlm IMA, qry MII be 1,Aud M Am be
BUNG nRLalLsbAlTlm Moa (a)
$25.1100
$0
MOSS
$1074
32500
Raal ESWITau IN
55,00
35,000
$0
$0
0.00
Lagar-OgammOmlm
$2500
SO.
5250
50
52500
LASe NUDOOelgSlb).
$22,500
311.152
$10748
m
MMO
® He" UI
SM250
p
526259
m
$26250
CMneIe MlNmum Cagtlllm¢Mem
510,00
SO
$10,0
$0
$10,00
TOTALINDIRECT CONSWUCTpN DOSIS
5303714
512276
3I41,624
S3&074
Ew?m
5. RENTLP CMTS
MMO,gP0ro4allp Egew(.)
$1 NO)
SO
SO
$1.800
SI.03
COmmmAm Fue6IhrgbO)
$240030
sm.00
f0
!20.000
TOTAL REM-LTAVARYETINGCOSTS
$2f, O0
EO
$ 5
Yf.4TJ
521,0.24
6. FR ANCING COSTS
PtleadRwlN,q lCwrebAmm.0
510.0)
b
S10,LCO
$10.00
TOTAL FINANCING COSTS
51.0.119
IO
51000
EO
510,0.32
T. SUBTOTAL ME LOPWHT COSTS
0,781.574
$2.230,10
S4SIA0
Ee.9T<
52.]81074
T07ALLANOCMTS
3325.00
30
$20.00
!39,00
$32300.
TOTRLDELTLW50VTCMTS
53,10474
AMIM
!2411.08
$123,274
!;104074
Pape 1 of Exhibit C
EXHIBIT D: DECLARATION OF RESTRICTIONS
RRecortled at Na Request of
tl When Recorded RaNm to
City of Fresno
Planning and Development Department
Housing and Community Development Drvision
Aaemlom Housing Manager
2000 Fresno Street, Room 376
Fresno. CA 93721-3905
➢n 6wmmn Ft mwnq Aom IM pY^mnr or a rewro�ry tae r�
ecmJeiry wM Gpwrrvrxnl CM Sxfwn¢ 6 r0] aMV ]93
APN: 463-120-10
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration'), is executed as of Has
day of , 200_, by (CENTRAL COMMUNITY DEVELOPMENT CENTER, a
California nonprofit public benefit corporation and/or LOCKHART FAMILY CENTER,
INCORPORATED,. a California nonprofit public benefit corporation, (insert as appropriate)]
("Declarant'), in favor of the CITY OF FRESNO, a Calffomia municipal corporation
("CITY").
WHEREAS. Declarant is the owner of the real estate in the county of Fresrlo, state
of California, which Is more particularly described in EXHIBIT "A', aff tech d! hecto and
made a part hereof, including the Improvements Menson (the "Properly"), and by its
subscription below consents to Me recordation of this Declaration; and
WHEREAS, pursuant to and Win primary funding under HUD's Supportive Housing
for Persons with Disabilities Program under Section 811 of the National Affordable Housing
Act of 1990 (P.L. 101 -625) as amended by the Housing and Community Development Act
of 1992 (P.L. 102-550), the Rescission Act (P.L. 10419) and the American
Homeownership and Opportunity Act of 2000 (P. L. 108-589), colledlvely hereinafter
referred to as the ('Act), program regulations set out at 24 GFR Part 891 m seq., and
related HUD capital advance documents (collectively 'Section 811 Program'), Declarant is
developing upon the Property a 20 unit (including a manager's unit) affordable rental
housing project for disabled households ('Projecl"); and
WHEREAS, Declarant and CITY have enlensd into a certain HOME Investment
Partnerships Program CHDO Agreement dated 1 , 2005] ("HOME
Agreement"), whereby CITY provides HOME Program CHDO Prejecl funding variously In
consideration of certain U.S. HUD HOME Program (24 CFR 92.252; 24 CFR
92.504(c)(3)(vii)) affordability requirements, covenants and restrictions upon the Project
and Property, which affordability restrictions must be enforceable for a fdiy-five (55) year
affordability period; and
WHEREAS, these restrictions are intended to bind Declarent, and all purchasers of
the Property antl their successors.
Page 1 of Exhibit D
NOW THEREFORE, Declarant declares that the Property Is held and will be held,
transferred, encumbered. used, sok, conveyed and occupied subject to the covenants,
restrictions, and limitations set forth in this Declaration, all of which am declared and
agreed to be In furtherance of the CCDC [Section 811 Program Disabled Rental Housing]
Project, the CITYs general, consolidated and annual action plans and housing element(s)
therain and HOME Program requirements. All of the restrictions, covenants and limitations
will run with the land and will be binding on all parties having or acquiring any right, file or
Interest in the Property or any part thereof, will inure to the benefit of the CITY, and will be
enforceable by h. Any purchaser under a contract of sale or other transferee of an interest
covering any right, life or interest in any pad of the Property, by accepting a deed or a
contract of sale or agreement of purchase, accepts the document subject lo, and agrees to
be bound by, any and all restrictions, covenant, and Iimilabons set forth in this Declaration
for the period of flRy-five (55) years running from and after recordation of CITY's Certificate
of Completion construing the Affordability Period.
1. Declarations. Declarant hereby declares that the Property is and shall be
subject to Me covenants and restrictions hereinafter set font, all of which are declared to
be in furtherance of the Property, CCDC [Section 811 Program Disabled Rental Housing]
Project, the HOME Agreement, the Ctl general, consolidated and annual action plans
and housing elements) therein including HOME Program affordability requirements,
covenants and restrictions at 24 CFR 92.252; 24 CFR 92.504 (c) (3) (vii)), and are
established and agreed upon for the purpose of enhancing and protecting the value of the
Property and in consideration Me HOME Agreement and the above recitals. 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 the Property shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are for the benefit and
protection of the CITY and shall run with this Property and be binding on any future ownees
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 successors) on title covenants and agrees
Nal from the date of remrdation of CITY'6 Certificate of Completion until the expiration of
the fifty-five (55) year Affordability Period It shall cause the 19 Projec Units funded under
the HOME Agreement to be used as lousing affordable to low and very low -Income
families. During the term of the Section 811 Program capital advance documents not less
than [100%) of the 19 Units shall be rented! to disabled households with Incomes at 50%
AMI or below, as provided for In the HOME Agreement. Compliance by CCDC with the
requirements of the HUD Capital Advance Documents shall constitute compliance with the
foregoing provisions of this subsection 2a and in the event of a conflict the HUD Capital
Advance requirements shall control. In the event of any conflict between the HOME
requirements and the HUD Capital Advance requirements not resolved per the foregoing
precedence of documents language then the matter shall be submitted to HUD for
determination. Subsequent to the term of the Section 811 capital advance documents antl
for the duration of the total 55 -year affordability period, CCDC shall cause 100% of the 19
project units to be ranted to low- and very low -Income disabled households.
Page 2 of Exhibft D
Declarant further agrees to file a recordable document setting forth the project
Completion Date and the Affordability Period as and when determined by the CITY. Unless
otherwise provided in the HOME Agreement, the tens affordable rental housing shall
Include without IlmBation compliance with the following requirements:
1. Nondiscrimination. Consistent with the Section 811 Program
and the AIX, 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, age,
national origin, al or disability 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 the selection, location, number, use or occupancy of owners or vendees of the Property.
It- Principal Residence. Each of the Units constricting the Project
upon the Property shall be leased only to natural persons, who shall occupy such as a
principal residence.
iii. Income Requirements. During the term of the Section 811
capital advance documents each of the 19 Units constRming Affordable Rental Housing
upon Me Property may be teased only to disabled households whose annual household
income at the time of initial occupancy is not greater than fifty percent (50%) of the most
recent annual median income calculatetl and published by HUD for the Fresno
Metropolitan Statistical Area applicable M such household's size (applicable to net less
than [100%] of the 19 units), and at an affordable price consistent with the applicable
Section 811 Program and HOME Program regulations. Subsequent to the term of the
Section 811 capital advance documents, and for the duration of Me total 55 year
affordability period, each of the 19 Units constituting Affordable Rental Housing upon the
Property maybe leased only to households whose annual household Income at the time of
initial occupancy is net greater than eighty pement (80%) of the most recent annual median
income calculated and published by HUD for the Fresno Metropolitan Statistical Area
applicable to such household's size.
M llunctive Relief and Recapture. Should any of the 19 Units
constituting Affordable Rental Housing upon Me Property not continue to be, at the time of
initial occupancy, the principal residence of Household that qualities as a low-income or
very low-income Household as provided herein, such Un8(s) shall be made available for
subsequent lease only to Households that quality as a low-income or very low -Income for
use as the Household's principal residence as provided hereto.
In. Item (a) above is hereinafter referred to as the Covenant and
Restriction.
C. Compliance with the terms of the HUD Section 811 capital advance
documents (defined as the HUD Note, Deed of Trost Use Agreement, Regulatory
Agreement, Capital Advance Agreement and Project Rental Assistance Corned) during
the term hereof shall constitute compliance with the Covenants and Restrictions of this
Declaration, and in the event of a conflict the HUD Capital Advance Documents shall
central. Any conflict between the HUD Capital Advance Documents and the HOME
requirements not resolved! per the foregoing Precedence of documents language shall be
submitted to HUD for determination.
Page 3 of Exhibit D
3. Enforcement of Restrictions. Without waiver or linandion, the CITY shall be
entitled to Injunctive or other equitable relief against any violation or attempted violation 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 the Property
and other persons claiming by, through. or under them shall be subject to and shall comply
with the Covenant and Resection. The acceptance of a deed of conveyance to thus
Property shall constitute an agreement that the Covenant and Restriction, as such may be
amended or supplemented from time to 6me, is accepted and ratified by such future
owners, tenant or occupant, and such Covenant and Restriction shall be a covenant
running with the land and shall bintl any person having at any time any interest or estate in
the Property, all as though such Covenant and Resection was recited and stipulated at
length in each and every deed, conveyance, mortgage or lease thereof. Provided,
however, H this Declaration has been subordinated to a Dead of Trust and the Property Is
transferred by foreclosure to the holder of the Dead of Trust or an assignee of such holder.
who is not Declarant or an affiliate of Declarant, then this Declaration shall be of no further
force and effect except that if the Property is subsequently transferred to any party prior
chargeable with this Declaration, then the Declaration shall revive. This Declaration is
subject and subordinate to the HUD Section 811 Program Deed of Trust in favor of HUD
and to the related Regulatory Agreement and to the Use Agreement each between the
Declarant and HUD.
5. Benefit. This Declaration shall run with and bind the Property for a tens
commencing on the date this Declaration is recorded In the Office of the Recorder of the
county Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of CITY antl/or any other person emitted to enforce
this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time W 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 Resection
required by this Declaration, as may be amendetl from time to time, the prevailing party
shall be entitled to recover its respective costs and reasonable akomeys fees incurred in
wnneclion with such default or failure.
7. Waiver. Neither Declarant her any future owner of the Property may exempt
Itself farm liability for failure to comply with the Covenant and Restriction required in this
Declaration.
e. Severability. The invalidity of Ne Covenant and Restriction or any other
covenant, reelection, condition, limitation, or other provision of this Declaration shall not
impair or affect In any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent pennRted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the context cleanly requires the contrary, be deemed to refer to and include all
genders. Words In the singular shall Include and refer to the plural, and vice versa, as
appropriate.
Page 4 of Exhibit 0
10. Interpretation. The captions and false of the various articles, sections,
subsections, paragraphs, and subparagraphs "is 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.
11. Amendment. No amendment or modification of this Declaration shall be
Permiged without the poor written consent of the CrrY.
Q. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of County of Fresno, State of California.
13. Capitalized Timis All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the HOME
Agreement.
14. Headings The headings of the articles, sections, and Paragraphs used in
this Declaration are for convenience only and shall not be read or construed to affect the
meaning or construction of any prevision.
15. HUD Pre-emption. Notwithstanding anything to the contrary in this
Agreement, H any provision of this Agreement tends to contradict, modify or in any way
change the terms of the HUD Section 811 Regulatory Agreement encumbering the
Property to be entered into between Me Secretary of HUD and CCDC, the terms of the
Regulatory Agreement shall prevail and govern; or If any prevision of this Agreement in any
way limits the Secretary of the United States Department of Housing and Urban
Development ("HUD') in his administration of the Section 811 Program and/or the Act or
the regulations pursuant thereto, this Agreement shall be deemed amended so as to
comply with the Acts, regulations and Regulatory Agreement. No other amendment to this
Agreement shall be effective without the poor wmaten approval of the Secretary.
Notwdhstandiig anything herein to the contrary, d the Secretary of HUD should take We to
the Property through foreclosure, dead in lieu of foreclosure, or otherwise, all covenants,
conditions and restrictions set forth in this Agreement shall cease and terminate and be of
no further force and effect. During the term of the HUD Section 811 capital advance
documents any monies owed City by CCDC shall be payable only from residuat receipts as
defined in the HUD Section 811 Regulatory Agreement subject to the poor written approval
of HUD.
Page 5 of Exhibit D
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions
on the data first written above.
DECLARANT
By: Dale:
Name:
The:
lumcn nwn cerun�e a xsnooteasmem 1
(CENTRAL COMMUNITY DEVELOPMENT CENTER, a California nonprofit public benefit
corporation and/or Lockhart Family Center, Incomorated] the owner of record of the
Property, consents to recording this Declaration of Restrictions against the Property
described herein (add if non-omer is Declarant).
By. Date:
Name:
Title;
(nnach notery raNlmele or aanoweagmend
Page 6 of Exhibit D
EXHIBIT A (To Declaration of Restrictions)
The Property is located at 4830 E. Laurel Avenue, Fresno, CA (APN: 483-120-10), as
described below:
LEGAL DESCRIPTION
The east 396 feet of the south 165 feet of the North 3/4 of the South 1/2 of Lot 40 of the
Easterby Rancho, in the City of Fresno, County of Fresno, State of California, according to
the map thereof recorded in Book 2, Page 6 of Plats, in the Once of the County Recorder
of said County. Together with the right of way for Ingress and egress over and across the
North 30 feet of the South 165 feet of the North 3/4 of the South 1/2 of said lot 48 of the
Fasterby Rancho, excepting therefrom the east 396 feet for the benefit of and as an
appurtenance to the property hereby conveyed.
Page 7 of Fxhibh D
EXHIBIT E: CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
oepartmenl of Fanning and Development
Housing and Community Development D"Ion
2600 Fresno Steel, Room 3076
Fresno. CA 93]21-3605
Abortion : Housing Manager
(SPACE ABOVE THIS LINE FOR RECOaOE Rs USE)
This CERTIFICATE OF COMPLETION Is recorded at the request and for the benefit of the
CM of Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Sei 6103.
APN: 4O&12010
City of Fresno
By:
Director, Planning and Development
Department
Page i of Exhibit E
Certificate of Completion
APN: 463-120-10
'si.S%M
A. By a HOME Investment Partnerships Program CHDO Agreement dated
2005, ('HOME Agreement") between the City of Fresno, a municipal corporation ("CITY"),
and [CENTRAL COMMUNITY DEVELOPMENT CENTER, a California non-profit corporation,
("CCDC") and/or Lockhart Family Center, Incorporated a Calffomia non-profit public benefit
corporation (insert as appropriate) incorporated herein, CITY provides HOME Program
CHDO Funding for CCDC's 20 unit (including a manager's unit) affordable rental housing
project developed upon the premises legally described In EXHIBIT B attached to the HOME
Agreement with primary funding under HUD's Supportive Housing for Parsons with
Disabilities Program under Section 811 of the National Affordable Housing Act of 1990 (P. L.
101 E25) as amended by the Housing and Community Development Ad of 1992 (P.L. 102-
550), the Rescission Act (P.L. 104-19) and the American Homeownership and Opportunity
Act of 2000 (P.L. 106-569), collegively hereinafter referred to as the ("Act"), program
regulations set out at 24 CFR Pan B91 at seq. and related HUD capital advance documents
("Project").
B. The HOME Agreement or a memorandum of it was recorded on
, 2005 as Instrument No. in the Official Records of Fresno County, California.
C. Under the terms of the HOME Agreement, after CCDC completes the Project, CCDC
may ask CITY to record a Certificate of Completion.
0. CCDC has asked CITY to furnish CCDC with a recordable Certificate of Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive evidence that
CCDC has completed construction of the Project as set forth In the HOME Agreement.
NOW THEREFORE:
1. CITY certmes that CCDC has completed construction of the Project in full
compliance with the HOME Agreement.
2. This Certificate of Completion is not evidence of CCDC 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 Project.
3. This Certificate of Completion is not a notice of completion as referred to in
California Civil Code Section 3093.
Page 2 of Exhibit E
4. Nothing contained herein modifies any provision of the HOME Agreement.
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of , 200_.
CITY OF FRESNO
Date:
Planning and Development Department
W ua �ury nmrxeu n.anwaeo-nanl
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
By. By:
Deputy AssistantlDeputy
Date: Date:
[CENTRAL COMMUNITY DEVELOPMENT CENTER, a California nonprofit public benefit
corporation and/or Locirhart Family Center, Incorporated, a California rronproft public beneft
corporation (insert as appropriate) the owner of record of the Property, consents to recording
this Declaration of Restrictions against the Property described herein (add If non -owner is
requesting party).
Central Community Development Center
By: Date:
Name:
Title:
tAnsch mrary carfoara or eGnm menc
Page 3 of Exhibit E
EXHIBIT F: RESIDUAL RECEIPTS PROMISSORY NOTE SECURED BY DEED OF TRUST
RESIDUAL RECEIPTS PROMISSORY NOTE SECURED BY DEED OF TRUST
Loan Amount: [$750,000]
Date:
( ], 2005
Property Address: 4830 E. Laurel Ave.,
Fresno,
CA
APN: 463-120-10
Protect No. L_—]
For value received, the undersigned maker promises to pay to the City of Fresno (payee) the
principal sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) or so much thereof as may be
advanced, at 2600 Fresno Street, Room 3076, Fresno, California, with interest on the outstanding
balance at the rate of -0- (-0-%) per annum, which shall hot be compounder, subject to the following
conditions and limitations:
(1) Principal on this note shall be due and payable on the maturity data of the note and deed of
trust held by the Secretary of Housing and Urban Development ("Secretary') financing HUD Project
No. L__—], provided that if Me aforesaid note Is prepaid in full, the holder of this note, at its
option and without notice, may declare the whole principal sum or any balance thereof, immediately
due and payable. Notwithstanding the foregoing N the maker fully complies with Me terms of the
HOME Agreement between the Maker and the Payee then all principal due shall be forgiven, this
Note cancelled and the Dead of Trust securing same reconveyed.
(2) Prepayments to principal and interest on this note may be made only from the residual receipts
fund, as that term is defined in the HUD Section 811 Program Regulatory Agreement between the
maker and the Secretary executed in connection with the above project, and only after obtaining the
Prior written approval of the Secretary. Such prepayments may be made only after final closing on
the note by the Secretary and after the end of a semiannual or an annual fiscal period.
(3) This note is non-negotiable and may not be sold, transferred, assigned, or pledged by the
payee except with the prior written approval of the Secretary.
(4) This note is made and delivered in payment of costs not included in Me HUD Section 811
Program Capital Advance.
(5) This Note, and any extensions or renewals hereof, is secured by a Dead of Trust and
Assignment of Rents on real estate In Fresno County, California, that provides for acceleration upon
stated events subject to HUD approval, dated as of the same date as this Note, and executed in favor
of and delivered to the payee and Insured by a tale company as a not worse than 2nd position lien on
the Property.
Page 1 of Exhibit F
(6) See attached RIDER for additional provisions.
Presentation. demand and notice of demand non-payment and pretest of this note are waived.
Executed this day of ,20_7
Attest:
CENTRAL COMMUNITY DEVELOPMENT CENTER, a California nonprofit public benefit corporation
(or as appropriate)
LOCKHART FAMILY CENTER, INCORPORATED, a California nonprofit public benefit corporation.
By.
Title:
The payee hereby certifies that this Is a bona fide transaction and that R fully understands all the
requirements of this note, and that no prepayment of principal or interest shall be accepted without
evidence that the Secretary has authorized such prepayment. If an unauthorized prepayment Is
accepted the funds shall be held by the payee in trust for the project.
CITY OF FRESNO
By:
-Not to exceed the highest permissible rate established by the Secretary.
Page 2 of Exhibit F
RIDER TO RESIDUAL RECEIPTS NOTE
Project No. [—I
1. Time Is of the essence. It will be a default under this note if maker defaults under the HOME
Agreement, defaults under any other Loan Documents, or if maker falls to pay when due any sum
payable under this note. In the event of a default by Borrower, the Borrower shall pay a late charge
equal to the lesser of 2% of any outstanding payment or the maximum amount allowed by law. 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 Me balance of the indebtedness, then, at the option of
payee, this note or any rotes or other instruments that may be taken in renewal or extension of all or
any part of the indebtedness will Immediately become due without any further presentment, demand,
protest, or noticeof any kind, provided payment on Me note shall not be accelerated wRhoul Me prior
written approval of HUD and any late charges and costs referred to in paragraphs 2 and 4 hereof
shall be payable only frem residual receipts as defined in the HUD Section 811 Program Regulatory
Agreement between HUD and the maker and subject to the prior written approval of HUD.
2. The indebtedness evidenced by this note may, at the option of the maker, be prepaid in whole
or In part without penalty. Payee will apply all the prepayments first to the payment of any costs,
fees, late charges, or other charges due under this note or under any of the other Loan Documents
antl then to the principal balance.
3. All Loan payments are payable in lawful money of the United States of America at any place
that payee or the legal holders of this note may. from time to time, in writing designate, and in the
absence of that designation.
4. Maker agrees to pay all costs including, without limitation, attorney fees, incurred by the holder
of this note in enforcing payment, whether or not suit Is filed, and including, without limitation, all
costs, attorney fees, and expenses incurred by the holder of this note In connection with any
bankruptcy, reorganization, arrangement, or other similar proceedings involving the undersigned that
in any way affects the exercise by the holder of this rote of Its rights and remedies under this note.
All costs incurred by the holder of this note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included In those costs and expenses to be paid by maker.
Maker will pay to payee all attorney fees and other casts referred to in Nis paragraph on demand.
5. Any notice, demand, or request relating to any matter sat forth herein shall be in writing and
shall be given as provided in the HOME Agreement.
8 No delay or omission of payee 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. Payee may walve any of the conditions in this note and no waiver will
be deamed to be a waiver of payee'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.
7. Payee may transfer this note and deliver to the transferee all or any part of the Property then
held by it as security under this note, and the transferee will then become vested with all the powers
and rights given to payee; and payee will than be forever relieved from any liability or responsibility in
Page 3 of Exhibit F
the matter, but payee will retain all rights and powers given by this rote with respect to Property rot
transferred.
8. 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 nota will be binding on and
Inure to the benefit of maker, payee, and their respective successors and assigns.
9. This note is made and delivered in payment of costs not included in the HUD capital advance
for the project described in the HOME Agreement. In the event of any conflict between this RIDER
and HUD Section 811 Program capital advance documents, Ne HUD capital advance documents
shall control. In the event of a conflict between this Rider and the HOME Agreement, the Section 811
program capital advance documents shall control over this Ricer; any dispute cot resolved per the
foregoing precedence of documents language shall be resolved by the Secretary of HUD.
10. Maker agrees that this note will be deemed to have been made under and will be governed by
the laws of Calffomia in all respects, including matters of construction, validity, and performance, and
that none of its terms or provisions may be waived altered modified, or amended except as payee
may consent to in a writing duly signed by payee or its authorizetl agents and approved by the
Secretary of HUD.
Executed this day of 20_
Attest:
Central Community Development Center, a California nonprofit public benefit comeratlon
(or as appropriate)
LOCKHART FAMILY CENTER, INCORPORATED, a California nonprofit public benefit corporation.
CITY OF FRESNO
By:
DO NOT DESTROY THIS NOTE: When paid it must be surrendered to the Trustee, together with
the Deed of Trust securing same for cancellation, before reconveyance will be made.
Page 4 of Exhibit F
EXHIBIT G: SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
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 93721-3605
Attention: Housing Manager
This SHORT FORM DEED OF TRUST is recorded at the request and for the bent t of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
CITY OF FRESNO
By
Title:
Date:
TITLE ORDER NO. [--] ESCROW NO. [—]
APN NO. [—]
This Deed of Trust, is made this day of between [CENTRAL
COMMUNITY DEVELOPMENT CENTER, a California nonprofit public benefit corporation and/or
Lockhart Family Center, Incorporated, a California nonprofit public benefit coporation, herein called
Tmstor, whose address is 221 S. Barton, Fresno, CA 93702, First American Tkle Company, herein
called! Trustee, whose address Is 7625 N. Palm Ave, Sufte 101, Fresno, CA 93711, and THE CITY
OF FRESNO, a municipal corporation, herein called Beneficiary, whose address is 2600 Fresno
Street, Room 3076, Fresno, CA 93721-3605.
Wdnessoth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE IN
TRUST, WITH POWER OF SALE, Mat property in Fresno County, California, describetl as:
SEE EXHIBIT 'A' ATTACHED HERETO.
Page 1 of Exhibit G
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power
and authority given to and conferred upon Beneficiary by paragraph (10) of the provisions
incorporated herein by reference to collect and apply such rents, Issues and profds.
Forthe Purpose of Securing. 1. Performance of the certain HOME Investment Partnerships Program
CHOO Agreement dated I I, 2005. ('HOME Agreement') between the Trustor and the
Beneficiary and each agreement of Torstar incorporated by reference or contained herein. 2.
Payment of me indebtedness evidenced by one promissory note of even dale herewdh, and any
extension or renewal thereof, in me principal sum of $750,000.00 executed by Trustor in favor of
Beneficiary or older. 3. Payment of such further sums as the then record owner of said property may
borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so secured.
To Protect the Security of This Dead of Trust, Trustor Agrees: By the execution and delivery of this
Deed of Trust and the rate secured hereby, that provisions (1) to (14), inclusive, of the fictitious deed
of bust recorded October 23, 1961, in the book and at the page of Official Records in the office of the
county recorder of the county where said property is located, noted below opposite the name of such
county. vie.:
COUNTY, DATE BOOK PAGE COUNTY
IMPERIAL 911WM1267 574
ORANGE RAW8 8714 147
SAN BERNARDINO Raise 7090 14
SANTA BARBARA 918168 2244 922
KERN 9l&68 41M 363
VENTURA 918169 3363 94
SAN LUIS OBISPO 9161681499 429
LOS ANGELES 9I28I58T5910 842
RIVERSIDE 9110168 ACCOUNT = 87097 YEAR 1968
SAN DIEGO 9110168 SERIES 9 BOOK 1988 PAGE 155020
(which previsions, identical in all counties, are printed on the reverse hereof) hereby are adopted and
Incorporated herein and made a part herself as fully as though set forth herein at length; that he will
observe and perform said provisions', and that the references to property, obligations, and parties in
saitl provisions shall be construed to refer to the property, obligations, and partles set forth in this
Deed of Trust.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale
hereunder be mailed to him at his address hereinbefore set forth.
Central Community Development Center, a California nonprofit public benefit corporation
1017
(or as appropriate)
LOCKHART FAMILY CENTER, INCORPORATED, a California nonprofit public benefit corporation.
By
Name
Page 2 of Exhibit G
757x.: .:..
The fallowing is a copy of provisions (1) to (14), inclusive, of the fictitious deed of host, recorded in
each county in California. as stated in the foregoing Dead of Trust and incorporated by reference in
said Dead of Trust as being a part thereof as If set forth at length therein
To Protect the Security of This Dead of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair, not to reprove or demolish any building
thereon, to complete or restore promptly and in good and workmanlike manner any building which
may be constructed, damaged or destroyed thereon and to pay when due all claims for labor
performed and maleness furnished therefor, to comply with all laws affecting said property or requiting
any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to
commit, suffer or permit any act upon said property In violations of law to cultivate, irrigate, fertilize,
fumigate, prune and do all other acts which from the character or use of mid property may be
reasonably necessary, the specific enumerations herein not excluding the general.
(2) To provide maintain and deliver fo Beneficiary fire Insurance satisfactory to and with loss payable
to Beneficiary. The amount collacmd under any fire or other insurance policy maybe applied by
Beneficiary upon indebtedness secured hereby and in such order as Beneficiary may determine, or at
option of Beneficiary the entire amount an collected or any pan thereof may be released to Trustor.
Such application or release shall not cure or walve any default or notice of default hereunder or
Invalidate any act done pursuant to such notion.
(3) To appear In and defend any action or proceeding purporting fo affect the security hereof or the
rights or powers of Beneficiary or Trustee, and to pay all costs and expenses including cost of
evidence of title and attorney's fees in a reasonable sum, In any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed
(4) To pay at least ten days before delinquency all taxes and assessments affecting said property.
including assessments on appurtenant water stock, when due, all encumbrances, charges and liens,
with interest, on said properly or any part thereof, which appear to be prior or superior hereto, all
costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to do any ad as
herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or
demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the
same in such manner and fo such extent as either may deem necessary to protect the security hereof
Beneficiary or Trustee being authorized to enter upon and property for such purposes; appear in and
defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee, pay, purchase, contest or compromise any encumbrance, charge or lien which
In the judgment of either appears to he prior or superior hereto, and in exercising any such powers,
pay necessary expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
Interest tram dale of expenditure at the anrounl allowed by law in effect at the date hereof, and to pay
for any statement provided for by law in effect at the date hereof regarding the obligation secured
hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the
time when said statement is demanded.
(6) That any aware of damages in connedion with any condemnation for public use of or Injury to said
property or any part thereof is hereby assigned and shall be paid fo Beneficiary who may apply or
Page 3 of Exhibit G
release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other Insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not
waive his rights either to require prompt payment when due of all other sums so secured or to declare
def Tuft for failure so to pay.
(B) That at any time or from time to time. without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed and saitl note for endorsement, and without
shooting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may reconvey any pad of said property, consent to the making of any map or plat thereof; pin in
granting any easement thereon; or join in any extension agreement or any agreement subordinating
the lien or charge hereof.
(g) That upon written request of Beneficiary state that all sums secured hereby have been paid. and
upon surrender of this Dead and said note to Trustee for cancellation and retention and upon
payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The grantee in such reconvoyance may be described as'Thei person or persons legally
entitled thereto "Five years after issuance of such full reconveyance, Trustee may destroy said note
and this Dead (unless directed in such request to retain Nem.)
If 0) That as additional security, Trustor hereby give to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said
Property, reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect the rents,
issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor In
payment of any indebtedness secured hereby or in Performance of any agreement hereunder, to
collect and retain such rents, issues and profile as they become due and payable. Upon any such
default, Beneficiary may at any time without notice, either in person , by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said pmperty or any can thereof, in his awn name sue
for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same. less costs and expenses of operation and collection, Including reasonable ahameys fees.
Upon any indebtedness secured hereby, and In such order as Beneficiary may determine. The
entering upon and taking possession of said property, the collection of such rents, issues and profits
and the application thereof as aforesaid, shall not cure or wane any default or notice of default
hereunder or Invalidate any act done pursuant to such notice.
(11) That upon default by Trustor In payment of any Indebtedness secured hereby or in performance
of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and
payable by delivery to Trustee of written declaretlon of default and demand for sale and of written
notice of defauh and of election to cause to be sold said property which notice Trustee shall cause to
be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and ail documents
evidencing expenditures secured! hereby. After the lapse of such time as may then be required by
law following the recordation of said notice of default, and notice of sale having been given as then
required by law, Trustee, without demand on Trustor, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may
determine, at public auction to the highest bidder for cash in lawful money of the United Stales,
Payable at time of sale. Trustee may postpone sale of all or any portion of said property by public
Page 4 of Exhibit G
announcement at such time and place of sale, and from time to time thereafter may postpone such
sale by public announcement at the time fixed by the preceding postponement Trustee shall deliver to
such purchaser its deed conveying the property sc sold, but without any covenant or warranty,
express or implied. The redtals in such deed of any matters or facts shall be conclusive proof of Ne
truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined,
may purchase at such sale. After denuding all costs, fees and expenses of Trustee and of this Trust.
including cost of evidence of title In connection Win sale. Trustee shall apply the proceeds of sale to
Payment of all sums expended under the terms hemof, not then repaid with accrued interest at the
amount allowed by law in effect at the date hereof, all other sums then secured hereby, and the
remainder, if any, to the person or persons legally added thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time
to time, by Instrument in writing, subst um a successor or successors to any Trustee named herein or
acting hereunder, which Instrumem, executed "a Beneficiary and duly acknowledged and
recorded In Me office of the recorder of the county or counties where said property Is situated, shall
be conclusive proof of proper substkulion of such successor Trustee or Trustees, who shall, without
conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties.
Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the
book and page where this Deed is recorded and the name and address of the new Trustee.
(13) That this Deed applies to. Inures to the benefit of, and binds all parties hereto, their heirs.
legatees, deviance, administrators, exawmrs, successors and assigns. The term Beneficiary shall
mean the owner and holder, including pledgees, of the note secured hereby whether or not named as
Beneficiary herein in this Deed whenever the context so requires ,the masculine gentler includes the
feminine and/or neuter, and the singular number Includes the plural.
(14) That Trustee accepts his Trust when this Deed, duly executed and acknowledged, is made a
Public record as provided by law. Trustee is not obligated m notify any party hereto of pard ing sale
under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid:
To I—], Trustee:
The undersigned Is the legal owner and holder of all indebtedness secured by the within Deed of
Trust. All sums secured by mid Dead of Trust have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the forms of said Deed of
Trust, to cancel all evidences of Indebtedness, secured by said Deed of Trust, delivered to you
herewith together win said Deed of Trust, and to recimmy, without warranty, to the parties
designated by the terms of said Dead of Trust, the estate now held by you under the same.
RECONVEYANCE TO:
Page 5 of Exhibit G
By
Name
Do not lose or destroy this DEED OF TRUST OR THE NOTE which it secures. Both must be
delivered to the Trustee for cancellation before reconveyance will be made.
Page 6 of Exhibit G
EXHIBIT "A"
The Property is located at 4630 E. Laurel Avenue, Fresno, CA (APN: 463-120-10), as
described below:
LEGAL DESCRIPTION
The east 396 feet of the south 165 feet of the North 314 of the South 112 of Lot 46 of the
Eastancy Rancho, in the City of Fresno, County of Fresno, State of California, according
to the map thereof recorded in Book 2, Page 6 of Plats, in the Office of the County
Recorder of mid County. Together with the right of way for ingress and egress over
and across the North 30 feel of the South 165 feel of the North 314 of the South 112 of
said lot 46 of the Easterby Rancho, excepting therefrom the east 396 feet for the benefrl
of and as an appurtenance to the property hereby conveyed.
Page 7 of Exhibtt G
EXHIBIT H: [EXAMPLE] HUD -REQUIRED PROVISIONS RIDER
This HUD -Required Provisions Rider (the 'Rider) is dated as of
2005, and is attached to and made a part of that certain (a)
(the' fGrant/Loan] AgreemenC),
between a California nonprofit public benefit
corporation, its successors and assigns (the "Bonowar), and the City of Fresco, a California
municipal corporation (the 'g(b) (the
Note'); (c) (the
Restrictive Covenants") betvreen Borrower and
and (d) Deed of Trost [Assignment of Rents and FWure Filing]
by Borrower to (the' Dead of Tri all dated
.200 (collectively, the Documents'), relating to the
property commonly known as (the'Develo)ment"). In the event of any
conflict, inconsistency or ambiguity between this provisions of this Rider and the previsions of
the Documents, Me previsions of this Rider shall control. All capitalized
lentis used herein and not otherwise defined herein shall have the meaning given to such
terms the Documents. As used in this Rider, me terni Documents' shall
mean the following documents relating to the HUD Section 811 Capital Advance for the
Development (HUD Project No. -NP).
A. Deed of Trust With Assignment of Renta on me Property from Borrower to HUD
and recomed against the Property ithe "HUD Dead of Trust");
B. Capital Advance Program Regulatory Agreement between Borrower and HUD
and recorded against the Property(the "HUD Regulatory Agreement);
C. Capital Advance Program Use Agreement between Borrower and HUD and
recorded against me Property (me "HUD Use Agreement');
D. Security Agreement between Borrower and HUD (the 'HUD Security
Agreement');
E. UCC Financing Statement between Borrower. as Debtor, and HUD, as Secured
Party, and filed with the California Secretary of State (the "UCC Financing
Statement");
F. HUD Project Rental Assistance Contract (the 'PRAC"); and
G. Omer HUD Caphal Advance documents.
1. Term of Rider. Notwithstanding anything else in Nis Rider to me contrary, the
previsions of this Rider shall be and remain in effect only so bng as the HUD Documents, or
any of them, are in effect; thereafter. Anis Rider and its requirements shall be deemed no
longer in effect.
2. Subordination. The covenants contained in the Documents shall
be subodinate to the rights of HUD under the HUD Documents, and to the HUD lutes
and regulations pertaining thereto. In addition, so long as the HUD Documents are in
effect, in the event that there are any conflicts between the lentis and conditions in the
Page 1 of Ex Ibft H
Documents and the terms and conditions of the HUD Documents and HUD
ivies and regulations pertaining thereto, the HUD documents and HUD rules and
regulations shall prevail. No default may be declared under the Documents
without HUD prior written consent
3. HUD Rules. During the time period in which Section 811 orthe PRAC regulations
apply to the development, rents approved by HUD pursuant to the Section 811
program and the PRAC shall be deemed to be in compliance with the
Restrictive Covenants, and compliance by the Developer with the Section 811
Regulations and the PRAC with respect to continued occupancy by households whose
incomes exceed the eligible income limitations of Article of the
Restrictive Covenants, or other matters set forth in Article of the
Restrictive Covenants, shall be deemed to be compliance with the requirements of the
Documents. Nothing In the Documents shall in any way limit,
interfere or conflict with the rights of HUD with respect to development, operation and
management of the Development; nor can the Documents in anyway
jeopardize the continued operation of the project in terms at lease as favorable to
existing as well as future terms.
4. fGmnV Loanl Disbursement. Upon continued satisfaction of the conditions
precedent to [gran itoan] disbursement set forth in the Grant/ Loan]
Agreement, the shall disburse the [Grant/Loan] proceeds to Borrower
from time to time following approval by the and HUD of Borrowers
requisitions In accordance with the HUD Documents. HUD approval of a requisition
shall be deemed approval, provided that the requisition conforms to the use
Of funds shown In the Financing Plan approved by the and is an
eligible use of funds under applicable regulations. The
agrees that the uses of funds shown in the Financing Plan are eligible
uses. Requisitions not requiring HUD approval shall be submitted only to the
for approval and disbursement pursuant to the [Grant/ Loan]
Agreement. Notwithstanding the foregoing, H any fGranVLoan] proceeds
aro to be used toward Borrower's satisfaction of HUD 'a'front money escrow"
requirements, then such fGrenV Loan] proceeds shall be disbursetl in
accordance with HUD's Section 811 Program and HUD's Firm Commitment dated
. 200, issued to Borrower, in connection with the Development.
5. Residual Receipts. Any whole or partial repayment of the principal and any other
payments as set forth in the Documents shall be made only from Residual
Receipts (as defined in the HUD Documents), and then only after obtaining the prior
written approval of HUD, or from the Sonovsrs own funds.
e. Indemnthcation. Enforcement by the of any indemnification provisions In
the Documents will not and shall not result in any monetary claim against
the Development, the HUD Capital Advance proceeds, any reserve or deposit required
by HUD In connection with the HUD Capital Advance, or the rents or other income
from the Development other than residual receipts authorizetl for release by HUD,
without the inner written consent of HUD, but shall have the night to add any
amounts due the pursuant to Indemnification provisions in the
Documents to the p inclpal amount of the [GmnVLoan] and the Note and interest shall
accrue thereon commencing on the date indemnification payments are due.
Page 2 of Exhibit H
7. Transfer. Approval by HUD of a Transfer of Physics] Assets (as defined in Handbook
4350.1 Rev -l) ('TPA') shall constitute approval of the transfer by the and
the Borrower shall deliver to the at the same time as its delivery to HUD,
any application for HUD's approval of a proposed transfer. Also, the Borrower shall
require Me transferee to expressly assume the Borrowers obligations under the
Documents; provided, however, HUD shall not be required to enforce the
requirements of this sentence and if Borrower and any transferee fail to include such
assumption in transfer documents, such failure shall not affect the validity of the
transfer. The shall have the fight to specifically anforce Me requirement
that any transferee assume the Borrowers obligations under the
Documents. In the absence of such written assumption, no transfer shall be deemed
to relieve the transferor from any obligations under the Documents.
8. Default under Documents. The shall not declare a default
underthe Documenlsunless it has received the prior written approval of
HUD, and the 's night to accelerate the Note during the term of
the HUD Documents shall be enforceable only with the prior written approval of HUD.
9. Receiver. The for Itself, is successors and assigns, further covenants
and agrees that in the event of the appointment of a receiver in any action by the
its successors or assigns, to foreclose the Deed of Trust, no
rents, revenue or other income of the Development collected by the receiver or by the
mortgagee -in -possession shall be utilized for the payment of Interest, principal, or any
other charges due and payable under the Deed of Trust, except from
Residual Receipts, if any, as the tens is defined in Me HUD Regulatory Agreement.
The appointment of a receiver shall require approval by the Secretary of HUD, and
pursuant to HUD regulations, as long as the is the beneficiary under the
Deed of Trust, the cannot be mortgagee -In -possession. In the
event of the appointment, by any court, of any person, other than HUD or the
as a receiver or a mortgagee or party in possession, or In the event of any
enforcement of any assignment of leases, rents, issues, profits, or contracts contained
in the Documents, with or without court action, no rents, revenue or other
income of the Development collected by Me receiver, person in possession or person
pursuing enforcement as aforesaid, shall be utilized for the payment of interest.
principal or any other amount due and payable under the previsions of the
Documents, except from Residual Receipts In accordance with the HUD Regulatory
Agreement. The receiver, person In possession or person pursuing enforcement shall
operate the Development in accordance with all previsions of Me HUD Documents.
10. Deed -in -Lieu of Foreclosure. In Me event Mat HUD acquires the tD Me Properly by
deetl-in-Ileu of foreclosure, the lien of Me Deed of Trust will automatically
terminate subject to the conditions as hereinafter described. Beneficiary may cure a
default under the HUD Deed of Trust prior to conveyance by deed -in -lieu of
foreclosure. HUD shall give written notice to Me Borrower of a proposed tender of btle
in the event HUD decides to accept a deed-imlleu of foreclosure. HUD will only give
such written notice if, at the time of Me placing of the subordinate lien against Me
Property, HUD receives a copy of an endorsement to the tile policy of the Borrower or
which indicates Mal (a) the Dead of Trost has been recorded and (b) HUD is
required M give notice of any proposed election or tender of a deed -in -lieu of
foreclosure. Such notice shall be given at the address stated In the Deed of
Page 3 of Exhibit H
Trust or such other address as may subsequently, upon smash notice to HUD. be
designated by the as its legal business address. The shall have
thirty (30) days to cure the default after notice of Intent to accept a deed -in -lieu of
foreclosure is mailed.
11. Boo rs Notice to Nohvithstanding the requirements set forth In
Paragraph 10 above, in the event that Bonower contemplates executing a deed -in -lieu
of foreclosure, Borrower shall that give the thirty (30) days' prior written
notice; provided, however, that the failure of the Borrower to give said notice shall
have no effect on the right of HUD to accept a deed -in -lieu of foreclosure.
12.Hmenlment. No amendment to the Documents made after the date of this
Rider shall have any force or affect until and unless such amendment is approved in
venting by HUD.
IN WITNESS WHEREOF, the Borrower and the have each caused this
Rider to be executed by its duly authorized officer and to be made effective on and as of the
effective date of the Documents.
,a
California municipal corporation
Its:
Page 4 of Exhibk H