HomeMy WebLinkAboutEdison Plaza Partners, LP - Reformation of Disposition and Development Agrmt 6.9 acres Lorena to Florence, Plumas to Walnut StreetsREFORMATION OF
'' DISPOSITION AND DEVELOPMENT AGREEMENT
, fi
WITH
" EDISON PLAZA PARTNERS L.P.
U
This Reformation of Disposition and Development Agreement ("Reformation of
Agreement') is entered into this 24th day of January, 2012, between the REDEVELOPMENT
AGENCY OF THE CITY OF FRESNO, a public body corporate and politic (the "Agency"), and
EDISON PLAZA PARTNERS, L.P., a California limited partnership (the "Developer"). 'Phis
Reformation of Agreement is entered into in respect to that certain Disposition and Development
Agreement between Agency and Developer, with an effective date of March 9, 2011.
WHEREAS, the Agency and Developer entered into a Disposition and Development
Agreement (the "Agreement') effective March 9, 2011, pursuant to which the Developer
proposes to purchase 6.9 acres of property from the Agency at fair market value and develop in
two phases a multi -family apartment complex anticipated to include 200 units, 160 of which
would be affordable (the "Project"); and
WHEREAS, the current Agreement does not express the original intent of the parties
because certain details in the Project description were mistakenly incorrect concerning the
calculation of the number of units per acre of available property; and
WHEREAS, California Civil Code section 3399 provides that when, through mutual
mistake of the parties, a written contract does not truly express the intention of the parties, it may
be revised on the application of a party aggrieved, so as to express that intention; and
WHEREAS, the parties now must reform the Agreement to match the actual agreement
as understood by the parties and to express their original intent.
NOW, THEREFORE, with reference to the above recitals, and in consideration of the
mutual covenants and agreements contained in the Agreement and this Reformation of
Agreement, the Agency and Developer agree as follows:
I . The total number of apartment units in the Project shall be reduced from 200 to
128. Of those 128 units, 88 shall be restricted to occupancy by Low Income Households at an
Affordable Rent as defined in the Agreement and Regulatory Agreement attached thereto. The
Agency Assistance per affordable unit shall remain the same.
2. Exhibit B to the Agreement (Scope of Development), shall be revised as set forth
in the attached Exhibit B-1.
3. Exhibit C to the Agreement (Schedule), shall be revised as set forth in the
attached Exhibit C-1.
4. Exhibit G to the Agreement (Regulatory Agreement), shall be revised as set forth
in the attached Exhibit G-1.
5. All terms and provisions of the Agreement not expressly reformed hereby shall
remain in full force and effect.
6. If, for any reason, this Reformation of Agreement is found to be invalid or
unenforceable, then this Refornxation shall be stricken and the Agreement shall remain in full
force and effect.
7. The Parties may sign this Reformation of Agreement in counterparts. Each
counterpart, when executed and delivered, will be one instrument with the other counterparts.
IN WITNESS WHEREOF, Agency and Developer have executed this Reformation of
Agreement on the dates set forth. below.
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
Uzz
Marlene Murphey,
Executive Director
Dated:
ATTEST:
YVONNE SPENCE, CMC
Ex Officio Clerk
Redevelopment Agency of the
Fresno
City of Fresno
By: C_C. /Q4-�
Deputy
Dated: 3) 2 211-L
2
EDISON PLAZA PARTNERS, L.P.,
a California limited partnership
B:
Thomas4Ric s
Chief Executive Officer
Dated:
By:
Janne
General Partner - HAW G
Dated:
APPROVED AS TO FORM:
JAMES SANCHEZ
Ex Officio Attorney
Redevelopment Agency of the City of
By:
Deputy Dg.�—Y?-2_
Dated: 7i Z
Exhibit B-1: Reformed Scope of Development
Exhibit C-1: Reformed Schedule
Exhibit G-1: Reformed Regulatory Agreement
Exhibit "B-1"
Phased Scope of Development — Proforma Budget
I. PRIVATE DEVELOPMENT
A. General
The Developer agrees that the Property shall be developed and improved
in accordance with the provisions of this Agreement and the Basic Design
(Exhibit "F") approved by the Agency pursuant hereto. The Developer
and its supervising architect, engineer and contractor shall work with
Agency staff to coordinate the overall design, architecture and color of the
improvements on the Property.
B. Developer's Improvements
The Developer shall construct, or cause to be constructed, on the
Property the following:
A multi -family residential community consisting of 128 units with unit size
and specifications consisting of one -bedroom, two-bedroom, and three-
bedroom units. The total square footage of the project at completion is
estimated to be 142,850 square feet (including common area) which
includes four tot lots, a community center, and pool and community
gardens. The on-site improvements consisting of parking lots with
improvement, lighting, landscaping will be constructed as required by City
of Fresno and Redevelopment Agency development standards. The units
will have the following rent specifications/restrictions:
• 40 units at 80/120% Median Income
• 45 units at 60% Median Income
• 43 units at 50% Median Income
The project will be constructed in one phase.
C. Architecture and Design
The Developer's improvements shall be of high architectural quality, shall
be well landscaped and shall be effectively and aesthetically designed.
The shape, scale of volume, exterior design and exterior finish of the
building must be consonant with, visually related to, physically related to
and an enhancement of adjacent buildings within the Project Area.
D. Landscaping
Landscaping shall embellish all open spaces on the Property.
Landscaping includes such materials as paving, trees, shrubs and other
plant materials, landscape containers, plaza furniture, top soil preparation,
automatic irrigation and landscape and pedestrian lighting. Landscaping
shall carry out the objectives and principles of the Agency's desire to
accomplish a high quality aesthetic environment.
E. Signs
All signs on the exterior of the buildings are of special concern to the
Agency and must be approved by the Agency (which approval shall not
be unreasonably withheld).
F. Screeninq
Trash areas shall be screened on at least three (3) sides and have
movable doors or other devices to obscure such areas from view. All fire
standpipes and such other fire related mechanical devices shall be
screened with plant materials. Rooftop equipment shall be reasonably
hidden so as to mitigate views from principal elevations surrounding the
development.
G. Applicable Codes
The Developer's improvements shall be constructed in accordance with
the Uniform Building Code (with City modifications) and the Municipal
Code.
II. SITE CLEARANCE AND PREPARATION
The Developer shall perform, or cause to be performed, at its sole cost and
expense, the following work:
A. On -Site Clearance.
On the Property, clear and grub The Property is vacant and unimproved.
The Agency, as of the Effective Date is unaware of any subsurface
structures, foundations, obstructions, basements, tanks, and the like.
B. Compaction, Finish Grading and Site Work
The Developer shall compact, finish grade and do such site preparation
as is necessary for the construction of the Developer's improvements on
the Property.
III. OFF-SITE IMPROVEMENTS
The Developer shall design, construct and install required Off -Site Public
Improvements, at its sole cost and on a schedule which coordinates with the
development.
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Project Summary
Edison
Operating Expenses
------- - --
N, Unif
— --------------- --
I'o
000
920
VOS�9.3mcs
2500
625,0
150
lof". S
Offil� S1.
-U�
�M en ... /Ao,.,,,tm2
560
S3,20D
200
25 0-
3071
Ww" &
0
. .. ....... . . _2 734
IODO
_1)2,800
IODO
T.t'l Utility E ........
SOI
595,600
I 7469
0
WOO
so
250
- TOOI
3
S5500
—il,466
4197
560
so
so
1 $128,000 j
1,000.0
S60,707,
774 3
Lnd U.e
_S50.0DO
so
.
...... - ------- -
SM
O �II07
S6119
es
3906
---S�00
.T.I,,l
'0
3906
0,
—5-541.315
_4,249.6
TOTAL OPF ING & RESERVES
so
I so
1 5543.315 4,1446
Development Cast Budget
Total Units 128
Unit Square Feet 142,850
Common Area Square Feet 0
Total Net Square Feet 142,850
Permits and Fees
Impact Fees (Non -Utility) 1.732,500 $ 1,732 500 $ 13,535 $ 12.13
TOTAL PERMITS AND FEES $ 1,732,500 $ 1,732,500 $ 13,535 $ 12.13
Technical Fees
Architect Fees -- Design
S
Total Costs
450,000 $
Eligible Basis
Per Unit
Per NSF
Construction Costs (Building & Site)
- $
- $ -
Surveying
100%
- $
- $
New Buildings
EngineeringlSoil Testing
11,428000
$
11,428,000
$ 89,281
$ 80.00
Land
7
655.000
$
-
$ 5,117
$ 4.59
other
3
-
$
TOTAL INTERIM COSTS
$ _
$ -
other
$
-
$
5.27
$ _
$
other
S
- $
$
-
$
$ -
Site Costs, Contingency & Bonds
3
2,750.000
$
2,750,000
$ 21,484
$ 19.25
TOTAL CONSTRUCTION COSTS
$
14,833,000
$
14,178,000
$ 115,883
103.84
Permits and Fees
Impact Fees (Non -Utility) 1.732,500 $ 1,732 500 $ 13,535 $ 12.13
TOTAL PERMITS AND FEES $ 1,732,500 $ 1,732,500 $ 13,535 $ 12.13
Technical Fees
Architect Fees -- Design
S
4 5 0,0C! $
450,000 $
3,516 $ 3.15
Supervision
5
$
- $
- $ -
Surveying
3
- $
- $
- $ -
EngineeringlSoil Testing
S
5D Ct:; $
50,000 $
391 $ 0.35
TOTAL TECHNICAL FEES
$
500,000 $
500,000 $
3,906 $ 3.50
Interest
Property Insurance
5
100.000
$
100,000 $
781
$
0.70
Property Taxes
S
25,000
$
25,000 $
195
$
0.18
Construction Interest
S
627,622
$
- $
4,903
$
4.39
Lease Up Fee
$
-
$
- $
-
$
-
TOTAL INTERIM COSTS
$
752,622
$
125,000 $
5,880
$
5.27
Financing Costs
Loan Fee 5 100.000 $ $ 781 $ 0.70
Construction Inspection Fees 17,000 $ $ 117 $ 0.11
TOTAL FINANCING COSTS $ 115,000 $ $ 898 $ 0.81
Soft Development Costs
Appraisal
W
10.000
$
$
78
$
0.07
Title/Recording/Doc Stamps
25 000
$
$
195
$
0.18
Environmental Report
S
25.000
$
S
195
$
0.18
Legal
$
100,000
$
- $
781
$
0.70
Tax Credit Fees
$
100,000
$
- $
781
$
0.70
TOTAL SOFT COSTS
$
260,000
$
- $
2,031
$
1.82
Franchise Partnership & Developer Fee
Franchise: Partnership S - $ . $ -
Developer Fee S 1,800,000 $ 1,800,000 $ 14,063 $ 12.60
Deferred Developer Fee S (1,800,000) $ (14.063) $ (12.60
TOTAL FRANCHISE PARTNERSHIP & DEVELOF $ - $ 1,800,000 $ $ -
Project Reserves
Initial Marketing Costs S 75.000 $ 586 $ 0.53
Operating Reserves 5 50,000 $ 391 $ 0.35
TOTAL PROJECT RESERVES $ 125,000 $ - $ 977 $ 0.88
TOTAL DE=VELOPMENT COSTS $ 18,318,122 $ 18,335,500 $ 143,110 $ 128.23
EDISON PLAZA 11 SITE PLAN - R3
FP.ESttO LR 04252011 1"=3vo.
RESIDENnM UNIT RE.IDENru1.111TA
CO,XAUNRY L[NTER o RESIDENTIAL 'UDIT0
N ! SCOTT BrCK ARCFITECT
Exhibit "C-1"
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EXHIBIT G-1
EDISON PLAZA PARTNERS. L.P.. DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY
OF THE CITY OF FRESNO
2344 Tulare Street
Fresno, CA 93721
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ("Agreement") is made and entered into this day of
_, by and between the REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public
body, corporate and politic ("Agency"), and EDISON PLAZA PARTNERS, L.P., a California
limited partnership ("Owner").
RECITALS:
A. Pursuant to Disposition and Development Agreement by and between Agency
and Owner dated March 9, 2011 and Reformation dated , 2012 (the "DDA"), Agency
has provided to Owner real property and financial assistance in the amount of approximately
Five Million Six Hundred Sixty Five Thousand Dollars ($5,665,000.00) (collectively, the "Agency
Assistance"), all for the purpose of assisting Owner in the acquisition of real property and the
development of a residential apartment complex thereon wherein the units shall be rented to
very low and lower income households, on that certain real property located in the City of
Fresno, County of Fresno, State of California, more particularly described in Attachment 1"
attached hereto and incorporated herein by reference (the "Site").
B. Pursuant to the DDA, Owner has agreed to develop, construct, and maintain a
rental apartment housing project consisting of one hundred twenty-eight (128) total residential
units (hereinafter referred to collectively as the "Project") on the Site. The Project is also
referred to in the DDA as the "Project," and is further described in the Scope of Development
attached to the DDA.
C. Agency and Owner now desire to place restrictions upon the use and operation
of the Project, in order to ensure that the Project shall be operated continuously as a rental
apartment housing project available for rental by very low and lower income persons for the
term of this Agreement.
D. It is the intent of the parties that the title vested in Owner by the Grant Deed for
the Site dated ("Grant Deed"), recorded concurrently herewith in Office of the
County Recorder for the County of Fresno be subject to this Regulatory Agreement, and that the
terms hereof shall be binding on the Owner and its successors in interest in the Site for so long
as the Regulatory Agreement shall remain in effect.
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by and for
themselves, their heirs, executors, administrators and assigns, and all persons claiming under
or through them, that the Site shall be held, transferred, encumbered, used, sold, conveyed,
leased and occupied, subject to the covenants and restrictions hereinafter set forth, all of which
are declared to be in furtherance of a common plan for the improvement and sale of the Site,
and are established expressly and exclusively for the use and benefit of the Agency, the
residents of the City of Fresno, and every person renting a dwelling unit on the Site.
A. DEFINITIONS
1. Affordable Lower Income Rent. As used in this Agreement, the term
"Affordable Lower Income Rent" shall mean annual rentals whose amount does not exceed the
maximum percentage of income that can be devoted to rent as set forth by Health & Safety
Code Section 50053, or its successor, which is currently thirty percent (30%) of sixty percent
(60%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit.
2. Affordable Rent. As used in this Agreement, the term "Affordable Rent"
shall refer to Affordable Low Income Rent,
3. Affordable Very Low Income Rent. As used in this Agreement, the tern
"Affordable Very Low Income Rent" shall mean annual rentals whose amount does not exceed
the maximum percentage of income that can be devoted to rent as set forth by Health & Safety
Code Section 50053, or its successor, which is currently thirty percent (30%) of fifty percent
(50%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit.
4. Eligible Tenant. As used in this Agreement, the term "Eligible Tenant"
shall refer to a Lower Income Tenant.
5. Fresno County Median Income. For purposes of this Agreement, the
"Fresno County Median Income" shall be determined by reference to the regulations published
by the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50093, or its successor.
6. Lower Income Tenant. As used in this Agreement, the term "Lower
Income Tenant" shall mean those tenants whose household income does not exceed eighty
percent (80%) of the Fresno County Median Income.
7. Project Manager. As used in this Agreement, the term "Project Manager"
shall refer to that entity, to be designated by Owner and approved by Agency, who shall be
responsible for operating and maintaining the Project in accordance with the terms of this
Agreement. Prior to Agency's approval, Owner shall act as Project Manager,
8. Resident Manager. As used in this Agreement, the term "Resident
Manager" shall refer to that individual (or those individuals) who may reside in the Project and
who are responsible for day-to-day management of the Project.
9. Unit. As used in this Agreement, the term "Unit" shall refer to any of the
two hundred (200) residential units reserved for Eligible Tenants or the Resident Manager.
10. Very Low Income Tenant. As used in this Agreement, the term "Very Low
Income Tenant" shall mean those tenants whose income does not exceed fifty percent (50%) of
the Fresno County Median Income.
B. RESIDENTIAL RENTAL PROPERTY. The Owner hereby agrees that the
Project is to be owned, managed, and operated as a project for lower income residential rental
purposes for a terrn equal to fifty-five (55) years, commencing upon the date of the recordation
of the Certificate of Completion for the Site in accordance with the DDA (the "Term"). To that
end, and for the term of this Agreement, the Owner hereby represents, covenants, warrants and
agrees as follows:
1. Purpose. The Site is being acquired and the Project constructed for the
purpose of providing very low and lower income rental housing and the Owner shall own,
manage, and operate the Project as a project to provide very low and lower income rental
housing comprised of several interrelated buildings or structures, together with any functionally
related and subordinate facilities.
2. Residential Use. None of the Units in the Project will at any time be
utilized on a transient basis or used as a hotel, motel, dormitory, fraternity house, sorority
house, rooming house, nursing home, hospital, sanitarium, or trailer court or park without the
Agency's prior consent which consent may be given or withheld in its sole and absolute
discretion.
3. Conversion of Project. No part of the Project will at any time be owned by
a cooperative housing corporation, nor shall the Owner take any steps in connection with the
conversion to such ownership or uses to condominiums, or to any other form of ownership,
without the prior written approval of Agency which approval may be given or withheld in its sole
and absolute discretion.
4. Preference to Eligible Tenants. All of the Units will be available for rental
in accordance with the terms of this Agreement, and the Owner shall not give preference to any
particular class or group in renting the Units in the Project, except to the extent that the Units
are required to be leased or rented to Eligible Tenants and except as provided in Section C.6
below.
5. Resident Manager. One, and only one, Unit in the Project may be
occupied by a Resident Manager.
6. Liabilitv of Owner. Owner and Resident Manager shall not incur any
liability under this Agreement as a result of fraud or intentional misrepresentation by a tenant.
C. OCCUPANCY OF PROJECT BY ELIGIBLE TENANTS. Owner hereby
represents, warrants, and covenants as follows:
1. Occupancy. Except as expressly provided herein, throughout the term of
this Agreement the occupancy of the 88 Restricted Units in the Project (excluding the Resident
Manager Unit) shall be restricted to Eligible Tenants and qualified members of the Eligible
Tenant's household.
2. Expiration of Occupancv and Rent Restrictions. The Units shall be
subject to the restrictions contained in this Section C for the Term of this Agreement. All tenants
residing in the Units during the final two (2) years of the Term shall be given notice of the
expiration of the Term at least once every six (6) months during the final two years. After the
expiration of the Term, the rents payable on the Units may be raised to market rates.
3. Rental Rates. Owner hereby agrees to rent those Restricted Units
occupied by Lower Income Tenants at no greater than Affordable Lower Income Rent, and to
rent those Units occupied by Very Low Income Tenants at no greater than Affordable Very Low
Income Rent.
4. Occupancy By Eligible Tenant. A Unit occupied by an Eligible Tenant
shall be treated as occupied by an Eligible Tenant until a recertification of such tenant's income
in accordance with Section C.8 below demonstrates that such tenant no longer qualifies as an
Eligible Tenant.
5. Income Computation Certificate. Immediately prior to an Eligible Tenant's
occupancy of a Unit, Owner shall obtain and maintain on file an Income Computation and
Certification form (which form shall be approved in advance by the Agency) from each such
Eligible Tenant dated immediately prior to the date of initial occupancy in the Project by such
Eligible Tenant. In addition, the Owner will provide such further information as may be
reasonably required in the future by the Agency. Owner shall use its best efforts to verify that
the income provided by an applicant is accurate by taking the following steps as a part of the
verification process: (i) obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a
written verification of income and employment from applicant's current employer; (iii) obtain an
income verification form from the Social Security Administration and/or California Department of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant is
unemployed or did not file a tax return for the previous calendar year, obtain other verification of
such applicant's income as is satisfactory to the Agency; or (v) such other information as may
be requested by the Agency. A copy of each such Income Computation and Certification shall
be filed with the Agency prior to the occupancy of a Unit by an Eligible Tenant whenever
possible, but in no event more than thirty (30) days after initial occupancy by said tenant.
6. Rental Priority. During the term of this Agreement, and subject to
compliance with state and federal fair housing laws, Owner shall use its best efforts to lease
vacant Units reserved for Eligible Tenants in the following order of priority: (i) displaced persons
entitled to a preference pursuant to California Health and Safety Code Section 33411.3 or
successor statute, with highest priority in this category to residents of Fresno; (ii) residents of
the City of Fresno; and (iii) other persons meeting the eligibility requirements of this Agreement.
Owner shall and Agency may maintain a list (the "Housing List") of persons who have notified
Owner and/or Agency of their desire to rent a Unit in the Project and who have incomes which
would qualify them as an Eligible Tenant, and Owner shall offer to rent Units on the above -
referenced priority basis. Should multiple tenants be equally eligible and qualified to rent a Unit,
Owner shall rent available Units to Eligible Tenants on a first-come, first-served basis.
7. Renting Vacant Units. When a Unit becomes available as a result of a
tenant vacation, Owner shall rent the Unit to an Eligible Tenant in accordance with the order of
priority set forth in Section C.6.
8. Income Recertification. Immediately prior to the first anniversary date of
the occupancy of a Unit by an Eligible Tenant and on each anniversary date thereafter, Owner
shall recertify the income of such Eligible Tenant by obtaining a completed Income Computation
and Certification based upon the current income of each occupant of the Unit. Owner shall
provide the Agency with a copy of each such recertification with the next submission of
Certificate of Continuing Program Compliance pursuant to Section CA 0.
9. Terminating Ineligible Tenant. The tenant may be evicted for good cause
as defined by Section 42 of the Internal Revenue Service regulations.
10. Certificate of Continuing Program Compliance. Upon the issuance of the
Certificate of Completion and annually by March 15 of each year, or at any time upon the written
request of Agency, Owner shall advise the Agency of the occupancy of the Project by delivering
a Certificate of Continuing Program Compliance in the form attached hereto as Attachment "2"
certifying: (i) the number of Units of the Project which were occupied or deemed occupied
pursuant to Section CA by an Eligible Tenant during such period, and (ii) to the knowledge of
Owner either (a) no unremedied default has occurred under this Agreement, (b) a default has
occurred, in which event the Certificate shall describe the nature of the default and set forth the
measures being taken by the Owner to remedy such default.
11. Maintenance of Records. Owner shall maintain complete and accurate
records pertaining to the Units, and shall permit any duly authorized representative of the
Agency to inspect the books and records of Owner pertaining to the Project including, but not
limited to, those records pertaining to the occupancy of the Units.
12. Reliance on Tenant Representations. Each lease shall contain a
provision to the effect that Owner has relied on the income certification and supporting
information supplied by the tenant in determining qualification for occupancy of the Unit, and
that any material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease.
13. Conflicts. The leasing preference provision set forth in Section C.6 and
termination or non -renewal provisions set forth in Sections C.8 and C.9 shall apply only in the
event, and to the extent, such provisions are not in conflict with Internal Revenue Code
provisions or IRS regulations.
14. A ency Remedy For Excessive Rent Charge.
a. It shall constitute a default for Owner to charge or accept for a Unit
rent amounts in excess of the amount provided for in Section C.3 of this Agreement. In the
event that Owner charges or receives such higher rental amounts, in addition to any other
remedy Agency shall have for such default, Owner shall be required to pay to Agency the entire
amount of rent received in excess of the amount permitted pursuant to this Agreement.
b. It shall constitute a default for Owner to rent any Unit to a tenant
who is not an Eligible Tenant for the particular Unit pursuant to the rental rate requirements set
forth in Section C.3 of this Agreement. In the event Owner rents a Unit to an ineligible tenant, in
addition to any other equitable remedy Agency shall have for such default, Owner, for each
separate violation shall be required to pay to Agency an amount equal to (i) two times the
greater of (A) the total rent Owner received from such ineligible tenant, or (B) the total rent
Owner was entitled to receive for renting that Unit, plus (ii) any relocation expenses incurred by
Agency or City as a result of Owner having rented to such ineligible person.
C. It shall constitute a default for Owner to rent any of the Units in
violation of the leasing preference requirements of Sections C.6 of this Agreement so long as
such leasing preference requirements are not in violation of any state of federal fair housing
laws. In the event Owner rents a Unit in violation of the leasing preference requirements, in
addition to any other equitable remedy Agency shall have for such default, Owner, for each
separate violation shall be required to pay Agency an amount equal to two (2) months of rental
charges for the Unit with the highest rent. The terms of this Section CA 4 shall not apply if
Owner rents to an ineligible person as a result of such person's fraud or misrepresentation.
THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c) OF THIS SECTION C.14 (THE "DAMAGE AMOUNTS")
CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL_ DAMAGES THAM
AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY OWNER SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c), CONSIDERING ALL OF THE CIRCUMSTANCES
EXISTING ON THE EFFECTIVE DATE OF THIS AGRE=EMENT, INCLUDING THE
RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF HARM TO AGENCY AND
ACCOMPLISHMENT OF AGENCY'S PURPOSE OF ASSISTING IN THE PROVISION OF
AFFORDABLE HOUSING TO ELIGIBLE TENANTS THAT REASONABLY COULD BE
ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE
COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION C.14 SHALL
BE THE SOLE MONETARY DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS
SECTION C.14, BUT NOTHING IN THIS SECTION C.14 SHALL BE INTERPRETED TO LIMIT
AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING
ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY
CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT
EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED THE
CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE
TIME EACH EXECUTED THIS AGREEMENT.
OWNER'S INITIALS: AGENCY'S INITIALS
15. Section 8 Tenants. Owner shall accept as tenants on the same basis as
all other Eligible Tenants, persons who are recipients of federal certificates for rent subsidies
pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or
its successor. Owner shall not apply selection criteria to Section 8 certificate holders that are
more burdensome than criteria applied to all other Eligible Tenants.
D. MAINTENANCE.
1. Maintenance Obligation. Owner, for itself and its successors and
assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and
repaired the Site and all related on-site improvements and landscaping thereon, including,
without limitation, buildings, parking areas, lighting, signs and walls in a first class condition and
repair, free of rubbish, debris and other hazards to persons using the same, and in accordance
with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies
and agencies having jurisdiction, at Owner's sole cost and expense. Such maintenance and
repair shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii) the
care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition;
and (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type
of material originally installed, to the end that such pavings at all times be kept in a level and
smooth condition. In addition, Owner shall be required to maintain the Property in such a
manner as to avoid the reasonable determination of a duly authorized official of the City that a
public nuisance has been created by the absence of adequate maintenance such as to be
detrimental to the public health, safety or general welfare or that such a condition of
deterioration or disrepair causes appreciable harm or is materially detrimental to property or
improvements within one thousand (1,000) feet of such portion of the Site.
2. Parking and Driveways. The driveways and traffic aisles on the Site shall
be kept clear and unobstructed at all times. No vehicles or other obstruction shall project into
any of such driveways or traffic aisles. Vehicles associated with the operation of the Site,
including delivery vehicles, vehicles of employees and vehicles of persons with business on the
Site shall park solely on the Site.
3. Tenant Compliance. Owner shall provide any proposed tenants of any
portion of the Site with a copy of this Agreement and shall, prior to entering into any lease
agreement, have the proposed tenant execute an affidavit agreeing to comply with the
provisions of this Agreement. All lease agreements shall be in writing and shall contain
provisions which make compliance with the conditions of this Agreement express covenants of
the lease.
4. Right of Entry. In the event Owner fails to maintain the Site in the above-
mentioned condition, and satisfactory progress is not made in correcting the condition within
thirty (30) days from the date of written notice from Agency, City or Agency may, at their option,
and without further notice to Owner, declare the unperformed maintenance to constitute a public
nuisance. Thereafter, either Agency or City, their employees, contractors or agents, may cure
Owner's default by entering upon the Site and performing the necessary landscaping and/or
maintenance. The Agency or City shall give Owner, its representative or the residential
manager reasonable notice of the time and manner of entry, and entry shall only be at such
times and in such manner as is reasonably necessary to carry out this Regulatory Agreement.
Owner shall pay such costs as are reasonably incurred by Agency or City for such maintenance,
including attorneys' fees and costs.
5. Lien. If such costs are not reimbursed within thirty (30) days after
Owner's receipt of notice thereof, the same shall be deemed delinquent, and the amount thereof
shall bear interest thereafter at a rate of the lower of ten percent (10%) per annum or the legal
maximum until paid. Any and all delinquent amounts, together with said interest, costs and
reasonable attorney's fees, shall be an obligation of Owner as well as a lien and charge, with
power of sale, upon the property interests of Owner, and the rents, issues and profits of such
property. City and/or Agency may bring an action at law against Owner obligated to pay any
such sums or foreclose the lien against Owner's property interests. Any such lien may be
enforced by sale by the City or Agency following recordation of a Notice of Default of Sale given
in the manner and time required by law as in the case of a deed of trust; such sale to be
conducted in accordance with the provisions of Section 2924, et seq., of the California Civil
Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any
other manner permitted by law.
Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or
deed of trust covering an ownership interest or leasehold or subleasehold estate in and to any
Site approved by Agency pursuant to the DDA, and any purchaser at any foreclosure or
trustee's sale (as well as any deed or assignment in lieu of foreclosure or trustee's sale) under
any such mortgage or deed of trust shall take title free from any such monetary lien, but
otherwise subject to the provisions hereof; provided that, after the foreclosure of any such
mortgage and/or deed of trust, all other assessments provided for herein to the extent they
relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the
purchaser at the foreclosure sale, as owner of the subject Site after the date of such foreclosure
sale, shall become a lien upon such Site upon recordation of a Notice of Assessment or Notice
of Claim of Lien as herein provided.
E. MANAGEMENT.
1. Approval of Project Manager; Designation of Resident Manager. Subject
to the terms and conditions contained hereinbelow, Owner shall at all times during the operation
of the Project pursuant to this Agreement retain an entity to perform the management and/or
supervisory functions ("Project Manager") with respect to the operation of the Project including
day-to-day administration, maintenance and repair. Owner shall, before execution or any
subsequent amendment or replacement thereof, submit and obtain Agency's written approval of
a management contract ("Management Contract") entered into between Owner and a Project
Manager acceptable to Agency. Subject to any regulatory or licensing requirements of any
other applicable governmental agency, the Management Contract may be for a term of up to
fifteen (15) years and may be renewed for successive terms in accordance with its terms, but
may not be amended or modified without the written consent of Agency. The Management
Contract shall also provide that the Project Manager shall be subject to termination for failure to
meet project maintenance and operational standards set forth herein or in other agreements
between Owner and Agency. Owner shall promptly terminate any Project Manager which
commits or allows such failure, unless the failure is cured within a reasonable period in no event
exceeding 60 days from Project Manager's receipt of notice of the failure from Owner or
Agency. Owner's obligation to retain a Project Manager shall remain in force and effect for the
same duration as the use covenants set forth in Section Q of this Agreement. Notwithstanding
anything to the contrary in this Section, the Project may be self -managed by Owner with the
prior approval of the Agency Executive Director. Any change in the Project Manager shall be
approved, in writing, by the Executive Director, which approval shall not be unreasonably
withheld.
Pursuant to this Section E.1, the Agency or Executive Director shall
reasonably approve or disapprove the proposed Project Manager and management contract.
Unless the proposed Project Manager or management contract is disapproved within ten (10)
business days following receipt of all information reasonably requested regarding such Project
Manager, the Project Manager shall be deemed approved.
In addition to the Project Manager, one Resident Manager shall be designated as
necessary by Owner or Project Manager, with written notice to Agency of the Resident
Manager's name, address and telephone number.
2. Serious Mismanagement. In the event of "Serious Mismanagement" (as
that tern is defined below) of the Project, Agency shall have the authority to require that such
Serious Mismanagement cease immediately, and further to require the immediate replacement
of the Project Manager or Resident Manager. For purposes of this Agreement the term "Serious
Mismanagement" shall mean management of the Project in a manner which violates the terms
and/or intent of this Agreement and/or the Management Contract to operate an affordable
housing complex of the highest standard, and shall include, but is not limited to, the following:
a. Knowingly leasing to ineligible tenants or tenants whose income
exceeds the prescribed levels;
b. Knowingly allowing the tenants to exceed the prescribed
occupancy levels without taking immediate steps to stop such overcrowding;
c. Repeatedly failing to timely maintain the Project and the Site in the
manner required by this Agreement;
d. Repeatedly failing to timely submit the reports as required by this
Agreement or failing to submit materially complete reports;
e. Fraud in connection with any document or representation relating
to this Agreement or embezzlement of Project monies; and
f. Failing to fully cooperate with the City's Police Department in
maintaining a crime -free environment on the Site.
G. COMPLIANCE WITH LAWS.
1. State and Local Laws. Owner shall comply with all ordinances,
regulations and standards of the City and Agency applicable to the Site. Owner shall comply
with all rules and regulations of any assessment district of the City with jurisdiction over the Site.
2. Lease Approval. Agency shall have the right but is not required to
approve any lease forms, revisions, amendments or modification made to sarne, used by the
Project Manager or Resident Manager for leasing Units within the Site.
H. INSURANCE.
1. Duty to Procure Insurance. Owner covenants and agrees for itself, and
its assigns and successors -in -interest in the Site that from completion of the Project as
evidenced by City's issuance of a certificate of occupancy, and continuing thereafter until the
expiration of the Term of this Agreement, Owner or such successors and assigns shall procure
and keep in full force and effect or cause to be procured and kept in full force and effect for the
mutual benefit of Owner and Agency, and shall provide Agency evidence reasonably acceptable
to Executive Director, insurance policies meeting the minimum requirements set forth below:
a. Commercial General Liability insurance with respect to the Site
and the operations of or on behalf of Owner, in an amount not less than Two Million Dollars
($2,000,000) per occurrence including products, completed operations, contractual, bodily
injury, personal injury, death and property damage liability, subject to such increases in amount
as Agency may reasonably require from time to time. The insurance to be provided by Owner
may provide for a deductible or self-insured retention of not more than Ten Thousand Dollars
($10,000), with such maximum amount to increase at the same rate as the periodic increases it
the minimum amount of total insurance coverage set forth above.
b. With respect to the improvements and any fixtures and furnishings
to be owned by Owner on the Site, All Risk Property insurance against fire, extended coverage,
vandalism, and malicious mischief, and such other additional perils, hazards, and risks as now
are or may be included in the standard "all risk" form in general use in Fresno County,
California, with the standard form fire insurance coverage in an amount equal to full actual
replacement cost thereof, as the same may change from time to time. The above insurance
policy or policies shall not require coverage for earthquake. Agency shall be a loss payee under
such policy or policies and such insurance shall contain a replacement cost endorsement.
C. All policies of insurance required to be carried by Owner shall be
written by responsible and solvent insurance companies licensed in the State of California and
having a policy-holder's rating of A or better, in the most recent edition of "Best's Key Hating
Guide -- Property and Casualty." A- copy of each paid-up policy evidencing such insurance
(appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such
policy has been issued, providing the coverage required herein, and containing the provisions
specified herein, shall be delivered to Agency prior to its issuance of the Certificate of
Completion for the Project and thereafter, upon renewals, not less than thirty (30) days prior to
the expiration of coverage. Agency may, at any time, and from time to time, inspect and/or copy
any and all insurance policies required to be procured by Owner hereunder. In no event shall
the limits of any policy be considered as limiting the liability of Owner hereunder.
d. Each insurance policy required to be carried by Owner pursuant to
this Agreement shall contain the following endorsements, provisions or clauses:
(1) The insurer will not cancel or materially alter the coverage
provided by such policy in a manner adverse to the interest of the insured without first giving
Agency a minimum of thirty (30) days prior written notice by certified mail, return receipt
requested; and
(2) A waiver by the insurer of any right to subrogation against
Agency, its agents, employees, or representatives, which arises or might arise by reason of any
payment under such policy or policies or by reason of any act or omission of Agency, its agents,
officers, members, officials, employees, or representatives.
(3) The City, Agency, their respective agents, officers,
members, officials, employees, volunteers, and representatives shall be named insureds on the
Commercial General Liability policies.
Property insurance policies. (4) The City and Agency shall be loss payees on the All Risk
(5) Coverage provided by these policies shall be primary and
non-contributory to any insurance carried by the City, Agency, their officers, officials,
employees, volunteers, agents, or representatives.
(6) Failure to comply with reporting provisions shall not affect
coverage provided to City, Agency, their officers, employees, volunteers, agents, or
representatives.
2. Failure to Procure Insurance. If Owner fails to procure and maintain the
above-required insurance despite its availability, then Agency, in addition to any other remedy
which Agency may have hereunder for Owner's failure to procure, maintain, and/or pay for the
insurance required herein, may (but without any obligation to do so) at any time or from time to
time, after thirty (30) days written notice to Owner, procure such insurance and pay the
premiums therefor, in which event Owner shall immediately repay Agency all sums so paid by
Agency together with interest thereon at the maximum legal rate.
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OBLIGATION TO REPAIR.
1. Obligation to Repair and Restore Damage Due to Casualty Covered by
Insurance. Subject to Section 1.3 below, if the Project shall be totally or partially destroyed or
rendered wholly or partly uninhabitable by fire or other casualty required to be insured against
by Owner, Owner shall promptly proceed to obtain insurance proceeds and take all steps
necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to
promptly and diligently commence the repair or replacement of the Project to substantially the
same condition as the Project is required to be maintained in pursuant to this Agreement, and
Owner shall complete the same as soon as possible thereafter so that the Project can continue
to be operated and occupied as an affordable housing project in accordance with this
Agreement. Subject to extensions of time for "force majeure" events described in the DDA, in
no event shall the repair, replacement, or restoration period exceed one (1) year from the date
Owner obtains insurance proceeds unless Agency's Executive Director, in his or her sole and
absolute discretion, approves a longer period of time. Agency shall cooperate with Owner, at no
expense to Agency, in obtaining any governmental permits required for the repair, replacement,
or restoration. If, however, the then -existing laws of any other governmental agencies or
lenders with jurisdiction over the Property do not permit the repair, replacement, or restoration,
Owner may elect not to repair, replace, or restore the Project by giving notice to Agency (in
which event Owner shall be entitled to all insurance proceeds but Owner shall be required to
remove all debris from the Site) or Owner may reconstruct such other improvements on the Site
as are consistent with applicable land use regulations and approved by the City, Agency, and
the other governmental agency or agencies with jurisdiction.
If Owner fails to obtain insurance as required by the DDA or this Agreement (and
Agency has not procured such insurance and charged Owner for the cost), Owner shall be
obligated to reconstruct and repair any partial or total damage to the Project and improvements
located on the Site in accordance with this Section 1.1.
2. Continued Operations. During any period of repair, Owner shall continue,
or cause the continuation of, the operation of the Project to the extent reasonably practicable
from the standpoint of prudent business management.
3. Limitation on Obligation to Repair. If any casualty occurs to the Project
during the term of this Regulatory Agreement and the cost of restoration of the Project exceeds
One Hundred Thousand dollars ($100,000) more than the insurance proceeds available to
Owner for such restoration (if Owner maintains all insurance required by this Regulatory
Agreement and inclusive of any deductible or self-insured retention amounts), then Owner shall
not be required to restore the Project, but this Regulatory Agreement shall not be affected.
J. LIMITATION ON TRANSFERS. The Owner covenants that Owner shall not
transfer the Site or any of its interests therein except as provided in this Section.
1. Transfer Defined. As used in this Section, the term "Transfer" shall
include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, or the improvements thereon. A Transfer shall also include the transfer to
any person or group of persons acting in concert of more than twenty-five percent (25%) (in the
aggregate) of the present ownership and/or control of any person or entity constituting Owner or
its general partners, taking all transfers into account on a cumulative basis, except transfers of
such ownership or control interest between members of the same immediate family, or transfers
to a trust, testamentary or otherwise, in which the beneficiaries are limited to members of the
1'1
transferor's immediate family, or among the entities constituting Owner or its general partners or
their respective shareholders. In the event any entity constituting Owner, its successor or the
constituent partners of Owner or any successor of Owner, is a corporation or trust, such transfer
shall refer to the transfer of the issued and outstanding capital stock of such corporation, of
beneficial interests of such trust; in the event that any entity constituting Owner, its successor or
the constituent partners of Owner or any successor of Owner is a limited or general partnership,
such transfer shall refer to the transfer of more than twenty-five percent (25%) of such limited or
general partnership interest; in the event that any entity constituting Owner, its successor or the
constituent partners of Owner or any successor of Owner is a joint venture, such transfer shall
refer to the transfer of more than twenty-five percent (25%) of the ownership and/or control of
any such joint venture partner, taking all transfers into account on a cumulative basis.
2. Agency Approval of Transfer Required. Owner shall not Transfer the Site
or any of Owner's rights hereunder, or any interest in the Site or in the improvements thereon,
directly or indirectly, voluntarily or by operation of law, except as provided below, without the
prior written approval of Agency, and if so purported to be Transferred, the same shall be null
and void. In considering whether it will grant approval of any Transfer by Owner of its interest in
the Site, Agency shall consider factors such as (i) whether the completion and operation of the
Project is jeopardized; (ii) the financial credit, strength, and capability of the proposed transferee
to perform Owner's obligations hereunder; and (iii) the proposed transferee's experience and
expertise in the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, no transfer by Owner of all or
any portion of its interest in the Site (including without limitation a transfer not requiring Agency
approval hereunder) shall be deemed to relieve it or any successor party from the obligation to
complete the Project or any other obligations under this Agreement. In addition, no attempted
transfer of any of Owner's obligations hereunder shall be effective unless and until the
successor party executes and delivers to Agency an assumption agreement in a form approved
by the Agency assuming such obligations.
3. Exceptions. The foregoing prohibition shall not apply to any of the
following
(a) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing, but Owner shall notify Agency in advance of any such mortgage,
deed of trust, or other form of conveyance for financing pertaining to the Site.
(b) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for restructuring or refinancing of any amount of indebtedness described in
subsection (a) above, provided that the amount of indebtedness incurred in the restructuring or
refinancing does not exceed the outstanding balance on the debt incurred to finance the
acquisition of the Site and construction of improvements on the Site, including any additional
costs for completion of construction, whether direct or indirect, based upon the estimates of
architects and/or contractors.
(c) The conveyance or dedication of any portion of the site (or sites)
to the City of Fresno or other governmental agency.
(d) After recordation of the Certificate of Completion, any mortgage,
deed of trust, sale/lease-back, or other form of conveyance for financing provided that the
12
principal amount of the loan does not exceed eighty-five percent (85%) of the value of the land
and improvements thereon.
(e) The granting of easements to any appropriate governmental
agency or utility to facilitate the development of the Site.
(f) A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests of a corporation are assigned directly or
by operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
(g) A sale or transfer of forty-nine percent (49%) or more ownership
interest to a member of the transferor's immediate family, a trust, testamentary or otherwise, in
which immediate family members of the transferor are the sole beneficiaries, or a corporation or
partnership in which the immediate family members or shareholders of the transferor have
controlling majority interest of more than fifty-one percent (51%).
(h) A change in the respective percentage ownership interests
exclusively of the present owners of Owner (as of the date of this Agreement), but this shall not
authorize the transfer of any interest to any person or entity who is not a present owner of
Owner.
(i) A sale or transfer to a Qualified Tax Credit Investor.
(j) Notwithstanding anything to the contrary contained in this
Agreement, Developer shall have the right, at its option, to have the Site granted from Agency to
a nonprofit general partner who is subsequently admitted to the Developer.
(k) A sale or transfer of general partner interests to a nonprofit
general partner.
(1) Mechanic's liens removed prior to foreclosure or liens for current
year property taxes not paid.
K. ENCUMBRANCES PROHIBITED. Prior to issuance of the Certificate of
Completion by Agency as provided in the DDA, the Grantee shall not place or suffer to be
placed on the Site any lien or encumbrance other than mortgages, deeds of trust, sales and
leases back or any other form of conveyance required for financing of the acquisition of the Site,
the construction of improvements on the Site, and any other expenditures necessary and
appropriate to develop the Site, except as specifically provided in the DDA and attachments
thereto.
L. ENFORCEMENT. In the event Owner defaults in the performance or
observance of any covenant, agreement or obligation of Owner pursuant to this Agreement, and
if such default remains uncured for a period of thirty (30) days after written notice thereof shall
have been given by Agency, or, in the event said default cannot be cured within said time
period, Owner has failed to commence to cure such default within said thirty (30) days and
thereafter fails to diligently prosecute said cure to completion, then Agency shall declare an
13
"Event of Default" to have occurred hereunder, and, at its option, may take one or more of the
following steps:
1. By mandamus or other suit, action or proceeding at law or in equity,
require Owner to perform its obligations and covenants hereunder or enjoin any acts or things
which may be unlawful or in violation of this Agreement; or
2. Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
3. Enter the Site and cure the Event of Default as provided in Section E
hereof.
4. Impose, through Agency's Executive Director, an administrative fine for
each day the violation continues. The amount of the fine shall be Twenty -Five dollars ($25.00)
per day, unless the violation is deemed a major violation, in which case the fine shall be
Seventy -Five dollars ($75.00) per day. A "major" violation shall be one which affects adjacent
property or the health and safety of persons. Owner may appeal the assessment of any fine to
the City Council who may reverse, modify or uphold the decision of the Executive Director. In
making this decision, the City Council shall determine whether the violation exists and whether
the amount of the fine is appropriate under the circumstances.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by any party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by another party.
M. NONDISCRIMINATION. There shall be no discrimination against or segregation
of any person, or group of persons, on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Site, or any part thereof (except as permitted by this
Agreement).
N. FORM OF NONDISCRIMINATION CLAUSES IN AGREEMENTS. Subject to the
tenancy/occupancy restrictions not prohibited by federal law as embodied in the DDA, which
may modify the following nondiscrimination clauses, the following shall apply: Owner shall
refrain from restricting the rental, sale, or lease of any portion of the Site on the basis of race,
color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national
origin of any person. All such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
a. Deeds: In deeds the following language shall appear: "The grantee
herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, age, physical or mental disability, ancestry, or national origin in the sale, lease,
rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed,
nor shall the grantee itself, or any persons claiming under or through it, establish or permit any
14
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in
the land herein conveyed. The foregoing covenants shall run with the land."
b. Leases: In leases the following language shall appear: "The lessee
herein covenants by and for itself, its heirs, executors, administrators, successors, and assigns,
and all persons claiming under or through them, and this lease is made and accepted upon and
subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, age, physical or
mental disability, ancestry, or national origin in the leasing, subleasing, renting, transferring,
use, occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased."
C. Contracts: In contracts the following language shall appear: "There shall
be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or
national origin in the sale, lease, rental, sublease, transfer, use, occupancy, tenure, or
enjoyment of the land, nor shall the transferee itself, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the land."
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.
O. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to the
covenants, reservations, and restrictions set forth in this Agreement. Agency and Owner hereby
declare their express intent that all such covenants, reservations, and restrictions shall be
deemed covenants running with the land and shall pass to and be binding upon the Owner's
successors in title to the Site; provided, however, that on the termination of this Agreement said
covenants, reservations and restrictions shall expire. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire term of this Agreement, without regard to whether
the Agency is or remains an owner of any land or interest therein to which such covenants
relate. Each and every contract, deed or other instrument hereafter executed covering or
conveying the Site or any portion thereof shall conclusively be held to have been executed,
delivered and accepted subject to such covenants, reservations, and restrictions, regardless of
whether such covenants, reservations, and restrictions are set forth in such contract, deed or
other instrument.
Agency and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land in that Owner's legal interest in the Site is
rendered less valuable thereby. Agency and Owner hereby further declare their understanding
and intent that the benefit of such covenants touch and concern the land by enhancing and
increasing the enjoyment and use of the Project by Eligible Tenants, the intended beneficiaries
of such covenants, reservations, and restrictions, and by furthering the public purposes for
which the Agency was formed.
15
Owner, in exchange for the Agency entering into the DDA, hereby agrees to hold, sell,
and convey the Site subject to the terms of this Agreement. Owner also grants to the Agency
and the City the right and power to enforce the terms of this Agreement against the Owner and
all persons having any right, title or interest in the Site or any part thereof, their heirs,
successive owners and assigns.
P. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to
Indemnify, defend, and hold harmless Agency, City, and their respective officers, members,
officials, employees, agents, volunteers, and representatives from and against any loss, liability,
claim, or judgment relating in any manner to the Project excepting only any such loss, liability,
claim, or judgment arising out of the intentional wrongdoing or gross negligence of Agency, City,
or their respective officers, officials, employees, members, agents, volunteers, or
representatives. Owner, while in possession of the Site, and each successor or assign of
Owner while in possession of the Site, shall remain fully obligated for the payment of property
taxes and assessments in connection with the Site. The foregoing indemnification, defense,
and hold harmless agreement shall only be applicable to and binding upon the party then
owning the Site or applicable portion thereof.
O. ATTORNEYS' FEES. In the event that a party to this Agreement brings an action
against the other party hereto by reason of the breach of any condition, covenant,
representation or warranty in this Agreement, or otherwise arising out of this Agreement, the
prevailing party in such action shall be entitled to recover frorn the other reasonable expert
witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include
attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled
to all other reasonable costs for investigating such action, including the conducting of discovery.
R. AMENDMENTS. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Fresno.
S. NOTICE. Any notice required to be given hereunder shall be made in writing and
shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt
requested, or by a national "overnight courier" such as Fed -Ex, at the addresses specified
below, or at such other addresses as may be specified in writing by the parties hereto:
Agency: Redevelopment Agency
of the City of Fresno
2344 Tulare Street, Suite 200
Fresno, CA 93721
Attn: Executive Director
Copy to: Agency Counsel
2600 Fresno Street
Fresno, CA 92612
Attn:
Owner: EDISON PLAZA PARTNERS, L.P.
855 M Street, Suite 1110
Fresno, CA 93721
Attn: Tom Richards
Facsimile No. (559) 268-6030
16
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received, or if by overnight courier; of the time of delivery shown.
T. SEVERABILITY/VVAIVER/INTEGRATION.
1. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
2. Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any
other covenants or conditions, nor shall the delay or forbearance by either party in exercising
any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such
remedy or right.
3. Integration. This Agreement contains the entire Agreement between the
parties and neither party relies on any warranty or representation not contained in this
Agreement.
U. FUTURE ENFORCEMENT. The parties hereby agree that should the Agency
cease to exist as an entity at any time during the term of this Agreement, the City of Fresno
shall have the right to enforce all of the terms and conditions herein, unless the Agency had
previously specified another entity to enforce this Agreement.
V. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
W. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one and the
same instrument.
[END -- SIGNATURES ON NEXT PAGE]
17
IN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized representatives
on the date first written hereinabove.
"AGENCY"
THE REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO,
a public body, corporate and politic
Marlene Murphey
Executive Director
ATTEST: APPROVED AS TO FORM:
Yvonne Spence JAMES C. SANCHEZ
Ex Officio Clerk, Ex Officio Attorney,
Fresno Redevelopment Agency Fresno Redevelopment Agency
Deputy
Date:
Deputy
"OWNER"
EDISON PLAZA PARTNERS, L.P.
a California Limited Partnership
By:
Its:
[END OF SIGNATURES]
STATE OF CALIFORNIA
) ss.
COUNTY OF
On before me, _, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
) ss.
COUNTY OF
Notary Public
On before me, personally appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
STATE OF CALIFORNIA
) ss.
COUNTY OF
On __, before me, _ personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
) ss.
COUNTY OF
Notary Public
On _, before me, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
if
Mixed Income Housing Project -
Lorena to Florence, Plumas to Walnut
Redevelopment Agency
&I" of the City of Fresno
Ciiy of
rF15'+Zia2»3
REPORT TO THE REDEVELOPMENT AGENCY
DATE: January 26, 2012
FROM: Marlene Murphey, Executive Director
BY: Terry Cox, Project Manager
Agency Item No.
Agency Meeting:
1-26-12
Presented tod4T +,.ed_/ RZ A
Date_-
SUBJECT: AGENCY BOARD APPROVE REFORMATION OF DISPOSITION AND DEVELOPMENT
AGREEMENT between the REDEVELOPMENT AGENCY OF THE CITY OF FRESNO
(the "Agency") and EDISON PLAZA PARTNERS, LP, a California limited partnership (the
"Developer"), for a mixed income/multi-family housing project, on approximately 6.9 acres
located south of Lorena Street and west of Walnut Street, subject to City Attorney
approval as to form.
RECOMMENDATION
It is recommended that the Redevelopment Agency Board:
Approve Reformation of Development and Disposition Agreement between the
Redevelopment Agency of the City of Fresno and Edison Plaza Partners, LP for a mixed
income/multi-family housing project on approximately 6.9 acres south of Lorena Street
and west of Walnut Street.
EXECUTIVE SUMMARY
The Agency Board and City Council approved a Disposition and Development Agreement (DDA)
between the Redevelopment Agency of the City of Fresno and Edison Plaza Partners, LP for
Phase II of a 20 -acre mixed-use project that would result in construction of a 200 -unit multi -family
community complex with community center, play yards, and public green space to be
constructed in two phases. Both phases to include construction of required landscaping, onsite
parking, and public road improvements.
The Developer has requested modification of the agreement for a total of 128 multi -family units
on the project's 10 -acre site that includes 88 affordable units ranging from 50-120% AMI (see
attached letter).
BACKGROUND
The Agency has worked to implement a Master Plan developed in conjunction with the HOPE VI
Project for the area in Southwest Fresno generally between California/Church Avenues and
Walnut/West Avenues. The plan includes a mixed-use component, of approximately 20 acres
assembled by the Agency.
Following a Request for Proposals, the Redevelopment Agency Board on October 11, 2005,
directed the Agency to proceed to negotiate with the selected developer, Edison Plaza Partners
for a mixed-use project on the approximate 20 acre site between California, Florence, Walnut
and Plumas. Phase I, an approximately 10 acre site (net 6.5 acres) between California, Plumas,
V
Staff Report to City Council & Agency Board
Edison Plaza Partners, L.P., Mixed Income/Multi-Family Housing Page 2
Lorena and Walnut Avenues has moved forward with the completed construction of the West
Fresno Regional Center consisting of a 37,617 square foot County "One -Stop" Service Center
and Library. Additionally planned for Phase I is construction of a 25,000 square foot professional
office complex and a 7,000 square foot retail building. Phase II, on a approximately 10 acre site
(net 6.9 acres) will occupy the balance of the 20 acre project between Lorena, Florence, Walnut
and Plumes Avenues. Phase ll, is planned for residential development, and is within walking
distance to the Service Center, Library and planned Professional Commercial and Retail
development. The construction of the residential units is essential to the successful completion
of Phase I as it relates to the securing of commercial and retail tenants.
The Developer in working through the development process with the City of Fresno and various
related agencies will be limited to site plan approval for and construction of a total 128 multi-
family units on the project's 10 acre site, not the originally planned 200 units.
The Agency through the Disposition and Development Agreement is providing a grant of
$5,655,000 million for the multi -family development. Funding for this project is provided for in the
Agency FY 11/12 budget and has been included in the State Department of Finance Enforceable
Payment Obligation Schedule. The combined mixed use construction of $17 million for (Phase 1)
and $27 million for (Phase 11) brings a total investment of $44 million to this previously vacant
southwest Fresno site.
The units ranging from one bedroom/one bath to three bedroom/two bath have been designed to
blend with the existing community. The design and privacy provided in each unit along with the
open community space, play and recreation areas, and accessible parking provide quality of life
enhancing amenities. This project provides a mix of market rate (unrestricted) and affordable
housing in a well designed community setting and completes a significant transformative mixed
use development for West Fresno.
After Agency Board award of a Request for Proposal to Edison Plaza Partners, the developers
secured the County of Fresno as an anchor tenant for the 6.5 acre, Phase I commercial
component of the mixed use project. The developers through a lease agreement with the County
built the West Fresno Regional Center and library representing $12 million in value. The agency
assembled land and constructed the required off-site improvements. The center and library were
completed in February 2010.
The residential component will be constructed on the remaining 6.9 acre site at California and
Walnut. The site is currently vacant and all existing structures/improvements have been
demolished. The property is zoned C -P and is consistent with the proposed land use. The
developer has determined that the site will not support the originally proposed 200 units and is
limited to the construction of 128 units.
The Disposition and Development Agreement provides that the developer will pay appraised
"Market Value" of $655,000 for the twenty-nine (29) parcel, 6.9 acre site. The developer will
construct the public off-site improvements estimated at approximately $1,600,000 along Lorena,
Walnut, Plumas and Florence. The offsite improvements will include curbs, gutters, sidewalks,
street lights, and utility relocation/replacement.
The addition of residents in the immediate area is critical to securing stable and long term
successful commercial and retail tenants, therefore, it is probable that without the development
Staff Report to City Council & Agency Board
Edison Plaza Partners, L.P., Mixed Income/Multi-Family Housing Page 3
of the residential units the commercial and retail portions of Phase I will not be constructed. The
property has long been vacant and will likely remain vacant without development of this project.
The vacant land will remain a maintenance liability and provide no increased value for the
foreseeable future.
The subject reformation agreement allowing the developer to construct the maximum allowable
128 units for this site and the public off-site improvements, will further the planned realignment of
Walnut Avenue. This reformation creates no additional obligations or liabilities to the Agency
and will preserve assets and minimize liability to the Agency. Due to the dissolution of the
Agency and the City of Fresno's already stretched infrastructure budget, construction of the $1.6
million in public street improvements will not be completed without this project.
The current value of the land is $655,000, after completion of the residential units, the value of
the property will increase to an estimated $27 million therefore, increasing not only the property
values of the project site, but additionally the general community property owners will benefit
from their increased property values. Without construction of this project, school districts will not
collect the anticipated developer fees associated with the development, additional sales taxes
will not be generated and the property will remain vacant further negatively impacting the area's
property value.
Attachments:
Developer's Letter
Reformation of Disposition and Development Agreement
Exhibit B-1: Revised Scope of Development
Exhibit C-1: Revised Schedule
Exhibit G-1: Revised Regulatory Agreement
Edison Plaza Partners
855 M. Street, Suite 1110
Fresno, CA 93721
(559) 268-6090 Fax (559) 268-6030
January 20, 2012
To whom it may concern:
Edison Plaza Partners is requesting an amendment to the DDA awarded by the Redevelopment
Agency for the City of Fresno for the proposed development of the Edison Plaza Partners II project,
located adjacent to the Edison Plaza I project on its southern border. The first phase of this multi -
phased development consisted of the facility known as the "West Fresno Regional Center" which
currently houses a County of Fresno Library and various administration offices for County services. The
first phase also allows for the development of approximately 37,000 square feet of commercial/retail
space once suitable tenants have been identified and secured. The amendment being requested is for
the second phase of this development, which envisioned initially approximately 200 multi -family units
and was subsequently awarded a DDA by the Redevelopment Agency and the City Council of Fresno for
development of the proposed project, Unfortunately, in working through the development process with
the Planning Department for the City of Fresno and various related agencies, it has become clear that
the proposed site will be limited to a total of 128 multi -family apartments,
The Redevelopment Agency has invested millions of dollars in the revitalization of this particular
project area, specifically related to the first and second phases of this development. The multi -family
housing piece is essential to the success of phase 1, as prospective commercial and retail tenants are
unwilling to invest in locating in the proposed area without additional housing units and population to
support their respective business operations. The multi -family portion of this multi phased
development will bring approximately 400 additional residents to the area. These additional residents
will be in walking distance to the proposed and approved commercial/retail sites and as initially
envisioned will add significant value to the feasibility of leasing these spaces to viable tenants.
Additionally, tax dollars which will benefit the City and County (for both property and sales taxes) will be
lost on both the multi -family development as well as the commercial/retail project without the
completion of the proposed multi -family. Essentially, without an amendment the millions of dollars
already invested in this blighted community will have been wasted.
Edison Plaza Partners remains committed to bringing this final phase to completion and believes
that it will enhance the previously developed projects as well as the neighborhood and surrounding
community adding much needed economic value to the area.
Sinc rely,
Edison Pla a P triers n
Y�
Thomas G. Richards
Mixed Income Housing Project -
Lorena to Florence, Plumas to Walnut
;� Redevelopment Agency
l r .-� .. o1 the Qty of 1=resno
REFORMATION OF
DISPOSITION AND DEVELOPMENT AGREEMENT
WITH
EDISON PLAZA PARTNERS, L.P.
This Reformation of Disposition and Development Agreement ("Reformation of
Agreement") is entered into this day of January, 2012, between the REDEVELOPMENT
AGENCY OF THE CITY OF FRESNO, a public body corporate and politic (the "Agency"), and
EDISON PLAZA PARTNERS, L.P., a California limited partnership (the "Developer"). This
Reformation of Agreement is entered into in respect to that certain Disposition and Development
Agreement between Agency and Developer, with an effective date of March 9, 2011.
WHEREAS, the Agency and Developer entered into a Disposition and Development
Agreement (the "Agreement') effective March 9, 2011, pursuant to which the Developer
proposes to purchase 6.9 acres of property from the Agency at fair market value and develop in
two phases a multi -family apartment complex anticipated to include 200 units, 160 of which
would be affordable (the "Project'); and
WHEREAS, the current Agreement does not express the original intent of the parties
because certain details in the Project description were mistakenly incorrect concerning the
calculation of the number of units per acre of available property; and
WHEREAS, California Civil Code section 3399 provides that when, through mutual
mistake of the parties, a written contract does not truly express the intention of the parties, it may
be revised on the application of a party aggrieved, so as to express that intention; and
WHEREAS, the parties now must reform the Agreement to match the actual agreement
as understood by the parties and to express their original intent.
NOW, THEREFORE, with reference to the above recitals, and in consideration of the
mutual covenants and agreements contained in the Agreement and this Reformation of
Agreement, the Agency and Developer agree as follows:
1. The total number of apartment units in the Project shall be reduced from 200 to
128. Of those 128 units, 88 shall be restricted to occupancy by Low Income Households at an
Affordable Rent as defined in the Agreement and Regulatory Agreement attached thereto. The
Agency Assistance per affordable unit shall remain the same.
2. Exhibit B to the Agreement (Scope of Development), shall be revised as set forth
in the attached Exhibit B-1.
3. Exhibit C to the Agreement (Schedule), shall be revised as set forth in the
attached Exhibit C-1.
4. Exhibit G to the Agreement (Regulatory Agreement), shall be revised as set forth
in the attached Exhibit G -I.
5. All terms and provisions of the Agreement not expressly reformed hereby shall
remain in full force and effect.
6. If, for any reason, this Reformation of Agreement is found to be invalid or
unenforceable, then this Reformation shall be stricken and the Agreement shall remain in fill]
force and effect.
7. The Parties may sign this Reformation of Agreement in counterparts. Each
counterpart, when executed and delivered, will be one instrument with the other counterparts.
IN WITNESS WHEREOF, Agency and Developer have executed this Reformation of
Agreement on the dates set forth below.
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
Marlene Murphey,
Executive Director
Datcd:
ATTEST:
YVONNE SPENCE, CMC
Ex Officio Clerk
Redevelopment Agency of the
Fresno
City of Fresno
By:
Deputy
EDISON PLAZA PARTNERS, L.P.,
a California limited partnership
By:_
Thomas G. Richards
Chief Executive Officer
Dated:
By:
James Hendricks
General Partner - HAW 56
Dated:
APPROVED AS TO FORM:
JAMES SANCHEZ
Ex Officio Attorney
Redevelopment Agency of the City of
By:_
Deputy
Dated: Dated:
7
Exhibit B-1: Reformed Scope of Development
Exhibit C-1: Reformed Schedule
Exhibit G-1: Reformed Regulatory Agreement
Exhibit "BA"
Phased Scope of Development — Proforma Budget
PRIVATE DEVELOPMENT
A. General
The Developer agrees that the Property shall be developed and improved
in accordance with the provisions of this Agreement and the Basic Design
(Exhibit "F") approved by the Agency pursuant hereto. The Developer
and its supervising architect, engineer and contractor shall work with
Agency staff to coordinate the overall design, architecture and color of the
improvements on the Property.
B. Developer's Improvements
The Developer shall construct, or cause to be constructed, on the
Property the following:
A multi -family residential community consisting of 128 units with unit size
and specifications consisting of one -bedroom, two-bedroom, and three-
bedroom units. The total square footage of the project at completion is
estimated to be 142,580 square feet (including common area) which
includes four tot lots, a community center, and pool and community
gardens. The on-site improvements consisting of parking lots with
improvement, lighting, landscaping will be constructed as required by City
of Fresno and Redevelopment Agency development standards. The units
will have the following rent specifications/restrictions:
• 40 units at 80/120% Median Income
• 45 units at 60% Median Income
® 43 units at 50% Median Income
The project will be constructed in one phase.
C. Architecture and Design
The Developer's improvements shall be of high architectural quality, shall
be well landscaped and shall be effectively and aesthetically designed.
The shape, scale of volume, exterior design and exterior finish of the
building must be consonant with, visually related to, physically related to
and an enhancement of adjacent buildings within the Project Area.
D. Landscaping
Landscaping shall embellish all open spaces on the Property.
Landscaping includes such materials as paving, trees, shrubs and other
plant materials, landscape containers, plaza furniture, top soil preparation,
automatic irrigation and landscape and pedestrian lighting. Landscaping
shall carry out the objectives and principles of the Agency's desire to
accomplish a high quality aesthetic environment.
E. Signs
All signs on the exterior of the buildings are of special concern to the
Agency and must be approved by the Agency (which approval shall not
be unreasonably withheld).
F. Screening
Trash areas shall be screened on at least three (3) sides and have
movable doors or other devices to obscure such areas from view. All fire
standpipes and such other fire related mechanical devices shall be
screened with plant materials. Rooftop equipment shall be reasonably
hidden so as to mitigate views from principal elevations surrounding the
development.
G. Applicable Codes
The Developer's improvements shall be constructed in accordance with
the Uniform Building Code (with City modifications) and the Municipal
Code.
II. SITE CLEARANCE AND PREPARATION
The Developer shall perform, or cause to be performed, at its sole cost and
expense, the following work:
A. On -Site Clearance.
On the Property, clear and grub The Property is vacant and unimproved.
The Agency, as of the Effective Date is unaware of any subsurface
structures, foundations, obstructions, basements, tanks, and the like.
B. Compaction Finish Grading and Site Work
The Developer shall compact, finish grade and do such site preparation
as is necessary for the construction of the Developer's improvements on
the Property.
III. OFF-SITE IMPROVEMENTS
The Developer shall design, construct and install required Off -Site Public
Improvements, at its sole cost and on a schedule which coordinates with the
development.
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TOTAL TECHNICAL FEES _
Development Cost Budget
500,000
$
500,000
$
Total Units
$
128
$
$
Unit Square Feet
Developer Fee
142,850
Interest
$
1,800,000 $
14,063
$
12.60
Common Area Square Feet
S
0
Property Insurance
S
100.000
$
100,000
$
Total Net Square Feet
$
142,850
Property faxes
S
25,000
$
25,000
$
195
$
Total Costs
Construction Interest
Eligible Basis
627 f:22
Per Unit
-
Per NSF
Construction Costs(Building & Site
$
4.39
Lease Up Fee
100%
_
$
-
$
New Buildings
$
0.53
TOTAL INTERIM COSTS
11,42$,000
$
89,281
$
$0.00
Land
$
G:;5 �i�C
$
125,000
$
5,117
$
4.59
other
TOTAL DEVELOPMENT COSTS
_
$
_
$
$
$
$
other
$
0.70
$
y
$
$
$
other
5
0.11
$
$
$
$
$
$
Site Costs, Contingency & Bonds
$
2,750
$
2,750,000
$
21,484
$
19.25_
TOTAL CONSTRUCTION COSTS
$
14,833,000
$
14,178,000
$
115,883
103.84
78
$
0.07
Title/Recording/Doc Stamps
25 0G0
$
$
Permits and Fees
$
0.18
Environmental Report
_
25.OG0
$
$
Impact Fees (Non -Utility)
$
1 ' 2 -"' i
$
1,732,500
$
13,535
$
12.33
TOTAL PERMITS AND FEES
$
1,732,500
$
1,732,500
$
13,535
$
12.13
Technical Fees
$
0.70
TOTAL SOFT COSTS
$
260.000
$
Q
Architect Fees -- Design
qz
1 n)
$
450,000
$
3,516
$
3.15
Supervision
$
-
$
$
Surveying
$
-
$
$
EngineeringlSoil Testing
S2--
$
50 000
$
391
$
0 35
TOTAL TECHNICAL FEES _
_- $
500,000
$
500,000
$
3,906
$
3"50
$
$
Developer Fee
S
Interest
$
1,800,000 $
14,063
$
12.60
Deferred Developer Fee
S
(1,800,0002
Property Insurance
S
100.000
$
100,000
$
781
$
0.70
Property faxes
S
25,000
$
25,000
$
195
$
0.18
Construction Interest
_
627 f:22
$
-
$
4,903
$
4.39
Lease Up Fee
$
_
$
-
$
_
$
0.53
TOTAL INTERIM COSTS
$
752,622
$
125,000
$
51880
$
5,27
Financing Casts
125,000
$
- $
_
977
$
0,88
TOTAL DEVELOPMENT COSTS
$
Loan Fee
$
100 000
$
-
$
781
$
0.70
InspectionConstruction
' _
y
t 5 Oc0
$
$
117
$
0.11
TOTAL FINANC NGCOSTS
$
115, p
00
$
-
$
898
$
. 0.81
Soft Development Costs
Appraisal
10.010(11
$
$
78
$
0.07
Title/Recording/Doc Stamps
25 0G0
$
$
195
$
0.18
Environmental Report
_
25.OG0
$
$
195
$
0.18
Legal
$
100,000
$
-
$
781
$
0.70
Tax Credit Fees
5
100.000
$
-
$
781
$
0.70
TOTAL SOFT COSTS
$
260.000
$
Q
9 WAI
qz
1 n)
Franchise Partnership & Developer Fee
Franchise Partnership
$
$
Developer Fee
S
1,800.000
$
1,800,000 $
14,063
$
12.60
Deferred Developer Fee
S
(1,800,0002
$
$
{12.60
TOTAL FRANCHISE PARTNERSHIP & DEVEL5F $
$
1,800,000 $
_(14,063)
$
-
Project Reserves
Initial Marketing Costs
w
S
5 000
$
586
$
0.53
Operating Reserves _
_ S
50,0(0
$
391
$
0.35
TOTAL PROJECT RESERVES
$
125,000
$
- $
_
977
$
0,88
TOTAL DEVELOPMENT COSTS
$
18,316,122
$
18,335,500 $
143,110
$
128.23
EDISON PLAZA II SITE PLAN - R3
FRESNO CA 04-25-2011 1.-30'-0-
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EXHIBIT G-1
EDISON PLAZA PARTNERS, L.P., DDA
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY
OF THE CITY OF FRESNO
2344 Tulare Street
Fresno, CA 93721
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ("Agreement") is made and entered into this day of _
, by and between the REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public
body, corporate and politic ("Agency"), and EDISON PLAZA PARTNERS, L.P., a California
limited partnership ("Owner").
RECITALS:
A. Pursuant to Disposition and Development Agreement by and between Agency
and Owner dated March 9, 2011 and Reformation dated , 2012 (the "DDA"), Agency
has provided to Owner real property and financial assistance in the amount of approximately
Five Million Six Hundred Sixty Five Thousand Dollars ($5,665,000.00) (collectively, the "Agency
Assistance"), all for the purpose of assisting Owner in the acquisition of real property and the
development of a residential apartment complex thereon wherein the units shall be rented to
very low and lower income households, on that certain real property located in the City of
Fresno, County of Fresno, State of California, more particularly described in Attachment "1"
attached hereto and incorporated herein by reference (the "Site").
B. Pursuant to the DDA, Owner has agreed to develop, construct, and maintain a
rental apartment housing project consisting of one hundred twenty-eight (128) total residential
units (hereinafter referred to collectively as the "Project") on the Site. The Project is also
referred to in the DDA as the "Project," and is further described in the Scope of Development
attached to the DDA.
C. Agency and Owner now desire to place restrictions upon the use and operation
of the Project, in order to ensure that the Project shall be operated continuously as a rental
apartment housing project available for rental by very low and lower income persons for the
term of this Agreement.
D. It is the intent of the parties that the title vested in Owner by the Grant Deed for
the Site dated ("Grant Deed"), recorded concurrently herewith in Office of the
County Recorder for the County of Fresno be subject to this Regulatory Agreement, and that the
terms hereof shall be binding on the Owner and its successors in interest in the Site for so long
as the Regulatory Agreement shall remain in effect.
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by and for
themselves, their heirs, executors, administrators and assigns, and all persons claiming under
or through them, that the Site shall be held, transferred, encumbered, used, sold, conveyed,
leased and occupied, subject to the covenants and restrictions hereinafter set forth, all of which
are declared to be in furtherance of a common plan for the improvement and sale of the Site,
and are established expressly and exclusively for the use and benefit of the Agency, the
residents of the City of Fresno, and every person renting a dwelling unit on the Site.
A. DEFINITIONS.
1. Affordable Lower Income Rent. As used in this Agreement, the term
"Affordable Lower Income Rent" shall mean annual rentals whose amount does not exceed the
maximum percentage of income that can be devoted to rent as set forth by Health & Safety
Code Section 50053, or its successor, which is currently thirty percent (30%) of sixty percent
(60%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit.
2. Affordable Rent. As used in this Agreement, the term "Affordable Rent"
shall refer to Affordable Low Income Rent.
3. Affordable Very Low Income Rent. As used in this Agreement, the term
"Affordable Very Low Income Rent" shall mean annual rentals whose amount does not exceed
the maximum percentage of income that can be devoted to rent as set forth by Health & Safety
Code Section 50053, or its successor, which is currently thirty percent (30%) of fifty percent
(50%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit.
4. Eligible Tenant. As used in this Agreement, the term "Eligible Tenant"
shall refer to a Lower Income Tenant.
5. Fresno County Median Income. For purposes of this Agreement, the
"Fresno County Median Income" shall be determined by reference to the regulations published
by the California Department of Housing and Community Development pursuant to Health and
Safety Code Section 50093, or its successor.
6. Lower Income Tenant. As used in this Agreement, the term "Lower
Income Tenant" shall mean those tenants whose household income does not exceed eighty
percent (80%) of the Fresno County Median Income.
7. Proiect Manager. As used in this Agreement, the term "Project Manager"
shall refer to that entity, to be designated by Owner and approved by Agency, who shall be
responsible for operating and maintaining the Project in accordance with the terms of this
Agreement. Prior to Agency's approval, Owner shall act as Project Manager.
8. Resident Manager. As used in this Agreement, the term "Resident
Manager" shall refer to that individual (or those individuals) who may reside in the Project and
who are responsible for day-to-day management of the Project.
9. Unit. As used in this Agreement, the term "Unit" shall refer to any of the
two hundred (200) residential units reserved for Eligible Tenants or the Resident Manager.
10. Very Low Income Tenant. As used in this Agreement, the term "Very Low
Income Tenant" shall mean those tenants whose income does not exceed fifty percent (50%) of
the Fresno County Median Income.
B. RESIDENTIAL RENTAL PROPERTY. The Owner hereby agrees that the
Project is to be owned, managed, and operated as a project for lower income residential rental
purposes for a term equal to fifty-five (55) years, commencing upon the date of the recordation
of the Certificate of Completion for the Site in accordance with the DDA (the "Term"). To that
end, and for the term of this Agreement, the Owner hereby represents, covenants, warrants and
agrees as follows:
1. Purpose. The Site is being acquired and the Project constructed for the
purpose of providing very low and lower income rental housing and the Owner shall own,
manage, and operate the Project as a project to provide very low and lower income rental
housing comprised of several interrelated buildings or structures, together with any functionally
related and subordinate facilities.
2. Residential Use. None of the Units in the Project will at any time be
utilized on a transient basis or used as a hotel, motel, dormitory, fraternity house, sorority
house, rooming house, nursing home, hospital, sanitarium, or trailer court or park without the
Agency's prior consent which consent may be given or withheld in its sole and absolute
discretion.
3. Conversion of Project. No part of the Project will at any time be owned by
a cooperative housing corporation, nor shall the Owner take any steps in connection with the
conversion to such ownership or uses to condominiums, or to any other form of ownership,
without the prior written approval of Agency which approval may be given or withheld in its sole
and absolute discretion.
4. Preference to Eligible Tenants. All of the Units will be available for rental
in accordance with the terms of this Agreement, and the Owner shall not give preference to any
particular class or group in renting the Units in the Project, except to the extent that the Units
are required to be leased or rented to Eligible Tenants and except as provided in Section C.6
below.
5. Resident Manager. One, and only one, Unit in the Project may be
occupied by a Resident Manager.
6. Liability of Owner. Owner and Resident Manager shall not incur any
liability under this Agreement as a result of fraud or intentional misrepresentation by a tenant.
C. OCCUPANCY OF PROJECT BY ELIGIBLE TENANTS. Owner hereby
represents, warrants, and covenants as follows:
1. Occupancy. Except as expressly provided herein, throughout the term of
this Agreement the occupancy of the 88 Restricted Units in the Project (excluding the Resident
Manager Unit) shall be restricted to Eligible Tenants and qualified members of the Eligible
Tenant's household.
2. Expiration of Occupancy and Rent Restrictions. The Units shall be
subject to the restrictions contained in this Section C for the Term of this Agreement. All tenants
residing in the Units during the final two (2) years of the Term shall be given notice of the
expiration of the Term at least once every six (6) months during the final two years. After the
expiration of the Term, the rents payable on the Units may be raised to market rates.
3. Rental Rates. Owner hereby agrees to rent those Restricted Units
occupied by Lower Income Tenants at no greater than Affordable Lower Income Rent, and to
rent those Units occupied by Very Low Income Tenants at no greater than Affordable Very Low
Income Rent.
4. Occupancy By Eligible Tenant. A Unit occupied by an Eligible Tenant
shall be treated as occupied by an Eligible Tenant until a recertification of such tenant's income
in accordance with Section C.8 below demonstrates that such tenant no longer qualifies as an
Eligible Tenant.
5. Income Computation Certificate. Immediately prior to an Eligible Tenant's
occupancy of a Unit, Owner shall obtain and maintain on file an Income Computation and
Certification form (which form shall be approved in advance by the Agency) from each such
Eligible Tenant dated immediately prior to the date of initial occupancy in the Project by such
Eligible Tenant. In addition, the Owner will provide such further information as may be
reasonably required in the future by the Agency. Owner shall use its best efforts to verify that
the income provided by an applicant is accurate by taking the following steps as a part of the
verification process: (i) obtain three (3) pay stubs for the most recent pay periods; (ii) obtain a
written verification of income and employment from applicant's current employer; (iii) obtain an
income verification form from the Social Security Administration and/or California Department of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant is
unemployed or did not file a tax return for the previous calendar year, obtain other verification of
such applicant's income as is satisfactory to the Agency; or (v) such other information as may
be requested by the Agency. A copy of each such Income Computation and Certification shall
be filed with the Agency prior to the occupancy of a Unit by an Eligible Tenant whenever
possible, but in no event more than thirty (30) days after initial occupancy by said tenant.
6. Rental Priority. During the term of this Agreement, and subject to
compliance with state and federal fair housing laws, Owner shall use its best efforts to lease
vacant Units reserved for Eligible Tenants in the following order of priority: (i) displaced persons
entitled to a preference pursuant to California Health and Safety Code Section 33411.3 or
successor statute, with highest priority in this category to residents of Fresno; (ii) residents of
the City of Fresno; and (iii) other persons meeting the eligibility requirements of this Agreement.
Owner shall and Agency may maintain a list (the "Housing List") of persons who have notified
Owner and/or Agency of their desire to rent a Unit in the Project and who have incomes which
would qualify them as an Eligible Tenant, and Owner shall offer to rent Units on the above -
referenced priority basis. Should multiple tenants be equally eligible and qualified to rent a Unit,
Owner shall rent available Units to Eligible Tenants on a first-come, first-served basis.
7. Renting Vacant Units. When a Unit becomes available as a result of a
tenant vacation, Owner shall rent the Unit to an Eligible Tenant in accordance with the order of
priority set forth in Section C.6.
8. Income Recertification. Immediately prior to the first anniversary date of
the occupancy of a Unit by an Eligible Tenant and on each anniversary date thereafter, Owner
shall recertify the income of such Eligible Tenant by obtaining a completed Income Computation
and Certification based upon the current income of each occupant of the Unit. Owner shall
provide the Agency with a copy of each such recertification with the next submission of
Certificate of Continuing Program Compliance pursuant to Section C.10.
9. Terminating Ineligible Tenant. The tenant may be evicted for good cause
as defined by Section 42 of the Internal Revenue Service regulations.
10. Certificate of Continuing Program Compliance. Upon the issuance of the
Certificate of Completion and annually by March 15 of each year, or at any time upon the written
request of Agency, Owner shall advise the Agency of the occupancy of the Project by delivering
a Certificate of Continuing Program Compliance in the form attached hereto as Attachment "2"
certifying: (i) the number of Units of the Project which were occupied or deemed occupied
pursuant to Section CA by an Eligible Tenant during such period, and (ii) to the knowledge of
Owner either (a) no unremedied default has occurred under this Agreement, (b) a default has
occurred, in which event the Certificate shall describe the nature of the default and set forth the
measures being taken by the Owner to remedy such default.
11. Maintenance of Records. Owner shall maintain complete and accurate
records pertaining to the Units, and shall permit any duly authorized representative of the
Agency to inspect the books and records of Owner pertaining to the Project including, but not
limited to, those records pertaining to the occupancy of the Units.
12. Reliance on Tenant Representations. Each lease shall contain a
provision to the effect that Owner has relied on the income certification and supporting
information supplied by the tenant in determining qualification for occupancy of the Unit, and
that any material misstatement in such certification (whether or not intentional) will be cause for
immediate termination of such lease.
13. Conflicts. The leasing preference provision set forth in Section C.6 and
termination or non -renewal provisions set forth in Sections C.8 and C.9 shall apply only in the
event, and to the extent, such provisions are not in conflict with Internal Revenue Code
provisions or IRS regulations.
14. Agency Remedy For Excessive Rent Charge.
a. It shall constitute a default for Owner to charge or accept for a Unit
rent amounts in excess of the amount provided for in Section C.3 of this Agreement. In the
event that Owner charges or receives such higher rental amounts, in addition to any other
remedy Agency shall have for such default, Owner shall be required to pay to Agency the entire
amount of rent received in excess of the amount permitted pursuant to this Agreement.
b. It shall constitute a default for Owner to rent any Unit to a tenant
who is not an Eligible Tenant for the particular Unit pursuant to the rental rate requirements set
forth in Section C.3 of this Agreement. In the event Owner rents a Unit to an ineligible tenant, in
addition to any other equitable remedy Agency shall have for such default, Owner, for each
separate violation shall be required to pay to Agency an amount equal to (i) two times the
greater of (A) the total rent Owner received from such ineligible tenant, or (B) the total rent
Owner was entitled to receive for renting that Unit, plus (ii) any relocation expenses incurred by
Agency or City as a result of Owner having rented to such ineligible person.
c. It shall constitute a default for Owner to rent any of the Units in
violation of the leasing preference requirements of Sections C.6 of this Agreement so long as
such leasing preference requirements are not in violation of any state of federal fair housing
laws. In the event Owner rents a Unit in violation of the leasing preference requirements, in
addition to any other equitable remedy Agency shall have for such default, Owner, for each
separate violation shall be required to pay Agency an amount equal to two (2) months of rental
charges for the Unit with the highest rent. The terms of this Section CA 4 shall not apply if
Owner rents to an ineligible person as a result of such person's fraud or misrepresentation.
THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c) OF THIS SECTION C.14 (THE "DAMAGE AMOUNTS',)
CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT
AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY OWNER SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c), CONSIDERING ALL OF THE CIRCUMSTANCES
EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT, INCLUDING THE
RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF HARM TO AGENCY ANC
ACCOMPLISHMENT OF AGENCY'S PURPOSE OF ASSISTING IN THE PROVISION OF
AFFORDABLE HOUSING TO ELIGIBLE TENANTS THAT REASONABLY COULD BE
ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE
COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION C.14 SHALL
BE THE SOLE MONETARY DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS
SECTION C.14, BUT NOTHING IN THIS SECTION C.14 SHALL BE INTERPRETED TO LIMIT
AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING
ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY
CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT
EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED THE
CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE
TIME EACH EXECUTED THIS AGREEMENT.
OWNER'S INITIALS: AGENCY'S INITIALS:
15. Section 8 Tenants. Owner shall accept as tenants on the same basis as
all other Eligible Tenants, persons who are recipients of federal certificates for rent subsidies
pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or
its successor. Owner shall not apply selection criteria to Section 8 certificate holders that are
more burdensome than criteria applied to all other Eligible Tenants,
D. MAINTENANCE.
1. Maintenance Obligation. Owner, for itself and its successors and
assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and
repaired the Site and all related on-site improvements and landscaping thereon, including,
without limitation, buildings, parking areas, lighting, signs and walls in a first class condition and
repair, free of rubbish, debris and other hazards to persons using the same, and in accordance
with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies
and agencies having jurisdiction, at Owner's sole cost and expense. Such maintenance and
repair shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii) the
care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition;
and (iii) the repair, replacement and restriping of asphalt or concrete paving using the same type
of material originally installed, to the end that such pavings at all times be kept in a level and
smooth condition. In addition, Owner shall be required to maintain the Property in such a
manner as to avoid the reasonable determination of a duly authorized official of the City that a
public nuisance has been created by the absence of adequate maintenance such as to be
detrimental to the public health, safety or general welfare or that such a condition of
deterioration or disrepair causes appreciable harm or is materially detrimental to property or
improvements within one thousand (1,000) feet of such portion of the Site.
2. Parking and Driveways. The driveways and traffic aisles on the Site shall
be kept clear and unobstructed at all times. No vehicles or other obstruction shall project into
any of such driveways or traffic aisles. Vehicles associated with the operation of the Site,
including delivery vehicles, vehicles of employees and vehicles of persons with business on the
Site shall park solely on the Site.
3. Tenant Compliance. Owner shall provide any proposed tenants of any
portion of the Site with a copy of this Agreement and shall, prior to entering into any lease
agreement, have the proposed tenant execute an affidavit agreeing to comply with the
provisions of this Agreement. All lease agreements shall be in writing and shall contain
provisions which make compliance with the conditions of this Agreement express covenants of
the lease.
4. Right of Entry. In the event Owner fails to maintain the Site in the above-
mentioned condition, and satisfactory progress is not made in correcting the condition within
thirty (30) days from the date of written notice from Agency, City or Agency may, at their option,
and without further notice to Owner, declare the unperformed maintenance to constitute a public
nuisance. Thereafter, either Agency or City, their employees, contractors or agents, may cure
Owner's default by entering upon the Site and performing the necessary landscaping and/or
maintenance. The Agency or City shall give Owner, its representative or the residential
manager reasonable notice of the time and manner of entry, and entry shall only be at such
times and in such manner as is reasonably necessary to carry out this Regulatory Agreement.
Owner shall pay such costs as are reasonably incurred by Agency or City for such maintenance,
including attorneys' fees and costs.
5. Lien. If such costs are not reimbursed within thirty (30) days after
Owner's receipt of notice thereof, the same shall be deemed delinquent, and the amount thereof
shall bear interest thereafter at a rate of the lower of ten percent (10%) per annum or the legal
maximum until paid. Any and all delinquent amounts, together with said interest, costs and
reasonable attorney's fees, shall be an obligation of Owner as well as a lien and charge, with
power of sale, upon the property interests of Owner, and the rents, issues and profits of such
property. City and/or Agency may bring an action at law against Owner obligated to pay any
such sums or foreclose the lien against Owner's property interests. Any such lien may be
enforced by sale by the City or Agency following recordation of a Notice of Default of Sale given
in the manner and time required by law as in the case of a deed of trust; such sale to be
conducted in accordance with the provisions of Section 2924, et seq., of the California Civil
Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any
other manner permitted by law.
Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or
deed of trust covering an ownership interest or leasehold or subleasehold estate in and to any
Site approved by Agency pursuant to the DDA, and any purchaser at any foreclosure or
trustee's sale (as well as any deed or assignment in lieu of foreclosure or trustee's sale) under
any such mortgage or deed of trust shall take title free from any such monetary lien, but
otherwise subject to the provisions hereof; provided that, after the foreclosure of any such
mortgage and/or deed of trust, all other assessments provided for herein to the extent they
relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the
purchaser at the foreclosure sale, as owner of the subject Site after the date of such foreclosure
sale, shall become a lien upon such Site upon recordation of a Notice of Assessment or Notice
of Claim of Lien as herein provided.
MANAGEMENT.
1. Approval of Proiect Manager; Designation of Resident Manager. Subject
to the terms and conditions contained hereinbelow, Owner shall at all times during the operation
of the Project pursuant to this Agreement retain an entity to perform the management and/or
supervisory functions ("Project Manager") with respect to the operation of the Project including
day-to-day administration, maintenance and repair. Owner shall, before execution or any
subsequent amendment or replacement thereof, submit and obtain Agency's written approval of
a management contract ("Management Contract") entered into between Owner and a Project
Manager acceptable to Agency. Subject to any regulatory or licensing requirements of any
other applicable governmental agency, the Management Contract may be for a term of up to
fifteen (15) years and may be renewed for successive terms in accordance with its terms, but
may not be amended or modified without the written consent of Agency. The Management
Contract shall also provide that the Project Manager shall be subject to termination for failure to
meet project maintenance and operational standards set forth herein or in other agreements
between Owner and Agency. Owner shall promptly terminate any Project Manager which
commits or allows such failure, unless the failure is cured within a reasonable period in no event
exceeding 60 days from Project Manager's receipt of notice of the failure from Owner or
Agency. Owner's obligation to retain a Project Manager shall remain in force and effect for the
same duration as the use covenants set forth in Section B of this Agreement. Notwithstanding
anything to the contrary in this Section, the Project may be self -managed by Owner with the
prior approval of the Agency Executive Director. Any change in the Project Manager shall be
approved, in writing, by the Executive Director, which approval shall not be unreasonably
withheld.
Pursuant to this Section E.1, the Agency or Executive Director shall
reasonably approve or disapprove the proposed Project Manager and management contract.
Unless the proposed Project Manager or management contract is disapproved within ten (10)
business days following receipt of all information reasonably requested regarding such Project
Manager, the Project Manager shall be deemed approved.
In addition to the Project Manager, one Resident Manager shall be designated as
necessary by Owner or Project Manager, with written notice to Agency of the Resident
Manager's name, address and telephone number.
2. Serious Mismanaclement. In the event of "Serious Mismanagement" (as
that term is defined below) of the Project, Agency shall have the authority to require that such
Serious Mismanagement cease immediately, and further to require the immediate replacement
of the Project Manager or Resident Manager. For purposes of this Agreement the term "Serious
Mismanagement" shall mean management of the Project in a manner which violates the terms
and/or intent of this Agreement and/or the Management Contract to operate an affordable
housing complex of the highest standard, and shall include, but is not limited to, the following:
a. Knowingly leasing to ineligible tenants or tenants whose income
exceeds the prescribed levels;
b. Knowingly allowing the tenants to exceed the prescribed
occupancy levels without taking immediate steps to stop such overcrowding;
C. Repeatedly failing to timely maintain the Project and the Site in the
manner required by this Agreement;
d. Repeatedly failing to timely submit the reports as required by this
Agreement or failing to submit materially complete reports;
e. Fraud in connection with any document or representation relating
to this Agreement or embezzlement of Project monies; and
f. Failing to fully cooperate with the City's Police Department in
maintaining a crime -free environment on the Site.
G. COMPLIANCE WITH LAWS.
1. State and Local Laws. Owner shall comply with all ordinances,
regulations and standards of the City and Agency applicable to the Site. Owner shall comply
with all rules and regulations of any assessment district of the City with jurisdiction over the Site.
2. Lease Approval. Agency shall have the right but is not required to
approve any lease forms, revisions, amendments or modification made to same, used by the
Project Manager or Resident Manager for leasing Units within the Site.
H. INSURANCE.
1. Duty to Procure Insurance. Owner covenants and agrees for itself, and
its assigns and successors -in -interest in the Site that from completion of the Project as
evidenced by City's issuance of a certificate of occupancy, and continuing thereafter until the
expiration of the Term of this Agreement, Owner or such successors and assigns shall procure
and keep in full force and effect or cause to be procured and kept in full force and effect for the
mutual benefit of Owner and Agency, and shall provide Agency evidence reasonably acceptable
to Executive Director, insurance policies meeting the minimum requirements set forth below:
a. Commercial General Liability insurance with respect to the Site
and the operations of or on behalf of Owner, in an amount not less than Two Million Dollars
($2,000,000) per occurrence including products, completed operations, contractual, bodily
injury, personal injury, death and property damage liability, subject to such increases in amount
as Agency may reasonably require from time to time. The insurance to be provided by Owner
may provide for a deductible or self-insured retention of not more than Ten Thousand Dollars
($10,000), with such maximum amount to increase at the same rate as the periodic increases in
the minimum amount of total insurance coverage set forth above.
b. With respect to the improvements and any fixtures and furnishings
to be owned by Owner on the Site, All Risk Property insurance against fire, extended coverage,
vandalism, and malicious mischief, and such other additional perils, hazards, and risks as now
are or may be included in the standard "all risk" form in general use in Fresno County,
California, with the standard form fire insurance coverage in an amount equal to full actual
replacement cost thereof, as the same may change from time to time. The above insurance
policy or policies shall not require coverage for earthquake. Agency shall be a loss payee under
such policy or policies and such insurance shall contain a replacement cost endorsement.
C. All policies of insurance required to be carried by Owner shall be
written by responsible and solvent insurance companies licensed in the State of California and
having a policy -holder's rating of A or better, in the most recent edition of "Best's Key Rating
Guide -- Property and Casualty." A- copy of each paid-up policy evidencing such insurance
(appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such
policy has been issued, providing the coverage required herein, and containing the provisions
specified herein, shall be delivered to Agency prior to its issuance of the Certificate of
Completion for the Project and thereafter, upon renewals, not less than thirty (30) days prior to
the expiration of coverage. Agency may, at any time, and from time to time, inspect and/or copy
any and all insurance policies required to be procured by Owner hereunder. In no event shall
the limits of any policy be considered as limiting the liability of Owner hereunder.
d. Each insurance policy required to be carried by Owner pursuant to
this Agreement shall contain the following endorsements, provisions or clauses:
(1) The insurer will not cancel or materially alter the coverage
provided by such policy in a manner adverse to the interest of the insured without first giving
Agency a minimum of thirty (30) days prior written notice by certified mail, return receipt
requested; and
(2) A waiver by the insurer of any right to subrogation against
Agency, its agents, employees, or representatives, which arises or might arise by reason of any
payment under such policy or policies or by reason of any act or omission of Agency, its agents,
officers, members, officials, employees, or representatives.
(3) The City, Agency, their respective agents, officers,
members, officials, employees, volunteers, and representatives shall be named insureds on the
Commercial General Liability policies.
Property insurance policies. (4) The City and Agency shall be loss payees on the All Risk
(5) Coverage provided by these policies shall be primary and
non-contributory to any insurance carried by the City, Agency, their officers, officials,
employees, volunteers, agents, or representatives.
(6) Failure to comply with reporting provisions shall not affect
coverage provided to City, Agency, their officers, employees, volunteers, agents, or
representatives.
2. Failure to Procure Insurance. If Owner fails to procure and maintain the
above -required insurance despite its availability, then Agency, in addition to any other remedy
which Agency may have hereunder for Owner's failure to procure, maintain, and/or pay for the
insurance required herein, may (but without any obligation to do so) at any time or from time to
time, after thirty (30) days written notice to Owner, procure such insurance and pay the
premiums therefor, in which event Owner shall immediately repay Agency all sums so paid by
Agency together with interest thereon at the maximum legal rate.
10
OBLIGATION TO REPAIR.
1. Obligation to Repair and Restore Damage Due to Casualty Covered b
Insurance. Subject to Section 1.3 below, if the Project shall be totally or partially destroyed or
rendered wholly or partly uninhabitable by fire or other casualty required to be insured against
by Owner, Owner shall promptly proceed to obtain insurance proceeds and take all steps
necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to
promptly and diligently commence the repair or replacement of the Project to substantially the
same condition as the Project is required to be maintained in pursuant to this Agreement, and
Owner shall complete the same as soon as possible thereafter so that the Project can continue
to be operated and occupied as an affordable housing project in accordance with this
Agreement. Subject to extensions of time for "force majeure" events described in the DDA, in
no event shall the repair, replacement, or restoration period exceed one (1) year from the date
Owner obtains insurance proceeds unless Agency's Executive Director, in his or her sole and
absolute discretion, approves a longer period of time. Agency shall cooperate with Owner, at no
expense to Agency, in obtaining any governmental permits required for the repair, replacement,
or restoration. If, however, the then -existing laws of any other governmental agencies or
lenders with jurisdiction over the Property do not permit the repair, replacement, or restoration,
Owner may elect not to repair, replace, or restore the Project by giving notice to Agency (in
which event Owner shall be entitled to all insurance proceeds but Owner shall be required to
remove all debris from the Site) or Owner may reconstruct such other improvements on the Site
as are consistent with applicable land use regulations and approved by the City, Agency, and
the other governmental agency or agencies with jurisdiction.
If Owner fails to obtain insurance as required by the DDA or this Agreement (and
Agency has not procured such insurance and charged Owner for the cost), Owner shall be
obligated to reconstruct and repair any partial or total damage to the Project and improvements
located on the Site in accordance with this Section 1.1.
2. Continued Operations. During any period of repair, Owner shall continue,
or cause the continuation of, the operation of the Project to the extent reasonably practicable
from the standpoint of prudent business management.
3. Limitation on Obligation to Repair. If any casualty occurs to the Project
during the term of this Regulatory Agreement and the cost of restoration of the Project exceeds
One Hundred Thousand dollars ($100,000) more than the insurance proceeds available to
Owner for such restoration (if Owner maintains all insurance required by this Regulatory
Agreement and inclusive of any deductible or self-insured retention amounts), then Owner shall
not be required to restore the Project, but this Regulatory Agreement shall not be affected.
J. LIMITATION ON TRANSFERS. The Owner covenants that Owner shall not
transfer the Site or any of its interests therein except as provided in this Section.
1. Transfer Defined. As used in this Section, the term "Transfer" shall
include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this
Agreement, the Site, or the improvements thereon. A Transfer shall also include the transfer to
any person or group of persons acting in concert of more than twenty-five percent (25%) (in the
aggregate) of the present ownership and/or control of any person or entity constituting Owner or
its general partners, taking all transfers into account on a cumulative basis, except transfers of
such ownership or control interest between members of the same immediate family, or transfers
to a trust, testamentary or otherwise, in which the beneficiaries are limited to members of the
11
transferor's immediate family, or among the entities constituting Owner or its general partners or
their respective shareholders. In the event any entity constituting Owner, its successor or the
constituent partners of Owner or any successor of Owner, is a corporation or trust, such transfer
shall refer to the transfer of the issued and outstanding capital stock of such corporation, of
beneficial interests of such trust; in the event that any entity constituting Owner, its successor or
the constituent partners of Owner or any successor of Owner is a limited or general partnership,
such transfer shall refer to the transfer of more than twenty-five percent (25%) of such limited or
general partnership interest; in the event that any entity constituting Owner, its successor or the
constituent partners of Owner or any successor of Owner is a joint venture, such transfer shall
refer to the transfer of more than twenty-five percent (25%) of the ownership and/or control of
any such joint venture partner, taking all transfers into account on a cumulative basis.
2. Agency Approval of Transfer Required. Owner shall not Transfer the Site
or any of Owner's rights hereunder, or any interest in the Site or in the improvements thereon,
directly or indirectly, voluntarily or by operation of law, except as provided below, without the
prior written approval of Agency, and if so purported to be Transferred, the same shall be null
and void. In considering whether it will grant approval of any Transfer by Owner of its interest in
the Site, Agency shall consider factors such as (i) whether the completion and operation of the
Project is jeopardized; (ii) the financial credit, strength, and capability of the proposed transferee
to perform Owner's obligations hereunder; and (iii) the proposed transferee's experience and
expertise in the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, no transfer by Owner of all or
any portion of its interest in the Site (including without limitation a transfer not requiring Agency
approval hereunder) shall be deemed to relieve it or any successor party from the obligation to
complete the Project or any other obligations under this Agreement. In addition, no attempted
transfer of any of Owner's obligations hereunder shall be effective unless and until the
successor party executes and delivers to Agency an assumption agreement in a form approved
by the Agency assuming such obligations.
following: 3. Exceptions. The foregoing prohibition shall not apply to any of the
(a) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing, but Owner shall notify Agency in advance of any such mortgage,
deed of trust, or other form of conveyance for financing pertaining to the Site.
(b) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for restructuring or refinancing of any amount of indebtedness described in
subsection (a) above, provided that the amount of indebtedness incurred in the restructuring or
refinancing does not exceed the outstanding balance on the debt incurred to finance the
acquisition of the Site and construction of improvements on the Site, including any additional
costs for completion of construction, whether direct or indirect, based upon the estimates of
architects and/or contractors.
(c) The conveyance or dedication of any portion of the site (or sites)
to the City of Fresno or other governmental agency.
(d) After recordation of the Certificate of Completion, any mortgage,
deed of trust, sale/lease-back, or other form of conveyance for financing provided that the
12
principal amount of the loan does not exceed eighty-five percent (85%) of the value of the land
and improvements thereon.
(e) The granting of easements to any appropriate governmental
agency or utility to facilitate the development of the Site.
(f) A sale or transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests of a corporation are assigned directly or
by operation of law to a person or persons, firm or corporation which acquires the control of the
voting capital stock of such corporation or all or substantially all of the assets of such
corporation.
(g) A sale or transfer of forty-nine percent (49%) or more ownership
interest to a member of the transferor's immediate family, a trust, testamentary or otherwise, in
which immediate family members of the transferor are the sole beneficiaries, or a corporation or
partnership in which the immediate family members or shareholders of the transferor have
controlling majority interest of more than fifty-one percent (51%).
(h) A change in the respective percentage ownership interests
exclusively of the present owners of Owner (as of the date of this Agreement), but this shall not
authorize the transfer of any interest to any person or entity who is not a present owner of
Owner.
(i) A sale or transfer to a Qualified Tax Credit Investor.
(j) Notwithstanding anything to the contrary contained in this
Agreement, Developer shall have the right, at its option, to have the Site granted from Agency to
a nonprofit general partner who is subsequently admitted to the Developer.
(k) A sale or transfer of general partner interests to a nonprofit
general partner.
(I) Mechanic's liens removed prior to foreclosure or liens for current
year property taxes not paid.
K. ENCUMBRANCES PROHIBITED. Prior to issuance of the Certificate of
Completion by Agency as provided in the DDA, the Grantee shall not place or suffer to be
placed on the Site any lien or encumbrance other than mortgages, deeds of trust, sales and
leases back or any other form of conveyance required for financing of the acquisition of the Site,
the construction of improvements on the Site, and any other expenditures necessary and
appropriate to develop the Site, except as specifically provided in the DDA and attachments
thereto.
L. ENFORCEMENT. In the event Owner defaults in the performance or
observance of any covenant, agreement or obligation of Owner pursuant to this Agreement, and
if such default remains uncured for a period of thirty (30) days after written notice thereof shall
have been given by Agency, or, in the event said default cannot be cured within said time
period, Owner has failed to commence to cure such default within said thirty (30) days and
thereafter fails to diligently prosecute said cure to completion, then Agency shall declare an
13
"Event of Default" to have occurred hereunder, and, at its option, may take one or more of the
following steps:
1. By mandamus or other suit, action or proceeding at law or in equity,
require Owner to perform its obligations and covenants hereunder or enjoin any acts or things
which may be unlawful or in violation of this Agreement; or
2. Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
3. Enter the Site and cure the Event of Default as provided in Section E
hereof.
4. Impose, through Agency's Executive Director, an administrative fine for
each day the violation continues. The amount of the fine shall be Twenty -Five dollars ($25.00)
per day, unless the violation is deemed a major violation, in which case the fine shall be
Seventy -Five dollars ($75.00) per day. A "major" violation shall be one which affects adjacent
property or the health and safety of persons. Owner may appeal the assessment of any fine to
the City Council who may reverse, modify or uphold the decision of the Executive Director. In
making this decision, the City Council shall determine whether the violation exists and whether
the amount of the fine is appropriate under the circumstances.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the
parties are cumulative, and the exercise by any party of one or more of its rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by another party.
M. NONDISCRIMINATION. There shall be no discrimination against or segregation
of any person, or group of persons, on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Site, or any part thereof (except as permitted by this
Agreement).
N. FORM OF NONDISCRIMINATION CLAUSES IN AGREEMENTS. Subject to the
tenancy/occupancy restrictions not prohibited by federal law as embodied in the DDA, which
may modify the following nondiscrimination clauses, the following shall apply: Owner shall
refrain from restricting the rental, sale, or lease of any portion of the Site on the basis of race,
color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or national
origin of any person. All such deeds, leases, or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
a. Deeds: In deeds the following language shall appear: "The grantee
herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, age, physical or mental disability, ancestry, or national origin in the sale, lease,
rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed,
nor shall the grantee itself, or any persons claiming under or through it, establish or permit any
14
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in
the land herein conveyed. The foregoing covenants shall run with the land."
b. Leases: In leases the following language shall appear: "The lessee
herein covenants by and for itself, its heirs, executors, administrators, successors, and assigns,
and all persons claiming under or through them, and this lease is made and accepted upon and
subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, age, physical or
mental disability, ancestry, or national origin in the leasing, subleasing, renting, transferring,
use, occupancy, tenure, or enjoyment of the land herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or
occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased."
C. Contracts: In contracts the following language shall appear: "There shall
be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, age, physical or mental disability, ancestry, or
national origin in the sale, lease, rental, sublease, transfer, use, occupancy, tenure, or
enjoyment of the land, nor shall the transferee itself, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the land."
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.
O. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to the
covenants, reservations, and restrictions set forth in this Agreement. Agency and Owner hereby
declare their express intent that all such covenants, reservations, and restrictions shall be
deemed covenants running with the land and shall pass to and be binding upon the Owner's
successors in title to the Site; provided, however, that on the termination of this Agreement said
covenants, reservations and restrictions shall expire. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire term of this Agreement, without regard to whether
the Agency is or remains an owner of any land or interest therein to which such covenants
relate. Each and every contract, deed or other instrument hereafter executed covering or
conveying the Site or any portion thereof shall conclusively be held to have been executed,
delivered and accepted subject to such covenants, reservations, and restrictions, regardless of
whether such covenants, reservations, and restrictions are set forth in such contract, deed or
other instrument.
Agency and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land in that Owner's legal interest in the Site is
rendered less valuable thereby. Agency and Owner hereby further declare their understanding
and intent that the benefit of such covenants touch and concern the land by enhancing and
increasing the enjoyment and use of the Project by Eligible Tenants, the intended beneficiaries
of such covenants, reservations, and restrictions, and by furthering the public purposes for
which the Agency was formed.
15
Owner, in exchange for the Agency entering into the DDA, hereby agrees to hold, sell,
and convey the Site subject to the terms of this Agreement. Owner also grants to the Agency
and the City the right and power to enforce the terms of this Agreement against the Owner and
all persons having any right, title or interest in the Site or any part thereof, their heirs,
successive owners and assigns.
P. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to
indemnify, defend, and hold harmless Agency, City, and their respective officers, members,
officials, employees, agents, volunteers, and representatives from and against any loss, liability,
claim, or judgment relating in any manner to the Project excepting only any such loss, liability,
claim, or judgment arising out of the intentional wrongdoing or gross negligence of Agency, City,
or their respective officers, officials, employees, members, agents, volunteers, or
representatives. Owner, while in possession of the Site, and each successor or assign of
Owner while in possession of the Site, shall remain fully obligated for the payment of property
taxes and assessments in connection with the Site. The foregoing indemnification, defense,
and hold harmless agreement shall only be applicable to and binding upon the party then
owning the Site or applicable portion thereof.
Q. ATTORNEYS' FEES. In the event that a party to this Agreement brings an action
against the other party hereto by reason of the breach of any condition, covenant,
representation or warranty in this Agreement, or otherwise arising out of this Agreement, the
prevailing party in such action shall be entitled to recover from the other reasonable expert
witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include
attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled
to all other reasonable costs for investigating such action, including the conducting of discovery.
R. AMENDMENTS. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real property
records of the County of Fresno.
S. NOTICE. Any notice required to be given hereunder shall be made in writing and
shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt
requested, or by a national "overnight courier" such as Fed -Ex, at the addresses specified
below, or at such other addresses as may be specified in writing by the parties hereto:
Agency: Redevelopment Agency
of the City of Fresno
2344 Tulare Street, Suite 200
Fresno, CA 93721
Attn: Executive Director
Copy to: Agency Counsel
2600 Fresno Street
Fresno, CA 92612
Attn:
Owner: EDISON PLAZA PARTNERS, L.P.
855 M Street, Suite 1110
Fresno, CA 93721
Attn: Tom Richards
Facsimile No. (559) 268-6030
16
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received, or if by overnight courier; of the time of delivery shown.
T. SEVERABILITY/WAIVER/INTEGRATION.
1. Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
2. Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any
other covenants or conditions, nor shall the delay or forbearance by either party in exercising
any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such
remedy or right.
3. Integration. This Agreement contains the entire Agreement between the
parties and neither party relies on any warranty or representation not contained in this
Agreement.
U. FUTURE ENFORCEMENT. The parties hereby agree that should the Agency
cease to exist as an entity at any time during the term of this Agreement, the City of Fresno
shall have the right to enforce all of the terms and conditions herein, unless the Agency had
previously specified another entity to enforce this Agreement.
V. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
W. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one and the
same instrument.
[END -- SIGNATURES ON NEXT PAGE]
17
IN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized representatives
on the date first written hereinabove.
Date
ATTEST:
Yvonne Spence
Ex Officio Clerk,
Fresno Redevelopment Agency
Deputy
Date:
"AGENCY"
THE REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO,
a public body, corporate and politic
Marlene Murphey
Executive Director
APPROVED AS TO FORM:
JAMES C. SANCHEZ
Ex Officio Attorney,
Fresno Redevelopment Agency
Deputy
"OWNER"
EDISON PLAZA PARTNERS, L.P.
a California Limited Partnership
By:
Its:
[END OF SIGNATURES]
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
) ss.
COUNTY OF
Notary Public
On before me, personally appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Notary Public
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, _ , personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
) ss.
COUNTY OF
Notary Public
On , before me, , personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signatures(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public