HomeMy WebLinkAboutFFDA Properties HOME Investment Partnerships Program Van Ness Single Family ResidentialI Kg
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Recoded al Me Renueslof and IIIIIIIIII IIIIIII IIIIIIIIIIIII IIIIIIIIII
Wnen Recorded ROWm m: FRESNO County Recorder
Robert C, Werner
Cry of Fresno DOC— 2010-0147749
City Cled(30Mre Netlnes"y, NOV 03, 2010 13:1721
WOO Fresno NOW, Room 2133 Itl Pd 60.00 Nbr-0003321653
Fraena,C 83721-3603 JZG/R3/1-76
City of FFesno D' 't d Dey Iop—ment and HOME InvCstraent Partn hi
vs
(HOME) Am rnent
DISPOSITION AND DEVELOPMENT
AND
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
by and beween
CITY OF FRESNO,
a municipal corporation
and
FFDA, Properties, LLC
regarding
MERGED
'APNs: 459-141-35T/38T/37T/38T/39T/40T/41T/42T/43T/44T"
Mixed -Income Housing Development
Van Ness Single -Family Residential
Page 1 of 37
TABLE OF CONTENTS
pm
ARTICLE I.
DEFINITIONS
EXHIBIT A:
PROPERTY DESCRIPTION
.................................................................................................5
PROJECT DESCRIPTION AND SCHEDULE
ARTICLE 2.
TRANSFER OF AFFORDABLE PROPERTY....._.........................................8
EXHIBIT D:
ARTICLE3.
TERMS.............................
CERTIFICATE OF COMPLETION
EXHIBIT F:
.......................................... ................. ...........
....... 10
ARTICLE 4.
GENERAL REPRESENTATIONSIWARRANTIES
BOND PROVISIONS
.......................................
11
ARTICLE S.
HOME PROGRAM REPRESENTATIONNVARRANTIES
.............................
12
ARTICLES.
PROPERTY MAINTENANCE
.......................................................................
17
ARTICLE 7.
HOME PROGRAM FUNDS
..........................................................................22
ARTICLE S.
DEVELOPMENT AND CONSTRUCTION OF PROJECT .............................
23
ARTICLES.
PROJECT OPERATIONS
.............................................................................28
ARTICLE 10.
INDEMNIFICATION.,
.................... ...................... ......................
31
ARTICLE 11.
DEFAULT AND REMEDIES.......................................................................32
ARTICLE 12.
GENERAL PROVISIONS ........ ................
........................ ...........................
34
EXHIBITS
EXHIBIT A:
PROPERTY DESCRIPTION
EXHIBIT B:
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C:
DECLARATION OF RESTRICTIONS
EXHIBIT D:
BUDGET
EXHIBIT E:
CERTIFICATE OF COMPLETION
EXHIBIT F:
PROMMISSORY NOTE
EXHIBIT G:
INSURANCE PROVISIONS
EXHIBIT H:
BOND PROVISIONS
Page 2 of 37
DEVELOPMENT AND DISPOSITION
AND
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
This Development and Disposition and HOME Investment Partnersthips Program
Agreement (hereinafter referred to as the "Agreement") m entered into nov, , 2010, by
and between the CITY OF FRESNO, a municipal corporation, acting through be Downtown
and Community Revitalization Department — Housing and Community Development
Division (hereinafter referretl to as the "CITY-), and FFOA Properties, LLC, a California
Limited Liability Company (hereinafter referred to as "DEVELOPER").
RECITALS
WHEREAS, the CITY has received a HOME Investment Partnerships Program
(hereinafter referred to as the "HOME Program") grant foam the U.S. Depamnent of Housing
and Urban Development (hereinafter referred to as "HUD"), under Title II of the Cranston -
Gonzalez National Affordable Housing Ad of 1990, as amended (hereinafter referred to as
the "Ad"), and
WHEREAS, to advance the supply of Affordable Housing within the City of Fresno,
the CITY desires, among other things, to encourage private investment in me affordable
housing market; antl
WHEREAS, the DEVELOPER desires to construct a mixed -income development
consisting of twenty (20) single-family rental units upon the Property with three (3) units to
be rented as Affordable Housing and seventeen (17) units to be rented as market rate
housing units and related on-site and off-site improvements, hereinafter collectively referred
to as me "Project", as more particularly described in the Project Description and Schedule
attached hereto as EXHIBIT "B". Incorporatetl herein; and
WHEREAS, the Project will be constructed upon "HOME assisted property" referred
to herein as the ("Property") located whin the boundaries of the City of Fresno, all owned
by the CITY, as mare particularly described in the attached EXHIBIT "A", Incorporated
herein; and
WHEREAS, me Property will be transferred to the DEVELOPER in fee at an agreed
upon fair market price through an escrow as provided hereunder; and
WHEREAS, to advance me supply of Affordable Housing within the City of Fresno,
the CITY desires to provide HOME eligible assistance to the Project upon the terms and
conditions of this Agreement in the total amount not to exceed Two Hundred Forty -Five
Thousand Dollars and 001100 ($245,000.00) in HOME Funding as a market -rate interest,
30 -year Property Acquisition Loan, as further Identified in Exhibit "D" (Budget), to be
secured by the underlying HOME Assisted Property and the Affordable Housing covenants,
see attached EXHIBIT "F" (Note) and the attached Exhibit "C" (Declaration of Restrictions),
respectively; and
Page 3 of 37
WHEREAS, the CITY will transfer fee tttle to the Property "as is" to the DEVELOPER
through Escrow with the First American Title Company located at 7625 N. Palm Avenue,
Suite 101, Fresno, CA 93711 (Attention: Donna Brown at (559) 221-1968). The parties
acknowledge and agree that Me total fair market purchase price for Me Property is the
amount of Two Hundred Forty -Five Thousand Dollars and 00/100 ($245,000.00). This
Agreement, when signed by both parties and deposited with the Escrow Halder will be the
partiesjoint escrow, instructions. The DEVELOPER and the CITY will sign any other form
instructions required by Escrow Holder. Parties may submit supplemental escrow
instructions. DEVELOPER will deposit all instruments, documents, money, and other items
with the Escrow Holder that are: (i) identified in this Agreement or (it) required by the
Escrow Holder to effect Me closing. The Escrow will be considered dosed on the data that
the Escrow Holder is prepared to issue a standard CLTA/ALTA owner's title Insurance
policy to DEVELOPER Insuring fee title and records the grant deed. It is agreed and
confirmed by DEVELOPER and CITY that notwithstanding other provisions in Mis
Agreement. the night of possession and use of the Property by DEVELOPER Mall
commence only upon dose of Escrow; and
WHEREAS. the CITY has conducted an environmental review of the Projad
pursuant to the National Environmental Policy Ad ("NEPA"), resulting in a Finding of No
Significant Impect according to the previsions of Me NEPA (Environmental Assessment No.
014-06219) and the California Environmental Quality Ad ("CEQA"), resulting in an Exempt
Status according M the provisions of CEQA (Environments) Assessment No. 014-06219)
and CITY has received federal approval for release of HOME Program funds pursuant to 24
CFR Part 56 on September 15, 2010; and
WHEREAS, the CITY has determined that this Agreement is in the beat interests of
and will materially contribute to, the Housing Element of the General Plan. Further, Me
CITY has found that the Project (1) will have a positive influence in Me neighborhood'and
surrounding environs, (ii) Is in the vital and best interests of the CITY, and the health,
safety, and "Kam of CITY residents, (iii) complies with applicable federal, state, and local
laws and requirements, (iv) will increase, Improve, and preserve the community's supply of
housing available to persons and families of Low -Income. as call hereunder, (v)
planning and administrative expenses incurred in pursuit hared are necessary for the
production, improvement, or preservation of Low -Income Housing, and (v) will comply with
any and all owner panhopaffon miss and criteria applicable thereto; and
WHEREAS, The CITY and DEVELOPER have determined that the Project is net a
low rent housing pmject and constitutes programma dgrantee tender activities utilizing
available and allocated program/grantee funding, outside the reach of California
Constitution Article XXXIV and enabling legislation; and .
WHEREAS, on October 13, 2010, the Housing and Community Development
Commission of Me City of Fresno reviewed this Agreement and recommended approval.
NOW, THEREFORE, IN CONSIDERATION of the above recitals. which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledge, the parties agree as follows:
Page 4 of 37
ARTICLE 1. DEFINITIONS
The following terms have the meaning and content set forth in this Article wherever used in
this Agreement, attached exhibits or attachments that are incorporated into Mis Agreement
by reference.
1.1. Acou'sition means vesting of the Property in fee the to the Developer.
1.2. ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
1.3. Affirmative Markei means a good faiN effort to attract eligible persons of all
raciai, ethnic and gentler groups, in the housing market area, to lease the Affordable Units)
that are proposed for construction on the Property, as hereinafter refined.
1.4. Affordable Housing means the three (3) single-family residential housing
units held for rent to Low -Income Families, and meeting the affordabllRy requirements of
this Agreement and 24 CFR 92.252 which affordability requirements shall con with Me land
for the Affordability Period subject to release as provided in this Agreement.
1,5. Affordability Period means the period for which the three (3) Affordable Unit
will be held as Affordable Housing, which shall be the period that is the earlier of (a) a
pend of fifty-five (55) years commencing from the Project Completion Date as set forth in
the Certifioat of Completion, as more fully described in Me Declaration of Restrictions,
ettchetl hereto as EXHIBIT 'C" incorporated herein; or (b) a period commencing from the
Project Completion Date as set forth in Me Certificate of Completion antl terminating on the
date DEVELOPER may lawfully sell or transfer individual Units to a Mint-party(ies).
Notwithstanding the foregoing, T the Loan is not pre -paid in full prior to Commencement of
Construction Men the Affordability Period shall not be less than Me affordability
requirement of 24 CFR 92.252.
IS Affordable U t(1 means the three (3) single-family residential housing units
serving as Affordable Housing for Me Affordability Period.
1.7. Bund g( means Me pro forma Budget, and any changes thereto, approved by
Me CITY's Housing and Community Development Division Manager provided Me total
amount of HOME Funding allocated to the Project shall not be increased without City
Council approval, attached hereto as EXHIBIT'D".
1.8. Certiffigirte of Completion means that certificate issued, in Me form attached
as EXHIBIT 'E ('Certificate of Completion"), to DEVELOPER by Me CITY evidencing
completion of each Project Unit constructed on Me Property for purposes of this Agreement.
1.9. CFR means the Code of Federal Regulations.
1.10. Commencement orConstruction means the time DEVELOPER's construction
contractor begins substantial physical work of the Patectfeach Project Unit on Me Property,
including, without limitation, delivery of materials and any work, beyond maintenance of Me
Page 5 of 37
Property In its status quo condition, and not later than December 15, 2010.
1.11. Declaration of Restrictions means the Declaration of Restrictions In the form
attached hereto as EXHIBIT "C", which shall be recorded against the Property no later than
the close of escrow hereunder, setting out the Affordable Housing covenants and
requirements of this Agreement which shall run with the land.
1.12. Deed of Trust means that dead of trust (including security agreement) given
by DEVELOPER as Trustor, to Me CITY as beneficiary, through an escrow established by
DEVELOPER at its sole cost and expense with Escrow Holder, and recorded against each
of the parcels constituting the Property to ensure Me Note, attached as EXHIBIT "F" to Me
Note and acceptable to the City Attorney, as well as any amendments to, modifications of
and restatements of said Dead of Trust, which Deed of Trust shall be subordinated to
Project lenders per Me Budget attached as EXHIBIT `D". The terms of any such Deed of
Trust are hereby Incorporated into this Agreement by this reference.
1.13. Eligible Costs means the HOME Program eligible property acquisition costs
funded by the Loan, consistent with the Budget attached as EXHIBIT `D°, allowable under
24 CFR Pad 92, as specified in 24 CFR 92.205 and 92.206, and not prohibited by 24 CFR
92.214, provided, however, that costs incurred in connection with any activity that is
determined to be ineligible under the Program by HUD or the CITY shall not constitute
Eligible Costs,
1.14. Escrow Holder means First American Title Company located at 7625 N. Palm
Avenue, Suite 101, Fresno. California 93711 (Attention: Donna Brown (559) 221-1968).
1.15. Event of Defauk shall have Me meaning assigned to such term under Section
11.1 hereunder.
1.16. Family has Me same meaning given that term in 24 CFR 5.403.
1.17. Hazardous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous
substances," "hazardous wastes," "hazardous materials," "pollutants," "contaminants" or
"toxic substances" under federal or stale environmental and health safety laws and
regulations, including without limitation, petroleum and petroleum byproducts, flammable
explosives, urea formaldehyde insulation. radioactive materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed in Me normal
course of developing, operating or occupying a housing project, to the extent and degree
that such substances are stored, used and disposed of in Me manner and in amounts Mat
are consistent with normal practice and legal standards.
1.10. HOME Funds (also referred to in this Agreement as HOME Program Funds)
means the HOME Program monies constituting the Loan, in an amount not to exceed the
sum of Two Hundred Forty -Five Thousand Dollars and 00/100 ($245,000.00) used for
HOME Program eligible costs.
1.19.
Household
means
one or more persons
occupying
any
of the
Mom
(3)
Page 6 of 37
Affordable Unita in the Proposed mixed-income single -family residential Project
120. HUD means the United States Department of Housing and Urban
Development.
1.21. Loan means Me loan of HOME Funds, in Me total amount not to exceed the
lesser of the sum of Two Hundred Forty-Five Thousand Dollars and 00/100 ($245,000.00)
and Me aggregate HOME Program per un t cap (24 C.F.R. 92.250) for the Affordable Units
as determined by Me CITY made available by the CITY to the Project pursuant to this
Agreement, as more specffcally described in the Budget attached hereto as EXHIBIT "C'
and in the Note attached hereto as EXHIBIT'F'. The Loan shall be payable In accordance
with the terms of Me Note, and shall be secured by the Dead of Trust.
1.22. Loan Documents are collectively this Agreement, the Note, Dead of Trust,
Declaration of Restrictions and all related documents4ristruments as May may be amended
modified or restated from time to time along with all exhibits and attachments thereto.
relative to the Loan.
1.23. Low-Income means an annual income does not exceed eighty percent
(80%) of the median income for Me Fresno County area as determined by HUD, except as
HUD may establish Income ceilings higher or lower than 80% of Me median for the area on
the basis of HUD findings Mat such variations are necessary.
1.24. Lpw-Inorne Farnfli means families whose annual income does not exceed
eighty percent (80%) of the median income for the Fresno County area as determined by
HUD. except as HUD may establish income ceilings higher or lower than 80% of the
median for the area on the basis of HUD findings that such variations are necessary.
1 25. NJme means the assumable (upon City approval) Promissory Note in the
principal amount of the Loan, given by DEVELOPER as borrower, in favor of the CITY as
lender, evidencing the Loan and performance of Me affordability and other covenants and
restrictions set forth in this Agreement, secured by the Deed of Trust and subordinated to
Project lenders par the Budget attached as EXHIBIT "D".
1.26. Program Income has the meaning provided in Me HOME program including
24 CFR 92.503.
1.27 Polo ct means the construction of twenty (20) single -family residential rental
units (including Me three Affordable Units) and related on-she and off-site improvements to
be constructed on the Property marketed as described in Me Project Description and
Schedule, attached hereto and incorporated herein as EXHIBIT "B".
1.28 Protect Completion Data means the data the CITY shall have determined
Mat the Project has reached completion in accordance with Mis Agreement. The Project
Completion Data for this project is identified in EXHIBIT'B'.
1.29 Pro ed Schedule means Me schedule for completion of the Project included
within the Project Description and Schedule referred herein as EXHIBIT "B', consistent with
Page 7 of 37
the above Projsct Completion Date.
1.30 Procell means the vacant unimproved City -owned property Assessor
Parcel Numbers: 45944"ST/36T/37T/38T/39T/40T/41T/42T/43T/44T, Fresno, California,
more specifically described in the attached EXHIBIT "A", subject to re -deed or merger by
the CITY consistent with any mutual supplemental escrow instruction, to be transferred in
fee to Ne DEVELOPER from the CITY prior to commencement of Project construction
through escrow and developed as Provided herein.
1.31 Unifeit means Ne (20) single-family resklential rental units constituting the
Project and to be constructed upon the Property in accordance with the terms and
corrdtiions of this Agreement.
ARTICLE 2. TRANSFER OF PROPERTY
2.1 Purchase and Sale, The CITY agrees to convey the Property to
DEVELOPER, and DEVELOPER agrees to accept conveyance of the Property from the
CITY, upon the terms and conditions set forth in this Agreement.
2.2 Purchase Price. The purchase price for the Property shall be Two Hundred
Forty -Five Thousand Dollars and 00/100 ($245,000.00), the agreed upon fair market
purchase price based upon the November 30, 20D6 appressed value of the Property. The
Purchase Price shall be paid as follows:
A. Within thirty (30) days after Ne effective date of this Agreement the
parties shall open an escrow (the'Escrow') with Escrow Holder. At the close of aseraw, the
DEVELOPER shall deliver the Note to the City in the full amount of the Purchase once as
payment for the Property.
B. DEVELOPER shall pay all escrow fees and closing costs, including
document preparation fees and recording fees, and the premium for tbe buyers policy of
title insurance.
2.3 Clos'na. Closing means the exchange of documents as described in this
Article 2, and will be deemed to have occurred when the CITY's Deed to DEVELOPER has
been recorded, Ne Escrow Holder holds and can record the remaining documents
described in this Article 2, the The Company is irrevocably and uncanditionally committed
to issue the Title Policy, and the DEVELOPER has delivered the duly executed Note and
Deed of Trust to Escrow Holtler.
2.4 Condition of Tire. Upon the Closing. CITY shall convey to DEVELOPER
marketable and insurable fee simple title to the Property by duly executed and
acknowledged standard Title Company form grant deed(s) ('Deed"), Evidence of delivery
of marketable and insurable fee simple this shall be the issuance by First American Title
Company (the 'Title Company') to DEVELOPER of CLTA/ALTA Owners Policy of Tree
Insurance in the amount of the Purchase Price, insuring fee simple this to the Property, the
DEVELOPER will accept title subject only to exceptions 1 through 3, 5, and 9 through 16
Page 8 of 37
shown on those certain Preliminary Title Reports prepared by the Tille Company under
Order No. 10043636077, dated October 8, 2010 (the Title Policy').
2.5 Conditions Precedent t Closing The following are conditions Precedent to
DEVELOPER's obligation to purchase the Property, accept Me Loan and perform its
obligation under this Agreement (the "Project Conditions Precedent'). The Project
Conditions Precedent are intended solely for the benefit of DEVELOPER and may be
waived only by DEVELOPER in writing. In the event of the failure of the satisfaction of any
of the Project Conditions Precedent, DEVELOPER shall have the right, but not the
obligation, to terminate the Agreement with respect to the Project
A. DEVELOPER shall have received the unconditional commitment of
Title Company to issue the Title Policy upon Me Closing In the form approved by
DEVELOPER as buyer.
B. DEVELOPER shall have approved the amount of the construction
financing required for the development of Me Housing Project.
C. DEVELOPER shall have given written notice to the CITY within thirty
(30) days after the effective date W this Agreement that it has inspected the Property and
shall accept the Property in AS IS condition. If DEVELOPER, after its inspection of the
Property and review of an environmental reports disapproves of the Property's
environmental or other conditions or aspect of the Property or Project in its sole and
absolute discretion, then DEVELOPER may terminate the Agreement by written notice to
the CITY and without liability for breach or otherwise.
D. DEVELOPER shall confirm that the CITY has received all necessary
approvals from HUD, received the HOME funds and be Irrevocably committed to fund the
Loan at Closing.
E. DEVELOPER has submitted the Project Finance Plan to the CITY and
the CITY has approved the Project Finance Plan.
2.6 Access th the Property. DEVELOPER shall be permitted to enter the Property
during reasonable daylight hours, upon DEVELOPER's satisfaction of liability insurance
requirements of this Agreement. DEVELOPER will give the CITY 24 hours' written notice of
ds intent to enter onto the Property.
2.7 Joint Eau= Instructions. This Agreement, when signed by both parties and
deposited with the Escrow Holder will be the parties'joint escrow Instructions. DEVELOPER
and Me CITY will sign any other form instructions required by Escrow Holder. CITY and
DEVELOPER will deposit all instruments, documents, money, and other items with the
Escrow holder that are: (i) identified in this Agreement: or (ii) required by the Escrow holder
to effect the closing. Either party may tender supplemental escrow instructions consistent
with this Agreement.
Page 9 of 37
2.8 Escrow Closing. The parties intend for the Closing to take place on a data
selected by the DEVELOPER but in no event later than November 5, 2010 (the "Closing
Dater).
A. At or before the Closing, CITY shall deliver to Escrow Holder or
DEVELOPER the following:
(i) a duty executed and acknowledged Deark ; and
any other instruments, records or correspondence called for
hereunder which have not previously been delivered,
B. At or before Closing, DEVELOPER shall deliver to Escrow Holder or
CITY the following:
(i) Duly executed (and acknowledged, where required) Loan
Documents; and
(ii) Any other instrument, records or correspondence called for
hereunder which have not previously been delivered.
C. As a further condition to close, DEVELOPER shall have received Me
unconditional commitment of Title Company to issue the Title Policy upon the Closing in the
form approved by DEVELOPER as buyer.
2.9 Possess'on. Possession of the Property shall be delivered to DEVELOPER
on the Closing Date free of any am all other tenancies and/or occupancy rights. The
parties acknowledge and agree that each has inspected the Property and detennined it is
vacant and unoccupied
ARTICLE 3. TERMS
3.1 Loan of HOME funds. The CITY agrees convey the Property to the
DEVELOPER, and to accept the Note from me DEVELOPER in the full amount of the
Purchase Price therefor, all under the terms and ceMi0ons provided in this Agreement.
The Loan shall be assignable as Provided in this Agreement and the Note.
32 Loan Documents. The DEVELOPER shall execute and deliver to the CITY
the Loan Documents including the Promissory Note, and deliver to the Escrow Holler the
Deed of Trust for recordation against the Property.
3.3 Tenn of Agreement This Agreement is etfecdve upon the date of execution
and shall remain in force for the duration of the Affordability Penod and the Loan unless
earlier terminated as Provided herein. It is understand and agreed upon, however, that R for
any reason this Agreement should be terminated in whole or in part as provided hereunder,
without default, by DEVELOPER prior to the Closing hereunder, the CITY agrees to record
a Notice of Cancellation regarding this Agreement, upon the written request of
DEVELOPER.
Page 10 of 37
3.4 Loan flepayment and M tu'n, The Loan will be due and payable in
accordance with the Note and not later than the maturity date provided in the Note.
3.5 In f f Documents The DEVELOPER proposal date October 9,
2008, and the CITY Council approved Minutes of October 21, 2010, approving this
Agreement, the Loan Documents, the Act and HUD regulations at 24 CRF Part 92, and all
exhibits, attachments, documents and instruments referenced herein, as now in effect and
as may be amended from time to time, constitute part of this Agreement and are
incorporated herein by reference. All such documents have been provided to the parties
herewith or have been otherwise provided hVicrocured by the parties and reviewed by each
of them prior to execution hereof.
38 Covenants of DEVELOPER. The DEVELOPER for itself and 4s
agentsfassigns covenants and agrees to comply with all Me terms and coMitions of this
Agreement and the requirements of 24 CFR Part 92.
ARTICLE 4. GENERAL REPRESENTATIONS AND WARRANTIES OF DEVELOPER
4.1 Existence d Qualification. The DEVELOPER represents and warrants as of
the date hereof, that DEVELOPER is a duly organized California limited liability company.
DEVELOPER has the requisite power, right. and legal authority to execute, deliver and
perform its obligations under this Agreement and has taken all actions necessary for
authorize the execution, delivery, performance, and observance of Its obligations under this
Agreement. This Agreement, when executed and delivered, shall constitute the legal, valid
and binding obligations of the DEVELOPER enforceable against the DEVELOPER in
accordance with its respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, fraudulent, conveyance, reorganization, moratorium, or other
similar laws of general applicability affecting the enforcement of creditors' rights generally,
and (b) the application of general principles of equity without the joinder of any other party.
4.2 No Life tl M t I to Financial Condition. The DEVELOPER represents
and warrants as of the date hereof that, except as disclosed to and approved by CITY in
writing, no Idigation or administrative proceeding before any court or governmental body or
agency is now pending, nor, to the beat of DEVELOPER's knowledge, is any such litigation
or proceeding now threatened or anticipated against DEVELOPER that, 'd adversely
determined, would have a matenal adverse effect on the financial condition, business, or
assets of DEVELOPER or on Me operation of the Project.
4.3 NO Conflict of Interest. The DEVELOPER represents and warrants to the
CITY as of the date hereof that no official, officer, agent, or employee of the CITY directly or
Indirectly owns or controls any interest in DEVELOPER, and no Person, directly or indirectly
owning or controlling any interest in DEVELOPER, is an official, officer, agent. or employee
of the CITY.
44 No Leaal Bar. The DEVELOPER represents and warrants as of the data
hereof that the execution, delivery, performance, or observance by DEVELOPER of this
Agreement will not, to the best of DEVELOPER's knowledge, materially violate or
contravene any provisions of. (a) any existing law or regulation, or any order of decree of
Page 11 of 37
any court; governmental authority, bureau, or agency; (b) governing documents and
instruments of DEVELOPER; or (c) any mortgage, indenture, security agreement, contract,
undertaking, or other agreement or instrument to which DEVELOPER is a party or that is
binding on any of its properties or assets, the result of which would materially or
substantially impair DEVELOPER's ability to perform and discharge its obligations or its
ability to complete the Projed under this Agreement.
4.5 No Violation of Law. The DEVELOPER represents and warrants as of the
date hereof Nat, to Me beat of the DEVELOPERS knowledge, this Agreement and the
operation of the Project as contemplated by DEVELOPER, do not violate any existing
federal, state, or local laws or regulations.
4.6 No Litigation Material to Prorect. The DEVELOPER represents and warrants
as of Me date hereof that, except as disclosed to, and approved by the CITY in writing,
there is no action, proceeding, of investlgafion now pending, or any basis therefor known or
believed to exist by DEVELOPER that questions the validity of this Agreement, or of any
action to be taken under this Agreement, that would, if adversety determined, materially or
substantially impair DEVELOPER's ability to perform and observe its obligations under this
Agreement, or that would either directly or indirectly have an adverse effect on or impair the
completion of the Project.
67 Assurance of Governments) Aopnovals and Licenses. DEVELOPER
represents and warrants, as of the data hereof, Nat DEVELOPER has obtained and, to the
best of DEVELOPER's knowledge, is in compliance with all federal, state, and local
governmental reviews, coneents, authorizations, approvals, and licenses presently required
by law to be obtained by DEVELOPER for the Project as of the date hereof.
ARTICLE S. HOME PROGRAM REPRESENTATION AND WARRANTIES BY
DEVELOPER
5.1 Access b'IM. If the Loan is not re -paid in full prior to Commencement of
Construction, than the DEVELOPER warrents, covenants and agrees that it shall campy
with 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), including, without limitation, the construction of Me Project so that It meets Me
applicable accessibility requirements, including. but not limited to, Me following:
A. Al least five pent (5%) of the dwelling units must be constructed to
be accessible for persons with mobility disabilities. An additional two percent (2%) of the
dwelling units must be accessible for parsons with hearing or visual disabilities. These units
must be constructetl in accordance with the Uniform Federal Accessibility Standards
(UFAS) or a standard Mat is equivalent or stricter. These mandates can be bond In 24
CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794).
B. The design and construction requirements of Me Fair Housing Act (This
VIII of the Civil Rights Act of 1968, as amended), including Me following seven (7)
requirements of the Fair Housing Accessibility Guidelines:
I. Provide at least one accessible building entrance on an
Page 12 of 37
accessible route.
ii. Construct accessible an usable public an common use areas.
iii. Construct all pace to be accessible and usable by persons in
wheelchairs.
iv. Provide an accessible route into and through the covered
dwelling unit.
V. Provide light switches, electrical outlets, thermostats and other
environmental controls in accessible locations.
vi. Construct reinforced bathroom walls for later installation of grab
bars around toilets, tubs, shower stalls and shower seats, where
such facilities are provided
vii. Provide usable kitchens and bathrooms such that an individual
who uses a wheelchair can maneuver about the space.
The DEVELOPER warrants, covenants and agrees that it shall campy with
the design and construction requirements of the CITY's Universal Design Ordinance No.
2008-53 including as follows:
i. -No step- accessible entryway with the door going into Me no
step entry at least thirty-six (38) inches wide.
ii. All interior doorways shall be at least Miry two (32) inches wide
and hallways shall be at least forty -twice (42) inches wide.
iii. Where Me Project's design includes a residential dwelling unit
with a ground Floor of 750 square feet or more, excluding garage
space, one downstate 'flex room' and accessible bathroom with
reinforcements for grab bars.
V. Six square feet of kitchen counter space.
5.2 Affirmative Marketing. The DEVELOPER warrants, covenants and agrees
that it shall comply with all affirmative marketing requirements, including without limitation,
those set out at 24 CFR 92.350, 24 CFR 92.351, in order to provide information and
otherwise attract eligible persons from all racial, ethnic and gentler groups in the housing
market. DEVELOPER shall be responsible for complying with the CITY's 'Affirmative
Marketing Policy" document, incorporated herein, as amended from time to time.
DEVELOPER shall maintain records of actions taken to offinnathmly market units
constricted in the future, and to assess the results of these actions.
5.3 Ava I b'lity Of HOME Funds The DEVELOPER understands and agrees that
Me availability of HOME Funds is subject to Me control of HUD, or other federal agencies,
and should the HOME Funds be encumbered, withdrawn or otherwise made unavailable to
the CITY, Me CITY shall not be required to provide Me HOME Funds unless and until they
are made available for payment to the CITY by HUD and the CITY receives and allocates
mid Funds. No other funs owned or controlled by the CITY shall be obligated under this
Agreement to the Project.
5.4 Compliance with Aamement. The DEVELOPER warrants, covenants an
agrees that, in accordance with Me requirements of 24 CFR 92.254 and 24 CFR Part 85,
upon any uncured default by DEVELOPER within the meaning of Article 11 of this
Page 13 of 37
Agreement, the CITY may suspend or terminate this Agreement and all other agreements
with DEVELOPER without waiver or limitation of rightsmemedies otherwise available to the
CITY.
5.5 C nfi it Of Interest. The DEVELOPER warrants, covenants and agrees that it
shall comply with the conflict of interest requirements of 24 CFR 92.356 including, without
limitation, that no officer, employee, agent or consultant of DEVELOPER may cupy an
Affordable Unit. DEVELOPER understands and acknowledges that no employee, agent,
consultant officer or elected official or appointed official of the CITY, who exercises or has
exercised any functions or responsibilities with respect to the Project, or who is in a position
to participate in a decision making process or gain inside information with regard to these
activities, may obtain a financial interest or benefit from the Project, or have an interest in
any contract, subcontract or agreement with respect thereto, or the proceeds thereunder,
either for him or herself or for anyone with which that person has family or business date,
during his or her tenure or for one year thereafter. To the extent provided at 24 CFR
92.356(f), no owner, developer or sponsor of Me Project, or officer, employee, agent or
consultant thereof, may occupy an Affordable Unit within the Project.
5.6 ConetNCf On Standards. DEVELOPER shall construct the proposed housing
units assisted under this Agreement in compliance with all applicable local codes,
ordinances and zoning requirements applicable to the Project at the time of issuance of
CertKcation of Completion. In the absence of a local code for construction, DEVELOPER
agrees to comply with the applicable standards idem fed In 24 CFR 92.251,
5.7 Covenants and Ftestrichons to Run with the d. The CITY and
DEVELOPER expressly wamanq covenant and agree to ensure that the covenants and
restrictions set forth in Nis Agreement are recorded and will run with the land, provided,
however, that, on expiration of this Agreement and Affordable Housing requirements
therein, said covenants and restrictions shall expire. The DEVELOPER further warrant,
covenant and agree that the covenants and restrictions herein shall run in favor of the CITY.
The CITY agrees that this Agreement, the Note, the Deed of Trust and the Declaration of
Restrictions shall be made junior and subordinate to liens given in connection with the
Project financing, including any refinancing thereof established and obtained pursuant to
and in compliance with the provisions of the Agreement, and to any other regulatory
agreement. The City Manager of the CITY is hereby authorized and directed to execute
such subordination agreement, inter -creditor agreements, standstill agreements, and/or
other documents as may be reasonably requested by the Lender to evidence subordination
N the Project financing, without further auMortration from the CIN, provided that such
agreements contain written previsions that are no more onerous and which are consistent
with the customary standard requirements imposed by financing source(s), on subordinate
cash flow obligations under their then existing senior financing policies, and further provided
that CITY Attorney reasonably approves of such document as to form.
A. The CITY and DEVELOPER hereby declare their understanding and
intent that the covenants and resldctions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and ownership of the proposed! Project by certain
Low -Income Families, and (b) by making possible the obtaining of advantageous financing
for construction of the Pmject.
Page 14 of 37
R. The DEVELOPER covenants and agrees that after issuance of a
recorded Certificate of Completion for the Project until expiration of the Affordability Period,
A shall cause the three (3) Affordable Units to be used for Affordable Housing to Low -
Income Families.
G Without waiver or limitation, the CITY shall be entitled to injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in atldffion, be entiffed to damages available under law or contract for
any injuries or losses resulting from any violations thereof.
D. All present and future owners of the Project and other persons claiming
by, through, or under them shall be subject to and shall comply with the covenants and
restrictions. The acceptance of a dead of conveyance to the Project shall constitute an
agreement that the covenants and restrictions, as may be amended or supplemented from
time to time, are accepted and ratified by such future owners, tenants or occupants. and all
such covenants and restrictions shall be covenants running wah the land and shall bind any
person having at any time any interest or estate in the Project, all as though such covenants
and restrictions ware recited and stipulated M length in each and every dead, conveyance,
mortgage or lease thereof.
E. The failure or delay at any time of the CITY or any other person entitled
to enforce any such covenants or restrictions shall in no event be deemed a waiver of the
same, or of the right to enforce the same at any time or from time to time thereafter, or an
estoppel against the enforcement thereof.
5.8 Displacement of Persons. The DEVELOPER warrants, covenants and agrees
that pursuant to 24 CFR 92.353, it will take all reasonable steps to minimize the
displacement of any persons (families, individuals, businesses, nonprofit organizations and
farms.) The CITY and DEVELOPER acknowledge and agree that the Property is currently
vacant and unimproved.
5.9 Initial Income Certification. The DEVELOPER warrants, covenants and
agrees that ff shall campy with the procedures for income determinations at 24 CFR
92.203, DEVELOPER shat) obtain, complete and maintain on file, immediately prior to
inifial occupancy, income certifications from each of the tenant Household renting any of the
three (3) Affordable Units. DEVELOPER shall make a good falth effort to verty that the
income provided by an applicant or occupying Household in an income certification is
accurate by taking one or more of the fallowing steps as part of Ne verificefion process: (1)
obtain a pay stub for the most recent pay period; (2) obtain an income verification form from
the applicant's current employer (3) obtain an income verification form from the Social
Security Administration and California Department of Social Services ff the applicant
receives assistance from either of such agencies; (4) if the applicant is unemployed and has
no such tax retum, obtain another form of independent verification. Copies of household
Income certification and verification must be available for review and approval by the CITY.
DEVELOPER further warrants, covenants and agrees that it shall cooperate with the CITY
in the CITY'S Income certifrabon/affordability monitoring activities.
Page 16 of 37
5.10 Lead -Based Paint. The DEVELOPER warrants, covenants and agrees that It
shall comply with all applicable requirements of the Lead -Based Paint Poisoning Prevention
Act of 42 U.S.C. 4821 at seq., 24 CFR Pari 35 including the HUD 1012 Rule, and 24 CFR
982.401(), and any amendment thereto, and EPA Section 402(c)(3) of the Toxic Substance
Control Act (TSCA) to address lead-based paint hazards mated by renovation, repair, and
painting activities that disturb lead-based paint in target housing and child -occupied
facilities. Contractors pedorming renovations in lead-based paint units must be EPA -
certified renovators. These requirements apply to all Units and common areas of the
Project. The DEVELOPER shall incorporate or cause incorporation of this provision in all
contracts and subcontracts for work performed on the Project, which involve the application
of paint. The DEVELOPER shall be responsible for all disclosure, inspection, testing,
evaluation, control and abatement activities.
5.11 Minority Outreach Activities. The DEVELOPER wanants, covenants and
agrees that it shall comply with all federal laws and regulations described! in Subpart H of 24
CFR Pad 92, Including, without limitation, any requirement that DEVELOPER comply with
the CITV'S minonty outreach program.
5.12 Other Lam and Reoulations. The DEVELOPER warrant, covenants and
agrees with the CITY that, in addition to complying with the federal laws and regulations
already cited in this Agreement, the DEVELOPER has reviewed, and shall comply with, all
other federal laws and regulations met apply to the HOME Program and this Project,
including, without limitation, requirements of 24 CFR 58.6 and the Flood Disaster Protection
Act of 1973, as amended (42 U.S.C. 40014128) and the following:
A. The DEVELOPER does not intend to use any financing mat is secured
by a mortgage insured by HUD in connection with Inc Project as part of Its acquisition
andlor construction of this Project.
B. The Project is not located in a tract identified by the Federal Emergency
Management Agency as having special food requirements.
C. The Project requirements, Subpart F of 24 CFR Pad 92, as applicable
and in accordance with the type of Project assisted, including, but not limited to, the limit on
the HOME per-unit subsidy amount at 24 CFR 92.250.
D. The property standards at 24 CFR 92.251.
E. The Project 'Labor' requirements, as applicable, of 24 CFR 92.354
including Davis Bacon prevailing wage requirements (40 U S.C. 276a - 276a-7)1 as
supplemented by Department of Labor regulations (29 CFR Part 5).
F. The provisions of Section 102 and 107 of the Contract Wod: Hours and
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction and management of the
proposed Project.
G.
The
DEVELOPER and ds contractors,
subcontractors
and
service
Page 18 of 37
providers for the Project, shall comply with all applicable local, state and federal
requirements concerning equal employment opportunity, Including compliance with E.O.
11246, "Equal Employment Opportunity,' as amended by E.O. 11375, "Amending Executive
Order 11246 Relating to Equal Employment Opportunity; and as supplemented by
regulations at 41 CFR part 60, "Othce of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department d Labor.'
H. The provisions of the Copeland'Ant4Kickback" Ad (18 U.&C. 874), as
supplemented by Department of Labor regulations (29 CFR part 3, "Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or In Part by Loans or
Grants from the United States").
I. The provisions of Me Clean Air Ad (42 U.S.C. 7401 at seq.) and the
Federal Water Pollution Control Ad (33 U.SC. 1251 st seq.), as amended.
J. The provisions of the Byrd Anti -Lobbying Amendment (31 U.S.C.
1352).
K. The provision of E.Oa 12549 and 12689, "Debarment and
Suspension," as set forth at 24 CFR pad 24.
L. The provisions of the Drug -Free Workplace Ad of 1988 (42 U.S.C.
701), in accordance with the Act and with HUD`s rules at 24 CFR part 24, subpart F.
M. Title 8 of the Civil Rights Ad of 1968 PL. 90.284.
N. Executive Order 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Ad of 1968.
P. The Housing and Community Development Ad of 1974.
O. Clean Water Requirements 33 U.S.C. 1251.
R. Civil Rights Requirements, 29 U.S.C. Section 623, 42 U.S.0 Section
2000, 42 U.S.0 Section 6102, 42 U.S.C. Section 12112, 42 U.S.0 Section 12132, 49
U.S.C. Section 5332, 29 CRF Part 1630,41 CFR Pads 60 et. seq.
5.13 Religious Organizations The DEVELOPER warrants, covenants and agrees
with the CITY that it shall not engage in any inherently religious activities, such as worship,
religious, or proselytization, as pad of the assistance funded by this Agreement as
described in 24 CFR 92.257. Subject to the foregoing, Me DEVELOPER does not intend to
utilize HOME Funds to construct housing owned primarily by religious organizations or to
assist primarily religious organizations in acquiring housing.
5.14 Reporting Reau'rements. The DEVELOPER warrants, covenants and agrees
with the CITY that It shall submit Performance reports to the CITY as detailed in Section
8.16. Furthermore, the DEVELOPER agrees to provide, at the sole cost of Me
Page 17 of 37
DEVELOPER to amount for the expendmim of HOME Funds using generally accepted
accounfing principles, which financial documentation shall be made available to the CITY
and HUD upon Meir respective written request(s).
5.15 Houslno Affordability. The DEVELOPER warrants, covenards and agrees that
Me three (3) Affordable Units in the Project will meet, (as and when applicable) the
Affordable Housing, income targeting and other requirements of 24 CFR 92.252 during the
Affordability Period. The three (3) Affordable Units in the Project shall, be ranted to and
Occupied by, or. if vacant, available for rental and occupancy by household(s) whose annual
household income at the time of initial occupancy is not greater than eighty percent (60%)
of the most recent annual median income calculated and published by HUD for the Fresno
Metropolitan Statistical Area applicable to such household's size, and at an affordable rent
consistent with HOME Program regulations, for the Affordability Period except upon
foreclosure by a lender or transfer in lieu of foreclosure following default under a Deed of
Trost. However, If at any time following transfer by foreclosure or transfer in lieu of
foreclosure, but still during Me Affordability Period' the owner of ramal prior to Me
foreclosure or transfer in lieu of foreclosure, or any newly fanned entity that Includes such
owner of record or these whom such owner of record has or had family or business has
obtains an ownership interest in the Project or Property, Me Affordability Period shall be
revived according to its original terms. In the event DEVELOPER fails to comply with this
Section or the Affordability Period is not revived following transfer by foreclosure or transfer
in lieu of foreclosure, the DEVELOPER shall return to CITY all HOME Funds disbursed to
Me DEVELOPER by the CITY for this Project.
5.16 Tennnated Proects(). The DEVELOPER understands and agrees That, g
the Project is terminated before completion, either voluntarily or otherwise, such constitutes
an ineligible activity and the City will not be required to provide any further HOME Program
assistance funding to the Project Units.
ARTICLE 6. PROPERTY MAINTENANCE
The DEVELOPER covenants and agrees to the following, for Me entire term of the
Agreement.
6.1 Adequate Repair and Mainternin After completion of the Project, the
DEVELOPER shall maintain Project and Property in compliance with all applicable codes,
laws, and ordinances.
6.2 Affordable Rental Housing The Project shall constitute twenty (20) residential
units of which three (3) shall be preserved as Low -Income rental housing (as provided in
this Agreement as a matter of contract, and as and when applicable, per 24 CFR 92 252)
during the entire Affordability Period This covenant shall remain in effect and con with and
restrict the land during the entirety of the Affordability Perot, In the event Nat
DEVELOPER falls to comply with the time period in which the Project must constitute
Affordable Housing, CITY shall without waiver or limllation be entitled to injunctive relief, as
DEVELOPER acknowledges that damages are net an adequate remedy at law for such
breach.
Page 16 of 37
8o C�mol'ance With E tai Lam. The DEVELOPER shall cause the
Project to be In compliance with; and not to cause or permit the Project to be in violation of,
any environmental law, rule, regulation, ordinance, or statute. Although the CITY will utilize
its employees and agents for regular inspection and testing of the Property, the
DEVELOPER agrees that, tl the CITY has reasonable grounds to suspect any such
violation, the DEVELOPER shall be entitled to thirty (30) days' notice and opportunity to
cure such violation. If the suspected violation is not cured, the CITY shall have the right to
retain an independent consultant to inspect and fest the eligible Property for such violation.
If a violation is discovered. the DEVELOPER shall pay for the reasonable cost of the
independent consultant.
Additionally, the DEVELOPER agrees:
A. That the CITY shall not be directly or indirectly responsible, or obligated
or liable for the inspection, testing, removal or abatement of asbestos or other hazardous or
toxic chemicals, materials, substances, or wastes and that all cost, expense and liability for
such work shall be and remain solely with the DEVELOPER:
B, Not to transport to or from the proposed Project site(s), or use.
generate, manufacture, produce. store, release, discharge, or dispose of on, untler, or
about the Property, or surrounding real estate, or transport to or from the projrW shelf), or
surrounding real estate, any hazardous or toxic chemicals, materials, substance, or vraetes
or allow any person or entity to do so except in such amounts and under such terms and
conditions permiged by applicable laws, rules, regulations, ordinances, and statutes:
C To give prompt written notice to the CITY of the following:
(i) Any proceeding or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration thereof
from or to other property;
if) Alf claims
e or
against the
DEVELOPER or such(Properties relating to anylossorris uryyresultingfrom any hazardous
or toxic chemicals, materials, substance, or waste; and
(iii) The DEVELOPER's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of such properties that would cause such
Properties or underlying or surrounding real estate or part thereof to be subject to any
restrictions on the ownership, occupancy, transferability, or use of the property under any
environmental law, rule, regulation, ordinance or statute; and
D. To indemnity, defend, and hold the CITY harmless from any and all
Gamer actions, causes of action. demands, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, costs, expenses (including
attorney's fees and expenses), and disputes of any kind whatsoever arising out of or
relating to me DEVELOPER or any other party's use or release during the period in which
DEVELOPER owns the Property of any hazardous or toxic chemicals, materials, substance,
Page 19 of 37
or wastes on the eligible Property regardless of cause or origin, including any and all liability
arising out of or relating to any investlgabon, site monitoring, containment, cleanup,
removal, restoration, or other remedial work of any kind,
6.4 Compliance With Laws. The DEVELOPER shall be responsible for and
Promptly and faithfully comply with, conform to and obey all present and future federal, state
and local statutes, regulations, miss, ordinances and other legal requirements applicable by
reason of this Agreement or otherwise to the Project including without limitation as to
prevailing wage requirements. The DEVELOPER acknowledges that the use of HOME
Funds subjects Me Project b extensive federal regulation and covenants and agrees that It
shall comply with. conform to and obey (anti take such steps as are required of the
DEVELOPER to enable the CITY M comply with, conform to and obey (anti take such steps
as are required of the DEVELOPER to enable Me CITY to comply with, conform to and
obey) all federal statutes, regulations, rules and policies applicable to Me HOME Program
and Me Project. The CITY and DEVELOPER acknowledge Mat (i) pursuant to 24 CFR
92.354 a contract for Me construction (new construction) of housing that includes fewer
than 12 units assisted with HOME funds need not contain a provision requiring the payment
of Me wages prevailing in Me locality as predetermined by the Secretary of Labor pursuant
to the Davis -Bacon Act (40 U.S.C. 276a -276x.5), to all laborers and mechanics employed in
the development of any part of the housing, or the overtime provisions, as applicable, of the
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-332), and (ii) pursuant to
Cal. Labor Code 1720, any public participation in the Project Mat would otherwise meet the
criteria of a public work for which State prevailing is required under Cel. Lab. Code 1720 at
seq. is exempt as provided therein, and to Me extent of charter city authority over municipal
affairs and projects. Nonetheless DEVELOPER shall be solely responsible for determining
and effectuating compliance. Nolwkhstanding anything to the contrary contained herein,
nothing in this Agreement shall be construed as Imposing any independent prevailing wage
requirements Mat are different from those imposed by applicable federal or state law.
6.5F.' t a D I f f and Authority. '. The DEVELOPER shall provide to the
CIN any ewtlence required or requested by the CITY to demonstrate the continuing
existence, qualification, and authority of the. DEVELOPER to execute this Agreement and to
perform Me acts necessary to carry out the Project.
6.6 s I Statements d Audits. The DEVELOPER as a recipient of federal
financial assistance, Is required 10 comply with the provisions of Me Single Audit Act of
1984 (31 U.S.C. Sections 7501 at seg.), as amended, d Five Hundred Thousand Dollars
and 001100 ($500,000.00) or more in federal funds are expended. If applicable, aud'Red
financial statements are due annually, within one hundred and eighty (180) days following:
1) Me end of fiscal yeags) in which the HOME Funds are disbursed hereunder, and 2) Me
end of fiscal years) in which this contract shall terminate, and otherwise upon the CITY's
written request during the tern of this Agreement. DEVELOPER, at its sole cost and
expense shall submit to the CITY:
A. Audited annual financial statements that are current, signed, and
Prepared according to generally accepted accounting principles consistently applied (except
as otherwise disclosed therein); and
Page 20 of 37
B. Audited Financial Statements covering the income and expenses, and
the financial transactions for the Project during me prior fiscal year.
6.7 Juss ecfon antl Audif B k R d d D ts. The DEVELOPER
shall be accountable to the CITY for all HOME Funds disbursed for the Project pursuant to
this Agreement. Any duly authorized representative of the CITY, the State, or HUD shall, at
all reasonable times, have access to and me right to inspect, Copy, make excerpts or
transcripts, audit, and examine all books of accounts, records, files and other papers or
Property, and other documents of the DEVELOPER pertaining to me Affordable Units Or all
matters covered in this Agreement and for up to six (6) years after the expiration or
termination of this Agreement.
A. The DEVELOPER will maintain books and records for the Project using
generally accepted accounting principles. The DEVELOPER agrees to maintain books
and records met accurately and fully show the date, amount, purpose and payee of all
expenditures financed with HOME Funds and to keep all invoices, receipts and other
documents related to expenditures financed with HOME Funds for not less man six (6)
years after the expiration or termination of the Agreement. Books and records must be
kept accurate and current For purposes of this section, "books, records and documents"
include, without Inflation; plans, drawings, specifications, ledgers, journals, statements,
contrecislagreements, funding information, funding applications, purchase orders, invoices,
loan tlocuments, computer printouts, correspondence, memoranda, and electronically
stored versions of me foregoing. This section shall survive the ternination of this
Agreement.
B. The CITY may audit any conditions relating to this Agreement at the
CITY's expense, unless, unless such audit shows a significant discrepancy in information
reported by the DEVELOPER in which case the DEVELOPER shall bear me cost of such
audit. The DEVELOPER shall also comply with any applicable audit requirements of 24
CFR 92.506. This section shall survive the termination of this Agreement.
C. The DEVELOPER will cooperate fully with me CITY, the State, and
HUD in connection with any interim or final audit relating to the Programs and the Project
that may he performed relative to me performance of his Agreement.
6.6 Inspection of Property Any duly aumorimd representative of the CITY, me
State, or HUD shall, at all reasonable times, have access and me right to inspect the
Property until completion of the Project and expiration of the Project within 72 hours written
notice, subject to the rights of the tenants.
6.9 No Other Liens. Prior to re -payment of the Loan in full, me DEVELOPER
shall not create or incur, or suffer to be created or incurred, or to exist, any additional
mortgage, pledge, encumbrance, lien, charge, or Omer security interest of any kind on the
eligible Property, other than Nose related to construction or predevelopment loans in
relation to the Project consistent wfth the afmched EXHIBIT "D° Project Budget. without the
prior written consent of the CITY.
6.10 Nondiscrimination. The DEVELOPER shall comply with and cause any and
Page 21 of 37
all contractors and subcentre(<ors to comply with any and all federal, state, and local laws
with regard to illegal discrimination, and the DEVELOPER shall not illegally discriminate
against any persons on account of race, religion, sex, family status, age, handicap, or place
of national origin in its performance of this Agreement and the completion of the Project.
6.11 Ownershi . Except as required in pursuit hereof, the DEVELOPER shall not
sell, lease, transfer, assign or otherwise dispose of (7mnsfer) all or any material pan of
any interest it might hold in the Property or the Project without the prior written consent of
the CITY, which consent shall not be unreasonably wlthheld or delayed.
6.12 Payment of Li blitThe DEVELOPER shall pay and discharge in the
ordinary course of its business all material obligations and liabilities, the nonpayment of
which could have a material or adverse impact on its financial condition, business, or assets
or on the operation of the Projectile), except such obligations and liabilities that have been
disclosed to the CITY in writing and are being contested in good faith.
6.13 Report of Events of Default The DEVELOPER shall promptly give wrftten
noticeto the CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 7. HOME PROGRAM FUNDS
Without waiver of limitation, the parties agree as follows, regarding HOME Funds:
7.1 Use of HOME Program Funds. The DEVELOPER warrants, covenants and
agrees that HOME Program Loan Funds shall be use only for HOME eligible Project costs
as Idenfified in the attached Budget, attached hereto as EXHIBIT "C', including costs
allowable under 24 CFR 92.206, aggregating not more than the Loan amount. The CITYs
obligations shall in no event exceed the HOME Funds amount specified in this Agreement.
7.2 Conditions Precedent t Property Sale. The CITY shall not be obligated to
convey the Property to DEVELOPER or take any order action under this Agreement unless
Me following conditions are satisfied:
A. There exists no Event of Default as provided in Article 11, nor any act,
failure, omission or condition that with the passage of time or the giving of notice or both
would constitute an Event of Default.
B. The DEVELOPER has submitted evidence that the combined monies
from non -CITY Project funding sources and HOME funds are not less than Four Million
Three Hundred Thousand Dollars and 00/100 ($4,300,000.00) per the Budget attached
hereto In EXHIBIT -C', the amount necessary to complete the Project.
C. The CRY has approved the requested eligible Property costs.
0. The DEVELOPER has acquired insurance coverage and delivered to
the CITY evidence of Insurance as required In Article 10.
E. The DEVELOPER is current with its compliance of all reporting
Page 22 of 37
7 t I
requirements set forth in this Agreement.
F. The DEVELOPER has delivered a Unit construction schedule
satisfactory to the CITY.
G. The City has received the Certification required by this Section 7A of
this Agreement.
7.3 Request for Cmtlil of HOME PrRQMF d N h E The
DEVELOPER shall request that the CITY convey the Property through escrow as a form of
disbursement of HOME funds. The DEVELOPER shall a only request a maximum form
Two
Hundred and Forty Five ThousaM Dollars and 00/[00 (only request in HOME Program
assistance to finance acquisition of the Property, or as otherwise agreed H M CITY. All
requests for HOME hindsmeet. shall be accompanied with me Certification required by this
Article 7 of this Agreement.
7A DEVELOPER Certification The DEVELOPER shall submit to the CITY a
wdlten certification that, as of the date of the written request for disbursement
("Certification'):
A. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate in all material
respects; and
B. The DEVELOPER has carred out all of its obligations and is in
compliance with all the obligations or covenants specified in this Agreement, to the extent
that such obligations or covenants are required to have been wined out or are applicable at
the time of the request for me Disbursement and
C, The DEVELOPER has not committed or suffered an act event,
occurrence, or circumstance that constitutes an Event of Default or that with the passage of
time or giving of notice or both would constitute an Event of Default; and
D. Loan disbursement requested will be used solely for HOME eligible
Property acquisition was that have been property Incurred and are property chargeable in
connection with the Project,
ARTICLE 8. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the parties agree as hallows:
8.1 Pre-construction Meeting Regard'Regandino HOME P _PrOw
&ggas and
Procedures. The CITY will schedule, and the DEVELOPER shall attend a meeting prior to
construction with me CITY'S Housing and Community Development Division for the purpose
of outlining HOME Program processes and procedures.
82 CgrivInen ximent and Completion of Proied. The DEVELOPER shall
commence and complete construction and record a Notice of Completion, upon completion
Page 23 of 37
_V I
of the Project, in accordance with the Project Schedule,
8.3 Contracts and Subcontracts. Consistent with Article 8, all demollbon,
hazardous waste abatement, construction work and professional services for the Project
shall be performed by persons or entities licensed or othervnse legally authorized to perform
the applicable work or service in the State of California and the City of Fresno. Upon the
written request from me CITY, the DEVELOPER shall provide lire CITY with copies of all
agreements with any and all contraciors or subconhactors for this Project. The
DEVELOPER shall require that each contractor and subcontractor agreement contain a
prevision whereby the parly(ies) to the agreement other than the DEVELOPER agree to (i)
notify the CITY Immediately of any event of default by the DEVELOPER thereunder (ii)
notify the CITY immediately of the fling of a mechanic's lien, (iii) notify the CITY
immediately of termination or cancellation of the agreement; and (iv) provide the CITY,
upon the CITY's request, an Estoppel Certificate ceditying that the agreement is in full force
and effect and the DEVELOPER is not in default thereunder. The DEVELOPER agrees to
notify the CITY immediately of termination or cancellation of any such agmement(s), notice
of filing of a mechanic's lien, or breach or default by other party (ies) thereto.
8.4 Damage to Property To the extent consistent wlth the requirements of any
permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 10 of
this Agreement, H any building or improvement constructed on the Property is damaged or
destroyed by an insurable cause, the DEVELOPER shall, at its cost and expense, diligently
undertake to repair or restore said buildings and improvements consistent with the odginal
Plans and Specifications of the Affordable Unit Such work or repair shall commence within
ninety (90) days after the insurance proceeds are made available to the DEVELOPER and
shall be complete within two (2) years thereafter. All insurance proceeds collected for such
damage or destruction shall be applied to the cost of such repairs or restoration and, H such
insurance proceeds shall be Insufficient for such purpose, the DEVELOPER shall make up
the deficiency.
8.5 Fears Texas and Other The DEVELOPER shall be responsible for
payment of all fees, assessments, taxes, charges and levies imposed by any public
authority or Why company with respect to the Property or the Project, and shall pay such
charges prier to delinquency. However, the DEVELOPER shall not be required to pay and
discharge any such charge so long as: (a) the legality thereof is being contested diligently
and in good faith and by appropriate proceedings, and (b) If requested by the CITY, the
DEVELOPER deposits with the CITY any funds or other forms of assurances that the CITY,
in good faith, may determine from time to time are appropriate to protect the CITY from the
consequences of the contest being unsuccessful.
8.8 Fi antro . The DEVELOPER shall promptly inform the CITY of any new or
additional financing or funding not included in the budget for the project, and the
DEVELOPER shall provide the CITY copies of all agreements with any and all Funding
Sources for this Project. The DEVELOPER shall require each agreement with any and all
funding sources not included in the Budget to contain a provision whereby the Parry(ies) to
Me agreement other than the DEVELOPER, if permitted by the parties' applicable rules and
regulations, agree to (I) notify the CITY immediately of any event of default by the
DEVELOPER thereunder; (ii) notify the CITY immediately of termination or cancellation of
Page 24 of 37
the agreement; and (iii) provide the CITY, upon CITY's request, an Estoppel Certificate
certifying that the agreement is in full force and effect and the DEVELOPER is not in default
thereunder. The DEVELOPER agrees to notify the CITY immediately of termination or
cancellation of any such agreement(s) or receipt of notice of default thereunder. The
DEVELOPER shall comply with all obligations of any such agreement(s) with any and all
funding sources until the respective expiration of such afire iment(s).
81 Identification S' . Before Me start of construction, the DEVELOPER
shall place a poster or sign, with a minimum four feet by four feet in size, Identifying the City
of Fresno as a Project participant. The sign shall also include me CITY's Housing logo, as
well as HUD's Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a
minimum of 4 inches. The Postedsign shall be appropriately placed, and shall be in place
throughout the Project construction.
8.8 Inaoecfons. The DEVELOPER shall peril, facilitate, and require Xs
contractors and consultants to permit and facilitate observation and inspection at the job
site by the CITY and other public authorities during reasonable business hours, for
determining compliance with this Agreement including without limitation those on-site
inspections.
8.9 Insurance d Bonds The DEVELOPER shall submit for CITY approval
bonds, policies, Certificates and/or applicable endorsements for all Insurance and bonds
required by this Agreement in accordance with Article 10.
8.10 Mechanic's Liens and Stop Notl n . If any claim of lien is fled against the
Property or a slop notice affecting any financing, HOME Program Funds or funding sources
for the Project is served on the CITY or any other third parry in connection with the ProjW,
the DEVELOPER shall, within twenty (20) days of such filing or service, either pay and fully
discharge the lien or stop notice, effect the release of such lien or stop notice by delivering
to the CITY a surety bond in sufficient form and amount, or provide the CITY with other
assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or
discharged. If the DEVELOPER fails to discharge, bond or otherwise satisfy the CITY with
respect to any lien, encumbrance, charge or claim referred to In this Section, then, in
addition to any other right or remedy, the CITY may, but shall not be obligated to, discharge
such lien, encumbrance, charge, or claim at the DEVELOPER expense. Alternatively, the
CITY may require the DEVELOPER to immediately deposit with the CITY the amount
necessary to suet' such lien or claim and any costs, pending resolution thereof. The CITY
may use such deposit to sa isfy any claim or lien that is adversely determined against the
DEVELOPER. The DEVELOPER hereby agrees to indemnify and hold the CITY harmless
from liability for such liens, encumbrances, charges of claims together with all related costs
and mryenses.
8.11 Permits Prid Licensee. Upon CITY's reasonable request, the DEVELOPER
shall submit, for CITY approval, all the necessary permits and licenses required for
Commencement of Construction of the Project. As the CITY may reasonably request, the
DEVELOPER, at its sole cost and expense, shall provide to the CITY copies of any and all
permit approvals and authorizations including plot plan. plat, zoning variances, sewer,
building, and other permits required by governmental authorities other than the CITY in
Page 25 of 07
Pursuit of the Project, and for its stated purposes in accordance with all applicable building,
environmental, ecological, landmark, subdivision, zoning codes, laws, and regulations.
8.12 Plans ond Specifications,
A. The DEVELOPER has submitted to the CITY preliminary plans and
specifications for the Project under Conditional Use Perk C-10-157 ("Prelimmary Plan-).
The DEVELOPER will construct the Project in full conformance with Me CITY -approved
Conditional Use Permit and plans and specifications and modifications thereto approved by
the CITY. The DEVELOPER shall obtain written approval for any modifications to the plans
and specifications.
B. The HOME Agreement shall contain by reference the design and site
plan of the Project; such design must be approved by the City Council with the HOME
Agreement.
8.13 Pro'ect Responsibilities. The DEVELOPER shall be solely responsible for all
aspects of the DEVELOPER's conduct in connection with the Project, the quality and
suitability of the work completes the supervision of all contracted work, qualifications and
financial conditions of and performance of all contractors, subcontractors, consultants and
suppliers. Any review or inspection undertaken by Me CITY with reference to the Project is
solely for the purpose of determining whether the DEVELOPER Is properly discharging its
obligation to Me CITY, and shall not be rallied upon by the DEVELOPER or by any third
parties as a warranty or representation by the CITY as to the quality of the work completed
for the Prcjed.
8.14 Qualhv of Work The DEVELOPER shall ensure that construction of the
proposed Project, employs building materials of a quality suitable for the requirements of
the Project The DEVELOPER shall cause completion of construction of the proposed
Project on the Property in full conformance with applicable local, state and federal laws,
statutes, regulations, and building and housing codes.
8.15 Rencabon. If and ro the spent that construction of Me proposed Project
results in the permanent or temporary displacement of resideneel tenants. homeowners or
businesses, the DEVELOPER shall comply with all applicable local, state and federal
statutes and regulations with respect to relocation planning, advisory assistance and
payment of monetary benefRs. The DEVELOPER shall be solely responsible for payment
of any relocation benefits to any displaced persons and any other obligations associated
With complying with said relocation laws.
8.18 ReporianQ Rggluarements. The DEVELOPER shall submit to Me CITY the
fallowing Project reports:
A. From the data of the Commence of the Project, until issuance of the
final Certificate of Completion, evidendng the construction of the last Project Unit, the
DEVELOPER shall submit a Quartetly Report, in a form approved by the CITY, which will
include, at a minimum, the fallowing information: progress of the Project and affirmative
marketing of or s (as applicable). The Quarterly Reports are due on each March 31". June
Page 26 of 37
30°', September 30v. and December 31", during emit period.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the last
Project Unit, and continuing until the termination of the Agreement, the DEVELOPER shall
submit an annual report (the "Annual Report') to the CITY, in a farm approved by the CITY
and containing the following information: the data the occupancy of the Affordable Housing
commenced, certification from an officer of the DEVELOPER that the Project is in
compliance with the Affordable Housing requirements, and such other information the CITY
may be required by law to obtain. The DEVELOPER shall provide any additional
information reasonably requested by the CITY.
C. Annually, beginning on the first day of the month fallowing the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the last Unit,
and continuing unfit the expiration of the Agreement, DEVELOPER shall submit proof of
insurance as may be required in Article 10.
8.17 Scheoudin and Ext nsion of Time7 Unavoidabla Delay in Performance. It
shall be Me responsrbridy of the DEVELOPER to coordinate and schedule the work to be
performed so that the Commencement of Construction and Issuance of the Certificate of
Completions) will take place in accordance with the provisions of the Agreement and
Project Schedule. The time for performance contained the Project Schedule shall be
automatically extended upon the following'
A. The time for pedornance of provisions of the Agreement by either party
shall be extendetl for a period equal to the period of any delay directly affecting the Project
or this Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-
outs, riots, foods, earthquakes, fires, casualties, acts of Gad, acts of a public enemy,
epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by
third parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of fume for any of the above specified causes will be granted only
K written notice by the party claiming such extension is sent to the other parry within thirty
(30) calendar days from the data the affected party learns of the commencement of the
cause and the resulting delay and such extension of time is accepted by the other party in
writing. In any event, the Project must be compktetl no later than one hundred eighty (180)
calendar days after the scheduled completion data specified in this Agreement,
notwithstanding any delay caused by that included in this section.
B. Any and all extensions hereunder shall be by mutual written agreement
of the CITY's Housing and Community Development Division Manager and the
DEVELOPER and shall not cumulatively exceed one hundred eighty (180) days.
8.18 Certificate(s) of Completion. Upon completion of construction of the Project,
Me DEVELOPER shall: 1) candy in writing to the CITY that construction of the Project has
been completed in accordance with Me Final Plana; 2) submit to the C11 Y amet -caddying
final budget for the Project where the DEVELOPER shall identify the actual costs of
construction of the Project; 3) submit to the CITY a certificate of Occupancy for the Project;
4) submit to the CITY a Notice of Completion for the Project and 5) submit to the CITY an
Page 27 of 37
Amhitect's certification in a form reasonably acceptable to the CITY. Upon a determination
by the CITY that Me DEVELOPER is in compliance with all of the DEVELOPER's
construction obligations, as specified in this Agreement, for Me Project, the CITY shall
furnish, within thirty (30) calendar days of a wrMen request by the DEVELOPER, a
recordable Certificate of Completion for the Project in the forth attached hereto as EXHIBIT
"E°. The CITY will not unreasonably withhold or delay famishing the Certificate of
Completion. If the CITY fails to provitle the Certificate of Completion within the spaded
time, it shall provide the DEVELOPER with a written statement indicating in what respects
the DEVELOPER has failed to complete the Project in conformance with this Agreement or
has otherwise failed to comply with the terms of this Agreement, and what measures the
DEVELOPER will need to take or what standards It will need to meet in order to obtain the
Certificate of Completion. Upon Me DEVELOPER taking the specified measures and
meeting the specified standards, Me DEVELOPER will certify to the CITY in writing of such
compliance and the CITY shall deliver the recordable Cerifcate of Completion to the
DEVELOPER in accordance with the provisions of this section.
ARTICLES. PROJECT OPERATIONS
9.1 Occupancy Reauirements. Of the twenty (20) housing units, three (3) shall be
Affordable Housing and shall be occupied by, of ff vacant, available for rental occupancy by
households as Affordable Housing for the Affordability Period, for the tens of this
Agreement. DEVELOPER, in this regard shall comply with the income targeting
requirements of 24 CFR 92.216.
9.2 Leasing the Project. Before leasing any Units censtkuting affordable housing,
Me DEVELOPER shall submit its proposed form of lease (Me "Lease') for CITY's review
and approval. DEVELOPER covenants and agrees to utilize only Leases that have been
approved in advance by the CITY The CITY shall respond to DEVELOPER'S submission
of a sample Lease within thirty (30) days. Should the CITY not respond within thirty (30)
days of Lease submittal, DEVELOPER shall be authorized to use the submitted sample
lease agreement. Additionally, the DEVELOPER agrees not to terminate the tenancy or to
refuse to renew a Lease wth a tenant in Me Affordable Units assisted with HOME Funds
except for serious or repeated violation of the terms and conditions of the Lease, for
violation of applicable federal, state, or local law, or for other good cause. Any such
termination or refusal to renew must be preceded by not less than thirty (30) days written
notice served by the DEVELOPER or its authorized management entity upon the tenant
specifying the grounds for such action. DEVELOPER agrees it shall annually report to
CITY the number of Leases Mat were not renewed or terminated and the reason for such
non -renewal or termination.
9.3 Lease Provision In addition to the requirements of 24 CFR 92.253, the
Leases are subject to the following:
A. DEVELOPER shall include in Leases for the Affordable Units,
provisions which authorize DEVELOPER to immediately terminate the tenancy of any
Household of which one or more members misrepresent any fact matenal M the
Households qualification as a Household meeting Me income requirements for Low -Income
Families. Each such Lease shall also provide that the Household is subject to annual
Page 28 of 37
certification, and that if the Household's annual income increase above the applicable limits
for Low -Income Families such Household's rent may be subject to increase to the lesser of
(1) the amount payable by tenant under state or local law, or (2) thirty percent (30%) of Me
Household's actual adjusted monthly income.
9.4 Fair Markefirri Plan. Before leasing Me Affordable Housing Unit and at least
stay (60) calendar days prior to the Project Completion date, the DEVELOPER shell submit
to Me CITY, for review and approval, a plan, for marketing and managing the Affordable
Housing Units) ("Fair Marketing Plan"). The final Fair Marketing Plan shall address in
detail how the DEVELOPER or its designated management entity plans to market the
availability of the Afrordable Units fa prospective Low -Income tenants and how the
DEVELOPER plans to certify the eligibility of potential tenants. The final Fair Marketing
Plan shall also address how the DEVELOPER and/or the management entity plan to
manage and maintain the Affordable Housing Unita in accordance the HOME Program at
Section 92.251 Property Standards, and shall include appropriate financial information and
documentation The final Fair Marketing Plan shall contain detailed descriptions of policies
and procedures with respect to tenant selections and evictions. Topics to be covered in
mese procedures shall include at a minimum the following'.
Interviewing procedures for prospective tenants;
Previous rental history of tenants with references;
Credh reports;
Criminal background checks;
Deposit amounts, purpose, use and refund policy;
EmploymentMcome verification;
Occupancy restrictions;
Income limits;
Equal Housing Opportunity Statement,
Restrictions on use of the premises;
Tenant/Landlord dispute resolution proceduraa.
The Final Marketing Plan shall contain copies of all standardized forms
assoclated with the above listed topics. The final Fair Marketing Plan shall include a farm
lease agreement Nat the DEVELOPER proposes to anter into with Project tenants. The
DEVELOPER shall abide by the terms of this final Fair Marketing Plan, approved by the
CITY, in marketing, managing and maintaining the Affordable Units.
At least ninety (90) calendars days prior to the Project Completion Date, the
DEVELOPER shall also submit any proposed management contract to the CITY for prior
review. The CITY shall have the right to review any proposed amendments, other Man
renewals to the management contract, and any new management contracts during Me term
of this Agreement. Such management mntract(s) shall contain a provision expressing this
right.
9.5 Property Manaaement. The DEVELOPER shall comply with the following:
A. ManagemenResponsibilities. The DEVELOPER Is Many and/or
through its designated management entity, is specifically responsible for all management
Page 29 of 37
functions with respect to the Project including, without limitation, with respect to Me
Affordable Units, the selection of Low -Income tenants, certification and re -certification of
Household size and income, evictions, collection of rents and deposits, construction
management, affirmative marketing, maintenance, landscaping, routine and extraordinary
repairs, replacement of capital items and severity. The CITY shall have no responsibility for
such management of Me Project.
9.6 Maintenance and 5 rM. The DEVELOPER shall at its own expense
maintain the Project in good condition, in good repair and in decent, safe, sanitary,
habitable and tenantable living conditions for the benefd of the Unit ooaupanM. The
DEVELOPER shall not commit or Permit any waste an or to the Project, and shall prevent
and/or rectify any physical deterioration of the Project. The DEVELOPER shall maintain the
housing in conformance with all applicable federal, state and local laws, ordinances, codes
and regulations, the final Fair Marketing Plan, and this Agreement
9.7 Nordiscrim nation. All of the twenty (20) Units shall be available for initial
raMal to members of the general public who are income eligible. The DEVELOPER shall
not illegally discriminate or segregate in the development. construction, use, enjoyment,
occupancy or conveyance of any part of the Project or Property on the basis of race, color,
ancestry, national origin, religion, sex, age, marital statue, (amity abacus, source of
income/rental assistance subsidy, physical or mental disability, Acquired Immune
Deficiency Syndrome (AIDS) or AID&related conditions (ARC), sexual orientation, or any
Other arbitrary basis. The DEVELOPER shall otherwise comply with all applicable local,
state and federal laws concerning nondiscrimination in housing. Neither the DEVELOPER
nor any person claiming under of through the DEVELOPER, shall establish or permit any
such practice or practices of illegal discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants or vendees of any Unit or in
connection with employment of persons for the construction of any Unit. All deeds or
contracts made or entered into by the DEVELOPER as to the Unita or Me housing project
or portion thereof, shall contain covenants concerning nondiscrimination consistent with this
section. The DEVELOPER shall include a statement in all advertisements, notices and
signs for availability of Units to the effect that the DEVELOPER is an Equal Housing
Opportunity Provider.
A. Nothing in this section is intended to require Me DEVELOPER to
change Me character, design, use or operation of the Project; or to require Me
DEVELOPER to obtain licenses or permas other than Mose required for Me Project.
9.8 Rent Schedule and Utility Allowances. DEVELOPER covenants and agrees
not to charge rent to tenants for the Affordable Housing Units in an amount which exceeds
those rents prescribed to Affordable Housing Units as they associate with particular income
and rent limitations levels as established by HUD, consistent with the HOME Program
Regulations applicable to the Affordable Housing Units in the Fresno, California area, as
established by HUD, and further covenants not to impose a monthly allowance for utility
services to tenants of such Units excess of an amount approved by HUD in accordance
with 26 CFR 92.252. DEVELOPER agrees to furnish to the CITY a certificate setting forth
the maximum monthly rentals for Me Affordable Units and Me monthly allowances for
utilities and services to be charged during any annual pend until the expiration of the
Page 30 of 37
Affordability Period. The DEVELOPER shall re-examine me income of each tenant
Household living in the Affordable Units on an annual basis.
ARTICLE 10. INDEMNIFICATION
Without waiver of limitation, the parties agree as follows regarding the
DEVELOPER's Insurance and Indemnity Obligations:
10.1 Indermiligation. The DEVELOPER shall indemnify, hold harmless and defend
Me CITY and each of its officers, officials, employees, agents and volunteers from any and
all loss, fiabilRy, fines, penalties, forfeitures. costs anddamages (whether in contract, tart or
strict liability, including but not lim0ed to personal injury, death at any time and property
damage) incurred by the CITY, me DEVELOPER or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. The DEVELOPER's obligations under the preceding sentence shall apply
regardless of whether CITY or any of its officers, officials, employees, agents or authorized
volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures,
costs or damages cauaetl solely by Me gross negligence, or caused by the willful
misconduct, of CITY or any of lts officers, officials, employees, agents or authorized
volunteers.
A. If the DEVELOPER should contract all or any portion of Me work to be
performed under this Agreement, the DEVELOPER shall require each contractor and
subcontractor to indemnify. hold harmless and defend the CITY and each of its officers,
officials, employees, agents and volunteers in accordance with the terms of the preceding
paragraph.
B. This section shall survive termination or expiration of this Agreement.
10.2 Insurance If Me Loan is not re -paid in full prior to the Commencement of
Construction, Men the DEVELOPER warrants, covenants, and agrees Mat it shall,
throughout Me life of this Agreement, pay for and maintain in full force and effect all
policy(ies) of insurance required in Exhibit "G" hereunder and incorporated herein, with (an)
insurance oompany(ies) either (1) adm0ted by the California Insurance commissioner to do
business in Me State of California and rated not less then "A -VII" in Best's Insurance Rating
Guide, or (2) authorised by the CITY's Risk Manager.
10.3 Bonds. If Me Loan is not re -paid In full prior to the Commencement of
Construction, then Me DEVELOPER warrants, covenants, and agrees that it shall pay for
and maintain good and sufficient surety bonds required in Exhibit 'H' hereunder and
incorporated herein, from a corporate surety, admitted by the California Insurance
commissioner to do business in Me State of California and Treasury -listed, in a forth
satisfactory to the CITY and naming the CITY as Co -Obligee.
Page 31 of 37
ARTICLE 11. DEFAULT AND REMEDIES
11.1 Events of Def 8. Each of the following shall constitute an "Event of Default"
for purposes of this Agreement after the cure period in Section 10.02 has expired without a
cure:
A. The DEVELOPER's use of HOME Funds for costs other then Eligible
Costs or for uses not peimftlad by the terms of this Agreement;
B. The DEVELOPER's failure to obtain and maintain the insurance
coverage required under this Agreement)
C. Except as otherwise Provided in this Agreement, the failure of the
DEVELOPER to punctually and properly perform any other covenant or agreement
contained in this Agreement including without IimBation the following: (1) the
DEVELOPER's substantial deviation in the Project work specified in the Project Description
as identified in this Agreement, without the CITY's prior written consent; (2) the
DEVELOPER's use of defective or unauthorized materials or defective workmanship in
pursuit of the Project; (3) the DEVELOPER's failure to commence or complete the Project,
as specified in this Agreement, unless delay is permitted under Section 8.17 of this
Agreement; (4) the cessation of the Project for a period of more than fifteen (15)
consecufive days (other than as provided at Section 8.17 of this Agreement) prior to
submitting to the CITY, pursuant to Section 8.18 certification that the Project is complete;
(5) any material adverse change in the condition of the DEVELOPER or the Project that
gives the CITY reasonable cause to believe that the Project cannot be rnmpleted by the
scheduled completion date according to the terns of this Agreement: (8) the
DEVELOPER's failure to remedy any deficiencies in record keeping or failure to provide
records to the CITY upon the CITY's request; (7) the DEVELOPER's failure to substantially
comply with any federal, state or local laws or applicable CITY restrictions governing the
Project, including but not limited to provisions of this Agreement Pertainingto
employment opportunity, nondiscrimination and Wand -based paint; equal
D. Any representation, warranty or certificate given or furnished by or on
behaff of the DEVELOPER shall prove to be materially false as of the date of which the
representation, warranty, or certification was given, or that the DEVELOPER concealed or
failed to disclose a material fact to the CITY, provided, however, that if any representation,
warranty, or certification that proves to be matedaily false is due merely to the
DEVELOPERS inadvertence, the DEVELOPER shall have a thirty (30) day opportunity
after written notice thereof to cause such representation, warranty. or certification to be true
and complete in every respect;
E. The DEVELOPER shall fila, or have fled against it, a petition of
bankruptcy, insolvency, or similar law, state or federal, or shall his any petition or answer
seeking, consenting to, or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been
vacated within ninety (90) days, or shall be adjudicated hankrupt or insolvent, under any
present or future slants, Jew, regulation, under state or federal law, and such judgment or
deems is not vacated or set aside within ninety (90) days;
Page 32 of 37
;)i
F. The DEVELOPER's failure, inability or admission in writing of Is
inability to pay its debts as they became due or the DEVELOPER assignment for the benefit
of creditors;
G. A receiver, trustee, or liquidator shall be appointed for the
DEVELOPER or any substantial part of the DEVELOPER's assets or properties, and not be
removed within ten (10) days;
H_ The DEVELOPER's breach of any other material condition, covenant,
warranty, promise or representation contained in this Agreement not otherwise identified
within this Section;
1. Any substantial or continuous breach by the DEVELOPER of any
material obligation owed by the DEVELOPER imposed by any other agreement with
respects to the financing, of the Project, whether or not the CITY is a party to such
agreement after expiration of all notice and cure periods contained within such document.
11.2 Naboo of Default and Opportunity t Cure. The CITY shall give written notice
to the DEVELOPER of any Event of Default by specifying (1) the nature of the event or
deficiency giving rise to the default, (2) the action required to cure the deficiency, R any
action to cure is passible, and (3) a date, which shall not be less than the lesser of any time
Period providetl in this Agreement, any time period provided for in the notice, or thirty, (30)
calendar days from the date of the notice, by which such deficiency must be cured,
provided that If the speorrfed deficiency or default cannot reasonably be cured within Me
specked time, with the CITY's written consent, Me DEVELOPER shall have an additional
masenable period to cum so long as it Commences cure within Me specified time and
thereafter diligently pursues the cure in good faith, The CITY acknowledges and agrees
that the DEVELOPER shall have the right to cure any default hereunder and that notice and
cure rights hereunder shall extend to any and all partners of Me DEVELOPER Mat are
previously identrfled in writing delivered to Me CITY in the manner provided in this
Agreement.
11.3 Rimed' Upon an Event of Default. Upon the happening of an Event of
Default by Me DEVELOPER and a failure to cure said Event of Default within Me lime
specified, the CITY's obligation to transfer the Property shall laminate. The CITY may also
at its option and without notice institute any action, suit, or other proceeding In law, in equity
or otherwise, which d shall deem necessary or proper for the protection of its Interests and
may without limitation proceed with any or all of the following remedies in any Omer or
combination that the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice to the
DEVELOPER;
B. Bring an action in equitable relief (1) seeking specific performance by
the DEVELOPER of the terms and conditions of this Agreement, and/or (2) enjoining,
abating or preventing any violation of said terms and conditions, and/or (3) seeking
declaratory relief; and
Page 33 of 37
Agreement. C. Pursue any other remedy allowed by law or in equity or under this
ARTICLE 12. GENERAL PROVISIONS
Without waiver of limitation, the pates agree that the following general provisions
shall apply in the Performance hereof.
12.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made in writing and signed by the pates hereto.
12.2 Attomev's Fees. If either party is required to commence any Proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, Me
prevailing party will be entitled to recover tram the other Parry is reasonable attorneys fees
and legal expenses.
12.3 Binding All SucceSSOM and Assigns, Unless otherwise expressly provided
in this Agreement, all the terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and their respective nominees, heirs, successors,
assigns, and legal representatives.
12.4 Countemerts. This Agreement may be executed in counterparts, each of
which when executed and delivered will be deemed an original, antl all of which together
will constitute one instrument. The execution of this Agreement by any parry hereto will not
become effective until counterparts hereof have been executed by all parties hereto.
12.5 Disclaimer of Rel tih' . ils
Nothing contained in this Agreement nor any act
of the CITY or of Me DEVELOPER, or of any other Person, shall in and by eii be deemed
or construed by any person to create any relationship of third parry beneficiary, or of
principal and agent, of limited of general partnership, or of joint "Mum.
12.6 O'screConary Ggyemmental Act ons. Certain planning, land use, zoning ant
other permits antl public actions required in connection with the Project including, without
limitation, Me approval of this Agreement, the environmental review and analysis under
NEPA, CEOA or any other statute, and other transactions contemplated by this Agreement
are discretionary government actions. Nothing in this Agreement obligates the CITY or any
other governmental entity to grant final approval of any matter deserted herein. Such
actions are legislative, quasijudicial, or otherwise discretionary in nature. The CITY cannot
take action with respect to such matters before completing the environmental assessment
of Me Project under NEPA, CEOA and any other applicable statutes. The CITY cannot and
does not commit in advance that it will give final approval to any matter. The CITY shall not
be liable, in contract law or equity, to the DEVELOPER or any of its executors,
administrators, transferees, successors -in -interest or assigns for any failure of any
governmental entity to gram approval an any matter subject to discretionary approval.
127 Effective Date. This Agreement shall be effective upon me data first above
written, upon the partiescomplete execution following City Council approval.
Page 34 of 37
31
12.8 Entire Aarearmart This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
12.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
12.10 Expenses Incur d I Inan E t ^f D fe k. The DEVELOPER shall reimburse
the CITY for all reasonable expenses and costs of collection and enforcement, including
reasonable attorney's teas, incurred by the CITY as a result of one or more Events of
Default by the DEVELOPER under this Agreement.
12.11 Governing Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this Agreement,
including execution, interpretation, performance, and enforcement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, California.
12.12 Ne�ng. The headings of the ansclea, sections, and paragraphs used in this
Agreement are for convenience only and shall not be mad or wnstrued to aged the
meaning or construction of any provision.
12.13 Interpretation. This Agreement in its final form is the result of the combined
efforts of the parties. Any ambiguity will not W construed in favor or against any party, but
rather by construing the terms in accordance with their generally accepted meaning.
12.14 No Ate_. The DEVELOPER shall not sell, lease,
transfer, assign or otherwise dispose of all or any material part of any interest it might hold
in the Project without the prior written consent of the CITY, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior written notice
to the approved by the CITY, the DEVELOPER shall be permitted to assign its ngh% and
obligations under this Agreement with respect to the Project.
12.15 No Third-Party gam, No contractor, subcontractor, mechanic,
materialmon, laborer, vendor or other person hired or retained by the DEVELOPER shall
be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, but
each such person shall be deemed to have agreed (a) that they shall look to the
DEVELOPER as their sole source of recovery if not paid, and (b) except as otherwise
agreed to by the CITY and any such person in writing, they may not enter any claim or bring
any such action against the CITY under any circumstances. Except as provided by law, or
as otherwise agreed to in writing between the CITY am such person, sea such person
shall be deemed to have waived in writing all right to seek redress from the CITY under any
circumstances whatsoever.
12.16 No Waiver. Neither failure nor delay on the part of Ne CITY in exercising any
right under this Agreement shall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of
any other right. No waiver of any provision of this Agreement or consent to any departure
by the DEVELOPER therefrom shall be effective unless the same shall be in writing, signed
Page 35 of 37
on behalf of the CITY by a duly authorized officer thereof, and the same shall be effective
only in the spec Instance for which it is given. No notice to or demand on the
DEVELOPER in any case shall entitle Ne DEVELOPER to any other or further notices or
demands in similar or other cimumstances, or constitute a waiver of any of the CIT1"s right
to take other or further action in any circumstances without notice or demand.
12.17 Nomeliance. The DEVELOPER hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares Nat in no
manner has it relied on the CITY, it agents, employees of attorneys in entering into this
Agreement,
12.18 NOH nce. Any notice to be given to either party under the tens of this
Agreement shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties.
If to the CITY: City of Fresno
Downtown and Community Revitalization Department
Housing and Community Development Division
2600 Fresno Street, Room 3071
Fresno. CA 937213805
(559)621-8506
If to DEVELOPER: FFDA Properties, LLC
Attn: Amber Martinez
1396 West Hemdon Avenue, Suite 101
Fresno, CA 93711
(559) 436 -GDW
12.19 Precedeno of Documents, In Ne event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
12.20 Recoldifill Of Documents. The DEVELOPER agrees to cooperate with the
CITY and execute any documents required, promptly upon the CITY'S request, the Deed(s)
of Trust, and any other documentwinstmmenta that the CITY requires to be recorded, in the
Official Records of Fresno County, California, consistent with this Agreement.
12.21 Remedies Cumulative. All Powers and remedies given by this Agreement
shall be cumulative and in addition to Mose otherwise provided by law.
12.22 Severabili N. The invalidity, illegality, or un -enforceability of any one or more
of the provisions of this Agreement shall not affect the validity, legality, or enforceability of
the remaining provisions hereof or thereof.
/
Page 36 of 37
IN WITNESS WHEREOF, the Parties have executed this Agreement in Fresno.
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By: 4 , /�
Bruce Rud , Assistant City Manager
(Anech notary ceNfirala of ack�edgm t)
Date: l"//v
ATTEST: APPROVED AS TO FORM:
REBECCA E. KLISCH JAMES SANCHEZ
City Clerk City Attorney
Ili_ •_.i_"_By
—
Attorney 1Deputy City
Date: LJCV 3 zoo
DEVELOPER
FFDA Properties. LLC
a Califomia limited liability company
B':
Darius of
ack ext
plfirah oteck
(AHach notary cenbMeEgmenq
Date: MWtrL Z
Attachments
EXHIBITA: PROPERTY DESCRIPTION
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C: DECLARATION OF RESTRICTIONS
EXHIBIT DBUDGET
EXHIBIT E: CERTIFICATE OF COMPLETION
EXHIBIT F. PROMISSORY NOTE
EXHIBIT G: INSURANCE PROVISIONS
EXHIBIT H: BOND PROVISIONS
Page 37 of 37
ACKNOWLEDGMENT
Sete of California
County of
On it s fc before me, ..kiM IV, I, L..
posed name and We of officer
personally appeared V - , Ad -
who proved to me on the bass of eetlsfactory evidence to be the patients wtwas nsme(s) rosR
subscribed to the within instrument and acknowledged to me that helspeMey executed the same in
hisRRrNMir authorized rapaclty(a ft and that by his/t1CrRbir signature(s) an me inshument Ne
persuni or the entity upon behalf W which Ne pats aWricted, executed the instrumanL
I candy under PENALTY OF PERJURY under me laws of the State of California that the foregoing
pa2graph is Wa end correct.
1i W1e
WITNESS my hand and official seal. Cwnmuuon a 1744028
eTWAmic calla"lo t
]berm CouMv
M/Cae4e{�Iky]I,IDII
Signature 2L zz"e. (Seal)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State m California —
County of Fresno
On NAXift c„ 4)1 before me, Grist in G. Lopez, Notary Public
personally appeared_ Darius Assemi�.a,.,
Who praaed W me an the bel of internality sandenre to
be me priscr a) whose oamenD ware subacnded to the
within Instrument and acknowledged to me that
hafsherthey merchant the same In hlirbed/lmir autnonxed
® cal6io,#lA[Z aationall Theadd that by M1Ortheunishi siupon lafon IN
of
cwmm�ronl fe➢IP which the Pepersacte d od entity upon ent, al
lbVYcars; s"Onmama wbiCll the persanf6 dtl¢dexeculetl the laslmmem.
w arty
Cavan MHe 4 t 111 1 codify ate Of PENALTY OF PERJURY g pat the ph Is
of e a Siete re California that the Nregoing paragraph is
Yue entl coned
WITNESS my hand and Oil/'Se//al,�..,�
w. is 1. Signature RY,r"�''--
OPTIONAL
Morgnra mu on o bnl moors Torp nemreiak mprn arwmeMj uopymat
ebe menf
Description of Attached document
min or Type of Docursor
Dmumem Cale. _ Numeerm Pages'.
SignarPf Orm Than Namm Above -
CapecitlOkst) Claimed by Signeds)
SiOners Name _ StalS Name:
ndimaual L mtllmaual -
1 corporals Omoer—Tial oammem Owes—Tamil
Po Junted J General 7 P to -C. li U Cetera
Attorney Fact ql sym%ot
F u-.enter T in..¢. .
L Gtol O rOafpr LG N nor Crusades,
Chiral an
Slitter Is Fapmeshmg swradls Representing. I
y° I
EXHIBIT A: PROPERTY DESCRIPTION
PARCEL 1: (APN: 459-141-35T)
That real property being a portion of Lots 84 and 85 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particulady described as follows;
BEGINNING at the southwest corner of said Lot 85; thence N 0°13'58" E, along the
west line of said Lots 85 and 84, a distance of 36.88 feet to a point that lies'S 0013'58"
W. a distance of 275 fit feet from the northwest comer of Lot 30 in Block 2 of Muller and
Northcraft Addition, accOrding to the map thereof recorded in Book 1 of Plats at Page
63, Fresno County Recerds; thence N 89"5648" E, a distance of 150.28 feel to a point
on the east line of said Lot 84, said point Iles S 0018112" W, a distance of 274.57 feet
from the northeast comer of said Lot 30; thence S V1812" W, along the east line of
said Lots 84 and 85, a distance of 36.76 feet to the southeast corner of said Lot 85;
thence S 89°54'05" W. along the south line of said Lot 85, a distance of 150.24 feet to
the POINT OF BEGINNING.
SUBJECT TO an easement for public street purposes over the south 6.25 feet thereof
as granted to the City of Fresno by that Deed of Easement recorded September 24,
1981 in Book 7791 at Page 527, Official Records of Fresno County.
Contains a gross area of 5,532 square feel, more or less, and a net area of 4,593
square feet, more or lass.
PARCEL 2: (APN: 459-14146T)
That real property being a portion of Lots B3 and B4 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Park; thence N 0°13'58"
E, along the west line of Lots 85 and 84 of saitl North Park, a distance of 36.88 feet to a
point that Iles S 0°13'58" W, a distance of 275.62 feet from the northwest comer of Lot
30 in Block 2 of Muller and Northcraft Addition. according to the map thereof recorded in
Book 1 of Plats at Page 63, Fresno County Records, saitl point being the TRUE POINT
OF BEGINNING of this description; thence confinuing N 0°13'58" E, along the west line
of said Lots 84 and 83, a distance of 30.62 feet; thence N 88°59'27' E, a distance of
150.32 feet to a paint on the east line of said Lot 83, said point lies S 0°18'12" W, a
distance of 244,06 feet from the northeast comer of said Lot 30 and N 0°18'12" E, a
distance of 6727 feet from the southeast comer of saitl Lot 85, thence S 0°18'12" W,
along the east line of said Lots 83 and 84, a distance of 30.51 feet; thence S 89°5648"
W, a distance of 150.28 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,594 square feet, more or less.
Page 1 of 7
PARCEL 3: (APN: 458-141-377(
That real property being a portion of Lots 82 and 83 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows;
COMMENCING at the southwest corner of Lot 85 of said North Park; thence N 0013'58"
E, along the west line of Lots 85, 54, and 83 of said North Park, a distance of 67.50 feet
to a point that IiesS 0013'58" W. a distance of 245.00 feet from the northwest comer of
Lot 30 in Block 2 of Muller and Nomicraft Adtlition, according to the map thereof
recorded in Book 1 of Plats at Page 63, Fresno County Records, said point being the
TRUE POINT OF BEGINNING of this description; thence continuing N 0°13'58" E,
along the west line of said Lots 83 and 82, a distance of 30.83 feet; thence S 89°5751"
E, a distance of 150.38 feet to a point on the east line of said Lot 82, said point lies S
0°18'12" W, a distance of 213.56 feet from the northeast comer of said Lot 30 and N
0018'12" E, a distance of 97.77 feet from the southeast comer of said Lot 85; thence S
0°18'12" W, along the east line of said Lots 82 and 83, a distance of 30.50 feet; thence
S 89059'27' W, a distance of 150.32 feat to the TRUE POINT OF BEGINNING.
Contains an area of 4,595 square feet, more or less.
PARCEL 4: (APN: 459-141-387(
That real property being a portion of Lots 81 and 82 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Park; thence N 0'13'58"
E, along the west line of Lots 85, 84, 83, and 82 of said North Park, a distance of 98.13
feet to a point that IiesS 013'58" W, a distance of 214.37 feet from the northwest corner
of Lot 30 in Block 2 of Muller and Northcraft Addition, according to the map thereof
recorded in Book 1 of Plats at Page 63, Fresno County Records, said point being the
TRUE POINT OF BEGINNING of this description; thence continuing N 0°13'58" E,
along the west line of said Lots 82 and 81, a distance of 30.62 feet thence S 09"5510"
E, a distance of 150.40 feet to a point on the east line of said Lot 81, said point lies S
0"18'12" W, a distance of 183.05 feet from the northeast corner of said Lot 30 and N
0618'12" E, a distance of 128.28 feet from the southeast comer of said Lot 85; thence S
0"18'12" W, along the east line of said Lots 81 and 82, a distance of 30.51 feet; thence
N 89°57'51" W, a distance of 150.36 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,596 square feet, more or less
Page 2 of 7
L(L
PARCEL 5: (APN: 469-141397(
That real property being a portion of Lot 81 of North Park, according to the map thereof
recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records, together
with a portion of Lot 24 in Black 2 of Muller and Northcreft Addition, according to the
map thereof recorded in Book 1 of Plats at Page 63, Fresno County Records, said real
property being more parliculady described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Pada; thence N 0°13'58"
E, along Me west line of Lots 85, 94, 83, 82 and 81 of said North Park, a distance of
128.75 feet to a point that lies S 0°13'58" W, a distance of 183.75 feet from the
northwest comer of Lot 30 in Block 2 of said Muller and Northcraft Addition, said point
being the TRUE POINT OF BEGINNING of this description; thence continuing N
0013'58" E, along the west line of said Lots 81 and 24, a distanceof 30.63 feet thence
S 8905229" E, a distance of 150.43 feat to a point on the east line of said Lot 24, said
Poll lies S 0°18'12" W, a distance of 152.54 flet from Me northeast comer of sold Lot
30 and N 0°18'12" E, a distance of 158.79 feet from the southeast comer of said Lot 85;
thence S 0°18'12" W, along the east line of said Lots 24 and 81, a distance of 30.51
feet thence N 89°55'10" W, a distance of 150.40 feet to the TRUE POINT OF
BEGINNING.
Contains an area of 4,596 square feel, more or less.
PARCEL 6: (APN: 45IIA41-007(
That real Property being a portion of Lots 24, 25 and 26 to Block 2 of Muller and
Northcraft Addition. according to the map thereof recorded in Book i of Plats at Page
63, Fresno County Records, being more particulady described as follows;
COMMENCING at the southwest comer of Lot 85 of North Padc, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
thence N 0°13'58" E, along the west line of Lots 85 through 81, inclusive, of said North
Park and along the west line of saitl Lot 24, a distance of 159.38 feet to a point Nat lies
S 0013'58" W, a distance of 153.12 feet from the northwest comer of Lot 30 in Block 2 of
said Muller and Nodhcraft Addition, said point being the TRUE POINT OF BEGINNING
of this description; thence continuing N P13'58" E, along the west line of said Lots 24
and 25, a distance of 25.75 feet to an angle point in the westerly boundary of that parcel
quitclaimed by the City of Fresno by a Quitclaim Dead recorded February 6, 1998 as
Document No. 98017707, Official Records of Fresno County; thence leaving said west
line of said Lot 25, N 5°46'29" E, along saitl westerly boundary of said quitclaimed
parcel, a distance of 4.89 feet; thence S 8904949" E, a distance of 150.00 feet to a
point on the east line of saitl Lot 26, said point lies S 0°18'12" W, a distance of 122.03
feat from the northeast comer of said Lot 30 and N 0°18'12" E. a distance of 189.30 feet
from the southeast comer of said Lot 85; thence S 018'12" W, along the east line of
said Lots 26, 25 and 24, a distance of 30.51 feet thence N 89052'29" W, a distance of
150.43 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,598 square feet, more or less
Page 3 of 7
(13
PARCEL 7: (APN: 4691
That real property being a portion of Lots 26 and 27 in Block 2 of Muller and Northcraft
Addition, according to the map thereof recorded in Book 1 of Plate at Page 63, Fresno
County Records, being more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 0.13'58" E, along the west line of Lots 85 through 81, inclusive, of said Norlh
Park and along the wast line of Lots 24, 25 and 26 of said Black 2 of Muller and
Northcraft Addition, a distance of 190.00 feet to a point that lies S 0°13'58" W, e
distance of 122.50 feet from the northwest comer of Lot 30 in Block 2 of said Muller and
Northcraft Addition; thence S 89.4949" E. a distance of 0.47 feet to a point on the
westerly boundary of Net parcel quitclaimed by the City of Fresno by a Quitclaim Deed
recorded February 6, 1998 as Document No. 98017707. Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING M this description; thence N
5°46'29" E, along said westerly boundary of said quitclaimed parcel, a distance of 30.7
feet, thence S 89'4TOB" E, a distance of 147.06 feet to a point on the east line of sad
Lot 27, said point lies S 0.18'12" W. a distance of 91.53 feat from the northeast comer
of said Lot 30 and N 0°18'12' E, a distance of 219.80 feet from the southeast comer of
said Lot 85; thence S D°18'12" W, along the east line of said Lots 27 and 26, a distance
of 30.51 feet; thence N 89"4949" W, a distance of 150.00 feet to the TRUE POINT OF
BEGINNING.
Contains an area of 4,540 square feet. mare or less.
PARCELS: (APN: 469-141427(
That real property being a portion of Lots 27 and 28 in Block 2 of Muller and Northeraft
Addition, according 10 the map thereof recorded in Book i of Plats at Page 63, Fresno
County Records, being more particularly described! as follows,
COMMENCING at the southwest comer of Lot 85 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N WITH" E, along the west line of Lots 85 through 81, inclushm, of sad North
Park and along the west line of Lots 24, 25, 26 antl 27 of said Block 2 of Muller and
Nurlhaaft Addition, a distance of 220.63 feet to a point that lies S 0013'58" W. a
distance of 91.87 feet from the northwest comer of Lot 30 in Block 2 of sad Muller ant
Northcroft Addition; thence S 89"4T08" E, a distance of 3.44 feel to a point on the
westerly boundary of that parcel quitclaimed by the City of Fresno by a Quitclaim Deed
recorded February 6, 1998 as Document No. 9B017707, Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING of this description, thence N
5.4629" E, along said westerly boundary of said quitclaimed parcel, a distance of 30.77
feet; thence S 89044'27" E, a distance of 144.13 feet to a point on the east line of saitl
Lot 28, said point lies S 0°1 B'12" W, a distance of 61 02 feet from the northeast comer
of said Lot 30 and N 0"18'12" E, a distance 0f 250.31 het from the southeast corner of
said Lot 85; thence S 0.18'12" W, along the east line of said Lots 2B and 27, a distance
Page 4 of 7
(fit
of 30.50 feet; thence N 89°47'08" W. a distance of 147.06 feet to Me TRUE POINT OF
BEGINNING.
Contains an area of 4,450 square feet, more or less.
PARCEL 9: (APN: 459-141437)
That real property being a portion of Lots 28 and 29 in Beck 2 of Muller and Northcraft
Addition, according to the map thereof recorded In Book 1 of Plats at Page 63, Fresno
County Records, being more particularly described as follows;
COMMENCING at the southwest corner of Lot 85 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 0°13'58" E, along Me west line of Lots 85 through 81, inclusive, of said North
Park and along Me west line of Los 24 through 28, inclusive, of said Block 2 of Muller
and Northcraft Addftion, a distance of 251.25 feet tc a point that lies S 0013'58" W, a
distance of 61.25 feet from the northwest comer of Lot 30 in Block 2 of said Muller and
Northcraft Addition; mance S 89°44'27' E, a distance of 5.42 feat to a point on Me
westerly boundary of that parcel quitdaimed by Me City of Fresno by a Quitclaim Dead
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County, said paint being the TRUE POINT OF BEGINNING of this description; thence N
5"46'29" E, along said westerly boundary of said quitclaimed parcel, a distance of 30.76
feet; thence S 89°41'46" E, a distance of 141.20 feet to a point on Me east line of said
Lot 29, saitl Point lies S 0018'12" W, a distance of 30.51 set from the northeast corner
of said Lot 30 and N 0°18'12" E, a distance of 280.82 feet from the southeast corner of
said Lot 85; thence S 0.18'12" W, along the east line of said Los 29 and 28, a distance
of 30.51 feet; thence N 89"44'27" W, a distance of 144.13 feet to Me TRUE POINT OF
BEGINNING.
Contains an area of 4,360 square feet, more or less
PARCEL 10: (APN: 4.59-141+ T)
That real property being a potion of Los 29 and 30 in Block 2 of Muller and Northcraft
Addition, according to the map thereof recorded in Book i of Plate at Page 63, Fresno
County Records, being more particularly described as follows;
COMMENCING at Me southwest comer of Lot 85 of Norm Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 0°13'58" E, along the west line of Lots 85 through 81, inclusive, of said Norm
Park and along the west line of Lots 24 through 29, inclusive, of said Black 2 of Muller
and Northcraft Addition, a distance of 281.88 feet to a paint that lies S 0°13'58" W. a
distance of 30.62 feet from the northwest corner of Lot 30 in Block 2 of said Muller and
Northcraft Addition: thence S 89"41'46° E, a distance of 9.39 feet to a point on the
westerly boundary of that parcel quitclaimed by the City of Fresno by a Quitclaim Dead!
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County, said point being me TRUE POINT OF BEGINNING of this description; thence N
5"48'29" E, along said westerly boundary of saitl quitclaimed parcel, a distance of 30.78
Page 5 of 7
feet to Ne north line o1 said Lot 30; thence S 89'39'06" E, along said north line, a
distance of 138.26 feet to Ne northeast comer of said Lot 30; Mena S 0°18'12" W.
along the east line of said Lots 30 and 29, a distance of 30.51 feet to a point that Iles N
0618'12" E, a distance of 280.82 feet from the southeast comer of said Lot 85; thence N
89°41'46" W, a distance of 141.20 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,271 square feet, more or less.
Page 6 of 7
MERGED
[DRAFT PENDING SUPPLEMENTAL ESCROW INSTRUCTION]
340 North Van Ness, Fresno, CA 93701
APN: 459-141-33
Lots 81 through 851nclusive of North Park, according to the map thereof recorded in
Book 2 of Record of Surveys at Page 14, Fresno County Records.
TOGETHER WITH that porton of Lots 24 through 30 in Block 2 of Muller and NoMCraft
Addition, according to the map thereof recorded in Book i of Plats at Page 63, Fresno
County Records, more particularly descrbed as follows;
BEGINNING at the southwest corner of said Lot 24 said corner also being the
southwest comer of that parcel quitclaimed by the City of Fresno by a Quitclaim Deed
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County; thence N 0013.58" E, along the wast line of said Lots 24 and 25 and along the
westerly boundary of saitl quitclaimed parcel, a distance of 47.63 feet to an angle point
in the westerly boundary of said quitclalmed parcel; thence N 5.46-29" E, along said
westerly boundary of said quhclaimeci parcel, a distance of 127.95 fast to a point on the
north line of said Lot 30; said paint tying 12.36 feet easterly from the northwest comer of
said Lot 30, said point also being Me northeast comer of said quhclaimecl parcel; thence
easterly, along said north line of said Lot 30 to Ma northeast comer of said Lot 30;
thence southerly, along Me east line of said Lots 30 through 24 to the southeast comer
of said Lot 24; thence westerly, along the south line of said Lot 24 to the POINT OF
BEGINNING.
SUBJECT to an easement for public street purposes over the south 6.25 feet of said Lot
05 of North Park as granted to the City of Fresno by that Deed! of Easement recorded
September 24, 1981 in Book 7791 at Page 527, Official Records of Fresno County.
Page 7 of 7
trr
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
PROJECT DESCRIPTION:
The Project will include the construction of twenty (20) meed -income single-
family residential Housing Units of which three (3) will be Affordable Unite
occupied by Low-income families, seventeen (17) will be market rate rental units,
upon Property to be sold by the CITY to the DEVELOPER in fee at an agreed
upon fair market price of Two Hundred Forty -Five Thousand Dollars and 00/100
($245,000.00). The DEVELOPER shall work with the CITYs Historic
Preservation Project Manager and with the FUHonli-owell Committee in the
development of the Project. The DEVELOPER shall pay for on -see and off-stle
improvements, construction, marketing, and rental of the units. Consistent with
the Budget attached to the Agreement as Exhibit "D', the DEVELOPER will fund
all pre -construction and construction costs with non -HOME Program Funds. The
DEVELOPER will qualify all Affordable Housing households. Upon CITY
approval and consistent with the Agreement to which this Exhibit 'B" is an
attachment, the these (3) Affordable Units shall be rented to the Low -Income
Households,
A maximum HOME Program funding for the Project is Two Hundred Forty -Five
Thousand Dollars and 00/100 ($245,000.00), for HOME eligible costs including
acquisition of the HOME Assisted Property to be made through the sales escrow
to the DEVELOPER or as otherwise directed by the ClTf. The three (3)
Affordable Units will be three-bedroom two-bathrcom Units and have Universal
Design features consistent with Fresno Municipal Cade Section 11-109.
II. PROJECT SCHEDULE:
A. Commencementof Consrection: Not later than 12115110
B. Complefionof Construction: Notlaterthan Tlt/11
C. Completion of Leasing: Not later than 3/1/12
4
EXHIBIT "C"
DECLARATION OF RESTRICTIONS
ReWNed el the Rattan of 9W
Men Recorded RHum to:
City of Fresno
City Clerk's Office
2&10 Fesno Street, Room 2133
Fresno, CN 93721x903
ON of Fresno Declarations f Restricti
DECLARATION OF RESTRICTIONS
APN459-14135T/36T/3Tf/3BT/39T/40T/41T/42T/43T/44T
THIS DECLARATION OF RESTRICTIONS, ('Declaration"), is executed as of this
by FFDA Properties, LLC, a California limited liability company,
("Declarsmi in favor of the City of Fresno, acting by and through its Downtown and
Community Revitalization Department, Housing and Community Development Division
("CITy").
WHEREAS, Declarant is the owner of the real estate in the county of Fresno,
stale of California, consisting of APk 459-141$57/459-141-36T/459-141-37T/459-141-
38T/459-14139T/459-141<OL459-141A1T/4 9-141d2T/459-141< T/4 9141MT,
which is more particularly described in Exhibit "A", attached hereto and made a part
hereof (the -Property'); and
WHEREAS, Pursuant to a certain Disposition and Development Agreement and
HOME Investment Partnerships Agreement dated , 2010 incorporated herein.
("HOME Agreement) and instruments referenced therein, Declarant agrees to utilize
and CITU agrees to provide certain HOME Program Funds from the Unhetl States
Department of Housing and Urban Development ("HUD"), to Declarant for three (3)
Affordable Units upon the Property to be maintained as affordable to Low -Income
households, subject to Me terms and mothers set forth in the HOME Agreement; and
WHEREAS, the HOME Program regulations promulgated by HUD, including
without limitaton 24 CFR Section 92.252, and the HOME Agreement impose mmun
affordability requirements upon the three (3) affordable properties benefited thereby,
which affordability restrictions shall b i enforceable for the Affordability Period; and
WHEREAS, Mese restrictions are intended to bind all purchasers and their
successors.
NOW THEREFORE, Declarant declares that the Project upon the Property is held and
will be held transferred, encumbered, used, sold, conveyed and occupied subject to the
covenants, restrictions, and [inflations set forth in this Declaration, all of which are
declared and agreed to be in furtherance of the plan for the constructed, occupancy of
the three (3) Affordable Units upon the Property. All of the restrictions, covenants and
limitations will run with the land and will be binding on all parties having or acquiring any
right, title or interest in the Project upon Ne Property or any part thereof, will inure to the
benefit of the future owners of the Project or any pad thereof, the United States and the
City, and will be enforceable by any of Mem. Any purchaser under a contract of sale
covering any right, OBe or interest in any part of the Project upon the Property, by
accepting a deed or a contract of sale or agreement of purchase, accepts the document
subject to, and agrees to be bound by, any and all restrictions, covenant, and limitations
set forth in this Declaration for the period constituting the Affordability Period, which
Page 1 of 5
shall be the earlier of: (a) a Penpd commencing on the Project Completion Data set
forth in the Certificate of Completion and ending on the fffly-5gh (55"') anniversary
thereof; and (b) a period commencing on the data of Me Projects completion set forth in
the Certificate of Completion and ending on the date Mat Declarant is able to lawfully
sell or transfer individual Units within the Project to unrelated third-parties.
Notwithstanding the foregoing, If the Loan is not prepaid in full prior to Commencement
of Construction then the Affordability Period shall not be less than Me affordability
requirements of 24 CFR 92252.
1. Declarations. Declarant hereby declares that Me Property is and shall be
subject to the covenants and restrictions hereinafter sat forth, all of which are declared
to be in furtherance of Me Project and the HOME Agreement, and are established and
agreed upon for the Purpose of enhancing and protecting Me value of the Project and
the Property and in consideration for CITY entering into the HOME Agreement with
Declarant. All terms not otherwise defined herein shall have the meaning ascribed to
such term in the HOME Agreement.
2. Restrictions. The following covenants and restrictions on the use and
enjoyment of the Project upon the Property shall be in addition to any other covenants
and restrictions affecting the Property, and all such covenants and restrictions are for
Me benefit and protection of CITY, and shall run with Me Property and be binding on
any future owners of the Property and inure to Me benefit of and be enforceable by
CITY. These covenants and restrictions are as follows:
a. Declarant for itself and its successors) on title covenants and
agrees that It shall cause the three (3) Affordable Units on Me Property to be used as
Affordable Housing for Me duration of the Affordability Penod. Declarant fuller agrees
to file a recordable document setting forth the Project Completion Date and the
Affordability Period when determined by the CITY. Unless otherwise provided in the
HOME Agreement, Me ten Affordable Housing shall include, without limitation,
compliance with the following requirements:
(i) Nond'scnmination There shall be no discrimination against nor
segregation of any person or group of persons an account of race, color, creed, religion,
sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use,
occupancy, tenure, or enjoyment of any of Me Property, nor shall Declarant or any
Person claiming under Me Declarant, establish or paned any practice of discrimination
or segregation with reference to the selection, location, number, use or occupancy of
owners or vendees of the Property.
(it) Principal Residence. The three (3) Affordable Units shall be rented
to Low-Income Households, who shall occupy the Affordable Units as their principal
residence. The foregoing requirement the three (3) Property tenants occupy the Units
as their principal residence tices not apply to persons, other Man natural persons, (i)
who acquire the Property or portion thereof by foreclosure or deed in lieu of foreclosure;
or (ii) HUD qualified entities that acquire the Property or portion thereof, with Me
Page 2 of 5
rLl
consent of the CITY.
(iii) Income ReQuirannimbi. A total of three (3) Units constituting
Affordable rental housing upon the Property may be leased only to Households whose
annual household income a the time of initial occupancy is not greater than eighty
percent (80%) of the most recent annual median income calculated and published by
HUD for the Fresno Metropolitan Statistical Area applicable to such household's size,
and at an affordable price consistent with HOME Program regulations.
3. Enforcement of Reshisions. Without waiver or limitation, the CITY shall
be entitled to injunctive or other equitable relief against any violation or attempted
violation of any Covenant and Restriction, and shall. in addition, be entitled to damages
for any injuries or losses resulting from any violations thereof.
4. Aocephmce and Ratificaffon. All present and future owners of the
Property, and other persons claiming by, through, or under them shall be subject to am
shall comply with the Covenant and Restrictions. The acceptance of a deed of
conveyance to the Property shall constitute an agreement that the Covenant and
Restrictions, as may be amended or supplemented from time to time, are accepted and
ratified by such future owners, tenant or occupant, and such Covenant and Restriction
shall be a covenant running with the land and shall bind any person having at any time
any interest or estate in the Property, all as though such Covenant and Restriction was
recited and stipulated at length in each and every deed, conveyance, mortgage or lease
thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other
transfer in lieu of foreclosure, or assignment of an FMA -insured mortgage to HUD, the
Affordability Period shall be terminated if the foreclosure or other minister in lieu of
foreclosure or assignment recognizes any contractual or legal rights of public agencies,
nonprofit sponsors, or others to take actions that would avoid the lamination of fow-
income affordability. However, the requirements with respect to Affordable Housing
shall be revived according to their original terns, if during the original Affordability
Period, the owner of record before the foreclosure or other transfer, or any entity that
includes the former owner or those with whom the former owner has or had formerly,
family or business ties, obtains an ownership interest in the Project or the Property, and
the Affordability Period shall be revived according to Its original terms. The City shall be
possessed of a first fight of refusal fo purchase the Property before foreclosure to
Preserve affcrdabllity.
5. Benefit. This Declaration shall run with and bind the three (3) Affordable
Units on the Property for a term commencing on the data this Declaration is recorded in
the Office of the Recorder of the county Fresno, state of California, and expiring upon
the expiration of the Affordability Period. The failure or delay at any time of CITY or any
other person entitled to enforce this Declaration shall in no event be deemed a waiver of
the same, or of the right to enforce the same at any time or from time to time thereafter,
or an estoppel against the enforcement thereof.
Page 3 of 5
8. Costs and Attorney's Fees In any proceeding arising because of failure
of Declarant or any future owner of the Property to comply with the Covenant am
Restrictions required by this Declaration, as may be amended from time to time, CITY
shall be entitled to recover Its costs and reasonable altomey's fees Incurred in
connection with such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Property may
exempt Itself from liability for failure to comply with the Covenant and Restrictions
required in this Declaration.
8. SeverabliN The invalidity of the Covenant and Restrictions or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extant pennilmd by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gentler
herein shall, unless the context clearly requires the contrary, be deemed to refer to and
include all genders. Words in the singular shall include and refer to Me plural, and vice
versa, as appropriate.
10. Interpretation The captions aM titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Declaration or any provision hereof.
11. Amendment No amendment or modification of this Declaration shall be
permitted without Me prior written consent of CITY.
12. Recordation Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, Stets of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in that
certain HOME Agreement by and between Declarant and CITY, of even date.
14. Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be road or construed to affect the
meaning or constmccon of any provision.
Page 4 of 5
IN WITNESS WHEREOF, Declarant has executed this Declaration of
Restrictions on the date that written stove.
DECLARANT:
FFDA Property, LLC
A California Limited Liability Company
Ry:
Darius Assemi, Vic* -President
fAnacn nolsry cenuMts of acknoxladgmenb
Page 5 of 5
DECLARATION OF RESTRICTIONS
EXHIBIT A
PARCEL 1: (APN: 459-141-36T)
That real property being a portion of Lots 84 and 85 of North Park, according to the map
thereat recorded In Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows,
BEGINNING at the southwest comer of said Lot 85, thence N 0.13'58" E, along the
west line of said Loft 85 and 84, a distance of 36.88 feet to a point that lies S 0013'58"
W. a distance of 275.62 feet from the northwest comer of Lot 30 in Block 2 of Muller aid
Northcroft Addition, according to the map thereof recorded in Book 1 of Plats at Page
63, Fresno County Records; thence N 89"5646" E, a distance of 150.28 feat to a point
on the east line of said Lot 84, said point lies S 0°18'12" W, a distance of 274.57 feet
from the northeast comer of said Lot 30; thence S 0"18'12" W, along the east line of
said Lots 84 and 85, a distance of 36.76 feet to the southeast comer of said Lot 85;
thence S 89°54'05" W, along the south line of said Lot 85, a distance of 150.24 feet to
the POINT OF BEGINNING.
SUBJECT TO an easement for public street purposes over the south 6.25 feet thereof
as granted to the City of Fresno by Nat Deed of Easement receded September 24,
1981 in Book 7791 at Page 527, Official Records of Fresno County.
Contains a gross area of 5,532 square feet, more or less, and a net area of 4,593
square feet, more or less.
PARCEL 2: (APN: 459A4146T)
That real property being a portion of Lots 83 and 84 of North Park, according to the map
thereof recorded in Back 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Park; thence N 0.13'58"
E, along the wast line of Lots 85 and 84 of said North Park, a distance of 36.88 feet fo a
Point that lies S 0"13'58" W, a distance of 275.62 feat from the northwest comer of Lot
30 in Block 2 of Muller and Northcraft Addition, according to the map thereof recorded In
Back 1 of Plats at Page 63, Fresno County Records, said point being the TRUE POINT
OF BEGINNING of this description; thence continuing N 0.13'58" E, along the wast line
of said Lots 84 and 83, a distance of 30,62 feet; thence N 8905927" E, a distance of
150.32 feet to a point on the east line of said Lot 83, said Point lies 5 0°18'12" W. e
distance of 244.06 feet from the northeast comer of said Lot 30 and N 0"18'12" E, a
distance of 67.27 feet from the southeast comer of said Lot 85; thence S 0018'12" W.
along the east line of sad Lots 83 and 94, a distance of 30.51 feet; thence S 89°56'46"
W, a distance of 150.28 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,594 square feet more or less
Page 1 of 7
PARCEL 3: (APN: 459-141-37T)
That real property being a portion of Lots B2 and 83 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records,
more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Park; thence N 0013'58"
E, along the west line of Lots 65, 84, and 83 of said North Park, a distance of 67.50 feet
to a point that IiesS 0°13'58" W, a distance of 245.00 feet from the northwest comer of
Lot 30 in Block 2 of Muller and Northcraft Addition. according to the map thereof
recorded in Book 1 of Plats at Page 63. Fresno County Records, said point being the
TRUE POINT OF BEGINNING of this descripffon; thence continuing N 0°13'58" E,
along the west line of said Lots 83 and 82, a distance of 30.63 feet; thence S 89°5751"
E, a distance of 150.36 feel to a point on the east line of said Lot 82, said point lies S
0°18'12" W, a distance of 213.56 feet from the northeast comer of said Lot W and N
0018'12" E, a distance of 97.77 feet from the southeast comer of said Lot 85; thence S
0018'12" W, along the east line of saitl Lots 82 and 83, a distance of 30.50 feet; thence
S 89059'27" W, a distance of 150.32 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,595 square feet, more or less
PARCEL 4: (APW 469-141-397)
That real property being a portion of Lots 81 and 82 of North Park, according to the map
thereof recorded In Book 2 of Record of Surreys at Page 14, Fresno County Rewds,
more particularly described as folbws;
COMMENCING at the southwest comer of Lot B5 of said North Park; thence N 0613'58"
E, eking the west line of Lots 85, B4, 83, and 82 of saitl North Park, a distance of 98.13
feet to a point that IiesS 0013'58" W, a distance of 214.37 feet from the northwest comer
of Lot 30 in Block 2 of Muller and Norlhcraft Addition, according to the map Hereof
recorded in Book 1 of Plats at Page 63, Fresno County Records, said point being the
TRUE POINT OF BEGINNING of this description; thence continuing N 0°13'58" E,
along the west line of said Lots 82 and 81, a distance of 30.52 feet: thence S 89055'10"
E, a distance of 150.40 fast to a point on the east line of said Lot 81, said point lies S
0°1812" W. a distance of 183.05 feet from the northeast comer of said Lot 30 and N
0"18'12' E, a distance of 128.28 fast from she southeast corner of said Lot e5: thence S
0018'12" W, along the east line of said Lots 81 and 82, a distance of 30.51 feet; thence
N 89"57'51" W, a distance of 150.36 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,596 square fast, more or less
Page 2 of 7
ly I I
PARCELS: (APN: 459441-39T)
That real property being a portion of Lot 81 of North Park, according to the map thereof
recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records, together
with a portion of Lot 24 in Block 2 of Muller and Northcroft Addition, according to the
map thereof recorded in Book 1 of Plats at Page 63, Fresno County Records, said real
property being more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of said North Parc; thence N 001358"
E. along the west line of Lots 85, 84, 83, 82 and 81 of said North Park, a distance of
128.75 feet to a point that lies S 0.13'58" W. a distance of 183.75 feet from the
northwest comer of Lot 30 In Block 2 of said Muller and Northcroft Addition, said point
being the TRUE POINT OF BEGINNING of this description; thence continuing N
0°13'58" E. along the west line of sad Lots 81 and 24, a distance of 30.63 feet; thence
S 89'52'29" E, a distance of 150.43 feel to a point on the east line of said Lot 24, saitl
point lies S 0"18'12" W, a distance of 152.54 fast from the northeast comer of said Lot
30 and N 0"18'12" E, a distance of 158.79 feel from the southeast corner of said Lot 85;
thence S 0018'12" W. along the east line of said Lots 24 and 81, a distance of 30.51
feet, thence N 89.5610" W, a distance of 150.40 feet to the TRUE POINT OF
BEGINNING.
Contains an area of 4.598 square feet, more or less.
PARCEL 6: (APN: 459-14140T)
That real property being a portion of Lots 24, 25 and 26 in Block 2 of Muller aid
Normcralt Addition, according to the map thereof recorded in Book 1 of Plats at Page
63, Fresno County Records, being mora particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of North Park, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Reoorda;
thence N 001358" E, along the west line of Lots 85 through 81, Inclusive, of said North
Park and along the west line of said Lot 24, a distance of 159.38 fast to a point that lies
S 0"13'58" W. a distance of 153.12 feet from the northwest comer of Lot 301n Block 2 of
said Muller and Norticsaft Addition, mid point being the TRUE POINT OF BEGINNING
of this description; thence continuing N 0"1358" E, along the weal line of said Lots 24
and 25, a distance of 25.75 feet to an angle point in the westerly boundary of that parcel
qurmaimed by the City of Fresno by a Quitclaim Deed recorded February 6, 1998 as
Document No. 98017707, Official Records of Fresno County; thence leaving mrd west
line of said Lot 25, N 5"4629" E, along said westerly boundary of said quitclaimed
parcel, a distance of 4.89 feet thence S 89°4949" E, a distance of 150.00 feat to e
point on the east line of said Lot 26, said point lies S 0°18'12" W, a distance of 122.03
feet from the northeast comer of said Lot 30 and N 0°18'12" E. a distance of 189.30 feet
from the southeast comer of said Lot 85; Meme S 0°18'12" W, along the east line of
said Lots 26. 25 and 24, a distance of 30.51 feet; thence N 8905279" W, a distance of
150.43 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,598 square feet, more or less
Page 3 of 7
PARCEL 7: (APN: 459-141417)
That real property being a portion of Lots 26 and 27 in Block 2 of Muller and Northcrafl
Addr ion, according to the map thereof recorded in Book 1 of Plate at Page 63, Fresno
County Records, being more particularly descrbed as tallows;
COMMENCING at the southwest corner of Lot 85 of North Perk, according to the map
thereof recorded in Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 0°13'58" E, along the west line M Lots 05 through 81, inclusive, of said North
Park and along the west line of Lots 24, 25 and 26 of said Block 2 of Muller and
Northcraft Addition, a distance of 190.00 feet to a point that lies S 0013'58" W, a
distance of 122.50 feet from the northwest comer of Lot 30 in Block 2 of saitl Muller and
Northcmtt Addition; thence S 89°49'49' E, a distance of 0.47 feet to a point on the
westerly boundary of that parcel quitclaimed by the City of Fresno by a Quit im Deed
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING of this description; thence N
5°46'29" E. along said westerly boundary of said quitclaimed parcel, a distance of 30.77
feet', thence S 89047'08" E, a distance of 147.06 feet to a Point on the east line of said
Lot 27, said point lies S 0°18'12" W, a distance of 91.53 feet from the northeast comer
of said Lot 30 and N 0"18'12" E, a distance of 219.80 fast from the southeast corner of
said Lot B5; thence S 0"18'12" W, along the east line of said Lots 27 and 26, a distance
of 30.51 fast; thence N 89"49'49" W. a distance of 150.00 feet to the TRUE POINT OF
BEGINNING.
Contains an area of 4,540 square feet, more or less.
PARCEL B: (APN: 459-141427)
That real property being a portion of Lots 27 and 28 in Block 2 of Muller and Northcraff
Addition, according to the map thereof recorded in Book 1 of Plats at Page 63, Fresno
County Records, being more particularly described as follows;
COMMENCING at the southwest corner of Lot 85 of North Park, according to the map
thereof recorded In Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 0"13'58" E, along the west line of Lots 85 through 81, inclusive, W saitl North
Park and along the west line of Lots 24, 25, 26 and 27 of said Block 2 of Muller and
Northcraft Addition, a distance of 220.63 fast to a point that lies S 0°13'58" W. a
distance of 91.87 feet from the northwest comer of Lot 30 in Block 2 of saitl Muller and
Northcraft Addition: thence S 89"47'08" E, a distance of 3.44 fast to a point on the
westerly boundary of that parcel quitclaimed by the City of Fresno by a Quitclaim Dastl
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING of this description; thence N
5.46'29" E, along said westerly boundary of said quitclaimed parcel, a distance of 30.77
feet; thence S 89"44'27' E, a distance of 144.13 feet to a point on the east line of said
Lot 28, said point lies S 0.1 B'12" W, a distance of 61.02 feet from the northeast comer
of said Lot 30 and N 0°18'12" E. a distance of 250.31 fast from the southeast comer of
said Lot 85, thence S 001812" W, along the east line of said Lots 28 and 27, a distance
Page 4 of 7
of 30.50 feet; thence N 89°47'08" W, a distance of 147.06 feel to the TRUE POINT OF
BEGINNING.
Contains an area of 4,450 square feet, more or less.
PARCEL 9: (APN: 459-141437)
That teal property being a portion of Lots 28 and 29 in Block 2 of Muller and Northcroft
Addition, according to the map thereof recorded in Book 1 of Plata at Page 63, Fresno
County Records, being more particularly described as follows;
COMMENCING at the southwest comer of Lot 85 of North Park, accoming to the map
thereof recorded In Book 2 of Record of Surveys at Page 14, Fresno County Records;
thence N 013'58" E, along the west line of Lots 85 through 81, inclusive, of sad North
Park and along the west line of Lots 24 through 28, inclusive, of said Block 2 of Muller
and Nort craft Addition, a distance of 251.25 feel to a point that lies S 0.13'58" W. a
distance of 61.25 feet from the northwest comer of Lot 30 in Beck 2 of said Muller and
Northpaft Addition; thence S 89°44'27" E, a distance of 6.42 feet to a point on the
westerly boundary of that parcel qu@cleimed by the City of Fresno by a Quitclaim Dead
recorded February 6, 1988 as Document No. 98017/07, Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING of this description; thence N
5°4629" E. along said westerly boundary of said quitclaimed parcel, a distance of 30.76
feet; thence S 89041'46" E. a distance of 141.20 feet to a point on the east line of saitl
Lot 29, said paint lies S 0"18'12" W, a distance of 30.51 test from the northeast comer
of said Lot 30 and N 0°18'12" E, a distance of 280.82 feet from the southeast corner of
said Lot 85; thence S 0"18'12" W, along the east line of said Lots 29 and 28, a distance
of 30.51 feet; thence N "-° '27 W, a distance of 144.13 feet to the TRUE POINT OF
BEGINNING.
Contains an area of 4,360 square feet, mom or less.
PARCEL 19: (APN: 459-14144T)
That real property being a portion of Lots 29 and 30 in Block 2 of Muller and Northcraft
Addition, according to the map thereof recorded In Book 1 of Plats at Page 63, Fresno
County Records, being more particularly described as follows,
COMMENCING at the southwest comer of Lot 85 of Nodh Park, according to the map
thereof recorded In Book 2 of Record of Surveys at Page 14, Fresno County Records;
Nance N 0°13'58" E, along the west line of Lats 85 through 81, inclusive, of said North
Park and along the west line of Lots 24 through 29, inclusive, of sad Block 2 of Muller
and Noithcraft Addition, a distance of 281.88 feet to a point that lies S 0.13'58" W, a
distance of 30.62 feet from the northwest comer of Lot 30 in Block 2 of said Muller and
Northcraft Addition; thence S 89"41'46" E, a distance of 9.39 feet to a point on the
westerly boundary of that parcel quitclaimed by the City of Fresno by a Quitclaim Deed
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County, said point being the TRUE POINT OF BEGINNING of this description; thence N
5°46'29" E, along said westerly boundary of saitl quirclaimed parcel, a distance of 30J6
Page 5 of 7
�oI
feet to the north line of said Lot 30; thence S 89°39'06" E, along said north line, a
distance of 138.26 feet to the northeast comer of mid Lot 30; thence S 0°18'12" W.
along the east line of said Lots 30 and 29, a distance of 30.51 feet to a point that lies N
0018'12' E. a distance of 280.82 feet from the southeast comer of said Lot 85; thence N
89°41'46" W, a distance of 141.20 feet to the TRUE POINT OF BEGINNING.
Contains an area of 4,271 square feet, more or less
Page 6 of T
V1
MERGED
[DRAFT PENDING SUPPLEMENTAL ESCROW INSTRUCTION]
340 North Van Ness, Fresno, CA 93701
APN: 459-141-33
Lots 81 through 85 inclusive of North Park. according to the map thereof recorded m
Book 2 of Record of Surreys at Page 14, Fresno County Records.
TOGETHER WITH that portion of Lots 24 through 30 in Block 2 of Muller and Northaak
Addition, according to Na map thereof recorded in Book 1 of Plats at Page 63, Fresno
County Records, mom particularly described as follows;
BEGINNING at the southwest corner of said Lot 24 said comer also being the
southwest comer of that parcel quitclaimed by the City of Fresno by a Quitclaim Dead
recorded February 6, 1998 as Document No. 98017707, Official Records of Fresno
County; thence N 0.13'58" E, along the west line of said Lots 24 and 25 and along the
westerly boundary of said quitclaimed parcel, a distance of 47.63 feet to an angle point
in the westerly boundary of said quitclaimed parcel; thence N 5°46'29" E, along said
westerly boundary of said quitclaimed parcel, a distance of 127.95 feet to a point on Ne
north line of said Lot 30, said paint lying 12.38 feet easterly from the northwest comer of
said Lot 30, said point also being the northeast comer of said quitclaimed parcel; thence
easterly, along said north line of said Lot 30 to the northeast corner of said Lot 30,
thence southerly, along the east line of said Lots 30 through 24 to the southeast comer
of said Lot 24; thence westerly, along the south line of said Lot 24 to the POINT OF
BEGINNING.
SUBJECT to an easement for public street purposes over me south 6.25 feet of said Lot
85 of North Perk as granted to the City of Fresno by that Deed of Easement recorded
September 24, 1981 in Book 7191 at Page 527, Official Records of Fresno County.
Page 7 of 7
EXHIBIT D: BUDGET
Page 1 of 1
01
TolaI
FEQA
HOME
Furltls
LAND
Pro
$245000
Sd
$245000
SOFT COSTS
Permit and Fees
Arcditecture and E (need
Le al
Taxesllnsumnce
Other
Total Soft Coat
$582,000
$110,000
$10000
$20000
$141000
$843000
$582 000
$110,000
$10,000
20000
141000
$843000
$-0.
3b
¢p-
S-0.
$-0.
$245,000
HARD COSTS
SBe Pre Gradin
Off Site Inn r ovens
On Site lm novements
Direct Construclien
Contin encies
Contractor Ovenlead
Older
Total Hand Costa
$50000
88800
73700
$2 97S 800
134800
5301.000
$
$3124900
$SO non
SSS B00
3273700
S2 278 B00
$134,800
1,000
$
53,124500
$O
S -0 -
$-0
$_0
S0.
¢0.
¢0.
$-p-
DEVELOPER FEE
CONSTRUCTION
FINANCING FEES
539,300
.$39.300
5-4
OTHER
Subdlvision?NelConsulting
Fees
Mark I antl Sales
Total OIM1er Costa
q
$
$,0,
¢0,
TOTAL EXPENSES
$4302200
$4057200
5245,000
Page 1 of 1
01
EXHIBIT "E"
CERTIFICATION OF COMPLETION
Re WWat Ne R"uestdend
NTen Re OMN ReWm to;
Cq of Fresno
CHycb sCfte
2600 Fresno Sheet, Room 2133
Finano, CR 93]21-3603
City of Freseo Cedificefion of Completio
CERTIFICATE OF COMPLETION
APN: 459-141-35T/35T/37T/3BT/39T/40TI41T/42T/43T/44T
Recitals:
A. By a Disposition and Development Intl HOME Investment Partnerships Program
Agreement datetl2010, ('HOME Agreemerd') between the City of Fresno, a
municipal coryorefion ("CITY'), and FFDA Properties, LLC, a California limitetl liability
company ('DEVELOPER"), the DEVELOPER agreed to develop twenty (20) rental units
Of Which three (3) units will be affordable ('Project'), upon the premises legally
described in EXHIBIT 'A' attached to the HOME Agreement as amended from time to
time, made a part hereot by this reference, (the 'Property) for the rental of three (3)
Affordable Units to/occupancy by Low -Income Households, while meeting the affordable
housing, income targeting and other requirements of 24 CFR 92 accortling to the terms
and conditions of the HOME Agreement and the Loan Documentsand other
document/Instruments referenced therein.
B. The HOME Agreement or a memorandum of it was recorded on
2010 as Instrument No._ in the Official Records of Fresno County,
California.
C. Under the firms of the HOME Agreement, after the DEVELOPER completes the
construction of seventeen (17) market rate units and three (3) Affordable Units, the
DEVELOPER may ask the CITY to record a Cedbficate of Completion.
D. The DEVELOPER has asked the CITY to furnish the DEVELOPER with a
recom able Certificate of Completion.
E, The CDYs Issuance of this Certificate of Completion is conclusive evidence that
the DEVELOPER has completed construction of the Project, including the Affordable
Units, as set forth In the HOME Agreement.
NOW THEREFORE.
1. CITY certifies that the DEVELOPER commenced the construction
of the Project Unit on , 20_ and completed the construction work on the Project
Unit on _, 20and has done so in full compliance with the HOME Agreement.
2. This Certificate of Completion is not evidence of the DEVELOPER
compliance with, or satisfaction of, any obligation to any mortgage or security interest
holder, or any mortgage or security interest Insurer, securing money lent to finance work
on the Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as
referred to in California Civil Code Section 3093,
Agreement. 4. Nothing contained herein modifies any provision of the HOME
Page 1 of 2
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as
of this day of , Zp
CITY OF FRESNO
By:
Craig Schartan, Dlrec[or
Downtown and Community RevHalization Department
ATTEST: APPROVED AS TO FORM:
CITY CLERK JAMES C. SANCHEZ
Attorney
Dale:
By:
Deputy City
Date:
CONSENT OF OWNER/DEVELOPER
Omer/Developer Name: FFDA Prooertes L
By signing below, the owner(s) of the property consent(s) to recording Itis Certificate of
Completion against the Property described! herein.
(/xxn ndary wdwp Ree QQmnt) NeaN nduymlapa bainMts�mna
Page T o! Y
P
EXHIBIT "F'
PROMISSORY NOTE
PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this nate must be surrendered to Borrower for
Cancellation.
S245,000,13 Fresno, California, 2009
MERGED APNs: 459-141-35T/35T/37T/38T/39T/40T/41T/42T/43T/44T
Prom se to Pay. For value received, the undersigned, FFDA Properties, LLC, a California
limited liability company ("Borrower'), promises to pay [o the order of the City of Fresno, a
California municipal corporation ("Lender) the sum of Two Hundred and Forty Five
Thousand Dollars and 00/100 ($245,000.00), or such portion thereof that is actually
advanced to Borrower, at the rate of five percent (59%) on the unpaid principal, due and
payable on or before December 30, 2038, (the -Maturity Date-) pursuant to the parties'
Disposition and Development and HOME Investment Partnerships Program Agreement dated
2010, on which date the unpaid principal balance together with any unpaid
Penalties HOME Agreement or fate charges where applicable thereon shall be due and
payable, along with attorney's fees and costs of collection, without relief from valuation and
appraisement laws; provided that, in the event the Developer Is not then in default of the
Home Agreement.
Principal payment in the amount of Two Hundred and Forty Five Thousand Dollars and
00/100 ($245,000,00) is due on or before the Maturity Data Any failure to make payment
required hereunder shall constitute a default under this Note.
Defnifons All capitalized terns used in this Note. unless otherwise defined, will have the
respective meanings specified in the HOME Agreement.
Business Day, Means any day other than Saturday. Sunday, or public holiday or the
equivalent for banks generally under the laws of California. Whenever any payment to be
made under this Note is stated to be due on a day other than a Business Day, that payment
may be made on me next succeeding Business Day. However, If the eidension would cause
the payment to be made in a new calendar month, Mat payment will be made on me next
preceding Business Day.
9scurfiv. This Note, and any extensions or renewals hereof, shall be secured by a Deed of
Trust, Security Agreement and FiMure Filing with Assignment of Renta on real estate in
Fresno County, California , that provides for acceleration upon stated events, dated as of the
same date as this Note and executed in favor of the Lender ("Deed of Trusf), creating and
insured as a not worse than 3rd position lien on the Property, subordinated only to a lien
created by Borrower to insure payment of monies borrowed to pay for the construction of a
completed Unit on the Property. Said Deed of Trust shall be subject to the terms of the
Template Rider to the Deed of Trost attached hereto and such shall automatically be
incorporated in the terms of the Deed of Trust that secures this Note.
Page 1 of 5
k1�
Time Is of the Essence. It will be a default under this NOW g Borrower defaults under the
HOME Agreement, defaults under any other Loan Documents, or if Borrower fails to pay
when due any sum payable under this Note. In the event of a default by Burrower, the
Borrower shall pay a late charge equal to the lesser of 2% of any outstanding payment or the
maximum amount allowed by law. All payments collectetl shall be applied first to payment of
any costs, fees or other charges due under this Note or any other Loan Documents then to
the principal balance. On the occurrence of a default or on the occurrence of any other event
Nat under the terms of the Loan Documents give rise to the right to accelerate the balance of
the Indebtedness, then, at the option of Lender, this Note or any notes or other instruments
that may be taken in renewal or extension of all or any part of the indebtedness will
immediately become due without any further presentment, demand, protest, or notice of any
kind.
Terms osf Payment The indebtedness evidenced by this Note is payable annually on each
June 30 hereunder, as provided In the attached debt service schedule incorporated herein,
and may, at the option of the Borrower, be prepaid in whole or in pad without penalty. Lender
will apply all the prepayments first to the payment of any costs, fees, late charges, or other
charges due under this Note or under any of the other Loan Documents and then to the
principal balance.
All Loan payments are payable in lawful money of the United States of America at any place
that Lender or the legal holden of this Note may, from time to time, in writing designate, and
in the absence of that designation, to:
City of Fresno — Finance Department
Accounts Receivable
2600 Fresno Street, Suite 2156
Fresno, CA 93721
Borrower agrees to pay all costs including, without limitation, attorney fees, Incurred by the
holder of this Note in enforcing payment, whether or not suit is filed, and including, without
flirtation, all costs, attorney fees, and expenses incurred by the holder of this Note in
connection with any bankruptcy, reorganization, arrangement, or other similar proceedings
involving the undersigned that in any way effects the exercise by the holder of this Note of its
rights and remedies under this Note. All costs incurred by the holder of this Note in any
action undertaken to obtain relief from the stay of bankruptcy statutes are spedfically
included in those costs and expenses to be paid by Borrower. Borrower will pay to Lender all
attorney fees and other costs refened to in this paragraph on demand.
Any notice, demand. or request relating to any matter set forth herein shall be in writing and
shall be given as provided in the HOME Agreement
No delay or omission of Lender in exercising any right or power arising in connection with any
default will be construed as a waiver of as acquiescence, nor will any single or partial
exercise preclude any further exercise. Lender may waive any of the conditions in this Note
and no waiver will be deemed to be a waiver of Lender's rights under this Note, but rather will
be deemed to have been made in pursuance of this Note and not in modification. No waiver
Page 2 of 5
of any default will be construed to be a waiver of or acquiescence in or consent to any
preceding or subsequent default,
Terms gf Sepurmv Instruments The Deed of Trust securing this note shall provide as follows:
DUE ON SALE CONSENT BY BENEFICIARY. Beneficiary may, at fis option, declare
immediately due and payable all sums secured by this Dead of Trust upon the sale or
transfer of all or any Portion of the Property, or any interest therein. as provided in the HOME
Agreement, without the Beneficiary's Prior consent. A -sale or trdnsfee means the
conveyance of the Property or any ngM, title or interest therein; whether legal, beneficial or
equitable; whether voluntary or involuntary; whether by ou inght sale, deed, installment sale
contract, land contract, contract for deeq leasehold interest with a tens greater than three (3)
years, lease -option contract, or by sale, assignment, or transfer of any beneficial interest in or
to any land trust holding title to the Property, or by any other method of conveyance of land
interest. If any Truster is a coryomtion, partnership or limited liability company, transfer also
includes any change in ownership of more than twenty-five percent (25%) of the voting stock,
partnership interests or limited liability company Interests, as the case may be, of Trustor.
However, this option shall not be exercised by BeneficiaryIf such exercise Is prohibited by
applicable law.
Asslmnment by Lender. Lender may transfer this Note and deliver to the transferee all or any
part of Me Property then held by tt as security under this Note, and the transferee will then
became vested with all the powers and rights given to Lender; and Lender will then be
forever relieved from any liability or responsibility in the matter, but Lender will retain all rights
and powers given by this Note with respect to Property not transferred.
Enforcebl'ttv If any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of compatentiumuch ion, the validity, legality, antl
enforceability of the remaining provisions will not in any way be affected or impaired. This
Note will be binding on and inure to me benefit of Borrower, Lender, and their respective
successors and assigns.
governing Law. Borrower agrees that this Note will be deemed to have been matte under
and will be governed by the laws of California in all respects, including matters of
construction, validity, and performance, and that none of its terms or provisions may be
waived, altered, modified, or amended except as Lender may consent to in a writing duly
signed by Lender or Is authorised agents.
//
Al
Page 3 of 5
In witness whereof, Borrower has caused this Promissory Note to be executed by its
authorized agent as of the data and year that above written.
�. ,0
FFDA Properties, LLC,
a Celiiomia limited liability company
By:
Name: DRI' Asse
Tge: Vine President
W—, �ry mNflmle IN eIXnwleUpmeoq
Date:
Page 4 of 5
Laan Amount 6245,DOD 00
Interest Rate
5%
Payment
Per
Annually
Eavmentp
Parmlent
E(na9a
Intereal
congloa
SaW4c
1
15,83]80
3,607.60
12.25000
241,31240
2
15.93760
3,0]1.90
12,06562
23],440.42
3
15,937.60
4,065.58
11,072.02
233.37484
4
15,93180
4,26088
1168074
229,105.80
5
15,93180
4,46230
11 456 30
224,823.60
6
15,937.60
4,]06.42
11,231.18
219,91736
7
15.93160
4 94 174
10,99588
214,97652
0
15,93160
5.188.82
10,]48.]8
209,]06.]0
9
15,937.60
5,448.26
10.489.34
204.33844
10
15,93180
5720.68
10,21692
190,617.78
11
15,93180
6,006.)1
9,93089
192,811.05
12
15,937.60
530705
9.63055
186,304.00
13
15,93160
6,622.40
91315.20
179681.60
14
1593780
6,953.52
8,90488
1]2,]28.08
15
15,93].60
],301.20
8,636.40
165.426.88
16
16,93180
7,666.28
0,27134
157760.62
17
15,93160
8,04957
7,088.03
149,711,05
16
15.937.60
8452.05
7,486.55
141.259.00
19
15.93760
0,074.65
7,06295
132384.35
20
15 93160
9,31838
6619.22
123655.97
21
15,93160
9.784.30
6.153.30
113,28187
22
15.93760
10,27352
5,664.00
103,000.15
23
15,93].80
10,]87.19
5,15041
92,220.96
24
14931.60
11,328.55
4 611 65
80,894.41
25
15.93780
11,692.88
4,444.72
69,001.53
26
15,937.60
12,48.52
3,45068
56514.01
27
15,937.60
13,111.90
2,825.70
433.402.11
20
15,937,60
13,76749
2,17011
29,80462
29
15,93780
14,455.87
1,481]3
15, 178. 75
30
15,937.69
15,17875
]58.94
(am)
Page 5 0( 5
EXHIBIT "C"
INSURANCE
Insurance. Throughout the life of this Agreement, the DEVELOPER shall dreg
and/or through its consultant(s), assignee(s), nominee(s), contractors and subcontractors pay
for and maintain in full force and effect all policy(ies) of insurance required hereunder with (an)
Insurance company(ies) either (1) admitted by the California Insurance Commissioner to do
business in the State of California and amid not less than "A -VII" in Bests Insurance Rating
Guide, or (2) authorized by the CITY's Risk Manager. The fallowing policies of insurance are
required:
A. Until issuance of Cenificate(s) of Completion, BUILDERS RISK (Course of
Construction) insurance in an amount equal to the completed value of the project with no
coinsurance penalty provisions.
B. Fallowing issuance of Certifcete(s) of Completion, Commercial Property
insurance which shall be at least as broad as the most current version of Insurance Service
OKce (ISO) Commercial Property Form CP 1D 30 (Cause of Loss — Special Form), with limits
in an amount equal to full 000%) replacement cost (without deduction for depreciation) of the
improvements with no coinsurance penalty provisions. Such insurance shall include coverage
for business income, Including "rental value-, in an amount equal to the tow (2) years of the
annual rent generated by the improvements. Coverage for business income, including 'rental
value' shall be at least as broad as the most cunent version of Insurance Service office (ISO)
Commercial Property Form CO 00 30.
1. The above described policy(ies) of insurance shall be endorsed to provide
that the coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except
after thirty (30) calendar day written notice has been given to CITY an unrestncled thirty (30)
day written notice in favor of the CITY, of policy cancellation, change or reduction of coverage.
Upon issuance by the Insurer, broker, or agent of a notice of cancellation, non -renewal,
change or reduction in coverage, the DEVELOPER or its conmictors/subcanhactors, as the
case may be, shall furnish City with a new certificale and applicable endorsements for such
Policy(ies). In the evert the policy is due to expire during the term of this Agreement,
Developer shall provide a new certi0cate, and applicable endorsements, a new certificate
evidencing renewal of such policy shall be provided not less than been (15) days prior to the
expiration date of the expiring policy. Upon issuance by the insurer, broker, or agent of a
notice of cancellation, change or reduction in coverage, the DEVELOPER or its
conbactors(subcentractors, as the case may be, shall file with the CITU a certified copy of the
new or renewal policy and certificates for such polity,
2. The Builders Risk (Course of Construction) and Property insurance
policies shall name the CITY as loss payee. The insurance required herein shall contain no
spacial limitations on the scope of protection afforded to Me CITY.
3. If at any time during the life of this Agreement or any extension, the
DEVELOPER falls to maintain the required insurance In full force and effect, all work under this
Agreement shall be discontinued immediately, until notice Is received by the CITY that the
Page 1 of 2
required insurance has been matured to full force and effect and that the premiums therefore
have been paid for a period satisfactory to the CRY. Any failure to maintain the required
insurance, subject to notice and cure requirements herein, shall be sufficient cause for Ne
CRY to terminate this Agreement.
Page 2 of 2
EXHIBIT "H"
BONDS
Bonds. DEVELOPER shall pay for and maintain goad and sufficient surety
bonds from a corporate surety, admitted by the California Insurance Commissioner to do
business in the State of California and Treasury -listed, in a form satisfactory to the CITY and
naming the CITY as Co -Obligee.
A. The "FaHhful Performance Bond' shall be at least equal to 100% of the
DEVELOPER's estimated construction costs, as reflected in the DEVELOPER'S pro forma
budget. attached hereto as Exhibit 'C' to guarantee faithful performance of the Project, within
the time prescribed, in a manner satisfactory to the CIN, consistent with the Agreement, and
that all materials and workmanship will be free from original or developed defects.
e. The Material and Labor Bond" shall be at least equal to 100% of the
DEVELOPER's estimated construction costa, as re0ected in the DEVELOPER's pro forma
budget, attached hereto as Exhibit "C", to safisfy claims of material supplies and of mechanics
and laborers employed for this Project. The band shall be maintained by the DEVELOPER in
full force and effect until the Project is completed, and unfit all claimis for materials and labor
are paid, released, or tme barred, and shall otherwise compty with any applicable provisions of
the California Civil Code.
C. In lieu of bonds required above, CITY, in its sole discretion. may accept
from the DEVELOPER an Irrevocable Standby Letter of Credit issued with the CITY named as
the sole beneficiary in the amounts) of the bonds required above. The Irrevocable Standby
Letter of Credit is to be issued by the bank, and in a forth, acceptable to the CITY. This
Irrevocable Standby Letter of Cretlit shall be maintained by the DEVELOPER in full force and
effect until the CITY is provided with a record -d Notice of Completion for construction of the
Project and shall be subject to and governed by the laws of the State of California.
Page i of 1
e a saw AGENDAITEMNO.:
REPORT TO THE REDEVELOPMENT AGENCY J IL MEETING: 1
RND CITY COUNCIL
aiv uewgs� ��,y
October 21. 2010
ROM: Marame Murphey, Exewdve Director
Ratlevalapmerrt A9enry
Craig I Y
Crap S, Director
wnV
Ogloem wn andarxl Community Re parhrerd
rHROUGH; Claude Causes anagen (� n..,.n,(/=r—
Housing and Community De mW Divwdn� "'" a-l°�R"'1—
3V: Comne Nunss, Project Menage —
Housing and Community Oav 4 P Dlvieion
SUBJECT: RECOMMEND APPROVAL OF A REDEVELOPMENT AGENCY OVMER PARTICIPATION
AGREEMENT WITH FFDA PROPERTIES, LLC TO PROVIDE FINANCIAL ASSISTANCE IN
THE AMOUNT OF $825,000 AND APPROVAL OF A §245,000 CITY OF FRESNO
DISPOSITION AND DEVELOPMENT AGREEMENT AND HOME AGREEMENT WITH FFDA
PROPERTIES, LLC, FOR THE CONSTRUCTION OF A 20-UNIT MI) EOINCOME
RESIDENTIAL DEVELOPMENT PROJECT AT THE NORTHEAST CORNER OF VAN NESS
AND MILDREDA AVENUES IN THE LOWELL NEIGHBORHOOD AND FREEWAY N
CORRIDOR REDEVELOPMENT PROJECTAREA
recommends Redevelopment Agency Board and City Council approval of:
t) A Redevelopment Agency (Agency) Owner Participation Agreement (OPA) (Exhibit -A-) In the
amount of $025,000 and City Disposition and Development Agreement and HOME Agreement
(Agreement) (Exhibit `B') in the amount of $245,000, with FFDA Properties, LLC, (FFDA) for
construction as 20 -unit mixed -income residential housing development project at Me
northeast comer of Van Ness Avenue and Mddreda Avenue in the Lowell neighborhood and
Freeway 99/13 W 11 Stafe Boul0mid Corridor Recievelopmerd Pro/ecf Area; and
2) Nepohation and entry into Ne OPA and Agreement substantially in the form attached as
Exhibit W and -B", with FFDA, subject to approval as to form by the City Attorney's office.
E)dECUTIVESUMMARY
On September 12. 2008, the City issued a Request for Proposals (RFP) from qualified developers to develop
affordabla housing on smPMs Cily-ovmed infill PropabaS boated at venous said; throughout the City. As an
REPORT TO THE REDEVELOPMENT AGENCY AND CITY COUNCIL
HOME AgraemenUDDA and Owner Participation Agreement —FFDA, LLC
Oclober28,2010
Page 2
connive, the City offeree Me Initial Winsw plies M Me property ($245,IXIM as the HOME subsidy to e
oposod affordable or mixed -income housing project In response to the RFP, FFDA submitted! a successful
oposal to Wound a 20unit mixed -Income modernist housing envelopment project atthe she.
ter FFDA'a analysis of its project pro karma, it was determined that Me prooss had a Mostall which rendered
IMeesible to ho finanm t solely whit private funds. Transom FFDA requested Agency assistance and a
25,0o0 OPA was mgodatee to cover t e gap, which includes cost of Me and. The Agency's ORA and Me
ty's Agreement collernvely deMre Me Project demolition, scope of work, tlevelePmerd schedule, and the
rompers responsibility to secure Me balance offinandng to complete construction.
as Agency will record aRcdabillry covenants on five units, which will be preserved for households wit
comes between 50% and 120% IN Area Motion Income (AMI). Two of to five units will have 5Syesf
fardability covemnts and be proservad for families whom incamea are al, or below, 120%AMI. Three of Me
a units (which are also designated HOME units) will leve SSyear affordability covenants and be preserved
r families whose reserves era at, or below, 80% AMI. The remainbg 15 units will be preserved for handles
les
lose income era at, or below, 120% of AMI for a periad of three years and will thereafter ho evadable M
In July 2007, the Hauling and Commundy Davelopnrem Division purchased a 1.02 acre parool located at 340
Net Van Ness Avenue (mrdeast comer M Van Ness and MlWreda Avenues - Exhibit "C': Site Map) for
$245,000. Initial plans for Me arta ware to develop a 10. to 1SunM sinl;efamily mixeAincone project.
However, in early 2 . as predevebpmenl M Me project progressed, it was deeennined that Me project was
no boperfeasible due M M1e dramas c drop in IoM values, and was therefore canceled.
In order M Gaeta another housing development opportunity at the she the City issued an RFP in September
2008, offering Ma initial prop" purchase prim as subsidy to a project In response In Me RFP, FFDA
aubin ed a surressful proposal to construct a 20unit mune-irrmme residential develepnem. Of the
proposed 20 residential units, three units will to affordable m families with incomes at, or below, 80% 0 AMI
ate will carry 66 -year affordability conventions and two units will Ide available to households with income
beMeen an% and 120% of AMI and carry SSyear affordability coverands. The h miring 15 units will od
preserved for families whose incomes am at, w below, 120% at AMI for a period of three years and 11
thereafter be available at maAat rata.
FFDA's proposed Van Ness developmam will consist of ton hm-sorry buildings of hmnMmes (1,423 square
No. 3 bedroom, 2% bat units) with edenom designed in a vemamlar armeacture style to complement the
distinctive lower Fulton -Van Ness Historic District (see Exhibit "D': Rajah Design). The FultonvLowell
Committee reviewed FFDA's proposed design plans forge cies on April 28, 2010 and recommended approval
of the overall design, with sorra minor ned ifirathons b the exteriors. FFDA is also working with Me City's
Historic Preservation Manager m ensure the edenor archilxWre is compatible with Me late ti' century/eddy
2& century homes in Me neighbodeoe. The development will aim incomorele Universal Design features (In
moors us with FMC 11 -IM), City of Fresco Green Program mandards, and FFDA's Eoo-Smart design
features. AmeMbs Include Owned twacar alley -loaded garages, 14,000 square lest of open spam,
decnretive wmugM iron fencing and Mpdn or crash link lending with semi -privacy she%, security vehicle and
pedestrian entry, a deromtive conaele piece wit connecting trails, 5'x7indoor smrage, and private yards in
m
Page 3
AND CITY COUNCIL
Agreement -FFDA, LLC
M units. Other amenities induce convenient access to Freeway 180, DownlwM Circular Trolley Rome
Fresno Area Express Route 28, whidi provides transit service to California Some University Fresco,
ester Center, and southeast to Venture and Peach Averaes.
e Grenville Homes affiliate, is a eeairg local tame Wader commldM to bringing quality housing to the
connrown arae and FUIloNLowell Distant. FFDA will invest over $1 million in owler equity for As
aft! $4.3 million Ven New mixed -Yawn housing develbpmem, adding to tie Porttolo d remind
con area Musing projecre developed by Granville Homes aFltates. These developments Induce the
and Lofts, a mixed -used project completed in 2008; Icon Bird Lags, a mixes -use project naengy
too; '11' Sbeet Logs, a mixarLinmme housing pmject mmpkted in 2008; and Fulton Village, a mded-
r housing project mnently under constmdlon.
overall as rerdmmandeq FFDA will enter Into an Agreement and acquire the property from the City
n escrow roc $245,Oi%1(tha amount d Me Otys initial pumhass). the Agreement indwes a Regukrery
hent Mate lishes the Citys 5Syear actor city mvenane on Mme units. Under Mis Agreement,
includes sections, instructions for sale of the propend. FFDA will pay the City $245,000 for the cost d the
The Agency's OPA terms side da a Icon M Bre amount of $375,000 as well as a grant of $250,OW in the
completion d Me project me Icon consists a od interest, deserted roc fen ream, amordzef over 25 yeah,
and d Me A d merest duringMedeferral period The financial Homing
m d al project hetes leverage and
proreds Me Ag areas investment This$43 d Low - and ft arve gas rime Homing Funds arm invested in every
Lowell
ant downtown areas. This $4 3 million project leverages resold ce ac In privatelhas
investmerit roc every of My
dollar a Agency assistance.;BOnce completed, the pmledwill protium edtl2del lax Increment for the Its d tl1e
Freeway 99nGdden Sreb BoureveN Condor Redauelopmenf PmjaX
Given FFOA's pmject IocaMn in Lowell, Me Agency's investment further improves a covmbxn Musing metal
that has been steadily drawing Me uifial mass required to redevelop Me area. Under the Agency's agreement
with Me City for federal Neighborhood Stabilaatim Program heals, ft acquired and will rehabilitate and sell bur
foreclosetl or abandoned single-family homes in Loved, plus has acquired a fmrplax, and a Muse Mat will be
developed into a mufti family village type sei These projects coupled with Me proposed FFDA
development will help create a vibrant, atbac$ve, and desirable nghMrhord. In addition, the project Mill
remove blight from, and help staGlize, fro Lowell area and deliver needed affordable Musing units in doss
proximity to jobs, educational opportunities, and community resoumas.
Upon mmpleborn to Project will bring Me City poser 0 meeenp Me 2008-2013 Housing Element gulls for
Infill housing development, the housing goals d Me 200&2010 Consolidated Plan, and poser to meeting the
goals m Me 10x10 Affordable Homing Plan to Moate 10,000 units by year-end 2010. Alm, Me project brings
Me Agency poser to its Five year Implemanregon Plan gulls roc efordabre housing production. In addition,
Me pmjed's low-income units will increase Me City's share of the upcoming Stale Housing Related Pends
Program Grant. Under Me gram program, each Iwwincome bedroom unit croaretl increases Me CM s 201WIl
allocation of funds, pmvlded Met are project foundaMns are poured by December 31, 2010. Most importantly,
Iwver income households occupying Me units will benefit from to project's affordability covenants.
In preparation of the pmjed, a National Environmental Policy Ad review was completed and reaubed in a
FiMirg of ho Significant Impairs and a California Environmental Quality Ad review ease also complea.W and
resubed In an Exempf Solus darermintim. On September 15, W10 the City received au0orization for use of
HOME Program funds fou Me project from Me U.S. Detainment of Housing and Urban Deveropment.
REPORT TO THE REDEVELOPMENT AGENCY AND CITY COUNCIL
HOME Agreemen DA and Owner ParddWa AMeemant- PPDA, LLC
Oceber 28, 2010
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HOUSING AND COMMUNITY DEVELOPMENT COMMISSION
a Housing and Community Development Commission considered and recommended Mis item for approval
Oorober 13, 2010.
sd ehe 5825,000 in Its 20162011 Budget The remalntler of the neressahy fum
M the pmjec will mm from loan mhmnilmems Item mnventimal lenders ar
the City will be R imbursetl 5245,000 in HOME Program lands through dhe purchase
Ediibit A- Dreh Omer PSddpatbn Agreement
ENibit B- Dred Disposition and Development Agreement and HOME Program
Ed1ib8 C -Site Map
Exhibit D - Schematic Design Layout and Elevations