HomeMy WebLinkAboutFresno West Coalition 2nd Amdt. South Clara EstatesREPORTTO THE CITY COUNCIL AGENDA ITEM NO.: '�
COUNCIL MEETING: Julv 15.2008
JUIY 15, 2008
FROM: NICK P. YOVINO. Director
Planning and Development Department ,,//nn�
BY: KEITH BERGTHOLD, Assistant Dire&pye/f-
Planning and Development Department//
THROUGH: CLAUDIA CAZARES, Interim ,qe—
Housing and Community Development Division
SUBJECT: APPROVE A HOME CHDO AGREEMENT AMENDMENT NO. 2 WITH FRESNO WEST
COALITION FOR ECONOMIC DEVELOPMENT GRANTING ATIME EXTENSION FOR
THE SOUTH Cl -ARA ESTATES AFFORDABLE SINGLE FAMILY DEVELOPMENT
rt6,W le Clry Couroll
KEY RESULT AREA na' ,es2�p[�O�g rem,
One Fresno � .l I U
RECOMMENDATION
Staff recommends that the City Council authorize negotiation and entry of Amendment No. 2 to the HOME
Investment Partnerships (HOME) Program Community Housing Development Organization (CHDO)
Agreement between Fresno West Coalition for Economic Development (FACED) and the City of Fresno,
granting a time extension from June 30, 2008 to September 30, 2010, for the construction of ten affordable
single-family homes, subject to prior approval by the City Attorney.
EXECUTIVE SUMMARY
On December ], 2004, the City Council approved a HOME CHDO Agreement (Exhibit A) with FACED for
the construction of 10 affordable single-family homes in southwest Fresno. The project's original
completion data was December 29. 2006 and was extended by the City Council to June 30, 2008
(Exhibit B - Amendment No. 1) to re-ewaser Me tract map, which is now complete. However, the protect
can not proceed until the required improvement securities have been met by the developer, Currently,
FACED does not have the capabilities to meet the improvement securities requirement. Therefore, Me
Housing and Community Development Division Is negotiating Me assignment of the project to Ramer for
Humanity - Fresno. As the completion date is no longer viable, it Is necessary to request an extension of
time to allow for the assignment (or similar agreement) and completion of the project.
KEY OBJECTIVE BALANCE
Approval of the amendment presents an opportunity to make a positive impact to Me Customer
Benefaction, Employees Satisfaction, and Financial Management Key Objectives. The approval impacts
the Customer Service aspect by demonstrating the City's commitment to its CHDO projects. The approval
also annbutes to Employee Satisfaction by authorizing the necessary timeline in order o assist staff In
completing the housing project. In addition, it demonstrates Financial Management through keeping our
investment In the continued development and training of our CHDO sooners.
REPORT TO THE CITY COUNCIL
FACED Amendment No. 2
July 15, 201)8
Page 2
BACKGROUND
In June 2004, Me Public Worse Department and Me Housing and Community Development Division ieauad a
Request for Proposals (RFP) for the sale of a City -owned 2.5 -acre vacant parcel and conshucgon of aXordable
housing on Me site. On December 7, 2004, CMI staff recommended, and City Council approved, Me selection
of Ma FACED development team, Including the award of a HOME CHDO funding agreement In to amount of
5550,000, to construct ten (10) affordable single-family homes on the site (Exhibit C — Location Map).
Since that time, Redevelopment Agency Housing Set Aside funds have also been approved in the amount of
$240,128 for oile8e Improvemente and conslmclion of a ponding basin. The homes will range from
approximately 1,200 to 1,800 square feat and we three to five bedrooms. HOME CHDO funds are used W
constn ction finer citing and permanent financing to eligible homebuyers.
During the tentative map process, FACED was advised Mat Me project subdivision would require an on-site
ponding basin. Because of this conddion, FACED had M reengineer their site plan. This process caused a
signs icand delay in Me project schedule and thus required FACED to request an Initial time extension.
FW CED was granted a temporary extension by the Housing and Community Development Manager for
180 days extending the original timeline to June 29, 2007, as allowed in the original contra&. Due to Me
extent of the changes required in the tract map, the 180 day extension was not sufficient to complete the
project. Therefore, City Council approved an extension to June 3d, 2008.
The tract map is now complete, and was modified to include 2 additional lots (12 total). One lot will allow
for an additional home, and the other lot will accommodate the ponding basin. The project cannot proceed
to approval and recording at the map until the Improvement securities and lea payments are submitted,
and all signatures on the subdivision documents are obtained FW CED currently does not have the
capability to meet the Improvement securities as required by the subdivision map act. Therefore, the
Housing and Community Development Division and the Redevelopment Agency are jointly negotiating with
FACED and Habitat for Humanity— Fresno to assign the project (or similar agreement) to Habitat for
Humanity, who hes demonstrated the capability to meet improvement securities and complete the project.
The attached tentative schedule (Exhibit D) has been provided by Habitat for Humanity and FACED. The
revised projected completion date 1s September 30, 2010. Council action will authorize staff to negotiate
and enter into an Amendment No. 2 the HOME Agreement with FACED, subject to prior approval by the
City Attorney's office, to extend the project's completion date to September 30, 2010.
HOUSING AND COMMUNITY DEVELOPMENT COMMISSION
The Housing and Community Development Commission recommended approval of this item on
June 25, 2008.
FISOALIMPACT
There is no fiscal impact emaciated with this recommendation.
APPENDICES
Exhibit A— Home Program Agreement
Exhibit B—Amendment No. t to Agreement
Exhibit C — Locadan map
Exhibit D — Tentative Schedule
MYxatOJMe]-1S
Recorded at the Request N
and When Recorded Relum to:
City orFresno
(COPY
Planning and Development cepammem 'uL,�_
Abandon and Community
na Devebpmem DMslbn
seemibn:no direct,
rManager
Fans Fresno 21- Room 3016
Fresno, CA B3]21-3905
(SPAM ASDVE IVIS LINE FOR RECORDER 511SE ONL
This Agreement is recorded at the request and for the benefit of the City of Fresno and Is
exempt from the payment ofa recording fee pursuant In Govemmem Code Section 6103
By: -- ?
Jon Ruiz
Adel stant C1q Manager
Date: L.4CLM
CITY OF FRESNO HOME PROGRAM CHDO AGREEMENT
HOME Investment Partnerships Pmgrem
Community Housing Development Organization (CHDO) Agreement
by and behveen
CITY OF FRESNO,
a municipal corporation
and
FRESNO WEST COALFION FOR ECONOMIC DEVELOPMENT
a California non-profit public benefit corporetion
regarding
'South Clare Estates'
Southeast Comer of Clara and North Avenues - APN: 329 020-07t
An Affordable Single Family Homes Project
Exhibit A
TABLE OF CONTENTS
Paoe
RECITALS ..............................................
............................ __............................. .__.._...3
ARTICLE 1.
DEFINITIONS......................................................................................•.._......4
ARTICLE2.
TERMS...........................................................................................................7
ARTICLE 3.
GENERAL REPRESENTATIONSIWARRANTIES OF FWCED.....................
S
ARTICLE 4.
HOME PROGRAM REPRESENTATIONWARRANTIES BY FWCED... ......
9
ARTICLE S.
COVENANTS AND AGREEMENTS OF FWCED........................................
13
ARTICLE B.
DISBURSEMENT OF HOME FUNDS..........................................................
17
ARTICLE 7.
DEVELOPMENT AND CONSTRUCTION OF PROJECT ............................
19
ARTICLES.
PROJECT OPERATIONS............................................................................
23
ARTICLE S.
INSURANCE AND INDEMNITY...................................................................
25
ARTICLE 10.
DEFAULT AND REMEDIES......................................................................
27
ARTICLE 11.
GENERAL PROVISIONS...........................................................................
25
EXHIBITS
EXHIBIT A:
PROPERTY DESCRIPTION
EXHIBIT B:
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C:
EXEMPLAR DECLARATION OF RESTRICTIONS
EXHIBIT D:
BUDGET
EXHIBIT E:
EXEMPLAR CERTIFICATE OF COMPLETION
EXHIBIT F:
EXEMPLAR NOTE
HOME INVESTMENT PARTNERHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION AGREEMENT
This HOME Investment Partnerships Program Community Housing Development
Organization Agreement (hereinafter referred to as the'Agreemenr) is entered Into this,
l I A ny. 1 (2 , 2005, by and between the CIN OF FRESNO, a municipal corporation,
acting through its Planning and Development Department - Housing and Community
Development Division (hereinafter referred to as the "CITY"), and FRESNO WEST
COALITION FOR ECONOMIC DEVELOPMENT, a California non-profit public benefit
corporation, Including any and all nomineasrassignees thereof consented to by CITY
(wlleelively hereinafter referred to as'FWCED").
RECITALS
WHEREAS, the CITY has received a HOME Investment Partnerships Program
(hereinafter referred to as `HOME Program) grant from the U.S. Department of Housing
and Urban Development (hereinafter referred to as "HUD'), under Trtie 11 of the Cranslon-
Gonzalez National Affordable Housing Act of 1990, as amended (hereinafter referred to as
the "ACT'); and
WHEREAS; the HOME Program requires no less than fifteen percent (15%) of the
CITY's HOME Program annual allocation be used by Community Housing Development
Organizations (CHOO) for the development of Affordable Housing within the City of Fresno
as required In 24 CFR 92.300; and
WHEREAS, FWCED has been 090ad by the CITY as a CHICO in accordance with
HUD's certification criteria; and
WHEREAS, FWCED holds all right tilde and interest in fee to the certain
undeveloped real property located within the City of Fresno, APN 329-020-071, more fully
described in EXHIBIT A, attached hereto and incorporated herein, hereinafter referred
to as the 'Property; and
WHEREAS, the FWCED at its sole cost has or will legally partition the Property Into
approximately ten (10) contiguous parcels prior to start of conshuclbn hereunder, 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 the affordable
housing market; and
WHEREAS, FWCED desires to act as owner, CHOO developer, and exercise
effective project control as to the construction of ten (10) separate single-family Affordable
Housing Units to be constructetl and sold as Low -Income Housing, and related o"be and
off-stte Improvements, hereinafter referred to as the 'Project", as more particularly
described in the Project Description attached hereto as EXHIBIT B. Incorporated hereln;
and
WHEREAS, the Project will be commented upon HOME eligible Property(les)
located within the boundaries of the City of Fresno, as more particularly described In the
attached EXHIBIT A; and
3 D
WHEREAS, to further be goal to increase the supply of Affordable Housing within
the Coy of Fresno, the CITY desires to make available to the Project HOME Funding for
reimbursement of HOME eligible Project costs, upon the terms and conditions In this
Agreement; and
WHEREAS, the CITY has conducted an environmental review of the Project
pursuant the National Environmental Policy Act ("NEPA") and the California
-- Envinlnmental Oualiyfit{"CEOA") resulting In a finaingof no significant Impacraccording
to NEPA guidellnes and an adoption of a mitigated negative declaration according to CEOA
guidelines. CITY has received related federal approval for release of HOME funds
pursuant to 24 CFR Part 55; and
WHEREAS, the CITY has determined that this Agreement is in the best interests of,
and will materially contribute to, the Housing Element of the General Plan. Further, the
CITY has found that Me Project (i) will have a positive influence in the neighborhood and
surrounding environs, (Iq is In the vital and best interests of the CITY, and the health,
safety, and welfare of CITY residents, (llq compiles with applicable federal, state, and local
laws and requirements, (iv) will Increase, improve, and preserve the communlys supply of
Low -Income Housing available at affordable housing cost to persons and families of Low -
Income, as defined hereunder, (v) planning and administrative expenses Incurred In pursuit
hereof are necessary for Me production, Improvement, or preservation of Low -Income
Housing, and (vi) will comply with any and all owner participation rules and afore
applicable Merano.
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 partles agree as follows:
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 this Agreement
by reference.
1.1 ADA means the Americans wfth Disabilities Act of 199. as most recently
amended.
1.2 Affirmative Marketing means a goad faith effort to attract eligible persons of
all mclal, ethnic and gentler groups, In the housing market area, to purchase the Housing
Unit(s) that are proposed for construction on the eligible Property, as hereinafter defined.
1.3 Affordable Housing means the proposed Affordable Housing Project Units,
consisting of ten (10) separate single4amlly homes, of which all will be resulted to meet the
affordability requirements of title Agreement and 24 CFR 92.254 at Me time of sale to first
homebuyer and which affordability requirements shall run with the land for the Affordability
Period subject to release as provided in this Agreement.
1.4 Affordability Period means the thirty (30) year period commencing from the
date of Met sale of each Project Unit following CITY^s issuance and recordation of the
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Certhcate of Completion, as more fully descrbed in the Declaration of Restrictions,
attached hereto as EXHIBIT C and incorporated herein.
1.5 Budget means the pro forma Project Budget and any changes thereto,
approved by the CII Housing and Community Development Division Manager provided
the total amount of HOME Funding allocated to the Project shall not be increased whhoul City
Council approval, attached hereto as EXHIBIT D.
1.6 Certificate of Completion means that certificate Issued, in the fond attached
as EXHIBIT E ('Exemplar Certificate of Completion'), h PLACED by the CITY evidencing
completion of each Project Unit constructed on the Property for purposes of this
Agreement.
1.7 CCS means the Code of Federal Regulations.
1.6 Commencementof Construction means he time FWCED orPWCED's
construction contractor begins substantial physical work of the Projectmich Project Unit on
the Property, including, without limitation, delivery of materials and any work, beyond
maintenance of the Property in its status quo condition, and not later than sixty (60)
calendar days foltowing the CITy"s approval of commencement of construction of each
Unit
1.9 Declamlion of Restrictions means the Declaration of Restrictions in the fomr
attached hereto as EXHIBIT C. which shall be recorded against the Property no later than
the date of disbursement of Loan proceeds, setting out the Affordable Housing covenants
and requirements of this Agreement which shall run with the land.
1.10 Deed of Trust means a standard form Deed of Trust approved by CRY,
recorded against the PropeM. Insured in the full amount of the Loan(s) on the Property.
1.11 EIIaIMe Costs means any and all HOME Program eligible Project costs as
may be reimbursed by the Loan(s), consistent with the Budget, attached as EXHIBIT D,
allowable under 24 CFR Part 92, as specified In 24 CFR 92.205, 92.206 and 92.301, and
net disallowed by 24 CFR 92.214, provided. however, that costs Incurred In connection with
any activity that is detemtined to be ineligible under the Program by HUD or the CITY shall
not consthum Eligible Casts.
1.12 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.13 Family has the same meaning given that term In 24 CFR 5.403.
1.14 Hazardous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined, regulated or listed as'hmrdous
substances," 'hazardous wastes''hazardous materials; "pollutants,'"conUminamm'or
%odc substances' under federal or state environment and health safety laws and
regulations, Including without limitation, peboleum add petroleum byproducts, flammable
explosives, urea formaldehyde Insulation, radbaWve materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed In the normal
5 I
course of developing, operating or occupying a housing project, to the extent and degree
that such substances are stored, used and disposed of in the manner and in amounts that
are consistent with normal practice and legal standards.
1.15 HOME Investment Partnership CHDO Funds (also refaced to in this
Agreement as HOME Funds or HOME CHDO Funds) means the HOME CHDO Program
monies including the Lonnie), in an amount not to exceed the sum of Five Hundred Fitly
Thousand Dollarsj$550,000) to be used for HOME Program eligible Project wats.-
1.16 Household means one or more persons occupying a Unit in the proposed
Affordable Housing Project.
1.17 HUD means the United States Department of Housing and Urban
Development.
1.18 Loan means the non -assumable, partially forgivable Imn(s) of HOME Funds,
made available by the CITY to the Project pursuent to this Agreement, as more specifically
described In the Budget and in the Promissory Notes) attached hereto as EXHIBITS 0 and
F respectively.
1.19 Loan Documents are collectively this Agreement, the Notes), Deeds) of
Trust, Decleretlon(s) of Restrictions and all related documentarnstruments as they may be
amended, modified or restated from time to time along with all exhibits and attachments
therein, relative to the Loan.
1.20 Low -Income Families means families whose annual income does Trot exceed
eighty pement (80%) of the median income for the Fresno, California area as detamrine i
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.
1.21 Note means the non -assumable, partially forgivable Project Notes) In a
prindpal amount not to exceed the HOME Program per unit cap (24 C.F.R. 92.250) as
determined by the CITY, gtvan by FWCED (including assignees/nomineas thereof) as
prornesor(s), in favor of the CITY as promissea, evidencing the Loan and performance of
the affordability and other wverards and restictions sal forth in this Agreement, secured
by a standard Deed of Trust as rano position or better lien upon the Unit Property, naming
the CITY as beneficiary and provided to the CIT' no later than the date M Unit funding
hereunder, an exemplar of which Note is attached hereto as EXHIBIT F, and Incorporated
herein, as well as any amendments to, modifications of and restatements of said Nota
consented to by CITY.
1.22 Procram Income has the meaning provided in the HOME program including
24 CFR 92.503.
1.23 Protect means each and all of the len (10) single-family low -Income
Affordable Housing Units to be constructed, marketed, and sold as Low -Income Housing,
and related on -she and off-site Improvements, all as described In the Project Description
attached hereto and Incorporated hemin as EXHIBIT B, upon the Property as more
particularly described In EXHIBIT A. !1/
8
1.24 ProieclLomoletion Date means the date that the CITY shall have determined - - that the Project (or any Unit thereof) has reached completion in accordance with this
Agreement. The Project Completion Data for this project is December 29, 2006.
1.25 Proiect Schedule means the schedule for completion of the Project Included
within the EXHIBIT B Project Description and Schedule, consistent with the above Project
Completion Data_ _ v_
1.26 prime means the HOME Program eligible property located at the southeast
comer of Clara and North Avenue. APN 329-020-071, Fresno, California, more specifically
described in the attached EXHIBIT A, to be parcelked by FWCED at Its sola cost, and
developed for affordable housing, prior to commencement of any HOME eligible Project
activity reimbursable with Loan proceeds.
1.27 Unit means each separate single family home developed upon the Property
and presented as Affordable Housing for the duration of the Affordability Period.
ARTICLE 2. TERMS
2.1 Loan of HOME CHDO Funds. The CITY agrees to provide the Loan(s) under
the fortes and conditions provided in this Agreement, to a maximum of ten (10) Project
Units. The HOME Funds shall only be used for reimbursement of HOME eligible costs.
The Loan shall be non -assignable and partially forgivable as provided In MIs Agreement
and the Note.
2.2 Loan Documents. FWCED shall ensure that all homebuyers execute and
deliver, or cause to be executed and delivered, to the CITY the Loan Documents including
the Deed Trust Note(s), as provided for in this Agreement.
2.3 Term of Agreement. This Agreement Is effective upon the date of execution
and shall remain In force for the duration of the longer of the Affordability Perfect and the
Loan unless earliertennlnated as provided herein. It is understood and agreed upon,
however, that If for any reason this Agreement should be terminated In whole or in part as
provided hereunder, without default, by FWCED prior to disbursement of HOME Program
Funding hereunder, the CITY agrees W record a Notice of Cancellation regarding this
Agreement, upon the written request of Fl CED.
2.4 Loan Repayment and Maturity. The Loan(s) will be due and payable In
accordance with the Notes) and not later than the maturity date provided in the Note(s).
2.5 Incorporation of Documents. The FWCED proposal dated July 30, 2004, the
FW CED Board Minutes dated November 16, 2004, the CITY Council approved Minutes of
May 3, 2005, approving this Agreement, the Loan Documents, the Act and HUD
regulations at 24 CFR Part 92, and all exhibits, atlachments, documents and instruments
referenced herein, as now in effect and as may be amended from time to time, constitute
pad of this Agreement and are Incorporated herein by reference. AN such documents have
been provided to the padies herevMh or have been otherwise provided to/Procured by the
partles and reviewed by each of them prior to execution hereof.
7 I ,
2.5 Covenants of FWCED. FWCED for Itself and its nominessfassgns --
covenants and agrees to comply with all the terms and conditions of this Agreement and
no requirements of 24 CFR Pad 92.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF FWCED
3.1 Existence and Qualifirabon. FWCED represents and warrants as of the data
hereof, that FWCED N a duly organized Caltlardla non-profit corporation m good standing
and a quallAed charitable organization exempt from certain taxes under IRC 501(c)(3) and
Cal. R&T 23701(d). FACED is neither controlled by, nor under the direction of, Individuals
or entities seeking to derive profit or gain from the organization. FWCED hes among hs
corporate purposes the provision of decant lousing that Is affordable to Low-income and
Very Low -Income persons. FWCED maintains accountability to Low -Income community
residents by maintaining at least one-ihlyd of its governing board's memberships for
residents of Low -Income neighborhoods/representatives thereof and by providing a formal
process for Low-income program beneficiaries to advise PWCED in Its affordable housing
decision making. PWCEO and its developmentteam have demonstrated capacity for
carrying out the Project. FWCED has a historyof serving the community within which the
Project Is located, FWCED has the requisite power, right, and legal authority to execute,
deliver, and perform Its obligations under this Agreement and has taken all actions
necessary to authm¢e the execution, delivery, Performance, and observance of its
obllgatlons under this Agreement. This Agreement when executed and delivered, shall
constitute the legal, valid, and binding obligations of FWCED enforceable against FACED
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 parry.
3.2 No Lltlaation Material to Financial Condition. FWCED repressnts and
warrants as of the date hereof that, except as disclosed to and approved by CITY in writing,
no IRigation or administrative proceeding before any court or governmental body or agency
is now pending, nor, to the Crest of FWCED's knowledge, Is any such litigation or
proceeding now threatened, or anticipated against FWCED that, If adversely determined,
would have a material adverse affect on the financial condition, business, or assets of
FWCED or on the operation of the Project
3.3 No CorALI of Interest. FWCED represents and warrants as of the date
hereof that no official, officer, agent, or employee of the CITY directly or indirectly owns or
controls any interest in FACED, and no person, directly or indirectly owning or controlling
any Interest In FWCED, is an official, officer, agers, or employee of the CIN.
3.4 No Leoal Sar. FWCED represents and warrants as of the date hereof that
the executlon, delivery, performance , or observance by FWCED of this Agreement will not,
to the beat of FWCED's knowledge, materially violate or contravene any pmvislons of. (a)
any existing law or regulation. or any order of decree of any court, governmental authority,
bureau, or agency; (b) governing documents and Instruments of FWCEDI or (c) any
mortgage, indenture. security agreement, contract undertaking, or other agreement or
Instrument to which FWCED Is a party or that is binding on any of Its properties or swats,
the result of which would materially or subslarNaAy impair FWCED's ability to performrid
8 7O
discharge its obligations or its ability to complete the Project under this Agreement .. .
3.5 No Violation of Law. FWCED represents and warrants as of the date hereof
that, to the beat of FWCED's knowledge, this Agreement and the operation of Me Project
as contemplated by FWCED, do not violate any existing federal, slate, or local laws or
regulations.
-- 3.6 No U1118tion Material to Pro lact .-FWCED represents and walrams-as of the --
date hereof that, except as disclosed to, and approved by the CITY In writing, Mere Is no
action, proceeding, or Investigation now pending, or any basis therefor known or believed
to exist by FWCED that questions the validity of this Agreement, or of any action to be
taken under this Agreement, that would, X adversely determined, materially or substantially
Impair FWCED'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.
3.7 Assurance of Governmental Approvals and Licenses. FWCED represents
and warrants, as of the date hereof, that FWCED has obtained and, to the best of
FWCED's knowledge, Is In compliance with all federal, stale, and local governmental
reviews, consents, authorizations, approvals, and licenses presently required by law to be
obtained by FWCED for the Project as of the date hereof.
ARTICLE 4. HOME PROGRAM REPRESENTATION AND WARRANTIES BY FWCED
FWCED, for Itself and its development team, represents and warrants that:
4.1 Accessibility. FWCED wan ants, covenants and agrees that it shall comply
with 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), Including, without limitation, the construclion of the Project so that it meets the
applicable accessibility requirements, Inducing, but not limited to, Me following:
A. All housing units shell be made accessible, upon request of the
prospective homebuyer, it the nature of the handicap of an expected occupant so requires.
In such case, the homebuyer shall be given the opportunity to consult with FWCED
regarding the specific design features to be provided. If accessibility features selected at
me option of the homebuyer am ones covered by the standards prescribed by 24 CFR Sec.
8.32, those features shall comply with the standards prescribed In Sec. 8.32. The
homebuyer shall be permtlted to depart from particular specifications of these standards In
order to accommodate his or her specific handicap. The wet of making a unit accessible
under this paragraph may be included in the mortgage amount within the allowable
mortgage limits, wham applicable. To the extant such coats excaed allowable mortgage
limits, they may be passed on to the prospective homebuyer, subject to maximum sales
prim limitations (24 CFR 235.320.)
4.2 Affirmative Marketing. PLACED warrants, covenants and agrees that it shall
comply with all affirmative marketing requirements, including without limitation, arose sat
out at 24 CFR 92.350, 24 CFR 92.351, In order to provide information and otherwise attract
eligible persona from all racial, ethnic and gander groups In the housing market In the sale
of Project Units. FWCED shall be responsible for complying with me CITY's'Amrmative
9 ✓�
Marketingincorporated herein, as amended from time to lima. FWCED ---
shall maintaln records of actions taken to affirmatively market units constructed in the
future, and to assess the results of these actions.
4.3 Availability f HOME Funtls. FWCED understands and agrees that the
availability of HOME CHDO Funds is subject to the central of HUD, or other federal
agencies, and should said Funds ban encumbered, withdrawn or otherwise made
-'-' unavailable lothaCrfY, whether earned by otpromised to FWCED, andforsbould CRY in
any fiscal year hereunder fall to allocate said Funds, the CRY shall not protide said Funds
unless and unfil they are made available for payment to Me CITY by HUD and the CRY
receives and allocates said Funds. No other funds owned or controlled by the CITY shall
be obligated under this Agreement.
4.4 Compliance with Agreement. FWCED warrants, covenants and agrees Mal,
in accordance with the requirements of 24 CFR 92.254 and 24 CFR Part 85, upon any
uncured default by FWCED within the meaning of Aral 10 of this Agreement, the CRY
may suspend or terminate this Agreement and all other agreements with FWCED without
waiver or limitation of rightslremedies otherwise available to the CITY.
4.5 Conflict of Interest. FWCED warrants, covenants and agrees that it shall
comply with the Conflict of Intense requirements of 24 CFR 92.356 Including, without
limitation, that no officer, employee, agent or consultant of FWCED (other than an
employee or agent of FWCED who occupies a unit as Me project manager or malnlenance
worker) may occupy a Project Unit. FWCED understands and acknowledges Mat no
employee, agent, demeanors, officer or elected official or appointed official of the CRY, who
exercises or has exercised any functions or responsibilities with respect to the Project or
Me Is In a position to participate in a decision making process or gain Inside information
wit) regard to these actMtles, may obtain a financial interest or benefit from the Project, or
have an Internet 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 Nes, during his or her tenon or for one year thereafter. To the extent
provided at 24 CFR 92.356(fj, no owner, developer or sponsor of the Project, or officer,
employee, agent or consultant thereof, may occupy a Project Unit.
4.6 ConstructionStandards. FWCED shall mnsWcl the proposed Musing units
assisted under this Agreement In compliance with all applicable Ideal codes, entireness
and zoning requirements in effect at the time of issuance of Certification of Completion. In
the absence of a local code for construction, FWCED agrees M comply with the applicable
Standards identified In 24 CPR 92.251.
4.7 Covenants and Restrictions to Run with the Land, The CITY and FWCED
expressly wananq covenant and agree to ensure Mal the covenants ant restrictions set
forth in this Agreement am recorded and will run with the land, provided, however, Mat,
consistent with the Loan Documents, CITY may release said covenants and restrickars
only upon receptors of all HOME funding allocated to the Unll(s) by the CIT'. FWCED
further warrants, covenants and agrees to ensure that Me covenants and restrictions set
forth herein shall tun In favor of the CRY.
10
- A. the CITY and FWCED hereby declare their understanding and intent
that the covenants and restrictions set form herein directly benefit the land (a) by
enhancing and Increasing the enjoyment and ownership of the proposed Project by remain
Low -Income and Very Low -Income Families, and (b) by making possible the obtaining of
advantageous financing for construction.
B. FW CED covenants and agrees that h shall cause the Project Units to
be sold as Affordable Housing. — -- -
C. Without waiver or limitation, me CITY shell be emitted to Injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, In addition, be entitled to damages available under law or contract
for any injures or losses resulting from any violations thereof.
D. 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 hem time to time thereafter,
or an estoppel against the enforcement thereof.
4.8 Displacement of Persons FWCED 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, IndMduals, businesses, nonprofit organizations and farms.)
4.9 Initial Income Certification. FWCED warrants, covenants and agrees that 11
shall comply with the procedures for income determinations at 24 CFR 92.203. FWCED
shall obtain, complete and maintain on fila, immediately prior to initial occupancy, Income
certifications from each Project Unit Household. FWCED shall make a goad fshh effortto
verify that the Income provided by an applicant or occupying Household in an Income
osritication is accurate by taking one or more of the fellowng steps as part of the
verification process; (1) obtain a pay dub for the most record pay period; (2) obtain an
Income verification form from the applicants cement employer, (3) obtain an income
verification forth from the Social Security Administration and California Department of
Social Services If the applicant receives assistance from either of such agendas; (4) obtain
an Income tax return for the most recent lax year, or (5) If the applicant Is unemployed and
has no such tax return, obtain another tons of independent verification. Copies of
household income cort'i icabon and veriRcatlon must be available for review and approval
by the CITY prior to the close of escrow and the transfer of this to the low -Income
homebuyer. FWCED further warrants, covenants and agrees that it shall 000perete with
the CITY In the CrfYs Income cervFlcatontaffordabllity monitoring activities at the time
subsequent to initial transfer of the Unit Property.
4.10 Lead -Based Paint. FWCED warrants, covenants and agrees that it shall
comply with all applicable requirements of the Lead -Based Paint Poisoning Prevention Act
of 42 L.S.C. 4821 at seq.. 24 CFR Pan 35 Including the HUD 1012 Rule, and 24 CFR
982.4010), including any amendments thereto, In the Affordable Housing Project- These
requirements apply to all units and common areas In the Affordable Housing ProjecL
FWCED shell incorporate or cause Incorporation of this provision In all cenhada and
subcontracts for work performed on the Project, which involve the application of paint.
FWCED shall be responsible for all disclosure, Inspection, testing, evaluation, control and
abatement activities
4.11 Minority Outreach Activities. PWCED warrants, covenants and agrees that It
shall comply with all federal laws and regulations described in Subpart H of 24 CFR Part
92, including, without limitation, any requirement that FWCED comply with the CITY's
minority outreach program.
4.12—Omer Caws and Regulations.-"FWCED warrahall covenantss Md -agrees that, -
In addition to complying with the federal laws and regulations already cited in this
Agreement, FW CED has reviewed, and shall comply with, all other federal laws and
regulations that apply to the HOME Program, including, without limitation, requirements of
24 CFR 58.6 and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C.
4001-4128) and the fallowing:
A. FWCED does not intend to use any financing that Is secured by a
mortgage insured by HUD in connection with the Project as part of its acquisition andlor
construction of this Project. -
B. The Project is not located In a tract identified by the Federal
Emergency Management Agency as having special flood requirements.
C. The Project requirements, Subpart F of 24 CFR Part 92, as applicable
and in accordance with the type of Project assisted, Including, but not limited to, the limit an
per-unk 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. 276x -276a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
F. The provisions of Section 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327333), as supplemented by Department of Labor
Regulations (29 CFR Pan 5), in regards to the construction and management of the
proposed Project.
G. FINCED and its contractors, subcontractors and service providers for
the Pmject, shall campy with all applicable local, state and federal requirements
concerning equal employment opportunity, Including compliancewilh E.O. 11246, 'Equal
Employment Opportunity,' as amended by E.O.11375, "Amending Executive Order 11246
Relating to Equal Employment Opportunity; and as supplemented by regulations at 41
CFR part 60, 'Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor."
H. The provisions of the Copeland'AMFKlckbacr Act (18 U.S.C. 874), as
supplemented by Department of Labor regulations (29 CFR part 3,'Conbactors and
Subcontractors on Public Building or Public Work Financed In Whole or In Part by Loans or
Grants from the United States").
12 ��
I.-- The provisions of the Clean Air Ad (42 U.S.C. 7401 at seq.) and the - - -
Federal Water Pollution Control Act (33 U.S.C. 1251 at seq.), as amended.
J. The provisions of the Byrd Anti -Lobbying Amendment (31 U.S.C.
1352).
K The provision of E.O.s 12549 and 12689, "Debarment and
SuspensiWY rzetforth at 24 CFR part 2S' -- - --
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 Act of 1968 PL. 90-284.
N. Executive Omer 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Act of 1968.
P. The Housing and Community Development Act of 1974.
4.13 Religious Oroan'zations. FWCED warrants. covenants and agrees that d is a
secular entity and not a primarily religious organization and met it shall not engage In any
prohibited activities descdbed In 24 CFR 92.257. Subject to the foregoing, FWCED does
not intend to utilize HOME Funds to construct housing owned primarily by religious
organizations or to assist primarily religious organizations In acquiring housing.
4.14 Reporting Requirements. FWCED warrants, cwWriarrts and agrees Nat it
shall submit performance reports to the CITY as detailed In Section 7.15. Furthermore,
FACED agrees to provide, al the sole cast of PLACED, annual audited Financial
Statements for the Project expenses and ongoing financial "reactors which occur as a
result of this Agreement as detailed In Section 5.7. FWCED agrees to account for the
expenditure of HOME CHDO Funds using generelly accepted accounting principals, which
financial documentation shall be made available to this CIT' and HUD upon their
respective written request(s).
4.15 Housing AffordabilRv. FWCED wartime, covenants and agrees that the
Project will meet the Affordable Housing, Income targeting and other requirements of 24
CFR 92.254 upon sale of the homes to eligible homebuyers, except upon foreclosure by a
lender or transfer In lieu of foreclosure following default under a Deed of Treat.
4.16 Terminated Prolecta(s). FACED understands and agrees that, If 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 5. COVENANTS AND AGREEMENTS OF FWCED.
FWCED, for Itself and its assignee(s)1nominee(s), covenants and agrees to the following,
for the entire term of the Agreement.
13
-5.1 Adequate Repair and Maintenance. FWCED shall maintain the Projects and
Property in compliance with all applicable codes, laws, and ordinances.
5.2 Affordable Housino. FWCED covenants and agrees that the Project(s)shall
be sold only to Low -Income families to constitute Affordable Housing, as variously provided
at 24 CFR 92.254.
5.3—tiomollance With EmlionmalMal-Caws.-FVVCED shall cause the Project to tie--
in compliance with, and not to cause or permit the housing project to be In violation of, any
environmental law. rule, regulation, ordinance, or statute. Although the CITY will utilize its
employees and agents for regular inspection and testing of the eligible Property, FWCED
agrees that, If the CITY has reasonable grounds to suspect any such violation, FWCED
shall be entitled to thirty, (30) days' notice and opportunity to are such violation. If the
suspected Nolabon Is not cured, the CITY shall have the right ro retain an Independent
consultant to Inspect and test the eligible Property for such violation. If a violaffon Is
discovered, FWCED shall pay forme reasonable cost of the Independent consultant.
Additionally, FWCED agrees:
A. That the CITY shall not be directly or indirectly Involved with the
Inspection, testing, removal or abatement of asbestos or other hazardous or toxic
chemicals, materials, substances, or wastes and that all mat, expense and liability for such
work shall be and remain solely with FWCED;
B. Not to transport to or from the proposed project shale), or use,
generate, manufacture, produce, store, release, discharge, or dispose of on, under, or
about the project site(s), or surrounding real estate, or transport to or from the project
site(s), or surrounding real estate, any hazardous or toxic chemicals, materials, substance,
or wastes or allow any person or entity to do so except in such amounts and under such
terms and conditions permuted by applicable laws, miss, regulations, ordinances, and
statutes;
C. To give prompt written notice to the CITY of the following:
1. Any proceeding or inquiry by any govemrnental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration thereof
from or to other property;
2. All claims made or threatened by any third party against
FWCED or such properties relating to any loss or Injury mulling from any hazardous or
toxic chemicals, materials, substance, or waste; and
3. FWCED'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
14 �,
-D- To indemnify, defend, and hold the CITY handless from any and all - --
claims, actions, causes of action, demands, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, mats, expenses (Including
allomay's fees and expenses), and disputes of any kind whatsoever arising out of or
relating to FWCED or any other party's use or release of any hazardous or toxic chemicals,
materials, substance, or wastes on the eligible Property regardless of cause or origin,
including any and all liability arising out of or relating to any investigation, site monitoring,
containment; cleanup, removal, restoratta'n, bother-remedual work cf any kind or nature. -
5.4 Compliance With Laws. FWCED shall promptly and fafthfullymmplywdh,
conform to and obey all present and future federal, state and local statutes, regulations,
rules, ordinances and other legal requirements applicable by reason of this Agreement or
otherwise to the Project. FWCED acknowledges that the use of HOME Funds subjects the
Project to extensive federal regulation and covenants and agrees that it shall comply with,
conform to and obey (and take such steps as are required of FWCED to enable the CITY to
comply with, conform W and obey) all federal stables, regulations, rules antl policies
applicable to the Program and the Project:
5.5 Existence Qualification and Authority. FWCED shall provide to the CITY
any evidencerequired or requested by the CITY to demonstrate the continuing existence,
qualification, and authority of FWCED to execute this Agreement and to perform the ads
necessary to carry out the Project.
5.6 Financial Statements and Audits. FWCED, as a subredpient of federal
financial assistance, Is required to comply with the previsions of the Single Audit Ad of
1984 (31 U.S.C. Sections 7501 at sec.), as amended. Annually, whin one hundred and
eighty (180) days following 1) Me end of fiscal yeags) in which the HOME Funds are
disbursed hereunder, and 2) the eM of fiscal years) In which this contract shall terminate,
and otherwise upon the CITY's, written request during the term of this Agreement, FWCED,
at Its sole cost and expense shall submit W the CITY.
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed therein).
B. Audited Financial Statements covering the Income and expenses, and
the financial transactions for the Project during the prior fiscal year.
5.7 Inspection d Audit of Books. Records d Documents FWCED shall be
accountable to the CITY for all HOME CHDO Funds disbursed for this 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 the 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 FWCED pertaining to the PM]ed or all matters covered
in this Agreement and for up to six (6) years after the expiration or terminated of this
Agreement.
A. FWCED will maintain books and records for the Project using generally
accepted accounting principles. FWCED agrees to maintain books and records that
15 1/
accurately and fully show the date, amount, purpose and payee of all expenditures - --
financed with HOME CHDO Funds and to keep all invoices, receipts and other documents
related to expenditures financed with HOME CHDO Funds for not less than 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, "bcoks, records and documents'
Include, without limitation; plans, drawings, specifications, ledgers, journals, statements,
contractslagreements funding information, funding applications, purchase orders,
invoices, Inert documents, computer pnntoufs, correspondence, memoranda, and —
electronically stored versions of the foregoing. This section shall survive the termination of
this Agreement.
B. The CITY may audit any conditions relating to this Agreement at the
CITY's expense, unless such audit shows a significant discrepancy In Information reported
by FWQED in which case FWCED shall bear the cost of such audit. FWCED shall also
comply with any applicable audit requirements of 24 CFR 92506. This section shall
survive the termination of this Agreement
C. FWCED will cooperate fully with the CITY, the State, and HUD in
connection with any interim or final audtt relating to the Programs and the Project that may
be performed relative to the performance of this Agreement.
5.8 Inspection of Procell. Any duly authorized representative of the CITY, the
State, or HUD shall, at all reasonable times, have access and the right to inspect the
Property until complefion of the Project.
5.9 No Other Liens. FWCED shall not create or incur, or suffer to be created or
Incurred, or to exist, any additional mortgage, pledge, encumbrance, lien. charge, or other
security interest of any kind on the eligible Property. other than those related to
construction or pre -development loans in relation W the Affordable Housing Project
consistent with the attached Exhibit D Project Budget, without the prior written consent of
the CITY.
5.10 Nondiscrimination. FWCED shall comply with and cause any and all
contractors and subcontractors to comply with any and all formal, stale, and local laws with
regard to Illegal discrimination, and FWCED 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 Pmject.
5.11 Ownership. Except as required in pursuit hereof, FWCED shall not sell,
lease, transfer, assign or otherwise dispose of all or any material part of any interest It
might hold In the Property or the Pmject without the prior written consent of the CITY,
which consent shall not be unreasonably whhhelo or delayed.
5.12 Payment of Llabllities. FNCED 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 Prolecl(s), except such obligations and liabilities that have been disclosed
to the CITY in writing and are being contested in good faith.
16 ��
- - 5.13- Reportof Events of DefaulC FWCED shall promptly give written notice loihe --
CITY upon becoming aware of any Event of Default under Nis Agreement
ARTICLE 6. DISBURSEMENT OF HOME FUNDS
Without waiver of limledion, the parties agree as follows, regarding disbursement of HOME
CHDO Funds:
6.1 Use of HOME Program CHDO Funds. FINCED warrants, covenants and
agrees for itself and its assgnee(synominee(s) that it shall request HOME Program CHDO
Funds only for reimbursement of HOME eligible costs, limited to the amount needed, for
payment through an escrow account established by FACED, or its
assignee(s)/nominee(s), with a title company acceptable to the CITY, for eligible costs,
including costs allowable under 24 CFR 92.206, aggregating net more than Fifty Five
Thousand Dollars ($55,000), per Uniljlow-income family. The CITYs obligations shall in no
event exceed the HOME CHDO Funds amount specified in this Agreement.
A. If any such Funds shall be determined to have been requested and/or
used by FWCED for Something other than reimbursement of HOME eligible costa, and
subject to the notice and cure previsions of Section 10.2 hereunder, an equal amount them
nonpublic funds shall become immediately due and payable by FWCED to the CITY;
provided, however, that FWCED shall, subject to Its full coopeation with the CITY, be
entitled to participate in any opportunity to remedy, contest, or appeal such determination.
B. In the event HOME CHDO Funds are requested to reimburse Eligible
Costs which subsequently Ione eligibility as Eligible Costs, FWCED shall immediately
return such HOME CHDO Funds to Ne CITY.
C. The CITY will disburse HOME CHDO Funds, only to a CITYapproved
escrow company, for HOME eligible costs of the Pmiem as provided In this Article 6.
6.2 Condi Ions Precedent to Disbursement. The CITY shall not be obligated to
make or authorize any disbursements of HOME CHDO Funds or take any other action
under this Agreement unless the fallowing conditions are satisfied:
A. Them exists no Event of Default as provided in Article 10, nor any act,
failure, omission or condition that wlih the passage of time or the giving of notice or both
would constitute an Event of Default.
B. FACED has ensured Nat individual homebuyer(s) have submitted
evidence to the CITY that the HOME Funtls, in addition to the amounts loaned through a
primary home loan, are sufficient to purchase the Unit. p the CITY determines that said
funds are not sufficient b purchase the Unit, PACEO or the Individual homebuyegs) may
satisfy this condition by depositing the amount of the deficiency with the CITY or escrow
account, as applicable.
C. The CITY has approved the requested reimbursement of HOME
eligible PmjectrPmperty costs. I1
17 V
- -- --D. FWCED has acquired Insurance coverage and delivered to the CITY --
evidence of insurance as required in Article 9.
E. Upon CITY's reasonable request, FWCED has provided one CITY
copies of Project surety (payment and performance) bonds.
F. FWCED is curent with Its compliance of all reporting requirements sat
forth in this Agreement._ -
G. Upon CITY's reasonable request, FWCED bas delivered a Unit
construction schedule satisfactory to the CITY.
H. FWCED has provided the CITY with a written request for HOME Funds
(in CITY -approved Form), to be deposited In an established escrow account or othermse
provided to CITY as Instructed by CITY for reimbursement of HOME eligible Project costs.
and detailing such Eligible Casts applicable to the request.
I. The Certification required by Section 6.4 of this Agreement
J. The CITY has received, and continues to the have the right to
disburse, HOME Funds.
6.3 Request for and Disbursamentof HOME Pmaram Funds. PWCEDshall
request disbursement of HOME Funds using the CITY's Request for Disbursement of
Funds Form, or a similar documem FWCED shall only request a maximum of FHty Flue
Thousand Dollars ($55,000) In HOME Program assistance for each Project Unit, to be
deposited In an established escrow account or as otherMse directed by CITY. Additionally,
FWCED shall only request up to a maMmum of Five Hundred Fifty Thousand Dollars
($550,000) In HOME Program assistance for the Project. All requests should provide In
detail such Eligible Costs applicable to the request. All requests far HOME funds
disbursement shall be accompanied with the Certification required by Section 6.4 of this
Agreement.
6.4 FWCED Certification. FWCED shall submit to the CITY a written certification
Nat, as of the data of the Request for Disbursement:
A. The representations and wanantes contained In or Incorporated by
reference in this Agreement continue to be true, complete and accurate;
E. FNCED has carried out all of its obligations and Is in compliance with
all the obligations or covenants specified In this Agreement, to the eedent that such
obligations or covenants are required to have been carried out or are applicable at the time
of the request for the Disbursement;
G FWCED has not committed or suffered an sot, event, occurrence, or
circumstance that constitutes an Event of Default or that with the passage of fime orgiving
of notice or both would constitute an Event of Default; and
I
- D. The Disbursement -requested will be used solely for mimbursemem of --
HOME eligible costs and must be supported by the Itemized obligations that have been
property incurred and are property chargeable in connection with the Project
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the paNes agree as follows:
7.1 Pre -construction Meeting Regarding HOME Program Processes and
Procedures. CITY will schedule, and FWCED shall attend a meeting pril construction
with the CITY's Housing and Community Development Division forthe purpose of outlining
HOME program processes and procedures.
72 Commencement and Completion of Protect. FWCED shall commence and
complete construction In accordance with the Project Description end! Schedule. All Project
Construction shall be completed no laterthan December 29, 2008.
7.3 Contracts and Subcontracts. Consistent with Section 5.3, all demolition,
hazardous waste abatement, construction work and professional services for the Project
shall be performed by persons or entitles licensed or otherwise legally authorized to
perform the applicable work or si vdce in the State of Califomla and the City of Fresno.
FVJCED shall provide the CITY with copies of all agreements with any and all contractors
or subcontractors for this Project F CED shall require that each contractor and
subcontractor agreement contain a provision whereby the parly(ies) b Na agreement other
than FWCED agree to (1) notify the CITY Immediately of any event of default by FWCED
thereunder, (ii) notify the CITY immediately of the fling of a mechanic's lien, (III) notify the
CITY immediately of termination or cancellatbn of the agreement; and (N) provide the
CITY, upon the CITYs request, an Estoppel Certificate certifying that the agreement is In
full force and effect and FWCED Is not in default thereunder. FWCED agrees to noel the
CITY immetliately of termination or cancellation of any such agreemart(s), notice of filing of
a mechanic's lien, or breach or default by other party(les) thereto.
7.4 Damage to Property. To the ardent consistent with the requirements of any
permitted encumbrance, or as othervdw approved by the CITY, and subject to Article 9 of
this Agreement, I any building or Improvement constructed on the Property is damaged or
destroyed by an insurable cause, FWCED shall, at lts cost and expense, diligently
undertake to repair or restore said buildings and Improvements consistent with the original
Plans and Spectricatlons of the Project Unit. Such work or repair shall commence within
ninety (90) days after me Insurance proceeds are made available to FWCED and shall be
complete within one (1) year thereafter. All insurance proceeds mgacted for such damage
or destruction shall be applied to the cost of such repairs or resignation and,'rf such
Insurance proceeds shall be Insufficient for such purpose, FWCED shall make up the
deficiency.
7.5 Fees. Taxes and Other Levies. FWCED shall be responsible for payment of
all fees, assessments, taxes, charges and levies Imposed by any public authority or utility
company with respect to the Property, or the Project, and shall pay such charges prior to
delinquency. However, FWCED shall not be required to pay and dLcharge any such
charge so long as; (a) the legality thereof is being contested diligently and In good falm and
19
by appropriate proceedings, and (b) G requested by the CITY, FWCED deposits wMrthe --
CITY any funds or other farms 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.
7.6 Financin. FWCED shall promptly inform the CITY of any new financing or
funding, and FWCED shall provide the CDY copies of all agreements with any and all
Funding Sounesss for this Project FWCED shall require each agreementwith any and all
Funding Sources to contain a provision whereby the party(les) to the agreement other than
FWCED, agree to (i) notify the CITY Immediately of any event of default by FWCED
thereunder, (it) notify the CITY immediately of termination or cancellation of the agreement;
and (iii) provide the CITY, upon CITYs request, an Estoppel Certificate certifying that the
agreement is in full force and effad and PWCED is trot in default thereunder. FWCED
agrees to notify the CITY Immediately of termination or cancellation of any such
agreement(s) or receipt of notice of defadl thereunder. FWCED shall comply with all
obligations of any such agreement(s) with any and all Funding Sources until the respective
expiration of such agraement(s). In the event FWCED fails to comply with its obligations of
this section, the grant shall became Immediately due and payable as provided for In this
Agreement. This section shall survive expiration or teomlmation of this Agreement.
7.7 Identification Slpnme. Before the start of construction, FWCED shall place a
poster or sign, with a minimum four feet by fourfeet in sae, Identifying the City of Fresno,
Housing and Community Development Division, Planning antl Development Department as
a Project participant. The sign shall also include the CITYS Housing Logo, as well as the
Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a minimum of 4
inches. The posterlsign shall be appropriately placed, and shall be In place throughout the
Project construction,
7.8 Inspections. FW CED shall permit, facilitate, ant require Its contractors and
consultants to permit antl facilitate observation and inspection at the job site by the CITY
and other public authorities during reasonable business hour:, for determining compliance
with this Agreement, Including without limitation those biennial on-site Inspections required
of the CITY by 24 CFR 92.504(d).
7.8 Insurance and Bond . Upon CRYs reasonable request, FWCED shall
submit for CRY approval bonds, certificates and applicable en iomemenls for all Insurance
and bonds required by this Agreement In accordance with Article 8.
7.10 Mechanics Liens and Stop Notices. If any claim of lien Is filed against the
Property or a slap notice affecting any financbg, HOME Program Funds or Funding
Sources for the Project is served on the Cr7Y or any other third party in connection with the
Project, FWCED 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 Gen or stop notice by delivering
to the CRY a surety bond in suffdenl form and amount, or provide the CITY with other
assurance satisfactory to the CITY that Me claim of Gen or stop notice will be paid or
discharged.
A. If FW CED fails to discharge, bond or otherwise satisfy the CITY with
respect to any lien, encumbrance, charge or claim retained to In this Section 7.9, then, in t i
20
-addition toanyother right or remedy, -Me CITY may, but shall not be obligated M. discharge --
such lien, encumbrance, charge, or claim at FWCED expense. Alternatively, the CITY may
require FWCED to Immediately deposit with the CITY the amount necessary to satisfy such
lien or claim and any costs, gentling resolution thereof. The CIN may use such deposit to
satisfy any claim or lien that is adversely determined against FWCED. FWCED hereby
agrees to Indemnify and hold the CITY harmless from Ilabllky for such liens,
encumbrances, charges or claims together with all related costs and expenses.
7.11 Permits and Licenses. Upon CITY's reasonable request, FWCED shall
submit, for CITY approval, all the necessary permits and licenses required for
Commencement of Construction. As the CITY may reasonably request, FWCED, at Its
sole cost and expense, shell provide to the CITY copies of any and all permit approvals
and authorizations including plot plan, plat, zoning variances, sewer, building, and other
permits required by governmental authorities other than the CITY in pursuit of the
Affordable Housing Project, and for its stated purposes In accordance with all applicable
building, environmental, ecological, landmark, subdivision, zoning codes, laws, and
regulations. FWCED is responsible; at its sole cast aril expanse, to determine thelocation
of any utilPoes on the Property and to negotiate with the utility companies for and to relocate
the utilities, If any, as necessary to complete the Project.
7.12 Plans and Specifications. Before Commencement of Construction, FWCED
shall submit to the CRY, for its revew and approval, the final Plans and Specifications for
the Project. FWCED will construct the Homes In NII conformance with the Plans and
Specifications and modifications thereto approved by the CITY. FWCED shall obtain the
CITY's poor written approval for any modifications to the Plans and Specificatbms.
7.13 ProlectResponsibifides. FWCED shall be solely responsible for all aspects of
FWCED's conduct In connection with the Pmject, including but not limited to, the
applicability of and compliance with all local, state and federal laws Including, without
limitation, as to prevailing wage and public bidding requirements (the Cn Ys annual
resolution setting out par them wage rates Is available from the Cn Ys Construction
Management Division), the quality and sufabillty of Me work completed, the supervision of
all convected work, qualifications and financial conditions of and performance of all
contractors, subcontractors, consultants and suppllem. Any review or inspection
undertaken by Me CITY with reference to the Project is solely for the purpose of
determining whether FWCED is properly discharging its obligation tc the CITY, and shall
not be relied upon by FWCED or by any third parties as a warranty or representation by the
CITY as to the quality of the work completed for the Prood,
7.14 010111rk. FWCED shall ensure that construction of the proposed
Project, employs building materials of a quality suitable for the requirements of the Project.
FWCED shall cause completion of construction of the proposed Project on the Property In
full conformance with applicable local, state and federal laws, statutes, regalement, and
bulltling and housing codes.
7AS Relocationnand to the extent that construction of the proposed Pmject
results In the permanent or temporary displacement of residential tenants, homeowners or
businesses, FWCED shall comply with all applicable local, state and federal statutes and
regulations with respect to relocation planning, advisory assistance and payment of
21�. �V
monetary benefits. FWCED shall be solely responsible for payment of any relocallan- --
benefits to any displaced persons and any other obligations associated with complying with
said relocation laws.
7.18 Reporting Requirements. FVJCED shall submit to the CITY the following
Project reports:
A. From the dafa'Of the Commence of the Project, unfil issuance of the -
final Certificate of Completion, evidencing the construction of the last Project Unit, FWCED
shall submit a Quarterly Report, In a form approved by the CITY, which will Include, at a
minimum, the following information: progress of the Project and affirmative marketing
efforts (as applicable). The Quarterly Reports are due on each March 31", June 30°,
September 31P, and December 31`x, during said perlod.
B. Annually, beginning on the first day of the month following the CITYs
issuance of the final Certifimte of Completion, evidencing the cor stmclion of the last
. Pmject Unit, and continuing until the termination of the Agreement,. FWCED shall submitan
Annual Report to the CITY, in a form approved by the CITY. The Annual Report shall
include, at a minimum, the following Information: the date tha occupancy commenced,
certification from an officer of FWCED that the Project Is in compliance with the Affordable
Housing Requirements, and such other information the CITY may be required by law to
obtain. FWCED shall provide any additional Information reasonably requested by the
CITY.
G Annually, beginning on the first day of the month following the CITYs
issuance of the final Certificate of Completion, evidencing the construction of the lest
Project Unit, and continuing until the expiration of Me Agreement, FWCED shall submit
proof of insurance as required in Article B.
7.17 Schedulino and Extension of Time Unavoidable Delay In Performanceit
shall be the responsibility of FWCED to woodiness and schedule Me work to be performed
so that the Commencement of the Project and Issuance of the Certificate of Completions)
will take place In accordance with the provisions of the Agreement. The CITY, through its
Housing and Community Development Division Manager, may extend such time in writing
at its sole and absolute discretion, and upon written request of FACED, as follows:
A. The time for performance of provisions of the Agreement by either
party shall be Wended for a pence equal to Me period of any delay directly affecting Me
Project or this Agreement which Is mused by: war. Insurrection, strike or other labor
disputes, lockouts, dots, Floods, earthquakes, fires, casualties, acts of God, acts of a public
enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits
filed by third parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of time for any of Me above speed muses will be granted only
H written notice by the parry claiming such extension is sent to the other party within ten
(10) calendar days from Me data the affected party learns of the commencement of the
cause and Me resulting delay and such extension of time Is accepted by the other party in
writing. In any event, Me Project must be completed no later Man one hundred eighty
(180) calendar days after the scheduled completion date specified In this Agreement
notwithstanding any delay caused by that Included In this section.
22
- - - - B. Any and all extensions hereunder shall be by mutual written- - ---
agreement of the CITYs Housing antl Community Development Division Manager and
FWCED and shall not cumulatively exceed one hundred eighty (180) days.
7.18 Certificate of Completion. Upon completion of the construction of each
Project Unit, FWCED shall certify in writing to the CITY that construction of the Project Unit
has been completed in accordance with the plans and specifications approved by the CITY.
Upon completion of each Project Unit, FWCED shall also submit to the CITY a cost=
certifying final budget where FWCED shall identify the actual costs of construction of each
Project Unit. This final cost-certocation shall identify costs in IIna-item fomial, consistent
with the Project Budget. Upon a determination by the CITY that PLACED Is In compliance
with all of FWCED's construction obligations, as specified in this Agreement, for that
Project Unit, the CITY shall furnish, within 30 calendar days of a written request by
FW CED, a recordable Certificate of Completion for the Project(s) In the form attached
hereto as EXHIBIT E. The CITY will not unreasonably withhold or delay furnishing the
Certlflcate of Completion. If the CITY fails to provide the Certificate of Completion within
the.specifled time, it shell provide FW CED with a written statement hrdicating in what ---
respects FWCED 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
FW CED will need to take or what standards *0 will need to meet in omerto obtain the
Certificate of Completion. Upon FWCED taking the specified measures and meeting the
specified standards, FWCED will caddy to the CITY in writing of such compliance and the
CITY shall deliver the recordable Certificate of Completion to FWCED in accordance with
the provlslons of this section.
ARTICLE 8. PROJECT OPERATIONS
8.1 Operation of the Pro'ect. FWCED shall operate and/or manage the Project in
full cordormity with the terms of this Agreement.
8.2 Occupancy Reau'remenls. All Project Unft(s) shall be marketed and sold as
principal residence for single family owneraccupancyby low4ncome households. FWCED
shall comply with the Income targeting and Affordable Housing requirements of 24 CFR
92.217 antl 92254. No homebuyer shall take occupancy of any Home pnorto the close of
escrow vesting title In said homebuyer and recordation of the Loan Documents.
8.3 Fair Marketing Plan. Before marketing any Project Unit and at least sixty (60)
calendar days priorto the Completion of Construction of the Brat Pmject Unit, PWCED shall
submit to the CITY, for review and approval a plan, for marketing the Units) (•Fair
Marketing Plan"). The Fair Marketing Plan shall address In detali how FWCED or Its
designated management entity plans to market the availability of Unita to prospective wvr-
Income purchessre and how FWCED plans to certtly the eligibility of potential buyers. The
Final Marketing Plan shall contain detailed descrptions of policies and procedures wird
respect W buyer selecton(s). Topics to be covered In these procedures shall Include at a
minimum the following:
• Interviewing precedures for prospective buyers;
• Buyer references;
• Credit reports and checks;
23
• Depcsk amounts, purpose, use and refund policy. -
•
Employment/Income verification;
• Occupancy restrictions;
• Income limits;
• Homebuyer education requirements;
• Equal Housing Opportunity Statement;
• Restrictions on use of the premises and Program Income.
The Final Marketing Plan shall contain copies of all standardized fortes
associated with the above listed topics. FWCED shall abide by the terns of this Final
Marketing Plan, approved by the CITY, In marketing, managing and maintaining the
Housing.
8.4 Property Management With respect to the Project. FWCED shall comply
with the following:
A. Management Responsibilities. FWCED is specifically responsible for
all management functions with respect to the Project including, without limitation,
construction management, affirmative market property disposition and initial cedbcation
of household sae and income. FWCED shall be responsible for Project maintenance,
landscaping, routine and extraordinary repairs, replacement of capital items and security.
The CITY shall have no responsibility for such management of the Project.
8.5 Maintenance and Security. FWCED shall (i) at Its own expense maintain the
Homes In good condition, In good repair and In decent, safe, sanitary, habitable and
tenantable living conditions for the benefit of the purchasers, (ii) not commit or permit any
waste on or to be Homes, and shall prevent and/or rectify any physical deterioration of the
Homes; and (lip maintain the Homes In conformance with all applicable federal, state and
local laws, ordinances, codes and regulations and this Agreement, unfit such are sold to
low-income buyers.
8.8 Nondiscrimination. All of the Units shell be avallable for Initial purchase to
members of the general public who are income eligible. FWCED shall not illegally
discriminate or segregate in the development, consbuction, use, enjoymenL occupancy or
conveyance of any pad of the Affordable Housing Project or Property on Me basis of race,
color, ancestry, national origin, religion, sex, age, market status, family status, source of
inceme/rental assistance subsidy, physical or mental disability, Acquired Immune
Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), sexual orientation, or any
other arbitrary basis. FWCED shall otherwise comply with all applicable local, state and
federal laws concerning nondiscrimination In housing. Neither FWCED nor any person
claiming under or through FWCED, 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
FACED as to the Units or the housing project or portion thereof, shall contain covenants
concerning nondiscrimination consistent with this section. FWCED shall include
statement in all advertisements, notices and signs for availability of Units for rent W the
effect that FWCED Is an Equal Housing Opportunity Provider.°n[)
24
A. Nothing in this section Is intended to require FWCED to change the -
character, design, use or operation of the Project; or to require FWCED to obtain licenses
or permits other than loose required for the Project.
8.7 Project Home Sale Price. The inial sale price of each Home Is the total
amount paid by the homebuyer for the Home conveyance, inclusive of any first lien/ban
and exclusive of escrow fees, tide Insurance costs, brokers commission (If any), loan fees
or any other closing ortransacfbn costs. Notwithstanding the foregoing, the sale price of
each Home shall not exceed ninety five percent (95%) of the median purchase price for the
area as appiled under 24 CFR 92.254. The CITY shall approve in advance all
homebuyers. Homebuyer financing shall be based upon buyers ability to pay, consistent
with this Agreement.
8.8 Affordable Housing. The purpose of this Agreement is to use HOME Loan
Funds to ensure the affordability of tan (10) Project Units to be sold to low-income
households. FWCED (including asslgnees4nominees thereof) and those taking ownership
ofbhe Project Proper y under orihrough Itlthem, covenant and agree that the Project shall
constitute Affordable Housing by ensuring that the homes are sold to low -Income
households.
A. If a Project Unit initially built and sold to a ower -income household is
subsequently resold, etherise transferred andlor Is no longer the principal residence of
the individuals) who initially purchased the property as Affordable Housing, during the
Affordability Peril and without waiver or limitation, the erre HOME -Funded Loan
allocated to Unit shall be repaid bilrecaptured by the CrFrs HOME Program Trust Fund
and thereupon the balance of the Affordability CovenanHPeriod released. At Me anti of the
Affordability Period a total of Fifteen Thousand Dollars (515,00)) V411 be forgiven and the
principal due on Me Note shall be reduced by this amount
S. FWCED (including assigneesfneminees thereof) shall provide, aTrust
Deed Note, and other documents as may be required herein, securing the first sale of each
Individual HOME -assisted Unfi Property In the Project. Said Trost Deed Note shall be
security for the prevision of HOME Funding for the Project by the CITY. In the event of a
fellum to comply with the Affordability Restrictions, In addition to any and all other remedies
available to k, the CITY shag be entitled to enjoin sale of the Project Uns, damages net
being an adequate remedy at law for such breach.
C. In Me event that FWCED falls to comply with the Affordable
requirements, as applicable, the CITY shall be entitled to enjoin FACED from selling the
Units in the Project, as FWCED acknowledges that damages are not an adequate remedy
at law for such breach.
ARTICLE 9. INSURANCE AND INDEMNITY.
Without waiver of limitation, the parties agree as follows regarding FWCED Insurance and
Indemnity Obligations:
9.1 Insurance Coverage. Throughout the life of this Agreement, FWCED shall
Itself anchor through be consuitangs), assignee(s), nominea(s), contractors and „ ; 1
25 ✓i) I
subcontractors pay for and maintain in full face and effect all policy(ies) of insurance -
required hereunder with (an) Insurance company(les) either (1) admitted by the Califomia
Insurance Commissioner to do business In the State of California and rated not less Nan
'A -VII" In Bests Insurance Rating Guide, or (2) authorized by the CITYs Risk Manager.
The following policies of insurance are required:
1. BUILDERS RISK INSURANCE In an amount to provide
coverage to 10O percent (100%) of the replacement value of the Project including tarns of
labor and materials In place or to be used as part of the permanent construction, including
surplus miscellaneous materials and supplies Incidental to the work and such scaffolding,
staging, rowers, forms and equipment as are not owned or rented by the FWCED, the cost
of which is not included In the cost of work.
A. The above described policy of Insurance shall be endorsed to provide
an unrestricted thirty (30) day written notice in favor of the CITY, of policy cancellation,
change or reduction of coverage. In the event the policy Is due to expire during the tans of
_this Agreement, a new certificate evidencing renewal of such policy shall be providednot
less than fifteen (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,
FWCED or Its contractorsfsubcontractors, as the case may be, shall file with the CITY a
certified copy of the new or renewal policy and cerfi cates for such policy.
B. If at any time during the life of this Agreement or any extension,
FWCED falls to maintain the required insurance In full force and effect, all work under this
Agreement shall be discontinued Immediately, and the CIN shall not provide further
HOME funds to the Project until notice is received by the CIN that the required insurance
has been restored to full farce and effect and that the premiums therefore have been paid
for a period satisfactory to the CIN. Any failure to maintain the raqulre i Insurance, subject
to Section 10.2, notice and cure; shall be sufficient cause for the CIN to terminate this
Agreement.
9.2 Indemnity, FWCED shall indemnify, hold harmless and defend the CIN and
each of its officers, officials, employees, agenda and volunteers from any and all loss,
liability. Mee penalties, forfeitures, posts and damages (whether in contract, tort or strict
liability. Including but not limited to personal Injury, death at any time and property damage)
Incurred by the CIN, FWCED or any other person, and from any and all claims, demands
and actions in law or equity (including attorneys fees and litigation expenses), arising or
alleged to have arisen directly or Indirectly out of performance of this Agreement
FWCED's obligations under the preceding sentence shall apply regardless of whether the
CIN or any of Its officers, officials, employees, agents or volunteers ere passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the strive negligence or by the willful misconduct of the CIN or any of
Its officers, officials, employees, agents or volunteers.
A. If FWCED should contract all or any portion of the work to be
performed under this Agreement, FWCED shall require each contractor and subcontractor
to Indemnity, hold harmless and defend the CIN and each of its officers, officials,
employees, agents and volunteers in accordance with the terms of the preceding
paragraph. ,
)4
26
-- B. This section shall survive terminallon or expiration of this Agreement.
9.3 Property Insurance. FWCED shall pay for and maintain, in full force and
effect, throughout the remaining life of this Agreement, a pollcy(ies) of property Insurance
acceptable to the CITY, covering the Project premises, with limits reflective of the value of
the Project premises upon issuance of the Certificate of Completion, or substantial
completion of the Project referenced in this Agreement, including fire and Extended
Comprehensive Exposure (ECE) coverage In an amount, forth, substance, and quality as
acceptable to the CIiYs Risk Manager. At its request, the CITY shall be added by
endorsement as a toss payee thereon. Additionally, FWCED, or ifs CIN -approved lender,
shall ensure that appropriate property insurance is acquired by the individual homobul
9.4 Bond Obllaations. Upon the CITY's request, FWCED shall obtain, pay for
and deliver or rouse to be obtained, paid for and delivered good and sufficient surety
bonds from a corporate surety, admitted by the Calffomia Insurance Commissioner to do
business In Ina State of Call and Treasury- listed, In a form satisfactory to the CITY
--and naming the CITY as Co-Obilgee: _.
A. The 'Faithful Performance Bond' shall ha at least equal to 100% of
Owners estimated construction costs to guarantee faithful performance of the Project,
within the time prescribed, in a manner satisfactory to the CITY, and that all materials and
workmanship will be free from original or developed defects.
B. The "Material and Labor Bond" shall be at least equal to 100% of
Owner's estimated construction costs to satisfy claims of material supplies and of
mechanics and laborers employed for this Project. The bond shall be maintained by
FWCED In full force and effect until the Project Is completed and accepted by the CITY,
and until all claims for materials and labor are paid, and shall otherwise comply with any
applicable pmvisions of Chapter 7, Title 15, Part 4, Division 3 of the California CMI Code.
ARTICLE 10, DEFAULT AND REMEDIES
10.1 Events of Defauk. The parties agree gnat each of the following shall
constitute an'Event of Defauir for purposes of this Agreement:
A. FWCED's use of HOME Funds for costs other than Eligible Costs or
for uses not permitted by the terms of this Agreement;
B. FWCEO's failure to obtain and maintain the insurance coverage
required under this Agreement,
C. Except as otherwise provided In this Agreement, the failure of FWCED
to punctually and properly perform any other covenant or agreement contained In this
Agreement including without limdaticn the following: (1) FWCED'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) FWCED's use of defective or unauthorized materials or
defective workmanship In pursuit of the Project; (3) FWCED's failure to commence or
complete the Project, as specified in this Agreement, unless delay Is permitted under
Section 7.16 of this Agreement (4) the cessation of the Project for a period of more than n f
27✓��
— - fifteen (15) consecutive days (other than as provided at Section 7.16 of this Agreement'
prior to submitting to the CITY. pursuant W Section 7.17, certification that the Project is
complete; (5) any material adverse. change In the condition of FACED or the Project that
gives the CITY reasonable cause to believe that the Protect cannot be completed by the
scheduled completion date according to the terms of this Agreement (6) FWCED's failure
to remedy any deficiencies in record keeping or failure to provide records to the CITY upon
the QI 's request; (7) FWCED's failure to substantially comply with any fedemi, state or
- local laws or applicable CITY restrictions governing the Project, Including but not Roiled to
provisions of this Agreement pertaining to equal employment opportunity, nondiscrimination
and lead-based paint;
D. Any representation,warranty, or certificate given or furbished by or on
behalf of FWCED shall prove to be materially false as of the date of which the
representation, warranty, or certification was given, or that FW CED concealed orfalled to
disclose a material fact to the CITY, provided, however, that If any representation,
warranty, or certification that proves to be materially false is due merely to FWCED's
inadvertence, FWCED shall have a thirty (30) day opportunity after written notice.thenwf to
cause such representation, warranty, or certification W be true and complete in every
respect;
E. FACED shall file, or have filed against it, a petition of bankruptcy,
insolvency, or similar law, state or federal, or shall file any petition or answer seeking,
consenting to, or acquiescing In any morganimbon. arrangement, composition,
readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been
vacated within fourteen it 4) days; or shall be adjudicated bankrupt or insolvent, under any
present or future statute, law, regulation, under state or federal law, and such judgment or
decree Is not vacated or set aside within fourteen it 4) days;
F. FWCED's failure, inability or admission in writing of he Inability W pay
its debts as they become due or FWCED assignment for the benefit of creditors;
G. A receiver, trustee, or liquidator shall be appointed for FWCED or any
substantial part of FWCED's assets or propenes, and not be removed within ten (10) days;
H. The failure of FWCED to cause completion of the Protect prior to
December 29, 2006;
I. FWCED'a breach of any other material condition, covenant, warranty,
promise or representation containnd in this Agreement not otherwise Identified within this
Sectlon;
J. Any substantial or continuous breach by FACED of any material
obligation owed by FWCEO Imposed by any other agreement with respect to the financing,
development, constuctdn or operation of the Project, whether or not the CITY Is a party to
such agreement; and
10.2 Notice f Default lard Opportunity t Cum The CITY shall give written notice
to FWCED of any Event of Default by specifying (1) the nature of the avers or deficiency
giving dse to the default, (2) the action required to cum Me deficiency, If any action to cure r�
28
- - ie -possible, and (3) a date, winch shell not be less than the lesser of any time period --
provided in this Agreement, any time period provided for in the notice, or thirty (30)
calendar days from the data of the notice, by which such deficiency must be cured,
provided that if the specified deficiency or default cannot reasonably be cued within the
specified time, with the CITYs written consent, FWCED shall have an additional
reasonable period to cure an long as it commences cure within the specified time and
thereafter diligently pursues the are in good faith.
10.3. Remedies Upon an Event of Default. Upon the happening of an Event of
Default by FW CED and a failure to cure said Event of Default within the time specified, the
CITYs obligation to disburse HOME Funds shall terminate. The CITY may also at Its
option and without notice institute any action, suit, brother proceeding in law, In equity or
otherwise, which it shall deem necessary or properfor the protection of its Interests antl
may without limitation proceed with any or all of the following remedies in any order or
combination that the CITY may choose In fits sole discretion:
v_ A. Terminale this Agreement Immediately upon written notice lo-FWCED;
B. Bring an action In equitable relief (1) seeking spec performance by
FWCED of the terms and conditions of this Agreement, and/or (2) enjoining, abating or
preventing any violation of said terms and conditions, andfor (3) seeking declaratory relief;
and
C. Pursue any other remedy allowed by law or in equity or under this
Agreement.
ARTICLE 11. GENERAL PROVISIONS.
Without waiver of limitation, the parties agree that the following general provisions shall
apply In the performance hereof.
11.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made In writing and signed by the parties hereto.
11.2 Attomev s Fees. If either party Is required to commence any proceeding or
legal action to enforce or Interpret any tend, covenant or con fidon of this Agreement, the
prevailing party will be entitled to recover from the other party He reasonable attomeys tees
and legal expenses.
11.3 Binding on All Succeescre 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 Me parties hereto, and their respective nominees, heirs, successors,
assigns, and legal representatives.
11.4 Counterparts. This Agreement may be executed In counterparts, each of
which when executed and delivered will be deemed an original, and all of which together
will constitute one Instrument. The execution of this Agreement by any party hereto will not
become effective until counterparts hereof have been executed by all parties hereto.
H I�
29
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nopany act
of the CITY or of FWCED, or of any other person, shall in and by itself be deemed or
construed by any person to create any relationship of third parry beneficiary, or of principal
and agent, of limited or general partnership, or of joint venture.
11.6 Discretionary Govemmarr al Actions. Certain planning, land use, inning and
other permits and public actions required In connection with the Project inclutling, without
limitation, the approval of this Agreement, the environmental review and analysis under
NEPA, CECA or any other statute, and other transactions contemplated by this Agreement
are discretionary government actions. Nothing in this Agreement obligates the CITY or any
other governmental entity to grant final approval of any matter described herein. Such
actions are legislative, quasi-judicial, or otherwise discretionary in nature. The CITY cannot
take action with respect to such matters before completing the environmental assessment
of the Project under NEPA, CEOA and any other applicable statutes. The CITY cannot and
does not commit in advance that ft will give final approval to any matter. The CITY shall not
be liable, In contract law or equity, to FWCED or any of He execution, administrators,
transferees, successors-in-tnterest or assigns for any fallure of any governmental entlty W
grant approval on any matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written.
11.6 Entire Agreement. This Agreement represents the entire and Integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
11.9 Exhibits. Each exhibit and attachment referenced In this Agreement Is, by the
reference, Inwnporeted into and made a pad of this Agreement.
11.10 ExperisesincurredUponEventlyflDefialuR FWCED shall reimburse the CITY
for all reasonable expenses and costs of callectlon and enhorcertrenp Including reasonable
etlomey's fees, Incurred by the CITY as a result of one or mare Events of Default by
FWCED under this Agreement
11.11 Govemina Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govem all aspects of this Agreement,
Including execution, Interpretation, performance, and enhancement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, Califpmla.
11.12 Headings. The headings of the anOcles, sections, and paragraphs used N
this Agreement are for convenience only and shall not be read or construed W affect Me
meaning or construction of any provision.
11.13 Interpretation. This Agreement in Its final form is the real of the combined
efforts of the parties. Any ambiguity will not be construetl in favor or against any party, but
rather by construing the terms In accordance with their generally accepted meaning.
11.14 No Assignment or Succession. Except as maybe otherwtse expressly
provided! by this Agreement, neither this Agreement, nor any Interest of FWCED In, under,
Bit"
—ef to this Agreement, or the Project, maybe assigned or transferred by FWCED withmut the
prior written consent of the CITY, which consent shall not be unreasonably withheld or
delayed. Any assignment without consent is null and void.
11.15 No Third -Party Beneficiary No contractor, subcontractor, mechanic,
matenalman, laborer, vendor, or other person hired or retained by FWCED shall be, nor
shall any of them be deemed to be, third -parry beneficiaries of this Agreement, but each
such person shall be deemed to have agreed (a) that they shall look to FWCED 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 and such person, each such person shall be deemed to have
waived in writing all right to seek redress from the CIN under any circumstances
whatsoever.
11.16 No Walver. Neither failure nor delay on the part of the CITY In exercising any
right under this AgmemenCshall operate as a walver 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 FWCED therefrom shall be effective unless the same shall be in writing, signed on
behalf of the CITY by a duly authorized oBicerthereof, and the same shall be effective only
In the specific Instance for which It Is given. No notice to or demand on FWCED In any
case shall entUle FWCED to any other or further notices or demands in similar or oMer
circumstances, or constitute a waiver of any of the CITY§ night to take other or further
action in any circumstances without notice or demand,
11.17 Nonmliance. FWCED hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in hn
manner has it relled on the CITY, it agents, employees or attorneys in entering into this
Agreement.
11.18 Notice. Any notice to be given to either party under Ne terms of this
Agreement shall be given by certified United States mail, postage prepaid, return recelpt
requested, at the addresses speed below, or at such other addresses as may be
specified In writing by the partles.
If to the CIN: City of Fresno
Planning and Development Department
Housing and Community Development Division
Attn: Housing Manager
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
If to FWCED: Keith Kelley, ExecuUve Director
Fresno West Coalition for Economic Development
302 Weal Fresno Street, Suite 212
Fresno, CA 93705
11.18 Precedence of Documents. In the event of any conflict behveen Me -body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of MIs Agreement will control.
11.20 Recording of Documents. FWCED agrees to cooperate with the CITY and
execute any documents required, promptly upon the CITYs request, Me Dead of Trust,
and any other documents/instruments that the CITY requires to be recorded, in the Official
Records of Fresno County, California, consistent Wth this Agreement
11.21 Remedies Cumulative. All powers and remedies given by this Agreement
shall be cumulative and in addition to those otherMse provided by law.
11.22 Severability. 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 previsions hereof or thereof.
I/
11
KK
IN WITNESS WHEREOF, the parties have executed this Agreement in Fresco,
California, the day and year first above vrtitlen.
CITY OF FRESNO, a Municipal Corporation
Byit
JON RUIZ c
Assistant City Manager
(Attach nobry cerci de of ecknowedgmann
Date: C. /I6 to s.
ATTEST: APPROVED AS TO FORM:
REBECCA E. KLISCH HILDA CANTO MONTOY
City Cie& - City Attorney
By: BY:
Deputy p I sistant
Date: —0#09 Dabs : ei - o- a r
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT
a California non roID public benefit corporation.
By.
KEI H A. KEL EY
Executive Officer
(Atlachhnotary wrVicate of eckn odgmant)
Deter
Attachments:
EXHIBIT
PROPERTY DESCRIPTION
EXHIBIT B:
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C:
EXEMPLAR DECLARATION OF RESTRICTIONS
EXHIBIT D:
BUDGET
EXHIBIT E:
EXEMPLAR CERTIFICATE OF COMPLETION
EXHIBIT F:
EXEMPLAR NOTE
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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County of Fresno1
On June 6. 4005 before me, Maureen L. Estates, Notary Public
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Description of Attached Document
TXIe or TytR Ol Coamene HOME Program SEND Agreement / South Lure Estates
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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EXHIBIT A: PROPERTY DESCRIPTION
The Property Includes an approximately 2.5 acre site at the southeast comer of Clara and
North Avenue In Fresno, California. The parcel will be subdivided by FW CED at Its sole
_. expense u include len contiguous parcels for the development of single family affordable
housing.
Legal Description
APN: 329-020-07t
The land referred to herein is situated in the City of Fresno, County of Fresno, State of
California, and Is described as follows:
The west half of the west hag of Lot 65 of Central California Colony, according to the map
recorded In Book 2, Page 1 of Plats, In the Office of County Recorder of said County.
EXCEPTING THEREFROM the following described parcels:
(a) The south 206 feet thereof:
(b) That portion thereof described as follows: BEGINNING W the northeast comer of sald
west half of the west hall of said Lot 65; thence west along the north line of said lot, a
distance of 115 feet; thence at right angles, a distance of 156 feel; thence at a right angle
east and parallel to the north line of said IM 65, a distance of 115 feet; thence at a right
angle north sung the east tine of said west half of the west hall of said lot 65, a distance of
158 feet to the POINT OF BEGINNING.
(c) That potion thereof desuibed as follows: BEGINNING at a point on the north line of
saitl Lot 65, a distance of 115 feet west from the norneast comer of said west hall of the
west quarter of said Lot 65; thence wast along the north tine of said Lot 85, a distance of 85
feet; thence at right angle south, a distance of 150 Net thence at a right angle east and
parallel to the north line of said Lot 65, a distance of 95 feet, thence at a right angle north, a
distance of 150 feel to the POINT OF BEGINNING.
For the purposes of this description, the north line of said Lot 65 is taken to be 30 feet
south of the north line of the northeast quarter of Section 28, Township 14 South, Range 20
East, Mount Diablo Base and Meridian, and Ne seat line of saitl Lot 65 Is taken to be 30
feet west of the east line of said northeast quarter.
i
Page 1 of Exhibit A —/
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The Project will Include the construction of ten (10) single family homes for occupancy by low-
income families. FWCED,athe sole cost will parcel¢e the land, pay for on-site and off-site
Improvements, construct, market and sell the Homes. Consistent with the attached Budget,
FW CED will fund all pre-censauction and construction costs with non -HOME Pmgrem Funds.
FWCED, or IN CITY -approved lender, will qualify all households. Upon CIN approval and
consistent with the Agreement to which this Exhibit Is an attachment, the Homes shall be
sold to the low-income families.
HOME Funds will ba made available through the sales escrow or as otherwise directed by
CITY as reimbursement for HOME eligible costs not to exceed Fifty -Five Thousand Dollars
($55,000), as needed, for the affordability of the purchase of each Home. At the expiration of
the Affordability Period, $15,000 will be forgiven from the principal due on the Note(s) for each
Project home. Maximum total HOME funding for the Project will be Five Hundred Fifty
Thousand Dollars ($550,000).
II. PROJECT SCHEDULE
A. Commencement of Construction: Not later than 60 days following
parcel map approval by CITY.
B. Completion of Construction: Not later than December 29, 2006.
C. Completion of Home Sales: Not later than March 3r, 2007.
Parva 1 of Fvhi6M R - I
EXHIBIT C: EXEMPLAR DECLARATION OF RESTRICTIONS
RECORDING REQUESTED BY AND for the
beneft of the City of Fresno and is exempt from
tine payment of a recording fee In accordance with
Government Coda Sections 6103 and 27383.
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
Planning and Development Department
Housing and Community Development Division
Atte: Housing Manager
2600 Fresno Street, Rm. 3076
Fresno, CA 93721-3505
Title Order i Escrow No
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ('Declame n"), is executed as of this
by I 1, ("Declarant') in favor of the City of Fresno, acting by and through
its Planning and Development Department, Housing and Community Development Division,
("CIN).
WHEREAS, Declaimed is the owner of the real estate In the count' of Fresno, state of
California, consisting of APN [, which Is mom particularly described in Exhibit "A",
attached hereto and made a part bereof(the 'Property); and
WHEREAS, Pursuant to a certain HOME Investment Partnerships Program
Community Development Housing Organiretlon (CHDO) Agreement dated [—] Incorporated
herein, ("HOME CHDO Agreement") and Instruments referenced therein, Declarant agrees to
utillae and City agrees tc provide certain HOME Program CHDO Funds from the United
States Department of Housing and Urban Development, tc Declarant for certain affordable
housing (the "Pro)ei upon the Property to be sold and malmained as affordable to low
Income families, subject to the terms and conditions set forth in Me HOME CHDO
Agreement; and
WHEREAS, the HOME Program regulations promulgated by HUD, Including without
Ilmostlon 24 CFR Section 91 and the HOME CHDO Agreement Impose certain
affordability requirements upon property beneRed thereby, which affordability restrictions
shall be eMonceabte for a [30] year period; and
Page 1 of Exhibit C
WHEREAS, these resvictions are intended to bind all purchasers and their
successors.
NOW THEREFORE, Declarant declares that the Project Hama upon the Property Is
held and will be held, transferred, encumbered, used, sold, conveyed and occupied subject to
the covenants, restrictions, and limitations set forth In this Deciaraficn, all of which are
declared and agreed to be in furtherance of the plan for the construction, sale and occupancy
of the Home upon the Properly. All of Ne restrictions, covenants and limitations will run with
the land and will be binding on all parties having or acquiring any right, this or Interest in the
Project Home upon the Property or any part thereof, will Inure to the benefit of the future
Owners of the Home or any part thereof, the Untied States and the Chy, and will be
enforceable by any of them. Any purchaser under a contract of sale covering any right, file
or interest in any part of the Project Home upon the Property, by accepting a dead of 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 of [301 years constituting the Affordability Period.
1. Declarations. Declarant hereby declares that the Home upon the Property is
and shall be subject to the covenants and restrictions hereinafter sat forth, all of which are
declared to be in furtherance of the Project and the HOME CHDO Agreement Project, and
are established and agreed upon for the purpose of enhancing and protecting the value of the
Project Property and in consideration for City entering into the HOME CHDO Agreement with
Declarant. All terms not otherwise dented herein shall have the meaning ascribed to such
term In the HOME CHDO Agreement.
2, Restrictions. The following covenants and restrictions on the use and
enjoyment of the Project Home upon the Property shall be in addition to any other covenants
and restrictions affecting the Project Property, and all such covenants and restrictions; are for
Me benefit and protection of City, and shall ran with the Home upon the Property and be
binding on any future owners of the Pmject Home upon the Property and inure to the benefit
of and be enforceable by City. These covenants and insulations are as follows:
a. Declarant for melt and its successors) on title covenants and agrees
that from the Project Completion Canals) until the estimation of the Affordability Period it shall
cause the Project Homes upon the Property to be used as Affordable Housing. Declarant
further agrees to file a recordable document setting forth the Project Completion Dates) and
the Affordability Period when determined by the City. Unless otherwise provfded in the
HOME CHDO Agreement, the term Affordable Housing shall include, without limitation,
compliance with the following requirements:
Nondiscrimination. There shall be no discrimination against nor segregation of
any person or group of persons on account of rece, color, creed, religion, sex, marital status,
national origin, ancestry, or handicap In the sale, transfer, use, occupancy, tenure, or
enjoyment of any of the Project Property, nor shall DeGarant or any pawn claiming under
the Declarant, establish or permit any practice of discrimination or segregation with reference
Page 2 of Exhibit C tX' y2
to the selection, location, number, use or occupancy of owners or vendees of the Project
Property.
Principal Residence. Each Home constituting the Project upon the Property
shall be sold only to natural persons, who shall occupy the home as the purchasers principal
residence. The foregoing requirement that the purchaser of each Home constituting the
Project Property occupy the home as the purchasers principal residence does not apply to
persons, other than natural persons, who acquire the Project Property or portion thereof by
foreclosure or deed in Ileo of foreclosure; or (ii) HUD qualified entities that acquire the Project
Property or portion thereof, with the consent of the City.
Homeowner Income Requirements. The Homes oonstlWting the Project upon
the Pmpeny and each of them may be conveyed only to (a) natural person(s) whose annual
household income at the time is not greater than eighty percent (80%) of the most recent
annual median Income calculated and published by HUD for the, Freano Metropolllen
Statistical Area applicable to such household's she.
Recapture Requirements. Should each Home constituting the Project upon the
Property not continue to be the principal residence of the family purchasing the
Property/Home as affordable housing for the duration of the periotl of affordability then the
entire financial assistance provided by City and allocated to the Property/Name Including all
HOME Program Funding assistance shall Immediately come due and must be repaid
to/recaptured by the Ciys HOME Program Trust Fund and thereupon the balance of the
affordability restrictions shall be released. The affordability restrictions also may terminate
upon occurrence of any of the fallowing terminalbn events: foreclosure, transfer in lieu of
foreclosure or assignment of an FHA insured mortgage to HUD, Provided the affordability
restncticns shall be revived according to the original terms if, during the original affordability
period, the owner of racom before such termination events obtains an ownership Interest In
the housing. The City shall be possessed of a fired right of refusal to purchase the Home
before foreclosure to preserve affordability.
Item (a) above is hereinafter referred to as the Covenant and Restrictions.
3. Enforcement of Restrictions. 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. Acceptance and Ratification. All present and future owners of the Project Home
upon the Property and other persons claiming by, through, or under them shall be subject to
and shall comply with the Covenant and Restrictions. The acceptance of a dead of
conveyance to the Project Property shall constitute an agreement that Me Covenant and
Restrictions, as may be amended or supplemented from time to lime, 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 hind any person having at any time any Interest
Page 3 of Exhibit C
or estate In the Project Property, all as though such Covenant and Restriction was racked
and stipulated at length In each and every deed, conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer In
lieu of foreclosure, or assignment of an FHA -Insured mortgage to HUD, the Affordability
Period shall be terminated If the foreclosure or other transfer 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 termination of low-income affordability.
However, the requirements with respect to Affordable Housing shall be revived according to
their original terms, If during the original Affordability Period, the owner of record before the
foreclosure or other transfer, or any enft that Includes the former owner or those with whom
the former owner has or had formerly, family or business has, obtains an ownership interest
in the Project or the Property, the Affordability Period shall be revived according to its ongmal
terms.
5. Benefit. This Declaration shall con wgh and bind the Pmjed Homes upon the
Property for a term commencing an the dale this Declaration is recorded In the ice 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 Dedarabon shall In no event he deemed a waiver of the same, or of the right to
enforce the same at any time or from time to Unna thereafter, or an estoppel against the
enforcementthersof.
fi. Coats and Attorney's Fees. In any proceeding arising because of failure of
Declarent or any future owner of the Project Homes upon the Property to comply with the
Covenant and Restrictions required by this Declaration, as may be amended from time to
time, City shall be entitled to recover Its costs and reasonable aflomeys fees Incurred in
connection with such default or fallum.
7. Waiver. Neither Dedarant nor any future owner of the Project Homes upon the
Property may exempt hell from liability for failure to comply with the Covenant and
Restrictions required in this Declaration.
S. Severabllity. The Invalldtty of the Covenant and Restrictions or any other
covenant, resbiction, condition, limitation, or other provision of this Declaration shall not
Impair or affect in any manner the validity, enfomeabiilty, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the coMed clearly requires the contrary, be deemed to refer to and Include all
genders. Words In the singular shall Include and refer to the plural, and vice versa, as
appropriate.
10. Interpretation. The captions and tMes of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are Inserted herein for ease
Page 4 of Exhibit C
and convenienceof reference only and shall not be used as an aid In Interpreting or
construing this Declaration or any prevision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prlorwritten 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, State of California.
13. Capitalized Terns. All capitalized terns used in this Declaration, unless
otherwise defined hemin, shall have. the meanings assigned m such terms in that certain
HOME CHDO Agreement by and between Declarant and City, of even date.
14. Headings. The headings of the articles, sectors, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed w affect the meaning
or construction of any prevision.
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on
the data first written above.
"DECLARANP
Date:
Page 5 W Exhibit C \
EXHIBIT D: BUDGET
Page 1 of Exhibit D
Total Priveie Funds
HOME
Funds
LAND
$40,000.00
SOFT COSTS
Permit and Fear
$71,866.0
ArchitecNre antl E ineerin
$50.225.00
le al
$10000.00
Taxesllnsurence
$15,W000
OOer
$15.400.00
Total Soft Costs
$162481.00
HARD COSTS
Site PreplOnsling
$6,500.00
Off Site Im mvements
$82,642.00
On See Im m ments
$82,5W.00
Direct Constructbn
1 $8%113.00
Conon encies
$90,W0.00
Conbaclor Overhead
$88.611.30
mer
$62,500.00
Total Herd Coats
$1.309,W.30
DEVELOPER FEE
$14]235.]3
CONSTRUCTION
FINANCING FEES
$30250.00
OTHER
SubtllWslonffltlelWnsultlrg
Fees
$18AN.w
MahsUng and Sales
$W,M.W
Tow Oliver Casts
$108600.00
TOTAL PENSES
$1.788,443.03
PROJECTED SALES
PRICE
7800 OW.00
PERMANENTFINANCING
$1,80.M0 00_ffl$1�25�00WWM�=.00
Page 1 of Exhibit D
EXHIBIT E; EXEMPLAR CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Cay of Fresno
Department of Planning and Development
Housing and Community Development Division
2600 Fresno Slreat Room 3076
Fresno, CA 93721-3605
Adenine: Housing Manager
This Certificate of Completion Is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government Gods
Section 6103. 1 _ _.
APN:
City of Fresno
By
Nick P. VoAno, Director
Planning and Development Departrnent
Page 1 of Fxhibk E l
CERTIFICATE OF COMPLETION
Recitals
A. By a HOME Investment Partnerships Program CHDO Agreement dated
2005, ('HOME CHDO Agreement") between the City of Fresno, a municipal corporation
("CIN), and Fresno West Coalition for Economic Development, a California non-profft public
benefit corporation, ("FWCED'), FWCED agreed to develop ten (10) affordable single family
homes (-ProjecC), upon the premises legally described in EXHIBIT A attached to the HOME
CHDO Agreement as amended from time to time, made a part hereof by this reference, (the
'Property') for the sale toloccupancy by low-income homebuyers, with the assistance of
HOME funds while meeting the affordable housing. Income targeting and other requirements
of 24 CFR 92 according to the terms and condition of the HOME_Agreement and the Loan
Documents and other document instruments referenced therein.
B. The HOME CHDO Agreement or a memorandum of it was recorded on
2005 as Instrument No. _ In the Official Records of Fresno County,
California.
C. Under the terms of the HOME CHDO Agreement, after FWCED completes the
construction of a Project Unft, FWCED may ask CITY to record a Certificate of Completion.
D. FWCED has asked CITY to famish FWCED with a recordable Cedficate of
Completion.
E. The CITY's issuance of this Certificate of Completion Is conclusive evidence that
FWCED has completed construction the PmjecttiPraject Unit as set forth in the HOME CHOO
Agreement.
NOW THEREFORE:
1. CITY certifies that FWCED commenced the construction of the Project
Unit on , 2005 and completed the construction work on the Project
Unit on 2001-1. and has tion so In full compliance with the
HOME CHDO Agreement.
2. This Certificate of Completion is not evidence of FWCED 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 Pmlect.
3. This Certificate of Completion is not a notice of completion as defended to
In California Civil Code Section 3093.
l/v
Page 2 of Exhibit E
Agreement4. Nothing contained herein modifies any provision of the HOME
.
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of . 200(—L.
CITY OF FRESNO
By:
Nick P. yovino, Director
Planning and Development Department
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
cy: By
Deputy AssistanVDeputy
Date: Date:
CONSENT OF OWNER
Owner Name: Ower Name:
By signing below, the owners) of the property consents) to recording this Certificate of
Completion against the Property desralbed herein.
(aaeMrMerrw "NadxM Mang (IIDmmbrvwMabdaY�W�plwar
By PROJECT DEVELOPER
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT., a California non-profit
public benefit corpondon, the developer of the Property, consents and agrees that all
construction covenants of the Agreement have been met.
By:
T�mury m,tlr ea an�w.wan,.d
Page 3 of Exhibit E
EXHIBIT F: EXEMPLAR NOTE
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
I$ 1 Fresno, California ( 1,
200[—]
For value received, the undersigned, I 1, a[ i ("Bonowef), promises
to pay to the order of the Cily of Fresno, a California municipal corporation, ('Lender'), the
sum of I 1 Dollars, ($ 1, payable without Interest; all due ark
payable on or before the eadier of (1) Borrowers sale or other transfer of that Affordable
Housing Unit referenced in the parties' HOME Investment Partnerships Program Community
Development Housing Organization Agreement dated I 1("HOME CHDO
AgreemenC) to which this Promissory Note relates, and (II) Borrowers failure to maintain as
his/her principal residence that Affordabte Housing Unit referenced In the parties' HOME
COHO Agreement, on which date (Watunty Date") the unpad principal balance (Interest free)
together with unpaid penalties or late charges where applicable Hereon shall be due and
payable, along with attorney's fees and mets of collection, and without relief from valuation
and appraisement laws, provided that if Borrower fully complies with the terms of the HOME
CHDO Agreement, Loan Documents (Including Ibis Promissory Note), HUE) regulations at 24
CFR Part 92 for 30 years following the date the Lender Issues the Project Certificate of
Completion, then Fifteen Thousand ($15,000) of said principal due shall be forgiven and this
Note canceled to said extent, and the trustee instructed to reconvey mo one the securing
Dead of Trust.
All capbalized terms used in this Note, unless otherwise defined, will have the respective
meanings specified In the HOME CHDO Agreement. In addftlon, as used in this Note, the
fallowing terms will have the following meanings:
Business Da v means any day other than Saturday, Sunday, or public holiday or the
equivalent for banks generally under the laws of Caffi mia. Whenever any payment to be
made under this Note Is stated to be due on a day other than a Business Day, that payment
may be made on the next succeeding Business Day. However, it the extension wood cause
the payment to be made In a new calendar month, that payment will be made on the nand
preceding Business Day.
Maturity Date means the date above defined. The Affordability Period begins an the date the
Lender issues the Project Carl ficsts of Completion.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trost, Security
Agreement and Fixture Filing with Assignment of Rents on real estate in Fresno County,
California, that provides for acceleration upon stated events, dated as of the same data as
Page 1 of E4bibit F /
this Note, and executed in favor of and delivered to the Lander ('Deed of Trost"), Insured as a
not wase than 2"0 Position lien on the Property.
Time is of the essence. It will be a default under this Note d Borrower defaults under the
HOME CHDO Agreement, defaults under any other Loan Documents, or tt Borrower fails to
pay when due any sum payable under this Note. In the event of a default by Borrower, the
Borrower shall pay a late charge equal to the lesser of 2% of any outstanding payment or the
maximum amount allowed by law. All payments collected shall be applied first to payment of
any costs, fees or other charges due under this Note or any other Loan Documents then to
the interest and then to principal balance. On the occurrence of a default or on the
occurrence of any other event that under the terms of the Loan Documents give Has to the
right to accolerete the balance of the Indebtedness, than, at the option of Lender, this Note or
any notes or other instruments that may be taken in renewal or eidenslon of all or any part of
the Indebtedness will Immediately become due without any further presentment, demand,
protest, or notice of any kind.
The Indebtedness evidenced by this Nate may, at the option of the Borrower, be prepaid in
whole or In part 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 interest and then to the principal balance.
All Loan payments are payable in lawful money of the United States of America at any place
that Lender or the legal holders of this Nate may, from time to time, In writing designate, and
in the absence of that designation.
Borrower agrees to pay all costs Including, without limbtion, attorney fees, incurred by the
holder of this Note in endoming payment, whether or not suit is filed, and Including, without
limitation, all costs, attorney fees, and expenses incurred by the holder of this NOW in
connection with any bankruptcy, reorganization, arrangement, or other similar proceedings
involving the undersigned that in any way affects the exercise by the holder of this Nate of Its
rights and remedies under this Note. All costs Incurred by the holder of this Note In any
action undertaken to obtain relief from the stay of bankruptcy statutes are specifically
Included In those costs and expenses to be paid by Borrower. Borrower will pay to Lender all
attorney fees and other coats referred to In this paragraph on demand.
Any notice, demand. or request relating to any metier set forth herein shall be in writing and
shall be given as provided in the HOME CHDO Agreement.
No delay or omission of Lender in exercising any right or power easing in connection with any
default will be continued as a waiver or 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 NOW, but rather wilt
be deemed to have been made In pursuance of this Note and not In modification. No waiver
of any default will be construed to be a walver of or acquiescence in or consent to any
preceding or subsequent default -
Page 2 of Exhibit F
The Deed of Trust provides as follows:
DUE ON SALE -CONSENT BY BENEFICIARY. Beneficiary may, at its option, declare
Immediately due and payable all sums secured by this Deed of Trust upon Me sale or
transfer, without the Beneficiarys prior written consent of all or any part of the Property, or
any. interest in the Property. A "sale or transfer means the conveyance of the Property or
any right, title or Interest therein; whether legal, beneficial or equitable; whether voluntary or -:-
involuntary; whether by outright sale, deed, installment sale conimct, land contract, contact
for dead, leasehold interest with a ten greater than three (3) years, leas ption contract, or
by sale, assignment, or transfer of any beneficial Interest in or to any land trust holding lftle to
the Property, or by any other method of conveyance of land interest. If any Trustor Is a
corporation, partnership or limited liability, company, transfer also Includes any change in
ownership of more than twenty-five percent (25%) of the voting stock, partnership interests or
limited liability company interests, as the case may be, of Trustor. However, this option shell
not be exercised by Beneficiary If such exercise is prohibited by applicable low.
Lender may transfer this Nate and deliver to the transferee all or any part of the Property than
held by It as security under this Note, and the transferee will then become 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 velli retain all rights and powers given by this Note
with respect to Property not transferred.
If any one or more of the provisions in this Note is held to be invalid, illegal, or unenforceable
in any respect by a court of competent Jurisdiction, the validity, legality, and enforceability of
the remaining provisions will not in any way be affected or impaired. This Note Ali be binding
on and Inure to the benefit of Borrower, Lender, and their respective successors and assigns.
Borrower agrees that this Note will be deemed to have been made under and will be
governed by the laws of California in all respects, Including matters of construction, validity,
and performance, and that none of Its terms or provisions may be waived, altered, modified,
or amended except as Lender may consent to in a writing duly signed by Lender or its
authorized agents.
In witness whereof, Borrower has caused this Promissory Note to be executed by Its
authorized agent as of the date and year first above written.
Borrower
Borrower
By: Date:
Name:
Title:
(Attach notary certificate of acknowledgment)
Page 3 of Exhibit F
Reeotded at (he Reguert of
vW lVwn Recorded Regan in
City ofFrtmo
PumeWt =d lk Iwvnem 0epammmi
Housing and Commwuy l),vebpmem Division
Attention: Howiny Marrow,
2"£remosomo F 3076
IIIIIItcIIIIIIIIIIIIIIIIIIIIIIIIIII
FRESNO County Re
order
Robert C4ermr
DOC 2007-0238810
0 138810
Thor "no. ML 19.
2001 14:10:34
TLI Pd $0.N Nbr- 02559213
APR/RI/1-561
Fresno, ('A 93M 305
ls>ncsAaovernrs uxc snFaRconow srrseoxan
This Amendment No. One to Agreement is recorded ie the RXIM t and for then benefit of the City
Of PmUM cod is exempt from the payment Of a reomilag fee pursuam to Govmmucnt Cade
Section 6103
q?cbrAutg CONCURRENTLY
By: �? I HEREWITH
A R
Asvat tCi Manager
Dare: 6 t
AMENDMENT NO. ONE TO
QTY OF FRESNO HOME PROGRAM CHDO AGREEMENT
by and behveen
CITY OFFRESNO,
a municipal corpomfion
and
FRESNO WEST COAMION POR ECONOMIC DEVELOPMENT
a Califomia Don -profit public benefit empomfien
mounting
"South Clara Estates"
Southeavt Comer of Clam and North Avenues - APN: 329-020-071
An Affmdable Single Family Homes Project
Exhibit B
AMENDMENT NO. ONE TO
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT"
'SOUTH CLARA ESTATES'
This Amendment No. One to the HOME Investment Partnerships Program
Community Housing Development Organization (CHDO) Agreement, hereinafter
referred to as "Amendment No. One', is made and effective this
May 15 2007, by and between the CITY OF FRESNO, a municipal corporation, acting
through its Planning and Development Department- Housing and Community
Development Division (hereinafter refereed to as the "CITY"), and FRESNO WEST
COALITION FOR ECONOMIC DEVELOPMENT, a California non-profft public benefit
corporation in good standing with principal offices in Fresno, California, including any
and all nominees/assignees thereof consented to by CITY (collectively hereinafter
referred to as'FWCEP).
RECITALS
WHEREAS, the CITY and FWCED are parties to a June 16, 2005 HOME
Investment Partnerships Program CHDO Agreement, refereed to herein as the "HOME
CHOO Agreement" incorporated herein, pursuant to which the CITY, to further its goal
to increase the supply of Affordable Housing within the City of Fresno, desires to make
available HOME funding for reimbursement of HOME eligible Project costs upon the
terms and conditions in the HOME CHDO Agreement, related to ten (10) separate
single-family Affordable Housing Units Located on APN 329-020-07f', refered to herein
as'Projee. The HOME CHDO Agreement is attached hereto as Exhibit A; and
WHEREAS. due to unforeseen delays in the on and off-site improvements during
the final map process, including unexpected time needed to design, engineer and obtain
permit approvals, FWCED has requested a time extension to June 30, 2008, for the
Completion of the Project; and
WHEREAFW CED's Board! of Directors approved this Amendment No. One on
_.Il I1P_ 6,S, , 2007.
AMENDMENT
NOW THEREFORE, in consideration of Ne above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledged, the parties agree to the following:
1. The HOME Agreement is hereby amended to extend the Project Completion
Date through June 30, 20011, consistent with the Revised Project Schedule attached
hereto as Exhibit "B" and Incorporated herein.
2. FINCED hereby waives and releases any and all claims or reuses of action
against CITY it possesses or may possess arising out of or related to this Amendment
No. One.
3. In the event of a conflict between the body of this Amendment No. One and any
exhibit or Attachment hereto, the terms and conditions of the body of this Amendment
No. One shall control and take precedence over the Exhibit Atlachment.
4. Except as expressly modMied and amended hereby, the HOME Agreement shall
remain in full force and effect. From and after the effective date of this Amendment,
references in the HOME Agreement to "this Agreement" shall mean the Home
Agreement as hereby amended.
IN WITNESS WHEREOF, the partlea have executed this Amendment No. One to
Agreement in Fresno, CalRomia, the day and year first above written.
CITY OF FRESNO,
a Municipal Corporation
By:
fA�aemMry 1
REW T. SOUZA
ZA
itY Manager
Date:
APPROVED AS TO FORM:
JAMES SANCHEZ
City Attorney
By: 2
Robert Coyle, Deputy
Date: R -tom-r1
ATTEST:
REBECCA E. KLISCH
City Clerk
BeGlJe.d7/ld
}
Deputy
6'z
FRESNO WEST COALITION FOR
ECONOMIC DEVELOPMENT
a California non-proth Public
Ben Corporation
By: Q
c �rv..n am�o I
KEITH A. KELLEY
Executive Officer
Date: 6 ob p
Attachment:
Exhibit A: June 16, 2005 HOME Agreement
Exhibit B: REVISED Project Schedule
ACKNOWLEDGMENT
State of California
County
of Fr"ral"
05" before me, RosemarySInautname ad public
L 1a (henre Insert name and PMikeat of the officer)
personally appeared IL Q S T ry ri Vv, � I p_
personally known to me (a provetl to me on Me Ea f dsfecmry tl ) M be
the person(,4 whose Preto is/0 subscribed to the wiNin Instrument and
acknowledged to me Mat ha/*1 el executed the same in his/*Itlotir auMorved
Capecity(ies), art that by NsR/mt�v signaturefo on Me instrument the person(a)s
or the entity upon behalf of which Me peral acted, executed Me instrument.
WITNESS my hand and official seal.uptkk R08EWW MlvBWO
a COMM. SI60
«marl co aim E
nrcsxocmuirr
SlgnSignalWcemm.uomset 10'.Io.xwc�
V�
ACKNOWLEDGMENT
State of California
County of Fresco
Dn June 26, 2007 before me, Theresa Saldlvan Notary Public
(here insert name and tltle of the officer)
personally appeared Jon Ruiz
personally known to me (or proved to me on the basis of satsfactory evidence) to be
the foments) whose names) islare subscribed to the within instrument and
acknowledged to me that belsheithey executed the same in hislherMelr authorized
cxpackyhes), and that by hismerttheir slgnetum(s) on the Instrument the person(s),
or the entity upon behalf of whicth the person(s) acted, executed the instrument.
WITNESS my hand and offiaal weal. THTRZSew 3lDIy1Y
Co i6osssa
xtou,voort c-oa'nNm
mm
enm
Signature C((4u/;at "/Zrw Y g
3 ads
(Sarin
Project Location Map
i--1a.s4m
i--lo.zmi
amn]PW
Exhibit- C Probed Location Map
CVOV
AIN
LUate Ave
V�
tadale Me
EAnnatlak Ave
EMnadale Ave
F
a
�
a
k
EA gar
N
EEtlgar Ave
A
s
yn pn
E awn %
E Marts Ave
N Nanh Ave
s
W Almy n %
Prged
Ave
Ircr10
i--1a.s4m
i--lo.zmi
amn]PW
Exhibit- C Probed Location Map
Tvn irvii,C Soh[dule
Time Line for North and Clara Project
• Wednesday, lune 25s, 2oD8- Project Is brought before HCDC for appmwd of
project extension.
• Tuesday, July 15'^,2008- ppject is bmught before City Council for approval of
project extension.
• Tuesday, August 5'", 2008 -New deal pointy, assignments, new OPA agreement
between RDA and Habitat, em. brought to City Council.
• Wednesday, August 6'a, 2008 - Habitat receives bond for final Deet map.
• Thursday, August 7a, 2008 - Habitul submits for Pial tram map.
• September 19u, 2008 - Final unci map is approved.
• October Is, 2008 -Off-site improvements begin.
• Friday, lyerember 191°,2008 -Off-site improvements arc completed.
• Tuesday, January 6'4, 2009- First four slabs are poumd.
• Saturday, February p'h,2009- COMuncdon on ted fins home begin.
• March, 2009 - Combustion on second home begins.
• April, 2009- Construction on thad home begins.
• May, 2D09- First home is completed.
• June. 2009- Construction 90 fourth home begins.
• July. 2009- Constructing on fifth home begins.
• July, 2009- Second home is completed.
• September. 2009- Construction on sixth home begirt.
• September; 2009- Third home is completes
• Ocmber. 20D9 -Fourth home is completed.
Exhibit D -Tentative Schedule
• November, 2009-Conswmion on.seventh ham, beghto.
• December, 2009 -Fifth home is camplcted.
• January,2010- Consbction on eighth home begins.
• February, 2010 -Cons ruction on tnmh home begins.
• Febmary,2010- Sixth home is completed.
• Much, 2010- Seventh home is completed.
• Aptll, 2010 -Concoction on term home begins.
• May, 2010 -Construction on eleventh home begins.
• May, 2010- Eighth home is cemplmed.
• July, 2010- Ninth home is completed.
• August 2010 -Tenth home is camplelml (HOME Agreement obligations met)
• October, 2010- Eleventh home is completed.
Exhibit D -Tentative Schedule
Recorded at the Request of
and N%en Recorded Return te:
City of Fresno
Planning and Development 0epartment
Housing and Community Development 0ivmlon
Attention: Housing Manager
2800 Fresno Street, Room 3076
Fresno, CA 93721-3605
6q
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
FAESNC Colnty Reoorder
Robert C. Ikrmr
DOC— 2000-0124277
Friday. 0Ul�G N, 2006 11:3N:Ba
itl Pd $0 00 EH lor4�10 653
This Agreement is recorded at the request and far the benefit of the Cdy of Fresno and is exempt
from the payment of a recording fee pursuant to Government Code Section 6103.
By: ruj,4,3 I L
Andrew T. Soule
City Manager
Date: O$
Amendment No.2
To HOME Investment Partnerships Program Agreement
by and between
CITY OF FRESNO,
a municipal corporation
and
Fresno West Coalition for Economic Development.
a nonprefil public banner corporation
regarding
'South Clara Estates'
Southeast Comer of Clara and North Avenues —APNM 320-020-07t
An Affordable Single Family Homes Project
(Tame Exlension)
AMENDMENT NO. TWO TO
HOME INVESTMENT PARTNERSHIPS AGREEMENT
"South Clara Estates"
This Amendment No. Twc to the HOME Investment Partnerships (HOME) Program
Agreement, hereinafter referred to as "Amendment No. Two", is made and effective as of July
15, 2008, by and between the CITY OF FRESNO, a municipal corporation, acting through its
Planning and Development Department - Housing and Community Development Division
("CITY"), and Fresno West Coalition for Economic Development, a California non-profit public
benefd corporation in good standing with principal offices in Fresno, California, including any
and all nornineestassgnees thereof consented to by CITY (collectively hereinafter referred to
as'FWCED').
RECITALS
WHEREAS. the CITY and FWCED are parties to a June 16, 2005 HOME Investment
Partnerships Program Agreement as once amended, referred to herein as the "HOME
Agreement", attached hereto as Exhibit'Am and Incorporated herein, pursuant to which Me
CITY. to further its goal to increase the supply of Affordable Housing within the City of
Fresno, agrees to assist FWCED by providing HOME Program funds, upon the terms and
conditions in the HOME Agreement, related to ten (10) separate single-lamlly Affordable
Housing Units located on APNR 320-020-071 at the Southeast Comer of Clara and North
Avenues southwest Fresno, including related on-site and off-site improvements, referred to
herein as the 'Project`; and
WHEREAS, due to unexpected delays in processing enbtlements and recording the
tract map, FWCED has requested a time extension for completion of the Project; and
WHEREAS, FWCED's Board of Directors approved this Amendment No. Two on
2006.
AMENDMENT
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 acknowledged, the parties agree to the following:
1. The HOME Agreement ts hereby amended to extend the Project Completion Date
through September 30, 2010, as more specifically provided in the Tentative Schedule
attached hereto as Exhibit B
2. FWCED hereby waives and releases any and all claims or causes of action against
CITY d possesses or may possess arising out of or related 0 this Amendment No. Two.
3. In the event of a conflict between the body of this Amendment No. Two and any
Exhibit or Attachment hereto, the terms and conditions of the body of this Amendment No.
Tvm shall control and take precedence over the Exhibit Abachment.
4. Except as expressly modified and amended hereby, the HOME Agreement shall
remain in full force and effect. From and after the effective date of this Amendment,
references in the Agreement to'mis Agreement" shall mean me HOME Agreement as hereby
amended.
If
2
'L�
IN WITNESS WHEREOF, the parties have executed this Amendment No. Two to HOME
Agreement in Fresno, California, the day and year first above written.
CITY OF FRESNO
Fresno West Coalition for Economic Development
a Muni��cipal,,Corpomtion
a non-profit Public Benefit Corporation
By: .__
By:
IAllecll no�ry ceNfirale of arh
ment) V cnmxktlemeM)
AA.
ANDREW T. BOUZA
KEITHnM
,
City Manager
Executive Officer
Date: ML7 a
Data: ' ' C
APPROVED AS TO FORM:
JAMES SANCHEZ
City Attorney
L TIVi CLCV
By:Rd
ceorlie vv dioeian
Data: 8l13/W
ATTEST:
REBECCA E. KLISCH
City Clerk
By: I ✓1
Deputy
j -i
Date: h'/flA/nit
Attachment'.
Exhibit I: June 16, 2005 HOME Agreement and Amendment No, 1
Exhibit II: Tentative Schedule
A
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
Stam 01Cahlomet
County of ryLINT )0
On Lrzer ZcsnB before file. 77Irr5a 5�ldlmur"rVna �c
�Vo 1lL. LI 4A
personally appeared _ -If rIn e, � 7— S,l,ll
who proved to rile oil the bal of fiansfodory evidence to be the rerson(:t Whose rumne(WJ is/arid suboribad to
rile 1%1111111IC.amlur7u and akrom Ifulged 1,n¢ Ihal w,shaHhey executed the same in hisPofforbeh authorized
Ca PrGlo l rod, rind Elia by III S Ileddl£u slgnamm>)s) an the nomlmentMe EamonA, or the entity upon behalf of
which the perimiwl'aewd eaccoavl the Instnmmn.
I nendy under PENALTY OF P6 EJIJKY under the laps oflhe State of GaB[bmia that the foregoing parented]
is tree and cntrect
r
THERESA �SAt01VAA
)Mu I649668
WFTNLS9 my Mend and officmLseal, pa.vs N"Lloploh, CAI8
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MCmm,C�"ez 4, 3,2010
S�aua,_aE� :�a�detiu,c, n+, w, aeon
ADDITIONAL OPTIONAL INFORMATION
MSTRUC'EONS FOR COMPLGI'ING IBIS IORM
TIIC ATI AC IIED DOUVMFIJT 0, G,
a,
m.
C.Al"i.i. - nrg as .1161LL Ilool *wl FALOOAll tk
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CAPA¢I'IY CLAIMED BY T
hlivitlmtlO)
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Of FILCMIt ALL A, ri T011Wm", Ilim. nreww, Ot nn ei, w„n h,ao art,M
ma"lll a.a
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
state Of California
Gaantyof rre- 1i
On Jdat9 A ZlT7J& before me,hi
L[. t �I'Vxrntul c, lValzL r'(JvN�
wmonelry ePp Md_K'f k01 t r i
who po N to me on the Crips of admdddi eMercob
be the pars ar whose nami Lsr® subscribed to the
a Jimmo wllhin mstmmenl and acknowledged Io me that
ClooN atelan nematobq•begared the deme In niYMMTifalMonzed
• lose, Tali capadty�el, and that by hivlYiWtlr signxWm on the
Wg iEsPase"20.201 indtnmlent the prmord , or the army upon bolder of
which me 1-.—..� acted, me --M the Instrument.
I Ounly under PENALTY OF PERJURY under the laws
of the State of Embalmer that the foregoing paragraph is
INe and caned.
WITNESS my hand and others! seal.
„ d,n Sgnatm } lu,.ta aa.. lct Ifr�
OPTIONAL
Tlwugli anm�Wn bear, n her revuM order re
by bi n hey Flutlu i pareas Moral;mtlq dv"'If
..am rrnadam remora aOnorbadralOr by arm InArver daor.ra..r.
Dmcrlptlan of Attached Docpteent
Tana ur Type of Docian:
Document Dale'.
Slgneddi Omer Than Named Aiding. —
Ceplcitades) Olafm rd M Slgneryel
Signers Name:
agrees name:
loopholes!
-Individual
- corporate Omcer—Tleslsl:
corpamre on'ca,—rnasP.
Perms—_Oil LGaneml
Partner—(Dangled-1 Ganaral
L Anomey In Fent
-,, Ali.n Feet
I- Trustee
1 N"u.'1e
Tuslee
.gm..on
Guari or Cameramn
1} GuaNian or Conservator
L Other'.
rmmor:
Sli Is Representing '.
Sonar is Peprpeonnp:
emrxuvmq.u�.... mgpsy. y. vomzr¢.cmanu nrs�m..... rgpaiwsirw0 iunmr a..m..uuyr.er.mem�
1Wy,cifl, 2006
Assudewo
"" ""'1""""
MEETING OF TRE BOARD OF DIRECTORS
�R Man
unanimously passed authorising Keith Kelley, F WCED President by his
maw
OF
signature. to enter into a contractual obligation on behall'of Nis corporation
"^"""
ram.um
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT
r.n
regarding Amendment'rwo of the City of Fresno HOME Program CRDO
Agreement, effective July 22, 2008.
At a meeting ofthe Fresno West Condition for Economic Development
(FWCED)Brad] of Directors held on July 22, 2008. a resolution wen
""" •'"" Carolyn Garner, Board Chair
..� .._�... �„p,.
..,., Dan —�
362 Fresno Some •Sune 212- Frear. Ca4romla• 937M 1
Phone 559.405. 1273• Far i59466.1Pb I
unanimously passed authorising Keith Kelley, F WCED President by his
maw
signature. to enter into a contractual obligation on behall'of Nis corporation
r.n
regarding Amendment'rwo of the City of Fresno HOME Program CRDO
Agreement, effective July 22, 2008.
""" •'"" Carolyn Garner, Board Chair
..� .._�... �„p,.
..,., Dan —�
362 Fresno Some •Sune 212- Frear. Ca4romla• 937M 1
Phone 559.405. 1273• Far i59466.1Pb I