HomeMy WebLinkAboutFresno West Coalition for Economic Development Amdt No 1 Home ProgramMay 15, 2007
FROM:
M
REPORT TO THE CITY COUNCIL
AGENDA ITEM NO.
COUNCIL MEETING: M
DEPARTMENT
CITY MANAGER
NICK P. YOVINO, Director �! Z
Planning and Development Department
MICHAEL SIGALA, Manag
Housing and Community De elopment Division
APPROVED BY
15, 2007
SUBJECT: RECOMMEND COUNCIL APPROVE A HOME CHDO AGREEMENT AMENDMENT WITH
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT GRANTING A TIME
EXTENSION FOR THE SOUTH CLARA ESTATES AFFORDABLE SINGLE FAMILY
DEVELOPMENT
KEY RESULT AREA
One Fresno
RECOMMENDATION
Staff recommends that the Housing and Community Development Commission recommend to City Council
approval of a HOME Investment Partnerships (HOME) Program funds CHDO (Community Housing
Development Organization) agreement amendment granting a time extension from June 29, 2007 to
June 29, 2009 to Fresno West Coalition for Economic Development (FWCED) for the construction of ten
affordable single-family homes.
EXECUTIVE SUMMARY
On December 7, 2004, the City approved a HOME CHDO funding agreement with Fresno West Coalition
for Economic Development for the construction of 10 affordable single-family homes in Southwest Fresno
(North and Clara Avenues). The project's original completion date was December 29, 2006 and has been
extended once to June 29, 2007. Due to project delays, this date is no longer viable. Staff recommends a
project completion extension to June 29, 2009 for the City Attorney approved HOME CHDO funds
agreement.
KEY OBJECTIVE BALANCE
Approval of the amendment presents an opportunity to make a positive impact to the Customer
Satisfaction, Employees Satisfaction, and Financial Management Key Objectives. The approval impacts
the Customer Service aspect by demonstrating the City's commitment to its Community Housing
Development Organizations (CHDO) projects. The approval also attributes to Employee Satisfaction by
authorizing the necessary extensions in order to complete housing projects. In addition, it demonstrates
Financial Management through keeping our investment in the continued development and training of our
CHDO partners.
'SUBJECT TO MAYOR'S VETO
�itc'"'7, 1r,
Date 25(/5/0 7
Disposition c ,
r
REPORT TO THE CITY COUNCIL
FWCED contract Extension
May 15, 2007
Page 2
BACKGROUND
In June 2004, the Public Works Department and the Housing and Community Development Division issued a
Request for Proposals (RFP) for the sale of a City -owned 2.5 -acre vacant parcel and construction of affordable
housing on the site. Two proposals were received for the purchase and development of the project. After
extensive review, City staff recommended, and on December 7, 2004 City Council approved, the selection of
the FWCED development team, including the award of a HOME CHDO funding agreement in the amount of
$550,000, to construct ten (10) affordable single-family homes on the site. FWCED purchased the property
on April 12, 2005.
The homes will range from 1,350 to 1,607 square feet and are three to five bedrooms. HOME CHDO funds
are to be used as construction financing and permanent financing to eligible homebuyers.
During the tentative map process it was identified that the project subdivision would require an on-site ponding
basin. Because of this condition, FWCED had to re-engineer their site plan, changing the sub -division from 10
to 12 lots. One lot will allow for an additional home, and the other lot will accommodate the ponding basin. This
process caused a significant delay in their project schedule.
FWCED was granted a temporary extension by the Housing and Community Development Manager for
180 days extending their timeline to June 29, 2007, as provided for in the original contract. Due to the
extent of the changes required in their subdivision, the 180 day extension is not sufficient to complete the
project.
This recommendation also includes a minor provision allowing the Housing and Community Development
Manager to authorize additional extensions associated with this contract, if needed.
HOUSING AND COMMUNITY DEVELOPMENT COMMISSION
The Housing and Community Development Commission recommended approval of this item on
May 9, 2007.
FISCAL IMPACT
There is no fiscal impact associated with this recommendation.
APPENDICES
Exhibit A - Location Map
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EXHIBIT A
CIN OF FRESNO
City Cletk's Office (OrginaD
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Planning and Development Department
Housing and Community Development Division
Attention: Housing Manager
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
L/l iI11 Y/I:7:7 �LK4:7 r] a': i dy I,(Y a
!j4
s!(s107
This Amendment No. One to Agreement is recorded at the request and for the benefit of the City
of Fresno and is exempt from the payment of a recording fee pursuant to Government Code
Section 6103
By:
Jon Ruiz
Assistant Ci y Manager
Date: 6 2 t 0-7
AMENDMENT NO. ONE TO
CITY OF FRESNO HOME PROGRAM CHDO AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT
a California non-profit public benefit corporation
regarding
"South Clara Estates"
Southeast Comer of Clara and North Avenues - APN: 329-020-07t
An Affordable Single Family Homes Project
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 referred to as the "CITY"), and FRESNO WEST
COALITION FOR ECONOMIC DEVELOPMENT, a California non-profit 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 "FWCED").
RECITALS
WHEREAS, the CITY and FWCED are parties to a June 16, 2005 HOME
Investment Partnerships Program CHDO Agreement, referred to herein as the "HOME
CHDO 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 329-020-07T, referred to herein
as "Project". 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
WHEREAS, FWCED's Board of Directors approved this Amendment No. One on
J LM e, leo , 2007.
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 is hereby amended to extend the Project Completion
Date through June 30, 2008, consistent with the Revised Project Schedule attached
hereto as Exhibit "B" and incorporated herein.
2
2. FWCED hereby waives and releases any and all claims or causes 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/Attachment.
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 HOME Agreement to "this Agreement' shall mean the Home
Agreement as hereby amended.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. One to
Agreement in Fresno, California, the day and year first above written.
CITY OF FRESNO,
a Municipal Corporation
By:
notary certificate of acknowf3gRtaht)
�
EW T. SOUZA
anager
Date: (o2l /o
APPROVED AS TO FORM:
JAMES SANCHEZ
City Attorney
By:
Robert Coyle, Deputy
Date: I - (t - o •a—
ATTEST:
REBECCA E. KLISCH
City Clerk
FRESNO WEST COALITION FOR
ECONOMIC DEVELOPMENT
a California non-profit Public
Benefitgorporra`tion
By: "t
(Alta h not ry certificate of ackn a ent)
KEITH A. KELLEY
Executive Officer
Date: 0 0
Date:/a/,21?/07
Attachment:
Exhibit A: June 16, 2005 HOME Agreement
Exhibit B: REVISED Project Schedule
0
ACKNOWLEDGMENT
State of California
County of Fresno
O o�00before me, Rosemary Sambrano Notary Public
(here insert namjje and title of the officer)
personally appeared �� e I4'h I} , K e( t e u
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(5) whose name() is/a9b subscribed to the within instrument and
acknowledged to me that he/st6/th y executed the same in his/o/tviir authorized
capacity#), and that by his/h#r/thyr signature(�on the instrument the person(sk!
or the entity upon behalf of which the person()//acted, executed the instrument. �Y
WITNESS my hand and official seal. ! ROSEMARY SAMBRANO
a COMM, #1605343
NOTARY PUBLIC - CALIFORNIA
Signature MM� FRESNO COUNTY
g V�1Xi My Comm. Expires Sept. 10, 2009
(Seal)
ACKNOWLEDGMENT
State of California
County of Fresno
On June 26, 2007 before me, Theresa Saldivar, Notary Public
(here insert name and title of the officer)
personally appeared Jon Ruiz
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the personal whose name(.$) is/aye subscribed to the within instrument and
acknowledged to me that he/she4hey executed the same in his/hefA4:t& authorized
capacity(it:s), and that by his/heNtheir-signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(,&Yacted, executed the instrument.
WITNESS my hand and official seal. THERESA SALDIVAR
COMM. #1649668 z
¢ • Notary Public - California A
° n �'�1,,� / z Fresno County
Signature/wGv��t?Z/ Comm. Ex nes Apr. 3, 2010
(Seal)
EXHIBIT A
June 16, 2004 HOME Agreement
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Planning and Development Department
Housing and Community Development Division
Attention: Housing Manager
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
USE ONLY)
KNOWN
This Agreement is recorded at the request and for the benefit of the City of Fresno and is
exempt from the payment of a recording fee pursuant to Government Code Section 6103
Jon Ruiz
Assistant Cit Manager
Dater l6
CITY OF FRESNO HOME PROGRAM CHDO AGREEMENT
HOME Investment Partnerships Program
Community Housing Development Organization (CHDO) Agreement
by and between
CITY OF FRESNO,
a municipal corporation
and
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT
a California non-profit public benefit corporation
regarding
"South Clara Estates"
Southeast Comer of Clara and North Avenues - APN: 329-020-07t
An Affordable Single Family Homes Project
TABLE OF CONTENTS
Pane
RECITALS........................................................................................................................... 3
ARTICLE 1.
DEFINITIONS.................................................................................................4
PROPERTY DESCRIPTION
ARTICLE2.
TERMS...........................................................................................................7
EXHIBIT C:
ARTICLE 3.
GENERAL REPRESENTATIONS[WARRANTIES OF FWCED.....................
8
ARTICLE 4.
HOME PROGRAM REPRESENTATIOWWARRANTIES BY FWCED... ......
9
ARTICLE 5.
COVENANTS AND AGREEMENTS OF FWCED........................................13
ARTICLE 6.
DISBURSEMENT OF HOME FUNDS..........................................................17
ARTICLE 7.
DEVELOPMENT AND CONSTRUCTION OF PROJECT ............................
19
ARTICLE 8.
PROJECT OPERATIONS............................................................................
23
ARTICLE 9.
INSURANCE AND INDEMNITY...................................................................25
ARTICLE 10.
DEFAULT AND REMEDIES.......................................................................
27
ARTICLE 11.
GENERAL PROVISIONS...........................................................................29
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
2
HOME INVESTMENT PARTNERHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION AGREEMENT
This HOME Investment Partnerships Program Community Housing Development
Organization Agreement (hereinafter referred to as the "Agreement") is entered into this,
I I lX1 SL I ( P , 2005, by and between the CITY OF FRESNO, a municipal corporation,
acting through its Planning and Development Department - Housing and Community
Development Division (hereinafter referred to as the "CITY"), and FRESNO WEST
COALITION FOR ECONOMIC DEVELOPMENT, a California non-profit public benefit
corporation, including any and all nominees/assignees thereof consented to by CITY
(collectively 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 Title II of the Cranston -
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 (CHDO) for the development of Affordable Housing within the City of Fresno
as required in 24 CFR 92.300; and
WHEREAS, FWCED has been certified by the CITY as a CHDO in accordance with
HUD's certification criteria; and
WHEREAS, FWCED holds all right, title and interest in fee to the certain
undeveloped real property located within the City of Fresno, APN 329-020-07t, 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 construction 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, CHDO developer, and exercise
effective project control as to the construction of ten (10) separate single-family Affordable
Housing Units to be constructed and sold as Low -Income Housing, and related on-site and
off-site improvements, hereinafter referred to as the "Project", as more particularly
described in the Project Description attached hereto as EXHIBIT B, incorporated herein;
and
WHEREAS, the Project will be constructed upon HOME eligible Property(ies)
located within the boundaries of the City of Fresno, as more particularly described in the
attached EXHIBIT A; and
3
WHEREAS, to further its goal to increase the supply of Affordable Housing within
the City 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 to the National Environmental Policy Act ("NEPA") and the California
Environmental Quality-Act-("CEQA") resulting in a finding of no significant impact ac rding
to NEPA guidelines and an adoption of a mitigated negative declaration according to CEQA
guidelines. CITY has received related federal approval for release of HOME funds
pursuant to 24 CFR Part 58; and
WHEREAS, the CITY has determined that this Agreement is in the best interests of,
and will materially contribute to, the Housing Element of the General Plan. Further, the
CITY has found that the Project (i) will have a positive influence in the neighborhood and
surrounding environs, (ii) is in the vital and best interests of the CITY, and the health,
safety, and welfare of CITY residents, (iii) complies with applicable federal, state, and local
laws and requirements, (iv) will increase, improve, and preserve the community's supply of
Low -Income Housing available at affordable housing cost to persons and families of Low -
Income, as defined hereunder, (v) planning and administrative expenses incurred in pursuit
hereof are necessary for the production, improvement, or preservation of Low -Income
Housing, and (vi) will comply with any and all owner participation rules and criteria
applicable thereto.
NOW, THEREFORE, IN CONSIDERATION of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledge, the parties agree as follows:
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 with Disabilities Act of 1990, as most recently
amended.
1.2 Affirmative Marketing means a good faith effort to attract eligible persons of
all racial, ethnic and gender 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 single-family homes, of which all will be required to meet the
affordability requirements of this Agreement and 24 CFR 92.254 at the 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 first sale of each Project Unit following CITY's issuance and recordation of the
4
Certificate of Completion, as more fully described 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 CITY's Housing and Community Development Division Manager provided
the total amount of HOME Funding allocated to the Project shall not be increased without City
Council approval, attached hereto as EXHIBIT D.
1.6 Certificate of Completion means that certificate issued, in the form attached
as EXHIBIT E ("Exemplar Certificate of Completion'), to FWCED by the CITY evidencing
completion of each Project Unit constructed on the Property for purposes of this
Agreement.
1.7 CFR means the Code of Federal Regulations.
1.8 Commencement of Construction means the time FWCED or FWCED's
construction contractor begins substantial physical work of the Project/each 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 following the CITY's approval of commencement of construction of each
Unit.
1.9 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT C, which shall be recorded against the Property no later than
the 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 CITY,
recorded against the Property, insured in the full amount of the Loan(s) on the Property.
1.11 Eligible 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 specked in 24 CFR 92.205, 92.206 and 92.301, and
not disallowed by 24 CFR 92.214, provided, however, that costs incurred in connection with
any activity that is determined to be ineligible under the Program by HUD or the CITY shall
not constitute Eligible Costs.
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 "hazardous
substances," "hazardous wastes," "hazardous materials," "pollutants," "contaminants" or
"toxic substances" under federal or state environmental and health safety laws and
regulations, including without limitation, petroleum and petroleum byproducts, flammable
explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed in the normal
1.1
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 referred to in this
Agreement as HOME Funds or HOME CHDO Funds) means the HOME CHDO Program
monies including the Loan(s), in an amount not to exceed the sum of Five Hundred Fifty
Thousand Dollars -($550,000) to be used for HOME Program eligible Project costs.--
1.16
osts.-
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 loan(s) of HOME Funds,
made available by the CITY to the Project pursuant to this Agreement, as more specifically
described in the Budget and in the Promissory Note(s) attached hereto as EXHIBITS D and
F respectively.
1.19 Loan Documents are collectively this Agreement, the Note(s), Deed(s) of
Trust, Declaration(s) of Restrictions and all related documents/instruments as they may be
amended, modified or restated from time to time along with all exhibits and attachments
thereto, relative to the Loan.
1.20 Low -Income Families means families whose annual income does not exceed
eighty percent (80%) of the median income for the Fresno, California area as determined
by HUD, except as HUD may establish income 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 Note(s) in a
principal amount not to exceed the HOME Program per unit cap (24 C.F.R. 92.250) as
determined by the CITY, given by FWCED (including assignees/nominees thereof) as
promissor(s), in favor of the CITY as promissee, evidencing the Loan and performance of
the affordability and other covenants and restrictions set forth in this Agreement, secured
by a standard Deed of Trust as 2nd position or better lien upon the Unit Property, naming
the CITY as beneficiary and provided to the CITY no later than the date of 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 Note
consented to by CITY.
1.22 Program Income has the meaning provided in the HOME program including
24 CFR 92.503.
1.23 Proiect means each and all of the ten (10) single-family low-income
Affordable Housing Units to be constructed, marketed, and sold as Low -Income Housing,
and related on-site and off-site improvements, all as described in the Project Description
attached hereto and incorporated herein as EXHIBIT B, upon the Property as more
particularly described in EXHIBIT A.
W
1.24 Proiect-Completion 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 Date for this project is December 29, 2006.
1.25 Project Schedule means the schedule for completion of the Project included
within the EXHIBIT B Project Description and Schedule, consistent with the above Project
Completion Date.
1.26 Propert means the HOME Program eligible property located at the southeast
corner of Clara and North Avenue, APN 329-020-07t, Fresno, California, more specifically
described in the attached EXHIBIT A, to be parcelized by FWCED at its sole 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 preserved 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 terms 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 this 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 Terre 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 Period and the
Loan unless earlier terminated 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 to record a Notice of Cancellation regarding this
Agreement, upon the written request of FWCED.
2.4 Loan Repayment and Maturity. The Loan(s) will be due and payable in
accordance with the Note(s) 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
FWCED 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, attachments, documents and instruments
referenced herein, as now in effect and as may be amended from time to time, constitute
part of this Agreement and are incorporated herein by reference. All such documents have
been provided to the parties herewith or have been otherwise provided to/procured by the
parties and reviewed by each of them prior to execution hereof.
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2.6 Covenants of FWCED. FWCED for itself and its nominees/assigns
covenants and agrees to comply with all the terms and conditions of this Agreement and
the requirements of 24 CFR Part 92.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF FWCED
3.1 Existence and Qualification. FWCED represents and warrants as of the date
hereof, that FWCED is a duly organized California non-profit corporation in good standing
and a qualified charitable organization exempt from certain taxes under IRC 501(c)(3) and
Cal. R&T 23701(d). FWCED is neither controlled by, nor under the direction of, individuals
or entities seeking to derive profit or gain from the organization. FWCED has among its
corporate purposes the provision of decent housing that is affordable to Low -Income and
Very Low -Income persons. FWCED maintains accountability to Low -Income community
residents by maintaining at least one-third 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 FWCED in its affordable housing
decision making. FWCED and its development team have demonstrated capacity for
carrying out the Project. FWCED has a history of 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 authorize the execution, delivery, performance, and observance of its
obligations under this Agreement. This Agreement, when executed and delivered, shall
constitute the legal, valid, and binding obligations of FWCED enforceable against FWCED
in accordance with its respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar
laws of general applicability affecting the enforcement of creditors' rights generally, and (b)
the application of general principles of equity without the joinder of any other party.
3.2 No Litigation Material to Financial Condition. FWCED represents and
warrants as of the date hereof that, except as disclosed to and approved by CITY in writing,
no litigation or administrative proceeding before any court or governmental body or agency
is now pending, nor, to the best of FWCED's knowledge, is any such litigation or
proceeding now threatened, or anticipated against FWCED that, if adversely determined,
would have a material adverse effect on the financial condition, business, or assets of
FWCED or on the operation of the Project.
3.3 No Conflict 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 FWCED, and no person, directly or indirectly owning or controlling
any interest in FWCED, is an official, officer, agent, or employee of the CITY.
3.4 No Legal Bar. FWCED represents and warrants as of the date hereof that
the execution, delivery, performance, or observance by FWCED of this Agreement will not,
to the best of FWCED's knowledge, materially violate or contravene any provisions of: (a)
any existing law or regulation, or any order of decree of any court, governmental authority,
bureau, or agency; (b) governing documents and instruments of FWCED; 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 assets,
the result of which would materially or substantially impair FWCED's ability to perform and
ul
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 best of FWCED's knowledge, this Agreement and the operation of the Project
as contemplated by FWCED, do not violate any existing federal, state, or local laws or
regulations.
-- 3.6 No Litigation Material to Proiect. FWCED represents and warrants as of the
date hereof that, except as disclosed to, and approved by the CITY in writing, there is no
action, proceeding, or investigation now pending, or any basis therefor known or believed
to exist by FWCED that questions the validity of this Agreement, or of any action to be
taken under this Agreement, that would, if 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, state, 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 warrants, 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 construction of the Project so that it meets the
applicable accessibility requirements, including, but not limited to, the following:
A. All housing units shall be made accessible, upon request of the
prospective homebuyer, if 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
the option of the homebuyer are 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 permitted to depart from particular specifications of these standards in
order to accommodate his or her specific handicap. The cost of making a unit accessible
under this paragraph may be included in the mortgage amount within the allowable
mortgage limits, where applicable. To the extent such costs exceed allowable mortgage
limits, they may be passed on to the prospective homebuyer, subject to maximum sales
price limitations (24 CFR 235.320.)
4.2 Affirmative Marketing. FWCED warrants, covenants and agrees that it shall
comply with all affirmative marketing requirements, including without limitation, those set
out at 24 CFR 92.350, 24 CFR 92.351, in order to provide information and otherwise attract
eligible persons from all racial, ethnic and gender groups in the housing market in the sale
of Project Units. FWCED shall be responsible for complying with the CITY's "Affirmative
Marketing Policy" -document, incorporated herein, as amended from time to time. FWCED -
shall maintain records of actions taken to affirmatively market units constructed in the
future, and to assess the results of these actions.
4.3 Availability of HOME Funds. FWCED understands and agrees that the
availability of HOME CHDO Funds is subject to the control of HUD, or other federal
agencies, and should said Funds be encumbered, withdrawn or otherwise made
unavailable to -the -CITY, whether earned by orpromised to FWCED, andtorshould CITY in — —
any fiscal year hereunder fail to allocate said Funds, the CITY shall not provide said Funds
unless and until they are made available for payment to the CITY by HUD and the CITY
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 that,
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 Article 10 of this Agreement, the CITY
may suspend or terminate this Agreement and all other agreements with FWCED without
waiver or limitation of rights/remedies otherwise available to the CITY.
4.5 Conflict of Interest. FWCED warrants, covenants and agrees that it shall
comply with the Conflict of Interest requirements of 24 CFR 92.356 including, without
limitation, that no officer, employee, agent or consultant of FWCED (other than an
employee or agent of FWCED who occupies a unit as the project manager or maintenance
worker) may occupy a Project Unit. FWCED understands and acknowledges that no
employee, agent, consultant, officer or elected official or appointed official of the CITY, who
exercises or has exercised any functions or responsibilities with respect to the Project, or
who is in a position to participate in a decision making process or gain inside information
with regard to these activities, may obtain a financial interest or benefit from the Project, or
have an interest in any contract, subcontract or agreement with respect thereto, or the
proceeds thereunder, either for him or herself or for anyone with which that person has
family or business ties, during his or her tenure or for one year thereafter. To the extent
provided at 24 CFR 92.356(f), no owner, developer or sponsor of the Project, or officer,
employee, agent or consultant thereof, may occupy a Project Unit.
4.6 Construction Standards. FWCED shall construct the proposed housing units
assisted under this Agreement in compliance with all applicable local codes, ordinances
and zoning requirements in effect at the time of issuance of Certification of Completion. In
the absence of a local code for construction, FWCED agrees to comply with the applicable
standards identified in 24 CFR 92.251.
4.7 Covenants and Restrictions to Run with the Land. The CITY and FWCED
expressly warrant, covenant and agree to ensure that the covenants and restrictions set
forth in this Agreement are recorded and will run with the land, provided, however, that,
consistent with the Loan Documents, CITY may release said covenants and restrictions
only upon recapture of all HOME funding allocated to the Unit(s) by the CITY. FWCED
further warrants, covenants and agrees to ensure that the covenants and restrictions set
forth herein shall run in favor of the CITY.
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A. ---The CITY and FWCED hereby declare their understanding and intent
that the covenants and restrictions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and ownership of the proposed Project by certain
Low -Income and Very Low -Income Families, and (b) by making possible the obtaining of
advantageous financing for construction.
B. FWCED covenants and agrees that it shall cause the Project Units to
be sold as Affordable Housing.
C. Without waiver or limitation, the CITY shall be entitled to injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be entitled to damages available under law or contract
for any injuries 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 from 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, individuals, businesses, nonprofit organizations and farms.)
4.9 Initial Income Certification. FWCED warrants, covenants and agrees that it
shall comply with the procedures for income determinations at 24 CFR 92.203. FWCED
shall obtain, complete and maintain on file, immediately prior to initial occupancy, income
certifications from each Project Unit Household. FWCED shall make a good faith effort to
verify that the income provided by an applicant or occupying Household in an income
certification is accurate by taking one or more of the following steps as part of the
verification process: (1) obtain a pay stub for the most recent pay period; (2) obtain an
income verification form from the applicant's current employer; (3) obtain an income
verification form from the Social Security Administration and California Department of
Social Services if the applicant receives assistance from either of such agencies; (4) obtain
an income tax return for the most recent tax year, or (5) if the applicant is unemployed and
has no such tax return, obtain another form of independent verification. Copies of
household income certification and verification must be available for review and approval
by the CITY prior to the close of escrow and the transfer of title to the low-income
homebuyer. FWCED further warrants, covenants and agrees that it shall cooperate with
the CITY in the CITY's income certifiicationtaffordability 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 U.S.C. 4821 et seq., 24 CFR Part 35 including the HUD 1012 Rule, and 24 CFR
982.4016), including any amendments thereto, in the Affordable Housing Project. These
requirements apply to all units and common areas in the Affordable Housing Project.
FWCED shall incorporate or cause incorporation of this provision in all contracts and
subcontracts for work performed on the Project, which involve the application of paint.
FWCED shall be responsible for all disclosure, inspection, testing, evaluation, control and
11
abatement activities. -
4.11 Minority Outreach Activities. FWCED 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—Other Laws and Regulations. FWCED warrants, covenants and agrees that, ---
in addition to complying with the federal laws and regulations already cited in this
Agreement, FWCED 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 following:
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 and/or
construction of this Project.
B. The Project is not located in a tract identified by the Federal
Emergency Management Agency as having special flood requirements.
C. The Project requirements, Subpart F of 24 CFR Part 92, as applicable
and in accordance with the type of Project assisted, including, but not limited to, the limit on
per-unit subsidy amount at 24 CFR 92.250.
D. The property standards at 24 CFR 92.251.
E. The Project "Labor' requirements, as applicable, of 24 CFR 92.354
including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
F. The provisions of Section 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction and management of the
proposed Project.
G. FWCED and its contractors, subcontractors and service providers for
the Project, shall comply with all applicable local, state and federal requirements
concerning equal employment opportunity, including compliance with E.O. 11246, "Equal
Employment Opportunity," as amended by E.O. 11375, "Amending Executive Order 11246
Relating to Equal Employment Opportunity," and as supplemented by regulations at 41
CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor."
H. The provisions of the Copeland "Anti -Kickback" Act (18 U.S.C. 874), as
supplemented by Department of Labor regulations (29 CFR part 3, "Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or
Grants from the United States").
12
I.-- - The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and the - - --
Federal Water Pollution Control Act (33 U.S.C. 1251 et 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
Suspension," -as -set forth at 24 CFR part 22 -
L. The provisions of the Drug -Free Workplace Act of 1988 (42 U.S.C.
701), in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.
M. Title 8 of the Civil Rights Act of 1968 PL. 90-284.
N. Executive Order 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Act of 1968.
P. The Housing and Community Development Act of 1974.
4.13 Religious Organizations. FWCED warrants, covenants and agrees that it is a
secular entity and not a primarily religious organization and that it shall not engage in any
prohibited activities described 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, covenants and agrees that it
shall submit performance reports to the CITY as detailed in Section 7.15. Furthermore,
FWCED agrees to provide, at the sole cost of FWCED, annual audited Financial
Statements for the Project expenses and ongoing financial transactions 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 generally accepted accounting principals, which
financial documentation shall be made available to the CITY and HUD upon their
respective written request(s).
4.15 Housing Affordability. FWCED warrants, 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 Trust.
4.16 Terminated Proiects(s). FWCED 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)/nominee(s), covenants and agrees to the following,
for the entire term of the Agreement.
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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 Housing. 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 - -Compliance With Environmental Laws. FWCED shall cause the Project to be
in compliance with, and not to cause or permit the housing project to be in violation of, any
environmental law, 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 cure such violation. If the
suspected violation is not cured, the CITY shall have the right to retain an independent
consultant to inspect and test the eligible Property for such violation. If a violation is
discovered, FWCED shall pay for the 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 cost, expense and liability for such
work shall be and remain solely with FWCED;
B. Not to transport to or from the proposed project site(s), 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 permitted by applicable laws, rules, regulations, ordinances, and
statutes;
C. To give prompt written notice to the CITY of the following:
1. Any proceeding or inquiry by any govemmental 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 resulting 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
M
-0- To indemnify, defend, and hold the CITY harmless from any and all — —
claims, actions, causes of action, demands, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, costs, expenses (including
attorney's fees and expenses), and disputes of any kind whatsoever arising out of or
relating to 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, restoration, 6( -other remedial work of any kind or nature. --
5.4 Compliance With Laws. FWCED shall promptly and faithfully comply with,
conform to and obey all present and future federal, state and local statutes, regulations,
rules, ordinances and other legal requirements applicable by reason of this Agreement or
otherwise to the Project. 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 to and obey) all federal statutes, regulations, rules and policies
applicable to the Program and the Project.
5.5 Existence, Qualification, and Authoritv. FWCED shall provide to the CITY
any evidence required or requested by the CITY to demonstrate the continuing existence,
qualification, and authority of FWCED to execute this Agreement and to perform the acts
necessary to carry out the Project.
5.6 Financial Statements and Audits. FWCED, as a subrecipient of federal
financial assistance, is required to comply with the provisions of the Single Audit Act of
1984 (31 U.S.C. Sections 7501 et seq.), as amended. Annually, within one hundred and
eighty (180) days following 1) the end of fiscal year(s) in which the HOME Funds are
disbursed hereunder, and 2) the end of fiscal year(s) in which this contract shall terminate,
and otherwise upon the CITY's, written request during the term of this Agreement, FWCED,
at its sole cost and expense shall submit to the CITY.
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed therein).
B. Audited Financial Statements covering the income and expenses, and
the financial transactions for the Project during the prior fiscal year.
5.7 Inspection and Audit of Books, Records and 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 Project or all matters covered
in this Agreement and for up to six (6) years after the expiration or termination 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
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, "books, records and documents"
include, without limitation; plans, drawings, specifications, ledgers, journals, statements,
contracts/agreements, funding information, funding applications, purchase orders,
invoices, loan documents, computer printouts, correspondence, memoranda, and
electronically stored versions of the foregoing. This section shall survive the termination of
this Agreement.
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 FWCED in which case FWCED shall bear the cost of such audit. FWCED shall also
comply with any applicable audit requirements of 24 CFR 92.506. 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 audit relating to the Programs and the Project that may
be performed relative to the performance of this Agreement.
5.8 Inspection of Property. 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 completion 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 to 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 federal, state, 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 Project.
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 Project without the prior written consent of the CITY,
which consent shall not be unreasonably withheld or delayed.
5.12 Payment of Liabilities. FWCED 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 Project(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- Report of Events of Default.- FWCED shall promptly give written notice to -the
CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 6. DISBURSEMENT OF HOME FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of HOME
CHDO Funds:
6.1 Use of HOME Program CHDO Funds. FWCED warrants, covenants and
agrees for itself and its assignee(s)/nominee(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 FWCED, 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 not more than Fifty Five
Thousand Dollars ($55,000), per Unit/low-income family. The CITY's 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 costs, and
subject to the notice and cure provisions of Section 10.2 hereunder, an equal amount from
nonpublic funds shall become immediately due and payable by FWCED to the CITY;
provided, however, that FWCED shall, subject to its full cooperation with the CITY, be
entitled to participate in any opportunity to remedy, contest, or appeal such determination.
B. In the event HOME CHDO Funds are requested to reimburse Eligible
Costs which subsequently lose eligibility as Eligible Costs, FWCED shall immediately
return such HOME CHDO Funds to the CITY.
C. The CITY will disburse HOME CHDO Funds, only to a CITY -approved
escrow company, for HOME eligible costs of the Project as provided in this Article 6.
6.2 Conditions 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 following conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any act,
failure, omission or condition that with the passage of time or the giving of notice or both
would constitute an Event of Default.
B. FWCED has ensured that individual homebuyers) have submitted
evidence to the CITY that the HOME Funds, in addition to the amounts loaned through a
primary home loan, are sufficient to purchase the Unit. If the CITY determines that said
funds are not sufficient to purchase the Unit, FWCED or the individual homebuyers) 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 Project/Property costs.
17
—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 the CITY
copies of Project surety (payment and performance) bonds.
F. FWCED is current with its compliance of all reporting requirements set
forth in this Agreement.
G. Upon CITY's reasonable request, FWCED has 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 otherwise
provided to CITY as instructed by CITY for reimbursement of HOME eligible Project costs,
and detailing such Eligible Costs applicable to the request.
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 Disbursement of HOME Program Funds. FWCED shall
request disbursement of HOME Funds using the CITY's Request for Disbursement of
Funds Form, or a similar document. FWCED shall only request a maximum of Fifty Five
Thousand Dollars ($55,000) in HOME Program assistance for each Project Unit, to be
deposited in an established escrow account or as otherwise directed by CITY. Additionally,
FWCED shall only request up to a maximum 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 for 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
that, as of the date of the Request for Disbursement:
A. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate;
B. FWCED has carried out all of its obligations and is in compliance with
all the obligations or covenants specified in this Agreement, to the extent that such
obligations or covenants are required to have been carried out or are applicable at the time
of the request for the Disbursement;
C. FWCED has not committed or suffered an act, event, occurrence, or
circumstance that constitutes an Event of Default or that with the passage of time or giving
of notice or both would constitute an Event of Default; and
in
- D. The Disbursement requested will be used solely for reimbursement of —
HOME eligible costs and must be supported by the itemized obligations that have been
properly incurred and are properly chargeable in connection with the Project.
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre -construction Meeting Regarding HOME Program Processes and
Procedures. CITY will schedule, and FWCED shall attend a meeting prior to construction
with the CITY's Housing and Community Development Division for the purpose of outlining
HOME program processes and procedures.
7.2 Commencement and Completion of Project. FWCED shall commence and
complete construction in accordance with the Project Description and Schedule. All Project
Construction shall be completed no later than December 29, 2006.
7.3 Contracts and Subcontracts. Consistent with Section 5.3, all demolition,
hazardous waste abatement, construction work and professional services for the Project
shall be performed by persons or entities licensed or otherwise legally authorized to
perform the applicable work or service in the State of California and the City of Fresno.
FWCED shall provide the CITY with copies of all agreements with any and all contractors
or subcontractors for this Project. FWCED shall require that each contractor and
subcontractor agreement contain a provision whereby the party(ies) to the agreement other
than FWCED agree to (i) notify the CITY immediately of any event of default by FWCED
thereunder; (ii) notify the CITY immediately of the filing of a mechanic's lien, (iii) notify the
CITY immediately of termination or cancellation of the agreement; and (iv) provide the
CITY, upon the CITY's request, an Estoppel Certificate certifying that the agreement is in
full force and effect and FWCED is not in default thereunder. FWCED agrees to notify the
CITY immediately of termination or cancellation of any such agreement(s), notice of filing of
a mechanic's lien, or breach or default by other party(ies) thereto.
7.4 Damage to Property. To the extent consistent with the requirements of any
permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 9 of
this Agreement, if any building or improvement constructed on the Property is damaged or
destroyed by an insurable cause, FWCED shall, at its cost and expense, diligently
undertake to repair or restore said buildings and improvements consistent with the original
Plans and Specifications of the Project Unit. Such work or repair shall commence within
ninety (90) days after the insurance proceeds are made available to FWCED and shall be
complete within one (1) year thereafter. All insurance proceeds collected for such damage
or destruction shall be applied to the cost of such repairs or restoration and, if 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 discharge any such
charge so long as; (a) the legality thereof is being contested diligently and in good faith and
19
by appropriate proceedings, and (b) if requested by the CITY, FWCED deposits with -the
CITY any funds or other forms of assurances that the CITY, in good faith, may determine
from time to time are appropriate to protect the CITY from the consequences of the contest
being unsuccessful.
7.6 Financing. FWCED shall promptly inform the CITY of any new financing or
funding, and FWCED shall provide the CITY copies of all agreements with any and all
Funding Sources for this Project. FWCED shall require each agreement with any and all
Funding Sources to contain a provision whereby the party(ies) to the agreement other than
FWCED, agree to (i) notify the CITY immediately of any event of default by FWCED
thereunder; (ii) notify the CITY immediately of termination or cancellation of the agreement;
and (iii) provide the CITY, upon CITY's request, an Estoppel Certificate certifying that the
agreement is in full force and effect and FWCED is not in default thereunder. FWCED
agrees to notify the CITY immediately of termination or cancellation of any such
agreement(s) or receipt of notice of default thereunder. FWCED shall comply with all
obligations of any such agreement(s) with any and all Funding Sources until the respective
expiration of such agreement(s). In the event FWCED fails to comply with its obligations of
this section, the grant shall become immediately due and payable as provided for in this
Agreement. This section shall survive expiration or termination of this Agreement.
7.7 Identification Signage. Before the start of construction, FWCED shall place a
poster or sign, with a minimum four feet by four feet in size, identifying the City of Fresno,
Housing and Community Development Division, Planning and Development Department as
a Project participant. The sign shall also include the CITY'S Housing Logo, as well as the
Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a minimum of 4
inches. The poster/sign shall be appropriately placed, and shall be in place throughout the
Project construction.
7.8 Inspections. FWCED shall permit, facilitate, and require its contractors and
consultants to permit and facilitate observation and inspection at the job site by the CITY
and other public authorities during reasonable business hours, for determining compliance
with this Agreement, including without limitation those biennial on-site inspections required
of the CITY by 24 CFR 92.504(d).
7.9 Insurance and Bonds. Upon CITY's reasonable request, FWCED shall
submit for CITY approval bonds, certificates and applicable endorsements for all insurance
and bonds required by this Agreement in accordance with Article 9.
7.10 Mechanic's Liens and Stop Notices. If any claim of lien is filed against the
Property or a stop notice affecting any financing, HOME Program Funds or Funding
Sources for the Project is served on the CITY 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 lien or stop notice by delivering
to the CITY a surety bond in sufficient form and amount, or provide the CITY with other
assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or
discharged.
A. If FWCED fails to discharge, bond or otherwise satisfy the CITY with
respect to any lien, encumbrance, charge or claim referred to in this Section 7.9, then, in
9C
-addition to any other right or remedy, -the CITY may, but shall not be obligated to, 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, pending resolution thereof. The CITY 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 liability for such liens,
encumbrances, charges or claims together with all related costs and expenses.
7.11 Permits and Licenses. Upon CITY's reasonable request, 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, shall provide to the CITY copies of any and all permit approvals
and authorizations including plot plan, plat, zoning variances, sewer, building, and other
permits required by governmental authorities other than the CITY in pursuit of 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 cost and expense, to determine the location
of any utilities 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 CITY, for its review and approval, the final Plans and Specifications for
the Project. FWCED will construct the Homes in full conformance with the Plans and
Specifications and modifications thereto approved by the CITY. FWCED shall obtain the
CITY's prior written approval for any modifications to the Plans and Specifications.
7.13 Prolect Responsibilities. FWCED shall be solely responsible for all aspects of
FWCED's conduct in connection with the Project, 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 CITY's annual
resolution setting out per diem wage rates is available from the CITY's Construction
Management Division), the quality and suitability of the work completed, the supervision of
all contracted work, qualifications and financial conditions of and performance of all
contractors, subcontractors, consultants and suppliers. Any review or inspection
undertaken by the CITY with reference to the Project is solely for the purpose of
determining whether FWCED is properly discharging its obligation to 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 Project.
7.14 Quality of Work. 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, regulations, and
building and housing codes.
7.15 Relocation. If and to the extent that construction of the proposed Project
results in the permanent or temporary displacement of residential tenants, homeowners or
businesses, FWCED shall comply with all applicable local, state and federal statutes and
regulations with respect to relocation planning, advisory assistance and payment of
21
- monetary benefits. FWCED shall be solely responsible for payment of any relocation - —
benefits to any displaced persons and any other obligations associated with complying with
said relocation laws.
7.16 Reporting Requirements. FWCED shall submit to the CITY the following
Project reports:
A. From the date -of the Commence of the Project, until 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 31St, June 30th,
September 30th, and December 31St, during said period.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the last
Project Unit, and continuing until the termination of the Agreement, 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 the 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.
C. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the last
Project Unit, and continuing until the expiration of the Agreement, FWCED shall submit
proof of insurance as required in Article 9.
7.17 Scheduling and Extension of Time; Unavoidable Delay in Performance. It
shall be the responsibility of FWCED to coordinate and schedule the work to be performed
so that the Commencement of the Project and issuance of the Certificate of Completion(s)
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 FWCED, as follows:
A. The time for performance of provisions of the Agreement by either
party shall be extended for a period equal to the period of any delay directly affecting the
Project or this Agreement which is caused by: war, insurrection, strike or other labor
disputes, lock -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public
enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits
filed by third parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of time for any of the above specified causes will be granted only
if written notice by the party claiming such extension is sent to the other party within ten
(10) calendar days from the date the affected party learns of the commencement of the
cause and the resulting delay and such extension of time is accepted by the other party in
writing. In any event, the Project must be completed no later than 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.
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B. Any and all extensions hereunder shall be by mutual written - - —
agreement of the CITY's Housing and 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 -certification shall identify costs in line -item format, consistent
with the Project Budget. Upon a determination by the CITY that FWCED 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
FWCED, 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
Certificate of Completion. If the CITY fails to provide the Certificate of Completion within
tF_e,specified time, it shall provide FWCED with a written statement indicating 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
FWCED will need to take or what standards it will need to meet in order to obtain the
Certificate of Completion. Upon FWCED taking the specified measures and meeting the
specified standards, FWCED will certify to the CITY in writing of such compliance and the
CITY shall deliver the recordable Certificate of Completion to FWCED in accordance with
the provisions of this section.
ARTICLE 8. PROJECT OPERATIONS
8.1 Operation of the Project. FWCED shall operate and/or manage the Project in
full conformity with the terms of this Agreement.
8.2 Occupancy Requirements. All Project Unit(s) shall be marketed and sold as
principal residence for single family owner -occupancy by low-income households. FWCED
shall comply with the income targeting and Affordable Housing requirements of 24 CFR
92.217 and 92.254. No homebuyer shall take occupancy of any Home prior to 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 prior to the Completion of Construction of the first Project Unit, FWCED shall
submit to the CITY, for review and approval a plan, for marketing the Unit(s) ("Fair
Marketing Plan"). The Fair Marketing Plan shall address in detail how FWCED or its
designated management entity plans to market the availability of Units to prospective low-
income purchasers and how FWCED plans to certify the eligibility of potential buyers. The
Final Marketing Plan shall contain detailed descriptions of policies and procedures with
respect to buyer selection(s). Topics to be covered in these procedures shall include at a
minimum the following:
Interviewing procedures for prospective buyers;
Buyer references;
Credit reports and checks;
23
• Deposit 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 forms
associated with the above listed topics. FWCED shall abide by the terms 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 marketing, property disposition and initial certification
of household size 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 the Homes, and shall prevent and/or rectify any physical deterioration of the
Homes; and (iii) maintain the Homes in conformance with all applicable federal, state and
local laws, ordinances, codes and regulations and this Agreement, until such are sold to
low-income buyers.
8.6 Nondiscrimination. All of the Units shall be available for initial purchase to
members of the general public who are income eligible. FWCED shall not illegally
discriminate or segregate in the development, construction, use, enjoyment, occupancy or
conveyance of any part of the Affordable Housing Project or Property on the basis of race,
color, ancestry, national origin, religion, sex, age, marital status, family status, source of
income/rental assistance subsidy, physical or mental disability, Acquired Immune
Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), sexual orientation, or any
other arbitrary basis. 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
FWCED as to the Units or the housing project or portion thereof, shall contain covenants
concerning nondiscrimination consistent with this section. FWCED shall include a
statement in all advertisements, notices and signs for availability of Units for rent to the
effect that FWCED is an Equal Housing Opportunity Provider.
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 those required for the Project.
8.7 Proiect Home Sale Price. The initial sale price of each Home is the total
amount paid by the homebuyer for the Home conveyance, inclusive of any first lien/loan
and exclusive of escrow fees, title insurance costs, broker's commission (if any), loan fees
or any other closing or transaction 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 applied under 24 CFR 92.254. The CITY shall approve in advance all
homebuyers. Homebuyer financing shall be based upon buyer's 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 ten (10) Project Units to be sold to low-income
households. FWCED (including assignees/nominees thereof) and those taking ownership
-of -the Project Property under orthrough it/them, 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 lower-income household is
subsequently resold, otherwise transferred and/or is no longer the principal residence of
the individual(s) who initially purchased the property as Affordable Housing, during the
Affordability Period, and without waiver or limitation, the entire HOME -Funded Loan
allocated to Unit shall be repaid to/recaptured by the CITY's HOME Program Trust Fund
and thereupon the balance of the Affordability Covenant/Period released. At the end of the
Affordability Period a total of Fifteen Thousand Dollars ($15,000) will be forgiven and the
principal due on the Note shall be reduced by this amount.
B. FWCED (including assignees/nominees thereof) shall provide, a Trust
Deed Note, and other documents as may be required herein, securing the first sale of each
individual HOME -assisted UniUProperty in the Project. Said Trust Deed Note shall be
security for the provision of HOME Funding for the Project by the CITY. In the event of a
failure to comply with the Affordability Restrictions, in addition to any and all other remedies
available to it, the CITY shall be entitled to enjoin sale of the Project Units, damages not
being an adequate remedy at law for such breach.
C. In the event that FWCED fails to comply with the Affordable
requirements, as applicable, the CITY shall be entitled to enjoin FWCED 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 and/or through its consultant(s), assignee(s), nominee(s), contractors and
25
- subcontractors pay for and maintain in full force and effect all policy(ies) of insurance
required hereunder with (an) insurance company(ies) either (1) admitted by the California
Insurance Commissioner to do business in the State of California and rated not less than
"A -VII" in Best's Insurance Rating Guide, or (2) authorized by the CITY's Risk Manager.
The following policies of insurance are required:
1. BUILDERS RISK INSURANCE in an amount to provide
coverage to 100 percent (100%) of the replacement value of the Project, including terms of
labor and materials in place or to be used as part of the permanent construction, including
surplus miscellaneous materials and supplies incidental to the work and such scaffolding,
staging, towers, 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 term of
_this Agreement, a new certificate evidencing renewal of such policy shall be provided not
less than fifteen (15) days prior to the expiration date of the expiring policy. Upon issuance
by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage,
FWCED or its contractors/subcontractors, as the case may be, shall file with the CITY a
certified copy of the new or renewal policy and certificates for such policy.
B. If at any time during the life of this Agreement or any extension,
FWCED fails to maintain the required insurance in full force and effect, all work under this
Agreement shall be discontinued immediately, and the CITY shall not provide further
HOME funds to the Project until notice is received by the CITY that the required insurance
has been restored to full force and effect and that the premiums therefore have been paid
for a period satisfactory to the CITY. Any failure to maintain the required insurance, subject
to Section 10.2, notice and cure, shall be sufficient cause for the CITY to terminate this
Agreement.
9.2 Indemnity. FWCED shall indemnify, hold harmless and defend the CITY and
each of its officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time and property damage)
incurred by the CITY, FWCED or any other person, and from any and all claims, demands.
and actions in law or equity (including attorney's fees and litigation expenses), arising or
alleged to have arisen directly or indirectly out of performance of this Agreement.
FWCED's obligations under the preceding sentence shall apply regardless of whether the
CITY or any of its officers, officials, employees, agents or volunteers are passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active negligence or by the willful misconduct of the CITY 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 indemnify, hold harmless and defend the CITY and each of its officers, officials,
employees, agents and volunteers in accordance with the terms of the preceding
paragraph.
13:1
- -- B. This section shall survive termination 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 policy(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, form, substance, and quality as
acceptable to the CITY's Risk Manager. At its request, the CITY shall be added by
endorsement as a loss payee thereon. Additionally, FWCED, or its CITY -approved lender,
shall ensure that appropriate property insurance is acquired by the individual homebuyers.
9.4 Bond Obligations. Upon the CITY's request, FWCED shall obtain, pay for
and deliver or cause to be obtained, paid for and delivered good and sufficient surety
bonds from a corporate surety, admitted by the California Insurance Commissioner to do
business in the State of California and Treasury -listed, in a form satisfactory to the CITY
and naming the CITY as Co -Obligee..
A. The "Faithful Performance Bond" shall be at least equal to 100% of
Owner's 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 provisions of Chapter 7, Title 15, Part 4, Division 3 of the California Civil Code.
ARTICLE 10. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall
constitute an "Event of Default" for purposes of this Agreement:
A. FWCED's use of HOME Funds for costs other than Eligible Costs or
for uses not permitted by the terms of this Agreement;
B. FWCED'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 limitation 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
`u
- - fifteen (15) consecutive days (other than as provided at Section 7.16 of this Agreement)
prior to submitting to the CITY, pursuant to Section 7.17, certification that the Project is
complete; (5) any material adverse change in the condition of FWCED or the Project that
gives the CITY reasonable cause to believe that the Project 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 CITY's request; (7) FWCED's failure to substantially comply with any federal, state or
local laws or applicable CITY -restrictions governing the Project, including but not limited to
provisions of this Agreement pertaining to equal employment opportunity, nondiscrimination
and lead-based paint;
D. Any representation, warranty, or certificate given or furnished 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 FWCED concealed or failed to
disclose a material fact to the CITY, provided, however, that If any representation,
warranty, or certification that proves to be materially false is due merely to FWCED's
___inadvertence, FWCED shall have a thirty (30) day opportunity after written noticethereofto
cause such representation, warranty, or certification to be true and complete in every
respect;
E. FWCED shall file, or have filed against it, a petition of bankruptcy,
insolvency, or similar law, state or federal, or shall file any petition or answer seeking,
consenting to, or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been
vacated within fourteen (14) days; or shall be adjudicated bankrupt or insolvent, under any
present or future statute, law, regulation, under state or federal law, and such judgment or
decree is not vacated or set aside within fourteen (14) days;
F. FWCED's failure, inability or admission in writing of its inability to 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 properties, and not be removed within ten (10) days;
H. The failure of FWCED to cause completion of the Project prior to
December 29, 2006;
I. FWCED's breach of any other material condition, covenant, warranty,
promise or representation contained in this Agreement not otherwise identified within this
Section;
J. Any substantial or continuous breach by FWCED of any material
obligation owed by FWCED imposed by any other agreement with respect to the financing,
development, construction or operation of the Project, whether or not the CITY is a party to
such agreement; and
10.2 Notice of Default and Opportunity to Cure. The CITY shall give written notice
to FWCED of any Event of Default by specifying (1) the nature of the event or deficiency
giving rise to the default, (2) the action required to cure the deficiency, if any action to cure
Px:3
As -possible, and (3) a date, which shall 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 date of the notice, by which such deficiency must be cured,
provided that if the specified deficiency or default cannot reasonably be cured within the
specified time, with the CITY's written consent, FWCED shall have an additional
reasonable period to cure so long as it commences cure within the specified time and
thereafter diligently pursues the cure in good faith.
10.3 Remedies Upon an Event of Default. Upon the happening of an Event of
Default by FWCED and a failure to cure said Event of Default within the time specified, the
CITY's obligation to disburse HOME Funds shall terminate. The CITY may also at its
option and without notice institute any action, suit, or other proceeding in law, in equity or
otherwise, which it shall deem necessary or proper for the protection of its interests and
may without limitation proceed with any or all of the following remedies in any order or
combination that the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice to FWCED;
B. Bring an action in equitable relief (1) seeking specific 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, and/or (3) seeking declaratory relief;
and
Agreement.
C. Pursue any other remedy allowed by law or in equity or under this
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 Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party will be entitled to recover from the other party its reasonable attorney's fees
and legal expenses.
11.3 Binding on All Successors and Assigns. Unless otherwise expressly provided
in this Agreement, all the terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and their respective nominees, heirs, successors,
assigns, and legal representatives.
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.
MIJ
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nor -any 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 party beneficiary, or of principal
and agent, of limited or general partnership, or of joint venture.
11.6 Discretionary Governmental Actions. Certain planning, land use, zoning and
other permits and public actions required in connection with the Project including, without
limitation, the approval of this Agreement, the environmental review and analysis under
NEPA, CEQA 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, CEQA and any other applicable statutes. The CITY cannot and
does not commit in advance that it will give final approval to any matter. The CITY shall not
be liable, in contract, law or equity, to FWCED or any of its executors, administrators,
_.: transferees, successors -in -interest -or assigns for any failure of any governmental entity to
grant approval on any matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written.
11.8 Entire Agreement. This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
11.10 Expenses Incurred Upon Event of Default. FWCED shall reimburse the CITY
for all reasonable expenses and costs of collection and enforcement, including reasonable
attorney's fees, incurred by the CITY as a result of one or more Events of Default by
FWCED under this Agreement.
11.11 Governing Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this Agreement,
including execution, interpretation, performance, and enforcement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
11.13 Interpretation. This Agreement in its final form is the result of the combined
efforts of the parties. Any ambiguity will not be construed in favor or against any party, but
rather by construing the terms in accordance with their generally accepted meaning.
11.14 No Assignment or Succession. Except as maybe otherwise expressly
provided by this Agreement, neither this Agreement, nor any interest of FWCED in, under,
KE
--of to this Agreement, or the -Project, may be assigned or transferred by FWCED without the
prior written consent of the CITY, which consent shall not be unreasonably withheld or
delayed. Any assignment without consent is null and void.
11.15 No Third -Party Beneficiary. No contractor, subcontractor, mechanic,
materialman, laborer, vendor, or other person hired or retained by FWCED shall be, nor
shall any of them be deemed to be, third -party beneficiaries of this Agreement, but each
such person shall be deemed to have agreed (a) that they shall look to 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 CITY under any circumstances
whatsoever.
11.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising any
right under this AgreemenTshall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of
any other right. No waiver of any provision of this Agreement or consent to any departure
by FWCED therefrom shall be effective unless the same shall be in writing, signed on
behalf of the CITY by a duly authorized officer thereof, and the same shall be effective only
in the specific instance for which it is given. No notice to or demand on FWCED in any
case shall entitle FWCED to any other or further notices or demands in similar or other
circumstances, or constitute a waiver of any of the CITY's right to take other or further
action in any circumstances without notice or demand.
11.17 Nonreliance. FWCED hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in no
manner has it relied on the CITY, it agents, employees or attorneys in entering into this
Agreement.
11.18 Notice. Any notice to be given to either party under the terms of this
Agreement shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties.
If to the CITY: City of Fresno
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, Executive Director
Fresno West Coalition for Economic Development
302 West Fresno Street, Suite 212
Fresno, CA 93705
31
11.19 Precedence of Documents. In the event of any conflict between theJmdy of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
11.20 Recording of Documents. FWCED agrees to cooperate with the CITY and
execute any documents required, promptly upon the CITY's request, the Deed of Trust,
and any other documents/instruments that the CITY requires to be recorded, in the Official
Records of Fresno County, California, consistent with this Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this Agreement
shall be cumulative and in addition to those otherwise provided by law.
11.22 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 provisions hereof or thereof.
ll
11
32
IN WITNESS WHEREOF, the parties have executed this Agreement -in Fresno,
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By.
JON RUIZ
Assistant City Manager
(Attach notary certificate of acknowledgment)
Date: 6 It �. to
ATTEST:
REBECCA E. KLISCH
City Clerk
By: ` i- �Gu
Deputy
Date:
APPROVED AS TO FORM:
HILDA CANTO MONTOY
City Attorney
By:
eput / sistant
Date: d'
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT
a California non-profit public benefit corporation.
By:
/-
KEITH A. KELLEY
Executive Officer
(Attach notary certificate of acknowledgment)
Date:
Attachments:
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
RRC:eb [33549eb/Agmt] 4/26/05
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
SS.
County of Fresno
On June 6, 2005 before me, Maureen L. Barnes, Notary Public
Dale Name aml Title of Officer (e.g.,'Jane Dae, Noury P&ic-)
personally appeared Keith A. Kelley
Name(s) of Signer(s)
. f4
MAUREEN L. BARNES
COMM.#1402455
F NOTARYPUBLIC-CAUFORtM
FRESNO COUNTY
MY Comm. Etpires Feb. 25, 2007
® personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(ies), and that by histher/their
signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand an seal.
Place Notary Seal Above��—
S,gnelure of Notary Public
OPTIONAL
Though the information below is not required by law, R may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: HOME Program CHDO Agreement / South CLara Estates
Document Date: N/A Number of Pages: 47
Signer(s) Other Than Named Above: N/A
Claimed by Signer(s)
Signer's
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❑ Corporate Officer — Title(s .
❑ Partner — ❑Limited ❑ General
❑ Attorney in Fact TOP
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General _
❑ Attorney in Fact '
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❑ Gua It
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Signer Is Representing:
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CALIFORNIAALL-PURPOSE
State of California
County of Fres n o j SS.
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On J(&a I�i%l)U5 before me, nP.Y85A sa (lya , I►Oh!N
Date 0 . e j Name eM Tnle of Officer j0.g., Jane foe, NotePubhe)
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personally appeared �7o�►_
Name(s) of Signer(s)
/Personally known to me
❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that
he/shefthey executed the same in his/her/their
authorized capacity(es), and that by his/her/their
signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
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WITNESS and.official seal.
PlaceNotarySeel Abon
Spmae of Nmry Pubk
OPTIONAL
Though the information below is not required by law, N may prove valuable to persons reiying on the
and could prevent fraudulent removal and reattachment of this form to another document
Attached Document
Title or Type of
Document Date:
Signer(s) Other Than Named
Capacity(les) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer —Male):_
❑ Partner — ❑Limited ❑General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other.
Signer Is
Number
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❑ Attorney rare ❑Attomey
❑ Trustee
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❑ Limited ❑ General
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Signer Is Representing:
0200) Neiv�l Notary Anodalian • 9350 De Solo Ave., P.O. Box 2402 • ChetzmM. CA 913132402 bmn W. 5907 Reorml C TdLFree 1-906976-6827
EXHIBIT A: PROPERTY DESCRIPTION
The Property includes an approximately 2.5 acre site at the southeast corner of Clara and
North Avenue in Fresno, California. The parcel will be subdivided by FWCED at its sole
expense to include ten 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 half 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 at the northeast corner of said
west half of the west half 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 158 feet; thence at a right angle
east and parallel to the north line of said lot 65, a distance of 115 feet; thence at a right
angle north along the east line of said west half of the west half of said lot 65, a distance of
158 feet to the POINT OF BEGINNING.
(c) That portion thereof described as follows: BEGINNING at a point on the north line of
said Lot 65, a distance of 115 feet west from the northeast corner of said west half of the
west quarter of said Lot 65; thence west along the north line of said Lot 65, a distance of 95
feet; thence at right angle south, a distance of 150 feet; 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 feet 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 the east line of said Lot 65 is taken to be 30
feet west of the east line of said northeast quarter.
Page 1 of Exhibit A
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
PROJECT DESCRIPTION
The Project will include the construction of ten (10) single family homes for occupancy by low-
income families. FWCED, at its sole cost will parcelize the land, pay for on-site and off-site
improvements, construct, market and sell the Homes. Consistent with the attached Budget,
FWCED will fund all pre -construction and construction costs with non -HOME Program Funds.
FWCED, or its CITY -approved lender, will qualify all households. Upon CITY approval and
consistent with the Agreement to which this Exhibit A is an attachment, the Homes shall be
sold to the low-income families.
HOME Funds will be 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).
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 30, 2007.
Page 1 of Exhibit B
EXHIBIT C: EXEMPLAR DECLARATION OF RESTRICTIONS
RECORDING REQUESTED BY AND for the
benefit of the City of Fresno and is exempt from
the payment of a recording fee in accordance with
Government Code Sections 6103 and 27383.
►JZIi1TiTIG1:11210*91i1:71ZI91kIV 4 1111101
CITY OF FRESNO
Planning and Development Department
Housing and Community Development Division
Attn: Housing Manager
2600 Fresno Street, Rm. 3076
Fresno, CA 93721-3605
Title Order No. Escrow No.
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
, by [ 1, ("Declarant") in favor of the City of Fresno, acting by and through
its Planning and Development Department, Housing and Community Development Division,
("City").
WHEREAS, Declarant is the owner of the real estate in the county of Fresno, state of
California, consisting of APN [ , which is more particularly described in Exhibit "A",
attached hereto and made a part hereof (the `Property"); and
WHEREAS, Pursuant to a certain HOME Investment Partnerships Program
Community Development Housing Organization (CHDO) Agreement dated [—] incorporated
herein, ("HOME CHDO Agreement") and instruments referenced therein, Declarant agrees to
utilize and City agrees to provide certain HOME Program CHDO Funds from the United
States Department of Housing and Urban Development, to Declarant for certain affordable
housing (the "Project") upon the Property to be sold and maintained as affordable to low
income families, subject to the terms and conditions set forth in the HOME CHDO
Agreement; and
WHEREAS, the HOME Program regulations promulgated by HUD, including without
limitation 24 CFR Section 92.254, and the HOME CHDO Agreement impose certain
affordability requirements upon property benefited thereby, which affordability restrictions
shall be enforceable for a [30] year period; and
Page 1 of Exhibit C
WHEREAS, these restrictions are intended to bind all purchasers and their
successors.
NOW THEREFORE, Declarant declares that the Project Home 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 Declaration, 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 Property. All of the restrictions, covenants and limitations will run with
the land and will be binding on all parties having or acquiring any right, title or interest in the
Project 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 United States and the City, and will be
enforceable by any of them. Any purchaser under a contract of sale covering any right, title
or interest in any part of the Project Home upon the Property, by accepting a deed or a
contract of sale or agreement of purchase, accepts the document subject to, and agrees to
be bound by, any and all restrictions, covenant, and limitations set forth in this Declaration for
the period of [30] 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 set 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 defined 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
the benefit and protection of City, and shall run with the Home upon the Property and be
binding on any future owner's of the Project Home upon the Property and inure to the benefit
of and be enforceable by City. These covenants and restrictions are as follows:
a. Declarant for itself and its successor(s) on title covenants and agrees
that from the Project Completion Date(s) until the expiration 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 Date(s) and
the Affordability Period when determined by the City. Unless otherwise provided 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 race, color, creed, religion, sex, marital status,
national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or
enjoyment of any of the Project Property, nor shall Declarant or any person claiming under
the Declarant, establish or permit any practice of discrimination or segregation with reference
Page 2 of Exhibit C
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 purchaser's principal
residence. The foregoing requirement that the purchaser of each Home constituting the
Project Property occupy the home as the purchaser's principal residence does not apply to
persons, other than natural persons, who acquire the Project Property or portion thereof by
foreclosure or deed in lieu 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 constituting the Project upon
the Property 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 Fresno Metropolitan
Statistical Area applicable to such household's size.
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 period of affordability then the
entire financial assistance provided by City and allocated to the Property/Home including all
HOME Program Funding assistance shall immediately come due and must be repaid
to/recaptured by the City's 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 following termination events: foreclosure, transfer in lieu of
foreclosure or assignment of an FHA insured mortgage to HUD, provided the affordability
restrictions shall be revived according to the original terms if, during the original affordability
period, the owner of record before such termination events obtains an ownership interest in
the housing. The City shall be possessed of a first 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 deed of
conveyance to the Project Property shall constitute an agreement that the Covenant and
Restrictions, as may be amended or supplemented from time to time, are accepted and
ratified by such future owners, tenant or occupant, and such Covenant and Restriction shall
be a covenant running with the land and shall bind any person having at any time any interest
Page 3 of Exhibit C
or estate in the Project Property, all as though such Covenant and Restriction was recited
and stipulated at length in each and every deed, conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer in
lieu of foreclosure, or assignment of an FHA -insured mortgage to HUD, the 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 entity that includes the former owner or those with whom
the former owner has or had formerly, family or business ties, obtains an ownership interest
in the Project or the Property, the Affordability Period shall be revived according to its original
terms.
5. Benefit. This Declaration shall run with and bind the Project Homes upon the
Property for a term commencing on the date this Declaration is recorded in the Office of the
Recorder of the county Fresno, state of California, and expiring upon the expiration of the
Affordability Period. The failure or delay at any time of City or any other person entitled to
enforce this Declaration shall in no event be deemed a waiver of the same, or of the right to
enforce the same at any time or from time to time thereafter, or an estoppel against the
enforcement thereof.
6. Costs and Attorney's Fees. In any proceeding arising because of failure of
Declarant 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 attorney's fees incurred in
connection with such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Project Homes upon the
Property may exempt itself from liability for failure to comply with the Covenant and
Restrictions required in this Declaration.
8. Severability. The invalidity of the Covenant and Restrictions or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of 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 context 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 titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for ease
Page 4 of Exhibit C
and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of City.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in that certain
HOME CHDO Agreement by and between Declarant and City, of even date.
14. Headings. The headings of the articles, sections, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed to affect the meaning
or construction of any provision.
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on
the date first written above.
"DECLARANT"
By:
Date:
In
Date:
Page 5 of Exhibit C
EXHIBIT D: BUDGET
Page 1 of Exhibit D
HOME
Total Private Funds Funds
LAND
$40,000.00
SOFT COSTS
Permit and Fees
$71,866.00
Architecture and Engineering
$50,225.00
Legal
$10,000.00
Taxes/Insurance
$15,000.00
Other
$15,400.00
Total Soft Costs
$162,491.00
HARD COSTS
Site Prep/Grading Prep/Grading
$6,500.00
Off Site Improvements
$82,642.00
On Site Improvements
$82,500.00
Direct Construction
$896,113.00
Contingencies
$90,000.00
Contractor Overhead
$89,611.30
Other
$62,500.00
Total Hard Costs
$1,309,866.30
DEVELOPER FEE
$147,235.73
CONSTRUCTION
FINANCING FEES
$30,250.00
OTHER
Subdivision/Title/Consulting
Fees
$18,600.00
Marketing and Sales
$90,000.00
Total Other Costs
$108,600.00
TOTAL EXPENSES
$1,798,443.03
PROJECTED SALES
PRICE
$1,800,000.00
PERMANENT FINANCING
1 $1,800,000.00 $1,250,000.00 $550,000.00
Page 1 of Exhibit D
EXHIBIT E: EXEMPLAR CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
Department of Planning and Development
Housing and Community Development Division
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
Attention: Housing Manager
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
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 Code
Section 6103.
►��
City of Fresno
M
Nick P. Yovino, Director
Planning and Development Department
Date:
Page 1 of Exhibit E
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
("CITY"), and Fresno West Coalition for Economic Development, a California non-profit public
benefit corporation, ("FWCED"), FWCED agreed to develop ten (10) affordable single family
homes ("Project"), 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 to/occupancy 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 conditions 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 Unit, FWCED may ask CITY to record a Certificate of Completion.
D. FWCED has asked CITY to furnish FWCED with a recordable Certificate of
Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive evidence that
FWCED has completed construction the Project/Project Unit as set forth in the HOME CHDO
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 200[--], and has done 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 Project.
3. This Certificate of Completion is not a notice of completion as referred to
in California Civil Code Section 3093.
Page 2 of Exhibit E
4. Nothing contained herein modifies any provision of the HOME
Agreement.
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of , 2001—L.
CITY OF FRESNO
M
Nick P. Yovino, Director
Planning and Development Department
ATTEST:
CITY CLERK
By:
Deputy
Date:
CONSENT OF OWNER
APPROVED AS TO FORM:
CITY ATTORNEY
Assistant/Deputy
Date:
Owner Name: Owner Name:
By signing below, the owners) of the property consent(s) to recording this Certificate
Completion against the Property described herein.
(Attach notary cerfificate of acknowledgment)
BY PROJECT DEVELOPER
(Attach notary certificate of acknowledgment)
FRESNO WEST COALITION FOR ECONOMIC DEVELOPMENT., a California non-profit
public benefit corporation, the developer of the Property, consents and agrees that all
construction covenants of the Agreement have been met.
By: Date:
(Attach notary certificate of acknowledgment
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 f 1
200[ ---
For value received, the undersigned, [ 1, a [ 1 ("Borrower'), promises
to pay to the order of the City of Fresno, a California municipal corporation, ("Lender"), the
sum of [ 1 Dollars, ($ ), payable without interest; all due and
payable on or before the earlier of (i) Borrower's sale or other transfer of that Affordable
Housing Unit referenced in the parties' HOME Investment Partnerships Program Community
Development Housing Organization Agreement dated [ 1 ("HOME CHDO
Agreement") to which this Promissory Note relates, and (ii) Borrower's failure to maintain as
his/her principal residence that Affordable Housing Unit referenced in the parties' HOME
CDHO Agreement, on which date ("Maturity Date") the unpaid principal balance (interest free)
together with unpaid penalties or late charges where applicable thereon shall be due and
payable, along with attorney's fees and costs 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 this Promissory Note), HUD 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 pro rata the securing
Deed of Trust.
All capitalized terms used in this Note, unless otherwise defined, will have the respective
meanings specified in the HOME CHDO Agreement. In addition, as used in this Note, the
following terms will have the following meanings:
Business Day means any day other than Saturday, Sunday, or public holiday or the
equivalent for banks generally under the laws of California. Whenever any payment to be
made under this Note is stated to be due on a day other than a Business Day, that payment
may be made on the next succeeding Business Day. However, if the extension would cause
the payment to be made in a new calendar month, that payment will be made on the next
preceding Business Day.
Maturity Date means the date above defined. The Affordability Period begins on the date the
Lender issues the Project Certificate of Completion.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust, Security
Agreement and Fixture Filing with Assignment of Rents on real estate in Fresno County,
California, that provides for acceleration upon stated events, dated as of the same date as
Page 1 of Exhibit F
this Note, and executed in favor of and delivered to the Lender ("Deed of Trust'), insured as a
not worse than 2ntl position lien on the Property.
Time is of the essence. It will be a default under this Note if Borrower defaults under the
HOME CHDO Agreement, defaults under any other Loan Documents, or if Borrower fails to
pay when due any sum payable under this Note. In the event of a default by 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 rise to the
right to accelerate the balance of the indebtedness, then, at the option of Lender, this Note or
any notes or other instruments that may be taken in renewal or extension of all or any part of
the indebtedness will immediately become due without any further presentment, demand,
protest, or notice of any kind.
The indebtedness evidenced by this Note 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 Note may, from time to time, in writing designate, and
in the absence of that designation.
Borrower agrees to pay all costs including, without limitation, attorney fees, incurred by the
holder of this Note in enforcing payment, whether or not suit is filed, and including, without
limitation, all costs, attorney fees, and expenses incurred by the holder of this Note in
connection with any bankruptcy, reorganization, arrangement, or other similar proceedings
involving the undersigned that in any way affects the exercise by the holder of this Note of its
rights and remedies under this Note. All costs incurred by the holder of this Note in any
action undertaken to obtain relief from the stay of bankruptcy statutes are specifically
included in those costs and expenses to be paid by Borrower. Borrower will pay to Lender all
attorney fees and other costs referred to in this paragraph on demand.
Any notice, demand, or request relating to any matter set forth herein shall be in writing and
shall be given as provided in the HOME CHDO Agreement.
No delay or omission of Lender in exercising any right or power arising in connection with any
default will be construed as a waiver or as acquiescence, nor will any single or partial
exercise preclude any further exercise. Lender may waive any of the conditions in this Note
and no waiver will be deemed to be a waiver of Lender's rights under this Note, but rather will
be deemed to have been made in pursuance of this Note and not in modification. No waiver
of any default will be construed to be a waiver 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 the sale or
transfer, without the Beneficiary's prior written consent, of all or any part of the Property, or
any interest in the Property. A "sale or transfer' means the conveyance of the Property or
any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or --
involuntary; whether by outright sale, deed, installment sale contract, land contract, contract
for deed, leasehold interest with a term greater than three (3) years, lease -option contract, or
by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to
the Property, or by any other method of conveyance of land interest. If any 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 shall
not be exercised by Beneficiary if such exercise is prohibited by applicable law.
Lender may transfer this Note and deliver to the transferee all or any part of the Property then
held by it as security under this Note, and the transferee will then become vested with all the
powers and rights given to Lender; and Lender will then be forever relieved from any liability
or responsibility in the matter, but Lender will retain all rights and powers given by this Note
with respect to Property not transferred.
If any one or more of the provisions in this Note is held to be invalid, illegal, or unenforceable
in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of
the remaining provisions will not in any way be affected or impaired. This Note will be binding
on and inure to the benefit of Borrower, Lender, and their respective successors and assigns.
Borrower agrees that this Note will be deemed to have been made under and will be
governed by the laws of California in all respects, including matters of construction, validity,
and performance, and 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
EXHIBIT B - REVISED PROJECT SCHEDULE
PROJECT SCHEDULE:
A. Commencement of Construction: Not later than 60 days following parcel
map approval by City of Fresno
B. Project Completion:
C. Completion of Home Sales:
Not later than June 30, 2008
Not Later than September 30, 2008
ACKNOWLEDGMENT
State of California
County of Fresno
On 004�dQZ07 before me, Theresa Saldivar, Notary Public
(here insert name and title of the officer)
personally appeared `7o n I?A4 f Z
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(.$) whose name(,s� is/subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
THERESA SAL0IVAR
WITNESS my hand and official seal. o@MyConim.Ex
COMM. #1649668 A
¢ Notary Public - California`� ������� ,, ,,, AFresno County
Signature �J�i�(/c.V/Q.<�JZ�'Z�'f/ ✓ I/w fires Aar. 3, 2070
(Seal)
May 16, 2007
TO: MAYOR ALAN AUTRY
i'✓ -ice
FROM: REBECCA E. KLISCH;'C7vIC
City Clerk
Council Adoption: 5//07
RECEIVED Mayor Approval:
Mayor Veto:
2001 MAY 29 PM 3: OQverride Request:
CITY CLERK. FRESNO C/
SUBJECT: TRANSMITTAL OF COUNCIL ACTION FOR APPROVAL OR VETO
At the Council meeting of 5/15/07, Council took legislative action entitled Appv Home CHDO
agrmnt w/Fresno West coalition granting time extension for S. Clara Estates
Affordable single Fam. Dev. (amended, ext to June, 2008, Item No. 1A, by the following
vote:
Ayes
Calhoun, Dages, Duncan, Sterling, Westerlund, Xiong, Perea
Noes
None
Absent
None
Abstain
None
Please indicate either your formal approval or veto by completing the following sections and
executing and dating your action. Please file the completed memo with the Clerk's office on
or before May 29, 2007. In computing the ten day period required by Charter, the first day
has been excluded and the tenth day has been included unless the 10th day is a Saturday,
Sunday, or holiday, in which case it has also been excluded. Failure to file this memo with
the Clerk's office within the required time limit shall constitute approval of the ordinance,
resolution or action, and it shall take effect without the Mayor's signed approval.
Thank you.
C
APPROVED:
VETOED for the following reasons: (Written objections are required by Charter; attach
additional sheets if necessary.)
Autry, Mayor
COUNCIL OVERRIDE ACTION:
Ayes
Noes
Absent
Abstain
Date: S 114,110,
Date: