HomeMy WebLinkAboutHabitat for Humanity Fresno Laval Affordable Single Family Homes1b pl)
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Recorded at the Request of
and When Recorded Return to:
City of Fresno
City Clerk's Office
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
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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
CITY OF FRESNO
Bruce Rudd, City Manager
Date:
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION
AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
Habitat for Humanity Fresno, Inc.
a California Corporation
regarding
Laval Affordable Single-Family Homes Project
4713, 4714, 4719, E. Belgravia and 2370, 2974, 23v8,2382,2386, and 23g0 s. Laval,
(4. P. N. s : 480-21 4-01, 480-21 4-02, 480-21 S-0 1, 4AO-21 S-02,
480-215-03, 480-215-04, 480-215-05, 4A0-215-06, and 4ïO-215-OZ)
Southeast Fresno, CA 93725
TABLE OF CONTENTS
Paqe
REC|TA1S.............. .............. 3
ARTTCLE 1. DEF|N|T|ONS .................4
ARTTCLE 2. TERMS ........... I
ARTICLE 3. GENERAL REPRESENTATIONS AND
WARRANTIES OF DEVELOPER ........ 8
ARTICLE 4. HOME PROGRAM REPRESENTATION AND
WARRANTIES OF DEVELOPER. ....... 9
ARTICLE 5. COVENANTS AND AGREEMENTS OF DEVELOPER. ..............,14
ARTICLE 6. DISBURSEMENT OF HOME FUNDS.... ....... 18
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT .............20
ARTICLE 8. OPERATION OF THE PROJECT .................24
ARTICLE 9. INSURANCE, INDEMNITY AND BONDS........... ...,......26
ARTICLE 10. DEFAULTAND REMEDIES.............. .......,..32
ARTICLE 11. GENERAL PROVISIONS. ...........34
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HOME INVESTMENT PARTNERSHIPS PROGRAM GOMMUNITY HOUSING
DEVELOPMENT ORGANIZATION AGREEMENT
This HOME lnvestment Partnerships Community Housing Development
Orga
acting tHrough its Development and Resource Management Department - Housing and
Community Development Division (hereinafter referred to as the "C|TY"), and Habitat for
Humanity Fresno, lnc. a California corporation (hereinafter referred to as "DEVELOPER").
RECITALS
A. WHEREAS, the CITY has received a HOME lnvestment Partnerships ("HOME")
Community Housing Development Organization ('CHDO') grant from the U.S. Department
of Housing and Urban Development (hereinafter referred to as ("HUD"), under Title ll of the
Cranston-Gonzalez National Affordable Housing Act of 1990, as amended (hereinafter
referred to as the "Act").
B. WHEREAS, to advance the supply of Affordable housing within the City of Fresno
the CITY desires, among other things, to encourage investment in the affordable housing
market.
C. WHEREAS, the DEVELOPER has been certified by the CITY as a CHDO in
accordance with HUD's certification criteria.
D. WHEREAS, the DEVELOPER desires to acquire nine (9) vacant lots at no more
than fair market value (collectively the "Property") located within the boundaries of the City
of Fresno, as more particularly described in EXHIBIT "A' - Property Description, and
construct nine (9) new single-family homes and related on-site and off-site improvements
(hereinafter referred to as the "Project") utilizing sweat-equity from the proposed
homebuyers.
E. WHEREAS, the DEVELOPER desires to act as the owner/developer exercising
effective project control, as to the acquisition of the nine (9) lots and construction of the
nine (9) single-family house of which nine (9) will be HOME CHDO-assisted units to be
preserved as Low-lncome homeownership housing, as defined by the HOME CHDO
Program, and related on-site and off-site improvements as more particularly described in
EXHIBIT uBu - Project Description and Schedule, incorporated herein.
F. WHEREAS, the Project will be constructed upon HOME CHDO Program
Property to be purchased at no more than fair market value and owned
DEVELOPER in fee simple title.
G. WHEREAS, to further its goal to increase the supply of Affordable Housing within
the City of Fresno, the CITY desires to assist to the Project by providing the DEVELOPER
with Eight Hundred Forty Five Thousand dollar and 00/100 ($845,000.00) in HOME CHDO
Funding as an assumable and partially forgivable loan, for eligible HOME CHDO Project
Property acquisition and construction costs, upon the terms and conditions in this
Agreement, as further identified in EXHIBIT'C" - Budget, variously to be secured by the
eligible
by the
x
underly¡ng real Property and the Affordable Housing covenants attached as EXHIBIT uDu -Exemplar Declaration of Restriction, and Note, Exemplar Notes attached as EXHIBIT'F'-
Promissory Note loan, upon the terms and conditions in this Agreement.
H. WHEREAS, a March 29, 2013, environmental review of the Project pursuant to the
Exemption. Additionally, a 2013, environmental review of the Project
Policy Act ("NEPA") guidelines resulted in a
l. WHEREAS, the CITY has determined that this Agreement is in the best interest 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 interest 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-
lncome Housing available at an affordable cost to Low-lncome households, as defined
hereunder, (v) planning and administrative expenses incurred in pursuit hereof are
necessary for the production, improvement, or preservation of Low-lncome Housing, and
(vi) will comply with any and all owner participation rules and criteria applicable thereto.
J. WHEREAS, the CITY and DEVELOPER have determined that the Project's HOME
CHDO-assisted Units constitute routine programmatic/grantee lender activities utilizing
available and allocated program/grantee funding, outside the reach of the California
Constitution Article XXXIV and enabling legislation.
K. WHEREAS, the parties acknowledge and agree that the obligations and liabilities of
the DEVELOPER hereunder shall be joint and several unless and except to any extent
expressly provided otherwise.
L. WHEREAS, on June 29, 2013, the Housing and Community Development
Commission of the City of Fresno reviewed this HOME CHDO Agreement and
recommended approval.
M. WHEREAS, on April 25, 2013, the DEVELOPER'S Board reviewed and approved
the development of the Project and HOME CHDO Agreement.
NOW, THEREFORE, lN CONSIDERATION of the above recitats, 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 I. 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
amended.
ADA means the Americans with Disabilities Act of 1990, as most recently
4
Iri
1.2 Acquisition means vesting of the Property in fee title.
1.3 Affirmative Marketino means a good faith effort to attract eligible persons of
all racial, ethnic and gender groups, in the housing market area, to purchase the proposed
Housing Unit(s) that are proposed for construction on the eligible Property, as hereinafter
defined.
1.4 Affordabilitv Period means the minimum period of thirty (30) years
commencing from the date the CITY enters project completion information into HUD's
lntegrated Disbursement and lnformation System (lDlS), which date will be provided to the
DEVELOPER by the CITY and added as an administrative amendment hereto; City agrees
to enter project completion information into lDlS within 30 days of City's receipt thereof.
1.5 Affordable Housinq means the for sale housing units of which all nine (9)
single-family homes will be required to meet the affordability requirements of 24 C.F.R.
92.252.
1.6 Budget means the Budget for the development of the Project, as may be
amended upon the approval of the CITY's Housing and Community Development Division
Manager provided any increase in HOME CHDO Funds hereunder requires City Council
Approval, attached hereto as EXHIBIT "C'.
1.7 Certificate of Completion means that certificate issued, in the form attached
as EXHIBIT "E" ("Exemplar Certificate of Completion"), to the DEVELOPER by the CITY
evidencing completion of the Project and a release of construction related covenants for
the purposes of the Agreement.
1.8 CFR means the Code of Federal Regulations.
1.9 Commencement of Construction means the time the DEVELOPER or the
DEVELOPER's construction contractor begins substantial physical work on the Property,
including, without limitation, delivery of materials and any work, beyond maintenance of the
Property in íts status quo condition, which shall take place in accordance with the Project
Schedule.
1.10 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT "D", which contains the Affordability covenants and
requirements of this Agreement which shall run with the land and which the DEVELOPER
shall record or cause to be recorded against the Property no later than the date of
Commencement of Construction.
1.11 Deed of Trust means that standard form Deed of Trust approved by CITY
recorded against the Property, insured in the full amount of the Loan on the Property.
1.12 Eliqible Costs means the HOME CHDO eligible Property acquisition and
construction costs funded by the Loan, consistent with the Project Budget attached as
EXHIBIT "C", allowable under 24 C.F.R. Part 92, as specified in 24 C.F.R. 92.205 and
92.206, and not disallowed by 24 C.F.R. 92.214, provided, however, that costs incurred in
(_
connect¡on w¡th any activity that is determined to be ineligible under the Program by HUD
or the CITY shall not constitute Eligible Costs.
1.13 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.14 Fundinq Sources means the CITY's HOME CHDO Funds, the DEVELOPER's
funds, and any other funds that may become available to the project.
1.15 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
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.
1.16
Pevelopment Orqanization (CHDOì Funds (referred to in this Agreement as HOME CHDO
Funds) means the Program monies consisting of the Loan in an amount not to exceed the
sum of Eight Hundred Forty Five Thousand dollars and 00/100 ($845,000.00) to be usedfor eligible Project acquisition and construction development costs, pursuant to this
Agreement.
1.17 Household means one or more persons occupying a single-family home
within the Project.
1.18 HUD means the United States Department of Housing and Urban
Development.
1.19 Loan means the assumable Project Loan of HOME CHDO Funds, in the total
amount of Eight Hundred Forty Five Thousand dollars and oo/1oo ($g45,000.00) and the
aggregate HOME CHDO per unit cap (24 CFR 92.250) for the nine (9) HOME CHDO-
assisted Units as determined by the CITY and made available by the CITY to the project
pursuant to this Agreement, as more specifically described in the Budget and in the
Promissory Note attached as EXH|B|T "F". The Loan shall be proportionately (B at $93,BBgand 1 at $93,888) allocated to A.P.N.s 480-214-01,480-214-02,4BO-21S-Oi,'4g0-215-02,
480-215-03, 480-215-04, 480-215-05, 480-21s-06, and 4g0-21s-07, and be payable in
accordance with the terms of the Note, shall be secured by a deed of trust on each parcel
constituting the Property, and shall be subject to the Rider to Deed of Trust attached as
EXHIBIT 'G'. Upon conveyance of each completed Unit to a Low-tncome homebuyer
through purchase escrow, the sum of Seventeen Thousand dollars and 00/100
($17,000.00) shall be forgiven so long as the DEVELOPER is not then in default of this
Agreement and confirms said reduction in principal in writing noticed to the ClTy in a
manner provide herein.
6
1.20 Loan Documents are collectively this Agreement, the Note (attached heretoas EXHIBIT "F"), Deed of Trust, Declaration 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.
1.21 Low-lncome Household 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
eighty percent (80%) of the median for the area on the basis of HUD finding that such
variations are necessary.
1.22 Note means that certain assumable, HOME CHDO Loan Note in a principal
amount not to exceed the HOME CHDO Program per unit cap (24 C.F.R. 92.250) as
determined by the Clry, given by the DEVELOPER as promissor, in favor of the CITY as
promisee, evidencing the Loan and performance of the affordability and other covenants
and restrictions set forth in this Agreement, secured by the Deed of Trust as 2nd position
lien upon the Property, naming the CITY as beneficiary and provided to the CITY, no later
than the date of the Affordable Project funding hereunder, an exemplar of which is attached
her to as EXHIBIT "F", and incorporated herein, as well as any amendments to,
modifications of and restatements of said Note consented to by the ClTy.
1?3 Proqram lncome has the meaning provided in the HOME Program including
24 C.F.R. 92.503.
1.24 Proiect means acquisition of the nine (9) vacant lots and the construction of
nine (9) single-family homes at the Property and sold as Low-lncome Housing, and related
on-site and off-site improvements all as described in the Project Description and Schedule
attached hereto and incorporated herein as EXHIBIT '8", upon the property as more
particularly described in EXHIBIT'4".
1.25 Project Completion Date means the date that the CITY shall have determined
that the Project 1) has reached completion in accordance with the plans and specifications
as approved by the CITY; 2) is in compliance with all Housing Standards, and 3) has been
issued a Certificate of Occupancy, 4) final Project costs and homebuyer Household
information is entered into lDlS.
1.26 Proiect Schedule means the schedule for commencement and completion
and close of escrow of the Project included in EXHIBIT "8".
1.27 Propertv means the vacant parcels located a|4713, 4714, 4719, E. Belgravia
and 2370, 2374, 2378, 2382,2386, 2390 S. Laval, Fresno, cA gg72s (A.p.N.s: 4go-214-
01, 480-214-02, 480-215-01, 480-215-02, 490-215-03, 490-215-04, 4g0-215-05, 4gO-215-
06,480-215-07), more specifically described in the Property Description attached EXHIBITuA".
1.28 Unit means the nine (9) single-family Housing Units to be constructed upon
the Property and preserved as Affordable Housing for the duration of the thirty (30) year
Affordability Period.
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ARTICLE 2. TERMS
2.1 Loan of HOME Funds, The CITY agrees to provide a Loan of HOME CHDO
Funds to the DEVELOPER, in an amount not to exceed Eight Hundred For$ Five
Thousand dollars and 00/100 ($845,000.00) under the terms and conditions provided in
this Agreement and Exhib¡t 'B'- Project Description and Schedule. The HOME CHDO
funds shall only be used for payment of HOME CHDO-eligible Project acquisition and
construction costs.
2.2 Loan Documents. The DEVELOPER shall execute and deliver the Note to
the CITY and the Deed of Trust to Chicago Title Company for recordation against the
Property, as provided for in this Agreement.
2.3 Term of Aoreement. This Agreement is effective upon the date of execution
and shall remain in force with respect to the Project for the duration of the Affordability
Period unless earlier terminated as provided herein. After the thirty (30) year Affordability
Period, this Agreement will expire. lt is understood and agreed upon, however, that íf for
any reason this Agreement should be terminated in whole or in part as provided hereunder,
without default, the DEVELOPER prior to disbursement of HOME CHDO Funding
hereunder, the CITY agrees to record a Notice of Cancellation regarding this Agreement
upon the written request of the DEVELOPER.
2.4 Loan Repavment and Maturitv. The Loan will be due and payable in
accordance with the Note and not later than the Maturity date provided in the Note.
2.5 lncorporation of Documents. The Loan Documents, the Act and HUD
regulations at 24 C.R.F. Part 85, 92, CPD 98-2 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 othenruise provided
to/procured by the parties and reviewed by each of them prior to execution hereof.
2.6 Covenants of DEVELOPER. The DEVELOPER for itself and its
agents/assigns covenants and agrees to comply with all the terms and conditions of this
Agreement and the requirements of 24 CFR Parl92 that are applicable to the Project.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Existence and Qualification. The DEVELOPER, represents and warrants to
the CITY as of the date hereof, that the DEVELOPER is a duly organized California
corporation in good standing with the State of California; the DEVELOPER has the
requisite power, right, and legal authority to execute, deliver, and perform its obligations
under the HOME CHDO Agreement 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 by the DEVELOPER enforceable against
the DEVELOPER in accordance with its respective terms, except as such enforceability
may be limited by: (a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other similar laws of general applicability affecting the enforcement of
creditors' rights generally, and (b) the application of general prínciples of equity without thejoinder of any other party.
3.2 No Litioation Material to Financial Condition. The DEVELOPER represents
and warrants to the City 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 governmentàl
body or agency is now pending, nor, to the best of the DEVELOPER's knowledge, is any
such litigation or proceeding now threatened, or anticipated against the DEVELOÞER thai,
if adversely determined, would have a material adverse effect on the financial condition,
business, or assets of the DEVELOPER or on the operation of the Project.
3.3 No Conflict of lnterest. The DEVELOPER represents and warrants to the City
as of the date hereof that no officer, agent, or employee of the CITY directly or indirecfly
owns or controls any interest in the DEVELOPER, and no person, directly or indirecfly
owning or controlling any interest in the DEVELOPER, is an official, officer, agent, or
employee of the CITY.
3.4 No Leqal Bar. The DEVELOPER represents and warrants to the CITY, as ofthe date hereof that the execution, delivery, performance, or observance by the
DEVELOPER of this Agreement will not, to the best of the DEVELOPER's knowledge,
materially violate or contravene any provisions of: (a) any existing law or regulation, or ãny
order of decree of any court, governmental authority, bureau, or agency; (b) governing
documents and instruments of the DEVELOPER; or (c) any mortgage, indenture-, security
agreement, contract, undertaking, or other agreement or instrument to which the
DEVELOPER is a party or that is binding on any of its properties or assets, the result of
which would materially or substantially impair the DEVELOPER's ability to perform and
discharge its obligations or its ability to complete the Project under this Agreement.
3.5 No Violation of Law.-The DEVELOPER represents and warrants as of the
date hereof that, to the best of the DEVELOPER's knowledge, this Agreement and the
operation of the Project as contemplated by the DEVELOPER, do not vlolate any existing
federal, state or local laws of regulations.
3.6 No Litigation Material to Project. The DEVELOPER represents and warrants as of
the date hereof, 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 the DEVELOPER that questions the validity of this Agreement, or of any actionto be taken under this Agreement, that would, if adversely determined, mateiially or
substantially impair the DEVELOPER's ability to perform and observe its obligations uñder
this Agreement, or that would either directly or indirectly have an adverse effect or impair
the completion of the Project.
3.7 Assurance of GovernmentalApprovals and Licenses. The DEVELOPER represents
and warrants to the CITY, as of the date hereof, that the DEVELOPER has obtained and,
to the best of the DEVELOPER's knowledge, is in compliance with all federal, state, and
local governmental reviews, consents, authorizations, approvals, and licenses presenfly
required by law to be obtained by the DEVELOPER for the Project prior to construction.
I
ARTICLE 4. HOME PROGRAM REPRESENTATION AND WARRANTIES BY
DEVELOPER
The DEVELOPER, for itself and its development team represents and warrants that:
4.1 Accessibility. The DEVELOPER covenants and agrees with the CITY that it
shall comply with all federal regulations concerning accessibility requirements in federally
funded housing, including, but not limited to the following:
A. At least five percent (5%) of the dwelling units, or at least one (1),
whichever is greater, must be constructed to be accessible for persons with moUitity
disabilities. An additional two percent(2o/o) of the dwelling units, or at least one (1) unii,
whichever is greater, must be accessible for persons with hearing or visual disabilities.
These units must be constructed in accordance with the Uniform Federal Accessibility
Standards (U.F.A.S.) or a standard that is equivalent or stricter. These mandates can be
found al24 C.F.R. Part 8, which implements Section 504 of the Rehabilitation Act of 1g73
(2e u.s.c.7e4).
B. Title lll of the Americans with Disability Act of 1990 (ADA) as it relates to
the homebuyer.
4.2 Universal Desiqn Ordínance. The design and construction requirements as
required by the CITY's Universal Design Ordinance pursuant to FMC 11-110, including, but
not limited to the followíng requirements:
i. No step accessible entryway;¡i. All interior doorways and passageways at reast 32 inches wide;iii. one downstairs "flex room" and accessibre bathroom with
reinforcements for grab bars;iv. Six square feet of accessible kitchen counter space; andv. Hallways at least 42 inches wide.
4.3 Affirmative Marketinq. The DEVELOPER warrants, covenants and agrees
that it shall comply with all affirmative marketing requirements, including without limitã¡on,
those set out al24 C.F.R. 92.350 and 92.351, in order to provide informãtion and otherwise
qttract eligible persons from all racial, ethnic and gender groups in the housing market. The
DEVELOPER shall be responsible for complying with the CITY's "Affirmative Marketing
Policy" document, as amended from time to time. The DEVELOPER shall maintain recordè
of actions taken to affirmatively market units constructed in the future, and to assess the
results of these actions.
4.4 AvailaÞilitv of HOME Funds. The DEVELOPER understands and agrees that
the availability of HOME CHDO Funds is subject to the control of HUD, or othér federal
agencies, and should said Funds be encumbered, withdrawn or othenruise made
unavailable to the CITY, whether earned by or promised to the DEVELOPER, and/or
should the CITY in any fiscal year hereunder fail to allocate said Funds, the ClTy shall not
provide said Funds unless and until they are made available for payment to the ClTy by
HUD and the CITY receives and allocates said Funds. No other funds owned or controlleá
10
by the Clry shall be obligated under this Agreement to the Project.
4.5 Compliance with Aqreement. The DEVELOPER warrants, covenants and
agrees that, in accordance with the requirements of 24 C.F.R. 92.252 and 24 C.F.R. Part
85, upon any uncured default by the DEVELOPER within the meaning of Article 10.1 of this
Agreement, the CITY may suspend or terminate this Agreement and all other agreements
with the DEVELOPER without waiver or limitation of rights/remedies otherwise availabte to
the CITY.
4.6 Conflict of lnterest. The DEVELOPER warrants, covenants and agrees that it
shall comply with the Conflict of lnterest requirements of 24 C.F.R. 92.356 including,
without limitation, that no officer, employee, agent or consultant of the DEVELOPER may
occupy a Project Unit. The DEVELOPER understands and acknowledges that no
employee, agent, consultant, officer or elected official or appointed official of the CITY, who
exercises 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 C.F.R.
92.356(f), no owner, developer or sponsor of the Project, or officer, employee, agent or
consultant thereof, may occupy a Project Unit.
4.7 Construction Standards. The DEVELOPER shall construct the proposed
Project Units assisted under this Agreement in compliance with all applicable local codes,
ordinances and zoning requirements in effect at the time of issuance of CITY building
permits.
4.8 Covenants and Restrictions to Run with the Land. The CITY and the
DEVELOPER 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, the CITY may release said covenants
and restrictions only upon recapture of all HOME CHDO Funding allocated to the Unit(s) by
the CITY. The DEVELOPER further warrants, covenants and agrees to ensure that the
covenants and restrictions set forth herein shall run in favor of the CITY.
A. The CITY and the DEVELOPER 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-lncome Households, and (b) by making possible the obtaining of advantageous
financing for construction.
B. The DEVELOPER covenants and agrees with the City that after
issuance of a recorded Certification of Completion for the Project until the expiiation of the
Affordability Period it shall cause nine (9) of the Project Units to be sold as Affordable
Housing to Low-lncome Households.
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
11
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. All present and future owners of the Property and other persons
claiming by, through, or under them shall be subject to and shall comply with the covenants
and restrictions. The acceptance of a deed of conveyance to the Property shall constitute
an agreement that the covenants and restrictions, as may be amended or supplemented
from time to time, are accepted and ratified by such future owners, tenant or occupant, and
all such covenants and restrictions shall be covenants running with the land and shall bind
any person having at any time any interest or estate in the Property, all as though such
covenants and restrictions were recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
E. The failure or delay at any time of the CITY or any other person
entitled to enforce any such covenants or restrictions shall in no event be deemed a waiver
of the same, or of the right to enforce the same at any time or from time to time thereafter,
or an estoppel against the enforcement thereof.
4.9 Displacement of Persons. The DEVELOPER covenants and agrees with the
City that pursuant to 24 C.F.R. 92.353, it will take all reasonable steps to minimize the
displacement of any persons (families, individuals, businesses, nonprofit organizations and
farms). The parties acknowledge and agree that the Property is currently vacant land and
is not occupied.
4.10 Initial and Annual lncome Certification and Reportinq. The DEVELOPER
covenants and agrees that it shall comply with the procedures for income determinations at24 C.F.R. 92.203. The DEVELOPER, shall obtain, complete and maintain on file,
immediately prior to initial occupancy, and annually thereafter, income certifications from
each nine (9) Affordable Project Unit Household. The DEVELOPER, 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 stêps 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
income tax return for the most recent tax year; (5) if the applicant is uñemployed, obtain
another form of independent verification; or (6) conduct a credit agency or similar search.
Copies of Household income certification and verification must be àvailable for revíew and
approval by the CITY prior to the close of escrow and the transfer of the tifle to a Low-
lncome homebuyer. The DEVELOPER further warrants, covenants and agrees that it
cooperate with the CITY in the CITY's income certification/affordability monitoring activities
at the time subsequent to the initial transfer of the property unit.
4.11 Lead-Based Paint. The DEVELOPER covenants and agrees with the City
that it shall comply with all applicable requirements of the Lead-Basèd paint poisoning
Prevention Act of 42 U.S.C. 4821 etseq.,24 C.F.R. Part 35, including the HUD 1012 Rule,
and 24 C.F.R. 982.401O, and any amendment thereto, and Environmental Protection
Agency (EPA) Section 402 (c)(3) of the Toxic Substances Control Act (TSCA) to address
lead-based hazards created by renovation, repair, and painting activities that disturb lead-
"l)
12
based paint in target housing and child-occupied facilities. Contractors performing
renovations in lead-based paint units must be EPA-certified renovators. These
requirements apply to all units and common areas of the Project. The DEVELOPER shall
incorporate or cause incorporation of this provision in all contracts and subcontracts for
work performed on the Project, which involve the application of paint. The DEVELOPER
shall be responsible for all disclosure, inspection, testing, evaluation, and control and
abatement activities.
4.12 Minoritv Outreach Activities. The DEVELOPER covenants and agrees that it
shall comply with all federal laws and regulations described in Subpart H of 24 C.F.R. Part
92, including, without limitation, any requirement that the DEVELOPER comply with the
CITY's minority outreach program.
4.13 Other Laws and Regulations. The DEVELOPER covenants and agrees that,
in additlon to complying with the federal laws and regulations already cited in this
Agreement, the DEVELOPER has reviewed, and shall comply with and require all its
contractors and subcontractors on the Project to comply with, all other federal laws and
regulations that apply to the HOME CHDO Program, including, without limitation,
requirements of 24 C.F.R.58.6 and the Flood Disaster Protection Act of 1973, as amended
(42 U.S.C.40014128 the following:
A. The DEVLOPER 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 land acquisition
and construction of the Project.
B. The Project is not located in a tract identified by the Federal
Emergency Management Agency as having specialflood requirements.
C. The Project requirements, Subpart F of 24 C.F.R. Part 92, as
applicable and in accordance with the type of Project assisted, including, but not limited to,
the HOME CHDO per-unit subsidy amount at24 C.F.R. 92.250.
D. The property standards at 24 CFR 92.251.
E. The Project "Labor" requirements, as applicable, of 24 C.F.R. 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. The DEVELOPER 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
Executive Order (E.O.) 11246, "Equal Employment Opportunity", as amended by E.O.
11375, (amending E.O. 11246 Relating to Equal Employment Opportunity), and as
supplemented by regulatíons at 41 C.F.R. part 60, "Office of Federal Contract Compliance
,ì
\'r13
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 C.F.R. 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").
l. The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and the
FederalWater Pollution ControlAct (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 at24 C.F.R. part24.
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 parl24, subpart F.
M. Title 8 of the Civil Rights Act of 1968 PL. 90-284.
N. E.O. 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.
O. Clean Water Requirements 33 U.S.C. 1251.
R. Civil Rights Requirements, 29 U.S.C. 623, 42 U.S.C. 2000, 42 U.S.C.
6102,42 U.S.C 12112,42 U.S.C. 12132,49 U.S.C 5332,29 C.F.R. Part 1630,41 C.F.R.
and Part 60 et seq.
4.14 Faith Based Activities. The DEVELOPER warrants, covenants and agrees
that it shall not engage in any prohibited activities described in 24 C.F.R.92.257.
4.15 Reportinq Requirements. The DEVELOPER warrants, covenants and agrees
with the City that it shall submit performance reports to the CITY as detailed in Section7.18. Furthermore, the DEVELOPER agrees to provide, at the sole cost of the
DEVELOPER, an annual audited Financial Statements for the Project expenses and
ongoing financial transactions which occur as a result of this Agreement as detailed in
Section 5.5. The DEVELOPER agrees to account for the expenditure of HOME CHDO
Funds using generally accepted accounting principles, which financial documentation shall
be made available to the CITY and HUD upon their respective written request(s).
4.16 Affordabilitv Period. The DEVELOPER covenants and agrees with the City
that the nine (9) Project Units will be Affordable Housing available to Low-lncome
Households and other requirements of 24 C.F.R. 92.252 upon sale of the nine (9) homes to
eligible Low-lncome homebuyers, except upon foreclosure by a lender or transfer in lieu of
\
14
foreclosure following default under a Deed of Trust. ln the event DEVELOPER fails to
comply with this section, the DEVELOPER shall return to the City all HOME CHDO Funds
disbursed to the DEVELOPER by the City.
4.17 Terminated Proiects. The DEVELOPER 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 CHDO
Program assistance funding to the Project and the CITY may seek available relief.
ARTICLE 5. COVENANTS AND AGREEMENTS OF DEVELOPER
The DEVELOPER covenants and agrees to the following, for the entire term of the
Agreement.
5.1 Adequate Repair and Maintenance. The DEVELOPER shall, during the
entire Affordability Period shall cause the maintenance the Project and Property to be in
compliance with all applicable codes, laws, and ordinances.
5.2 Affordable Rental Housinq. The DEVELOPER covenants and agrees that the
Affordable Project shall constitute nine (9) affordable Housing Units for sale aìd preserved
for Low-lncome Households during the thirty (30) year affordability period. ln the event the
DEVELOPER fails to comply with the time period in which the Affordable Units constitute
Affordable Housing, the CITY shall without waiver or limitation be entifled to injunctive
relief, as the DEVELOPER acknowledges that the damages are not adequate remedy at
law for such breach.
5.3 Compliance With Environmental Laws. The DEVELOPER shall cause the
Project to be in compliance with, and not to cause or permit the Project to be in violation of,
any Hazardous Materials law, rule, regulation, ordinance, or statute- Although the ClTy willutilil' its employees and agents for regular inspection and testing of the eilgibte property,
the DEVELOPER agrees that, if the CITY has reasonable grounds to susþect any'suih
violation, the DEVELOPER shall be entitled to thirty (30) days' notice and opportúnity to
cure such violation. lf 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 violátion.lf a violation is discovered, the DEVELOPER shall pay for the reasonable cost of the
independent consultant.
Additionally, the DEVELOPER agrees:
A- That the CITY shall not be directly or indirectly responsible, obligated
or liable with the inspection, testing, removal or abatement of asbestos or other hazaidous
or toxic chemicals, materials, substances, or wastes and that all cost, expense and liability
for such work shall be and remain solely with the DEVELOpER;
B. Not to transport to, or from, the proposed Property, or use, generate,
manufacture, produce, store, release, discharge, or dispose of on, under, or ãbout the
Property, 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
15
condit¡ons perm¡tted by applicable laws, rules, regulations, ordinances, and statutes;
C. To give prompt written notice to the Clry of the following:
1. Any proceedíng or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration thereof
from or to other property;
2. All claims made or threatened by any third party against the
DEVELOPER, or such properties relating to any loss or injury resulting from any
hazardous or toxic chemicals, materials, substance, or waste; and
3. The DEVELOPER's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of such properties that would cause such
properties or underlying or surrounding real estate or part thereof to be subject to any
restrictions on the ownership, occupancy, transferability, or use of the property under any
environmental law, rule, regulation, ordinance or statute; and
4. To indemnify, defend, and hold the CITY harmless from any and
all claims, actions, causes of action, demand, 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 the DEVELOPER or any other party's use of release of any hazardous or toxic
chemicals, materials, substance, or waste on the 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, or related remedial work of any kind or nature.
5.3 Compliance With Laws. The DEVELOPER shall be responsible for and
promptly and faithfully comply with, conform to and obey all present and future federal,
state and local statutes, regulations, rules, ordinances and other legal requirements
applicable by reason of this Agreement or otherwise to the Project including without
limitation prevailing wage requirements. The DEVELOPER acknowledges that the use of
HOME CHDO Funds subjects the Project to extensive federal regulation and covenants
and agrees that it shall comply with, conform to and obey (and take steps as are required
of the DEVELOPER to enable the CITY to comply with, conform to and obey) all federal
statues, regulations, rules and policies applicable to the Project. The CITY and
DEVELOPER acknowledge that (¡) pursuant to 24 CFR 92.354 a contract for the
construction (new construction) of housing that includes fewer than 12 units assisted wíth
HOME funds need not contain a provision requiring the payment of the wages prevailing in
the locality as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act
(40 U.S.C. 276a-276a-5), to all laborers and mechanics employed in the development of
any part of the housing, or the overtime provisions, as applicable, of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 327-332), and (ii) pursuant to Cal. Labor Code
1720, the public participation in the Project that would otherwise meet the criteria of a
public work for which State prevailing is required under Cal. Lab. Code 1720 et seq. is
exempt where the public funding is in the form of below-market interest rate loan for a
project in which occupancy of at least 40 percent of the units is restricted for at least 20
years, by deed or regulatory agreement, to individuals or families earning no more that 80
16
percent of the area median income. Nonetheless DEVELOPER shall be solely responsible
for determining and effectuating compliance. Notwithstanding anything to the contrary
contained herein, nothing in this Agreement shall be construed as imposing any
independent prevailing wage requirements that are different from those imposed by
applicable federal or state law.
5.4 Existence, Qualification. and Authoritv. The DEVELOPER shall provide to
the CITY any evidence required or requested by the CITY to demonstrate the continuing
existence, qualification, and authority of the DEVELOPER to execute this Agreement and
to perform the acts necessary to carry out the Project.
5.5 Financial Statements and Audits. The DEVELOPER, 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 yea(s) in which this contract shall terminate,
and othenryise upon the CITY's, written request during the term of this Agreement, the
DEVELOPER, at its sole cost and expense shall submit to the CITY:
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed therein).
B. Audited Financial Statements covering the income and expenses, and
the financial transactions for the Project during the prior fiscal year.
5.6 lnspection and Audit of Books, Records and Documents. The DEVELOPER
shall be accountable to the CITY for all HOME CHDO Funds disbursed for the Project
pursuant to this Agreement. Any duly authorized representative of the CITY 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 the DEVELOPER 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. The DEVELOPER will maintain books and records for the Project
using generally accepted accounting principles. The DEVELOPER agrees to maintain
books and records that 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
17
in information reported
cost of such audit. The
irements of 24 C.F.R.
C. The DEVELOPER will cooperate fully with the C|TY and HUD inconnection with any interim or final audit relating to the Project that may be performed
relative to the performance of this Agreement.
5.7 Inspection of Property. Any duly authorized representative of the ClTy orHUD shall, at all reasonable times, have acceis and the right to inspect the property untilcompletion of the Project.
5.8 No Other Liens. The DEVELOPER shall not create or incur, or suffer to be
ional mortgage, pledge, encumbrance, lien,
d on the eligible property, other than those
development loans in relation to the project
5.9 shall comply with and cause any andall contractor
w*h resard t DEVEI#ÊÉ'i1""1¡lii ìT:L?,,?TJïil,'#:
against any persons on account of race, religion, sex, family status, age, hãndicap, or placeof national origin in its performance of this Agreement and the compleiion of tne Éio¡ect.
in pursuit hereof, the DEVELOPER shall not
of all or any material part of any interest it
ut the prior written consent of the ClTy
held or delayed.
5.11 ELOPER shall pay and discharge in theordinary cou gations ano l¡aO¡l¡t¡es, the nonpãyment ofwhich could paıt on its financial condition, bls¡ness, orassets or on the operation of the Project(s), except such obligations and liabilities that havebeen disclosed to the CITY in writing and are being contesteð in good faith.
5.12 Repgrt of Events of Default. The DEVELOPER shall prompfly give writtennotice to the CITY upon becoming aware of any Event of Default under this'Aireäment.
ARTICLE 6. DISBURSEMENT OF HOME CHDO FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of HOMECHDO Funds:
6.1 The DEVELOPER warrants,covenants and agrees that it shall request DO Program Funds limited to theamount needed for eligible costs, including costs allowable under 24 C.F.R. 92.206,a-ggregating not more than Eight Hundred Forty Five Thousand dollaÃ
"nå bilf OCj($845'000'00)' The CITY's obligations shall in no êvent exceed the HOME CHDO Funds
18
amount spec¡f¡ed in this Agreement.
A. lf any such Funds shall be determlned to have been requested and/or
used by the DEVELOPER for costs other than for eligible land acquisition reimbursement
or construction reimbursement costs, and subject to the notice and cure provisions of
Section 10.2 hereunder, an equal amountfrom non-public funds shall become immediately
due and payable by the DEVELOPER to the CITY; provided, however, that the
DEVELOPER shall, subject to its full cooperation with the CITY, be entitled to participate in
any opportunity to remedy, contest, or appeal such determination.
B. ln the event HOME CHDO Funds are requested to reimburse Eligible
Costs which subsequently lose eligibility as Eligible Costs, the DEVELOPER shall
immediately return such HOME CHDO Funds to the CITY.
C. The CITY will disburse HOME CHDO Funds, only to the DEVELOPER
through proper invoicing 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 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. The DEVELOPER has received and delivered to the CITY firm
commitments of, or Agreements for, sufficient funds to finance the Project.
C. The CITY has approved the requested reimbursement of eligible
Project costs.
D. The DEVELOPER has obtained insurance coverage and delivered to
the City evidence of insurance as required in Article 9.
E. The DEVELOPER is current with its compliance of reporting
requirements set forth in this Agreement.
F. The DEVELOPER has provided the CITY with a written request for
HOME CHDO Funds (provided by the CITY), for reimbursement of eligible Project costs,
and detailing such Eligible Costs applicable to the request.
G. The CITY has received certification required by Section 6.4 of this
Agreement.
H. The CITY has received, and continues to the have the right to
disburse, HOME CHDO Funds.
6.3 Requests for Disbursement of HOME CHDO Funds. The DEVELOPER shall
request disbursement of HOME Funds using the CITY's Request for Disbursement of
19
Funds form. The DEVELOPER shall only request a maximum of Eight Hundred Forty Five
Thousand dollars and 00/100 ($g¿S,000.00) in HOME CHDO Program assistance for the
Project. All requests should provide in detailsuch Eligible Costs applicable to the request.
6.4 DEVELOPER Certification. The DEVELOPER shall submit to the CITY a
wriüen certification that, as of the date of the Request for Reimbursement ("Certification"):
A. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate in material
respects.
B. The DEVELOPER 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 Reimbursement;
C. The DEVELOPER has not committed or suffered an act, event,
occurrence, or circumstance that constitutes an Event of Default or that with the passage of
time or giving of notice or both would constitute an Event of Default; and
D. The Disbursement requested will be used solely for reimbursement of
Eligible Costs identified in this Agreement and must by supported by the itemized
obligations that have been properly incurred and are properly chargeable in connection
with the Project.
6.5 Disbursement of Funds. The disbursement of HOME CHDO Program Loan
Funds shall occur within thirty (30) days after the CITY receives the Certification and to the
extent of annually allocated and available HOME CHDO Funds.
ARTICLE 7. DEVELOPMENT AND CONSTRUGTION OF PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre-construction Meetino Reqardinq HOME Program Processes and
Procedures. The CITY will schedule, and the DEVELOPER shall attend a meeting prior to
construction with the CITY for the purpose of outlining the Project processes and
procedures.
7.2 Commencement and Completion of Proiect. The DEVELOPER shall
commence construction of the Project and, record a Notice of Completion of construction of
the Project in accordance with the Project Schedule as indentified in EXHIBIT "8".
7.3 Contracts and Subcontracts. Consistent with Section 5.3, all 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. The
DEVELOPER shall provide the CITY with copies of all agreements it has entered into with
any and all general contractors or subcontractors for this Project. The DEVELOPER shall
require that each such general contractor agreement contain a provision whereby the
20
parÇ(ies) to the agreement, other than the DEVELOPER, agree to: (i) notify the CITY
immediately of any event of default by the DEVELOPER thereunder, (ii) notify the CITY
immediately of the filing of a mechanic's lien, (iii) notify the CITY immediately of termination
or cancellation of the construction agreement on the Project, and (iv) provide the CITY,
upon the CITY's request, an Estoppel Certificate certifying that the agreement is in full
force and effect and the DEVELOPER is not in default thereunder. The DEVELOPER
agrees to notify the CITY immediately of termination or cancellation of any such
agreement(s), notice of filing of a mechanic's lien, or breach or default by other party(ies)
thereto.
7.4 Damaoe to Property. To the extent consistent with the requirements of any
permitted encumbrance, or as othenruise 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, the DEVELOPER shall, at its cost and expense, diligently
undertake to repair or restore said buildings and improvements consistent with the original
Plans and Specifications of the Project. Such work or repair within ninety (90) days after
the insurance proceeds are made available to the DEVELOPER and shall be completed
within two (2) years thereafter. All insurance proceeds collected for such damage or
destruction shall be applied to the cost of such repairs or restoration and, if such insurance
proceeds shall be insufficient for such purpose, the DEVELOPER shall use its best efforts
to make up the deficiency.
7.5 Fees. Taxes and Other Levies. The DEVELOPER 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, the DEVELOPER shall not be required to pay and
discharge any such charge so long as: (a) the legality thereof is being contested diligently
and in good faith and by appropriate proceedings, and (b) if requested by the CITY, the
DEVELOPER deposits with the CITY any funds or other forms of assurances that the
CITY, in good faith, may determine from time to time are appropriate to protect the CITY
from the consequences of the contest being unsuccessful. The DEVELOPER shall have
the right to apply for and obtain an abatement and/or exemption of the Project from real
property taxes in accordance with all applicable rules and regulations, including Section
21aß) of the California Revenue and Taxation Code.
7.6 Financinq. The DEVELOPER shall promptly inform the CITY of any new
financing or funding not included in the budget for the Project, and the DEVELOPER shall
provide the CITY with copies of all agreements with any and all funding sources for the
Project. The DEVELOPER shall require each agreement with any and all funding sources
not included in the Budget to contain a provision whereby the party(ies) to the agreement
other than the DEVELOPER, if permitted by the party(ies) applicable rules and regulations,
agree to notify the CITY immediately of any event of default by the DEVELOPER
thereunder. Should the DEVELOPER not comply with all the obligations of this section, the
loan shall become immediately due and payable as provided for in this Agreement. This
Section shall survive expiration or termination of this Agreement.
7.7 ldentification Sionaoe. Before the start of construction, the DEVELOPER
shall place a poster or sign, with a minimum four feet by four feet in size, identifying the
City of Fresno Development and Resource Management Department, Housing and
21
Community Development Division 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. The font size shall be a minimum of 4 inches. The poster/sign shall be appropriately
place, and shall remain in place throughout the Project construction.
7.8 lnspections. The DEVELOPER 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 the
purpose of determining compliance with this Agreement, including without limitation those
annual on-site inspections required of the CITY by 24 C.F.R. 92.504(d).
7.9 Utilities. The DEVELOPER shall be 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.
7.10 lnsurance and Bonds. The DEVELOPER shall submit for CITY approval
bonds, certificates and applícable endorsements for all insurance and bonds required by
this Agreement in accordance with Article 9.
7.11 Mechanic's Liens and Stop Notices. lf any claim of lien is filed against the
Property or a stop notice affecting any financing, HOME CHDO Program Funds or funding
sources for the Project is served on the Clry or any other third party in connection with the
Project, the DEVELOPER shall, within twenty (20) days of such filing or service, either pay
and fully discharge the lien or stop notice, effect the release of such lien or stop notice by
delivering to the CITY a surety bond in sufficient form and amount, or provide the CITY with
other assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or
discharged.
A. lf the DEVELOPER fails to discharge, bond or othenryise satisfy the
CITY with respect to any lien, encumbrance, charge or claim referred to in Section
7.11above, then, in addition to any other right or remedy, the CITY may, but shall not be
obligated to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER's
expense. Alternatively, the CITY may require the DEVELOPER 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 the DEVELOPER. The DEVELOPER 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.
7.12 Permits and Licenses. The DEVELOPER shall submit, for CITY approval, all
the necessary permits and licenses required for Commencement of Construction. As the
CITY may reasonably request, the DEVELOPER, at its sole cost and expense, shall
provide to the CITY copies of any and all permit approvals and authorizations including plot
plan, plat, zoning variances, sewer, building, and other permits required by governmental
authorities other than the CITY in pursuit of the Project, and for its stated purposes in
accordance with all applicable building, environmental, ecological, landmark, subdivision,
zoning codes, laws, and regulations. DEVELOPER is responsible at its sole cost and
expense to determine the location of any utilities on the Property and to negotíate with the
22
utility companies for and to relocate the utilities, if any, as necessary to complete the
Project.
7.13 Plans and Specifications.
A. The DEVELOPER has submitted to the CITY preliminary plans and
Specifications for the Project ("Project Preliminary Plans"). The DEVELOPER will construct
the Project in full conformance with the C|TY-approved plans and specifications and
modifications thereto approved by the CITY. The DEVELOPER shall obtain the ClTy's
prior written approvalfor any modifications to the plans and specifications.
B. The HOME CHDO Agreement shall contain by reference the design and
site plan of the Project; such desígn must be approved by the City Counci! with the HOME
CHDO Agreement.
C. The DEVELOPER shall submit to the City, for its review and approval, the
Final Plans and specifications for the Project. The DEVELOPER will construct the project
in full conformance with the Plans and specifications and modifications thereto approved by
the City. The DEVELOPER shall obtain the City's prior written approvat for any substantiat
modifications to the plans and specifications.
7.14 Property Condition. The DEVELOPER shall maintain the Project and all
improvements on site in a reasonably good condition and repair (and, as to landscaping, in
a healthy condition), all according to the basic design and related plans, as amended from
time to time. The DEVELOPER and those taking direction under the DEVELOPER shall:(i) maintain all on-site improvements according to alt other applicable law, rules,
governmental agencies and bodies having or claiming jurisdiction and all their respective
departments, bureaus, and officials; (ii) keep the improvements free from graffiti; liii) keep
the Project Property free from any accumulation of debris or waste material; (iv) prompfly
make repairs and replacements to on-site improvements; and (v) promptly repiace any
dead, or diseased plants and/or landscaping (if any) with comparable materiais.
7.15 Qualitv of Work. The DEVELOPER shall ensure that construction of thelroject employs building materials of a quality suitable for the requirements of the project.
The DEVELOPER shall cause completion of construction of the Project on the properiy in
full conformance with applícable local, state and federal laws, stafutes, regutations, ánd
building and housing codes.
7.16 Relocation. lf and to the extent that construction of the proposed Project
results in the permanent or temponry displacement of residential homeowners, the
DEVELOPER shall comply with all applicable local, state and federal statutes and
regulations with respect to relocation planning, advisory assistance and payment of
monetary benefits. The DEVELOPER shall be solely responsible for payment of any
relocation benefits to any displaced persons and any other obligations associated with
complying with said relocation laws.
7.17 Reportino Requirements. The DEVELOPER shall submit to the ClTy the
following Project reports :
A. From the date of execution of this Agreement, until issuance of the
23
final Certificate of Completion, the DEVELOPER 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. The Quarterly Reports are due
fifteen (15) days after each March 31't, June 30th, September 30th, and December 31tt
during said period.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the Certificate of Completion, and continuing until the terminãtion of the
Agreement, the DEVELOPER shall submit an Annual Report to the CITY, in a form
approved by the CITY. The Annual Report shall include, at a minimum, the following
information: occupancy of each Project Unit including the annual income and the
household size, the date occupancy commenced, certification from an officer of the
DEVELOPER that the Project is in compliance with the Affordability requirements, and
such other information the CITY may be required by law to obtain. The DEVELOpER shall
provide any additional information reasonably requested by the clry.
C. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of CompletÍon, evidencing the construction oithe project,
and continuing until the expiration of the Agreement, the DEVELOPER shall submit proóf of
insurance as required in Article 9.
7.18 tt
shall be the responsibility of the DEVELOPER to coordinate and schedule the work to be
performed so that the Commencement of Construction and issuance of the Certificate of
Completion will take place in accordance with the provisions of the Agreement and project
Schedule. The time for performance contained in the Projecf Schedule shall be
automatically extended upon the following:
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 direcfly affeciing the
Project or this Agreement which is caused by: war, insurrection, strike ır other Iabor
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
Íf 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 inwriting. ln any event, the Project must be completed no later than one hundred eiçinty(180) calendar days after the scheduled completion date specified in this Agreeméni,
notwithstanding any delay caused by that included in this section.
B. Any and all extensions hereunder shall be by mutual written
agreement of the CITY's Housing and Community Development Division Manager and the
DEVELOPER, shall not cumulatively exceed one hundred eighty (1go) days.
7.19 Certificate of Completion. Upon completion of the construction of the project,
the DEVELOPER shall submit to the CITY: 1) certification in writíng to that the Project has
been substantially constructed in accordance with the plans and specifications, aþproved
24
by the CITY; 2) a recorded Notice of Completion; 3) a cost-certifying final budget where the
DEVELOPER shall identify the actual costs of construction of the Project. This final cost-
certificatíon shall identify costs in line-item format, consistent with the Project Budget; 4) a
request for a recorded Certification of Completion. Upon a determination by the CITY that
the DEVELOPER is in compliance with all of the DEVELOPER's construction obligations,
as specified in this Agreement, the CITY shall furnish, within thirty (30) calendar days of a
written request by the DEVELOPER, a recordable Certificate of Completion for the Project
in the form attached hereto as EXHIBIT "E'. The CITY will not unreasonably withhold or
delay furnishing the Certificate of Completion. lf the CITY fails to provide the Certificate of
Completion within the specified time, it shall provide the DEVELOPER a written statement
indicating in what respects the DEVELOPER has failed to complete the Project in
conformance with this Agreement or has otherwise failed to comply with the terms of this
Agreement, and what measures the DEVELOPER will need to take or what standards it will
need to meet in order to obtain the Certificate of Completion. Upon the DEVELOPER
taking the specified measures and meeting the specified standards, the DEVELOPER will
certify to the CITY in writing of such compliance and the CITY shall deliver the recordable
Certificate of Completion to the DEVELOPER in accordance with the provisions of this
section.
ARTICLE 8. OPERATION OF THE PROJECT
8.1 Operation of the Project. The DEVELOPER shall operate and/or manage the
Project in full conformity with the terms of this Agreement.
8.2 Occupancy Requirements. Nine (9) Project Unit(s) shall be marketed and
sold as a principal residence and be owner-occupancy by a Lowlncome Household. The
DEVELOPER shall comply with the income targeting and Affordable Housing requirements
of 24 C.F.R. 92.217 and 92.254. No homebuyer shall take occupancy of any home prior to
the close of escrow vesting title in said homebuyer.
8.3 Final Manaoement Plan. Before selling any Project Unit and at least sixty
(60) calendar days prior to the Project Completion Date, the DEVELOPER shall submit to
CITY for review and approval a plan for marketing and managing the Units (hereinafter
referred to as the "Final Management Plan"). The Final Management Plan shall address in
detail how the DEVELOPER plans to market the availability of Units to prospective Low-
Income Homebuyers and how the DEVELOPER plans to certify the eligibility of potential
household. The Final Management Plan shall also address how the DEVELOPER plans to
manage and maintain the Project Units, and shall include appropriate financial information
and documentation. Topics to be covered ín these procedures shall include at a minimum
the following:
o Interviewing procedures for prospective buyers;o Homebuyerreferences;o Credit reports and checks;o Criminal background checks;. Deposit amounts, purpose, use and refund policy;. EmploymenUlncome verification;o Occupancyrestrictions;o Income Limit;
25
. Equal Housing Opportunity Statement;o Restrictions on use of the premises; and. Homebuyer Education Certification.
The Final Management Plan shall contain copies of all standardized forms
associated with the above listed topics. The DEVELOPER shall abide by the terms of this
Final Management Plan, approved by the CITY, in marketing, managing and maintaining
the Property.
8.6 ProLertv Manaqement. With respect to the Project and during the entire
Affordability Period, the DEVELOPER shall comply with the following:
A. Management Responsibilities. The DEVELOPER is specifically
responsible for all management functions with respect to the Project and the Affordable
Units, without limitation, the selection of homebuyers, certification and re-certification of
Household age, size and income, construction management, affirmative marketing,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital items
and security. The CITY shall have no responsibility for such management of the Project.
8.7 Maintenance and Securitv. The DEVELOPER shall during the entire
Affordability Period: (i) at its own expense maintain the Project Units in good condition, in
good repair and in decent, safe, sanitary, habitable and tenantable living conditions for the
benefit of Unit occupants; (ii) not commit or permit any waste on or to the Project Property,
and shall prevent and/or rectify any physical deterioration of the Property; and (iii) maintain
the Project in conformance with all applicable federal, state and local laws, ordinances,
codes and regulations, the Final Management Plan, and this Agreement.
8.8 Nondiscrimination. All nine (9) Project Units shall be available for initial
purchase to members of the general public who are income eligible. The DEVELOPER
shall not illegally discriminate or segregate in the development, construction, use,
enjoyment, occupancy, conveyance of any part of the Project or Property on the basis of
race, color, ancestry, national origin, religion, sex, age, marital status, family status, sourceof income/rental assistance subsidy, physical or mental disability, Acquired lmmune
Deficiency Syndrome (AIDS) or A|DS-related conditions (ARC), sexual orientation, or any
other arbitrary basis. The DEVELOPER shall otherwise comply with all applicable local,
State and federal laws concerning nondiscrimination in housing. Neither the DEVELOPER
nor any person claiming under or through the DEVELOPER, shall establish or permit any
such practice or practices of illegal discrimination or segregation with reference to the
selection, location, number, use or occupancy of any Unit. All deeds or contracts made or
entered into by the DEVELOPER as to the Units or Project, or portion thereof, shall contain
covenants concerning nondiscrimination consistent with this section. The DEVELOPER
shall include a statement in all advertisements, notices and signs for availability of Units for
rent to the effect that the DEVELOPER is an Equal Housing Opportunity Provider.
A. Nothing in this section is intended to require the DEVELOPER to
change the character, design, use or operation of the Project; or to require the
DEVELOPER to obtain licenses or permits other than those required for the Project.
8.9 Project Home Sale Price. The initial sale price of each home is the total
26
amount pa¡d by the homebuyer for the home conveyance, inclusive of any first lien/loan
and exclusive 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 for the
area as applied under 24 C.F.R. 92.254. The CITY shall approve in advance all
homebuyers. Homebuyer financing shall be based upon the buyer's ability to pay,
consistent with this Agreement.
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS
Without waiver of limitation, the parties agree as follows regarding DEVELOPER lnsurance
and lndemnity Obligations:
9.1 Insurance Requirements. Throughout the life of this Agreement,
DEVELOPER shall pay for and maintain in full force and effect all policies of insurance
hereunder with an insurance company(ies) either (i) admitted by the California lnsurance
Commissioner to do business in the State of California and rated not less than "A-Vll" in
Best's lnsurance Rating Guide, or (ii) authorized by the CITY's Risk Manager. The
following policies of insurance are required:
(¡) COMMERICAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of lnsurance Services Office (lSO)
commercial General Liability Coverage Form cG 00 01 and include
insurance for "bodily injury," "property damage" and "personal and advertising
injury" with coverage for premises and operations (including the use of owned
and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations under
the Agreement) with limits of liability of not less than the following:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising injury
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to work performed
under the Agreement
(ii) COMMERICAL GENERAL LIABILITY insurance which shall be at as
board as the most current version of Insurance Service Office (lSO) Business
Auto coverage Form cA 00 01, and include coverage for alt owned, hired,
and non-owned automobiles or other licensed vehicles (Code 1-Any Auto)
with limits of liability of not less than $1,000,000 per accident for bodily injury
and property damage.
(¡¡i) WORKERS' COMPENSATION insurance as required under the California
Labor Code.
(iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
diseased each employee.
(v) BUILDERS RISK (Course of Construction) insurance in an amount equal
27
to the completion value of the Project with no coinsurance penalty provisions.
(Only required if the project includes new construction of a building; or
renovation of, or addition to, an existing building.)
(vi) CONSTRACTOR POLLUTION LIABILTY (Unless waived in writing by the
City's Risk Manager or his/her designee, the DEVELOPER's Pollution
Liability is required for all environmental and water remediation work and for
all work transporting fuel. Unless waived in writing by the City's Risk
Manager or his/her designee, the DEVELOPER's Pollution Liability is also
required for demolition, renovation, HVAC, plumbing or electrical (including,
without limitation, lighting) work on any structure built prior to the year 1990) ¡
insurance with limits of liability of not less than the following:
$1,000,000 per occurrence or claim
$2,000,000 general aggregate per annual policy period
ln the event the DEVELOPER purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, this insurance policy(ies) shall "follow
form" and afford no less coverage than the primary insurance policy(ies).
ln the event the DEVELOPER involves any lead-based, mold or asbestos environmental
hazard, either the Automobile Liability insurance policy or the DEVELOPER's Pollution
Liability insurance policy shall be endorsed to include Transportation Pollution Liability
insurance covering materials to be transported by the DEVELOPER pursuant to the HOME
CHDO Agreement.
f n the event the DEVELOPER involves any lead-based environmental hazard (e.9., lead-
based paint), the DEVELOPER's Pollution Liability insurance policy shall be endorsed to
include coverage for lead based environmental hazards. In the event the DEVELOPER
involves any asbestos environmental hazard (e.9., asbestos remediation), the
DEVELOPER's Pollution Liability insurance policy shall be endorsed to include coverage
for asbestos environmental hazards. ln the event the HOME CHDO Agreement involves
any mold environmental hazard (e.9., mold remediation), the DEVELOPER's Pollution
Liability insurance policy shall be endorsed to include coverage for mold environmental
hazards and "microbial matter including mold" within the definition of "Pollution" under the
policy.
The DEVELOPER shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the DEVELOPER shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must be
declared to, and approved by, the CITY's Risk Manager or his/her designee. At the option
of the CITY's Risk Manager or his/her designee, either (i) the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials,
employees, agents and volunteers; or (ii) the DEVELOPER shall provide a financial
guarantee, satisfactory to CITY's Risk Manager or his/her designee, guaranteeing payment
of losses and related investigations, claim administration and defense expenses. At no
time shall City be responsible for the payment of any deductibles or self-insured retentions.
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All policies of insurance required hereunder shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30)
calendar day written notice has been given to CITY. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the
DEVELOPER shall furnish CITY with a new certificate and applicable endorsements for
such policy(ies). ln the event any policy is due to expire during the work to be performed
for CITY, the DEVELOPER shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The DEVELOPER's Pollution Liability insurance policy shall be written on
either an occurrence form, or a claims-made form. The General Liability, Automobile
Liability and DEVELOPER's Pollution Liability insurance policies shall name CITY, its
officers, officials, agents, employees and volunteers as an additional insured. All such
policies of insurance shall be endorsed so the DEVELOPER's insurance shall be primary
and no contribution shall be required of CITY. The coverage shall contain no special
limitations on the scope of protection afforded to CITY, its officers, officials, employees,
agents and volunteers. lf the DEVELOPER maintains higher limits of liability than the
minimums shown above, the CITY requires and shall be entitled to coverage for the higher
limits of liability maíntained by the DEVELOPER. The General LÍability insurance policy
shall also name the CITY, its officers, officials, agents, employees and volunteers as
additional insureds for all ongoing and completed operations. The Builders Risk (Course of
Construction) insurance policy shall be endorsed to name the CITY as loss payee. Any
Workers' Compensation insurance policy shall contain a waiver of subrogation as to City,
its officers, officials, agents, employees and volunteers.
The DEVELOPER shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to
be received and approved by the CITY's Risk Manager or his/her designee before work
commences. Upon request of CITY, the DEVELOPER shall immediately furnish CITY with
a complete copy of any insurance policy required under this HOME CHDO Agreement,
including all endorsements, with said copy certified by the undenryriter to be a true and
correct copy of the original policy. This requirement shall survive expiration or termination
of this Agreement.
Claims-Made Policies - lf any coverage required is written on a claims-made coverage
form:
(¡) The retroactive date must be shown, and must be before the effective date of
the commencement of work by the DEVELOPER.
(ii) Insurance must be maintained and evidence of insurance must be provided
for at least 5 years after completion of the work or termination of the HOME
CHDO Agreement, whichever first occurs.
(iii) lf coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of the
HOME CHDO Agreement, or work commencement date, the DEVELOPER must
purchase extended reporting period coverage for a minimum of 5 years after
completion of the work or termination of the HOME CHDO Agreement, whichever
first occurs.
29
(iv) A copy of the claims reporting requirements must be submitted to CITY for
review.
(v) These requirements shall survive expiration or termínation of the HOME
CHDO Agreement.
lf at any time during the life of the HOME CHDO Agreement or any extension, the
DEVELOPER, its contractor, or any of its subcontractors fail to maintain any required
insurance in full force and effect, all work under this HOME CHDO Agreement shall be
discontinued immediately, and all payments due or that become due to the DEVELOPER
shall be withheld until notice is received by 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 CITY. Any failure to maintain the required insurance shall be
sufficient cause for CITY to terminate the HOME CHDO Agreement. No action taken by
CITY hereunder shall in any way relieve the DEVELOPER of its responsibilities under the
HOME CHDO Agreement. The phrase "fail to maintain any required insurance" shall
include, without limitation, notification received by CITY that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the insurer is
insolvent.
The fact that insurance is obtained by the DEVELOPER shall not be deemed to release or
diminish the liability of the DEVELOPER, including, without limitation, liability under the
indemnity provisions of the HOME CHDO Agreement. The duty to indemnify the CITY shall
apply to all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be
províded by the DEVELOPER. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of the DEVELOPER, its principals,
officers, agents, employees, persons under the supervision of the DEVELOPER, vendors,
suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed
directly or indirectly by any of them.
ln the event of a partial or total destruction by the perils insured against of any or all of the
work and/or materials herein provided for at any time prior to the final completion of the
HOME CHDO Agreement and the final acceptance by the CITY of the work or materials to
be performed or supplied thereunder, the DEVELOPER shall promptly reconstruct, repair,
replace, or restore all work or materials so destroyed or injured at his/her sole cost and
expense. Nothing herein provided for shall in any way excuse the DEVELOPER or his/her
insurance company from the obligation of furnishing all the required materials and
completing the work in full compliance with the terms of the HOME CHDO Agreement.
lf the DEVELOPER should subcontract all or any portion of the services to be performed
under the HOME CHDO Agreement, the DEVELOPER shall require each subcontractor to
provide insurance protection in favor of CITY, its officers, officials, employees, agents and
volunteers in accordance with the terms of each of the preceding paragraphs, except that
the subcontractors' certificates and endorsements shall be on file with the DEVELOPER
and the CITY prior to the commencement of any work by the subcontractor.
A. The above described policies of insurance shall be endorsed to
provide an unrestricted thirty (30) day written notice in favor of the C!TY, of policy
cancellation, change or reduction of coverage. ln the event any policy is due to expire
30
during the term of this Agreement, a new certificate evidencing renewal of such policy shall
be provided not less than fifteen (15) days prior to the expiration date of the expiring
policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation,
change or reduction in coverage, DEVELOPER or its contractors, as the case may be,
shall file with the CITY a certified copy of the new or renewal policy and certificates for such
policy.
B. DEVELOPER shall furnish the CITY with the certificate(s) and
applicable endorsements for ALL required insurance prior to the CITY's execution of this
Agreement. DEVELOPER shall furnish the CITY with copies of the actual policies upon the
request of the CITY at any time during the life of the Agreement or any extension.
At all times hereunder DEVELOPER shall maintain the required
insurance in fullforce and effect.
9.2 Indemnity. DEVELOPER 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, DEVELOPER or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. DEVELOPER'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. This section shall survive termination or expiration of this Agreement.
9.3 Property lnsurance. Upon acquisition of the property, the DEVELOPER shalt
pay for and maintain in full force and effect, throughout the remaining life of this
Agreement, a policy(ies) of property insurance acceptabte 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. The
CITY shall be added by endorsement as a loss payee thereon.
9.4 Bond Obliqations. DEVELOPER shall obtain, pay for and deliver good and
sufficient payment and performance bonds in a form acceptable to the CITY from a
corporate surety, admitted by the California lnsurance Commissioner to do business in the
State of California and Treasury-listed, in a form satisfactory to the CITY and naming the
CITY as Obligee.
A. The "Faithful Performance Bond" shall be at least equal to 100% of the
DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma
budget, attached hereto as EXHIBIT 'C', to the guarantee faithful performance of the
Project, within the tíme prescribed, in a manner satisfactory to the CITY, consistent with
31
this Agreement, and that all material and workmanship will be free from original or
developed defects.
B. The "Payment Bond" shall be at least equal to 100% of construction
costs approved by the Clry to satisfy claims of material supplies and of mechanics and
laborers employed for this Project. The bond shall be maintained by DEVELOPER in full
force and effect untilthe Project is completed and until all claims for materials and labor are
paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3
of the California Civil Code.
C. The "Material and Labor Bond" shall be at least equal to 100% of the
DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma
budget, attached hereto as EXHIBIT 'C', to satisfy claims of material supplies and of
mechanics and laborers employed for this Project. The bond shall be maintained by the
DEVELOPER in full force and effect until the Project is completed, and until all claims for
materials and labor are paid, released, or time barred, and shall otherwise comply with any
applicable provision of the California Code.
D. ln lieu of the bonds required above, the CITY, in its sole discretion,
may accept from the DEVELOPER an lrrevocable Standby Letter of Credit issued with the
CITY named as the sole beneficiary in the amounts(s) of the bonds required above. The
Standby Letter of Credit is to be issued by a bank, and in the form, acceptable to the CITY.
This lrrevocable Standby Letter of Credit shall be maintained by the DEVELOPER in full
force and effect until the CITY is provided with a recorded Notice of Completion for the
construction of the Project and shall be subject to and governed by the laws of the State of
California.
ARTICLE IO. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall
constitute an "Event of Default" by the DEVELOPER for purposes of this Agreement:
A. The DEVELOPER's use of HOME CHDO Funds for costs other than
Eligible Costs or for uses not permitted by the terms of this Agreement;
B. The DEVELOPER's Failure to obtain and maintain the insurance
coverage required under this Agreement;
C. Except as othenrise provided in this Agreement, the failure of the
DEVELOPER to punctually and properly perform any other covenant or agreement
contained in this Agreement including without limitation the following: (1) the
DEVELOPER's material deviation in the Project work specified in the Project Description
as identified in this Agreement, without the CITY's prior written consent; (2) the
DEVELOPER's use of defective or unauthorized materials or defective workmanship in
pursuit of the Project; (3) the DEVELOPER's failure to commence or complete the Project,
as specified in this Agreement, unless delay is permitted under Section 7.19 of this
Agreement; (4) cessation of the Project for a period of more than fifteen (15) consecutive
days (other than as provided at Section7.19 of this Agreement) prior to submitting to the
CITY certification that the Project is complete; (5) any material adverse change in the
32
condit¡on of the DEVELOPER or its development team, 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) the DEVELOPER's failure to
remedy any deficiencies in record keeping or failure to provide records to the CITY upon
the CITY's request; (7) the DEVELOPER's failure to 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 the DEVELOPER shall prove to be materially false as of the date of which the
representation, warranty, or certification was given, or that the DEVELOPER concealed or
failed to disclose a material fact to the CITY, provided, however, that if any representation,
warranty, or certification that proves to be materially false is due merely to the
DEVELOPER's inadvertence, the DEVELOPER shall have a thirty (30) day opportunity
after written notice thereof to cause such representation, warranty, or certification to be true
and complete in every respect;
E. The DEVELOPER shall 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 ninety (90) 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 ninety (90) days;
F. The DEVELOPER's failure, inability or admission in writing of its
inability to pay its debts as they become due or the DEVELOPER assignment for the
benefit of creditors;
G. A receiver, trustee, or liquidator shall be appointed for the
DEVELOPER or any substantial part of the DEVELOPER's assets or properties, and not
be removed within ten (10) days;
H. The Failure of DEVELOPER to cause completion of the Project prior to
the completion date identified in Exhibit B.
L The DEVELOPER'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 the DEVELOPER of any
material obligation owned by the DEVELOPER imposed by any other agreement with
respect to the financing, of the Project, whether or not the CITY is a party to such
agreement after expiration of all notice and cure periods contained within such document.
10.2 Notice of Default and Opportunitv to Cure. The CITY shall give written notice
to the DEVELOPER of any Event of Default by specifying: (1) the nature of the event or
deficiency giving ríse to the default; (2) the action required to cure the deficiency, if any
33
I
L.
action to cure is 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, the DEVELOPER 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. The CITY acknowledges and agrees
that the DEVELOPER shall have the right to cure any defaults hereunder and that notice
and cure rights hereunder shall extend to any and all partners of the DEVELOPER that are
previously identified in writing delivered to the CITY in the manner provided in this
Agreement.
10.3 Remedies Upon an Event of Default. Upon the happening of an Event of
Default and a failure to cure said Event of Default within the time specified, the CITY's
obligation to disburse HOME CHDO 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;
B. Bring an action in equitable relief: (1) seeking specific performance 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;
C. Pursue any other remedy allowed by law or in equity or under this
Agreement; and
ARTICLE II. 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 Attornev's Fees. lf 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 Bindinq on All Successors and Assions. 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 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
34
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.
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nor any act
of the CITY or of the DEVELOPER, 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 Discretionarv 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 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 and any other applicable statutes. The CITY cannot and does
not commit in advance that it will give final approval to any matter. The CITY shall not be
liable, in contract, law or equity, to the DEVELOPER or any of its executors, administrators,
transferees, successors-in-interest or assigns for any failure of any governmental entity to
grant approval on any maüer subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written, upon the CITY and the DEVELOPER's complete execution following City Council
approval.
11.8 Entire Aqreement. 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.
1 1.9 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 lncurred Upon Event of Default. The DEVELOPER 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 the DEVELOPER under this Agreement.
11.11 Governinq 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 Headinos. 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.
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35
11.13 lnterpretation. 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 Assiqnment or Successíon. The DEVELOPER shall not sell, transfer,
assign or othenrvise dispose of all or a material part of any interest it might hold in the
Property without the prior written consent of the CITY, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior written notice
to the CITY, the DEVELOPER shall be permitted to assign its rights and obligation under
this Agreement with respond to the Project.
11.15 No Third-Party Beneficiarv. No contractor, subcontractor, mechanic,
materialman, laborer, vendor, or other person hired or retained by the DEVELOPER shall
be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, but
each such person shall be deemed to have agreed: (a) that they shall look to the
DEVELOPER as their sole source of recovery if not paid, and (b) except as otherwise
agreed to by the CITY and any such person in writing, they may not enter any claim or
bring any such action against the CITY under any circumstances. Except as provided by
law, or as othenruise agreed to in writing between the GITY 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 Agreement shall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of
any other right. No waiver of any provision of this Agreement or consent to any departure
by the DEVELOPER therefrom shall be effective unless the same shall be in writing, signed
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 the
DEVELOPER in any case shall entitle the DEVELOPER 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. The DEVELOPER 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.
lf to the CITY: City of Fresno
Development and Resource Management Department
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
36
lf to DEVELOPER: Habitat for Humanity Fresno, Inc.
Attention : Executive Director
4991 E. Mc Kinley Avenue, Suite 123
Fresno, CA 93727
11.19 Precedence of Documents. ln the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
11.20 Recordino of Documents. The DEVELOPER agrees to cooperate with the
CITY and execute any documents required, promptly upon the CITY's request, and to
promptly effectuate the recordation of this Agreement, the Declaration of Restrictions, 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 othenryise provided by law.
11.22 Severabilitv. 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.
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37
lN WITNESS WHEREOF, the parties
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By:
(Attach notary certificate of acknowledgment)
Date:
ATTEST:
WONNE SPENCE, CMC
CiÇ Clerk
By:
Date:glztlte
HABITAT HUMANITY FRESNO,
By:
Name:
Title: Executive Director
Attachments:
have executed this Agreement in Fresno,
APPROVED AS TO FORM:
DOUG T. SLOAN
City Attorney
Date:
corporation
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
EXHIBIT D:
EXHIBIT E:
EXHIBIT F:
EXHIBIT G:
PROPERW DESCRIPTION
PROJECT DESCRIPTION AND SCHEDULE
PROJECT BUDGET
EXEMPLAR DECLARATION OF RESTRICTIONS
EXEMPI.AR CERTI FICATE OF COMPLETION
EXEPIAR PROMISSORY NOTE
EXEMPI.AR DEED OF TRUST
nian, Deputy City Attorney
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GALIFORI{IA ALL-PURPOSE ACKNOWLEDGMENT clvrl coDE s 1189
State of California ì
county t fuçrn í
On before me,
personally appeared
who proved to me on the basis of satisfactory
evidence to be the perso2l5l whose name¡6f is/re
subscribed to the within insirument and acknowledged
to me that he/sh€lth€y executed the same in
his/he#tFrcir authorized capacity{ies}, and that by
hislhe#ttreir signatureJ:J on the instrument the
personllf, ^or the entity upon behalf of which the
personlpfacted, executed the instru ment.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it 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:
Document Date:Number of Pages:
Signer(s) Other
Gapacity(ies)
Signer's Name:
Than Named Above:
Claimed by Signer(s)
Signer's Name:
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CALIFORNIA ALL,PURPOSE ACKNOWLEDGMENT
State of California
County of fresno
before me,,C¿!hn" /*
personally appeared
Name(s) of Signe(s)
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who proved to me on the basis of satisfactory
subscribed to the within instrument and acknowledged
to me that he/ y executed the same in
perso or the entity upon behalf of which theperso acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and officialseal.
Signature:
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, ¡t 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 nqt+'L/¿- 9,¡.,ft"rrll '(¿
Title or Type of Document:
Number of Pages:
Signe(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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EXHIBIT ffA'' - LEGAL DESCRIPTION
The Property is located at 4713, 4714, 4719, E. Belgravia and 2370,2374,2378,2382,
2386, 2390 S. Laval, Fresno, CA93725.
THE LAND REFERRED TO HEREIN BELOW IS S]TUATED IN THE CITY OF FRESNO, COUNTY
OF FRESNO, STATE OF CALIFORN]A AND IS DESCRIBED AS FOLLOWS:
Lots 1 through 9 inclusive, of Tract No. 4772 American Beauty Homes, in the City of Fresno,
County of Fresno, State of California, according to the map thereof Recorded in Book 61 Pages
22and 23 of Plats, Fresno County Records.
APN : 480-21 4-01,02, 408-215-0 1, 02, 03, 04, 05, 06, 07
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EXHIBIT 3'8" . PROJEGT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The Project consists of the acquisition of nine (9) vacant parcels (located at 4713, 4714, 4719, E.
Belgravia and 2370, 2374, 2378, 2382, 2386, 2390 S. Laval, Fresno, CA 93725) and the
construction of nine (9) one-story, single-family, wood framed, detached houses to be sold as
affordable housing and to be occupied by low-income households, and construction of related on-
site and off-site improvements.
The DEVELOPER will construction three 1,100 square foot,4-bedroom homes; three 1,300 square
foot, 4-bedroom homes, and three 1,600 square foot, S-bedroom homes. The eligible homebuyers
will have an annual income of not more than 80% of area median income and will invest 500 hours
of sweat-equity hours toward construction of the homes.
Once the houses are constructed, the houses will be sold through escrow to a low-income
homebuyer. As the houses are sold, a portion (1 at $93,888 and 8 at $93,889 and) of the HOME
CHDO loan will be conveyed to each homebuyer. The City will subordinate the Eight Hundred
Forty-Five Thousand dollars and 00/100 ($845,000.00) to Habitat's 1't position loan lien to the
project.
II. PROJECT SCHEDULE
A. Commencement of Construction: January 11,2014
B. Completion of Construction: September 1,2015
C. Close final escrow on last house: November 1,2015
I
Acquisition Costs:
Land
Closing, Title & Recording Costs
Other: Commission
SUBTOTAL
Construction
Hard Costs - Residential
Hard Costs - Site Work
Construction Contingency ( 10 %)
SUBTOTAL
Development
Appraisal
Developer Fee
SUBTOTAL
ArchitecUEngineering
Architect Fee
Engineering Fee
SUBTOTAL
Other Owner Costs
AppraisalFee
SUBTOTAL
Other Development
Real Estate Tax
Const. lnsurance
Permits, Fees & Hookups
School Fees
lmpacUMitigation Fees
SUBTOTAL
Total Development Costs
EXHIBIT "C" . PROJECT BUDGET
1,336.500.00 845.000.00 368.626.00 73.723.OO 49,151 .00
9,000.00 6.750.00 1.350.00 900.00
5,400.00 4,050.00 810.00 540 00
9.000.00 9,000.00
31.500.00 31.500.00
153,000.00 153.000.00
207.900.00 193.500.00 10.800.00 2,160.00 I,440.00
EXHIBIT 3'D" - EXEMPLAR DECLARATION OF RESTRICTIONS
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
(spAcE ABOVE THIS LtNE FOR RECORDER'S USE ONLY)
The document is exemptfrom the payment of a recording fee in accordance with Govemment Code Secfions 6103 and 27383.
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
day of 2013, by Habitat for Human¡ty Fresno, lnc., a California corporat¡on,
("DECIÁRANT'), in favor of the CITY OF FRESNO, a California munic¡pa¡ corporation
("clTY").
WHEREAS, DECLARANT is the owner of the real estate in the county of Fresno,
state of California consisting of A.P.N.s: 480-214-01, 480-214-02, 480-215-01 , 480-215-02,
480-215-03, 480-215-04, 480-215-05, 480-215-06, and 480-215-07, which is more
particularly described in EXHIBIT'A'- Property Description, attached hereto and made a
part hereof, including the improvements thereon (the "Property"); and
WHEREAS, pursuant to a certa¡n City of Fresno HOME Investment Partnerships
Housing Development Organization Agreement dated
3, incorporated herein by reference ("HOME CHDO Agreement")
nced therein, DECLARANT agrees to utilize, the CITY agrees to
provide, certain HOME CHDO funds from the United States Department of Housing and
Urban Development ("HUD"), to DECI-ARANT and DECLARANT agrees to construct and
preserve nine (9) units as Affordable Low-lncome units reserved for households earning
eighty percent (80%), or below, of the area median income for the Fresno Metropolitan
Statistical Area ("FMSA"). Three homes shall be 3-bedroom un¡ts, three homes shall be 4-
bedroom units, and three homes shall be S-bedroom un¡ts, subject to the terms and
conditions set forth in the HOME CHDO Agreement; and
WHEREAS, the HOME CHDO regulations promulgated by HUD, including without
limitation 24 C.F.R. 92.252; 24 and the HOME CHDO Agreement impose certain
affordability requirements upon property owned by the DECLARANT, which affordability
restrictions shall be enforceable for a thirty (30) year period; and
WHEREAS, these restrictions are ¡ntended to bind the DECLARANT, and all
purchasers of the Property and their successors.
NOW THEREFORE, DECLARANT declares that 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 Project. 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 Property or any part thereof, will inure to the benefit of the CITY
añd w¡ll be enforceable by it.
'Any purchaser under a contract of sale covering any right,
title or interest in any part of 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 commencing on
the date the DECI-ARANT is notified by the CITY that the Affordable Unit Homebuyer
information is has been entered into HUD's lntegrated Disbursement and Information
System (lDlS) as provided in the HOME CHDO Agreement, constituting the
commencement of the th¡rty (30) year Affordability Period.
1. Declarations. DECLARANT hereby declares that 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, and are established and
agreed upon for the purpose of enhancing and protecting the value of the Property and in
consideration of the CITY entering into the HOME CHDO Agreement with the
DECLARANT.
2. Restrictions. The following covenants and restrictions on the use and
enjoyment of the Propefi shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are for the benefit and
protection of the CITY and shall run with the Property and be binding on any future owner's
of the Property and inure to the benefit of and be enforceable by CITY. These covenants
and restrictions are as follows:
a. The DECI-ARANT for itself and its successor(s) on title covenants and
agrees that from the date the Project is entered into lDlS as complete, until the expiration
of the Affordability Period, it shall cause the nine (9) units be used as single-family owner-
occupied affordable housing to Low-lncome Households with an income of sify percent
(60%), or less, of area median income. The DECI-ARANT further agrees to file a
recordable document setting forth the Project Completion Date when determined by the
CITY. Unless othenruise provided in the Agreement, the term Affordable Housing shall
include, without limitation, compliance with the following requirements:
i. Nondiscrimination. There shall be no discrimination against nor
segregation of any persons 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 Property, nor shall DECLARANT establish or
permit any practice of discrimination or segregation with reference to the selection
location, number, use or occupancy of owners or vendees of the Project and/or Property.
ii. Principal Residence. Each of the nine (9) Affordable homes
constituting the Project upon the Property shall be sold only to eligible natural persons, who
shall occupy the home as the purchaser's principal place of residence. The forgoing
requirement that the purchaser of home constituting the Project Property occupy the home
t.
as the purchaser's pr¡ncipal residence does not apply to (l) persons, other than natural
p"rrons, who acquire the'Project Property or portion thereof by foreclosure or deed in lieu
ôf foreclosure; or HUD qualifiéd entities tlrat acquire the Property or portion thereof with the
consent of the CITY.
¡ii. Homeowner lncome Requirements. The nine (9) homes
constituting the Project upon the Property and each of them may be conveyed only to a
natural peison(s) w-hose annual Household income at the time of purchase is not greater
than eighty percent (80%) of the most recent annual median income calculated and
published by HUD for the FMSA applicable to such household's size.
iv. Recapture Provision. Should each of the nine (9) affordable
homes upon the Property not continue to be the principal residence of the Household
purchasing the Property/home as affordable housing for the duration of the period of
äffordabiliiy then a portion of the HOME CHDO financial assistance provided by CITY and
allocated to the Property/home shall immediately come due and must be repaid to the
CITY's HOME Program Trust Fund and thereupon the balance of the affordability
restrictions shall be-released. The CITY shall be possessed of a first right of refusal to
purchase the home before foreclosure to preserve affordab¡l¡ty.
Item (a) above is hereinafter referred to as the Covenant and Restriction.
3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be
entitled to in¡unctive or otner equitable relief against any violation or attempted violation of
any Covenant and Restriction.
4. Acceptance and Ratification. All present and future owners of the Property
and other persons claiming by, through, or under them shall be subject to and shall comply
w1h the Covenant and Restriction. The acceptance of a deed of conveyance to the
Property shall constitute an agreement that the Covenant and Restriction, as may be
amended or supplemented from time to time, are accepted and ratified by future owners,
tenant or occupant, and such Covenant and Restriction shall be a covenant running with
the land and shall bind any person having at any time any interest or estate in the Property,
all as though such Covenant and Restriction was recited and stipulated at length in each
and every deed, conveyance, mortgage or lease thereof'
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer in lieu
of foreclosure, or assignment of an 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 actioni that would avoid the termination of low-income affordability. However, the
requirements with respect to Affordable Units shall be revived according to their original
terms, if during the original Affordability Period, the owner of record before the foreclosure
or other transfur, or any entity that includes the former owner of those with whom the
former owner has or had formally, 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.
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5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date Project information is entered into lDlS as complete, until the
expiration of the thirty (30) Affordability Period. The failure or delay at any time of CITY
and/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 Attornev's Fees. In any proceeding arising because of failure of
DECLARANT or any future owner of the Property to comply with the Covenant and
Restriction required by this Declaration, as may be amended from time to time, the CITY
shall be entitled to recover its respective costs and reasonable attorney's fees incurred in
connection with such default or failure.
7. Waiver. Neither DECLARANT nor any future owner of the Property may
exempt itself from liability for failure to comply with the Covenant and Restriction required in
this Declaration; provided however, that upon the transfer of the Property, the transferring
owner may be released from liability hereunder, upon the CITY's written consent of such
transfer, which consent shall not be unreasonably withheld, conditioned or delayed.
8. Severabilitv. The invalidity of the Covenant and Restriction 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.
L 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. lnterpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the CITY and DECI-ARANT.
12. Recordation. DECI-ARANT 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 the HOME
CHDO Agreement.
14. Headinos. The headings of the articles, sections, and paragraphs used in
this Declaration are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
15. DECLARANT LIABILITY. The DECLARANT shall not have any personal
liability for the obligations under this Declaration. The sole recourse of the CITY shall be
exercised of its rights against the Property pursuant to the Deed of Trust and Lender shall
have not right to seek or recover any deficiency amount from DECLARANT.
lN WITNESS WHEREOF, DECLARANT has executed this Declaration of
Restrictions on the date first written above.
DEGI.ARANT:
Habitat for Humanity Fresno, lnc., a California corporation
Name: Anthony J. Miranda
Title: Executive Director
(Attach notary certificate of acknowledgment)
Date:
ùs,u
EXHIBIT "A''
To Declaration of Restrictions
The Property is located at 4713,4714,4719, E. Belgravia and 2370,2374,2378,2382,
2386, 2390 S. Laval, Fresno, CA 93725.
THE I.AND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO, COUNTY
OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Lots 1 through 9 inclusive, of Tract No. 4772 American Beauty Homes, in the City of Fresno,
County of Fresno, State of California, according to the map thereof Recorded in Book 61 Pages
22and 23 of Plats, Fresno County Records.
APN : 480- 21 4-01,02, 408-215-0 1, 02, 03, 04, 05, 06, 07
\4q
EXHIBIT "E: CERTIFICATE OF COMPLETION
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno. CA 93721-3605
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.
A. P. N. s : 480-21 4-01, 480-21 4-02, 480-21 5-0 1, 480-21 5-02,
480-215-03, 480-215-04, 480-2 1 5-05, 480-215-06, 480-21 5-07
City of Fresno
By:
Bruce Rudd, City Manager
Date:
¿\I
Certificate of Com Pletion
A. P. N. : 480-21 4-01, 480-21 4-02, 480-21 5-0 1, 480-21 5-02,
480-215-03, 480-215-04, 480-215-05, 480-215-06, and 480-2 1 5-07
Recitals:
A. By a City of Fresno ('CITY') HOME Investme rogram
Community Housing Development Organization Agreemenl 2013,
('HOME CHDO Agreement) between the City of Fresno, a muni CITY"),
and Habitat for Humanity Fresno, Inc., a California corporation, ("DEVELOPER"), as may
be amended from time to time, the DEVELOPER agreed to acquire nine (9) vacant parcels
and construct nine (9) single-family affordable Units upon the Property described in
EXHIBIT "4" attached to the HOME CHDO Agreement, and made part hereof by this
reference (the "Property"), with assistance of HOME CHDO Funds while meeting the
affordable housing, income targeting and other requirements of 24 C.F.R.92 according to
the terms and conditions of the HOME CHDO Agreement and Loan Documents and other
documents/instruments referenced therein.
B. The HOME CHDO Agreement or a memorandum of it was recorded o
California.
C. Under the terms of the HOME CHDO Agreement, after the DEVELOPER
completes the Project, the DEVELOPER may ask CITY to record a Certificate of
Completion.
D. The DEVELOPER has asked CITY to furnish the DEVELOPER with a
recordable Certificate of Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive evidence
that the DEVELOPER has completed the Project as set forth in the HOME Agreement.
NOW THEREFORE:
1. CITY certifies that the DEVELOPER commenced construction of the Project
done so in full compliance with the HOME CHDO Agreement.
2. This Certificate of Completion is not evidence of the DEVELOPER's
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.
4. Nothing contained herein modifies any provision of the HOME CHDO
Agreement.
B
Deputy
Date:
By:
Name:
Title: Executive Director
(Attach notary certificate of acknowledgment)
20-.
Deputy City Attorney
Date:
Date:
lN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
ay of
CITY OF FRESNO
By:
Bruce Rudd, City Manager
(Attach notary certiflcate of acknowledgment)
Date:
ATTEST: APPROVED AS TO FORM:
WONNE SPENCE, CMC DOUG T. SLOAN
CITY CLERK CITY ATTORNEY
By:
HABITAT FOR HUMANITY FRESNO, lNC., a California corporation
,l
EXHIBIT "F" . PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note, must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
Secured by Deed of Trust
Loan Amount: $845.000
Fresno, California
Date:
Promise to Pav. For value received, the undersigned, Habitat for Humanity Fresno, lnc., a California
Gorporation ("Borrower"), promises to pay to the order of the City of Fresno, a California municipal
corporation ("Lender"), the sum of Eight Hundred Forty Five Thousand dollars and 00/100
($845,000.00) along with interest on the unpaid principal at the rate of 2o/o per annum, all due and
payable on or before October 1,2015, (the "Borrower Loan Maturity Date") pursuant to the parties'
HOME CHDO Agreement dated , 2013, ('HOME CHDO Agreement"), on which date the
unpaid principal balance together rest and unpaid penalties or late changes where applicable
thereon shall be due and payable, along with attorney's fees and costs of collections, without relief
from valuation and appraisement laws, provided that, in the event the Borrower is not then in default
of the HOME CHDO Agreement, the Borrower may at any time prior to the Borrower Loan Maturity
Date convey the completed nine (9) single-family Affordable Units securing the Note to a Low-lncome
homebuyer through a purchase escrow ("Escrow") that conforms to the HOME CHDO Agreement and
concurrent therewith assigns Note in equal portions (1 at $93,888 and I at $93,889) to the nine (9)
Low-lncome homebuyers, who shall assume such Note at 0% interest with a lump sum principal only
payment due and payable from the Low-lncome homebuyer on, or before, expiration of thirty (30)
year from close of escrow ("Low-lncome Homebuyer Loan Maturity Date"). In the event and
concurrent therewith the CITY shall forgive from principal due thereunder the sum of Seventeen
Thousand dollars and 00/100 ($t7,000.00) (provided the Borrower confirms said reduction in a writing
noticed to the Escrow Officer and the CITY in a manner provided in the HOME CHDO Agreement),
and the Borrower shall be released from any further liability to the Lender under this Note, including
as to any interest accrued prior to assumption of the Note by the Low-lncome Homebuyer. Any
failure to make a payment required hereunder shall constitute a default under thís Note.
Definitions. All capitalized terms used in this Note, unless othenruise defined, will have the respective
meanings specified in the HOME CHDO Agreement.
Business Day. Means any day other than Saturday, Sunday, or public holiday or the equivalent for
banks generally under the laws of California. Whenever any payment to be made under this Note is
stated to be due on a day other than a Business Day, that payment may be made on 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.
Securitv. This Note, and any extensions or renewals hereof, is secured by a Deed of Trust, Security
Agreement executed by the Borrower and recorded against the Property in Fresno County, California,
and executed in favor of the Lender ("Deed of Trust"), creating and insured as a not worse than 2nd
position lien on the Property, subordinated only to a lien created by Borrower to insure payment of
monies borrowed to pay for the construction of a completed Unit on the Property. Said Deed of Trust
shall be subject to the terms of the Template Rider to the Deed of Trust attached hereto, and such
shall automatically be incorporated in the terms of the Deed of Trust that secures this Note. Said
Deed of Trust is insured by CLTA Lender's policy in the principal amount of, and endorsed for this
Note.
Time is of the Essence. lt will be a default under this Note if the 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. ln the event of a default by the 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.
Terms of Payment. 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, to:
City of Fresno - Finance
Accounts Receivable
2600 Fresno Street, Suite 2156
Fresno, CA93721
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 fited, 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. Atl 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 thís 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.
Terms of Securitv Instruments. The Deed of Trust securing this note 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 of all or any portion
of the Property, or any interest therein, other than a sale to a Low lncome homebuyer as provided in
the HOME CHDO Agreement, without the Beneficiary's prior consent. 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, Ínstallment 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. lf any Trustor is a
corporation, partnership or limited liability, company, transfer also includes any change in ownership
of more than twenty-five percent (25o/ol 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.
Assionment by Lender. 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.
Enforceablilty. lf 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.
Governinq Law. 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.
ilt
ln 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
Habitat for Humanity Fresno Inc., a California corporation
Date:
Name: Anthony J. Miranda
Title: Executive Director
(Attach notary certificate of acknowledgment)
EXHIBIT fIG'' . EXEMPLAR DEED OF TRUST
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
LINE FOR RECORDER'S USE
TITLE ORDER NO.
APN NOs. : 480-214-01, 480-214-02, 480-215-01 , 480-215-02,
480-2 1 5-03, 480-21 5-04, 480-2 1 5-05, 480-2 I 5-06, 480-21 5-07
DEED OF TRUST
Humanity Fresno, lnc., Calífornia company (herein "Borrower"), Chicago Title Company, a California
Corporation (herein "Trustee"), and the City of Fresno, a Municipal Corporation organized and existing under
the laws of the State of California whose address is 2600 Fresno Street, Fresno, California 93721 (herein
"Beneficiary" and "Lender").
Borrower, in consideration of the indebtedness herein recited and the trust herein created, does irrevocably
grant and convey to Trustee, in trust, with power of sale, all Borrower's right, title, and interest now owned or
hereafter acquired in the real property ("Land") known as 4713, 4714, 4719, E. Belgravia and 2370, 2374,
2378, 2382, 2386, 2390 S. Laval, Fresno, CA 93725, located in Fresno County, California and more
particularly described in the Attached Exhibit A, incorporated by reference (Borrower agrees that any greater to
the Land later acquired during the term of this Deed of Trust will be subject to this Deed of Trust), together
with the rents, issues, and profits, subject however, to the right, power, and authority granted and conferred on
Borrower in this Deed of Trust to collect and apply the rents, issues, and profits; and
Borrower also irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all of
Borrower's right, title and interest now owned or later acquired to the following property (including the rights or
interests pertaining to the property) located at the Property:
(1) All buildings ("Buildings") and improvements now or later on the land and all easements, rights,
appurtenances, water and water rights, minerals and mineral rights; all machinery, equipment,
appliances, and fixtures for the generation or distribution of air, water, heat, electricity, light, fuel,
or refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or
for the removal of dust, refuse, or garbage; all wall safes, built-in furniture, and instatlations,
window shades and blinds, light fixtures, fire hoses and brackets, screens, linoleum, carpets,
furniture, furnishings, fixtures, plumbing, laundry tubs and trays, refrigerators, heating units,
stoves, water heaters, incinerators, and communication systems and installations for which any
Building is specially designed; all of these item, whether now or later installed, being declared to
be for all purposes of this Deed of Trust a part of the Land, the specific enumerations in this
Deed of Trust not excluding the general;
(2) The rents, issues, profits, and proceeds relating to the foregoing; and
(3) The Property to the extent not included on clauses (1) and (2) above.
TO SECURE, in order of priority that Beneficiary determines:
(1) Payment of the indebtedness evidenced by a note of Borrower of even date with this Deed of
Trust in the principal amount of Eight Hundred Forty Five Thousand ($845,000.00) ("Note"),
payable to Beneficiary or order, and all extensions, modifications, or renewals of that note;
(2) Payment of the interest on that indebtedness according to the terms of the Note;
(3) Payment of all other sums (with interest as provided herein) becoming due and payable to
Beneficiary or Trustee pursuant to the terms of this Deed of Trust;
securing any indebtedness secured by this Deed of Trust, and any agreements, supplemental
agreements, or other instruments of security executed by Borrower as of the same date of this
Deed of Trust or at any time subsequent to the date of this Deed of Trust for the purpose of
further securing any indebtedness amending this Deed of Trust or any instrument secured by
this Deed of Trust (collectively the "Loan Documents"); and
(5) Payment of all other obligations owed by Borrower to Beneficiary that by their terms recite that
they are secured by this Deed of Trust, including those incurred as primary obligor or as
guarantor.
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to grant
and convey the Property, and that the Property is unencumbered except for encumbrances of record.
Borrower covenants that Borrower will forever warrant and will defend the grant made in this Deed of
Trust against all claims and demands, subject to encumbrances of record. Borrower covenants that Borrower
will maintain and preserve the lien of this Deed of Trust until all the indebtedness under the Note is paid in full.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust Borrower is a validly
existing, and in good standing under the laws of the State of California and is qualified to do business in
California; that Borrower has the requisite power and authority to own, develop, and operate the property; and
that Borrower is in compliance with all laws, regulations, ordinances, and orders of public authorities applicable
to it.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust the execution,
delivery, and performance by the Borrower and the borrowings evidenced by the Note are within the power of
the Borrower; have been duly authorized by all requisite corporate or partnership actions, as appropriate; has
received all necessary governmental approvals; and will not violate any provision of law, any order of any court
or agency of government, the charter documents of Borrower, or any indenture, agreement, or any other
instrument to which Borrower is a party or by which Borrower or any of it property is bound, nor will they
conflict with, result in a breach of, or constitute (with due notice and lapse of time) a default under any
indenture, agreement, or other instrument, or result in the creation or imposition of any lien, charge, or
encumbrance of any nature on any of the property or assets of Borrower, except as contemplated by the
provisions of the Loan Documents; and each of the Loan Documents, when executed and delivered to
Beneficiary, will constitute a valid obligation, enforceable in accordance with its terms.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust that the Property is
not used principally for agricultural or grazing purposes; that Borrower is engaged in the development and
operation of lmprovements to the Property; and that the principal purpose of the Loan is the acquisition,
development and/or the operation of the lmprovements to the Property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Pavment of Principal. Borrower shall promptly pay when due the principal indebtedness evidenced by the
Note.
2. Hazard lnsurance. Borrower, at its sole cost and expense, for the mutual benefit of Borrower and
Beneficiary, shall keep the improvements now existing or hereafter erected on the Property insured against
loss by fire, hazards included within the term "extended coverage", and such other hazards as Lender may
require and in such amounts and for such periods as Lender may require as set forth in the HOME CHDO
Ag reement referenced above.
The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender;
provided that such approval shall not be unreasonably withheld. All insurance policies and renewals
thereof shall be in a form acceptable to Lender and shall include a standard moñgage clause in favor of
and in a form acceptable to Lender. Lender shall have the right to hold the policies and renewals thereof,
subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has
priority over this Deed of Trust.
ln the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
make proof of loss if not made promptly by Borrower.
lf the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the
date notice is mailed by Lender to Borrower that the insurance canier offers to settle a claim for insurance
benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to
restoration or repair of the Property or to the sums secured by this Deed of Trust.
3.
Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or
deterioration of the Property and shall comply with the provisions of any lease if this Deed of Trust is on a
leasehold. lf this Deed of Trust is on a unit in a condominium or a planned unit development,
Borrower shall perform all of Borrower's obligations under the declaration or covenants creating or
governing the condominium or planned unit development, the by-laws and regulations of the condominium
or planned unit development, and constituent documents. Borrower shall not permit overcrowded
conditions to exist as defined by the U.S. Department of Housing and Urban Development.
4. Protection of Lende/s Securitv. lf Borrower fails to perform the covenants and agreements contained in
this Deed of Trust, or if any action or proceeding is commenced which materially affects Lendels interest in
the Property, then Lender, at Lender's option, upon notice to Borrower, may make such appearances,
disburse such sums, including reasonable attorney's fees, and take such action as is necessary to protect
Lender's interest. lf Lender requires mortgage insurance as a condition of making the loan secured by this
Deed of Trust, Borrower shall pay the premiums required to maintain such insurance in effect until such
time as the requirement for such insurance terminates in accordance with Borrower's and Lender's written
agreement or applicable laws.
5.
6.
7.
Any amounts disbursed by Lender pursuant to this Paragraph 5 shall become additional
indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Lender agree to other
terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting
payment thereof. Nothing contained in this paragraph 5 shall require Lender to incur any expense or take
any action hereunder.
lnspection. Lender may make or cause to be made reasonable entries upon and inspections of the
Property, provided that Lender shall provide Borrower notice prior to any such inspection specifying
reasonable cause therefore related to Lende/s interest in the Property.
Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection
with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of
condemnation, are hereby assigned and shall be paid to Lender, subject to the terms of any mortgage,
deed of trust or other security agreement with a lien which has priority over this Deed of Trust.
Borrower Not Released: Forbearance Bv Lender Not a Waiver. Extension of the time for payment or
modification of amortization of the sums secured by this Deed of Trust granted by Lender to any successor
in interest of Borrower shall not operate to release, in any manner, the liability of the original Bonower and
Borrower's successors in interest. Lender shall not be required to commence
proceedings against such successor or refuse to extend time for payment or othenruise modify amortization
of the sums secured by this Deed of Trust be reason of any demand made by the original Borrower and
Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy hereunder,
or otherwise afforded by applicable law, shall not be waiver of or preclude the exercise of any such right of
remedy.
The covenants and
agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors
and assignees of Lender and Borrower. All covenants and agreements of Borrower shall be joint and
several. Any borrower who co-signs this Deed of Trust, but does not execute the Note, (a) is co-signing
this Deed of Trust only to grant and convey that Borrower's interest in the Property of Trustee under the
terms of this Deed of Trust, (b) is not personally liable on the Note or under this Deed of Trust or the Note,
without that Borrower's consent and without releasing that Borrower or modifying this Deed of Trust as to
that Borrower's interest in the Property.
Transferabilitv. One of the inducements to Beneficiary for making the Loan is the identity of Borrower. The
existence of any interest in the Property other than the interests of Borrower and Beneficiary and any
encumbrance permitted in this Deed of Trust, even though subordinate to the security interest of
Beneficiary, and the existence of any interest in Borrower other than those of the present owners, would
impair the Property and the security interest of Beneficiary, and, therefore, except as provided herein or in
the Loan Documents, Borrower will not sell, convey, assign, transfer, alienate, or otherwise dispose of its
interest in the Property, either voluntarily or by operation of law, or agree to do so, without the prior written
consent of Beneficiary. Consent to one transaction by Beneficiary will not be deemed a waiver of the right
to require consent to further or successive transactions. lf Borrower is a corporation, any sale, transfer, or
disposition of fifty percent (50%) or more of the voting interest of Borrower or of any entity that directly or
indirectly owns or controls Borrower, including, without limitation, the parent company of Borrower, and the
parent company of the parent company of Borrower, will constitute a sale of the Property for purposes of
this article. lf Borrower is a partnership any change or addition of a general partner of Borrower, change of
a partnership interest of Borrower, or sale, transfer, or disposition of fifty percent (50%) or more of the
9.
voting interest or partnership interest of any partner of Borrower or of any corporation, partnership or entity
that directly or indirectly owns or controls any partner of Bonower, including, without limitation, each parent
company of a partner of Borrower and each parent company of any parent company of a partner of
Borrower, will constitute a sale of the Property for purposes of this section. lf Borrower is a limited liability
company, any change of the maneger or any sale, transfer or disposition of fifty percent (50o/o) or more of
the partnership interests of Borrower , or disposition of fifty percent (50o/o) or more of the voting interest of
Borrower or of any corporation, partnership or entity that directly or indirectly owns or controls any member
of Borrower, including without limitations, each parent company of Borrower and each parent company of
any parent company of a member of Borrower, will constitute a sale of the Property for purposes of this
section. Any transaction in violation of this section will cause all Indebtedness, irrespective of the maturity
dates, at the option of the Beneficiary and without demand or notice, immediately to become due, together
with any prepayment premium in accordance with the terms of the Note except as prohibited by law.
10. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice
to Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by
certified mail addressed to Borrower at the Property Address or at such other address as Borrower may
designate by notice to Lender as provided herein, and (b) any notice to lender shall
be given by certified mail to Lender's address stated herein or to such other address as Lender may
designate by notice to Borrower as provided herein. Any notice provided for in this Deed of Trust shall be
deemed to have been given to Borrower or Lender when given in the manner designated herein.
11. Governinq Law: Severabilitv. The state and local laws applicable to this Deed of Trust shall be the laws of
the jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of
Federal law to this Deed of Trust or if the Note conflicts with applicable law, such conflict shall not affect
other provisions of this Deed of Trust or the Note which can be given effect without
the conflicting provision, and to this end the provisions of this Deed of Trust and the Note are declared to
be severable. As used herein, "costs", "expenses", and "attorney's fees" include all sums to the extent not
prohibited by applicable law or limited herein.
12. Borrower's Copv, Borrower shall be furnished a conformed copy of the Note and of this Deed of Trust at
the time of execution or after recordation thereof.
NON-CONFORMING COVENANTS. Borrower and Lender further covenant and agree as follows:
13. Acceleration: Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Deed
of Trust, including the covenants to pay when due any sums secured by this Deed of Trust, the Note or the
Program restrictions, Lender prior to acceleration shall give notice to Borrower as provided in paragraph 10
hereof specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10
days from the date notice is mailed to Borrower, by which such breach must be cured; and (4) that failure
to cure such breach on or before the date specified in the notice may result in acceleration of the sums
secured by this Deed of Trust and sale of the Property. The notice shall further inform Borrower of the right
to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or
any other defense of Borrower to acceleration and sale. lf the breach is not cured on or before the date
specified in the notice, Lender, at Lender's option may declare all of the sums secured by this Deed of
Trust to be immediately due and payable without further demand and may invoke the power of sale and
any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable costs and
expenses incurred in pursuing the remedies provided in this paragraph 13, including, but not limited to,
reasonable attorney's fees. lf Lender invokes the power of sale, Lender shall execute or cause Trustee to
execute a written notice of the occurrence of an event of default and of Lender's election to cause the
Property to be sold and shall cause such notice to be recorded in each county in which the Property or
some part thereof is located. Lender or Trustee shall mail copies of such notice in the manner prescribed
by applicable law. Trustee shall give public notice of sale to the persons and in the manner prescribed by
applicable law. After the lapse of such time as may be required by applicable law, Trustee, without
demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place
and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee
may determine.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and
place of any previously scheduled sale. Lender or Lender's designee may purchase the Property at any
sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant
or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the
truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order:
(a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and
attorney's fees and costs of title evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess,
if any, to the person or persons legally entitled thereto.
14. Borrower's Riqht to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Deed of
Trust due to Borrower's breach, Borrower shall have the right to have any proceedings begun by Lender to
enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant
to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this
Deed of Trust if: (a) Borrower pays Lender all sums which would be then due under this Deed of Trust and
the Note had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or
agreements of Borrower contained in this Deed of Trust; (c) Borrower pays all reasonable expenses
incurred by Lender and Trustee in enforcing the covenants and agreements of Borrower in paragraph 13
hereof, including but not limited to, reasonable attorney's fees; and (d) Borrower takes such
action as Lender may reasonably require to assure that the lien of this Deed of Trust, Lende/s interest in
the Property and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue
unimpaired. Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured
hereby shall remain in full force and effect as if no acceleration had occurred.
15. Nonrecourse. Borrowershall nothaveanypersonal liabilityforrepaymentof theloan. Thesolerecourse
of the Lender under the Loan Documents for repayment of the Loan shall be the exercise of its rights
against the Property.
16. Withdrawal, Removal and/or Replacement. General partner of the Borrower pursuant to the terms of a
partnership agreement due to violation by a general partner of the terms of a partnership agreement, or a
voluntary withdrawal from a partnership by a general partner, and any transfer of limited partnership
interest or interests in the same, shall not constitute a default under any of the Loan Documents, and any
such actions shall not accelerate the maturity of the loan.
17. Lien of Deed of Trust. Beneficiary agrees that the lien of this Deed of Trust shall be subordinated to any
extended low-income housing commitment (as such term is defined in Section (42(hX6XB) of the internal
Revenue Code) (the "Extended Use Agreement") recorded against the Property, provided that such
Extended Use Agreement, by its terms, must terminate upon foreclosure under this Deed of Trust or upon
a transfer of the Property by instrument of lieu of foreclosure, in accordance with Section 42(hX6XE) of the
Internal Revenue Code, subject to the limitations upon evictions, terminations of tenancies and increases in
gross rents of tenants of low-income units as provided in that Section.
18. As additional security hereunder,
Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to
acceleration under paragraph 13 hereof or abandonment of the Property, have the right to collect and
retain such rents as they become due and payable.
Upon acceleration under paragraph 13 hereunder or abandonment of the Property, Lender, in person, by
agent or by judicially appointed receiver shall be entitled to enter upon, take possession of and manage the
Property and to collect the rents of the Property including those past due. All rents collected by Lender or
the receiver shall be applied first to premiums on receiver's bonds and reasonable attorney's fees, and then
to the sums secured by this Deed of Trust. Lender and the receiver shall be liable to account only for those
rents actually received.
19. Reconvevance. Upon payment of all sums secured by this Deed of Trust, Lender shall request Trustee to
reconvey the Property and shall surrender this Deed of Trust, and all notes evidencing indebtedness
secured by this Deed of Trust to Trustee. Trustee shall reconvey the Property without warranty and without
charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of
recordation, if any.
20. Substitute Trustee. Lender at lende/s option, may from time to time, appoint a successor trustee to any
Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the
Fresno County Recorder's Office. The instrument shall contain the name of the original Lender, Trustee
and Borrower, the book and page where this lnstrument is recorded and the name and address of the
successor trustee. The successor trustee shall, without conveyance of the Property, succeed to all the
title, powers and duties conferred upon the Trustee herein and by applicable law. This procedure for
substitution of trustee shall govern to the exclusion of all other provisions for substitution.
21. Statement of Obliqation. Lender may collect a fee not to exceed $50 for furnishing the statement of
obligation as provided by Section 2943 of the Civil Code of California.
22. Event of Default. Prior to declaring or taking any remedy permitted under Loan Documents, (where
applicable) Borrower's limited partners shall have an additional period of not less than thirty (30) days to
cure such alleged default. Notwithstanding the foregoing, in the case of a default that cannot with
reasonable diligence be remedied or cured within thirty (30) days, Borrower's limited partners shall have
such additional time as reasonably necessary to remedy or cure such default, but in no event more than
ninety (90) days from the expiration of the initial thirty (30) day period above, and if the Borrower's limited
partners reasonably believe that in order to cure such default, Borrower's limited partners must remove one
or both of Borrower's general partners in order to cure such default, Borrower's limited partners shall have
an additional (30) days following the effective date of such removal to cure such default. To the extent that
there is a conflict between this paragraph 22 and any remedy permitted by the HOME CHDO Agreement,
Loan Documents, or Loan, the terms of this paragraph 22 shall control.
The following events are each an "Event of Default":
(a) Default in the payment of any sum of principal or interest when due under the Note or eny other sum
due under the Loan Documents.
(b) Failure to maintain insurance as provided in Section 2 hereof.
(c) The failure (without cure during the applicable period, if any, for cure) of any Borrower to observe,
perform, or discharge any obligation, term, covenant, or condition of any of the Loan Documents, any
agreement relating to the Property, or any agreement or instrument between any Loan Party and
Beneficiary.
(d) The assignment by Borrower, as lessor or sublessor, as the case may be, of the rents or the income of
the Property or any part of it (other than to Beneficiary) without first obtaining the written consent of
Beneficiary.
(e) The following events:
(i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is prior to
this Deed of Trust, and the continued maintenance of the claim or lien for a period of thirty (30) days
without discharge, satisfaction, or adequate bonding in accordance with the terms of this Deed of
Trust;
(ii) the existence of any interest in the Property other than those of Borrower, Beneficiary, any tenants
of Borrower, and any one listed in a title exception approved by Beneficiary in writing; or
(iii) the sale, hypothecation, conveyance, or other disposition of the Property except with the express
written approval of Beneficiary, any of which will be an Event of Default because Borrower's
obligation to own and operate the Property is one of the inducements to Beneficiary to make the
Loan;
(f) Default under any agreement to which Borrower is a party, which agreement relates to the borrowing of
money by Borrower from Beneficiary.
(g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of Trust or
in, under, or pursuant to the Loan Documents, is false or misleading in any material respect as of the
date on which the representation or warranty was made.
(h) Any of the Loan Documents, at any time after their respective execution and delivery and for any
reason, cease to be in full force or are declared null and void, or the validity or enforceability is
contested by Borrower or any stockholder or partner of Borrower, or Borrower denies that it has any or
further liability or obligation under any of the Loan Documents to which it is a party.
lf one or more Event of Default occurs and is continuing, then Beneficiary may declare all the lndebtedness
to be due and the Indebtedness will become due without any further presentment, demand, protest, or
notice of any kind, and Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of
Borrower, or the existence of waste, enter on and take possession of the Property or any party of it in
its own name or in the name of Trustee, sue for or otherwise collect the rents, issues, and profits, and
apply them, less costs and expenses of operation and collection, including reasonable attorneys'fees,
upon the lndebtedness, all in any order that Beneficiary many determine. The entering on and taking
possession of the Property, the collection of rents, issues, and profits, and the application of them will
not cure or waive any default or notice of default or invalidate any act done pursuant to the notice;
(ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure
of mortgages of real property;
(iii) deliver to Trustee a written declaration of default and demand for sale, and a written notice of default
and election to cause the Property to be sold, which notice Trustee or Beneficiary will cause to be
filed for record;
(iv) with respect to any Personalty, proceed as to both the real and personal property in accordance with
Beneficiary's rights and remedies in respect of the Land, or proceed to sell the Personalty separately
and without regard to the Land in accordance with Beneficiary's rights and remedies; or
(v) exercise any of these remedies in combination or any other remedy at law or in equity.
24. Protection of Securitv.
lf an Event of Default occurs and is continuing, Beneficiary or Trustee, without notice to or demand upon
Borrower, and without releasing Borrower from any obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems necessary to protect the
security of this Deed of Trust;
(b) appear in and defend any action or proceeding purporting to affect, in any manner, the Obligations or
the lndebtedness, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or
Trustee is prior or superior to this deed of Trust; and
(d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable attorneys'fees.
Borrower agrees to repay on demand all sums expended by Trustee or Beneficiary pursuant to this section
with interest at the Note Rate of lnterest, and those sums, with interest, will be secured by this Deed of
Trust.
25. Effect of Assionment.
The assignment rents as provided herein will not impose on Beneficiary any duty to produce rents, issues,
or profits from the Property, or cause Beneficiary to be:
(a) a "mortgage-in-possession" for any purpose;
(b) responsible for performing any of the obligations of the lessor under any of the Leases; or
(c) responsible for any waste committed by lessees or any other parties, any dangerous or defective
condition of the Property, or any negligence in the management, upkeep, repair, or control of the
Property.
Beneficiary will not be liable to Borrower or any other party as a consequence of the exercise of the rights
granted to Beneficiary under this assignment or the failure of Beneficiary to perform any obligation of
Borrower arising under Leases.
lN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day and year set forth
above. By signing below, Borrower agrees to the terms and conditions as set forth above.
BORROWER
Habitat for Humanity Fresno lnc., a California corporation
Date:
Name: Anthonv J. Miranda
Title: Executive Director
(Attach notary certificate of acknowledgment)
By:
d\
DO NOT RECORD
The following is a copy of provisions (1) to (14), inclusive, of the fictitious deed of trust, recorded in
each county in California, as stated in the foregoing Deed of Trust and incorporated by reference in
said Deed of Trust as being a part thereof as if set forth at length therein
To Protect the Security of This Deed of Trust, Trustor (herein "Borrower") Agrees:
(1) To keep said property in good condition and repair, not to remove or demolish any building
thereon, to complete or restore promptly and in good and workmanlike manner any building which
may be constructed, damaged or destroyed thereon and to pay when due all claims for labor
performed and materials furnished therefor, to comply with all laws affecting said property or requiring
any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to
commit, suffer or permit any act upon said property in violations of law to cultivate, irrigate, fertilize,
fumigate, prune and do all other acts which from the character or use of said property may be
reasonably necessary, the specific enumerations herein not excluding the general
(2) To provide maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable
to Beneficiary. The amount collected under any fire or other insurance policy may be applied by
Beneficiary upon indebtedness secured hereby and in such order as Beneficiary may determine, or at
option of Beneficiary the entire amount so collected or any part thereof may be released to Borrower.
Such application or release shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee, and to pay all costs and expenses including cost of
evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of
Trust.
(a) To pay at least ten days before delinquency all taxes and assessments affecting said property,
including assessments on appurtenant water stock, when due, all encumbrances, charges and liens,
with interest, on said property or any part thereof, which appear to be prior or superior hereto, all
costs, fees and expenses of this Trust.
Should Borrower fail to make any payment or to do any act as herein provided, then Beneficiary or
Trustee, but without obligation so to do and without notice to or demand upon Borrower and without
releasing Borrower from any obligation hereof, may make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof Beneficiary or Trustee being
authorized to enter upon said property for such purposes; appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee,
pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto, and in exercising any such powers, pay necessary
expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay
for any statement provided for by law in effect at the date hereof regarding the obligation secured
hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the
time when said statement is demanded.
.it
(6) That any award of damages in connection with any condemnation for public use of or injury to said
property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or
release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not
waive his rights either to require prompt payment when due of all other sums so secured or to declare
default for failure so to pay.
(8) That at any time or from time to time, without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed and said Note for endorsement, and without
affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may reconvey any part of said property, consent to the making of any map or plot thereof; join ín
granting any easement thereon; or join in any efension agreement or any agreement subordinating
the lien or charge hereof.
(9) That upon written request of Beneficiary state that all sums secured hereby have been paid, and
upon surrender of this Deed and said Note to Trustee for cancellation and retention and upon
payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The grantee in such reconveyance may be described as "The person or persons legally
entitled thereto "Five years after issuance of such full reconveyance, Trustee may destroy said note
and this Deed (unless directed in such request to retain them)
(10) That as additional security, Borrower hereby gives to and confers upon Beneficiary the right,
power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of
said property, reserving unto Borrower the right, prior to any default by Borrower in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect the rents,
issues and profits of said property, reserving unto Borrower the right, prior to any default by Borrower
in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such rents, issues and profits as they become due and payable. Upon any such
default, Beneficiary may at any time without notice, either in person , by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in his own name sue
for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including reasonable attorney's fees.
Upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The
entering upon and taking possession of said property, the collection of such rents, issues and profits
and the application thereof as aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(11) That upon default by Borrower in payment of any indebtedness secured hereby or in
performance of any agreement hereunder. Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written declaration of default and demand for
sale and of written notice of default and of election to cause to be sold said property which notice
Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said
note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of
default, and notice of sale having been given as then required by law, Trustee, without demand on
Borrower, shall sell said property at the time and place fixed by it in said notice of sale, either as a
whole or in separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone
sale of all or any portion of said property by public announcement at such time and place of sale, and
from time to time thereafter may postpone such sale by public announcement at the time fixed by the
preceding postponement Trustee shall deliver to such purchaser its deed conveying the property so
sold, but without any covenant or warranty, express or implied. The recitals in such deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Borrower,
Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of
title in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums
expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law
in effect at the date hereof, all other sums then secured hereby, and the remainder, if any, to the
person or persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time
to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or
acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said property is situated, shall
be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without
conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties.
Said instrument must contain the name of the original Borrower, Trustee and Beneficiary hereunder,
the book and page where this Deed is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall
mean the owner and holder, including pledgees, of the note secured hereby whether or not named as
Beneficiary herein in this Deed, whenever the context so requires ,the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a
public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale
under any other Deed of Trust or of any action or proceeding in which Borrower, Beneficiary or
Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid:
To Lawyers Title Company, Trustee: Dated
The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured
by said Deed of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you
of any sums owing to you under the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said
Deed of Trust, delivered to you herewith together with said Deed of Trust, and to reconvey, without warranty, to the
parties designated by the terms of said Deed of Trust, the estate now held by you under the same.
MAIL RECONVEYANCE TO:
By
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
EXHIBIT ..A''
To Deed of Trust
The Property is located at 4713, 4714, 4719, E. Belgravia and 2370, 2374, 2378,2382,2386,
2390 S. Laval, Fresno, CA 93725.
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO, COUNTY
OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Lots 1 through 9 inclusive, of Tract No. 4772 American Beauty Homes, in the City of Fresno, County
of Fresno, State of California, according to the map thereof Recorded in Book 61 Pages 22and23 oÍ
Plats, Fresno County Records.
APN : 480-21 4-01,02, 408-215-0 1, 02, 03, 04, 05, 06, 07
[TEMPLATE RIDER TO DEED(S) OF TRUSTI
The Trustor (herein "Borrower") understands and agrees that the Note secured by this
Deed of Trust is made for the sole purpose of assisting in the purchase of the
Borrower's home as their principal place of residence. Therefore, the Borrower
understands and agrees that said Note secured by this Deed of Trust shall be
immediately due and payable upon the earlier of (1) upon any change in residency of
the Borrower from the Borrower's home which is used as security for the Note described
above, unless having obtained the written consent of the Beneficiary (herein "Lender");
(2) upon the sale or transfer, without the Lender'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, 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.
Borower also assigns to Lender all rents, issues and profits from said real property
reserving, however, the right to collect and use the same so long as there is no existing
default hereunder, and does hereby authorize Lender to collect and recover the same in
the name of Borrower of his successor in interest by use of any lawful means.
The Lender and Borrower acknowledge and agree that this security instrument is
second and subordinate in all respects to the liens, terms, covenants and conditions of
the first Deed of Trust and shall not impair the rights of any institutional lender which is
the maker of a loan secured by such first deed of trust, or such lender's assignee or
successor in interest, to exercise its remedies under the deed of trust in the event of
default by the Borrower. These remedies include the right to foreclosure or exercise a
power of sale or to accept a deed or assignment in lieu of foreclosure. The terms and
provisions of the first Deed of Trust are paramount and controlling, and they supersede
any other terms and provisions hereof in conflict therewith. ln the event of a foreclosure
or deed in lieu of foreclosure of the first Deed of Trust, any provisions herein or any
provisions in any other collateral agreement restricting the use of the property to low
income households or otherwise restricting the Borrower's ability to sell the property
shall have no further force or effect on subsequent owners or purchasers of the
property. Any person, including his successors or assigns (other than the Borrower or a
related entity of the Borrower), receiving title to the property through a foreclosure or
deed in lieu of foreclosure of the first Deed of Trust shall receive title to the property free
and clear from such restrictions.
ln the event of a catastrophic occurrence that results in the property having to be sold,
the portion of the existing second mortgage lien that results in the combined loan-to-
value ratio being more than 100% of the value of the property will be released with no
forgiveness of that portion of the debt, and the contemporaneous execution of an
unsecured promissory note equal to the amount released from the second mortgage,
and a modification agreement that reduces the secured debt of the existing second
mortgage by the amount of the new unsecured promissory note.
Period of Affordability: The HOME CHDO Agreement sets periods of affordability as
provided in 24 CFR 92.254 based on the amount of HOME CHDO funds provided. The
minimum period of affordability for this program is thirty years (30 years.) Year one shall
be the 12-month period following date the Project completion information is entered into
lDlS, with each succeeding year beginning on the anniversary thereof and ending 12
month hence. There will be no partial years.
Recapture of HOME CHDO Funds: Pursuant to 24 CFR 92.254(aXSXii), the City of
Fresno requires that HOME funds be recaptured if the home does not continue to be the
Borrower's principal residence or if all or any part of the property or any interest in it is
sold, rented, conveyed or transferred for the duration of the Period of Affordability. lf the
net proceeds are not sufficient to recapture the full HOME CHDO investment plus
enable the homeowner to recover the amount of the homeowner's down payment and
any capital improvement investment made by the owner since purchase, the CITY may
share the net proceeds. The net proceeds are the sales price minus superior loan
repayment (other than HOME CHDO funds) and any closing costs. The net proceeds
may be divided proportionally as set forth in the following mathematicalformulas:
HOME CHDO investment x Net
proceeds
= HOME CHDO recaptured
HOME CHDO investment
+ homeowner investment
Homeowner investment x Net = amount to homeowner
proceeds
HOME CHDO investment
+ homeowner investment
ln the event of foreclosure, the amount subject to recapture is based on the amount of
net proceeds (if any) from the foreclosure sale.