HomeMy WebLinkAboutHousing Authority - Single Family Homes - 2009AGREEMENT BETWEEN THE HOUSING AUTHORITY OF THE CITY OF FRESNO
AND THE CITY OF FRESNO REGARDING THE ACQUISITION, REHABILITATION
AND DISPOSITION OF SINGLE FAMILY HOMES
THIS AGREEMENT is made and entered into, effective the 29th day of October,
2009, by and between the CITY OF FRESNO, California, a municipal corporation,
hereinafter referred to as the'City, and the Housing Authority of the City of Fresno, a
California public agency, hereinafter referred to as the'SUBRECIPIENT".
RECITALS
WHEREAS, the U.S. Department of Housing and Urban Development,
hereinafter referred to as "HUD', provides funding under its Neighborhood Stabilization
Program, hereinafter "NSP' as authorized under Trde III of Division B of the Housing
and Economic Recovery Ad of 2008, for the purpose of assisting in Me redevelopment
of abandoned and foreclosed homes under the Emergency Assistance for
Redevelopment of Abandoned and Foreclosed Homes heading, hereinafter referred to
as the -Act", incorporated herein by its reference; and
WHEREAS, City is a recipient of NSP funding under the Ad for use in funding
eligible activities furthering established national objectives to benefit its low, moderate
and middle income residents as defined in the Ad; and
WHEREAS, to advance the supply of Affordable Housing within the City of
Fresno, Me CITY desires, among other things, to encourage private investment in the
affordable housing market; and
WHEREAS, the City in accordance with its 2006-2010 Consolidated Plan and
Annual Action Plan, as amended, desires to provide NSP funds to the SUBRECIPIENT,
for Me acquisition, rehabilitation, madceting and disposition of abandoned ancifor
foreclosed single family homes, as more fully described in Exhibit A, Project
Description, upon Me terms and conditions in this Agreement; and
WHEREAS, the City has determined that this Agreement is in the best interests
d, and will materially contribute to, the Housing Element of the General Plan. Further,
the City has found that Me Project (i) will have a positive influence in the neighborhood
and surrounding environs, (it) is in the vital and best interests of the City, and the health,
safety, and welfare of City residents, (iii) complies with applicable federal, state, and
local laws and requirements, including NSP guidelines and NSP national objectives (iv)
will increase, improve, and preserve the community's supply of Low, Moderate and
Middle Income Housing available at affordable housing cost to persons and families of
Low, Moderate and Middle Income, as defined hereunder, (v) planning and
administrative expenses incurred in pursuit hereof are necessary for the production,
improvement, or preservation of Law, Moderate and Middle Income Housing, and (vi)
will comply with any and all owner participation rules and criteria applicable thereto. and
WHEREAS, on June 10, 2009, the Housing and Community Development
Commission of the City of Fresno reviewed this Agreement and recommended
approval; and
WHEREAS, pursuant to City Resolution No. 2009-153, Me City Manager Is
authorized to execute, on behalf of the City, NSP agreements that are within available
allocated NSP funding and in a standard forth approved by the City Attorney.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, and subject to the terms and conditions and
provisions hereof, the parties agree as follows:
1. DefinRlons. 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,
A. Abandoned refers to a home that has had mortgage or tax foreclosure
proceedings initiated for that property, where no mortgage or tax payment have been
made by the property owner for at least 90 days, and where the property has been
vacant for at least 90 days.
B. Acquisition means vesting of Property in fee title to the SUBRECIPIENT.
C. ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
D. Affirmative Marketing means a good fait effort to aftrecl eligible persons
of all racial, ethnic and gentler groups, in the housing market area, to purchase the
Project Property that are separately proposed for acquisition, rehabilitation and
disposition on the eligible Property, as hereinafter defined.
E. Affordable Housing means the proposed Project Property, consisting of a
minimum of eighty (80) separate single-family homes on scattered sites, each of which
will be required to meet the affordability requirements of this Agreement and which
affordability requirements shall run with the land for the Affordability Period, subject to
release as provided in this Agreement.
E Affordability Period means the thirty (30) year period commencing from
the data of issuance of the Certificate of Completion of the Project Property.
O. Budget means the Budget, and any changes thereto, approved by the
CITY'S Housing and Community Development Division Manager provided the total
amount of NSP Funding allocated to the Project shall not be increased without City
Council approval, attached hereto as EXHIBIT C.
H. Certificate of Completion means that certificate issued, in Me forth
attached as EXHIBIT D, to SUBRECIPIENT by the CITY evidencing Me City -approved
disposition of each Project Property for purposes of this Agreement.
L CFR means the Code of Federal Regulations.
J. Current Market Appraised Value means the value of a foreclosed upon
NSP or residential property that is established through an appraisal made in conformity
with the appraisal requirements of URA at 49 CFR 24.103 and completed within 60
days prior to a final offer being made for the property by a grantee, SUBRECIPIENT, or
individual homebuyer.
K- Declaration of Restrictions means the Declaration of Restrictions in Me
form attached hereto as EXHIBIT R, which shall be recorded against the Property upon
the dose of escrow to an eligible homebuyer, setting out the Affordable Housing
covenants and requirements of this Agreement which shall run with the land.
L Deed of Trust means that Deed of Trust (including security agreement)
given by SUBRECIPIENT as Trustor, to the CITY as beneficiary, through an escrow
established by SUBRECIPIENT with a City -approved bile company, and reduced!
against the Property to ensure the Note for NSP Funds disbursed to SUBRECIPIENT,
together with the Rider to Deed of Trust attached as Exhibit E to the Note and
acceptable to the City Attorney, as well as any amendments to, modifications of and
restatements of said Dead of Trust, which Deed of Trust shall be subordinated to
Project lenders. The terms of any such Dead of Trust are hereby incorporated into this
Agreement by this reference. The Deed of Trust shall be in the amount equal to Me
requested NSP investment for each identified Property. A Deed of Trust may also
mean that Deed of Trust (including security agreement) given by an eligible homebuyer,
as Trustor, to Me CITY as beneficiary, through an escrow established by the
SUBRECIPIENT, and recorded against the Property to ensure the subsequent Note for
NSP Funds as approved for and provided to the homebuyer by the CITY, together with
Me Rider to Dead of Trust attached, as noted above, and acceptable to the City
Attorney, as well as any amendments to, modifications of and restatements of said
Deed of Trust, which Deed of Trost shall be subordinated to Protect lenders.
M. SUBRECIPIENT Loan means the Project Loan of NSP Funtls, In Me total
amount not to exceed Five Million Dollars and 00/100 ($5,000,000.00) for eligible NSP
costs, as further described in Exhibit A, Project Description, and as auffixi in the
Exhibit C, Budget and in the Promissory Note attached hereto as Exhibit F. The Loan
shall be payable in accordance with the terms of the Note, shall be secured by a deed
of trust on each parcel constituting each Property assisted, as these are purchased
and/or rehabilitated with NSP funds, and all be subject to the Rider to Dead of Trust.
NSP Loans will be zero -percent interest deferred payment loans as defined in Me
attached Promissory Note. As to each such Note and Dead of Trust, the City shall
consider forgiving a portion of the principal due thereunder, the sum to be determined
by Me CM upon conveyance of a completed Unit to an eligible NSP buyer through
purchase escrow, so long as SUBRECIPIENT is not then In default of this Agreement
and requests said reduction in principal In a writing nobced to the CITY in the manner
provided herein, and only to ensure the affordability of the home to the eligible buyer.
N. SUBRECIPIENT Promissory Note means the Partially forgivable Project In
the amount of the total NSP funds to the SUBRECIPIENT, substantially in the form
attached heretolncciporetetl herein as Exhibit F in principal amount of Five Million
Dollars and 001100 ($5.000 000 00) allocated to each of the Pmject Properties, based
on actual NSP costs for each specific Property, given by SUBRECIPIENT as promissor,
in favor of the CITY, as promissee, evidencing the Loan and performance of the
affordability and other covenants and restnctions set forth in this Agreement, secured by
a standard Deed of Trust creating a lien upon the Property upon property purchase(s),
naming the CITY as beneficiary and provided to the CITY no later than the data of initial
disbursement hereunder. as well as any amendments to, modifications of and
restatements of said Note consentetl to by CITY.
O. Eligible Costs means the NSP eligible costs funded by the Loan,
consistent win Me Budget attached as EXHIBIT C, as authorized under Title III of
Division B of the Housing and Economic Recovery Act of 2008, for the purpose of
assisting in the redevelopment of abandoned and foreclosed homes under the
Emergency Assistance for Redevelopment of Abandoned and Foreclosed Homes,
provided, however, that costs incurred in connection with any activity that is determined
to be ineligible under the Program by HUD or the CITY shall not constitute Eligible
Casts.
P. Event of Default shall have the meaning assigned to such term under
Section 30 hereunder.
O. Family has the same meaning given that Leon in 24 CFR 5.403,
R. Foreclosed means a property that has been foreclosed upon, and is at Me
point that, under state or local law, the mortgage or tax foreclosure is complete.
S. 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 "loxic substances' under federal or state environmental and health
safety laws and regulations, including without limtatian, 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. M the extent and degree that such substances are stared. used and disposed of
in the manner and In amounts that are consistent with normal practice and legal
standards.
T. Household means one or more persons occupying a Project Property.
U. HUD means the United States Department of Housing and Urban
Development.
V. Loan Documents are collectively this Agreement, the Note(s). Deed(s) of
Trust, Declaration(s) of ResMctions and all related documentarnstruments as they may
be amended. modified or restated from time to time along with all exhibits and
attachments thereto, relative to the Loan.
W. Low, Moderate and Middle-Income Households, hereinafter referred to as
LMMH, means families whose annual income does not exceed one hundred twenty
percent (120%) of the median Income for the Fresno. California area as determined by
HUD. except as HUD may establish income ceilings higher or lower than 120% of Me
median for the area on the basis of HUD findings that such variations are necessary.
X. Neighborhood Stabilization Program Funds (also referred to in this
Agreement as NSP Funds) means the NSP monies consti uting the Loan, in an amount
not to exceed the sum of Five Million Dollars and 00/100 ($5,000,000.00) used for NSP
eligible costs.
V. Participant Loan means the zero percent interest defamed payment NSP
homebuyer Loanls) as defined in the attached Participant Promissory Note.
Z. Participant Promissory Note means a silent second homebuyer Note
provided to eligible homebuyers through this Agreement, in accordance with all
requirements of this Agreement, given by an eligible homebuyer, as pmmissor, in favor of
the CITY, as promissee, evidencing the Loan and performance of the affordability and
other covenants and restrictions net forth in this Agreement, secured by a standard Deed
of Trust creating a lien upon the Properly, naming the CITY as beneficiary and provided
to the CIN no later than the date of participant funding hereunder, as well as any
amendments to, modifications of and restatements of said Note consented to by CITY.
AA, Program Income has the meaning defined at 24 CFR 570.500(a).
BB. Project means the minimum of one hundred twenty (120) single -family
abandoned and/or foreclosed Affordable Housing Units to be acquired, rehabilitated
marketed, and sold as LMMH Housing, and related on-site and off-sHe improvements all
as described in the Project Description attached hereto and incorporated herein as
EXHIBIT A.
CC. Project Completion Date means the date that Me CITY shall have
determined that Me Project has reached completion in accordance with this Agreement.
The Project Completion Date for this project is August 31, 2010. The Project
Completion Date may be extended as allowed in Section 3 of this Agreement.
DD. Project Property means the abandoned and/or foreclosed property to be
purchased and rehabilitated by the SUBRECIPIENT seconding to NSP guidelines, and
resold to an eligible LMMH homebuyer as an affordable housing project as provided
herein.
EE. Project Schedule means the schedule for completion of the Project
included within the EXHIBIT A, Project Descnption and Schedule, consistent with the
above Project Completion Dale.
FF. Revenue has the same meaning as program income, as defined at 24
CFR 570.500(a) with the modifications as identied in the Federal Register Volume 73,
No. 194, Docket No. FIR 5255-N-01 .
2. Ten. This Agreement and fire NSP grant provided hereunder shall be for the
period commencing upon the date of execution, and shall remain in force for the
duration of the longer of the Affordability Period and the Loan unless earlier terminated
as provided herein.
3. Timeframe for Completing Protect
A. SUBRECIPIENT's daily schedule and hours wonted under this Agreement
on a given day shall generally be subject to SUBRECIPIENT's discretion and Exhibit A,
provided that SUBRECIPIENT shall devote sufficient time as is reasonably necessary to
full the spirit and purpose of this Agreement and further provided that all shall be
completed not later than August 31, 2010. Extensions may be granted by the City In its
discretion upon SUBRECIPIEN-rs successful completion of the Agreement
requirements, and only to allow for the SUBRECIPIENT's further utilization of Program
Income as allowed in this Agreement.
B. This Section shall survive termination or explosion of this Agreement.
4. Loan Terms.
A. The City agrees to provide a NSP Loan to the SUBRECIPIENT in the
amount of Five Million Dollars and 00/100 ($5,000,000.00) for eligible costs. The
SUBRECIPIENT shall execute and deliverto the City the Loan Documents including me
Notate), and notarized Deed(s) ofTrust, for recordation against the Property.
B. The City may provide a portion of NSP funds as an advance to the
SUBRECIPIENT to facilitate Property purchase and rehabilitation.
I. The SUBRECIPIENT will be required to execute Loan Documents
for the advanced NSP Funds as soon as possible after Project Property has been
acquired.
C. The City may provide a portion of NSP funds for direct costs, on a specfic
Property, as a reimbursement of SUBRECIPIENT incurred eligible costs.
The City will provide for reimbursement of eligible costs in a timely
manner, based an invoices only and on a bi-weekly basis.
ii. Any NSP funds reimbursed to the SUBRECIPIENT for Property
speck costs shall be part of an individual proforma budget for the Property, where
NSP contributions to the Property are identified poor to commencement of rehabilitation.
1. The SUBRECIPIENT will execute anchor record Loan
Documents against the property based on me amount of NSP contribution estimated for
the specific Property.
D. The NSP Loan(s) will be due and payable in accordance with the Note(s)
and not later than the maturity date provided in the Note(s),
E. The CITY may aulhortne a loan write off of NSP funds if the total amount
of NSP funds plus any SUBRECIPIENT provided private funds, used to acquire and
rehabilitate the property, exceed the maximum allowable sales price of the home. The
CITY understands that SUBRECIPIENT provided private funs will not be written down
or forgiven.
5. Reporting Requirements
A. SUBRECIPIENT shall provide CITY with the following written performance
reports on or before the dales indicated
1. The SUBRECIPIENT will participate in monthly meetings with the
CITY and other select agencies, to determine continued project feasibilRy, address
neighborhood targeting, provide status of project, and reinforce collaboration among the
CITY, SUBRECIPIENT and other Program agencies.
ii. The SUBRECIPIENT will submit a performance report documenting
satisfactory performance of all services hereunder. on a monthly basis, and provide a
final report submitted within 45 days of the end of the term hereof and at any time
hereunder upon written request of the City.
1. The report should be in a format as prescribed by the City
and should provide data on the status of homes purchased, rehabilitatetl and for sale,
location of homes selected for purchase, scope of works) and associated costs for
homes rehabilitated during the reporting perin, Project homebuyers hereunder,
including the number of Person served, the racial composition, the percentage that are
LMMH, and the number of female headed households.
2. The SUBRECIPIENT will be required to submit monthly
reports throughout the term of this Agreement and until all Project Properties have been
sold to eligible homebuyers.
6. Pro ad Property Purchase and Appraisal Requirements
A. SUBRECIPIENT is required to ensure Me purchase of Foreclosed -upon
Properties be at a minimum discount of one percent (1%) from the wmenl markel-
appraised value of the home or property.
B. SUBRECIPIENT will be required to Perform an appraisal to support Meir
determination of fair market value, for purposes of calculating the purchase discount.
The appraisal requirement applies to any NSP -assisted acquisition of a foreclosed -upon
home or residential property (including voluntary acquisitions). The appraisal performed
must be in conformity with the appraisal requirements of the URA at 49 CFR 24.103 and
completed within sixty (60) days prior to a final offer being made for the property by the
SUBRECIPIENT. Additional requirements regarding appraisals are included as Exhibit
J: Appraisal Requirements.
7. NSP Funds Disbursement and Submitting of Invoices
A. NSP funds shall be disbursed: 1) into escrow to assist the
SUBRECIPIENT in purchasing a Project Property; 2) to reimburse SUBRECIPIENT for
incurred eligible costs, on a bi-weekly basis, for rehabilitation costs, or 3) into escrow as
a silent second cleared payment loan, to assist an eligible homebuyer purchase the
home upon resale, as provided for in Section 4: Loan Tens, in accordance with the
Proposed Budget attached hereto as Exhibit C and Incorporated herein, provided Mat
the specific line item amounts in said Budget may be varied, added and/or stricken, and
further provided that in any event total NSP funds disbursed in pursuit of said Budget
shall not exceed in the aggregate the lesser of the NSP Loan amount or the City's
available and allocated NSP Funding during the term hereof.
B. NSP funds shall be disbursed only as authorized in Section 7.A. and 7.8.
above, upon verification satisfactory to City that expenses incurred in performing the
Project are eligible under the Act, according to the following schedule and conditions
precedent to disbursement, as applicable:
L Upon invoice to City and within 30 days thereof; provided that City's
receipt of substantiating invoices, amounts, documents and records for each preceding
monthly period shall all be express conditions precedent to any payment obligation by
City
ii. Except to the extent expressly provided for herein, all
costs/expenses incurred by SUBRECIPIENT hereunder shall be the sole responsibility
and liability of SUBRECIPIENT.
iii. All funds are paid contingent upon SUBRECIPIENTs continuous
compliance with all applicable, uniform administrative requirements, program
regulations, and recapture and reversion requirements set out in the Act.
IV. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate.
V. The SUBRECIPIENT has carded out all of its obligations and is in
compliance with all the obligations or covenants specifatl in this Agreement, to the
extent that such obligations or covenants are required to have been carried out or are
applicable at the time of the request for the Disbursement.
VI . The SUBRECIPIENT 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 bath would constitute an Event of Default.
vii. Loan disbursement requested will be used solely for NSP eligible
costs that have been properly incurred and are properly chargeable in connection with
the Project.
viii. All invoices shall be submitted for payment by October 29, 2010,
B. Use of Funds. The SUBRECIPIENT shall use the funds provided by the CITY
solely in pursuit of the Project.
9. Use of Program Income SUBRECIPIENT shall utilize NSP Program Income
only as pre -approved by the CITY in writing, and only for the fime period as pre-
aulhorized by the CITY. NSP Program Income returned to the CITY or the
SUBRECIPIENT may be retries by the SUBRECIPIENT to further the intents of this
Agreement. Any program income received or earned after the authorized re -investment
period shall be returned to the CITY. The requirements of Nis section shall survive
termination of the Agreement.
10. Availability of NSP Entitlement Funds. SUBRECIPIENT acknowledges and
agrees that the NSP funding hereunder is subject to the control of HUD and may be
encumbered, withdrawn, or otherwise made unavailable to the CITY (whether earned or
promised M, or by, the SUBRECIPIENT). The SUBRECIPIENT shall not be paid such
funds unless and until they are made available for payment to the CITY by HUD and
allocated and available per CITY Council Action. No other funds owned or controlled by
the CITY shall be obligated under this Agreement unless specifically approved and
permitted by the Fresno CITY Council. Nothing herein constitutes a pledging or
obligating of CITY funds, its General Fund, or any real and personal property taxes,
sales taxes or any other tax revenues.
The
CITY will provide
prompt notice to
the
SUBRECIPIENT, upon CITY's notice
from
HUB, indicating
NSP funds may
be
unavailable to the CITY.
11. Construction Standards
A. SUBRECIPIENT shall rehabilitate the proposed housing units assisted
under this Agreement in compliance with all applicable local cedes, ordinances and
zoning requirements in effect at the time of issuance of Certification of Completion. The
SUBRECIPIENT shall follow the attached outline of rehabilitationlrepair requirements
(Exhibh K: Remuslitation/Repalr Requirements).
B. SUBRECIPIENT, dung its time on tile, shall maintain Project Properties
in a safe and secure state, while complying with all applicable mites, laws, and
ordinances.
12. Identification Signed Before the start of construction, the SUBRECIPIENT shall
place a poster or sign, identifying the City of Fresno, 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 posterfsign shall be appropriately placed, and shall be
in place throughout the Project construction.
13. Contracts and Subcontracts. Consistent with this Agreement, all demolition,
hazardous waste abatement construction Work and professional services for Ne 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 Ne City of Fresno.
The SUBRECIPIENT shall require that each contractor and subcontractor agreement
contain a provision whereby the party(ies) to the agreement other than the
SUBRECIPIENT agree to (i) notify the CITY immediately of any event of default by the
SUBRECIPIENT thereunder, (ii) notify the CITY immediately of the filing of a mechanic's
lien, (iii) notify the CITY immediately of termination or cancellation of the agreement
and (ivl provide the CITY, upon Ne CITYs request, an Estoppel Certificate certifying
that the agreement is in full force and effect and the SUBRECIPIENT is not in default
thereunder. The SUBRECIPIENT agrees to notiry the CITY immediately of termination
or cancellation of any such agreement(s), notice of fling of a mechanics lien, or breach
or default by other party(ies) thereto.
14. Mechanic's Liens and Stop Notices.
A. If any claim of lien is flied against the Property or a stop notice affecting
any financing, NSP Funds or Funding Sources for the Project is served can the CITY or
any other Not party in connection with the Project, the SUBRECIPIENT 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 Ne CITY with other assurance
satisfactory to the CITY that the claim of lien or stop notice will be paid or discharged.
Qrl
B. If Me SUBRECIPIENT falls to discharge, bond or otherwise satisfy the
CITY with respect to any lien, encumbrance, charge or claim referred to in this Section,
then, In addition to any other right or remedy, the CITY may, but shall not be obligated
to, discharge such lien, encumbrance, charge, or claim at the SUBRECIPIENT
expense. Alternatively, the CITY may require the SUBRECIPIENT 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 detennined against the SUBRECIPIENT. The SUBRECIPIENT 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.
15. Permits and Licenses. Upon CITY's reasonable request, the SUBRECIPIENT
shall submit, for CITY approval, all the necessary permits and licenses required for
Commencement of Construction. As the CITY may reasonably request, the
SUBRECIPIENT, 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 Man the
CITY in pursuit of the Affordable Housing Project, and for its stated purposes in
accordance with all applicable building, environmental, ecological, landmark,
subdivision, zoning codes, laws, and regulations. The SUBRECIPIENT is responsible,
at its sole cost and expense, to determine the location of any utilities on the Property
and to negotiate with the utility companies for and to relocate the utilities, g any, as
necessary to complete the Project.
16. Fees. Taxes and! Other Levies. The SUBRECIPIENT 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 SUBRECIPIENT 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 Latin and by appropriate proceedings. and (b) if
requested by the CITY, the SUBRECIPIENT deposits with the CITY any funds or other
ferns 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.
17. Covenants and Restrictions to Run with the Land.
A. The CITY and SUBRECIPIENT expressly warrant, covenant and agree to
ensure that the covenants and restrictions set forth in this Agreement am recorded and
will run with the land, provided, however, that, consistent with the Loan Documents,
CITY may release said covenants and restrictions only upon recapture of all NSP
funding allocated to the Unit(s) by the CITY. SUBRECIPIENT further warrants,
covenants and agrees to ensure that the covenants and restrictions set forts herein
shall run in favor of the CITY.
B, The CITY and SUBRECIPIENT hereby declare their understanding and
intent that the covenants and restrictions set forth herein directly benetd the land (a) by
enhancing and increasing the enjoyment and ownership of the proposed Project by
certain LMMH Families, and (b) by making possible the obtaining of advantageous
financing for acquisition. rehabilitation and resale.
C. The SUBRECIPIENT covenants and agrees Nat it shall cause the Project
Property to be sold as Affordable Housing to LMMH Families.
D. Without waiver or limitation, the CITY shall be entitled to injunctive or other
equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be entitled N damages available under law or
contract for any injuries or losses resulting from any violations 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.
18. Initial ICeftification andH b Loan Qualification
A. The SUBRECIPIENT covenants and agrees that the Project Property shall
be sold only to LMMH families to constitute Affordable Housing.
B. The SUBRECIPIENT warrants, covenants and agrees that it shall comply
with the procedures for income determinations, as required by the City.
SUBRECIPIENT further warrants, covenants and agrees that it shall Cooperate with Ne
CITY in the CITY's income cedification/affordability monitoring activities at the time
subsequent to Initial transfer of the Unit Properly.
C. The CITY shall approve In advance all homebuyers. Homebuyer financing
shall be based upon buyers ability to pay, consistent with this Agreement.
19. Lead -Based Paint. The SUBRECIPIENT warrants, covenants and agrees that it
shall comply with all applicable requirements of the Lead -Based Paint Poisoning.
Prevention Act of 42 U.S.C. 4021 at seq., 24 CFR Part 35 including the HUD 1012 Rule,
and 24 CFR 982401(j), including any amendments thereto, in the Affordable Housing
Project. These requirements apply to all units and common areas in the Project
Property. SUBRECIPIENT shall incorporeal or cause incorporation of this provision in
all contracts and subcontracts for work performed on the Project, which Involve the
application of paint. SUBRECIPIENT shall be responsible for all disclosure, inspection,
testing, evaluation, control and abatement activities.
20. Property Home Sale Price The maximum allowable sales price (hereinafter
'Maximum Allowable Sales Pnce') for a property is determinetl by a) aggregating all
costs of acquisition, rehabilitation, and redevelopment (including related activity delivery
IN
costs as approved by the CITy, which generally may include, among other items as
approved by the CITY, costs related to the sale of the property including, but not limited
to those described below, and not including concessions), or b) by appeasing the
property at resale, whichever value is less. Each assisted property shall be Initially
listed for sale at the Maximum Allowable Sales Price for a Period of fifteen (15) days
(hereinafter the "Initial Listing Period"). In the event the SUBRECIPIENT has not
received an offer to purchase the property at the Maximum Allowable Sales Price during
the Initial Listing Period, commencing on Me 16ir day and continuing through the
thirtieth (301h) day (hereinafter the "Secondary Listing Period"), fide SUBRECIPIENT
may accept a purchase offer below the Maximum Allowable Sales Price provided that
Me offer amount is no more than $5,000 below the Maximum Allowable Sales Price. In
the event the SUBRECIPIENT has does not receive an acceptable offer to purchase the
property during the Secondary Listing Period, the CM will consider approving a further
reduction of Me Maximum Allowable Sales Price if requested by the SUBRECIPIENT
and approved by the CITY in wrifirg. The acceptances of an offer to purchase the
property, in any and all such events, shall be considered upon the purchaser's
agreement to execute a promissory note secured by a deed of Trust in the amount of
the NSP assistance. Said amount shall not be less than $5,000, nor shall it exceed Me
lesser of $50,000 or 49% of the grass purchase price, but in no circumstance shall 4
exceed the actual amount needed to make the home affordable for the homebuyer
A. Acceptable costs related to the sale of the property which may be included
in rhe Maximum Allowable Saks Price include:
L Pro-ration of Property Taxes and any Special Assessments
ii. One-haff of Settlement or Closing Fee
iii. City/County Tax/Stamps
IV. Owners Policy of Title Insurance
V. Pest Inspection
vi. Up to 50% of the cost of a Home Warranty
vii. Geological and Environmental Disclosure Report
viii. Broker Commission of up to 6% of the Sales Price (3% to Listing
Broker and 3% to Selling Broker)
21. Homebuyer Selection. The SUBRECIPIENT is responsible for selecting eligible
homebuyers) for property purohasels) consistent with this Agreement and NSP
regulations. The SUBRECIPIENT will sell the assertetl property to the first eligible
homebuyer who offers to purchase the property at the Maximum Allowable Sales Price
as defined above. If the first offer is found to be ineligible, then the SUBRECIPIENT will
sell the property to the second homebuyer who offers to purchase the properly at the
Maximum Allowable Sales Price. If the SUBRECIPIENT tices not receive any offers at
the Maximum Allowable Sales Price, the SUBRECIPIENT may sell the assisted
property to the first eligible homebuyer who offers to purchase the property at the
reduced asking price, as identified! above. The CITY shall verity NSP eligibility, in
advance, for all homebuyers as pre-selected by the SUBRECIPIENT. Homebuyer
financing shall be bases upon buyers ability to pay, consistent with this Agreement -
13
The CITY will require homebuyers to provide three percent (3%) cash contribution
towards Meir home purchase.
22. Affordable Housin
A. The purpose of this Agreement is to use NSP Loan Funds to ensure Me
affordability of Project Property to be sold to LMMH. The SUBRECIPIENT, and those
taking ownership of the Project Property under or through iVmem, covenant and agree
that the Project shall constitute Affordable Housing by ensuring that Me homes are sold
only to LMMH.
I. If a Project Unit initially built and sold to a LMMH is subsequently
resold, otherwise transferred and/or is no longer the principal residence of the
individual(s) who initially purchased the property as Affordable Housing during the
Affordability Period, and without waiver or limitation, the entire NSP -Funded Loan
allocated to Unit shall be repaid to/recaptured by the CIT^s NSP Trust Fund and
thereupon the balance of Me Affordability Covenant/Periad shall be released.
Ji. The SUBRECIPIENT shall require that each home buyer execute a
Note in the amount of the NSP assistance provided to the home, minus any forgiven
amounts, and only as secured by a Trust Deed Note from Me homebuyer to the CITY,
Said Trust Deed Ndte(s) shall be security for the provision of NSP Funding for the
Project by the CITY. In the event of a failure to comply with the Affordability
Restrictions, in addition to any and all other remedies available to It, the CITY shall be
entitled to enjoin sale of the Project Units, damages not being an adequate remedy at
law for such breach.
iii. In the event of a failure to comply wdh the Affordable requirements,
as applicable, the CITY shall be entitled to enjoin selling the Project Property, as the
parties acknowledge that damages are not an adequate remedy at law for such breach.
B. If the SUBRECIPIENT finds that the subsequent resale of a Project
Property is not progressing on a timely basis, the SUBRECIPIENT may request that Me
City approve the temporary rental of the Project Property to an eligible LMMH. The
approval of the conversion of the for -sale property Into a rental property will be at the
sole discretion of the CITY. The SUBRECIPIENT will be required to undertake all
necessary and appropriate efforts to ensure the prompt re -sale of the Project Property
as is the intention in this Agreement.
23. Compliance with Environmental laws
A. The SUBRECIPIENT shall cause the Project to be in compliance with, and
not to cause or permit the housing project to be in violation of, any environmental law,
rule, regulation, ordinance, or statute. Although the CITY may utilize its employees and
14
agents for regular inspection and testing of the eligible Property, the SUBRECIPIENT
agrees that, K the CITY has reasonable grounds to suspect any such violation, the
SUBRECIPIENT shall be entitled to thirty (30) days' notice and opportunity to cure such
violation. If the suspected violation is not cured, the CITY shall have the right to retain
an independent consultant to inspect and test the eligible Property for such violation. If
a violation is discovered, Ne SUBRECIPIENT shall pay for the reasonable cost of the
independent consultant.
S. Additionally, the SUBRECIPIENT agrees'.
I. That the CITY shall not be directly or indirectly involved with the
inspection, testing, removal or abatement of asbestos or other hazardous or toxic
chemicals, materials, substances, or wastes and that all cost, expense and liability for
such work shall be and remain solely with the SUBRECIPIENT; and
It Not to transport to or from the proposed project site(s), or use,
generate, manufacture, produce, store, release, discharge, or dispose of on, under, or
about the project site(s), or surrounding real estate, or transport to or from the project
site(s), or surrounding real estate, any hazardous or toxic chemicals, materials,
substance, or wastes or allow any person or entity to do so except in such amounts and
under such terms and donations permitted by applicable laws, rules, regulations,
ordinances, and statutes; and
iii. To give prompt written notice to the CITY of the following:
1. Any proceeding or inquiry by any governmental authority
with respect to the presence of any hazardous or toxic chemicals, materials, substance,
or waste in or on the eligible Property or the surrounding real estate or the migration
thereof from or to other property;
2. All claims made or threatened by any third party against the
SUBRECIPIENT or such properties relating to any loss or injury resulting from any
hazardous or toxic chemicals, materials, substance, or waste; and
3. The SUBRECIPIENT'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 Ne 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 CIN harmless from any
and all claims, actions, causes of action, demands, judgments, damages, injuries,
administrative orders, consent agreements, orders, liabilities, penalties, casts, expenses
(including attorney's fees and expenses), and disputes of any kind whatsoever arising
out of or relating to the SUBRECIPIENT or any other party's use or release of any
hazardous or toxic chemicals, materials, substance, or wastes on the eligible Property
15
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 other
remedial work of any kind.
24. Certificate of Correlation Upon the opening of escrow for disposition of the
Project Property by the SUBRECIPIENT to an eligible homebuyer, the SUBRECIPIENT
shall certify, in writing, to the CIW that rehabilitation of the Project Property has been
completed in accordance with state and local building codes and as approved by the
CITY. Upon completion of each Project Property, the SUBRECIPIENT shall also submit
to the CITY a cost certifying final budget where the SUBRECIPIENT shall identify the
actual costs of construction of each Project Property. This final cxostcertification shall
identify costs in line-dem format Upon a determination by the CITY that the
SUBRECIPIENT is in compliance with all of the SUBRECIPIENT's construction
obligations, as specified! in this Agreement, for that Project Property, the CITY shall
furnish, a recordable Certificate of Completion for the Property to be recorded in
escrow, as applicable, in the form attached hereto as EXHIBIT B. The CITY will not
unreasonably withhold or delay furnishing the Certificate of Completion. If the CITY fails
to provide me Certificate of Completion within the specified time, it shall provide the
SUBRECIPIENT with a written statement indicating in what respects the
SUBRECIPIENT has failed to complete me Project In conformance with this Agreement
or has otherwise failed to comply with the terms of this Agreement, and what measures
the SUBRECIPIENT will need to take or what standards it will need to meet in order to
obtain the Certificate of Completion. Upon the SUBRECIPIENT taking the specked
measures and meeting Me specified[ standards, the SUBRECIPIENT will certify to the
CITY in writing of such compliance and the CITY shall deliver the recordable Certificate
of Completion to the SUBRECIPIENT in accordance with the provisions of this section
25. Property Management
A. With respect to he Project, SUBRECIPIENT shall comply with the
following:
I . Management Responsibilities. The SUBRECIPIENT is specrfiwlly
responsible for all management functions with respect to the Project including, without
limitation, construction management. affirmative marketing, property disposition and
inhal certification of household size and income. The SUBRECIPIENT during its time
on title shall be responsible for Project maintenance, landscaping, routine and
extraordinary repairs, replacement of capital Items and security. The City shall have no
responsibility for such management of the Protect.
ii. Maintenance and Security. The SUBRECIPIENT shall (i) at Its own
expense maintain me homes in good condition, in good repair and in decent, safe,
sanitary, habitable and tenantable living conditions for the benefit of the purchasers, (ii)
not commit or permit any waste on or to the homes, and shall prevent and/or rectify any
physical deterioration of the homes', and (iii) maintain the homes in conformance with all
16
applicable federal, state and local laws, ordinances, codes and regulations and this
Agreement, until such are sold to LMMH buyers.
28. Financial Statements and Audits.
A. The SUBRECIPIENT, as a recipient of federal financial assistance, is
required to comply with the provisions of the Single Audit Act of 1984 (31 U.S.C.
Sections 7501 at seq.), as amended. Annually, within one hundred and eighty (180)
days following: 1) the end of fiscal years) in which the NSP Funds are disbursed
hereunder, and 2) Ne end of fiscal year(s) in which this contract shall terminate, and
otherwise upon the Cil written request during Ne tens of this Agreement,
SUBRECIPIENT, at its sole mat and expense shall submit to the City
I. Audited annual financial statements that are current, signed, and
prepared according to generally accepted amounting principles consistently applied
(except as otherwise disclosed therein); and
il. Audited Financial Statements covering the income and expenses,
and the financial transactions for Ne Project during the prior fiscal year.
27. Inspection and Audit of Books Records and Documents.
A, The SUBRECIPIENT shall be accountable to the CITY for all NSP Funds
disbursed for this project pursuant to this Agreement. Any duly authorized
representative of the CITY, the State, or HUD shall, at all reasonable times, have
access to and the right to inspect, copy, make excerpts or transcripts, audit, and
examine all books of accounts, records, files and other papers or property, and other
documents of the SUBRECIPIENT pertaining to me Project or all matters covered in this
Agreement and for up to five (5) years after the expiration or termination of this
Agreement.
B. The SUBRECIPIENT will maintain books and records for the Project using
generally accepted accounting principles. The SUBRECIPIENT agrees to maintain
books and records that accurately and fully show the date, amount, purpose and payee
of all expenditures financed with NSP Funds and to keep all invoices, receipts and other
documents related to expenditures financed with NSP Funds for not less than five (5)
years after the expiration or termination of me Agreement. Books and records must be
kept accurate and current. For purposes of this section, "books, records and
documents" include, without limitation; plans, drawings, spec cations, ledgers, journals,
statements, contracts/agreements, funding infoonalion, 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.
C. The CITY may audit any conditions relating to this Agreement at the
CITY's expense, unless such audit shows a significant discrepancy in information
17
reported by the SUBRECIPIENT in which case the SUBRECIPIENT shall bear the coat
of such audit. This section shall survive the termination of this Agreement.
D. The SUBRECIPIENT will coopemte fully with the CITY, Ne State, and
HUD in connection with any interim or final audit relating to the Programs and the
Project that may be performed relative to the performance of this Agreement.
28. Inspection of drops . Any duly authorized representative of the CIN, the
State, or HUD shall, at all reasonable fumes, have access and the right to inspect the
Property until completion of the Project.
29. No Other Liens. The SUBRECIPIENT shall not create or incur, or suffer to be
createtl or incurred, or to exist, any additional mortgage, pledge, encumbrance, lien,
charge, or other severity interest of any kind on the eligible Property, other than those
related to construction or predevelopment loans in relation to the Affordable Housing
Project consistent with the attached Exhibit C Project Budget, without the prior written
consent of the CITY.
30. Payment of Liabilities. The SUBRECIPIENT shall pay and discharge in the
ordinary course of Its business ail material obligations and liabilities, the nonpayment of
which could have a material or adverse impact on its financial condition. business, or
assets or on the operation of the Project(s), except such obligations and liabilities that
have been disclosed to the CITY in wring and are being contested in good faith.
31. Termination of Aareement
A. This Agreement shall terminate upon the earlier of
1. SUBRECIPIENTs Default. The parties agree that each of the
following shall constitute a default by SUBRECIPIENT for purposes of this Agreement
where such breach remains uncured for thirty (30) calendar days following City's notice
to SUBRECIPIENT describing such breach, or t such breach is not reasonably
susceptible of cure, immediately upon notice of breach by City to SUBRECIPIENT:
1. The SUBRECIPIENT'Ts use of NSP funds for other uses than
described in the Scope of Work.
2. The SUBRECIPIENTs failure to obtain and maintain the
insurance coverage required under this Agreement.
3. Except as otherwise provided in this Agreement, the failure
of the SUBRECIPIENT to punctually and properly perform any other covenant or
agreement contained in this Agreement including without limitation the following:
a. Failure to meet performance measures and schedule.
io
b. Any representation, warranty, or certificate given or
furnished by or on behalf of SUBRECIPIENT shall prove to be materially false as of the
date of which the representation, warranty, or certification was given, or that
SUBRECIPIENT concealed or failed to disclose a material fact to City, provided,
however, that lt any representation, warranty, or certification that proves to be materially
false is due merely to SUBRECIPIENT's Inadvertence, SUBRECIPIENT shall have a
thirty (30) day opportunity after written notice thereof to rause such representation,
warranty, or certification to be true and complete in every respect.
G, SUBRECIPIENT shall file, or have fled against it, a
petition of bankrudzy, insolvency, or similar law, state or federal, or shall file any
petition or answer seeking, consenting to, or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar relief, and
such petition shall not have been vacated within fourteen (14) days-, or shall be
adjudicated bankrupt or Insolvent, under any present or future statute, law, regulation,
under stale or federal law, and such judgment or decree is not vacated or set aside
within fourteen (14) days.
J . SUBRECIPIENT's failure, inability or admission in
writing of its inability to pay its debts as they become due or SUBRECIPIENTs
assignment for the benefit of creditors.
e. A receiver, trustee, or liquidator shall be appointed for
SUBRECIPIENT or any substantial part of SUBRECIPIENTs assets or properties, and
not be removed within ten (10) days.
f. SUBRECIPIENT's breach of any other material
condition, covenant, warranty, promise or representation contained in this Agreement
not otherwise identified within this section.
ii. Written notice by either party to the other without cause.
Iii. Complete performance by each party hereto.
v Expiration
B. Upon the happening of a default by SUBRECIPIENT and a failure to cure
said default within 30 days of the date of the notice of default (or a more immediate date
if the default is related to imminent health and/or safety concerns), City's obligation to
disburse NSP funding shall terminate, and 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 City may
choose In Is sole discretion:
19
L Terminate this Agreement immediately upon written notice to
SUBRECIPIENT, in which event any unearned and improperly NSP funds disbursed to
SUBRECIPIENT by City shall be returned to City;
R. Bring an action in equitable relief (1) seeking specfic performance
by SUBRECIPIENT of the terms and conditions of this Agreement, and/or (2) enjoining,
abating or preventing any violation of said terms and condttions, and/or (3) seeking
declaratory relief,
iii. Pursue any other remedy allowed at law or in equity or under this
Agreement.
C. Upon any ternination, the City's obligations hereunder shall terminate and
all unexpended or improperly expended NSP funds subject to this Agreement shall
revert to and/or be recaptured for the City's NSP Program, provided that d the
SUBRECIPIENT is not in default at the time of termination the SUBRECIPIENT shall be
reimburse l for eligible project activities satisfactorily performed prior to the effective
date of the notice of termination.
D. Notwithstanding the foregoing and without waiver or limitation, in
accordance with the Act including 24 CFR 85 43, suspension or termination of this
Agreement may occur If the SUBRECIPIENT materially fails to comply with any term of
the NSP grant, and the grant may be laminated for convenience in accordance with 24
CFR 85.44.
E. Those provisions of this Agreement intended by its terms therein to
survive the termination of this Agreement shall so survive.
32. On -Site Mondor'na. Authorized representatives of HUD or the City shall have the
right to monitor the SUBRECIPIENT's performance under this Agreement. Such
monitoring may include inspection activities, review of records, and attendance at
meetings.
33. Records.
A. The SUBRECIPIENT shall maintain all necessary books and records with
respect to disbursement of money, to property, and to personnel in accordance with
usual and customary business accounting practices. The SUBRECIPIENT shall
document all SUBRECIPIENT expenditures under this Agreement with properly
executed payroll, time recortls, invoices, centrads, vouchers, or other official
documentation evidencing the nature and propriety of the charges. All such materials
shall be retained by the SUBRECIPIENT for a period of not less than five (5) years from
termination of this Agreement.
B. The SUBRECIPIENT shall, at such time and in such forms as the City or
HUD may require, furnish statements, records, datacopies, and information pertaining
37
to matters covered by this Agreement. The City has the right, upon request, to inspect
and copy all SUBRECIPIENT comments and records pertaining to this Agreement.
M. Compliance th Governmental Reclulations.
A. The SUBRECIPIENT shall, at its sole cost and expense, comply with
applicable municipal, county, state, and federal law, regulations, rules and requirements
now in force, or which may hereafter be in force, pertaining to any and all activities
under this Agreement. The SUBRECIPIENT shall comply with all applicable provisions
of 24 CFR 570, at seq., including Subpart K thereof, except that the SUBRECIPIENT
does not assume the CITY's non -delegable environmental responsibilities described in
24 CFR 58 and/or 24 CFR 570604, and does not assume the City's responsibility for
Indating the review process under Executive. Order 12372.
I . Both City and SUBRECIPIENT agree to jointly and severally comply
with the requirements of the Office of Management and Budget Circular A-87, "Cost
principles for State, Looxi, and Indian Tribal Governments"; OMB Circular A-133 'Audits
of States, Local Governments and Non -Profit Organizations"; 24 CFR Pad 85 "Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments^, and 24 CFR Part 570.502'Applicability of Uniform Administrative
Requirements". Each party shall be responsible for determining the applicability of the
foregoing_
ii. The SUBRECIPIENT agrees to comply with all applicable
requirements of Section 504 of the Rehabilitation Act of 1973 and HUD implementing
regulation 24 CFR Part B.
B. In accordance with written guidance received from the HUD Office of
Labor Standards, Davis Bacon prevailing wages does not apply to this contract because
the work to be performed is rehabilitation of single -(amity, properties for single-family
homeownership at scattered sites. In the event prevailing wage is found to apply,
SUBRECIPIENT shall indemnify the CITY pursuant to Section 40. SUBRECIPIENT
shall comply with the applicable prevailing wage laws.
35. Contract Award.
A. The SUBRECIPIENT will be responsible for all aspects of the project
contract award and management including any compliance with all applicable laws and
regulations. The SUBRECIPIENT shall verify with the Labor Relations and Equal
Opportunity Division of the U.S. Department of Housing 8 Urban Development (HUD)
Area Office that any low bidder has not been debarred or suspended from participating
in the federal preject.
i. Any such award shall be subject to all the terms acid conditions
herein.
36. Apcess bili
A. The SUBRECIPIENT wareams, covenants and agrees that it shall comply
with 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29
U S.C. 794), including, without limitation, the construction of the Project so that it meets
the applicable accessibility requirements, including, but not limited to, Ne following:
I , The homebuyer shall be given the opportunity to consult with
SUBRECIPIENT regarding the specific design features to be provided. If accessibility
features selected at the option of the homebuyer are ones covered by the standards
prescribed by 24 CFR Sec. 8.32, those features shall comply with the standards
prescribed In Sec. 8.32. The homebuyer shall be peimlhed to depart from particular
specihcalions of these standards in order to accommodate his or her specific handicap,
The cost of making a unit accessible under this paragraph may be included in the
mortgage amount within the allowable mortgage limits, where applicable. To the extent
such costs exceed allowable mortgage limits, they may be passed on to the prospective
homebuyer, subject to maximum sales price limitations (24 CFR 235.320).
37, Discrimination Prohibited.
A. The SUBRECIPIENT agrees to comply with the City's Fair Employment
Practices and shall not employ discriminatory practices in the provision of services,
employment of personnel, or in any other respect on the basis of race, color, religion,
sex, national origin, ancestry, or physical or mental handicapped. More specifically, the
SUBRECIPIENT agrees as follows:
L The SUBRECIPIENT warrants, covenants and agrees that it shall
comply with the CITY's "Affirmative Marketing Policy' document, incorporated herein. as
amended from time to time. SUBRECIPIENT shall maintain records of actions taken to
affirmatively market units purchased and rehabilitated in the future, and to assess the
results of these actions.
ii No person in the United States shall, on the grounds of race, color,
religion, national odgln, sex or sexual preference, ancestry, or physical or mental
handicap be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
iii. The SUBRECIPIENT will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual preference,
national origin, ancestry, or physical or mental handicap. The SUBRECIPIENT shall
take affirmative action to ensure that applicants are employed, and the employees are
treated during employment, without regard to their race, polar, religion, sex, national
origin, ancestry, or physical or mental handicap_ Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising', layoff or termination; rates of pay or other forms of
04
compensation; and selection for training, including apprenticeship. The
SUBRECIPIENT agrees to post in conspicuous places available to employees and
applicants for employment, notices setting forth the provision of this nondiscrimination
clause.
iv. The SUBRECIPIENT will, in all solicitation or advertisements for
employees placed by or on behalf of the SUBRECIPIENT, state all qualified applicants
will receive consideration for employment without regard to race, color, religion, sex,
sexual preference, national origin, ancestry or physical or mental handicap.
B. The SUBRECIPIENT will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
understanding, a notice advising the such labor union or workers' representatives of Ne
SUBRECIPIENT'S commitment under this section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment
38. Conflict of Interest.
A. Prior to City's execution at this Agreement, SUBRECIPIENT shall
complete a Cry of Fresno Conflict of Interest Disclosure Statement. Said Statement is
attached hereto as Exhibit and incorporated herein by reference. During the term of
this Agreement, SUBRECIPIENT shall have the obligation and duty to immediately
notify City in writing of any change to the information provided by SUBRECIPIENT on
Exhibit G.
i. No member, officer, or employee of the SUBRECIPIENT or its
designees or agents who exercise any function or responsibility with respect to the
programs during his/her tenure or for one (1) year thereafter, shall have any Interest,
direct or indirect, in any contract or subcontract, or the proceeds thereof, for Services to
be performed in connection with this Agreement. The SUBRECIPIENT shall
incorporate, or cause to be incorporated, in all contracts and subcontracts a provision
prohibiting such interest pursuant to the purposes of this section 16.
ii. SUBRECIPIENT shall not employ or retain the services of any
person while such person either is employed by City or is a member of any City
commission, board, commbtee, or similar City body. This requirement may be waived
by the City's Chief Administrative Officer if no actual or potential conflict is involved.
Iii. SUBRECIPIENT shall comply with all applicable laws, miss,
regulations and requirements governing avoidance of impermissible conflicts, including
without limitation Government Code 1090 at seq., the requirements of the California
Political Reform Act (Government Code Section 87100 at, seq.) and the regulations of
the Fair Political Practices Commission concerning disclosure and disqualification (2
California Code of Regulations Section 18700 at. sec.).
23
IV . SUBRECIPIENT represents and warrants that as of the effective
date hereof, it represents no client or customer whose interests are adverse to the
Call
B. This section shall survive expiration or termination of this Agreement.
39. Assurance of Governments Approvals and Licensee SUBRECIPIENT
represents and warrants, as of the date hereof, that SUBRECIPIENT has obtained and,
to the best of SUBRECIPIENT'S knowledge, is in compliance with all federal, state, and
tical governmental reviews, consents, authorizations, approvals, and licenses presently
required by law to be obtained by SUBRECIPIENT for the Project as of the date hereof.
40. Indemnification.
A. SUBRECIPIENT shall indemnify, hold harmless and defend Cay and each
of its officers, officials, employees, agents 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 City,
SUBRECIPIENT 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 SUBRECIPIENT's performance of this
Agreement. SUBRECIPIENT's obligations under the preceding sentence shall apply
regardless of whether City or any of their officers, officials, employees, agents or
authorized volunteers are negligent, but .shall not apply to any loss, liability, fines,
penalties, forfeitures, costs or damages caused solely by the gross negligence, or
caused by the wilful misconduct, of City or any of its officers, officials, employees,
agents or authorized volunteers.
B. If SUBRECIPIENT should contract or subcontract all or any potion of the
work to be performed under this Agreement, SUBRECIPIENT shall require each
contractor or subcontractor to indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and authorized volunteers In accordance with the
terms of the preceding pamgmph.
C. This section shall survive lamination or expiration of this Agreement.
41. Insurance and Bonds.
A. Insurance. Throughout the life of this Agreement, the Recipient shall itself
and/or through its consultands), assignee(s), nominee(s), contractors and
subcontractors pay for and maintain in full force and effect all policy(ies) of Insumnce
required hereunder with (an) insurance cempany(ies) either (1) admitted by the
California Insurance Commissioner to do business in the State of California and rated
not less than WWII' in Bests Insurance Rating Guide, or (2) authorized! by Ne CITY's
Risk Manager. The following policies of insurance are required:
al
I . Until issuance of Certificates) of Completion, BUILDERS RISK
(Course of Construction) insurance in an amount equal to the completed value of the
project with no coinsurance penalty provisions.
ii. Following issuance of Certificate(s) of Completion, Fire and
Extended Coverage Insurance against loss or damage to the project by fire and
lightning, with extended coverage for vandalism and malicious mischief and sprinkler
system leakage. Such extended coverage insurance will, as nearly as practicable,
cover loss or damage by explosion, windstorm, not, aircraft, vehlGe, smoke and such
Other hazards as are normally covered by such insurance. Such insurance shall be in
an amount equal to the replacement cost (without deduction for depreciation) of the
project with no coinsurance penalty provisions. Recipient, or its CITY -approved lender,
shall ensure that the required insurance is acquired by the individual homebuyers.
in. The above described policy(ies) of insurance shall be endorsed to
provide that the coverage shall not be cancelled, non -renewed, reduced in coverage or
in limits except after thirty (30) calendar day written notice has been given to CITY.
Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal,
change or reduction in coverage, the Recipient or its contractors/subcontractors, as the
case may be, shall furnish City with a new certificate and applicable endorsements for
such policy(les). In the event the policy m due to expire during the term of this
Agreement, Recipient shall provide a new certificate, and applicable endorsements. a
new certificate evidencing renewal of such policy shall be provided not less than fifteen
It 5) days prior to the expiration date of the expiring policy. Upon issuance by the
insurer, broker, or agent of a notice of cancellation, change or reduction in coverage,
the Recipient or its contractors/subcontractors, as the case may be, shall file with fire
CITY a certified copy of the new or renewal policy and cetficates for such policy.
m The Builders Risk (Course of Construction) and Fire and Extended
Coverage insurance policies shall be endorsed to name the City as a loss payee.
V. Recpient shall furnish City with all certfiate(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 prior to Agency's execution of this Agreement.
vi. The fact that insurance is Obtained by Recipient shall not be
deemed to release or diminish the liability of Recipient, including, without limitation,
liability under the Indemnity provisions of this Agreement The duty to indemnify City
and each of its officials, officers, employees, agents and volunteers 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 provided
by Recipient. Approval or purchase of any insurance contracts or policies shall In no
way relieve from liability nor limit the liability of Recipient.
25
vii. Upon request of City, Recipient shall immediately furnish City with a
complete Copy of any insurance policy required under this Agreement, including all
endorsemenle, with said copy certified by the underwriter to be a hue aid Correct copy
of the original policy. This requirement shall survive expiration or termination of this
Agreement.
viii. If at any time during the life of this Agreement or any extension. the
Recipient fails to maintain the required Insurance in full force and effect, all work under
this Agreement shall be discontinued immediately, until notice is received by the CITY
that the required insurance has been restored to full force and effect and met the
premiums therefore have been paid for a period satisfactory to the CITY. Any failure to
maintain the required insurance, subject to notice and cure requirements herein, shall
be sufficient cause for the CITY to terminate this Agreement.
B. Bonds. The Recipient shall obtain, pay for and deliver or cause to be
obtained, paid for and delivered good and sufficient surety bands from a Corporate
surety, admitted by the California Insurance Commissioner to do business in the State
of California and Treasury listed, in a form satisfactory to the CITY and naming Me
CITY as Co-Ol igee.
1. The 'Faithful Performance Band' shall be at least equal to 100% of
Owner's estimated construction Costs to guarantee faithful performance of the Project,
within the time prescribed, in a manner satisfactory to the CITY, and that all materials
and workmanship will be free from original or developetl defects.
ii. The 'Material and Labor Bond' shall be at least equal to 100% of
Ownei estimated construction Costs to satisfy claims of material supplies and of
mechanics and laborers employed for this Project. The bond shall be maintained by
Recipient 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 provisions of Chapter 7, Title 15, Part 4, Division 3 of the California Civil
Code.
42. SUBRECIPIENT Certification.
A. The SUBRECIPIENT certifies to the best of its knowledge and belief that
no federally appropriated funds have been paid or will be paid by or on behalf of the
undersigned, to any person for Influencing or attempting to influence an officer or
employee of any agency, or a member of Congress, or an officer or employee of
Congress, or an employee of a member of Congress, in connection with the awarding of
any federal contract, the making of any federal grant, the making of any federal loan,
the entering into of any cooperative agreement, or the extension, continuation, renewal,
amendment or modification or any Federal contract, grant, loan, or Cooperative
agreement.
26
B. If any funds other than federally appropriated funds have been paid or will
be paid to a person for influencing an officer or employee of any agency, a member of
Congress, an officer or employee of Congress, or an employee of a member of
Congress In connection with this federal contract, grant, loan, or cooperative
agreement, the SURRECIPIENT shall complete and submit Standard Form -1-1-11,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
C. The SUBRECIPIENT shall require that the language of the above
certification be included in the documents for all SUBRECIPIENT tiers (including
subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all developers/contractors; shall certify and disclose accordingly.
D. This cert cation is a material representation of fact upon which reliance
was placed when this transaction was made or entered Into. Submission of this
certification Is a prerequisite for making or entering Into this Agreement.
43. Independent Contractor In the furnishing of the services provided for herein, the
SUBRECIPIENT Is acting as an independent contractor. Neither the SUBRECIPIENT,
nor any of its officers, associates, agents or employees shall be deemed an employee
or agent of the City for any purpose. Nothing in this Agreement shall create a limited or
general partnership or joint venture. SUBRECIPIENT shall have no authority to bind the
City absent City's express written consent. Except to the extent otherwise provided in
this Agreement, SUBRECIPIENT shall bear Its own costs/expenses in pursuit hereof.
44. Notices. Any notice required or Intended to be given to either party under the
terns of this Agreement shall be in wrifing and shall he deemed to be duly given H
delivered personally or deposited into the United States mail, with postage prepaid.
return receipt requested, addressed to the party to which notice is to be given at the
party's address set forth on the signature page of this Agreement or at such other
address as the parties may from time to time designate by written notice.
45, Binding. Subject to Section 33 below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each
Parties' respective heirs, successors, assigns, transferees, agents, servants, employees
and representatives.
46. Assignment. This Agreement is personal to the SUBRECIPIENT and there shall
be no assignment by the SUBRECIPIENT of its rights or obligations under this
Agreement without the prior written approval of Ne City. Any attempted assignment by
the SUBRECIPIENT, its successors or assigns, shall benull and void unless approved
in writing by the City.
27
47. Waiver
A. The waiver by either party of a breach by the other of any provisions of
this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement.
1. No provision of this Agreement may be waived unless in writing and
signed by all parties to this Agreement Waiver of any one provision herein shall not be
deemed to be a waiver of any other provision herein.
48. Heading. The section headings in Nis Agreement arefor convenience and
reference only and shall not be construed or held in any way to explain, modify or add M
Me interpretation or meaning of the provisions of this Agreement
49. Severab'IRv. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect Me other
provisions.
50. Interpretation. The parties acknowledge that this agreement in its final form is
the result of the combined efforts of the parties and that, should any provision of Mis
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved
by construing this Agreement in favor of, or against any party. but rather by construing
the terns in accordance with their generally accepted meaning. In the event of any
conflict between the body of this Agreement and any ExhbR or Attachment hereto, the
terms and conditions of this Agreement shall control and take Precedence.
51. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
52. Time of Essence. Time is of the essence for the performance of this Agreement.
53. Extent of Agreement Each party acknowledges that they have read and fully
understands the contents of this Agreement. This Agreement represents the entire and
Integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations and agreements, either written or
oral. This Agreement maybe modified only by written instrument duly authorizetl and
executed by both the City and the SUBRECIPIENT.
54. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit hereto, the terms and conditions of the body of this
Agreement shall control and take precedence over terms and conditions expressed
within the exhibit. Furthermore, in the event of any conflict between the body of this
Agreement and any document or instrument referenced therein, the terms and
RE
conditions of the body of this Agreement shall control and take precedence over terms
and conditions expressed within said document or instrument.
/p
29
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California. the day and year first above written.
CITY OP FFRR�EESS�NNOO
Arii T. Souza/ Bruce Rudd for
City Manager
ATTEST:
REBECCA E. KLISCH
CITY CLERK
By:
Deputy /UV/0
APPROVED AS TO FORM:
JAMES SANCHEZ
CITY ATTORNEY
HOUSING AUTHORITIES OF THE
CI=O FRESJI
NName PRESTON PRINCE
Thai EXECUTIVE DIRECTOR
ADDRESSES:
CITY
Housing and Community Development Division
Planning and Development Department
Housing Manager
2600 Fresno St., Room 370
Fresno.CA 93721
HOUSING AUTHORITIES OF THE
CITY OF FRESNO
Address: 1331 FULTON MALL
FRESNO, CA 93721
By: 4�1N
Laurie Avedisian, Deputy C'Ry Atlomey
Attachments:
Exhibit A - Project Description and Schedule
Exhibit B -Declaration of Restrictions
Exhibit C - Budget
Exhibit D - Certificate of Completion
Exhibit E - Rider
Exhibit F - Promissory Note
Exhibit G - Disclosure of Conflict of Interest
Exhibit H - Target Area Map
Exhibit I -Process Flow Chart
Exhibit J -Appraisal Requirements
30
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Editorial 1
County of _ 6 1{
Orl Lf f�1OL before me. �,o5k,��(A�LL/l�f,V ✓IQ [Yt U�7�1L
—�
persanallyappeamd -Presl-on 7>r1 G' asls.�,
Who purred 10 me on tee basrs of satisfactory awarded to
be the pereal whose. hands) Wand sWscdlMSY fo the
whom ortmmenf and arLnowleagal to me that
hessf Wlhey repeated Its same In hermarnhelr authorized
' LEAfYA.M1N%FR
cessciyied, and mat by hereunder signaWre(s) on tre
Canuyrye tyyra
Instrument the persons). or the W
e eupon behalf
which the personls) acted, execu eb the Instrument.
;dINa4
ft
careerI WiA Aid
1 earthy under PENALTY OF PERJURY under the laws
of the Slate of Calllornia net the foregoing paragraph is
time and comem.
WITNESS my hand andbad a".
Signature
=em nweem�•m..
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OPTIONAL
desire sh,taroAllan Sea, is re,Wl stainerey tare amrypop veNuhle@ treppe"ang on lM sentiment
a mub raven assistant re
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Description of Attached Document
Tela orType of oocumene
l]acumam batt.
Number of Fireae _
Slgneds) Order Than Names Abi
Crpecltyges) Claimed by Slgnerts)
Sgnera Name: _
Senate Name'.
feldEum
I Individual
T coef+mmeontrar—Tmaaf.
rcear Orocer—Tmeal
I Partner —JbriI Damon
r Parmar—_Unroartl_GWe®I
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Smarr a Representing
Signer is Representing
EXHIBIT A
Project Description, Schedule and Requirements
A. The Agreement provides for the use of Neighborhood Stabilization Program
(NSP) funds in the amount of Five Million Dollars and 00/100 (85.000,000.00), by the
SUBRECIPIENT, for the purchase, rehabilitation and resale of a minimum one hundred
twenty (120) abandoned or foreclosed single family homes.
B. The SU BRECIPI ENT agrees to follow and abide by all NSP and City imposed
miss and regulations for this program as identified in this Agreement and as may be
identified in the future from time to time by the City to meet NSP goals. The CITY will
require the SUBRECIPIENT to collaborate with the CITY's lead based paint hazard
control staff, and energy efficiency improvements/assessmenl team to ensure the
optimal use of CITY funds are utilized in each home rehabilitation.
C. The SUBRECIPIENT is responsible for identiying and purchasing eligible homes
for the Program, within City identified target areas (see Exhibit IT Target Area Map).
The process for identifying, purchasing, rehabilitating and reselling homes is identified in
the attached Exhibit I - Process Flowchart and the SUBRECIPIENT will be required b
adhere to this process, unless otherwise pre -approved in writing by the City.
D. The SUBRECIPIENT agrees to work with the City to ensure that, to the highest
and best extent feasible, the rehabilitation work to be provided provides for sustainability
and energy efficiency, by consulting with the City staff. Staff will facilitate contact with
other participating Planning and Development Department Divisions to promote
communication and access of other City programs to facilitate this requirement.
E The SUBRECIPIENT will work jointly with the CITY to inspect each property and
develop a CITY -approved scope of work, and ensure that all federal guidelines and
local ordinances and laws are adhered to in the rehabilitation of each home. The CITY
expects the SUBRECIPIENT to follow the attached outline of rehabilitation requirements
(Exhibit Ki Rehabilitation/Repair Requirements). Before rehabilitation work is started,
the SUBRECIPIENT will ensure they have received written approve from the CITY
approving the commencement of work. The approval from the City will include a hard
copy of the completed and approved HUD Appendix A - Environmental Review, for
each Project Property. The SUBRECIPIENT will then conduct the rehabilitation of each
home, with a Mal walk through and approval by the CITY.
F. NSP funds may he utilized by the SUBRECIPIENT for acquisition, rehabilitation,
and/or resale of the homes. For acqulsdion, the CITY will deposit NSP funds into
escrow to assist the SUBRECIPIENT in purchasing an abandoned or foreclosed home.
For rehabilitation, the CITY will reimburse eligible rehabilitation costs, as incurred by the
SUBRECIPIENT through a request for reimbursement process, as identified in this
Agreement. For NSP funds provided in resale, the SUBRECIPIENT may request NSP
funds to provide to a homebuyer as a silent second in the resale process, and funds will
be deposited into escrow.
In all funding scenarios, the CITY will analyze all NSP funds invested in each
property, separately, to ensure the following are met:
1) all necessary and applicable NSP funds are rolled over into or provided as a
silent second mortgage to an eligible homebuyer, and
2) NSP funds provided to an eligible homebuyer are not less than $5,000, nor
shall it exceed the lesser of $50,000 or 49% of the gross purchase area.
3) d the cost to purchase and rehabilitate the Project Property is in an amount
above the appraised value of the home, then the CITY will considerwri ing
down a portion of the NSP loan to the project. The write down will be
considered a grant to the property, and will not be due back to the CITY.
G. The SUBRECIPIENT agrees to ensure property listing descriptions at resale
include information in regards to NSP, maximum allowable sales price, and no
considerations for concessions.
H. The SUBRECIPIENT agrees to ensure that homebuyer selection is equitable and
fair. Participation in NSP funded activities should be made available by the
SUBRECIPIENT to any eligible LMMH family, and should not be exclusive in nature.
I. The SUBRECIPI ENT agrees to abide by the CITY imposed nondisclosure of
sales price information in regards to the initial purchase of foreclosed and/or abandoned
properties.
J. The SUBRECIPIENT will be responsible for klentifying and pre-qualifying
(through a lender) all homebuyers, and submitting a loan packet on a CITY-approved
form, to the CITY for homebuyer pre-approval. The CITY will pre-approve each
homebuyer for eligibility and participation in the Program, prepare CITY loan
documents, and submit these to a the company selected by the SUBRECIPIENT. The
SUBRECIPIENT will be responsible for ensuring all eligible homebuyers complete a
minimum eight-hour homebuyer counseling program through a HUD-approved
counseling agency.
K The SUBRECIPIENT agrees to abide by the reporting and monthly meeting
requirements as identified in the Agreement to ensure that City wide targets and
SUBRECIPIENT specific performance measures and schedule are met.
L. If the SUBRECIPIENT repeatedly fails to meet performance measures and/or
schedules, or fails to follow local and federal requirements as set by the City for this
project. the City will have the right to terminate the Agreement, as these would
constitute events of default
32
Schedule
Time Frame
Unit Goals
Homes
Purchased for
Rehab
Homes under
Construction
Homes Sold
3 months from start of Contract
30
20
0
6 months from start of Contract
60
40
30
10 months from start of
Contract
60
b
30
1 year from start of Contract
80
so
00
EXHIBIT B
EXEMPLAR DECLARATION OF RESTRICTIONS
RECORDING REQUESTED RV AND For Ne benefit
of Ne City of Fresno and is exempt ham the payment
of a recording fire in acaudrnce Mh Government
Code Sections 6103 and 27303.
AND WHEN RECORDED MAIL TO'.
CITY OF FRESNO
Housing and Community Development Division
2600 Fresno Ruder, Room 3070
Fresno. CA 93721
TiOe Oder No. Escrow No
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ('Declaration'), is executed as of this
by Lam, ("Declarant'), of assignees, in favor of Me City of Fresno,
acting by and through Me Planning and Development Department, Housing and
Community Development Division ("City'),
WHEREAS, Declarant is the owner of the real estate in the county of Fresno.
state of California, consisting of APN: which is more pardoulady,
described in Exhibit 'K, attached hereto and made a part hereof (the "Property'); and
WHEREAS, Pursuant to a certain Neighborhood Stabilization Program
Agreement dated , 2009 Incorporated herein, ('NSP Agreement') and
instruments referenced therein, Declarant agrees to utilize and City agrees to provide
certain NSP Funds from the United States Department of Housing and Urban
Development, to Declarant for certain affordable housing (the "Project") upon the
Property to be sold and maintained as affordable to law. moderate or middle-income
families, subject to the terms and conditions set forth in the NSP Agreement; and
WHEREAS, the NSP regulations promulgated by HUD, and the NSP Agreement
impose certain affordability requirements upon property benefited thereby, which
affordability restrictions shall be enforceable for a thirty (30) year period: and
WHEREAS, these restrictions are intended to bind all purchasers and their
successors.
NOW THEREFORE, Declarant declares that the Project home upon Me Property
is held and will be held, transferred, encumbered, used, sold, conveyed and occupied
M
subject to the covenants, restrictions, and limitations set forth in this Declaration, all of
which are declared and agreed to be in furtherance of the plan for the construction, sale
and occupancy of the home upon the Property. All of the restrictions, covenants and
limitations will run with the land and will be binding on all parties having or acquiring any
right, title or interest in Me Project home upon the Property or any part thereof, will inure
to the benefit of Me future Owners of the home or any part thereof. the United States
and the City, and will be enforceable by any of them. Any purchaser under a contract of
sale covering any right, tifle or interest in any part of the Project Home upon the
Property, by accepting a dead or a contract of sale or agreement of purchase, accepts
the document subject to, and agrees to be bound by, any and all restrictions, covenant,
and limitations set forth in this Declaration for the period of thirty (30) years constricting
the Affordability Period.
Period of Affordability: The Neighborhood Stabilization Program requires the Cry to
set periods of affordability as provided in NSP regulations. The minimum period of
affordability for this program is thirty years (30 years). Year one shall be the 12 -month
period following issuance of the Certificate of Completion of the Project Property, with
each succeeding year beginning on the anniversary thereof and ending 12 month
hence. There will be no partial years.
t. Declarations. Declarant hereby declares Mat the home upon the Property
is and shall be subject to the covenants and restrictions hereinafter set forth, all of which
are declared to be in furtherance of the Project and the NSP Agreement, and are
established and agreed upon for the purpose of enhancing and protecting the value of
the Project Properly and in consideration for City entering into the NSP Agreement with
Declarantlere ignees. All terms not otherwise defined herein shall have the meaning
ascribed to such term in the NSP Agreement.
2. Restrictions . The following covenants and restrictions on the use and
enjoyment of the Project home upon the Property shall be in addition to any other
covenantsand restrictions affecting the Project Property, and all such covenants and
restrictions are for the benefit and protection of City, and shall run with the home upon
the Property and be binding on any future owners of the Project home upon the
Property and inure to the benefit of and he enforceable by City. These covenants and
restrictions are as follows:
a. Declarant for itself and its successors) on title covenants and
agrees that it shall cause the Project Property to be used as Affordable Housing for the
duration of the Affordability Pence Daclaronl further agrees to file a recordable
document setting forth the Project Completion Dates) and the Affordability Period when
determined by the City. Unless otherwise provided in the NSP Agreement, the term
Affordable Housing shall include, without limitation, compliance with the following
requirements:
Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on amount of race, color, creed, religion,
KPI
sex. manta) status, national origin, ancestry, or handicap in the sale. transfer, use,
occupancy, tenure, or enjoyment of any of the Project Property, nor shall Declarant or
any person claiming under Me Dedarant, 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 Property.
Principal Residence. Each home constituting the Project upon the
Property shall be sold only to natural persons, wine shall occupy the home as the
purchaser's principal residence. The foregoing requirement that the purchaser of each
home constituting the Project Property occupy the home as the purchaser's principal
residence tices not apply to persons, other than natural persons, who acquire the
Project Property or portion thereof by foreclosure or dead in lieu of foreclosure; or (ii)
HUD qualified entities that acquire the Project Property or portion thereof, with the
consent of the City.
Homeowner Income Requirements. The homes constituting the Project
upon the. Property and each of them may be conveyed only to (a) natural person(s)
whose annual household income at the time is not greater than one hundred twenty
percent (120%) of the most recent annual median income calculated and published by
HUD for the Fresno Metropolitan Statistical Area applicable to such household's size..
Recapture Requirements. Should Me Project Property not continue to be
the principal residence of the family purchasing the Property/home as affordable
housing for the duration of the period of affordability then the entire financial assistance
provided by City and allocated to the Property/home including all NSP Program Funding
assistance, Iaxcludinn any discounted NSP funds? shall immediately come due and
must be repaid to/recaptured by the City's NSP Program Trust Fund and thereupon the
balance of the affordability restrictions shall be released. The affordability restrictions
also may terminate upon occurrence of any of the following temrination events:
foreclosure, transfer in lieu of foreclosure or assignment of an FHA Insured mortgage to
HUD, provided the affordability restrictions shall be revived according to the odginal
terms if during the original affordability period, the owner of record before such
termination events obtains an ownership interest in me housing. The City shall be
possessed of a first right of refusal to purchase the home before foreclosure to preserve
affordability.
Item (a) above is hereinafter referred to as me Covenant and Restrictions.
3. Enforcement of Restrictions. Without waiver or limitation, the City shall be
entitled to injunctive or other equitable relief against any violation or attempted violation
of any Covenant and Restriction, and shall, in addition, be entitled to damages for any
Injunes or losses resulting from any violations thereof.
4. Acceptance and Ratification. All present and future owners of the Project
home upon the Property and other persons claiming by, through, or under Nem shall be
subject to and shall comply with the Covenant and Restrictions. The acceptance of a
deed of conveyance to the Project Property shall constitute an agreement that the
Covenant and Restrictions, as may be amended or supplemented from time to time, are
accepted and raged by such future owners, tenant or occupant, and such Covenant
and Restriction shall he a covenant running with the land and shall bind any person
having at any time any interest or estate in the Project Property, all as though such
Covenant and Restriction was recited and stipulated at length in each and every dead,
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 terminatetl if the foreclosure or other transfer in lieu of
foreclosure or assignment recognizes any contractual or legal rights of public agencies,
nonprofit sponsors, or others to take actions that would avoid the termination of
affordability. However, the requirements with respect to Affordable Housing shall be
revived according to their orginal terms, If during the original Affordability Period, the
owner of record before the foreclosure or other transfer, or any entity that includes the
former owner or those with whom the former owner has or had fovmedy, family or
business ties, obtains an ownership interest in the Project or the Property, and the
Affordability Penod shall be revived according to its original terms.
5. Benefh. This Declaration shall run with and bind the Project Property fora
term commencing on the date this Declaration is recorded in the Office of the Recorder
of the county Fresno, state of California, and expiring upon the expiration of the
Affordabilq Period. The failure or delay at any time of City or any other person entitled
to enforce this Declaration shall in no event be deemed a waiver of the same, or of the
right to enforce the same at any time or tram time to time thereafter, or an estoppel
against the enforcement thereof.
6. Costs and Attorneys Fees. In any proceeding arising because of failure
of Declarant or any future owner of the Project homes upon the Property to comply with
the Covenant and Restrictions required by this Declaration, as may be amended from
time to time, City, shall be entitled to recover its costs and reasonable attorneys fees
incurred In connection with such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Project homes
upon the Property may exempt itself from liability for failure to comply with the Covenant
and Restrictions required in this Declaration.
B. Severability. The invalidity of Ne Covenant and Restrictions or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
Impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns, Any reference to the masculine, feminine, or neuter gender
herein shall, unless the context clearly requires the contrary, be deemed to refer to and
include all genders. Words in the singular shall include and refer to the plural, and vice
01
versa, as appropriate.
10 Interpretation. The captions and tides 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 City.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terns used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in that
certain NSP Agreement by and between Declarant and City, of even date.
14. Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
IN WITNESS WHEREOF, Declarant has executed this Declaration of
Restrictions on the data first written above.
"DECLARANT"
0
Exhibit C
NSP Budget
Use
NSP Amount
Private Financin
Acquisition
51,675,000
$1340000
Rehabilitation
10$670.00
Direct Financial Assistance
$0
$0
Total
57,675,000
$2,010,000
Ac uisition
$1675000
$1,340,000
Rehabilitation
$0
$670,000
Direct Financial Assistance
$0
$0
Total
$3,350,000
$4,020000
Acquisition
51,650000
$1,320000
Rehabilitation
$0
E860i000
Direct Financial Assistance
$1$0
Total
00
$5,0000
$$,000,000
39
Exhibit D
EXEMPLAR CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN
TO:
City of Fresno
Housing Division
2600 Fresno Street, Room 3070
Fresno, CA 93721
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.
APN:
CM of Fresno
By:
Director
Planning and Development Department
IL
CERTIFICATE OF COMPLETION
Recitals
A. By a Neighborhood Stabilization Program Agreement dated , 2009,
("NSP Agreement') between the City of Fresno, a municipal coryomoon ("CITY), and
, a California Corporation, ("SUBRECIPIENT"), the
SUBRECIPIENT agreed to acquire, rehabilitate and resell
("Project'), upon the Project Property as pre -approved by
the CITY, for the sale of the Affordable Units to low, moderate or middle-income
homebuyers, with the assistance of NSP funds while meeting the affordable housing,
income targeting and other requirements of NSP regulations, according to the teems
and cendibons of the NSP Agreement and the Loan Documents and other
documentMstmments referenced therein.
B. The NSP Agreement or a memorandum of it was recorded on
. 2009 as Instrument No, in the Official Records of Fresno County,
California.
C, Under the terms of the NSP Agreement after the SUBRECIPIENT
completes the acquisition, rehabilitation and upon opening of escrow fora Project
Property, the SUBRECIPIENT may ask CITY to record a Certificate of Completion.
D. The SUBRECIPIENT has asked CITY to furnish the SUBRECIPIENT with
a recordable Certificate of ComPletion.
E. The CITYs issuance of this Certificate of Completion is conclusive
evidence that the SUBRECIPIENT has completed constructieNrehabilitation of the
Property as set forth In the NSP Agreement.
NOW THEREFORE:
1. CITY certifies that the SUBRECI PI ENT commenced the
rehabilitation of the Project Property on 20 and completed the
construction work on the Project Property on 20, and has
done so in full compliance with the NSP Agreement.
2. This Certificate of Completion is not evidence of Me
SUBRECIPIENT 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 related to in California Civil Code Section 3093.
41
4. Nothing contained herein modes any provision of the NSP
Agreement.
IN WITNESS WHEREOF, CITY has executed this CertlFlrate of Completion as
of this day of 20 .
CITY OF FRESNO
By:
Keith Bergthold, Interim Director
Planning and Development Department
ATTEST:
CITY CLERK
By:
Deputy
Date:
CONSENT OF OWNER/SUBRECIPIENT
Owner/SUBRECIPIENT Name:
APPROVED AS TO FORM:
JAMES C. SANCHEZ
By:
Robert Coyle, Deputy City Attorney
By signing below, the owner(s) of the property, consent(s) to rewaling this Certificate of
Completion against the Property described herein.
(Attach notary tell ofacknowkHgmont) pati notary certificate of acknowledgment)
42
Exhibit E
[TEMPLATE RIDER TO DEEDS) OF TRUST]
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
Borrowers 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 Borrowers home used as security for the Note described above,
unless having obtained the written consent of the Beneficiary (herein "Lerchi (2)
upon the sale or transfer, without the Lenders prior written consent, of all or any pad 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.
Borrower also assigns to Lender all rents, issues and profits from said real property
reserving, however, the right to tolled 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 Me liens, terms, covenants and conditions of
the first Dead of Trust and shall not impair the rights of any institutional lender which is
the maker of a loan secured by such first dead of trust or such lender's assignee or
successor in interest, to exercise its remedies under Me deed of trust in the event of
default by the Borrower. These remedies include Me 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 May supersede
any other terms and provisions hereof in conflict therewith. In 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,
moderate or middle-income households or otherwise restricting the Borrowers ability to
sell the property shall have no further force or effect on subsequent owners or
purchasers of Me 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.
In the event of a catastrophic occurrence that results in Me property having to be sold,
the portion of this existing second mortgage lien that results in the combined loan -lo-
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,
43
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 Neighborhood Stabilaabon Program requires the City to
set periods of affordability as provided in program regulations. The minimum period of
affordability for this program is thirty years (30 years). Year one shall be the 12 -month
period following issuance of the Certificate of Completion of the home which is the
subject hereof, with each succeeding year beginning on the anniversary thereof and
ending 12 month hence. There will be no partial years.
Recapture of NSP Funds: Pursuant to NSP regulations, the City of Fresno requires
that NSP funds be recaptured if the home does not continue to be the Borrowers
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, If the net
proceeds are not sufficient to recapture the full NSP investment, plus enable the
homeowner to recover the amount of the homeowners down payment and any capital
improvement investment made by the owner since their purchase. the City of Fresno
may share the net proceeds. The net proceeds are the sales price minus superior loan
repayment (other than NSP funds) and any closing costs. The net proceeds may be
divided proportionally as set forth in the following mathematical formulas:
NSP investment x Net - NSP amount to be recaptured
NSP investment + proceeds
homeowner Investment
Homeowner investment x Net = amount to homeowner
NSP investment+ proceeds
homeowner investment
In the event of foreclosure, the amount subject to recapture is based on the amount of
net proceeds (if any) from the foreclosure sale.
THIS DEED OF TRUST IS SECOND AND SUBORDINATE TO THAT CERTAIN DEED
OF TRUST RECORDED I (insert)]
Ell
Exhibit F
EXEMPLAR NOTE
SUBRECIPIENT REVOLVING PROMISSORY NOTE
(Program: Neighborhood Stabilization Program)
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to
Borrower for Cancellation.
$IINSERT TOTAL SUBRECIPIENT CONTRACT AMOUNT] Fresno, Galion_, 2009
Promise to Pay. For value received, the undersigned, a California
[INSERT FORM OF OROANIZATIONI ('SUBRECIPIENT' or `BOQOwet"),
promises to pay to the order of the City of Fresno, a Calnomm municipal corporation,
('Lender ), the sum of INSERT TOTAL CONTRACT AMOUNT]
Dollars ($ 1, to the extent that such funds are loaned to Borrower as a
revolving loan, payable without interest, all due and payable on or before the earlier of
August 31, 2010 on which date ('Maturity Date's the unpaid principal balance (interest
free) together with unpaid penalties or late charges where applicable thereon shall be
due and payable, along with attorney's fees and costs of collection, and without relief
from valuation and appraisement laws. Any failure to make a payment required
hereunder shall constitute a default under this Note. This Note is given in conjunction
with Borrowers participation the Lender's Neighborhood Stabilization Program,
pursuant to that certain NSP SUBRECIPIENT Agreement (NSP Agreement) entered by
Borrower and Lender on (_], incorporated herein. In the event the Borrower is not
Nen in default of the NSP Agreement and consistent therewhh, the SUBRECIPIENT
may at any time prior to the Maturity Date provide funding assistance for eligible
activities of Program participants pursuant to which the participants each provide the
Lender with an insured Program Promissory Note Secured by Deed of Trust (Exhibit A
'Participant Note'). In that event and concurrent therewith the City shall forgive from
principal due hereunder the total aggregate principal amount of such Secured Note(s),
and the Borrower shall be released from any further liability to the Lender under this
Note to such extent.
Definitions. All capitalized terms used in this Note, unless otherwise defined, will have
the respective meanings specified in Me NSP Agreement.
Affordability Period The minimum period of affordability for this Program is thirty (30)
years. Year one shall be the 12 -month period following issuance of the Certificate of
Completion of the each home, with each succeeding year beginning on the anniversary
thereof and ending 12 month hence. There will be no partial years.
Business Da v 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
45
be made under this Note is stated to be due on a day other than a Business Day, Mat
payment may be made on the next succeeding Business Day. However, d 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.
Security. Lender, by any and all UCC -1 Financing Statement(s) filed, may perfect
Lender's security interest in this Note, the NSP Agreement, and any extensions or
renewals hereof, and any and all accounts, chattel paper, payment intangibles, or
promissory nates.
Time is of the Essence. It will be a default under this Note g Borrower defaults under
Me NSP Agreement, defaults under any other Program documents, or if Borrower fails
to pay when due any sum payable under Mis Note. In Me event of a default by
Borrower, the Borrower shall pay a late charge equal to the lesser of 2% of any
outstanding payment or the maximum amount allowed by law. All payments collected
shall be applied first to payment of any costs, fees or other charges due under Mis Note
or any other Program documents and then to principal balance. On the Occurrence of a
default or on the occurrence of any other event Mat 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.
Tens 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 Me
prepayments first to the payment of any costs, fees, late charges, or other charges due
under this Note or under any of the other Program documents and Men to the principal
balance.
All Loan payments are payable in lawful money of the United Stales 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 Department
Finance/Treasury Section
2600 Fresno Street, Room 2156
Fresno, CA 93721
Borrower agrees to pay all costs including, without furnisher, attorney fees,
incurred by the holder of this Note in enforcing payment, whether or not suB is filed, and
including, without limitation, all costs, attorney fees, and expenses incurred by the
holder of this Note in connection with any bankruptcy, reorganization, arrangement, or
other similar proceedings involving the undersigned that in any way affects the exercise
by the holder of this Note of its rights and remedies under this Note. All costs incurred
by the holder of this Note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by
46
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 to
writing and shall be given as provided in the NSP Agreement.
No delay or omission of Lender in exercising any right or power arising in
connection with any default will be construed as a waiver or as acquiescence, nor will
any single or partial exercise preclude any further exercise. Lender may waive any of
the conditions in this Note and no waiver will be deemed to be a waiver of Lender's
rights under this Note, but rather will be deemed to have been made In pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence in or consent to any preceding or subsequent default.
Assignment by Lander. Lender may transfer this Note and deliver to the transferee all
or any part of the collateral 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 collateral not
transferred.
Enforceability. If any one or more of the provisions in this Note is held to be invalid,
illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity,
legality, and enforceability of the remaining provisions will not in any way be affected or
Impaired. This Note will be binding on and inure to Me benefit of Borrower, Lender, and
their respective successors and assigns.
Governing 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 authonzed agents.
In witness whereof, Borrower has caused this Note to be executed by its
authorized agent as of the date and year first above written.
Borrower
BT._Date:
Name:
Title:
(Attach noyry mNfiune oletl�nw.leaamml)
47
EXHIBIT A TO SUBRECIPIENT EXEMPLAR NOTE
PARTICIPANT PROMISSORY NOTE SECURED BY DEED OF TRUST
(Program: Neighborhood Stabilization Program]
DO NOT DESTROY THIS NOTE: When paid, this now must bas surrendered to
Borrower for Cancellation.
PROMISSORY NOTE
VINSERT AMOUNT OF PROGRAM SSIS ANC EOWNERI
Fresno. California, 2009
APN:
Promise to Pay. For value received, the undersigned, ("Bonowei'),
promises to pay to the order of the City of Fresno, a Califomia municipal corporation,
("Lender'), the sum of rNSERT AMOUNT OF PROD
ASSISTANCE TO EACH HOMEOWNER Dollars ($ ), payable without interest;
all due and payable on or before the earlier of: (i) Borrower's sale or other transfer of
the Project Properly described in Attachment "A' hereto, pursuant to that certain
Neighborhood Stabilisation Program (NSP) Agreement dated
entered between Lender and ("NSP Agreement"),
incorporated herein, as to which this Promissory Note relates, or (ii) Sonower's failure he
maintain as hisfher principal residence the Project Property during Me Affordability
Period, and (iii) thirty (30). years from the date first above, on which date ("Maturity
Date") the unpaid principal balance (interest free) together with unpaid Penalties or late
charges where applicable thereon shall be due and payable, along with abomey's fees
and costs of collection, and without relief from valuation and appraisement laws. Any
failure to make a payment required hereunder shall constitute a default under this Note.
DefinRions All capitalized terms used in this Note, unless otherwise defined, will have
the respective meanings specRed in the NSP Agreement.
Affordab'I'N Period The minimum period of affordability for this Program is thirty (30)
years. Year one shall be the 12 -month period following issuance of the Certificate of
Completion of the home which is the subject hereof, with each succeeding year
beginning on Me anniversary thereof and ending 12 month hence- There will be no
partial years.
Business Da v 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 ni succeeding Business Day. However, if the
extension would rause the payment to be made in a new calendar month, had payment
will be made on the next preceding Business Day.
M.,
Security. This Note, and any extensions or renewals hereof, shall he secured by a
Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents on real
estate in Fresno County, Caldomia, that provides for acceleration upon stated events,
dated as of the same date as this Note and executed in favor of the Lender ("Deed of
Trust'), creating and insured as a not worse than U position lien 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.
Time is of the Essence. It will be a default under this Note if Borrower defaults under
the NSP Agreement, defaults under Borrower's agreement with Program
SUBRECIPIENT, defaults under any other Program documents, or if Borrower fails to
pay when due any sum payable under this Note. In the event of a default by Borrower,
the Borrower shall pay a late charge equal to the lesser of 2% of any outstanding
payment or the maximum amount allowed by law. All payments collected shall be
applied that to payment of any costs, fees or other charges due under this Note or any
other loan documents 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 Program documents
give rise to the right to accelerate the balance of the indebtedness, then, at the When 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 became 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 Program documents and then to the interest
and then to the principal balance.
All Loan payments are payable in lawful money of the United Stales 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 Department
Finance[Freasury Section
2600 Fresno St erah Room 2156
Fresno, CA 93721
Borrower agrees to pay all costs including, without limitation, attorney fees,
Incurred by the holder of this Note in enforcing payment, whether or not suit is fled, and
including, without limitation, all costs, attorney fees, and expenses incurred by the
holder of this Note in connection with any bankruptcy. reorganization, arrangement, or
other similar proceedings involving the undersigned that In any way affects the exercise
by the holder of this Note of its rights and remedies under this Note. All costs incurred
by the holder of this Note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by
49
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 NSP Agreement, and the Borrowers
agreement with Program SUBRECIPIENT.
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 Lenders
rights under this. Note, but rather will be deemed to have been made in pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence In or consent to any preceding or subsequent default.
Terms of Security Instruments The Dead of Twat securing this note shall provide 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, Moderate or Middle Income homebuyer as provided in the NSP Agreement, and
the Borrowers agreement with Program SUBRECIPIENT without the Beneficiarys prior
concent. A "sale or trensfer' 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, deal Installment sale contract, land contract. contract for
deed, leasehold interest with a term greater then three (3) years, lease -option contract,
or by sale, assignment, or transfer of any beneficial interest in or to any land trust
holding title to the Property, or by any other method of conveyance of land interest. If
any Trustor is a corporation, partnership or limited liability, company, transfer also
includes any change in ownership of more than twenty five percent (25%) of the voting
stock, partnership interests or limited liability company interests, as the case may be, of
Trustor. However, this option shall not be exercised by Beneficiary H such exercise is
prohibited by applicable law.
Assignment by Lentler. Lender may transfer this Note and deliver to the transferee all
or any pad 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 beforever 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.
Enforceability. If any one or more of the provisions in this Note is held to be invalid,
illegal, or unenforceable in any respect by a court of competent jursdiction, 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.
50
Govemino Law. Borrower agrees that this Note will be deemed tc 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 temis or provisions may be
waived altered modified, or amended except as Lender may consent to in a writing
duly signed by Lender or its authorized agents.
In witness whereof, Borrower has caused this Promissory Nate to be executed by
As authorized agent as of the date and year first above written.
. Bonower
By: Date:
Name:
nye:
(PnxM1ndary mlErmleol NfnpWleE9mm11
51
Exhibit G
DISCLOSURE OF CONFLICT OF INTEREST
fp
N e: PRESTON PRINCE
T' V EXECUTIVE DIRECTOR
52
YES"
NO
1.
Are you currently in litigation with the City of Fresno or any of
xx
gs a enls7
2.
Do you represent any firm, organization or person who is in
xx
litigation wdh the City of Fresno?
3.
Do you currently represent or perform work for any clients
xx
who do business with the City of Fresno?
4.
Are you or any of your principals, managers or professionals,
xx
owners or investors in a business which does business whh
the City, or in a business which is in litigation with the City?
5.
Are you or any of your principals, managers or professionals,
xx
related by blood or marriage to any CM employee who hes
any significant role inthe subject matter of this service?
6.
Are you employed by any other jurisdictions or agencies?
xx
If the answer to any question is yes, please explain in full.
#3: HA of the Cly of Fresno Is under contract with the Redevelopment Agency to
operate the Community Housing Preservation Program, providing major and minor
rehabilitative services to qualified homeowners to improve the quality of housing.
#6: The Housing Authority operates under the auspices of the County of Fresno as
well as the City of Fresno.
fp
N e: PRESTON PRINCE
T' V EXECUTIVE DIRECTOR
52
ExhibK H
Target Area Map
53
City Of
rd
L
I®Ctei�CfL
77t'%11i7's."74`
N�HAI
VA
, va,S4TWI
Uty
53
M!
q�
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(M
EXHIBIT J:
Appraisal Requirements
The Undo" Relocation Assistance and Real Property Acqurution Policies Act (URA)
and its implementing regulations (49 CFR Part 24) set forth minimum requirements for
real property acquisition appraisals for Federal and federally -assisted programs.
Appraisals subject to the URA must be prepared according to these requirements.
The acquiring SUBRECIPIENT has a legitimate role in contributing to the appraisal
process, especially in developing a scope of work and defining the appraisal task. The
scope of work and development of an appraisal under these requirements depends on
the complexity of the appraisal task.
The scope of work is a written set of expectations that forth an agreement or
understanding between the appraiser and the SUBRECIPIENT as to the specific
requirements of the appraisal, resulting in a report to be delivered to the
SUBRECIPIENT by the appraiser. The scope of work must address the unique,
unusual and variable appraisal performance requirements of me appraisal Etherthe
appraiser or the SUBRECIPIENT may recommend modifications to the initial scope of
work, but both parties must approve changes.
SCOPE OF WORK
The appraiser must, at a minimum:
1. Provide an appraisal meeting the definition of an appraisal found at 49
CFR 24.2(a)(3) which is a written statement independently and impartially
prepared by a qualified appraiser selling forth an opinion of defined value
of an adequately described property as of a specific date, supported by
the presentation and analysis of relevant market information.
2. Afford the property owner or me owners designated representative me
opportunity to accompany the appraiser on the inspection of the property.
3. Perform an inspection of the subject property. The Inspection should be
appropriate for the apprzisal task, and the scope of work should address'.
• The extent of the inspection and description of the neighborhood
and proposed project area,
• The extent of the subject property inspection, including interior and
extenorareas,
• The level of detail of me description of the physical characteristics
of the property being appraised (and, in the case of a partial
acquisition, the remaining property.)
55
4. The appraisal must have been completed within 60 days of the offer made
for the property.
5. The acquiring SUBRECIPIENT has the responsibility to assure that the
appraisals it obtains are relevant to its program needs, reflect established
and commonly accepted Federal and federally -assisted program appraisal
practice, and as a minimum, complies with the definition of appraisal
stated above and the five following requirements'
(i) An adequate description of the physical characteristics of Ne
property being appraised including Hems identified as personal
property, a statement of the known and observed encumbrances, I
any, title information. location, zoning, present use, an analysis of
highest and best use, and at least a 5 -year sales history of the
property.
(ii) All relevant and reliable approaches to value consistent with
established Federal and federally -assisted program appraisal
practices. If the appraiser uses more than one approach, there
shall be an analysis and reconciliation of approaches to value used
that is sufficient to support the appraisers opinion of value.
(iii) A description of compareble sales. including a description of all
relevant physical, legal and economic factors such as parties to the
transaction, source and method of financing, and verification by a
party involved in the transaction.
(iv) A statement of the value of fire real property to be acquired and, for
a partial acquisition, a statement of the value of the damages and
benefits. if any, to the remaining real property, where appropriate.
(v) The effective date of the valuation, data of appraisal, sgnature. and
certification of the appraiser (see attached sample).
6. The appraiser shall disregard any decrease or increase in the fair market
value of the real property caused by the project for which the property is to
be acquired or by the likelihood that the property would be acquired for the
project. other than that due to physical deterioration within the reasonable
control of the owner.
617
CERTIFICATE OF APPRAISER
I hereby certily
That on details), I personally made a field inspection of the
property herein appraised and have afforded the owner or a designated representative
the opportunity to accompany me on this Inspection. I have also personally made a field
inspection of the comparable sales relied upon in making said appraisal. The property
being appraised and the comparable sales relied upon in making this appraisal were as
represented in the appraisal.
That to the best of my knowledge and belief the statements contained in the appraisal
herein set forth are true, and the information upon which the opinions expressed therein
are based is correct, subject to Me limiting conditions therein set forth.
That I understand that such appraisal may be used in connection with the acquisition of
property for a project utilizing U.S. Department of Housing and Urban Development
Ponds.
That such appraisal has been made in conformity with appropriate laws. regulations,
and policies and procedures applicable to appraisal of property for such purposes', and
that to the best of my knowledge no potion of the value assigned to such property
consists of items which are noncompensable under the established law of said State.
That any decrease or increase in the fair market value of real property prior to the date
of valuation caused by the project for which such property is acquired. or by the
likelihood that the property would be acquired for such project, other than that due to
physical deterioration within the reasonable control of the owner, was disregarded in
determining the compensation for Me property.
That neither my employment nor my compensation for making this appraisal and report
are in any way contingent upon Me values reported herein.
That I have no direct or indirect present or contemplated future personal Interest in such
property or in any benefit from the acquisition of such property appraised.
That I have not revealed the findings and results of such appraisal to anyone other than
the proper officials of the acquiring SUBRECIPIENT or officials of Me U.S. Department
of Housing and Urban Development and I will not do so until so authorized by said
officials, or until I am required to do so by due process of law, or until I am released
from this obligation by having publicly testified as to such findings.
That I have not given consideration to, or included in my appraisal, any allowance for
relocation assistance benefits.
614
That my opinion of the fair market value of the property to be acquired as of
is $ based upon my independent
appraisal and the exercise of my professional judgment.
Name
Signature
Date
W
EXHIBIT K
CITY OF FRESNO
Neighborhood Sbabilization Program
RehabllhatfONRBpair Requirements
Rehabilitmon repairs for the Neighborhood Stabilization Program (NSP) include items that are
from required and recommended.
Required repairs generally include healm & safety items, connection of code violations and
compllance with City ordinances and include, but are not Ilm ud! to the following_
Electrical
o Unsafe eledricll Panel / cover
o Unsafe electrical connections
o Exposed / loose will
o Faulty electrical outlets
o Faulty or damaged electric appliances
in Smoke Detectors / Light Futures
o Missing / inadequate GFCI's
o Missing electrical cover plates
Plumbing
*leaking faucets
o Inoperable I broken /leaking toilets
o Leaking ei enor water bibs / spnnklem, valves
o Water heaters PRV I venting I Gas supply I seismic straps
o Damaged showers I bath tubs
o Faulty or damaged gas appliances / connections
Mechanical
n Inoperable heaters
a RVAC inoperable I lack of heating
o Duda with mold I mildew
it Eehaust fans Kitchen I Bath I Utility
StracW ral & General
o Standing water due to improper grading
o Leaking evaporative coolers
o Broken Windows
o Inoperable windows
* Sub standard structures I foundations
o Missing or damaged window screens
o Water damage to from /ceiling
o Detenorated / leaky roofs
e Dry not
o Mold I mildew anywhere
o Unsafe damaged / deteriorated fences
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o Fence gaters that won't open or dose properly
in Trip hazards
E Insect Infestation / animal droppings
c Blocked access to opening egress in house
c Socked access to property side yards
o Lack Of Off Street Covered Parking
n Structures or Conversions without proper per id;
p Openable doors, locks, hardware I thresholds I weatherstripping
o Zoning inconsistent with residential single-family use
Code Violations
c Bamyerd Animals
o Trash I Calorie in house or on property
o Tres
* Tarp & Pole Structures
o Inoperable Vehicles
o Weeds I overgrown trees & shrubs
o Recreational Vehicle storage
RECOMMENDED IMPROVEMENTS
The Housing and Economic Recovery Act, 2008 (HERA) defines rehabilflation to include
improvements to increase the energy efficiency or conservation of homes or to provide a
renewable energy source for homes. These improvements are strongly encouraged not only to
stabitlze neighborhoods in the short-term, but to strategically incorporate modem, green building
and energy -efficiency improvements in all NSP activities to provide for long-term affordability
and increased sustainability and attractiveness of housing and neighborhoods. Energy
efficiency and conservation improvements may induce, but are not limited to:
o insulation
o fluorescent handling
o window repair/replacement
o weathedaatlon improvements
a
MO