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City of Fresno
City Clerk
2600 Fresno Street, Room 2133
Fresno, CA 9372'1-3603
This Agreement is recorded at the request and for the benefit of the City of Fresno and is
exempt from the payment of a recording fee pursuant to Government Code Section 6103.
Its: City Manager
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS (HOME) AGREEMENT
by and between
CIry OF FRESNO,
a municipal corporation
and
PARC GROVE COMMONS NORTHWEST, LP, a California Limited Partnership
regarding
Parc Grove commons Northwest Affordabre Murti-Family project
2660 E. Clinton, Fresno California 93703 (ApN: 446-020-39T)
2/3
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS....................... 2
ARTICLE 2. TERMS OF THE LOAN......
ARTICLE 3. REPRESENTATIONS AT\D WARRANTIES OF'D8V8LOP8R...................8
ARTICLE 4. COVENANTS OF' DEVELOPER ,...9
ARTICLE 5. PROPERTY MAINTENAI\C8............ ........ 16
ARTICLE 6. DISBURSEMENT OF HOME FTJNDS
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF THE PROJECT .................22
ARTICLE 8. PROJECT OPERATIONS .............. 28
ARTICLE 9. INSURANCE AND INDEMNITY.
20
31
37ARTICLE 10. DEF'AULT AND REMEDIES. ..............
ARTICLE 1T. GEI\ERAL PROVISIONS. .......40
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
This HOME lnvestment Partnerships r Agreement (hereinafter referred to
as the 'Agreement") is entered into this
City of Fresno, a municipal corporation,
,2013, by and between the
Development and Resource
Management Department - Housing and Community Development Division (hereinafter
referred to as the "C|TY"), and Parc Grove Commons Northwest, LP, a California limited
partnership (hereinafter referred to as'DEVELOPER').
RECITALS
A. The CITY has received a HOME lnvestment Partnerships Program (hereinafter
referred to as "HOME Program") grant from the U.S. Department of Housing and Urban
Development (hereinafter referred to as "HUD"), under Title ll of the Cranston-Gonzalez
National Affordable Rental Housing Act of 1990, as amended (hereinafter referred to as
the'Act").
B. To advance the supply of Affordable Rental Housing within the City of Fresno, the
CITY desires, among other things, to encourage investment in the affordable rental
housing market.
G. The project will provide for the construction of 147-units affordable multi-family units,
of which twenty-six (26) units will be designated as HOME-assisted Affordable Rental
Housing units ("HOME-assisted Units" or'Affordable Project Units"), related on-site and
off-site improvements, and 1 on-site manager's unit, and parking at the Property and an
8,880 square foot community building identified in EXHIBIT'A" (the "Project").
D. The DEVELOPER desires to act as the owner/developer exercising effective project
control, as to the construction of the Project and related on-site and off-site
improvements, as more particularly described in the Project Description attached hereto
as EXHIBIT'B', incorporated herein.
E. The Project will be constructed upon HOME Program eligible Property owned by the
DEVELOPER and located within the boundaries of the City of Fresno, as more
particularly described in the attached EXHIBIT.4".
F. To further its goal to increase the supply of Affordable Rental Housing within the
City of Fresno, the CITY desires to assist the DEVELOPER by providing a Four Million
Five Hundred Thousand dollar and 00/100 ($¿,S00,000.00) residual receipts HOME
Program Loan to the Project (hereinafter referred to as "Loan"), at 3.8o/o annual interest
for a term of fifty-five (55) years, for payment of the HOME Program Eligible Costs, as
further identified in the Project Budget, EXH|BIT "C", to be secured by the Property and
the Affordable Rental Housing covenants, upon the terms and conditions in this
Agreement. Principal and interest will be payable from annual residual receipts at times
prior to the Maturity Date and in full upon the Maturity Date.
7
Page 1 of 4
G. A June 26,2006, as amended, environmental review of the Project pursuant to the
National Environmental Policy Act ("NEPA") guidelines resulted in a Finding of No
Significant lmpact. Additionally, a December 6, 2011, environmental review of the
Project pursuant to the California Environmental Quality Act ("CEQA") guidelines
resulted in the project being found consistent with the General Plan MEIR, as amended
April 30, 2013.
H. The CITY has determined that this Agreement is in the best interests of, and will
materially contribute to, the Housing Element of the General Plan. Further, the CITY
has found that the Project (i) will have a positive influence in the neighborhood and
surrounding environs: (ii) is in the vital and best interests of the CITY, and the health,
safety, and welfare of CITY residents: (iii) complies with applicable federal, state, and
local laws and requirements: (iv) will increase, improve, and preserve the community's
supply of Low-lncome Housing available at Affordable Rental Housing cost to Very Low-
and Low-lncome households, as defined hereunder: (v) planning and administrative
expenses incurred in pursuit hereof are necessary for the production, improvement, or
preservation of Very Low- to Lowlncome Housing, and (vi) will comply with any and all
owner participation rules and criteria applicable thereto.
l. The CITY and DEVELOPER have determined that the Project's HOME-Assisted
Units constitute routine programmatic/grantee lender activities utilizing available and
allocated program/grantee funding, outside the reach of California Constitution Article
XXXIV and enabling legislation.
J. On , the Housing and Community Development Commission of the
Ci$ of F this Agreement and recommended approval.
K. On , 2013, the Boards' and/or managing members of the
DEVELOPER's administrative general partner and managing general partner reviewed
and approved the development and authorized entry of a HOME Program Project
agreement.
NOW, THEREFORE, lN CONSIDERATION of the above recitals, which
recitals are contractual in nature, the mutual promises herein contained, and for other
good and valuable consideration hereby acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
The following terms have the meaning and content set forth in this Article wherever
used in this Agreement, attached exhibits or attachments that are incorporated into this
Agreement by reference.
1.1 ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
Page 2 of M
1.2 Affirmative Marketino means a good faith effort to attract eligible persons
of all racial, ethnic and gender grôups, in the housing market area, to rent the proposed
Affordable Project Units, as hereinafter defined.
1.3 Affordability Period means the minimum period of fifty-five (55) years
commencing from the date the City entered Project and tenant information into HUD's
lntegrated Disbursement and Information System (lDlS).
1.4. Affordable Proiect means the construction and operation of the twenty-six
(26) Affordable Project Units.
1.5 Affordable Proiect Unit means twenty-six (26) of the one hundred forty-
seven (147) affordable housing units located upon a portion of the Property, developed
and as described in the Project Description attached hereto and incorporated herein as
EXHIBIT "8" which will be rented as floating Very Low-lncome and Lowlncome housing
in accordance with the HOME Program requirements.
1.6 Affordable Project Property means the portion of the Property on which
the Affordable Project Units will be located which is described on EXHIBIT'4".
1.7 Affordable Rental Housinq means rental housing units which meet the
HOME Program affordability requirements of 24 C.F.R. 92.252.
1.8 Budoet means the pro-forma Project Budget attached hereto as EXHIBIT
"C", for the Project, as may be amended upon the approval of the CITY's Housing and
Community Development Division Manager, provided any increase in HOME Program
Funds hereunder requires Gity Council Approval.
1.9 Certificate of Completion means that certificate issued, in the form
attached as EXHIBIT'E" to be issued to the DEVELOPER by the CITY evidencing
completion of the Project, a release of construction related covenants for the purposes
of the Agreement.
1.10 C.F.R. means the Code of Federal Regulations.
1.11 Commencement of Construction means the date February 22,2013, the
day the DEVELOPER or DEVELOPER's construction contractor began substantial
physical work on the Property, including, without limitation, delivery of materials and any
work, beyond maintenance of the Property in its status quo condítion.
1.12 Completion Date means the date that the CITY issues a recorded
Certificate of Gompletion for the Project. The Completion date of the Project is identified
in EXHIBIT'Bu.
1.13 Debt Service means payments made in a calendar year pursuant to the
financing obtained for the acquisition, construction, operation and/or ownership of the
Project, but excluding payments made pursuant to the Note.
Page 3 of 4
2
1.14 Declaration of Restrictions means the Declaration of Restrictions, as
outlined substantially in the form attached hereto as EXHIBIT 'Hu, which shall be
recorded against the Property no later than the date of disbursement of Loan funds,
setting out the requirements of this Agreement which shall run with the land.
1.15 Deed of Trust means that standard, subordinate no worse than fourth (4th)
position including assignment of rents and security agreement given by the
DEVELOPER, as Trustor, to the CITY as beneficiary, issued through an escrow
established by the DEVELOPER at its sole cost and expense, with a title company
acceptable to the CITY, recorded against the Property, insured in the full amount of the
Loan and acceptable to the City Attorney, as well as any amendments to, modifications
of and restatements of said Deed of Trust. The terms of any such Deed of Trust shall
be substantially the form attached hereto as EXHIBIT'G".
1.16 Eliqible Costs means any and all HOME Program eligible Project costs of
HOME-assisted Units as may be paid or reimbursed by the Loan, consistent with the
'HOME' column and the row entitled "Basic Construction Gontract' of the Budget,
attached as EXHIBIT 'C', allowable under 24 C.F.R. Part 92, as specified in 24 C.F.R,
92.205 and 92.2Q6, Notice CPD 98-2 and not disallowed by 24 C.F.R. 92.214, provided,
however, that costs incurred in connection with any activity that is determined to be
ineligible under the Program by HUD or the CITY shall not constitute Eligible Costs.
1.17 Event of Default shall have the meaning assigned to such term under
Section 10.1 hereunder.
1.18 Familv has the same meaning given that term in 24 C.F.R. 5.403.
1.19 Federal HOME Investment Partnerships Funds (also referred to in this
Agreement as "HOME Funds" or "HOME Program Funds") means the federal HOME
Program monies consisting of the Loan, in an amount not to exceed the sum of Four
Million Five Hundred Thousand dollars and 00/100 ($¿'s00'000.00) to be used for
eligible Project costs.
1.20 Fundinq Sources means: (i) The CITY's HOME Funds; (ii) the Low lncome
Housing Tax Gredits; (¡¡¡) Wells Fargo construction loan, California Community
Reinvestment Corporation permanent loan, Housing Authority of the City of Fresno
and/or Housing Relinquished Fund Corporation loan(s) (HRFC) referred in the Budget
as source(s) of funding for the Project, and/or any other financing sources that may
become available.
1.21 Hazardous Materials means any hazardous or toxic substances,
materials, wastes, pollutants or contaminants which are defined, regulated or listed as
"hazardous substances," "hazardous wastes," "hazardous materials," "pollutants,"
"contaminants" or "toxic substances" under federal or state environmental and health
safety laws and regulations, including without limitation, petroleum and petroleum
byproducts, flammable explosives, urea formaldehyde insulation, radioactive materials,
asbestos and lead. Hazardous Materials do not include substances that are used or
Page 4 o1 4
consumed in the normal course of developing, operating or occupying a housing
project, to the efent and degree that such substances are stored, used and disposed of
in the manner and in amounts that are consistent with normal practice and legal
standards.
1.22 Household means one or more persons occupying a Unit in the proposed
Project.
1.23 HUD means the United States Department of Housing and Urban
Development.
1.24 Loan means the non-assumable, loan of HOME Funds, in an amount not
to exceed the lesser of (i) the sum of Four Million Five Hundred Thousand dollars and
00/100 ($4,500,000.00) and (ii) the aggregate HOME Program per unit cap (24 C.F.R.
92.250) for the twenty-six (26) HoME-assisted Units, as determined by the GITY and
made available by the CITY to the DEVELOPER for the Affordable Project pursuant to
this Agreement, as more specifically described in the Budget attached hereto as
EXH|B|T "C", and in the Note attached hereto as EXHIBIT "F'.
1.25 Loan Documents are collectively this Agreement, the Note, Deed of Trust,
Declaration of Restrictions, and all related documents/instruments as they may be
amended, modified or restated from time to time along with all exhibits and attachments
thereto, relative to the Loan.
1.26 Low-lncome for the purposes of this Agreement means those whose
annual income does not exceed eighty percent (80%) of the median income for the
Fresno County area as determined by HUD and as adjusted for family size, except as
HUD may establish income ceilings higher or lower than eighty percent (80%) of the
median for the area on the basis of HUD findings that such variations are necessary.
1.27 Note means the non-assumable, HOME Program Loan Note in a principal
amount not to exceed the lesser of (i) the sum of Four Million Five Hundred Thousand
dollars and 00/1000 ($4,500,000.00) and (ii) the aggregate HOME Program per unit cap
(24 C.F.R. 92.250\ as determined by the CITY for the 26 HoME-assisted Units, given
by the DEVELOPER as promissor, in favor of the CITY as promissee, evidencing the
Loan and performance of the affordability and other covenants and restrictions set forth
in this Agreement, secured by the Deed of Trust as 4th position lien upon the Property,
naming the CITY as beneficiary and provided to the CITY, no later than the date of
Affordable Project funding hereunder, an exemplar of which is attached hereto as
EXHIBIT "F", and incorporated herein, as well as any amendments to, modifications of
and restatements of said Note consented to by CITY.
1.28 Operatino Expenses means actual, reasonable and customary (for
comparable quality, construction of rental housing in Fresno County) costs, fees and
expenses directly incurred, paid, and attributable to the operation, maintenance and
management of the Project in a calendar year, including, without limitation: painting,
cleaning, repairs, alterations, landscaping, utilities, refuse removal, certificates, permits
Page 5 ol 4
.l
and licenses, sewer charges, real and personal property taxes, assessments,
insurance, security, advertising and promotion, janitorial services, cleaning and building
supplies, purchase, repair, servicing and installation of appliances, equipment, fixtures
and furnishings which are not paid from the capital replacement reserve, fees and
expenses of property management and common area expenses, fees and expenses of
accountants, attorneys and other professionals, the cost of social services, repayment
of any completion or operating loans including any and all deferred contractor's fees per
the Budget, made to the DEVELOPER, its successors or assigns, and other actual
operating costs and capital costs which are incurred and paid by the DEVELOPER, but
which are not paid from reserve accounts.
1.29 Prooram lncome has the meaning provided in the HOME Program
included in 24 C.F.R. 92.503.
1.30 Project Schedule means the schedule for commencement and completion
of the Project included within the Project Description and Schedule, EXHIBIT "8".
1.31 Project Units means the one hundred and forty-eight (148) residential
housing units constructed on the property of which twenty-six (26) units will be
preserved as Affordable HOME-assisted Units.
1.32 Property means the parcel located at 2660 E. Clinton Ave, Fresno,
California, 93703, (APN: 446-020-39t), more specifically described in the attached
EXHIBIT'A'.
1.33 Rent means the total monthly payment a tenant pays for an Affordable
Project Unit including the following: use and occupancy of the Unit and land and
associated facilities, including parking, provided by the DEVELOPER(other than parking
services acquired by tenants on an optional basis), any separately charged fees or
service charges assessed by the DEVELOPER which are required of all tenants (other
than security deposits), the cost of an adequate level of service for utilities paid by the
tenant (including garbage collection, sewer, water, common area electricity, but not
telephone service), any other interest, taxes, fees or charges for use of the land or
associated facilities and assessed by a public or private entity other than the
DEVELOPER, and paid by the tenant. Rent does not include payments for any optional
services provided by the DEVELOPER.
1.34 Residual Receipts means Residual Receipts as defined in EXHIBIT "F".
1.35 Senior Financino means the financing for the Project set forth on the
Budget and Finance Plan which shall be senior to the Loan.
1.36 Senior Lender means one or more lenders providing the Senior Financing
for the Project.
1.37 Unit means a dwelling unit of the Project.
q
Page 6 of 4
1.38 Verv Low-lncome For the purposes of this Agreement means those whose
annual income does not exceed fifty-percent (50%) of the median income for the
Fresno, Galifornia area as determined by HUD, except as HUD may establish income
ceilings higher or lower than 50% of the median income for the area on the basis of
HUD findings that such variations are necessary.
ARTICLE 2. TERMS OF THE LOAN
2.1 Loan of HOME Funds. The CITY agrees to provide a Loan of HOME
Funds to the DEVELOPER in an amount not to exceed Four Million Five Hundred
Thousand dollars and 00/100 ($4,500,000.00) as take out construction
financing/permanent financing, under the terms and conditions provided in this
Agreement. The HOME Funds shall only be used for payment of HOME Eligible Costs.
2.2 Loan Documents. The DEVELOPER shall execute and deliver the Note
to the CITY and the Deed of Trust to the Title Company for recordation against the
Property, as provided for in this Agreement.
2.3 Term of Aoreement. This Agreement is effective upon the date of
execution and shall remain in force with respect to the Project for the duration of the
Affordability Period unless earlier terminated as provided herein. After the fifty-five (55)
year Affordability Period, this Agreement will expire. lt is understood and agreed upon,
however, that if for any reason this Agreement should be terminated in whole or in part
as provided hereunder, without default, by the DEVELOPER prior to disbursement of
HOME Program funding hereunder, the CITY agrees to record a Notice of Cancellation
regarding this Agreement, upon the written request of the DEVELOPER.
2.4 Loan Repayment and Maturitv. The Loan will be due and payable in
accordance with the Note and not later than the maturity date provided in the Note.
2.5 Incorporation of Documents. The Loan Documents, the Act and HUD
regufations al24 CFR Part 85,92, CPD 98-2 and all exhibits, attachments, documents
and instruments referenced herein, as now in effect and as may be amended from time
to time, constitute part of this Agreement and are incorporated herein by reference. All
such documents have been provided to the parties herewith or have been otherwise
provided to/procured by the parties and reviewed by each of them prior to execution
hereof.
2.6 Covenants of DEVELOPER. The DEVELOPER for itself and its
agents/assigns covenants and agrees to comply with all the terms and conditions of this
Agreement and the requirements of 24 C.F.R. Pa¡t92.
2.7 Subordination. This Agreement, the Declaration of Restrictions and the
Deed of Trust may be subordinated to certaln approved financing (in each case, a
"senior Lender"), to no worse than 4th position, but only on condition that all of the
following conditions are satisfied: (a) All of the proceeds of the proposed Senior Loan,
less any transaction costs, must be used to provide construction or permanent financing
ï
Page 7 of 4
for the Project consistent with an approved financing plan; (b) DEVELOPER must
demonstrate to the CITY's reasonable satisfaction that subordination of Deed of Trust is
necessary to secure adequate construction or permanent financing to ensure the
viability of the Project; (c) the subordination agreement must provide the CITY with
adequate rights to cure any defaults by the DEVELOPER including providing the CITY
or its successor with copies of any notices of default; (d) upon a determination by the
Gity Manager that the conditions in this Section have been satisfied, the City Manager
or his/her designee will be authorized to execute the approved subordination agreement
, inter-creditor agreements, standstill agreements, and/or other documents as may be
reasonably requested by the Lender to evidence subordination to the Project financing,
without the necessity of any further action or approval provided that such agreements
contain written provisions that are no more onerous and which are consistent with the
customary standard requirements imposed by the financing source(s), on subordinate
cash flow obligations under their then existing senior financing policies, and further
provided that the City Attorney approves such document(s) as to form.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Existence and Qualification. The DEVELOPER represents and warrants
to the CITY as of the date hereof, that the DEVELOPER is a duly organized Galifornia
limited partnership in good standing with the State of California; the DEVELOPER has
the requisite power, right, and legal authority to execute, deliver, and perform its
obligations under this Agreement and has taken all actions necessary to authorize the
execution, delivery, performance, and observance of its obligations under this
Agreement. This Agreement, when executed and delivered by the DEVELOPER and
the CITY, shall constitute the legal, valid, and binding obligations of the DEVELOPER
enforceable against the DEVELOPER in accordance with its respective terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, or other similar laws of general applicability
affecting the enforcement of creditors' rights generally, and (b) the application of general
principles of equity without the joinder of any other party.
3.2 No Litigation Material to Financial Condition. The DEVELOPER
represents and warrants as of the date hereof that, except as disclosed to and approved
by the CITY in writing, no litigation or administrative proceeding before any court or
governmental body or agency is now pending, nor, to the best of the DEVELOPER's
knowledge, is any such litigation or proceeding now threatened, or anticipated against
the DEVELOPER that, if adversely determined, would have a material adverse effect on
the financial condition, business, or assets of the DEVELOPER or on the operation of
the Project.
3.3 No Conflict of lnterest. The DEVELOPER represents and warrants to the
CITY as of the date hereof that no official, officer, agent, or employee of the CITY
directly or indirectly owns or controls any interest in the DEVELOPER, and no person,
directly or indirectly owning or controlling any interest in the DEVELOPER, is an official,
officer, agent, or employee of the CITY.
Page I of 4
¡D
3.4 No Leoal Bar. The DEVELOPER represents and warrants to the CITY as
of the date hereof that the execution, delivery, performance, or observance by the
DEVELOPER of this Agreement will not, to the best of the DEVELOPER's knowledge,
materially violate or contravene any provisions of: (a) any existing law or regulation, or
any order of decree of any court, governmental authority, bureau, or agency applicable
to the DEVELOPER; (b) governing documents and instruments of the DEVELOPER; or(c) any mortgage, indenture, security agreement, contract, undertaking, or other
agreement or instrument to which the DEVELOPER is a party or that is binding on any
of its properties or assets, the result of which would materially or substantially impair the
DEVELOPER's ability to perform and discharge its obligations or its ability to complete
the Project under this Agreement.
3.5 No Violation of Law. The Developer represents and warrants as of the
date hereof that, to the best of the DEVELOPER's knowledge, this Agreement and the
operation of the Project as contemplated by the DEVELOPER, do not violate any
existing federal, state or local laws of regulations.
3.6 No Litioation Material to Project. The DEVELOPER represents and
warrants as of the date hereol except as disclosed to, and approved by the City in
writing, there is no action, proceeding, or investigation now pending, or any basis
therefor known or believed to exist by the DEVELOPER that questions the validity of
this Agreement, or of any action to be taken under this Agreement, that would, if
adversely determined, materially or substantially impair the DEVELOPER's ability to
perform and observe its obligations under this Agreement, or that would either directly
or indirectly have an adverse effect or impair the completion of the Project
3.7 Assurance of Governmental Approvals and Licenses. The DEVELOPER
represents and warrants, as of the date hereof, that the DEVELOPER has obtained
and, to the best of the DEVELOPER's knowledge, is in compliance with all federal,
state, local governmental reviews, consents, authorizations, approvals, and licenses
presently required by law to be obtained by the DEVELOPER for the Project as of the
date hereof.
ARTICLE 4. COVENANTS OF THE DEVELOPER
The DEVELOPER, for itself and its development team, represents and warrants that:
4.1 Accessibility. The DEVELOPER covenants and agrees with the CITY thatit shall comply with all federal regulations concerning accessibility requirements in
federally funded housing, including, but not limited to the following:
A. At least five percent (5%) of the dwelling units, or at least two (2),
whichever is greater, must be constructed to be accessible for persons with mobility
disabilities. An additional two percenl (2%) of the dwelling units, or at least one (1)
units, whichever is greater, must be accessible for persons with hearing or visual
disabilities. These units must be constructed in accordance with the Uniform Federal
Page 9 of 4
Accessibility Standards (U.F.A.S.) or a standard that is equivalent or stricter. These
mandates can be found at 24 C.F.R. Part 8, which implements Sectíon 504 of the
Rehabilitation Act of 1973 (29 U.S.C.794).
B. The design and construction requirements of the Fair Housing Act
(Title Vlll of the Civil Rights Act of 1968, as amended), including the following seven (7)
requirements of the Fair Housing Accessibility Guidelines:
(¡) Provide at least one accessible building entrance on an
accessible route.
(ii) Construct accessible and usable public and common use areas.
(iii) Construct all doors to be accessible and usable by persons in
wheelchairs.
(¡v) Provide an accessible route into and through the covered
dwelling unit.
(v) Provide light switches, electrical outlets, thermostats and other
environmental controls in accessible locations.
(vi) Construct reinforced bathroom walls for later installation of grab
bars around toilets, tub, shower stalls and shower seats, where
such facilities are provided.
(vii) Provide usable kitchens and bathrooms such that an individual
who uses a wheelchair can maneuver about the space.
C. Title lll of the Americans with Disability Act of 1990 (ADA) as it relates
to the required accessibility of public and common use area of the Project.
D. The design and construction requirements as required by the CITY's
Universal Design Ordinance pursuant to FMC 11-110, including, but not limited to the
following requirements:
i. No step accessible entryway;
¡¡. All interior doorways and passageways at least 32
inches wide;
¡¡¡. One downstairs "flex room" and accessible bathroom
with reinforcements for grab bars;
iv. Six square feet of accessible kitchen counter space;
and
Page 1O oÍ 4
1?
v. Hallways at least 42 inches wide.
4.2 Affirmative Marketino. The DEVELOPER warrants, covenants and agrees
that it shall comply with all affirmative marketing requirements, including without
limitation, those set out at 24 C.F.R, 92.350, 24 C.F.R. 92.351, in order to provide
information and otherwise attract eligible persons from all racial, ethnic and gender
groups in the housing market. The DEVELOPER shall be responsible for complying
with the CITY's "Affirmative Marketing Policy" document, as amended from time to time.
The DEVELOPER shall maintain records of actions taken to affirmatively market units,
and to assess the results of these actions.
4.3 Availability of HOME Funds. The DEVELOPER understands and agrees
that the availability of HOME Funds is subject to the control of HUD, or other federal
agencies, and should the HOME Funds be encumbered, withdrawn or otherwise made
unavailable to the CITY, whether earned by or promised to the DEVELOPER, and/or
should the CITY in any fiscal year hereunder fail to allocate said Funds, the CITY shall
not provide said Funds unless and until they are made available for payment to the
CITY by HUD and the CITY receives and allocates said Funds. No other funds owned
or controlled by the CITY shall be obligated under this Agreement.
4.4 Compliance with Aqreement. The DEVELOPER warrants, covenants and
agrees that, in accordance with the requirements of 24 CFR 92.252 and 24 CFR Part
85, upon any uncured default by the DEVELOPER within the meaning of Article 10 of
this Agreement, the CITY may suspend or terminate this Agreement and all other
agreements with the DEVELOPER without waiver or limitation of rights/remedies
otherwise available to the CITY.
4.5 Conflict of lnterest. The DEVELOPER warrants, covenants and agrees
that it shall comply with the Conflict of lnterest requirements of 24 C.F.R. 92.356
including, without limitation, that no officer, employee, agent or consultant of the
DEVELOPER (other than an employee or agent of the DEVELOPER) who occupies a
Unit as the property manager or maintenance worker) may occupy an Affordable Project
Unit. The DEVELOPER understands and acknowledges that no employee, agent,
consultant, officer or elected official or appointed official of the CITY, who exercises or
has exercised any functions or responsibilities with respect to the Affordable Project, or
who is in a position to participate in a decision making process or gain inside
information with regard to these activities, may obtain a financial interest or benefit from
the Affordable Project, or have an interest in any contract, subcontract or agreement
with respect thereto, or the proceeds thereunder, either for him or herself or for anyone
with which that person has family or business ties, during his or her tenure or for one
year thereafter. To the extent provided at24 C.F.R. 92.356(0, no owner, developer or
sponsor of the Affordable Project, or officer, employee, agent or consultant thereof, may
occupy an Affordable Project Unit.
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4.6 Construction Standards. The DEVELOPER shall construct the proposed
Project Units assisted under this Agreement in compliance with all applicable local
codes, ordinances and zoning requirements in effect at the time of issuance of CITY
building permits.
4.7 Covenants and Restrictions to Run with the Land. The CITY and the
DEVELOPER expressly warrant, covenant and agree to ensure that the covenants and
restrictions set forth in this Agreement are recorded and will run with the land, provided,
however, that, on expiration of this Agreement such covenants and restrictions shall
expire, provided that such agreements contain written provisions that are no more
onerous and which are consistent with the customary standard requirements imposed
by the financing source(s), on subordinate cash flow obligations under their then
existing senior financing policies, and further provided that City Attorney approves such
document(s) as to form.
A. The CITY and the DEVELOPER hereby declare their
understanding and intent that the covenants and restrictions set forth herein directly
benefit the land; (a) by enhancing and increasing the enjoyment and ownership of the
proposed Project by certain Very Low- and Low-lncome households, and (b) by making
possible the obtaining of advantageous financing for construction.
B. The DEVELOPER covenants and agrees that after issuance of a
recorded Certification of Completion for the Project until the expiration of the
Affordability Period it shall cause six (6) of the HOME-assisted Units to be rented as
Affordable Housing for Very Low-lncome households and twenty (20) of the Home-
assisted Units to be rented as Affordable Housing for Low-lncome households.
C. Without waiver or limitation, the CITY shall be entitled to injunctive
or other equitable relief against any violation or attempted violation of any covenants
and restrictions, and shall, in addition, be entitled to damages available under law or
contract for any injuries or losses resulting from any violations thereof.
D. All present and future owners of the Property and other persons
claiming by, through, or under them shall be subject to and shall comply with the
covenants and restrictions. The acceptance of a deed of conveyance to the Property
shall constitute an agreement that the covenants and restrictions, as may be amended
or supplemented from time to time, are accepted and ratified by such future owners,
tenant or occupant, and all such covenants and restrictions shall be covenants running
with the land and shall bind any person having at any time any interest or estate in the
Property, all as though such covenants and restrictions were recited and stipulated at
length in each and every deed, conveyance, mortgage or lease thereof.
E. The failure or delay at any time of the CITY or any other person
entitled to enforce any such covenants or restrictions shall in no event be deemed a
waiver of the same, or of the right to enforce the same at any time or from time to time
thereafter, or an estoppel against the enforcement thereof.
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_4I Displacement of Persons. The DEVELOPER covenants and agrees with
the CITY that pursuant to 24 C.F.R. 92.353, it will take all reasonable steps tı minimizethe displacement of any persons (families, individuals, businesses, nonprofit
organizations and farms). The parties acknowledge and agree that the Property is not
occupied with tenants.
4.9 lnitial and Annual lncome Certification. The DEVELOPER covenants and
agrees with the CITY that it shall comply with the procedures for annual income
determinations at 24 C.F.R. 92.203 for the twenty-six (26) Affordable Project Units. The
DEVELOPER shall obtain, complete and maintain on file, immediately prior to initial
occupancy, and annually thereafter, income certifications from each tenant Household
renting any HOME-assisted Unit. The DEVELOPER shall make a good faith effort to
verify that the income provided by an applicant or occupying Household in an income
certification is accurate by taking one or more of the following steps as part of the
verification process: (1) obtain a pay stub for the most recent pãy peiioO; (2) obtain an
income verification form from the applicant's current employer; (3) obtain an income
verification form from the Social Security Administration and Galifornia Department of
Social Services if the applicant receives assistance from either of such agencies; (4)
obtain an income tax return for the most recent tax year; or (5) if the ápplicant'ié
unemployed, obtain another form of independent verification. Copies of household
income certification and verification must be available for review by the ClTy. The
DEVELOPER further warrants, covenants and agrees that it shall cooperate with the
CITY in the CITY's income certification/affordability monitoring activities.
4.10 Lead-Based Paint. The DEVELOPER covenants and agrees with the
CITY that it shall comply with all applicable requirements of the Leaã-Based paint
Poisoning Prevention Act of 42 U.S.C. 4821 etseq., 24 CFR Part 35, including the HUD
1012 Rule, and 24 CFR 982.401O, and any amendments thereto, and EPÁ Section
402( cX3) of the Toxic Substances Control Act STSCA) to address lead-based paint
hazards created by renovation, repair, and painting activities that disturb lead-based
paint in target housing and child-occupied facilities. Contractors performing renovations
in lead-based paint units must be EPA-certified renovators. These requirements apply
to all Units and common areas of the Project. The DEVELOPER shall incorporate'oi
cause incorporation of this provision in all contracts and subcontracts for work
performed on the Project, which involve the application of paint. The DEVELOPER
shall be responsible for all disclosure, inspection, testing, evaluation, and control and
abatement activities.
4.11 Minoritv Outreach Activíties. The DEVELOPER covenants and agrees
with the CITY that it shall comply with all federal laws and regulations describéd in
Subpart H of 24 C.F.R. Paft 92, including, without limitation, any requirement that the
DEVELOPER comply with the CITY's minority outreach program.
4.12 Other Laws and Reoulations. The DEVELOPER covenants and agrees
with the Clry that, in addition to complying with the federal laws and regulations alieady
cited in this Agreement, the DEVELOPER has reviewed, and shall ðomply with and
require all its contractors and subcontractors on this Project comply wittr, all other
Page 13 of 4
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CT
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L. The provisions of the Drug-Free Workplace Act of 1988 (42 U.S.C.
701), in accordance with the Act and with HUD's rules at 24 CFR parl24, subpart F.
M. Title I of the Civil Rights Act of 1968 PL. 90-284.
N. Executive Order 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Act of 1968.
P. The Housing and Community Development Act of 1974.
O. Clean Water Requirements 33 U.S.C. 1251
R. Civil Rights Requirements, 29 U.S.C. S 623, 42 U.S.C. S 2000, 42
u.s.c. s 6102,42 u.s.c. s r2112,42 U.S.C. S 12132,49 U.S.C, S 5332,29 C.F.R.
Part 1630, 41 C.F.R. Parts 60 et seq.
4.13 Faith Based Oroanizations. The DEVELOPER warrants, covenants and
agrees that it shall not engage in any prohibited activities described 24 C.F.R. 92.257.
4.14 Reportino Requirements. The DEVELOPER warrants, covenants and
agrees with the CITY that it shall submit performance reports to the CITY as detailed in
Section 7.18. Furthermore, the DEVELOPER agrees to provide, at the sole cost of the
DEVELOPER, annual audited Financial Statements for the Project expenses and
ongoing financial transactions which occur as a result of this Agreement as detailed in
Section 5.6. The DEVELOPER agrees to account for the expenditure of HOME Funds
using generally accepted accounting principles, which financial documentation shall be
made available to the CITY and HUD, upon their respective written request(s).
4.15 Housinq Affordability. The DEVELOPER covenants and agrees with the
CITY that twenty-six (26) of the Affordable Project Units will be affordable to Very Low-
and Low-lncome households and other requirements of 24 CFR 92.252 during the
Affordability Period. Six (6) Units, at a minimum, be rented to and occupied by, or, if
vacant, available for rental and occupancy by (a) person(s) whose annual household
income at the time of initial occupancy is not greater than fifty percent (50%), and
Twenty (20) Affordable Project Units shall, at a minimum, be rented to and occupied by
or, if vacant available for rental and occupancy (a) person(s) whose annual household
income at the time of initial occupancy is not greater than eighty (80%) of the most
recent annual median income calculated and published by HUD for the Fresno
Metropolitan Statistical Area applicable to such household's size, and at an affordable
rent consistent with HOME Program regulations, for the Affordability Period except upon
foreclosure or other transfer in lieu of foreclosure following default under a Deed of
Trust. However, if at any time following a transfer by foreclosure or transfer in lieu of
foreclosure, but still during the Affordability Period, the owner of record prior to the
foreclosure or transfer in lieu of foreclosure, or any newly formed entity that includes
such owner of record those whom such owner of record has or had business ties,
obtains an ownership interest in the Project or the Property, the Affordability Period shall
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Page 15 of 4
be revived according to its original terms. ln the event the DEVELOPER fails to comply
with this Section or the Affordability Period is not revived following transfer by
foreclosure or transfer in lieu of foreclosure, the DEVELOPER shall return to the CITY
all HOME Funds disbursed to the DEVELOPER by the CITY.
416 Terminated Project. The DEVELOPER understands and agrees that, if
the Project is terminated before the completion, either voluntary or otherwise, such
constitutes an ineligible activity and the CITY shall not be required to provide any further
HOME Program assistance funding to the Project Units.
ARTICLE 5. PROPERW MAINTENANCE
The DEVELOPER covenants and agrees, for the entire term of the Agreement, the
following:
5.1 Adequate Repair and Maintenance. After construction of the Project, the
DEVELOPER shall maintain the Project and Properff in compliance with all applicable
codes, laws, and ordinances.
5.2 Affordable Rental Housins. The DEVELOPER covenants and agrees that
the Affordable Project shall constitute at least twenty-six (26) Affordable Project Units
preserved as floating Very Low to Low-lncome Rental Housing (as provided at 24
C.F.R. 92.252) during the entire Affordability Period. This covenant shall remain in
effect and run with and restrict the land during the entirety of the Affordability Period. ln
the event that the DEVELOPER fails to comply with the time period in which the
Affordable Project Units constitute Affordable Rental Housing, the CITY shall without
waiver or limitation, be entitled to injunctive relief, as the DEVELOPER acknowledges
that damages are not an adequate remedy at law for such breach.
5.3 Compliance with Environmental Laws. The DEVELOPER shall cause the
Affordable Project Units to be in compliance with, and not to cause or permit the Project
to be in violation of, any Hazardous Materials law, rule, regulation, ordinance, or statute.
Although the CITY will utilize its employees and agents for regular inspection and
testing of the eligible Property, the DEVELOPER agrees that, if the CITY has
reasonable grounds to suspect any such violation, the DEVELOPER shall be entitled to
th¡rty (30) days' notice and opportunity to cure such violation, which th¡rty (30) day cure
period may be extended if any suspected violation is not capable of cure within th¡rty
(30) days, provided DEVELOPER diligently pursues a cure.. lf the suspected violation
is not cured, the GITY shall have the right to retain an independent consultant to inspect
and test the Property for such violation. lf a violation is discovered, the DEVELOPER
shall pay for the reasonable cost of the independent consultant.
Additionally, the DEVELOPER agrees:
A. That the CITY shall not be directly or indirectly responsible,
obligated or liable with the inspection, testing, removal or abatement of asbestos or
Page 16 ot 4
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federal laws and regulations that apply to the HOME Program, including, without
limitation, requirements of 24 C.F.R. 58.6 and the Flood Disaster Protection Act of 1973,
as amended (42 U.S.C. 40014128) and the following:
A. The DEVELOPER does not intend to use any financing that is
secured by a mortgage insured by HUD in connection with the Project as part of its
demolition or construction of the Project.
B. The Project is not located in a tract identified by the Federal
Emergency Management Agency as having specialflood requirements.
C. The Project requirements, Subpart F ol 24 C.F.R. Part 92, as
applicable and in accordance with the type of Affordable Project Units assisted,
including, but not limited to, the limit on the HOME per-unit subsidy amount at24 C.F.R.
92.250.
D. The property standards at 24 CFR 92.251.
E. The Project "Labor" requirements, as applicable, of 24 C.F.R.
92.354 including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7),
as supplemented by Department of Labor regulations (29 C.F.R. Part 5).
F. The provisions of Section 102 and 107 ol the ContractWork Hours
and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of
Labor Regulations (29 C.F.R. Part 5), in regards to the construction and management of
the proposed Project.
G. The DEVELOPER and its contractors, subcontractors and service
providers for the Project, shall comply with all applicable local, state and federal
requirements concerning equal employment opportunity, including compliance with
Executive Order (E.O.) 11246, "Equal Employment Opportunity," as amended by E.O.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"
and as supplemented by regulations at 41 C.F.R. part 60, "Office of Federal Contract
Compliance Programs, Equal Employment Opportunity, Department of Labor."
H. The provisions of the Copeland "Anti-Kickback" Act (18 U.S.C.
874), as supplemented by Department of Labor regulations (29 CFR part 3,
"Contractors and Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States").
L The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and
the FederalWater Pollution ControlAct (33 U.S.C. 1251 elseq.), as amended.
J. The provisions of the Byrd Antllobbying Amendment (31 U.S.C.
1352).
K. The provision of E.O.s 12549 and 12689, "Debarment and
Suspension," as set forth at24 CFR part 24.
Page 14 of 4
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other hazardous or toxic chemicals, materials, substances, or wastes and that all cost,
expense and liability for such work shall be and remain solely with the DEVELOPER;
B. Not to transport to or from the proposed Property, or use, generate,
manufacture, produce, store, release, discharge, or dispose of on, under, or about the
Propefi, or surrounding real estate, or transport to or from the Property, or surrounding
real estate, any hazardous or toxic chemicals, materials, substance, or wastes or allow
any person or entity to do so except in such amounts and under such terms and
conditions permitted by applicable laws, rules, regulations, ordinances, and statutes;
C. To give prompt written notice to the CITY of the following:
(i) Any proceeding or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration
thereof from or to other property; and
(¡¡) All claims made or threatened by any third party against the
DEVELOPER or such properties relating to any loss or injury resulting from any
hazardous or toxic chemicals, materials, substance, or waste; and
(iii) The DEVELOPER's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of such properties that would cause such
properties or underlying or surrounding real estate or part thereof to be subject to any
restrictions on the ownership, occupancy, transferability, or use of the property under
any environmental law, rule, regulation, ordinance or statute; and
D. To indemniff, defend, and hold the CITY harmless from any and all
claims, actions, causes of action, demand, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, costs, expenses (including
attorney's fees and expenses), and disputes of any kind whatsoever arising out of or
relating to the DEVELOPER or any other party's use of release of any hazardous or
toxic chemicals, materials, substance, or wastes on the Property regardless of cause or
origin, including any and all liability arising out of or relating to any investigation, site
monitoring, containment, cleanup, removal, restoration, or other remedial work of any
kind or nature.
5.4 Compliance with Laws. The DEVELOPER shall be responsible for and
promptly and faithfully comply with, conform to and obey all present and future federal,
state and local statutes, regulations, rules, ordinances and other legal requirements
applicable by reason of this Agreement or otherwise to the Project including without
limitation prevailing wage requirements. The DEVELOPER acknowledges that the use
of federal funds on the Project is subject to extensive federal regulation and covenants
and agrees that it shall comply with, conform to and obey (and take such steps as are
required of the DEVELOPER to enable the CITY to comply with, conform to and obey)
allfederalstatutes, regulations, rules and policies applicable to the Project.
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Page fl of M
5.5 Existence. Qualification, and Authoritv. The DEVELOPER shall provide to
the CITY any evidence required or requested by the CITY to demonstrate the continuing
existence, qualification, and authority of the DEVELOPER to execute this Agreement
and to perform the acts necessary to carry out the Project.
5.6 Financial Statements and Audits. The DEVELOPER (or its successor who
shall receive federal financial assistance), 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 et seq.), as amended. Annually, within one hundred and eighty (180)
days following: 1) the end of fiscal yea(s) in which the federal funds are disbursed
hereunder, and 2) the end of fiscal year(s) in which this contract shall terminate, and
otherwise upon the CITY's, written request during the term of this Agreement,
DEVELOPER, at its sole cost and expense shall submit to the ClTy:
A. Audited annual financial statements of the DEVELOPER that are
current, signed, and prepared according to generally accepted accounting principles
consistently applied (except as otherwise disclosed therein).
B. Audited Financial Statements covering all the income and
expenses and financial transactions for the Affordable Project during the prior fiscal
year.
5.7 lnspection and Audit of Books. Records and Documents. The
DEVELOPER shall be accountable to the CITY for HOME Funds disbursed for the
Affordable Project Units pursuant to this Agreement. Any duly authorized
representative of the CITY or HUD shall, at all reasonable times, have access to and
the right to inspect, copy, make excerpts or transcripts, audit, and examine atl books of
accounts, records, files and other papers or property, and other documents of the
DEVELOPER pertaining to the Project and for up to six (6) years after the expiration or
termination of thls Agreement.
A. The DEVELOPER will maintain books and records for the Project
using generally accepted accounting principles. The DEVELOPER agrees to maintain
books and records that accurately and fully show the date, amount, purpose and payee
of all expenditures financed with HOME Funds and to keep all invoices, receipts and
other documents related to expenditures financed with HOME Funds for not less than
six (6) years after the expiration or termination of the Agreement. Books and records
must be kept accurate and current. For purposes of this section, "books, records and
documents" include, without limitation; plans, drawings, specifications, ledgers, journals,
statements, contracts/agreements, funding information, funding applications, purchase
orders, invoices, loan documents, computer printouts, correspondence, memoranda,
and electronically stored versions of the foregoing. This section shall survive the
termination of this Agreement.
B. The CITY may audit any conditions relating to this Agreement at
the CITY's expense, unless such audit shows a significant discrepancy in information
reported by the DEVELOPER in which case the DEVELOPER shall bear the cost of
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such aud¡t. The DEVELOPER shall also comply with any applicable audit requirements
ol24 C.F.R. 92.506. This section shall survive the termination of this Agreement.
C. The DEVELOPER will cooperate fully with the CITY and HUD in
connection with any interim or final audit relating to the Programs and the Project that
may be performed relative to the performance of this Agreement.
5.8 Inspection of Propertv. Any duly authorized representative of the CITY or
HUD shall, at all reasonable times, have access and the right to inspect the Property
until completion of the Project and expiration of the applicable Affordability Period within
seventy-two (72) hours written notice, subject to the rights of the tenants.
5.9 No Other Liens. The DEVELOPER shall not create or incur, or suffer to
be created or incurred, or to exist, any additional mortgage, pledge, encumbrance, lien,
charge, or other security interest of any kind on the eligible Property, other than those
related to construction, pre-development or permanent loans in relation to the Project
consistent with the attached Budget without prior written consent of the CITY.
5.10 Nondiscrimination. The DEVELOPER shall comply with and cause any
and all contractors and subcontractors to comply with any and all federal, state, and
local laws with regard to illegal discrimination, and the DEVELOPER shall not illegally
discriminate against any persons on account of race, religion, sex, family status,
handicap, or place of national origin in its performance of this Agreement and the
completion of the Project.
5.11 Ownership. Except as required in pursuit hereof or as transferred in
connection with the Right of First Refusal and Purchase Option Agreement between
DEVELOPER and the Housing Authority of the City of Fresno, California and the
Purchase Option between DEVELOPER and Parc Grove Commons Northwest AGP,
LLC each dated as of February 13, 2013, the DEVELOPER shall not sell, lease,
transfer, assign or otherwise dispose of ("Transfer") all or any material part of any
interest it might hold in the Property or the Project without prior written consent of the
Clry, which consent shall not be unreasonably withheld or delayed. "Transfer" shall
exclude the leasing of any single Unit in the Project.
A. The DEVELOPER shall request CITY's written approval of the granting
of the security interests in the Property described in Section 5.9 above.
B. The DEVELOPER is syndicating the low income housing tax credits
that will be generated by the Project, which syndication will require the transfer of limited
partnership interests. The CITY hereby approves the Transfer of the limited partner
interest to affiliates of the investor, provided that in each instance the CITY is given prior
written notice.
5.12 Payment of Liabilities. The DEVELOPER shall pay and discharge in the
ordinary course of its business all material obligations and liabilities, the nonpayment of
which could have a material or adverse impact on its financial condition, business, or
Page 19 of 4
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assets or on the operation of the Project, except such obligations and liabilities that
have been disclosed to the CITY in writing and are being contested in good faith.
5.13 Report of Events of Default. The DEVELOPER shall promptly give written
notice to the CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 6. DISBURSEMENT OF HOME FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of
HOME Funds:
6.1 Loan Commitments and Financino Plan, The DEVELOPER shall submit
its most current Finance Plan for the Project to the CITY within the time frame provided
in the Project Schedule. So long as the Finance Plan is consistent with the Budget, the
CITY shall accept the Finance Plan. lf the Finance Plan is not consistent with the
Budget, then within thirty (30) days after receiving the Finance Plan, the CITY, through
its Development and Resource Management Department, Housing and Community
Development Division, will review the Finance Plan and deliver notice to the
DEVELOPER either approving or disapproving the Finance Plan in its reasonable
discretion. lf the CITY disapproves the Finance Plan, it will specify the reason for the
disapproval and ask the DEVELOPER to provide any additional information the CITY
may need to approve the Finance Plan. The failure of the CITY to send notice within
such thirty (30) day time period shall be deemed an approval of the Finance Plan.
6.2 Finance Plan Gontent. The Finance Plan shall contain all Project pre-
construction and post-construction, permanent loan or letters of intent from one or more
qualified public/private lenders or funding sources, in sufficient amounts, combined with
any other developer financing, for the DEVELOPER to complete construction of the
Project. The total amount of the liens to be recorded against the Property as presented
in the Finance Plan shall not exceed the DEVELOPER's estimated construction Budget.
6.3 Use of HOME Funds. The DEVELOPER warrants, covenants and agrees
that it shall request HOME Funds only for payment or reimbursement of Eligible Costs
incurred as identified in the attached Budget, attached hereto as EXHIBIT "C", including
costs allowable under 24 C.F.R. 92.206, aggregating not more than Four Million Five
Hundred Thousand dollars and 00/100 ($¿,S00,000.00). The CITY's obligations shal! in
no event exceed the HOME Funds amount specified in this Agreement.
A. lf any such Funds shall be determined to have been requested
and/or used by the DEVELOPER for costs other than for Eligible Costs, and subject to
the notice and cure provisions of Section 10.2 hereunder, an equal amount from
nonpublic funds shall become immediately due and payable by the DEVELOPER to the
CITY; provided, however, that the DEVELOPER shall, subject to its full cooperation with
the CITY, be entitled to participate in any opportunity to remedy, contest, or appeal such
determination.
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Page 20 of M
B. In the event HOME Funds are requested to pay or reimburse
Eligible Costs which subsequently lose eligibility as Eligible Costs, the DEVELOPER
shall immediately return such HOME Funds to the CITY.
C. The CITY will disburse HOME Funds, only to the DEVELOPER
through proper invoicing, for Eligible Costs as provided in this Article 6.
6.4 Conditions Precedent to Disbursement. The CITY shall not be obligated
to make or authorize any disbursements of HOME Funds unless all the following
conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any
act, failure, omission or condition that with the giving of notice would constitute an Event
of Default.
B. The DEVELOPER has submitted the Finance Plan to the CITY, and
if required, the CITY has approved the Finance Plan.
C. The CITY has approved the requested payment or reimbursement
of eligible Project costs.
D. The DEVELOPER has obtained insurance coverage and delivered
to the CITY evidence of insurance as required in Article 9.
E. The DEVELOPER is current with its compliance of all reporting
requirements set forth in this Agreement.
F. The DEVELOPER has provided the CITY with a written request for
Funds (in a ClTY-approved Form), for payment or reimbursement of eligible Project
costs, and detailing such Eligible Costs applicable to the request.
Agreement.
G. The CITY has received Certification required by Section 6.6 of this
H. The CITY has received, and continues to have the right to disburse,
HOME Funds.
6.5 Request for and Disbursement of HOME Funds. The DEVELOPER shall
request disbursement of HOME Funds using the CITY's Request for Disbursement of
Funds form. The DEVELOPER shall only request a maximum of Four Million Five
Hundred Thousand dollars and 00/100 ($+,S00,000.00) in HOME Program assistance
for the Affordable Project Units. All requests must provide in detail such Eligible Costs
applicable to the request. All requests for HOME Funds disbursement shall be
accompanied with the Certification required by Section 6.6 of this Agreement and
demonstrate they are in compliance with the requirements set forth in CPD 98-2 for
"floating" units.
Page 21 oÍ 4
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6.6 DEVELOPER Certification. The DEVELOPER shall submit to the CITY a
written certification that, as of the date of the Request for Disbursement ("Gertification"):
A. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate in all material
respects;
B. The DEVELOPER has carried out all of its obligations and is in
compliance wlth all the material obligations or covenants specified in this Agreement, to
the extent that such obligations or covenants are required to have been carried out or
are applicable at the time of the request for the Disbursement;
C. The DEVELOPER has not committed or suffered an act, event,
occurrence, or circumstance that constitutes an Event of Default or that with giving of
notice would constitute an Event of Default; and
D. The Disbursement requested will be used solely for payment or
reimbursement of Eligible Costs and must be supported by the itemized obligations that
have been properly incurred and are properly chargeable in connection with the
Affordable Project Units.
6.7 Disbursement of Funds. Disbursements of HOME Program Loan
proceeds shall occur within the normal course of business (approximately th¡rty (30)
days) after the CITY receives the Certification and to the extent of annually allocated
and available HOME Funds.
ART¡CLE 7. DEVELOPMENT AND CONSTRUCTION OF THE PROJECT
Without waiver of limitation, the parties agree as follows:
7.1
The CITY will schedule, and the DEVELOPER shall attend a meeting with the CITY for
the purpose of outlining Project processes and procedures.
7.2 Commencement and Completion of Project. The DEVELOPER shall
commence construction and, record a Notice of Completion upon completion of
construction of the Project in accordance with the Project Schedule as identified in
EXHIBIT "8".
7.3 Contracts and Subcontracts. Consistent with Section 5.3, all demolition,
hazardous waste abatement, construction work and professional services for the Project
shall be performed by persons or entities licensed or otherwise legally authorized to
perform the applicable work or service in the State of California and the City of Fresno.
The DEVELOPER shall provide the CITY with copies of all agreements it has entered
into with any and all general contractors for the Project. The DEVELOPER shall require
that each such general contractor agreement contain a provision whereby the party(ies)
to the agreement other than the DEVELOPER agree to: (i) notify the CITY immediately
Page 22 ot 4
of any event of default by the DEVELOPER thereunder; (ii) notify the CITY immediately
of the filing of a mechanic's lien, (iii) notify the CITY immediately of termination or
cancellation of the agreement; and (iv) provide the CITY, upon the CITY's request, an
Estoppel Certificate certiffing that the agreement is in full force and effect and the
DEVELOPER is not in default thereunder. The DEVELOPER agrees to notify the CITY
immediately of termination or cancellation of any such agreement(s), notice of filing of a
mechanic's lien, or breach or default by other party(ies) thereto.
7.4 Damaoe to Propertv. To the extent consistent with the requirements of
any permitted encumbrance, or as otherwise approved by the CITY, and subject to
Article 9 of this Agreement, if any building or improvement constructed on the Property
is damaged or destroyed by an insurable cause, the DEVELOPER shall, at its cost and
expense, diligently undertake to repair or restore said buildings and improvements
consistent with the original Plans and Specifications of the Project. Such work or repair
shall commence within ninety (90) days after the insurance proceeds are made
available to the DEVELOPER and shall be complete within two (2) years thereafter,
which two (2) year period may be extended due to Force Majeure. All insurance
proceeds collected for such damage or destruction shall be applied to the cost of such
repairs or restoration and, if such insurance proceeds shall be insufficient for such
purpose, the DEVELOPER shall make up the deficiency, subject to Senior Lender
requirements.
7.5 Fees. Taxes and Other Levies. The DEVELOPER shall be responsible for
payment of all fees, assessments, taxes, charges and levies imposed by any public
authority or utility company with respect to the Project Property, and shall pay such
charges prior to delinquency. However, the DEVELOPER shall not be required to pay
and discharge any such charge so long as: (a) the legality thereof is being contested
diligently and in good faith and by appropriate proceedings, and (b) if requested by the
CITY, the DEVELOPER deposits with the CITY any funds or other forms of assurances
that the CITY, in good faith, may determine from time to time are appropriate to protect
the CITY from the consequences of the contest being unsuccessful. The DEVELOPER
shall have the right to apply for and obtain an abatement and/or exemption of the
Project from real property taxes in accordance with all applicable rules and regulations,
including Section 21aß) of the California Revenue and Taxation Code.
7.6 Financinq. The DEVELOPER shall promptly inform the CITY of any new
financing or funding not included in the Budget for the Project, and the DEVELOPER
shall provide the CITY copies of all agreements with any and all Funding Sources for
the Project. The DEVELOPER shall require each agreement with any and all Funding
Sources not included in the Budget to contain a provision whereby the party(ies) to the
agreement other than the DEVELOPER, if permitted by the parties' applicable rules and
regulations, agree to notify the CITY immediately of any event of default by the
DEVELOPER thereunder. Should the DEVELOPER not comply with all obligations of
this section, the loan shall become immediately due and payable as provided for in this
Agreement. This section shall survive expiration or termination of this Agreement.
Page 23 of M
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7.7 ldentification Sionaoe. The DEVELOPER shall place a poster or sign,
with a minimum four feet by four feet in size, identifying the City of Fresno as a Project
participant. The sign shall also include the CITY's Housing Logo, as well as HUD's
Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a minlmum
of 4 inches. The poster/sign shall be appropriately placed, and shall remain in place
throughout the Project construction.
7.8 lnspections. The DEVELOPER shall permit, facilitate, and require its
contractors and consultants to permit and facilitate observation and inspection at the job
site by the CITY and other public authorities during reasonable business hours, for
determining compliance with this Agreement, including without limitation biennial on-site
inspections required by the CITY by 24 C.F.R. 92.504(d).
7.9 Utilities. The DEVELOPER shall be responsible, at its sole cost and
expense, to determine the location of any utilities on the Property and to negotiate with
the utility companies for and to relocate the utilities, if any, as necessary to complete the
Project.
7.10 lnsurance and Bonds. Upon the CITY's reasonable request, the
DEVELOPER shall submit for CITY approval, bonds, certificates, and/or applicable
endorsements for all insurance and bonds required by this Agreement in accordance
with Article 9.
7.'11 Mechanic's Liens and Stop Notices, lf any claim of lien is filed against the
Property or a stop notice affecting any financing, HOME Funds or Funding Sources for
the Project, is served on the CITY or any other third party in connection with the Project,
the DEVELOPER shall, within twenty (20) days of such filing or service, either pay and
fully discharge the lien or stop notice, effect the release of such lien or stop notice by
delivering to the CITY a surety bond in sufficient form and amount, or provide the CITY
with other assurance satisfactory to the CITY that the claim of lien or stop notice will be
paid or discharged.
A. lf the DEVELOPER fails to discharge, bond or otheruvise satisfy the
CITY with respect to any lien, encumbrance, charge or claim referred to in this Section
7.11, then, in addition to any other right or remedy, the CITY may, but shall not be
obligated to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER's
expense. Alternatively, the CITY may require the DEVELOPER to immediately deposit
with the CITY the amount necessary to satisfy such lien or claim and any costs, pending
resolution thereof. The CITY may use such deposit to satisfy any claim or lien that is
adversely determined against the DEVELOPER. The DEVELOPER hereby agrees to
indemnify and hold the GITY harmless from liability for such liens, encumbrances,
charges or claims together with all related costs and expenses.
7.12 Permits and Licenses. Upon CITY's reasonable request, the
DEVELOPER shall submit, for CITY approval, all the necessary permits and licenses
required for Commencement of construction of the Project. As the CITY may
reasonably request, the DEVELOPER, at its sole cost and expense, shall provide to the
Page 24 of 4
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CITY cop¡es of any and all permit approvals and authorizations including plot plan, plat,
zoning variances, sewer, building, and other permits required by governmental
authorities other than the CITY in pursuit of the Project, and for its stated purposes in
accordance with all applicable building, environmental, ecological, landmark,
subdivision, zoning codes, laws, and regulations. DEVELOPER is responsible at its
sole cost and expense to determine the location of any utilities on the Property and to
negotiate with the utility companies for and to relocate the utilities, if any, as necessary
to complete the Project.
7.13 Plans and Specifications.
A. The DEVELOPER has submitted to the CITY preliminary plans and
specifications for the Project under Conditional Use Permit file numbe¡ C-11-146, C-06-
236, and C-09-189 ("Project Preliminary Plans"). The DEVELOPER will construct the
Project in full conformance with the ClTY-approved Conditional Use Permit and plans
and specifications and modifications thereto approved by the CITY. The DEVELOPER
shall obtain the CITY's prior written approval for any substantial modifications to the
plans and specifications.
B. The HOME Agreement shall contain by reference the design and
site plan of the Project; such design must be approved by the City Council with the
HOME Agreement.
C. The DEVELOPER shall submit to the CITY, for its review and
approval, the final Plans and Specifications for the Project. The DEVELOPER will
construct the Project in full conformance with the Plans and Specifications and
modifications thereto approved by the CITY- The DEVELOPER shall obtain the CITY's
prior written approvalfor any substantial modifications to the Plans and Specifications.
7.14 . The
DEVELOPER shall be solely responsible for all aspects of the DEVELOPER's conduct
in connection with the Project, including but not limited to, compliance with all local,
state and federal laws including without limitation, as to prevailing wage and public
bidding requirements. The Council of the City of Fresno has adopted Resolution No.
82-297 ascertaining the general prevailing rate of per diem wages and per diem wages
for holidays and overtime in the Fresno area for each craft, classification or type of
workman needed in the execution of contracts for the CITY. A copy of the resolution is
on file at the Office of the City Clerk. Actual wage schedules are available upon request
at the City's Construction Management Office. Without limiting the foregoing, the
DEVELOPER shall be solely responsible for the quality and suitability of the work
completed and the supervision of all contracted work, qualifications and financial
conditions of and performance of all contracts, subcontractors, consultants and
suppliers. Any review or inspection undertaken by the CITY with reference to the
Project and/or payroll monitoring/auditing is solely for the purpose of determining
whether the DEVELOPER is properly discharging its obligation to the CITY, and shall
not be relied upon by the DEVELOPER or by any third parties as a warranty or
J
Page 25 of M
representation by the CITY as to governmental compliance and/or the quality of work
completed for the Project.
7.15 Property Condition. The DEVELOPER shall maintain the Property and all
improvements on site in a reasonably good condition and repair (and, as to
landscaping, in a healthy condition), all according to the basic design and related plans,
as amended from time to time. The DEVELOPER and those taking direction under the
DEVELOPER shall: (¡) maintain all on-site improvements according to all other
applicable law, rules, governmental agencies and bodies having or claiming jurisdiction
and all their respective departments, bureaus, and officials; (ii) keep the improvements
free from graffiti; (iii) keep the Property free from any accumulation of debris or waste
material; (iv) promptly make repairs and replacements to on-site improvements; and (v)
promptly replace any dead, or diseased plants and/or landscaping (if any) with
comparable materials.
7.16 Quality of Work. The DEVELOPER shall ensure that construction of the
proposed Project employs building materials of a quality suitable for the requirements of
the Project. The DEVELOPER shall cause completion of the construction of the
proposed Project in full conformance with applicable local, state and federal laws,
statutes, regulations, and building and housing codes.
7.17 Relocation. lf and to the extent that construction of the proposed Project
results in the permanent or temporary displacement of residential tenants, homeowners
or businesses, the DEVELOPER shall comply with all applicable local, state, and
federal statutes and regulatory with respect to relocation planning, advisory assistance
and payment of monetary benefits. The DEVELOPER shall be solely responsible for
payment of any relocation benefit to any displaced persons and any other obligations
associated with complying with said relocation laws.
7.18 Reportino Requirements. The DEVELOPER shall submit to the CITY the
following Project reports:
A. From the date of the execution of the Agreement, until issuance of
the recorded Certificate of Completion, the DEVELOPER shall submit a Quarterly
Report, in a form approved by the CITY, which will include the progress of construction
of the Project and affirmative marketing efforts (as applicable). The Quarterly Reports
are due within fifteen (15) days after each March 31st, June 30th, September 30th, and
December 3lst, during said period.
B. Annually, beginning on the first day of the month following the
CITY's issuance of the Certificate of Completion, and continuing until the termination of
the Agreement, the DEVELOPER shall submit an Annual Report to the CITY, in a form
approved by the CITY. The Annual Report shall include, at a minimum, the following
information: the rents, the annual income and the family size of the Households, the
date tenancy commenced for each Affordable rental Unit, certification from an officer of
the DEVELOPER that the Units are in compliance with the Affordable Rental Unit
Requirements, and such other information the CITY may be required by law to obtain.
Page 26 of M
The DEVELOPER shall provide any additional information reasonably requested by the
CITY.
C. Annually, beginning on the first day of the month following the
CITY's issuance of the recorded Certificate of Completion for the Project, and
continuing until the expiration of the Agreement, the DEVELOPER shall submit proof of
insurance as required in Article 9.
7.19 tt
shall be the responsibility of the DEVELOPER to coordinate and schedule the work to
be performed so that the Commencement of the Project and issuance of the Gertificate
of Gompletion will take place in accordance with the provisions of the Agreement and
Project Schedule. The time for performance contained in the Project Schedule shall be
automatically extended upon the following:
A. The time for performance of provisions of the Agreement by either
party shall be extended for a period equal to the period of any delay directly affecting
the Project or this Agreement which is caused by: war, insurrection, strike or other labor
disputes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a
public enemy, epidemics, quarantine restrictions, freight embargoes, lack of
transportation, suits fìled by third parties concerning or arising out of this Agreement, or
unseasonable weather conditions ("Force Majeure"). An extension of time for any of the
above specified causes shall be granted only if written notice by the party claiming such
extension is sent to the other party within th¡rty (30) calendar days from the date the
affected party learns of the commencement of the cause and the resulting delay and
such extension of time is accepted by the other party in writing. In any event, the
Project must be completed no later than one hundred eighty (180) calendar days afrer
the scheduled completion date specified in this Agreement, notwithstanding any delay
caused by that included in thÍs section.
B. Any and all extensions hereunder shall be by mutual written
agreement of the CITY's Housing and Community Development Division Manager and
the DEVELOPER and shall not cumulatively exceed one hundred eighty (180) days.
7.20 Certificate(s) of Completion. Upon completion of the construction of the
Project, the DEVELOPER shall: 1) certify in writing to the CITY that the Project has
been constructed in accordance with the Final Plans and CUP; 2) submit to the CITY a
cost-certiffing final budget for the Project where the DEVELOPER shall identify the
actual costs of construction of the Project. The final cost certification shall identify costs
in line-item format, consistent with the Project budget; 3) submit to the CITY a
Certificate of Occupancy for the Project; 4) submit to the CITY a recorded Notice of
Completion for the Project; and 5) submit to the CITY an Architect's certification in a
form reasonably acceptable by the CITY. Upon a determination by the CITY that the
DEVELOPER is in compliance with all of the DEVELOPER's construction obligations,
as specified in this Agreement, the CITY shallfurnish, within th¡rty (30) calendar days of
a written request by the DEVELOPER, a recorded Gertificate of Completion for the
Project in the form attached hereto as EXHIBIT 'E". The CITY will not unreasonably
Page 27 of 4
withhold or delay furnishing the recorded Certificate of Completion. lf the CITY fails to
provide the recorded Certificate of Completion within the specified time, it shall provide
the DEVELOPER with a written statement indicating in what respects the DEVELOPER
has failed to complete the Project in conformance with this Agreement or has otherwise
failed to comply with the terms of this Agreement, and what measures the DEVELOPER
will need to take or what standards it will need to meet in order to obtain the recorded
Certificate of Completion. Upon the DEVELOPER taking the specified measures and
meeting the specified standards, the DEVELOPER will certify to the CITY in writing of
such compliance and the CITY shall deliver the recorded Certificate of Completion to
the DEVELOPER in accordance with the provisions of this section.
ARTICLE 8. PROJECT OPERATIONS
8.1 Operation of the Project. The DEVELOPER shall lease, operate and
manage the Project in full conformity with the terms of this Agreement.
8.2 Occupancy Requirements. Six (6) of the HOME-Assisted Units shall be
rented and occupied by, or if vacant, available for rental occupancy by those whose
annuat household income at the time of initial occupancy is not greater than fifty percent
(50%) of the most recent annual median income, calculated and published by HUD for
the Fresno Metropolitan Statistical Area, applicable to such household's size, and at an
affordable rent consistent with HOME Program regulations (as provided at 24 C.F.R.
92.252) for the term of this Agreement. Twenty (20) of the HOME-Assisted Units shall
be rented and occupied by, or if vacant, available for rental occupancy by those whose
annual household income at the time of initial occupancy is not greater than eighty
percent (80%) of the most recent annual median income, calculated and published by
HUD for the Fresno Metropolitan Statistical Area, applicable to such household's size,
and at an affordable rent consistent with HOME Program regulations (as provided at24
CFR 92.252'¡ for the term of this Agreement. The DEVELOPER shall comply with the
income targeting requirements of 24 CFR 92.216.
8.3 Leasino the HOME-Assisted Units. Before leasing any Affordable Project
Units, the DEVELOPER shall submit its proposed form of lease agreement for the
CITY's review and approval, The DEVELOPER covenants and agrees to utilize only
leases that have been approved in advance by the CITY. The CITY shall respond to
the DEVELOPER's submission of a sample lease agreement within thirty (30) days.
Should the CITY not respond within thirty (30) days of the lease agreement submittal,
the DEVELOPER shall be authorized to use the submitted sample lease agreement.
Additionally, the DEVELOPER agrees not to terminate the tenancy or to refuse to renew
or lease with a tenant of the Units assisted with HOME Funds except for serious or
repeated violation of the terms and conditions of the lease agreement, for violation of
applicable federal, state, or local law, or for other good cause. Any such termination or
refusal to renew must be preceded by not less than thirty (30) days' written notice
served by the DEVELOPER or its authorized management entity upon the tenant
specifying the grounds for quch action. The DEVELOPER agrees it shall annually
report to the CITY the number of leases that were not renewed or terminated and the
reason for such non-renewal or termination.
Page 28 ol 4
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8.4 Lease of HOME-Assisted Units Provisions. In addition to the
requirements of 24 C.F.R. 92.253, the leases are subject to the following:
A. The DEVELOPER shall include in its Leases for the HOME-
assisted Units, provisions which authorize the DEVELOPER to immediately terminate
the tenancy of any Household of which one or more of its members misrepresented any
fact material to the Household's qualification as a Very Low- or Low-lncome Household.
Each such lease agreement shall also provide that the Household is subject to annual
certification, and that, if the Household's annual income increases above the applicable
limits for Low-lncome, such Household's rent may be subject to increase to the lesser
of: 1) the amount payable by tenant under state or local law; or 2) thirty percent (30%)
of the Household's actual adjusted monthly income, except that, consonant with the
Act, tenants of HOME Funds-assisted units that have been allocated low income
housing tax credits by a housing credit agency pursuant to section 42 of the internal
Revenue Code of 1986 (26 U.S.C. 42) must pay rent governed by section 42.
8.5 Final Manaoement Plan. Before leasing and at least sixty (60) calendar
days prior to the construction Completion Date, the DEVELOPER shall submit to the
CITY, for review and approval, a plan for marketing and managing the proposed
Affordable Project Units ("Final Management Plan"). The Final Management Plan shall
address in detail how the DEVELOPER or its designated management entity plans to
market the availability of the Affordable Project Units to prospective tenants and how the
DEVELOPER plans to certify the eligibility of potential tenants. The Final Management
Plan shall also address how the DEVELOPER and/or the management entity plan to
manage and maintain the Affordable Project Units in accordance with HOME Program
regulations at Section 92.251 Property Standards, and shall include appropriate
financial information and documentation. The Final Management Plan shall contain
detailed descriptions of policies and procedures with respect to tenant selections and
evictions. Topics to be covered in these procedures shall include at a minimum the
following:
o lnterviewing procedures for prospective tenants;o Previous rental history of tenants with references;. Credit reports;. Criminal background checks;o Deposit amounts, purpose, use and refund policy;o EmploymenUlncome verification;. Occupancy restrictions;o lncome Limits;. Equal Housing Opportunity Statement;o Restrictions on use of the premises; ando TenanUlandlord dispute resolution procedures.
The Final Management Plan shall contain copies of all standardized forms
associated with the above listed topics. The Final Management Plan shall include a
form lease agreement that the DEVELOPER proposes to enter into with the Very Low-
Page 29 ol 4
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and Low-lncome tenants. The DEVELOPER shall abide by the terms of this Final
Management Plan, approved by the CITY, in marketing, managing and maintaining the
Affordable Project Units.
At least ninety (90) calendar days prior to the Project Completion Date, the
DEVELOPER shall also submit any proposed management contract to the CITY for
prior review. The CITY shall have the right to review any proposed amendments, other
than renewals to the management contract, and any new management contracts during
the term of this Agreement. Such management contract(s) shall contain a provision
expressing this right.
8.6 Property Manaoement. The DEVELOPER shall comply with the following:
A. Management Responsibilities. The DEVELOPER directly and/or
through its designated management entity, is specifically responsible for all
management functions with respect to the Project including, without limitation, the
selection of tenants, certification and re-certification of Household size and income,
evictions, collection of Rents and deposits, construction management, affirmative
marketing, maintenance, landscaping, routine and extraordinary repairs, replacement of
capital items and security. The CITY shall have no responsibili$ for such management
of the Project.
8.7 Maintenance and Securitv. The DEVELOPER shall (i) at its own expense
maintain the Project in good condition, in good repair and in decent, safe, sanitary,
habitable and tenantable living conditions for the benefit of the Unit occupants. The
DEVELOPER shall not commit or permit any waste on or to the Project, and shall
prevent and/or rectify any physical deterioration of the Project. The DEVELOPER shall
maintain the housing Units in conformance with all applicable federal, state and local
laws, ordinances, codes and regulations, the Final Management Plan, and this
Agreement.
8.8 Nondiscrimination. All of the HOME-assisted Units shall be available for
occupancy on a continuous basis to households who are income eligible. The
DEVELOPER shall not illegally discriminate or segregate in the constructed complex,
the use, enjoyment, occupancy or conveyance of any part of the Project or Property on
the basis of race, color, ancestry, national origin, religion, sex, marital status, family
status, source of income/rental assistance subsidy, physical or mental disability,
Acquired lmmune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC),
sexual orientation, or any other arbitrary basis. The DEVELOPER shall otherwise
comply with all applicable local, state and federal laws concerning nondiscrimination in
housing. Neither the DEVELOPER nor any person claiming under or through the
DEVELOPER, shall establish or permit any such practice or practices of illegal
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants or vendees of any Affordable Project Unit or in connection with
employment of persons for the construction of any Affordable Project Unit. All deeds or
contracts made or entered into by the DEVELOPER as to the Affordable Project Units
or the Project or portion thereof, shall contain covenants concerning nondiscrimination
Page 30 oÍ M
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consistent with this section. The DEVELOPER shall include a statement in all
advertisements, notices and signs for availability of Affordable Project Units for rent to
the effect that the DEVELOPER is an Equal Housing Opportunity Provider.
A. Nothing in this section is intended to require the DEVELOPER to
change the character, design, use or operation of the Project; or to require the
DEVELOPER to obtain licenses or permits other than those required for the Project.
8.9 Rent Schedule and UtiliW Allowances. The DEVELOPER covenants and
agrees not to charge rent to tenants for HOME-assisted Units in an amount which
exceeds those rents prescribed to the Project as they associate with particular income
and rent limitation levels as established annually by HUD, consistent with the HOME
Program requirements applicable to the Affordable Project Units in the Fresno,
California area, as established by HUD, and further covenants not to impose a monthly
allowance for utility services to tenants of such Affordable Project Units in excess of an
amount approved by HUD in accordance with 24 C.F.R. 92.252. The DEVELOPER
agrees to furnish to the CITY with a certificate setting forth the maximum monthly
rentals for the HOME-assisted Units and the monthly allowances for utilities and
services to be charged during any annual period until the expiration of the Affordability
Period. The DEVELOPER shall reexamine the income of each tenant Household living
in the Affordable Project Units at least annually.
ARTICLE 9. INSURANCE AND INDEMNITY
Without waiver of limitation, the parties agree as follows regarding DEVELOPER
lnsurance and lndemnity Obligations:
9.1 Insurance Requirements. Throughout the life of this Agreement,
DEVELOPER shall pay for and maintain in full force and effect all policies of insurance
hereunder with an insurance company(ies) either (¡) admitted by the California
lnsurance Commissioner to do business in the State of California and rated not less
than 'A-Vll" in Best's Insurance Rating Guide, or (ii) authorized by the CITYs Risk
Manager. The following policies of insurance are required:
(¡) COMMERICAL GENERAL LIABILITY insurance which shall be at least
as broad as the most current version of Insurance Services Office (lSO)
Commercial General Liability Coverage Form CG 00 0l and include
insurance for "bodily injury," "property damage" and "personal and
advertising injury" with coverage for premises and operations (including
the use of owned and non-owned equipment), products and completed
operations, and contractual liability (including, without limitation, indemnity
obligations under the Agreement) with limits of liability of not less than the
following:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising injury
Page 31 oÍ M
.L3'
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to work
performed under the Agreement
(ii) COMMERICAL GENERAL LIABILITY insurance which shall be at as
board as the most current version of lnsurance Service Office (lSO)
Business Auto Coverage Form CA 00 01, and include coverage for all
owned, hired, and non-owned automobiles or other licensed vehicles
(Code 1-Any Auto) with limits of liability of not less than $1,000,000 per
accident for bodily injury and property damage.
(iii) WORKERS' COMPENSATION insurance as required under the
California Labor Code.
(iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
diseased each employee.
(v) BUILDERS RISK (Course of Construction) insurance in an amount
equal to the completion value of the Project with no coinsurance penalty
provisions. (Only required if the project includes new construction of a
building; or renovation of, or addition to, an existing building.)
(vi) CONTRACTOR POLLUTION LIABILTY (Unless waived in writing by
the City's Risk Manager or his/her designee, the DEVELOPER's Pollution
Liability is required for all environmental and water remediation work and
for all work transporting fuel. Unless waived in writing by the City's Risk
Manager or his/her designee, the DEVELOPER's Pollution Liability is also
required for demolition, renovation, HVAC, plumbing or electrical
(including, without limitation, lighting) work on any structure built prior to
the year 1990) i insurance with limits of liability of not less than the
following:
$1,000,000 per occurrence or claim
$2,000,000 general aggregate per annual policy period
ln the event the DEVELOPER purchases an Umbrella or Excess insurance policy(ies)
to meet the minimum limits of insurance set forth above, this insurance policy(ies) shall
"follow form" and afford no less coverage than the primary insurance policy(ies).
ln the event the DEVELOPER involves any lead-based, mold or asbestos
environmental hazard, either the Automobile Liability insurance policy or the
DEVELOPER's Pollution Liability insurance policy shall be endorsed to include
Transpodation Pollution Liability insurance covering materials to be transported by the
DEVELOPER pursuant to the HOME Agreement.
3{
Page 32 of 44
ln the event the DEVELOPER involves any lead-based environmental hazard (e.9.,
lead- based paint), the DEVELOPER's Pollution Liability insurance policy shall be
endorsed to include coverage for lead based environmental hazards. ln the event the
DEVELOPER involves any asbestos environmental hazard (e.9., asbestos
remediation), the DEVELOPER's Pollution Liability insurance policy shall be endorsed
to include coverage for asbestos environmental hazards. ln the event the HOME
Agreement involves any mold environmental hazard (e.9., mold remediation), the
DEVELOPER's Pollution Liability insurance policy shall be endorsed to include
coverage for mold environmental hazards and "microbial matter including mold" within
the definition of "Pollution" under the policy.
The DEVELOPER shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the DEVELOPER shall also be responsible
for payment of any self-insured retentions. Any deductibles or self-insured retentions
must be declared to, and approved by, the CITY's Risk Manager or his/her designee.
At the option of the CITY's Risk Manager or his/her designee, either (i) the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects GITY, its
officers, officials, employees, agents and volunteers; or (ii) the DEVELOPER shall
provide a financial guarantee, satisfactory to CITY's Risk Manager or his/her designee,
guaranteeing payment of losses and related investigations, claim administration and
defense expenses. At no time shall City be responsible for the payment of any
deductibles or self-insured retentions.
All policies of insurance required hereunder shall be endorsed to provide that the
coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except
after thirty (30) calendar day written notice has been given to CITY. Upon issuance by
the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in
coverage or in limits, the DEVELOPER shall furnish CITY with a new certificate and
applicable endorsements for such policy(ies). ln the event any policy is due to expire
during the work to be performed for CITY, the DEVELOPER shall provide a new
certificate, and applicable endorsements, evidencing renewal of such policy not less
than fifteen (15) calendar days prior to the expiration date of the expiring policy.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The DEVELOPER's Pollution Liability insurance policy shall be
written on either an occurrence form, or a claims-made form. The General Liability,
Automobile Liability and DEVELOPER's Pollution Liability insurance policies shall name
CITY, its officers, officials, agents, employees and volunteers as an additional insured.
All such policies of insurance shall be endorsed so the DEVELOPER's insurance shall
be primary and no contribution shall be required of CITY. The coverage shall contain
no special limitations on the scope of protection afforded to CITY, its officers, officials,
employees, agents and volunteers. lf the DEVELOPER maintains higher limits of
liability than the minimums shown above, the CITY requires and shall be entitled to
coverage for the higher limits of liability maintained by the DEVELOPER. The General
Liability insurance policy shall also name the CITY, its officers, officials, agents,
employees and volunteers as addltional insureds for all ongoing and completed
,r(,
Page 33 ol 4
operations. The Builders Risk (Course of Construction) insurance policy shall be
endorsed to name the CITY as loss payee. Any Workers' Compensation insurance
policy shall contain a waiver of subrogation as to City, its officers, officials, agents,
employees and volunteers.
The DEVELOPER shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the CITY's Risk Manager or his/her designee
before work commences. Upon request of CITY, the DEVELOPER shall immediately
furnish CITY with a complete copy of any insurance policy required under this HOME
Agreement, including all endorsements, with said copy certified by the unden¡rriter to be
a true and correct copy of the original policy. This requirement shall survive expiration
or termination of this Agreement.
Claims-Made Policies - lf any coverage required is written on a claims-made coverage
form:
(i) The retroactive date must be shown, and must be before the effective date
of the commencement of work by the DEVELOPER.
(ii) lnsurance must be maintained and evidence of insurance must be
provided for at least 5 years after completion of the work or termination of the
HOME Agreement, whichever first occurs.
(iii) lf coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of
the HOME Agreement, or work commencement date, the DEVELOPER must
purchase extended reporting period coverage for a minimum of 5 years after
completion of the work or termination of the HOME Agreement, whichever
first occurs.
(iv) A copy of the claims reporting requirements must be submitted to CITY for
review.
(v) These requirements shall survive expiration or termination of the HOME
Agreement.
lf at any time during the life of the HOME Agreement or any extension, the
DEVELOPER, its contractor, or any of its subcontractors fail to maintain any required
insurance ín full force and effect, all work under this HOME Agreement shall be
discontinued immediately, and all payments due or that become due to the
DEVELOPER shall be withheld until notice is received by CITY that the required
insurance has been restored to full force and effect and that the premiums therefore
have been paid for a period satisfactory to CITY. Any failure to maintain the required
insurance shall be sufficient cause for CITY to terminate the Agreement. No action
taken by CITY hereunder shall in any way relieve the DEVELOPER of its
responsibilities under the HOME Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by CITY that an insurer
has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
+,1,pJ
Page 34 of 44
The fact that insurance is obtained by the DEVELOPER shall not be deemed to release
or diminish the liability of the DEVELOPER, including, without limitation, liability under
the indemnity provisions of the HOME Agreement. The duty to indemniff the CITY shall
apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the DEVELOPER. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liabili$ of
the DEVELOPER, its principals, officers, agents, employees, persons under the
supervision of the DEVELOPER, vendors, suppliers, invitees, consultants, sub-
consultants, subcontractors, or anyone employed directly or indirectly by any of them.
ln the event of a partial or total destruction by the perils insured against of any or all of
the work and/or materials herein provided for at any time prior to the final completion of
the HOME Agreement and the final acceptance by the CITY of the work or materials to
be performed or supplied thereunder, the DEVELOPER shall promptly reconstruct,
repair, replace, or restore all work or materials so destroyed or injured at his/her sole
cost and expense. Nothing herein provided for shall in any way excuse the
DEVELOPER or his/her insurance company from the obligation of furnishing all the
required materials and completing the work in full compliance with the terms of the
HOME Agreement.
lf the DEVELOPER should subcontract all or any portion of the services to be
performed under the HOME Agreement, the DEVELOPER shall require each
subcontractor to provide insurance protection in favor of CITY, its officers, officials,
employees, agents and volunteers in accordance with the terms of each of the
preceding paragraphs, except that the subcontractors' certificates and endorsements
shall be on file with the DEVELOPER and the CITY prior to the commencement of any
work by the subcontractor.
A. The above described policies of insurance shall be endorsed to
provide an unrestricted th¡rty (30) day written notice in favor of the CITY, of policy
cancellation, change or reduction of coverage. ln the event any policy is due to expire
during the term of this Agreement, a new certificate evidencing renewal of such policy
shall be provided not less than fifteen (15) days prior to the expiration date of the
expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of
cancellation, change or reduction in coverage, DEVELOPER or its contractors, as the
case may be, shall file with the CITY a certified copy of the new or renewal policy and
certificates for such policy.
B. DEVELOPER shall furnish the CITY with the certificate(s) and
applicable endorsements for ALL required insurance prior to the CITY's execution of
this Agreement. DEVELOPER shall furnish the CITY with copies of the actual policies
upon the request of the CITY at any time during the life of the Agreement or any
extension.
d
Page 35 of 44
At all times hereunder DEVELOPER shall maintain the required
insurance in fullforce and effect.
9.2 lndemnitv. DEVELOPER shall indemnify, hold harmless and defend the
CITY and each of its officers, officials, employees, agents and volunteers from any and
all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract,
tort or strict liability, including but not limited to personal injury, death at any time and
propefi damage) incurred by the CITY, DEVELOPER or any other person, and from
any and all claims, demands and actions in law or equity (including attorney's fees and
litigation expenses), arising or alleged to have arisen directly or indirectly out of
performance of this Agreement. DEVELOPER's obligations under the preceding
sentence shall apply regardless of whether the CITY or any of its officers, officials,
employees, agents or volunteers are passively negligent, but shall not apply to any loss,
liability, fines, penalties, forfeitures, costs or damages caused by the active negligence
or by the willful misconduct of the CITY or any of its officers, officials, employees,
agents or volunteers.
A. This section shall survive termination or expiration of this
Agreement.B. This financing is non-recourse to any public housing property (real
or personal property including all public housing assets or income),
or disposition proceeds approved pursuant to Section 18 of the
United States Housing Act of 1937 (unless explicitly permitted by
HUD in the Section 18 approval letter).
9.3 Propertv lnsurance. Upon acquisition of the property, the DEVELOPER
shall pay for and maintain in full force and effect, throughout the remaining life of this
Agreement, a policy(ies) of property insurance acceptable to the CITY, covering the
Project premises, with limits reflective of the value of the Project premises upon
issuance of the Certificate of Completion, or substantial completion of the Project
referenced in this Agreement, including fire and Extended Comprehensive Exposure
(ECE) coverage in an amount, form, substance, and quality as acceptable to the CITY's
Risk Manager. The CITY shall be added by endorsement as a loss payee thereon.
9.4 Bond Oblioations. DEVELOPER shall obtain, pay for and deliver good
and sufficient payment and performance bonds in a form acceptable to the CITY from a
corporate surety, admitted by the California lnsurance Commissioner to do business in
the State of California and Treasury-listed, in a form satisfactory to the CITY and
naming the GITY as Obligee.
A. The "Faithful Performance Bond" shall be at least equal to 100% of
the DEVELOER's estimated construction costs as reflected in the DEVELOPER's pro
forma budget, attached hereto as EXHIBIT uC", to the guarantee faithful performance of
the Project, within the time prescribed, in a manner satisfactory to the CITY, consistent
with this Agreement, and that all material and workmanship will be free from original or
developed defects.
"f
Page 36 of 44
B. The "Payment Bond" shall be at least equal to 100% of construction
costs approved by the CITY to satisfy claims of material supplies and of mechanics and
laborers employed for this Project. The bond shall be maintained by DEVELOPER in
full force and effect until the Project is completed and until all claims for materials and
labor are paid and as required by the applicable provisions of Chapter 7, Title 15, Part
4, Division 3 of the California Civil Code.
C. The "Material and Labor Bond" shall be at least equal to 100% of
the DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro
forma budget, attached hereto as EXHIBIT 'C', to satisff claims of material supplies
and of mechanics and laborers employed for this Project. The bond shall be maintained
by the DEVELOPER in full force and effect until the Project is completed, and until all
claims for materials and labor are paid, released, or time barred, and shall otherwise
comply with any applicable provision of the California Code.
D. ln lieu of the bonds required above, the CITY, in its sole discretion,
may accept from the DEVELOPER an lrrevocable Standby Letter of Credit issued with
the CITY named as the sole beneficiary in the amounts(s) of the bonds required above.
The Standby Letter of Credit is to be issued by a bank, and in the form, acceptable to
the CITY. This lrrevocable Standby Letter of Credit shall be maintained by the
DEVELOPER in full force and effect until the CITY is provided with a recorded Notice of
Completion for the construction of the Project and shall be subject to and governed by
the laws of the State of California.
ARTICLE IO. DEFAULT AND REMEDIES
10.1 Events of Default. Each of the following shall constitute an "Event of
Default" for purposes of this Agreement after the cure period in Section 10.2 has
expired without a cure:
A. DEVELOPER's use of HOME Funds, for costs other than Eligible
Costs or for uses not permitted by the terms of this Agreement;
B. DEVELOPER's failure to obtain and maintain the insurance
coverage as required under this Agreement;
C. Except as othenrise provided in this Agreement, the failure of the
DEVELOPER to punctually and properly perform any other covenant or agreement
contained in this Agreement including without limitation the following: (1) the
DEVELOPER's substantial deviation in the construction of the Project from the Final
Plans/CUP, without the CITY's prior written consent; (2) the DEVELOPER's use of
defective or unauthorized materials or defective workmanship in pursuit of the Project;
(3) the DEVELOPER's failure to commence or complete the Project, unless delay is
permitted under Section 7 .19 of this Agreement; (4) the cessation of work on the Project
for a period of more than fifteen (15) consecutive days (other than as provided at
Section 7.19 ol this Agreement) prior to submitting to the CITY, pursuant to Section
Page 37 oÍ 44
,,!
7.20, certification that the Project is complete; (5) any material adverse change in the
financial condition of the DEVELOPER or the Project that gives the CITY reasonable
cause to believe that the Project cannot be completed by the Completion Date
according to the terms of this Agreement; (6) the DEVELOPER's failure to remedy any
deficiencies in record keeping or failure to provide records to the CITY upon the CIW's
request; (7) the DEVELOPER's failure to substantially comply with any federal, state or
local laws or applicable CITY restrictions governing the Project, including but not limitedto provisions of this Agreement pertaining to equal employment opportunity,
nondiscrimination and lead-based paint;
D. Any representation, warranty, or certificate given or furnished by or
on behalf of the DEVELOPER shall prove to be materially false as of the date of which
the representation, warranty, or certification was given, or that the DEVELOPER
concealed or failed to disclose a material fact to the CITY, provided, however, that if any
representation, warranty, or certification that proves to be materially false is due merely
to the DEVELOPER's inadvertence, the DEVELOPER shall have a thirty (30) day
opportunity after written notice thereof to cause such representation, warranty, or
certification to be true and complete in every respect;
E. The DEVELOPER shall file, or have filed against it, a petition of
bankruptcy, insolvency, or similar law, state or federal, or shall file any petition or
answer seeking, consenting to, or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief, and such petition
shall not have been vacated within ninety (90) days; or shall be adjudicated bankrupt or
insolvent, under any present or future statute, law, regulation, under state or federal law,
and such judgment or decree is not vacated or set aside within ninety (90) days;
F. The DEVELOPER's failure, inability or admission in writing of its
inability to pay its debts as they become due or the DEVELOPER's assignment for the
benefit of creditors;
G. A receiver, trustee, or liquidator shall be appointed for the
DEVELOPER or any substantial part of the DEVELOPER's assets or properties, and
not be removed within ten (10) days;
H. The failure of DEVELOPER to cause completion of the Project prior
to the completion date identified in Exhibit B.
¡. DEVELOPER's breach of any other material condition, covenant,
warranty, promise or representation contained in this Agreement not otherwise identified
within this Section;
J. Any substantial or continuous breach by the DEVELOPER of any
material obligation owed by the DEVELOPER imposed by any other agreement with
respect to the financing, of the Project, whether or not the CITY is a party to such
agreement after expiration of all notice and cure periods contained within such
document.
Page 38 of 44
\+D
10.2 Notice of Default and Opportunitv to Cure. The CITY shall give written
notice to the DEVELOPER of any Event of Default by specifying: 1) the nature of the
event or deficiency giving rise to the default; 2) the action required to cure the
deficiency, if any action to cure is possible; and 3) a date, which shall not be less than
the lesser of any time period provided in this Agreement, or thirty (30) calendar days
from the date of the notice, by which such deficiency must be cured, provided that if the
specified deficiency or default cannot reasonably be cured within the specified time, the
DEVELOPER shall have an additional reasonable period to cure so long as ¡t
commences cure within the specified time and thereafter diligently pursues the cure in
good faith. The CITY acknowledges and agrees that the DEVELOPER shall have the
right to cure any defaults hereunder and that notice and cure rights hereunder shall
extend to any and all partners of the DEVELOPER that are prior identified in a writing
delivered to the CITY in the manner provided in this Agreement.
Prior to declaring or taking any remedy permitted under Loan Documents, the
DEVELOPER's limited partners shall have an additional period of not less than th¡rty
(30) days to cure such alleged default. Notwithstanding the foregoing, in the case of a
default that cannot with reasonable diligence be remedied or cured within thirty (30)
days, the DEVELOPER's limited partners shall have such additional time as reasonably
necessary to remedy or cure such default, but in no event more than ninety (90) days
from the expiration of the initial th¡rly (30) day period above, and if the DEVELOPER's
limited partners reasonably believe that in order to cure such default, the
DEVELOPER's limited partners must remove one or both of the DEVELOPER's general
partners in order to cure such default, the DEVELOPER's limited partners shall have an
additional (30) days following the effective date of such removal to cure such default.
10.3 Remedies Upon an Event of Default. Upon the happening of an Event of
Default by the DEVELOPER and a failure to cure said Event of Default within the time
specified, the CITY's obligation to disburse any undisbursed Funds shall terminate. The
CITY may also at its option and without notice institute any action, suit, or other
proceeding in law, in equity or otherwise, which it shall deem necessary or proper for
the protection of its interests and may without limitation proceed with any or all of the
following remedies in any order or combination that the CITY may choose in its sole
discretion:
A.
DEVELOPER;
Terminate this Agreement immediately upon written notice to the
B. Bring an action in equitable relief (1) seeking specific performance
by the DEVELOPER of the terms and conditions of this Agreement, and/or (2) enjoining,
abating or preventing any violation of said terms and conditions, and/or (3) seeking
declaratory relief; and
C. Pursue any other remedy allowed by law or in equity or under this
Agreement.
Page 39 of 44
,l\
ARTICLE II. GENERAL PROVISIONS
Without waiver of limitation, the parties agree that the following general provisions shall
apply in the performance hereof:
11.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made in writing and signed by the parties hereto.
The CITY recognizes that other Project funders and equity investors may require
revisions to the Loan Documents to be consistent with their funding and investing
requirements. The CITY agrees to reasonably consider and negotiate as to any
reasonable amendments to this Agreement to address such requirements, subject to
any necessary City Council approval and approval as to form by the City Attorney.
11.2 Attornev's Fees. lf either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party will be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
11.3 Bindino on All Successors and Assigns. Unless otherwise expressly
provided in this Agreement, all the terms and provisions of this Agreement shall be
binding on and inure to the benefit of the parties hereto, and their respective nominees,
heirs, successors, assigns, and legal representatives.
11.4 Counterparts. This Agreement may be executed in counterparts, each of
which when executed and delivered will be deemed an original, and all of which
together will constitute one instrument. The execution of this Agreement by any party
hereto will not become effective until counterparts hereof have been executed by all
parties hereto.
11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nor any
act of the CITY or of the DEVELOPER, or of any other person, shall in and by itself be
deemed or construed by any person to create any relationship of third party beneficiary,
or of principal and agent, of limited or general partnership, or of joint venture.
11.6 Discretionary Governmental Actions. Certain planning, land use, zoning
and other permits and public actions required in connection with the Project including,
without limitation, the approval of this Agreement, the environmental review and
analysis under NEPA, CEQA or any other statute, and other transactions contemplated
by this Agreement are discretionary government actions. Nothing in this Agreement
obligates the CITY or any other governmental entity to grant final approval of any matter
described herein. Such actions are legislative, quasi-judicial, or otherwise discretionary
in nature. The CITY cannot take action with respect to such matters before completing
the environmental assessment of the Project under NEPA, CEQA and any other
applicable statutes. The CITY cannot and does not commit in advance that it will give
final approval to any matter. The CITY shall not be liable, in contract, law or equity, to
the DEVELOPER or any of its executors, administrators, transferees, successors-in-
Page 4O ol 4
q7
interest or assigns for any failure of any governmental entity to grant approval on any
matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the Parties'
complete execution following City Council approval.
11.8 Entire Agreement. This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
11.10 Expenses lncurred Upon Event of Default. The DEVELOPER shall
reimburse the CITY for all reasonable expenses and costs of collection and
enforcement, including reasonable attorney's fees, incurred by the CITY as a result of
one or more Events of Default by the DEVELOPER under this Agreement.
11.11 Governins Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this
Agreement, including execution, interpretation, performance, and enforcement. Venue
for filing any action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headinqs. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
11.13 Interpretation. This Agreement in its final form is the result of the
combined efforts of the parties. Any ambiguity will not be construed in favor or against
any party, but rather by construing the terms in accordance with their generally
accepted meaning.
11.14 No Assionment or Succession. The DEVELOPER shall not sell, lease,
transfer, assign or othenrise dispose of all or any material part of any interest it might
hold in the Property without the prior written consent of the CITY, which consent shall
not be unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior
written notice to the CITY, the DEVELOPER shall be permitted to assign its rights and
obligations under this Agreement with respect to the Project without the CITYs consent.
11.15 No Third-Partv Beneficiary. No contractor, subcontractor, mechanic,
materialman, laborer, vendor, or other person hired or retained by the DEVELOPER
shall be, nor shall any of them be deemed to be, third-party beneficiaries of this
Agreement, but each such person shall be deemed to have agreed (a) that they shall
look to the DEVELOPER as their sole source of recovery if not paid, and (b) except as
otherwise agreed to by the CITY and any such person in writing, they may not enter any
claim or bring any such action against the GITY under any circumstances. Except as
provided by law, or as otherwise agreed to in writing between the Clry and such
Page 41 of 4
e
person, each such person shall be deemed to have waived in writing all right to seek
redress from the CITY under any circumstances whatsoever.
1 1.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising
any right under this Agreement shall operate as a waiver of such right, nor shall any
single or partial exercise of any such right preclude any further exercise thereof or the
exercise of any other right. No waiver of any provision of this Agreement or consent to
any departure by the DEVELOPER therefrom shall be effective unless the same shall
be in writing, signed on behalf of the CITY by a duly authorized officer thereof, and the
same shall be effective only in the specific instance for which it is given. No notice to or
demand on the DEVELOPER in any case shall entitle the DEVELOPER to any other or
further notices or demands in similar or other circumstances, or constitute a waiver of
any of the CITYs right to take other or further action in any circumstances without notice
or demand.
11.17 Nonreliance. The DEVELOPER hereby acknowledges having obtained
such independent legal or other advice as it has deemed necessary and declares that in
no manner has it relied on the CITY, it agents, employees or attorneys in entering into
this Agreement.
11.18 Notice. Any notice to be given to either party under the terms of this
Agreement shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties.
lf to the CITY: City of Fresno
Department and Resource Management Department
Housing and Community Development Division
Attention: Manager
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
lf to DEVELOPER: Parc Grove Commons Northwest, LP
Attention : Executive Director
c/o Housing Authority of the City of Fresno
1331 Fulton Mall
Fresno, C493721
With a copy to: Wells Fargo Affordable Housing
Gommunity Development Corporation
MAC D1053-170
301 South College Street
Charlotte, NC 28288
Attn.: Dlrector of Tax Credit Asset Management
1{
Page 42 ol M
And Klein Hornig LLP
101 Arch Street, Suite 1101
Boston, MA 02110
Attn: Judy K. Grosby
11.19 Precedence of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or attachment hereto or document incorporated
herein, the terms and conditions of the body of this Agreement will control.
11.20 Recordino of Documents. The DEVELOPER agrees to cooperate with the
Clry and execute any documents required, promptly upon the CITY's request, the
Deed of Trust, and any other documents/instruments that the CITY requires to be
recorded, in the Official Records of Fresno County, California, consistent with this
Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this Agreement
shall be cumulative and in addition to those otherwise provided by law.
11.22 Severability. The invalidity, illegality, or un-enforceability of any one or
more of the provisions of this Agreement shall not affect the validity, legality, or
enforceability of the remaining provisions hereof or thereof.
ilt
lil
ilt
Page 43 oÍ 4
q4
lN WITNESS WHEREOF, the parties have
California, the day and year first above written.
executed this Agreement in Fresno,
CITY OF FRESNO, a Municipal Corporation
By
(Attach notary certificate of acknowledgment)
ATTEST:
WONNE SPENCE, CMC
City Clerk
By:
Date:
APPROVED AS TO FORM:
DOUG T. SLOAN
City Attorney
Date:
Parc Grove Commons Northwest, LP, a California limited paftnership
By: S lifornia non-profit public benefit corporation
Its:
By:
By:
Attachments:
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
EXHIBIT D:
EXHIBIT E:
EXHIBIT F:
EXHIBIT G:
EXHIBIT H:
By: Parc Grove Commons Northwest AGP, LLC, a California limited liability
company
Its: Administrative General Partner
By:Aut ity of the City of Fresno, California, a public body
co
Date:
PROPERTY DESCRIPTION
PROJECT DESCRIPTION AND SCHEDULE
BUDGET
ss-YEAR CASH FLOW STATEMENT
CERTI FICATE OF COMPLETION
PROMISSORY NOTE
DEED OF TRUST
DECLARATION OF RESTRICTIONS
Page 44 of 44
q(/
CAI.IFORNIA ATL.PURPOSE ACKNOWLEDGMENT
State of California
County of Frtrno
On before me,
personally appeared
Name(s) of Signe(s)
Place Notary Seal and/or Stamp Above
who proved to me on the basis of satisfactory
evidence to be the person(e) whose nameþ) is
subscribed to the within instrument and acknowledged
to me that he/ executed the same in
his/ authorized capacity(ies), and that byhi signature(s) on the instrument the
personþ), or the entity upon behalf of which the
personþ) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and officialseal.
Signature:
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another docunlent.
Description of Attached Document ,'lf o{Írttoo, tloæf¡ç-¡ttt*t PtthtrttþcOtt'tÉ) lflu'!^f
or Type of Document:
Number of Pages:
Signe(s) Other Named Above:
Capacity(ies) Clai Signer(s)
Signer's Signer's Name:
n Corporate Officer - Title(s):
n lndividual
icer - Title(s):
fl Partner-n Limited n General
n Attorney in Fact
E Trustee
Partner-n Limited n General
n Trustee
tr Guardian or Conseruator n Guardian or
n Other:n Other:
Signer_Signer ls Representing:
Top of thumb here
@ 2008 National Notary Association. 9350 De Soto Ave , P O Box 2402 . Chatsworlh, CA 91313-2402. M NationalNolary.org ltem #5907 Reorder: Call Toll-Free 1-800-876-6827
.{1
CALIFORNIA
ALL.PURPOSE ACKNOWLEDGMENT
State of California
County of FRESNO
On Aueust 1, 2013, before me, TIFFANY B. MANGUM, Notary Public, personally
appeared, PRESTON PRINCE,
who proved to me on the basis of satisfactory evidence to the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrurnent
the person(s), or the entity upon behaif of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERruRY under the laws of the State of California that the
foregoing paragraph is true and correct.
Commission # .l956405
l'¡otary Public . California
Frssno Counly
(Notary Seal)
my hand and official
Description of the Attached Document (optionol)
Parc Grove Commons North West closing
Title or description of øttoched document
Number of Pages Document Date
q6
EXHIBIT ..A''
PROPERTY DESGRIPTION
Page I of I
Exhibit A - Property DescritPion
PHASE II
LEGAL DESCRIPTION
The followlng descrrbed property rn the Crty of Fresno, County of Fresno, State of California,
Parcel 1:
All that poÉion of the North parcel of the land conveyed by the Grant Deed recorded March
18,2009 as Document No. 2009-0036380, Official Records Fresno County, being a portion of
Parcel 1 of Parcel Map No. 69-15, according to the map thereof recorded ln Book 1 of Parcel
Maps at Pate 69, Freåno County
'Records,
situated in the Southeast quarter of Section 27,
Township 13 South, Range 20 EasÇ Mount Diablo Base and Meridian, according to the
Official United States Government Township Plat thereof, In the City of Fresno, County of
Fresno, State of California, described as follows:
BEGINNING at a point on the North line of said Parcel 1, said point being South 89059'04"
West, 544.97 feet from the Northeast corner of said Parcel 1; thence South 00000'16" West'
95.81 feeti thence South 89o59'44'EasÇ 48.24 feet to a point on the easement l¡ne
described as Parcel A of the Declaration of Access and Utility Easement recorded January 28,
201O as Document No. 2010-0010439, Official Records Fresno County; thence along said
easement lÍne of said Document No. 2O1O-0010439, the following two coulses:
1) continuing South 89059?4" East, 4.36 feet to the beginning of a tangent curve concave to
the Southwest having a radius of 24.50 feeÇ thence
2) Southeasterly, 7.05 feet along said curve through a cent¡al angle ol16o28'47"; thence
South 00000'16'llvest, t97.z2feet on a non-tangent line to last said curve and leaving the
easement line of said Document No. 2010-0010439, to a point on the Southerly boundary of
the ltlortlr parcel of the land conveyed by said Document No. 2009-0036380; thence along
the Southerly boundary of the land oonveyed by said Document No. 2009-0036380, the
followi ng fourteen oounres:
1) Soutlr 89058'20'West, 13.83 feet; thence
2) South O0oO1'39" East,8.O4 feeÇ thence
3) South 89058'20'West, 161.58 feeÇ tfience
4) South 00001?0'East, 13.3O feeÇ thence
5) South 89058'20" WesÇ 29.58 feeÇ thence
6) South OOoOI?O'East, 185.49 fee$ thence
7) South 0OolO?3" WesÇ 80.34 feeti thence
8) South 89058'20'Westr 78.08 feeÇ thence
9) South 0OoOl?O" East,75.51 feeÇ thence
1O) South 89058'20" WesÇ L94,25 feeÇ thence
11) South 1305236'West, 2.87 feeÇ thence
12) South 89046'33'West, 2l7.LO feeÇ thence
13) NoÉh 00o01'4O"WesÇ 24.1L fee$ tience
14) South 89058'20" Wes! 66.81 feet to the Southwest corner of the f{orth parcel of the
land conveyed by said Document No. 2009-0036380, said Southwest corner also being a
point on the West line of Parcel I of said Parcel Map No. 69-15; thence Notth 00004'00"
WesÇ 255.36 feet along the West line of said Parcel I to the Southwest coÌner of Parcel 2 of
said Parcel Map No. 69-15; thence along the Southerly and Easterly boundary of said Parcel
2'the following four counses:
1) l{oÊh 89059'04'EasÇ 150.88 fee$ thence
2) North O0oO4'00" Westr 90.99 feeÇ thenæ
3) North 89059'04'Eastr 74.94 feeÇ thence
4) North OOoO4OO'West, 289.97 feet to the Northwest corner of said Paroel 1; thence NoÉh
89059'04" Eastr 477.44 feet along the North line of said Parcel 1, to tlre POINT OF
BEGINNING.
Contains an area oÍ 7.73 actrEs, more or less.
' Bäsis of Bearings for this description is the West line of Parcel 1 of Parcel Map No. 69-15,' ac@rding to the map thereof recorded in Book 1 of Parcel Maps at Page 69, Fresno County
Records, Taken to be North 00o 04'O0" West.
Being the land conveyed in Grant Deed iecorded December 6, 2Ot,2 as Doc¡¡ment No. 2Ot,2-
0176596, Ofñcial Records Fresno County.
Parcel2:
Acress and.Utility Easements conta¡ned in that certain Instrument entitled'Amendment and
Restatemen\ of óeclaratlon of Access and Utility Easement and Reciprocat Easement
Agreemento recorded February zo,zotSas rnstrument No. zoß- OO A7 ql lê
of Official Records of Fresno County, California.
Parcel 3:
The nonexclusive rights to use the Common A:eas contained in that certain Instrument
entitled "Facilities Reciprocal Use Agreement" recorded February 20, 20ß as Instrument No.
20ß- OO el ql I ofofficialRecordsofFresnocounty,Gatifornia.
Paræ|4:
An Easement for ingress and egress to maintain that certain Block Wall as oonveyed per
Document entitled "Àgreement to Provide Masonry Wall Between Residential and
Commercial Property" recorded April 26, 1983 as Instrument No. 83035820 of Official
Records of Fresno County¡ California over that portion of Parcel 2 of Parcel Map No. 69-15, in
the CiÇ of Fresno, County of Fresno, State of California according to the map thereof
recorded in Book 1 Page 69 of Parcel Maps, in the office of the County Recorder of said
County, the exact location or width of said Easement is not disclosed by the Document.
EXHIBIT "B''
PROJECT DESCRIPTION AND SCHEDULE
Parc Grove Commons Northwest will consist of 148 new construction units (36 1-8d.,
60 2-8d., 41 3-Bd. and 11 4-Bd.) of which one (1) will be reserved for the on-site
Manager's Unit, all of which to be built on a total of 7 .73 acres. The newly
constructed units can be rapidly absorbed as there is a severe shortage of rental
units affordable to households at 60% AMI and below. Twenty-six (26) of the units
will be floating HOME-assisted affordable residential units.
The floating HOME-assisted units are as follows:
HOME.ASSISTED UNITS
Percent of Median
lncome
Two-Bedroom Units Three-Bedroom Units
60% or below 14 12
Total 14 12
The twenty-six (26) HOME-assisted units will be reserved as Very Low and Low-
lhcome Housing for a period of fifty-five (55) years.
HOME Funds will be made available by the City of Fresno, CA for payment of
construction, take out financing/permanent financing for eligible costs not to exceed
the lesser of Four Million Five Hundred Thousand dollars and 00/100
($4,500,000.00), which is the aggregate HOME Program per unit cap (24 C.F.R.
92.250) for the twenty-six (26) HOME-assisted Units as determined by the City of
Fresno, as needed, for HOME eligible project development costs.
PROJECT SCHEDULE
Construction Financing
Closed
February 22,2013
Construction Start Februarv 22.2013
Construction Completion June 1.2014
Lease Uo Comolete April 1 .2015
Pagelofl (ì
)
Acqu¡sition Costs:
Purcha8e Pr¡ce
L¡ens
Title/Record¡nglEscror^r/Legål- Acq
Extens¡on Paynoil
Oth€r:
SUBTOTAL
Construc-tion
Basic Construc{¡on Contract
Bond Premium
Bu¡ldal,s Risk lnsurance
Contruc{¡on OH, P, GC
Si(e lmprovements/Landscapê
Con3trucl¡on Cont¡ngency
Demolition/Abat€ment
Other: Of Site lmprovem€nts
SUBTOTAL
Devêlopment
Apprâi8el
Arch'rteclurel
Environmêntel Asse6smsnt
Geotêchnical Study
SurvêyÆngin€€ring
Lsgal
Const Closing
Perm Closing
Organizelion of Parln€rship
Syndication
Lender Counsel
Bond Couns€l
Syrìdic€tion Consultant
D€velop€r Foe
Projec-t M€nagemont
TCAC App/Monitoring Fe€
CDLAC end CDIAC Fêes
Bond lssuer Foê
other consultenb: Mafket study
Oh€n Plsnning Consultant
Other,Misc: Prevåiling Wage Compl¡ancê
SUBTOTAL
Olher D€velopm€nt
Rêal Estâte Tåx€s during AcCconst
lnsurancê during construcrlion
Rolocat¡on
B¡dd¡ng Cost!
Permitô, Feos E Hookups
lmpact/Mitigetion F6€s
Sofr Cost Conlingency
PrêDevelopmont lntersst
clos¡ng, Ïnle & Rêcording costs - const
Closing, Title & Recording Cosls - Psrm
CoßtnJc,t¡on loan lnterast
Construc'tlon lnsp€c'tion Fe€s
Other: HA Loan FeoE
Construc-tion Loân lnterêst - HA Loens
Lendgr Originatior Fê€s
Londêr Exp€ns€s
Aud¡v Cost Cortilication
Fumish¡ngs
Markoting/Leasing Exp€nses
Rent Up Accounl
Capitaliz€d Op€rating Rsserve
R€placêmênt Resêrves:
SUBTOTAL
Tolal Development Costs
EXHIBIT "C"
PROJECT BUDGET
t\
4.500.00(500.00(5{X)10.90ÍI.75i
?9.44"535.50C 1.000 0
996,17
60.(xx
5.455
1
95.41S
7ø.22t
'148.574
25.00(
15.00(
20
62
2.000.
172.711
30.00(
l00,oo1
45()l ¡15
80.00(6{
3
71
7ø4,50(
30s 7
89.:
't0.81f 9.1&
956
73.
205ør
2',12.72i
35(
250.00(
570.0O(
4,500,æ0 6,600,000 2,A29/42 1,200,000 18,635,372
EXHIBIT "D''
ss-YEAR CASH FLOW STATEMENT
ç'\
Parc Grove Commons Northwest - 55 YEAR CASH FLOW ANA¿YS|S
Schedule Rental lncome
Section 8 Subsidy
Vacancy Loss
Miscellaneous lncome
EFFECTIVE GROSS INCOME
2.5% 5 t,064,942 S1,091,566 S1,119,335 51.,147,798 57,L76,971 5r,206,877 $L,237,529 5t,268,947 S1,301,1512.0%s 292,690 s 29S,544 S S04,SrS S gr0,SOS S 316,817 S 323,1S3 5 SZS,0r0 S 336,209 S 342,933-7.s%s (9s,034)s (s7,308)s (ee,66s)5 (102,088)s (104s6s)S (107,102)S (109,700)S (112,361)S (11s,086)ssssssss
s
s
s
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Partner Management Fee
TOTAT EXPENSES & RESERVES
3.s% s
3.0% 5
3.0% s
3.0% s
s
5f.,422,929 3t,qsz,u6 51,492,79s S
663,150 s 686,360 s 710,383 73s,246 s 760,980 s ßt,øM s erS,r8r 5 A+S,ttZ $ eß,ZqZ
44,4OO5 45,7325 47,LO4 S ¿e,SrZS qg,glSS 5r,472 S 53,016S 54,606S 56,2¿55,000ss,rs0s5,3055s,46/.s5,628s5,796$S,920s6,149s6,334
30,000s 30,9005 st,¿zts szlaz s ss,z6ss Eqlßs zs,szz s 36,8s6s 38,003
742,550s768,1425794,618$822,009$850,345S879,661$g0S,gSSS941,364S973,E23
NET OPERATING INCOME 538,879 s 543,268 s 547,457 s 551,431 $ 555,175
CCRC Loan A
CCRC Loan I
Fresno HA Loan ll
NET CASH FTOW AFTER HDS
HRFC Loan lll (S2.8 M)
City of Fresno HOME Loan (54.5 M)
Disbursement to Owner(s)
NET CASH FIOW AFTER DISIRIEUTION
23,Ot6 s 24,86L S
34,s24 s 37,29t s-s-s
26,821 s 28,719 s
40,232 s 43,079 s-ss
30,549 s SZ,SO+ s
45,823 s 48,456 s-s-s
33,980 s 35,569 s
50,969 s SE,SS¿ s-ss
s
s
s
$
409r 5
60% s
0%s
s
235,7225 235,7225 235,7225 235,7225 235,7225 235,7225 235,7225 235,7225 235,722
165,507s 165,s07s 165,507s 16s,s07s 16s,s07s 16s,s07s 16s,s07s 16s,s07s 165,507
6r,2795 61,2795 67,2795 6t,2795 6L,2795 6L,2795 61,2795 6!,2795 61,279
57,540 s 62,151 s 67,054 s 71,798 s 76,37t s 80,760 s 84949 s 88,923 5 92,667
37,067
55,600
DISTRIBUTION OF AVAILABLE CASH FLOW
Pdrc Grove Commons Northw,
INCOME FROM HOUSING UNITS lnflation Year 10 Year 11 Year 12 Year L3 Year 14 Year 15 Year 16 Year 17 Year 18 Year 19
Schedule Rental lncome
Section 8 Subsidy
Vacancy Loss
Miscellaneous lncome
2.5%51,334,t6O 5L,367,994 5t,4O2,674 5L,438,22L 5r,474,656 S1,512,003 S1,550,283 S1,589,520 57,629,738 S1,670,961
2.O%5 349,792 5 356,787 S 363,923 S 371,202 5 378,626 S 386,198 5 393,922 S 401,801 S 409,837 S 418,033
-7.O%s (1L7,8771 s (120,73s) s (123,662) 5 (126,660)s (12e,730) s (132,874) s (136,094) s (139,392) 5 G42,77O1 s (146,230)sssssSssss
EFFECTIVE GROSS INCOME
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Pertner Manegement Fee
TOTAT EXPENSES & RESERVES
3.5% s 903,80s s gSS,¿gg s gse,rzs s1,002,065 s1,037,137 57,073,437 sr,flr,OOg s1,149,893 sr,rSO,rSS sL,23t,7943.f¡%5 s7,932 S Sg,eZO S 61,460 S 63,304 S 6s,203 S 67,159 S 69,174 S 7L,249 5 Z¡,¡eS S 7s,s88
3.0%s 6,524 5 6,720 S 6,921 $ 7,129 S 7,343 S 7,s63 5 t,tgO S S,OZ¿ 5 e,ZSq S 8,s12
3.0%s 39,143 5 40,377 5 41,527 S 42,773 S 44,056 S 45,378 S 46,739 S 48,141 S 49,585 S 51,073
$ L00¿404 5l-,012,l46 5t,o7e,o8t 5t,tLs,z7L S 1,153,739 S 1,193,s37 5t,234,71o çL,277,3o7 S 1,321,32s 5L,366,967
NET OPERATING IÍ{COME 561,901
CCRC Loan A
CCRC Loan B
Fresno HA Loan ll
NET CASH FTOW AFTER HDS
HRFC Loan lll (S2.8 M)
City of Fresno HoME Loan (54.5 M)
Disbursement to Owner(s)
NET CASH FLOW AFTER DISTRIBUTION
s 235,722 5 235,722 5s 16s,so7 s 16s,so7 s5 6t,279 S 6r,279 S
s 96,163 s 99,393 s
38,465 s 39,757 s
57,698 s 59,636 5-s-s
235,722 5 235,722 S
165,507 s 165,507 s
6t,279 s 61,279 s
102,340 s 104,984 s
40,936 5 +r,gg+ S
6L,404 s 62,991 s-s-s
42,922 s 43,7L3 s
64,383 s 65,569 s-ss
44,357 5 44,845 S
66,535 $ 67,268 5-ss
45,168 5 45,316
67,753 $ 67,974-s
235,722 5 235,722 5 235,722 5 235,722 5 235,722 S 235,722
165,507 s 165,507 s 165,507 s 165,507 s 165,507 s 165,507
61,2795 67,2795 6t,2795 6L,2795 A\Zlg5 6L,279
107,305 s 109,282 $ rrO,aSZ s 112,113 s tt2,92t s 113,290
40% s
60% 5
0%s
$
,b
DISTRIBUTION OF AVAILABLE CASH FLOW
Pdrc Grove Commons Northw,
Schedule Rental lncome
Sect¡on I Subsidy
Vacancy Loss
Miscellaneous lncome
2.5%5t,7r3,215 51,756,526 S1,800,919 5L,846,422 S1,893,062 S1,940,869 S1,989,870 S2,o4o,og7 S2,091,580 52,L44,3492.O%s 426,394 5 434,922 S 443,620 S +SZ,CSS S +er,S+¡ 5 qtO,ZlS S 480,189 S 489,793 S 499,589 S sog,s8o
-7.O%sí4e,7731 s(1s3,401) s(1s7,118) S(150,924) 5Q64,8221 S(168,81s)Slt72,s}4lSl777,Os2lS(181,382) S(18s,77s)-sss
L,989,837 s 2,038,046 s2,O87,421 s
ssssss
EFFECTIVE GROSS INCOME s 52,t89,789 52,242,827 52,297,tss 52,3s2,799 52,409,196 S
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Partner Management Fee
TOTAT EXPENSES & RESERVES
3.5%sI,274,9O7 s1,319,528 sL,36s,7t2 s1,4L3,5t2 S1,462,98s S1,514189 S1,567,186 5t,622,O97 S1,678,809 57,797,s673.0%s 77,8s6 5 S0,rSr S eZ,SgZ S SS,OZS 5 87,627 S 90,2s6 S 92,964 S gS,ZSg S 9S,62s S 101,s843.0%s 8,768 5 9,031 S S,gOr S g,Sgr S 9,868 5 10,164 S 10,469 S 10,783 S rr,rOe S rr,¿¿O3.0%s 52,60s s s4,183 s 55,809 s 57,483 S Sg,ZOe S 60,984 S 62,813 S 64,698 S 66,639 S 68,638
S1414135 S1,462,934 S1,513,419 S1,5G5,Gs1 S1,619,688 91,675,593 5t,733,492 gL,rgt,27t S1,855,129 5l-,glrg,22g
NET OPERATING INCOME $ s70,095 s s67,234 s SAttZS s ss9,s27 s
CCRC Loan A
CCRC Loan B
Fresno HA Loan ll
NET CASH FIOW AFTER HDS
HRFC Loan lll (S2.8 M)
City of Fresno HOME Loan (S4.S fU¡
Disbursement to Owner(s)
NET CASH FIOW AFTER DISTRIBUTION
45,277 s 45,042 s
67,916 s 67,s63 s-ss
44,598 s 43,933 s
66,896 s 5s,899 5-ss
43,035 s 41,890 s
64,552 s 62,836 s-ss
40,486 s 38,808 s
60,729 s SS,Zrr s-ss
36,840 5 34,567
55,260 s 51,851-s
5 235,7225 235,7225 235,7225 235,722$ 235,7225 23s,7225 235/225 235,7225 295,7225 235,722
s165,507s155,507s165,507s165,507s165,507s165,507S165,507S165,507S155,507S165,507
5 6L,2795 6t,2795 6L,2795 61,2795 6r,2795 67,2795 6L,2795 6L,2795 6L,2795 6t,279
s 113,193 s rrZ,eO¿ s 111,494 s 109,832 s 10¿5S7 s tú,726 S 101,215 $ 97,019 S 92,099 S 86,418
40.fÁ5
60% 5
0%s
s
. (-..
çr
DISTRIBUTION OF AVAILABLE CASH FLOW
Parc Grove Commons Northw,
Schedule Rental lncome
Section 8 Subsidy
Vacanry Loss
Miscellaneous lncome
EFFECTIVE GROSS INCOME
2.5%52,t98,438 52,253,879 52,3L0/O6 52,368,953 52,428,657 S2,489,854 S2,552,580 52,6L6,875 52,682,776 52,750,3262.Ms 5t9,772 s 530,167 5 54O,77L s SSr,SeS s 562,6t8 s SZg,eZO s 585,348 s 597,055 s 608,996 s øZt,tl'
-7.O%s (l9Û,27sl s (194,883) s (199,603) s (204,438)s (209,38e)5 et4,46!l s (219,6ss)s 1224,97s1 51230,424l, S (236,00s)sssSsss-sss
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Partner Management Fee
TOTAL EXPENSES & RESERVES
NET OPERATING INCOME
2,918,273 $2,988,954 s3,061,3¡t8 $Er¡S,¿gS
3.5%s7,798,382 s1,861,325 5L,926,472 s1,993,898 s2,063,685 52,r35,9L4 $2,2tO,67! 52,288,044 52,368,L26 S2,45t,OrO3.0%s 704,632 5 tO7,77O s 111,004 s U4,334 s LL7,764 s L21,297 s 124,935 s L28,684 5 !32,544 S 136,5203.0%s Lt,783 s r2,L36 s 12,500 s 12,875 s t3,262 s 13,660 s 14,069 s U,qgt 5 t4,926 $ L5,374
3.0%s 70,697 s n,ets 5 7s,002 5 77,252 s 79,s7O 5 AT,SSZ 5 g+,qß S SS,g¿S S 39,557 S SZ,ZU
$ 1,985,493 S 2,054050 $2,124,928 S 2,198,360 52,274,280 52,9s2,827 52,494,091 $2,s19,':67 $ 2,605,1s3 S 2,695,148
s3s,113 s s2ô89s s sL7,742 s s07,606 s ¿90,¿SS s ¿s4,reZ s 470,787 s 5 440,349
CCRC Loan A
CCRC Loan B
Fresno HA Loan ll
NET CASH FI-OW AFTER HDS
HRFC Loan lll (S2.8 M)
City of Fresno HOME Loan (S4.5 M)
Disbursement to Owner(s)
NET CASH FLOW AFTER DISTRIBUTION
3L,974 s 29,042 s
47,960 s 43,s63 s-s-s
25,755 5 22,094 S
38,632 s 33,140 s-5S
s 235,722 5 235,722 s 235,722 s 235,722 s 235,722 5 235,722 s s
s 165,507s 165,507s 165,507s 165,507s 165,507s 165,507s - s
5 6L,279 5 67,279 S 67,279 5 61,279 S 6L,279 S 6L,279 5 S
s
s
s
s
s
s
5 79,934$ 72,605 $ 04¡eZS 55,234$ 45,098S 33,928S484,1825470,787 $456,196$/t40,349
40.fr 5
6096 s
0e6 s
18,039 s 13,571 s 193,673 s 188,31s 5182,478 s U6,139
27,059 $ 20,357 s ZgO,SOg 5 282,472 5 273,717 5 264,209-sssss
DISTRIBUTION OF AVAILABLE CASH FLOW
%,
Pdrc Grove Commons Northw,
Schedule Rental lncome
Section 8 Subsidy
Vacancy Loss
Miscellaneous lncome
2.5%52,8t9,564 S2,890,533 52,963,276 S3,03¿838 53,114,264 S3,192,601 53,272,896 S3,355,198 S3,439,558 53,526,0272.Ms 633,599 s 646,27L S 659,197 S 672,380 S 685,828 S 699,545 S ZTS,SSS 5 727,806 S 742,362 5 757,2tO
-7.O%5l24L,72Llsl247,s76ls(2s3,s73)S(259,71s) S(266,006) 5l272,4sclS(27e,050) S(28s,810) 5Q92,7341 5Q99,8271ss
S 3,368,900 S
s-5ss-s
EFFECTIVE GROSS INCOME 9 3,534086 S 1619,69s S 3,707,381 SC,lgtlgq S 3,389,136 S
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Partner Management Fee
TOTAT EXPENSES & RESERVES
3.5%s2,536,795 s2,625,583 52,717,478 s2,812,590 s2,911,031 53,O12,9r7 s3,118,369 53,227,5L2 $3,340,475 53,457,3923.0%s t4o,6!6 5 tu,az+ s 149,180 s 153,655 s rSA,ZeS s r0S,OrZ s 167,903 5 L72,940 s 178,128 s 183,472
3.0% s 15,835 s 16,310 5 t6.lgg s rZ,¡O¡ 5 !7,823 s 18,357 s 18,908 5 ß,qZS S ZOOSS S 20,561
3.0%s95,011sSze6rs100,797s103,821s106,9365LtO,!44srra,¿¿e5116,851SrZO,aSZSrZa,gee
52,788,2s7 S2,884,s89 ç2,994,2s4 $3,087,369 S3,19q054 S3,304,430 S3,418,628 S3,536,778 93,65%019 53,78s,492
NET OPERATING INCOME
CCRC Loan A
CCRC Loan B
Fresno HA Loan ll
NET CASH FTOWAFTER HDS
City of Fresno HOME Loan (S+.S U¡
Disbursement to Owner(s)
NET CASH FLOW AFTER DISTRIBUTION
':67 $ 197
s
s423,185s404,639$¡S464Ss363,134s340,032s315,265s288,753s260,416s2?O,t67s197,918
sssss-s
s
s
s
ssss s
s
s
s
sss-s
4A% 5 169,274 S 161,856 S 153,858 S t45,254 S 136,013 S
60% s 253,9!t 5 242,7A3 5 230,787 S ZTZS8O S 204,019 S0%s s s
L26,LO6 s 115,501 5 rO4rSS s 92,067 s 79,L67
189,159$ 173,252 $ rS0,Z¿gs 138,100s 118,751-sssss
s
ss
$$
u'.ç\
Parc Grove Commons Northw
INCOME FROM HOUSING UNITS lnflation Year 50 Year 51 Year 52 Year 53 Year 54 Year 55
Schedule Rental lncome
Section 8 Subsidy
Vacancy Loss
Miscellaneous lncome
2.5% s 3,6L4,658 s 3,705,504 s 3,798,622 s 3,894,068 s g,ggr,g9g 5 4,O92,L77
2.t%5 772,354 S ßt,AOt 5 803,557 S 819,628 S 836,021 S 852,74L
-7.0% s (307,0s1) s (314,s31) s (322,1s3) s (3ze,ese) s (337,ss41 S (345,1¿14)s-ssss
EFFECTIVE GROSS INCOMT S 4,079,921 S 4,t79,774 3 4,2ß0,026 5 +,leg.7gz 5 +asgses S
Operating Expenses
Replacement Reserve
Wells Fargo Management Fee
General Partner Management Fee
TOTAT EXPENSES & RESERVES
3.5% s 3,578,400 s 3,703,644 s 3,833,272 s 3,96¿436 5 4,L06,297 s 4,250,077
3.0%s 188,976 s 194,645 s 200,485 s 206,499 s 212,694 s 2L9,O75
3.0%s 2L,28t 5 2!,920 S 22,577 5 23,2s4 5 23,952 5 24,67L
3.0%s t27,687 5 rSr,SrZ s ß5,463 s raS,SZZ s !43,712 s 148,024
$ c,sr6p44 S 4,ost,t26 ç 4,L91,796 $ 4,396,717 $ 4¡t86,655 S 464L786
NET OPERATING INCOME 127,047 $88,230 5 47,O2O 1310 s
CCRC Loan A
CCRC Loan B
Fresno HA Loan ll
NET CASH FIOW AFTER HDS
HRFC Loan lll (S2.8 M)
City of Fresno HoME Loan (S4.5 M)
Disbursement to Owner(s)
NET CÂSI{ FLOW AFIER DISTRIBUTION
sss-s-ss
47,O2O s 3,310s (43,0131f:63,577 5 L27,(A7 S
65,43t 5 SO,erS S
98,L46 5 76,228 S-s5
s
s
s
s
s
s
s
$
sss-sss
-s-s-s
88,230 s
40%
60%
o%
35,292 s 18,808 s
52,938 s ZA,ZLZ 5-5S
L,324 s (17,205)
L,986 s (25,808)-s
DISTRIBUTION OF AVAILABLE CASH FLOW
ç ?
EXHIBIT ..E
CERTIFICATE OF COMPLETION
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
LINE FOR RECORDER'S USE ONLY)
This Certificate of Completion is recorded at the request and for the benefit of the City of Fresno
and is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
A.P.N.: 446-020-397
City of Fresno
Mark Scott, City Manager
Date:
t/\
Gertificate of Gompletion
A.P.N.:
Recitals:
A. By a C¡ty of Fresno ('CITY') HOME Investment Partnerships Program
Agreement dated , 2013, ("HOME Agreement") between the City of Fresno, a
municipal corporation ("C|TY'), and Parc Grove Gommons Northwest, LP, a California limited
partnership, ("DEVELOPER"), as may be amended from time to time, the DEVELOPER
agreed to construct one hundred forty seven (a7) affordable rental Units and one (1) on-site
manager's unit, upon the Property described in EXHIBIT uAu attached to the HOME
Agreement, and made part hereof by this reference (the "Propêdy"), with assistance of HOME
Funds while meeting the affordable housing, income targeting and other requirements of 24
C.F.R. 92 according to the terms and conditions of the HOME Agreement and Loan
Docu ments a nd other documents/i nstru ments referenced therein.
B. The HOME Agreement or a memorandum of it was recorded on 2014, as
lnstrument No.in the Official Records of Fresno County, California.
C. Under the terms of the HOME Agreement, after the DEVELOPER completes the
Project, the DEVELOPER may ask CITY to record a Certificate of Completion.
D. The DEVELOPER has asked CITY to furnish the DEVELOPER with a recordable
Certificate of Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive evidence that
the DEVELOPER has completed the Project as set forth in the HOME Agreement.
NOW THEREFORE:
1. C¡TY certifies that the DEVELOPER commenced construction of the Project on
February 22,2013, and completed construction of the Project on
done so in full compliance with the HOME Agreement.
2015, and has
2. This Certificate of Completion is not evidence of the DEVELOPER's compliance
with, or satisfaction of, any obligation to any mortgage or security interest holder, or any
mortgage or security interest insurer, securing money lent to finance work on the Property or
Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to in California
Civil Code Section 3093.
4. Nothing contained herein modifies any provision of the HOME Agreement.
v7
lN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of 20_.
CITY OF FRESNO
By:
Mark Scott, City Manager
(Attach notary certmcâte of acknowledgment)
Date:
ATTEST:
WONNE SPENCE, CMC
CITY CLERK
APPROVED AS TO FORM:
DOUG T. SLOAN
CITY ATTORNEY
By:By:
Deputy
Date:
AssistanUDeputy C ity Attorney
Date:
PARC GROVE COMMONS NORTHWEST, LP, a California limited partnership
Date:
Name: Preston Prince
Title: Executive Director
(Attach notary certificate of acknowledgment)
By:
vy
EXHIBIT "F''
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
Secured by Deed ofTrust
Loan Amount: $4.500.000.00
Fresno, California
Date: ,2013
For value received, the undersigned, Parc Grove Commons Northwest, LP, a
California limited partnership ("Borrower"), promises to pay to the order of the City of Fresno,
a California municipal corporation, ("Lender"), the sum of Four Million Five Hundred
Thousand dollars and 00/100 ($4,500,000.00), to the extent that such funds are loaned to
Borrower, with interest on the unpaid principal balance running from the date of disbursement
with compounded interest at the rate of 3.8% annually in accordance with the HOME
lnvestment Partnerships Agreement dated _, 2013, entered into between the Lender
and Borrower, ("Agreement"), with all principal and interest due and payable on or before the
earlier of (i) Borrower's uncured default under the Agreement with respect to the Project, and
(ii) fifty-five (55) years from the date of this Note, ("Maturity Date"), on which date the unpaid
balance of principal with unpaid interest thereon shall be due and payable, along with
attorney's fees and costs of collection, and without relief from valuation and appraisement
laws.
This is a Residual Receipts Note. Principal and interest payments in the amount of
60% of annual Residual Receipts, to the extent that Residual Receipts exist and are itemized
in audited financial statements supplied to Lender with each payment hereunder, shall be due
one hundred eighty (180) days following the end of the year in which the Project converts to
its permanent phase under the Financing, and said payment continues each successive year
thereafter until the Maturity Date, upon which all principal and interest shall be due and
payable (prorated amounts to be paid for the first and last year of the Note). Any failure to
make a payment required hereunder within ten (10) days after such payments are due shall
constitute a default under the Agreement with respect to the Project and this Note. lt shall
not be a default hereunder if no payment was made because Project Residual Receipts did
not exist for any particular year. Additionally any failure to timely submit to Lender audited
financial statements within thirty (30) days after such financial statements are due shall
constitute a default under the Agreement with respect to the Project and Note.
Residual Receipts means in each operating year after the conversion of the Project financing
to its permanent phase, sixty percent (60%) of the sum of: (i) all cash received by the Project
from (A) rents, lease payments, and all sources generally considered in the apartment
industry to be "other income" (which does not include payments for optional services provided
by Borrower), (B) payments from HUD under a Housing Assistance Program Section I
Contract to the Project, if any, and excluding (a) tenant security or other deposits required by
law to be segregated, and (b) interest on reserves not available for distribution, and (ii) the
net proceeds of any insurance (including rental interruption insurance), other than fire and
extended coverage and title insurance, to the extent not reinvested, less the sum of: (i) all
56929\1 26525v3 Page I of 5 vq
cash expenditures, and all expenses unpaid but properly accrued, which are Operating
Expenses incurred in the operation of the Project's business, excluding expenditures paid
from any reserve account (whether or not such expenditure is deducted, amortized or
capitalized for tax purposes); (ii) the Project related annual fee payable to the investment
limited partner and the annual fees payable to the general partner(s); (¡¡¡) all payments on
account of any loans (including unpaid principal and accrued reasonable interest) made for
the benefit of the Project by the Borrowers pursuant to the terms of any equity investor limited
partnership agreement, and; (iv) payments towards the deferred developer fee (including
repayment of loans or capital contributions made by a partner to a partnership specifically for
the purpose of paying the deferred developer fee); (v) contributions to any prudent and
reasonable cash reserves for working capital, capital expenditures, repairs, replacements and
anticipated expenditures, in such amounts as may be reasonably required by the lenders to
the Project for the operation of the Project not to exceed the amount required by the Project's
permanent lender and investment limited partner as may be annually adjusted in accordance
with Project's permanent lender and investment limited partner ; (vi) the payment of principal
and interest, and any associated fees, expenses, and costs, with respect to the Senior
Financing; (vii) payments made to the investors which are required to reimburse the investors
a portion of its capital contribution in relation to the Project when there is a shortfall,
disallowance, recapture or reallocation of federal low-income housing tax credits initially
promised pursuant to any equity investor or partnership agreement; (viii) the payment of any
deferred development costs.
Operatinq Exoenses means actual, reasonable and customary (for comparable quality,
constructed rental housing developments in Fresno County) costs, fees and expenses
directly incurred, paid, and attributable to the operation, maintenance and management of the
Project in a calendar year, including, without limitation: painting, cleaning, repairs, alterations,
landscaping, utilities, refuse removal, certificates, permits and licenses, sewer charges, real
and personal property taxes, assessments, insurance, security, advertising and promotion,
janitorial services, cleaning and building supplies, purchase, repair, servicing and installation
of appliances, equipment, fixtures and furnishings which are not paid from the capital
replacement reserve, fees and expenses of property management and common area
expenses, fees and expenses of accountants, attorneys and other professionals, the cost of
social services, repayment of any completion or operating loans including any and all
deferred contractor's fees per the Budget, made to Borrower, its successors or assigns, and
other actual operating costs and capital costs which are incurred and paid by Borrower, but
which are not paid from reserve accounts.
All capitalized terms used in this Note, unless otherwise defined, will have the respective
meanings specified in the Agreement. ln addition, as used in this Note, the following terms
will have the following meanings:
Business Day means any day other than Saturday, Sunday, or public holiday or the
equivalent for banks generally under the laws of Galifornia. Whenever any payment
to be made under this Note is stated to be due on a day other than a Business Day,
that payment may be made on the next succeeding Business Day.
Note Maturity Date means fifty-five (55) years from the date the permanent loan
converts.
(
v'256929\'r 26525v3 Page 2 of 5
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust,
Security Agreement and Fixture Filing with Assignment of Rents on real estate in Fresno
County, California, that provides for acceleration upon stated events, dated as of the same
date as this Note, and executed in favor of and delivered to the Lender ("Deed of Trust"),
insured as a 4th position lien on the Property.
Time is of the essence. lt will be a default under this Note if Borrower defaults
under the Agreement, any other Loan Document with the Lender, or this Note and such
default continues beyond the notice and cure period as provided in such documents. ln the
event of a default by Borrower with respect to any sum payable under this Note and the
failure to cure such default within ten (10) days, the Borrower shall pay a late charge equal to
the fesser of two percent (2o/o) ol any outstanding payment or the maximum amount allowed
by law. All payments collected shall be applied first to payment of any costs, fees or other
charges due under this Note or any other Loan Documents then to the interest and then to
principal balance. On the occurrence of an uncured default or on the occurrence of any other
event that under the terms of the Loan Documents give rise to the right to accelerate the
balance of the indebtedness, then, at the option of Lender, this Note or any notes or other
instruments that may be taken in renewal or extension of all or any part of the indebtedness
will immediately become due without any further presentment, demand, protest, or notice of
any kind. Lender acknowledges and agrees that it shall send notice of any default hereunder
to the limited partners of Borrower and shall accept any cure offered by such limited partners
on the same basis as it would accept a cure from Borrower.
The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in part without penalty. Lender will apply all the prepayments first to the
payment of any costs, fees, late charges, or other charges due under this Note or under any
of the other Loan Documents and then to the interest and then to the principal balance.
All Loan payments are payable in lawful money of the United States of America at
any place that Lender or the legal holders of this Note may, from time to time, in writing
designate.
Borrower agrees to pay all costs including, without limitation, reasonable attorney
fees, incurred by the holder of this Note in the successful enforcement of payment, whether
or not suit is filed, and including, without limitation, all costs, reasonable attorney fees, and
expenses incurred by the holder of this Note in connection with any bankruptcy,
reorganization, arrangement, or other similar proceedings involving the Borrower that in any
way affects the exercise by the holder of this Note of its rights and remedies under thís Note.
All costs incurred by the holder of this Note in any action undertaken to obtain relief from the
stay of bankruptcy statutes are specifically included in those costs and expenses to be paid
by Borrower.
Any notice, demand, or request relating to any matter set forth herein shall be in
writing and shall be given as provided in the 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
56929\126525v3 Page 3 of 5
,uu
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.
The Deed of Trust provides as follows:
Except as provided herein or in the Agreement, if the Trustor/Grantor shall sell,
convey or alienate said properly, or any part thereof, or any interest therein, or shall
be divested of his title or any interest therein in any manner or way, whether
voluntarily or involuntarily, without the written consent of the Beneficiary being first
had and obtained, Beneficiary shall have the right, at its option, except as prohibited
by law, to declare any indebtedness or obligations secured hereby, irrespective of
the maturity date specified in any Note evidencing the same, immediately due and
payable.
Lender may transfer this Note and deliver to the transferee all or any part of the
Property then held by it as security under this Note, and the transferee will then become
vested with allthe powers and rights given to Lender; and Lender will then be forever relieved
from any liability or responsibility in the matter, but Lender will retain all rights and powers
given by this Note with respect to Property not transferred.
lf any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions will not in any way be affected or impaired. This
Note will be binding on and inure to the benefit of Borrower, Lender, and their respective
successors and assigns.
Borrower and Lender agree that this Note will be deemed to have been made under
and will be governed by the laws of Galifornia 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 and Borrower may consent to in a
writing duly signed by Borrower or Lender or its authorized agents.
This Note shall be nonrecourse to Borrower and all its constituent members and may
be prepaid at any time without penalty. Neither Borrower nor any of its general and limited
partners shall have any personal liability for repayment of the Loan. The sole recourse of the
Lender under the Loan Documents for repayment of the Loan shall be the exercise of its
rights against the Property pursuant to the Deed of Trust and Lender shall have no right to
seek or recover any deficiency amount from Borrower or any partner of Borrower.
ilt
U,ì56929\126525v3 Page 4 of 5
lN WITNESS WHEREOF, Borrower has caused this Promissory Note to be
executed as of the date and year first above written.
Parc Grove Commons Northwest, LP, a California limited partnership
By: Silvercrest, lnc., a California non-profit Public benefit corporation
Its: Managing General Partner
By: Preston Prince, Director
By: Parc Grove Commons Northwest AGP, LLC, a California limited liability company
Its: Administrative General Partner
By: Housing Authority of the City of Fresno, California, a public body corporate
and politic
By: Preston Prince, CEO/Executive Director
Date:
56929\126525v3 Page 5 of 5
6V
EXHIBIT "G''
RECORDING REQUESTED BY and for the benefit of the
City of Fresno and is exempt from the payment of a
recording fee in accordance with Government Code
Sections 6103 and 27383.
AND WHEN RECORDED MAIL TO
City of Fresno
Name Development and Resource
Management Department
Address 2600 Fresno Street, Rm. 3070
Cityist Fresno CA 93721-3605
.Title Order No. [Number]
Escrow No. [Number]
FOR RECORDER'S USE
A.P.N.: 446-020-397
DEED OF TRUST WITH
ASSIGNMENTS OF RENTS
TH¡S DEED OF TRUST With Assignment of Rents ("Deed of Trust") made this t I day of t I, [2013],
by and between Parc Grove Commons Northwest, LP, a California limited partnership (herein "Borrower"),
Title Company, a California Corporation (herein "Trustee"), and the City of Fresno, a Municipal
Corporation organized and existing under the laws of the State of California whose address is 2600 Fresno Street,
Fresno, California 93721 (herein "Beneficiary" and "Lender").
Trustor, in consideration of the indebtedness herein recited and the trust herein created, does irrevocably grant and
convey to Trustee, in trust, with power of sale, all Borrower's right, title, and interest now owned or hereafter acquired in
the real property ("Land") known as Fresno, CA
-,
located in Fresno County, California
and more particularly described in the Attached Exhibit A, incorporated by reference (Borrower agrees that any greater to
the Land later acquired during the term of this Deed of Trust will be subject to this Deed of Trust), together with the rents,
issues, and profits, subject hıwever, to the right, power, and authority granted and conferred on Borrower in this Deed of
Trust to collect and apply the rents, issues, and profits; and
Borrower also irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all of Borrowe/s right, title
and interest now owned or later acquired to the following property (including the rights or interests pertaining to the
property) located at the Property:
(1) All buildings ("Buildings") and improvements now or later on the land and all easements, rights,
appurtenances, water and water rights, minerals and mineral rights; all machinery, equipment,
appliances, and fixtures for the generation or distribution of air, water, heat, electricity, light, fuel, or
refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or for the
removal of dust, refuse, or garbage; all wall safes, built-in furniture, and installations, window shades and
blinds, light fixtures, fire hoses and brackets, screens, linoleum, carpets, furniture, furnishings, fixtures,
plumbing, laundry tubs and trays, refrigerators, heating units, stoves, water heaters, incinerators, and
communication systems and installations for which any Building is specially designed; all of these item,
whether now or later installed, being declared to be for all purposes of this Deed of Trust a part of the
Land, the specific enumerations in this Deed of Trust not excluding the general;
(2) The rents, issues, profits, and proceeds relating to the foregoing; and
(3) The Property to the extent not included on clauses (1) and (2) above.
TO SECURE, in order of priority that Beneficiary determines:
File No.:
Page I of 14
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(1) Payment of the indebtedness evidenced by a note of Borrower of even date with this Deed of Trust in the
principal amount of Four Million Five Hundred Thousand dollars and 00/100 ($4,500,000.00) ("Note"),
payable to Beneficiary or order, and all extensions, modifications, or renewals of that note;
(2) Payment of the interest on that indebtedness according to the terms of the Note;
(3) Payment of all other sums (with interest as provided herein) becoming due and payable to Beneficiary or
Trustee pursuant to the terms of this Deed of Trust;
(4) Performance of every obligation contained in this Deed of Trust, the Note, the HOME Agreement dated
the _ day of , 2013 and its related documents, the Declaration of Restrictions dated the
day of ,2013, any instrument now or later evidencing or securing any indebtedness
secured by this Deed of Trust, and any agreements, supplemental agreements, or other instruments of
security executed by Borrower as of the same date of this Deed of Trust or at any time subsequent to the
date of this Deed of Trust for the purpose of further securing any indebtedness amending this Deed of
Trust or any instrument secured by this Deed of Trust (collectively the "Loan Documents"); and
(5) Payment of all other obligations owed by Borrower to Beneficiary that by their terms recite that they are
secured by this Deed of Trust, including those incurred as primary obligor or as guarantor.
Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey
the Property, and that the Property is unencumbered except for encumbrances of record. Borrower covenants that
Borrower will forever warrant and will defend the grant made in this Deed of Trust against all claims and demands, subject
to encumbrances of record. Borrower covenants that Borrower will maintain and preserve the lien of this Deed of Trust
until all the indebtedness under the Note is paid in full.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust Borrower is a California limited
partnership organized, validly existing, and in good standing under the laws of the State of California and is qualified to do
business in California; that Borrower has the requisite power and authority to own, develop, and operate the property; and
that Borrower is in compliance with all laws, regulations, ordinances, and orders of public authorities applicable to it.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust the execution, delivery, and
performance by the Borrower and the borrowings evidenced by the Note are within the power of the Borrower; have been
duly authorized by all requisite corporate or partnership actions, as appropriate; has received all necessary governmental
approvals; and will not violate any provision of law, any order of any court or agency of government, the charter
documents of Borrower, or any indenture, agreement, or any other instrument to which Borrower is a party or by which
Borrower or any of it property is bound, nor will they conflict with, result in a breach of, or constitute (with due notice and
lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any
lien, charge, or encumbrance of any nature on any of the property or assets of Borrower, except as contemplated by the
provisions of the Loan Documents; and each of the Loan Documents, when executed and delivered to Beneficiary, will
constitute a valid obligation, enforceable in accordance with its terms.
Borrower represents and warrants to Beneficiary that as of the date of this Deed of Trust that the Property is not used
principally for agricultural or grazing purposes; that Borrower is engaged in the development and operation of
lmprovements to the Property; and that the principal purpose of the Loan is the acquisition, development and/or the
operation of the lmprovements to the Property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Pavment of Principal. Borrower shall promptly pay when due the principal indebtedness evidenced by the Note.
2. Hazard lnsurance. Borrower, at its sole cost and expense, for the mutual benefit of Borrower and Beneficiary, shall
keep the improvements now existing or hereafter erected on the Property insured against loss by
Page 2 of 14
"l D
4
fire, hazards included within the term "extended coverage", and such other hazards as Lender may require and in
such amounts and for such periods as Lender may require as set forth in the HOME Agreement referenced above.
The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided
that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shall be in a form
acceptable to Lender and shall include a standard mortgage clause in favor of and in a form acceptable to Lender.
Lender shall have the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed of
trust or other security agreement with a lien which has priority over this Deed of Trust.
ln the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of
loss if not made promptly by Borrower.
lf the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the date notice
is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is
authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property
or to the sums secured by this Deed of Trust.
Borrower shall
keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and
shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. lf this Deed of Trust is on a unit in
a condominium or a planned unit development, Borrower shall perform all of Borrower's obligations under the
declaration or covenants creating or governing the condominium or planned unit development, the by-laws and
regulations of the condominium or planned unit development, and constituent documents. Borrower shall not permit
overcrowded conditions to exist as defined by the U.S. Department of Housing and Urban Development.
Protection of Lender's Securitv. lf Borrower fails to perform the covenants and agreements contained in this Deed of
Trust, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, then
Lender, at Lender's option, upon notice to Borrower, may make such appearances, disburse such sums, including
reasonable attorney's fees, and take such action as is necessary to protect Lender's interest. lf Lender requires
mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the
premiums required to maintain such insurance in effect until such time as the requirement for such
insurance terminates in accordance with Borrower's and Lender's written agreement or applicable laws.
Any amounts disbursed by Lender pursuant to this Paragraph 5 shall become additional
indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Lender agree to other terms of
payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof. Nothing
contained in this paragraph 5 shall require Lender to incur any expense or take any action hereunder.
lnspection. Lender may make or cause to be made reasonable entries upon and inspections of the Property,
provided that Lender shall provide Borrower 72 hours' notice prior to any such inspection specifying reasonable cause
therefore related to Lender's interest in the Property.
6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby
assigned and shall be paid to Lender, subject to the terms of any mortgage, deed of trust or other security agreement
with a lien which has priority over this Deed of Trust.
7. Borrower Not Released: Forbearance Bv Lender Not a Waiver. Extension of the time for payment or modification of
amortization of the sums secured by this Deed of Trust granted by Lender to any successor in interest of Borrower
shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest.
Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment
or otherwise modify amoftization of the sums secured by this Deed of Trust be reason of any demand made by the
original Borrower and Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy
hereunder, or otherwise afforded by applicable law, shall not be waiver of or preclude the exercise of any such right of
Page 3 of 14
5
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8
remedy.
The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to the respective successors and assignees of Lender and
Borrower. All covenants and agreements of Borrower shall be joint and several. Any borrower who co-signs this
Deed of Trust, but does not execute the Note, (a) is co-signing this Deed of Trust only to grant and convey that
Borrower's interest in the Property of Trustee under the terms of this Deed of Trust, (b) is not personally liable on the
Note or under this Deed of Trust or the Note, without that Borrower's consent and without releasing
that Borrower or modifying this Deed of Trust as to that Borrower's interest in the Property.
Transferabilitv. One of the inducements to Beneficiary for making the Loan is the identity of Borrower. The existence
of any interest in the Property other than the interests of Borrower and Beneficiary and any encumbrance permitted in
this Deed of Trust, even though subordinate to the security interest of Beneficiary, and the existence of any interest in
Borrower other than those of the present owners, would impair the Property and the security interest of Beneficiary,
and, therefore, except as contemplated by the Right of First Refusal and Purchase Option Agreement between
Borrower and the Housing Authority of the City of Fresno, California and the Purchase Option between Borrower and
Parc Grove Commons Northwest AGP, LLC each dated as of February 13,2013 or as provided herein or in the Loan
Documents, Borrower will not sell, convey, assign, transfer, alienate, or otherwise dispose of its interest in the
Property, either voluntarily or by operation of law, or agree to do so, without the prior written consent of Beneficiary.
Consent to one transaction by Beneficiary will not be deemed a waiver of the right to require consent to further or
successive transactions. lf Borrower is a corporation, any sale, transfer, or disposition of fifty percent (50o/o) or more
of the voting interest of Borrower or of any entity that directly or indirectly owns or controls Borrower, including, without
limitation, the parent company of Borrower, and the parent company of the parent company of Borrower, will
constitute a sale of the Property for purposes of this article. lf Borrower is a partnership any change or addition of a
general partner of Borrower, change of a partnership interest of Borrower, or sale, transfer, or disposition of fifty
percent (50%) or more of the voting interest or partnership interest of any partner of Borrower or of any corporation,
partnership or entity that directly or indirectly owns or controls any partner of Borrower , including, without limitation,
each parent company of a partner of Borrower and each parent company of any parent company of a partner of
Borrower, will constitute a sale of the Property for purposes of this section. lf Borrower is a limited liability company,
any change of the manager or any sale, transfer or disposition of fifty percent (50%) or more of the partnership
interests of Borrower , or disposition of fifty percent (50%) or more of the voting interest of Borrower or of any
corporation, partnership or entity that directly or indirectly owns or controls any member of Borrower, including without
limitations, each parent company of Borrower and each parent company of any parent company of a member of
Borrower , will constitute a sale of the Property for purposes of this section. Any transaction in violation of this section
will cause all lndebtedness, irrespective of the maturity dates, at the option of the Beneficiary and without demand or
notice, immediately to become due, together with any prepayment premium in accordance with the terms of the Note
except as prohibited by law.
Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower
provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail addressed to
Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as
provided herein, and (b) any notice to lender shall be given by certified mail to Lender's address stated herein or to
such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this
Deed of Trust shall be deemed to have been given to Borrower or Lender when given
in the manner designated herein.
Governinq Law: Severabilitv. The state and local laws applicable to this Deed of Trust shall be the laws of the
jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to
this Deed of Trust or if the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed
of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this
Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses", and "attorney's fees"
include all sums to the extent not prohibited by applicable law or limited herein.
Borrower's Coov. Borrower shall be furnished a conformed copy of the Note and of this Deed of Trust at the time of
Page 4 of 14
I
10
11
12
17
execution or after recordat¡on thereof.
NON-CONFORMING COVENANTS. Borrower and Lender further covenant and agree as follows:
13. Acceleration: Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Deed of Trust,
including the covenants to pay when due any sums secured by this Deed of Trust, the Note or the Program
restrictions, Lender priorto acceleration shall give notice to Borrower as provided in paragraph 10 hereof specifying:
(1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date notice is
mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the
date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the
Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a
court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale. lf the
breach is not cured on or before the date specified in the notice, Lender, at Lender's option may declare all of the
sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the
power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable
costs and expenses incurred in pursuing the remedies provided in this paragraph 13, including, but not limited to,
reasonable attorney's fees. lf Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause the Property to be sold and
shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Lender
or Trustee shall mail copies of such notice in the manner prescribed by applicable law. Trustee shall give public
notice of sale to the persons and in the manner prescribed by applicable law. After the lapse of such time as may be
required by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to the
highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and
in such order as Trustee may determine.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any
previously scheduled sale. Lender or Lender's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant or
warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the
statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable
costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title
evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally
entitled thereto.
14. Borrower's Riqht to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Deed of Trust due
to Borrower's breach, Borrower shall have the right to have any proceedings begun by Lender to enforce this Deed of
Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in
this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays Lender
all sums which would be then due under this Deed of Trust and the Note had no acceleration occurred; (b) Borrower
cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower
pays all reasonable expenses incurred by Lender and Trustee in enforcing the covenants and agreements of
Borrower in paragraph 13 hereof, including but not limited to, reasonable attorney's fees; and (d) Borrower takes such
action as Lender may reasonably require to assure that the lien of this Deed of Trust, Lender's interest in the Property
and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such
payment and cure by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and
effect as if no acceleration had occurred.
15. Nonrecourse. Neither Borrower nor any of its general and limited partners shall have any personal liability for
repayment of the loan. The sole recourse of the Lender under the Loan Documents for repayment of the Loan shall
be the exercise of its rights against the Property.
16. Withdrawal, Removal and/or Replacement of General Partner and Transfer of Limited Partner lnterest. General
partner of the Borrower pursuant to the terms of a partnership agreement due to violation by a general partner of the
Page 5 of 14
terms of a partnership agreement, or a voluntary withdrawal from a partnership by a general partner, and any transfer
of limited partnership interest or interests in the same, shall not constitute a default under any of the Loan Documents,
and any such actions shall not accelerate the maturity of the loan.
17. Lien of Deed of Trust. Beneficiary agrees that the lien of this Deed of Trust shall be subordinated to any extended
low-income housing commitment (as such term is defined in Section (42(hX6)(B) of the internal Revenue Code) (the
"Extended Use Agreement") recorded against the Property, provided that such Extended Use Agreement, by its
terms, must terminate upon foreclosure under this Deed of Trust or upon a transfer of the Property by instrument of
lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the lnternal Revenue Code, subject to the limitations
upon evictions, terminations of tenancies and increases in gross rents of tenants of low-income units as provided in
that Section.
18. As additional security hereunder, Borrower
hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under
paragraph 13 hereof or abandonment of the Property, have the right to collect and retain such rents as they become
due and payable.
Upon acceleration under paragraph 13 hereunder or abandonment of the Property, Lender, in person, by agent or by
judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and to
collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall be applied
first to premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Deed of
Trust. Lender and the receiver shall be liable to account only for those rents actually received.
19. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Lender shall request Trustee to reconvey
the Property and shall surrender this Deed of Trust, and all notes evidencing indebtedness secured by this Deed of
Trust to Trustee. Trustee shall reconvey the Property without warranty and without charge to the person or persons
legally entitled thereto. Such person or persons shall pay all costs of recordation, if any.
20. Substitute Trustee. Lender at lender's option, may from time to time, appoint a successor trustee to any Trustee
appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the Fresno County
Recorder's Office. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and
page where this lnstrument is recorded and the name and address of the successor trustee. The successor trustee
shall, without conveyance of the Property, succeed to all the title, powers and duties conferred upon the Trustee
herein and by applicable law. This procedure for substitution of trustee shall govern to the exclusion of all other
provisions for substitution.
21. Statement of Obliqation. Lender may collect a fee not to exceed $50 for furnishing the statement of obligation as
provided by Section 2943 of the Civil Code of California.
22. Evenl of Default.
Prior to declaring or taking any remedy permitted under Loan Documents, (where applicable) Borrower's limited
partners shall have an additional period of not less than thirty (30) days to cure such alleged default. Notwithstanding
the foregoing, in the case of a default that cannot with reasonable diligence be remedied or cured within thirty (30)
days, Borrower's limited partners shall have such additional time as reasonably necessary to remedy or cure such
default, but in no event more than ninety (90) days from the expiration of the initial thirty (30) day period above, and if
the Borrower's limited partners reasonably believe that in order to cure such default, Borrower's limited partners must
remove one or both of Borrower's general partners in order to cure such default, Borrower's limited partners shall
have an additional (30) days following the effective date of such removal to cure such default. To the extent that there
is a conflict between this paragraph 22 and any remedy permitted by the HOME Agreement, Loan Documents, or
Loan, the terms of this paragraph 22 shallcontrol.
The following events are each an "Event of Default":
4
Page 6 of 14
(a) Default in the payment of any sum of principal or interest when due under the Note or any other sum due under
the Loan Documents.
(b) Failure to maintain insurance as provided in Section 2 hereof.
(c) The failure (without cure during the applicable period, if any, for cure) of any Borrower to observe, perform, or
discharge any obligation, term, covenant, or condition of any of the Loan Documents, any agreement relating to
the Property, or any agreement or instrument between any Loan Party and Beneficiary.
(d) The assignment by Borrower, as lessor or sublessor, as the case may be, of the rents or the income of the
Property or any part of it (other than to Beneficiary) without first obtaining the written consent of Beneficiary.
(e) The following events:
(i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is prior to this Deed
of Trust, and the continued maintenance of the claim or lien for a period of thirty (30) days without discharge,
satisfaction, or adequate bonding in accordance with the terms of this Deed of Trust;
(ii) the existence of any interest in the Property other than those of Borrower, Beneficiary, any tenants of
Borrower, and any one listed in a title exception approved by Beneficiary in writing; or
(iii) the sale, hypothecation, conveyance, or other disposition of the Property except with the express written
approval of Beneficiary or as otherwise permitted herein, any of which will be an Event of Default because
Borrower's obligation to own and operate the Property is one of the inducements to Beneficiary to make the
Loan;
(f) Default under any agreement to which Borrower is a party, which agreement relates to the borrowing of money by
Trustor from Beneficiary.
(g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of Trust or in, under,
or pursuant to the Loan Documents, is false or misleading in any material respect as of the date on which the
representation or warranty was made.
(h) Any of the Loan Documents, at any time after their respective execution and delivery and for any reason, cease to
be in full force or are declared null and void, or the validity or enforceability is contested by Borrower or any
stockholder or partner of Borrower, or Borrower denies that it has any or further liability or obligation under any of
the Loan Documents to which it is a party.
lf one or more Event of Default occurs and is continuing, then Beneficiary may declare all the lndebtedness to be due
and the lndebtedness will become due without any further presentment, demand, protest, or notice of any kind, and
Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of Trustor,
or the existence of waste, enter on and take possession of the Property or any party of it in its own name or in
the name of Trustee, sue for or otherwise collect the rents, issues, and profits, and apply them, less costs and
expenses of operation and collection, including reasonable attorneys' fees, upon the lndebtedness, all in any
order that Beneficiary many determine. The entering on and taking possession of the Property, the collection
of rents, issues, and profits, and the application of them will not cure or waive any default or notice of default
or invalidate any act done pursuant to the notice;
(ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure of
mortgages of real property;
(iii) deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and
Pagel of 14
1ç
election to cause the Property to be sold, which notice Trustee or Beneficiary will cause to be filed for record;
(iv) with respect to any Personalty, proceed as to both the real and personal property in accordance with
Beneficiary's rights and remedies in respect of the Land, or proceed to sell the Personalty separately and
without regard to the Land in accordance with Benefìciary's rights and remedies; or
(v) exercise any of these remedies in combination or any other remedy at law or in equity.
23. Noticinq.
ln the event of default, Beneficiary shall give the Borrower's limited partners notice of any default under the Loan
Documents at the following address:
Wells Fargo Bank, National Association
301 South College Street
Charlotte, NC 28288
With a copy to: Wells Fargo Affordable Housing
Community Development Corporation
MAC D1053-170
301 South College Street
Charlotte, NC 28288
Attn.: Director of Tax Credit Asset Management
And
Klein Hornig LLP
101 Arch Street, Suite 1101
Boston, MA 021 10
Attn: Judy K. Crosby
ln accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of
any Notice of Sale be mailed to Borrower and Borrower's address hereinbefore set forth, or if none shown, to Trustor at
property address.
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO THE
ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOU ADDRESS CHANGES, A NEW REQUEST MUST
BE RECORDED.
24. Protection of Securitv.
lf an Event of Default occurs and is continuing, Benefìciary or Trustee, without notice to or demand upon Borrower,
and without releasing Borrower from any obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems necessary to protect the security of this
Deed of Trust;
(b) appear in and defend any action or proceeding purporting to affect, in any manner, the Obligations or the
lndebtedness, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or Trustee is
prior or superior to this deed of Trust; and
(d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable attorneys'fees.
Page 8 of l4
4t/
Borrower agrees to repay on demand all sums expended by Trustee or Beneficiary pursuant to this section with
interest at the Note Rate of lnterest, and those sums, with interest, will be secured by this Deed of Trust.
25. Effect of Assiqnment.
The assignment rents as provided herein will not impose on Beneficiary any duty to produce rents, issues, or profits
from the Property, or cause Beneficiary to be:
(a) a "mortgage-in-possession" for any purpose;
(b) responsible for performing any of the obligations of the lessor under any of the Leases; or
(c) responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the
Property, or any negligence in the management, upkeep, repair, or control of the Property.
Beneficiary will not be liable to Borrower or any other party as a consequence of the exercise of the rights granted to
Beneficiary under this assignment or the failure of Beneficiary to perform any obligation of Borrower arising under
Leases.
26. HUD ACC Limitations.
This financing is non-recourse to any public housing property (real or personal property including all public housing
assets or income), or disposition proceeds approved pursuant to Section 18 of the United States Housing Act of 1937
(unless explicitly permitted by HUD in the Section 18 approval letter).
lN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day and year set forth above. By
signing below, Borrower agrees to the terms and conditions as set forth above.
Parc Grove Commons Northwest, LP, a California limited partnership
By: Silvercrest, lnc., a California non-profit Public benefit corporation
Its: Managing General Partner
By: Preston Prince, Director
By: Parc Grove Commons Northwest AGP, LLC, a California limited liability company
Its: Administrative General Partner
By: Housing Authority of the City of Fresno, California, a public body corporate and politic
By: Preston Prince, CEO/Executive Director
Date:
Page 9 of 14
1l
EXHIBIT "A'' TO DEED OF TRUST
PROPERTY DESCRIPTION
t't4
Exhibit A - Property Descritpion
The follo¡r¡ng descnbed property rn the Crty of Fresno, County of Fresno, SÞte of California.
Parcel l:
All that portion of the NoÊh parcel of the land conveyed by the Grant Deed recorded March
18, 2009 as Docr¡ment 11o.2009-003638Q OfñcialReords Fresno County, belng a portion of
Parcel I of Parcel Map No. 69-15, aoolding to tlre map thereof reco¡ded ln Book I of Pa¡æl
llaPs at Page 69, Fr€sno Gounty Records, situated in the Southeast quafterof Section2T,
Township 13 South, Range 20 Easç Mount Diablo Base and Meridian, acoording to the
Ofllcial United Stâþs Government Townsùip Plat theleof, In the City of Fr€sno, County of
Fr€sno, State of California, described as follows:
BEGINNING at a point on the Norlñ line of said Pa¡æl 1, said point being South 89059'04'
WesÇ 544.97 feet from the Northeast corner of sald Parcel l; tñence South (Xlo00'16" West,
95.8f feeti thenæ Souttr 89059'4É" East, ¿18,24 feet to a polnt on tñe easemênt line
desqibed as Parcel A of the Declamüon of Aæess and Utility Easement reoorded January 28,
2010 as Docr¡ment t{o. 201GOO10439, Ofñcial Records Fr€sno Gounty; tñenoe along said
easement llne of sald Doq¡ment No. 2O1O-OOúO439 | the following two courrês:
1) continuing South 89o59'4dro East 4.36 feet to the beginning of a tangent curye concave to
the Soutñwest having a radius of 24.5O feeg thence
2) Southeasterly, 7.05 feet along sald curve through a centnl angle o1 16o28'47'; thence
South 00000'16'WesÇ 197.22 feet on a non-tangent line to last sald cu¡ve and leaving the
easement line of said Docr¡ment No. 2O10-0O1O439, to a po¡nt on the Southerly boundary of
the Noilñ percel of the land oonveyed by said Docr¡ment No. 2O09-0036380; tlrence along
the Southerly boundary of the land oonveyed by sald Doq¡ment No, 2009-O036380, the
following fourben oourses:
1) Soutlr 89058'20'West, 13.83 feeg tlrence
2) South O0oO139'EasÇ 8.04 feeÇ thence
3) South E9o58'2O" West, 161.58 feeti tñenæ
4) South 00001'40o EasÇ 13.30 feeg thene
5) South 89o58'2O" WesÇ 29.58 feeÇ tlrenoe
6) South 00o01?O'East, 135.49 feeg tlrence
7) Soutñ 00o1O'43'Weft, 80.34 feeg thenoe
8) South 89o58'2O'West 78.08 ÍeeÇ thenæ
9) South 00001'40'EasÇ 75.51feeg thence
1O) South 89o5820"Wesç L94.25 feeg thenæ
11) Soutlr 13c5236" West 287 fee$ thence
12) South 8904633'West, 2l7.lO feeg ttrence
13) Noñtr 00oO1'40'WesÇ 24.L1feeg tlrenoe
14) Soutñ 89058'20o West 66.81feet to the Southwest @rner of the l{ortñ parcel of ttre
land converyed by said Docr¡ment No. 2OO9-0036380, sald Soutlrwest orner also being a
point on the We¡t line of Parcel I of said Palæl Map No. 69-15; thenoe NoËlr OOo04'oO'
WesÇ 255.36 feet along the West line of said Parcel I to the Southwest oon¡er of Paræl 2 of
said Paræl ttlap No. 69-15; thenæ along tlre Southerly and Easterly boundary of said Pa¡rel
2 the following fuur oulses:
1) North 89059'04'Easg 150.88 feeÞ tlrence
2) North (X¡o04'00" Wesç 90.99 feeg thenæ
3) North 89059'04' Éa*,, 7 4.94 feeg thence
4) North 00o04'00" West, 289.97 feet to the Norlfiwest orne¡ of said Parcel 1; thence Noillr
89059'04" Easl 477,4 feet along the Norü¡ line of said Paræl 1, to tlre POINT OF
BEGINNING.
Contains an area o17.73 acres, morc or less.
I,ì
Bâsis of Bearings for ttris description ls the West llne of Parcel I of Parcel Map No. 69-15,
acording b the map tfiereof rccorded in Book 1 of Paroel Maps at Page 69, Fresno County
Reoo¡ds. Taken to be No¡1ilr 00o 04'O0'West'
Being the land oonveyed in Grant Deed reorded December 61 20t.2as Docr¡ment No. 2Ol2-
0176596, Otrcial Records Fr€sno Gounty.
Pa¡æ|2:
Acoess and Utility Easements contained in that ærtain In¡ùument entiHed "Amendment and
Restatement of Declaratlon of Acoess and Utitity Easement and Reclprocal Easement
Agrcemento recorded February 2O,2Ot,3 as Instrument llo. 2013-
of Official Reco¡ds of Fresno County, California.
oo 3,1 ¿il L
Parcd 3:
The nonexdusive rights to use the Common Ateas contained in that ceÊain Insùument
entitled'Facilities Reciprocal Use Agreement" ¡ccorded February 20, 20ß as Instrument No.
zoß- OO el ql l of ofücial Reoords of F¡csno Gounty, Galifomia.
Paræ!4:
An Easement for lngress and egrcss to maintaln that certain Blod( Wall as ænveyed per
Document entided oAgreement to Prcvide }lasonry Wall Between Resldential and
Commerrial Propefi'rccorded April 26, 1983 as Instn¡ment No. 83035820 of OfEdal
Records of Frcsno County, California over that portion of Parcel 2 of Parcel Map ttlo. 69-15, in
the City of Frcsno, County of Frcsno, StaÞ of California acoording to the map thereof
rcoorded in Book 1 Page 69 of Parel Maps, in the offiæ of the County Reco¡der of said
Gounty, the exact location or width of said Easement is not disclosed by the Docr¡ment.
DO NOT RECORD REQUEST FOR FULL RECOIWEYANCE
TOTRUSTEE
The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the
foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust,
have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing
to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other evidence of
indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to
reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by
you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made
t\
EXHIBIT "H''
RECORDING REQUESTED BY AND for the benefit
of the City of Fresno and is exempt from the
payment of a recording fee in accordance with
Government Code Sections 6103 and 27383.
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
Housing and Community Development Division
2600 Fresno Street, Rm. 3070
Fresno, CA 93721-3605
Title Order No Escrow No.
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of thiso 2013 by Parc Grove Commons Northwest, LP a California limitedp eclarant") in favor of the City of Fresno, acting by and through its Downtown
and Community Revitalizatíon Department, Housing and Community Development Division,
("clrY').
WHEREAS, Declarant is the owner of the real estate in the City of Fresno, state of
California, located at 2660 E. Clinton Avenue, Fresno, California 93703, consisting of APN:
446-020-39T , which is more particularly described in Exhibit "A", attached hereto and made
a part hereof (the "Property"); and
WHEREAS, Pursuant to a certain HOME lnvestment Partnerships Program
Agreement dated , 2013 incorporated herein ("HOME Agreement") and
instruments refere Declarant agrees to utilize, and CITY agrees to provide,
certain HOME Program Funds from the United States Department of Housing and Urban
Development (HUD), to Declarant and Declarant agrees to preserve no less than six (6)
units as Affordable Very Low-lncome units reserved for households earning fifty percent
(50%), or below, of the area median income for the Fresno MSA as adjusted for household
size and twenty (20) units as Affordable Low-income units reserved for households earning
eighty percent (80%), or below, of the area median income for the Fresno MSA, as adjusted
for household size ("Affordable Units"). Fourteen (14) Affordable Units shall be two-
bedroom Units and twelve (12) Affordable Units shall be three-bedroom Units subject to the
terms and conditions set forth in the HOME Agreement; and
WHEREAS, the HOME Program regulations promulgated by HUD, including without
limitation 24 CFR Section 92.252, and the HOME Agreement impose certain affordability
requirements upon property owned the Declarant, which affordability restrictions shall be
enforceable for a fifty-five (55) year period; and
WHEREAS, these restrictions are intended to bind Declarant and all purchasers and
their successors.
56929\1 26532v3 Page 1 of 5
{v
NOW THEREFORE, Declarant declares that the Property is held and will be held,
transferred, encumbered, used, sold, conveyed and occupied subject to the covenants,
restrictions, and limitations set forth in this Declaration, all of which are declared and agreed
to be in furtherance of the proposed Affordable Units. All of the restrictions, covenants and
limitations will run with the land and will be binding on all parties having or acquiring any
right, title or interest in the Property or any part thereof, will inure to the benefit of the City,
and will be enforceable by it. Any purchaser under a contract of sale covering any right, title
or interest in any part of the Property, by accepting a deed or a contract of sale or
agreement of purchase, accepts the document subject to, and agrees to be bound by, any
and all restrictions, covenants, and limitations set forth in this Declaration commencing on
the date the Declarant is notified by the City that the Affordable Unit tenant information has
been entered into the HUD's lntegrated Disbursement and lnformation System (lDlS),
constituting the commencement of the fifty-five (55) year ("Affordability Period").
1. Declarations. Declarant hereby declares that the Property is and shall be
subject to the covenants and restrictions hereinafter set forth, all of which are declared to be
in furtherance of the Project and the HOME Agreement, and are established and agreed
upon for the purpose of enhancing and protecting the value of the Property and in
consideration for CITY entering into the HOME Agreement with Declarant.
2. Restrictions. The following covenants and restrictions on the use and
enjoyment of the Property shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are for the benefit and
protection of CITY, and shall run with the Property and be binding on any future owner's of
the Property and inure to the benefit of and be enforceable by the CITY. These covenants
and restrictions are as follows:
a. Declarant for itself and its successor(s) on title covenants and agrees
that from the date of recordation of the CITY's Certificate of Completion, until the expiration
of the Affordability Period it shall cause twenty-six (26) of the units in the Project to be used
as Affordable Units. Declarant further agrees to file a recordable document setting forth the
Project Completion Date(s) and the Affordability Period when determined by the CITY.
Unless othen¡rise provided in the HOME Agreement, the term Affordable Units shall include,
without limitation, compliance with the following requirements:
(¡) Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use,
occupancy, tenure, or enjoyment of any of the Property, nor shall Declarant or any person
claiming under the Declarant, establish or permit any practice of discrimination or
segregation with reference to the selection, location, number, use or occupancy of owners
or vendees of the Project and/or Property.
(ii) Principal Residence. Each of the Affordable Units within the
Project upon the Property shall be leased only to eligible Very Low- and Low-lncome
households, who shall occupy the Affordable Units as their principal residence. The
foregoing requirement that the Property tenants occupy the Affordable Units as their
principal residence does not apply to persons, other than natural persons, who acquire the
Property or portion thereof by foreclosure or deed in lieu of foreclosure or HUD qualified
entities that acquire the Property or portion thereof, with the consent of the CITY.
56929\1 26532v3 Page 2 of 5 tl
(iii) lncome Requirements. A total of six (6) Affordable Units may be
leased only to eligible households whose annual household income at the time of initial
occupancy is not greater than fifty percent (50%) of the most recent annual median income
calculated and published by HUD for the Fresno Metropolitan Statistical Area and a total of
twenty (20) Affordable Units may be leased only to eligible households whose annual
household income at the time of initial occupancy is not greater than eighty percent (80%)
of the most recent annual median income calculated and published by HUD for the Fresno
Metropolitan Statistical Area applicable to such household's size, and at an affordable rent
consistent HOME Program regulations.
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.
4. Acceptance and Ratification. All present and future owners of the Property
and other persons claiming by, through, or under them shall be subject to and shall comply
with the Covenant and Restrictions. The acceptance of a deed of conveyance to the
Property shall constitute an agreement that the Covenant and Restrictions, as may be
amended or supplemented from time to time, are accepted and ratified by such future
owners, tenant or occupant, and such Covenant and Restriction shall be a covenant
running with the land and shall bind any person having at any time any interest or estate in
the Property, all as though such Covenant and Restriction was recited and stipulated at
length in each and every deed, conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer
in lieu of foreclosure, or assignment of an FHA-insured mortgage to HUD, the Affordability
Period shall be terminated unless the foreclosure or other transfer in lieu of foreclosure or
assignment recognizes any contractual or legal rights of public agencies, nonprofit
sponsors, or others to take actions that would avoid the termination of low-income
affordability. However, the requirements with respect to Affordable Units shall be revived
according to their original terms, if during the original Affordability Period, the owner of
record before the foreclosure or other transfer, or any entity that includes the former owner
or those with whom the former owner has or had formerly, family or business ties, obtains
an ownership interest in the Project or the Property, the Affordability Period shall be revived
according to its original terms.
5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date this Declaration is recorded in the Office of the Recorder of the
County of Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of the CITY or any other person entitled to enforce
this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time to time thereafter, or an estoppel against the enforcement
thereof.
6. Costs and Attorney's Fees. ln any proceeding arising because of failure of
Declarant or any future owner of the Property to comply with the Covenant and Restrictions
required by this Declaration, as may be amended from time to time, the CITY shall be
entitled to recover its costs and reasonable attorney's fees incurred in connection with the
successful enforcement of such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Property may exempt
itself from liability for failure to comply with the Covenant and Restrictions required in this r\^V'56929\1 26532v3 Page 3 of 5
Declaration; provided however, that upon the transfer of the Property, the transferring
owner shall be released from liability hereunder, upon CITY's written consent of such
transfer, which consent shall not be unreasonably withheld, conditioned or delayed.
8. Severability. The invalidity of the Covenant and Restrictions or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
L Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
10. lnterpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the CITY and Declarant.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the HOME
Agreement.
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.
15. Neither Declarant nor any of its general and limited partners shall have any
personal liability for the obligations under this Declaration. The sole recourse of the City
shall be the exercise of its rights against the Propefty pursuant to the Deed of Trust and
Lender shall have no right to seek or recover any deficiency amount from Declarant or any
partner of Declarant.
ilt
ilt
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56929\1 26532v3 Page 4 of 5
lN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on
the date first written above.
DECLARANT:
Parc Grove Commons Northwest, LP, a California limited partnership
By: Silvercrest, lnc., a California non-profit Public benefit corporation
Its: Managing General Partner
By: Preston Prince, Director
By: Parc Grove Commons Northwest AGP, LLC, a California limited liability
company
Its: Administrative General Partner
By: Housing Authority of the City of Fresno, California, a public body
corporate and politic
By: Preston Prince, CEO/Executive Director
DATE:
56929\1 26532v3 Page 5 of 5 6\0
EXHIBIT ..A'' TO DECLARATION OF RESTRICTIONS
PROPERTY DESCRIPTION
41
Exhibit A - Property Descritpion
LEGAL DESCRIPTION
The follow¡ng descnbed pr,operty rn the Gty of Frcsno, County of Fresno, State of California.
Parcel 1:
All that po¡tion of the NoÊh parcel of the land conveyed by the Grant Deed recorded March
18, 2oo9 as Doq¡ment No.20Gl-o036380, Ofricial Records Fresno County, being a port¡on of
Parcel 1 of Parrel ilap No. 69-15, according to the map thereof recorded ln Book 1 of Parcel
Maps at Page 69, Fresno County Records, situated in the Southeast quaÉerof Section2T,
Township 13 South, Range 2O EasÇ Mount Diablo Base and Meridian, acoording to the
Official United States Government Township Plat thereof, In the City of Fresno, County of
Fresno, State of California, described as follows:
BEGII{NING at a polnt on the Norlúr line of said Parel 1, said point being South 89o59'(H"
WesÇ 54.97 feet f¡om the Northeast comer of sald Parcel l; tlrence South 00000'16" West,
95.8f fee$ thence Soutlr 89o59'tn" East 48.24 feet to a point on the ease¡nent line
descriH as Parcel A of the Declaraüon of Access and Utility Easement recorded January 28,
2010 as Document No. 2010-0O1(H¡¡9, Official Records Fresno @unty; tlrence along said
easement line of safd Docr¡ment No. 201O-0OI:O439, the following two oourses:
1) continuing South 89o59'44o East, 4.36 feet to tlre beginning of a tangent cuFye concave to
the Southwest having a radius of 24.50 feeg thence
2) Southeasterly, 7.O5 feet along said curve through a cent¡al angle oll;6028'47"; thence
South 00000'16'West, t97.22feet on a non-tangent line to last sald cr¡rue and leaving the
easement line of said Document No. 2010-0010439, to a po¡nt on the Southeily boundary of
the Norür pa¡lel of the land conveyed by said Document llo. 2009-003638O; ttrence along
the Southerly boundary of the land conveyed by said Document No. 20O9-O036380, the
following fourteen oounees:
f) Soutlr 89058'20o West, 13.83 feet; thence
2) South OOoOI'39'Eastr 8.O4 feeÇ thence
3) South 89058'20'WesÇ 16f.58 feeÇ thence
4) South 00oO1?0'East, 13.30 feeÇ thence
5) South 89058'20o West, 29.58 feeÇ thence
6) South OOoOI?O'East, 185.49 feeg tlrence
7) South O0olO?3'WesÇ 80.34 feeg thenæ
8) South 89058'20'West 78.08 feeg thenæ
9) South 00oO1?0'EasÇ 75.51feeÇ thence
fO) South 89058'20o WesÇ 194.25 feeÇ thence
11) Soutñ 1305236'Wesç 2.87 feeÇ thence
12) South 89c4633'WesT 2t7.l0 feeg thence
13) Nodñ 00001'40" West, 24.t1feeg tñence
14) South 89058'20" Wesq 66.8f feet to the Southwest corner of the Nortr paÌcel of the
land conveyed by said Docr¡ment No. 2OO9-0036380, said Southwest @rner also being a
point on the West line of Parcel I of said Parcel Map No. 69-15; tñence NoÊh 00004,00'
West, 255.36 feet along the West line of said Parcel 1 to the Southwest oorner of Parcel 2 of
said Parcel Map No. 69-15; thence along the Southerly and Easterly boundary of said Parcel
2 the following four cources:
1) North 89059'04'EasÈ 150.88 feeg thence
2) North O0oO4'00" Wesq 90.99 feeg tlrence
3) Nor{lr 89c59'04' Éasfiú 7 4.94 feeÇ thence
4) North OOoO4'00'West, 289.97 feet to the Northwest corîû of said Parcel 1; thence ilorllr
89059'04'East,477.M feet along the Noilfi line of said Parcel 1, to the POINT OF
BEGI]INING.
Gontains an area oÍ 7,73 acnss, more or less.
6q
Bäsis of Bearings fior this description ts tñe West llne of Parcel I of Parcel Map No. 69-15,aoording b the map thereof recorded in Book I of Paræl Maps at Page 69, fresno County
Recotds. Taken to be No¡lfi 00o 04'O0" West.
Eeing the land conveyed in Grant Deed recorded Decembes 61 2Ùf-2as Document No. ZOLZ-
0176596, Official Records Fr€sno Gounty.
Parcel2:
Accesç and Utility Easements contained in that certain Instrument entitled'Amendment and
Restatement of Decla¡atlon of Aocess and Utility Easement and Reclprocal Easement
Agrcemenf'recorded February 20, ZOt,g as Instrument llo. 2013-o6a7 qL
of Official Recolds of F¡esno County, California.
Parcel3!
The nonerclusive rights to use the Common Arcas contalned in that certain Insilrument
entltled "Facilities Reciprocal Use Agreement'¡ecorded February 20,2Ol;3 as tnstrument No.
2013- oo 2lqt q of Ofricial Reoords of Frcsno County, Californla.
Paræ|4:
An Easement lq ingress and egrcss to maintain tlrat certain Block Wall as onveyed per
Document entiüed oAgreement to Provide Masonly Wall Between Residential anãl
Contmercial Propefi'recorded April 26, 1983 as Instrument No. 83035820 of Official
Records of Frcsno County, California over that porüon of Parcel 2 of Paret Map No. 69-15, in
the City of Frcsno, County of Fresno, State of California according to the map tirereof
recorded in Book 1 Page 69 of Parael Maps, in the office of the County Recorder of said
Gounty, the exact loc¡tion or width of said Easement is not disclosed by the Docr¡ment.
#