HomeMy WebLinkAboutRedding Retirement Housing - HOME - Sierra Gateway Senior Residence II - 2011Recorded at the Request of
and When Recorded Return to:
City of Fresno
City Clerk's Office
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
This Agreement is recorded at the request and for the benefit of the City of Fresno and is exempt
from the payment of a recording fee pursuant to Government Code Section 6103
CITY OF FRESNO
gy ,
Mark Scott, City Manager
Date: / - �7j:7 -/Z
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
HOME Investment Partnerships Program Agreement
by and between
CITY OF FRESNO,
a municipal corporation
RITAI
Redding Retirement Housing Corp.
a California Nonprofit Public Benefit Corporation
regarding
Sierra Gateway Senior Residence II
Affordable Multi -Family Senior Housing
Adjacent to property at the southwest corner of
West San Jose Avenue and North Marty Avenue
Fresno, CA 93711 (APN: 415-044-59)
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TABLE OF CONTENTS
Page
RECITALS............................................................................................................................
3
ARTICLE 1.
DEFINITIONS.................................................................................................
4
ARTICLE2.
TERMS...........................................................................................................
9
ARTICLE 3.
GENERAL REPRESENTATIONS AND
SPECIMEN CERTIFICATE OF COMPLETION
EXHIBIT F:
WARRANTIES OF DEVELOPER.................................................................
10
ARTICLE 4.
HOME PROGRAM REPRESENTATION AND
WARRANTIES OF DEVELOPER. . .......................................... ....................
11
ARTICLE 5.
COVENANTS AND AGREEMENTS OF DEVELOPER ................................
17
ARTICLE 6.
DISBURSEMENT OF HOME FUNDS...........................................................
21
ARTICLE 7.
DEVELOPMENT AND CONSTRUCTION OF PROJECT .............................
23
ARTICLE 8.
OPERATION OF SENIOR RENTAL HOUSING ............................................
28
ARTICLE 9.
INSURANCE, INDEMNITY AND BONDS .....................................................
32
ARTICLE 10.
DEFAULT AND REMEDIES........................................................................
34
ARTICLE 11.
GENERAL PROVISIONS............................................................................
36
EXHIBITS
EXHIBIT A:
PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT B:
PROPERTY DESCRIPTION
EXHIBIT C:
PROJECT BUDGET
EXHIBIT D:
SPECIMEN DECLARATION OF RESTRICTIONS
EXHIBIT E:
SPECIMEN CERTIFICATE OF COMPLETION
EXHIBIT F:
SPECIMEN PROMISSORY NOTE
EXHIBIT G:
SPECIMEN DEED OF TRUST
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HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
This HOME Investment Partnerships Program Agreement (hereinafter referred to as
the "Agreement") is entered into this, yL{ . 1� , 2011, by and between the City of
Fresno, a municipal corporation, acting through its Development and Resource
Management Department - Housing and Community Development Division (hereinafter
referred to as the "CITY"), and Redding Retirement Housing Corp., a California nonprofit
public benefit corporation (hereinafter referred to as "DEVELOPER").
RECITALS
WHEREAS, the CITY has received a HOME Investment Partnerships Program
(hereinafter referred to as "HOME Program") grant from the U.S. Department of Housing
and Urban Development (hereinafter referred to as "HUD"), under Title II of the Cranston -
Gonzalez National Affordable Housing Act of 1990, as amended (hereinafter referred to as
the "HOME Act"); and
WHEREAS, the DEVELOPER will act as owner/developer and exercise effective
project control as to the construction of a sixty-eight (68) Unit apartment complex, of which
sixty-seven (67) units shall be constructed and preserved as Low —Income and Very Low -
Income Senior Rental Housing for seniors age sixty-two (62) and over, and related on-site
and off-site improvements, pursuant to and with primary funding under HUD's Supportive
Housing for the Elderly Program under Section 202 of the Housing Act of 1959, as
amended, including related provisions at Section 811 of the Cranston -Gonzalez National
Affordable Housing Act and its implementing regulations are 24 CFR 891 et seq. and
related HUD Capital Advance Documents (collectively "Section 202 Program") incorporated
herein by this reference (the "Project", as further defined herein), as more particularly
described in the attached EXHIBIT "A", upon HOME eligible property to be owned by the
DEVELOPER, located adjacent to the property located at the southwest corner of West
San Jose Avenue and North Marty Avenues, within the boundaries of the City of Fresno, as
more particularly described in the attached EXHIBIT "B" (the "Property"); and
WHEREAS, the Project will provide for the construction of sixty-eight (68) affordable
senior rental housing units, of which one (1) will be an on-site manager unit, at the Property
identified in EXHIBIT "B"; and
WHEREAS, to further its goal to increase the supply of Affordable Housing within
the City of Fresno, the CITY desires to assist the DEVELOPER by providing a Seven
Hundred Fifty Thousand dollar and 00/100 ($750,000.00) zero percent interest, deferred
payment forgivable HOME Program Loan as provided hereunder, for the Project, as further
identified in EXHIBIT "C" (Project Budget), for eligible costs, to be secured by the
underlying real property and the Affordable Housing covenants (hereinafter referred to as
"Loan"), upon the terms and conditions in this Agreement; and
WHEREAS, the CITY has determined that this Agreement is in the best interest of,
and will materially contribute to, the Housing Element of the General Plan. Further, the
CITY has found that the Project: (i) will have a positive influence in the neighborhood and
surrounding environs; (ii) is in the vital and best interests of the CITY, and the health,
safety, and welfare of CITY residents; (iii) complies with applicable federal, state, and local
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laws and requirements; (iv) 'Nill increase, improve, and preserve the community's supply of
Low -Income Senior Housing available at affordable housing cost to Seniors of Low -Income,
as defined hereunder; (v) planning and administrative expenses incurred in pursuit hereof
are necessary for the production, improvement, or preservation of Low -Income Senior
Housing, and (vi) will comply with any and all owner participation rules and criteria
applicable thereto; and
WHEREAS, the environmental effects of the Project have been assessed resulting
in a Finding of No Significant Impact pursuant to the National Environmental Policy Act
(NEPA) completed on September 24, 2004 as EA No. H-2004-15, and Finding of
Conformity to the 2025 General Plan Master Environmental Impact Report pursuant to the
California Environmental Quality Act (CEQA) completed on October 28, 2004 as EA No. H-
2004-15, and the HOME Funds have been approved by HUD for release pursuant to 24
CFR Part 58; and
WHEREAS, the CITY and the DEVELOPER have determined that the HOME
Funded Project constitutes routine programmatic/grantee lender activities utilizing available
and allocated program/grantee funding, outside the reach of California Constitution Article
XXXIV and enabling Iegislaton.
NOW, THEREFORE, IN CONSIDERATION of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration heref:,y acknowledge, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terms have the meaning and content set forth in this Article wherever used in
this Agreement, attached exhibits or attachments that are incorporated into this Agreement
by reference.
1.1 ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
1.2 Acquisition means vesting of the Property in fee title.
1.3 Affirmative Marketing means a good faith effort to attract eligible persons of
all racial, ethnic and gender groups, in the housing market area, to rent the proposed
Housing Unit(s) that are proposed for construction on the eligible Property, as hereinafter
defined.
1.4 Affordability Period means the minimum period of fifty-five (55) years
commencing from the date the CITY enters project completion information into HUD's
Integrated Disbursement and Information System (IDIS), which date will be provided to the
DEVELOPER by the CITY e.nd added as an administrative amendment hereto; City agrees
to enter project completion information into IDIS within 30 days of City's receipt thereof.
1.5 Affordable Housing means the rental housing units of which all will be
required to meet the affordability requirements of 24 CFR 92.252.
1.6 Budget means the Budget for the development of the Project, as may be
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amended upon the approval of the CITY's Housing and Community Development Division
Manager provided any increase in HOME Funds hereunder requires City Council Approval,
attached hereto as EXHIBIT "C".
1.7 Certificate of Completion means that certificate issued, in the form attached
as EXHIBIT "E" ("Specimen Certificate of Completion"), to the DEVELOPER by the CITY
evidencing completion of the Project and a release of construction related covenants for
the purposes of the Agreement.
1.8 CFR means the Code of Federal Regulations.
1.9 Commencement of Construction means the time the DEVELOPER or the
DEVELOPER's construction contractor begins substantial physical work on the Property,
including, without limitation, delivery of materials and any work, beyond maintenance of the
Property in its status quo condition, which shall take place no later than thirty (30) calendar
days following the HUD 202 Closing as hereinafter defined.
1.10 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT "D", which the DEVELOPER shall record or cause to be
recorded against the Property no later than the date of Commencement of Construction,
setting out the Affordable Housing covenants and requirements of this Agreement which
shall run with the land.
1.11 Deed of Trust means the Short Form Deed of Trust and Assignment of Rents
in use by Lawyers Title Company("Title Company") given by the DEVELOPER, as Trustor,
to the CITY, as Beneficiary, with Title Company as Trustee, substantially in the form
attached hereto as EXHIBIT "G", recorded against the Property not later than date of the
making of the Loan, insured in the full amount of the Loan by a CLTA lender's policy, as
well as any amendments to, modifications of, and restatements of said Deed of Trust,
which shall be second and junior in lien to a deed of trust made by Trustor in favor of the
Secretary of Housing and Urban Development ("Secretary") to be recorded concurrently
securing a Capital Advance made by the Secretary pursuant to Section 202 of the Housing
Act of 1959, as amended, or Section 811 of the Cranston -Gonzales National Affordable
Housing Act and to a Regulatory Agreement and Use Agreement between Trustor and the
Secretary with respect to the Property referred to herein. The terms of any such Deed of
Trust are hereby incorporated into this Agreement by this reference.
1.12 Eligible Costs means those Project costs in the Budget, incurred by the
DEVELOPER before the CITY issues the Certificate of Completion, and related to Property
acquisition and Project pre-development/development costs for which HOME Funds may
be used as specified in 24 GFR 92.205 and 92.206, and not disallowed by 24 CFR 92.214,
provided, however, that costs incurred in connection with any activity that is determined to
be ineligible under the Program by HUD or the CITY shall not constitute Eligible Costs.
1.13 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder
1.14 Family has the same meaning given that term in 24 CFR 5.403.
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1. 15 Hazardous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous
substances," "hazardous wastes," "hazardous materials," "pollutants," 'contaminants" or
"toxic substances" under federal or state environmental and health safety laws and
regulations, including without limitation, petroleum and petroleum byproducts, flammable
explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed in the normal
course of developing, operating or occupying a housing project, to the extent and degree
that such substances are stored, used and disposed of in the manner and in amounts that
are consistent with normal practice and legal standards.
1.16 HOME Investment Partnerships Proqram Funds (also referred to in this
Agreement as HOME Funds) means the HOME Program monies in an amount not to
exceed the sum of Seven Hundred Fifty Thousand dollars and 00/100 ($750,000.00),
provided to the DEVELOPER as a zero -interest deferred forgivable loan, to be used for
eligible Project development. costs, pursuant to this Agreement.
1.17 Household means a Senior Household consisting of one or more persons
whose primary occupant is 62 years of age and over, or a single person 62 years of age
and over, meeting the requirements of the HUD Section 202 Program during the term of
the HUD Capital Advance Documents (as hereinafter defined), and for the fifteen (15)
years following the HUD Capital Advance Documents term, it shall mean one or more
persons whose primary occupant is 62 years of age or over who has an annual income of
eighty percent (80%) or less of Fresno median income as set forth in section 1.32 below.
1.18 HUD means the United States Department of Housing and Urban
Development.
1.19 HUD Capital Advance shall mean the financial assistance to be provided by
HUD to the DEVELOPER for development of the Project thereon.
1.20 HUD Capital Advance Agreement shall mean the agreement between HUD
and the DEVELOPER pursuant to which HUD provides a HUD Capital Advance to the
DEVELOPER for the Project.
1.21 HUD Capital Advance Documents shall collectively refer to the HUD Note,
Deed of Trust, Regulatory Agreement, Use Agreement, Capital Advance Agreement and
Project Rental Assistance Contract as required by Section 202 of the Housing Act of 1959,
as amended, or by Section 811 of the Cranston -Gonzalez National Affordable Housing Act
("the Act").
1.22 HUD Capital Advance Program means the program established under the
Act.
1.23 HUD Closing shall mean the point in time when all conditions of the HUD
Firm Commitment is satisfied permitting the Project to commence construction.
1.24 HUD Deed of Trust means that Deed of Trust securing the HUD Capital
Advance in favor of HUD.
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1.25 HUD Firm Commitment shall mean the written commitment by HUD to the
DEVELOPER to provide the HUD Capital Advance on terms set forth in such commitment.
1.26 HUD Note means the Promissory Note evidencing the HUD Capital Advance
in favor of HUD and secured by the HUD Deed of Trust.
1.27 HUD Regulatory Agreement means the Regulatory Agreement encumbering
the Property by and between the DEVELOPER and the Secretary of HUD.
1.28 HUD 202 Program means the program established under the Act.
1.29 Loan means the zero -interest deferred forgivable loan of Seven Hundred Fifty
Thousand dollars and 00/100 ($750,000.00) in HOME Funds, made by the CITY to the
DEVELOPER, for eligible Project development costs, pursuant to this Agreement, as more
specifically described in this Agreement and the Note.
1.30 Loan Documents are collectively this Agreement, the Note (attached hereto
as EXHIBIT "F"), Deed of Trust, Declaration of Restrictions, and all related
documents/instruments as they may be amended, modified or restated from time to time
along with all exhibits and attachments thereto, relative to the Loan.
1.31 Low -Income Household means those Senior households whose annual
income does not exceed eighty percent (80%) of the median income for the Fresno,
California area as determined by HUD, except as HUD may establish income ceilings
higher or lower than 80% of the median for the area on the basis of HUD findings that such
variations are necessary. Notwithstanding the foregoing, during the term of the HUD
Capital Advance Documents occupancy of the Project should be in accordance with HUD
Section 202 requirements, which is limited to Very Low -Income Households of fifty percent
(50%) of median income for the area.
1.32 Note means that certain zero -interest, deferred forgivable Note in a principal
amount not to exceed Seven Hundred Fifty Thousand dollars and 00/100 ($750,000.00), as
provided herein, 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 a Deed of Trust as 2nd position or better lien upon the Property,
naming the CITY as beneficiary and provided to the CITY no later than the date of the HUD
Closing, in the form attached hereto as EXHIBIT "F", as well as any amendments to,
modifications of and restatements of said Note. The terms of the Note are hereby
incorporated into this Agreement by this reference.
1.33 Project means the construction of the sixty-seven (67) Unit apartment
complex for Senior Households and one (1) of which is a manager's unit, to be known as
Sierra Gateway Senior Residence II, at the Property and preservation of the Project as
rental housing for Low -Income and Very Low -Income Senior Households, to be assisted
with HOME Funds, while meeting the Affordable Housing, income targeting and other
requirements of 24 CFR 92.252 for the fifty-five (55) year Affordability Period, all as
described in the Project Description attached hereto and incorporated herein as EXHIBIT
"A", upon the Property as more particularly described in EXHIBIT "B", provided that during
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the term of the HUD Capital Advance Documents the occupancy and tenant income
limitations of the HUD 202 Program shall be applicable and, in the event of a conflict, the
HUD Section 202 Program requirements shall control. In the event of a conflict between
the HUD 202 Program requirements and the HOME requirements the matter shall be
submitted to HUD for determination.
1.34 Project Completion Date means the date that the CITY shall have determined
that the Project: 1) has reached completion in accordance with the plans and specifications
as approved by the CITY; 2) is in compliance with all Housing Standards, and 3) has been
issued a Certificate of Occupancy. The project Completion Date for this Project is identified
in EXHIBIT "A", or as extended by HUD and noticed to the CITY.
1.35 Project Schedule means the schedule for completion of the Project included
in EXHIBIT "B".
1.36 Property means the real property described in EXHIBIT "B".
1.37 Rent means the total monthly payments a tenant pays for a Unit including the
following: use and occupancy of the Unit and land and associated facilities, including
parking (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, electricity,
gas and other heating, cooking and refrigeration fuel, 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.
1.38 Rental Housing is the sixty-eight (68) units of senior apartments to be
constructed and having a project name of Sierra Gateway Senior Residence 11, to be
located at the Property, and which sixty-seven (67) Units in the Project shall be preserved
as rental housing for households as set forth in EXHIBIT "A" hereto.
1.39 Section 202 means that Section 202 of the Housing Act of 1959, The
Supportive Housing for the Elderly Program, implemented by 24 CFR 891 et seq., and all
HUD Capital Advance Documents thereunder.
1.40 Senior means an individual age sixty-two (62) years and over as provided in
the Section 202 Program.
1.41 Unit means a dwelling unit of the Rental Housing.
1.42 Very Low -Income Household means those Senior households whose annual
income does not exceed fifty percent (50%) of the median income for the Fresno, California
areas as determined by HUD, except as HUD may establish income ceilings higher or
lower than 50% of the median for the area on the basis of HUD findings that such
variations are necessary.
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ARTICLE 2. TERMS
2.1 Loan of HOME Funds. The CITY agrees to provide a Loan of HOME Funds
to the DEVELOPER, as provided herein, in an amount not to exceed Seven Hundred Fifty
Thousand dollars and 00/100 ($750,000.00), as needed, under the terms and conditions
provided in this Agreement. The HOME Funds shall only be used for the Project for
Eligible Project Costs under the HOME Program. The CITY acknowledges that the Loan of
HOME Funds is to pay for costs not included within the HUD Capital Advance and that all
CITY Loan Funds are to be disbursed before any HUD Capital Advance funds.
2.2 Loan Documents. The DEVELOPER shall execute and deliver, or cause to
be executed and delivered, to the CITY the Loan Documents including the Note, as
provided for in this Agreement, and the Declaration of Restrictions and Deed of Trust which
shall be recorded against the Property.
2.3 Term of Agreement. This Agreement is effective upon the date of execution
and shall remain in force until the end of the Project's Affordability Period. It is understood
and agreed upon, however, that if for any reason this Agreement should be terminated 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. After the fifty-five (55) year
Affordability Period, this Agreement will expire and the Loan will be forgiven unless at said
time the DEVELOPER is in material default under this Agreement and a Default has been
declared by City and not remedied at such time.
2.4 Loan Repayment and Maturity. The Loan shall be due and payable in full
upon any early termination of this Agreement including a termination due to Default,
provided that if the DEVELOPER fully complies with the terms of the Loan Documents and
HUD regulations at 24 CFR 92, upon expiration of the Affordability Period, the Loan shall
be forgiven and the Deed of Trust reconveyed, provided, further, that the Loan shall not be
accelerated during the term of the HUD Capital Advance Documents without the prior
written approval of HUD.
2.5 Incorporation of Documents. The Project proposal to the City dated April 15,
2011, the DEVELOPER's Resolution dated July 28, 2011, authorizing pursuit of the Project
according to the terms and conditions herein, CITY Council approved Minutes of
September 29, 2011, approving this Agreement, the Loan Documents, the Act and HUD
regulations at 24 CFR Part 92, the Section 202 Program, 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 covenants and agrees to
comply with all the terms and conditions of this Agreement and the DEVELOPER
covenants and agrees that the Project will comply with all the requirements of 24 CFR Part
92 and this Agreement. In the event of any conflict between the HOME requirements and
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the requirements of the HUE) Capital Advance Documents, the matter shall be submitted to
HUD for determination.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Existence and Qualification. The DEVELOPER, a duly organized California
nonprofit corporation, agrees that upon receiving a Fund Reservation from HUD for the
development of the Project, the DEVELOPER, shall for purposes of this Project do
business as Sierra Gateway Senior Residence II, a single asset entity with corporate
office in Glendale, California. The DEVELOPER shall neither be controlled by, nor under
the direction of, individuals or entities seeking to derive profit or gain from the organization.
The DEVELOPER shall have among its corporate purposes the provision of decent
housing that is affordable to Low -Income and Very -Low Income Seniors. The
DEVELOPER shall have the requisite power, right, and legal authority to execute, deliver,
and perform its obligations under the HOME Agreement as provided herein and shall take
all actions necessary to authorize the execution, delivery, performance, and observance of
its obligations under this Agreement. This Agreement, when executed and delivered, shall
constitute the legal, valid, and binding obligations of the DEVELOPER as provided herein,
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 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 Interest. The DEVELOPER represents and warrants as of the
date hereof that no 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.
3.4 No Legal Bar. The DEVELOPER represents and warrants 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; (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.
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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 or regulations.
3.6 No Litigation (ylaterial to Project. The DEVELOPER represents and warrants
as of the date hereof that, except as disclosed to, and approved by the CITY in writing,
there is no action, proceeding, or investigation now pending, or any basis therefor known or
believed to exist by 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 on 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, and 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, excluding
the Project building and land use permits and approvals which shall be obtained before
commencement of construction.
ARTICLE 4. HOME PROGRAM REPRESENTATION AND WARRANTIES BY
DEVELOPER
The DEVELOPER, for itself and its development team, represents and warrants that:
4.1 Accessibilitv. The DEVELOPER warrants, covenants and agrees that it shall
comply with all federal regulations concerning accessibility requirements in federally funded
housing, including, but not limited to the following:
A. At least five percent (5%) of the dwelling units, or at least four (4) units,
whichever is greater, must be constructed to be accessible for persons with mobility
disabilities. An additional two percent (2%) of the dwelling units, or at least two (2) 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 Accessibility
Standards (UFAS) or a standard that is equivalent or stricter. These mandates can be
found in 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794).
B. The design and construction requirements of the Fair Housing Act
(Title VIII 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.
Construct accessible and usable public and common use areas
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iii. Construct all doors to be accessible and usable by persons in
wheelchairs.
iv. 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, tubs, 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 III of the Americans with Disabilities Act of 1990 (ADA) as it
relates to the required accessibility of public and common use areas 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;
ii. All interior doorways and passageways at least 32 inches wide;
iii. One downstairs "flex room" and accessible bathroom with
reinforcements for grab bars;
iv. Six square feet of accessible kitchen counter space; and
V. Hallways at least 42 inches wide.
4.2 Affirmative Marketing. The DEVELOPER warrants, covenants and agrees
that it shall comply with all affirmative marketing requirements, including without limitation,
those set out at 24 CFR 92.350, 24 CFR 92.351, in order to provide information and
otherwise attract eligible persons from all racial, ethnic and gender groups in the housing
market in the rental of Project Units. 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
constructed in the future, and to assess the results of these actions. The CITY shall accept
the Section 202 Program marketing documents and records in lieu of those required by this
section. The DEVELOPER shall furnish the CITY with a copy of the Section 202 Program
marketing documents given by HUD. During the term of the HUD Capital Advance
Documents, compliance with the HUD affirmative marketing requirements shall be deemed
compliance with the requirements of this provision.
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 said Funds be encumbered, withdrawn or otherwise made unavailable to the
CITY, whether earned by or promised to the DEVELOPER, the CITY shall not provide said
Funds unless and until they are made available for payment to the CITY by HUD and the
J.lb eiorcz Gateway Pease lMOME AOIoemeeMeua Gateway Pease ll Final real Neelpow
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CITY receives said Funds. No other funds owned or controlled by the CITY shall be
obligated under this Agreement.
4.4 Compliance with Agreement. 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 10.1 of this
Agreement, the CITY may suspend or terminate this Agreement and all other agreements
with the DEVELOPER without waiver or limitation of rights/remedies otherwise available to
the CITY, subject to HUD's prior approval during the term of the Capital Advance
Documents.
4.5 Conflict of Interest. The DEVELOPER represents and warrants as of the date
hereof that no official, officer, agent, or employee of the CITY directly or indirectly owns or
controls any interest in 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. The DEVELOPER warrants, covenants and agrees that it shall comply with the
Conflict of Interest requirements of 24 CFR 92.356 including, without limitation, that no
officer, employee, agent or consultant of the DEVELOPER (other than an employee or
agent of the DEVELOPER who occupies a unit as the project manager or maintenance
worker) may occupy a Project Unit. The DEVELOPER understands and acknowledges
that no employee, agent, consultant, officer or elected official or appointed official of the
CITY, who exercises or has exercised any functions or responsibilities with respect to the
Project, or who is in a position to participate in a decision making process or gain inside
information with regard to these activities, may obtain a financial interest or benefit from the
Project, or have an interest in any contract, subcontract or agreement with respect thereto,
or the proceeds there under, either for him or herself or for anyone with which that person
has family or business ties, during his or her tenure or for one year thereafter. To the
extent provided at 24 CFR 92.356(f), no owner, developer or sponsor of the Project, or
officer, employee, agent or consultant thereof, may occupy a Project Unit.
4.6 Construction Standards. The DEVELOPER shall construct the proposed
housing units assisted under this Agreement in compliance with all applicable local codes,
ordinances and zoning requirements in effect at the time of issuance of Certification of
Completion. In the absence of a local code for construction, the DEVELOPER agrees to
comply with the applicable standards identified in 24 CFR 92.251.
4.7 Covenants and Restrictions to Run with the Land. The CITY and the
DEVELOPER expressly warrant, covenant and agree to ensure that the covenants and
restrictions set forth in this Agreement shall run with the land by Declaration of Restrictions
and shall bind all successors in title to the Senior Rental Housing, provided, however that
on expiration of this Agreement and the Affordable Housing requirements therein said
covenants and restrictions shall expire. CITY and the DEVELOPER further warrant,
covenant and agree that the covenants and restrictions set forth herein shall run in favor of
the CITY.
A. The CITY and the DEVELOPER hereby declare their understanding
and intent that the covenants and restrictions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and ownership of the Rental Housing by certain
Very Low and Low -Income Senior Households, and (b) by making possible the obtaining of
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advantageous financing for construction.
B. The DEVELOPER covenants and agrees that from the date the Project
information is entered into HUD's Integrated Disbursement and Information System which
date shall be provided to the DEVELOPER by the City by an administrative amendment
hereto, until the expiration of the Affordability Period, it shall cause the Rental Housing to
be used for Affordable Housing.
C. In the event that the DEVELOPER fails to comply with the time period
in which the Project must constitute Affordable Housing, the CITY shall, without waiver of
limitation, be entitled to injunctive relief, as the DEVELOPER acknowledges that damages
are not an adequate remedy at law for such breach.
D. Without waiver or limitation, the CITY shall be entitled to injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be entitled to damages available under law or contract
for any injuries or losses resulting from any violations thereof.
E. All present and future owners of the Rental Housing, and other
persons claiming by, through, or under them shall be subject to and shall comply with the
covenants and restrictions of this Agreement. The acceptance of a deed of conveyance to
the Rental Housing, 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 Rental Housing, all as though such covenants and restrictions were recited
and stipulated at length in each and every deed, conveyance, mortgage or lease thereof.
F. 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.
G. This Agreement, the Deed of Trust and the Declaration of Restrictions
shall be subject and subordinate to the HUD Capital Advance Documents including, but not
limited to, the HUD Deed of TYust, the HUD Regulatory Agreement and the HUD Use
Agreement.
H. In the event the HUD Project Rental Assistance Contract ("HUD
operating subsidy") is discontinued during the term of the anticipated HUD Capital Advance
Period, the then owner of the Project shall be entitled to rent to Low -Income Senior
Households as defined herein and the income and rental restrictions shall be automatically
modified to be consistent with this provision.
4.8 Displacement of Persons. The DEVELOPER warrants, covenants and
agrees that pursuant to 24 CFR 92.353, it will take all reasonable steps to minimize the
displacement of any persons (families, individuals, businesses, nonprofit organizations and
farms).
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4.9 Initial and Annual Income Certification and Reporting. The DEVELOPER
warrants, covenants and agrees that it shall comply with the procedures for initial and
annual income determinations at 24 CFR 92.203, The DEVELOPER, shall obtain,
complete and maintain on file, immediately prior to initial occupancy, and annually
thereafter, income certifications from each tenant Senior Household renting any 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 cis part of the verification process: (1) obtain a pay stub for the
most recent pay period; (2) obtain an income verification form from the applicant's current
employer; (3) obtain an income verification form from the Social Security Administration
and California Department of Social Services if the applicant receives assistance from
either of such agencies; (4) if the applicant is unemployed and has no such tax return,
obtain another form of independent verification, or (5) conduct a credit agency or similar
search. Copies of tenant income certification and verification must be available for review
by the CITY upon request. CITY shall accept Section 202 Program certifications and
reporting in lieu of that required by this section to the extent consistent therewith and in the
event of a conflict the HUD requirements shall control. The DEVELOPER shall furnish
CITY with a copy of the Sec -ion 202 Program certifications and reporting given to HUD.
4.10 Lead -Based Paint. The DEVELOPER warrants, covenants and agrees that it
shall comply with all applicable requirements of the Lead -Based Paint Poisoning
Prevention Act of 42 U.S.C. 4821 et seq., 24 CFR Part 35 including the HUD 1012 Rule,
and 24 CFR 982A010), any amendment thereto, and EPA Section 402 (c)(3) of the Toxic
Substances Control Act (TSCA) to address lead-based hazards created by renovation,
repair, and painting activities that disturb lead-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 in the
Senior Rental Housing Project. The DEVELOPER shall incorporate or cause incorporation
of this provision in all contracts and subcontracts for work performed on the Project, which
involve the application of paint. The DEVELOPER shall be responsible for all disclosure,
inspection, testing, evaluation, control and abatement activities.
4.11 Minority Outreach Activities. The DEVELOPER warrants, covenants and
agrees that it shall comply with all federal laws and regulations described in Subpart H of
24 CFR Part 92, including, without limitation, any requirement that the DEVELOPER
comply with the CITY's minority outreach program. During the term of the HUD Capital
Advance Documents, compliance with HUD's Minority Outreach requirements for the
Section 202 program shall satisfy the requirements of this provision.
4.12 Other Laws and Regulations. The DEVELOPER warrants, covenants and
agrees that, in addition to complying with the federal laws and regulations already cited in
this Agreement, the DEVELOPER has reviewed, and shall comply with, all other federal
laws and regulations that apply to the HOME Program, including, without limitation, the
following requirements follows:
A. The Flood Disaster Protection Act of 1973, as amended (42 U.S.C.
4001-4128), and all other regulations as identified in 24 CFR 58.6.
The Project is not located in a tract identified by the Federal
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Emergency Management Agency as having special flood requirements.
B. The Project requirements, Subpart F of 24 CFR Part 92, as applicable
and in accordance with the type of Project assisted, including, but not limited to, the limit on
per-unit subsidy amount at 2.4 CFR 92.250.
C. The property standards at 24 CFR 92.251.
D. The Project "Labor" requirements, as applicable, of 24 CFR 92.354
including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
E. The provisions of Section 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction and management of the
proposed Project.
F. The DEVELOPER and its contractors, subcontractors and service
providers for the Project, shall comply with all applicable local, state and federal
requirements concerning equal employment opportunity, including compliance with
Executive Order (E.O.) 11246, "Equal Employment Opportunity", as amended by E.O.
11375, "Amending E.O. 11246 Relating to Equal Employment Opportunity," and as
supplemented by regulations at 41 CFR part 60, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor".
G. 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").
H. The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended.
I. The provisions of the Byrd Anti -Lobbying Amendment (31 U.S.C.
1352).
J. The provision of Executive Orders 12549 and 12689, "Debarment and
Suspension," as set forth at 24 CFR part 24.
K. The provisions of the Drug -Free Workplace Act of 1988 (42 U.S.C.
701), in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.
L. Title 8 of the Civil Rights Act of 1968 PL. 90-284.
M. Executive Order 11063 on Equal Opportunity and Housing.
N. Section 3 of the Housing and Urban Development Act of 1968
O. The Housing and Community Development Act of 1974.
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4.13 Faith Based Activities. With regard to matters pertaining to the Project, the
DEVELOPER warrants, covenants and agrees that it is shall not engage in any prohibited
activities described in 24 CFR 92.257.
4.14 Reporting Requirements. The DEVELOPER warrants, covenants and agrees
that it shall submit performance reports to the CITY as detailed in Section 7.16.
Furthermore, the DEVELOPER agrees to provide, at the sole cost of the DEVELOPER, an
annual audited Financial Statements for the 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). CITY shall accept the annual audited
financial statement submitted to HUD under the HUD Section 202 Program as compliance
with this section. The DEVELOPER shall furnish CITY with a copy of the Section 202
Program annual audited financial statement given to HUD.
4.15 Affordability Period. During the term of the HUD Capital Advance Documents
and thereafter, the DEVELOPER warrants, covenants and agrees that the Senior Rental
Housing will meet the Affordable Housing income targeting and other requirements of 24
CFR 92.252 during the Affoidability Period. The Units shall, at a minimum, be rented to
and occupied by, or if vacant, available for rental and occupancy by Low- and Very Low -
Income Senior Households provided for in EXHIBIT "A" hereto for the Affordability Period
except upon foreclosure by a lender or transfer in lieu of foreclosure following default under
a Deed of Trust. However, if at any time following 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 or those whom such owner of record has or had family or business ties,
obtains an ownership interest in the Project or Property, the Affordability Period shall be
revived according to its original terms except as provided in Section 11.23 hereof. The
CITY shall accept the HUD Capital Advance Documents as compliance with the provisions
of this Section 4.15 and in the event of a conflict the HUD Capital Advance Documents
shall control. In the event of any conflict between the HOME requirements and the HUD
Capital Advance Documents the matter shall be submitted to HUD for determination.
4.16 Terminated Projects. The DEVELOPER understands and agrees that, if the
Project is terminated before the commencement of the term of the HUD Capital Advance
Documents, either voluntarily or otherwise, such constitutes an ineligible activity and any
HOME Funds disbursed hereunder must be repaid to the CITY's HOME Investment Trust
Fund in accordance with 24 CFR 92.503(b) subject to HUD approval.
ARTICLE 5. COVENANTS AND AGREEMENTS OF DEVELOPER
The DEVELOPER, for itself and its development team, covenants and agrees to the
following, for the entire term of the Agreement.
5.1 Adequate Repair and Maintenance. The DEVELOPER shall, during the
entire Affordability Period, maintain the Project and Property in compliance with all
applicable codes, laws, and ordinances.
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5.2 Compliance With Environmental Laws. The DEVELOPER shall cause the
Project to be in compliance with, and not to cause or permit the Senior Rental Housing
project to be in violation of, any environmental law, rule, regulation, ordinance, or statute.
Although the CITY will utilize its employees and agents for regular inspection and testing of
the eligible Property, the DEVELOPER agrees that, if the CITY has reasonable grounds to
suspect any such violation, the DEVELOPER shall be entitled to thirty (30) days' notice and
opportunity to cure such violation. If the suspected violation is not cured, the CITY shall
have the right to retain an independent consultant to inspect and test the eligible Property
for such violation. If a violation is discovered, 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 involved with the
inspection, testing, removal or abatement of asbestos or other hazardous or toxic
chemicals, materials, substances, or wastes and that all cost, expense and liability for such
work shall be and remain solely with the DEVELOPER;
B. Not to transport to or from the proposed project site(s), or use,
generate, manufacture, produce, store, release, discharge, or dispose of on, under, or
about the project site(s), or surrounding real estate, or transport to or from the project
site(s), or surrounding real estate, any hazardous or toxic chemicals, materials, substance,
or wastes or allow any person or entity to do so except in such amounts and under such
terms and conditions permitted by applicable laws, rules, regulations, ordinances, and
statutes;
C. To give prompt written notice to the CITY of the following:
1. Any proceeding or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or
waste in or on the eligible Property or the surrounding real estate or the migration thereof
from or to other property;
2. All claims made or threatened by any third party against the
DEVELOPER, or such properties relating to any loss or injury resulting from any
hazardous or toxic chemicals, materials, substance, or waste; and
3. 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.
5.3 Compliance With Laws. The DEVELOPER shall be responsible for and
promptly and faithfully comply with, conform to and obey all present and future federal,
state and local statutes, regulations, rules, ordinances and other legal requirements
applicable by reason of this Agreement or otherwise to the Project including without
limitation prevailing wage and public bidding requirements. The DEVELOPER
acknowledges that the use of HOME Funds subjects the Project to extensive federal
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regulation and covenants and agrees that it shall comply with, conform to and obey (and
take steps as are required of the DEVELOPER to enable the CITY to comply with, conform
to and obey) all federal statues, regulations, rules and policies applicable to the Project.
The CITY and the DEVELOPER acknowledge that: (i) pursuant to 24 CFR 92.354, a
contract for the construction rehabilitation or new construction) of housing that includes
fewer than 12 units assisted with HOME funds need not contain a provision requiring the
payment of wages prevailing in the locality, as predetermined by the Secretary of Labor
pursuant to the Davis -Bacon Act (40 U.S.C. 276a -276a-5), to all laborers and mechanics
employed in the development of any part of the housing, or the overtime provisions, as
applicable, of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-332), and
(ii) pursuant to Cal. Labor Code 1720, the public participation in the Project that would
otherwise meet the criteria of a public work for which State prevailing wage is required
under Cal. Lab. Code 1720 et seq. is exempt where the public funding is in the form of a
below-market interest rate loans for a project in which occupancy of at least forty percent
(40%) of the units is restricted for at least twenty (20) years, by deed or regulatory
agreement, to seniors earning no more than eighty percent (80%) of the area median
income. Nonetheless, the DEVELOPER shall be solely responsible for determining and
effectuating compliance. Notwithstanding anything to the contrary contained herein,
nothing in this Agreement shall be construed as imposing any independent prevailing wage
requirements that are different from those imposed by applicable federal or state law. In the
event of a conflict between the requirements of the HOME Program and the HUD 202
Program, the matter shall be submitted to HUD for determination. Nothing in this section
shall limit or constitute a waiver by the DEVELOPER of rights available to it under law.
5.4 Existence. Qualification. and Authority. The DEVELOPER shall provide to
the CITY any evidence required or requested by the CITY to demonstrate the continuing
existence, qualification, and authority of the DEVELOPER to execute this Agreement and
to perform the acts necessary to carry out the Project.
5.5 Financial Statements and Audits. The DEVELOPER, as a subrecipient of
federal financial assistance, is required to comply with the provisions of the Single Audit Act
of 1984 (31 U.S.C. Sections 7501 et seq.), as amended. Annually, within one hundred and
eighty (180) days following: 1) the end of fiscal year(s) in which the HOME Funds are
disbursed hereunder, and 21 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, the
DEVELOPER, at its sole cost and expense shall submit to the CITY:
A. Audited annual financial statements that are current, signed, and
prepared according to generally accepted accounting principles consistently applied
(except as otherwise disclosed therein).
B. Audited Financial Statements covering the income and expenses, and
the financial transactions for the Project during the prior fiscal year.
C. CITY shall accept the annual audited financial statement submitted to
HUD under the HUD Section 202 Program as compliance with this section. The
DEVELOPER shall furnish CITY with a copy of the Section 202 Program annual audited
financial statement given to HUD.
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5.6 Inspection and Audit of Books Records and Documents. The DEVELOPER
shall be accountable to the CITY for all HOME Funds disbursed for this project pursuant to
this Agreement. Any duly authorized representative of the CITY, the State, or HUD shall,
at all reasonable times, have access to and the right to inspect, copy, make excerpts or
transcripts, audit, and examine all books of accounts, records, files and other papers or
property, and other documents of the DEVELOPER pertaining to the Project or all matters
covered in this Agreement and for up to six (6) years after the expiration or termination of
this Agreement.
A. The DEVELOPER will maintain books and records for the Project
using generally accepted accounting principles. The DEVELOPER agrees to maintain
books and records that accurately and fully show the date, amount, purpose and payee of
all expenditures financed with HOME 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 o! 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, except as provided in section 11.23.
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 such audit. The
DEVELOPER shall also comply with any applicable audit requirements of 24 CFR 92.506.
This section shall survive the termination of this Agreement, except as provided in section
11.23.
C. The DEVELOPER will cooperate fully with the CITY, the State, and
HUD in connection with any interim or final audit relating to the Programs and the Project
that may be performed relative to the performance of this Agreement.
5.7 Inspection of Property. Any duly authorized representative of the CITY, the
State, or HUD shall, at all reasonable times and in any manner allowed by law, have
access and the right to inspect the Property until completion of the Project and expiration of
the applicable Affordability Period, provided reasonable effort shall be made to provide the
property manager with a seventy-two (72) hours written notice, subject to the rights of the
tenants.
5.8 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 the Project's equity investment, deferred developer fee loan or grants and
construction or pre -development loans in relation to the Project without the prior written
consent of the CITY.
5.9 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
J \8 Si¢rta Ga10 vny Phase II W OM.[ AglmmonllSletta GRI.Ay PoaS¢ IIFlol F.rW Final dO.
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with regard to illegal discrimination, and the DEVELOPER shall not illegally discriminate
against any persons on account of race, religion, sex, family status, age, handicap, or place
of national origin in its performance of this Agreement and the completion of the Project.
5.10 Ownership. Except as required in pursuit hereof, 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 the prior written consent of
the CITY, which consent shall not be unreasonably withheld or delayed and excluding: (i) a
Transfer to HUD or HUD's transferee and (ii) any Transfer approved by HUD. "Transfer"
shall exclude the leasing of any single Unit in the Project.
5.11 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
assets or on the operation of the Project(s), except such obligations and liabilities that have
been disclosed to the CITY in writing and are being contested in good faith.
5.12 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 Use of HOME Program Funds. The DEVELOPER warrants, covenants and
agrees that it shall request HOME Program Funds limited to the amount needed for
eligible costs, including costs allowable under 24 CFR 92.206, aggregating not more than
Seven Hundred Fifty Thousand dollars and 00/100 ($750,000.00) and not otherwise paid
by Section 202 Program Funds. The CITY's obligations shall in no event exceed the
HOME Funds amount specified in this Agreement. Any Project costs exceeding Seven
Hundred Fifty Thousand dollars and 00/100 ($750,000.00), whether or not the costs qualify
as Eligible Costs, shall be the sole responsibility of the DEVELOPER.
A. If any such Funds shall be determined to have been requested and/or
used by the DEVELOPER for something other than eligible land acquisition reimbursement
or development costs, and subject to the notice and cure provisions of Section 10.2
hereunder, an equal amount from non-public funds shall become immediately due and
payable by the DEVELOPER to the CITY; provided, however, that the DEVELOPER shall,
subject to its full cooperation with the CITY, be entitled to participate in any opportunity to
remedy, contest, or appeal such determination.
B. In the event HOME Funds are requested to reimburse Eligible Costs
which subsequently lose eligibility as Eligible Costs, the DEVELOPER shall immediately
return such HOME Funds to the CITY.
C. The CITY acknowledges that the Loan of HOME Funds is to pay for
costs not included within the HUD Capital Advance and that all CITY Loan Funds are to be
disbursed before any HUD Capital Advance funds.
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6.2 Conditions Precedent to Disbursement. The CITY shall not be obligated to
make or authorize any disbursements of HOME Funds or take any other action under this
Agreement unless the following conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any act,
failure, omission or condition that with the passage of time or the giving of notice or both
would constitute an Event of Default.
B. The DEVELOPER has received and delivered to the CITY firm
commitments of, or Agreements for, sufficient funds to finance the Project.
C. The DEVELOPER, as to any eligible construction costs hereunder, has
entered into, and provided the CITY copies of proposed Project surety bonds, and
proposed agreements with all Funding Sources and contractors for the Project, provided
fully executed bonds and agreements shall be provided when available. The DEVELOPER
shall immediately notify the CITY of any event such bonds and agreements are terminated,
cancelled or in default.
D. The DEVELOPER is current with its compliance of all reporting
requirements set forth in this Agreement.
E. For any construction reimbursements, the CITY has approved the
Project for commencement of construction.
F. The DEVELOPER has acquired insurance coverage and delivered to
the CITY evidence of insurance as required in Article 9.
G. The DEVELOPER has provided the CITY with a written request for
HOME Funds, as detailed in Section 6.3 below.
H. The CITY has received, and continues to the have the right to
disburse, HOME Funds.
6.3 Request for Disbursement of 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 Seven Hundred Fifty Thousand dollars
and 00/100 ($750,000.00) in HOME Program assistance. All requests should provide in
detail such Eligible Costs applicable to the request. The form of the HUD Section 202
Program disbursement shall be accepted by the CITY on and after the HUD Closing.
A. Along with the request for such disbursements, the DEVELOPER shall
submit to the CITY such other documentation, including, but not limited to, invoices for
work completed and in place and for materials purchased and suitably stored.
Notwithstanding the foregoing, the parties acknowledge and agree that all of the CITY
HOME funds will be disbursed before the Capital Advance funds.
B. Any request for HOME funds disbursement by the DEVELOPER shall
be accompanied with the Certification required by Section 6.4 of this Agreement.
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6.4 Certification. The DEVELOPER shall submit to the CITY a written
certification signed by the DEVELOPER that, as of the date of the Request for
Disbursement ("Certification"):
A. The representations and warranties of the DEVELOPER contained in
or incorporated by reference: in this Agreement continue to be true, complete and accurate
in material respects.
B. The DEVELOPER has carried out all of its obligations and is in
compliance with all the obligations or covenants specified in this Agreement, to the extent
that such obligations or covenants are required to have been carried out or are applicable
at the time of the request for the Disbursement;
C. The DEVELOPER has not committed or suffered an act, event,
occurrence, or circumstance that constitutes an Event of Default or that with the passage of
time or giving of notice or both would constitute an Event of Default; and
D. The Disbursement requested will be used solely for Eligible Costs
identified in this Agreement. The DEVELOPER shall certify that the itemized obligations
have been properly incurred and are properly chargeable in connection with the Project.
6.5 Disbursement of Funds. Disbursement of HOME Program Loan funds shall
occur within thirty (30) days after the CITY receives the Certification and to the extent of
annually allocated and available HOME Funds.
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre -construction Meeting Regarding HOME Program Processes and
Procedures. The CITY will schedule, and the DEVELOPER shall attend a meeting prior to
construction with the CITY's Housing and Community Development Division for the purpose
of outlining HOME Program processes and procedures.
7.2 Commencement and Completion of Project. The DEVELOPER shall begin
construction of the Project no later than thirty (30) days following the HUD Closing. The
Project shall be completed no later than the date identified in the Project Schedule in
EXHIBIT "A", unless extended by HUD.
7.3 Contracts and Subcontracts. 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 or
subcontractors for this Project, as the CITY may reasonably request. The DEVELOPER
shall notify the City immediately of any termination or cancellation of the construction
contract on the Project, the filing of mechanic's/materialman lien on the Project, or an event
of default under such construction contracts and subcontracts. The DEVELOPER agrees
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to notify the CITY immediately of termination or cancellation of any such agreement(s),
notice of filing of a mechanic's lien, or breach or default by other party(ies) thereto.
7.4 Damage to Property. To the extent consistent with the requirements of any
permitted encumbrance, or as otherwise approved by the CITY or provided in 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. The DEVELOPER shall use its best efforts to
commence such work or repair within ninety (90) days after the insurance proceeds are
made available to the DEVELOPER and the DEVELOPER shall use its best efforts to
complete such work or repair within one (1) year thereafter. All insurance proceeds
collected for such damage or destruction shall be applied to the cost of such repairs or
restoration and, if such insurance proceeds shall be insufficient for such purpose, the
DEVELOPER shall use its best efforts to make up the deficiency from the residual receipts
of the Project with HUD's prior written approval.
7.5 Fees, Taxes and Other Levies. The DEVELOPER shall be responsible for
payment of all fees, assessments, taxes, charges and levies imposed by any public
authority or utility company with respect to the Property or the Project, and shall pay such
charges prior to delinquency. However, the DEVELOPER shall not be required to pay and
discharge any such charge so long as: (a) the legality thereof is being contested diligently
and in good faith and by appropriate proceedings, and (b) if requested by the CITY, the
DEVELOPER shall deposit 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. Nothing herein prohibits the
DEVELOPER from applying for or obtaining any tax exemptions or abatements or relief
allowed by law and consistent with HOME program requirements.
7.6 Financing. The DEVELOPER shall promptly inform the CITY of any new
financing or funding, and the DEVELOPER shall provide the CITY copies of all agreements
with any and all Funding Sources for this Project. The DEVELOPER agrees to notify the
CITY immediately of termination or cancellation of any such agreement(s) or receipt of
notice of default thereunder. The DEVELOPER shall comply with all obligations of any
such agreement(s) with any and all Funding Sources until the respective expiration of such
agreement(s). In the event the DEVELOPER fails to comply with its 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 except
as provided in Section 11.21 hereof. There shall be no acceleration by the CITY of its Loan
during the term of the HUD Capital Advance Documents without the prior written approval
of HUD.
7.7 Identification Signage. Before the start of construction, the DEVELOPER
shall place a poster or sign, with a minimum four feet by four feet in size, identifying the
City of Fresno Development and Resource Management Department, Housing and
Community Development Division as a Project participant. The sign shall also include the
CITY's Housing logo, as well as the Equal Housing Opportunity logo, as mandated by
HUD. The sign shall be in place throughout the Project construction.
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7.8 Inspections. 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, during reasonable business hours, for the purpose of determining
compliance with this Agreement, including without limitation those annual on-site
inspections required of the CITY by 24 CFR 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 Insurance and Bonds. The DEVELOPER shall submit for CITY approval
bonds, certificates and applicable endorsements for all insurance and bonds required by
this Agreement in accordance with Article 9.
7.11 Mechanic's Liens and Stop Notices. If any claim of lien is filed against the
Property or a stop notice affecting any financing, HOME Program Funds or Funding
Sources for the Project is served on the CITY or any other third party in connection with the
Project, 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. If the DEVELOPER fails to discharge, bond or otherwise satisfy the
CITY with respect to any lien, encumbrance, charge or claim referred to in the Section
above, then, in addition to any other right or remedy, the CITY may, but shall not be
obligated to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER's
expense. Alternatively, the CITY may require the DEVELOPER to immediately deposit
with the CITY, the amount necessary to satisfy such lien or claim and any costs, pending
resolution thereof. The CITY may use such deposit to satisfy any claim or lien that is
adversely determined against the DEVELOPER. The DEVELOPER hereby agrees to
indemnify and hold the CITY harmless from liability for such liens, encumbrances, charges
or claims together with all related costs and expenses. During the term of the HUD Capital
Advance Documents, any monies owed under this provision shall be made only from
residual receipts as defined by the HUD Regulatory Agreement and as approved in writing
by HUD. In the event HUD acquires title to the Property, HUD shall have no liability under
this provision.
7.12 Permits and Licenses. The DEVELOPER shall submit, for CITY approval, all
the necessary permits and licenses required for Commencement of Construction. As the
CITY may reasonably request, the DEVELOPER, at its sole cost and expense, shall
provide to the CITY copies of any and all permit approvals and authorizations including plot
plan, plat, zoning variances, sewer, building, and other permits required by governmental
authorities other than the CITY in pursuit of the Affordable Senior Housing Project, and for
its stated purposes in accordance with all applicable building, environmental, ecological,
landmark, subdivision, zoning codes, laws, and regulations. The DEVELOPER is
responsible, at its sole cost ;and expense, to determine the location of any utilities on the
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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 (CUP) file number C-04-062
("Affordable Preliminary Plans"). The DEVELOPER will construct the Project in full
conformance with the CITY -approved CUP and plans and specifications and modifications
thereto approved by the CITY. The DEVELOPER shall obtain the CITY's prior written
approval for any modifications to the plans and specifications. Additionally, during the term
of the HUD Capital Advance Documents Project change orders approved by HUD shall be
deemed approved by City.
B. The HOME Agreement shall contain by reference the design and site plan
of the Project; such design rnust be approved by the City Council with the HOME
Agreement.
7.14 Project Responsibilities/Public Work -Prevailing Wage Requirements. 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. This Project is a "public work" project for federal Davis -Bacon and Related
Acts wage requirements absent written direction/determination otherwise by HUD or a
court of competent jurisdiction. This project is a "public work" project for California Labor
Code Section 1720 et seq. wage requirements, to which Section 1771 applies, absent
written direction/determination by the California Department of Industrial Relations or a
court of competent jurisdiction. Based thereon the DEVELOPER shall cause the Project
work to be performed as a "public work". 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 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 the performance of all contractors, 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 representative 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 Project and all
improvements on site in a reasonably good condition and repair (and, as to landscaping, in
a healthy condition), all according to the basic design and related plans, as amended from
time to time. The DEVELOPER and those taking direction under the DEVELOPER shall:
(i) maintain all on-site improvements according to all other applicable law, rules,
governmental agencies and bodies having or claiming jurisdiction and all their respective
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departments, bureaus, and officials; (ii) keep the improvements free from graffiti; (iii) keep
the Project 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 Worl<. The DEVELOPER shall construct the Project and shall
employ building materials of a quality suitable for the requirements of the Project. The
DEVELOPER shall cause completion of construction of the Project on the Property in full
conformance with applicable local, state and federal laws, statutes, regulations, and
building and housing codes.
7.17 Relocation. If and to the extent that construction of the proposed Project
results in the permanent or temporary displacement of residential tenants, homeowners or
businesses, the DEVELOPER shall comply with all applicable local, state and federal
statutes and regulations with respect to relocation planning, advisory assistance and
payment of monetary benefits. The DEVELOPER shall be solely responsible for payment
of any relocation benefits to any displaced persons and any other obligations associated
with complying with said relocation laws.
7.18 Reporting Requirements. The DEVELOPER shall submit to the CITY the
following Project reports provided the CITY shall accept HUD Section 202 Program reports
in lieu thereof:
A. From the date of execution of this Agreement, until issuance of the
final Certificate of Completion, the DEVELOPER shall submit a Quarterly Report, in a form
approved by the CITY, which will include, at a minimum, the following information:
progress of the Project and affirmative marketingy efforts. The Quarterly Reports are due
fifteen (15) days after each March 31St, June 30t , September 30th, and December 31St
during said period.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the 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: information as to the occupancy/tenancy of each Affordable Senior Housing
Unit including (as applicable): the annual income and the family size of the Household, the
date the occupancy/tenancy commenced, certification from an officer of the DEVELOPER
that the Project is in compliance with the Affordable Senior Housing Requirements, and
such other information the CITY may be required by law to obtain. The DEVELOPER shall
provide any additional information reasonably requested by the CITY.
C. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the Project,
and continuing until the expiration of the Agreement, the DEVELOPER shall submit proof of
insurance as required in Article 9.
7.19 Scheduling and Extension of Time: Unavoidable Delay in Performance. It
shall be the responsibility of the DEVELOPER to coordinate and schedule the work to be
performed so that the Commencement of Construction and issuance of the Certificate of
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Completion will take place in accordance with the provisions of the Agreement and Project
Schedule, provided any extension approved by HUD shall be deemed approved by the
City. 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
filed by third parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of time for any of the above specified causes will be granted only
if written notice by the party claiming such extension is sent to the other party within ten
(10) calendar days from the date the affected party learns of the commencement of the
cause and the resulting delay and such extension of time is accepted by the other party in
writing. In any event, the Project must be completed no later than one hundred eighty
(180) calendar days after the scheduled completion date specified in this Agreement,
notwithstanding any delay caused by that included in this section.
B. Any and all extensions hereunder shall be by mutual written
agreement of the CITY's Housing and Community Development Division Manager and the
DEVELOPER, shall not cumulatively exceed one hundred eighty (180) days.
7.20 Certificate of Completion. Upon completion of the construction of the Project,
the DEVELOPER shall certify in writing to the CITY that the Project has been substantially
constructed in accordance with the plans and specifications, approved by the CITY, and/or
CUP (as applicable). Upon completion of the Project, the DEVELOPER shall also submit
to the CITY a cost -certifying final budget where the DEVELOPER shall identify the actual
costs of construction of the Project. This final cost -certification shall identify costs in line -
item format, consistent with the Project Budget. Upon a determination by the CITY that the
DEVELOPER is in compliance with all of the DEVELOPER's construction obligations, as
specified in this Agreement, the CITY shall furnish, within thirty (30) calendar days of a
written request by the DEVELOPER, a recordable Certificate of Completion for the Project
in the form attached hereto as EXHIBIT "E". The CITY will not unreasonably withhold or
delay furnishing the Certificate of Completion. If the CITY fails to provide the Certificate of
Completion within the specified time, it shall provide the DEVELOPER a written statement
indicating in what respects the DEVELOPER has failed to complete the Project in
conformance with this Agreement or has otherwise failed to comply with the terms of this
Agreement, and what measures the DEVELOPER will need to take or what standards it will
need to meet in order to obtain the Certificate of Completion. Upon the DEVELOPER
taking the specified measures and meeting the specified standards, the DEVELOPER will
certify to the CITY in writing of such compliance and the CITY shall deliver the recordable
Certificate of Completion to the DEVELOPER in accordance with the provisions of this
section.
ARTICLE 8. OPERATION OF SENIOR RENTAL HOUSING
8.1 Operation of the Project. The DEVELOPER, its development team, and
authorized agents thereof shall, Lease, operate and manage the Project in full conformity
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with the terms of this Agreement. Compliance by the DEVELOPER with the requirements
of the HUD Capital Advance Documents shall constitute compliance with the provisions of
this Article 8 and in the event of a conflict between this Article 8 and the HUD Section 202
Program requirements, the HUD requirements shall control.
8.2 Occupancy Requirements, The DEVELOPER covenants and agrees that
sixty-seven (67) Units of the Project shall constitute Affordable Housing for Senior
Households consistent with the Section 202 Program, and shall be rented and occupied by
or if vacant, available for rental occupancy by: (a) Senior person(s) 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, applicable to such household size, and at an affordable rent
consistent with the HOME Program regulations (as variously provided at 24 CFR 92.252)
for the term of the HUD Capital Advance Documents and not greater then eighty percent
(80%) of annual median income during the last fifteen (15) years of the Affordability Period.
The DEVELOPER shall comply with the income targeting requirements of 24 CFR 92.216.
Compliance by the DEVELOPER with the requirements of the HUD Capital Advance
Documents shall constitute compliance with the foregoing provisions of this section and in
the event of a conflict, the HUD requirements shall control. In the event of a conflict
between 24 CFR 92.216 and the HUD 202 requirements, the matter shall be submitted to
HUD for determination. One (1) Project unit shall be reserved as an on-site manager unit.
8.3 Leasingthe he Project. Before leasing any Units, the DEVELOPER shall submit
its proposed form of Lease for CITY's review and approval. The DEVELOPER covenants
and agrees to utilize only Leases that have been approved in advance by CITY. The CITY
shall respond to the DEVELOPER submission of a sample Lease within thirty (30) days.
Should CITY not respond within thirty (30) days of Lease submittal, the DEVELOPER shall
be authorized to use the submitted sample Lease. Additionally, the DEVELOPER agrees
not to terminate the tenancy or to refuse to renew a Lease with a tenant of Rental Housing
assisted with HOME Funds except for a serious or repeated violation of the terms and
conditions of the Lease, 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 such action. The DEVELOPER agrees it
shall annually report to CITY the number of Leases that were not renewed or terminated
and the reason for such non --renewal or termination. The CITY shall accept the form of
lease required by HUD as compliance with the requirements of this Section 8.4 and 8.5.
8.4 Lease Provisions. In addition to the requirements of 24 CFR 92.253, the
Leases are subject to the following:
A. The DEVELOPER shall include in Leases for all Units, provisions
which authorize the DEVELOPER to immediately terminate the tenancy of any Household
of whose one or more members misrepresented any fact material to the qualification as a
Very Low -Income or Low -Income Senior Household . Each such Lease 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 a Very Low- to Low -Income Senior
Household such Household's Rent may be subject to increase to the lesser of: (1) the
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amount payable by tenant under state or local law; or (2) thirty percent (30%) of the
Household's actual adjusted monthly income.
8.5 Final Management Plan. Before leasing the Rental Housing and at least sixty
(60) calendar days prior to the Project Completion Date, the DEVELOPER shall submit to
CITY for review and approval a plan for marketing and managing the Rental Housing
(hereinafter referred to as the "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 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
Rental Housing, 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 tine following:
• Interviewing procedures for prospective tenants;
• Previous rental history of tenants with references;
• Credit reports and checks;
• Criminal background checks;
• Deposit amounts, purpose, use and refund policy;
• Employment/Income verification;
• Occupancy restrictions;
• Income Limit;
• Equal Housing Opportunity Statement;
• Restrictions on use of the premises; and
• Tenant/Landlord 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 Project tenants. The
DEVELOPER shall abide by the terms of this Final Management Plan, approved by the
CITY, in marketing, managing and maintaining the Rental Housing. The CITY shall accept
Section 202 marketing and management plans/requirements in satisfaction of the
requirements of this section.
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.
The CITY shall have the right to require a change in the management agent
at any time during the term of this Agreement, should the management agent in place fail
to perform satisfactorily. Any contracting of management services by the DEVELOPER
shall not relieve the DEVELOPER of its primary responsibilities for proper performance of
management duties. The CITY shall accept the management contract and any
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amendments approved by HUD in satisfaction of the requirements of this section
8.6 Property Management. With respect to the Project and during the entire
Affordability Period, 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 and the Affordable Senior Rental Housing including,
without limitation, the selection of tenants, certification and re -certification of Household
age, 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 responsibility
for such management of the Project.
8.7 Maintenance and Security. The DEVELOPER shall during the entire
Affordability Period: (i) at its own expense maintain the Senior Rental Housing in good
condition, in good repair and in decent, safe, sanitary, habitable and tenantable living
conditions for the benefit of Unit occupants; (ii) not commit or permit any waste on or to the
Rental Housing, and shall prevent and/or rectify any physical deterioration of the Rental
Housing; and (iii) maintain the Project in conformance with all applicable federal, state and
local laws, ordinances, codes and regulations, the Final Management Plan, and this
Agreement.
8.8 Nondiscrimination. All six -seven (67) Affordable Units shall be available for
occupancy on a continuous basis to members of the general public who are income eligible
seniors and are 62 years of age or over. Consistent with the Section 202 Program, the
DEVELOPER shall not illegally discriminate or segregate in the development, construction,
use, enjoyment, occupancy, conveyance, lease, sublease or rental of any part of the
Project or Property on the basis of race, color, ancestry, national origin, religion, sex, age,
marital status, family status, source of income/rental assistance subsidy, physical or mental
disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions
(ARC), sexual orientation, or any other arbitrary basis. 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, lessees, sub -lessees, subtenants or vendees of any Unit or in
connection with employment of persons for the operation and management of any Unit. All
deeds, leases or contracts made or entered into by the DEVELOPER as to the Units or the
Affordable Senior Rental Housing, or portion thereof, shall contain covenants concerning
nondiscrimination consistent with this section. The DEVELOPER shall include a statement
in all advertisements, notices and signs for availability of Units for rent to the effect that the
DEVELOPER is an Equal Housing Opportunity Provider.
A. Nothing in this section is intended to require the DEVELOPER to
change the character, design, use or operation of the Project; or to require the
DEVELOPER to obtain licenses or permits other than those required for the Project.
8.9 Rent Schedule and Utility Allowances. During the term of the HUD Capital
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Advance Documents and the CITY's affordability period , the DEVELOPER covenants and
agrees not to charge rent for Units in excess of the rent established by HUD, and further
covenants not to impose a monthly allowance for utility services to tenants of such Units in
excess of an amount approved by HUD in accordance with 24 CFR 92.252. The
DEVELOPER agrees to furnish to the CITY a certificate setting forth the maximum monthly
rentals for 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 Units at least annually, and
as may be required by HUD
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS
Without waiver of limitation, the parties agree as follows regarding DEVELOPER Insurance
and Indemnity Obligations:
9.1 Insurance Coverage. Throughout the life of this Agreement, DEVELOPER,
itself or through its contractors shall pay for and maintain or cause to be paid and
maintained in full force and effect all policies of insurance (or self-insurance upon approval
by CITY'S Risk Manager) required hereunder with an insurance company(ies) either (1)
admitted by the California Insurance Commissioner to do business in the State of California
and rated not less than "A -VII" in Best's Insurance Rating Guide, or (2) authorized by the
CITY's Risk Manager. The following policies of insurance are required:
1. BUILDERS RISK INSURANCE in an amount to provide coverage to
100 percent (100%) of the replacement value of the Project, including terms of labor and
materials in place or to be used as part of the permanent construction, including surplus
miscellaneous materials and supplies incidental to the work and such scaffolding, staging,
towers, forms and equipment as are not owned or rented by the DEVELOPER, the cost of
which is not included in the cost of work.
A. The above described policies of insurance shall be endorsed to
provide an unrestricted thirty (30) day written notice in favor of the CITY, of policy
cancellation, change or reduction of coverage. In the event 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 fifl:een (15) days prior to the expiration date of the expiring
policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation,
change or reduction in coverage, DEVELOPER or its contractors, as the case may be,
shall file with the CITY a certified copy of the new or renewal policy and certificates for such
policy.
B. DEVELOPER shall furnish the CITY with the certificate(s) and
applicable endorsements for ALL required insurance prior to the CITY's execution of this
Agreement. DEVELOPER shall furnish the CITY with copies of the actual policies upon the
request of the CITY at any time during the life of the Agreement or any extension.
At all times hereunder DEVELOPER shall maintain the required
insurance in full force and effect.
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C. During the term of the HUD Capital Advance Documents, compliance
with the insurance requirements of HUD including all terms and conditions thereof shall be
deemed to satisfy the insurance requirements of this Agreement, provided the CITY and its
employees and representatives shall be named as additional insureds on any policies of
insurance.
9.2 Indemnity. DEVELOPER shall indemnify, hold harmless and defend the
CITY and each of its officers, officials, employees, agents and volunteers from any and all
loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time and property
damage) incurred by the CITY, DEVELOPER or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. DEVELOPER's obligations under the preceding sentence shall apply
regardless of whether the CITY or any of its officers, officials, employees, agents or
volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, costs or damages caused by the active negligence or by the willful misconduct
of the CITY or any of its officers, officials, employees, agents or volunteers. During the
term of the HUD Capital Advance Documents any monies owed City or any other
indemnitee hereunder by DEVELOPER shall be payable only from residual receipts as
defined in the HUD Regulatory Agreement subject to the prior written approval of HUD.
A. This section shall survive termination or expiration of this Agreement.
9.3 Property Insurance. Upon acquisition of the property, 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 Obligations. DEVELOPER shall cause its contractor(s) to obtain, pay
for and deliver good and sufficient payment and performance bonds in a form acceptable to
HUD from a corporate surety, admitted by the California Insurance Commissioner to do
business in the State of California. The CITY upon its request shall be provided with a
copy of said bond(s).
A. The "PE)rformance Bond" shall be at least equal to 100% of estimated
construction costs as approved by HUD to guarantee faithful performance of the
construction contract.
B. The "Payment Bond" shall be at least equal to 100% of construction
costs approved by HUD 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.
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ti
ARTICLE 10. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall
constitute an "Event of Default" by the DEVELOPER for purposes of this Agreement:
A. Use of HOME Funds for costs other than Eligible Costs or for uses not
permitted by the terms of this Agreement;
B. Failure to obtain and maintain the insurance coverage required under
this Agreement;
C. Failure W make any payment according to the tenor and effect of this
Agreement and the Loan Documents, including, but not limited to, any payment of principal,
premiums, penalties, taxes, etc., when and as the same shall become due and payable,
whether at maturity, by acceleration, or otherwise;
D. Except as otherwise provided in this Agreement, the failure to
punctually and properly perform any other covenant or agreement contained in this
Agreement including without: limitation the following: (1) material deviation in the Project
work specified in the Project Description as identified in this Agreement, without the CITY's
prior written consent; (2) use of defective or unauthorized materials or defective
workmanship in pursuit of the Project; (3) failure to commence or complete the Project, as
specified in this Agreement, unless delay is permitted under Section 7.19 of this
Agreement; (4) cessation of the Project for a period of more than fifteen (15) consecutive
days (other than as provided at Section 7.19 of this Agreement) prior to submitting to the
CITY certification that the Project is complete; (5) any material adverse change in the
condition of the DEVELOPER or its development team, or the Project that gives the CITY
reasonable cause to believe that the Project cannot be completed by the scheduled
completion date according to the terms of this Agreement; (6) failure to remedy any
deficiencies in record keeping or failure to provide records to the CITY upon the CITY's
request; (7) failure to comply with any federal, state or local laws or applicable CITY
restrictions governing the Project, including but not limited to provisions of this Agreement
pertaining to equal employment opportunity, nondiscrimination and lead-based paint;
E. Any representation, warranty, or certificate given or furnished by or on
behalf of the DEVELOPER or its development team 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;
F. The DEVELOPER and its development team shall file, or have filed
against it, a petition of bankruptcy, insolvency, or similar law, state or federal, or shall file
any petition or answer seeking, consenting to, or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar relief, and such
petition shall not have been vacated within fourteen (14) days; or shall be adjudicated
bankrupt or insolvent, under any present or future statute, law, regulation, under state or
Jow Siena Gateway Please IIWOME Agree aerileSeara Gal oway Pine II_ Freal_Flnel_ Final dace
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a
federal law, and such judgment or decree is not vacated or set aside within fourteen (14)
days;
G. The DEVELOPER's failure, inability or admission in writing of its
inability to pay its debts as they become due or the DEVELOPER assignment for the
benefit of creditors;
H. 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;
I. The failure of the DEVELOPER to cause completion of the
construction and Development of the Project on or prior to August 1, 2014 unless extended
by HUD;
J. The DEVELOPER's breach of any other material condition, covenant,
warranty, promise or represe=ntation 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, development, construction or operation of the Project, whether or
not the CITY is a party to such agreement.
10.2 Notice of Default and Opportunity 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, any time period provided for in the notice, or thirty (30)
calendar days from the date of the notice, by which such deficiency must be cured,
provided that if the specified deficiency or default cannot reasonably be cured within the
specified time, with the CITY's written consent, the DEVELOPER shall have an additional
reasonable period to cure so long as it commences cure within the specified time and
thereafter diligently pursues the cure in good faith. The CITY acknowledges and agrees
that the DEVELOPER shall have the right to cure any defaults hereunder and that notice
and cure rights hereunder shall extend to any and all partners of the DEVELOPER that are
previously identified in writing delivered to the CITY in the manner provided in this
Agreement.
10.3 Remedies Upon an Event of Default. Upon the happening of an Event of
Default and a failure to cure said Event of Default within the time specified, the CITY's
obligation to disburse HOME Funds shall terminate. The CITY may also at its option and
without notice institute any action, suit, or other proceeding in law, in equity or otherwise,
which it shall deem necessary or proper for the protection of its interests and may without
limitation proceed with any or all of the following remedies in any order or combination that
the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice;
JG_Sie— Gatewfly Phase IIWOML AgroOmGlt\$lalra Gateway F lam Ilralal ewl_FaW.don
35
2✓
B. Bring an action in equitable relief: (1) seeking specific performance of
the terms and conditions of this Agreement, and/or (2) enjoining, abating or preventing any
violation of said terms and conditions, and/or (3) seeking declaratory relief;
C. Pursue any other remedy allowed by law or in equity or under this
Agreement; and
D. Notwithstanding the foregoing, during the term of the HUD Capital
Advance Documents, City shall not terminate this Agreement, refuse to disburse HOME
funds, declare a default or breach, or exercise any remedy herein without the prior written
approval of HUD.
ARTICLE 11. GENERAL PROVISIONS.
Without waiver of limitation, the parties agree that the following general provisions shall
apply in the performance hereof:
11.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made in writing and signed by the parties hereto.
11.2 Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party will be entitled to recover from the other party its reasonable attorney's fees
and legal expenses. Under no circumstances shall HUD, its successors or assignees have
any liability under this provision.
11.3 Binding on All Successors and Assigns. Unless otherwise expressly provided
in this Agreement, all the terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and their respective 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 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
JIB 3i¢im Gale., Vhaso IIWOME Gltew, R,11¢ II_flnel F.,1M F,.Wd.Crc
36
V
of the Project under NEPA and any other applicable statutes. The CITY cannot and does
not commit in advance that it will give final approval to any matter. The CITY shall not be
liable, in contract, law or equity, to the DEVELOPER or any of its executors, administrators,
transferees, successors -in -interest or assigns for any failure of any governmental entity to
grant approval on any matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written, upon the CITY and the DEVELOPER's complete execution following City Council
approval.
11.8 Entire Agreement. This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotia.'.ions, representations or agreements, either written or oral.
11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
11.10 Expenses Incurred Upon Event of Default. 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 Governing Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this Agreement,
including execution, interpretation, performance, and enforcement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
11.13 Interpretation. This Agreement in its final form is the result of the combined
efforts of the parties. Any ambiguity will not be construed in favor or against any party, but
rather by construing the terms in accordance with their generally accepted meaning.
11.14 No Assignment or Succession. Except as may be otherwise expressly
provided by this Agreement, neither this Agreement, nor any interest of the DEVELOPER
in, under, or to this Agreement, or the Project, may be assigned or transferred by the
DEVELOPER without the prior written consent of the CITY, which consent shall not be
unreasonably withheld or delayed. Any assignment without consent is null and void.
Notwithstanding the foregoing, no CITY approval shall be required to transfer the Project to
HUD or its transferee or any transfer of the Project approved by HUD.
11.15 No Third -Party Beneficiarv. No contractor, subcontractor, mechanic,
materialman, laborer, vendor, or other person hired or retained by the DEVELOPER shall
be, nor shall any of them be deemed to be, third -party beneficiaries of this Agreement, but
each such person shall be deemed to have agreed: (a) that they shall look to the
DEVELOPER as their sole source of recovery if not paid, and (b) except as otherwise
agreed to by the CITY and any such person in writing, they may not enter any claim or
J.\i_Sierra Galmwy Pem'o IIIHOME Ngreomm�l\Siorm Gatervay Huse II_FlnaI l W Fina410G[
37
19
bring any such action against the CITY under any circumstances. Except as provided by
law, or as otherwise agreed to in writing between the CITY and such person, each such
person shall be deemed to have waived in writing all right to seek redress from the CITY
under any circumstances whatsoever.
11.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising any
right under this Agreement shall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of
any other right. No waiver of any provision of this Agreement or consent to any departure
by the DEVELOPER therefrom shall be effective unless the same shall be in writing, signed
on behalf of the CITY by a duly authorized officer thereof, and the same shall be effective
only in the specific instance for which it is given. No notice to or demand on the
DEVELOPER in any case shall entitle the DEVELOPER to any other or further notices or
demands in similar or other circumstances, or constitute a waiver of any of the CITY's right
to take other or further action in any circumstances without notice or demand.
11.17 Nonreliance. The DEVELOPER hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in no
manner has it relied on the CITY, it agents, employees or attorneys in entering into this
Agreement.
11.18 Notice. Any notice to be given to either party under the terms of this
Agreement shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties.
If to the CITY: City of Fresno
Development and Resource Management Department
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
If to DEVELOPER: Redding Retirement Housing Corp
c/o be.group
516 Burchett St.
Glendale, CA 91203
Attn: Benjamin F. Beckler, III, Vice President of Facilities
and Project Development
11.19 Precedence of Documents. In the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
11.20 Recording of Documents. The DEVELOPER agrees to cooperate with the
CITY and execute any documents required, promptly upon the CITY's request, and to
promptly effectuate the recordation of this Agreement, the Declaration of Restrictions, the
Deed of Trust, and any other documents/instruments that the CITY requires to be recorded,
in the Official Records of Fresno County, California, consistent with this Agreement.
J:W_6ierra Gateway Ph a so IIMME Pyroenienl uS fa GaIe;v, Phase II_FlnaI FinalFlnaI Uoox
38
2
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 Severabilitv. The invalidity, illegality, or un -enforceability of any one or more
of the provisions of this Agreement shall not affect the validity, legality, or enforceability of
the remaining provisions hereof or thereof.
11.23 HUD Pre-emption. Notwithstanding anything to the contrary in this
Agreement, if any provision of this Agreement tends to contradict, modify or in any way
change the terms of the HUD Regulatory Agreement, HUD Use Agreement, HUD Deed of
Trust, HUD Note and other HUD Section 202 Program documents ("HUD Documents")
encumbering the Property to be entered into between the Secretary of HUD and the
DEVELOPER (or DEVELOPER's successor in interest), the terms of the HUD Documents
shall prevail and govern; or if any provision of this Agreement in any way limits the
Secretary of HUD in his administration of the Housing Act of 1959, as amended, or the
Cranston -Gonzalez National Affordable Housing Act, or the regulations pursuant thereto,
this Agreement shall be deemed amended so as to comply with the Acts, Regulations and
HUD Documents. No other amendment to this Agreement shall be effective without the
prior written approval of the Secretary. Notwithstanding anything herein to the contrary, if
the Secretary of HUD should take title to the Property through foreclosure, deed in lieu of
foreclosure, or otherwise, all covenants, conditions and restrictions set forth in this
Agreement shall cease and terminate and be of no further force and effect. During the
term of the HUD Capital Advance Documents any monies owed City pursuant to the terms
of this Agreement shall be payable only from residual receipts as defined in the HUD
Regulatory Agreement subject to the prior written approval of HUD. In the event HUD
acquires title to the Property, HUD shall have no liability under the terms of this Agreement.
This Agreement shall be subject and subordinate to the HUD Capital Advance Documents
to be recorded. The DEVELOPER shall maintain the existence, qualifications, and
authority necessary to continue its business and shall comply with all laws and regulations
applicable to it, its property, and its operations, the noncompliance with which could
materially affect its business, its financial condition, or the Project.
11.24 Project Actions/Approvals. Whenever this Agreement references an action or
approval required or permitted by the CITY, the City Manager/designee(s) thereof and each
of them is authorized to act for the CITY in making modifications not constituting a material
change to the Agreement, Exhibits and documents referenced herein, unless the CITY
Charter, this Agreement, law, regulations, orders, or procedures provide otherwise, or the
context otherwise requires.
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IN WITNESS WHERF'OF, the parties have executed this Agreement in Fresno,
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
By: A64 i4eK
Mark Scott, City Manager
(Attach notary certificate of acknowledgment)
Date: q -- Z 7 &
ATTEST:
REBECCA E. KLISCH
City Clerk
Date:P f__ if
APPROVED AS TO FORM:
JAMES SANCHEZ
City Attorney
By: q 60414
Senior Deputy City Attorney
Date: 0\
REDDING RETIREMENT HOUSING CORP, a California nonprofit public benefit
corpora on
By:
Name: e gamin F. Beckler, III
Title: Authorized Agent
(Attach notary crtificate of acknowledgment)
Date: ? ?_0 I I
Attachments:
EXHIBIT A: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT B: PROPERTY DESCRIPTION
EXHIBIT C: PROJECT BUDGET
EXHIBIT D: SPECIMEN DECLARATION OF RESTRICTIONS
EXHIBIT E: SPECIMEN CERTIFICATE OF COMPLETION
EXHIBIT F: SPECIMEN PROMISSORY NOTE
EXHIBIT G: SPECIMEN DEED OF TRUST
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
�rerc�.ec`.�!'�t'.tic�<ercrct>.cc•.c�c'.c�,c�.e:rc��,xoe:�,crr:<�,e:rr�n.�c•.r� �o-�
State of California
County of �re /) 0
On Ari' d9 a before me, #aAerynI^/J /1
Date I Here Insert Name and Title of the Officer
personally appeared
KATHERYN CORNELL
Commission # 1886130
Notary Public - California z
r Fresno County D
V r My Omm, Ex ires Oct 22, 2013
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(&) whose name(e) isfare subscribed to the
within instrument and acknowledged to me that
he/e4eg4ey executed the same in his/#ef,ft#aeir authorized
capacity(iee), and that by his/her/their signature(e) on the
instrument the personM, or the entity upon behalf of
which the person(.&) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my and and official seal.
Signature
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document 1101he lnvcs�.�v:t `ac�sh p5 l0,I j -m I /Ve "-e
Title or Type of Document: 6XV9 Y(A& .,70,MdIa � l�3./ ilirx� -5ti , 611 _447iO, ri �
Document Date: Number of Pages:
Signer(s) Other Than Named Above: — Ivan L -•
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee Top o" -b
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
__Q Gua7d" or Conservator
❑ Other:
Signer Is Representing:
Top of thumb here
®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNolary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827
EXHIBIT A: PROJECT DESCRIPTION AND SCHEDULE
PROJECT DESCRIPTION
The project consists of the construction of a sixty-seven (67) unit senior rental housing project
under Section 202 of the Housing Act of 1959, related on-site and off-site improvements and
amenities, and one (1) manager's unit. Amenities include a community room with a kitchen,
library/computer room, hobby/craft room, laundry rooms, a game room, and an exercise room.
Security will be provided by fencing and/or walls, in combination with vehicular and pedestrian
controlled access gates/doors at all entrances. Sixty-seven (67) one -bedroom units will be
available for rental to Senior Households (the primary occupant being at least 62 years of age or
over), and one (1) two-bedroom manager's unit. Sixty-seven (67) will be HOME -Assisted and
preserved as Very Low- and Low -Income Senior Housing in accordance with the chart below:
HOME FUNDED UNITS (During HUD Capital Advance Documents Period)
% of Median Units
50% or less 67
Totals 67
HOME FUNDED UNITS (After HUD Capital Advance Documents Period)
During the last fifteen (15) years of the Project's Affordability Period, after the end of the term of the
HUD Capital Advance Documents Period, all sixty-seven (67) senior rental housing units shall be
rented to Low -Income Senior households with eighty percent (80%) or less median income.
The project will be designed to assist seniors' mobility and to encourage visitability by all people.
Construction will provide for accessibility in selected parking spaces, ease of drop-off locations,
types of doors and widths of doorways and ease of floor surfaces for walking and moving
throughout the project site and building. Elevators will be conveniently located adjacent to the
lobby/lounge areas. Both the guest and resident parking areas will have van -accessible parking for
persons with disabilities. All site circulation paths and building entrances shall be fully ADA -
compliant.
Each one -bedroom unit will be approximately 540 total square feet in area, and contain a kitchen
with a full-size range and refrigerator, sink and sufficient cabinet and counter space. Adjustable
countertops and removable base cabinets will allow for lowering of countertops to wheelchair
accessible height. An easily accessible living/dining area will also be constructed in each unit.
Additionally, each unit bathroorn and bedroom will be provided with an emergency call system for
the safety of residents.
PROJECT SCHEDULE
SK_
COMPLETION DATE
Plan Check, Contractor Bidding, Firm Documents, and all Tax
Exemptions
_
December 1, 2012
HUD Closing
Ma 1, 2013
Commence Construction
May 30, 2013
Com tete Construction
Au ust 1, 2014
Lease Up
October 30, 2014
r%i
EXHIBIT B: PROPERTY DESCRIPTION
The Property is located adjacent to the property located at the southwest corner of West
San Jose Avenue and North Marty Avenues in northwest Fresno, CA 93711, as described
below:
LEGAL DESCRIPTION
PARCEL B OF PARCEL MAP NO. 2004-30, IN THE CITY OF FRESNO, COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 1,
2005 IN BOOK 65 AT PAGES 36 AND 37 OF PARCEL MAPS, FRESNO COUNTY RECORDS.
EXCEPT THEREFROM AN UNDIVIDED ONE-HALF OF ALL THE MINERALS, GAS, OILS,
PETROLEUM, NAPTHA, AND OTHER HYDROCARBON SUBSTANCES IN, ON OR UNDER SAID
PARCEL, AS RESERVED IN THE DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES, A NATIONAL BANKING ASSOCIATION, TO W. E. ROBERTS AND CLARICE
ROBERTS, HIS WIFE, AS JOINT TENANTS, DATED NOVEMBER 15, 1940, RECORDED
DECEMBER 19, 1940, AS DOCUMENT NO. 37544, OFFICIAL RECORDS.
APN: 415-044-59
EXHIBIT C: PROJECT BUDGET
ITEM:
HUD FUNDING:
HUD Predev.
HOME
TOTAL
Construction:
$ 7,038,892
$300,000
$680,000
$
8,018,892
Bond Premium:
$ 70,597
$
70,597
Architect's fee:
$ 400,000
$
400,000
Other fees:
$ 934,379
$100,000
$
1,034,379
Taxes:
$ 8,000
$
8,000
Insurance:
$ 40,000
$
40,000
Title & Recording
$ 30,000
$
30,000
Legal:
$ 35,000
$
35,000
Cost Certification:
$ 8,000
$
8,000
Land:
$ 392,000
$ 70,000
$
462,000
Developer fee:
$ 510,344
$
510,344
Offsite construction:
$ 50,000
$
50,000
Offsite eng/permits:
$ 20,000
$
20,000
TOTAL COSTS:
$9,537,2'12
$400,000
$750,000
$10,687,212
2
EXHIBIT D: SPECIMEN DECLARATION OF RESTRICTIONS
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
LINE FOR RECORDER'S
The document is exempt from the payment of a recording fee in accordance with Government Code Sections 6103 and 27383.
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
day of , 2011, by a California
nonprofit public benefit corporation, ("DECLARANT"), in favor of the CITY OF FRESNO, a
California municipal corporation ("CITY").
WHEREAS, DECLARANT, is the owner of the real estate in the county of Fresno,
state of California consisting of APN: 415-044-59, which is more particularly described in
EXHIBIT "A", attached hereto and made a part hereof, including the improvements thereon
(the "Property"), and by its subscription below consents to the recordation of this
Declaration: and
WHEREAS, pursuant to and with primary funding under HUD's Supportive Housing
for the Elderly Program under Section 202 of the Housing Act of 1959 as amended
including related provisions at Section 811 of the Cranston -Gonzalez National Affordable
Housing Act and its implementing regulations are 24 CFR 891 et seq. and related HUD
Capital Advance Documents (collectively "Section 202 Program"), DECLARANT is
developing upon the Properly a sixty-eight (68) unit affordable rental housing project for
senior households ("Project") of which sixty-seven (67) units shall be rented as affordable
housing; and
WHEREAS, DECLARANT and CITY have entered into a certain HOME Investment
Partnerships Program Agreement dated 2011 ("HOME Agreement"),
whereby CITY provides HOME Program Project funding variously in consideration of
certain U.S. HUD HOME Program (24 CFR 92.252; 24 CFR 92.504(c)(3)(vii)) affordability
requirements, covenants and restrictions upon the Project and Property, which affordability
restrictions shall be enforceable for a fifty-five (55) year affordability period; and
WHEREAS, these restrictions are intended to bind DECLARANT, and all purchasers
of the Property and their successors.
NOW THEREFORE, DECLARANT declares that the Property is held and will be
held, transferred, encumbered, used, sold, conveyed and occupied subject to the
2
covenants, restrictions, and limitations set forth in this Declaration, all of which are declared
and agreed to be in furtherance of the Project, the CITY's general, Consolidated Plan,
Annual Action Plan, and Housing Element(s) therein and HOME Program requirements.
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 or other transferee of an interest covering any right, title or interest in any
part of the Property, by accepting a deed or a contract of sale or agreement of purchase,
accepts the document subject to, and agrees to be bound by, any and all restrictions,
covenant, and limitations set forth in this Declaration for the period of fifty-five (55) years
running from the date the CITY enters project completion information into HUD's Integrated
Disbursement and Information System (IDIS) as provided in the HOME Agreement. During
the term of the HUD Capital Advance Documents, compliance by DECLARANT or its
successor in interest to the Property with the affordability requirements of the HUD Capital
Advance Documents shall constitute compliance with the provisions of Section 2 hereof
and in the event of a conflict, the HUD requirements shall control. Any conflict between the
HOME Agreement and the HUD Capital Advance Documents will be referred to HUD for
determination.
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 of the CITY entering into the HOME Agreement with the DECLARANT. All
terms not otherwise defined herein shall have the meaning ascribed to such term in the
HOME Agreement.
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 the CITY and shall run with the Property and be binding on any future owner's
of the Property and inure to the benefit of and be enforceable by CITY. These covenants
and restrictions are as follows:
a. DECLARANT for itself and its successor(s) on title covenants and
agrees that from the date the Project is entered as complete (upon issuance of the City's
Certificate of Completion) ("Project Completion Date"), until the expiration of the
Affordability Period, it shall, for the first forty (40) years, be used as housing affordable to
Very Low -Income Senior Households with fifty percent (50%) or less median income.
During the last fifteen (15) years of the Project's Affordability Period, but not before the end
of the HUD Capital Advance Documents period, the Project (except for the manager's unit)
shall be rented to Low -Income Senior Households with eighty percent (80%) or less
median income. DECLARANT further agrees to file a recordable document setting forth
the Project Completion Date when determined by the CITY. Unless otherwise provided in
the Agreement, the term Affordable Senior Rental Housing shall include, without limitation,
compliance with the following requirements:
i. Nondiscrimination. Consistent with Section 202 of the Housing
Act of 1959, there shall be no discrimination against nor segregation of any person or
2�
group of persons on account of race, color, creed, religion, sex, marital status, national
origin, ancestry, or handicap, transfer, use, occupancy, tenure, or enjoyment of any of the
Property, nor shall DECLARANT, establish or permit any practice of discrimination or
segregation with reference to the selection, location, number, use or occupancy of owners
or vendees of the Property.
ii. Principal Residence. Each of the Units constituting the Project
upon the Property shall be leased only to natural persons, who shall occupy such as a
principal residence. The forgoing requirements that the Property tenant occupy the Units
as their principal residence does not apply to: 1) persons, other than natural persons, who
acquire the Project Property or portion thereof by foreclosure or deed in lieu of foreclosure;
or (ii) HUD qualified entities that acquire the Property or portion thereof pursuant to the
terms of the HOME Agreement.
iii. income Requirements. During the term of the HUD Capital
Advance Documents (the first forty (40) years following issuance of the Certificate of
Completion), each of sixty-seven (67) Units constituting Affordable Rental Housing upon
the Property may be leased only to (a) person(s) 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 applicable to such household's size, and at an affordable price consistent with the
HOME Program regulations. Notwithstanding the foregoing, during the last fifteen (15)
years of the term of this Agreement, but not before the end of the term of the HUD Capital
Advance Documents, not less than sixty-seven (67) units shall be rented to Low -Income
Senior Households with eighty percent (80%) or less median income.
iv. Injunctive Relief. Should any of the sixty-seven (67) Units
constituting Affordable Rental Senior Housing upon the Property, not continue to be the
principal residence of a Household as set forth in subsection iii above, the CITY shall be
entitled to seek any available injunctive relief.
V. Event of End to HUD Guaranty Subsidy. In the event the HUD
Project Rental Assistance Contract (PRAC) (the "HUD operating subsidy") is discontinued
during the anticipated term of the HUD Capital Advance Documents, the then owner of the
Project shall be entitled to rent to Low -Income Senior Households at eighty percent (80%)
or less median income and the terms of this instrument shall be automatically modified to
be consistent with this provision.
b. Item (a) above is hereinafter referred to as the Covenant and
Restriction.
C. Compliance with the terms of the HUD Capital Advance Documents
(defined as the HUD Note, Deed of Trust, Use Agreement, Regulatory Agreement, Capital
Advance Agreement and Project Rental Assistance Contract) during the term hereof shall
constitute compliance with the Covenants and Restrictions of this Declaration, and in the
event of a conflict the HUD Capital Advance Documents shall control. Any conflict between
the HUD Capital Advance Documents and the HOME requirements shall be submitted to
HUD for determination. During the term of the HUD Capital Advance Documents, no
breach or default may be declared hereunder without the prior written approval of HUD.
3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be
entitled to injunctive or other equitable relief against any violation or attempted violation of
any Covenant and Restriction, and shall, in addition, be entitled to damages for any injuries
or losses resulting from any violations thereof.
4. Acceptance and Ratification. All present and future owners of the Property
and other persons claiming by, through, or under them shall be subject to and shall comply
with the Covenant and Restriction. The acceptance of a deed of conveyance to the
Property shall constitute an agreement that the Covenant and Restriction, as may be
amended or supplemented from time to time, are accepted and ratified by future owners,
tenant or occupant, and such Covenant and Restriction shall be a covenant running with
the land and shall bind any person having at any time any interest or estate in the Property,
all as though such Covenant and Restriction was recited and stipulated at length in each
and every deed, conveyance, mortgage or lease thereof. Provided, however, if this
Declaration has been subordinated to a Deed of Trust and the Property is transferred by
foreclosure to the holder of the Deed of Trust or an assignee of such holder, who is not
DECLARANT or an affiliate of DECLARANT, and to the extent consistent with this Section
4 and the HOME Agreement, and provided the Deed of Trust recognizes any contractual or
legal rights of CITY to take actions that would avoid the termination of the Project's
Affordability, then this Declaration shall be of no further force and effect except that if the
Property is subsequently transferred to any party prior chargeable with this Declaration,
then the Declaration shall revive. This Declaration is subject and subordinate to the HUD
Capital Advance Documents including the Deed of Trust in favor of HUD and to the
Regulatory Agreement and to the Use Agreement each between the DECLARANT and
HUD.
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 Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of CITY and/or any other person entitled to enforce
this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time to time thereafter, or an estoppel against the
enforcement thereof. The obligations and liabilities of DECLARANT and its transferee(s)
and assignee(s) hereunder, shall be joint and several.
6. Costs and Attorney's Fees. In any proceeding arising because of failure of
DECLARANT or any future owner of the Property to comply with the Covenant and
Restriction required by this Declaration, as may be amended from time to time, the
prevailing party shall be entitled to recover its respective costs and reasonable attorney's
fees incurred in connection with such default or failure.
7. Waiver. Neither DECLARANT nor any future owner of the Property may
exempt itself from liability for failure to comply with the Covenant and Restriction required in
this Declaration; provided however, that upon the transfer of the Property, the transferring
owner may be released from liability hereunder, upon the CITY's written consent of such
transfer, which consent shall not be unreasonably withheld, conditioned or delayed.
In
8. Severability. The invalidity of the Covenant and Restriction or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
10. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease 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 by and between DECLARANT and CITY.
14. Headings. The headings of the articles, sections, and paragraphs used in
this Declaration are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
15. HUD Pre-emption. Notwithstanding anything to the contrary in this
Declaration, if any provision of this Declaration tends to contradict, modify or in any way
change the terms of the Regulatory Agreement encumbering the Property to be entered
into between the Secretary of HUD and DECLARANT, the terms of the Regulatory
Agreement shall prevail and govern; or if any provision of this Declaration in any way limits
the Secretary of the United States Department of Housing and Urban Development
("HUD") in his administration of the Housing Act of 1959, as amended, or the Cranston -
Gonzalez National Affordable Housing Act, or the regulations pursuant thereto, this
Declaration shall be deemed amended so as to comply with the Acts, Regulations and
Regulatory Agreement. No other amendment to this Declaration shall be effective without
the prior written approval of the Secretary. Notwithstanding anything herein to the contrary,
if the Secretary of HUD should take title to the Property through foreclosure, deed in lieu of
foreclosure, or otherwise, all covenants, conditions and restrictions set forth in this
Declaration shall cease and terminate and be of no further force and effect. During the
term of the HUD Capital Advance Documents any monies owed the CITY by DECLARANT
shall be payable only from residual receipts as defined in the HUD Regulatory Agreement
subject to the prior written approval of HUD.
IN WITNESS WHERE=OF, DECLARANT has executed this Declaration of
Restrictions on the date first written above.
DECLARANT:
'a California nonprofit public benefit
corporation, the owner of record of the Property, consents to recording this Declaration of
Restrictions against the Property described herein.
By:
Name:
Title:
(Attach notary certificate of acknowledgment)
Date:
EXHIBIT "A"
To Declaration of Restrictions
The Property is located adjacent to the property at the southwest corner of West San Jose
Avenue and North Marty Avenues in northwest Fresno, CA 93711, as described below:
LEGAL DESCRIPTION
PARCEL B OF PARCEL MAP NO. 2004-30, IN THE CITY OF FRESNO, COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 1,
2005 IN BOOK 65 AT PAGES 36 AND 37 OF PARCEL MAPS, FRESNO COUNTY RECORDS.
EXCEPT THEREFROM AN UNDIVIDED ONE-HALF OF ALL THE MINERALS, GAS, OILS,
PETROLEUM, NAPTHA, AND OTHER HYDROCARBON SUBSTANCES IN, ON OR UNDER SAID
PARCEL, AS RESERVED IN THE DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES, A NATIONAL BANKING ASSOCIATION, TO W. E. ROBERTS AND CLARICE
ROBERTS, HIS WIFE, AS JOINT TENANTS, DATED NOVEMBER 15, 1940, RECORDED
DECEMBER 19, 1940, AS DOCUMENT NO. 37544, OFFICIAL RECORDS.
APN: 415-044-59
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
USE ONL
This Certificate of Completion is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government Code
Section 6103.
APN: 415-044-59
City of Fresno
Craig Scharton, Assistant Director
Development and Resource
Management Department
Date:
Certificate of Completion
APN: 415-044-59
Recitals:
A. By a City of Fresno ("CITY") HOME Investment Partnerships Program Agreement
dated , 2011, (`HOME Agreement) between the City of Fresno, a municipal
corporation ("CITY"), and _ , , a California non-profit public benefit
corporation, ("DEVELOPER"), incorporated herein, the DEVELOPER agreed to develop a
sixty-seven (67) unit affordaole senior rental housing project, including one (1) manager's
unit, upon the premises legally described in EXHIBIT "A" attached to the HOME
Agreement with primary funding under HUD's Supportive Housing for the Elderly Program
under Section 202 of the Housing Act of 1959 as amended including related provisions at
Section 811 of the Cranston -Gonzalez National Affordable Housing Act and its
implementing regulations are 24 CFR 891 et seq. and related HUD Capital Advance
Documents ("Project").
B. The HOME Agreement or a memorandum of it was recorded on
, 2011, as Instrument 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. CITY certifies that the DEVELOPER commenced completion of the project
and has done so in full compliance with the HOME Agreement.
2. This Certificate of Completion is not evidence of the DEVELOPER's
compliance with, or satisfaction of, any obligation to any mortgage or security interest
holder, or any mortgage or security interest insurer, securing money lent to finance work on
the Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to in
California Civil Code Section 3093.
4. Nothing contained herein modifies any provision of the HOME Agreement.
4)
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of 20.
CITY OF FRESNO
Az
Craig Scharton, Assistant Director
Development and Resource Management Department
(Attach notary certificate of acknowledgment)
ATTEST:
CITY CLERK
By:
Deputy
Date:
APPROVED AS TO FORM:
CITY ATTORNEY
A
Assistant/Deputy
Date:
_ , a California nonprofit
public benefit corporation, the owner of record of the Property, consents to recording this
Declaration of Restrictions against the Property described herein.
By:
Name:
Title:
(Attach notary certificate of acknowledgment)
Date:
v
EXHIBIT F: PROMISSORY NOTE
DO NOT DESTROY THIS NOTE When paid, this note, must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
Loan Amount: $750,000.00
Fresno, California
For value received, the undersigned, DEVELOPER, a California nonprofit public benefit
Corporation ("Borrower"), promises to pay to the order of the City of Fresno, a California municipal
corporation ("Lender"), the sum of Seven Hundred Fifty Thousand dollars and 00/100 ($750,000.00)
at zero percent interest`, deferred, forgivable as provided hereunder, subject to the following
conditions and limitations:
(1) Principal on this note shall be due and payable, from available residual receipts (as defined
below) on the expiration of the Affordability Period ("Maturity Date"), but in no event before the
maturity date of the note and deed of trust held by the Secretary of the U.S. Department of
Housing and Urban Development ("Secretary") financing project No. , provided that if
the aforementioned note held by the Secretary is paid in full, the holder of this note at its
option and without notice may declare the whole principal sum or any balance thereof
immediately due and payable. Consistent with the foregoing, if the Borrower fully complies
with the terms of the HOME Agreement between the Borrower and Lender , then any and all
principal then due shall be forgiven, this note cancelled and the Deed of Trust securing the
same be reconveyed.
(2) Prepayments and payments to principal on this note may be made only from available
residual receipts, as that term is defined in the Regulatory Agreement between the Borrower
and the Secretary, executed in connection with the above Project, and only after obtaining the
prior written approval of the Secretary. Such prepayments may be made only after final closing
on the note by the Secretary and after the end of a semiannual or an annual fiscal period.
(3) This note is non-negotiable and may not be sold, transferred, assigned, or pledged by the
Lender except with the prior written approval of the Secretary.
(4) This note is made and delivered in payment of costs not included in the HUD Capital Advance.
(5) This note, and any extensions or renewals hereof, is secured by a Deed of Trust and
Assignment of Rents on real estate in Fresno County, California, that provides for acceleration
upon stated events subject to HUD's written approval, dated as of the same date as this note,
and executed in favor of and delivered to the Lender and insured by a title company as a not
worse than second (2"d) position lien on the Property.
(6) Presentation, demand and notice of demand, non-payment and protest of this note are waived
by Borrower.
(7) See attached RIDER for additional provisions.
2t,
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be executed by its
authorized agent(s) as of the date and year first above written this.
Attest:
a California nonprofit public benefit
corporation
By:
Name:
Title:
(Attach notary certificate of acknowledgment)
Date
The Lender hereby certifies that this is a bona fide transaction and that it fully understands all the
requirements of this note, and that no prepayment of principal or interest shall be accepted without
evidence that the Secretary has authorized such prepayment. If an unauthorized prepayment is
accepted, the funds shall be held by the payee in trust for the project.
CITY OF FRESNO, a California municipal corporation
By:
Name: Mark Scott, City Manager
(Attach notary certificate of acknowledgment)
`Not to exceed the highest permissible rate established by the Secretary.
RIDER TO RESIDUAL RECEIPTS PROMISSORY NOTE
Project No.
1. Time is of the essence. It will be a default under this note if maker defaults under the HOME
Agreement, defaults under any other Loan Documents, or if Borrower fails to pay when due any sum
payable under this note. In the event of a default by Borrower, the Borrower shall pay a late charge
equal to the lesser of 2% of any outstanding payment or the maximum amount allowed by law. On
the occurrence of a default or on the occurrence of any other event that under the terms of the Loan
Documents give rise to the right to accelerate the balance of the indebtedness, then, at the option of
Lender, this note or any notes or other instruments that may be taken in renewal or extension of all or
any part of the indebtedness will immediately become due without any further presentment, demand,
protest, or notice of any kind, provided payment on the note shall not be accelerated without the prior
written approval of HUD and any late charges and costs referred to in paragraphs 2 and 4 hereof
shall be payable only from annual and available residual receipts as defined in the Regulatory
Agreement between HUD and the Borrower and subject to the prior written approval of HUD.
2. The indebtedness evidenced by this note may, at the option of the maker, 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 principal balance.
3. All Loan payments are payable in lawful money of the United States of America at any place
that payee or the legal holders of this note may, from time to time, in writing designate, and in the
absence of that designation, to the Payee's address of record.
4. Borrower agrees to pay all costs including, without limitation, attorney fees, incurred by the
holder of this note in enforcing payment, whether or not suit is filed, and including, without limitation,
all costs, attorney fees, and expenses incurred by the holder of this note in connection with any
bankruptcy, reorganization, arrangement, or other similar proceedings involving the undersigned that
in any way affects the exercise by the holder of this note of its rights and remedies under this note.
All costs incurred by the holder of this note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by maker.
Borrower will pay to Lender all attorney fees and other costs referred to in this paragraph on demand.
5. Any notice, demand, or request relating to any matter set forth herein shall be in writing and
shall be given as provided in the HOME Agreement.
6. 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 payee's rights under this note, but rather will be deemed to have been
made in pursuance of this note and not in modification. No waiver of any default will be construed to
be a waiver of or acquiescence in or consent to any preceding or subsequent default.
7. Lender may transfer this note and deliver to the transferee all or any part of the Property then
held by it as security under this note, and the transferee will then become vested with all the powers
and rights given to Lender; and Lender will then be forever relieved from any liability or responsibility
in the matter, but payee will retain all rights and powers given by this note with respect to Property not
transferred.
2
8. If any one or more of the provisions in this note is held to be invalid, illegal, or unenforceable in
any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the
remaining provisions will not in any way be affected or impaired. This note will be binding on and
inure to the benefit of maker, Lender, and their respective successors and assigns.
9. This note is made and delivered in payment of costs not included in the HUD Capital Advance
for the Project described in the HOME Agreement. In the event of any conflict between this RIDER
and HUD Section 202 Program Capital Advance Documents, the HUD Capital Advance Documents
shall control. In the event of a conflict between this Rider and the HOME Agreement, any such
dispute shall be resolved by the Secretary of HUD.
10. Borrower agrees that this note will be deemed to have been made under and will be governed
by the laws of California in all respects, including matters of construction, validity, and performance,
and that none of its terms or provisions may be waived, altered, modified, or amended except as
Lender may consent to in a writing duly signed by Lender or its authorized agents and approved by
the Secretary of HUD.
1H
IN WITNESS WHEREOF, Borrower has caused this Promissory Note Rider to be executed by
its authorized agent(s) on 20
Attest:
a California nonprofit public benefit corporation
By:
Name:
Title:
(Attach notary certificate of acknowledgment)
LENDER
CITY OF FRESNO, a California municipal corporation
By: --
Name: Mark Scott, City Manager
(Attach notary certificate of acknowledgment)
EXHIBIT "G": SPECIMEN DEED OF TRUST
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Development and Resource Management Dept.
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
(SPACE ABOVE THIS LINE F
TITLE ORDER NO. ESCROW NO._
APN NO.: 415-044-59
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
This Deed of Trust, made this _ day of , between ,
a California nonprofit public benefit corporation, herein called Trustor, whose address is 516 Burchett Street,
Glendale, California 91203, and THE CITY OF FRESNO, a municipal corporation, herein called Beneficiary,
and Lawyers Title Company, herein called Trustee.,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO TRUSTEE IN TRUST,
WITH POWER OF SALE, that property in Fresno County, California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF,
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and
authority given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by
reference to collect and apply such rents, issues and profits.
For the Purpose of Securing: 1. Performance of each agreement of Trustor incorporated by reference or
contained herein. 2. Payment of the indebtedness evidenced by one promissory note of even date herewith,
and any extension or renewal thereof, in the principal sum of $750,000.00 executed by Trustor in favor of
Beneficiary or order. 3. Payment of such further sums as the then record owner of said property may borrow
from Beneficiary, when evidenced by another note (or notes) reciting it is so secured.
To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of
Trust and the rate secured hereby, that provisions (1) to (14), inclusive, of the fictitious deed of trust recorded
October 23, 1961, in the book and at the page of Official Records in the office of the county recorder of the
county where said property is located, noted below opposite the name of such county, viz.:
COUNTY DATE
BOOK
PAGE
COUNTY DATE
BOOK
PAGE
COUNTY
DATE
BOOK PAGE
IMPERIAL
9/10/68
1267
574
ORANGE 9/6/68
8714
147
SAN BERNARDINO 9/6/98
7090 14SANTA
BARBARA
9/6/68
2244
922
KERN 9/6/68
4195
363
VENTURA
9/6/68
3363 84
SAN LUIS OBISPO 9/10/68
1489
429
LOS ANGELES
8/28/68
T5910 842
RIVERSIDE
9/10/68
ACCOUNT = 87097
YEAR 1968
SAN DIEGO
9/10/68
SERIES 9 BOOK
1968 PAGE 155820
(which provisions, identical in all counties, are printed on the reverse hereof) hereby are adopted and
incorporated herein and made a part hereof as fully as though set forth herein at length; that he will observe
and perform said provisions; and that the references to property, obligations, and parties in said provisions
shall be construed to refer to the property, obligations, and parties set forth in this Deed of Trust.
V
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale
hereunder be mailed to him at his address hereinbefore set forth. Exhibit B attached hereto is hereby
incorporated by reference as if stated in full hereof.
M
STATE OF CALIFORNIA
a California nonprofit public benefit corporation
STATE OF California }
}ss.
COUNTY OF }
On before me, _ a notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
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 official seal
Signature
X rol Z rOYd i_ •G
The following is a copy of provisions (1) to (14), inclusive, of the fictitious deed of trust, recorded in
each county in California, as stated in the foregoing Deed of Trust and incorporated by reference in
said Deed of Trust as being a part thereof as if set forth at length therein
To Protect the Security of This Deed of Trust, Trust or Agrees:
(1) To keep said property in good condition and repair, not to remove or demolish any building
thereon, to complete or restore promptly and in good and workmanlike manner any building which
may be constructed, damaged or destroyed thereon and to pay when due all claims for labor
performed and materials furnished therefor, to comply with all laws affecting said property or requiring
any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to
commit, suffer or permit any act upon said property in violations of law to cultivate, irrigate, fertilize,
fumigate, prune and do all other acts which from the character or use of said property may be
reasonably necessary, the specific enumerations herein not excluding the general
(2) To provide maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable
to Beneficiary. The amount collected under any fire or other insurance policy may be applied by
Beneficiary upon indebtedness secured hereby and in such order as Beneficiary may determine, or at
option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor.
Such application or release shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee, and to pay all costs and expenses including cost of
evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of
Trust.
(4) To pay at least ten days before delinquency all taxes and assessments affecting said property,
including assessments on appurtenant water stock, when due, all encumbrances, charges and liens,
with interest, on said property or any part thereof, which appear to be prior or superior hereto, all
costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or
Trustee, but without obligation so to do and without notice to or demand upon Trustor and without
releasing Trustor from any obligation hereof, may make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof Beneficiary or Trustee being
authorized to enter upon said property for such purposes; appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee,
pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of
either appears to be prior or superior hereto, and in exercising any such powers, pay necessary
expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay
for any statement provided for by law in effect at the date hereof regarding the obligation secured
hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the
time when said statement is demanded.
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(6) That any award of damages in connection with any condemnation for public use of or injury to said
property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or
release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not
waive his rights either to require prompt payment when due of all other sums so secured or to declare
default for failure so to pay.
(8) That at any time or from time to time, without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed and said Note for endorsement, and without
affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may reconvey any part of said property, consent to the making of any map or plot thereof; join in
granting any easement thereon; or join in any extension agreement or any agreement subordinating
the lien or charge hereof.
(9) That upon written request of Beneficiary state that all sums secured hereby have been paid, and
upon surrender of this Deed and said Note to Trustee for cancellation and retention and upon
payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The grantee in such reconveyance may be described as "The person or persons legally
entitled thereto "Five years after issuance of such full reconveyance, Trustee may destroy said note
and this Deed (unless directed in such request to retain them)
(10) That as additional security, Trustor hereby give to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said
property, reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect the rents,
issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in
payment of any indebtedness secured hereby or in performance of any agreement hereunder, to
collect and retain such rents, issues and profits as they become due and payable. Upon any such
default, Beneficiary may at any time without notice, either in person , by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in his own name sue
for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including reasonable attorney's fees.
Upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The
entering upon and taking possession of said property, the collection of such rents, issues and profits
and the application thereof as aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any indebtedness secured hereby or in performance
of any agreement hereunder. Beneficiary may declare all sums secured hereby immediately due and
payable by delivery to Trustee of written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property which notice Trustee shall cause to
be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents
evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of
default, and notice of sale having been given as then required by law, Trustee, without demand on
Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a
whole or in separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone
sale of all or any portion of said property by public announcement at such time and place of sale, and
from time to time thereafter may postpone such sale by public announcement at the time fixed by the
preceding postponement Trustee shall deliver to such purchaser its deed conveying the property so
sold, but without any covenant or warranty, express or implied. The recitals in such deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of
title in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums
expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law
in effect at the date hereof, all other sums then secured hereby, and the remainder, if any, to the
person or persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time
to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or
acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said property is situated, shall
be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without
conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties.
Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the
book and page where this Deed is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall
mean the owner and holder, including pledgees, of the note secured hereby whether or not named as
Beneficiary herein in this Deed, whenever the context so requires ,the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a
public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale
under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid:
To Lawyers Title Company, Trustee: Dated
The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured
by said Deed of Trust have been fully paid and satisfied, and you are hereby requested and directed, on payment to you
of any sums owing to you under the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said
Deed of Trust, delivered to you herewith together with said Deed of Trust, and to reconvey, without warranty, to the
parties designated by the terms of said Deed of Trust, the estate now held by you under the same.
MAIL RECONVEYANCE TO:
By
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
EXHIBIT "A"
To Deed of Trust
The Property is located adjacent to the southwest corner of West San Jose Avenue and
North Marty Avenues in northwest Fresno, CA 93711, as described below:
LEGAL DESCRIPTION
PARCEL B OF PARCEL MAP NO. 2004-30, IN THE CITY OF FRESNO, COUNTY OF FRESNO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 1, 2005
IN BOOK 65 AT PAGES 36 AND 37 OF PARCEL MAPS, FRESNO COUNTY RECORDS.
EXCEPT THEREFROM AN UNDIVIDED ONE-HALF OF ALL THE MINERALS, GAS, OILS,
PETROLEUM, NAPTHA, AND OTHER HYDROCARBON SUBSTANCES IN, ON OR UNDER SAID
PARCEL, AS RESERVED IN THE DEED FROM SECURITY FIRST NATIONAL BANK OF LOS
ANGELES, A NATIONAL BANKING ASSOCIATION, TO W. E. ROBERTS AND CLARICE
ROBERTS, HIS WIFE, AS JOINT TENANTS, DATED NOVEMBER 15, 1940, RECORDED
DECEMBER 19, 1940, AS DOCUMENT NO. 37544, OFFICIAL RECORDS.
APN: 415-044-59
P
EXHIBIT "B"
To Deed of Trust
(a) This Deed of Trust is second and junior in lien to a deed of trust made by Trustor in
favor of the Secretary of Housing and Urban Development ("Secretary") to be recorded
concurrently securing a Capital Advance made by the Secretary pursuant to Section 202 of
the Housing Act of 1959, as amended, or Section 811 of the Cranston -Gonzales National
Affordable Housing Act and to a Regulatory Agreement and Use Agreement between Trustor
and the Secretary with respect to the Property referred to herein.
(b) During the period the HUD Regulatory Agreement or Use Agreement is in effect, no
default under this deed of trust may be declared without the prior written approval of the
Secretary.
(c) In the event that during the period the HUD Regulatory Agreement or Use Agreement
is in effect, the Secretary acquires title to the property by foreclosure or by deed in lieu of
foreclosure, or otherwise, the lien of this deed of trust shall automatically terminate.
(d) This deed of trust shall not be modified during the period the HUD Regulatory
Agreement or Use Agreement is in effect without the prior written approval of the Secretary.
(e) During the period the HUD Regulatory Agreement or Use Agreement is in effect, in the
event of any conflict between any provisions of this deed of trust and the Cranston -Gonzalez
National Affordable Housing Act or the Housing Act of 1959, as amended, HUD regulations,
or the HUD Regulatory Agreement, this deed of trust shall be deemed amended to comply
with said Act, regulations and HUD Regulatory Agreement.
(f) Approval by the Secretary of a Transfer of Physical Assets ("TPA") of the Project
referred to in the Note secured by this Deed of Trust shall constitute approval of the TPA by
the Beneficiary.
(g) During the term of the HUD Capital Advance Documents the Beneficiary shall not
exercise the remedies under the Deed of Trust without the prior written approval of HUD.
V
City of
r/`111c�' ��►� REPORT 1'0 THE CITY COUNCIL
September 15, 2011
FROM: CRAIG SCHARTON, Assistant Directo�
Development and Resource Managers
CLAUDIA CAZARES. Division Man ge '
Housing and Commu-Iity Development Division
By: CORRINA NUNEZ, Project Manag�nt
Housing and Community Developm ision
AGENDA ITEM NO. :.30opm�
COUNCIL MEETING cizcl/
APPROVED BY
DEPARTMENT DIRECTOR
CITY MANAGER
SUBJECT: AFFIRM A FINDING OF CONFORMITY THAT DETERMINED SIERRA GATEWAY
SENIOR RESIDENCE PHASE II PROJECT IS IN CONFORMITY WITH THE MASTER
ENVIRONMENTAL IMPACT REPORT NO. 10130 (SCH NO, 2001071097), AND
APPROVE A $750,000 HOME INVESTMENT PARTNERSHIPS AGREEMENT
WITH SOUTHERN CALIFORNIA PRESBYTERIAN HOMES/ITS NONPROFIT
ASSIGNEE FOR CONSTRUCTION OF A 68 -UNIT AFFORDABLE SENIOR
HOUSING PROJECT TO BE LOCATED AT THE SOUTHWEST CORNER OF
WEST SAN JOSE AVENUE AND NORTH MARTY AVENUE IN NORTHWEST
FRESNO
Prcsentcrl E3 City t.awcil
Presented to City C unci
RECOMMENDATIONS Date
D. tion
Staff recommends that the City Council: - - - - -
1) Affirm a Finding of Conformity that determined Sierra Gateway Senior Residence Phase II
housing project is in conformity with the Master Environmental Impact Report No. 10130
(SCH No. 200171097) of the General Plan; and
2) Approve a $750,000 HOME Investment Partnerships (HOME) Program Agreement
(Please see Exhibit "A" - HOME Agreement) with Southern California Presbyterian
Homes (SCPH) with subsequent assignment to its special purpose nonprofit, for
construction of a 68 -unit affordable senior housing project, subject to City Attorney
approval to form, to be located at the southwest corner of W. San Jose Ave. and N.
Marty Ave. (APN: 415-044.59) in northwest Fresno (Please see Exhibit °B" - Pr. ject
Location Maps). mese "tcrl to city cou cr�
Date_ 9 2 9 I I
EXECUTIVE SUMMARY Disposition
On April 15, 2011, the City received a $500,000 HOME Program funding proposal from SCPH in response to
the City's HOME Notice of Fund,ng Availability (NOFA), published March, 2011. The HOME Program
Agreement includes $500,000 provided through the NOFA and $250,000 previously approved by Council as
provided through the adoption of Resolution 2011-77, to SCPH with subsequent assignment to its special
purpose nonprofit, for development of the Sierra Gateway Senior Residence II project. If approved as
recommended, HOME Program funds will be provided to SCPH, in the form of a zero percent interest, deferred
and forgiveable loan. Disbursement of funds will be contingent upon full project financing including an award of
Section 202 Supportive Housing Program funds from the U.S. Department of Housing and Urban Development
REPORT TO COUNCIL
Agreement with Southern California Presbyterian Homes for Development of Sierra Gateway Senior
Residence Il
September 15, 2011
Page 2 of 3
(HUD). SCPH owns the property and the project is ready to proceed pending complete financing. Sixty-seven
units will be HOME -Assisted and carry 55 -year affordability covenants.
BACKGROUND
The City Council previously approved a Resolution (Please see Exhibit "E" — Resolution 2011-77) authorizing
$250,000 in HOME Program funds io the project. The April 28, 2011 Resolution served as the City's financial
commitment to the project for SCPH's Section 202 Program application to HUD. The additional $500,000 in
HOME Program funds were requested by SCPH through the City's March, 2011 NOFA. In June, 2011, shortly
after SCPH was notified that it was considered for HOME funding, it submitted its Section 202 application to
HUD, requesting $9.5 million in Section 202 funding to finance construction of the apartment complex. The
project cost is estimated at $10.7 million, of which a majority of funding is expected to come from an allocation
of HUD 202 funds. If approved as recommended, the HOME Agreement for the development of the
project will provide for a commitment of $750,000 in HOME Program funds (Please see Exhibit "C" —
Project Sources and Uses of Funds). Disbursement of the HOME Program funds for eligible project costs will
be contingent upon full project funding including an award of Section 202 funds from HUD.
Sierra Gateway Senior Residence II will be situated on a 1.38 -acre parcel adjacent to Sierra Gateway
Senior Residence I, at the southwest corner of W. San Jose Ave. and N. Marty Ave. in northwest Fresno
(Please see Exhibit "B" — Project Location Maps). SCPH owns the project site that is adjacent to Sierra
Gateway Senior Residence I and is ready to proceed with construction of Phase II pending complete
financing. Predevelopment activities for Phase II were completed in conjunction with Sierra Gateway Senior
Residence Phase I. A Conditional Use Permit (No. C-04-062) was issued for the development on July 7, 2004.
The project will consist of a single three-story building, 67 one -bedroom units of affordable senior rental
housing (for seniors 62 -years and older), a community room, on-site parking, and one manager's unit
(Please see Exhibit "D" — Plans and Elevations). Each unit size will be approximately 540 square feet, as
required by HUD. There will be approximately 58,400 square feet of living space at a cost of $137.00 per
square foot. Construction of the building structure will incorporate energy-efficient low -maintenance
materials, the City of Fresno's Green building standards, and Universal Design features. The ground
floor will also be occupied by a community center, management office, multi-purpose room, kitchen,
laundry rooms, restroom facilities, and a patio area. Qualifying seniors' income will be at, or below, 50%
of area median income and rents will be at 30% of a tenant's income.
Once completed, Sierra Gateway Senior Residence II will assist the City in meeting its affordable housing
goals as identified in the Housing Element of the 2025 General Plan and 2010-2014 Consolidated Plan.
SCPH is a well known non-profit corporation that has over 56 years of experience with development and
management of affordable housing projects. SCPH currently operates over 36 developments including 24
affordable housing communities with 1,700 units. In May, 2007, SCPH successfully completed Sierra Gateway
Senior Residence I, an 80 -unit affordable senior housing complex adjacent to the Phase II site. SCPH
proposes to establish a special purpose non-profit, Sierra Gateway Senior Residence II, as a tax exempt
nonprofit public benefit entity that will own, manage and operate the project. Once the entity is established,
SCPH will assign, and Sierra Gateway Senior Residence II will assume, the HOME Program Agreement and
loan.
REPORT TO COUNCIL
Agreement with Southern California Presbyterian Homes for Development of Sierra Gateway Senior
Residence Il
September 15, 2011
Page 3 of 3
ENVIRONMENTAL FINDING
The City completed a National Environmental Policy Act assessment on September 24, 2004, which resulted in
a Finding of No Significant Impact. On October 28, 2004, the City received HUD environmental clearance and
authorization for use of HOME funds for Sierra Gateway Senior Residence 11. On August 24, 2004 Council
considered and adopted California Environmental Quality Act (CEQA) Environmental Assessment No. R -04-
24/C-04-62: Finding of Conformity to the 2025 Fresno General Plan Master Environmental Impact Report
(MSIR 10130) (Please see Exhibit F — CEQA Documents). With the mitigation imposed, there is no
substantial evidence in the record that this project may have additional significant, direct, indirect or cumulative
effects on the environment that are significant and that were not identified and analyzed in the MEIR. After
conducting a review of the adequacy of the MEIR pursuant to Public Resources Code, Section 21157.1, staff
has determined no substantial changes have occurred with respect to the circumstances under which the
MEIR was certified and that no new information, which was not known and could not have been known at the
time that the MEIR was certified as complete has become available. The project is not located on a site which
is included on any of the lists enumerated under Section 65962.5 of the Government Code including, but not
limited to, lists of hazardous waste facilities, land designated as hazardous waste property, hazardous waste
disposal sites and others, and the information in the Hazardous Waste and Substances Statement required
under subdivision (f) of that Section. Therefore, any necessary environmental review required by CEQA has
been completed for the project. As with Phase I, Southern California Presbyterian Homes hopes to enhance
the Sierra Gateway 11 project by adding solar energy facilities as programs and rebates become available. This
type of renewable energy improverrents will reduce energy consumption, greenhouse gases and air pollutant
emissions, and help support objectives and policies of the City's recently -adopted Air Quality update to the
2025 Fresno General Plan with the City's sustainability initiatives.
HOUSING AND COMMUNITY DEVELOPMENT COMMISSION
The Housing and Community Development Commission considered and recommended this item for approval
on August 24, 2011.
FISCAL IMPACT
HOME Program funds for the project are available in the Development and Resource Management
Department's Fiscal Year 2012 Budget. The project's total construction cost is estimated at $10.7 million, of
which a majority of funding is expected to come from HUD Section 202 funds and a total of $750,000 is
proposed to come from the City's HOME Program,
APPENDICES
Exhibit A - HOME Program Agreement
Exhibit B - Project Location Maps
Exhibit C - Project Sources and Uses of Funds
Exhibit D - Plans and Elevations
Exhibit E - Resolution 2011-77
Exhibit F - CEQA Documents:
1. Notice of Determination;
2. Finding of Conformity;
3. MEIR Mitigation Monitoring Checklist; and
4. Ordinance No.: 2004-84