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HomeMy WebLinkAboutAssemi, Reza - OPA - 1625 Broadway - 2009FVUSW AGENCYITEMNO. 9:415am AGENCY MEEDNG. 521-09 REPORT TO THE REDEVELOPMENT AGENCY DATE: May 21, 2009 FROM: Marlene Murphey, Executive Director SUB.fECT: Consider approval of an Owner Participation Agreement (OPA) between the Redevelopment Agency of the City of Fresm and Reza Assami (or other affiliate) for the development of a mixed use residential project at 1625 Broadway in the Fulton Redevelopment Project Area; and adapt afinding of a Class 32 categorical exemption pursuant to CEOA guideline section 15332. RECOMMENDATION Consider approval of the attached Owner Participation Agreement with Reza Amami or an affiliated legal entity (the'Developer') which would lead to the development of a mixed-use housing and commercial development in the Fulton Redevelopment Project Area - Cultural Arts and Entertainment Distad by authorizing Agency participation in the Broadway Lofts project at 1625 Broadway, in an amount not to exceed $750,000, payeble from the Low- and Moderate Income Housing Fund. UECUTIVE SUMMARY This project is a continuation of the Agency's revitalization efforts in the Fulton Redevelopment Projerd Area. ThefimtA majormsidentialdevelopmerrtpmje s"mthe H Street Logs antl the Vagabond Lofts. The latter has a mixed use component. Vagabond Lofts was completed in 2005, H Street Lofts was completed in 2008 and Fulton Placa Is currently under construction. Fulton Plaza is a mixed use project on Dwisadem between Fulton and Broadway. That project will be completed in late 2009. The Agency also has an Exclusive Negotiating Agreement with Granville Homes on a fourth project, Fulton Village, to ba located at Fulton and Amador Fulton Village is a mixed use residential and commercial project consisting of 68 +1- units (54 market rale and 14 affordable units) and 1,300 +/-square feet of commercial space on 1.1 +/- acres located at 1759antl1732Fulton StreeL Fourteendtheunits,twentypermnt(2096),shallbeaRaN e to moderate income households for a period of 55 years. The affordable housing ulitswill be integrated with the market rate units. All four of Nose projects have been developed as public-private partnerships with a combination of public assistance ham the Redevelopment Agency, the Housing Authority and the City of Fresno and private joint ventures between Pyramid One, Reza Asians, and Granville Homes. This project is the first that the Agency has assisted in the Fulton area as an adaptive muse Report M ft AWncy Boaro Bmpdway Lofts Ower Porfiatpaaan Agreement stay 21, 2009 Page 2 of an existing building. The property at 1625 Bmackway is a former tire store and was constructed in the late 1990'5. Later uses included the sale of printing presses and, most recently, storage. The building footprint is approximately 15,500 square feet, though Mere are second floor Ions in a portion of the space. The parcel is 30,000 square feet. The Developer proposes to divide Me property into 22 loft apartments ancone live - work ink. The project is eligible for a Class 32 categorical exemption pursuant to CEGA guideline section 15332 because i1 is a residential project on a site less Man 5 was and all of the infrastructure is in place. In order to make the Broadway Lofts project feasible, the Developer has requested to enter into an Owner Participation Agreement ("AgresmenY) with the Agency, similar to the prior agreements. The Agreement is conditioned on the Developer receiving all land use and development approvals, variances and permits required by the Agreement, receiving the appropriate environmental assessment pursuant to the California Environmental GualdyAd (CEGA); and, securing any additional public financing commitments to make the project feasible, if necessary. Under the Agreements proposed! terms a loan in the amount of $650,000 and a grant in the amount of $100,000 would be made to the project by the Agency. Theloanwouldbedivided into a disbursement of $325,000 at the execution of the Agreement and $325,000 upon the receipt of the land use approvals and CEGA clearance by the City of Fresno. The final $100,000 would be disbursed at the completion of the project in the fern of a grant. This assistance helps leverage and protects the Agency's investment of LowandModerate Income Housing Funds in Me four previous projects by continuing to revitalize the Cultural Arts District. This investment further creates a downtown housing market Mat steadily delivers Me critical mass required to redevelop the area and create a vibrant, alb ive, and desirable neighborhood in the Uptown Fulton and Cultural Arts Entertainment District. Furthermore, this investment builds upon the greater critical mass required to revitalize downtown Fresno. BACKGROUND This Agreement with Reza Assam (or an affiliated legal entity) is for the purpose of developing a mixeduse housing and conmandal project in the Fulton Redevelopment Project Area Cultural Arts and Entertainment District. Over the past several years the Agency has worked with this Developer to facilitate the public-private projects for much needed housing and mixed use development in the Fulton Redevelopment Project Area Cultural Arts and Entertainment District. These projects include Vagabond Lofts, a $10 million development consisting of 3B residential units with approximately 10,000 squaefeet of small commercial space, the H Street Lolls, a $3.5 million development of 26 livehvork lofts; and the $15 million Fulton Plaza project[ consisting of 60 housing ants and 15,000 so. ft, of commercial space. When Fulton Plaza is completed in 2009 therawill be 144 additional housing units and 25,000 square feet of commercial space in the Fulton Redevelopment Report IS Me Agency Board Broadway Loft 3 2 May 21, 009 2009petlon A9nremenf May Pepe 3 Project Area Cultural Arts and Entertainment District. Finally, Fulton Village at Fulton and Amador will add an additional 68+/ -units (54 market rate and 14 affordable units) ad 1,300 +I- square teat of commercial space on 1.1 +/- acres. This project is the first that the Agency has assisted in the Fulton area as an adaptive reuse of an existing building. The property at 1625 Broadway is a former lire alae and "a constructed in the late 1940's. Later uses included the sale of printing presses ard, most recently, storage. The building footprint is approximately 15,500 square feet, though there are second floor lofts in a portion of the space. The parcel is 30,000 square feet. The Developer proposes to divide the property into 22 off apartments and one live -work unit To date, the Developer has purchased the property and gutted the interior of the building. The project is proceeding through the City's Site Plan Review process and has been identified as one of the first Adaptive Reuse projects permitted in the downtown area under new Adminiskelion's policies encouraging historic rehabilitation and reuse. In order to make the Broadway Logs project feasible, the Developer has requested similar participation from the Agency as in the prior agreements in the Uptown area. The Agreement will define Ne scope of work of Ne project and condition participation on the Developer receiving all land use and development approvals, variances and permits required by the Agreement; receiving the appropriate environmental assessment pursuant to CEQA; and, securing any additional publicfundsfor the project, ff necessary. The Developer is required to complete the project as proposed and dedicate five of the units, or twentypercent (2096), as affordable to households earning no more Cyan 120% of the area median income, for a period of 55 years. The affordable housing units will be integrated with the market rate units. Upon completion, Broadway Lofts will brims the total number of new residential units built in the Uptown Fulton area since 2006 to 230 units and the total amount commercial space to over 26,000 square feet This project will also created five (5) new affordable housing opportunities for moderate income households. FINANCING This dynamic project and the other Uptown Fulton and Cultural Arts District redevelopment projects highlight the necessity of layering public financing with private financing to develop pioneering protects needed to bring back vibancy to dowrrlam Fresno and create an environment where people can live, wank, play, and enjoy Fresno's art's community. The total development cost of the project is $3,973,540. The Developer's fin indrip plan calls fora permanent loan of $1,536,734 (38.7% loan to cost), the $750,000 Agency contribution (18.9% of cost) and 42 4% developer equity. Even with the Agency participation, the protect only makes a 10% return on the Developers cash contribution in the project, less than a standard ratum. It also assumes an optimistic 80% loan to value ratio for the construction loan. The Agency's $650,000loan will bas interest-free antl defense for Ne first len years. Ager Report to the Agency Boant Broadway Lofts Owner Participation Agreement May 21, 2908 Page 4 the 10" year, it will be amortized on a 30 year amortization schedule and be due and payable in 20 years (at the end of the 30° year overall). Funds from the Agency Housing Set -Aside funds are available and will be budgetetl by the Agencyin1he200r12010budget. The remainder of the necessary funding to complete the project will come from loan commitments from conventional lenders and the Developers equity. This $3,973,590 project leverages $4.30 in private investment for every dollar in Agency assistance. Upon completion the project will produce approximately $21,000 in annual tax increment for the Agency until the and of the Fulton Redevelopment Plan life. This project will remove blight from the Uptown Fulton Area, stabilize the area, create new commercial space in the area, and deliver needed affordable (rousing units in close proximity to jobs, educational opportunities, and community resources. The Agency will additionally benefit from the receipt of 55 year affordability for 5 moderate income units. HOUSING AND COMMUNITY DEVELOPMENT COMMISSION The Housing and Community Development Commission considered this item during their regularly schedule meeting of May 13, 2009 and voted unanimously to recommend approval. Attachments: 1. Area Map 2. Draft OPA RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO. Redevefapment Agency of the City of Fresno 2344 Tulare St., Suite 200 Freano, Ca. 93721 ' Attention Executive Director 14€ k. E€ eu12/21119,281611IN361 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) This Agreement is recorded at the request and for the benefit of me Redevelopment Agency of Me City of Fresno and is exempt from the payment of a recording fee pursuant to Gorsmmant Code Section 6103. REDEVELOPMENT AGENCY OFTHE CITY OF FRESNO �� By: �4N�Ad� Its: Executive Director Dated: x-22 09 OWNER PARTICIPATION AGREEMENT by and between Redevelopment Agency of the City of Fresno, a public body, corperate and politic and Reza Assami 1525 Broadway Residential Rental Project Fresno, CA 93721 ter., (SPACE ABOVE THIS LINE FOR RECORDER'S USE) This Agreement is recorded at the request and for the benefit of me Redevelopment Agency of Me City of Fresno and is exempt from the payment of a recording fee pursuant to Gorsmmant Code Section 6103. REDEVELOPMENT AGENCY OFTHE CITY OF FRESNO �� By: �4N�Ad� Its: Executive Director Dated: x-22 09 OWNER PARTICIPATION AGREEMENT by and between Redevelopment Agency of the City of Fresno, a public body, corperate and politic and Reza Assami 1525 Broadway Residential Rental Project Fresno, CA 93721 ATTACHMENiB 1 Exhibit A: Legal Description of Properly 2 Exhibit B: Schedule of Performance/Payment Schedule 3. Exhibit C: Budget/Financlal Plan 4. Exhibit D: Certificate of Completion 5. Exhibit E: Basic Design 6. Exhibit F: Affordability Resinctions Running with Land. 7. Exhibit G: [Specimen] Promissory Note 6. Exhibit H: [Specimen] Deed of Tmstj OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered as of the Effective Date (defined in this Agreement), between the REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, corporate and politic, (`Agency') and REZA ASSEMI, an individual Fownef'). RECITALS The parties enter this Agreement based on the following facts, understandings, and intentions: A. By authority granted under California Redevelopment Law (the "Law"). the Agency has prepared and Is responsible for carrying out the redevelopment plan for the Fulton Redevelopment Project Area (the'Plan"). B. To the extent provided In or allowed by the Law including Cal. HAS -C. Sections 33334.2 and 33449, as provided by joint resolutions of the Fresno City Council and the Agency, findings and Cetendlnaflons pursuant to Health and Safety Code Search 333M.2 (a), the Plan and limited to the terms and conditions therein, the Agency may make improvements upon and/or construct and Improve structures in order to provide housing for persons and families of low or moderate income, including related orross and off-site improvements, by variously (1) allowing the use of Housing Set Aside Funds outside the Airport Area Revitalization, Central Business District, Central City Commercial Revitalization, Chinatown Expanded, Convention Center. Freeway 99- Golden State Boulevard Cooper FmillChurch, Mariposa. Reeding Business Park, South Fresno Industrial Revitalization, South Van Ness Industrial, Southeast Fresno Revitalization. West Fresno I, West Fresno II, West Fresno III, redevelopment plans, (2) restricting the use of the Housing Set Aside Funds to certain of the Community Development Bleck Grant eligible areas of the City, (3) placing a poorly on the use of the Housing Set Aside Funds from certain Project Areas to be used either within or adjacent to the Central Area or adjacent to certain Project Areas. C. Agency administers the Low and Moderate Income Housing Fund established pursuant to Cal. HAS. C. Sections 33334.2 at seq. D, The Agency shall peril ower par olpation in the redevelopment of property in the Plan area in confority with the Plan and all owner participation rules and criteria, to the extent provided by Cel. H%5 C Sections 33339, 33339 .5, 33380 and 33381. E. Owner holds all rights, title and Interest in fee to the certain real property described In Exhibit 'A' attached hereto and incorporated herein (the'Property"), Including improvements located thereon which shall be improved by Owner as contemplated by this Agreement and known as the Broadway Lofts Project located at 1625 Broadway, Fresno, California (the "Project'). The Property and Project are Ionated within the territorial Jurisdiction of the Agency. F. Owner proposes to construct a residential rental project on the Property consisting of iwenty- three (23) residenfial units. Five (5) of the radia ial units (the "Affordable Units") are to be rented and preserved as Affordable Rental Housing. G Center agrees to undertake improvements in accordance wart the combined Performance and Payment Schedule described in Exhibit "B' attached hereto and incorporated herein (the 'Performance and Payment Schedule'). H. To me extent Housing Sat Aside Funds will exceed 50 percent of the cost of producing the Affordable Units, the Agency has determined based on substantial evidence, that the use of the Funds is necessary because the Agency or Owner of the Affordable Units has made a good faith attempt but been unable to obtain commercial or private means of financing the units at the same level of affordability and quantity. The Project is not feasible and cannot be completed and restricted In the affordable rental housing purposes and uses provided under Law and this Agreement absent the financial suppod of the Agency. L The Property and associated on elle and off site improvements are r ollectirely element to in this Agreement as the 'Improvements' or the "Project," all of which will directly benefit the Property and the Plan area, cannot otherwise be reasonably Paid for or financed, and are necessary to eliminate blight. J, Agency Is willing to assist Owner's construction of the Affordable Units by making available to Owner as a loan certain Housing Set Aside (Tax Increment) Funds In the amount of $650.000 (the 'Loan*) and a grant in me amount of $100,000 upon the terms and conditions specified this Agreement. K. The Loan shall be paid In accordance with the schedule set out In Exhibit B' to to Agreement and repaid in accordance with the promissory note a speamen of which is attached hereto as Exhibit -G' The Loan and performance of the affordability and other covenants and restrictions set forth in this Agreement shall be evidenced by this Agreement and! the Restrictions and Loan deed of trust which shall be recorded against and run with and encumber the Property, L. The Housing and Community Development Commission reviewed the Project and this Agreement on May 13. 2009, and recommended Nat Council approve It. M. The Plan program has been environmentally assessed under (Program Environmental Impact Report #10124 for the Merger N 2 Project by joint City Council Resolution 98-190 and Agency Resolution 1487 adopted on June 30. 1998 and has been determined to have or cause no adverse or reportable conditions or effects pursuant to the California Environmental Quality Act( N. Agency has further determined this Project is in the best Interests of, and will materially contribute to, Plan implementation. Further, Agency has found the Project: (I) will have a positive influence in the Plan Area, and surrounding environs (ii) is in the vital and bast interests of Agency and the health, safety, and warfare of City residents. (iii) complies with applicable lenders, state, and local laws and requirements, (Iv) will help eliminate blight Lu will improve and preserve the community's supply of low and moderate income housing available at affordable rent, as defined by Cal. H.BS.C, Sections 50052.5 and 50053, to persons and families of low or moderate income, as defined in Cal. H BS. C. Section 50093 of Corte; fell will be available to meet the replacement housing provisions in Cal. H.BS.C. Section 33413; (vlil will apply funds solely within the respective Plan areas except to the extent oUerwise provided herein and allowed by Law; (viii) all planning and administrative expenses Incurred In pursuit hereof are necessary for the production. Improvement, or preservation of low and moderate Income housing; (ix) will comply with all owner participation rules and options of Agency and the Plan; and (x) will comply with any and all applicable review and other requirements of the City's Historical Preservation Commission. O. The Owner and the Agency have condemned that this Agreement is not subject to Article X)i of the California Constitution. AGREEMENT 1. DEFINITIONS. Besides definition comment! elsewhere in Nis Agreement, the definitions in this Section will govern the construction, meaning, application and interpretation of the various terms used In this Agreement, 1.1 'AOA' means the Americans with Disabilities Act of 1990_ 1.2 Wffordabiley Period' means a padod of fifty-five(55) years commencing from the date Agency records the Certificate of Completion. 1.3 "Affordable Rental Housingor Affordable Units means the Units available at affordable rent, as defined by Cal, RBS.C. Section 50052.5 (4), to persons and families of low and moderate Income, as defined In Cal. H.BS.C. Section 50093 of Code, consistent with Recital F above which requirements shall be enforceable by covenants running with tl1e land. As used in this Agreement, the term 'Affordable Moderate Income Rent" shall mean annual rentals whose amount does not exceed the maximum percentage of income that ®n be devoted to rent as set forth by Health 8 Safety Code Section 50053, or its successor, which Is currently thirty, percent (30%) of ane -hundred -ten percent (110%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit. 1.4 'Agency' means the Redevelopment Agency a( me City of Fresno. a public body, corporateand politic, organized and existing under fee Law, and any assignee of or successor to its rights, powers and responsibilities. 1.5 'Agreement" means this Owner Participation Agreement. 1.6 'Budgef means the BudgeUFinancial Plan for the Project attached hereto and incorporated herein as Exhibit 'C' (the'BudgeYj. 1 7 "Certificate of Completion' means that Cadifoate issued in the form attached as Exhibit 'D" to Owner by Agency evidencing completion of the Project for purposes of this Agreement. 1.8 "Conditions Precedent of Agency" means the condifions precedent t0 me effectiveness of this Agreement against the Agency. 1.9 "Day' whether or not capitalized means a calendar day, unless stated otherwise. 1.10 "Restrictions' means the affordability restrictions contained in this Agreement antl Exhibit 'F' hereto, containing all conditions, commands, and restrictions required by the Law, any other applicable laws and regulations, the Plan, and this -5- Agreement, running with the Property and the Affordable Units memsen and burdening such for the Affordability Period. 1.11 'Default' means a party's failure to timely perform any action or covenant required by Me Agreement following notice and opportunity to cure. 1.12 "Director means the Executive Director of Agency. 1.13 "Entitlements' mean all permits and fees that the City, County of Fresno, and other governmental agencies with jurisdiction over the Project, the Improvements or Me Property may require. 1.14 "Effective Date' means the date of complete execution of the Agreement following City Council approval thereof. 1.15 'Environmental Laws' means any federal, state, or local law, statute, ordinance or regulation pertaining to environmental regulation, contamination or cleanup of any Hazardous Materials or waste including, without limitation, any state or fetleral lien or "super Ilan' law, any environmental cleanup statute or regulation, or any governmentally required permit, approval, authorization, license, variance or permission. 1.16 'Funding Source" means the Loan and other funding sources secured by Owner to construct Me Improvements. 1.17 "Financing Plan' means the Budget including sources and uses of once sufficient for Owner to complete the. Improvementsaccording to the Performance and Payment Schedule. 1, 18 "Grant' means a $100,000.00 grant to Owner to facilitate development of the Project which Is not required to be repaid by Owner. 1.19. "Hazardous Materiels" means any substance, material, or waste which Is becomes regulated by any local governmental authority, the State of Callfomler or the United States Government including, without limitation, any material or substance which is: (a) defined as a "hazardous waste," "extremely hazardous waste," or -reelected hazardous waste' under Sections 25115, 25117, or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, (b) defined as a 'hazardous substance- under Section 25316 of the California Health and Safety Code, (c) defined as a `hazardous material," "hazardous substance,' or 'hazardous waste" under Section 25501 of the California Health and Safety Code, (d) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, (e) petroleum, (1) friable asbestos, (g) polychlorinated byphenyls, (h) listed under. Arl 9 or defined as "hazardous" or "extremely hazardous" under Article 11 of Title 22, California Administrative Cotle, (I) designated as 'hazardous substances' pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), 0) defined as a "hazardous waste' pursuant to Section 1004 of the Resource Conservative and Recovery Act (42 USC. §6901 at saq, or (k) defined as "hazardous substances' pursuant to Section of Me Comprehensive Environmental Response, -6- Compensation, and Liability Act (42 U.S.C. §9601, at seq); provided fafwever, hsterfil materials shall not include(1) constwdion materials, gardening Mai household products, once supply products or Janitorial supply products customarily used In the construction, maintenance, rehabilitation, or management of residential rental housing or associated buildings and grounds, or typically used in household activities, In a manner typical of other residential rental housing developments which are comparable to Ore Improvement; and (2) certain substances which may contain chemicals listed by the State of California pursuant to Health and Safety Code Sections 25249.8 at say., which substances are commonly used by a significant porion of the population Wall; within the region of the Properly, Including, but not limited to, alcoholic beverages, aspirin, tobacco products, NutraSweet and saccharine. 1.20 "Househald' means one or more persons occupying an Affordable Unit. 1.21 "Housing Set-Aside Funds" means those California Health and Safety Code Section 33334.2 monies held and administered by Agency a portion of which shall be made available as the Loan to Owner for eligible costs and expenses Incurred by Owner In constructing the Improvements in such amount, and upon such tinny and conditions specified in this Agreement 1.22 'Improvements' mean Me constwdian of the Affordable Units and other units that Owner will complete on the Property as par of the Project, Including associated fencing, and landscaping improvement. 123 'LaW means the Community Redevelopment Law of the State (California Health and Safety Code Sections 33000 of seq.). 1,24 "Loan' means the poll sum of $650,000 provided by Agency w Owner as a loan, upon the tons and conditions set forth In this Agreement and the Promissory Note attached hereto as Exhibit 'G" M be secured by a no worse than 3rd position deed of rust Ilan against the property. If Me dead of trust securing Me Promissory Note is recorded prior to the recordation of the deed or deeds of twat manning Me other Funding Sources consistent wrh the Financing Plan, Me Agency shall subordinate such deed of trust to such other deeds) of twat. 125 'Loan Document" am collectively this Agreement and all exhibits and attachment thereto any deed of twat given as security, as they may be amended, modified or restated own rime to time. 1.26 'Material Change" means a change, modification, revision or alteration to the Loan Documentsthat significantly deviates from those previously approved by the Agency, provided that fully funded changes) which do not result in a change in the number or type (Iou residential, affordable) of Units ar for an increase in the total Loan funding provided In this Agreement shall not constitute Material Changes} 1.27 "Owner' means Reza Assemi or an affiliated company in which he is a Member. Managing Member, or Principal. 7- 1 26 'Plan' means the Redevelopment Plan for the [Fulton Redevelopment Project Area.] 1-29 'Project" means the construction of 23 resitlential Units on the Property, of which 5 Units shall be Affordable Rental Housing. 130 'Project Area- means the Fulton Redevelopment Project Area. 1.31 'Project Completion Date' means rhe date that Agency shall have determined the Project has reached completion in accordance with the plans and specifications In the Performance and Payment Schedule, as evidenced! by Agency s issuance of a Certificate of Completion. 1.32 'Property" means the real property described in Exhibit "A 1.33 'Release of Restrictions' means a release of Nose covenants, conditions and restrictions contained In this Agreement. 1.34 'Performance and Payment Schedule" means the schedule attached as Exhibit "0" setting forth the dates and Xmes by which the patties must accomplish certain obligations under this Agreement. The parties may revise the Performance and Payment Schedule from time to time on mutual written agreement of Owner and Agency, but any delay or extension of the Completion Date Is subject to the requirements in this Agreement. 135 'Security Financing lnteresC means a security interest which Owner grants in the Property and the Improvements thereon before the Agency issues and records a Release of Restrictions. 1 36 'Unit' mean a essential unit constituting the Project. 2. CONDITIONS PRECEDENT TO AGENCY'S OBLIGATION TO PERFORM UNDER THIS AGREEMENT. The following are conditions precedent to Agency's obligation to Perform under this Agreement Until each and all of the conditions are satisfied, Agency Is not obligated to take any action, or provide any funding under this Agreement. Agency, in writing by its authodeep representative, may walve any com ption or agree to extend the time for satisfaction of any condition set forth In this Section 2. Agency may terminate this Agreement as provided herein for the failure of a condition. 2A Owner shall pay for and provide a title report, recorded dead or other scheme acceptable to Agency that Owner owns the Property. 22 Owner has entered into, and provost Agency copies of agreements with any and all funding sources and the general contractor for the Project All such funding source agreements shall contain a provision whereby the party(les) to each such agreement, other than Owner, agree to make reasonable efforts to ('g notify Agency immediately of any event of default by Owner under such agreement: fig notify Agency Immediately of termination or cancellation of such agreement: and (iii) provide Agency, upon Agencys request, an estoppel -6- canonical certifying that such agreement Is in lull force and effect and Owner is not in default under such agreement. 2.3 Owner has submitted evidence that me combined monies from the Funding Sources are not less than the greater of a total development cost of $3,909,861 or the amount which Agency determines is necessary to complete the Project If Agency determines that and funds are not sufficient to complete the Pmject, Owner may satisfy this condition as agreed to by Owner and Agency in wrong. 2.4 Owner will submit its Financing Plan to the Agency for review and acceptance provided that the purpose of Agency's review Is scaly to confirm Owner has sufficient funds available to complete the Improvements and maintain Project as this Agreement requires. After Agency accepts the Financing Plan, Owner will not make any Material Change In our Financing Plan without first submitting such change to Agency for review and acceptance, which shall not be unreasonably withheld, delayed or cond'Noner. 2.6 Owner, at Owner's expense, shall have Investigated and determined all environmental, soli, seismic, and other surface and subsurface conditions of the Property and the suitability of such conditions for the Pmjebt. Owners responsibility and due diligence includes, but is not limited to, determining the Presence of Hazardous Materials. Both Owner and Agency will promptly give the other copies of all reports and test results. Owner will Indemnify, defend, and holo Agency harmless from any damages or claims booing out of Owners Inspections and tests. 2.6 Should Owner a property assessmenVinspection reveal any Hazardous Materials or omental conditions requiring remediation, Owner will promptly notify AgencyroNot later Nan ten (to) days from and after such notice, Owner shall, at Its sole cost and expense, commence to make required submittals, develop required remedial action plans, and tlrereafter pursue procuration activities as to such Hazandus Materials or environmental conditions and to diligently prosecute such to completion as required by applicable federal, state and local law and in a manner and accoding a reasonable time frame agreeable to Agency. Without limiting the foregoing, any ramedlation will be. performed pursuant to a remedial action plan, if needed, approved by the governmental agencies having jurisdiction and will be performed according to applicable environmental leve and governmental requirements. 2.7 Owner shall not be in default or this Agreement and all representations and warranties of Owner contained herein shall be true and connect in all material aspects. 2].t Owner will have signed and delivered all documents requlretl hereunder.. 272 Owner will have received all land use and development approvals, variances, permits and me like required by this Agreement. 2.8 Owner will have provided proof of insurance as required by this Agreement. Sl 29 This Agreement shall have been recorded with the Fresno County RecoNer's Office. 3. OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS PRECEDENT. The following obligations of Owner will run with the land and survive this Agreement 3,1 Owner will fake all reasonable precautons to prevent the release Into the environment of any Hazardous Materials in, on or under the Property In violation of applicable laws or regulations. Owner will comply with all governmental requirements with respect to Hazardous Materials. In addition, Owner shall install and use equipment and implement and follow procedures that are consistent with reasonable standards for the disclosure, diameter use, removal and disposal of Hazardous Materials. 3.2 Owner will notify the Agency and give Agency a copy of all environmental permits. disclosures, applications, entitlements or Inquiries relating to the Property including, without limitation, notices of violation, notices to comply, citations, inquiries, cleanup or abatement orders, cease and desist orders, reports filed pursuant to self reaching requirements and reports fled or applications made pursuant to any governmental regulation relating to Hazardous Materiels. Within 3 days after each incident Owner will report to Agency any unusual or potentially Important indurate respecting the merm nmentai condition of the Property If a release of any Hazardous Materials into the environment occurs. Owner will. as soon as possible after the release, furnish Agency with a copy of any reports relating thereto and copies of all wnespondence with governmental agenda relating to me release. Upon request, Owner will furnish Agency with a copy of any other environmental entitlements or inquiries relating to or affecting the Property including, without limitation, all permit appllcelions. permits and reports, even reports and other mergers. 3.3 From the Effective Date of this Agreement, Owner shall Indemnify, hold harmless and defend Agency, Cily and each of their officers, officials, employees, agents and volunteers from any and all claim, action, suit, proceeding. loss, cost, tlamage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys' fees), arising out of (i) the presence, release, use, unmatched, discharge, storage or disposal of any Hazardous Materials on, under, in or about the Property, or the transportation of any Hazardous Materials to or from the Property, or (1) the violation, or alleged location, of any statute, ordinance, order, rule, regulation, permit, judgment. or license relating to any use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, b or from, me Property. This Indemnity will Include, without limitation, any damage, liability, fine, penalty, parallel indemnity after closing, wet or expense seeing from or out of any calm, action suit or proceeding for personal Injury (Including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, pmfts or other economic loss, tlamage to the natural resource or the environment, nuisance, contamination look, spill, release or other adverse effect on the environment. Owners obligations under the preceding -10- sentence shall apply regardless of whether Agency, City or any of their officers, officials, employees, agents or valunteers are negligent, but shall not apply to any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense caused solely by me gross negligence, or mused by the willful misconduct, of Agency. City or any of their officers, officials, employees, agents or volunteers. This section shall survive expiration or termination of this Agreement. 3.4 The status and qualifications of Owner are of particular concern to Agency. From the Effective Date of this Agreement until the Restrictions expire, no voluntary or involuntary successor in -interest of Owner will acquire any rights or powers under this Agreement, provided that the parties acknowledge the Owner shall hold the Affordable Units for rental as Affordable Rental Housing as provided In this Agreement Notwihstanding anything to the contrary herein, Owner shall have the right to transfer ownership of pie Property to another person or entity having experience in the ownership and operation of Affordable Rental Housing, as reasonably determined by Agency, which approval shall not be unreasonably withheld, delayed or conditioned. 4. DEVELOPMENT OF THE PROPERTY. 4.1 Except asset forth in this Agreement, before Owner begins constructing the Improvements or undertakes any other work of improvement on the Property, Owner, at its own cost and expense, will secure all land use and other enddemena, permits, and approvals that Agency or any other governmental agency with jurisdiction over the Project requires for construction of the Project Without waiver or IImlWpon, Owner will severe and pay all costs, charges and fees associated with, me following: 4.1.1 All permits and foes mat the City, County of Fresno, and other governmental agencies with judsdictlon over the Project, the Improvements orthe Property may require. 4.1.2 ADNBarners to the Disabled The Project shall comply with all applicable federal, more and local accessiblldy requirements. For purposes of this Agreement the number of accessible dwelling units shall be [zem (0)] unless a greater number of units shall on required by law, whereupon such greater number of units shell apply. 4.2 Basic Design. Owner has submitted a general or basic concept deal to Agency, which Agency has approved and a copy of which is attached as Exhibit "E" (the "Basic Design"). Owner will complete. the Improvements an the Property In one phase, according to the Basic Design, and the plans, drawings, and documents that Omer sub rste to Agency. Cramer shall many, out construction of the Project Including the Improvements in accordance with all applicable local, state and federal laws, codes, eminences and regulations, including without limitation all applicable stale and federal labor standards. 4.3. Books and Records. Owner shall make available for examination at reasonable Intervals and during normal business hours, all books, accounts, reports, files -11 and other papers or property with respect to all matters covered by this Agreement, and shall permit Agency to audit, examine and make excerpts or transcripts from such records. Agency may audit any conditions relating to this Agreement at Agencys expense, unless such audit shows a materially significant discrepancy In information reported by Owner m Agency in which case Owner shall bear the cost of such audit. Owner shall also reasonably cooperate with and assist the Agency in Agency compliance with any applicable audit requirements of the California Redevelopment Law including California Health and Safety Code Sections 33080 and 33000.1. This section shall survive for a period of four years after the expiration or termination of this Agreement. 4.4 Audit. Owner shall be accountable to Agency for all Loan funds disbursed to Owner pursuant to this Agreement. Owner will cooperate fully with Agency and the State In connection with any Interim or final audit relating to the Project that may be performed. Owner will maintain accurate and current books and records for the Project using generally accepted accounting principles. Owner agrees to maintain books and records that accurately and fully show the date, amount, purpose and payee of all expenditures financed with Loan funds and to keep all invoices, receipts and other documents related to expenditures financed with Loan funds for not less than four (4) years after the flsml year In which such expenditures are Incurred For purposes of this section, "books, mioms and documents' include, without limitation, plans, drawings, specifications, ledgers, journals, statements, contractslagreements, funding Information, purchase orders invoicers, loan documents, cementer printouts, correspondence, memoranda and electronically stored versions of the foregoing. This section shall survive for a period of four years after the expiration or termination of this Agreement. 4.5 Owner shall cause the issuance of all necessary dlscribil governmental permits, approvals and entitlements, close any implicated funding or other escrow and begimlcomplete construction of the Improvements according to the Performance and Payment Schedule, 4.5.1 Project Completion. Agency, acting through and in the mutation of its Director, may extend the completion date of the Project for that period of time that Agency, In its reasonable discretion, determines necessary to overcome any delay If and to the extent such delay is due to a cause which is beyond Owner's reasonable meant. and If Owner could not, with reasonable diligence, have foreseen and avoided such muse for delay. Such causes Include, without limitation, acts of God, unusually severe weather or good, war, terrorism, not or act of the public enemy, labor disputes, unavoidable Inability to secure labor, materials, supplies, tools or transportation, or acts or omissions of any governmental authority having jurisdiction. Agency will not extend the mmpletion date for ads or occurring through the fault of Owner, or for sets of Agency rertmtted or contemplated by this Agreement. An extension of time as provided in this subsection will be Owners sale remedy for any delays in the Performance and Payment Schedule the Project completion date. 11- As a condition precedent to any extension requested by Owner, Owner will give the Agency notice within tan (10) days after any cause for delay occurs, stating the cause and Me additional time Owner anticipates needed to complete the Project Any extension by Agency must be In writing and signed by the Director or the Director's designee. which approval shall not be unreasonably withheld, delayed or conditioned. 4.6 Subject to the terns of this Agreement. the Loan shall be disbursed to Owner accarding to the Performance and Payment Schedule. All Loan funds shall be used solely for costs of Me Project and Improvements. 4.7 Certificate of Completion. Owner will notify Agency when Owner deems the Project complete. Within ten (10) business days after such notice, Agency will inspect the Improvements. When Agency reasonably determines Owner has completed the Improvements as required in this Agreement, the Plan, and this Law. Agency will furnish Owner with the Cutthroats of Completion. Agency will not unreasonably delay, condition or refuse to issue the Certificates of Completion. The recorded Congdon of Comirmtlonwill be a condusive determination that Owner has satisfactorily completed the Improvements required under this Agreement. Any ender than owning or subsequently purchasing, leasing or otherwise acquiring any Interest In the Properly will not (because of that ownership, purchase, lea or acquisition) after the recording, incur any obligation or Iiablliry under this Agreement for constructing Me Improvements, but will take such interest in the Property subject to the continuing. covenants set forth In this Agreement 4.7.1 If Agency determines rat to banish the Certificate of Completion, In accordance with Section 47 above, Agency will give Owner a written notice stating why Agencyhas decided not to Issue the Certificate of Completion, or why it is delaying the Issuance, and the reasonable actions that in Agency's opinion, Owner must take before Agency can issue the Certificate of Completion. Agency's failure to give the more within tan (10) days, however, will not cause the Owner to the entitled to Me Certificate of Completer. The Cautious of Completion Is not a notice of completion as refected to In Section 3093 of the California Civil Code, 4.Z2 The following are conditions precedent to Agency issuing the Certificate of Completion, and each submission will be in form and substance satisfactory to the Director: Evidence that the time to file all mechanics liens or materiel men's liens has expired and any such liens recorded against the Property or Improvements have been released or, 0 not released, suRice ntly handed go 150%) against as required by law_ The Grant shall be disbursed upon Issuance of the Certificate of Completion. 4'.8 To the extent economically feasible, consistent with the requirements of any permfaed encumbrance, or as otherwise approved by Agency or provided in Me Agreement, If any entitling or Improvement on Me Property is damaged or destroyed by an insurable cause; Owner shall, at Its cast and expense, diligently -13- undertake to repair or restore said buildings and improvements consistent with the Basic Design for the Project. Such work or repair shall commence within ninety (90) days after the insurance proceeds are made available to Owner and shall be complete within one (1) year thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, Omar shall make up the def1mncy. 4.9 Inspections. Owner shall permit, facilitate and require Its contractors to permit and facilitate observation and inspection of Ne Project by Agency during reasonable business hours and upon reasonable notice for the purpose of determining compliance with this Agreement. 4.10 If and to the extent that development of the Project results In the permanent or temporary displacement of residential tenants, homeowners or businesses, Owner shall comply with all applicable local, state and fetlml statutes and regulations with respect to relocation planning, advisory assistance and payment of monetary benefits_ Omer shall be solely responsible for payment of any relocation benaflts to any displaced persons and any other obligations associated with compyng with said relocation laws. For purposes of this Section 4.10 the parties acknowledge that as of the Effective Date the Project Property is vacant and unoccupied. 4.11 Reporting Requirements. Owner shall submit to Agency the following reports: 4,11.1 Annual Reports. Annually, beginning in Ne year following Agency's issuance of Ne Certificate of Completion, and continuing until the expiration of this Agreement, an such dates as are agreeable between the parties and consistent with all federal and state reporting requirements applicable to the Project, Owner shall submit an annual report to Agency, In a forth approved by Agency. Such annual report shall include for each of the Affordable Unitsthe rent, the annual income and the family size of the Houselwld occupying the Affordable Unit. Such annual report shall also state the date the tenancy commenced for each Affordable Unit, certification from an officer of Owner that the Affordable Unit Is In compliance with the Affordable Rental Housing requirements, and such other information the Agency may be required by Law to obtain. Owner shall provide. any additional Information reasonably requested by the Agency provided such information is directly related to Owners cemplience with this Agreement. 4.112 Annual Proof of Insurance. Annually beginning in the year following Agency's issuance of the Certificate of Completion, and continuing until the expiration of the Agreement, Owner shall submit proof of insurance as required by this Agreement 4.12 All Leases used to rent the Affordable Units are subject to the following: 4.12.1 Annual Income Congeal and Reporting. Owner shall include in leases for all Affordable Units provisions which authorize Owner to Immediately -14- terminate the tenancy of any Household one or mora of whose members misrepresented any fact material to the Household's qualification as a Household for low to moderate income family. Each such lease shall also provide that the Household Is subject to annual cemfication, and Nat, if the Household annual income increases above the applicable limits for low to moderate income family such Household's rent may be subject to increase to the amount payable by tenant under federal, state or local law, except that consonant with the Law, tenants of des Affordable Units that hate been allocated to low Income housing tax credits by a housing credit agency pursuant to sechon 42 of Ne Internal Revenue Code of 1986 (26 U.S.C. 42) must pay rent governed by Section 42. 4.12.2 The leases for the Affordable Units shall provide that ff the Project is subject to state or fetle2l rules governing low Income housing tax credits, the provision of those miss regarding continued occupancy by, and increases In rent for, Households whose incomes exceed the eligible incomelimitation shall apply in place of the provisions set form In subsection 4 11 above. 4.13 Will respect to the Project, Owner shall comply with the following: 4.13.1 Except to any extent otherwise provided In this Agreement, Owner Is speclfcolly responsible for all management functions with respect to the Affordable Units including, without limitation, Ne selection of tenants, certification and re<ertifiption of Household size and income, evictions, collection of more and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items and security. Agency shall have no responsibility for management of the Affordable Units of the Project 4,14 Owner covenants and .agrees the Affordable Units shall constitute Affordable Rental Housing during the come Affordability Period. If Owner fails to comply with the requirement to: lease the Affordable Units only to qualified Households donne the Affordability period, Agency shall be entilled to enjoin Owner from leasing Ne Affordable Units In the Project, as Owner acknowledges that damages are not an adequate remedy at law for such breach. 5. INOENINITy: INSURANCE 5.1 Owner shall indemnify, hold harmless and defend Agency, City and each of their officers, officials, employees, agents from any and all loss, liability, Fines, pen lies, femaleness, costs and damages (whether in contract, tort or are* liability, including but not limited to Personal Injury, death at any time and property damage) incurred by Agency. City, Owner, or any other person and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), an5ing or alleged to have arisen directly or Indirectly out of Owner's performance of this Agreement. Owners obligations under the preceding sentence shall not apply to any loss, liability, Maes, Penalties, forfeitures, costs or damages caused solely by the gross negligence. or caused by the wilful misconduct, of Agency, City or any of their officers. -15- officials, employees, agents or volunteers, This section shall survive expiration of termination of this Agreement. 5.2 Throughout the life of this Agreement, the Owner shall pay for and maintain in full farce and effect all policy(ies) of Insurance required hereunder with (an) insurance company(res) either (1) admitted by the California Insurance Commissioner to do business in the Stale of California and retell not lass then "A-VII" in Bast's Insurance Rating Guide, or (2) authorized by the Agency's Risk Manager or hismer designee. The fallowing policies of insurance are required: 52.1 Upon commencement of construction and continuing until the Certificate of Completion is recorded, Builders Risk (Course of Constructlon) insurance in an amount equal to the completed value of the project with no coinsurance penalty provisions (unless authorized by Agency). 522. Following the recording of the Certificate of Completion, Fire and Extended Coverage Insurance against loss or damage to the project by Ire and lightning, with extended coverage for vandalism and malicious mischief and sprinkler system leakage. Such extended coverage insurance will, as nearly as practicable, cover loss or damage by explosion, windstorm, rot, aircraft. vehicle, smoke and such other hazards as are normally covered by such insurance. Such insurance shall be in an amount equal to the replacement cost (without deduction for depreciation) of ffre project with no coinsurance penalty provisions (unless authorized by Agency). All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day written nonce has been given to Agency. Upon issuance by the insurer, broker, or agent of a notice of cancellafion, non-renewal, or eduction in coverage or in limits. Owner shall furnish Agency with a new wnificam and applicable endorsements for such policy(iesj. In the event any policy is due to expire during the term of this Agreement, Owner shall provide a new certifcole, and applicable endorsements, in denang renewal of such policy not less than 15 calendar days prior to Me expiration date of the expiring policy. The Builders Risk (Course of Construction) and Fre and Exhumed Coverage insurance policies shall be endorsed to name Agency as a loss payee. Owner shall furnish Agency with all certificate(s) and applicable endorsements effecting coverage required hereunder. All cadificates and applicable endorsements are to be received and approved by me Agency's Risk Manager or Msmer designee prior to Agency's execution of this Agreement. If at any time Owner fails to maintain me required insurance in full force and effect, Owner shall Immediately discontinue all work under this Agreement unfil Agency receives notice that the required insurance has been restored to full force and effect and that me premiums therefore have been paid for a period satisfactory to the Agency. Owners (allure to maintain any required Insurance shall be sufficient cause for Agency to terminate this Agreement. -16- The fact that insurance Is obtained by Owner shall not be deemed to release or diminish the liability of Owner, Including, without limitation, liability under the Indemnify provisions of this Agreement The duty to Indemnify Agency, City and each of their officials, officers, employees, agents and volunteers shall apply to all claims and liability regardless of whether any Insurance palicies era applicable The policy limits do not act as a limitation upon the amount of indemnification to be provided by Owner. Approval or purchase of any Insurance contracts or policies shall in no way relieve from Ilaerity nor limit the liability of Owner. Upon request of Agency, Owner shall Immediately furnish Agency with a complete copy of any insurance policy required under Nis Agreement, Including all endorsements. with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement, 5.3 Owner will obtain and deliver payment and performance bonds issued by an Insurance company admitted in California In good standing as a surety and meeting the cPoeda for Owners other insurance untler this Agreement, each bond in an amount at least equal to 100% of Owner's estimated construction costs, provided that the Agency hereby waives any requirement for solid bonds at all time during which Owner is in full compliance with this Agreement and the Project remains fully funded. 5.4 Until Agency issues Ne CertlAcate of Completion Agency will have access to the Property, after reasonable notes M the Owner (except in emergencies), without charge or fee, during normal construction hours, for purposes of assuring compliance with this Agreement. Agency representatvas will comply with all safety miss while on me Project or the Property. 5.5 Owner will design and construct the Improvements, and after that, pnor to any allowable transfer or sale thereof, Osman will maintain the Property according to all applicable laws Including, without limitation, all applicable state labor standards, Agency zoning and development standards, building, plumbing, mechanical and electrical codes, all provisions of the Fresno Municipal Code and all applicable access requirements. Agency makes n representatlon about which, if any, of such laws, ordinances, regulations or standards apply N development of the Project. Owner acknowledges that Omer, not Agency, is resppnsible for determining applicability of and compliance with all local, state, and federal laws including, but not limited to, any applicable provisions of the Callfomia Labor Coda, Public Contract Code, and Government Code. Agency makes no express or implied representation as to the applicability or inapplicability of any such laws to this Agreement or to the deciderespective rights or obligations hereunder including, but not limited to, payment of prevailing wages, competitive bidding, subcontractor listing, or similar or diflere rt matters. Owner further acknowledges that Agency shall not be liable or responsible at law or in equity for any failure by Owner to comply with any such laws, regardless of whether Agency knew or -17- should have known of the need for such compliance, or whether Agency failed to notify Owner of the need for such compliance. 5.6 owner wit take reasonable agents to not permit any lien or stop notice to be Bled against the Property, provided Owner may reasonably determine to contest any such lien or stop notice. If a claim of lien or stop notice is recorded against the Property or Improvements, Owner, within 30 clays after recordation of a claim of lien or stop notice or within 5 clays after Agenvys demand. whichever first occurs, will do the following 56.1 Pay and discharge me same: or 5.6.2 Effect the release of such lien by recording and delivering to Agency a surety bond in sufficient forth and amount (i. e. 1501 ), or otherwise: or 5.6.3 Give Agency other assurance which Agency, In Its sole discretion, deems satisfactory to protect the Agency from the effect of the lien or handed stop notice. 6. SECURITY FINANCING AND RIGHTS OF HOLDERS. 6A Nohvithstanding any other provision of this Agreement, Owner may not grant a security Interest In the Property before the Agency issues and records a Certificate of Completion, without me written consent of Agency, provided that Agency hereby approves the recommended security Interest of Owners financial institutions, Including their respecBve successors or assigns, as described in the Financing Plan, Y. CONTINUING OWNER OBLIGATIONS 1.1 In its performance of this Agreement, Owner covenants by and for itself and its successors; and assigns, and all persons claiming under or through Nem, that there shall be no discrimination against or segregation of any person, including contractors, subcontractors, bidders and vendors, on account of race, color, religion, ancesM, national origin, sex, sexual preference, age. pregnancy, childbirth or related medical condition, metlksl condition (e g., cancer related) or physical or mental disability, and in compliance with all applicable federal, stale and local laws, regulations and rhes Including without limitation Title VII of the Civil Rights Act of 1964, 42 U.S C. Section 2000, at seq., he Federal Equal Pay Act of 1963, 29 U.S.C. Section 201 the Age Discrimination in Employment Ad of 1961, 29 U.S.C. Section 621, of seq„ the Immigration Reform and Control Act of 1986. 8 U.S.C. Section 1324b, at seq., 42 U.S.G. Section 1981, the Caldomia Fair Employment and Housing Act, Cal. Government Code Section 12900, at seq., the California Equal Pay Law. Cal, Labor Code Section 1197 5, Cal. Government Code Section 11135, the Americans with Disabiffies Act, 42 LLS C. Sector 12101, at seq., and all other applicable anodiscriminaticn laws and regulations of the United States and the State of California as they now exist or may hereafter be amended. Owner will allow Agency representatives access to its employment records related to his Agreement during regular business hours 'iPR and upon reasonable notice to verify compliance with these provisions when so requested by the Agency. 72 Owner all pay before delinquency all ad valorem real estate taxes and assessments on the Property, subject to the Owners right to contest In good faith any such taxes. Owner will remove any levy or attachment on the Property or any part of it, or assure the satisfaction of the levy or attachment within a reasonable time. Owner will notify Agency prior to applying for or receiving any exemption from the payment of property taxes or assessments an any interest in or to the Property or me Improvements. Omer further agrees that the prior consent of Agency shall be required if the basis for such exemption Is other than for qualified property held by a nonprofit entity that has been determined to be exempt from federal and state income mxation, which consent shall not be unreasonably withheld. 8. COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The following Cpvenans; shall run with the land and shall bind Owner, and Ome! s successors In interest to the Property for the periods stated, and shall be fully binding for the benefit of the Plan community and Agency without regard to technical classification or designation, legal or otherwise. &I Omer covenants for it its successors, assigns, and every successor in Interest to the Property or any part of It that, after closing of any applicable escrow, during construction, and after completing the Improvements, the Owner shall devote the Affordable Units an the Property to me uses specified in this Agreement for the Affordability Period. All uses of the Affordable Units inducing, without limitation, all activities Owner undertakes pursuant to this Agreement shall conform with this Agreement and the Law. Without waiver of limitation, each of me Affordable Units W be constructed pursuant to this Agreement shall be maintained as Affordable Rental Housing pursuant to this Agreement and the Reshicifil 8.2 Owner and those taking under Owner will maintain the Property and all Improvements on site In reasonably goofy rtdifion and repair (antl, as to landscaping, if any, in a healthy condition), all according to the Basic Design and related plans, as -amended from time to time. Owner and those taking under Owner shall: (I) maintain all on-site Improvements according to all other applicable laws, rules, ordinances, prepare, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having o claiming jurisdiction and all their respective departments. bureaus, and oRdalsr (Ii) keep the Improvements free from grant, fiii) keep the Property free from any accumulation of debris or Waste material (iv) promptly make repairs and replacements to the on-site Improvements; and (v) promptly replace any dead, or diseased plants and/or landscaping (if any) with comparable materials. Agency will give Owner wrinen notice of any breach of this Section 82. Within 10 days nom receipt of such notice. Agency and Owner will meet and confer and agree to corrective Scions and a schedule of performance for such computer actions. Owner must cure thedefault within the agreed schedule or within (a)10 days after the Agency force for any default involving landscaping, grafin, 1g- debris, waste material, or general maintenance on the Property, (b) 30 days after Agency's notice for any default involving the Improvements. If Owner does not cure the default within the agreed schedule. Agency, without obligation to, may enter the Property, cure the default, and protect, maintain, and preserve Ne Improvements and landscaping. Agency may Ilan or assess the Property for the Agency's expenses in protecting, maintaining, and preserving the on-site Improvements and pestilence of the Property, including any lawful administrative charge in the manner used by the Agency In the abatement of public nuisances. The notice. and opportunity to wife provided for herein will substitute for the noticing, hearing, and nuisance abatement order used by Agency. Owner will promptly pay all such amounts m Agency upon demand. 8.3 During the Affordability Period Owner covenants to use and operate the ARortlable Units on the Property as Affordable Rental Housing pursuant to this Agreement. 8.4 Owner covenants for itself and any successors in interest and all persons cul by, through or under them, in perpetuity, that there shall be no discbmination against or segnagetbn of any person or group of persons because of race, color, ended, religion, sex, sexual preference, marital Status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Affordable Units, nor shall Owner itself or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation conceming the selection, location, umber, Use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Affordable Units. 8.5 All deeds, leases. or contracts concerning the Affordable Units shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses. In deeds"The grantee herein covenants by and for himself or bersalf, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons because of race, color, creed, religion, sex, sexual preference, mantat status, national origin or ancestry in the sale, lease, sublease. transfer, use, occupancy, tenure or enjoyment of me land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees In the land herein, co rayed. The foregoing covenants shall run with the land." In leases 'The lessee herein covenants by and (or himself or herself, his or her heirs, executors, administrators, and assigns, and all parsons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: -20- 'That there shall be no discrimination against or segregation of any person or group of persons, because of race, color, creed, religion, sex, sexual preference, madhl stens, national origin, or ancestry in the leasing, subleasing, consferting, use, occupancy. tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person choming under or through him or her, establish or permit any such practice or practices of discdmination or segregation concerting the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or veranda in the premises herein leased" In centrads: "There shell be no discrimination against or segregation of, any person, or group of persons because of race, color, creed, religion, sex, sexual preference, mantel status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of Me premises, nor shall the transferee himself or herself or any person chiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation concerning the selection, location, number, use or occupancy of tenants, lesst subtenants. sublessees or vendees of the premises." 9.8 Agency Is the beneficiary of the covenants running with the land for Itself and for protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit the covenants are pointed, without regard to whether Agency has been, remains, or is an owner of any land or Interest in the Affordable Units on Me property. Agency may exercise all rights and remedies. and maintain any actions or suds at law or in equity or other proceedings to enforce the covenants for itself or any other bemefciarles. 9. DEFAULTS AND REMEDIES 9.1 Subject to the extensions of time permitted under this Agreement, either partirs failure to perform any material action or material covenant as required by this Agreement, following notice and failure to cure, is a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. and the cure demanded. Except as otherwise expressly provided in this Agreement, the noticing party shall not begin any proceeding against the other army unfil the other pony is given an opportunity to cure me Default. The other party will have 30 calentlar days drier recelving the notice to cure the Default, or, If Me party cannot reasonably cure the Default within such 30 days, the other party must begin to cure within the 30 days and diligently pursue the core to completion, whereupon there shall be no event of Default. 92 Subject to first giving the notice and opportunity to cure, a party may begin an action at law to enforce, or in equity to seek specific performance of, Me terms of this Agreement, or to cure, coned, or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. A party must bang any legal action In the Superior Court of the -21- County of Fresno, State of California. In an appropriate municipal court In Fresno County, or In the District of the United States District Court serving Fresno Counly. 9.3 If Owner begins any legal action against Agency, it shall serve process on the Agency by personal service on the Director, or in any other manner the law Permits. If Agency begins any legal action against the Owner, It will serve process on the Owner by personal service on Owner Owner s Agent or In any other manner the law permits. 9.4 Except as otherwise expressly stated In this Agreement, the rights and remedies of the parties are cumulative, and a party's exercise of one or more rights or remedies will not preclude the party's exercise, at Me same or different times, of any other rights or remedies for the same or any other Default of Me other parry. 9.5 A party s failure or delay In asserting any right or remedy will not be a waiver of any Default or of any right or remetly, and will not deprive the party of Its right to begin and maintain any action or proceeding to protect, assert or enforce any right or remetly. 9.6 The laws of the State of Callender shall govern the interpretation and enforcement of this Agreement. 10, GENERAL PROVISIONS 10.1 Any notice, demand, or other communical permitted or required under this Agreement will be in writing and given by personal delivery, or by first-class U.S. mall, postage prepaid, to a party at its respective address below'. To Agency RDA Executive Director 2344 Tulare Street, Suite 200 Fresno, CA 93]21 To Owner' Reza Assemi 1677 W. Shaw Avenue. Suite 101 Fresno, CA 93711 A party may change its address for notices, demands and communications by giving notice M the new address as provided in this section. Any written notice, demand or communication shall be deemed received Immediately if delivered Personally, and shall be cleared received on the third day after it is postmarked if delivered by regular, registered or certified mail, or on the date of ami if return receipt is requested and available to confirm the date, 10.2 All of the terms, covenants and conditions of this Agreement shall be binding upon the Owner and its permitted successors and assigns. Whenever the term -22- 'Owner' Is used in this Agreement, such tams shall include Owners successors and assigns as permitted under this Agreement. 10.3 The Agency may assign or transfer any of its interests, hot or obligations hereunder at any time without the consent of the Owner. Owner may assign or transfer any of Its interests, rights, or obligations hereunder at any time without the consent of the Agency to Walfpack Development, LLC, a California limited liability company, or any other entity 100% controlled by Reza Asseml. Owner shall promptly notify Agency of any such assignment Any other assignment or transfer of any of Owner s Interests, rights, or obligations hereunder shall subject to the prior approval of Agency, such approval not to be unreasonably withheld. Provided any authorized assignee of Owner expressly assumes Owners obligations under this Agreement, the Pmmissory Note and lire Oeed of Treat in wining, the assgnor (prior Owner) shall be released from all further duties, obligations and liabilities described in this Agreement or other related documents. 10.4 No member, official or employee of the Agency shall be personally liable to the Owner, or any successor in interest to Owner, for any Default or breach by the Agency. 10.5 The relationship between the Agency and the Owner is that of redevelopment agency and redeveloper respectively, as permitted by law, and not that of a partnership or joint venture. Agency and Owner shall not be deemed or construed for any purpose to be the agent of the other. W15 Whenever this Agreement references an action or approval required or permitled by the Agency, the Director or his or her designee Is surprised to act for the Agency as agent of the Agency unless this Agreement the Law, Constitute cal and/or local law provideotherwise, or the context otherwise requires. 10.7 This Agreement may ha signed in multiple counterparts which, when signed by all pandas, will be one blaming agreement The parties will sign three copies of this Agreement, each of which is deemed to the original. 10.0 This Agreement, includes the exhibits and attachments eternal and Incorporated In It This Agreement contains the entire agreement between the Parties relating to the transaction contemplated by this Agreement and supersedes all prior or contemporaneous agreements, understanding, representation and statements, whether oral or written. 10.9 It either party begins a lawsuit or arbitration proceeding, in law or equfty, to enforce or interpret any provision of this Agreement, the prevailing parry will be entitled to recover from the other perry reasonable attorneyslees, court costs, and legal expenses as determined by the soon or tribunal having jurisdiction. 10.10 Any waiver, alteration, change or modification of or to this Agreement, to be effective, must be in writing, and signed by each party. 10.11 If any tans, provision, condition or covenant of this Agreement or its application to any party or circumstances is held Invalid or unenforceable, the remainder of -23- this Agreement and Its application to persons or circumstances, other than those about wham or which it is held invalid or unenforceable, shall not be affected. and shall remain valid and enforceable m the fullest extent permittetl by law. 10.12 Each party represents and wartants to the other that (a) each has read this Agreement, and (b) is signing this Agreement with full knowledge of any rights and obligations each may have, and (c) each has received Independent legal advice from their respective legal counsel as to the matters sat forth In this Agreement. or has knowingly chosen not to consult legal counsel, and (d) has signed this Agreement without relying on any agreement, promise, statement or representation by or for the other party, or their respective agents, employees, or attomeys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 10.13 No member, official or employee of Agency has or shall have any personal Interest direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal Interests or the interests of any corporation, partnership or association In which he is already or Indirectly Interested. Owner represents and warrants that it has not paitl or given, and will not pay or give, to any third party any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and casts of professional sonmes such as architects, consultants, engineers and attorneys. 10.14 The parties will execute such other and further documents, and will take any other steps, necessary, helpful, or approonate to carry out the previsions of this Agreement. 10.15 No contractor, subcontractor, mecM1anie, material man, laborer, vendor, or other person hired or retained by wllh Owner shall he, nor shall any of them be deemed to be, third -party beneficiaries of this Agreement, rather each such person shall be deemed t0 have agreed (a) that they shall look to Owner as their sole source of recovery if not paid and (b) except as otherwise agreed to by Agency and any such person In writing, they may not enter any claim or bring any such actin against Agency under any circumstances. Except as provided by law, or as otherwise agreed to in will between Agency and such person, each such person shall be deemed to have waived in wrung all right to seek redress from Agency uneer any circumstances whatsoever. 10.16 Owner hereby covenants and warrant that It Is a duly authodzed and existing California limited liability company, In good standing; that It shall remain in good standing; that it has the full right, power and authority to enter into this Agreement and to tarty out all actions on Its pan contemplated by this Agreement; that the execution and delivery of this Agreement were duly authorized by proper actlon of the Owner and no consent, authonzabon or approval of any person Is necessary In connection with such execution and dellvery or to tarty out all actions of the Owners pad contemplated by this Agreement, except as have been obtained and are in full force and effect; and that this Agreement constitutes the valid binding and enforceable obligation of the Owner. -24- 16:17 In me event of any conflict between the body of this Agreement and any exhibit r attachment to It, the terms and condldons of the body of this Agreement will control, 111 111 IN WITNESS WHEREOF, Agency and Owner have arse this Agreement, and the Agency has approvth ed This Agreement, on the tlales and In the year set foM below. Redevelo pm en t Aggency of the City of resno By Marlene Murphey Executive Director By: Reza Assemi, Manager—� By Reza Asseml ATTEST: APPROVED AS TO FORM: REBECCA KLISCH JAMES C. SANCHEZ Clerk. Retlevabpmenttt Agency of Fresno Attorney, Redevelopment Agency Of Fresno By Cimdw /ws,ry i�axf09 By: rTG/Iui/i Dedoty tl� Deputy Altacfxnents: Exh at A: Legal Description of Property Exhibit B: Perfmmance and Payment Schedule Exhibit C: BudgeVFinancial Plan Exhibit D: Certificate of Completion Exhibit E: Basic Design Exhibit F: Affordability Restrictions Running with Land. Exhibit G: (Specimen] Promissory Note Exhibit H (Speclment) Dead of Trust -25- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT mac¢ Slate of Concern count of �5�0 On75n defare nef&e I—ec m , �f/ . F'✓s/iL Personally appeared !!!n t-lemZ rv�o4E ` who backed! to has on the basis of runnel sentence Is As the personal vfiose name(st is uddambecribe] to the within Insltument and acknowledged W me Nat LYNE Ubs"AltlON # shell" eYacuted the Same In MYa M1erlmanithoneed commw r txeewa parentage). and that by ARmernhwrsgnawre(et on the Nwary mem (alma a f instrument ere pemon(al or are entlry upon behalf of share; Ce which he musolryal acted, present he Instrument. I rectify under PENALTY OF PERJURY under the laws OF the State of California that the magoing paragraph Is true and correct. //�J/ ., a WITNESS mY h n—� OPTIONAL PAIrs,elIAGM1111 mm...ee,r�m,,baey t.,..,,mvemm ma xAAn,,,Pa maehart amowAnd r..voin er w mm rwm m a,ola.ran,,mmn Description of attached Don umant Tete or Type of December Document Date Number of Poges: Signer($) Camerthan Nemad Acres Capabilities) Claimed by Slgnerte) Signers Name Signer s Nam, Corporate Officer — Transit — corporate Offered — Triplet I Atli in Far — Attorney Is Fact TrIii, Trustee G,ardan or rarni — Guardian An Caroni Other — — Other Signer Is Representing gers, IS Representing — 7 --7 CALIFORNIA ALL-PURPOSE ACKNOWLEOOMENT Aa - State of Calromimia Countyol Parsonalry appeared Karz �«mefiia'zmin,S( Signorlel an,, Then Nemae Amato (ePaci thes) Claimed by Signage) Signers Name'. lindiodual Corpmme Officer—mfl is Parli Llme® I Senate AmiI mosee Guardian pFecl rd I_ Offer con nnrserval Offer or F : signer Is Represeming (_Individual F Combine, Officer —TINsp I Parri Limned IDenarm L Mornay rn Fact Trustee Duamlan or Containment Other Straw Is Repreaenlmq who proved to me an the bees of satisfactory ettlance to be Me persons) whose namelslis'em'subscdhetl to Me within Instrument and 'acknowledged to me that hrotherMey exmtad the same In hlsNerMelr auNoneed 1rwFnk ucmcr�naaa capantYUeal, are Nat by nlslhe lasr sipnoturew on me co-naaonn a 0"1 i Ibkew wile. cube nw 1 inswment the perspniai. at the entry ulprl benan of Finance cIs which the consume) acted. executed the Insimment, cvrnr lnli.913 reality under PENALTY OF PERJURY under the laws of the State of California that the Mini paragraph Is true and coned. WITNESS my hand the bfllclal seal. Signature--fes'=`,-.'�.,—�..--;3-�-< /:::��✓. rv..,....,a.a,:,.. OPTIONAL mwyn rre � ate `esanvtl rwmlarianrer,orel.�er"'aea°+",rem wna.e mro.mmaens°w�a Description of Attached Document Title ar Teva no oesemam: Document Dale: _ NUmher of Faces: Signorlel an,, Then Nemae Amato (ePaci thes) Claimed by Signage) Signers Name'. lindiodual Corpmme Officer—mfl is Parli Llme® I Senate AmiI mosee Guardian pFecl rd I_ Offer con nnrserval Offer or F : signer Is Represeming (_Individual F Combine, Officer —TINsp I Parri Limned IDenarm L Mornay rn Fact Trustee Duamlan or Containment Other Straw Is Repreaenlmq EXHIBITA LEGAL DESCRIPTION All that certain real property shaded! in the City W Fresno, County of Fresno, State of Celifamia. described as follows: Z13s1X1091:12 All that portion of Black 335, as shown on the Map entilled.'Tcwn of Fresno , filed for record in Book 1, Page 3 of Plats, Fresno County records, described as follows: BEGINNING at the corner of said block formed by the intersection of the SaWhwestedy line of °I" Street (now Broadway) with the Northwesterly line of Calaveras Street, running thence Northwesterly along the Southwesterly line at 'I* Street (now Broadway) 75 feat; thence Southwesterly parallel with gre Norfhweslerty line of Calaveras Street, 150 feet tllence Swtheasbsly parallel with the Southwesterly line of"1" Street (now Broadway), 75 feel to the Northwesterly line of Calaveras Street; thence Northeasterly along the Northwesterly line of Calaveras Street 150 Feel to the point of beginning. PARCEL TWO'. All that Portion of Block 335, as shown on the Map entitled, -Town of Fresno' filed for record in Book 1, Page 3 of Plats, Fresno County records, described as follows. BEGINNING at a point on the Northeasterly line of said Block 335 which is 75 feet Northwesterly from the intersection of the Northwesterly line of Calaveras Street and the SoWhwesterty line of'Y Street (now Broadway), thence SoWt wastarly parallel with Calaveras Street 150 feet Hence M right angles Northwesterly parallel with "Y Street (now Broadway) 125 feet; thence at nghl angles Northeasterly parallel with San Joaquin Street, a distance of 150 feet to'I" Street (now Broadway), thence at right angles SoWheasledy along the Southwesterly line of -I- Street now Broadway) to the point W beginning. EXCEPTING THEREFROM any portion thereof lying within the Northwesterly 200 feet of said block. EXHIBIT "B" Performance and Payment Schedule SCHEDULE OF PERFORMANCE Items Com feted Time for Performance Estimated Data Darvaloicar executes and delivers Agreement to Agency On or before June 15, 2009 July 15. 2009 Agency executes Agreement On or before July 15, 2009 July 15, 2009 Submission— Certificates of Insurance The Developer Vii 10 days after execution July 25, 2009. furnishes to the Agency appropriate certificates of bodily of this Agreement by the injury and property damage insurance policies. Agroncy or later as required. Approval— Certificates of Insurance. Agency approves or Within 15 days after receipt July 20, 2009. disapproves Developer's submission of appropnale thereof by the Agency. certificates of bodily Injury and property damage insurance policies. Loan Disbursement. The Agency shall make the fiat Upon execution of this July 15, 2009. disbursement of loan processed In the amount of $325,000 Agreement by both parties and record a Deed of Trost. Submission— Site Plan and ConsWcfon f6u ldnpl Plans Within 45 days after execution of This Agreement by Agency. August t, 2009 Review. The Developer shall submit Site Plan, Operating Statement, Building Plans and related CEQA documents to the City of Fresno for review. Land Use Approves and Former. Developer furnishes Within 30 tlays after all City November 30, evidence that all discretionary land use or regulatory permits are received by 2009. approvals and pemlits for the development of the Project Developer. Site, including approvals of bullding, public works, and Fire Department aroyals. have been obtained I-canDisbursement The Agancy shad make the second WBmn 15 days atter Agency December 15, disbursement of loan proceeds In the amount of $325,000. receives Notice that Developer 2009. has obtained all permits. Commencement of Construction of Developers On a schedule that will January 1, 2010, Improvements Within 30 days after receipt of coordinate with the development permits by the Developer, endangered shall Developer s construction commence on the improvements a be constructed on the Schedule. Pro ad Site. Comoletipn of Construction of Developer's Improvements Within the specified months after commencement thereof August 31, 2010 The Developer shall complete construction of the improvements to be constructed on the Pmject Sill by the Developer 8 months after commencement of construction Issuance—ComIcataof Completion The Agencyshall Promptly after completion of all September15, furnish the Developer with a CemOcete of Completion on corstructlon and upon written 2010 the Project request thereof by the Deer. Gant D'isbursemant. The Agency shall make the Within min l5days after Agency 5eptemb w disbursement of grant proceeds In the amount of has issued a Certificate of 2010, $100,000. Com leron on the Project SCHEDULE OF LOAN AND GRANT DISBURSEMENTS -27- Disbursements are to be made in three payments: Concurrently won Effective Date: [$325,000 Loan] Completion of Entitlements [$325,000 Loan[ Issuance of Certificate of Completion [$100,000 Grant] SCHEDULE OF LOAN REPAYMENT Months 1-119 After Caro le of Completion. $0.0NMooVr Months 120- 359 After Certificate of Completion: 51,806,dWonih' Month 360Entire Unpaid Balance 1 M114 a principal balance -29- ° oagg :ka! §G! g892sw /E | e Wa •®ee ®)i§ ;;Rt,}J 4 ! j>7 VHS we! 9095 y! ` ! ! !{ ! !! /! ! . 2\ \ \\©» ! ! _ j , Q§## F !R!/\!;/ p &n 4 au 4G; � :ka! §G! g892sw /E {�{\} ! j>7 VHS we! 4 au 4G; � :ka! §G! g892sw VHS we! 9095 y! !{ ! !! ! ! \ \\©» EXHIBIT "D" Certificate of Completion CERTIFICATE OF COMPLETION RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO. Redevelopment Agency of City of Fresno 23" Tulare St., Suite 200 Fresno, Ca. 93721 Attention: Executive Director (SPACE ABOVE THIS LINE FOR This Certificate of Completion is recorded at the request and for the benefit of the Redevelopment Agency of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103, Redevelopment Agency By Mariana Murphey Its: Director of Redevelopment Dated -30- Ceft'Ticate of Completion Recitals A. By an Owner Participation Agreement (the "Agreement") dated 1 I, 2007 between Reza Assemi, a ("Owner') and the Redevelopment Agency of the City of Fresno, a public hotly corporate and politic ('Agency-), Owner agreed b construct certain residential units on the premises legally described In Attachment "A" hereto (the 'Property') and preserve the Affordable Units, as defined In the Agreement as rental housing for Low and Moderate -Income Families with the assistance of Agency housing set aside funds while meeting the Affordable Housing, Income targeting and other requirements of the Community Redevelopment Law act forth at California Health and Safety Code Sections 33000 at seq, for a fifty -Ave (55) year Affordability Period according to the terms and conditions of the Agreement. S. The Agreement was recorded on 1 120091n the official Records of Fresno County, California as Instrument No. C. Under the terms of the Agreement, after Owner completes me. construction on the Poperry, Owner may ask Agency to record a Certificate of Completion. O. Owner has asked Agency to furnish Owrar with a recordable Certificate of Completion. E Agency's issuance of this Certificate of Completion is conclusive evidence. that Owner has completed the construction on me Property as set forth in the Agreement. NOW THEREFORE'. 1. Agency certifies that Owner commenced the construction work on the Project on I I, 200_, and completed the construction work on the Project . 200_, and has done so In full compliance with the Agreement. 2. This Certificate of Completion is not evidence of Owner'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 Profen. 3. This Certleczts of Completion is not a notice of completion as referred to in California Civil Code section 3093. 4.. Nothing contained herein reaches any provision of the Agreement. -31- IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion as of this day of ,200. Redevelopment Agency of the City of Fresno Maden Murphey Executive Director Owner hereby consents t0 recording this Cedificate of COmpletion against the Property described herein. Dated: ,200 By: Rade Assemi THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC. ATTEST: APPROVED AS TO FORM: CITY CLERK CITY ATTORNEY Deputy Dated, _32_ EXHIBIT "E" BASIC OESIGNIEXTERIOR Q 4 9 r 4 4 4 P( 4 �oao�ob� 2 4 SQ W 4 4 -33- fll il9i i`�Cn93F0 � --r�l Q 4 9 r 4 4 4 P( 4 �oao�ob� 2 4 SQ W 4 4 -33- 0 min AFFORDABILITY RESTRICTIONS RUNNING WITH LAND In addition to the covenants and conditions contained In Ne Agreement, the following California Community Redevelopment Law (California Health & Safety Code Sedan 33000 at seq.) affordability requirements shall be imposed upon the 5 Affordable Units on Me Property funded under Me Agreement and shall bind the Owner and all purchasers of the Property and their successors fora frity-five (55) year periotl. The Affordable Units on me Property are held and will be held, transferred, encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions, and limitations set forth in this Fxhibit , all of which are n furtherance of the Project, the RDA's Community Redevelopment Law and PlanArea obligations including RDA's obligations set fort at California Health 8 Safety Code sections 33334.2 at seq and 33413 (a) with respect to Housing Set Aside Funds and replacement dwelling units at affordable rent within the jurisdiction of the RDA. All of the restructure, covenants and limitations will con with the land and will be binding on all parties having or arquinng any right, tlge or interest in the Affordable Units upon Me Property or any part thereof, wilt more to Me benefit of the RDA, and will tre enforceable by L . Any purchaser under a contract of sale or ether transferee of an interest covering any right, dile or Interest In any pan of the Affordable Units upon the Property by accepting a dead or a contract of sale or agreement of purchase, accepts Me document subject to, and agrees to be bound by, any and all restrictions, covenant, and limitations set forth in this Exhibit for the periotl of filly -five (55) years running from and after recordation of RDA's Certificate of Completion constituting the Affordability Period. 1. Restrictions. The following covenants and restrictions ("Restrictions') on the use and enjoyment of the Affordable Units upon the Property shall be In addition to any other covenants and restrictions affecting the Property, and all such covenants and objectors are for the benefit and protection of Me RDA and shall run with the Affordable Units upon the Property and be binding on any future owners of the Property and Inure to the bral l of and be enforceable by RDA. These covenants and restrictions are as follows: a. From Me dale of recordation of RDA's Certificate of Completion until the expiration of the Affordability Period the 5 Affordable Units funded under the Agreement are to be used as Affordable Rental Housing and affordable replacement dwellings as provided for in the Agreement, Owner agrees to file a recordable document seting forth the project Completion Date and the Affordability Period as and when determined by the RDA. Unless otherwise provided in the Agreement, the term affordable rental housing shall inbude without limitation compliance with the following requlremenal 35- Nondiscrimination. There shall be no discrimination against nor segregation of any person or group of persons on account of race colon creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use. occupancy, local or enjoyment of any of the Property, nor shall Owner or any parson claiming under the Owner, establish or permit any practice of discrmination or segregation with reference to the selection, location, number. use or occupancy of owners ar vendees of the Property.. Principal Residence. Each of the Affordable Units upon the Property shall be leased only to natural persons, who shall occupy such as a principal residence. Income Requirements. Each of the 5 Units constituting Affordable Rental Housing upon Me Property may be leased only to (a) natural persons) whose annual household income at the time of initial occupancy Is not greater than 120% of the most recent annual median income calculated and published by HUD for the Fresno Mahopolitan Statistical Area applicable to such household size, and at an affordable price consistent with the applicable California Redevelopment Law. As used in this Agreement, the term "Affordable Moderate Income Rent" shall mean annual rentals whose amount does not exceed the maximum percentage of income Met can be devoted to rent as set forth by Health 8 Safety Code Section 50(153, or its successor, which is currently mil percent (30%) of one -hundred -ten percent (110%) of the Fresno County Median Income adjusted for the family size appropriate for the Unit. Injunctive Relief and Recapture. Should any of Ne 5 Affordable Units constituting Affordable Rental Housing upon the Property not continue to be, at the time of initial occupancy, me principal residence of a Household that qualifies as a low-income or moderateAncome Household, during the period of Affordability, such Units) shall be made available for subsequent lease only to Households Nat quality as a lowincome or very low-income for use as the Household a principal residence. 2. Enforcement of Restrictions . Without waiver or limitation, the RDA shall be entitled to moral or other equitable relief against any violation or attempted violation of the Restrictions. and shall, in addition, be entified to damages for any Injuries or losses resulting from any violations thereof. 3. Acceptance and Ratification All present and future owners of Me Property and other persons claiming by, through, or under them shall be subject to and shall comply with the above Restrictions. The acceptance of a dead of conveyance to Ne Property shall constitute an agreement that the Restrictions, as such may be amended or supplemented fain time to time, -36- Is accepted and ratified by such future owners, tenant or occupant, and such Reductions shall be a covenant running with the land and shall bind any person having at any time any interest or estate in the Property, 311 as though such Restrictions were recited and stipulated at length in each and every dead, conveyance, mortgage or lease thereof. 4. Report. This Fxhiblt and the Restrictions therein shall tun with and bind the Property for a term commencing on the date the Agreement to which this Exhibit Is attached is recorded in the Office of the Recorder of the county Fresno, state of California, and existing upon me expiration of the Afford3biiity Period The failure or delay at any brae of RDA andlor any other person entitled to enforce these Res re Ions 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. 5. Costs and AdomeJs Fees In any proceeding arising because of failure of Owner or any future owner of the Property to comply with the Restrictions required by this Exhibit, as may be amended from time to time, RDA shall be entitled to recover Its respective costs and reasonable attorneys fees Incurred In connection with such default of failure. 6. Waver. Neither Owner nor any future owner of the Property may exempt ioeff from liability for failure to comply wlm the Restrictions requlred In this Exhibit. 7. Severab'lne The invalidity of the Restrictions or any other covenant, restriction. condition, limitation r other provision of this Exhibit shall not impair or affect In any manner the validity, enforceability, or effect of the rest of this Exhibit and each shall be enforceable to the greatest extent permitted by law. 8. Pronouns. Any reference in this Exhibit and the Restrictions therein to the masculine, feminine, or neuter gentler herein shall, unless me context cleatly 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. 9_ Internfatalen The crapbons and titles of the various articles, sections, subsections, paragraphs, and subparagraphs of this Exhibit are inseded herein for ease and convenience of reference only and shall not be used as an aid In interpreting or construing this Exhibit or any provision hereof. 10.. Capitalized Terms. All capitalized terms used In this Exhibit, unless otherwise defined herein, shall have the meanings assigned to such terms In the Agreement 111 -37- EXHIBIT "G" PROMISSORY NOTE DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for cancellation. $650.000.00 Fresno, California 1 2009 For vaWe received, me undersigned. Reza Assemi, an Individual, ("Borrower), promises to pay to the order of the Redevelopment of the City of Fresno ("Lender"). me sum of $650,00000, to the extent that such funs are loaned to Borrower, without Interest on the unpaid principal balance (i.e. 0% per annum), payable aerobically as described herein. This Promissory Note ("Note') Is made and entered into in accordance with the terms of the Owner Participation Agreement dated 1 1 2009, entered Into between Borrower and Lender('Agreemenr) Commencing on the date which is ten (10) years after the "Confronts of Completion" for the 'project' as described In the Agreement Is recorded in Me Official Records of Fresno County, California (the "Payment Commencement Date') , and continuing on the same date of each month thereafter until the date which is thirty (30) years after the date of the recordation of Me Certificate of Completion ("Maturity Date'), Borrower shall pay the principal In monthly Installments equal to 11360r of the principal balance of cols Note an the Payment Commencement Date (a. g. $1,805.56 per month If the princlpll balance of this Note on the Payment Commencement Date is $550,000.00). Such monthly payments shall continua until the Maturity Date at which time the entire remaining unpaid balance of principal shall be all due and payable, along with attorneys fees and costs ofcollection, and without relief from valuation and appraisement laws. All capitalized terms used in this Note, unless otherwise defined, will have the respective meanings specified In the Agreement. This Note, and any extensions or renewals hereof, Is selected by a Dead of Trust, Security Agreement and Fixture Filing with Assignment of Rents on real estate In Fresno County, California (the "Property'), dated as of Me same date as this Note, and executed In favor of and delivered to the Lender ('Dead of Trust"). The Dead of Trust provides for acceleration upon stated events. Time is of the essence. It volt be a default under his Nate if Borrower defaults under the Agreement or other Project Loan Documents, and it Borrower falls to pay when due any sum payable under this Note. In the event of a default by Gambee. the Borrower shall pay a late charge equal to 2% of any outstanding payment. All payments collected shall be applied first to payment of any costs, fees or other charges due under this Note or any other project loan documents then to the Interest and men to principal balance. On the occurrence of a default or on the occurrence of any other event that under the terms or me project loan documents give rise to the right to accelerate me balance of the indebtedness, then, at the option of Lender, this Note or any nates or other instruments that may be taken in renewal or extension of all or any Ill part of the indebtedness Wil immediately became due without any further presentment, demand, protest or notice of any kind. The indebtedness evidenced by this Note may, at the option of fee Borrower, be prepaid in whole Orin Part, at anytime, without penalty. Lender will apply all the prepayments first to the Payment of any costs, fees, late charges, or other charges due under this Nota or under any of the other Loan Documents and then to the interest and then to the principal balance. All payments are payable in lawful money of me United States of America at any place that Lender or the legal holders of this Note may from time to time, in wi ling designate, and In the absence of that designation, then to Lender at Its address of record provided in the Agreement. Borrower agrees to pay all costs including. witMut limitation, attorney fees, incurred by the holder of this Nate 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, reorganotation, arrangement or other similar proceedings involving the undersigned met in any way effects the exercise by the holder of this Note of its rights and remedies untler this Note. All costs incurred by the holder of this Note In any action undertaken to obtain relief from fee stay of bankruptcy statutes are specifically Included In those costs and expenses to ba paid by Borrower. Borrower will pay to Lender all attorney fees and other costs referred to In this paragraph on demand. Any notice, demand, or request relating to any matter set forth herein shall he In writing and shall be given as provided in the Agreement No delay or omission of Lender in a emising any right or power arising in connection with any default will be construed as a wsiver or as an acquiescence, nor will any single or partial exercise presence any further exercise. Lender may waive any of the condXlons In this Note and no waiver will be deemed to be a waiver of Lender's rights under this Note, but rather will be deemed to have been made In pursuance of this Note and not In modification. No waiver of any default will bas construed to ba a waiver of or acquiescence in or consent to any preceding or subsequent default. The Dead of Trust provides as follows: DUE ON SALE-0ONSENT BY BENEFICIARY. Beneficiary may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale of transfer, without the Beneficiary s prior written consent, of all or any pan of the land or any interest In the Land A "sale or transfermeans the conveyance of Property or any right, the or Interest therein; whether legal, beneficial procurable: whether voluntary or Involuntary; whether by outright sale, deed. Installment sale contract land mntrad. contract for dead, leasehold interest with a term greater than three (3) years, lease -option contract, or by sale, assignment, or transfer of any beneficial Interest in or to any land trust holding title to the Property, or by any other method of conveyance of Property interest. If any Trustor Is a corporation, partnership or limited Iiebllity company, transfer also Includes any change in ownership of more mad fifty percent (50%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of Trustor, other than a transfer to the managing member of -39- Trustor of an affiliate of Me managing member. However, MIs option shall not be exercised by Bondi If such exercise is prohibited by applicable law. Lander may transfer this Note and deliver to the transferee all or any pad at the Property then held by it as security under Mis Note, and the transferee will then become vested with all the powers and rights given to Lender, and Lender will then be forever relieved tram any liability or responeibllity, in the matter, but Lender will retain all rights and powers given by thus Note with respect to Property not transferred. If any one or more of Me provisions in this Note is held to be invalid, illegal, or unenforceable In any respect by a court of competent jurisdiction. the validity, legeliry, and enforceability of the rememing provisions will not In any way be affected or impaired. This Note will be binding on and inure to Me benefit of Borrowed Lender, and their respective successam and assigns. Borrower agrees that this Note will be deemed to have been made under and will be governed by the laws of C Ilforno 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 sign" by Lender or its authorized agents. The Loan shall be non-recourse to the Borrower and all constituent members of the Renewer. IN WITNESS WHEREOF. Bondi has caused this Nate to be executed by Borrower or Borrower's authorized ag int(s) as of to date and year first above wntten. Borrower: By: Reza Assemi SBE EXHIBIT "H" DEED OF TRUST Recording requested by, and when recorded mall to: Redevelopment Agency of the City of Fresno 2344 Tulare SL, Suite 200 Fresno, Ca. 93721 Attention: Executive Director INSTRUCTIONS TO COUNTY RECORDER: Index Ibis instrument as (i) a Deed of Trust, and (ii) a Fixture Filing Space above for RemNer's Use DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS ('Deed of Trust-) is entered into between Reza Ameml, an mounted man, whose pdnapal executive office is at 1677 W. Shaw Avenue, Suite 101, Fresno, CA 93711 (Ne'Trusfo/), in favor of FINANCIAL TITLE COMPANY, whose address is 7550 No. Palm Ave., Frei CA 93711 (the'Trustee'), for the benefit of the REDEVELOPMENT AGENCY OF THE CITY OF FRESNO (the'Beneflchri with offices at 2344 Tulare Sc, Suite 200, Fresno, Ca, 93721. THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO THE TRUSTEE, in trust, with the power of sale, the real property In me City of Fresno, Fresno County. Callfomla, more particularly described in Exhibit A attached hereto and made part hereof by reference (the 'Property 'I, together with: (i) All tenements, hereditaments and appurtenances of or to the Property, including without limitation all easements and rights used In connection therewith or as a means of access thereto, all right, site and Interest of the Truster, new owned or hereafter acquired, in any land lying within the n if -of -way or any Street, Open or proposed, adjoining the Perri and any and all sidewalks. alleys, strips am other areas of sand adjacent to or used In comms with the Property: (it) All oil and gas or other mineral dghta in or pertaining to the Property and all loyalty, leasehold and other Gies of the Trustor pertaining thereto; (Iii) All water rights pertaining to the Property and shares of stock evidencing the Same, and all deposits made w4h or Other security given to utility companies by the Trustor with respect to the Property. (iv) The rents, Issues and profits thereof, subject, however, to the right, power and authority of Trustor to collect and apply such rents, issues and proflb and Set forth In this Deed of Trust, -41- (v) All buildings and improvements of every kind and description now or hereafter rectal or placed on the Property, and all fixtures thereon, including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, fumaces, heating equipment laundry equipment, steam and hot water boilers, stoves, ranges, elevators and motors, ham tubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and refrigerators, whether mechanical or otherwise. cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, It being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed permanently affixed to and a part of the really; (vl) All building materials and equipment now or hereafter delivered to the Property and intended to be installed thereon: and (vii) All adlces of personal property owned by me Trustor and now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or holdings for the purposes for which they were or are to be erected, and all other goods, chattels and personal property as are ever used or burnished! In operating a building, or the activities conducted mereln, similar to the ones herein described and refened to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are or shall be attached to the building or buildings in any manner: subject however, to (and Only to) any pureness money security interests in such personal property. Said real property and personal property described above, together with appurtenances, are retained to collectively In this Deed of Trust as the "Collateral' FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS: (a) Payment to the Beneficiary of an indebtedness In the principal amount of Six Hundred and Fly, Thousand Dollars ($650,000.00), evidenced by a promissory note executed by me Tender and payable to the order of the Beneficiary, bearing the same date as this Deed Of Trust, and any and all moOdicetions, extensions or renewals thereof or substitutions therefor (Me -Note"), and performance and satisfaction of each and all other obligations of the Trustor under the Note; (b) Performance of every obligation or Tougher in this Deed of Trust, the Note, me Owner Participation Agreement between Beneficiary and Trustor related to the Property (the 'Participation Agreement") contemplating the improvement of the "Project' (as that term Is defined to the Participation Agreement); and (c) Payment of all sums, 0 any, and interest thereon that may hereafter be loaned or advanced by the Beneficiary to or for me benefit of the Turner or to Its successors, transferees and assigns, made to the Truster while the Trustor Is the owner of record of fee title to the Property, or any portion thereof or to thesuccessors, transferees or assigns of the Trustor while they are the owners of record of such fee title, and evidenced by one or more notes or written instruments which recite that they are secured by this Deed of Trust. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR COVENANTS AND AGREES AS FOLLOWS: -42- I . The Theater shall not use or permit the use of any of the Collateral for any Purpose other man me use for which it was intended at Ne time this Deed of Trost was executed, as provided in the Participabon Agreement 2. Upon default under this Deed of Trust or the Note (following delivery of notice and expiration of the cure period, if any, provided therein), the Beneficiary, at Its option, may declare the whole of the obligations and sums secured hereby to he Immediately due and payable. 3. The persons) or eritity(ias) who have executed this Decd of Trust are fully authorized, and have obtained any and all earned aulhorizafions, approvals or consents necessary, to bind the Trustor m this Deed of Trost. 4. All rents, profits and Income from the Collateral coveretl by the Deed of Trust are hereby assigned to the Beneficiary for the purpose of dlscharging the obligations hereby cured. However, the Trustor shall be permitted, so long as no default exists hereunder or under the Nate, to collet) such rents, profits and Income for use consistent with the provisions of the Agreement. 5. Upon default hereunder or under the Nota (following delivery of notice and expiration of the cure period, If any, provided herein or therein), for the purpose of protecting its Interests hereunder, the Beneficiary will be ani to the appointment by a court having jurisdiction, without further notice and without regard to adequacy of any securgy for the indebtedness secured hereby, of a receiver to take possession of and protect the Collateral described herein and operate same and collect the rants, profits and income therefrom, The entering upon and taking possession of the Profanity or other Collateral by such receiver, the collection of such rents, profits and Income and me application thereof shall not cure or walve any default or notice of default hereunder or Invalidate any act done pursuant to such notice. 6, The Truster, at its sale Cast and expense, shall provide and maintain on the entire Property, including all builtlings and improvements thereon'. (i) a policy of addedform builder's nsk Insurance sufficient to cover 100 percent of the replacement value of all buildings and improvements on the Property including; without limitation, labor and materials in place or to be used as part of the permanent Construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towels, forms and equipment not owned or rented by the Beneficiary, the cost of which Is not included in Ne cost of work), insuring against loss or damage by fire, extended coverage perils and such other hazards, casualties or other contingencies as from time to time may be reasonably required by the Beneficiary; (ii) a policy of commercial general liability insurance that includes Cahtretseal, products and completed operations coverages, bodily Injury and property damage liahlllty Insurance with combined single limits of not less than $1,000,000 par occurrence, and (iii) such other Insurance as may be reasonably required by the Beneficiary, In each Case in such amounts, in such manner and with such companies as the Beneficiary and Trustor may reasonably approve. The foregoing minimum insurance coverage limits shall be subject to reasonable adjustment from time to time by the Beneficiary. Each such policy shall be endorsed with a standard mortgage clause with loss payable to the Benefciary and the Trustor. and shall provide that thepolicy shall not be canceled or materially changed without at least thirty (30) daysprior notice to the Beneficiary, Upon request by the Benefmiary. the Trusser immediately shall deposit with the Beneficiary certificates evidencing such policies. -43- ]. The Trustor shall pay. (i) at least ten days before delinquency, all taxes and assessments affecting the Collateral, including assessments on appurtenant water stook', (ii) when due, all encumbrences, charges and liens, with interest, on the Collateral or any part thereof which appear to be poor or superior hereto: and (Iii) all costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred In mnnerson with the trusts mated under this Dead of Trust. a. The Trustor shall: (i) keep the Collateral in good condition and repair and not remove or demoash any buildings on the Property; to the extent Insurance or Condemnation proceeds are available; (ii) complete or restore promptly and in good and workmanlike manner the buildings and improvements and any other building or Improvement which may ba constructed, damaged or destroyed thereon; (iii) pay when due all claims for labor performed and materials furnished therefore; (iv) comply In all material respects with all laws affecting the Collateral or requiring any alterations or improvements to be made thereon; (v) not commit or Permit waste of or on the Collateral: and (vi) not commit, suffer or permit any act upon the Property in violation of law andlor any covenants, conditions or rensiodons affecting the Collateral. 9. The Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and shall pay all costs and expenses, including cast of evidence of title and reasonable attorneys fees, in any such anion or proceeding in which rhe Benefclary or me Trustee may appear, or In any suit brought by the Beneficiary to foreclose this Dead of Trust 10, Should the Trustor fall to make any payment or do any act as herein provided, Men the Beneficiary or the Trustee, without obligation to do so, and following nottca to or demand on me Trustor, and without releasing the Trustor from any obligation hereof: (i) may Make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof the Beneficiary or the Trustee being authorized to enter on to Property for such purposes: (li) may commence, appear in molar defend any action or proceeding purporting to affect the security hereof or me rights or powers of me Beneficiary or the Trustee; ('rid may pay, purchase, contest or compromise any encumbrance, charge or lien which In the judgment of either appears to be prior or outsider hereto (except for the deeds of trust, encumbrances and (lens securing the ConstmcCmnlPermanent Financing Laen(s) and the Agency Loan, as such terms are dermad below); and III in exercising any such powers, may Pay necessary expenses, employ legal counsel and pay such counsel's reasonable fees. All such amounts paid by the Beneficiary or the Trustee hereunder shall be added to the obligations secured by this Dead of Trust. The term `ConstructionlParm went Financing Loan' means, collectively, the construction financing and take-out financing, and any refinancing or replacement of that financing from lime to Lima , to be provided by a commercial or other lender(s)', provitled, however, that (I) before entering Into any Construction/Permanent Financing Loan, the Trustor shall give me Beneficiary, notice of the ConstructioNPenter ent Financing Loan and copies of the loan agreement and all other loan documents evidencing the ConstructionlPernanenl Financing Loan; (ii) the funds disbursed from each (tonstmchonlPermanent Financing Loan shall be used only for costs and charges associated with the loan and for the operation. maintenance and/or improvement of the Project or the Property as provided In the Agreement or to reflnenca existing indebtedness; (iii) the Interest on each Construction/Permanent Financing Loan shall be at a reasonable rate aq_ based on all the facts and Orcumstandi; and (iv) rhe combined amounts of all Construction/Permanent Financing Loans or any re -financing thereof and the Note secured by this Deed of Trust shall not exceed one hundred percent (100%) of the fair market value of the Property as improved by the Project under the Agreement (such value to be determined by a qualified appraiser reasonably acceptable to Trustor and Beneficiary. Notwithstanding any limitations set forth above. In the event of any subsequent refinancing of a Constmctem Permanent Financing Loan, Trustor may use funds from any refinancing that are in excess of the original principal of the Initial Core-ucthonlPennanent Financing Loan to compensate Trustor for any negative rash flow of the Project or to fund other projects by Trustor or a related entity in the urban core of the City of Fresno. (By way of illustration only, and without lunrung the bursting, if the Initial ConstmcfionlPermammt Financing Loan for the Project is $4,OOg000 and, while satisfying the rate and loan -to -value limits set forth In subparegraphs (Ili) and (Iv), Trustor subsequently obtains refinancing in the amount of $5,000,000, Trustor may use the additional $1,000,000 in excess of the original Constructlon/Permanem Financing Loan to compensate Trustor for negathe cash flow or for another project In the urban core without making any prepayment on the Note secured by this Dead of Trust.) 11, The Beneficiary shall have the right, but not the obligation, to pay when due fire Or other insurance premiums required hereunder If the Trustor fails to make such payments. All such amounts paid by the Beneficiary hereunder shell be added to the obligations secured by this Deed at Trust. 12. The Trustor shall pay immediately upon demand all sums so expanded by the Beneficiary, or the Trustee under this Deed of Trust, with interest from date of expenditure at the legal cote. 13. If the Trustor fails to pay any amount required by the Note or this Deed of Trust when due and payable, or falls to perforin all other covenants, conditions and agreements of Ne Note, this Deed of Trust or the Participation Agreement (following delivery of notice and expiration of the cure perhod, If any, provided therein), the amount of the Nate. Including unpaid principal and and charges, and all other charges and amounts required by the Note and this Deed of Trust shall, at the option of the Beneficiary, become immediately due and payable. This shall be in addition to and without limitation on any other remedy or right available to the Beneficiary for such failure. 14. The Trustor shall not voluntarily create or permit to be created against the Collateral any lien or (lens except as specifically permitted by this Deed of Treat or otherwise authorized by the Beneficiary. The Trustor shall keep and maintain the Collateral free from the claims of all persons supplying labor or materials who will enter Into the construction, rehabilitation renovation or repair of any and all buildings or Improvements now existing or to be eroded on the Property. 15. By accepting payment of any sum secured by this Deed of Trust after its due date or by accepting partial payment of any such sum, the Beneficiary does not valve Its right either to require prompt payment when due of all other sums so secured or to declare default for Ne Truslor'a failure to pay. 16. It the Truster, without the prior written consent of the Beneficiary: (i) agrees to or actually sells, conveys, transfers or disposes of the Collateral or any laterad therein or portion -45- thereof or (ii) assigns or delegates any right or obligation under the Agreement, the Note or this Deed of Trust, then all amounts secured by this Deed of Trust may he declared Immediately due and payable, at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its consent to any such transaction. The Beneficiary's consent to one transaction of this type shall not be a waiver of the right to require consent to future or successive transactions. 17. As further security for me full and complete performance of each .and every obligation, covenant, agreement and duty of me Trustor contained herein or in the Note, the Trustor hereby grants and conveys to the Beneficiary a securlty, interest in and lien on all of the Collateral, This Dead of Trust shall serve as a security agreement and financing statement created pursuant to the California Commercial Code. and the Beneficiary will have and may exercise all rights, remedies and powers of a secured party under the California Commercial Code. Further, this Deed of Trust is filed as a fixture filing pursuant to the California Commercial Code and other applicable law, and covers goods which are or are to become fixtures. 18. Bhoul the Property, the buildings or Improvements thereonor any part of any of them be taken or damaged by reason of any public Improvement or condemnation proceeding, or damaged by fire or eadhguake or in any other manner, the Beneficiary will be entitled. subject to the rights of the holder of any senior deed of trust set uring a Constructionfoomlanent Financing Loan, to all of the Truster'a interest in compensation, awards and other payments or relief therefor: and, following me occurrence of a default as defined In the Nate, the Beneficiary shall be entitled, jointly with the Trustor, at the Beneficiary's option, to commence, appear In and persecute in its own name, any action or proceeding, or to make any compromise or sememenq in connection with such taking or damage. All such compensation, awards, damages, rights of action and proceeds, including the proceeds of any fire and other Insurance affecting me Property or the buildings or improvements thereon, are hereby assigned to the Beneficlary, subject to the rights of the holder of any senior dead of trust securing a ConstrectlomPermanerrt Financing Loan. After deducting therefrom all its expenses. including reasonable attorneys' fees, and if them has not occumed a default under the Nota, the Beneficiary shall apply all such proceeds to restoring me Property or the buildings or Improvements thereon, or 0 there has been such default, or if the Trustor determines not N rebuild, me Beneficiary shall retain the proceeds to the extent of the amount due under me Note and any amounts due under this Dead of Treat Any balance of such proceeds still remaining shall be disbursed by the Beneficiary to the Trustor. 19. If the Trustor fails to perform any covenant or agreement In this Dead of Trust or the Participation Agreement, or H a default occurs under the Note, me Beneficiary may declare all obligations and sums secured hereby Immediately due and payable by delivery to the Trustee of written dedarstion of default and demand for sale and women notice of default and of election to cause the Collateral to be sold, which notice the Trustee shall cause to be duly filed for record, and the Beneficiary may foreclose his Deed of Trust: provided however that the Trustor shall not be deemetl to be In default hereunder for (allure to make any payment when due or for failure to perform any other covenant or agreement contained herein until thirty (30) days after written notice of such failure is given to the Trustor and Trustor is airmail a reasonable opportunity to cure the default The Beneficiary shall also deposit with the Trustee this Deed of Trust. the Note and all other documents evidencing the obligations or sums secured hereby. MM 20. After the lapse of such time as may then be required by law fallowing the recordation of the notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Trustor, shall sell the Property at the time and place fuel by the Trustee in Me notice of sale, either as a whole or in separate parcels, and In such Order as it may determine, at public auction to Me highest bidder for rash in lawful money of the United States, payable at time of sale. The Trustee may postpone sale of all or any Obtain of the Property by public announcement at the time and place of sale, and from time to time thereafter may further postpone the sale by public announcement at the time fixed by Me preceding postponement The Trustee shall deliver to Me purchaser its deed conveying fee title to Me properly or portion thereof sb sold. but without any covenant or warranty, express or implied The recitals in Me Trustee's tleetl of any matters or facts shall be concluslve proof of the truthfulness thereof. Any parson, including the Trustor, the Trustee and the Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment at (I) the expenses of the sale, together with the reasonable expenses of Me trust created by this Deed of Trust Including reasonable Trustee's fees and attorneysfoes for conducting the sale, and the actual cost of publishing, reaNing, mailing and posting retire of the sale; (ii) the cost of any search and/or other evidence of Me procedure in connection with the sale and of venue stamps an the Trustee's deed; (iii) all sums expanded under the terms hereof not then repaid with accrued interest at the legal rate; hill all other sums then secured hereby) and (v) Me remainder, 0any. ar Me parson or persons legally entitled thereto. 21. The Beneficiary may from time to time substitute a successor or successors to the Trustee named herein or acting hereunder to execute the busts under this Deed Of Trust Upon such appointment, and without conveyance to Me successor trustee, Me lather shall be vested with all de, powers and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written Instrument executed by the SendOciary, containing referenca M Mie Deed of Trust and Its place of record, which instrument, when duly recorded in Fresno County, California, shall be conclusive proof of proper appointment of the successor trustee. 22. Upon written request of the Beneficiary staters that all obligations secured hereby have been satisfied and all sums seared hereby have been paid, and upon surrender of this Deed of Trust and the Note to Me Trustee for cancellation and retention, and upon payment of its fees, the Trustee shell reconvey, without warranty, the Collateral Men held hereunder. The recitals in such reconveyance of any matters or fads shall be conclusive proof Of the truthfulness thereof. The grantee In such reconveyance may be described as 'the person or persons legally entitled thereto " 23. The trusts created by this Deed of Trust are irrevocable by the Trustor. 24. This Deed of Trust applies to. Inures to Me benefit of and binds of Me Trustor, the Beneficiary and the Trustee and their respective adminStreMrs, easement. Officers, directors transferees, successors and assigns. The term'Benefciary' shall include not only the original Beneficiary hereunder but also any future owner and holder. Including pledges. of the Note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular includes Me 41ure1, 25. In addition to and without limitaflon on any other rights or remedies of the Trustee or the Beneficiary, if the. Trustee Or the Beneficiary commences any legal action or processing to enforce or Interpret any provision of this Dead of Trust or Me Note, the Trustor shall pay all -47- casts and expenses Incurred by the Trustee or the Beneficiary in connection with such action or Proceeding , including legal expanses and reasonable attorneys' fees and court costs. 26. The Tmstee accepts the trusts hereunder when this Deed of Trust, duly executed and acknowledged is made public record as Provided by law. Except as Otherwise provided by law, the Trustee is not obligated M notify any parry hereto of gentling sale under this Deed of Trust or of any action or proceeding in which the Trustor the Beneficiary or Me Trustee Is a Party, unless brought by the Trustee. 27. The Trustor requests that a copy of any notice of default and of any notice of sale hereunder De mailed to it at 1627 W. Shaw Avenue, Suite 101, Fresno, CA 93711. 28. The Trustor shall Louse a. copy of each dead of trust seWhng a Constructed/ Permanent Financing Loan to be entitled to the Salam iary immediately upon its recordation, so that the Ber afoary may prepare and record a request for notice of default and notice of sale thereunder pursuant to California Civil Code Section 29241. 29. PROVIDED THAT NO NOTICE OF DEFAULT HEREUNDER THEN APPEARS OF RECORD AND SUBJECT TO THE CONDITIONS IN SECTION 10 ABOVE AND/OR IN THE PARTICIPATION AGREEMENT, THIS DEED OF TRUST SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS OF TRUST SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN. TRUSTOR SHALL, UPON REQUEST OF BENEFICIARY, EXECUTE SUCH SUBORDINATION AGREEMENT OR OTHER DOCUMENTATION REASONABLY NECESSARY TO SUBORIDINATE THE LIEN AND CHARGE OF THIS DEED OF TRUST TO LIEN OF ANY DEED OR DEEDS OF TRUST SECURING A CONSTRUCTIONIPERMANENT FINANCING LOAN. 30. This Deed of Trust shall be interpreted and enforced, and the rights and duties (both Procedural and substantive) of the partles hereunder shall be determined, according to California law. 31. Capitalized terms not otherwise regiment herein shall have the meanings given them in the Agreement or the Nate. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date set forth above. TRUSTOR: �46- ACKNOWLEDGMENTS STATE OF CALIFORNIA )as. COUNTY OF FRESNO ) On 200, before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be me persons) whose names) Was subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in hisfherltheb authorized capacity(ies), and that by hls/her/their signature(s) on the instrument the parochial, or the entity upon behalf of which the persons) 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. (SEAL) WITNESS my hand and official seal. 49- EXHIBITA LEGAL DESCRIPTION All that certain real property situated in the CM of Fresno, Canty of Fresno, State of California, described as follows: PARCEL ONE All that portion & Block 335, as shown on the Map ermined, Town of Fresno', filed for record in Book 1, Page 3 of Plats, Fresno County records. described as follows: BEGINNING at the comer of said block formed by the intersection of the Southwesterly kne ci Street now Broadway) with the Northwesterly line of Calaveras Street, running thence Walhwesterly along the Southwesterly litre of'I' Street (now Broadway) 75 feat thence Southwesterly parallel with the Northwesterly line W Calaveras Street 150 feat Nance Southeasterly parallel with the Soulhwastedy line of'h Street (now Broadway), 75 feet to the Northwesterly line of Calaveras Street; thence Northeasterly along the Northwesterly line of Calaveras Street 150 Feel to Bre point of beginning. PARCEL TWO. All that portion of 11335, as shown on the Map entified, Town of Fresno' filed for record in Book 1, Page 3 of Plats, Fresno County records, descrbed as follows: BEGINNING at a point on the Northeasterly line of said Block 335 which is 75 feet Northwesterly from the intersection of the Northwesterly line of Calaveras Street and the Southwesterly, line of'I' Street (naw Broadway), thence Southwesterly Parallel with Calaveras Street 150 feet thence at right angles Northwesterly Parallel with 'I' Street now Broadway) 125 feet; thence at right angles Northeasterly Parallel with San Joaquin Street, a distance of 150 feet to'I- Street (now Broadway), thence at right angles Southeasterly along Me Southwesterly line of -I- Street (naw Broadway) to the Point of beginning. EXCEPTING THEREFROM any portion thereof lying within the Northwesterly 200 feet i f mid block.