HomeMy WebLinkAboutRiverfront VenturesRECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of the City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca. 93721
Attention: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
gal is nor
This Agreement 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 OF THE
CITY OFFRESNO
,
By. t f l
Marlene Murphey, Execut&qPiJtor
Dated: VI—e
REIMBURSEMENT AGREEMENT
by and between
Redevelopment Agency of the City of Fresno,
a public body, corporate and politic
and
Riverfront Ventures, LLC, a Delaware limited liability company
Tract 5358
Single Family Residential Project
Fresno, CA
ATTACHMENTS
Exhibit A: Legal Description of Property
2. Exhibit B: Schedule of Performance/Payment Schedule
3. Exhibit C: Certificate of Completion
4. Exhibit D: Affordability Restrictions Running with Land
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT 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 RIVERFRONT VENTURES, LLC, a
Delaware limited liability company ("Owner").
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 Freeway 99 -Golden State
Boulevard Corridor Redevelopment Project Area (the "Plan").
B. To the extent provided in or allowed by the Law including Cal. H.&S.C. Sections 33334.2 and
33449, as provided by joint resolutions of the Fresno City Council (the "Council") and the Agency,
findings and determinations pursuant to Health and Safety Code Section 33334.2.(g), 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 on-site 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 Corridor, Fruit/Church, Mariposa, Roeding Business Park, South Fresno
Industrial Revitalization, South Van Ness Industrial, Southeast Fresno Revitalization, West Fresno I,
West Fresno II, West Fresno III, redevelopment plans and (2) restricting the use of the Housing Set
Aside Funds to certain of the Community Development Block Grant eligible areas of the City.
C. Agency administers the Low and Moderate Income Housing Fund established pursuant to Cal.
H.&S. C. Sections 33334.2 et seq.
D. The Agency shall permit owner participation in the redevelopment of property in the Plan area
in conformity with the Plan and all owner participation rules and criteria, to the extent provided by
Cal. H.&S.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, including improvements thereon located north of
Josephine Avenue, between North Country Club Drive and Bryan Avenues, in the City of Fresno,(the
"City"), State of California (the "State") (the "Property"). The Property is located within the
territorial jurisdiction of the Agency.
F. Owner proposes to construct a single family residential project on the Property consisting of
230 residential units. A minimum of five (5) of the residential units (the "Affordable Units") are to be
preserved as Affordable Housing.
G. Owner has undertaken improvements in accordance with the combined Performance and
Payment Schedule described in Exhibit B attached hereto and incorporated herein (the "Performance
and Payment Schedule").
H. To the extent Housing Set 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 to the
affordable housing purposes and uses provided under the Law and this Agreement absent the financial
support of the Agency.
I. The Property and associated on site and off site improvements are collectively referred 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 Project by making available to Owner
as a grant certain Housing Set Aside (Tax Increment) Funds in the amount of $250,000 (the "Grant")
upon the terms and conditions specified this Agreement.
K. The Grant shall be paid in accordance with the schedule set out in Exhibit B to the Agreement.
The Grant and performance of the affordability and other covenants and restrictions set forth in this
Agreement shall be evidenced by this Agreement which shall be recorded against and run with the
Property.
L. The Housing and Community Development Commission reviewed the Project and this
Agreement on December 17, 2007, and recommended that Council approve it.
M. No new environmental document is required pursuant to the California Environmental Quality
Act as Improvements contemplated under this Agreement were assessed in EA No. R -05 -91/T -
5595/C -06-272.
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 best
interests of Agency and the health, safety, and welfare of City residents, (iii) complies
with applicable federal, state, and local laws and requirements, (iv) will help eliminate
blight, (v) will improve and preserve the community's supply of low and moderate income
housing available, as defined by Cal. H.&S.C. Sections 50052.5, to persons and families of
low or moderate income, as defined in Cal. H.&S.C. Section 50093; (vi) will be available
to meet the replacement housing provisions in Cal. H.&S.C. Section 33413; (vii) will
apply funds solely within the respective Plan areas except to the extent otherwise 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 criteria
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.
AGREEMENT
DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the definitions in
this Section will govern the construction, meaning, application and interpretation of the
various terms used in this Agreement.
1.1 "ADA" means the Americans with Disabilities Act of 1990.
1.2 "Affordability Period" means a period of forty-five (45) years commencing from the
date Agency records the Certificate of Completion in the Official Records.
1.3 "Affordable Housing" or "Affordable Units" means the Units available at affordable
cost, as defined by Cal. H.&S.C. Section 50052.5, to persons and families of low and
moderate income, as defined in Cal. H.&S.C. Section 50093 of Code, consistent with
Recital F above which requirements shall be enforceable by covenants running with
the land.
1.4 "Agency" means the Redevelopment Agency of the City of Fresno, a public body,
corporate and politic, organized and existing under the Law, and any assignee of or
successor to its rights, powers and responsibilities.
1.5 "Agreement" means this Reimbursement Agreement.
1.6 "Certificate of Completion" means that Certificate issued in the form attached as
Exhibit "C" to Owner by Agency evidencing completion of the Project for purposes of
this Agreement.
1.7 "Conditions Precedent of Agency" means the conditions precedent to the effectiveness
of this Agreement against the Agency.
1.8 "Day" whether or not capitalized, means a calendar day, unless stated otherwise.
1.9 "Restrictions" means the affordability restrictions contained in this Agreement and
Exhibit "D" thereto, containing all conditions, covenants, and restrictions required by
the Law, any other applicable laws and regulations, the Plan, and this Agreement,
running with the Property and the Affordable Units thereon and burdening such for the
Affordability Period.
1.10 "Default" means a party's failure to timely perform any action or covenant required by
this Agreement following notice and opportunity to cure.
1.11 "Director" means the Executive Director of Agency.
1.12 "Effective Date" means the date of complete execution of the Agreement following the
Council approval thereof.
1.13 "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 federal lien or
"super lien" law, any environmental cleanup statute or regulation, or any
governmentally required permit, approval, authorization, license, variance or
permission.
1.14 "Funding Source" means the Grant and other funding sources secured by Owner to
construct the Improvements.
1.15 "Hazardous Materials" means any substance, material, or waste which is or becomes
regulated by any local governmental authority, the State of California, or the United
States Government including, without limitation, any material or substance which is:
(a) defined as a "hazardous waste," "extremely hazardous waste," or "restricted
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, (f) friable asbestos, (g) polychlorinated byphenyls, (h) listed under Article 9
or defined as "hazardous" or "extremely hazardous" under Article 11 of Title 22,
California Administrative Code, (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 Conservation and Recovery Act (42
U.S.C. §6901 et seq., or (k) defined as "hazardous substances" pursuant to Section of
the Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. §9601, et seq); provided, however, hazardous materials shall not include: (1)
construction materials, gardening materials, household products, office supply
products or janitorial supply products customarily used in the construction,
maintenance, rehabilitation, or management of residential housing or associated
buildings and grounds, or typically used in household activities, in a manner typical of
other residential housing developments which are comparable to the Improvements;
and (2) certain substances which may contain chemicals listed by the State of
California pursuant to Health and Safety Code Sections 25249.8 et sm., which
substances are commonly used by a significant portion of the population living within
the region of the Property, including, but not limited to, alcoholic beverages, aspirin,
tobacco products, NutraSweet and saccharine.
1.16 "Household" means one or more persons occupying an Affordable Unit.
1.17 "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 Grant to Owner for eligible costs and expenses incurred by Owner in
constructing the Improvements in such amounts, and upon such terms and conditions
specified in this Agreement.
1.18 "Improvements" mean the construction of the Affordable Units and other units that
Owner will complete on the Property, including associated on-site and off-site
improvements.
1.19 "Law" means the Community Redevelopment Law of the State (California Health and
Safety Code Sections 33000 et seq.).
1.20 "Grant" means the principal sum of $250,000 provided by Agency to Owner upon the
terms and conditions set forth in this Agreement.
1.21 "Grant Documents" are collectively this Agreement and all exhibits and attachments
thereto as they may be amended, modified or restated from time to time.
1.22 "Material Change" means a change, modification, revision or alteration to the Grant
Documents that significantly deviates from those previously approved by the Agency,
provided that fully funded change(s) which do not result in a change in the number or
type (i.e. residential, affordable) of Units and/or an increase in the total Grant funding
provided in this Agreement shall not constitute Material Change(s).
1.23 "Owner" means Riverfrom Ventures, LLC, a Delaware limited liability company.
1.24 "Plan" means the Redevelopment Plan for the Freeway 99 -Golden State Boulevard
Corridor Redevelopment Project Area.
1.25 "Project" means the construction of the Affordable Units and other units that Owner
will complete on the Property, and related on-site and off-site improvements.
1.26 "Project Area" means the Property.
1.27 "Project Completion Date" means the 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.
1.28 "Property" means the real property described in Exhibit "A".
1.29 "Release of Restrictions" means a release of those covenants, conditions and
restrictions contained in this Agreement.
1.30 "Performance and Payment Schedule" means the schedule attached as Exhibit `B,"
setting forth the dates and times by which the parties 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 set forth in Exhibit "B" is
subject to the requirements in this Agreement.
1.31 "Security Financing Interest" means a security interest which Owner grants in the
Property and the Improvements thereon before the Agency issues and records a
Release of Restrictions.
1.32 "Unit" means a residential 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 authorized representative, may waive any condition 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.
2.1 Owner shall pay for and provide a title report, recorded deed or other evidence
acceptable to Agency that Owner owns the Property.
2.2 Owner, at Owner's expense, shall have investigated and determined all environmental,
soil, seismic, and other surface and subsurface conditions of the Property and the
suitability of such conditions for the Project. Owner's 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 hold Agency harmless from any damages or claims
arising out of Owner's inspections and tests.
2.3 Should Owner's property assessment/inspection reveal any Hazardous Materials
requiring remediation, Owner will promptly notify Agency. Not later than ten (10)
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 thereafter
pursue remediation activities as to such Hazardous Materials and to diligently
prosecute such to completion as required by applicable federal, state and local law and
in a manner and according a reasonable time frame agreeable to Agency. Without
limiting the foregoing, any remediation 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 laws and governmental
requirements.
2.4 Owner shall not be in default of this Agreement and all representations and warranties
of Owner contained herein shall be true and correct in all material respects.
2.4.1 Owner will have signed and delivered all documents required hereunder.
2.4.2 Owner will have received all land use and development approvals, variances,
permits and the like required by this Agreement.
2.5 Owner will have provided proof of insurance as required by this Agreement.
2.6 Owner agrees to notify Agency immediately upon approval of the final map at which
time Agency shall cause this Agreement to be recorded with the Fresno County
Recorder'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 take all reasonable precautions to prevent the release 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 applicable law for the disclosure, storage,
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 -reporting
requirements and reports filed or applications made pursuant to any governmental
regulation relating to Hazardous Materials. Within 3 days after each incident, Owner
will report to Agency any unusual or potentially important incidents with regard to
Hazardous Materials in, on or under the Property.
If a release of any Hazardous Materials in, on or under the Property occurs, Owner
will, as soon as possible after such release, furnish Agency with a copy of any reports
relating thereto and copies of all correspondence with governmental agencies relating
to such 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 applications, permits and reports, even reports and other
matters.
3.3 From the Effective Date except to the extent of the active negligence or willful
misconduct of Agency, Owner will indemnify, defend, and hold Agency harmless from
any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine,
penalty, punitive damage, or expense (including, without limitation, reasonable
attomeys' fees), arising out of (i) the presence, release, use, generation, discharge,
storage or disposal of any Hazardous Materials in, on or under the Property, or the
transportation of any Hazardous Materials to or from the Property, or (ii) the violation,
or alleged violation, 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 in, on, under, to or from, the Property. This
indemnity will include, without limitation, any damage, liability, fine, penalty, parallel
indemnity after closing, cost or expense arising from or out of any claim, action, suit or
proceeding for personal injury (including sickness, disease or death), tangible or
intangible property damage, compensation for lost wages, business income, profits or
other economic loss, damage to the natural resource or the environment, nuisance,
contamination leak, spill, release or other adverse effect on the environment, occurring
as a result of subsections (i) or (ii) above.
3.4 The status and qualifications of Owner are of particular concern to Agency. From the
Effective Date of this Agreement until the Release of Restrictions, 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 sale as Affordable Housing as provided in this Agreement. Notwithstanding
anything to the contrary herein, Owner shall have the right to transfer ownership of the
Property to another person or entity having experience in the ownership and operation
of Affordable Housing, as reasonably approved by Agency, which approval shall not
be unreasonably withheld, delayed or conditioned.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Except as set 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 entitlements, permits,
and approvals that Agency or any other governmental agency with jurisdiction over the
Project requires for construction of the Project. Without waiver or limitation, Owner
will secure and pay all costs, charges and fees associated with, the following:
4.1.1 All permits and fees that the City, County of Fresno, and other
governmental agencies with jurisdiction over the Project, the Improvements or
the Property may require.
4.1.2 Compliance of the Project with all applicable federal, state and local
accessibility requirements. For purposes of this Agreement the number of
accessible Units shall be zero (0) unless a greater number of Units shall be
required by law, whereupon such greater number of Units shall apply.
4.2 Audit. Owner shall be accountable to Agency for all Grant 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 Affordable Units that may be
performed. Owner will maintain accurate and current books and records for the
Affordable Units 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 Grant funds and to keep all invoices,
receipts and other documents related to expenditures financed with Grant funds for not
less than four (4) years after the fiscal year in which such expenditures are incurred.
For purposes of this section, "books, records and documents" include, without
limitation, plans, drawings, specifications, ledgers, journals, statements,
contracts/agreements, funding information, purchase orders, invoices, loan documents,
computer printouts, correspondence, memoranda and electronically stored versions of
the foregoing, but specifically excluding the Excluded Items. For purposes of this
Agreement, the term "Excluded Items" shall mean all proprietary, privileged or
confidential information of Owner relating to the Property, the Project and/or the
Improvements including, but not limited to, internal financial analysis, marketing
studies and reports, credit analysis, materials relating to the cost to acquire the Property
and any documents or communications subject to the attorney/client privilege. This
section shall survive for a period of four years after the expiration or termination of
this Agreement.
4.3 Owner shall use commercially reasonable efforts to obtain all necessary discretionary
governmental permits, approvals and entitlements, close any implicated funding or
other escrow and begin/complete construction of the Improvements according to the
Performance and Payment Schedule.
4.3.1 Project Completion. Agency, acting through and in the discretion 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 control, and if Owner could not, with reasonable diligence, have
foreseen and avoided such cause for delay. Such causes include, without
limitation, acts of God, unusually severe weather or flood, war, terrorism, riot
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
completion date for acts or omissions occurring through the fault of Owner, or
for acts of Agency permitted or contemplated by this Agreement. An extension
of time as provided in this subsection will be Owner's sole remedy for any
delays of the Project Completion Date as set forth in the Performance and
Payment Schedule.
As a condition precedent to any such extension requested by Owner, Owner
will give the Agency notice within ten (10) days after any cause for a delay
described above occurs, stating the cause and the 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.
4.4 Subject to the terms of this Agreement, the Grant shall be disbursed to Owner
according to the Performance and Payment Schedule. All Grant funds shall be used
solely for costs of the Project and Improvements.
4.5 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 the Law, Agency will
furnish Owner with the Certificate of Completion, which the Agency has caused to be
recorded in the Official Records of the County of Fresno (the "Official Records").
Agency will not unreasonably delay, condition or refuse to issue the Certificate of
Completion. The recorded Certificate of Completion will be a conclusive
determination that Owner has satisfactorily completed the Improvements required
under this Agreement. Any parties then owning or subsequently purchasing, leasing or
otherwise acquiring any interest in the Property will not (because of that ownership,
purchase, lease or acquisition) after the recording, incur any obligation or liability
under this Agreement for constructing the Improvements, but will take such interest in
the Property subject to the continuing covenants set forth in this Agreement.
4.5.1 If Agency determines not to furnish the Certificate of Completion, in
accordance with Section 4.5 above, Agency will give Owner a written notice
stating why Agency has 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 notice within ten (10) days, however,
will not cause the Owner to be entitled to the Certificate of Completion. The
Certificate of Completion is not a notice of completion as referred to in Section
3093 of the California Civil Code.
4.5.2 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 material men's liens has expired and any such liens recorded against the
Property or Improvements have been released or, if not released, sufficiently
bonded (i.e. 150%) against as requited by law.
4.6 To the extent economically feasible, consistent with the requirements of any Permitted
Encumbrance, or as otherwise approved by Agency or provided in the Agreement, if
any building or improvement on the Property is materially damaged or destroyed by an
insurable cause, Owner shall, at its cost and expense, diligently 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. Owner may request an extension of time in a writing to Agency. 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, Owner shall make up the deficiency. For purposes of this Section
4.5, damage to the Project is deemed to involve a material portion thereof if the
reasonable estimated cost of restoration or repair of such damage exceeds ten percent
(10%) of the estimated value of the Project, which estimates shall be made in the sole
and reasonable judgment of Owner.
4.7 Inspections. Owner shall permit, facilitate and require its contractors to permit and
facilitate observation and inspection of the Project by Agency during reasonable
business hours and upon reasonable notice for the purpose of determining compliance
with this Agreement. Agency and its representatives, agents, employees, contractors
and consultants shall comply with all safety rules while on the Property. Agency
hereby agrees to indemnify, protect and hold Owner and the Project harmless from any
and all liabilities, costs, loss, damages or expenses of any kind or nature arising out of
or resulting from any entry and/or activities upon the Project by Agency and/or
Agency's representatives, agents, employees, contractors and consultants. Agency's
indemnification obligations under this Section 4.7 shall survive the recordation of the
Certificate of Completion or any termination of this Agreement.
4.8 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 federal statutes and regulations with respect
to relocation planning, advisory assistance and payment of monetary benefits. Owner
shall be solely responsible for payment of any relocation benefits to any displaced
persons and any other obligations associated with complying with said relocation laws.
For purposes of this Section 4.8 the parties acknowledge that as of the Effective Date
the Property is vacant and unoccupied.
4.9 Owner shall retain title to the Affordable Units until title thereto are sold or transferred
to moderate -income and low-income families or as otherwise provided in this
Agreement. Said title shall be in a condition sufficient for a title company to issue a
standard form ALTA or CLTA lender's title insurance policy on the Property. Said
title shall be kept free from encumbrances and liens except for Permitted
Encumbrances and to the extent provided for elsewhere in this Agreement. For the
purposes of this Agreement, the term "Permitted Encumbrances" shall mean (i) non -
delinquent real property taxes and assessments and (ii) the standard exceptions set
forth on a CLTA standard coverage owner's policy of title insurance.
4.10 With respect to the Project, Owner shall comply with the following:
4.10.1 Except to any extent otherwise provided in this Agreement,
Owner is specifically responsible for all management functions with respect to
the Affordable Units including, without limitation, the selection of buyers and
the certification of Household size and income. Agency shall have no
responsibility for management of the Affordable Units of the Project.
4.11 Owner covenants and agrees that the Affordable Units shall comply with all laws and
regulations applicable to Affordable Housing during the entire Affordability Period. If
Owner fails to comply with the requirement to sell the Affordable Units only to
qualified Households during the Affordability Period, Agency shall be entitled to
enjoin Owner from selling the Affordable Units in the Project, as Owner acknowledges
that damages are not an adequate remedy at law for such breach.
INDEMNITY; INSURANCE
5.1 Owner shall indemnify, hold harmless and defend Agency and each of its officers,
officials, employees, agents from any and all loss, liability, fines, penalties, forfeitures,
costs and damages (whether in contract, tort or strict liability, including but not limited
to personal injury, death at any time and property damage) incurred by Agency, Owner
or any other person, and from any and all claims, demands and actions in law or equity
(including reasonable attorney's fees and litigation expenses), arising or alleged to have
arisen directly or indirectly out of Owner's performance of this Agreement. Owner's
obligations under the preceding sentence shall not apply to any loss, liability, fines,
penalties, forfeitures, costs or damages to the extent caused by the gross negligence or
by the willful misconduct of Agency or any of its respective officers, officials,
employees, or agents.
This Section 5.1 shall survive termination or expiration of this Agreement.
5.2 Until the Certificate of Completion is recorded in the Official Records, Owner shall
pay for and maintain or cause to be paid and maintained in full force and effect all
policies of insurance and all applicable endorsements required under this Section 5.2
with an insurance company or companies admitted by the California Insurance
Commissioner to do business in the State of California. The following policies of
insurance are required:
5.2.1 Commercial General Liability Insurance, which shall include
contractual, products and completed operations coverages, bodily injury and
property damage liability insurance with combined single limits of not less than
$1,000,000 per occurrence.
5.2.2 Workers' Compensation Insurance, as required under the California
Labor Code.
5,2.3 Builder's Risk Insurance, in an amount to provide coverage to one
hundred percent (100%) of the replacement value of the Improvements,
including terms of labor and materials in place or to be used as part of the
permanent construction, including surplus miscellaneous materials and supplies
incidental to the construction of the Improvements and such scaffolding,
staging, towers, forms and equipment as are not owned or rented by the Owner,
the cost of which is not included in the cost of the construction of the
Improvements.
5.2.4 Professional Liability Insurance (errors and omissions), with a limit of
not less than $1,000,000 per occurrence.
Each of the above described policies of insurance shall be endorsed to provide an
unrestricted 30 -day written notice in favor of the Agency of policy cancellation,
change or reduction of coverage, except for the Workers' Compensation policy which
shall provide a 10 -day written notice of such cancellation, change or reduction of
coverage. If any policy is due to expire during the term of this Agreement, Owner
shall provide a new certificate evidencing renewal of such policy not less than 15 days
before the expiration date of the expiring policy. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, change or reduction in coverage, Owner shall file
with Agency a certified copy of the new or renewal policy and certificates for such
policy.
The General Liability insurance policy shall be written on an occurrence form and
shall name the Agency, its officers, officials, agents, and employees as an additional
insured. Such policy shall be endorsed so that Owner's insurance is primary and no
contribution is required of Agency. Owner shall furnish Agency with copies of the
actual policy upon the request of Agency.
If at any time Owner fails to maintain the insurance required under this Section 5.2 in
full force and effect, Owner shall immediately discontinue all work under this
Agreement until Agency receives notice that such required insurance has been restored
to full force and effect and that the premiums therefore have been paid for a period
satisfactory to the Agency. Owner's failure to maintain any required insurance
pursuant to this Section 5.2 shall be sufficient cause for Agency to terminate this
Agreement.
If Owner uses a general contractor for all or any portion of the work under this
Agreement, Owner shall require the general contractor to provide insurance protection
in favor of Owner and Agency, its officers, officials, employees, and agents according
to the terms of each of the preceding paragraphs of this Section 5.2, except that the
general contractor's certificates and endorsements shall be on file with Owner and
Agency before any work begins on the Improvements.
For the Owner's design work for the Improvements or if Owner contracts the design
work for any portion of the Improvements, the Owner shall maintain, or shall require
the architect and structural engineer to maintain, the following insurance coverage:
If claims made forms are used for any Professional Liability Insurance, either (i) the
policy shall be endorsed to provide not less than a five-year discovery period, or (ii)
the coverage shall be maintained for a minimum of five years following the
termination of this Agreement, and the requirements of this Section 5.2 relating to such
Professional Liability Insurance shall survive termination or expiration 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 criteria
for Owner's other insurance under Section 5.2 of this Agreement. Each bond shall be
in an amount at least equal to 100% of Owner's estimated construction costs for the
Improvements, provided that the Agency hereby waives any requirement for said
bonds at all times during which Owner is in full compliance with this Agreement and
the Project remains fully funded.
5.4 Owner will design and construct the Improvements, and after that, but prior to any
allowable transfer or sale thereof, Owner 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 no representation about which, if any, of such laws,
ordinances, regulations or standards apply to development of the Project.
Owner acknowledges that Owner, not Agency, is responsible for determining
applicability of and compliance with all local, state, and federal laws including, but not
limited to, any applicable provisions of the California Labor Code, 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
parties' respective rights or obligations hereunder including, but not limited to,
payment of prevailing wages, competitive bidding, subcontractor listing, or similar or
different 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 should have known of the need for such
compliance, or whether Agency failed to notify Owner of the need for such
compliance.
5.5 Owner will take reasonable efforts to not permit any lien or stop notice to be filed
against the Property; provided, however, that Owner may determine, in its reasonable
discretion, 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 days after
recordation of such claim of lien or stop notice or within 5 days after Agency's
demand, whichever first occurs, will do the following:
5.5.1 Pay and discharge the same; or
5.5.2 Effect the release of such lien by recording and delivering to Agency a
surety bond in sufficient form and amount (i.e. 150%), or otherwise; or
5.5.3 Give Agency other assurance which Agency, in its sole discretion,
deems satisfactory to protect the Agency from the effect of the lien or bonded
stop notice.
r-�l X0lil 111 Ira/ li;/,•�`►IQ IM'IMI i
6.1 Notwithstanding 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 the written consent of Agency, provided that Agency hereby
acknowledges and agrees that Owner is in the process of obtaining a construction loan
for the Project, and hereby consents to such construction loan and any security interest
in the Property granted in connection therewith.
7. CONTINUING OWNER OBLIGATIONS
7.1 In its performance of this Agreement, Owner covenants by and for itself and its
successors and assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of any person, including contractors,
subcontractors, bidders and vendors, on account of race, color, religion, ancestry,
national origin, sex, sexual preference, age, pregnancy, childbirth or related medical
condition, medical condition (e.g., cancer related) or physical or mental disability, and
in compliance with all applicable federal, state and local laws, regulations and rules
including without limitation Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the
Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the
Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42
U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal.
Government Code Section 12900, et seq., the California Equal Pay Law, Cal. Labor
Code Section 1197.5, Cal. Government Code Section 11135, the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other applicable anti-
discrimination laws and regulations of the United States and the State of California as
they now exist or may hereafter be amended.
7.2 Owner will pay before delinquency all ad valorem real estate taxes and assessments on
the Property, subject to Owner's right to contest in good faith any such taxes. Owner
will remove any levy or attachment on all or any portion of the Property, or assure the
satisfaction of such 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 on any interest in or to the Property or the Improvements. Owner
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 taxation, which consent shall
not be unreasonably withheld.
1.1
COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The following
covenants shall run with the land and shall bind Owner, and Owner'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.
8.1 Owner covenants for itself, 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, Owner shall devote the
Affordable Units on the Property to the uses specified in this Agreement for the
Affordability Period. All uses of the Affordable Units including, without limitation, all
activities Owner undertakes pursuant to this Agreement, shall conform with this
Agreement and the Law. Without waiver or limitation, each of the Affordable Units to
be constructed, sold or transferred pursuant to this Agreement shall be offered for sale
at prices affordable to, or with the approval of the Agency, transferred in lieu of sale
to, persons of moderate and low-income for owner occupancy as primary residence.
8.2 During the Affordability Period Owner covenants to use and operate the Affordable
Units on the Property as decent, safe, sanitary housing affordable to moderate and low-
income single family residences as defined annually for the Fresno Metropolitan
Statistical Area by and published by the U.S. HUD.
8.3 Owner covenants for itself and any successors in interest and all persons claiming by,
through or under them, in perpetuity, 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, 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 concerning the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees/transferees of the Affordable Units. The foregoing covenants
shall run with the land.
8.4 All deeds, leases, or contracts concerning the Affordable Units shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses:
"The grantee herein covenants by and for himself or herself, 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, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the 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, conveyed.
The foregoing covenants shall run with the land."
8.5 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 provided, without regard to whether
Agency has been, remains, or is an owner of any land or interest in the Affordable
Units on the Property. Agency may exercise all rights and remedies, and maintain any
actions or suits at law or in equity or other proceedings to enforce the covenants for
itself or any other beneficiaries.
8.6 Owner shall notify Agency immediately upon approval of the final map for the Project
and the designation of the five (5) Affordable Units. Agency shall then cause the
covenants and restrictions in Exhibit "D" to be recorded against the parcels for each of
the Affordable Units.
9. DEFAULTS AND REMEDIES
9.1 Subject to the extensions of time permitted under this Agreement, either party's failure
to perform any material action or material covenant as required by this Agreement,
following notice and failure to cure within the timeframes provided in this Section 9. 1,
is a "Default" under this Agreement. A party claiming a Default (the "Non -Defaulting
Party") shall give written notice of Default to the other party (the "Defaulting Party")
specifying the Default complained of, and the cure demanded. Except as otherwise
expressly provided in this Agreement, the Non -Defaulting Party party shall not begin
any proceeding against the Defaulting Party until the Defaulting Party is given an
opportunity to cure the Default. The Defaulting Party will have 30 calendar days after
receiving the notice to cure the Default, or, if the Defaulting Party cannot reasonably
cure the Default within such 30 days, the Defaulting Party must begin to cure within
the 30 days and diligently pursue the cure to completion, whereupon there shall be no
event of Default. Without waiver or limitation upon rights and remedies otherwise
available, upon any termination by Agency prior to release of construction covenants,
Owner shall deliver to the Agency any and all drawings, maps, plans, data and other
documents concerning the Project and the Improvements other than the Excluded
Items and the Agency or any person or entity designated by the Agency shall have the
right to use such drawings, plans, data and documents, but shall have no right to the
Excluded Items. Owner hereby grants a limited royalty free copyright license to
Agency for purposes of this section 9.
9.2 Subject to first giving the notice and opportunity to cure, as provided in Section 9.1
above, the Non -Defaulting Party may begin an action at law to enforce, or in equity to
seek specific performance of, the terms of this Agreement, or to cure, correct, or
remedy any Default, to recover damages for any Default, or to obtain any other remedy
consistent with the purpose of this Agreement. The Non -Defaulting Party must bring
any legal action in the Superior Court of the 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 County.
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 parry's exercise of one or more rights or remedies will not
preclude the party's exercise, at the same or different times, of any other rights or
remedies for the same or any other Default of the other party.
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 remedy, 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 remedy.
9.6 The laws of the State of California shall govern the interpretation and enforcement of
this Agreement.
10. GENERAL PROVISIONS
10.1 Any notice, demand, or other communication permitted or required under this
Agreement will be in writing and given by personal delivery, or by first-class U.S.
mail, postage prepaid, to a party at its respective address below:
To Agency:
RDA Executive Director
2344 Tulare Street, Suite 200
Fresno, CA 93721
To Owner:
River&ont Ventures, LLC
c/o Josh Roberts
DS VENTURES, LLC
8383 Wilshire Blvd., Suite 1000
Beverly Hills, CA 90211
Tel. 323.658.1511 ext. 210
Fax. 323.658.1520
A party may change its address for notices, demands and communications by giving
notice of the new address as provided in this section. Any written notice, demand or
communication shall be deemed received immediately if delivered personally, shall be
deemed received on the third day after it is postmarked if delivered by regular,
registered or certified mail, or on the date of receipt, if return receipt is requested and
available to confirm the date, and shall be deemed received on the next business day if
delivered via an overnight delivery service.
10.2 All of the terms, covenants and conditions of this Agreement shall be binding upon the
Owner, jointly and severally, and its permitted successors and assigns. Whenever the
term "Owner" is used in this Agreement, such term shall include Owner's successors
and assigns as permitted under this Agreement.
10.3 The Agency may assign or transfer any of its interests, rights, or obligations hereunder
at any time without the consent of the Owner.
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.
10.6 Whenever this Agreement references an action or approval required or permitted by
the Agency, the Director or his or her designee is authorized to act for the Agency as
agent of the Agency unless this Agreement, the Law, and/or any other applicable law
provide otherwise, or the context otherwise requires.
10.7 This Agreement may be signed in multiple counterparts which, when signed by all
parties, will be one binding agreement. The parties will sign three copies of this
Agreement, each of which is deemed to be original.
10.8 This Agreement includes the exhibits and attachments referenced and incorporated
herein. 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 If either party begins a lawsuit or arbitration proceeding, in law or equity, to enforce or
interpret any provision of this Agreement, the prevailing party will be entitled to
recover from the other parry reasonable attorneys' fees, court costs, and legal expenses
as determined by the court 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 term, provision, condition or covenant of this Agreement or its application to
any party or circumstances is held invalid or unenforceable, the remainder of this
Agreement and its application to persons or circumstances, other than those about
whom or which it is held invalid or unenforceable, shall not be affected, and shall
remain valid and enforceable to the fullest extent permitted by law.
10.12 Each party represents and warrants 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 set 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 attorneys, 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
directly or indirectly interested. Owner represents and warrants that it has not paid 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 costs of
professional services 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 appropriate to carry out the provisions of this Agreement.
10.15 No contractor, subcontractor, mechanic, material man, laborer, vendor, or other person
hired or retained by with Owner shall be, nor shall any of them be deemed to be, third -
parry beneficiaries of this Agreement, rather Owner shall use commercially reasonable
efforts to cause each such person to agree (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 action
against Agency under any circumstances. Except as provided by law, or as otherwise
agreed to in writing between Agency and such person, Owner shall use commercially
reasonable efforts to cause each such person to agree to waive in writing all right to
seek redress from Agency under any circumstances whatsoever.
10.16 Owner hereby covenants and warrants that it is a duly authorized and existing
Delaware limited liability company, in good standing and authorized to do business in
California; that it shall remain in good standing; that it has the full right, power and
authority to enter into this Agreement and to carry out all actions on its part
contemplated by this Agreement; that the execution and delivery of this Agreement
were duly authorized by proper action of the Owner and no consent, authorization or
approval of any person is necessary in connection with such execution and delivery or
to carry out all actions of the Owner's part 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.
10.17 In the event of any conflict between the body of this Agreement and any exhibitor
attachment to it, the terms and conditions of the body of this Agreement will control.
IN WITNESS WHEREOF, Agency and Owner have signed this Agreement, and the Agency
has approved this Agreement, on the dates and in the year set forth below.
Redevelopment Agency of the City of Fresno
C
By L Uu "4'. (- L /
Marlene Murphey
Executive Director
Riverfront Ventures, LLC, a
Delaware limited liability company
By: Troxler Residential Ventures NMI, LLC,
a Delaware limited liability company,
its Managing Member
By: Troxler Ventures Partners II, Inc.,
A California corporation
Its O By.;Tt ember
By: +,, _
5fewu,T' � - Myers
Authorized Signatory
ATTEST:
REBECCA KLISCH
C1erk,.Redevelopment Agency of Fresno
By —daw_ /uyt 3f /9f 04
De 'ty
Attachments:
APPROVED AS TO FORM:
JAMES SANCHEZ
Attorney,, Redevelopment Agency of Fresno
By:
Deputy
Exhibit A: Legal Description of Property
Exhibit B: Performance and Payment Schedule
Exhibit C: Certificate of Completion
Exhibit D: Affordability Restrictions Running with Land
Notary page attached to:
Reimbursement Agreement
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS
COUNTY OF LOS ANGELES )
On March 5, 2008, before me, Lisa Anne Cotta, Notary Public, personally appeared Stewart
J .Myers, who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person 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.
WI S my hand and official seal.
- LISA ANNE COIIA
. Commission # 1649552 z
5 Notary Public • Calltomla 5
Notary c 5 ' �� Los Angeles County
My Comm. Expires QteMar 5, 2010
(SEAL)
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[insert/attach]
EXHIBIT "B"
Performance and Payment Schedule
SCHEDULE OF PERFORMANCE
Construction of the Affordable Units shall be completed within 24 months of the Effective
Date of this Agreement ("Completion Date"), provided, however, that Owner may extend the
deadline for completion one time by an additional 12 months by a writing delivered to
Agency at least sixty (60) days prior to the expiration of the original 24 -month period.
SCHEDULE OF PAYMENTS
Disbursements are to be made in one lump sum payment of $250,000 within ten (10) business
days of the later of (i) receipt of invoices from Owner, and (ii) written confirmation from
Public Works that the off-site improvements have been completed and are unencumbered.
LEGAL_US_W # 58046864.2
EXHIBIT "C"
Certificate of Completion
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca. 93721
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE)
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
0
Marlene Murphey
Its: Executive Director
Dated:
Certificate of Completion
LEGAL_US_W # 58046864.2
Recitals:
A. By a Reimbursement Agreement (the "Agreement") dated [ 1, 2008 between
Riverfront Ventures, LLC, a Delaware limited liability company (collectively, "Owner") and the
Redevelopment Agency of the City of Fresno, a public body corporate and politic ("Agency"), Owner
agreed to 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 affordable
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 set forth at California Health and Safety Code Sections 33000 et
seq. for a forty-five (45) year Affordability Period according to the terms and conditions of the
Agreement.
B. The Agreement was recorded on [ 1, 2007 in the Official Records of
Fresno County, California as Instrument No.
C. Under the terms of the Agreement, after Owner completes the construction on the Property,
Owner may ask Agency to record a Certificate of Completion.
D. Owner has asked Agency to furnish Owner 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 the Property as set forth in the Agreement.
NOW THEREFORE:
Agency certifies that Owner commenced the construction work on the Project on
[ 1, 2007, and completed the construction work on the Project on
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 Project.
3. This Certificate of Completion is not a notice of completion as referred to in California
Civil Code section 3093.
LEGALUS_W # 58046864.2
4. Nothing contained herein modifies any provision of the Agreement.
IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion as of this
day of , 200_.
Redevelopment Agency of the City of Fresno
Marlene Murphey
Executive Director
Owner hereby consents to recording this Certificate of Completion against the Property
described herein.
Dated: 200
River&ont Ventures, LLC,
a Delaware limited liability company
By:
Name:
Title:
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC.
ATTEST:
CITY CLERK
By:
Deputy
Dated:
LEGAL_US_W # 58046864.2
APPROVED AS TO FORM:
CITY ATTORNEY
0
Dated:
EXHIBIT "D"
Deputy
AFFORDABILITY RESTRICTIONS RUNNING WITH LAND
In addition to the covenants and conditions contained in the Agreement, the following California
Community Redevelopment Law (California Health & Safety Code Section 33000 et seq.)
affordability requirements shall be imposed upon the 5 Affordable Units on the Property funded under
the Agreement and shall bind the Owner and all purchasers of the Property and their successors for a
forty-five (45) year period.
The Affordable Units on the 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 Exhibit ,
all of which are in furtherance of the Project, the RDA's Community Redevelopment Law and Plan
Area obligations including RDA's obligations set forth at California Health & Safety Code sections
33334.2 et 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 restrictions, covenants and limitations
will run with the land and will be binding on all parties having or acquiring any right, title or interest
in the Affordable Units upon the Property or any part thereof, will inure to the benefit of the RDA,
and will be enforceable by it. Any purchaser under a contract of sale or other transferee of an interest
covering any right, title or interest in any part of the Affordable Units upon the Property, by accepting
a deed or a contract of sale or agreement of purchase, accepts the document subject to, and agrees to
be bound by, any and all restrictions, covenant, and limitations set forth in this Exhibit for the period
of forty-five (45) 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 restrictions are for the benefit and
protection of the RDA and shall run with the Affordable Units upon the Property and be binding on
any future owner's of the Property and inure to the benefit of and be enforceable by RDA. These
covenants and restrictions are as follows:
a. From the date 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 Housing and affordable replacement dwellings as provided for in the Agreement. Owner
agrees to file a recordable document setting 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 housing shall include without limitation compliance with the following requirements:
LEGAL_US_W # 58046864.2
Nondiscrimination. There shall be no discrimination against nor segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy,
tenure, or enjoyment of any of the Property, nor shall Owner or any person claiming
under the Owner, establish or permit any practice of discrimination or segregation with
reference to the selection, location, number, use or occupancy of owners or vendees of
the Property.
Principal Residence. Each of the Affordable Units upon the Property shall be
sold/transferred only to natural persons, who shall occupy such as a principal
residence.
Income Requirements. Each of the 5 Units constituting Affordable Housing upon the
Property may be conveyed only to (a) natural person(s) 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 Metropolitan
Statistical Area applicable to such household's size, and at an affordable price
consistent with the applicable California Redevelopment Law.
Injunctive Relief and Recapture. Should any of the 5 Affordable Units constituting
Affordable Housing upon the Property not continue to be, at the time of initial
occupancy, the principal residence of a Household that qualifies as a low-income or
moderate -income Household, during the period of Affordability, such Unit(s) shall be
made available for subsequent purchase only to Households that qualify as a low-
income or very low-income for use as the Household's principal residence.
2. Enforcement of Restrictions. Without waiver or limitation, the RDA shall be entitled to
injunctive or other equitable relief against any violation or attempted violation of the Restrictions, and
shall, in addition, be entitled to damages for any injuries or losses resulting from any violations
thereof.
3. Acceptance and Ratification. All present and future owners of the Property and other persons
claiming by, through, or under them shall be subject to and shall comply with the above Restrictions.
The acceptance of a deed of conveyance to the Property shall constitute an agreement that the
Restrictions, as such may be amended or supplemented from time to time, is accepted and ratified by
such future owners, tenant or occupant, and such Restrictions shall be a covenant running with the
land and shall bind any person having at any time any interest or estate in the Property, all as though
LEGAL_US_W # 58046864.2
such Restrictions were recited and stipulated at length in each and every deed, conveyance, mortgage
or lease thereof.
4. Benefit. This Exhibit and the Restrictions therein shall run 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 expiring upon the expiration of
the Affordability Period. The failure or delay at any time of RDA and/or any other person entitled to
enforce these Restrictions shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time to time thereafter, or an estoppel against the enforcement thereof.
5. Costs and Attorney's 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
attorney's fees incurred in connection with such default or failure.
6. Waiver. Neither Owner nor any future owner of the Property may exempt itself from liability
for failure to comply with the Restrictions required in this Exhibit.
7. Severability. The invalidity of the Restrictions or any other covenant, restriction, condition,
limitation, or 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 gender herein shall, unless the context clearly requires the contrary, be deemed to
refer to and include all genders. Words in the singular shall include and refer to the plural, and vice
versa, as appropriate.
9. Interpretation. The captions and titles of the various articles, sections, subsections, paragraphs,
and subparagraphs of this Exhibit are inserted 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.
LEGAL_US_W 4 58046864.2