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RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno as Housing Successor to the
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)
This Agreement is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
CITY OF FRESNO, a municipal
corporation, in its capacity as Housing
Successor to the Redevelopment
Its: Executive Director
Date
AMENDED AND RESTATED
OWNER PARTIC I PATION AGREEMENT
by and among
City of Fresno,
a municipal corporation, in its capacity as
Housing successor to the Redevelopment Agency of the city of Fresno
and
TFS lnvestments, LLC
And
Fultonia WesUCedar Heights
Scattered Site, LP
541-545 North Fulton Street &
4496-4538 E. Hamilton Avenue
Scattered Site Residential Rental Project
Fresno, CA
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ATTACHMENTS
1. Exhibit A' Legal Description of property
2. Exhibit B: Schedule of Performance/payment
Schedule
3. Exhibit C: BudgeUFinancial Plan
4. Exhibit D: Certificate of Completion
5. Exhibit E: Scope of Development and project
Design
6. Exhibit F: Form of Regulatory Agreement and
Declaration of Covenants and Restrictions
7. Exhibit G: Form of Promissory Note
8. Exhibit H: Form of Deed of Trust
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AMENDED AND RESTATED
OWNER PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED OWNER PARTICIPATION AGREEMENT
("Agreement") is entered as of the Effective Date (defined in this Agreement), by and
among the CITY OF FRESNO, a municipal corporation, in its capacity as Housing
Successor to the Redevelopment Agency of the City of Fresno, ("Agency"), TFS
INVESTMENTS, LLC, a California limited liability company ("Original Owner") and
FULTONIA WEST/CEDAR HEIGHTS SCATTERED SITE, LP, a California limited
partnership ("Owner").
RECITALS
The parties enter this Agreement based on the following facts, understandings,
and intentions.
A. Agency is the housing successor in interest to the Redevelopment Agency of the
City of Fresno ("Former RDA") pursuant to Resolution No. 2012-12, and as such
assumes all housing rights and obligations of the Former RDA; and
B. The Former RDA and Original Owner executed that certain Owner Participation
Agreement on March 4, 2011 , regarding Fultonia West Apartments at 541-545 N. Fulton
Street, Fresno, California ("Original OPA"). Original Owner shall grant by deed to
Owner all of its right, title and interest in said property located at 541-545 N. Fulton
Street, Fresno, California, Assessor's Parcel Number 452-274-05/16 ("Fultonia West"),
which property is the subject of this Agreement and now inclusive of said property
located at 4496-4538 E. Hamilton Avenue, Fresno, California Assessor's Parcel
Number 47 1 -220-55T ("Cedar Heights").
C. Owner is under contract with Original Owner to purchase all of Original Owner's
rights, title and interest in fee to the certain real property described in Exhibit "4"
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 The Fultonia West Project located at 541-545 North Fulton Street,
Fresno, California and Cedar Heights Project located at 44964538 E. Hamilton Avenue,
Fresno, California (the "Project"). The Property and Project are located within the
territorial jurisdiction of the Agency.
D. Owner proposes to develop a new residential rental project on the Property
consisting of forty-five (a5) residential units. All of the residential units (the "Affordable
units") are to be rented and preserved as Affordable Rental Housing.
E. Owner agrees to undertake improvements in accordance with the combined
Performance and Payment Schedule described in Exhibit "8" attached hereto and
incorporated herein (the "Performance and Payment Schedule").
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F. 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 affordabÍe
rental housing purposes and uses provided under Law and this Agreement absent the
financial support of the Agency.
G. The Property and associated on site and off site improvements are collectively
referred to in this Agreement as the "lmprovements" or the "Project," all of which wiil
directly benefit the Property and the Plan area, cannot otherwise be reasonably paid for
or financed solely through private financing, and are necessary to eliminate blight.
H. 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 lncrement) Funds in thé
amount of $870,000 (the "Loan") upon the terms and conditions specified in this
Agreement.
l. The Loan shall be paid in accordance with the schedule set out in Exhibit "B" to
the Agreement and repaid in accordance with the promissory note a specimen 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 Deed of Trust, attached hereto as Exhibii "H,"
which shall be recorded against and run with and encumber the property.
J. The Housing and Community Development Commission reviewed the Project
and the Original Agreement on November 10, 2010 and recommended that Council
approve it. The Housing and Community Development Commission reviewed
modifications to the Project on June 11,2014 and recommended that Council approve
it.
K. The Project has been environmentally assessed under Certifying Program
Environmental lmpact Report No. 03-01 with Attachments by a Joint Resolution of the
Council and Redevelopment Agency (Resolution No. 2003-19811627) adopted on June24, 2003 and has been determined to have or cause no adverse or reportable
conditions or effects pursuant to the California Environmental Quality Act.
O. 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
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income housing available at affordable rent, as defined by Cal. H.&S.C. Sections
50052.5 and 50053, to persons and families of low income, as defined in Cal. H.&S.C.
Section 50093 of Code; (vi) will be available to meet the replacement housing
provisions in Cal. H.&S.C. Section 33413; (vii) will apply funds solely within thé
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 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.
P. The Owner and the Agency have determined that this Agreement is not subject
to Article XXXIV of the California Constitution.
AGREEMENT
1. 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 fifty-five (55) years commencing
from the date Agency records the Certificate of Completion.
1.3 "Affordable Rental Housing" or "Affordable Units" means the thirty (30)
Units available at affordable rent, as defined by Cal. H.&S.C. Section
50052.5 (4), to persons and families of low 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. As
used in this Agreement, the term "Affordable Low lncome Rent" shall
mean annual rentals whose amount does not exceed the maximum
percentage of income that can be devoted to rent as set forth by Health &
Safety Code Section 50053, or its successor, which is currently thirty
percent (30%) of sixty percent (60%) of the Fresno Metropolitan Statistical
Area Median lncome adjusted for the family size appropriate for the Unit.
1.4 "Agency" means the City of Fresno in its capacity as housing successor to
the Redevelopment Agency of the City of Fresno.
1.5 "Agreement" means this Amended and Restated Owner Participation
Agreement.
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1.6 "Budget" means the BudgeVFinancial Plan for the Project attached hereto
and incorporated herein as Exhibit "C" (the "Budget").
1.7 "Certificate of Completion" means that Certificate issued in the form
attached as Exhibit "D" to Owner by Agency evidencing completion of the
Project for purposes of this Agreement.
1.8 "City" shall mean the City of Fresno, California, a municipal corporation.
1.9 "Conditions Precedent of Agency" means the conditions precedent to the
effectiveness of this Agreement against the Agency.
1.10 "Day" whether or not capitalized, means a calendar day, unless stated
otherwise.
1.11 "Deed of Trust" shall mean the Deed of Trust recorded against the
Property securing the Loan, as shown in Exhibit "H" of this Agreement.
1.12 "Default" means a party's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.13 "DiFector" means the Executive Director of Agency.
1.14 "Entitlements" mean all permits and fees that the City, County of Fresno,
and other governmental agencies with jurisdiction over the Project, the
lmprovements or the Property may require.
1.15 "Effective Date" means the date of complete execution of the Agreement
following Agency Board approval thereof.
1.16 "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.
1.17 "Funding Source" means the Loan and other funding sources secured by
Owner to construct the lmprovements.
1.18 "Financing Plan" means the Budget including sources and uses of funds
sufficient for Owner to complete the lmprovements according to the
Performance and Payment Schedule.
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1.19 "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 substarìce," 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) friabre
asbestos, (g) polychlorinated byphenyls, (h) listed under Article g or
defined as "hazardous" or "extremely hazardous" under Article 11 of Title22, california Administrative code, (l) designated as "hazardous
substances" pursuant to section 311 of the clean water Act (33 u.s.c.
51317), O defined as a "hazardous waste" pursuant to Section 1004 of the
Resource conservation and Recovery Act(42 u.s.c. 56901 ef seq., or (k)
defined as "hazardous substances" pursuant to Section of the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. 59601 , 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 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
the lmprovements; and (2) certain substances which may contain
chemicals listed by the State of California pursuant to Health and Safety
Code Sections 25249.8 et seq., which substances are commonly used bya 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.
1.20 "Household" 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 lmprovements in
such amounts, and upon such terms and conditions specified in this
Agreement.
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1.22 "lmprovements" mean the construction of the Affordable Units and other
units that Owner will complete on the Property as part of the Project,
including associated fencing, and landscaping improvements.
1.23 "Law" means the Community Redevelopment Law of the State (California
Health and Safety Code Sections 33000 ef seq.).
1.24 "Loan" means the principal sum of $870,000 provided by Agency to Owner
as a loan, upon the terms and conditions set forth in this Agreement and
the Promissory Note attached hereto as Exhibit "G" to be secured by a no
worse than 3rd position deed of trust lien against the Property. As of the
Effective Date of this Agreement, the Agency has paid $435,000 to
Original Owner pursuant to the Original OPA, leaving a balance of
$435,000 available for distribution. lf the deed of trust securing the
Promissory Note is recorded prior to the recordation of the deed or deeds
of trust securing the other Funding Sources consistent with the Financing
Plan, the Agency shall subordinate such deed of trust to such other
deed(s) of trust, so long as the Agency deed of trust is no worse than third
position.
1.25 "Loan Documents" are collectively this Agreement and all exhibits and
attachments thereto any deed of trust given as security, as they may be
amended, modified or restated from time to time.
1.26 "Material Change" means a change, modification, revision or alteration to
the Loan 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 Loan funding provided in this
Agreement shall not constitute Material Change(s).
1.27 "owner" means Fultonia wesvcedar Heights scattered site, Lp or an
affiliated company in which it is a Member, Managing Member, or
Principal.
1.28 "Plan" means the Redevelopment Plan for the Freeway-99 Golden State
Corridor Redevelopment Project Area.
1.29 "Project" means the development of forty-five (45) residential Units on the
Property, of which thirty (30) Units shall be Low lncome Housing.
1.30 "Project Area" means the Freeway-99 Golden State Corridor
Redevelopment Project Area.
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2.
1.31 "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.
1.32 "Property" means the real property described in Exhibit "4," attached
hereto.
1.33 "Release of Restrictions" means a release of those covenants, conditions
and restrictions contained in this Agreement.
1.34 "Restrictions" means the affordability restrictions contained in this
Agreement and Exhibit F 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.
1.35 "Performance and Payment Schedule" means the schedule attached as
Exhibit "8," 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 is subject to the requirements in this
Agreement.
1.36 "Security Financing lnterest" means a security interest which Owner
grants in the Property and the lmprovements thereon before the Agency
issues and records a Release of Restrictions.
1.37 "Unit" mean a residential unit constituting the Project.
1.38 "Urban Core" shall mean the area within the Agency's Merged Project
Area No. 1 boundaries, including any of the following project areas:
Central Business District, Chinatown Expanded, Convention Center,
Fulton, Jefferson, Mariposa, South Van Ness lndustrial, West Fresno l, or
West Fresno ll; and, the residential portion of the Freeway-99 Golden
State Corridor Redevelopment Project Area.
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, or further funding, under this Agreement. Agency, in writing by its
authorized representative, may waive any condition or agree to extend the time
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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 has entered into, and provided 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(ies) to each such agreement, other than owner, agree to make
reasonable efforts to (i) notify Agency immediately of any event of default
by owner under such agreement; (ii) notify Agency immediatery of
termination or cancellation of such agreement; and (iii) provide Agency,
upon Agency's request, an estoppel certificate certifying that such
agreement is in full force and effect and Owner is not in default under such
agreement.
2.3 Owner has submitted evidence that the combined monies from the
Funding Sources are not less than the greater of a total development cost
of $9,250,561 or the amount which Agency determines is necessary to
complete the Project, including evidence of a loan commitment for such
Funding Sources acceptable to the Agency. lf Agency determines that
said funds are not sufficient to complete the Project, Owner may satisfy
this condition as agreed to by Owner and Agency in writing.
2.4 Owner will submit its Financing Plan to the Agency for review and
acceptance provided that the purpose of Agency's review is solely to
confirm Owner has sufficient funds available to complete the
lmprovements and maintain Project as this Agreement requires.
After Agency accepts the Financing Plan, owner will not make any
Material Change in the Financing Plan without first submitting such
change to Agency for review and acceptance, which shall not be
unreasonably withheld, delayed or conditioned.
2.5 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 harmress from any
damages or claims arising out of Owner's inspections and tests.
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2.6 Should Owner's property assessmenUinspection reveal any Hazardous
Materials or environmental conditions 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 or
environmental conditions 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.
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.
2.7.1 Owner will have signed and delivered all documents required
hereunder.
2.7.2 Owner will have received all land use and development approvals,
variances, permits and the like required by this Agreement.
2.7.3 Owner shall be in full compliance with the Performance and
Payment Schedule.
Owner will have provided proof of insurance as required by this
Agreement.
This Agreement, the executed Deed of Trust, and the executed
Restrictions shall have been 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
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.
ln addition, Owner shall install and use equipment and implement and
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3.2
follow procedures that are consistent with reasonable standards for the
disclosure, storage, use, removal and disposal of Hazardous Materials.
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
respecting the environmental condition of the Property.
lf 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 correspondence with
governmental agencies relating to the 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.
From the Effective Date of this Agreement, owner shall indemnify, hold
harmless and defend Agency, city and each of their officers, officials,
employees, agents and volunteers from any and all claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, reasonable attorneys'
fees), arising out of (i) the presence, release, use, generation, 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 (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 on, under, in or about, 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. owner's obligations under the preceding sentence shall
apply regardless of whether Agency, City or any of their officers, officials,
employees, agents or volunteers are negligent, but shall not apply to any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency,
3.3
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fine, penalty, punitive damage, or expense caused solely by the gross
negligence, or caused 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 rentalas Affordable Rental 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 Rental
Housing, as reasonably determined by Agency, which approval shall not
be unreasonably withheld, delayed or conditioned.
4. DEVELOPMENT OF THE PROPERTY.
Except as set forth in this Agreement, before Owner begins constructing
the lmprovements 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
lmprovements or the Property may require.
4.1.2 ADA/Barriers to the Disabled. The Project shall comply with
all applicable federal, state and local accessibility requirements.
Scope of Development and Project Design. Owner has submitted a
general or basic concept drawing to Agency, which Agency has approved,
and a copy of which is attached as Exhibit "E" (the "Scope of Development
and Project Design"). Owner will complete the lmprovements on the
Property in one phase, according to the Scope of Development and
Project Design, and the plans, drawings, and documents that Owner
submits to Agency. Owner shall carry out construction of the Project
including the lmprovements in accordance with all applicable local, state
and federal laws, codes, ordinances and regulations, including without
limitation all applicable state and federal labor standards.
4.1
4.2
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4.3 Books and Records. Owner shall make available for examination at
reasonable intervals and during normal business hours, all books,
accounts, reports, files 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 Agency's expense,
unless such audit shows a materially significant discrepancy in information
reported by Owner to Agency in which case Owner shall bear the cost of
such audit. Owner shall also reasonably cooperate with and assist the
Agency in Agency's compliance with any applicable audit requirements of
the California Redevelopment Law including California Health and Safety
Code Sections 33080 and 33080.1. This section shall survive for a period
of four years after the expiration or termination of this Agreement.
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 of California 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 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. This section shall survive
for a period of four years after the expiration or termination of this
Agreement.
Owner shall cause the issuance of all necessary discretionary
governmental permits, approvals and entitlements, close any implicated
funding or other escrow and beginicomplete construction of the
lmprovements according to the Performance and Payment Schedule.
4.5.1 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
4.4
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4.6
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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 in the
Performance and Payment Schedule the Project completion date.
As a condition precedent to any extension requested by Owner,
Owner will give the Agency notice within ten (10) days after any
cause for delay 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.
Subject to the terms of this Agreement, the Loan shall be disbursed to
Owner according to the Performance and Payment Schedule. All Loan
funds shall be used solely for costs of the Project and lmprovements.
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 lmprovements. When Agency reasonably
determines Owner has completed the lmprovements as required in this
Agreement, the Plan, and the Law, Agency will furnish Owner with the
Certificate of Completion. 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 lmprovements 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 lmprovements, but will
take such interest in the Property subject to the continuing covenants set
forth in this Agreement.
4.7.1 lf Agency determines not to furnish the Certificate of
Completion, in accordance with Section 4.7 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.
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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.
4.7.2 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 lmprovements have
been released or, if not released, sufficiently bonded (i.e. 150%)
against as required by law.
4.8 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 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 Scope of Development and Project
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, Owner shall make up the deficiency.
4.9 lnspections. 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.
4.10 lf 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 4.10 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:
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4.11.1 Annual Reports. Annually, beginning in the year
following Agency's issuance of the Certificate of Completion, and
continuing until the expiration of this Agreement, on 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 form approved by
Agency. Such annual report shall include for each of the
Affordable Units: the rent, the annual income and the family size
of the Household 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 Owner's
compliance with this Agreement.
4.11.2 Annual Proof of lnsurance. Annually, beginning in the
year following Agency's issuance of the Ceftificate 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 lncome Certification and Reporting. Owner
shall include in leases for all Affordable Units provisions which
authorize Owner to immediately terminate the tenancy of any
Household one or more of whose members misrepresented any
fact material to the Household's qualification as a Household for
low income family. Each such lease shall also provide that the
Household is subject to annual certification, and that, if the
Household's annual income increases above the applicable limits
for low 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 the
Affordable Units that have been allocated to low income housing
tax credits by a housing credit agency pursuant to section 42 of
the lnternal 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
if the Project is subject to state or federal rules governing low
income housing tax credits, the provision of those rules regarding
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continued occupancy by, and increases in rent for, Households
whose incomes exceed the eligible income limitation shall apply in
place of the provisions set forth in subsection 4.12.1 above.
4.13 With respect to the Project, Owner shall comply with the following:
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 tenants, certification and re-certification
of Household size and income, evictions, collection of rents 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 entire Affordability Period. lf Owner
fails to comply the requirement to lease the Affordable Units only to
qualified Households during the Affordability period, as described in the
attached Form of Regulatory Agreement and Declaration of Covenants
and Restrictions attached hereto as Exhibit "F," Agency shall be entitled to
enjoin Owner from leasing the Affordable Units in the Project, as Owner
acknowledges that damages are not an adequate remedy at law for such
breach.
INDEMNITY; INSURANGE
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, 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, 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), 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
caused solely by the gross negligence, or caused 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.
5.2 Throughout the life of this Agreement, the Owner shall pay for and maintain
in full force and effect all policy(ies) of insurance required hereunder with
4.13.1
5.
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an insurance company either (1) admitted by the California lnsurance
Commissioner to do business in the State of California and rated not less
than "A-Vll" in Best's lnsurance Rating Guide, or (2) authorized by the
Agency's Risk Manager or hislher designee. The following policies of
insurance are required:
5.2.1 Until the Certificate of Completion is recorded,
Builders Risk (Course of Construction) insurance in an
amount equal to the completed value of the project with no
coinsurance penalty provtstons.
5.2.2. Following the recording of the Certificate of
Completion, COMMERCIAL PROPERTY insurance which
shall be as broad as the most current version of lnsurance
Service Office (lSO) commercial Property Form Cp 10 30
(Cause of Loss - Special Form), with limits of insurance in
an amount equal to the full (100%) replacement cost (without
deduction for depreciation) of the lmprovements with no
coinsurance penalty provisions. Such insurance shall
include coverage for business income, including "rental
value", in an amount equal to the two (2) years of the annual
rent generated by the lmprovements. Coverage for business
income, including "rental value," shall be at least as broad as
the most current version of lnsurance Service Office (lSO)
Commercial Property Form CP 00 30.
Owner shall be responsible for payment of any deductibles contained in
any insurance policies required hereunder and owner shall also be
responsible for payment of any self-insured retentions. Any deductibles or
self-insured retentions must be declared to, and approved by, the
Agency's Risk Manager or his/her designee.
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 notice has been
given to Agency. Upon issuance by the insurer, broker, or agent of a
notice of cancellation, non-renewal, or reduction in coverage or in limits,
owner shall furnish Agency with a new certificate and applicable
endorsements for such policy(ies). ln the event any policy is due to expire
during the term of this Agreement, Owner shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less
than 15 calendar days prior to the expiration date of the expiring policy.
The Builders Risk (course of construction) and Property insurance
policies shall be endorsed to name Agency as a loss payee.
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53
Owner shall furnish Agency with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates
and applicable endorsements are to be received and approved by the
Agency's Risk Manager or his/her designee prior to Agency's execution of
this Agreement.
lf at any time Owner fails to maintain the required insurance in full force
and effect, Owner shall immediately discontinue all work under this
Agreement until Agency receives notice that the required insurance has
been restored to full force and effect and that the premiums therefore have
been paid for a period satisfactory to the Agency. Owner's failure to
maintain any required insurance shall be sufficient cause for Agency to
term inate this Ag reement.
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 indemnity 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 policies are 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 liability 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 this Agreement,
including all endorsements, with said copy certified by the undenryriter to
be a true and correct copy of the original policy. This requirement shall
survive expiration or termination of this Agreement.
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 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 said bonds at all time during which Owner is in full
compliance with this Agreement and the Project remains fully funded.
Until Agency issues the Certificate of Completion Agency will have access
to the Property, after reasonable notice to the Owner (except in
emergencies), without charge or fee, during normal construction hours, for
purposes of assuring compliance with this Agreement. Agency
representatives will comply with all safety rules while on the Project or the
Property.
5.4
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5.5 Owner will design and construct the lmprovements, and after that, 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.
5.6 Owner will take reasonable efforts to not permit any lien or stop notice to
be filed against the Property, provided Owner may reasonably determine
to contest any such lien or stop notice. lf a claim of lien or stop notice is
recorded against the Property or lmprovements, Owner, within 30 days
after recordation of a claim of lien or stop notice or within 5 days after
Agency's demand, whichever first occurs, will do the following:
5.6.1 Pay and discharge the same; or
5.6.2 Effect the release of such lien by recording and delivering to
Agency a surety bond in sufficient form and amount (i.e. 150%), or
othenruise; 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 bonded stop notice.
6. SECURITY FINANCING AND RIGHTS OF HOLDERS.
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,
61
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7
provided that Agency hereby approves the recommended security interest
of Owner's financial institutions, including their respective successors or
assigns, as described in the Financing Plan.
CONTINUING OWNER OBLIGATIONS
7.1 ln 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, âgê, pregnancy, childbirth or related medical condition,
medical condition (e.9., 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 Vll of the Civil Rights
Act of 1964, 42 U.S.C. Section 2000, ef seg., 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 lmmigration 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, ef seq., the California Equal Pay Law, Cal. Labor
Code Section 1197.5, Cal. Government Code Section 11135, the
Americans with Disabilities Acl,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. Owner will allow Agency representatives access to its
employment records related to this Agreement during regular business
hours and upon reasonable notice to verify compliance with these
provisions when so requested by the Agency.
7.2 Owner will pay before delinquency all ad valorem real estate taxes and
assessments on the Property, subject to the Owner's 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 on any interest in or to the Property or the
lmprovements. 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.
COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The
following covenants shall run with the land and shall bind Owner, and Owner's
8
')')-LL-
8.2
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
lmprovements, the 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 pursuant to this Agreement shall be
maintained as Affordable Rental Housing pursuant to this Agreement and
the Restrictions.
Owner and those taking under Owner will maintain the Property and all
lmprovements on site in reasonably good-condition and repair (and, as to
landscaping, if any, in a healthy condition), all according to the Scope of
Development and Project Design and related plans, as-amended from
time to time. Owner and those taking under Owner shall: (i) maintain all
on-site lmprovements according to all other applicable laws, rules,
ordinances, orders, and regulations of all federal, state, county, municipal,
and other governmental agencies and bodies having or claiming
jurisdiction and all their respective departments, bureaus, and officials; (ii)
keep the lmprovements free from graffiti; (iii) keep the Property free from
any accumulation of debris or waste material; (iv) promptly make repairs
and replacements to the on-site lmprovements; and (v) promptly replace
any dead, or diseased plants and/or landscaping (if any) with comparable
materials.
Agency will give Owner written notice of any breach of this Section 8.2.
Within 10 days from receipt of such notice, Agency and Ownerwill meet
and confer, and agree to corrective actions and a schedule of
performance for such corrective actions. Owner must cure the default
within the agreed schedule or within (a) 10 days after the Agency's notice
for any default involving landscaping, graffiti, debris, waste material, or
general maintenance on the Property; or (b) 30 days after Agency's notice
for any default involving the lmprovements. lf 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
the lmprovements and landscaping.
Agency may lien or assess the Property for the Agency's expenses in
protecting, maintaining, and preserving the on-site lmprovements and
-z)-
8.3
8.4
aesthetics 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 cure provided for herein will supplement the
noticing, hearing, and nuisance abatement order used by Agency. Owner
will promptly pay all such amounts to Agency upon demand.
From the Effective Date until the expiration of the Affordability Period,
Owner covenants to use and operate the Affordable Units on the Property
as Affordable Rental Housing pursuant to this Agreement.
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 of the Affordable Units.
All deeds, leases, or contracts concerning the Affordable Units shall
contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
ln deeds: "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."
ln leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns,
and all persons claiming under or through him or her, and this lease
is made and accepted upon and subject to the following conditions:
8.5
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"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 leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or
herself, 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,
sublessees, subtenants, or vendees in the premises herein
leased."
ln contracts. "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 premises, nor shall the
transferee himself or herself 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 of the premises."
8.6 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.
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, 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 othenruise expressly
provided in this Agreement, the noticing party shall not begin any
proceeding against the other party until the other party is given an
opportunity to cure the Default. The other party will have 30 calendar
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9.2
9.3
9.5
9.6
9.4
days after receiving the notice to cure the Default, or, if the pafty cannot
reasonably cure the Default within such 30 days, the other party must
begin to cure within the 30 days and diligently pursue the cure to
completion, whereupon there shall be no event of Default. Agency agrees
to give copies of any notice of Default to Owner's investor and lenders at
such addresses as provided in writing by Owner to Agency. Agency shall
accept cure of any Default from such investor and lenders on the same
basis as if tendered by the Owner.
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,
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. A party must bring any legal action in
the Superior Court of the County of Fresno, State of California, in an
appropriate municipal couft in Fresno County, or in the District of the
United States District Court serving Fresno County.
lf 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. lf 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.
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 the same
or different times, of any other rights or remedies for the same or any
other Default of the other party.
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 remed
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.
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To Agency:
Executive Director
Redevelopment Agency of the City of Fresno
2344 Tulare Street, Suite 200
Fresno, CA.93721
To Original Owner.
TFS lnvestments, LLC
7643 N lngram Ave #105
Fresno, CA 93711
To Owner:
Fultonia WesUCedar Heights Scattered Site, LP
c/o CEO/Executive Director
Housing Authority of the City of Fresno, California
1331 Fulton Mall
Fresno, CA 93721
A party may change its address for notices, demands and
communications by giving notice of the new address as provided in this
section. The notice shall be deemed given three (3) business days after
the date of mailing, or, if personally delivered, when received.
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 "Owrìer" 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 to any public agency 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.
-27 -
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, Constitutional and/or local law provide othen¡vise, or the context
othenryise 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 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 lf 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 party 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 lf 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 othenryise.
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,
-28-
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-party beneficiaries of this Agreement, rather
each such person shall be deemed to 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 action against Agency under any
circumstances. Except as provided by law, or as othenruise agreed to in
writing between Agency and such person, each such person shall be
deemed to have waived 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 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 catry 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 ln the event of any conflict between the body of this Agreement and any
exhibit or attachment to it, the terms and conditions of the body of this
Agreement will control.
1 0.1 8 lnvestor-required Provisions.
a. Agency agrees that any partner of Owner shall have the right, but
not the obligation to cure any event of default and such cure shall be
-29 -
accepted by Agency on the same basis as if tendered by the defaulting
party.
b. All notices by Agency to Owner shall be concurrently sent to the
Owner's limited partners at an address that Owner shall deliver in writing
to Agency.
c. Agency agrees that the removal and replacement of the general
partner of Owner by the limited partners for cause under the Owner's
Agreement of Limited Partnership, as may be amended and restated after
the date hereof, shall not constitute a default or breach of any documents,
instruments or agreements evidencing the loan from the Agency; provided
that, an affiliate of Owner's limited partner is the replacement general
partner or if such replacement is not an affiliate of limited partner, the
replacement general partner is reasonably acceptable to the Agency.
d. Agency agrees that its consent shall not be required for transfers of
limited partnership interests in Owner.
10.19 Condition Precedent. This Agreement is contingent upon and shall
not be effective until Owner is granted Low lncome Housing Tax
Gredits. lf Owner is not awarded Low lncome Housing Tax Gredits
by December 31 , 2014, this Agreement shall be void and the Original
OPA shall remain in full force and effect.
lSignatures on following page.l
-30-
lN WITNESS WHEREOF, Agency, Original Owner, and Owner have signed this
Agreement, and the Agency has approved this Agreement, on the dates and in the year
set forth below
AGENCY:
CITY OF FRESNO, a Municipal Corporation,
ln its capacity as Housing Successor to the
Redevelopment Agency of the City of Fresno
ATTEST:
WONNE SPENCE, CMC
City Clerk
APPROVED AS TO FORM;
DOUG T. SLOAN
City Attorney
Date:
ORIGINAL OWNER:
TFS INVESTMENTS, LLC, a California limited liability company
Name: Terance Frazier
Title: Managing Member
(Attach notary certificate of acknowledgment)
Marlene Murphey,
Executive Director
Deputy
- 31 -
CALIFORI\IA ALL-P URPO SE,
CERTIFICATE OF ACKN{OWLEDGMENT
who proved to me on the basis of sa f, whose nam bscribed tothe within instrument and acknowt ¡the same in authonzed
which the person acted, executed
I certiry under PENALTY oF PERJURY under the laws of the State of califomia thar the foregoing paragraphis true and correct.
State of Califomia
County of o
before me,
personally appeared
WTTNESS my hand and official seal.
EMMA L. EÂK€R
NOTARY PUAUC . CAUFOFT.¡N
coMMlssloN # 193.1980
FRESNO COIJNTY
My Comm. Ê(P. MaY 3l' æ15
(Notary Seal)
(Here insert name title of tbe officer
e
Sipatrue of Notâ¡y Public
ADDITIONAL OPTIONAL TNFORMATION
DESCRIPTTON OF TT{E ATTACFIED DOCLIÀ4ENT
(Title or description of attached docment)
(Title or dacription of attached do",-*t "*G*[
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY TT{E SIGNER! hrdividuat (s)
¡ Corporate Officer
(Titte)
! Partne(s)
tr Attorney-in-Fact
! Trustee(s)
! Other
INSTRUCTIONS FOR COMPLETING THIS FORMAny acknowledgment completed in California must contain verbiage eractly osappears above in the notary seclion or a separote acknowledgment'nr^ Ã,r1, t)properly completed and auached to that docment. The on'íy *ríp,ro, I i "be recorded outside of Califomla. ln such instances. qny altema-t¡venl verbiage as may be printed on such o docunent so long as lhenol re4uire lhe notaty lo do something.that is illegølfor a iotary incaldornia (i e cttifying the aulhorized cdpacity oj the signe4. preue check thedocwnent carelully for proper notqrial wording utt Ltøch ,ii, ¡or^ ( required.
' s-bate and county information must be the Søte ald comty where the documentsigne(s) personally appeared befo¡e the notary public tor ack¡owredm*f - '
' Date of notarization must be the <l¡te that the sipe(s) personally appeared whichmust also be the sarne date the acknowledgment is comilaed.. The nota¡y public must print his or hq name as tt appeaà within his or hercommission followed by a comma and then you titte (notary public). Print the nam{s) of docment signe(s) who personally ap[Hr at the time of
.
notarization'
plur forms by crcssing off incorect forns (i.e.
the cor€ct Foms. Failu¡e to corrætly indicate this
n of document mordrng
ible.
ifa
the county clerk the signaturc on file with the ofñce of
+ Additio¡al infomation is not requi¡ed but could help to ensure rhis
. aclnowledgment is not misused or artâched to a difü¡enidocument
1. . Indic¿te title or t)¡pe of a@ched documenÇ number of pages and daL* the signer. lr úe clà¡rn'ed
"rp""ìÇ ¡, "¡ secu¡el (ie' cEo' cFo' SecretarY)'
2fi)8 Versioo CAPA vl2. 10.07 800-873-9865 www.NotaryClasses.com
CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
State of California
County of FRESNO
On June 26 2014 before me, JAMES SWEETEN, Notary Public, personally appeared
TERANCE FRAZIER, who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is t correct. WITNESS my hand and official seal.
Signature (Seal)
)
)ss.
)
OWNER:
FULTONIA WEST/CEDAR HEIGHTS SCATTERED SITE, LP, a CalifoTnia IiMitCd
partnership
By: Silvercrest, lnc., its managing general partner
By. Housing Authority of the City of Fresno, California, its administrative general
partner
Attachments.
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Legal Description of Property
Performance and Payment Schedule
BudgeUFinancial Plan
Certificate of Completion
Scope of Development and Project Design
Form of Regulatory Agreement and Declaration of Covenants and
Restrictions
Form of Promissory Note
Form of Deed of Trust
Title: Treasurer
Title: CFO/Deputy Director
- tz -
CALIFORNIA
ALL.PURPOSE ACKNOWLEDGMENT
State of California
County of FRESNO
onJune26,2014,beforeme,W,NotaryPub1ic,personallyappeared,
TRACE\ilELL HANRAHAN
who proved to me on the basis of satisfactory evidence to the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certiff under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Comnl¡¡ion # 1956{05
l{olary Public - Crlllornl¡
Frcrno Counly
(Notory Seal)
hand and official
Description of the Attached DocumenT (optionol)
Owner Participation Agreement
Title or description of ottoched document
Number of Pages Document Date
City of Fresno Housing Successor Agency and TFS lnvestments, LLC
(Addition o I I nformotion )
EXHIBIT "A''
LEGAL DESCRIPTION OF PROPERTY
The Fultonia V/est Property is located at 54I-545 N. Fulton Street, Fresno, CA93728
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF FRESNO, CITY OF FRESNO, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
LOTS 15,76,17, AND 18 IN BLOCK 1 OF BLOOMINGTON ADDITION TO THE CITY OF
FRESNO, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 3, PAGE 6 OF
RECORD OF SURVEY. FRESNO COUNTY RECORDS.
APN: 452-274-05
PARCEL TWO:
THE NORTH 13 %FEET OF LOT 10 AND ALL OF LOTS II,12,13, AND 14 IN BLOCK 1
OF BLOOMINGTON ADDITION TO THE CITY OF FRESNO, ACCORDING TO THE MAP
THEREOF RECORDED IN BOOK 3, PAGE 6 OF RECORD OF SURVEYS, FRESNO
COUNTY RECORDS.
A NOTICE OF VOLUTARY PARCEL MERGER, APPROVED BY THE CITY OF RESNO
WAS RECORDED MAY 31,2011, DOCUMENT NO. 2011-0072808, OFFICAL RECORDS.
APN: 452-274-16 (NEW ASSESSORS NUMBER)
4s2-274-06 AND 542-274-07 (OLD ASSESSORS NUMBERS)
The Cedar Heights Property is located at 4496-4538 E. Hamilton Avenue, Fresno, Califomia
93102,
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COLTNTY OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOWS:
THE WEST I2O FEET OF LOT 11, OF GORDONDALE, ACCORDING TO THE MAP
RECORDEDIN BOOK 8 OF PLATS, PAGE 45, IN THE CITY OF FRESNO, COUNTY
OF FRESNO,STATE OF CALIFORNIA.
APN: 471-220-557
1
EXHIBIT ..B"
Performance and Payment Schedule
SCHEDULE OF PERFORMANCE
Items Comoleted Time for Performance
Estimated
Date
Original Owner executes and delivers
Agreement and Promissory Note, Deed of
Trust and Regulatory Agreement and
Declaration of Covenants and Restrictions
to Agency (the "Loan Documents").
Within _ days after receiving
Agency Board approval of the
Agreement.
03t04t2011
lnitial Loan Disbursement. Agency
executes the Loan Documents as
applicable, and records such documents,
with the exception of the Promissory Note
and shall make the initial disbursement of
loan proceeds in the amount of $435,000.00
to the Original Owner.
04t11t2011
Re-Submission - Site Plan Review. The
Owner shall submit Site Plan, Operating
Statement, Architecture and related CEQA
documents to the City of Fresno for review.
07 t01t2014
Re-Submission - Buildinq Plans. The
Owner shall submit Building, Civil
Engineering and Fire Protection Plans to
the City of Fresno for review.
09t30t2014
Commencement of Construction.
Construction shall commence on the
improvements to be constructed on the
Property.
03t30t2015
Final Remaining Loan Disbursement. The
Agency shall make the final loan
disbursement to the New Owner in the
amount of $435,000.
Two (2) days prior to Financial
Closing, Agency to deposit funds
into Escrow Account.
On or
before
03/30/20'15
Completion of Construction of Owner's
lmprovements. The Owner shall complete
construction of the improvements to be
constructed on the Propertv.
Within the specified months after
commencement thereof by the
Owner, not to exceed 14 months
after commencement of
05t3012016
1
construction
lssuance - Certificate of Completion. The
Agency shall furnish the Owner with a
Certificate of Completion on the Project.
Within 15 days after receipt of
Certificate of Completion from
Agency, Owner shall execute and
return said Certificate of
Completion to Aqencv.
06t15t2016
lmprovements shall be completed withín 14 months of the start of construction.
Construction shall commence by: March 30, 2015
Construction shall be completed by: May 30, 2016
SCHEDULE OF AGENCY LOAN REPAYMENT
Month 660 after the Project Completion Date
set forth in the Certificate of Completion: $870,000
.,,
Project Concept
Land Square footage
Land Acreage
Gross Building Square Footage
(plus comm
Residential Square Footage room)
Total Residential Units
Density (du/ac)
Net Rentable
Unit Mix and Rents
Affordable @60%ofANII
#
Unic SF
2 697
I 587
2 750
I 752
15 754
I 756
I 758
2 763
2 765
I 785
r 797
I 903
5 1083
3 1083
4 1212
2 I23l
44 38,584
1
7t,874
t.6s
40,s34
40,339
45
27.3
38,s84
30
Net Rent PU
$ 420 00
$ 472.00
$ 563.00
$ 563 00
$ s63 00
$ s63.00
$ 563.00
$ 563 00
$ s63.00
$ s63.00
$ s63 00
$ 563 00
$ 361 00
$ s7s 00
$ 575 00
$ 575 00
UnitMix
I BR/l BTH
I BR/l BTH
2 BR/l BTH
2 BR/I BTH
2 BR/I BTH
2 BR/l BTH
2 BR/l BTH
2 BR/l BTH
2 BR/l BTH
2 BR/l BTFI
2 BR/l BTH
2 BR/l BTH
3 BR/l BTH
3 BR/l BTH
3 BR/l BTT{
3 BR/1 BTH
Manager Unit
(3) 1-Bedroom
(27) 2-Bedroom
(14) 3-Bedroom
Monthly Gross Rent Residential
Annual Gross Rent Residential
Amual Vacancy (7%)
Annual Effective Rent
Annual Operating Exp.
$ 1,312.00
$ r5,201 00
$
$ 23,493.00
$ 281,916.00
(r9.734.r2)
$ 262,181.88
216.920 00
45,261.88
45,261.88
Total Annual NeI Operating Income
Debt Service Bank Loan
C¡sh Flow
EXHIBIT "C''
BudgeUFinancial Plan
6/4/20r4
Land Cost $ 335,146
Soft Cost and Impact Fees S 1,342,982
Construction Costs $ 5,504,819
DeveloperFee $ 1,102,636
Contingency and Reserves $ 487,286
Architectural./EngÆnv S 477 -692
TOTÄ.L DEVELOPMENT COST $ 9rs0,561
Permanent Sources of Funds
LIHTC Equity 67% $ 6,190,561
RDAFunds 9% $ 870,000
Fresno IIA Seller Financing 1% $ 90,000
HOME Funds 23% $ 2.100.000
Total Sources ofFunds 100% $
1
trVe¡ t/C¡¡l¡ r
Lmcì Square lontagc 71.874
lnnel r\creage l,ú5
Oross lluílding Square FoÐlagë 40.51{
Resídenti¿l Squaro lìoafagë (pius comm room 40,3-ì9
'I'otnl ResìdmtÌal Lrnils 4-l
Density (du/¡c) 21.3
Nel Rentable Squüß ['6luc ]8-584
I lníl lllix an¡l R¿nls
Allordablc ll) 50% of Âlvll
Äffordable i{ 6096 of Atr'll
lldt-¡¿i¡
I BR,¡I BTTI
r tlRn B]'H
2Brul Btt{
2 BR/I BTI'I
2 BR./l B'ff{
2 BRr ßTil
2 B¡1,',r B't't"l
2 BR/I BTIì
? Iì& I Bllt
2 BRíI BTH
2B&i r Bllt
2 ßRrl Bltl
3 tlRll Il'tH
-l BR/t tsÎH
J BR/I BT}I
-3 ll&/l B'ftI
É Í.Jnír¡ SF
2 {¡97
I 58't-
2 750
I 752
t5 154
r 756
I 7iE
). '16\
Net Rcnt [U
$ 420.00
$ 47?.00
$ 563.00
s 563.00
$ 563 00
s _í,3.00
$ 56i.00
S 5fij,00
l8
7 1(¡-< 5 5(r3 00r ?85 S só3,00
1 t-97 S 5ó:i.00
I 90-ì .$ 56.3.00
5 t083 S -rói 00
3 1083 $ 5?5 00
4 t2l2 5 575.00
2 lz-r7 $ 5?5.Q044 3&.5E4
lnthlyhnl:¡l
(l) l-Bedroor¡ $ 1..112.00
(?7) 2-Bedroorn S 15.101.00
(14) 3-Bedrmnr S 6,980.00
Oross Rent Residcntial S 2-1,493.00
(ìröss Rent Residenlial S 28!.916 00
Annual Vacnncy(7o¿) (19,7,1!J2)
Annuål Eflìctive Renl $ ?ó?.181.8$
Ânnu*l Opemtilg Exp lll:,?"ìLll!l
TÒtúl ,.lnnûill Nê, Qpercting httune 45,261,88
I)cht Sen íce tlank l,nrn
C¡sh Flo* 45,261.88
leieht¡ Proiert 6/4/2t1t4
FMV hased on Crpi(elízation Rat ó.09/o $ 754.365
l,TV based on Dereloornenl Ccrs 2]"/o
t,lHTC Ëquity 67-olo $ 6.190-56t
RD,A, liu¡ds 99í, $ B/-0.000
H. Seller'Fina¡cìng lo.o S 90.000
Funds ?3?ó $ 2. I 00.00ú
IÍvr$tmcnl l\rdrJii
:inr{s l.¿vevascd rvith HöMF] [nvestmcnt S 7- 150.561
ler f{Oñ18 dolltr Leyerâsc Rat¡o S 3.4 I
Iital Cost prr Rcsidcntial Squate Foot í 229
-'ost Dcr Unit S 2t5,.5ó8
'pcrllt{OMlìLjnits S (90.909
,and Cosl S 31-5-14f,
]fl Cost aìrd lmpâct tes $ 1.34?-9$:
onslruction Costs $ 5.504.819
Developcr l:ec S l.ì03.636
ineency ¿nd Resenes $ 487.28ó
Architcclural/ling/lì,nv S 4?7-692
Â!- oflvELoP: tEN'r cosT s 9.t-5[.561
NJ
Fultonia WesUCedar Heights
15.YÉAR CASH FLOW ANALYSIS
6rogs Polenliêl Rènlal lnffi
túlsD lrcare
GROSS POTENT}AL IÑCOME -
IÕ1'AL VÂCANCY LÓSS
EFFECTIVE GFOSS INCOME
ilÍ,73,{) i2r t1?i00
l1$ lì¡) {r:0.'lt$t
262.1A2 267.4t6
000
{?{l iì¡2} {fl.i:û1) ltl.l?s)
218,2!0 283,7C4 289¡70
!22.i;ìtl
0
122.224't
2r!.2s9
lô 7
6-4.14
357,538 3&4,688 371,9920óc
000
i15 ì\?ßi {1rt.$211 t2ri.8.1,1ì
312.910 33s,r60 !d5,ö¿3
?99.'172
1A
305.1s5
0
311,258
0
317,493
0
323,â33 3:vJ,310 336,916
,t 55 3ll 317 323-83J
os-
Migc lnære ô
307.188
i:.ì;,3i3 i:
a
l?3. s¿ì â1
313,332
Tolal OF€rating Éxpenseô
ReFlscemgll ReseNe
fÔIÂL ËXPENSÉS A RESERVÉS
NÊ1 ÓPERATING INCOMÉ
Eank Loân
Tolêl Requirêd Dêbl SÉrvloè
RÊSIDUAL CASII FLOW
203,420 209.523 228-951 235.¿2Ã 242.8S4 250 181 257.686 2A5.417 2Bf 581 290.025
248
307.691
20.1A $i¿
I
L^)
I
45,?62
N'A
43,998
NiA
42,844 41,195
NIA
3S,649
NtÄ
38,000 36,246
NIA
34,380
NlÂ
32,¡100 30,300
NtÀ
28,07€
N'Ä
25t722
NlÀ
23,234
NTA
20,606
N/À
r7,832
N¡Á
0
5.000 5.150 5.305 5..16d 5,628 5,79Æ 5.970 6,149 6,334 6,52¿ 6.7?0 6,92J 7i2A 7,343 7.sß3
10,000 10.300 10 609 10,927 11,255 11.5S3 11,941 12.29! 12.668 13,048 13,43S 13,842 14'258 13'263 1q2-10
12,105 ',r'r,410 ',10.692 9922 S,106 8,244 7,334 ô,373 5 359 4,291 3 167 1'983 739
1s.131 14.274 13,365 12,102 I f.383 10,306 9,167 7,S66 6,639 5,384 3,359 2'479 924
2.06! 1.833 1.593 1.340 f.0?3 792 4S6
T
Acquisìtion Çosts:
Pu¡chase Price
Lìens
Closing. T¡lle & Recoding Cosls
Ëxtension FâYment
Other:
SUBTOTAL
Gonslruction
Bâs¡c Construçtioî Gontrãct
Bond Prem¡um
I nfrastruclure lmProvements
Hazardous Abate & Mon¡tor¡ng
Con3tructíon Conlìngeircy ( 5 o/o)
' SEE BELOW
Sales T¿xes
Other Constructioñ cûsls:,Ðemo-
Olhêr Construction Costs
SUBTO-TAL
Bevelopment
Apprejsai
ArchitectEngineer
Env¡ronmentel Assessmeñ
Geotèchn¡cl Study
Boundary & TopogtaPh¡c Survey
Lègal
Dèveioper Fee
Project Manâgement
Tax Credit Tæhnicâl Assìst¿rce
Other Ctnsultânts: Mârket 9tudY
Other:-Soft Cost Conl¡ngencY-
SUBTOTAL
Olher Development
Rea Estãt€ Tax
lnsilrance
Rêlo€iion
B¡dding costs
Permits, Fe* & Ì'lookuÞs
lmpaúl/Miligation Fees
Devèlopment Utiliìies lnstãtl
Consiruction Loân Fees
Construction lnteresl
O(her Tãx Credif lnveslor Fêes
LIHTC Fêes
Accouñt¡ng/Audit
Mårketing/Lêasing Expenses
Cãnying Gosts al Rênt UP Rèserue
OÊ€ral¡ng Reserues
Replacement Reserves:
SUBTOTAL
Tolâl Develûomenl Costs
Page 1 of T
4
s20.75?s20,757 s20.757
s32;000 s32.000 s37 000
1 7n4
3¿5t.û50 451.050 ¿51 050
1 i5.000
817.443 77 443 77,443
s16,2252 162.252 162,252
20.{ìo0 20,000 2û 000
9A1,224 41 224 41.224
325.0O0 25.000 ?5,000
320.4r 5 )Õ a1 20.{15
s25,000 25.000 25,000
Sl08,¡l60 1 08.460 108,460
170 305 I 70 305 0 I 170.305
EXHIBIT "D''
Certificate of Completion
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno, as Housing Successor to the
Redevelopment Agency of the City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca.93721
Attention : Executive Director
(sence ABovE THrs LrNE FoR REcoRDen'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.
City of Fresno,
a municipal corporation in its capacity as
Housing Successor to the Redevelopment
Agency of the City of Fresno
By:
Marlene Murphey
Its: Executive Director
Dated:
5
Certificate of Completion
Fultonia West, 541-545 N. Fulton Street, Fresno, CA &
Cedar Heights, 4496-4538 E. Hamilton Ave., Fresno, CA
Scattered Site Residential Rental Project
RECITALS:
A. By an Owner Participation Agreement (the "Agreement") dated
I l, 2014 between Fultonia WesVCedar Heights Scattered Site, LP, a
California limited partnership ("Owner") and the City of Fresno, a municipal corporation,
in its capacity as Housing Successor to the Redevelopment Agency of the City of
Fresno ("Agency"), Owner agreed to construct certain residential units on the premises
legally described in Attachment "4" hereto (the "Property") and preserve the Affordable
Units, as defined in the Agreement as rental housing for Low- lncome Households 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 fifty-five
(55) year Affordability Period according to the terms and conditions of the Agreement.
B. The Agreement was recorded on 1,2014 in the Official
Records of Fresno County, California as lnstrument No.
C. Under the terms of the Agreement, after Owner completes the construction
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:
6
1. Agency certifies that Owner commenced the construction work on the
Project on I l, 20-, and completed the construction
work on the Project on
with the Agreement.
20-, and has done so in full compliance
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.
4. Nothing contained herein modifies any provision of the Agreement.
lN WITNESS WHEREOF, the Agency has executed this Certificate of
Completion as of this _ day of ,20-.
City of Fresno, a municipal corporation,
ln its capacity as Housing Successor to the
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: ,20
FULTONIA WEST/CEDAR HEIGHTS SCATTERED SITE, LP, a CalifoTnia limited
partnership
By: Silvercrest, lnc., its managing general partner
By
-7 -
By Date:
Name:
Title:
By: Housing Authority of the City of Fresno, California, its administrative general
partner
Name: Preston Prince
Title: Executive Director Date:
THE ABOVE PARTIES ARE TO SIGN TH]S INSTRUMENT BEFORE A NOTARY
PUBLIC.
ATTEST:
CITY CLERK
By:
Deputy Deputy
Dated:Dated:
By:
APPROVED AS TO FORM:
C¡TY ATTORNEY
By:
8
EXHIBIT A
LEGAL DESCRIPTION
The Fultonia West Property is located at 541-545 N. Fulton Street, Fresno, C/.93728
THE LAND DESCzuBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COLINTY OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOWS:
PARCEL ONE:
LOTS 15, 16, 17, AND 18 IN BLOCK 1 OF BLOOMINGTON ADDITION TO THE CITY OF
FRESNO, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 3, PAGE 6 OF
RECORD OF SURVEY, FRESNO COUNTY RECORDS.
APN: 452-274-05
PARCEL TWO:
THE NORTH 13 Y,FEET OF LOT 10 AND ALL OF LOTS T1,12,13, AND 14 IN BLOCK 1
OF BLOOMINGTON ADDITION TO THE CITY OF FRESNO, ACCORDING TO THE MAP
THEREOF RECORDED IN BOOK 3, PAGE 6 OF RECORD OF SURVEYS, FRESNO
COUNTY RECORDS.
A NOTICE OF VOLUTARY PARCEL MERGE,R, APPROVED BY THE CITY OF RESNO
WAS RECORDED MAY 3I,20T1, DOCUMENT NO. 2OII-0072808, OFFICAL RECORDS.
APN: 4s2-274-16 (NEW ASSESSORS NUMBER)
4s2-274-06 AND 542-274-07 (OLD ASSESSORS NUMBERS)
The Cedar Heights Property is iocated af 4496-4538 E. Hamilton Avenue, Fresno, California
93702,
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COTINTY OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOWS:
THE WEST 720 FEET OF LOT 11, OF GORDONDALE, ACCORDING TO THE MAP
RECORDEDIN BOOK 8 OF PLATS, PAGE 45, IN THE CITY OF FRESNO, COL]NTY
OF FRESNO,STATE OF CALIFORNIA.
APN: 471-220-557
1
EXHIBIT ..E'
SCOPE OF DEVELOPMENT AND PROJECT DESIGN
Fultonia West/Cedar Heights Scattered Site, LP is excited about the opportunity to
develop and build forty-five (45) units of quality housíng.
Like the City of Fresno and the RDA successor agency, we are committed to the
revitalization of neighborhoods in Southeast Fresno and South Tower. Over the
past couple years, the development team has worked with the RDA, architects,
and other partners to create a unique project which wíll help further the
transformations taking place in the respective neighborhoods.
The current development team is comprised of TFS lnvestments, LLC (SLP),
Housing Authority of the City of Fresno (AGP) and Silvercrest, lnc., an affiliate of
the Housing Authority of the City of Fresno (MGP). Marvin Armstrong is
contracted to complete the architectural work on the "Fultonia West" site and
R.L. Davidson, lnc., Architects, is under contract for the "Cedar Heights" site.
The proposed project consists of forty-five (45) apartment units, in two-story
structures, with the following unit mix:
Unit Type # Units Square Feet
Per Unit
3 bedroom /2bath-30%5 LO83-1237
3 bedroom /2baÌh - 45%9 7083-1237
2 bedroom/1 bath - 50%1-8 750-903
2 bedroom/l bath - 60%9 750-903
2 bedroom/l bath - N/A 1,754
1 bedroom/1 bath - 45%2 697
1 bedroom/l bath - 60%L 587
Total 45
All of the units will include amenities that are comparable to recently constructed
market rate units in the community. The construction and design of the project is
intended to serve a variety of families. The project's features, array of bedroom
1
s¡zes, income range, site amenities, location and empowering onsite services are
aimed to serve our target population.
Residents of Fultonia West and Cedar Heights will have access to interior
community spaces, outdoor play spaces for children and adult relaxation and
recreation places. A community room (1,00L square feet) at Fultonia West will
accommodate services for families and children, community events, and property
management-related functions. An onsite-manager will help manage and
maintain interior and exterior community areas at Fultonia West.
Thank you for the opportunity and we look forward to another successful project.
2
CEDAR HEIGHTS APARTMENTS
FAMILY APARTMENl COMi¡UNITY
FRESNO, CA
DEVELOPÊD BYj
HOUSING AUTHORIT'ÊS OF THE CIlY AND COUNTY OF FRESNO
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EXH¡BIT "F''
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
AS HOUSING SUCCESSOR TO
THE REDEVELOPMENT AGENCY
2344Tulare Street
Fresno, CA 93721
Attn: Executive Director
(Space Above This Line for Recordeis Office Use Only)
REGU LATORY AGREEMENT AN D
DECI-ARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS
AND RESTRICTIONS ("Agreement") is made and entered into this day of
, _, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO, a public body, corporate and politic ("Agency"), and Fultonia
WesUCedar Heights Scattered Site, LP, a California limited partnership ("Owner").
RECITALS:
A. Pursuant to an Amended and Restated Owner Participation Agreement by
and between Agency, Original Owner and Owner dated , 2014
(the "OPA"), Agency has provided to Owner financial assistance in the amount of
approximately Eight Hundred Seventy Thousand Dollars ($870,000.00) in loan funds
(the "Agency Assistance"), for the purpose of assisting Owner in the acquisition of real
property and the construction of a residential apartment complex thereon wherein one
hundred percent of the units shall be rented to low income households, on that certain
real property located in the City of Fresno, County of Fresno, State of California, more
particularly described in Exhibit rrArr attached hereto and incorporated herein by
reference (the "Property").
B. Pursuant to the OPA, Owner has agreed to construct and maintain a
rental apartment housing project consisting of forty-five (45) total residential units
-1-
(hereinafter referred to collectively as the "Project") on the Property. The Project is also
referred to in the OPA as the "Project," and is further described in the Scope of
Development and Project Design attached to the OPA.
C. Agency, City, and Owner now desire to place restrictions upon the use
and operation of the Project, in order to ensure that the Project shall be operated
continuously as a rental apartment housing project with thirty (30) of the units available
for rental by low income persons for the term of this Agreement.
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by
and for themselves, their heirs, executors, administrators and assigns, and all persons
claiming under or through them, that the Propefty shall be held, transferred,
encumbered, used, sold, conveyed, leased and occupied, subject to the covenants and
restrictions hereinafter set forth, all of which are declared to be in furtherance of a
common plan for the improvement and sale of the Property, and are established
expressly and exclusively for the use and benefit of the Agency, the residents of the City
of Fresno, and every person renting a dwelling unit on the Property.
AFFORDABILITY RESTRICTIONS RUNNING WITH LAND
ln addition to the covenants and conditions contained in the OPA, the following
California Community Redevelopment Law (California Health & Safety Code Section
33000 et seq.) affordability requirements shall be imposed upon the thirty (30)
Affordable Units on the Property funded under the Agreement and shall bind the Owner
and all purchasers of the Property and their successors until the date that is fifty-five
(55) years following recordation of the Agency's Certificate of Completion as defined in
the OPA.
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 Agreement, all of which are in furtherance of the Project,
the Agency's Community Redevelopment Law and Plan Area obligations including
Agency'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 Agency. All of the restrictions,
covenants and limitations will run with the land and will be binding on all parties having
2
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 Agency, 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, covenants, and limitations set forth
in this Agreement until the date that is fifty-five (55) years following recordation of the
Agency's Certificate of Completion.
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 Agency and shall run with the
Affordable Units upon the Property and be binding on any future owners of the Property
and inure to the benefit of and be enforceable by Agency. These covenants and
restrictions are as follows:
a. From the date of recordation of this Agreement until the expiration of
the Affordability Period, the thirty (30) Affordable Units funded under the OPA are to be
used as Low lncome Affordable Rental Housing and affordable replacement dwellings
as provided for in the OPA and this Agreement. Owner agrees to file a recordable
document setting forth the Project Completion Date and the Affordability Period as and
when determined by the Agency. Unless otherwise provided in the Agreement, the term
"Affordable Rental Housing" shall include without limitation compliance with the
following req u i rements:
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 Propefty shall
be leased only to natural persons, who shall occupy such as a principal
residence.
J
lncome Requirements. Each of the thirty (30) Affordable Units constituting
Low lncome Affordable Rental Housing upon the Property may be leased
only to (a) natural person(s) whose annual household income at the time
of initial occupancy is not greater than sixty percent (60%) of the most
recent annual median income calculated and published by HUD for the
Fresno Metropolitan Statistical Area applicable to such household's size,
and at an affordable rent for lower income households, consistent with the
applicable California Redevelopment Law, including California Health &
Safety Code Section 50053(bX3) (collectively, the "Low-lncome
Requirements").
lniunctive Relief and Recapture. Should any of the thirty (30) Affordable
Units constituting Low lncome Affordable Rental Housing upon the
Property not continue, at the time of initial occupancy, to satisfy the Low-
lncome Requirements, then, during the Affordability Period, such Unit(s)
shall be made available for subsequent lease only to Households that
qualify as a very low-income Household, as defined in California Health &
Safety Code Section 50105, for use as the Household's principal
residence.
2. Enforcement of Restrictions. Without waiver or limitation, the Agency shall be
entitled to injunctive or other equitable relief against any violation or attempted violation
of this Agreement, including the Restrictions, and shall, in addition, be entitled to
damages for any injuries or losses resulting from any violations thereof.
3. lncome Computation and Certification Reporting Requirements. Prior to each
Household's occupancy of an Affordable Unit, Owner shall comply with all of the
following requ irements :
a. lncome Computation. lmmediately prior to a Household's
occupancy of an Affordable Unit, Owner shall obtain and maintain on file
an lncome Computation and Certification form, attached hereto as Exhibit
"8," from each such Household dated immediately prior to the date of
initial occupancy in the Project by such Household. ln addition, the Owner
will provide such further information as may be required in the future by
the Agency. Owner shall use its best efforts to verify that the income
provided by an applicant is accurate by taking the following steps as a part
4
of the verification process: (i) obtain three (3) pay stubs for the most
recent pay periods; (ii) obtain a written verification of income and
employment from applicant's current employer; (iii) obtain an income
verification form from the Social Security Administration and/or California
Department of Social Services if the applicant receives assistance from
either agency; (iv) if an applicant is unemployed or did not file a tax return
for the previous calendar year, obtain other verification of such applicant's
income as is satisfactory to the Agency; and (v) obtain such other
information as may be requested by the Agency. A copy of each such
completed lncome Computation and Certification form shall be filed with
the Agency prior to the occupancy of an Affordable Unit by a Household
whenever possible, but in no event more than thirty (30) days after initial
occupancy by said Household.
b. lncome Recertification. lmmediately prior to the first anniversary
date of the occupancy of an Affordable Unit by a Household and on each
anniversary date thereafter, Owner shall recertify the income of such
Household by obtaining a completed lncome Computation and
Certification form based upon the current income of each occupant of the
Affordable Unit. ln the event the recertification demonstrates that such
Household's income exceeds the income at which such Household would
qualify to rent the Affordable Unit, such Household will no longer qualify
for Affordable Rent. Owner shall provide the Agency with a copy of each
such completed recertification with the next submission of Certificate of
Continuing Program Compliance, as specified herein.
c. Certificate of Continuing Program Compliance. Upon the issuance
of the Certificate of Completion and annually by October 31 of each year,
or at any time upon the written request of Agency, Owner shall advise the
Agency of the occupancy of the Project by delivering a Certificate of
Continuing Program Compliance, attached hereto as Exhibit "C,"
certifying: (i) the number of Affordable Units of the Project which were
occupied or deemed occupied pursuant to this Agreement by a Household
during such period; and (ii) to the knowledge of Owner either: (a) no
unremedied default has occurred under this Agreement; or (b) a default
has occurred, in which event the Certificate of Continuing Program
Compliance shall describe the nature of the default and set forth the
measures being taken by the Owner to remedy such default.
-5-
d. Maintenance of Records. Owner shall maintain complete and
accurate records pertaining to the Affordable Units, and shall permit any
duly authorized representative of the Agency to inspect the books and
records of Owner pertaining to the Project including, but not limited to,
those records pertaining to the occupancy of the Affordable Units.
e. Reliance on Tenant Representations. Each lease between Owner
and a Household shall contain a provision to the effect that Owner has
relied on the income certification and supporting information supplied by
the Household in determining qualification for occupancy of the Affordable
Unit, and that any material misstatement in such certification (whether or
not intentional) will be cause for immediate termination of such lease.
4. Acceptance and Ratification. All present and future owners of the Property and
other persons claiming by, through, or under them shall be subject to and shall comply
with the 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
such Restrictions were recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
5 Benefit. This Agreement and the Restrictions herein shall run with and bind the
Property for a term commencing on the date this Agreement is recorded in the Office of
the Recorder of the County of Fresno, State of California, and expiring upon the
expiration of the Affordability Period. The failure or delay at any time of Agency 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.
6. Costs and Attorney's Fees. ln any proceeding arising because of failure of
Owner or any future owner of the Property to comply with the Restrictions required by
this Agreement, as may be amended from time to time, Agency shall be entitled to
recover its respective costs and reasonable attorney's fees incurred in connection with
such default or failure.
6
7. 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 Agreement.
8. Severabilitv. The invalidity of the Restrictions or any other covenant, restriction,
condition, limitation, or other provision of this Agreement shall not impair or affect in any
manner the validity, enforceability, or effect of the rest of this Agreement and each shall
be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference in this Agreement and the Restrictions herein to the
masculine, feminine, or neuter gender herein shall, unless the context clearly requires
the contrary, be deemed to refer to and include all genders. Words in the singular shall
include and refer to the plural, and vice versa, as appropriate.
10. lnterpretation. The captions and titles of the various afticles, sections,
subsections, paragraphs, and subparagraphs of this Agreement are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Agreement or any provision hereof.
11. Capitalized Terms. All capitalized terms used in this Agreement, unless
otherwise defined herein, shall have the meanings assigned to such terms in the OPA.
12. Amendments This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real
property records çf the County of Fresno.
13. Notice. Any notice required to be given hereundershall be made in writing and
shall be given by personal delivery, or by certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses
as may be specified in writing by the parties hereto.
Agency.City of Fresno as Housing Successor to
Redevelopment Agency23 44 T ulare
Street, Suite 200
Fresno, CA 93721
Attn: Executive Director
7
Copy to.Agency Counsel
Fresno City Hall
2600 Fresno Street
Fresno, C492612
FU LTON IA WEST/CEDAR H EIGHTS
SCATTERED SITE, LP
c/o Housing Authority of the City of
Fresno, California
1331 Fulton Mall
Fresno, CA93721
Attn: CEO/Executive Director
Owner:
The notice shall be deemed given three (3) business days after the date of
mailing, or, if personally delivered, when received.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute one original and all of which shall be one
and the same instrument.
16. FURTHER ASSURANCES. 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.
IEND -- SIGNATURES ON NEXT PAGEI
-8-
lN WITNESS WHEREOF, the Agency and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized
representatives on the date first written hereinabove.
ATTEST:
CITY CLERK
Deputy
APPROVED AS TO FORM:
CIry ATTORNEY
Deputy
"Owrìer"
FULTON IA WEST/CEDAR H EIGHTS
SCATTERED SITE, LP, a California
limited partnership
By: Silvercrest, lnc., its managing general
partner
By
Date:
Name:
Title:
By: Housing Authority of the City of
Fresno, California, its administrative
general partner
By.
Name: Preston Prince
Title: Executive Director
''AGENCY''
CITY OF FRESNO,
a municipal corporation in its capacity as
Housing Successor to the Redevelopment
Agency of the City of Fresno
Marlene Murphey
Executive Director
By:
-9 -
IEND OF STGNATURESI
Attachments:
Exhibit A: Legal Description of Property
Exhibit B: lncome Computation and Certification Form
Exhibit C: Certificate of Continuing Program Compliance
-10-
STATE OF CALTFORNTA )
COUNTY OF
On
) ss.
)
before me,personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
ISEALI
STATE OF CALTFORNTA )
) ss.
COUNTY OF
On
)
before me,personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
ISEALI
ilt
- 11 -
EXHIBIT A
LEGAL DESCRIPTION
The Fultonia'West Properly is located at 541-545 N. Fulton Street, Fresno, CA93728
THE LAND DESCzuBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOV/S:
PARCEL ONE:
LOTS 15,16,17, AND 18 IN BLOCK 1 OF BLOOMINGTON ADDITION TO THE CITY OF
FRESNO, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 3, PAGE 6 OF
RECORD OF SURVEY, FRESNO COUNTY RECORDS.
APN:452-274-05
PARCEL TWO:
THE NORTH 13 % FEET OF LOT 1O AND ALL OF LOTS 17,12,13, AND 14 IN BLOCK 1
OF BLOOMINGTON ADDITION TO THE CITY OF FRESNO, ACCORDING TO THE MAP
THEREOF RECORDED IN BOOK 3, PAGE 6 OF RECORD OF SURVEYS, FRESNO
COUNTY RECORDS.
A NOTICE OF VOLUTARY PARCEL MERGER, APPROVED BY THE CITY OF RESNO
V/AS RECORDED MAY 31,2011, DOCUMENT NO. 2011-0072808, OFFICAL RECORDS.
APN: 452-274-16 (NEV/ ASSESSORS NUMBER)
4s2-274-06 AND s42-274-07 (OLD ASSESSORS NUMBERS)
The Cedar Heights Property is located at 4496-4538 E. Hamilton Avenue, Fresno, California
93702,
THE LAND DESCzuBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COLINTY OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOV/S:
THE WEST T2O FEET OF LOT 11, OF GORDONDALE, ACCORDING TO THE MAP
RECORDEDIN BOOK 8 OF PLATS, PAGE 45, IN THE CITY OF FRESNO, COUNTY
OF FRESNO,STATE OF CALIFORNIA.
APN: 477-220-557
-1-
EXHIBIT '8" TO REGUI-ATORY AGREEMENT AND
DECLARATION OF RESTRICTIONS
Redevelopment Agency
of the City of Fresno
Multi-Family Housinq Proqram
¡NCOME COMPUTATION AND CERTIFICATION
234É.Tula¡e Street
Suite 200
Fresno, CA 93721
www.fresnorda.com
559.621.7600
lncome Level of
Applicant (percent of
Area Median lncome)
Number of Bedrooms
(see table on page 2
for allowable rents)
tr 60% of AMIOwner Certification (Signature):
! 1'10% of AMIOwner has relied on the income certÌfication and supporting information supplied by the
Applicant in determining qualification for occupancy of the Affordable Unit, and any
material misstatement in such certification by Applicant (whether or not intentional) may
be cause for immediate termination of such lease
! 120% of AMI
Applicant Contact lnformation lnformation on primary lease
List all members of the household* proposed to live at the address
*Household is a group of related or unrelated persons occupying the same house with at least one member being the head of the
household lf roómmates, please complete above form as "Self'for each roommate. Use a separate page for additional household
members
Show income received from the following sources by all persons listed above. Do not show income from persons less than 14 years
of age
Contact Phone No.Other Phone No.
1
2
1
2
(if different)
1
2
(if different)
1
2
(if different)
Name
, FIRST, MIDDLE INITIAL
Yes Source of lncome
Person Receiving lncome (As
Shown Above)¡¡Wages or salary from employment
D !Earnings from self-employment
!¡Unemployment Compensation
¡Ll Social Security or Supplemental Security lncome (SSl)
!¡Veteran's Benefits
tr D Worker's Compensation
¡!Child support or alimony payments
¡!Pensions or Annuities/Railroad Retirement
¡D Property rental income
¡D Aid to Families w/Dependent Children(AFDC)
!n Dividends/lnterest
¡¡Other tvpes of income:
Total Gross lnconre
Total Household Members
being duly sworn, depose and say that l/we are
year-round occupants of (ADDRESS, CITY & ZtP CODE).
l/We the applicant(s) certify that all information in this certification and all information furnished in support
of th¡s certif¡cat¡on is correct and complete to the best of my/our knowledge. lArVe understand that the
willful falsification of this information (whether or not intentional) will be cause for immediate termination of
such lease. lANe agree to provtde additional information that may be requested to process this income
certification.
I certify that my income does not exceed the stated income level noted on page 1 of this document, and
that I am eligible for a unit made available at affordable rent for lower income households, as defined by
California Health & Safety Code ("H.&S.C.") Section 50053(b), to persons and families of low income, as
defined in H.&S.C. Section 50093, as shown in the table below.
lAffe have read the aforementioned statement and release, and understand all of the items. l/We execute
it voluntarily, on the date listed below, with full knowledge of its significance. lANe certify under penalty of
perjury that the facts and statements presented in this lncome Computation and Certification, as well as
the attached documents are true and accurate. Perjury is punishable by imprisonment in the state of
California. (CA Penal Code Section '1 18 & 126).
APPLICANT DATE
APPLICANT
lncome Verification
DATE
Owner shall use its best efforts to verify that the income provrded by an applicant is accurate by taking the
following steps as a part of the verification process: (i) obtain three (3) pay stubs for the most recent pay
periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii)
2
obtain an income verification form from the Social Security Administration and/or California Department of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed
or did not file a tax return for the previous calendar year, obtain other verification of such applicant's
income; and (v) obtain such other information as may be requested by the Agency. A copy of each such
completed lncome Computation and Certification form shall be completed and made available for Agency
review prior to the occupancy of an Affordable Unit by a Household whenever possible, but in no event
more than thirty (30) days after initial occupancy by said Household.
Maximum rent is calculated by dividing the maximum annual income by'12 and multiplying by 30%, for each
household size. A studio apartment would use the one person income, a one-bedroom would use two persons, a
two-bedroom unit would use three persons, etc.
2010 Maximum lncome Levels
Extremely Low (S 30% of AMI)
Very-Low lncome (S 50% of AMI)
Low Income - HOME/CDBG (S 80% of AMI)
Moderate lncome - HOME/CDBG (S 120% AMI)
Source:tincome/10/max
One Two
Person Person
$1 r ,850 $13,550
$19,750 ç22,550
$31,550 $36,050
$47,300 $54,050
Three Four
Person Person
$15,520 $16,900
$25,350 $28,150
$40,550 $45,050
$60,800 $67,550
Five Six
Person Person
$18,300 $19,650
$30,450 $32,700
$48,700 $52,300
$72,950 $78,350
f
-3-
Exhibit "C" TO REGUI-ATORY AGREEMENT AND
DECI-ARATION OF COVENANTS AND RESTRICTIONS
Redevelopment Agency
of the City of Fresno
2344 Tulare Street
Suite 200
Fresno, C^93721
www.fresnorda.com
s59.62r.1600
Multi-Family Housinq Proqram
CERTIFICATE OF GONTINUING PROGRAM COMPLIANCE
Period Covered from to
The undersigned, Fultonia WesU Cedar Heights Scattered Site, LP, a California limited partnership (the
"Owner"), has read and is thoroughly familiar with the provisions of the Owner Participation Agreement
("OPA") and documents referred to therein executed by Owner and the Redevelopment Agency of the
City of Fresno ("Agency") including but not limited to the Regulatory Agreement and Declaration of
Covenants and Restrictions ("Regulatory Agreement"). As of the date of this Certificate, for the period
shown above, the following number of Units in the Project are: (i) occupied by tenants satisfying the Low-
lncome Requirements (as defined in the Regulatory Agreement) as a principal residence ("Eligible
Tenants"), or (ii) currently vacant and being held available for such occupancy and have been so held
continuously since the date an Eligible Tenant vacated such Unit:
Occupied Affordable Units Vacant Affordable Units
The Owner certifies that the information contained in the Occupancy Summary attached is true and
accurate and hereby certifies that (1) a review of the activities of the Owner during such period and of the
Owner's performance under the OPA and the documents referred to therein has been made under the
supervision of the undersigned, and (2) to the best knowledge of the undersigned, based on the review
described ln clause ('1) hereof, the Owner is not in default under any of the terms and provisions of the
above documents (or describe the nature of any default and set forth the measures being taken to
remedy such default).
lSignature on following page.l
-1-
nformation
Name of Property:
Number of Units by
lncome Categorv
Number of Units by Income
Level ofTenants (percent of
AMNProperfy Address:rourfis (scc raurr
allowable rents)
0 (studio)30% of AMI
I bedroom Verv Low 50% of AMI
2 bedrooms Low 60% of AMI
3 bedrooms 80% ofAMI
Owner completing this Certifìcate has relied on the income certification and supporting
information supplied by each Applicant in determining qualification for occupancy of the
Affordable Unit.
110% of AMI
120% of ANII
Not Applicable
Fultonia WesUOedar Heights Scattered Site,
a California limited partnership
By:
Its:
Date:
By:
Its:
Date:
LP
Unit
Number
Unit
Size
Number
of
Months
Occuoied
Number
of
Months
Vacant
Extremely Low (l 30% of AMI)
Very-Low lncome (S 50% of AMI)
Low lncome - HOME/CDBG {s 80% of AMI)
Moderate lncome - HOME/CDBG (S 120% AMI)
One Two
Person Person
$11,850 $13,550
$19,750 $22,5s0
$31,550 $36,050
$47,300 $54,050
Three Four
Person Person
$15,520 $16,900
$25,350 $28,1s0
$40,550 $45,050
$60,800 $67,550
Five Six
Person Person
$18,300 $19,6s0
$30,450 $32,700
$48,700 $52,300
$72,950 $78,350
2010 Maximum Rent Levels
Extremely Low (S 30% of AMI)
Very-Low lncome (S 50% of AMI)
Low lncome - RDA (S 60% of AMI)
Low lncome - HOME/CDBG (S 80% of AMI)
Moderate Income - RDA (< 110% AMI)
Moderate fncome - HOME/CDBG 13120%
AMr)
Sou rce: http://www.treasurer. ca.
One Two
Perso Perso
nn
$296 $339
$494 $564
$591 9677
$789 $901
$1,084 $1,239
$1,183 $1,351
Three Four
Perso Personn
$388 $423
$634 $704
$761 $84s
$1 ,014 $1 ,126
$1,393 $1,548
$1,520 $'1,689
Five Six
Perso Perso
nn
$458 $491
$761 $818
$914 $981
$1,2'18 $1,308
$1,672 $1,7e6
$1,824 $1,959
O/max income.
Maximum rent is calculated by dividing the maximum annual income by 12 and multiplying by 30%, for
each household size. A studio apartment would use the one person income, a one-bedroom would use
two persons, a two-bedroom unit would use three persons, etc.
-3 -
EXHIBIT "G"
PROMISSORY NOTE
DO NOT DESTROY THIS NOTE:
Borrower for cancellation.
$870,000.00
When paid, this note must be surrendered to
Fresno, California
l 1,2014
For value received, the undersigned, Fultonia WesUCedar Heights Scattered
Site, LP, a California limited partnership ("Borrower"), promises to pay to the order of
the Redevelopment Agency of the City of Fresno ("Lender" or "Beneficiary"), the sum of
$870,000.00, to the extent that such funds are loaned to Borrower, without interest on
the unpaid principal balance, payable as described herein. This Promissory Note
("Note") is made and entered into in accordance with the terms of the Owner
Participation Agreement dated t I 2014, entered into between Borrower
and Lender ("Agreement").
Principal shall be due and payable from 50% of available annual residual receipts
with any unpaid balance due on the date which is fifty-five (55) years after the date of
recordation of the Certificate of Completion ("Maturity Date"), along with attorney's fees
and costs of collection, and without relief from valuation and appraisement laws.
All capitalized terms used in this Note, unless othenruise defined, will have the
respective meanings specified in the Agreement.
This Note, and any extensions or renewals hereof, is secured by a [Deed of
Trust, Security Agreement and Fixture Filing with Assignment of Rentsl on real estate in
Fresno County, California (the "Property"), dated as of the same date as this Note, and
executed in favor of and delivered to the Lender ("Deed of Trust"). The Deed of Trust
provides for acceleration of the repayment of this Note upon stated events.
Time is of the essence with respect to all terms of this Note. lt will be a default
under this Note if Borrower defaults under the Agreement or other documents pursuant
to the Agreement, including but not limited to the Deed of Trust and Regulatory
Agreement and Declaration of Covenants and Restrictions (collectively, the "Project
Loan Documents"), and if Borrower fails to pay when due any sum payable under this
Note. ln the event of a default by Borrower, the Borrower shall pay a late charge equal
to 2o/o 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 then to principal balance. On the occurrence of
a default or on the occurrence of any other event that under the terms of the Agreement
or Project Loan Documents gives rise to the right to accelerate the balance of the
1-
indebtedness, then, at the option of Lender, this Note or any notes or other instruments
that may be taken in renewal or extension of all or any part of the indebtedness will
immediately become due without any further presentment, demand, protest, or notice of
any kind.
The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in part, at any time, without penalty. Lender will apply all the
prepayments first to the payment of any costs, fees, late charges, or other charges due
under this Note, the Agreement or Project Loan Documents, and then to the interest
and then to the principal balance.
All payments are payable in lawful money of the United States of America at any
place that Lender or the legal holders of this Note may, from time to time, in writing
designate, 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, without limitation, attorney fees,
incurred by the holder of this Note in enforcing payment, whether or not suit is filed, and
including, without limitation, all costs, attorney fees, and expenses incurred by the
holder of this Note in connection with any bankruptcy, reorganization, arrangement, or
other similar proceedings involving the undersigned that in any way affects the exercise
by the holder of this Note of its rights and remedies under this Note. All costs incurred
by the holder of this Note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by
Borrower. Borrower will pay to Lender all attorney fees and other costs referred to in
this paragraph on demand.
Any notice, demand, or request relating to any matter set forth herein shall be in
writing and shall be given as provided in the Agreement.
No delay or omission of Lender in exercising any right or power arising in
connection with any default will be construed as a waiver or as an acquiescence, nor
will any single or partial exercise preclude any further exercise. Lender may waive any
of the conditions in this Note and no waiver will be deemed to be a waiver of Lender's
rights under this Note, but rather will be deemed to have been made in pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence in or consent to any preceding or subsequent default.
The Deed of Trust provides as follows:
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Property, or any interest in the
Property. A "sale or transfer" means the conveyance of the Property or
-L-
any r¡ght, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed,
installment sale contract, land contract, contract for deed, 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 Propefty, or by any other method of conveyance of
Property interest. lf any Trustor is a corporation, partnership or limited
liability company, transfer also includes any change in ownership of more
than 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 Trustor or an affiliate of the managing
member. However, this option shall not be exercised by Beneficiary if
such exercise is prohibited by applicable law.
Lender may transfer this Note and deliver to the transferee all or any part of the
Property then held by it as security under this Note, and the transferee will then become
vested with all the powers and rights given to Lender; and Lender will then be forever
relieved from any liability or responsibility in the matter, but Lender will retain all rights
and powers given by this Note with respect to Property not transferred.
lf any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and
their respective successors and assigns.
Borrower agrees that this Note will be deemed to have been made under and will
be governed by the laws of California in all respects, including matters of construction,
validity, and performance, and that none of its terms or provisions may be waived,
altered, modified, or amended except as Lender may consent to in a writing duly signed
by Lender or its authorized agents.
The Loan shall be non-recourse to the Borrower and all constituent members of
the Borrower.
lN WITNESS WHEREOF, Borrower has caused this Note to be executed by
Borrower or Borrower's authorized agent(s) as of the date and year first above written.
Borrower:
FULTONIA WEST/CEDAR HEIGHTS
SCATTERED SITE, LP
By:By:
Name:
5
Its:
4
EXHIBIT "H''
DEED OF TRUST
Recording requested by,
and when recorded mail to:
Redevelopment Agency of the City of Fresno
2344Tulare St., Suite 200
Fresno, Ca.93721
Attention : Executive Director
INSÏRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is
entered into between Fultonia WesUOedar Heights Scattered Site, LP, a Californialimited partnership whose principal executive office is at(the "Trustor"), in favor of
TITLE COMPANY, whose address is , Fresno,
CA 93711 (the "Trustee"), for the benefit of the REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO (the "Beneficiary"), with offices at 2344 Tulare St., Suite 200,
Fresno, California 93721.
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO
THE TRUSTEE, in trust, with the power of sale, the real property in the City of Fresno,
Fresno County, California, more particularly described in Exhibit A attached hereto and
made part hereof by reference (the "Property"), 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, title and interest of the Trustor, now owned or
hereafter acquired, in any land lying within the right-of-way of any street, open or
proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other
areas of land adjacent to or used in connection with the Property;
(ii) All oil and gas or other mineral rights in or pertaining to the Property and
all royalty, leasehold and other rights of the Trustor pertaining thereto;
(iii) All water rights pertaining to the Property and shares of stock evidencing
the same, and all deposits made with 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 profits and set forth
in this Deed of Trust;
(v) All buildings and improvements of every kind and description now or
hereafter erected or placed on the Property, and all fixtures thereon, including, but not
limited to, all gas and electric fixtures, engines and machinery, radiators, heaters,
furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves,
ranges, elevators and motors, bath 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 realty;
(vi) All building materials and equipment now or hereafter delivered to the
Property and intended to be installed thereon; and
(vii) All articles of personal property owned by the 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 buildings 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
furnished in operating a building, or the activities conducted therein, similar to the ones
herein described and referred 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 rnanner; subject, however, to (and only to) any purchase money
security interests in such personal property.
Said real property and personal property described above, together with appurtenances,
are referred 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
Eight Hundred Seventy Thousand Dollars ($870,000.00), evidenced by a promissory
note executed by the Trustor and payable to the order of the Beneficiary, bearing the
same date as this Deed of Trust, and any and all modifications, extensions or renewals
thereof or substitutions therefor (the "Note"), and performance and satisfaction of each
and all other obligations of the Trustor under the Note;
-2-
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note,
the Owner Participation Agreement between Beneficiary and Trustor related to the
Property (the "Owner Participation Agreement") contemplating the improvement of the
"Project" (as that term is defined in the Owner Participation Agreement); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be
loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its
successors, transferees and assigns, made to the Trustor while the Trustor is the owner
of record of fee title to the Property, or any portion thereof, or to the successors,
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:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was
executed, as provided in the Owner Participation 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 be
immediately due and payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of
Trust are hereby assigned to the Beneficiary for the purpose of discharging the
obligations hereby secured. However, the Trustor shall be permitted, so long as no
default exists hereunder or under the Note, to collect such rents, profits and income for
use consistent with the provisions of the Owner Participation Agreement.
5. Upon default hereunder or under the Note (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 entitled to the appointment by
a court having jurisdiction, without further notice and without regard to adequacy of any
security for the indebtedness secured hereby, of a receiver to take possession of and
protect the Collateral described herein and operate same and collect the rents, profits
and income therefrom. The entering upon and taking possession of the Property or
other Collateral by such receiver, the collection of such rents, profits and income and
the application thereof shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice.
3-
6. The Trustor, at its sole cost and expense, shall provide and maintain on
the entire Property, including all buildings and improvements thereon: (i) a policy of
broad-form builder's risk 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, towers, forms and equipment not owned or rented
by the Beneficiary, the cost of which is not included in the 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 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; 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
Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or
materially changed without at least thirty (30) days' prior notice to the Beneficiary. Upon
request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary
certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes
and assessments affecting the Collateral, including assessments on appurtenant water
stock; (ii) when due, all encumbrances, charges and liens, with interest, on the
Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all
costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in
connection with the trusts created under this Deed of Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair and
not remove or demolish 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 be 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 andior any covenants, conditions or restrictions 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 cost of evidence of title and
-4-
reasonable attorneys'fees, in any such action or proceeding in which the Beneficiary or
the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed
of Trust.
10. Should the Trustor fail to make any payment or do any act as herein
provided, then the Beneficiary or the Trustee, without obligation to do so, and following
notice to or demand on the 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 the Property for such purposes; (ii) may commence,
appear in and/or defend any action or proceeding purporting to affect the security hereof
or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest
or compromise any encumbrance, charge or lien which in the judgment of either
appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s) and the Agency Loan, as
such terms are defined below); and (iv) 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 Deed of Trust.
The term "Construction/Permanent Financing Loan" means, collectively, the
construction financing and take-out financing, and any refinancing or replacement of
that financing from time to time, to be provided by a commercial or other lender(s);
provided, however, that (i) before entering into any Construction/Permanent Financing
Loan, the Trustor shall give the Beneficiary notice of the Construction/Permanent
Financing Loan and copies of the loan agreement and all other loan documents
evidencing the Construction/Permanent Financing Loan; (ii) the funds disbursed from
each Construction/Permanent 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 Owner Participation Agreement or to
refinance existing indebtedness; (iii) the interest on each Construction/Permanent
Financing Loan shall be at a reasonable rate based on all the facts and circumstances;
and (iv) the 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 Owner Participation 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
Construction/Permanent Financing Loan, Trustor may use funds from any refinancing
that are in excess of the original principal of the initial Construction/Permanent
Financing Loan to compensate Trustor for any negative cash 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 limiting the foregoing, if the initial
Construction/Permanent Financing Loan for the Project is $4,000,000 and, while
satisfying the rate and loan-to-value limits set forth in subparagraphs (iii) and (iv),
5-
Trustor subsequently obtains refinancing in the amount of $5,000,000, Trustor may use
the additional $1,000,000 in excess of the original Construction/Permanent Financing
Loan to compensate Trustor for negative cash flow or for another project in the Urban
Core without making any prepayment on the Note secured by this Deed 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 shall be added to
the obligations secured by this Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by
the Beneficiary or the Trustee under this Deed of Trust, with interest from date of
expenditure at the legal rate.
13. lf the Trustor fails to pay any amount required by the Note or this Deed of
Trust when due and payable, or fails to perform all other covenants, conditions and
agreements of the Note, this Deed of Trust or the Owner Participation Agreement
(following delivery of notice and expiration of the cure period, if any, provided therein),
the amount of the Note, including unpaid principal and late 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 liens except as specifically permitted by this Deed of Trust 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 erected 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
waive its right either to require prompt payment when due of all other sums so secured
or to declare default for the Trustor's failure to pay.
16. lf the Trustor, without the prior written consent of the Beneficiary: (i)
agrees to or actually sells, conveys, transfers or disposes of the Collateral or any
interest therein or portion thereof, or (ii) assigns or delegates any right or obligation
under the Owner Participation Agreement, the Note or this Deed of Trust, then all
amounts secured by this Deed of Trust may be 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.
-6-
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Property, or any interest in the
Property. A "sale or transfer" means the conveyance of the Property or
any right, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed,
installment sale contract, land contract, contract for deed, 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. lf any Trustor is a corporation, partnership or limited
liability company, transfer also includes any change in ownership of more
than 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 Trustor or an affiliate of the managing
member. However, this option shall not be exercised by Beneficiary if
such exercise is prohibited by applicable law.
17. As further security for the full and complete performance of each and
every obligation, covenant, agreement and duty of the Trustor contained herein or in the
Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and
lien on all of the Collateral. This Deed 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. Should the Property, the buildings or improvements thereon, or any part of
any of them be taken or damaged by reason of any public improvement or
condemnation proceeding, or damaged by fire or earthquake or in any other manner,
the Beneficiary will be entitled, subject to the rights of the holder of any senior deed of
trust securing a Construction/Permanent Financing Loan, to all of the Trustor's interest
in compensation, awards and other payments or relief therefor; and, following the
occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly
with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in
its own name, any action or proceeding, or to make any compromise or settlement, 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 the Property or the buildings or improvements thereon, are hereby assigned to
the Beneficiary, subject to the rights of the holder of any senior deed of trust securing a
Construction/Permanent Financing Loan. After deducting therefrom all its expenses,
including reasonable attorneys' fees, and if there has not occurred a default under the
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Note, the Beneficiary shall apply all such proceeds to restoring the Property or the
buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the efent of the
amount due under the Note and any amounts due under this Deed of Trust. Any
balance of such proceeds still remaining shall be disbursed by the Beneficiary to the
Trustor.
19. lf the Trustor fails to perform any covenant or agreement in this Deed of
Trust or the Owner Participation Agreement, or if a default occurs under the Note, the
Beneficiary may declare all obligations and sums secured hereby immediately due and
payable by delivery to the Trustee of written declaration of default and demand for sale
and written 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 this Deed of Trust; provided, however that the Trustor shall not be deemed to
be in default hereunder for failure 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 afforded 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.
20. After the lapse of such time as may then be required by law following 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 fixed by the Trustee in the notice of sale, either as a whole or in
separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. The
Trustee may postpone sale of all or any portion 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 the preceding postponement. The
Trustee shall deliver to the purchaser its deed conveying fee title to the Property or
portion thereof so sold, but without any covenant or warranty, express or implied. The
recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary,
may purchase at the sale. The Trustee shall apply the proceeds of the sale to payment
of. (i) the expenses of the sale, together with the reasonable expenses of the trust
created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees
for conducting the sale, and the actual cost of publishing, recording, mailing and posting
notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in
connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums
expended under the terms hereof not then repaid, with accrued interest at the legal rate;
(iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or
persons legally entitled thereto.
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21. The Beneficiary may from time to time substitute a successor or
successors to the Trustee named herein or acting hereunder to execute the trusts under
this Deed of Trust. Upon such appointment, and without conveyance to the successor
trustee, the latter shall be vested with all title, 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 Beneficiary, containing reference
to this 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 stating that all obligations secured
hereby have been satisfied and all sums secured hereby have been paid, and upon
surrender of this Deed of Trust and the Note to the Trustee for cancellation and
retention, and upon payment of its fees, the Trustee shall reconvey, without warranty,
the Collateral then held hereunder. The recitals in such reconveyance of any matters or
facts shall be conclusive proof of the truthfulness thereof. The grantee in such
reconveyance may be described as "the person or persons legally entitled thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the
Trustor, the Beneficiary and the Trustee and their respective administrators, executors,
officers, directors, transferees, successors and assigns. The term "Beneficiary" shall
include not only the original Beneficiary hereunder but also any future owner and holder,
including pledges, of the Note secured hereby. ln this Deed of Trust, whenever the
context so requires, the masculine gender includes the feminine and/or neuter, and the
singular includes the plural.
25. ln addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action
or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the
Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in
connection with such action or proceeding, including legal expenses and reasonable
attorneys'fees and court costs.
26. The Trustee 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 to notify any party hereto of
pending sale under this Deed of Trust or of any action or proceeding in which the
Trustor, the Beneficiary or the 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 be mailed to it at 7643 N lngram Ave #105, Fresno, CA 93711.
9
2g. The Trustor shall cause a copy of each deed of trust securing a
Construction/ permanent Financing Loan to be provided to the Beneficiary immediately
upon its recordation, so that the Beneficiary may prepare and record a request for
notice of default and notice of sale thereunder pursuant to California Civil Code Section
2924b.
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 OWNER PARTICIPATION AGREEMENT, THIS DEED OF
TRUST SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS OF
TRUST SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN.
BENEFICIARY SHALL, UPON REQUEST OF TRUSTOR, EXEGUTE SUCH
SUBORDINATION AGREEMENT OR OTHER DOCUMENTATION REASONABLY
NECESSARY TO SUBORIDINATE THE LIEN AND GHARGE OF THIS DEED OF
TRUST TO LIEN OF ANY DEED OR DEEDS OF TRUST SECURING A
CONSTRUCTION/PERMANENT FINANCING LOAN, AS PROVIDED IN THE OWNER
PARTICIPATION AG REEMENT.
30. This Deed of Trust shall be interpreted and enforced, and the rights and
duties (both procedural and substantive) of the parties hereunder shall be determined,
according to California law.
31. Capitalized terms not othenruise defined herein shall have the meanings
given them in the owner Participation Agreement or the Note.
rN wtrNEss wHEREoF, ,ru;r;; **r*o this Deed of rrust as of the date
set forth above.
TRUSTOR:
Fultonia WesUCedar Heights Scattered Site,
LP,
a California limited PartnershiP
By:
Name:
Its:
By:
Attachment:
10-
Exhibit A: Legal Description of Property
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ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
) ss.
couNTY OF FRESNO )
On 20-, before ffie,
Notary Public, PersonallY aPPeared
, who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the state of california that the
foregoing paragraph is true and correct'
WITNESS my hand and official seal.
(sEAL)
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EXHIBIT A
LEGAL DESCRIPTION
The Fultonia West Property is located at 54I-545 N. Fulton Street, Ftesno, CA93728
THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA' COI.INTY
OF FRESNO, CITY OF FRESNO, AND IS DESCzuBED AS FOLLOWS:
PARCEL ONE:
LOTS 75, 16, i7, AND 18 IN BLOCK 1 OF BLOOMINGTON ADDITION TO THE CITY OF
FRESNO, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 3, PAGE 6 OF
RECORD OF SURVE,Y, FRESNO COUNTY RECORDS.
APN: 452-274-05
PARCEL TWO:
THENORTH13 %FEET OF LOT 10 AND ALL OF LOTS 11,72,13, AND 14 IN BLOCK 1 OF
BLOOMINGTON ADDITION TO THE CITY OF FRESNO, ACCORDING TO THE MAP
THEREOF RECORDED IN BOOK 3, PAGE 6 OF RECORD OF SURVEYS, FRESNO COLTNTY
RECORDS.
A NOTICE OF VOLUTARY PARCEL MERGER, APPROVED BY THE CITY OF RESNO WAS
RECORDED MAY 31,2011, DOCIIMENT NO. 2011-0072808, OFFICAL RECORDS.
APN: 452-274-16 (NEW ASSESSORS NUMBER)
4s2-27 4-06 AND s42 -2 7 4-07 (OLD AS SESSORS NUMBERS)
The Cedar Heights property is located aÍ 4496-4538 E. Hamilton Avenue, Fresno, Califomia 93702,
THE LAND DESCzuBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA' COI-INTY
OF FRESNO, CITY OF FRESNO, AND IS DESCRIBED AS FOLLOWS:
THE WEST 120 FEET OF LOT 11, OF GORDONDALE, ACCORDING TO THE MAP
RECORDEDIN BOOK 8 OF PLATS, PAGE 45, IN THE CITY OF FRESNO, COT]NTY
OF FRESNO,STATE OF CALIFORNIA'
APN: 471-220-557
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