HomeMy WebLinkAboutMLK Square - OPA - 1st Amdt. - 2021 Recording Requested by: Fresno County Recorder
Chicago Title Company Paul Dictos, CPA
RECORDED AT THE REQUEST OF 2021 -0071 1 55
AND WHEN RECORDED RETURN TO: Recorded at the request of:
SPL, EAGLE ROCK
04/29/2021 02:38 59
Titles: 1 Pages: 99
Fees: $0.00
CA S62 Fees:$0.00
Taxes: $0.00
City of Fresno Total: $0.00
City Clerk
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
36302098 (SPACE ABOVE THIS LINE FOR RECORDERS USE)
This First Amendment to Owner Participation 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
f 6103.
CITY OF FRESNO, in its capacity as
0", 2 I S Housing Successor to the Redevelopment
Agency of the City of resno
B ,
Name: Marl ne Murphey
Its: Executi DiXZ
ctor
Date:
FIRST AMENDMENT TO
OWNER PARTICIPATION AGREEMENT
by and between
City of Fresno
a municipal corporation
and
City of Fresno,
in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno,
and
Martin Luther King Square, LP
regarding
Martin Luther King Square Apartments
816 Florence Avenue, Fresno, CA 93706
1
1691\27\3039235.1
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO.
City of Fresno
City Clerk
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This First Amendment to Owner Participation 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, in its capacity as
Housing Successor to the Redevelopment
Agency of the City of Fresno
B
Name: Marl ne Murphey
Its: Executi Dir ctor
Date: 2-
FIRST AMENDMENT TO
OWNER PARTICIPATION AGREEMENT
by and between
City of Fresno
a municipal corporation
and
City of Fresno,
in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno,
and
Martin Luther King Square, LP
regarding
Martin Luther King Square Apartments
816 Florence Avenue, Fresno, CA 93706
1
1691\27\3039235.I
APN: 478-030-54, 478-114-36, 478-114-37
FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT
This First Amendment to the Owner Participation Agreement (Amendment), by and
between the City of Fresno, a municipal corporation, acting through its Planning and
Development Department - Housing and Community Development Division (City), the City
of Fresno, in its capacity as Housing Successor to the Redevelopment Agency of the City of
Fresno (FHS), and Martin Luther King Square, LP, a California limited partnership (Developer)
is effective this , day of April 2021 .
RECITALS
WHEREAS, the City, FHS and Martin Luther King Square, LLC, a California limited
liability company (Original Developer) entered into an Owner Participation Agreement on
April 12, 2006, recorded in the Fresno County Recorder's Office on April 28, 2006, as
document number 2006-0090189 (Agreement) attached as Exhibit "A"; and
WHEREAS, the City, FHS and Original Developer entered into a Declaration of
Restrictions Agreement on April 28, 2006, recorded in the Fresno County Recorder's Office
on April 28, 2006, as document number 2006-0090190 (Regulatory Agreement) attached as
Exhibit "B"; and
WHEREAS, Original Developer converted to a limited partnership, known as Martin
Luther King Square, LP which was filed with the California Secretary State on December 19,
2012; and
WHEREAS, the Agreement and the Regulatory Agreement entered into by the City
and FHS did not provide for subordination of the Agreement upon refinancing of the property
finance structure; and
WHEREAS, the City agrees to subordinate its $500,000 HOME Investment
Partnerships (HOME) loan and the Regulatory Agreement to allow Developer an opportunity
to refinance the property; and
WHEREAS, FHS agrees to subordinate its $500,000 Housing Set Aside (FHS) loan
and the Regulatory Agreement to allow Developer an opportunity to refinance the property;
and
WHEREAS, the Developer has agreed to provide a full payoff of both the HOME Loan
and FHS Loan at the time of the refinance; and
WHEREAS, Developer shall use a portion of the loan proceeds and/or reserve funds
to make improvements and repairs to the structures and property pursuant to the Schedule
set forth on Exhibit"C", as identified and derived from the HOME Program annual inspection
and the capital needs assessment, as required by HUD; and
WHEREAS, the Developer has agreed to timely provide written notice to City and FHS
of any and all notices of default on its senior mortgage; and
WHEREAS, the City, FHS and the Developer wish to amend the Agreement in order
to authorize the City and FHS to subordinate to a senior mortgage lender.
AMENDMENT
NOW THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and valuable
2
1691\27\3039235 1
consideration hereby acknowledged, the parties agree that the Agreement is amended as
follows:
1. The Agreement shall be amended to authorize City and FHS to subordinate
this Agreement, the HOME Loan, the FHS Loan, and the Regulatory
Agreement to a senior mortgage lender.
2. The HOME Loan and the FHS Loan shall be paid off, in full, at the time of
Developer's refinance.
3. Developer shall use a portion of its loan proceeds and/or reserve funds to make
improvements and repairs to the structures and property pursuant to the
Schedule set forth on Exhibit "C", as identified and derived from the HOME
Program annual inspection and the capital needs assessment, as required by
HUD.
4. Developer shall timely provide City and FHS written notice of any and all
notices of default involving its senior mortgage.
5. In the event of any conflict between the body of this Amendment and any
Exhibit or Attachment hereto, the terms and conditions of the body of this
Amendment shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or
conditions contained within any Exhibit or Attachment hereto which purport to
modify the allocation of risk between the Parties, provided for within the body
of this Amendment, shall be null and void.
6. Except as expressly provided herein, the Agreement shall remain in full force
and effect.
[SIGNATURE PAGE TO FOLLOW]
3
1691\27\3039235.1
IN WITNESS WHEREOF, the authorized agents of the parties hereto have executed
this First Amendment to the Owner Participation Agreement, at Fresno, California, the day,
and year first above written.
CITY OF FRESNO, MARTIN LUTHER KING SQUARE, LP,
a Calif a is munic. al corporation a California limited partnership
By: By: Hearthstone Housing Foundation
Name: T o as queda a California Nonprofit corporation
Title: Cit noRer Managing General partner
(Attach notary certificate of acknowledgment) TmT A�T�r�/rSa 1 3
By.
Date: Name: Socorro Vasquez
Title: Executive Director
CITY OF FRESNO, in its capacity as (Attach Notary certificate of acknowledgment)
Housing Successor to the Redevelopment Date:
Agency of the City of Fresno
By: Bayside Multi, LLC
a Delaware limited liability company
Byt- UW�� Lik- Administrative General partner
Name: Marlene Murphey ) _/
Title: Executive Director By: Bayside Communities, LLC
(Attach Hots certificate of acknowledgment) a aware li ed liab' 'ty company
Date: �� ,� � By:
Name: Basil Rallis
APPROVED AS TO FORM: Title: President and COO
DOUGLAS T. SLOAN (Attach Notary c9rti,flcatq of acknowledgment)
City Attorney Date:
B '
me: racy P anian
Title: Senior D ty City Attorney
Date:
ATTEST:
YVONNE SPENCE, MMC CRM
City Clerk
By: 0_ q
Name: 1�/(r�r-c.v 1�/lr.,r�-i^a&
Title: Deputy 24, 110 2 1
Attachments:
Exhibit A: Owner Participation Agreement
Exhibit B: Regulatory Agreement
E.:khli.talt — List of C apital Im prove in m ents to Structure and Property
IN WITNESS WHEREOF, the authorized agents of the parties hereto have executed
this First Amendment to the Owner Participation Agreement, at Fresno, California, the day,
and year first above written.
CITY OF FRESNO, MARTIN LUTHER KING SQUARE, LP,
a California municipal corporation a California limited partnership
COUNTOPART SAGNAT�
By: By: Hearth one Housing Foundation
Name: Thomas Esqueda a Calif rnia Nonprofit corporation
Title: City Manager Man Gen al partner
(Attach notary certificate of acknowledgment)
By:
Date: Name: S rro VS84uez
Title: Executive Director
CITY OF FRESNO, in its capacity as (Attach Notary certificate of acknowledgment)
Housing Successor to the Redevelopment Date:
Agency of the City of Fresno
By: Bayside Multi, LLC
a Delaware limited liability company
By: Administrative General partner
Name: Marlene M he
Title: Executi irector By: Bayside Communities, LLC
(Attach notary rtificate of acknowledgment) a Delaware limited liabiii 7Cpmpany
Date: By:
Name: Basil Rallis
APPROVED AS TO FORM: Title: President and COO
DOUGLAS T. SLOAN (Attach Notary certificate of acknowledgment)
City Attorney Date:
By:
Name: Tracy Parvanian
Title: Senior Deputy City Attorney
Date:
ATTEST:
YVONNE SPENCE, MMC CRM
City Clerk
COUNIUPAN KU >l
By:
Name:
Title: Deputy
Attachments:
Exhibit A: Owner Participation Agreement
Exhibit B: Regulatory Agreement
Exhibit C — List of Capital Improvements to Structure and Property
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validR r_of that document.
State of California
County of Fresno
On April 23, 2021 before me, Linda Cunha Reitz, Notary Public
(insert name and title of the officer)
personally appeared Thomas Esqueda
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
LINDA CUNHA REITZ
o' Notary Public-California r
WITNESS my hand and official seal. z = a -� Fresno County
Commission#2215504
My Comm.Expires Sep 23,2021
Signature I drl (Seal)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of Califorroi )
County of rleswc )
On ckl?k%L I. 2101%before me, -Woc_>A
Date Here Insert Name and Title of the Officer
personally appeared %j
Name(s) of Signe )
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.
NOEMI SCHWARTZ
Notary Public-Cali'ornia
Fresno County >
L Commission x 2215603 Signature
My Comm.Expires Sep 23,2021 Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:.
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑Corporate Officer — Title(s): ❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑General
❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact
❑Trustee ❑Guardian or Conservator ❑Trustee ❑ Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
02016 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907
CLERK'S CERTIFICATION
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document
State of California )
County of Fresno )
On April 26, 2021 before me, Marco Martinez, Deputy City Clerk, personally appeared, Thomas
Esqueda, City Manager, City of Fresno, 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
YVONNE SPENCE, MMC CRM G� of
City Clerk, City of Fresno �a
s
*�A�'en ucY•`'i'r
By
Marco Martinez, Deputy
CLERK'S CERTIFICATION
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document, to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document
State of California }
County of Fresno }
On April 26, 2021 before me, Marco Martinez, Deputy City Clerk, personally appeared, Marlene
Murphey, xecutive Director, City of Fresno as Housing Successor to the Redevelopment
Agency of the City of Fresno 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
YVONNE SPENCE, MMC CRM
City Clerk, City of Fresno of fiRay
,r q
X
n
n a
e
U$TEp❑CZ.t1,
By
Marco Martinez, Deputy
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On 4/8/2021 before me, Ashley Walker, Notary Public
(insert name and title of the officer)
personally appeared Socorro Vasquez
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.
ASHLEY WALKER
Notary Publk-GlMornla
04W county
Commisaion N 233 FAA
My Comm.Ewkn Dat 1,70f4
Signature (Seal)
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness accuracy, or validity of that document.
State of �! �tJ )
County of }
On Y AJ I before me,
otary Public (here insert name and title of the officer),
personally appear d
who proved to on the basis of s isfactory 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 ha -an fficial seal
H.ORTEGA-ANAYAT
�I tUC (Seal) `; ..f NotaryPublic-California
gnc� z
r Alameda County
`^S Commission it 2212498
My Comn-6 Expires Sep 2,2021 f■
(notary)(10-03)(Rev. 10-14)
Exhibit "A"
Owner Participation Agreement
rb
RecU?'f�t � AtOz 'LStf'[i IIII�1I Ili 111 II IIII 1 IIII I�III III III II I
���t:��:w:y,���b �' III II
RECORDED AT THE REQUEST OF FRESNO County Recorder
AND WHEN RECORDED RETURN TO: Robert C, Werner
DDC— 2006-0090189
Redevelopment Agency of the City of Fresno Acct 5-First American Title Insurance Company
2344 Tulare St., Suite 200 Friday, APR 28, 2006 11:09:52
Fresno, Ca. 93721 Tt 1 Pd $0.00 Nbr-0002167986
Attention: Executive Director JZG/R3/1-7 1
A,-3
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the
Redevelopment Agency of the City of Fresno and is exempt from the payment of a
recording fee pursuant to Government Code Section 6103:
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
1
Its:Executive hector ;
Dated: `! %%
OWNER PARTICIPATION AGREEMENT
by and between
Redevelopment Agency of the City of Fresno,
a public body, corporate and politic
and
City of Fresno
a California Municipal corporation
and
Martin Luther King Square, LLC
a California limited liability company
[Rehabilitation of Martin Luther King Square Apartments]
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO: .r..... n�.,
a
Redevelopment Agency of the City of Fresno R RDA �$ D
2344 Tulare St., Suite 200
Fresno, Ca. 93721 �F�i
Attention: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the
Redevelopment Agency of the City of Fresno and is exempt from the payment of a
recording fee pursuant to Government Code Section 6103:
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
Y.
Its:Executive Director
Dated: Z c c,-
OWNER PARTICIPATION AGREEMENT
by and between
Redevelopment Agency of the City of Fresno,
a public body, corporate and politic
and
City of Fresno
a California Municipal corporation
and
Martin Luther King Square, LLC
a California limited liability company
[Rehabilitation of Martin Luther King Square Apartments]
ATTACHMENTS
1. Exhibit A: Legal Description of OPA Properties:
2. Exhibit B: Intentionally Omitted
3. Exhibit C: Schedule of Performance/Payment Schedule
4. Exhibit D: Declaration of Restrictions
5. Exhibit E: Certificate of Completion
6. Exhibit F(1): Promissory Note - Fresno RDA
Exhibit F(2): Promissory Note - City of Fresno
7. Exhibit G: Intentionally Omitted
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered as of
the Effective Date (defined in this Agreement), between the REDEVELOPMENT
AGENCY OF THE CITY OF FRESNO, a public body, corporate and politic, ("Agency" or
"RDA"), the CITY OF FRESNO, a California municipal corporation, ("City"), and
MARTIN LUTHER KING SQUARE, LLC, a California limited liability company, ("Owner")
RECITALS
The parties enter this Agreement based on the following facts, understandings,
and intentions:
A. By authority granted under California Redevelopment Law("CRL"), the Agency
has prepared and is responsible for carrying out the Urban Renewal Plan(s) for the
Southwest Fresno Neighborhood General Renewal Project, as amended, (collectively
the "Plan".)
B. To the extent provided in/allowed by the CRL including Cal. H.&S.C. Sections
33334.2, 33449, and as provided by Resolution(s) No. [N/Al adopted by the [N/Al on
[N/A], and as provided by the General Plan and Implementation Plans, and limited to
the terms and conditions therein, the Agency may, outside of any Plan area, make
improvements upon, construct and improve structures in order to provide housing for
persons and families of low or moderate income, including related on-site and off-site
improvements, provided the following finding of fact are made: [N/A.1
C. The Agency administers the Low and Moderate Income Housing Fund
established pursuant to Cal. H.&S. C. Sections 33334.2 et seq.
D. The Agency shall permit owner participation in the redevelopment of property in
the Plan area in conformity with the Plan and all owner participation rules and criteria, to
the extent provided by Cal. H.&S.C. Sections 33339, 33339.5, 33380 and 33381.
E. The CITY has received a HOME Investment Partnerships Program (hereinafter
referred to as "HOME Program") grant from the U.S. Department of Housing and Urban
Development (hereinafter referred to as "HUD"), under Title II of the Cranston-Gonzalez
National Affordable Housing Act of 1990, as amended (hereinafter referred to as the
"HOME Act".)
F. Owner holds, or agrees to acquire at its sole cost and expense and according to
the Schedule for Performance attached as Exhibit "C" and incorporated herein, all
rights, title and interest in fee to the certain real property located within the territorial
jurisdiction of the Agency, described in Exhibit "A," attached hereto and incorporated
1
herein, (the "Property"), including improvements thereon known as Martin Luther King
Square Apartments, a 92-unit family rental property located at 911 East Belgravia
Avenue Fresno California, ("MLK Square".)
G. Owner proposes to undertake rehabilitation of MLK Square,
H. Owner agrees to undertake exterior and interior improvements of MLK Square in
accordance with the Rehabilitation Budget Worksheet attached to the Exhibit "C"
Schedule of Performance/Payment Schedule including but not limited to install stucco
and/or siding, replace carports, repaint units, install landscaping, replace windows,
replace carpeting/flooring, install all new appliances and countertops, install window
blinds, install closet doors, resurface and re-stripe parking lot, refinish bathtubs, add
children's play area and construct new laundry facility.
I. Owner has made a good faith attempt but has been unable to obtain commercial
or private means of financing the Units at the same level of affordability and quantity,
such that the Project is not feasible cannot be completed and restricted to the affordable
rental housing purposes and uses provided for under the Law absent the financial
support of the Agency.
J. The Property, MLK Square, and the associated on site and off site improvements
are collectively referred to in this Agreement as the "Improvements" or the "Project," all
of which will directly benefit the Property and the Plan area, cannot otherwise be
reasonably paid for or financed, and are necessary to eliminate blight.
K. The Agency is willing to assist Owner's rehabilitation of the Project by making
available to Owner a loan of Housing Set Aside (Tax Increment) Funds (the "RDA
Loan") in such amounts and upon such terms and conditions are as specified in the
California Community Redevelopment Law, this Agreement, the related Loan
Documents and the Declaration of Restrictions.
L. The City is willing to assist the Owner's rehabilitation of the Project by making
available to Owner a loan of HOME Program Funds (the "City Loan") in such amounts
and upon such terms and conditions are as specified in the HOME Act, this Agreement,
the related Loan Documents and the Declaration of Restrictions.
M. The RDA Loan and the City Loan (collectively the "Loan(s)") shall be paid
through an escrow established by the Owner at its sole cost and expense with First
American Title Guaranty Company. The Loans and performance of the affordability and
other covenants and restrictions set forth in this Agreement shall be evidenced in
covenants and restrictions running with the land as more fully provided hereunder.
2
N. The Housing and Community Development Commission reviewed the Project
and this Agreement on March 9, 2005 and recommended that Council approve it.
O. The Plan program has been environmentally assessed under Program
Environmental Impact Report # 10124 for the Merger# 2 Project by joint City Council
Resolution 98-190 and Agency Resolution 1487adopted on June 30, 1998 and has
been determined to have or cause no adverse or reportable conditions or effects
pursuant to the California Environmental Quality Act/National Environmental Protection
Act and the HOME Funds have been approved by the City for release pursuant to 24
CFR Part 58.
P. The Agency and City have found that the Project: (i) will have a positive
influence in the Plan Area, and surrounding environs, (ii) is in the vital and best interests
of the Agency and City, and the health, safety, and welfare of City residents, (ii )
complies with applicable federal, state, and local laws and requirements, (iv) will help
eliminate blight, (v)will improve, and preserve the community's supply of low and
moderate income housing available at affordable rent as provided in 24 CFR 92.252
and as defined by Cal. H.&S.C. Sections 50052.5 and 50053, to persons and families of
very low or 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 the respective Plan areas except to the extent
otherwise provided herein and allowed by Law; (viii) including all planning and
administrative expenses incurred in pursuit hereof are necessary for the production,
improvement, or preservation of low and moderate income housing; (ix) will comply with
all owner participation rules and criteria of the Agency and the Plan; and (x) will comply
with any and all applicable review and other requirements of the City's Historical
Preservation Commission.
Q. The Owner has finally determined and warrants to the Agency/City that this
Agreement and the Project constitutes routine programmatic/grantee lender activities
utilizing available and allocated program/grantee funding, outside the reach of California
Constitution Article XXXIV and enabling legislation.
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 "Acquisition" means purchase of the Property and Improvements in fee title.
1.2 "ADA" means the Americans with Disabilities Act of 1990, as most recently
amended.
3
1.3 "Affirmative Marketing" means a good faith effort to attract eligible persons of
all racial, ethnic and gender groups, in the housing market area, to rent the proposed
Housing Unit(s) on the eligible Property, as hereinafter defined, including without
limitation, requirements of 24 CFR 92.350, 24 CFR 92.351, in order to provide
information and otherwise attract eligible persons from all racial, ethnic and gender
groups in the housing market in the rental of Project Units and including City's
"Affirmative Marketing Policy" document as amended from time to time.
1.4 "Affordability Period" means the period of fifty-five (55) years commencing
from the date the Agency records the Certificate of Completion.
1.5 "Affordable Rental Housing" means those 911 Project units rehabilitated with
Loan proceeds which shall be available at affordable rent as provided by 24 CFR
92.252 and as defined/provided by Cal. H. &S.C. Section 50052.5, to persons and
families of very low and low income, as defined in Cal. H. &S.C. Section 50093 of Code,
which requirements shall be enforceable variously by covenants running with the land.
1.6 "Agency" means the Redevelopment Agency of the City of Fresno, a public
body, corporate and politic, organized and existing under the Law, and any assignee of
or successor to its rights, powers and responsibilities.
1.7 "Agency/City" means Agency and City, jointly and severally.
1.8 "Agreement" means this Owner Participation Agreement between the
Agency, City and the Owner.
1.9 "Applicable Federal Rate" means the federal long-term rate as set forth in
Section 1247 (d)(1) of the Internal Revenue Code.
1.10 "Budget" means the Budget/Financial Plan for the Project including
rehabilitation, financing and related costs.
1.11 "Certificate of Completion" means that Certificate issued in the form
attached as Exhibit "E"to Owner by Agency and City evidencing completion of the
Project for purposes of this Agreement.
1.12 "City" means the City of Fresno, a California municipal corporation.
1.13 "Conditions Precedent of Agency and City" means the conditions precedent
1 Parties acknowledge and agree that[1]unit of the 92 total Project units will be made available
to Owner's onsite Project manager/employee.
4
to the effectiveness of this Agreement against the Agency and City.
1.14 "Day" whether or not capitalized, means a calendar day, unless stated
otherwise.
1.15 "Declaration of Restrictions" means the declaration of restrictions,
substantially in the form of Exhibit "D" containing all conditions, covenants, and
restrictions required by the HOME Act/Program, the Law, any other applicable laws and
regulations, the Plan, and this Agreement, running with the Property and the
Improvements thereon and burdening such for the term stated in said Declaration of
Restrictions, and subordinate to the deed(s) of trust of Citicorp USA, INC. a Delaware
corporation and a wholly owned subsidiary of Citibank, N.A. ("Citicorp"), including its
respective successors or assigns as provided for in this Agreement, pursuant to those
certain subordination findings contained in Joint Agency/City Resolution No. 2005-
94/1659.
1.16 "Deed of Trust" means that standard, last position (subordinate to Citicorp
including its respective successors or assigns as provided for in this Agreement) deed
of trust including assignment of rents and security agreement given by Owner as trustor
to Agency and City as beneficiaries issued through an escrow established by Owner at
its sole cost and expense with a title company acceptable to Agency, recorded against
the Property, insured in the full amount of the Loans advanced by Agency and City to
Owner, as well as any amendments to, modifications of and restatements of said deed
of trust. The terms of any such deed of trust are hereby incorporated into this
Agreement by this reference.
1.17 "Default" means a party's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.18 "Director" means the Executive Director of the Agency.
1.19 "Effective Date" means close of escrow.
1.20 "Eligible Costs" means those Project costs in the Budget, incurred by Owner
before the CITY issues the Certificate of Completion, and related to Property acquisition
and Project pre-development/development costs for which Tax Increment Funds and
HOME Funds may be used as specified in 24 CFR 92.205 and 92.206, and not
disallowed by 24 CFR 92.214, provided, however, that costs incurred in connection with
any activity that is determined to be ineligible by the State, HUD or the City shall not
constitute Eligible Costs.
1.21 "Environmental Laws" means any federal, state, or local law, statute,
ordinance or regulation pertaining to environmental regulation, contamination or cleanup
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of any Hazardous Materials or Waste including, without limitation, any state or federal
lien or"superlien" law, any environmental cleanup statute or regulation, or any
governmentally required permit, approval, authorization, license, variance or
permission.
1.22 "Family" has the same meaning given that term in 24 CFR 5.403.
1.23 "Funding Source" means the construction loan made by Citicorp including
its respective successors or assigns as provided for in this Agreement, and any other
financing sources for the Project except Loan funds, hereby approved by the Agency
and City and contained in the Budget.
1.24 "Financing Plan" means the Budget including sources and uses of funds
sufficient for Owner to complete the Improvements according to the Schedule for
Performance.
1.25 "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 2512-2.7, or listed pursuant to
Section 25140 of the California Health and Safety Code, (b) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code, (c) defined
as a "hazardous material," "hazardous substance," or"hazardous waste" under Section
25501 of the California Health and Safety Code, (d) defined as a "hazardous substance"
under Section 25281 of the California Health and Safety Code, (e) petroleum, (f) friable
asbestos, (g) polychlorinated byphenyls, (h) listed under Article 9 or defined as
"hazardous" or"extremely hazardous" under Article 11 of Title 22, California
Administrative Code, (i) designated as"hazardous substances" pursuant to Section 311
of the Clean Water Act (33 U.S.C. §1317), Q) defined as a"hazardous waste" pursuant
to Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. §6901 et
seq., or (k) defined as"hazardous substances" pursuant to Section of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
§9601, et seq.); provided, however, hazardous materials shall not include: (1)
construction materials, gardening materials, household products, office supply products
or janitorial supply products customarily used in the construction, maintenance,
rehabilitation, or management of residential 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 Improvements; and (2)
certain substances which may contain chemicals listed by the State of California
pursuant to Health and Safety Code Sections 25249.8 et seq., which substances are
commonly used by a significant portion of the population living within the region of the
Property, including, but not limited to, alcoholic beverages, aspirin, tobacco products,
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NutraSweet and saccharine.
1.26 "Home Program Funds or "Home Funds" means HOME Act monies held
and administered by the City a portion of which shall be made available as the Loan to
Owner for Eligible Costs and expenses incurred by Owner in pursuit of the Project, in
such amounts, and upon such terms and conditions, as are specified hereinunder.
1.27 "Household" means one or more persons occupying a Unit.
1.28 "Housing Set-Aside Funds" or "Tax Increment Funds" means those
California Health and Safety Code Section 33334.2 monies held and administered by
the Agency a portion of which shall be made available as the Loan to Owner for eligible
costs and expenses incurred by Owner in pursuit of the Project, in such amounts, and
upon such terms and conditions, as are specified hereinunder.
1.29 "Improvements" mean the rehabilitation that Owner will complete on the
Property including the associated fencing, and landscaping improvements.
1.30 "Law" means all applicable federal, state and local laws and regulations
including the HOME Act, 24 CFR Part 92 and the Community Redevelopment Law of
the State (California Health and Safety Code Sections 33000 et seq.).
1.31 "Loan(s)" means the RDA Loan not to exceed $500,000, and the City Loan
not to exceed $500,000, provided by the Agency and City respectively to the Owner
upon the terms and conditions provided for in this Agreement.
1.32 "Loan Documents" are collectively this Agreement, the Note(s), the Deed of
Trust and all related escrow and other documents/instruments as they may be
amended, modified or restated from time to time along with all exhibits and attachments
thereto, relative to the Loans.
1.33 "Manager" means the City of Fresno, Housing Manager.
1.34 "Marketing Plan" means any Affirmative Marketing plan required by Law,
provided by Owner and acceptable to the Agency and City.
1,35 "Material Change" means a change, modification, revision or alteration to
the Loan Documents that significantly deviates from those previously approved by the
Agency and City, provided that fully(a) funded change(s) which normally occur in
budget line items as a typical project progresses through construction shall not
constitute (a) Material Change(s).
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1.36 "Note(s)" means the promissory notes each in a principal amount not to
exceed $500,000, in the form of Exhibits "F1" and "172" hereto, given by Owner as
promissor, in favor of Agency and City respectively as promissees, evidencing the
Loans and performance of the Affordable Rental Housing and other covenants and
restrictions set forth in this Agreement, secured by a standard subordinated (to the
Citicorp loan documents and any Use Agreements or other restrictions imposed by the
U.S. Department of Housing and Urban Development) Deed of Trust recorded against
the Property, insured in the full amount of the Loans as well as any amendments to,
modifications of and restatements of said Notes. The terms of the Notes are hereby
incorporated into this Agreement by this reference.
1.37 "Owner" means Martin Luther King Square, LLC, a California limited liability
company.
1.38 "Plan" means the SWGRNA as now or after this amended.
1.39 "Project" means the rehabilitation of 92 Units including the 91 Units assisted
hereunderand including Improvements upon the Property and the associated interior
and exterior improvements as specified hereunder and preservation of the
Improvements and the Property for rental as Affordable Rental Housing for the fifty-five
(55) year Affordability Period.
1.40 "Project Area" means the Property.
1.41 "Project Completion Date" means the date that Agency and City shall have
determined that the Project has reached completion in accordance with the plans and
specifications, in accordance with the Schedule of Performance, as evidenced by
issuance of a Certificate of Completion of Agency and City.
1.42 "Property" means the real property described in Exhibit "A" including MLK
Square and all other improvements thereto.
1.43 "Release of Construction Restrictions" means a release of those
construction covenants, conditions and restrictions contained in the Declaration of
Restrictions, provided the Owner and those taking under or through Owner use the
proceeds of the debt so secured to construct the Improvements, and devote the
Property and the Project Improvements thereon to the purposes and uses specified in
this Agreement and the Declaration of Restrictions.
1.44 "Residual Receipts" means in each operating year thirty-five percent (35%)
of the sum of (i) all cash received by the Property from (A) rents, lease payments, and
all sources generally considered in the apartment industry to be "other income", (B)
payments from HUD under a Housing Assistance Program Section 8 Contract and a
8
Rental Supplement Assistance Program contract to the Project, and excluding (a)
tenant security or other deposits, and (b) interest on reserves not available for
distribution, and (ii) the net proceeds of any insurance (including rental interruption
insurance), other than fire and extended coverage and title insurance, to the extent not
reinvested, less the sum of (i) all cash expenditures, and all expenses unpaid but
properly accrued, which have been incurred in the operation of the Project's business,
including the management fee to the Project's property management agent, and
excluding expenditures paid from any reserve account (whether or not such expenditure
is deducted, amortized or capitalized for tax purposes), (ii) the Project related priority
distribution to the Owner's equity investor member and incentive management fee to
Owner's managing member, (iii) all payments on account of any loans (including unpaid
principal and accrued interest) made for the benefit of the Project by the members of the
Owner, (iv) payments towards the Developer Fee to A.F.Evans, (v) contributions to any
prudent and reasonable cash reserves (excluding the residual receipts reserve) for
working capital, capital expenditures, repairs, replacements and anticipated
expenditures, in such amounts as may be reasonably required by the lenders to the
Project and the investor members of the Owner for the operation of the Project not to
exceed $40,000 annually adjusted in proportion to the average increase of the following
indices (a) the United States Bureau of Labor Statistics for Hourly Wage Rates of all
workers in manufacturing, and (b) of all Commodity Wholesale Prices, said indices shall
be re-defined to the mutual satisfaction of the parties in the event of change in form and
basis of indices, all increases shall use the indices for calendar year 2001 as their base,
and (vi) the payment of principal and interest, and any associated fees, expenses, and
costs, with respect to any loans on the Project having a mortgage with a higher priority
than the Loan made by the Agency and City.
1.45 "Schedule of Performance" means the schedule attached as Exhibit "C,"
setting forth the dates and times by which the parties must accomplish certain
obligations under this Agreement. The parties may revise the Schedule of Performance
from time to time on mutual written agreement of the Owner, the Director and the
Manager, but any delay or extension of the Completion Date is subject to the
requirements in this Agreement.
1.46 "Security Financing Interest" means a security interest which Owner grants
in the Property and the Improvements thereon before the Agency and City issue and
record a Release of Construction Restrictions, provided the Owner and those taking
under or through Owner use the proceeds of the debt so secured to construct the
Improvements, and devote the Property and the Project Improvements thereon to the
purposes and uses specified in this Agreement and the Declaration of Restrictions.
1.47 "Unit" mean a dwelling unit of the rental housing constituting the Project.
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2. CONDITIONS PRECEDENT TO AGENCY/CITY PERFORMANCE UNDER THIS
AGREEMENT. The following are conditions precedent to the Agency/City obligation to
perform under this Agreement. Until each and all of the conditions are satisfied or will
be satisfied concurrent with the close of escrow on the Loan Documents, the Agency
and City jointly and severally are not obligated to take any action, or provide any
funding, under this Agreement. These conditions must be satisfied by the time stated.
The Agency/City, in writing, may waive any condition or agree to extend the time for
satisfaction. The Agency/City may terminate this Agreement as provided herein for the
failure of a condition.
2.1 In accordance with the Schedule of Performance attached as Exhibit"C" and
concurrently with the close of escrow on the Loan Documents, the Owner will provide a
title report, recorded deed or other evidence acceptable to the Director and Manger that
Owner owns the Property.
2.2 Owner has entered into, and provided Agency copies of surety bonds for the
rehabilitation of MLK Square, and agreements with all funding sources and the general
contractor for this Project including without limitation a copy of the HUD contract for the
Section 8 Housing Vouchers and for Rental Supplement Assistance. All such funding
source agreements shall contain a provision whereby the party(ies) to each such
agreement, other than Owner and HUD, agree to make commercially reasonable efforts
to (i) notify Agency/City immediately of any event of default by Owner thereunder; (ii)
notify Agency/City immediately of termination or cancellation of the agreement; and (iii)
provide Agency/City, upon request of Agency/City, an estoppel certificate certifying that
the agreement is in full force and effect and Owner is not in default thereunder.
2.3 Owner has submitted evidence that the combined monies from the Funding
Sources and the Loan are not less than the greater of the amount shown in the Budget
or the amount which Agency/City determines is necessary to complete the Project. If
Agency/City determines that said funds are not sufficient to complete the Project, Owner
may satisfy this condition as directed by the Agency/City in writing.
2.4 In accordance with the Schedule of Performance attached as Exhibit"C" and
prior to the close of escrow on the Loan Documents, the Owner will submit its Financing
Plan to the Agency/City for review and approval. The purpose of the Agency/City's
review is to confirm that Owner has sufficient funds available to complete the
Improvements, and to maintain Project Improvements as this Agreement requires. After
the Agency/City approves the Financing Plan, Owner will not make any Material
Change in the Financing Plan without first submitting the change to the Agency/City for
review and approval, which approval shall not be unreasonably withheld, delayed or
conditioned.
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2.5 Owner will provide credit reports, financial statements, and financial data,
satisfactory to the Director and Manager, evidencing Owner's financial ability to
complete the Improvements.
2.6 The Owner, at its expense, shall have investigated and determined all
environmental, soil, seismic, and other surface and subsurface conditions of the
Property, and the suitability of it for the Project. Owner's responsibility and due
diligence includes, but is not limited to, determining the presence of Hazardous
Materials. Both the Owner and the Agency/City will promptly give the other copies of all
reports and test results. Owner will indemnify, defend, and hold the Agency/City
harmless from any damages or claims arising out of Owner's inspections and tests.
2.7 In accordance with the Schedule of Performance, the Owner will submit to
the Agency/City the following documents, each in form and content satisfactory to the
Agency/City:
2.7.1 Contract with General Contractor.
2.7.2 Performance or Completion Bonds. A 100 percent Material and
Labor Bond and 100 percent Performance Bond approved by the Agency/City and
provided by General Contractor prior to performance of the work on Improvements.
2.7.3 Receipts for Permits. Copies of receipts showing that the Owner
has paid for and pulled all necessary construction permits, or evidence that the permits
can be pulled upon payment of the permit fees.
2.7.4 Should Property assessment/ inspection reveal any Hazardous
Materials or environmental conditions requiring remediation, the Owner will promptly
notify the AgencyiCity. 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 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/City. Without limitation, any remediation
will be pursuant to a remedial action plan, if needed, approved by the governmental
agencies having jurisdiction. The work will be performed according to applicable
environmental laws and any governmental requirements.
2.8 In accordance with the Schedule of Performance attached as Exhibit "C" and
prior to the close of escrow on the Loan Documents, the Owner provides for the
Agency/City's review and approval a preliminary title report showing the state of title of
the Property and the Agency/City's lien priority, if any, subject to only the following
exceptions: as acceptable to Agency/City.
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2.9 Owner is not in default of this Agreement and all representations and
warranties of Owner contained herein are true and correct in all material respects.
2.9.1 The Owner will have signed and delivered all documents required
hereunder.
2.9.2 The Owner will have received all land use approvals and permits
required by this Agreement.
2.9.3 The Owner will have provided proof of insurance as required by
this Agreement.
2.9.4 The Agency/City will have approved the Financing Plan
2.9.5 In accordance with the Schedule of Performance attached as
Exhibit "C" and concurrently with the close of escrow on the Loan Documents, the
Owner is prepared to record this Agreement or, at the Agency/City's sole option, to
record a memorandum of it.
2.9.6 Owner shall pay all costs of the Preliminary Title Report.
3. OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS PRECEDENT.
The following obligations of Owner will run with the land and survive this Agreement,
and the recording of any Release of Construction Restrictions:
3.1 The Owner will take all commercially reasonable precautions to prevent the
release into the environment of any Hazardous Materials in, on or under the Property.
Owner will comply with all governmental requirements with respect to Hazardous
Materials. In addition, the Owner shall install and use equipment and implement and
follow procedures that are consistent with commercially reasonable standards for the
disclosure, storage, use, removal and disposal of Hazardous Materials.
3.2 The Owner will notify the Agency/City and give the Agency/City a copy or
copies 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 Requirement relating to Hazardous Materials and
underground tanks. Within 3 days after each incident, the Owner will report any
unusual or potentially important incidents respecting the environmental condition of the
Property to the Agency/City.
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3.3 If a release of any Hazardous Materials into the environment occurs, the
Owner will, as soon as possible after the release, furnish the Agency/City with a copy of
any reports relating thereto and copies of all correspondence with governmental
agencies relating to the release. Upon request, the Owner will furnish the Agency/City
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 which may be characterized as confidential.
3.4 After the escrow closing, except to the extent of the active negligence or
wilful misconduct of the Agency/City, Owner will indemnify, defend, and hold the
Agency/City harmless from any claim, action, suit, proceeding, loss, cost, damage,
liability, deficiency, fine, penalty, punitive damage, or expense (including, without
limitation, 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, 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.
3.5 The status and qualifications of the Owner are of particular concern to the
Agency/City. Because of Owner's status and qualifications, the Agency/City has
entered this Agreement with Owner. From the Effective Date of this Agreement until the
Declaration of Restrictions expires, no voluntary or involuntary successor-in-interest of
the Owner will acquire any rights or powers under this Agreement, provided that the
parties acknowledge the Owner shall hold the Property for rental as Affordable Rental
Housing as provided in the Declaration of Restrictions, which Declaration of Restrictions
shall be recorded and run with the land for the duration thereof. Notwithstanding
anything to the contrary herein, the Owner shall have the right to transfer the ownership
of the Property and/or the Improvements to another entity having experience in the
ownership and operation of such property, as reasonably determined by the
Agency/City, which approval shall not be unreasonably withheld, delayed or
conditioned. For purposes of this Section, the Agency/City hereby approves (i)
execution of an option agreement between Owner and Owner's managing member
granting the managing member or wholly owned affiliate of the managing member an
option to purchase the property; and (ii) the exercise of such option and transfer of the
Property to the managing member of Owner or a wholly owned affiliate of the managing
member of the Owner, provided the grantee shall take an assignment of and assume
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this Agreement and the Loan Documents and all obligations and requirements
thereunder and concurrently with such transfer and assignment the Owner may request
from the Agency and City a release under the Loan Documents.
3.6 Owner shall cause to be opened an escrow for the Loan and the Loan
Documents. Such escrow shall direct that the Loan shall close concurrently with the
closing of the escrow, which closing shall otherwise be upon terms and conditions
reasonably agreeable to Agency/City and contained in escrow instructions including this
Agreement which shall constitute supplemental escrow instructions, provided that the
escrow documents will include, without limitation and as applicable, parcel map(s), title
report(s), loan agreement(s), the promissory note(s), the trust deed(s), any other
security instruments, and Owner's written acknowledgment of and agreement to the
Declaration of Restrictions attached hereto as Exhibit "D," including the Affordable
Rental Housing covenants therein.
3.7 The Loan shall be nonrecourse to the Owner and all constituent members of
the Owner.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Except to any extent otherwise set forth herein, before Owner begins
constructing the Improvements or undertakes any other work of improvement on the
Property, the Owner, at its own cost and expense, will secure all land use and other
entitlements, permits, and approvals that the Agency/City or any other relevant
governmental agency requires for construction of the Project. Without waiver or
limitation, the Owner will secure, and will 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 Improvements or the Property
may require.
4.1.2 ADA/Barriers to the Disabled. The Project shall be rehabilitated
and maintained to comply with all applicable federal, state and local accessibility
requirements. For purposes of this Agreement the number of accessible dwelling units
shall be (zero (0)) unless a greater number of units shall be required by law, whereupon
such greater number of units shall apply. These Units must be constructed in
accordance with the Uniform Federal Accessibility Standards (UFAS) or a standard that
is equivalent or stricter. These mandates can be found in 24 CFR Part 8, which
implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). If any unit
becomes vacant during the construction of the Project, the Owner shall take all
reasonable efforts to make such vacant unit accessible or adaptable to a mobility
impaired occupant.
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4.1.3 The design and construction requirements of the Fair Housing Act
(Title VIII of the Civil Rights Act of 1968, as amended).
4.1.4 Title III of the Americans with Disabilities Act of 1990 (ADA) as it
relates to the required accessibility of public and common use areas of the Project.
4.2 Owner, covenants and agrees that, in accordance with the requirements of
24 CFR 92.252 and 24 CFR Part 85, upon any uncured default by Owner within the
meaning of Article 10.1 of this Agreement, the Agency/City may suspend or terminate
this Agreement and all other agreements with Owner without waiver or limitation of
rights/remedies otherwise available to the Agency/City.
4.3 Owner represents and warrants as of the date hereof that no official, officer,
agent, or employee of the Agency/City directly or indirectly owns or controls any interest
in Owner, and no person, directly or indirectly owning or controlling any interest in
Owner, is an official, officer, agent, or employee of the Agency/City. Owner warrants,
covenants and agrees that it shall comply with the Conflict of Interest requirements of
24 CFR 92.356 including, without limitation, that no officer, employee, agent or
consultant of Owner (other than an employee or agent of Owner who occupies a unit as
the project manager or maintenance worker) may occupy a Project Unit. Owner
understands and acknowledges that no employee, agent, consultant, officer or elected
official or appointed official of the Agency/City, who exercises or has exercised any
functions or responsibilities with respect to the Project, or who is in a position to
participate in a decision making process or gain inside information with regard to these
activities, may obtain a financial interest or benefit from the Project, or have an interest
in any contract, subcontract or agreement with respect thereto, or the proceeds there
under, either for him or herself or for anyone with which that person has family or
business ties, during his or her tenure or for one year thereafter. To the extent provided
at 24 CFR 92.356(f), no owner, developer or sponsor of the Project, or officer,
employee, agent or consultant thereof, may occupy a Project Unit.
4.4 Owner shall rehabilitate the proposed housing units assisted under this
Agreement in compliance with all applicable local codes, ordinances and zoning
requirements in effect at the time of issuance of Certification of Completion. In the
absence of a local code for construction, Owner agrees to comply with the applicable
standards identified in 24 CFR 92.251.
4.5 Owner shall promptly and faithfully comply with, conform to and obey all
present and future federal, state and local statutes, regulations, rules, ordinances and
other legal requirements applicable by reason of this Agreement or otherwise to the
Project including without limitation prevailing wage and public bidding requirements.
The CITY's annual resolution setting out per diem wage rates is available from the
15
CITY's Construction Management Division. Owner acknowledges that the use of
HOME Funds subjects the Project to extensive federal regulation and covenants and
agrees that it shall comply with, conform to and obey (and take such steps as are
required of Owner to enable the City to comply with, conform to and obey) all federal
statutes, regulations, rules and policies applicable to the Program and the Project.
4.6 Owner shall discharge, bond, or insure over or otherwise release or
collateralize to the Agency/City's reasonable satisfaction any mechanic's, laborers,
materialman's, warehouseman's, or other lien or stop notice filed against the Eligible
Property or Project funding within twenty (20) days after the date the lien or stop notice
is filed. If Owner fails to discharge, bond or otherwise satisfy the Agency/City with
respect to any lien, encumbrance, charge or claim referred to in the Section above,
then, in addition to any other right or remedy, the Agency/City may, but shall not be
obligated to, discharge such lien, encumbrance, charge, or claim at Owner's expense.
Owner hereby agrees to indemnify and hold the Agency/City harmless from liability for
such liens, encumbrances, charges or claims together with all related costs and
expenses.
4.7 Owner has submitted a general or basic concept drawing to the Agency/City,
which the Agency/City has approved (the "Basic Design"). The Owner will complete the
Improvements on the Property in one phase, according to the Basic Design, and the
plans, drawings, and documents that Owner submits to the Agency/City. The Owner
shall carry out construction of the Project and Improvements in accordance with all
applicable local, state and federal laws, codes, ordinances and regulations, including
without limitation all applicable state and federal labor standards.
4.8 Annually, beginning in the year following Agency/City'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, at its sole cost and expense,
shall submit to Agency/City audited financial statements covering the income and
expenses, and the financial transactions for the Project during Owner's prior fiscal year.
Owner shall make available for examination at reasonable intervals and during normal
business hours to Agency/City all books, accounts, reports, files and other papers or
property with respect to all matters covered by this Agreement, and shall permit
Agency/City to audit, examine and make excerpts or transcripts from such records.
Agency/City may audit any conditions relating to this Agreement at the Agency/City's
expense, unless such audit shows a significant discrepancy in information reported by
Owner to Agency/City in which case Owner shall bear the cost of such audit. Owner
shall also cooperate with Agency regarding audit requirements of the California
Redevelopment Law including Califomia Health and Safety Code Sections 33080 and
33080.1.
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4.8.1 The Annual Report shall include for each rental Unit covered by this
Agreement: the rent, the annual income and the Family size of the Household. The
report shall also state the date the tenancy commenced for each rental Unit, certification
from an officer of Owner that the Project is in compliance with the Affordable Rental
Housing requirements, and such other information the Agency/City may be required by
law to obtain. Owner shall provide any additional information reasonably requested by
the Agency/City.
4.8.2 This section 4.8 shall survive expiration or termination of this
Agreement.
4.9 Owner shall be accountable to Agency/City for all Loan funds disbursed to
Owner pursuant to this Agreement. The Agency/City and the State shall have the right
at all reasonable times to inspect or perform an audit of Owner's books, records and
other documents pertaining to the Project or this Agreement and for up to four (4) years
after the expiration or termination of this Agreement. Owner will cooperate fully with the
Agency/City and the State in connection with any interim or final audit relating to the
Project that may be performed. Owner will maintain 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. Books and records
must be kept accurate and current. For purposes of this section, "books, records and
documents" include, without limitation, plans, drawings, specifications, ledgers,journals,
statements, contracts/agreements, funding information, purchase orders, invoices, loan
documents, computer printouts, correspondence, memoranda and electronically stored
versions of the foregoing. This section shall survive the expiration or termination of this
Agreement.
4.10 The Owner shall acquire the Property, cause the issuance of all necessary
discretionary governmental permits, approvals and entitlements, close any implicated
escrow and begin/complete rehabilitation of the Improvements according to the
Schedule of Performance, attached as Exhibit "C" hereto.
4.11 The Agency/City, acting through and in the discretion of its Director and
Manager respectively, may extend the completion date for the time that it, in its sole
discretion, determines reasonably necessary to overcome any delay if and to the extent
that the delay is due to a cause which is beyond the Owner's reasonable control, and if
Owner could not, with reasonable diligence, have foreseen and avoided the cause for
delay. Such causes include, without limitation, acts of God, unusually severe weather
or flood, war, riot or act of the public enemy, labor disputes, unavoidable inability to
17
secure labor, materials, supplies, tools or transportation, or acts or omissions of any
governmental authority having jurisdiction. The Agency/City will not extend the
completion date for acts or omissions occurring through the fault of the Owner, or for
acts of the Agency/City permitted or contemplated by this Agreement. An extension of
time as provided in this subsection will be the Owner's sole remedy for any delays in the
Schedule of Performance or the Project completion date.
4.11.1 As a condition precedent to any extension, Owner will give the
Agency/City notice within ten (10) days after any cause for delay occurs, stating the
cause, and the additional time that Owner anticipates it needs to complete the
Improvements. Any extension by the Agency/City must be in writing and signed by the
Director and Manager or their respective designee(s). which approval shall not be
unreasonably withheld, delayed or conditioned.
4.12 Subject to the Notes and to the extent of appropriated and available Loan
funds in any Agency/City fiscal year hereunder, the Loans shall be disbursed to Owner
at the close of escrow on the Loan Documents. As to the RDA Loan, interest at the
Applicable Federal Rate shall accrue on all principal outstanding amortized over a 30
year period provided that in the event Project Section 8 funding is lost then interest shall
thereupon accrue at 3% per annum. As to the City Loan, interest at the Applicable
Federal Rate shall accrue on all principal outstanding amortized over a 30 year period.
Each of the RDA Loan and the City Loan shall be due and payable from Project residual
receipts and residual receipts reserve account (as defined in the Notes) at the times and
in the amounts provided in the Notes. In the event residual receipts and the residual
receipts reserve account are not sufficient to make any scheduled payment(s) the
deficiency shall accrue with interest and be payable with the next scheduled Loan
payment. The Owner shall bear all costs of the Project and the Improvements. All Loan
funds provided by Agency and City shall be used solely for Eligible Costs of the Project
and Improvements. In the event of any conflict between the Notes and this section, the
Notes shall control. In any event, the entire outstanding principal and interest will be
due (i) as to the RDA Loan, 30 years following the close of Escrow, (the "RDA Loan
Maturity Date") and (ii) as to the City Loan, 30 years following the close of Escrow, (the
"City Loan Maturity Date".) Each of RDA and City shall have the option to extend their
respective Notes for an additional 25 years in the event full payment thereof is not made
upon maturity.
4.13 The Owner will notify the Agency/City when the Owner deems the Project
complete. Within ten (10) business days after such notice, the Agency/City will inspect
the Improvements. When the Agency/City reasonably determines that the Owner has
completed the Improvements as required in this Agreement, the Plan, and the Law, the
Agency/City will furnish the Owner with a recordable "Certificate of Completion" in the
form attached hereto as Exhibit "E". The Agency/City will not unreasonably delay,
condition or refuse to issue the Certificate of Completion. The Certificate of Completion,
18
when recorded in the Official Records of Fresno County, will be a conclusive
determination that Owner has satisfactorily completed the improvements required under
this Agreement. Any parties then owning or after that 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 rehabilitating the Improvements, but will take subject to the continuing
covenants set forth in this Agreement including the Declaration of Restrictions.
4.13.1 If the Agency/City determines not to furnish the Certificate of
Completion, after written request from the Owner, the Agency/City, within ten (10) days
after receiving the Owner's written request, will give the Owner a written notice stating
why it has decided not to issue the Certificate of Completion, or why it is delaying the
issuance, and the reasonable actions that, in the Agency/City's opinion, the Owner must
take before the Agency/City can issue the Certificate of Completion. The Agency/City'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 will not be
evidence that Owner has complied with or satisfied Owner's obligations to any Security
Financing Interest, mortgage or deed of trust holder, or any mortgage insurer. The
Certificate of Completion is not a notice of completion as referred to in Section 3093 of
the California Civil Code,
4.14 To the extent economically feasible, consistent with the requirements of any
permitted encumbrance, or as otherwise approved by Agency/City, unless otherwise
expressly provided in the Agreement, if any building or improvement on the Property is
damaged or destroyed by an insurable cause, the Owner shall, at its cost and expense,
diligently undertake to repair or restore said buildings and improvements consistent with
the original Plans and Specifications 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.
4.15 Owner and its contractors, subcontractors and service providers for the
Project shall comply with all applicable local, state and federal requirements concerning
equal employment opportunity and shall incorporate such requirements in all contracts
for work on the Project.
4.16 Owner shall permit, facilitate and require its contractors to permit and
facilitate observation and inspection at the job site by Agency/City and by public
authorities during reasonable business hours and upon reasonable notice for the
purpose of determining compliance with this Agreement.
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4.17 Owner warrants, covenants and agrees that pursuant to 24 CFR 92,353, it
will take all reasonable steps to minimize the displacement of any persons (families,
individuals, businesses, nonprofit organizations and farms).
4.17.1 If and to the extent that development of the Project results in the
permanent or temporary displacement of residential tenants, homeowners or
businesses, Owner shall comply with all applicable local, state and federal statutes and
regulations with respect to relocation planning, advisory assistance and payment of
monetary benefits. Owner shall be solely responsible for payment of any relocation
benefits to any displaced persons and any other obligations associated with complying
with said relocation laws.
4.18 Annually, beginning in the year following Agency/City's issuance of the
Certificate of Completion, and continuing until the expiration of the Agreement Owner
shall submit proof of insurance as required by this Agreement.
4.19 All Leases used to rent the Units are subject to the following:
4.19.1 Owner shall include in leases for all 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 or very 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 or very 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
Units that have been allocated low income housing tax credits by a housing credit
agency pursuant to section 42 of the Internal Revenue Code of 1986 (26 U.S.C. 42)
must pay rent governed by Section 42.
4.19.2 In addition, the leases for 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 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 4.19.1 above.
4.19.3 Notwithstanding anything to the contrary contained herein or in any
of the Loan Documents, the Agency/City acknowledges and agrees that in the event of
a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to
the Property, the following rule contained in Section 42(h)(6)(E)(ii) of the Internal
Revenue Code of 1986, as amended, shall apply: For a period of three (3) years from
the date of Foreclosure, with respect to any unit that had been regulated by the
regulatory agreement with the California Tax Credit Allocation Committee, (i) none of
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the tenants occupying those units at the time of Foreclosure may be evicted or their
tenancy terminated (other than for good cause), (ii) nor may any rent be increased
except as otherwise permitted under Section 42 of the Code.
4.20 With respect to the Project the Owner shall comply with the following:
4.20.1 Except to any extent otherwise provided in this Agreement, the
Owner's Management Agent is specifically responsible for all management functions
with respect to the Project 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/City shall have no responsibility for such management of
the Project.
4.21 The following are conditions precedent to the Agency/City issuing the
Certificate of Completion, and each submission will be in form and substance
satisfactory to the Director.
4.21.1 Evidence that all mechanics' liens or material men's liens recorded
against the Property or Improvements have been released or, if not released,
sufficiently bonded (i.e. 150%) against as required by law.
4.22 Owner covenants and agrees that the Project shall constitute Affordable
Rental Housing during the entire Affordability Period. In the event that Owner fails to
comply the requirement to lease only to qualified Households during the period in which
the Project must constitute Affordable Housing, Agency/City shall be entitled to enjoin
Owner from leasing the Units in the Project, as Owner acknowledges that damages are
not an adequate remedy at law for such breach.
4.23 If and to the extent that construction 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.
5. INDEMNITY; INSURANCE.
5.1 The Owner shall indemnify, hold harmless and defend the Agency/City and
each of their officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time and property
21
damage) incurred by the Agency/City, the 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 performance of
this Agreement. The Owner's obligations under the preceding sentence shall not apply
to any loss, liability, fines, penalties, forfeitures, costs or damages to the extent caused
by the active negligence or by the willful misconduct of the Agency/City or any of their
respective officers, officials, employees, agents or volunteers.
5.1.1 This section 5.1 shall survive termination or expiration of this
Agreement.
5.2 Until the Agency/City issues the Certificate of Completion and the Certificate
of Completion is recorded in the Official Records of Fresno County, the Owner shall pay
for and maintain or cause to be paid and maintained in full force and effect all policies of
insurance required hereunder with an insurance company or companies either(i)
admitted by the California Insurance Commissioner to do business in the State of
California and rated not less than "A-VII" in Best's Insurance Rating Guide; or(ii)
authorized by the Agency/City. The following policies of insurance are required, and
Owner will deliver proof of these policies before the closing escrow and starting
rehabilitation:
5.2.1 Commercial General Liability. Insurance which shall include
contractual, products and completed operations coverages, bodily injury and property
damage liability insurance with combined single limits of not less than $1,000,000 per
occurrence.
5.2.2 Commercial Automobile Liability. Insurance, endorsed for"any auto"
with combined single limits of liability of not less than $1,000,000 per occurrence.
Labor Code. 5.2.3 Workers' Compensation Insurance. As required under the California
5.2.4 Builders Risk Insurance. An amount to provide coverage to 100
percent of the replacement value the Improvements, including terms of labor and
materials in place or to be used as part of the permanent construction, including surplus
miscellaneous materials and supplies incidental to the work and such scaffolding,
staging, towers, forms and equipment as are not owned or rented by the Owner, the
cost of which is not included in the cost of work.
5.3 The above described policies of insurance shall be endorsed to provide an
unrestricted 30-day written notice in favor of the Agency/City, of policy cancellation,
change or reduction of coverage, except for the Workers' Compensation policy which
shall provide a 10-day written notice of such cancellation, change or reduction of
22
coverage. If any policy is due to expire during the term of this Agreement, the Owner
shall provide a new certificate evidencing renewal of such policy not less than 15 days
before the expiration date of the expiring policy. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, change or reduction in coverage, the Owner shall
file with the Agency/City a certified copy of the new or renewal policy and certificates for
such policy.
5.4 The General Liability and Automobile Liability insurance policies shall be
written on an occurrence form and shall name the Agency/City, its officers, officials,
agents, employees and volunteers as an additional insured. Each policy shall be
endorsed so that owner's insurance is primary and no contribution is required of the
Agency/City. The Owner shall furnish the Agency/City with copies of the actual policies
upon the request of the Agency/City, at any time.
5.5 If at any time the Owner fails to maintain the required insurance in full force
and effect, Owner shall immediately discontinue all work under this Agreement until the
Agency/City 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 the Agency to terminate this Agreement.
5.6 If the Owner uses a general contractor for all or any portion of the work under
this Agreement, the Owner shall require the general contractor to provide insurance
protection in favor of the Owner and in favor of the Agency/City, its officers, officials,
employees, agents and volunteers according to the terms of each of the preceding
paragraphs, except that the general contractor's certificates and endorsements shall be
on file with the Owner and Agency/City before any work begins on the Improvements.
5.7 For the Owner's design work or if Owner contracts the design work for any
portion of the Improvements, the Owner shall require the architect and structural
engineer to maintain the following insurance coverage:
5.7.1 Professional Liability Insurance. (Errors and omissions) with a limit
of not less than $1,000,000 per occurrence.
5.8 If claims made forms are used for any Professional Liability Coverage, either
(i) the policy shall be endorsed to provide not less than a five-year discovery period, or
(ii) the coverage shall be maintained for a minimum of five years following the
termination of this Agreement and the requirements of this section relating to such
coverage shall survive termination or expiration of this Agreement.
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5.9 Owner will obtain and deliver labor and material bonds, 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. The bond will each be in an amount at least equal to 100% of Owner's
estimated construction costs. The Agency/City, at the option of Director and Manager,
instead of requiring performance and payment bonds, may consider and accept other
evidence satisfactory to them, of the Owner's ability to complete the Improvements.
5.10 Until the Agency/City issues the Certificate of Completion, for purposes of
assuring compliance with this Agreement, Agency/City will have access to the Property,
after reasonable notice to the Owner(except in emergencies), without charge or fee,
during normal construction hours. Agency/City representatives will comply with all
safety rules while on the Project or the Property.
5.11 The Owner will design and construct the Improvements, and after that, prior
to any allowable transfer or sale thereof, Owner will maintain the Property to be
maintained according to all applicable laws including, without limitation, all applicable
state labor standards, zoning and development standards, building, plumbing,
mechanical and electrical codes, all provisions of the Fresno Municipal Code and all
applicable access requirements. The Agency/City makes no representation about
which, if any, of such laws, ordinances, regulations or standards apply to development
of the Project.
6. SECURITY FINANCING AND RIGHTS OF HOLDERS.
6.1 Notwithstanding any other provision of this Agreement, Owner may not grant
a security interest in the Property before the Agency/City issues and records a
Certificate of Completion, absent written consent of Agency/City, provided that the
Agency/City hereby approves the security interest of Citicorp including its respective
successors or assigns as provided for in this Agreement, providing construction and
permanent financing.
6.2 The holder of any Security Financing Interest is not obligated to perform
Owner's rehabilitation obligations, or to guarantee the rehabilitation of Owner
Improvements. However, any holder of a Security Financing may not devote the
Property to any use, and may not construct any improvements on the separate parcels,
except as authorized by this Agreement.
6.3 If a holder or the Owner gives a holder's address to the Agency/City and asks
the Agency/City to notify the holder, the Agency/City will give a duplicate notice to the
holder of any notice or demand that it gives to Owner of any Default. Within thirty (30)
days after the receipt of the notice, each such holder of record will have the right, but
24
not the obligation, to cure the Owner's default or breach.
6.4 Except as necessary to conserve or protect improvements already
constructed, a holder of a Security Financing Interest may not undertake to complete
the Owner Improvements, without first expressly assuming Owner's obligations
hereunder in a writing satisfactory to the Agency/City. Under any assumption
agreement, the holder must agree to complete the Owner Improvements as provided in
this Agreement. It must also submit evidence satisfactory to the Agency/City that it has
the qualifications and financial responsibility necessary to perform the obligations. Any
holder properly completing the Owner Improvements will be entitled, upon written
request, to a Certificate of Completion from the Agency/City.
6.5 If a holder of a Security Financing Interest assumes the Owner's construction
obligations but, within six months after Owner's Default, does not proceed diligently with
construction, the Agency/City will have the same rights against the holder as it would
otherwise have against the Owner. The Agency/City's rights against the holder will be
to the extent the events producing the rights occur after the holder assumes control of
the Property, unless otherwise provided in the assumption agreement between the
Agency/City and the holder.
6.6 If(a) the Owner defaults under a Security Financing Interest before
completing the Owner Improvements as described in the Recitals to this Agreement
including the Rehabilitation Budget Worksheet referenced therein and attached to the
Exhibit "C" Schedule of Performance/Payment Schedule, and (b)the holder does not
assume Owner's construction obligations, then the Agency/City may cure the default
before foreclosure. If the Agency/City cures the default, Owner will reimburse the
Agency/City on demand for all costs and expenses it incurs to cure the default. The
Agency/City may lien the Property to the extent of such costs and expenses. Any lien
will be subordinate to any Security Financing Interest created for the sole purpose of
obtaining funds to purchase and rehabilitate the Property, as authorized in this
Agreement.
6.7 Until the Owner completes the Owner Improvements and the Agency/City
records the Certificate of Completion, the Agency may cure Owner's default of other
liens. Agency/City will not exercise the right until Owner has had a reasonable time to
challenge, cure, or satisfy the liens or encumbrances. This provision does not prevent
the Owner from contesting the validity or amount of a tax, assessment, lien or charge.
In doing so, the Owner must act in good faith, the payment delay must not subject the
Property to forfeiture or sale. If any such tax assessment or lien is contested by Owner
then, before the tax, assessment, lien or charge is due and payable (without a late fee
or penalty), the Owner must give reasonable security to the Agency/City for the lien or
charge, and notify the Agency/City that it will appeal any property tax assessment.
25
6.8 Before Owner grants any Security Financing Interest in any parcel, Owner
will cause the holder of a Security Financing Interest to insert or incorporate by
reference the provisions of this Section 6 into the documents evidencing the Security
Financing Interest.
7. CONTINUING OWNER OBLIGATIONS,
7.1 In its performance of this Agreement, Owner covenants by and for itself and
its successors and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of any person, including contractors,
subcontractors, bidders and vendors, on account of race, color, religion, ancestry,
national origin, sex, sexual preference, age, pregnancy, childbirth or related medical
condition, medical condition (e.g., cancer related) or physical or mental disability, and in
compliance with all applicable federal, state and local laws, regulations and rules
including without limitation Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the
Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42
U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal.
Government Code Section 12900, et seq., the California Equal Pay Law, Cal. Labor
Code Section 1197.5, Cal. Government Code Section 11135, the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other applicable anti-
discrimination laws and regulations of the United States and the State of California as
they now exist or may hereafter be amended. Owner will allow Agency/City
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/City.
7.2 The 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
taxes. The 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. The
Owner will notify the Agency/City prior to applying for or receiving any exemption from
the payment of property taxes or assessments on any interest in or to the Property or
the Improvements. Owner further agrees that the prior consent of the Agency/City 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.
8. COVENANTS AND RESTRICTIONS RUNNING WITH THE LAND. The following
covenants shall run with the land and shall bind Owner, and Owner's successors in
interest to the Property for the periods stated, and shall without regard to technical
classification or designation, legal or otherwise, be fully binding for the benefit of the
26
Plan community and the Agency/City.
8.1 The 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 rehabilitation, and after completing the Improvements, the Owner shall devote
the Property to the uses specified in the Plan and this Agreement for the life of the Plan.
All uses of the Property including, without limitation, all activities Owner undertakes
pursuant to this Agreement, shall conform to the Plan, owner participation rules and
criteria of the Plan and the Agency/City and all applicable laws. Without waiver or
limitation, each of the Units to be rehabilitated pursuant to this Agreement shall be
maintained as Affordable Rental Housing pursuant to this Agreement and the
Declaration of Restrictions.
8.2 The Owner and those taking under the Owner will maintain the Property and
the,and all Improvements on site in reasonably good -condition and repair(and, as to
landscaping, if any, in a healthy condition), all according to the approved plans, as
amended from time to time, and without limitation the Owner and those taking under the
Owner shall: (i) maintain all on site Improvements 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 Improvements 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 Improvements; and (v)
promptly replace dead and diseased plants and landscaping with comparable materials.
8.3 Agency/City will give Owner notice of any breach of this maintenance
covenant. Agency/City and Owner will promptly after that meet and confer, and agree
to the corrective actions and a schedule of performance. Owner must cure the default
within the agreed schedule or within (a) 10 days after the Agency/City's notice for any
default involving landscaping, graffiti, debris, waste material, or general maintenance, or
within (b) 30 days after Agency/City's notice for any default involving building
improvements, provided that if the Owner cannot reasonably cure the default within 30
days, then the Owner shall begin the cure within said 30 day period and diligently
pursue it to completion. If Owner does not cure the default within those times, the
Agency/City, without obligation to, may enter the Properties, cure the default, and
protect, maintain, and preserve the Improvements and landscaping.
8.4 Agency/City may lien the Properties, or assess the Properties, for the
Agency/City's expenses in protecting, maintaining, and preserving the on-site
Improvements and aesthetics of the Properties, including up to a 15% administrative
charge in the manner used by the Agency/City in the abatement of public nuisances.
The notice and opportunity to cure provided for herein will substitute for the noticing,
hearing, and nuisance abatement order used by the Agency/City. Owner will promptly
27
pay all such amounts to the Agency/City upon demand.
8.5 Through the later of(i) fifty-five years after issuance of the Certificate of
Completion, (ii) the date of expiration of the longest running occupancy and rent
affordability restriction placed on the Property with respect to any source of debt or
equity financing for the Project Improvements which is recorded in the Official Records
of Fresno County, the Owner covenants to use and operate the Property as Affordable
Rental Housing pursuant to the Declaration of Restrictions.
8.6 The 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 Property, nor shall the 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 Property. The foregoing covenants shall run
with the land.
8.7 The Owner covenants, for itself and any successors in interest and all
persons claiming by through or under them, that it/they shall refrain from restricting the
rental, sale or lease of the Property based on race, color, religion, sex, sexual
preference, marital status, ancestry or national origin of any person. All deeds, leases,
or contracts concerning the Property shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
In 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."
In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and
28
all persons claiming under or through him or her, and this lease is
made and accepted upon and subject to the following conditions:
"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."
In 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."
8.8 The Agency/City 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 the Agency/City has been, remains, or is an owner of any land or
interest in the Property or in the Project or Improvements. The Agency/City may
exercise all rights and remedies, and maintain any actions or suits at law or in equity or
other proceedings to enforce the covenants for itself or any other beneficiaries.
8.9 Owner warrants, covenants and agrees that it shall comply with the
procedures for initial and annual income determinations at 24 CFR 92.203. Owner shall
obtain, complete and maintain on file, immediately prior to initial occupancy, and
annually thereafter, income certifications from each tenant Household renting any Unit.
Owner shall make a good faith effort to verify that the income provided by an applicant
or occupying Household in an income certification is accurate by taking one or more of
the following steps as part of the verification process: (1) obtain a pay stub for the most
recent pay period; (2) obtain an income verification form from the applicant's current
employer; (3) obtain an income verification form from the Social Security Administration
and California Department of Social Services if the applicant receives assistance from
29
either of such agencies; (4) obtain an income tax return for the most recent tax year, (5)
if the applicant is unemployed and has no such tax return, obtain another form of
independent verification, or(6) conduct a credit agency or similar search. Copies of
tenant income certification and verification must be available for review by the
Agency/City upon request.
8.10 Owner warrants, covenants and agrees that it shall comply with all
applicable requirements of the Lead-Based Paint Poisoning Prevention Act of 42 U.S.C.
4821 et seq., 24 CFR Part 35 including the HUD 1012 Rule, and 24 CFR 982.4010),
including any amendments thereto, in the development of the Project. These
requirements apply to all units and common areas in the Project. Owner shall
incorporate or cause incorporation of this provision in all contracts and subcontracts for
work performed on the Project, which involve the application of paint. Owner shall be
responsible for all disclosure, inspection, testing, evaluation, control and abatement
activities.
8.11 Owner warrants, covenants and agrees that it shall comply with all federal
laws and regulations described in Subpart H of 24 CFR Part 92, including, without
limitation, any requirement that Owner comply with the CITY's minority outreach
program.
8.12 Owner warrants, covenants and agrees that, in addition to complying with
the federal laws and regulations already cited in this Agreement, Owner has reviewed,
and shall comply with, all other federal laws and regulations that apply to the HOME
Program, including, without limitation, the following requirements:
8.12.1 The Flood Disaster Protection Act of 1973, as amended (42 U.S.C.
4001-4128), and all other regulations as identified in 24 CFR 58.6. The Project is not
located in a tract identified by the Federal Emergency Management Agency as having
special flood requirements.
8.12.2 The Project requirements, Subpart F of 24 CFR Part 92, as
applicable and in accordance with the type of Project assisted, including, but not limited
to, the limit on per-unit subsidy amount at 24 CFR 92.250.
8.12.3 The property standards at 24 CFR 92.251.
8.12.4 The Project "Labor' requirements, as applicable, of 24 CFR 92.354
including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7), as
supplemented by Department of Labor regulations (29 CFR Part 5).
8.12.5 The provisions of Section 102 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of
30
Labor Regulations (29 CFR Part 5), in regards to the construction and management of
the proposed Project.
8.12.6 Owner and its contractors, subcontractors and service providers for
the Project, shall comply with all applicable local, state and federal requirements
concerning equal employment opportunity, including compliance with E.O. 11246,
"Equal Employment Opportunity', as amended by E.O. 11375, "Amending Executive
Order 11246 Relating to Equal Employment Opportunity," and as supplemented by
regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs. Equal
Employment Opportunity, Department of Labor".
8.12.7 The provisions of the Copeland "Anti-Kickback" Act (18 U.S.C.
874), as supplemented by Department of Labor regulations (29 CFR part 3,
"Contractors and Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States").
8.12.8 The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and
the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended.
1352). 8.12.9 The provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C.
8.12.10 The provision of Executive Orders 12549 and 12689, "Debarment
and Suspension," as set forth at 24 CFR part 24.
8.12.11 The provisions of the Drug-Free Workplace Act of 1988 (42
U.S.C. 701), in accordance with the Act and with HUD's rules at 24 CFR part 24,
subpart F.
8.12.12 Title 8 of the Civil Rights Act of 1968 PL. 90-284.
8.12.13 Executive Order 11063 on Equal Opportunity and Housing.
8.12.14 Section 3 of the Housing and Urban Development Act of 1968.
8.12.15 The Housing and Community Development Act of 1974.
8.13 Owner warrants, covenants and agrees that it is a secular entity and not a
primarily religious organization and that it shall not engage in any prohibited activities
described in 24 CFR 92.257. Subject to the foregoing, Owner does not intend to utilize
HOME Funds to construct housing owned primarily by religious organizations or to
assist primarily religious organizations in acquiring housing.
8.14 Owner understands and agrees that, if the Project is terminated before
completion, either voluntarily or otherwise, such constitutes an ineligible activity and any
31
HOME Funds disbursed hereunder must be repaid to the City's HOME Investment Trust
Fund in accordance with 24 CFR 92.503 (b).
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 otherwise 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 thirty (30) calendar days after receiving the notice to cure the
Default, or, if the party cannot reasonably cure the Default within such 30 days, the
other party must begin to cure within the thirty (30) days and diligently pursue the cure
to completion, whereupon there shall be no event of Default, provided, however, prior to
declaring any default or taking any remedy permitted under the Agreement or applicable
law based upon an alleged default hereunder or under any other Loan Document, the
Agency/City shall deliver written notice to the Investor Member of Owner(the "Investor
Member") of the Owner's failure to cure such default, and the Investor Member shall
have an additional period of not less than (a) ten (10) days from the date of such notice
to cure such alleged default if of a monetary nature, and (b) thirty (30) days from the
date of such notice to cure such alleged default if of a non-monetary nature; provided,
however, if in order to cure such a default the Investor Member must remove the
managing member of Owner, the Investor Member shall so notify the Agency/City and
so long as the Investor Member is diligently and continuously attempting to so remove
such managing member, the Investor Member shall have until the date thirty (30) days
after the effective date of the removal of the managing member to cure such default.
9.2 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 court in Fresno County, or in the District of the
United States District Court serving Fresno County.
9.3 If the Owner is not in Default under this Agreement prior to the close of
escrow on the Loan Documents, and the Owner does not cause failure of the escrow to
close, or if the Agency defaults and does not cure the Default within the permitted cure
period after notice, then the Owner at Owner's option may terminate this Agreement by
giving written notice of termination to the Agency/City. From the date the Agency/City
receives the written notice of termination, this Agreement shall be deemed terminated
32
and neither party will have any further rights or obligations under this Agreement, except
that the parties may pursue any other remedies they may have under this Agreement or
in law or equity.
9.4 If the Agency/City is not in Default under this Agreement and before it issues
the Certificate of Completion, any of the following occurs, the Agency/City may
terminate this Agreement by written notice to the Owner, and no party will have any
further rights or obligations under this Agreement, except the right to pursue any
remedies available under this Agreement, at law, or in equity:
9.4.1 The Owner(or any successor in interest) assigns or attempts to
assign the Agreement or any rights in it, or in the Property or the Project in violation of
this Agreement, provided, however(i) addition of an investor member to the Owner, (ii)
transfer of investor member interest to an entity controlled by CharterMac Capital LLC,
or(iii) removal of the managing member of the Owner pursuant to the terms of the
Amended and Restated Operating Agreement of the Owner is permitted and shall not
constitute an assignment in violation of this Agreement; or
9.4.2 One or more of the Agency/City's Conditions Precedent set forth
above is not fulfilled on or before the time set forth in this Agreement or the Schedule of
Performance, and the Agency/City does not cause the failure, and such failure to
perform is not cured within any period of time allowed under this Agreement; or
9.4.3 The Owner is otherwise in Default of this Agreement and fails to cure
the Default within the time permitted in this Agreement.
9.5 The Agency/City's right to terminate shall be subject to and be limited by and
shall not defeat, render invalid or limit:
9.5.1 Any Security Financing Interest permitted by this Agreement; and
9.5.2 Any rights or interests in this Agreement protecting Security
Financing Interests.
9.6 If the Owner begins any legal action against the Agency/City, it shall serve
process on the Agency/City by personal service on the Director and Manager
respectively, or in any other manner the law permits. If the Agency/City begins any
legal action against the Owner, it will serve process on the Owner by personal service
on the Owner or Owner's Agent, or in any other manner the law permits.
9.7 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
33
other rights or remedies for the same or any other Default of the other party.
9.8 A party's failure or delay in asserting any right or remedy will not be a waiver
of any Default or of any right or remedy, and will not deprive the party of its right to
begin and maintain any action or proceeding to protect, assert or enforce any right or
remedy.
9.9 The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
10. GENERAL PROVISIONS.
10.1 Any notice, demand, or other communication permitted or required under
this Agreement will be in writing and given by personal delivery, or by first-class U.S.
mail, postage prepaid, to a party at its respective address below:
To RDA:
Fresno RDA
Attn: Executive Director
2344 Tulare St suite 200
Fresno 93721
To Owner:
Martin Luther King Square, LLC
c/o A.F. Evans Co. Inc.
1000 Broadway, Suite 300
Oakland, CA 94607
With copy to:
Jennifer Bell, Esq.
Goldfarb & Lipman
1300 Clay Street, 9th Floor
City Center Plaza
Oakland, CA 94612
To City:
HECD Housing Manager
2600 Fresno Street, Room 3076
Fresno, CA 93721-3605
34
To Investor Member of Owner:
c/o CharterMac Capital LLC
625 Madison Avenue
New York, New York 10022
Attn: Marc D. Schnitzer
10.2 A party may change its address for notices, demands and communications
by giving notice of the new address as provided in this section. Any written notice,
demand or communication shall be deemed received immediately if delivered
personally, and shall be deemed received on the third day after it is postmarked if
delivered by regular, registered or certified mail, or on the date of receipt, if return
receipt is requested and available to confirm the date.
10.3 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
"Owner" is used in this Agreement, such term shall include Owner's successors and
assigns as permitted under this Agreement.
10.4 The Agency/City may assign or transfer any of its interests, rights, or
obligations hereunder at any time without the consent of the Owner.
10.5 No member, official or employee of the Agency/City shall be personally
liable to the Owner, or any successor in interest to Owner, for any Default or breach by
the Agency/City.
10.6 The relationship between the Agency/City on the one hand and the Owner
on the other is that of redevelopment agency/HOME grantee and redeveloper
respectively, as permitted by Law, and not that of a partnership or joint venture. The
Agency/City and the Owner shall not be deemed or construed for any purpose to be the
agent of the other. Except as expressly provided in this Agreement, the Agency/City
shall have no rights, powers, duties or obligations with respect to the development,
maintenance, management, or sale of the Property and the Improvements. The Owner
shall indemnify, hold harmless, and defend the Agency/City from any claim arising from
any claimed relationship of a partnership or joint venture between the Agency/City and
the Owner respecting the Project, the Property and the Improvements, including the
development, maintenance, management, or sale thereof. Notwithstanding the
foregoing, the Agency/City retains the right at all times to inspect the books, records and
other documents of the Owner pertaining to the Project and the Improvements including
the maintenance and rental of the Units as pertinent to the purposes of this Agreement.
35
10.7 Whenever this Agreement references an action or approval required or
permitted by the Agency/City, the Director and Manager and their respective designees
are authorized to act for them unless this Agreement, the Law, Constitutional and/or
local law provide otherwise, or the context otherwise requires.
10.8 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.
10.9 This Agreement, includes the exhibits and attachments referenced in it, and
the references incorporate into and make the exhibits a part of this Agreement. This
Agreement contains the entire agreement between the parties relating to the transaction
contemplated by this Agreement. This Agreement supersedes all prior or
contemporaneous agreements, understandings, representations and statements,
whether oral or written. Each party enters this Agreement based solely upon the
representations set forth herein and upon each party's own independent investigation of
any facts the party deems material. This Agreement includes pages 1 through 39
and Exhibits A through G.
10.10 If either party begins a lawsuit or arbitration proceeding, in law or equity,
to enforce or interpret any provision of this Agreement, the prevailing party will be
entitled to recover from the other party reasonable attorneys' fees, court costs, and legal
expenses as determined by the court or tribunal having jurisdiction.
10.11 Waiver of any provision of this Agreement must be in writing and signed by
a duly authorized representative of the party making the waiver. No other form of
waiver, express or implied, shall be effective. Waiver of any provision shall apply only
to that provision under the specific circumstances, and for that specific occasion. It
shall not apply to any other provision or to the same provision under different
circumstances or operate as a continuing waiver.
10.12 Any alteration, change or modification of or to this Agreement, to be
effective, must be in writing, and signed by each party.
10.13 If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances is held invalid or unenforceable, the remainder
of this Agreement and its application to persons or circumstances, other than those
about whom or which it is held invalid or unenforceable, shall not be affected, and shall
remain valid and enforceable to the fullest extent permitted by law.
10.14 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
36
their respective legal counsel as to the matters set forth in this Agreement, or has
knowingly chosen not to consult legal counsel, and (d) each has signed this Agreement
without relying on any agreement, promise, statement or representation by or for the
other party, or their respective agents, employees, or attorneys, except as specifically
set forth in this Agreement, and without duress or coercion, whether economic or
otherwise.
10.15 No member, official or employee of the Agency/City has or shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement which affects
his personal interests or the interests of any corporation, partnership or association in
which he is directly or indirectly interested. The 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.
10.16 Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
10.17 Owner shall reimburse Agency/City for all reasonable expenses and costs
of collection and enforcement, including reasonable attorney's fees, incurred by
Agency/City as a result of one or more events of Default by Owner under this
Agreement.
10.18 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.
10.19 No contractor, subcontractor, mechanic, materialman, 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/City and any such
person in writing, they may not enter any claim or bring any such action against
Agency/City under any circumstances. Except as provided by law, or as otherwise
agreed to in writing between Agency/City and such person, each such person shall be
deemed to have waived in writing all right to seek redress from Agency/City under any
circumstances whatsoever.
10.20 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
37
to carry out all actions on its part contemplated by this Agreement; that the execution
and delivery of this Agreement were duly authorized by proper action of the Owner and
no consent, authorization or approval of any person is necessary in connection with
such execution and delivery or to carry out all actions of the Owner's part contemplated
by this Agreement, except as have been obtained and are in full force and effect; and
that this Agreement constitutes the valid, binding and enforceable obligation of the
Owner.
10.21 In the event of any conflict between the body of this Agreement and any
exhibit or attachment hereto, the terms and conditions of the body of this Agreement will
control except for the Note which shall be controlling as to terms and conditions of the
Loan.
10.22 Owner agrees to cooperate with Agency/City and execute any documents
reasonably required, promptly upon Agency's request, and to promptly effectuate the
recordation of this Agreement, the Declaration of Restrictions, the Deed of Trust, and
any other documents/instruments that the Agency requires to be recorded, in the Official
Records of Fresno County, California, consistent with this Agreement.
38
IN WITNESS WHEREOF, the Agency, City and the Owner have signed this
Agreement, and the Agency and City have approved this Agreement, on the dates and
in the year set forth below.
REDEVELOPMENT AGENCY OF THE MARTIN LUTHER KING SQUARE, LLC,
CITY OF FRESNO, a California body a California limited liability company
corporate and politic
By: CL. C.Lk", -, � A By: A.F. EVANS COMPANY INC., a
Title: California corporation, Its Managing
K\eL (,er\ N1 (-+r-�Jhy Member
CITY OF FRESNO / By:
a California municipal corporation Titleff-:)
B � - C k"' 3 i�o C Cy ma`s � n
y:
Title- +�
ATTEST:
REBECCA E. KLISCH
CITY PL.ERK
Nepoty
APPROVED AS TO FORM:
JAMES C. SANCHEZ
INTERIM CITY ATTORNEY
BY - �..
puty
Attachments:
Exhibit A: Legal Description of OPA Properties:
Exhibit B: Budget/Financial Plan
Exhibit C: Schedule of Performance/Payment Schedule
Exhibit D: Declaration of Restrictions
Exhibit E: Certificate of Completion
Exhibit F(1): Promissory Note- Fresno RDA
Exhibit F(2): Promissory Note-City of Fresno
Exhibit G: Basic Design
RRC:eb(37334eb/agmt)4/4/06
39
i
i
State of California )
County of Alameda )
On April 20, 2006 before me, Jennifer M. Collins, Notary Public, personally appeared
John J. Robertson 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 signature(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.
Signature _—/ri `+ (Seal)
J£NNIFER M.COLL45
CommLsslon#15b13N37
j61MVComm,ExpkasMw29
Notary"Ic•CaUomla
Alameda County
,204
990050\1\312092.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
•� ss.
County of 4 '9 f?0
On 402t-ll /0 .2LI before me, .& ks- /j2n
006 Name and The of Officer(e.g.,"Jane Doe,Aotary Public
personally appeared
Name(s)of Signer(s)
I
personally known to me
❑ proved to me on the basis of satisfactory evidence
LYNETTE to be the person(s) whose name(s) is/are subscribed
C.omrUsIvn#1461326 to the within instrument and acknowledged to me that
lrowryac'Cc�wom�a he/she/they executed the same in his/her/their
i '°*°`�
it, Camrs.�sr�a Jan B.��Ut38 authorized capacity(ies), and that by his/her/their
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signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
executed the instrument.
WITNF�.S y hand and v Ise
Place Notary Seal Above �F 'srr �••"~• � ��
Xnatwa of Notary Public
OPTIONAL f
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name: f_
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s): ❑ Corporate Officer—Ttle(s):
❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General
❑ Attorney in Fact Topof thumb here ❑ Attorney in Fact
Top of thumb here
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
0 2004 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402 Item No.5907 Reorder:Call Toll-Free 1.600-676-6627
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ACKNOWLEDGMENT
State of California
County of Fresno
On r' .? ' �n� before me,,C e-Z` -. -CJ�,�-�c� /1/� /�✓S/rc_
(here insert name and title of the officer)
personally appeared
personally known to me to be
the person4&�whose name4W is/afesubscribed to the within instrument and
acknowledged to me that-he/she/t4ey executed the same in.k�s/her/tom authorized
capacity(, and that by#is/her/their signature(&)-on the instrument the personf s),
or the entity upon behalf of which the person(.s�-acted, executed the instrument.
LYNM UC*RS-CMM
WITNESS my h nd official se Garen*14a1116
FrNnv CDU*
j my cm &4*PS Jon S,F!lOOB
Signat a _ �ru ���
(Seal)
ACKNOWLEDGMENT
State of California
County of Fresno
on April 12, 2006, before me, Carol Borunda, Notary Public
(here insert name and title of the officer)
personally appeared Jon Ruiz
personally known to me (or proved to me on the basis of satisfactory evidence) to be
l
the person.whose name is "e subscribed to the within instrument and
acknowledged to me that he /t executed the same in&*/thKr authorized
capacity, and that by GfKdth�,r signatureKon the instrument the personK
or the entity upon behalf of which the person acted, executed the instrument.
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WITNESS my hand and official seal. cwaOL sORw+Dn
s COMM W1367TSS
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Signature ry Cow►•Fes•JWr
(Seal)
EXHIBIT "A"
LEGAL DESCRIPTION
Real property in the City of FRESNO, County of FRESNO, State of California, described
as follows:
PARCEL 1: APN 478-030-54
PARCEL D, AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 72-36 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF
CALIFORNIA ON AUGUST 8, 1972, IN BOOK 4 OF PRCEL MAPS PAGE(S) 10 AND
11 AND AS PER CERTIFICATE OF CORRECTION RECORDED MAY 9, 1973 IN
BOOK 6162, PAGE 550 OF OFFICIAL RECORDS.
PARCEL 2: APN 478-114-36
PARCEL B, AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 71-39 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF
CALIFORNIA ON JUNE 27, 1972, IN BOOK 3 OF PARCEL MAPS PAGE(S) 86.
PARCEL 3: APN 478-114-37
PARCEL A, AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 71-39 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF
CALIFORNIA ON JUNE 27, 1972, IN BOOK 3 OF PARCEL MAPS PAGE(S) 86.
APN: 478-030-54 and 478-114-36 and 478-114-37
EXHIBIT "B"
Budget/Financial Plan
[Intentionally Omitted.]
EXHIBIT "C"
Development Timetable/Payment Schedule j
Actual Or Scheduled
Month/Year
SITE
03/2005 Environmental Review Completed
05/2006 Site Acquired
LOCAL PERMITS
03/2005 Conditional Use Permit
N/A Variance
N/A Site Plan Review
N/A Grading Permit
07/2006 Building Permit
CONSTRUCTION FINANCING
03/2006 Loan Application
03/2006 Enforceable Commitment
06/2006 Closing and Disbursement
PERMANENT FINANCING
03/2006Loan Application
03/2006 Enforceable Commitment
06/2006 Closing and Disbursement
OTHER LOANS AND GRANTS
/ Type and Source:
Permanent Financing — Fresno Redevelopment Agency
03/2006 Application
0312006 Closing or Award
OTHER LOANS AND GRANTS
/ Type and Source:
Permanent Financing — City of Fresno
03/2006 Application
03/2006 Closing or Award
Tax Credit Allocation
/ Type and Source:
Tax Credit Allocation Committee
/ Application
/ Closing or Award
05/2006 10% of Costs Incurred
05/2006 Construction Start
10/2007 Construction Completion
Placed In Service
Occupancy of All Low-Income Units
Payment Schedule:
Loans to be disbursed through Project escrow per Agreement.
111
EXHIBIT "D"
DECLARATION OF RESTRICTIONS
Recording Requested and When Recorded Return to:
Redevelopment Agency of City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca. 93721
Attention: Executive Director
City of Fresno
Attn: Housing Manager
2600 Fresno St., Room 3076
Fresno, CA 93721
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY) T�
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
L i day of April 2006, by Martin Luther King Square, LLC, a California
limited liability company, ("Declarant"), in favor of the Redevelopment Agency of the City
of Fresno, a California public body corporate and politic, ("RDA") and the City of Fresno,
a California municipal corporation, ("City"), jointly and severally. The RDA and City are
collectively referred to as the "Beneficiaries".
WHEREAS, Declarant is the owner of the real estate in the county of Fresno,
state of California, located at 911 East Belgravia Avenue, APNs [478-030-54 and 478-
114-36 and 478-114-37], which is more particularly described in Exhibit "A", attached
hereto and made a part hereof, including the improvements thereon (the "Property");
and
WHEREAS, Declarant and Beneficiaries have entered into a certain April
2006 Owner Participation Agreement, recorded as Instrument No
in the Official Records of Fresno County, California, ("Agreement"),
whereby Declarant agrees to rehabilitate and maintain certain rental housing affordable
to low and very low-income families, subject to the terms and conditions set forth in the
Agreement; and
WHEREAS, in addition to the covenants and conditions contained in the
Agreement, the Declarant has agreed at the special instance and request of the
Beneficiaries and upon good and sufficient consideration, to impose certain California
Community Redevelopment Law (California Health & Safety Code Section 33000 et
seq.) and HOME Act (Title II of the Cranston-Gonzalez National Affordable Housing Act
of 1990, as amended; 24 CFR Part 92) affordability requirements upon 91 Units upon
the Property funded under the Agreement, which affordability restrictions must be
enforceable for a fifty-five (55) year period; and
WHEREAS, these restrictions are intended to bind Declarant and all purchasers
of the Property and their successors.
NOW THEREFORE, Declarant declares that the Property is held and will be
held, transferred, encumbered, used, sold, conveyed and occupied subject to the
covenants, restrictions, and limitations set forth in this Declaration, all of which are
declared and agreed to be in furtherance of the Martin Luther King Square Project, the
City's HOME Program obligations and activities, the RDA's Community Redevelopment
Law and Plan Area obligations including RDA's obligations set forth at California Health
& Safety Code sections 33334.2 et seq. and 33413 (a) with respect to housing set aside
funds and replacement dwelling units at affordable rent within the jurisdiction of the
RDA. All of the restrictions, covenants and limitations will run with the land and will be
binding on all parties having or acquiring any right, title or interest in the Property or any
part thereof, will inure to the benefit of the Beneficiaries, and will be enforceable by
them jointly and severally. Any purchaser under a contract of sale or other transferee of
an interest covering any right, title or interest in any part of the Property, by accepting a
deed or a contract of sale or agreement of purchase, accepts the document subject to,
and agrees to be bound by, any and all restrictions, covenant, and limitations set forth in
this Declaration for the period of fifty-five (55) years running from and after recordation
of Beneficiaries' Certificate of Completion constituting the Affordability Period.
1. Declarations. Declarant hereby declares that the Property is and shall be subject
to the covenants and restrictions hereinafter set forth, all of which are declared to be in
furtherance of the Property, the Martin Luther King Square Project, the City's HOME
Program obligations set forth at Title II of the Cranston-Gonzalez National Affordable
Housing Act of 1990, as amended; 24 CFR Part 92, the RDA's Community
Redevelopment Law and Plan Area obligations including RDA's obligations set forth at
California Health & Safety Code sections 33334.2 et seq. and 33413 (a) regarding
housing set aside funds and replacement dwelling units at affordable rent within the
jurisdiction of the RDA, and are established and agreed upon for the purpose of
enhancing and protecting the value of the Property and in consideration the Agreement
and the above recitals. All terms not otherwise defined herein shall have the meaning
ascribed to such term in the Agreement.
2. Restrictions. The following covenants and restrictions on the use and enjoyment
of the Property shall be in addition to any other covenants and restrictions affecting the
Property, and all such covenants and restrictions are for the benefit and protection of
the Beneficiaries jointly and severally and shall run with the Property and be binding on
any future owner's of the Property and inure to the benefit of and be enforceable by
Beneficiaries jointly and severally. These covenants and restrictions are as follows:
a. Declarant for itself and its successor(s) on title covenants and agrees
that from the date of recordation of Beneficiaries's Certificate of Completion until the
expiration of the Affordability Period it shall cause the 91 Project Units funded under the
Agreement to be used as Affordable Rental Housing and affordable replacement
dwellings as provided for in the Agreement. Unless otherwise provided in the
Agreement, the term affordable rental housing shall include without limitation
compliance with the following requirements:
Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, ancestry, or handicap in
the sale, transfer, use, occupancy, tenure, or enjoyment of any of the
Property, nor shall Declarant or any person claiming under the Declarant,
establish or permit any practice of discrimination or segregation with
reference to the selection, location, number, use or occupancy of owners
or vendees of the Property.
Principal Residence. Each of the Units constituting the Project upon the
Property shall be leased only to natural persons, who shall occupy such
as a principal residence.
Income Requirements. Each of the 91 Units constituting Affordable Rental
Housing upon the Property may be leased only to (a) natural person(s),
fourteen (14) of which may have annual household incomes at the time of
initial occupancy not greater than sixty percent (60%) and seventy-seven
(77) of which may have annual household income at the time of initial
occupancy is not greater than fifty percent (50%) of the most recent
annual median income calculated and published by HUD for the Fresno
Metropolitan Statistical Area applicable to such household's size, and at
an affordable price consistent with the rules established by the California
Tax Credit Allocation Committee for the Martin Luther King Square Project
and applicable HOME Act/California Redevelopment Law.
Injunctive Relief and Recapture. Should any of the 91 Units constituting
Affordable Rental Housing upon the Property not continue to be, at the
time of initial occupancy, the principal residence of a Household that
qualifies as a low-income or very low-income Household, during the period
of Affordability, such Unit(s) shall be made available for subsequent lease
only to Households that qualify as a low-income or very low-income for
use as the Household's principal residence.
b. Item (a) above is hereinafter referred to as the Covenant and
Restriction.
3. Enforcement of Restrictions. Without waiver or limitation, the
Beneficiaries shall be entitled to injunctive or other equitable relief against any violation
or attempted violation of any Covenant and Restriction, and shall, in addition, be entitled
to damages for any injuries or losses resulting from any violations thereof.
4. Acceptance and Ratification. All present and future owners of the
Property and other persons claiming by, through, or under them shall be subject to and
shall comply with the Covenant and Restriction. The acceptance of a deed of
conveyance to the Property shall constitute an agreement that the Covenant and
Restriction, as such may be amended or supplemented from time to time, is accepted
and ratified by such future owners, tenant or occupant, and such Covenant and
Restriction shall be a covenant running with the land and shall bind any person having
at any time any interest or estate in the Property, all as though such Covenant and
Restriction was recited and stipulated at length in each and every deed, conveyance,
mortgage or lease thereof. Provided, however, if this Declaration has been
subordinated to a deed of trust and the Property is transferred by foreclosure to the
holder of the deed of trust or an assignee of such holder, who is not Declarant or an
affiliate of Declarant, then this Declaration shall be of no further force and effect except
that if the Property is subsequently transferred to any party prior chargeable with this
Declaration, then the Declaration shall revive.
5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date this Declaration is recorded in the Office of the Recorder of the
county Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of Beneficiaries and/or any other person entitled
to enforce this Declaration shall in no event be deemed a waiver of the same, or of the
right to enforce the same at any time or from time to time thereafter, or an estoppel
against the enforcement thereof.
6. Costs and Attorn_ey's„Fees. In any proceeding arising because of failure of
Declarant or any future owner of the Property to comply with the Covenant and
Restriction required by this Declaration, as may be amended from time to time,
Beneficiaries shall be entitled to recover its respective costs and reasonable attorney's
fees incurred in connection with such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Property may
exempt itself from liability for failure to comply with the Covenant and Restriction
required in this Declaration.
8. 5everability. The invalidity of the Covenant and Restriction or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender
herein shall, unless the context clearly requires the contrary, be deemed to refer to and
include all genders. Words in the singular shall include and refer to the plural, and vice
versa, as appropriate.
10. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the Beneficiaries.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the
Agreement.
14. Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
HI
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions
on the date first written above.
"DECLARANT"
MARTIN LUTHER KING SQUARE, LLC
a California limited liability company
By A.F. Evans Company, Inc.
A California corporation,
Its managing member
By:
Name:
Title:
EXHIBIT "E"
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca. 93721
Attention: Executive Director
City of Fresno
2600 Fresno St., Room 3076
Fresno, CA 93721
Attention: Housing Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
This Certificate of Completion is recorded at the request and for the benefit of the
Redevelopment Agency of the City of Fresno and the City of Fresno and is exempt from
the payment of a recording fee pursuant to Government Code Section 6103.
Redevelopment Agency
By:
Its:
Dated:
City of Fresno
By:Its:
Dated:
Certificate of Completion
Recitals:
A. By an Owner Participation Agreement (the "Agreement") dated April
L ] 2006, between Martin Luther King Square, LLC, a California limited
liability company, ("Owner"), in favor of the Redevelopment Agency of the City of
Fresno, a California public body corporate and politic, ("RDA"), and the City of Fresno,
a California municipal corporation, ("City"), Owner agreed to rehabilitate an Affordable
Rental Housing Project upon the premises legally described in Attachment "A" hereto
(the "Property") and preserve such as rental housing for Low-Income and Very Low-
Income Families with the assistance of RDA Housing Set Aside Funds and City HOME
Program Funds while meeting the applicable Affordable Housing, income targeting and
other requirements of the HOME Act (Title II of the Cranston-Gonzalez National
Affordable Housing Act of 1990, as amended; 24 CFR Part 92) and 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 or a memorandum of it was recorded April
2006 as Instrument No in the Official Records of Fresno County,
California.
C. Under the terms of the Agreement, after Owner completes the construction on
the Property, Owner may ask the RDA and City to record a Certificate of Completion.
D. Owner has asked RDA and City to furnish Owner with a recordable Certificate of
Completion.
E. The issuance of this Certificate of Completion by the City and RDA is conclusive
evidence that the Owner has completed the construction on the Property as set forth in
the Agreement.
NOW THEREFORE:
1. RDA and City certify that Owner commenced the rehabilitation work on the
Project on E ],and completed the rehabilitation work on the Project on
]. and has done so in full compliance with the Agreement.
2. This Certificate of Completion is not evidence of Owner's compliance with,
or satisfaction of, any obligation to any mortgage or security interest holder, or any
mortgage or security interest insurer, securing money lent to finance work on the
Property or Project, or any part of the Property or Project. Nothing contained herein
modifies any provision of the Agreement.
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.
IN WITNESS WHEREOF, the Redevelopment Agency of the City of Fresno and
the City of Fresno have executed this Certificate of Completion as of this [
day of __J 200( ].
Redevelopment Agency of the City of Fresno
By:
Its:
City of Fresno
By:
Its:
Martin Luther King Square, LLC, a California limited liability company, the owner
of record of the Property, consents to recording this Certificate of Completion against
the Property described herein.
Dated:
MARTIN LUTHER KING SQUARE,
LLC, a California limited liability
company,
By A.F. Evans Company, Inc.
A California corporation,
Its managing member
By:
Name:
Title:
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC.
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
By: By:
Deputy Deputy
Dated: Dated:
EXHIBIT "F(1)"
PROMISSORY NOTE (FRESNO RDA)
DO NOT DESTROY THIS NOTE: When paid, this note, must be surrendered to
Borrower for Cancellation.
PROMISSORY NOTE
$500,000 Fresno, California April r 2006
For value received, the undersigned, Martin Luther King Square, LLC, a
California limited liability company, ("Borrower"), promises to pay to the order of the
Redevelopment Agency of the City of Fresno ("Lender"), the sum of Five Hundred
Thousand Dollars ($500,000), to the extent that such funds are loaned to Borrower (and
said interest and principal payments shall commence on said dates), with interest on the
unpaid principal balance running from the date first written above at the then Applicable
Long-Term Federal Rate as set forth in Section 1247 (d)(1) of the Internal Revenue
Code provided that said rate shall decrease to 3% per annum from and after any loss of
Project Section 8 funding; payable periodically from Project Residual Receipts and the
Residual Receipts Reserve Fund as defined hereunder in accordance with the Owner's
Participation Agreement dated April [ j 2006, entered into between Borrower
and Lender, ("Agreement"), and in accordance with the payment schedule contained in
the Agreement and this Note, with all principal and interest due and payable on or
before thirty (30) years from the date of this Note, ("Maturity Date"), on which date the
unpaid balance of principal with unpaid interest thereon shall be due and payable, along
with attorney's fees and costs of collection, and without relief from valuation and
appraisement laws. In the event this Note is not paid in full upon the Maturity Date
Lender is hereby granted the sole option to extend this Note for an additional term of 25
years.
This is a residual receipts note. Principal and interest payments in the amount of
Thirty-One Thousand Seven Hundred Fifty-One Dollars ($31,751) per year are due on
May 31, 2007 and each successive year thereafter until the Maturity Date upon which
all principal and interest shall be due and payable (prorated amounts to be paid for the
first and last year of the Note). In order to ensure the continuing availability of Residual
Receipts and in addition any other security provided hereunder, beginning on the first
anniversary of the Agreement and annually thereafter Borrower shall deposit into an
interest earning residual receipts reserve account benefiting solely the Lender
("Residual Receipts Reserve") the sum of Two Thousand Five Hundred Dollars ($2500),
provided that the Residual Receipts Reserve (including principal and interest) shall not
exceed the outstanding balance (including principal and interest) due under this Note.
Annual payments under this Note are due only from Residual Receipts of the Martin
Luther King Square Project as described in the Agreement and to the extent that
Residual Receipts are not sufficient then from the Residual Receipts Reserve. If there
are not sufficient Residual Receipts and Residual Receipts Reserve funds to make any
annual payment hereunder or portion thereof, said unpaid payment/portion thereof shall
be added to the principal and bear like interest. Any failure to make a payment required
hereunder shall constitute a default under this Note.
All capitalized terms used in this Note, unless otherwise defined, will have the
respective meanings specified in the Agreement. In addition, as used in this Note, the
following terms will have the following meanings:
Business Day means any day other than Saturday, Sunday, or public holiday
or the equivalent for banks generally under the laws of California. Whenever
any payment to be made under this Note is stated to be due on a day other
than a Business Day, that payment may be made on the next succeeding
Business Day. However, if the extension would cause the payment to be
made in a new calendar month, that payment will be made on the next
preceding Business Day.
Maturity Date means that date that is thirty(30) years from the date of this Note.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust,
Security Agreement and Fixture Filing with Assignment of Rents on real estate in
Fresno County, California, that provides for acceleration upon stated events, dated as of
the same date as this Note, and executed in favor of and delivered to the Lender ("Deed
of Trust"), through Escrow# 103273, insured by First American Title Guaranty
Company as an ALTA or CLTA (no worse than 3rd ) position lien. Repayment of this
Note shall be non-recourse to the Owner and all constituent members of the Owner.
Time is of the essence. It will be a default under this Note if Borrower defaults
under the Agreement, any other Loan Documents, and if Borrower fails to pay when due
any sum payable under this Note. In the event of a default by Borrower, the Borrower
shall pay a late charge equal to 2% of any outstanding payment. All payments collected
shall be applied first to payment of any costs, fees or other charges due under this Note
or any other 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 Loan Documents give rise to the right to accelerate the balance of the indebtedness,
then, at the option of Lender, this Note or any notes or other instruments that may be
taken in renewal or extension of all or any part of the indebtedness will immediately
become due without any further presentment, demand, protest, or notice of any kind.
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 or under any of the other Loan Documents and then to the interest and
then to the principal balance.
All payments are payable in lawful money of 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 Land, or any interest in the Land. A "sale or
transfer' means the conveyance of Land 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 Land, or by any other method
of conveyance of Land interest. If 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 or to an entity whose general or managing partner or managing
member is controlled directly or indirectly by the Project tax credit investor,
CharterMac Capital LLC. 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.
If any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of 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.
In witness whereof, Borrower has caused this Promissory Note to be executed by
its authorized agent as of the date and year first above written.
Martin Luther King Square, LLC,
a California limited liability company,
By A.F. Evans Company, Inc.
A California corporation,
Its managing member
By:
Name
Title:
EXHIBIT "F(2)"
PROMISSORY NOTE (CITY OF FRESNO)
DO NOT DESTROY THIS NOTE: When paid, this note, must be surrendered to
Borrower for Cancellation.
PROMISSORY NOTE
$500,000 Fresno, California April [ ] 2006
For value received, the undersigned, Martin Luther King Square, LLC, a
California limited liability company, ("Borrower"), promises to pay to the order of the City
of Fresno, a Califomia municipal corporation ("Lender"), the sum of Five Hundred
Thousand Dollars ($500,000), to the extent that such funds are loaned to Borrower (and
said interest and principal payments shall commence on said dates), with interest on the
unpaid principal balance running from the date first written above at the then Applicable
Long-Term Federal Rate as set forth in Section 1247 (d)(1) of the Internal Revenue
Code payable periodically from Project Residual Receipts and the Residual Receipts
Reserve Fund as defined hereunder in accordance with the Owner's Participation
Agreement dated April [- 2006 entered into between Borrower and Lender,
("Agreement"), and in accordance with the payment schedule contained in the
Agreement, with all principal and interest due and payable on or before thirty (30) years
from the date of this Note, ("Maturity Date"), on which date the unpaid balance of
principal with unpaid interest thereon shall be due and payable, along with attorney's
fees and costs of collection, and without relief from valuation and appraisement laws. In
the event this Note is not paid in full upon the Maturity Date Lender is hereby granted
the sole option to extend this Note for an additional term of 25 years.
This is a residual receipts note. Principal and interest payments in the amount of
Thirty-One Thousand Seven Hundred Fifty-One Dollars ($31,751) per year are due on
May 31, 2007 and each successive year thereafter until the Maturity Date upon which
all principal and interest shall be due and payable (prorated amounts to be paid for the
first and last year of the Note). In order to ensure the continuing availability of Residual
Receipts and in addition any other security provided hereunder, beginning on the first
anniversary of the Agreement and annually thereafter Borrower shall deposit into an
interest earning residual receipts reserve account benefiting solely the Lender
('Residual Receipts Reserve") the sum of Two Thousand Five Hundred Dollars ($2500),
provided that the Residual Receipts Reserve (including principal and interest) shall not
exceed the outstanding balance (including principal and interest) due under this Note.
Annual payments under this Note are due only from Residual Receipts of the Martin
Luther King Square Project as described in the Agreement and to the extent that
Residual Receipts are not sufficient then from the Residual Receipts Reserve. If there
are not sufficient Residual Receipts and Residual Receipts Reserve funds to make any
annual payment hereunder or portion thereof, said unpaid payment/portion thereof shall
be added to the principal and bear like interest. Any failure to make a payment required
hereunder shall constitute a default under this Note.
All capitalized terms used in this Note, unless otherwise defined, will have the
respective meanings specified in the Agreement. In addition, as used in this Note, the
following terms will have the following meanings:
Business Day means any day other than Saturday, Sunday, or public holiday
or the equivalent for banks generally under the laws of California. Whenever
any payment to be made under this Note is stated to be due on a day other
than a Business Day, that payment may be made on the next succeeding
Business Day. However, if the extension would cause the payment to be
made in a new calendar month, that payment will be made on the next
preceding Business Day.
Maturity Date means that date that is thirty (30) years from the date of this Note .
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust,
Security Agreement and Fixture Filing with Assignment of Rents on real estate in
Fresno County, California, that provides for acceleration upon stated events, dated as of
the same date as this Note, and executed in favor of and delivered to the Lender("Deed
of Trust"), through Escrow# 103273, insured by First American Title Guaranty
Company as an ALTA or CLTA (no worse than 3') position lien. Repayment of this
Note shall be non-recourse to the Owner and all constituent members of the Owner.
Time is of the essence. It will be a default under this Note if Borrower defaults
under the Agreement, any other Loan Documents, and if Borrower fails to pay when due
any sum payable under this Note. In the event of a default by Borrower, the Borrower
shall pay a late charge equal to 2% of any outstanding payment. All payments collected
shall be applied first to payment of any costs, fees or other charges due under this Note
or any other 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 Loan Documents give rise to the right to accelerate the balance of the indebtedness,
then, at the option of Lender, this Note or any notes or other instruments that may be
taken in renewal or extension of all or any part of the indebtedness will immediately
become due without any further presentment, demand, protest, or notice of any kind.
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 or under any of the other Loan Documents and then to the interest and
then to the principal balance.
All payments are payable in lawful money of 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 Land, or any interest in the Land. A "sale or transfer' means the
conveyance of Land 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 Land, or by any other method of conveyance of Land interest.
If 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 or to an entity whose general or
managing partner or managing member is controlled directly or indirectly by the
Project tax credit investor, CharterMac Capital LLC. 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.
If any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of 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.
In witness whereof, Borrower has caused this Promissory Note to be executed by
its authorized agent as of the date and year first above written.
MARTIN LUTHER KING SQUARE, LLC,
a California limited liability company,
By A.F. Evans Company, Inc.
A California corporation,
Its managing member
By:
Name:
Title:
EXHIBIT"G"
Basic Design
[Intentionally Omitted.]
Exhibit "B"
Regulatory Agreement
FRESNO County Recorder
Robert C, Werner
.� DOC— 2006-0090190
i X.Ci"'Jing�� k�„ r' Acct 5-First American Title Insurance Company
Friday, APR 28, 2006 11:09:52
Tt 1 Pd $0,00 Nbr-0002167987
DECLARATION OF RESTRICTIONS JZG/R3/1-9
Recording Requested and When Recorded Return to:
Redevelopment Agency of City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca. 93721
Attention: Executive Director
City of Fresno
Attn: Housing Manager
2600 Fresno St., Room 3076
Fresno, CA 93721
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
-1 ` l�d� day of April 2006, by Martin Luther King Square, LLC, a California
limited liability company, ("Declarant"), in favor of the Redevelopment Agency of the City
of Fresno, a California public body corporate and politic, ("RDA") and the City of Fresno,
a California municipal corporation, ("City"), jointly and severally. The RDA and City are
collectively referred to as the "Beneficiaries".
WHEREAS, Declarant is the owner of the real estate in the county of Fresno,
state of California, located at 911 East Belgravia Avenue, APNs [478-030-54 and 478-
114-36 and 478-114-37], which is more particularly described in Exhibit "A", attached
hereto and made a part hereof, including the improvements thereon (the "Property");
and
WHEREAS, Declarant and Beneficiaries have entered into a certain April
2006 Owner Participation Agreement, recorded as Instrument No
04/28/29�6.20106�N9011$9 _] in the Official Records of Fresno County, California, ("Agreement"),
whereby Declarant agrees to rehabilitate and maintain certain rental housing affordable
to low and very low-income families, subject to the terms and conditions set forth in the
Agreement; and
WHEREAS, in addition to the covenants and conditions contained in the
l
Agreement, the Declarant has agreed at the special instance and request of the
Beneficiaries and upon good and sufficient consideration, to impose certain California
Community Redevelopment Law(California Health & Safety Code Section 33000 et
seq.) and HOME Act (Title II of the Cranston-Gonzalez National Affordable Housing Act
of 1990, as amended; 24 CFR Part 92) affordability requirements upon 91 Units upon
the Property funded under the Agreement, which affordability restrictions must be
enforceable for a fifty-five (55) year period; and
WHEREAS, these restrictions are intended to bind Declarant and all purchasers
of the Property and their successors.
NOW THEREFORE, Declarant declares that the Property is held and will be
held, transferred, encumbered, used, sold, conveyed and occupied subject to the
covenants, restrictions, and limitations set forth in this Declaration, all of which are
declared and agreed to be in furtherance of the Martin Luther King Square Project, the
City's HOME Program obligations and activities, the RDA's Community Redevelopment
Law and Plan Area obligations including RDA's obligations set forth at California Health
& Safety Code sections 33334.2 et seq. and 33413 (a)with respect to housing set aside
funds and replacement dwelling units at affordable rent within the jurisdiction of the
RDA. All of the restrictions, covenants and limitations will run with the land and will be
binding on all parties having or acquiring any right, title or interest in the Property or any
part thereof, will inure to the benefit of the Beneficiaries, and will be enforceable by
them jointly and severally. Any purchaser under a contract of sale or other transferee of
an interest covering any right, title or interest in any part of the Property, by accepting a
deed or a contract of sale or agreement of purchase, accepts the document subject to,
and agrees to be bound by, any and all restrictions, covenant, and limitations set forth in
this Declaration for the period of fifty-five (55) years running from and after recordation
of Beneficiaries' Certificate of Completion constituting the Affordability Period.
1. Declarations. Declarant hereby declares that the Property is and shall be subject
to the covenants and restrictions hereinafter set forth, all of which are declared to be in
furtherance of the Property, the Martin Luther King Square Project, the City's HOME
Program obligations set forth at Title II of the Cranston-Gonzalez National Affordable
Housing Act of 1990, as amended; 24 CFR Part 92, the RDA's Community
Redevelopment Law and Plan Area obligations including RDA's obligations set forth at
California Health & Safety Code sections 33334.2 et seq. and 33413 (a) regarding
housing set aside funds and replacement dwelling units at affordable rent within the
jurisdiction of the RDA, and are established and agreed upon for the purpose of
enhancing and protecting the value of the Property and in consideration the Agreement
and the above recitals. All terms not otherwise defined herein shall have the meaning
ascribed to such term in the Agreement.
2. Restrictions. The following covenants and restrictions on the use and enjoyment
of the Property shall be in addition to any other covenants and restrictions affecting the
Property, and all such covenants and restrictions are for the benefit and protection of
the Beneficiaries jointly and severally and shall run with the Property and be binding on
any future owner's of the Property and inure to the benefit of and be enforceable by
Beneficiaries jointly and severally. These covenants and restrictions are as follows:
a. Declarant for itself and its successor(s) on title covenants and agrees
that from the date of recordation of Beneficiaries's Certificate of Completion until the
expiration of the Affordability Period it shall cause the 91 Project Units funded under the
Agreement to be used as Affordable Rental Housing and affordable replacement
dwellings as provided for in the Agreement. Unless otherwise provided in the
Agreement, the term affordable rental housing shall include without limitation
compliance with the following requirements:
Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, ancestry, or handicap in
the sale, transfer, use, occupancy, tenure, or enjoyment of any of the
Property, nor shall Declarant or any person claiming under the Declarant,
establish or permit any practice of discrimination or segregation with
reference to the selection, location, number, use or occupancy of owners
or vendees of the Property.
Principal Residence. Each of the Units constituting the Project upon the
Property shall be leased only to natural persons, who shall occupy such
as a principal residence.
Income Requirements. Each of the 91 Units constituting Affordable Rental
Housing upon the Property may be leased only to (a) natural person(s),
fourteen (14) of which may have annual household incomes at the time of
initial occupancy not greater than sixty percent (60%) and seventy-seven
(77) of which may have annual household income at the time of initial
occupancy is not greater than fifty percent (50%) of the most recent
annual median income calculated and published by HUD for the Fresno
Metropolitan Statistical Area applicable to such household's size, and at
an affordable price consistent with the rules established by the California
Tax Credit Allocation Committee for the Martin Luther King Square Project
and applicable HOME Act/California Redevelopment Law.
Injunctive Relief and Recapture_ Should any of the 91 Units constituting
Affordable Rental Housing upon the Property not continue to be, at the
time of initial occupancy, the principal residence of a Household that
qualifies as a low-income or very low-income Household, during the period
of Affordability, such Unit(s) shall be made available for subsequent lease
only to Households that qualify as a low-income or very low-income for
use as the Household's principal residence.
b. Item (a) above is hereinafter referred to as the Covenant and
Restriction.
3. Enforcement of Restrictions. Without waiver or limitation, the
Beneficiaries shall be entitled to injunctive or other equitable relief against any violation
or attempted violation of any Covenant and Restriction, and shall, in addition, be entitled
to damages for any injuries or losses resulting from any violations thereof.
4. Acceotance and Ratification. All present and future owners of the
Property and other persons claiming by, through, or under them shall be subject to and
shall comply with the Covenant and Restriction. The acceptance of a deed of
conveyance to the Property shall constitute an agreement that the Covenant and
Restriction, as such may be amended or supplemented from time to time, is accepted
and ratified by such future owners, tenant or occupant, and such Covenant and
Restriction shall be a covenant running with the land and shall bind any person having
at any time any interest or estate in the Property, all as though such Covenant and
Restriction was recited and stipulated at length in each and every deed, conveyance,
mortgage or lease thereof. Provided, however, if this Declaration has been
subordinated to a deed of trust and the Property is transferred by foreclosure to the
holder of the deed of trust or an assignee of such holder, who is not Declarant or an
affiliate of Declarant, then this Declaration shall be of no further force and effect except
91
that if the Property is subsequently transferred to any party prior chargeable with this
Declaration, then the Declaration shall revive.
5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date this Declaration is recorded in the Office of the Recorder of the
county Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of Beneficiaries and/or any other person entitled
to enforce this Declaration shall in no event be deemed a waiver of the same, or of the
right to enforce the same at any time or from time to time thereafter, or an estoppel
against the enforcement thereof.
6. Costs and Attorne 's Fees. In any proceeding arising because of failure of
Declarant or any future owner of the Property to comply with the Covenant and
Restriction required by this Declaration, as may be amended from time to time,
Beneficiaries shall be entitled to recover its respective costs and reasonable attorney's
fees incurred in connection with such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Property may
exempt itself from liability for failure to comply with the Covenant and Restriction
required in this Declaration.
8. Severability. The invalidity of the Covenant and Restriction or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender
herein shall, unless the context clearly requires the contrary, be deemed to refer to and
include all genders. Words in the singular shall include and refer to the plural, and vice
versa, as appropriate.
10. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the Beneficiaries.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the
Agreement.
14. Headings. The headings of the articles, sections, and paragraphs used in
this Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions
on the date first written above.
"DECLARANT"
MARTIN LUTHER KING SQUARE, LLC
a California limited liability company
By A.F. Evans Company, Inc.
A California corporation,
Its managing member
By:
Nam �. hP�tSan
Title: Ifs IDr�,5
ti
State of California )
County of Alameda )
On April 20, 2006 before me, Jennifer M. Collins,Notary Public, personally appeared
John J. Robertson 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 signature(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.
Signature (Seal)
JEWFU E70 M.C0"'S
gnl�gon N 1561337
Np�y rile-COMOMIa
►Mnrclo County
MV C.0MM Eq*G3 Mo12o,2
�III
990050\1\3 12092.1
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Fresno, County of Fresno, State of California,described as
follows:
PARCEL L
PARCEL D, AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 72-36 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF CALIFORNIA
ON AUGUST 8, 1972,IN BOOK 4 OF PARCEL MAPS PAGE(S) 10 AND I 1 AND AS PER
CERTIFICATE OF CORRECTION RECORDED MAY 9, 1973 IN BOOK 6162, PAGE 550
OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL B,AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 71-39 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF CALIFORNIA
ON JUNE 27, 1972, IN BOOK 3 OF PARCEL MAPS PAGE(S) 86.
PARCEL 3:
PARCEL A,AS SHOWN ON THAT CERTAIN PARCEL MAP NO. 71-39 FILED IN THE
OFFICE OF THE RECORDER OF THE COUNTY OF FRESNO, STATE OF CALIFORNIA
ON JUNE 27, 1972,IN BOOK 3 OF PARCEL MAPS PAGE(S) 86.
APN: 478-030-54(Parcel 1), 478-114-36(Parcel 2)and 478-114-37 (Parcel 3)
74051337575.1
lS
Exhibit "C"
HOME Program Annual Exterior Inspection and
Capital Needs Assessment
HOME Program
Annual Exterior inspection
Office Building Address # 816 E. Florence Ave.: *Damaged and cracked window
trim needs replace at the rear and right side of building.
Building Address # 818 E. Florence Ave. Laundry Facilities: *Damaged roll-up
garage door Health & Safety needs repair. *Garbage and debris to include major
appliance leaning on wall at rear needs cleaning and removal.
Building Address # 2311 S. Lee Ave.: *Missing cable box cover by #102 needs
replace. *Egg stains on wall needs paint considered graffiti- *Damaged broken conduit
for cable wires needs repair. *Back porch wood enclosed walls loose and leaning to
include *Oil stains in parking stalls needs cleaning Health & Safety slips and trips.
Damaged and cracked fascia at front#101 needs replace.
Building Address # 2315 S. Lee Ave.: *Disconnected back porch enclosure wall
failing #103 Health & Safety needs repair.
Building Address # 2319 S. Lee Ave.: *Lots of exposed patched and cracking stucco
on walls needs repair and paint. *Oil stains in parking stall with minor asphalt heaving
needs repair Health & Safety slips and trips. *Rusty, deteriorated paint on metal
security doors needs paint. *Peeling, flaking, deteriorated paint on parking stall cover
needs maintenance.
Building Address # 2323 S. Lee Ave.: *Damaged cracked cinder brick wall at
property line needs repair. * Rusty deteriorated metal security doors needs repair and
paint. *Rear back porch wall enclosure leaning needs support Health & Safety. Some
wall enclosures were supported with 2" x 4" Doug fir however; material should be
pressure treated or redwood to prevent termite infestation. egg stains on wall needs
repair and paint. * Trash enclosure dirty with garbage and debris on ground inside and
out needs cleaning. * Over filled trash bins needs inside trash enclosure needs
cleaning.
Building Address # 2327 S. Lee Ave.: *Areas of patchy yellow grass. *Rusty
deteriorated metal security doors needs repair and paint. * Peeling, flaking, deteriorated
paint on walls needs repair and paint. *Damaged rot wood trim on back porch enclosure
wall needs repair. *Oil stains in parking stalls needs cleaning Health & Safety slips and
trips. *Peeling paint on parking stall cover needs maintenance.
Building Address # 2331 S. Lee Ave.: *Rusty, deteriorated paint on security doors
needs paint. *Missing, damaged and broken trim on back porch wall enclosure, exposed
wood needs repair. *Back porch wood enclosed walls loose and leaning needs support
Health & Safety. *Oil stains in parking stalls needs cleaning Health & Safety slips &
trips. Minor asphalt heaving at parking stalls needs repair Health & Safety slips and
trips. *Peeling, flaking and deteriorated paint on parking stall cover needs maintenance.
*Damaged wrought iron main parking gate needs repair Health & Safety.
Building Address # 811 E. Belgravia Ave.: *Leaning back porch wall enclosure needs
support Health & Safety. *Rusty, deteriorated security screen doors needs maintenance
and paint. *Missing condensation line at rooftop package unit needs replace. *Oil stains
in parking stalls needs cleaning Health & Safety slips and trips. *Peeling, flaking and
deteriorated paint in parking stall cover need maintenance and paint. *Leaking water
hose bib at front apartment #103 need replace. *Damaged wrought iron fence at street
sidewalk needs repair Health & Safety sharp object protruding out into street sidewalk.
Building Address # 815 E. Belgravia Ave.: *Missing trim on back porch wall
enclosure need replace exposed wood.
Building Address # 825 E. Belgravia Ave.: *Rust, deteriorated paint on metal
security doors needs maintenance and paint. *Oil stains in parking stalls needs
cleaning Health & Safety slips and trips. * Peeling flaking and deteriorated paint on
parking stall cover needs maintenance and paint.
Building Address # 835 E. Belgravia Ave.: *Rusty, deteriorated paint on metal
security doors needs maintenance and paint.
Building Address # 2338 S. MILK BLVD: *Rusty, deteriorated paint on metal security
doors needs maintenance and paint. * Minor oil stains in parking stalls needs cleaning
Health & Safety slips and trips. * Minor peeling deteriorated paint in parking stall cover
needs maintenance and paint.
Building Address # 811 E. Florence Ave.: *Broken irrigation control valve cover at
front needs replace Health & Safety trips and falls. *Damaged broken trim on back
porch wall enclosure needs replacement. *Rusty deteriorated paint on metal security
doors needs maintenance and paint. *Damaged rot fascia at rear needs replacement.
Two (2) torn damaged window screens on 2nd story needs replace Health & Safety.
Damaged metal security door with sharp edges needs replace Health & Safety.
Building Address # 2285 S. Lee Ave.: *Four (4) missing window screens some on 2nd
story need replace Health & Safety. *Damaged door and broken doorjamb and trim
unable to close door properly on #101 front storage room needs replace. *Oil stains in
parking stalls needs cleaning Health & Safety slips and trips.
Building Address # 817 E. Florence Ave.: *Areas of patch yellow grass. *Damaged rot
fascia needs repair. *Rusty deteriorated paint on metal security doors needs maintenance
and paint. *Excessive gunk and dirty wall needs maintenance and paint considered
graffiti. *Missing and damaged trim at rear patio enclosure walls needs replace exposed
wood. *Damages metal security door at rear needs replace Health & Safety sharp object.
*Rot damaged 4" x 4" trim at front#104 needs repair.
Building Address # 2245 S. Lee Ave. Laundry Facility: *Areas of yellow grass.
Peeling, rusty deteriorated paint on front handrails needs maintenance and paint Health
& Safety. *Ponding water around AC condenser need repair Health & safety slips and
falls.
Building Address # 2235 S. Lee Ave.: *Rusty deteriorated paint on metal security doors
needs maintenance and paint. * Broken conduit with exposed wires that are not UV
protected need repair conduit Health & Safety. *Excessive gunk and dirty walls needs
maintenance and paint. *Damaged and missing trim at rear porch wall enclosures need
replace Health & Safety sharp pointed object. *Garbage and debris on ground outside of
trash enclosure needs cleaning. *Areas of yellow grass. *Oil stains in parking stalls needs
cleaning Health & Safety slips and trips. *Broken window at rear covered with plywood
needs replace Health & Safety.
Building Address # 2229 S. Lee Ave.: *Lots of tree debris on roof needs cleaning
Health & Safety fire hazard. *Clogged gutters need maintenance and cleaning. *Rusty
deteriorated paint on security doors needs maintenance and paint. *Ground erosion at
front hole in ground uneven need repair Health & Safety trips and falls. *Areas of yellow
grass.
Building Address # 2220 S. MLK BLVD: * Areas of yellow grass. *Rusty deteriorated
paint on metal security doors needs maintenance and paint. * Ground erosion at front
hole in ground uneven need repair Health & Safety trips and falls. *Damaged failing soffit
at rear on 2nd story needs repair Health & Safety falling overhead object. *Damaged rot
fascia needs repair. *Excessive gunk and dirty walls need maintenance and paint.
*Overgrown tree touching roof apartment#101 needs trimming Health & Safety fire
hazard. *Oil stains in parking stalls need clean Health & Safety slips and trips. *Damaged
overhead parking stall cover needs repair. *Peeling, flaking and deteriorated paint on
parking stall cover need maintenance and paint.
Building Address # 2234 S. MLK BLVD: *Oil stains in parking stalls needs cleaning
Health & Safety slips and trips. *Peeling, flaking and deteriorated paint needs
maintenance and paint. "Broken exposed electrical box was fixed however, new covered
installed is not a weatherproof cover. Cover shall be replaced with a new weatherproof
cover to prevent electrical shock Health & safety." *Damaged wrought iron fence at street
sidewalk needs repair. *Damaged wrought iron gate in parking lot area needs repair.
*Falling and leaning back porch wall enclosure needs repair and support Health & Safety.
*Damaged rear metal security door needs repair. *Broken damaged falling trim by
I
electrical meters needs replace exposed structure.
Building Address # 2228 S. MLK BLVD: * Ground erosion out front needs level out
ground Health & Safety trips and falls. * Lifting roof shingles need repair. *Damaged
cracked wood trim needs repair. *Rusty deteriorated paint on metal security doors needs
paint.
Building Address # 2242 S. MLK BLVD: *Missing trim on front porch 4" x 4" post
exposed wood needs replace. * Areas of dry yellow grass. *Peeling, flaking and
deteriorated paint on wood trim needs maintenance and paint. *Damaged cracked trim
needs replace. *Loose leaning back patio enclosure wall need repair and support Health
& Safety. * Excessive gunk and dirty wall to include security doors need maintenance and
paint.
Building Address # 2260 S. MLK BLVD: *Damaged rot wood trim at rear patio wall
enclosures needs replace Health & Safety. *Rusty deteriorated paint on metal security
doors needs maintenance and paint. *Areas of yellow grass. *Oil stains in parking stalls
need cleaning Health & Safety slips and trips. * Minor heaving asphalt in parking stalls
loose material potential Health & Safety slips and trips. *Peeling, chipping, flaking and
deteriorated paint on parking stall cover needs maintenance and paint. *Disconnected
downspout rain gutter apartment#103 needs repair. *Falling soffit vent at rear 2nd story
with birds nest and feces needs repair and cleaning Health & Safety.
Building Address # 823 E. Florence Ave.: "4" x 4" was replaced however, not
installed properly missing proper bolts on post base—*Rusty deteriorated paint on metal
security doors needs maintenance and paint. *Falling leaning back patio wall
enclosures need repair and support Health & Safety. *Areas of patchy yellow grass/dirt.
*Oil stains in parking stalls needs cleaning Health & Safety slips and trips. *Peeling,
flaking deteriorated paint on parking stall cover needs maintenance and paint.
Building Address # 829 E. Florence Ave.: *Oil stains in parking stalls needs cleaning
Health & Safety slips and trips. *Peeling, flaking and deteriorated paint on parking stall
cover needs maintenance and paint.
Building Address # 2286 S. MLK BLVD:- *Falling, leaning and disconnected back patio
wall enclosure needs repair Health & Safety. Damaged falling rot fascia at front apartment
#104 needs replace. *Oil stains in parking stalls needs cleaning Health & Safety slips and
trips. *Peeling, flaking and deteriorated paint on parking stall cover needs maintenance
and paint.
Building Address # 835 E. Florence Ave.: *Rusty deteriorated paint on metal security
doors needs maintenance and paint. Damaged lap siding at rear patio wall enclosure
exposed wood needs repair. *Excessive gunk and dirty walls and trim needs maintenance
and paint.
Note: All above items to be completed by May 31, 2021, except paint repair to be addressed under property
needs improvements by October 31, 2021.
Capital Needs Assessment
Property wide:
Repair, repaint and/or remove patio fencing in conjunction with building exterior painting.
*(3.2.8);
Repair, repaint exterior walls *(3.3.3);
Repair exterior dry rot damage *(4.2).
"CBRE Property Condition Report February 23, 2021. All capital improvements to be completed by October 31,
2021.