HomeMy WebLinkAboutSelf-Help enterprises 2nd Amendment to HOME CHDO Agreement 8.11.2022 1111 UFAAAN,IMI�L'��60, 41 III
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO: 2022 0107620
FRESNO County Recorder
Paul Dictos, CPA
Friday, Aug 26, 2022 08:41:51 AM
Titles: 1 Pages: 87
Fees: 0.00
CA S82 Fee: 0.00
Taxes: 0.00
City of Fresno Total: 0.00
City Clerk CITY OF FRESNO
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
(SPACE ABOVE THIS LINE FOR RECORDF R'S USE)
This Second Amendment to the HOME CHDO Agreement is being 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
By: AZ
Name: rgeanne A. White
Title: Ci Manager
SECOND AMENDMENT TO
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION AGREEMENT
by and between
City of Fresno
a municipal corporation
and
Self-Help Enterprises
a California non-profit public benefit corporation
regarding
1405 E. Annadale Avenue, Fresno, CA
(APN: 479-270-34)
Annadale Single-Family Housing Project
SECOND AMENDMENT TO HOME CHDO AGREEMENT
This Second Amendment to the HOME Investment Partnerships Program, Community
Housing Development Organization Agreement (Second Amendment), by and between the
City of Fresno, a municipal corporation, (City) and Self-Help Enterprises Housing, a California
non-profit public benefit corporation (Developer) is effective this 11th day of August 2022.
RECITALS
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Agreement on August 28, 2020, and
recorded in the Fresno County Recorder's Office on September 17, 2020, as document number
2020-0126351 (Agreement); and
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Deed of Trust on August 3, 2020,
and recorded in the Fresno County Recorder's Office on September 17, 2020, as document
number 2020-0126350 (Deed of Trust); and
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Declaration of Restrictions on
August 3, 2020, and recorded in the Fresno County Recorder's Office on September 17, 2020,
as document number 2020-0126349 (Declaration of Restrictions); and
WHEREAS, on April 26, 2021, the City and Developer entered into a First Amendment
to the Agreement, a First Amendment to the Declaration of Restrictions and First Amendment
to the Deed of Trust and recorded all three documents in the Fresno County Recorder's Office
on May 20, 2021, as document numbers 2021-0083839, 2021-0083840, and 2021-0083838,
respectively; to correct the property's legal description; and
WHEREAS, the City and Developer wish to enter into a Second Amendment to the
Agreement to allow for subordination to the State of California Department of Housing and
Community Development, CalHome Program to no worse than 3rd position.
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 consideration
hereby acknowledged, the parties agree that the Agreement is further amended as follows:
1. Section 1.21 (Note) of the Agreement shall be revised to reflect the Note shall be
secured by a Deed of Trust as a 3rd position lien on the property.
2. Section 2.7 (Subordination) of the Agreement shall be revised to reflect that the
Agreement, the Declaration of Restrictions, and the Deed of Trust may be subordinated to
certain approved financing (in each case, a "Senior Lender"), to no worse than 3rd position.
3. Any remaining references to a 2nd position lien priority in the Agreement, Deed
of Trust, Declaration of Restrictions, or other accompanying documents shall be revised to
reflect a 3rd position lien priority.
4. In the event of any conflict between the body of this Second 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 Second Amendment, shall be null and void.
5. Except as expressly provided herein, the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the authorized agents of the parties hereto have executed
this Second Amendment to the Agreement, at Fresno, California, the day and year first above
written.
CITY OF FRESNO, SELF-HELP ENTERPRISES,
a California municipal car oration a California non-profit public benefit
corporation
By: 6?X1 zuzs=�
George n e A. White B
City Ma ger Name: Thomas J. Coll aw
(Attach notary certificate of acknowledgment) Title: President and CEO
(Attach Notary certificate of acknowledgment)
Date: �'3 J �f Date: a
APPROVED AS TO FORM:
RINA M. GONZALES By:
Interim City Attorney
Name:
B �WtV� W�" Title:
Tracy N. arvanian Date
Supervising Deputy City Attorney .
y3'
ATTEST:
TODD STERMER, CMC
City Clerk
By: Job M. V
Name:
Title: nn as,
Amendment:
Exhibit A: HOME CHDO Agreement
Exhibit B: First Amendment to HOME CHDO Agreement
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 Tulare
On �Ll Ll� IFJr �C-2 before me, Valerie Pedro, Notary Public
\ (insert name and title of the officer)
personally appeared C o h►S�V ! l^V
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.
*my
VALERI£PEDRO
WITNESS my hand and official seal- Notary Public-California
Tulare CountyCommission#2315118
Comm,Expires Dec 10,2023
Signature-�-G� i (Seal)
i
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 I���r 1 "t )SS
COUNTY OF
On C/v � before e, ,. t�`^'
Notary Pu lic,personally appeared aor }
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.
�.� s, SARAH 80REN
z 3�4_c: No Public-California r
Fresno County
Signature �^ Commission#2287920
My Comm.Expires May 9,2023
This area for official notarial seal
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 August 25, 2022 before me,Tina M. Your, Records Supervisor , personally appeared,
Geor eanne A. White 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.
q OFF
WITNESS my hand and official seal
tia
Todd Stermer, CIVIC v
City Clerk, City of Fresno
y
Tina M. Your, Records Superv' or
Exhibit "A"
HOME CHDO Agreement
� 0
Recorded at the Request of 1II11290ll1YOi'iONsk',1INSAINAI III
and When Recorded Return to: 2020—Gi 2635 1
FRESNO County Raeordar
Paul Dietos, CPA
Thursday, Sap 17, 2020 02:51:27 PM
Tt t les: 1 Pages: 70
Fees: 0.00
CA S62 Fee: 0,00
City of Fresno Tota i: 10.00
City Clerk's Office CITY OF FRESNO
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
rSPACE ABOVE THIS LINE FOR RECOPDER'S USE ONLY)
This Agreement is recorded at the request and for the benefit of the City of Fresno and is exempt
from the payment of a recording fee pursuant to Government Code Section 61G3
0 C3- CITY O R - NO
TffKf6an,ZQMa alter
Date:
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION
AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
Self-Help Enterprises
a California Non-Profit Public Benefit Corporation
regarding
Lot Assessor's Parcel Number:
479-270-34T
Annadale and Elm Single-Family Housing Project
1
TABLE OF CONTENTS
Page
RECITALS ............................................................................................................................3
ARTICLE1. DEFINITIONS..................................................................................................4
ARTICLE2. TERMS ........................................................................................................ 7
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF DEVELOPER .....8
ARTICLE 4. HOME CHDO PROGRAM REPRESENTATION AND WARRANTIES OF
DEVELOPER. ..................................................................................................9
ARTICLE 5. COVENANTS AND AGREEMENTS OF DEVELOPER. ................................13
ARTICLE 6. DISBURSEMENT OF HOME CHDO FUNDS................................................16
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT..............................18
ARTICLE 8. OPERATION OF THE PROJECT..................................................................22
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS. .............................................23
ARTICLE 10. DEFAULT AND REMEDIES ........................................................................28
ARTICLE 11. GENERAL PROVISIONS. ...........................................................................30
2
HOME INVESTMENT PARTNERSHIPS PROGRAM COMMUNITY HOUSING
DEVELOPMENT ORGANIZATION AGREEMENT
This HOME Investment Partnerships Program, Community Housing Development
Organiz ion Agreement (hereinafter referred to as the Agreement) is entered into this,
2020, by and between the City of Fresno, a municipal corporation, acting
through jis Planning and Development Department - Housing and Community Development
Division (hereinafter referred to as the CITY), and Self-Help Enterprises, a California non-
profit public benefit corporation (hereinafter referred to as DEVELOPER).
RECITALS
A. WHEREAS, the CITY received a HOME Investment Partnerships (HOME) Program
grant including funds that are reserved for the use of Community Housing Development
Organizations (CHDOs), collectively herein referred to as (HOME CHDO) 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 Act).
B. WHEREAS, to advance the supply of Affordable housing within the City of Fresno the
CITY desires, among other things, to encourage investment in the affordable housing market.
C. WHEREAS, the DEVELOPER is a CITY-certified CHDO in accordance with HUD's
certification criteria.
D. WHEREAS, the DEVELOPER shall acquire vacant lots at Annadale and Elm (the
Property) to be parceled into 22 separate A.P.N.s located within the boundaries of the City
of Fresno, as more particularly described in EXHIBIT "A" — Property Description, and wishes
to construct 22 new single-family houses of which 11 shall be HOME CHDO-assisted units
(four 3-bedroom and seven 4-bedroom), and related on-site and off-site improvements
(hereinafter referred to as the Project), utilizing sweat-equity from the proposed homebuyers
and volunteers.
E. WHEREAS, the DEVELOPER desires to act as the owner/developer exercising
effective project control, as to the construction of the 22 single-family houses of which 11 will
be HOME CHDO-assisted units to be preserved as Low-Income homeownership housing,
as defined by the HOME CHDO Program, and related on-site and off-site improvements as
more particularly described in EXHIBIT "B"— Project Description and Schedule, incorporated
herein.
F. WHEREAS, the Project will be constructed upon HOME CHDO Program eligible
Property owned by the DEVELOPER in fee simple title.
G. WHEREAS, to further its goal to increase the supply of Affordable Housing within the
City of Fresno, the CITY desires to assist the Project by providing the DEVELOPER with One
Million Four Hundred Sixty-Two Thousand dollars and 00/100 ($1,462,000.00) in HOME
CHDO Loan at 2% interest as an assumable loan for eligible HOME CHDO Project
construction costs, upon the terms and conditions in this Agreement, as further identified in
EXHIBIT "C" — Budget, variously to be secured by the underlying real Property and the
Affordable Housing covenants attached as EXHIBIT "D" — Exemplar Declaration of
Restriction, and Note, Exemplar Notes attached as EXHIBIT "F" — Promissory Note loan,
upon the terms and conditions in this Agreement.
H. WHEREAS, on March 17, 2017, an environmental review of the Project pursuant to
3
the California Environmental Quality Act (CEQA) guidelines resulted in a Mitigated Negative
Declaration. Additionally, on September 6, 2018, an environmental review of the Project
pursuant to the National Environmental Policy Act (NEPA) guidelines resulted in a Finding of
No Significant Impact.
I. WHEREAS, the CITY has determined that this Agreement is in the best interest of,
and will materially contribute to, the Housing Element of the General Plan. Further, the CITY
has found that the Project: (i) will have a positive influence in the neighborhood and
surrounding environs, (ii) is in the vital and best interest of the CITY, and the health, safety,
and welfare of CITY residents, (iii) complies with applicable federal, State, and local laws
and requirements, (iv) will increase, improve, and preserve the community's supply of Low-
Income Housing available at an affordable cost to Low-Income households, as defined
hereunder, (v) planning and administrative expenses incurred in pursuit hereof are necessary
for the production, improvement, or preservation of Low-Income Housing, and (vi) will comply
with any and all owner participation rules and criteria applicable thereto.
J. WHEREAS, the CITY and DEVELOPER have determined that the Project's HOME
CHDO-assisted Units constitute routine programmatic/grantee lender activities utilizing
available and allocated program/grantee funding, outside the reach of the California
Constitution Article XXXIV and enabling legislation.
K. WHEREAS, the parties acknowledge and agree that the obligations and liabilities of
the DEVELOPER hereunder shall be joint and several unless and except to any extent
expressly provided otherwise.
L. WHEREAS, on June 24, 2020, the Housing and Community Development
Commission of the City of Fresno reviewed this Agreement and recommended approval.
M. WHEREAS, on April 23, 2019, the DEVELOPER'S Board reviewed and approved by
Resolution #2019-17, the development of the Project and the Agreement.
NOW, THEREFORE, IN CONSIDERATION of the above recitals, which recitals are
contractual in nature, the mutual promises herein contained, and for other good and valuable
consideration hereby acknowledge, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following terms have the meaning and content set forth in this Article wherever used in
this Agreement, attached exhibits or attachments that are incorporated into this Agreement
by reference.
1.1 ADA means the Americans with Disabilities Act of 1990, as most recently
amended.
1.2 Affirmative Marketing means a good faith effort to attract eligible persons of all
racial, ethnic and gender groups, in the housing market area, to purchase the proposed
Housing Unit(s) that are proposed for construction on the eligible Property, as hereinafter
defined.
1.3 Affordability_Period means the minimum period of 30 years commencing from
the date the CITY enters project completion information into HUD's Integrated Disbursement
and Information System (IDIS), which date will be provided to the DEVELOPER by the CITY
and added as an administrative amendment hereto; City agrees to enter project completion
information into IDIS within 30 days of City's receipt thereof.
4
1.4 Affordable Housing means the for-sale housing units of which 11 single-family
houses will be required to meet the affordability requirements of 24 C.F.R. 92.252.
1.5 Budget means the Budget for the development of the Project, as may be
amended upon the approval of the CITY's Housing and Community Development Division
Manager provided any increase in HOME CHDO Funds hereunder requires City Council
Approval, attached hereto as EXHIBIT "C".
1.6 Certificate of Completion means that certificate issued, in the form attached as
EXHIBIT "E" (Exemplar Certificate of Completion), to the DEVELOPER by the CITY
evidencing completion of the Project and a release of construction related covenants for the
purposes of the Agreement.
1.7 CFR means the Code of Federal Regulations.
1.8 Commencement of Construction means the time the DEVELOPER or the
DEVELOPER's construction contractor begins substantial physical work on the Property,
including, without limitation, delivery of materials and any work, beyond maintenance of the
Property in its status quo condition, which shall take place in accordance with the Project
Schedule.
1.9 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT "D", which contains the Affordability covenants and
requirements of this Agreement which shall run with the land and which the DEVELOPER
shall record or cause to be recorded against the Property no later than the date of
Commencement of Construction.
1.10 Deed of Trust means that standard form Deed of Trust approved by CITY
recorded against the Property, insured in the full amount of the Loan on the Property.
1.11 Eligible Costs means the HOME CHDO eligible Property and Project
construction costs funded by the Loan, consistent with the Project Budget attached as
EXHIBIT "C", allowable under 24 C.F.R. Part 92, as specified in 24 C.F.R. 92.205 and
92.206, and not disallowed by 24 C.F.R. 92.214, provided, however, that costs incurred in
connection with any activity that is determined to be ineligible under the Program by HUD or
the CITY shall not constitute Eligible Costs.
1.12 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.13 Funding Sources means the CITY's HOME CHDO Funds, the DEVELOPER's
funds, and any other funds that may become available to the Project.
1.14 Hazardous Materials means any hazardous or toxic substances, materials,
wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous
substances," "hazardous wastes," "hazardous materials," "pollutants," "contaminants" or
"toxic substances" under federal or state environmental and health safety laws and
regulations, including without limitation, petroleum and petroleum byproducts, flammable
explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead.
Hazardous Materials do not include substances that are used or consumed in the normal
course of developing, operating or occupying a housing project, to the extent and degree
that such substances are stored, used and disposed of in the manner and in amounts that
are consistent with normal practice and legal standards.
1.15 HOME Investment Partnerships HOME Program Communi Housin
5
Development Organization (CHDO) Funds (HOME CHDO Funds) means the Program
monies consisting of the^Loan in an amount not to exceed the sum of One Million Four
Hundred Sixty-Two Thousand dollars and 00/100 ($1,462,000.00) to be used for eligible
Project construction development costs, pursuant to this Agreement.
1.16 Household means one or more persons occupying a single-family home within
the Project.
1.17 HUD means the United States Department of Housing and Urban
Development.
1.18 Loan means the assumable Project Loan of HOME CHDO Funds, in the total
amount of One Million Four Hundred Sixty-Two Thousand dollars and 00/100
($1,462,000.00) and the aggregate HOME CHDO per unit cap (24 CFR 92.250) for the 11
HOME CHDO-assisted Units as determined by the CITY and made available by the CITY to
the Project pursuant to this Agreement, as more specifically described in the Budget and in
the Promissory Note attached as EXHIBIT "F". The Loan shall be proportionately allocated
to the 11 houses, respectively in the amount of $132,909, and payable in accordance with
the terms of the Note; secured by a deed of trust on each parcel constituting the Property;
and subject to the Rider to Deed of Trust attached as EXHIBIT "G".
1.19 Loan Documents are collectively this Agreement, the Note (attached hereto as
EXHIBIT "F"), Deed of Trust, Declaration of Restrictions, and all related
documents/instruments as they may be amended, modified or restated from time to time
along with all exhibits and attachments thereto, relative to the Loan.
1.20 Low-Income Household means households with an annual income that does
not exceed 80% of the median income for the Fresno, California area as determined by HUD,
except as HUD may establish income ceilings higher or lower than 80% of the median for
the area on the basis of HUD finding that such variations are necessary.
1.21 Note means that certain assumable, HOME CHDO Loan Note in a principal
amount not to exceed the HOME CHDO Program per unit cap (24 C.F.R. 92.250) as
determined by the CITY, given by the DEVELOPER as promissor, in favor of the CITY as
promisee, evidencing the Loan and performance of the affordability and other covenants and
restrictions set forth in this Agreement, secured by the Deed of Trust as 2nd position lien
upon the Property, naming the CITY as beneficiary and provided to the CITY, no later than
the date of the Affordable Project funding hereunder, an exemplar of which is attached her
to as EXHIBIT "F", and incorporated herein, as well as any amendments to, modifications of
and restatements of said Note consented to by the CITY.
1.22 Pr�oiect means the construction of 22 single-family houses at the Property and
sold as Low-Income Housing, and related on-site and off-site improvements all as described
in the Project Description and Schedule attached hereto and incorporated herein as EXHIBIT
"B", upon the property as more particularly described in EXHIBIT "A".
1.23 Project Completion Date means the date that the CITY shall have determined
that the Project: 1) has reached completion in accordance with the plans and specifications
as approved by the CITY; 2) is in compliance with all Housing Quality Standards, 3) has been
issued a Certificate of Occupancy, and 4) final Project costs and homebuyer Household
information is entered into IDIS.
1.24 Project Schedule means the schedule for commencement, completion, and
close of escrow of the Project included in EXHIBIT "B
6
1.25 Property means the DEVELOPER-owned parcel located at a portion of A.P.N:
479-270-34T, Fresno, CA 93706, as more specifically described in the Property Description
attached EXH I BIT "A".
1.26 Unit. Housing Unit, or Project Unit means one of the 22 single-family Housing
Units to be constructed upon the DEVELOPER-owned Property and preserved as Affordable
Housing for the duration of the 30 year Affordability Period.
ARTICLE 2. TERMS
2.1 Loan of HOME CHDO Funds. The CITY agrees to provide a Loan of HOME
CHDO Funds to the DEVELOPER, in an amount not to exceed One Million Four Hundred
Sixty-Two Thousand dollars and 00/100 ($1,462,00.00) under the terms and conditions
provided in this Agreement and Exhibit "B" — Project Description and Schedule. The HOME
CHDO funds shall only be used for payment of HOME CHDO-eligible Project construction
costs.
2.2 Loan Documents. The DEVELOPER shall execute and deliver the Note to the
CITY and the Deed of Trust to Old Republic Title Company, or a comparable title company
to be mutually agreed upon by the Parties, for recordation against the Property, as provided
for in this Agreement.
2.3 Term of Agreement. This Agreement is effective upon the date of execution
and shall remain in force with respect to the Project for the duration of the Affordability Period
unless earlier terminated as provided herein. After the 30 year Affordability Period, this
Agreement will expire. It is understood and agreed upon, that if this Agreement should be
terminated in whole or in part as provided hereunder without default by the DEVELOPER
prior to disbursement of HOME CHDO Funding; the CITY agrees to record a Notice of
Cancellation regarding this Agreement upon the written request of the DEVELOPER.
2.4 Loan Repayment and Maturit . The Loan will be due and payable in
accordance with the Note and not later than the Maturity date provided in the Note.
2.5 Incorporation of Documents. The Loan Documents, the Act and HUD
regulations at 24 C.R.F. Part 85, 92, CPD 98-2 and all exhibits, attachments, documents and
instruments referenced herein, as now in effect and as may be amended from time to time,
constitute part of this Agreement and are incorporated herein by reference. All such
documents have been provided to the parties herewith or have been otherwise provided
to/procured by the parties and reviewed by each of them prior to execution hereof.
2.6 Covenants of DEVELOPER. The DEVELOPER for itself and its agents/
assigns covenants and agrees to comply with all the terms and conditions of this Agreement
and the requirements of 24 CFR Part 92 that are applicable to the Project.
2.7 Subordination. This Agreement, the Declaration of Restrictions and the Deed
of Trust may be subordinated to certain approved financing (in each case, a "Senior Lender"),
to no worse than 2nd position, but only on condition that all of the following conditions are
satisfied: (a) all of the proceeds of the proposed Senior Loan, less any transaction costs,
must be used to provide construction financing for the Project consistent with an approved
subsequent financing plan; (b) the subordination agreement must provide the CITY with
adequate rights to cure any defaults by the DEVELOPER including providing the CITY or its
successor with copies of any notices of default; (c) upon a determination by the City Manager
that the conditions in this Section have been satisfied, the City Manager or his/her designee
will be authorized to execute the subordination agreement, inter-creditor agreements,
7
standstill agreements, and/or other documents as may be reasonably requested by the
Lender to evidence subordination to the Project financing, without the necessity of any further
action or approval provided that such agreements contain written provisions that are no more
onerous and which are consistent with the customary standard requirements imposed by the
financing source(s), on subordinate cash flow obligations under their then existing senior
financing policies, and further provided that the City Attorney approves such document(s) as
to form.
The HOME Program restrictions on the Property shall terminate upon foreclosure,
transfer in lieu of foreclosure or assignment of the FHA insured mortgage to HUD. To the
extent that there are any proceeds from the foreclosure or other sale of the Property
remaining after the superior loan repayment, the remaining proceeds shall be paid to City of
Fresno.
ARTICLE 3. GENERAL REPRESENTATIONS AND WARRANTIES OF DEVELOPER
3.1 Existence and Qualification. The DEVELOPER, represents and warrants to
the CITY as of the date hereof, that the DEVELOPER is a duly organized California
corporation in good standing with the State of California; the DEVELOPER has the requisite
power, right, and legal authority to execute, deliver, and perform its obligations under the
Agreement and has taken all actions necessary to authorize the execution, delivery,
performance, and observance of its obligations under this Agreement. This Agreement,
when executed and delivered by the DEVELOPER is enforceable against the DEVELOPER
in accordance with its respective terms, except as such enforceability may be limited by: (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar
laws of general applicability affecting the enforcement of creditors' rights generally, and (b)
the application of general principles of equity without the joinder of any other party.
3.2 No Litigation Material to Financial Condition. The DEVELOPER represents
and warrants to the CITY as of the date hereof that, except as disclosed to and approved by
CITY in writing, no litigation or administrative proceeding before any court or governmental
body or agency is now pending, nor, to the best of the DEVELOPER's knowledge, is any
such litigation or proceeding now threatened, or anticipated against the DEVELOPER that,
if adversely determined, would have a material adverse effect on the financial condition,
business, or assets of the DEVELOPER or on the operation of the Project.
3.3 No Conflict of Interest. The DEVELOPER represents and warrants to the City
as of the date hereof that no officer, agent, or employee of the CITY directly or indirectly
owns or controls any interest in the DEVELOPER, and no person, directly or indirectly owning
or controlling any interest in the DEVELOPER, is an official, officer, agent, or employee of
the CITY.
3.4 No Legal Bar. The DEVELOPER represents and warrants to the CITY, as of
the date hereof that the execution, delivery, performance, or observance by the
DEVELOPER of this Agreement will not, to the best of the DEVELOPER's knowledge,
materially violate or contravene any provisions of: (a) any existing law or regulation, or any
order of decree of any court, governmental authority, bureau, or agency; (b) governing
documents and instruments of the DEVELOPER; or (c) any mortgage, indenture, security
agreement, contract, undertaking, or other agreement or instrument to which the
DEVELOPER is a party or that is binding on any of its properties or assets, the result of which
would materially or substantially impair the DEVELOPER's ability to perform and discharge
8
its obligations or its ability to complete the Project under this Agreement.
3.5 No Violation of Law. The DEVELOPER represents and warrants as of the date
hereof that, to the best of the DEVELOPER's knowledge, this Agreement and the operation
of the Project as contemplated by the DEVELOPER, do not violate any existing federal, state
or local laws of regulations.
3.6 No Litigation Material to Project. The DEVELOPER represents and warrants
as of the date hereof, except as disclosed to, and approved by the CITY in writing, there is
no action, proceeding, or investigation now pending, or any basis therefor known or believed
to exist by the DEVELOPER that questions the validity of this Agreement, or of any action to
be taken under this Agreement, that would, if adversely determined, materially or
substantially impair the DEVELOPER's ability to perform and observe its obligations under
this Agreement, or that would either directly or indirectly have an adverse effect or impair the
completion of the Project.
3.7 Assurance of Governmental Approvals and Licenses. The DEVELOPER
represents and warrants to the CITY, as of the date hereof, that the DEVELOPER has
obtained and, to the best of the DEVELOPER's knowledge, is in compliance with all federal,
state, and local governmental reviews, consents, authorizations, approvals, and licenses
presently required by law to be obtained by the DEVELOPER for the Project prior to
construction.
ARTICLE 4. HOME CHDO PROGRAM REPRESENTATION AND WARRANTIES BY
DEVELOPER
The DEVELOPER, for itself and its development team represents and warrants that:
4.1 Accessibility. The DEVELOPER covenants and agrees with the CITY that it
shall comply with all federal regulations concerning accessibility requirements in federally
funded housing, including, but not limited to Title III of the Americans with Disability Act of
1990 (ADA) as it relates to the homebuyer.
4.2 Universal Design Ordinance. The design and construction requirements as
required by the CITY's Universal Design Ordinance pursuant to FMC 11-110, including, but
not limited to the following requirements:
i. No step accessible entryway;
ii. All interior doorways and passageways at least 32 inches wide;
iii. One downstairs "flex room" and accessible bathroom with
reinforcements for grab bars;
iv. Six square feet of accessible kitchen counter space; and
V. Hallways at least 42 inches wide.
4.3 Affirmative Marketing. The DEVELOPER warrants, covenants and agrees that
it shall comply with all affirmative marketing requirements, including without limitation, those
set out at 24 C.F.R. 92.350 and 92.351, in order to provide information and otherwise attract
eligible persons from all racial, ethnic and gender groups in the housing market. The
DEVELOPER shall be responsible for complying with its "Affirmative Marketing Policy", in
addition to the CITY's Minority Outreach Program. The DEVELOPER shall maintain records
of actions taken to affirmatively market units constructed in the future, and to assess the
results of these actions.
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4.4 Availability of HOME CHDO Funds. The DEVELOPER understands and
agrees that the availability of HOME CHDO Funds is subject to the control of HUD, or other
federal agencies, and should said Funds be encumbered, withdrawn or otherwise made
unavailable to the CITY, whether earned by or promised to the DEVELOPER, and/or should
the CITY in any fiscal year hereunder fail to allocate said Funds, the CITY shall not provide
said Funds unless and until they are made available for payment to the CITY by HUD and
the CITY receives and allocates said Funds. No other funds owned or controlled by the CITY
shall be obligated under this Agreement to the Project.
4.5 Compliance with Agreement. The DEVELOPER warrants, covenants and
agrees that, in accordance with the requirements of 24 C.F.R. 92.252 and 24 C.F.R. Part 85,
upon any uncured default by the DEVELOPER within the meaning of Article 10.1 of this
Agreement, the CITY may suspend or terminate this Agreement and all other agreements
with the DEVELOPER without waiver or limitation of rights/remedies otherwise available to
the CITY.
4.6 Conflict of Interest. The DEVELOPER warrants, covenants and agrees that it
shall comply with the Conflict of Interest requirements of 24 C.F.R. 92.356 including, without
limitation, that no officer, employee, agent or consultant of the DEVELOPER may occupy a
Project Unit. The DEVELOPER understands and acknowledges that no employee, agent,
consultant, officer or elected official or appointed official of the CITY, who exercises 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 thereunder, 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 C.F.R. 92.356(f), no owner,
developer or sponsor of the Project, or officer, employee, agent or consultant thereof, may
occupy a Project Unit.
4.7 Construction Standards. The DEVELOPER shall construct the proposed
Project Units assisted under this Agreement in compliance with all applicable local codes,
ordinances and zoning requirements in effect at the time of issuance of CITY building
permits.
4.8 Covenants and Restrictions to Run with the Land. The CITY and the
DEVELOPER expressly warrant, covenant and agree to ensure that the covenants and
restrictions set forth in this Agreement are recorded and will run with the land, provided,
however, that, consistent with the Loan Documents, the CITY may release said covenants
and restrictions only upon recapture of all HOME CHDO Funding allocated to the Unit(s) by
the CITY. The DEVELOPER further warrants, covenants and agrees to ensure that the
covenants and restrictions set forth herein shall run in favor of the CITY.
A. The CITY and the DEVELOPER hereby declare their understanding and
intent that the covenants and restrictions set forth herein directly benefit the land (a) by
enhancing and increasing the enjoyment and ownership of the proposed Project by certain
Low-Income Households, and (b) by making possible the obtaining of advantageous
financing for construction.
B. The DEVELOPER covenants and agrees with the CITY that after
issuance of a recorded Certification of Completion for the Project until the expiration of the
Affordability Period, it shall cause the 11 Project Units to be sold as Affordable Housing to
Very Low and Low-Income Households and sell the homes within five months of completion
10
of construction.
C. Without waiver or limitation, the CITY shall be entitled to injunctive or
other equitable relief against any violation or attempted violation of any covenants and
restrictions, and shall, in addition, be entitled to damages available under law or contract for
any injuries or losses resulting from any violations thereof.
D. 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 covenants and
restrictions. The acceptance of a deed of conveyance to the Property shall constitute an
agreement that the covenants and restrictions, as may be amended or supplemented from
time to time, are accepted and ratified by such future owners, tenant or occupant, and all
such covenants and restrictions shall be covenants running with the land and shall bind any
person having at any time any interest or estate in the Property, all as though such covenants
and restrictions were recited and stipulated at length in each and every deed, conveyance,
mortgage or lease thereof.
E. The failure or delay at any time of the CITY or any other person entitled
to enforce any such covenants or restrictions shall in no event be deemed a waiver of the
same, or of the right to enforce the same at any time or from time to time thereafter, or an
estoppel against the enforcement thereof.
4.9 Displacement of Persons. The DEVELOPER covenants and agrees with the
CITY that pursuant to 24 C.F.R. 92.353, it will take all reasonable steps to minimize the
displacement of any persons (families, individuals, businesses, nonprofit organizations and
farms). The parties acknowledge and agree that the Property to be developed will be
unoccupied vacant land.
4.10 Initial and Annual Income Certification and Reporting. The DEVELOPER
covenants and agrees that it shall comply with the procedures for income determinations at
24 C.F.R. 92.203. The DEVELOPER, shall obtain, complete and maintain on file,
immediately prior to initial occupancy, and annually thereafter, income certifications from
each of the 11 Affordable Project Unit Households. The DEVELOPER, shall make a good
faith effort to verify that the income provided by an applicant or occupying Household in an
income certification is accurate by taking one or more of the following steps as part of the
verification process: (1) obtain at least three pay stubs for the most recent pay periods; (2)
obtain a Verification of Employment form from the applicant's current employer; (3) obtain
and income verification form from the Social Security Administration and California
Department of Social Services, if the applicant receives assistance from either of these
agencies; (4) obtain income tax returns for the most recent three year tax periods; (5) if the
applicant is unemployed, obtain another form of independent verification; or (6) conduct a
credit agency or similar search. Copies of Household income certification and verification
must be available for review and approval by the CITY prior to the close of escrow and the
transfer of the title to a Very Low or Low-Income homebuyer. The DEVELOPER further
warrants, covenants and agrees that it will cooperate with the CITY in the CITY's income
certification/affordability monitoring activities at the time subsequent to the initial transfer of
the Unit. After initial transfer and annually thereafter until the expiration of the affordability
period, the Homeowner is required to cooperate with the CITY in its annual income
certification of the household.
4.11 Lead-Based Paint. The DEVELOPER covenants and agrees with the CITY
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 C.F.R. Part 35, including the HUD 1012 Rule,
11
and 24 C.F.R. 982.4010), and any amendment thereto, and Environmental Protection
Agency (EPA) Section 402 (c)(3) of the Toxic Substances Control Act (TSCA) to address
lead-based hazards created by renovation, repair, and painting activities that disturb lead-
based paint in target housing and child-occupied facilities. Contractors performing
renovations in lead-based paint units must be EPA-certified renovators. These requirements
apply to all units and common areas of the Project. The DEVELOPER shall incorporate or
cause incorporation of this provision in all contracts and subcontracts for work performed on
the Project, which involve the application of paint. The DEVELOPER shall be responsible
for all disclosure, inspection, testing, evaluation, and control and abatement activities.
4.12 Other Laws and Regulations. The DEVELOPER covenants and agrees that,
in addition to complying with the federal laws and regulations already cited in this Agreement,
the DEVELOPER has reviewed, and shall comply with and require all its contractors and
subcontractors on the Project to comply with, all other federal laws and regulations that apply
to the HOME CHDO Program, including, without limitation, requirements of 24 C.F.R. 58.6
and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001-4128 the
following:
A. The DEVELOPER intends to use financing that is secured by FHA in
connection with the Project.
B. The Project is not located in a tract identified by the Federal Emergency
Management Agency as having special flood requirements.
C. The Project requirements, Subpart F of 24 C.F.R. Part 92, as applicable
and in accordance with the type of Project assisted, including, but not limited to, the HOME
CHDO per-unit subsidy amount at 24 C.F.R. 92.250, as amended.
D. The property standards at 24 CFR 92.251.
E. The Project "Labor" requirements, as applicable, of 24 C.F.R. 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).
F. The provisions of Section 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction and management of the proposed
Project.
G. The DEVELOPER and its contractors, subcontractors and service
providers for the Project, shall comply with all applicable local, State and federal
requirements concerning equal employment opportunity, including compliance with
Executive Order (E.O.) 11246, "Equal Employment Opportunity", as amended by E.O.
11375, (amending E.O. 11246 Relating to Equal Employment Opportunity), and as
supplemented by regulations at 41 C.F.R. part 60, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor".
H. The provisions of the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as
supplemented by Department of Labor regulations (29 C.F.R. 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").
I. 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.
12
J. The provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352).
K. The provision of E.O.s 12549 and 12689, "Debarment and Suspension,"
as set forth at 24 C.F.R. part 24.
L. 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.
M. Title 8 of the Civil Rights Act of 1968 PL. 90-284.
N. E.O. 11063 on Equal Opportunity and Housing.
O. Section 3 of the Housing and Urban Development Act of 1968
P. The Housing and Community Development Act of 1974.
Q. Clean Water Requirements 33 U.S.C. 1251.
R. Civil Rights Requirements, 29 U.S.C. 623, 42 U.S.C. 2000, 42 U.S.C.
6102, 42 U.S.0 12112, 42 U.S.C. 12132, 49 U.S.0 5332, 29 C.F.R. Part 1630, 41 C.F.R.
and Part 60 et seq.
4.13 Faith Based Activities. The DEVELOPER warrants, covenants and agrees that
it shall not engage in any prohibited activities described in 24 C.F.R. 92.257.
4.14 Reporting Requirements. The DEVELOPER warrants, covenants and agrees
with the CITY that it shall submit performance reports to the CITY as detailed in Section 7.15.
Furthermore, the DEVELOPER agrees to provide, at the sole cost of the DEVELOPER, an
annual audited Financial Statement for the Project expenses and ongoing financial
transactions which occur as a result of this Agreement as detailed in Section 5.4. The
DEVELOPER agrees to account for the expenditure of HOME CHDO Funds using generally
accepted accounting principles, which financial documentation shall be made available to
the CITY and HUD upon their respective written request(s).
4.15 Affordability Period. The DEVELOPER covenants and agrees with the CITY
that the 11 Project Units will be Affordable Housing available to Very Low and Low-Income
Households and other requirements of 24 C.F.R. 92.252 upon sale of the 11 houses to
eligible Very Low and Low-Income homebuyers, except upon foreclosure by a lender or
transfer in lieu of foreclosure following default under a Deed of Trust. In the event
DEVELOPER fails to comply with this section, the DEVELOPER shall return to the CITY all
HOME CHDO Funds disbursed to the DEVELOPER by the CITY.
4.16 Terminated Projects. The DEVELOPER understands and agrees that, if the
Project is terminated before completion, either voluntarily or otherwise, such constitutes an
ineligible activity and the CITY will not be required to provide any further HOME CHDO
Program assistance funding to the Project and the CITY may seek available relief.
ARTICLE 5. COVENANTS AND AGREEMENTS OF DEVELOPER
The DEVELOPER covenants and agrees to the following, for the entire term of the
Agreement.
5.1 Affordable For Sale Housin . The DEVELOPER covenants and agrees that the
Affordable Project shall constitute 22 affordable Units for sale and preserved for Very Low
and Low-Income Households during the 30 year affordability period. In the event the
DEVELOPER fails to comply with the time period in which the Affordable Units constitute
Affordable Housing, the CITY shall without waiver or limitation, be entitled to injunctive relief,
as the DEVELOPER acknowledges that the damages are not adequate remedy at law for
13
such breach.
5.2 Compliance With Environmental Laws. The DEVELOPER shall cause the
Project to be in compliance with, and not to cause or permit the Project to be in violation of,
any Hazardous Materials law, rule, regulation, ordinance, or statute. If the CITY has
reasonable grounds to suspect any such violation, the DEVELOPER shall be provided with
30 days' notice and opportunity to cure such violation. If the suspected violation is not cured,
the CITY shall have the right to retain an independent consultant to inspect and test the
eligible Property for such violation. If a violation is discovered, the DEVELOPER shall pay
for the reasonable cost of the independent consultant.
Additionally, the DEVELOPER agrees:
A. That the CITY shall not be directly or indirectly responsible, obligated or
liable with the inspection, testing, removal or abatement of asbestos or other hazardous or
toxic chemicals, materials, substances, or wastes and that all cost, expense and liability for
such work shall be and remain solely with the DEVELOPER;
B. Not to transport to, or from, the proposed Property, or use, generate,
manufacture, produce, store, release, discharge, or dispose of on, under, or about the
Property, or surrounding real estate, or transport to or from the Project site(s), or surrounding
real estate, any hazardous or toxic chemicals, materials, substance, or wastes or allow any
person or entity to do so except in such amounts and under such terms and conditions
permitted by applicable laws, rules, regulations, ordinances, and statutes;
C. To give prompt written notice to the CITY of the following:
1. Any proceeding or inquiry by any governmental authority with
respect to the presence of any hazardous or toxic chemicals, materials, substance, or waste
in or on the eligible Property or the surrounding real estate or the migration thereof from or
to other property; and
2. All claims made or threatened by any third party against the
DEVELOPER, or such properties relating to any loss or injury resulting from any hazardous
or toxic chemicals, materials, substance, or waste; and
3. The DEVELOPER's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of such properties that would cause such
properties or underlying or surrounding real estate or part thereof to be subject to any
restrictions on the ownership, occupancy, transferability, or use of the property under any
environmental law, rule, regulation, ordinance or statute; and
4. To indemnify, defend, and hold the CITY harmless from any and
all claims, actions, causes of action, demand, judgments, damages, injuries, administrative
orders, consent agreements, orders, liabilities, penalties, costs, expenses (including
attorney's fees and expenses), and disputes of any kind whatsoever arising out of or relating
to the DEVELOPER or any other party's use of release of any hazardous or toxic chemicals,
materials, substance, or waste on the Property regardless of cause or origin, including any
and all liability arising out of or relating to any investigation, site monitoring, containment,
cleanup, removal, restoration, or related remedial work of any kind or nature.
5.3 Existence, Qualification. and Authority. The DEVELOPER shall provide to the
CITY any evidence required or requested by the CITY to demonstrate the continuing
existence, qualification, and authority of the DEVELOPER to execute this Agreement and to
perform the acts necessary to carry out the Project.
14
5.4 Financial Statements and Audits. The DEVELOPER, is required to comply with
the provisions of the Single Audit Act of 1984 (31 U.S.C. Sections 7501 et seq.), as amended.
5.5 Inspection and Audit of Books, Records and Documents. The DEVELOPER
shall be accountable to the CITY for all HOME CHDO Funds disbursed for the Project
pursuant to this Agreement. Any duly authorized representative of the CITY or HUD shall,
at all reasonable times, have access to and the right to inspect, copy, make excerpts or
transcripts, audit, and examine all books of accounts, records, files and other papers or
property, and other documents of the DEVELOPER pertaining to the Project or all matters
covered in this Agreement and for up to six years after the expiration or termination of this
Agreement.
A. The DEVELOPER agrees to maintain books and records that accurately
and fully show the date, amount, purpose and payee of all expenditures financed with HOME
CHDO Funds and to keep all invoices, receipts and other documents related to expenditures
financed with HOME CHDO Funds for not less than six (6) years after the expiration or
termination of the Agreement. Financial books and records must be kept accurate and
current. For purposes of this section, "books, records and documents" include, without
limitation; plans, drawings, specifications, ledgers, journals, statements,
contracts/agreements, funding information, funding applications, purchase orders, invoices,
loan documents, computer printouts, correspondence, memoranda, and electronically
stored versions of the foregoing. This section shall survive the termination of this
Agreement.
B. The CITY may audit any conditions relating to this Agreement at the
CITY's expense, unless such audit shows a significant discrepancy in information reported
by the DEVELOPER in which case the DEVELOPER shall bear the cost of such audit. The
DEVELOPER shall also comply with any applicable audit requirements of 24 C.F.R. 92.506.
This section shall survive the termination of this Agreement.
C. The DEVELOPER will cooperate fully with the CITY and HUD in
connection with any interim or final audit relating to the Project that may be performed
relative to the performance of this Agreement.
5.6 Inspection of Property. Any duly authorized representative of the CITY or HUD
shall, at all reasonable times, have access and the right to inspect the Property.
5.7 No Other Liens. The DEVELOPER shall not create or incur, or suffer to be
created or incurred, or to exist, any additional mortgage, pledge, encumbrance, lien, charge,
or other security interest of any kind on the eligible Property, other than those related to the
Project's construction and permanent financing loans in relation to the Project without the
prior written consent of the CITY.
5.8 Nondiscrimination. The DEVELOPER shall comply with and cause any and all
contractors and subcontractors to comply with any and all federal, state, and local laws with
regard to illegal discrimination, and the DEVELOPER shall not illegally discriminate against
any persons on account of race, religion, sex, family status, age, handicap, or place of
national origin in its performance of this Agreement and the completion of the Project.
5.9 Ownership. Except as set forth herein, or pursuant to the DEVELOPER's sale
of the housing unit through escrow to an eligible Very Low or Low-Income homebuyer, the
DEVELOPER shall sell, transfer, assign or otherwise dispose of all or any material part of
any interest it might hold in the Property or the Project to the homebuyers with the prior
written consent of the CITY through escrow documents, which consent and execution of
15
escrow document shall not be unreasonably withheld or delayed.
5.10 Payment of Liabilities. The DEVELOPER shall pay and discharge in the
ordinary course of its business all material obligations and liabilities, the nonpayment of
which could have a material or adverse impact on its financial condition, business, or assets
or on the operation of the Project(s), except such obligations and liabilities that have been
disclosed to the CITY in writing and are being contested in good faith.
5.11 Report of Events of Default. The DEVELOPER shall promptly give written
notice to the CITY upon becoming aware of any Event of Default under this Agreement.
ARTICLE 6. DISBURSEMENT OF HOME CHDO FUNDS
Without waiver of limitation, the parties agree as follows, regarding disbursement of HOME
CHDO Funds:
6.1 Use of HOME CHDO Program Funds. The DEVELOPER warrants, covenants
and agrees that it shall request HOME CHDO Program Funds limited to the amount needed
for eligible costs, including costs allowable under 24 C.F.R. 92.206, aggregating not more
than One Million Four Hundred Sixty-Two Thousand dollars and 00/100 ($1,462,000.00).
A. If any such Funds shall be determined to have been requested and/or
used by the DEVELOPER for costs other than for eligible construction reimbursement costs,
and subject to the notice and cure provisions of Section 10.2 hereunder, an equal amount
from non-public funds shall become immediately due and payable by the DEVELOPER to
the CITY; provided, however, that the DEVELOPER shall, subject to its full cooperation with
the CITY, be entitled to participate in any opportunity to remedy, contest, or appeal such
determination.
B. In the event HOME CHDO Funds are requested to reimburse Eligible
Costs which subsequently lose eligibility as Eligible Costs, the DEVELOPER shall
immediately return such HOME CHDO Funds to the CITY.
C. The CITY will disburse HOME CHDO Funds, only to reimburse the
DEVELOPER for eligible cost through proper invoicing of the eligible costs of the Project as
provided in this Article 6.
6.2 Conditions Precedent to Disbursement. The CITY shall not be obligated to
make or authorize any reimbursements of HOME CHDO Funds unless the following
conditions are satisfied:
A. There exists no Event of Default as provided in Article 10, nor any act,
failure, omission or condition that with the passage of time or the giving of notice or both
would constitute an Event of Default.
B. The DEVELOPER has received and delivered to the CITY firm
commitments of, or Agreements for, sufficient funds to finance the Project.
C. The CITY has approved the requested reimbursement of eligible Project
costs.
D. The DEVELOPER has obtained insurance coverage and delivered to
the CITY evidence of insurance as required in Article 9 and the CITY's Risk Management
has approved the required insurances submitted to the CITY by the Developer.
16
E. The DEVELOPER is current with its compliance of reporting
requirements set forth in this Agreement.
F. The DEVELOPER has provided the CITY with a written request for
HOME CHDO Funds on a CITY-approved form, for reimbursement of eligible Project costs,
and detailing such Eligible Costs applicable to the request.
G. The CITY has received certification required by Section 6.4 of this
Agreement.
H. The CITY has received, and continues to the have the right to disburse,
HOME CHDO Funds.
6.3 CITY disbursement of HOME CHDO Funds. The DEVELOPER shall request
reimbursement for eligible expenses using the CITY's Request for Reimbursement of Funds
form. The DEVELOPER shall request a maximum of One Million Four Hundred Sixty-Two
Thousand dollars and 00/100 ($1,462,000.00) in HOME CHDO Program assistance for the
Project. All requests should detail the applicable Eligible Costs.
6.4 DEVELOPER Certification. The DEVELOPER shall submit to the CITY a
written certification that, as of the date of the Request for Reimbursement ("Certification"):
A. The representations and warranties contained in or incorporated by
reference in this Agreement continue to be true, complete and accurate in material respects;
and
B. The DEVELOPER has carried out all of its obligations and is in
compliance with all the obligations or covenants specified in this Agreement, to the extent
that such obligations or covenants are required to have been carried out or are applicable at
the time of the request for the reimbursement; and
C. The DEVELOPER has not committed or suffered an act, event,
occurrence, or circumstance that constitutes an Event of Default or that with the passage of
time or giving of notice or both would constitute an Event of Default; and
D. The reimbursement requested will be used solely for reimbursement of
Eligible Costs identified in this Agreement and must by supported by the itemized obligations
that have been properly incurred and are properly chargeable in connection with the Project.
6.5 Disbursement of Funds. The disbursement of HOME CHDO Program Loan
Funds shall occur within 30 days after the CITY receives the Certification and to the extent
of annually allocated and available HOME CHDO Funds.
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Commencement and Completion of Proiect. The DEVELOPER shall
commence construction of the Project and, record a Notice of Completion of construction of
the Project in accordance with the Project Schedule identified in EXHIBIT "B".
7.2 Contracts and Subcontracts. Consistent with Section 5.2, all hazardous waste
abatement, construction work and professional services for the Project shall be performed
by persons or entities licensed or otherwise legally authorized to perform the applicable work
or service in the State of California and the City of Fresno. The DEVELOPER shall provide
the CITY with copies of all agreements it has entered into with any and all general contractors
or subcontractors for this Project. The DEVELOPER shall require that each such general
17
contractor agreement contain a provision whereby the party(ies)to the agreement, other than
the DEVELOPER, agree to: (i) notify the CITY immediately of any event of default by the
DEVELOPER thereunder, (ii) notify the CITY immediately of the filing of a mechanic's lien,
(iii) notify the CITY immediately of termination or cancellation of the construction agreement
on the Project, and (iv) provide the CITY, upon the CITY's request, an Estoppel Certificate
certifying that the agreement is in full force and effect and the DEVELOPER is not in default
thereunder. The DEVELOPER agrees to notify the CITY immediately of termination or
cancellation of any such agreement(s), notice of filing of a mechanic's lien, or breach or
default by other party(ies) thereto.
7.3 Damage to Property. To the extent consistent with the requirements of any
permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 9 of
this Agreement, if any building or improvement constructed on the Property is damaged or
destroyed by an insurable cause, the DEVELOPER shall, at its cost and expense, diligently
undertake to repair or restore said buildings and improvements consistent with the original
Plans and Specifications of the Project. Such work or repair within 90 days after the
insurance proceeds are made available to the DEVELOPER and shall be completed within
two years thereafter. All insurance proceeds collected for such damage or destruction shall
be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be
insufficient for such purpose, the DEVELOPER shall use its best efforts to make up the
deficiency.
7.4 Fees Taxes and Other Levies. The DEVELOPER shall be responsible for
payment of all fees, assessments, taxes, charges and levies imposed by any public authority
or utility company with respect to the Property or the Project, and shall pay such charges
prior to delinquency. However, the DEVELOPER shall not be required to pay and discharge
any such charge so long as: (a) the legality thereof is being contested diligently and in good
faith and by appropriate proceedings, and (b) if requested by the CITY, the DEVELOPER
deposits with the CITY any funds or other forms of assurances that the CITY, in good faith,
may determine from time to time are appropriate to protect the CITY from the consequences
of the contest being unsuccessful. The DEVELOPER shall have the right to apply for and
obtain an abatement and/or exemption of the Project from real property taxes in accordance
with all applicable rules and regulations, including Section 214(g) of the California Revenue
and Taxation Code.
7.5 Financing. The DEVELOPER shall promptly inform the CITY of any new
financing or funding not included in the budget for the Project, and the DEVELOPER shall
provide the CITY with copies of all agreements with any and all funding sources for the
Project. The DEVELOPER shall require each agreement with any and all funding sources
not included in the Budget to contain a provision whereby the party(ies) to the agreement
other than the DEVELOPER, if permitted by the party(ies) applicable rules and regulations,
agree to notify the CITY immediately of any event of default by the DEVELOPER thereunder.
Should the DEVELOPER not comply with all the obligations of this section, the loan shall
become immediately due and payable as provided for in this Agreement. This Section shall
survive expiration or termination of this Agreement.
7.6 Identification Si na e. Before the start of construction, the DEVELOPER shall
place a poster or sign, with a minimum four feet by four feet in size, identifying the City of
Fresno Planning and Development Department, Housing and Community Development
Division as a Project participant. The sign shall also include the CITY's Housing logo, as
well as the Equal Housing Opportunity logo, as mandated by HUD. The font size shall be a
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minimum of 4 inches. The poster/sign shall be appropriately place, and shall remain in place
throughout the Project construction.
7.7 Inspections. The DEVELOPER shall permit, facilitate, and require its
contractors and consultants to permit and facilitate observation and inspection at the job site
by the CITY and other public authorities during reasonable business hours, for the purpose
of determining compliance with this Agreement, including without limitation those annual on-
site inspections required of the CITY by 24 C.F.R. 92.504(d).
7.8 Utilities. The DEVELOPER shall be responsible, at its sole cost and expense,
to determine the location of any utilities on the Property and to negotiate with the utility
companies for, and to, relocate the utilities, if any, as necessary to complete the Project.
7.9 Insurance and Bonds. The DEVELOPER shall submit for CITY approval
bonds, certificates and applicable endorsements for all insurance and bonds required by this
Agreement in accordance with Article 9.
7.10 Mechanic's Liens and Stop Notices. If any claim of lien is filed against the
Property or a stop notice affecting any financing, HOME CHDO Program Funds or funding
sources for the Project is served on the CITY or any other third party in connection with the
Project, the DEVELOPER shall, within 20 days of such filing or service, either pay and fully
discharge the lien or stop notice, effect the release of such lien or stop notice by delivering
to the CITY a surety bond in sufficient form and amount, or provide the CITY with other
assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or
discharged.
A. If the DEVELOPER fails to discharge, bond or otherwise satisfy the
CITY with respect to any lien, encumbrance, charge or claim referred to in Section 7.10
above, then, in addition to any other right or remedy, the CITY may, but shall not be obligated
to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER's expense.
Alternatively, the CITY may require the DEVELOPER to immediately deposit with the CITY,
the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof.
The CITY may use such deposit to satisfy any claim or lien that is adversely determined
against the DEVELOPER. The DEVELOPER hereby agrees to indemnify and hold the CITY
harmless from liability for such liens, encumbrances, charges or claims together with all
related costs and expenses.
7.11 Permits and Licenses. The DEVELOPER shall submit, for CITY approval, all
the necessary permits and licenses required for Commencement of Construction. As the
CITY may reasonably request, the DEVELOPER, at its sole cost and expense, shall provide
to the CITY copies of any and all permit approvals and authorizations including plot plan,
plat, zoning variances, sewer, building, and other permits required by governmental
authorities other than the CITY in pursuit of the Project, and for its stated purposes in
accordance with all applicable building, environmental, ecological, landmark, subdivision,
zoning codes, laws, and regulations.
7.12 Plans and Specifications.
A. The DEVELOPER has submitted to the CITY preliminary plans and
Specifications for the Project (Project Preliminary Plans). The DEVELOPER will construct
the Project in full conformance with the CITY-approved plans and specifications and
modifications thereto approved by the CITY. The DEVELOPER shall obtain the CITY's prior
written approval for any modifications to the plans and specifications.
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B. The Agreement shall contain by reference the design and site plan of the
Project; such design must be approved by the CITY Council with the Agreement.
C. The DEVELOPER shall submit to the CITY, for its review and approval, the
Final Plans and specifications for the Project. The DEVELOPER will construct the Project in
full conformance with the Plans and specifications and modifications thereto approved by the
CITY. The DEVELOPER shall obtain the CITY's prior written approval for any substantial
modifications to the plans and specifications.
7.13 Quality of Work. The DEVELOPER shall ensure that construction of the Project
employs building materials of a quality suitable for the requirements of the Project. The
DEVELOPER shall cause completion of construction of the Project on the Property in full
conformance with applicable local, state and federal laws, statutes, regulations, and building
and housing codes.
7.14 Relocation. If and to the extent that construction of the proposed Project results
in the permanent or temporary displacement of residential homeowners, the DEVELOPER
shall comply with all applicable local, state and federal statutes and regulations with respect
to relocation planning, advisory assistance and payment of monetary benefits. The
DEVELOPER shall be solely responsible for payment of any relocation benefits to any
displaced persons and any other obligations associated with complying with said relocation
laws.
7.15 Reportina Requirements. The DEVELOPER shall submit to the CITY the
following Project reports:
A. From the date of execution of this Agreement, until issuance of the final
Certificate of Completion, the DEVELOPER shall submit a Quarterly Report, in a form
approved by the CITY, which will include, at a minimum, the following information: progress
of the Project and affirmative marketing efforts. The Quarterly Reports are due 15 days after
each March 31 st, June 30th, September 30th, and December 31 st, during the construction
and sale period.
B. Annually, beginning on the first day of the month following the CITY's
issuance of the Certificate of Completion, and continuing until the termination of the
Agreement, the DEVELOPER shall submit an Annual Report to the CITY, in a form approved
by the CITY. The Annual Report shall include, at a minimum, the following information..
occupancy of each Project Unit including the annual income and the household size, the date
occupancy commenced, certification from an officer of the DEVELOPER that the Project is
in compliance with the Affordability requirements, and such other information the CITY may
be required by law to obtain. The DEVELOPER shall provide any additional information
reasonably requested by the CITY.
C. Annually, beginning on the first day of the month following the CITY's
issuance of the final Certificate of Completion, evidencing the construction of the Project,
and continuing until the expiration of the Agreement, the DEVELOPER shall submit proof of
insurance as required in Article 9.
7.16 Scheduling and Extension of Time: Unavoidable Delay in Performance. It shall
be the responsibility of the DEVELOPER to coordinate and schedule the work to be
performed so that the Commencement of Construction and issuance of the Certificate of
Completion will take place in accordance with the provisions of the Agreement and Project
Schedule. The time for performance contained in the Project Schedule shall be automatically
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extended upon the following:
A. The time for performance of provisions of the Agreement by either party
shall be extended for a period equal to the period of any delay directly affecting the Project
or this Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-
outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public enemy,
epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by
third parties concerning or arising out of this Agreement, or unseasonable weather
conditions. An extension of time for any of the above specified causes will be granted only
if written notice by the party claiming such extension is sent to the other party within ten
calendar days from the date the affected party learns of the commencement of the cause
and the resulting delay and such extension of time is accepted by the other party in writing.
In any event, the Project must be completed no later than 180 calendar days after the
scheduled completion date specified in this Agreement, notwithstanding any delay caused
by that included in this section.
B. Any and all extensions hereunder shall be by mutual written agreement
of the CITY's Housing and Community Development Division Manager and the
DEVELOPER, shall not cumulatively exceed 180 days.
7.17 Certificate of Completion. Upon completion of the construction of the Project,
the DEVELOPER shall submit to the CITY: 1) certification in writing to that the Project has
been substantially constructed in accordance with the plans and specifications, approved by
the CITY; 2) a recorded Notice of Completion; 3) a cost-certifying final budget where the
DEVELOPER shall identify the actual costs of construction of the Project. This final cost-
certification shall identify costs in line-item format, consistent with the Project Budget; 4) a
request for a recorded Certification of Completion. Upon a determination by the CITY that
the DEVELOPER is in compliance with all of the DEVELOPER's construction obligations, as
specified in this Agreement, the CITY shall furnish, within 30 calendar days of a written
request by the DEVELOPER, a recordable Certificate of Completion for the Project in the
form attached hereto as EXHIBIT "E". The CITY will not unreasonably withhold or delay
furnishing the Certificate of Completion. If the CITY fails to provide the Certificate of
Completion within the specified time, it shall provide the DEVELOPER a written statement
indicating in what respects the DEVELOPER has failed to complete the Project in
conformance with this Agreement or has otherwise failed to comply with the terms of this
Agreement, and what measures the DEVELOPER will need to take or what standards it will
need to meet in order to obtain the Certificate of Completion. Upon the DEVELOPER taking
the specified measures and meeting the specified standards, the DEVELOPER will certify to
the CITY in writing of such compliance and the CITY shall deliver the recordable Certificate
of Completion to the DEVELOPER in accordance with the provisions of this section.
ARTICLE 8. OPERATION OF THE PROJECT
8.1 Operation of the Project. The DEVELOPER shall operate and/or manage the
Project in full conformity with the terms of this Agreement.
8.2 Occupancv Requirements. Eleven Project Units shall be marketed and sold as
a principal residence and be owner-occupied by a Very Low or Low-Income Household. The
DEVELOPER shall comply with the income targeting and Affordable Housing requirements
of 24 C.F.R. 92.217 and 92.254. No homebuyer shall take occupancy of any home prior to
the close of escrow vesting title in said homebuyer. If escrow is extended beyond 30 days,
the DEVELOPER may enter into a lease purchase option with the homebuyer.
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8.3 Homebuytr Packet. Upon selection of the homebuyer, the DEVELOPER shall
submit the homebuyer's financial information and household documentation to the CITY for
review and approval on City-approved forms. These documents include, but are not limited
to the following:
■ Credit reports and checks;
■ Criminal background checks;
■ Employment/income verification,
• Occupancy restrictions;
■ Income Limit;
• Restrictions on use of the premises;
■ Homebuyer Education Certification; and
■ Purchase and Sale Agreement
The City shall approve all homebuyers prior to close of escrow.
8.4 Nondiscrimination. Eleven Project Units shall be available for initial purchase
to members of the general public who are income eligible. The DEVELOPER shall not
illegally discriminate or segregate in the development, construction, use, enjoyment,
occupancy, conveyance of any part of the Project or Property on the basis of race, color,
ancestry, national origin, religion, sex, age, marital status, family status, source of
income/rental assistance subsidy, physical or mental disability, Acquired Immune Deficiency
Syndrome (AIDS) orAIDS-related conditions (ARC), sexual orientation, or any other arbitrary
basis. The DEVELOPER shall otherwise comply with all applicable local, State and federal
laws concerning nondiscrimination in housing. Neither the DEVELOPER nor any person
claiming under or through the DEVELOPER, shall establish or permit any such practice or
practices of illegal discrimination or segregation with reference to the selection, location,
number, use or occupancy of any Unit. All deeds or contracts made or entered into by the
DEVELOPER as to the Units or Project, or portion thereof, shall contain covenants
concerning nondiscrimination consistent with this section. The DEVELOPER shall include a
statement in all advertisements, notices and signs for availability of Units for rent to the effect
that the DEVELOPER is an Equal Housing Opportunity Provider.
8.5 Project House Sale Price. The initial sale price of each house is the total
amount paid by the homebuyer for the home conveyance, inclusive of any first lien/loan and
exclusive escrow fees, title insurance costs, broker's commission (if any), loan fees or any
other closing or transaction costs. Notwithstanding the foregoing, the sale price for the area
as applied under 24 C.F.R. 92.254.
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS
Without waiver of limitation, the parties agree as follows regarding DEVELOPER Insurance
and Indemnity Obligations:
9.1 Insurance Requirements. Throughout the life of this Agreement, DEVELOPER
shall pay for and maintain in full force and effect all policies of insurance hereunder with an
insurance company(ies) 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 CITY's Risk Manager. The following policies of insurance are
required:
Best's Insurance Rating Guide, or (ii) authorized by the CITY's Risk Manager. The following
policies of insurance are required:
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(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of Insurance Services Office (ISO)
Commercial General Liability Coverage Form CG 00 01 and include insurance
for "bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability of not less than the following:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising injury
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to work performed
under the Agreement
(ii) COMMERCIAL GENERAL LIABILITY insurance which shall be at as board
as the most current version of Insurance Service Office (ISO) Business Auto
Coverage Form CA 00 01, and include coverage for all owned, hired, and non-
owned automobiles or other licensed vehicles (Code 1-Any Auto) with limits of
liability of not less than $1,000,000 per accident for bodily injury and property
damage.
(iii) WORKERS' COMPENSATION insurance as required under the California
Labor Code.
(iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
diseased each employee.
(v) BUILDERS RISK (Course of Construction) insurance, obtained by the
DEVELOPER or subcontractor in an amount equal to the completion value of
the Project with no coinsurance penalty provisions. (Only required if the project
includes new construction of a building; or renovation of, or addition to, an
existing building.)
(vi) CONTRACTOR POLLUTION LIABILITY (Unless waived in writing by the
CITY's Risk Manager or his/her designee, Pollution Liability is required, by the
DEVELOPER or the Contractor for all environmental and water remediation
work and for all work transporting fuel. Pollution insurance shall provide
coverage for bodily injury, property damage or pollution clean-up costs that
could result from of pollution condition, both sudden and gradual. Including a
discharge of pollutants brought to the work site, a release of pre-existing
pollutants at the site, or other pollution conditions with limits of liability of not
less than the following:
$1,000,000 per occurrence or claim
$2,000,000 general aggregate per annual policy period
In the event the DEVELOPER purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, this insurance policy(ies) shall "follow
form" and afford no less coverage than the primary insurance policy(ies). In addition, such
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Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory
basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers.
In the event the DEVELOPER involves any lead-based, mold or asbestos environmental
hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance
policy shall be endorsed to include Transportation Pollution Liability insurance covering
materials to be transported by the DEVELOPER pursuant to the Agreement.
In the event the DEVELOPER involves any lead-based environmental hazard (e.g., lead-
based paint), the DEVELOPER's Pollution Liability insurance policy shall be endorsed to
include coverage for lead based environmental hazards. In the event the DEVELOPER
involves any asbestos environmental hazard (e.g., asbestos remediation); the
DEVELOPER's Pollution Liability insurance policy shall be endorsed to include coverage for
asbestos environmental hazards. In the event the Agreement involves any mold
environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy shall
be endorsed to include coverage for mold environmental hazards and "microbial matter
including mold" within the definition of"Pollution" under the policy.
The DEVELOPER shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the DEVELOPER shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must be
declared to, and approved by, the CITY's Risk Manager or his/her designee. At the option
of the CITY's Risk Manager or his/her designee, either(i)the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects to the CITY, its officers, officials,
employees, agents and volunteers; or (ii) the DEVELOPER shall provide a financial
guarantee, satisfactory to the CITY's Risk Manager or his/her designee, guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
At no time shall the CITY be responsible for the payment of any deductibles or self-insured
retentions.
All policies of insurance required hereunder shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30)
calendar day written notice has been given to the CITY. Upon issuance by the insurer,
broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits,
the DEVELOPER shall furnish the CITY with a new certificate and applicable endorsements
for such policy(ies). In the event any policy is due to expire during the work to be performed
for the CITY, the DEVELOPER shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The Pollution Liability insurance policy shall be written on either an
occurrence form, or a claims-made form. The General Liability, Automobile Liability and
Pollution Liability insurance policies shall name the CITY, its officers, officials, agents,
employees and volunteers as an additional insured. All such policies of insurance shall be
endorsed so the DEVELOPER's insurance shall be primary and no contribution shall be
required of the CITY. The coverage shall contain no special limitations on the scope of
protection afforded to the CITY, its officers, officials, employees, agents and volunteers. If
the DEVELOPER maintains higher limits of liability than the minimums shown above, the
CITY requires and shall be entitled to coverage for the higher limits of liability maintained by
the DEVELOPER. The General Liability insurance policy shall also name the CITY, its
officers, officials, agents, employees and volunteers as additional insureds for all ongoing
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and completed operations. The Builders Risk(Course of Construction) insurance policy shall
be endorsed to name the CITY as loss payee. All insurance policies required including the
Workers' Compensation insurance policy shall contain a waiver of subrogation as to the City,
its officers, officials, agents, employees and volunteers.
The DEVELOPER shall furnish the CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to
be received and approved by the CITY's Risk Manager or his/her designee before work
commences. Upon request of the CITY, the DEVELOPER shall immediately furnish the
CITY with a complete copy of any insurance policy required under this Agreement, including
all endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration or termination of this Agreement.
Claims-Made Policies - If any coverage required is written on a claims-made coverage form:
(i) The retroactive date must be shown, and must be before the effective date of
the commencement of work by the DEVELOPER.
(ii) Insurance must be maintained and evidence of insurance must be provided for
at least five years after completion of the work or termination of the Agreement,
whichever first occurs.
(iii) If coverage is canceled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the
Agreement, or work commencement date, the DEVELOPER must purchase
extended reporting period coverage for a minimum of five years after completion
of the work or termination of the Agreement, whichever first occurs.
(iv)A copy of the claims reporting requirements must be submitted to the CITY for
review.
(v) These requirements shall survive expiration or termination of the Agreement.
If at any time during the life of the Agreement or any extension, the DEVELOPER, its
contractor, or any of its subcontractors fail to maintain any required insurance in full force
and effect, all work under this Agreement shall be discontinued immediately, and all
payments due or that become due to the DEVELOPER shall be withheld until notice is
received by the CITY 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 CITY. Any
failure to maintain the required insurance shall be sufficient cause for the CITY to terminate
the Agreement. No action taken by CITY hereunder shall in any way relieve the
DEVELOPER of its responsibilities under the Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification received by the CITY that an
insurer has commenced proceedings, or has had proceedings commenced against it,
indicating that the insurer is insolvent.
The fact that insurance is obtained by the DEVELOPER shall not be deemed to release or
diminish the liability of the DEVELOPER, including, without limitation, liability under the
indemnity provisions of the Agreement. The duty to indemnify the CITY shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by the
DEVELOPER. Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of the DEVELOPER, its principals, officers, agents,
employees, persons under the supervision of the DEVELOPER, vendors, suppliers, invitees,
25
consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by
any of them.
In the event of a partial or total destruction by the perils insured against of any or all of the
work and/or materials herein provided for at any time prior to the final completion of the
Agreement and the final acceptance by the CITY of the work or materials to be performed or
supplied thereunder, the DEVELOPER shall promptly reconstruct, repair, replace, or restore
all work or materials so destroyed or injured at his/her sole cost and expense. Nothing herein
provided for shall in any way excuse the DEVELOPER or his/her insurance company from
the obligation of furnishing all the required materials and completing the work in full
compliance with the terms of the Agreement.
SUBCONTRACTORS - If DEVELOPER subcontracts any or all of the services to be
performed under this Agreement, DEVELOPER shall require, at the discretion of the CITY
Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with
the CITY to provide required indemnification and insurance protection. Any required Side
Agreement(s) and associated insurance documents for the subcontractor must be reviewed
and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, the
contractor will be solely responsible for ensuring that its subcontractors maintain insurance
coverage at levels no less than those required by applicable law and is customary in the
relevant industry.
A. The above described policies of insurance shall be endorsed to provide
an unrestricted 30 day written notice in favor of the CITY, of policy cancellation, change or
reduction of coverage. In the event any policy is due to expire during the term of this
Agreement, a new certificate evidencing renewal of such policy shall be provided not less
than 15 days prior to the expiration date of the expiring policy(ies). Upon issuance by the
insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, the
DEVELOPER or its contractors, as the case may be, shall file with the CITY a certified copy
of the new or renewal policy and certificates for such policy.
B. The DEVELOPER shall furnish the CITY with the certificate(s) and
applicable endorsements for ALL required insurance prior to the CITY's execution of this
Agreement. The DEVELOPER shall furnish the CITY with copies of the actual policies upon
the request of the CITY at any time during the life of the Agreement or any extension.
At all times hereunder the DEVELOPER shall maintain the required
insurance in full force and effect.
9.2 Indemnity. The DEVELOPER shall indemnify, hold harmless and defend the
CITY and each of its officers, officials, employees, agents and volunteers from any and all
loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time and property
damage) incurred by the CITY, the DEVELOPER or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performance of this
Agreement. The DEVELOPER's obligations under the preceding sentence shall apply
regardless of whether the CITY or any of its officers, officials, employees, agents or
volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, costs or damages caused by the active negligence or by the willful misconduct of
the CITY or any of its officers, officials, employees, agents or volunteers.
A. This section shall survive termination or expiration of this Agreement.
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9.3 Property Insurance. The DEVELOPER shall maintain in full force and effect,
throughout the Certificate of Completion, a policy(ies) of property insurance acceptable to
the CITY, covering the Project premises, with limits reflective of the value of the Project
premises upon issuance of the Certificate of Completion or substantial completion of the
project referenced in this agreement, including fire and Extended Comprehensive Exposure
(ECE) coverage in an amount, form, substance, and quality as acceptable to the CITY's Risk
Manager. The CITY shall be added by endorsement as a loss payee thereon.
9.4 Bond Obligations. The DEVELOPER or its General Contractor shall obtain,
pay for and deliver good and sufficient payment and performance bonds along with a Primary
Obligee, Co-Obligee or Multiple Obligee Rider in a form acceptable to the CITY from a
corporate surety, admitted by the California Insurance Commissioner to do business in the
State of California and Treasury-listed, in a form satisfactory to the CITY and naming the
CITY as Obligee.
A. The "Faithful Performance Bond" shall be at least equal to 100% of the
DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma
budget, attached hereto as EXHIBIT "C", to the guarantee faithful performance of the Project,
within the time prescribed, in a manner satisfactory to the CITY, consistent with this
Agreement, and that all material and workmanship will be free from original or developed
defects.
B. The "Payment Bond" shall be at least equal to 100% of construction
costs approved by the CITY to satisfy claims of material supplies and of mechanics and
laborers employed for this Project. The bond shall be maintained by DEVELOPER in full
force and effect until the Project is completed and until all claims for materials and labor are
paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3 of
the California Civil Code.
C. The "Material and Labor Bond" shall be at least equal to 100% of the
DEVELOPER's estimated construction costs as reflected in the DEVELOPER's pro forma
budget, attached hereto as EXHIBIT "C", to satisfy claims of material supplies and of
mechanics and laborers employed for this Project. The bond shall be maintained by the
DEVELOPER in full force and effect until the Project is completed, and until all claims for
materials and labor are paid, released, or time barred, and shall otherwise comply with any
applicable provision of the California Code.
D. In lieu of the bonds required above, the CITY, in its sole discretion, may
accept from the DEVELOPER an Irrevocable Standby Letter of Credit issued with the CITY
named as the sole beneficiary in the amounts(s) of the bonds required above. The Standby
Letter of Credit is to be issued by a bank, and in the form, acceptable to the CITY. This
Irrevocable Standby Letter of Credit shall be maintained by the DEVELOPER in full force
and effect until the CITY is provided with a recorded Notice of Completion for the construction
of the Project and shall be subject to and governed by the laws of the State of California.
ARTICLE 10. DEFAULT AND REMEDIES
10.1 Events of Default. The parties agree that each of the following shall constitute
an "Event of Default" by the DEVELOPER for purposes of this Agreement:
A. The DEVELOPER's use of HOME CHDO Funds for costs other than
Eligible Costs or for uses not permitted by the terms of this Agreement;
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B. The DEVELOPER's failure to obtain and maintain the insurance
coverage required under this Agreement;
C. Except as otherwise provided in this Agreement, the failure of the
DEVELOPER to punctually and properly perform any other covenant or agreement contained
in this Agreement including without limitation the following: (1) the DEVELOPER's material
deviation in the Project work specified in the Project Description as identified in this
Agreement, without the CITY's prior written consent; (2) the DEVELOPER's use of defective
or unauthorized materials or defective workmanship in pursuit of the Project; (3) the
DEVELOPER's failure to commence or complete the Project, as specified in this Agreement,
unless delay is permitted under Section 7.16 of this Agreement; (4) cessation of the Project
for a period of more than 15 consecutive days (other than as provided at Section 7.16 of this
Agreement) prior to submitting to the CITY certification that the Project is complete; (5) any
material adverse change in the condition of the DEVELOPER or its development team, or
the Project that gives the CITY reasonable cause to believe that the Project cannot be
completed by the scheduled completion date according to the terms of this Agreement; (6)
the DEVELOPER's failure to remedy any deficiencies in record keeping or failure to provide
records to the CITY upon the CITY's request; (7) the DEVELOPER's failure to comply with
any federal, state or local laws or applicable CITY restrictions governing the Project, including
but not limited to provisions of this Agreement pertaining to equal employment opportunity,
nondiscrimination and lead-based paint,
D. Any representation, warranty, or certificate given or furnished by or on
behalf of the DEVELOPER shall prove to be materially false as of the date of which the
representation, warranty, or certification was given, or that the DEVELOPER concealed or
failed to disclose a material fact to the CITY, provided, however, that if any representation,
warranty, or certification that proves to be materially false is due merely to the DEVELOPER's
inadvertence, the DEVELOPER shall have a 30 day opportunity after written notice thereof
to cause such representation, warranty, or certification to be true and complete in every
respect;
E. The DEVELOPER shall file, or have filed against it, a petition of
bankruptcy, insolvency, or similar law, state or federal, or shall file any petition or answer
seeking, consenting to, or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been
vacated within 90 days; or shall be adjudicated bankrupt or insolvent, under any present or
future statute, law, regulation, under state or federal law, and such judgment or decree is not
vacated or set aside within 90 days;
F. The DEVELOPER's failure, inability or admission in writing of its inability
to pay its debts as they become due or the DEVELOPER assignment for the benefit of
creditors;
G. A receiver, trustee, or liquidator shall be appointed for the DEVELOPER
or any substantial part of the DEVELOPER's assets or properties, and not be removed within
ten days;
H. The failure of DEVELOPER to cause completion of the Project prior to
the completion date identified in Exhibit "B".
I. The DEVELOPER's breach of any other material condition, covenant,
warranty, promise or representation contained in this Agreement not otherwise identified
within this Section.
28
J. Any substantial or continuous breach by the DEVELOPER of any
material obligation owned by the DEVELOPER imposed by any other agreement with respect
to the financing, of the Project, whether or not the CITY is a party to such agreement after
expiration of all notice and cure periods contained within such document.
10.2 Notice of Default and Opportunity to Cure. The CITY shall give written notice
to the DEVELOPER of any Event of Default by specifying: (1) the nature of the event or
deficiency giving rise to the default; (2) the action required to cure the deficiency, if any action
to cure is possible, and (3) a date, which shall not be less than the lesser of any time period
provided in this Agreement, any time period provided for in the notice, or 45 calendar days
from the date of the notice, by which such deficiency must be cured, provided that if the
specified deficiency or default cannot reasonably be cured within the specified time, with the
CITY's written consent, the DEVELOPER shall have an additional reasonable period to cure
so long as it commences cure within the specified time and thereafter diligently pursues the
cure in good faith. The CITY acknowledges and agrees that the DEVELOPER shall have
the right to cure any defaults hereunder and that notice and cure rights hereunder shall
extend to any and all partners of the DEVELOPER that are previously identified in writing
delivered to the CITY in the manner provided in this Agreement.
10.3 Remedies Upon an Event of Default. Upon the happening of an Event of
Default and a failure to cure said Event of Default within the time specified, the CITY's
obligation to disburse HOME CHDO Funds shall terminate. The CITY may also at its option
and without notice institute any action, suit, or other proceeding in law, in equity or otherwise,
which it shall deem necessary or proper for the protection of its interests and may without
limitation proceed with any or all of the following remedies in any order or combination that
the CITY may choose in its sole discretion:
A. Terminate this Agreement immediately upon written notice; and
B. Bring an action in equitable relief: (1) seeking specific performance of
the terms and conditions of this Agreement, and/or (2) enjoining, abating or preventing any
violation of said terms and conditions, and/or (3) seeking declaratory relief; and
C. Pursue any other remedy allowed by law or in equity or under this
Agreement.
ARTICLE 11. GENERAL PROVISIONS
Without waiver of limitation, the parties agree that the following general provisions shall apply
in the performance hereof:
11.1 Amendments. No modification or amendment of any provision of this
Agreement shall be effective unless made in writing and signed by the parties hereto.
11.2 Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party will be entitled to recover from the other party its reasonable attorney's fees
and legal expenses.
11.3 Binding on All Successors and Assigns. Unless otherwise expressly provided
in this Agreement, all the terms and provisions of this Agreement shall be binding on and
inure to the benefit of the parties hereto, and their respective heirs, successors, assigns, and
legal representatives.
29
11.4 Counterparts. This Agreement may be executed in counterparts, each of which
when executed and delivered will be deemed an original, and all of which together will
constitute one instrument. The execution of this Agreement by any party hereto will not
become effective until counterparts hereof have been executed by all parties hereto.
11.5 Disclaimer of Relations hE . Nothing contained in this Agreement, nor any act
of the CITY or of the DEVELOPER, or of any other person, shall in and by itself be deemed
or construed by any person to create any relationship of third party beneficiary, or of principal
and agent, of limited or general partnership, or of joint venture.
11.6 Discretionary Governmental Actions. Nothing in this Agreement obligates the
CITY or any other governmental entity to grant final approval of any matter described herein.
Such actions are legislative, quasi-judicial, or otherwise discretionary in nature. The CITY
cannot take action with respect to such matters before completing the environmental
assessment of the Project under NEPA and any other applicable statutes. The CITY cannot
and does not commit in advance that it will give final approval to any matter. The CITY shall
not be liable, in contract, law or equity, to the DEVELOPER or any of its executors,
administrators, transferees, successors-in-interest or assigns for any failure of any
governmental entity to grant approval on any matter subject to discretionary approval.
11.7 Effective Date. This Agreement shall be effective upon the date first above
written, upon the CITY and the DEVELOPER's complete execution following Fresno City
Council approval.
11.8 Entire Agreement. This Agreement represents the entire and integrated
agreement of the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, representations or agreements, either written or oral.
11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
11.10 Expenses Incurred Upon Event of Default. The DEVELOPER shall reimburse
the CITY for all reasonable expenses and costs of collection and enforcement, including
reasonable attorney's fees, incurred by the CITY as a result of one or more Events of Default
by the DEVELOPER under this Agreement.
11.11 Governing Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this Agreement,
including execution, interpretation, performance, and enforcement. Venue for filing any
action to enforce or interpret this Agreement will be Fresno, California.
11.12 Headings. The headings of the articles, sections, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed to affect the meaning
or construction of any provision.
11.13 Interpretation. This Agreement in its final form is the result of the combined
efforts of the parties. Any ambiguity will not be construed in favor or against any party, but
rather by construing the terms in accordance with their generally accepted meaning.
11.14 No Assignment or Succession. The DEVELOPER shall not sell, transfer,
assign or otherwise dispose of all or a material part of any interest it might hold in the Property
without the prior written consent of the CITY, which consent shall not be unreasonably
withheld or delayed.
30
11.15 No Third-PaLty Beneficiary. No contractor, subcontractor, mechanic,
materialman, laborer, vendor, or other person hired or retained by the DEVELOPER shall
be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, but
each such person shall be deemed to have agreed: (a) that they shall look to the
DEVELOPER as their sole source of recovery if not paid, and (b) except as otherwise agreed
to by the CITY and any such person in writing, they may not enter any claim or bring any
such action against the CITY under any circumstances. Except as provided by law, or as
otherwise agreed to in writing between the CITY and such person, each such person shall
be deemed to have waived in writing all right to seek redress from the CITY under any
circumstances whatsoever.
11.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising any
right under this Agreement shall operate as a waiver of such right, nor shall any single or
partial exercise of any such right preclude any further exercise thereof or the exercise of any
other right. No waiver of any provision of this Agreement or consent to any departure by the
DEVELOPER therefrom shall be effective unless the same shall be in writing, signed on
behalf of the CITY by a duly authorized officer thereof, and the same shall be effective only
in the specific instance for which it is given. No notice to or demand on the DEVELOPER in
any case shall entitle the DEVELOPER to any other or further notices or demands in similar
or other circumstances, or constitute a waiver of any of the CITY's right to take other or
further action in any circumstances without notice or demand.
11.17 Nonreliance. The DEVELOPER hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in no
manner has it relied on the CITY, it agents, employees or attorneys in entering into this
Agreement.
11.18 Notice. Any notice to be given to either party under the terms of this Agreement
shall be given by certified United States mail, postage prepaid, return receipt requested, at
the addresses specified below, or at such other addresses as may be specified in writing by
the parties.
If to the CITY: City of Fresno
Planning and Development Department
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno, CA 93721-3605
If to DEVELOPER: Self-Help Enterprises
Attention: President/CEO
8445 W. Elowin Ct.
Visalia, CA 93291
11.19 Precedence of Documents. In the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement will control.
11.20 Remedies Cumulative. All powers and remedies given by this Agreement shall
be cumulative and in addition to those otherwise provided by law.
11.21 Severability. The invalidity, illegality, or un-enforceability of any one or more of
the provisions of this Agreement shall not affect the validity, legality, or enforceability of the
remaining provisions hereof or thereof.
31
[SIGNATURE PAGE TO FOLLOW]
32
IN WITNESS WHEREOF, the parties have executed this Agreement in Fresno,
California, the day and year first above written.
CITY OF FRESNO, SELF-HELP ENTERPRISES,
A California municipal corporafiv n A California non-pro
By: �c�
W Q an,
City Manager Name: Thomas J. Collishaw
(Attach notary certificate Kf-aknowledgement)
Title: President/CEO
APPROVED AS TO FORM: (Attach notary certificate of acknowledgement)
DOUGLAS T. SLOAN
City Attorney By:
B Q A OQ ffil6W7, Name:
4rac-yvN- anian Date
Senior De ty City Attorney q .2,?y Title:
(If corporation or LLC., CFO, Treasurer,
ATTEST: Secretary or Assistant Secretary)
YVONNE SPENCE, MMC
City Clerk
By: 2ri�a
Deputy
G��2
Attachments:
EXHIBIT A: LEGAL DESCRIPTION
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C: PROJECT BUDGET
EXHIBIT D: EXEMPLAR DECLARATION OF RESTRICTIONS
EXHIBIT E: EXEMPLAR CERTIFICATE OF COMPLETION
EXHIBIT F: PROMISSORY NOTE
EXHIBIT G: EXEMPLAR DEED OF TRUST
ti
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
validit of that document.
State of California Fresno
County of 7
On Do?-() before me, Linda Cunha Reitz �]
I (insert name an title of the o icer)
personally appeared �1
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 hefsheltk ey executed the same in
Wslherlt4eir authorized capacity(ie!;), and that by Wher/t( eir signature(*-on the instrument the
person(, or the entity upon behalf of which the person(Wacted, 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 REr Z
Notary Public-California
WITNESS my hand and official seal. QMy
Fresno County
Commission k 2215504 Comm,Expires Sep 23,2021
Signatur (Seal)
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 Tulare ]
On Aua I G/, before me, Valerie Pedro, Notary Public
(insert name and title of the officer)
personally appeared Thomas J. Collishaw
who proved to me on the basis of satisfactory evidence to be the person(, 'whose name($) is/q&
subscribed to the within instrument and acknowledged to me that he/oeltoy executed the same In
his rltl or authorized capacity(jes), and that by his/,lamer/thL4r signatu¢te(Won the instrument the
person, or the entity upon behalf of which the person(K 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.
r VALERIE PEDRO
WITNESS my hand and official seal. NotaryAublic-California
z - - Tulare Count}r
Commission N 2115118
Q o**` My Comm,Expires Dec 10,2023
Signature (Seal)
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 September 16, 2020 before me, Bernard Canez, Deputy City Clerk, personally appeared,
Wilma Quan 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
City Clerk, City of Fresno
# �o
n
a
f •
By J� p ?a OCT.tZ'4a
Be and CapVeZr Deputy ( Date
EXHIBIT "A" - LEGAL DESCRIPTION
The land referred to is situated in the County of Fresno, City of Fresno, State of
California, and is described as follows:
Adjusted Parcel A
A Portion of Lots 95 and 96 of Fresno Colony, according to the map thereof recorded in
Book 2 of Plats at Page 8 on August 1, 1881, Fresno County Records, described as
follows:
Commencing a the Southeast corner of Lot 96, said corner being 30 feet North and 30 feet
West of the East quarter corner of Section 21, Township 14 South, Range 20 East, Mount
Diablo Base and Meridian; thence South 89' 45' 09" West, along the South line of said Lot
96, a distance of 428.03 feet to the TRUE POINT OF BEGINNING;
thence North 0001'12" West a distance of 633.55 feet to the North line of the South half of
said Lot 96; thence along said North line of the South half, South 89°46' 09" West a
distance of 204.57 feet to the Northwest corner of the South half of Lot 96; thence South
89046'09" West a distance of 57.73 to a point on the North line of the South half of Lot 95;
thence South 0006'27" East a distance of 72.11 feet; thence South 83038'50" West a
distance of 17.26 feet; thence South 6°28'39" East a distance of 9.00 feet; thence South
07039'34" West a distance of 1.24 feet to a non-tangent curve having a radius of 40.00 feet,
and a radial bearing of North 28°34'07" West; thence along last said curve a distance of
80.05 feet, through an angle of 114°40'03"; thence South 53°38'08" East a distance of 1.05
feet; thence South 0°14'51" East a distance of 192.59 feet to a curve having a radius of
285.06 feet, and a radial bearing of South 89°52'43" West; thence along last said curve a
distance of 89.57 feet, through an angle of 18000'16"; thence South 17059'59" East a
distance of 36.26 feet; thence South 35°50'22" West a distance of 17.21 feet; thence South
8045'02" East a distance of 50.56 feet; thence South 45014'51" East a distance of 21.29
feet; thence South 0014'51" East a distance of 72.37 feet; thence South 44046,28" West a
distance of 21.29 feet; thence North 89°45'09" East a distance of 52.68 feet along the
South line of Lot 95 to the Southwest corner of Lot 96; thence North 89045'09" East along
the South line of Lot 96 a distance of 204.57 feet to the point of beginning.
APN's: 479-270-16, 479-270-15, 479-270-24 and 479-270-06
Portion APN's: 479-270-04 & 479-270-05
EXHIBIT "B" - PROJECT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The Project consists of the construction of 22 single-family wood framed, detached houses
to be located at Annadale and Elm, Fresno, and sold as affordable housing and 11 to be
occupied by very low or low-income households, and construction of related on-site and off-
site improvements.
The DEVELOPER will construct HOME CHDO units: four 3bed/2bath, 1,100 sq. ft. and seven
4bed/2bath, 1,450 sq. ft. The eligible homebuyers will have an annual income of not more
than 80% of area median income and will invest 500 sweat-equity hours toward construction
of their house.
Once the houses are constructed, they will be sold through escrow to a very low or low-
income homebuyer. The One Million Four Hundred Sixty-Two Thousand dollars and 00/100
($1,462,000.00) will be conveyed in equal portions to 11 homebuyers The City will
subordinate each of One Hundred Forty-Six Thousand Two Hundred and 00/100 ($132,909)
homebuyer loans to a first mortgage.
HOME CHDO-FUNDED UNITS
% of Median Units
80% or less 11
Totals
II. PROJECT SCHEDULE
A. Commencement of Construction of the subdivision improvements.
February 2021
B. Commencement of Construction of the Single-family homes:
2021
s
C. Completion of Construction: December 2022
D. Close final escrow on last house: March 2023
EXHIBIT "C" - PROJECT BUDGET
IF nding Sources
Source
Total (SHE- Source
Development Residentaal HOME Sweat (Prrcnary
Costs Total CHDp Equity) Mort we)
Acquisition Costs: -
Purchase Price - -
Liens 100,OD0_DO 100,000.00 100,000.00
Closing,Title&Recording Costs Ilk -
SUBTOTAL 100,000.00 t0c,000.00 - - IOU;f7003�
Construction T
Basic Construction Contract 1.650.000 1,650,000.00 1,462,000 110,000.00 78.000.00
Bond Premium - -
Infrastructure Improvements 725.000 = 725.000.00 725,000.00
Hazardous Abate.&Monitoring -
Construction Contingency( %) 1+0,000� 110,000.00 110,000.00
SUBTOTAL 2,485.000 Z485 q00 1,462,00o t io,000 913,00D
Development
Appraisal 5,500-00 5,500.00 5,500.00
Architect/Engineer -
Environmental Assessment
Geotechnical Study
Boundary&Topographic Survey -
Legal
Developer Fee
Project Management
Technical Assistance I
SUBTOTAL 5,5Q0.00 15:;0 :0:0: - - 5,5m.00
Other Development
Real Estate Tax
Insurance
Relocation
Bidding Costs
Permits, Fees&Hookups 224000 220.000.00 220,000.00
Impact/Mitigation Fees - -
Development Period Utilities - -
Construction Loan Fees 11,000 11,000.00 11.000.00
Construction Interest - -
Other Loan Fees(State HF, etc.) ' 93.500 93,500.00 93,500.00
LIHTC Fees - -
Accounting/Audit - -
Marketing/Leasing Expenses -
Carrying Costs at Rent Up -
Operating Reserves _
Replacement Reserves:
SUBTOTAL 324,50d.U0 324 500,00 324.500. 01
Total Development Costs 2,915,000 2,915,000 1,462,000 110,000 1,343,000
EXHIBIT "D" - EXEMPLAR DECLARATION OF RESTRICTIONS
Recorded at the Request of
and When Recorded Return to
City of Fresno
Planning and Development Department
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno, CA 93721-3605
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
The document is exempt from the payment of a recording fee in accordance with Government Code Sections 6103 and 27383.
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS, (Declaration), is executed as of this day
of , 2020, by Self-Help Enterprises, Inc., a California Non-Profit Public Benefit
Corporation, (DECLARANT), in favor of the CITY OF FRESNO, a California municipal
corporation (CITY).
WHEREAS, the DECLARANT is the owner of the real estate in the county of Fresno,
state of California consisting of A.P.N.: 479-270-34T, which is more particularly described in
EXHIBIT "A" — Legal Description, attached hereto and made a part hereof, including the
improvements thereon (the Property), and
WHEREAS, pursuant to a certain City of Fresno HOME Investment Partnerships
Program, Community Housing Development Organization Agreement dated
2020, incorporated herein by reference (HOME CHDO Agreement) and
instruments referenced therein, the DECLARANT agrees to utilize, the CITY agrees to
provide, certain HOME CHDO funds from the United States Department of Housing and
Urban Development (HUD), to the DECLARANT and the DECLARANT agrees to construct
and preserve 11 units as Affordable Very Low or Low-Income units reserved for households
earning 80%, or below, of the area median income for the Fresno Metropolitan Statistical
Area (FMSA). Four houses shall be a 3bed/1 bath units and seven shall be a 4bed/2bath
units, subject to the terms and conditions set forth in the HOME CHDO Agreement; and
WHEREAS, the HOME CHDO regulations promulgated by HUD, including without
limitation 24 C.F.R. 92.252; 24 and the HOME CHDO Agreement impose certain affordability
requirements upon property owned by the DECLARANT, which affordability restrictions shall
be enforceable for a 30 year period; and
WHEREAS, these restrictions are intended to bind the 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 Project. All of the restrictions, covenants and limitations will run
with the land and will be binding on all parties having or acquiring any right, title or interest in
the Property or any part thereof, will inure to the benefit of the CITY, and will be enforceable
by it. Any purchaser under a contract of sale 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 commencing on the date the DECLARANT is notified
by the CITY that the Affordable Unit Homebuyer information is has been entered into HUD's
Integrated Disbursement and Information System (IDIS) as provided in the HOME CHDO
Agreement, constituting the commencement of the 30 year 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 Project and the HOME CHDO Agreement, and are established and
agreed upon for the purpose of enhancing and protecting the value of the Property and in
consideration of the CITY entering into the HOME CHDO Agreement with the DECLARANT.
2. Restrictions. The following covenants and restrictions (Covenants and
Restrictions) on the use and enjoyment of the Property shall be in addition to any other
covenants and restrictions affecting the Property. All such covenants and restrictions are for
the benefit and protection of the CITY and shall run with the Property and be binding on any
future owners of the Property and inure to the benefit of and be enforceable by the CITY.
These covenants and restrictions are as follows:
The DECLARANT for itself and its successor(s) on title covenants and agrees that
from the date the Project is entered into IDIS as complete, until the expiration of the
Affordability Period, it shall cause the 11 units be used as single-family owner-occupied
affordable housing to Very Low or Low-Income Households with an income of not more than
80%, or less, of area median income. The DECLARANT further agrees to file a recordable
document setting forth the Project Completion Date when determined by the CITY. Unless
otherwise provided in the HOME CHDO Agreement, the term Affordable Housing shall
include, without limitation, compliance with the following requirements:
i. Nondiscrimination. There shall be no discrimination against nor
segregation of any persons 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 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 Project and/or Property.
ii. Principal Residence. Each of the 11 Affordable houses
constituting the Project upon the Property shall be sold only to eligible natural persons, who
shall occupy the house as the purchaser's principal place of residence. The forgoing
requirement that the purchaser of the house constituting the Project Property occupy the
house as the purchaser's principal residence does not apply to persons, other than natural
persons, who acquire the Project Property or portion thereof by foreclosure or deed in lieu of
foreclosure; or HUD qualified entities that acquire the Property or portion thereof with the
consent of the CITY.
iii. Homeowner Income Requirements. The 11 houses constituting
the Project upon the Property and each of them may be conveyed only to a natural person(s)
whose annual Household income at the time of purchase is not greater than 80% of the most
recent annual median income calculated and published by HUD for the Fresno Metropolitan
Statistical Area applicable to such household's size.
iv. Recapture Provision. Should any of the 11 affordable houses
upon the Property not continue to be the principal residence of the Household purchasing
the Property/house as affordable housing for the duration of the period of affordability, then
a portion of the HOME CHDO financial assistance provided by the CITY and allocated to the
Property/house shall immediately come due and must be repaid to the CITY's HOME
Program Trust Fund and thereupon the balance of the affordability restrictions shall be
released.
3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be
entitled to injunctive or other equitable relief against any violation or attempted violation of
any Covenant and Restriction.
4. Acceptance and Ratification. All present and future owners of the Property and
other persons claiming by, through or under them shall be subject to and shall comply with
the Covenant and Restriction. The acceptance of a deed of conveyance to the Property shall
constitute an agreement that the Covenant and Restriction, as may be amended or
supplemented from time to time, are accepted and ratified by future owners, tenant or
occupant, and such Covenant and Restriction shall be a covenant running with the land and
shall bind any person having at any time any interest or estate in the Property, all as though
such Covenant and Restriction was recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer in lieu
of foreclosure, or assignment of an FHA-insured mortgage to HUD, the Affordability Period
shall be terminated if the foreclosure or other transfer in lieu of foreclosure or assignment
recognizes any contractual or legal rights of public agencies, nonprofit sponsors, or others
to take actions that would avoid the termination of low-income affordability. However, the
requirements with respect to Affordable Units shall be revived according to their original
terms, if during the original Affordability Period, the owner of record before the foreclosure or
other transfer, or any entity that includes the former owner of those with whom the former
owner has or had formally, family or business ties, obtains an ownership interest in the
Project or the Property, the Affordability Period shall be revived according to its original terms.
The HOME program restrictions on the Property shall terminate upon foreclosure,
transfer in lieu of foreclosure or assignment of the FHA insured mortgage to HUD. To the
extent that there are any proceeds from the foreclosure or other sale of the Property
remaining after the superior loan repayment, the remaining proceeds shall be paid to City of
Fresno.
5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date Project information is entered into IDIS as complete, until the
expiration of the 30 year Affordability Period. The failure or delay at any time of the CITY
and / or any other person entitled to enforce this Declaration shall in no event be deemed a
waiver of the same, or of the right to enforce the same at any time or from time to time
thereafter, or an estoppel against the enforcement thereof.
6. Costs and Attorne 's Fees. In any proceeding arising because of failure of the
DECLARANT or any future owner of the Property to comply with the Covenant and
Restriction required by this Declaration, as may be amended from time to time, the CITY
shall be entitled to recover its respective costs and reasonable attorney's fees incurred in
connection with such default or failure.
7. Waiver. Neither the DECLARANT nor any future owner of the Property may
exempt itself from liability for failure to comply with the Covenant and Restriction required in
this Declaration; provided however, that upon the transfer of the Property, the transferring
owner may be released from liability hereunder, upon the CITY's written consent through
escrow of such transfer, which consent shall not be unreasonably withheld, conditioned or
delayed.
8. Severability. The invalidity of the Covenant and Restriction or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
10. Interpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for ease
and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the CITY and the DECLARANT.
12. Recordation. The DECLARANT acknowledges that this Declaration will be
filed of record in the Office of the Recorder of County of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the HOME
CHDO Agreement.
14. Headings. The headings of the articles, sections, and paragraphs used in this
Declaration are for convenience only and shall not be read or construed to affect the meaning
or construction of any provision.
15. DECLARANT LIABILITY. The DECLARANT shall not have any personal
liability for the obligations under this Declaration. The sole recourse of the CITY shall be
exercising of its rights against the Property until transfer to a homebuyer, and then the CITY
shall exercise its rights against the homebuyer pursuant to the Deed of Trust. Lender shall
not have the right to seek or recover any deficiency amount from DECLARANT.
IN WITNESS WHEREOF, DECLARANT has executed this Declaration of Restrictions
on the date first written above.
DECLARANT:
SELF-HELP ENTERPRISES, a California Non-Profit Public Benefit Corporation
By:
Name: Thomas J. Callishaw
Title: President/CEO
(Attach notary certificate of acknowledgment)
Date:
EXHIBIT "A" Legal Description
To Declaration of Restrictions
The land referred to is situated in the County of Fresno, City of Fresno, State of
California, and is described as follows:
Adjusted Parcel A
A Portion of Lots 95 and 96 of Fresno Colony, according to the map thereof recorded in
Book 2 of Plats at Page 8 on August 1, 1881, Fresno County Records, described as
follows:
Commencing a the Southeast corner of Lot 96, said corner being 30 feet North and 30 feet
West of the East quarter corner of Section 21, Township 14 South, Range 20 East, Mount
Diablo Base and Meridian; thence South 890 45' 09" West, along the South line of said Lot
96, a distance of 428.03 feet to the TRUE POINT OF BEGINNING;
thence North 0001'12" West a distance of 633.55 feet to the North line of the South half of
said Lot 96; thence along said North line of the South half, South 89°46' 09" West a
distance of 204.57 feet to the Northwest corner of the South half of Lot 96; thence South
89°46'09" West a distance of 57.73 to a point on the North line of the South half of Lot 95,
thence South 0°06'27" East a distance of 72.11 feet; thence South 83"38'50" West a
distance of 17.26 feet; thence South 6028'39" East a distance of 9.00 feet; thence South
07°39'34" West a distance of 1.24 feet to a non-tangent curve having a radius of 40.00 feet,
and a radial bearing of North 28034'07" West, thence along last said curve a distance of
80.05 feet, through an angle of 114040'03", thence South 53038'08" East a distance of 1.05
feet; thence South 0014'51" East a distance of 192.59 feet to a curve having a radius of
285.06 feet, and a radial bearing of South 89°52'43" West; thence along last said curve a
distance of 89.57 feet, through an angle of 18000'16"; thence South 17059'59" East a
distance of 36.26 feet; thence South 35050'22" West a distance of 17.21 feet; thence South
8°45'02" East a distance of 50.56 feet; thence South 45014'51" East a distance of 21.29
feet; thence South 0014'51" East a distance of 72.37 feet; thence South 44046'28" West a
distance of 21.29 feet; thence North 89045'09" East a distance of 52.68 feet along the
South line of Lot 95 to the Southwest corner of Lot 96; thence North 89°45'09" East along
the South line of Lot 96 a distance of 204.57 feet to the point of beginning.
APN's: 479-270-16, 479-270-15, 479-270-24 and 479-270-06
Portion APN's: 479-270-04 & 479-270-05
EXHIBIT "E: CERTIFICATE OF COMPLETION
Recorded at the Request of
and When Recorded Return to
City of Fresno
Planning and Development Department
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno. CA 93721-3605
(SPACE ABOVE THIS LINE FOR RECORCER'S USE ONLY)
This Certificate of Completion is recorded at the request and for the benefit of the City of Fresno and
is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
A.P.N.: 479-270-34T
City of Fresno
By:
Director
Data
Certificate of Completion
A.P.N.: 479-270-34T
Recitals:
A. By a City of Fresno (CITY) HOME Investment Partnerships Program
Community Housing Development Organization (CHDO) Agreement dated 2020,
("HOME CHDO Agreement) between the City of Fresno, a municipal corporation ("CITY"),
and Self-Help Enterprises, a California non-profit, (DEVELOPER), as may be amended from
time to time, the DEVELOPER agreed to construct 22 single-family affordable homes of
which 11 shall be HOME CHDO-assisted Units upon the Property described in EXHIBIT "A"
attached to the HOME CHDO Agreement, and made part hereof by this reference (the
Property), with assistance of HOME CHDO Funds while meeting the affordable housing,
income targeting, and other requirements of 24 C.F.R. 92 according to the terms and
conditions of the HOME CHDO Agreement and Loan Documents and other
documents/instruments referenced therein.
B. The HOME CHDO Agreement or a memorandum of it was recorded on
2020, as Instrument No. in the Official Records of Fresno County,
California.
C. Under the terms of the HOME CHDO Agreement, after the
DEVELOPER completes the Project, the DEVELOPER may ask CITY to record a Certificate
of Completion.
D. The DEVELOPER has asked CITY to furnish the DEVELOPER with a
recordable Certificate of Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive
evidence that the DEVELOPER has completed the Project as set forth in the HOME
Agreement.
NOW THEREFORE:
1. The CITY certifies the DEVELOPER commenced construction of the Project
on and completed construction of the Project on and has
done so in full compliance with the HOME CHDO Agreement.
2. This Certificate of Completion is not evidence of the DEVELOPER's
compliance with, or satisfaction of, any obligation to any mortgage or security interest holder,
or any mortgage or security interest insurer, securing money lent to finance work on the
Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to in
California Civil Code Section 3093.
4. Nothing contained herein modifies any provision of the HOME CHDO
Agreement.
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of August, 2021.
CITY OF FRESNO, SELF-HELP ENTERPRISES,
A California municipal corporation A California non-profit
By By:
City Manager Name: Thomas J. Collishaw
(Attach notary certificate of acknowledgement)
Title: President/CEO
APPROVED AS TO FORM: (Attach notary certificate of acknowledgement)
DOUGLAS T. SLOAN
City Attorney By:
By: Name:
Tracy N. Parvanian Date
Senior Deputy City Attorney Title,
(If corporation or LLC., CFO, Treasurer,
ATTEST: Secretary or Assistant Secretary)
YVONNE SPENCE, MMC
City Clerk
By:
Deputy
EXHIBIT "F" - PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to Borrower for
Cancellation.
PROMISSORY NOTE
Secured by Deed of Trust
Loan Amount: $1,462,000.00 Date
Promise to Pay. For value received, the undersigned, Self-Help Enterprises, a California Non-Profit
Public Benefit Corporation (Borrower), promises to pay to the order of the City of Fresno, a California
municipal corporation (Lender), the sum of One Million Four Hundred Sixty-Two Thousand dollars and
00/100 ($1,462,000.00) along with interest on the unpaid principal at the rate of 2% per annum, all due
and payable on or before March 30, 2023, (the Borrower Loan Maturity Date) pursuant to the parties'
HOME CHDO Agreement dated , 2020, (HOME CHDO Agreement), on which date the unpaid
principal balance together with interest and unpaid penalties or late changes where applicable thereon
shall be due and payable, along with attorney's fees and costs of collections, without relief from
valuation and appraisement laws, provided that, in the event the Borrower is not then in default of the
HOME CHDO Agreement, the Borrower may at any time prior to the Borrower Loan Maturity Date
convey the 11 completed single-family Affordable Units securing the Note to a Very Low or Low-Income
homebuyer through a purchase escrow (Escrow) that conforms to the HOME CHDO Agreement and
concurrent therewith assigns Note in equal portions to the 11 homebuyers who shall assume such Note
at 0% interest with a lump sum principal only payment due and payable from the homebuyer on, or
before, expiration of thirty (30) year from close of escrow (Loan Maturity Date). Any failure to make a
payment required hereunder shall constitute a default under this Note.
Definitions. All capitalized terms used in this Note, unless otherwise defined, will have the respective
meanings specified in the HOME CHDO Agreement.
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.
Securily. This Note, and any extensions or renewals hereof, is secured by a Deed of Trust, Security
Agreement executed by the Borrower and recorded against the Property in Fresno County, California,
as Document No. on , 2020, that provides for acceleration upon stated events,
and executed in favor of the Lender (Deed of Trust), creating and insured as a not worse than 2nd
position lien on the Property, subordinated only to a lien created by Borrower to insure payment of
monies borrowed to pay for the construction of a 11 completed Units on the Property. Said Deed of
Trust shall be subject to the terms of the Template Rider to the Deed of Trust attached hereto, and
such shall automatically be incorporated in the terms of the Deed of Trust that secures this Note. Said
Deed of Trust is insured by CLTA Lender's policy in the principal amount of, and endorsed for this Note.
Time is of the Essence. It will be a default under this Note if the Borrower defaults under the HOME
CHDO Agreement, defaults under any other Loan Documents, or if Borrower fails to pay when due any
sum payable under this Note. In the event of a default by the Borrower, the Borrower shall pay a late
charge equal to the lesser of 2% of any outstanding payment or the maximum amount allowed by law.
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.
Terms of Payment. The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in part without penalty. The 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 Loan payments are payable in lawful money of the United States of America, to.
City of Fresno - Finance
Accounts Receivable
2600 Fresno Street, Suite 2156
Fresno, CA 93721
The 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 the Borrower. The Borrower
will pay to the 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 HOME CHDO Agreement. No delay or omission of the Lender in exercising
any right or power arising in connection with any default will be construed as a waiver or as
acquiescence, nor will any single or partial exercise preclude any further exercise. The Lender may
waive any of the conditions in this Note and no waiver will be deemed to be a waiver of the 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.
Terms of Security Instruments. The Deed of Trust securing this note provides as follows:
DUE ON SALE—CONSENT BY BENEFICIARY. The Beneficiary may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upon the sale or transfer of all or any portion
of the Property, or any interest therein, other than a sale to a Low-Income homebuyer as provided in
the HOME CHDO Agreement, without the Beneficiary's prior consent. A "sale or transfer" means the
conveyance of the Property or any right, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land
contract, contract for deed, leasehold interest, lease-option contract, or by sale, assignment, or transfer
of any beneficial interest in or to any land trust holding title to the Property, or by any other method of
conveyance of land interest. If any Trustor is a corporation, partnership or limited liability, company,
transfer also includes any change in ownership of more than 25% of the voting stock, partnership
interests or limited liability company interests, as the case may be, of Trustor. However, this option
shall not be exercised by the Beneficiary if such exercise is prohibited by applicable law.
Assignment by Lender. The 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.
Enforceability. 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.
Governing Law. The 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 the Lender may consent to in a writing duly signed by the Lender or its authorized agents.
HI
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.
BORROWER
SELF-HELP ENTERPRISES, a California Non-Profit Public Benefit Corporation
By- Date:
Name: Thomas J. Callishaw
Title: President/CEO
(Attach notary certificate of acknowledgment)
EXHIBIT "G" - EXEMPLAR DEED OF TRUST
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Planning and Development Department
Housing and Community Development Division
2600 Fresno Street, Room 3065
Fresno, CA 93721-3605
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
TITLE ORDER NO ESCROW NO
APN NO:470-270-34T
DEED OF TRUST
THIS DEED OF TRUST (Deed of Trust) made this _ day of , 2020, by and Self-Help
Enterprises, California Non-Profit Public Benefit Corporation (herein Borrower), Title
Company, a California Corporation (herein Trustee), and the City of Fresno, a Municipal Corporation
organized and existing under the laws of the State of California whose address is 2600 Fresno Street,
Fresno, California 93721 (herein Beneficiary and Lender).
The Borrower, in consideration of the indebtedness herein recited and the trust herein created, does
irrevocably grant and convey to Trustee, in trust, with power of sale, all the Borrower's right, title, and
interest now owned or hereafter acquired in the real property (Land) Portion of APN: 479-270-34T,
located in Fresno, CA 93706, Fresno County, California and more particularly described in the Attached
Exhibit "A", incorporated by reference (Borrower agrees that any greater to the Land later acquired
during the term of this Deed of Trust will be subject to this Deed of Trust), together with the rents,
issues, and profits, subject however, to the right, power, and authority granted and conferred on the
Borrower in this Deed of Trust to collect and apply the rents, issues, and profits; and
The Borrower also irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all
of the Borrower's right, title and interest now owned or later acquired to the following property (including
the rights or interests pertaining to the property) located at the Property:
All buildings (Buildings) and improvements now or later on the land and all easements, rights,
appurtenances, water and water rights, minerals and mineral rights; all machinery,
equipment, appliances, and fixtures for the generation or distribution of air, water, heat,
electricity, light, fuel, or refrigeration or for ventilating or sanitary purposes or for the exclusion
of vermin or insects or for the removal of dust, refuse, or garbage; all wall safes, built-in
furniture, and installations, window shades and blinds, light fixtures, fire hoses and brackets,
screens, linoleum, carpets, furniture, furnishings, fixtures, plumbing, laundry tubs and trays,
refrigerators, heating units, stoves, water heaters, incinerators, and communication systems
and installations for which any Building is specially designed; all of these item, whether now
or later installed, being declared to be for all purposes of this Deed of Trust a part of the
Land, the specific enumerations in this Deed of Trust.
TO SECURE, in order of priority that Beneficiary determines:
(1) Payment of the indebtedness evidenced by a note of the Borrower of even date with this
Deed of Trust in the principal amount of One Million Four Hundred Sixty-Two Thousand
dollars and 00/100 ($1,462,000.00) ("Note"), payable to the Beneficiary or order, and all
extensions, modifications, or renewals of that note; and
(2) Payment of the interest on that indebtedness according to the terms of the Note; and
(3) Payment of all other sums (with interest as provided herein) becoming due and payable
to Beneficiary or Trustee pursuant to the terms of this Deed of Trust, and
(4) Performance of every obligation contained in this Deed of Trust, the Note, the HOME
CHDO Agreement dated the day of , 2020, and its related documents,
the Declaration of Restrictions dated the day of _ , 2020, any instrument now
or later evidencing or securing any indebtedness secured by this Deed of Trust, and any
agreements, supplemental agreements, or other instruments of security executed by the
Borrower as of the same date of this Deed of Trust or at any time subsequent to the date
of this Deed of Trust for the purpose of further securing any indebtedness amending this
Deed of Trust or any instrument secured by this Deed of Trust (collectively the "Loan
Documents"); and
(5) Payment of all other obligations owed by the Borrower to Beneficiary that by their terms
recite that they are secured by this Deed of Trust, including those incurred as primary
obligor or as guarantor.
The Borrower covenants that the Borrower is lawfully seized of the estate hereby conveyed and has
the right to grant and convey the Property, and that the Property is unencumbered except for
encumbrances of record. The Borrower covenants that the Borrower will forever warrant and will
defend the grant made in this Deed of Trust against all claims and demands, subject to encumbrances
of record. The Borrower covenants that the Borrower will maintain and preserve the lien of this Deed
of Trust until all the indebtedness under the Note is paid in full.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust the
Borrower is a validly existing, and in good standing under the laws of the State of California and is
qualified to do business in California; that the Borrower has the requisite power and authority to own,
develop, and operate the property; and that the Borrower is in compliance with all laws, regulations,
ordinances, and orders of public authorities applicable to it.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust the
execution, delivery, and performance by the Borrower and the borrowings evidenced by the Note are
within the power of the Borrower; have been duly authorized by all requisite corporate or partnership
actions, as appropriate; has received all necessary governmental approvals; and will not violate any
provision of law, any order of any court or agency of government, the charter documents of the
Borrower, or any indenture, agreement, or any other instrument to which Borrower is a party or by which
the Borrower or any of it property is bound, nor will they conflict with, result in a breach of, or constitute
(with due notice and lapse of time) a default under any indenture, agreement, or other instrument, or
result in the creation or imposition of any lien, charge, or encumbrance of any nature on any of the
property or assets of Borrower, except as contemplated by the provisions of the Loan Documents; and
each of the Loan Documents, when executed and delivered to Beneficiary, will constitute a valid
obligation, enforceable in accordance with its terms.
The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust that
the Property is not used principally for agricultural or grazing purposes; that the Borrower is engaged
in the development and operation of Improvements to the Property; and that the principal purpose of
the Loan is the development and/or the operation of the Improvements to the Property.
UNIFORM COVENANTS. The Borrower and the Lender covenant and agree as follows:
1. Pa ment of Principal. The Borrower shall promptly pay when due the principal indebtedness
evidenced by the Note.
2, Hazard Insurance. The Borrower, at its sole cost and expense, for the mutual benefit of the
Borrower and the Beneficiary, shall keep the improvements now existing or hereafter erected on the
Property insured against loss by fire, hazards included within the term "extended coverage", and
such other hazards as the Lender may require and in such amounts and for such periods as the
Lender may require as set forth in the HOME CHDO Agreement referenced above.
The insurance carrier providing the insurance shall be chosen by the Borrower subject to approval
by the Lender; provided that such approval shall not be unreasonably withheld. All insurance
policies and renewals thereof shall be in a form acceptable to the Lender and shall include a
standard mortgage clause in favor of and in a form acceptable to the Lender. The Lender shall
have the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed
of trust or other security agreement with a lien which has priority over this Deed of Trust.
In the event of loss, the Borrower shall give prompt notice to the insurance carrier and the Lender.
The Lender may make proof of loss if not made promptly by the Borrower.
If the Property is abandoned by the Borrower, or if the Borrower fails to respond to the Lender within
30 days from the date notice is mailed by the Lender to the Borrower that the insurance carrier offers
to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance
proceeds at Lender's option either to restoration or repair of the Property or to the sums secured by
this Deed of Trust.
3. Preservation and Maintenance of Property. Leaseholds: Condominiums; Planned Unit
Developments. The Borrower shall keep the Property in good repair and shall not commit waste or
permit impairment or deterioration of the Property and shall comply with the provisions
of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a
condominium or a planned unit development, the Borrower shall perform all of the Borrower's
obligations under the declaration or covenants creating or governing the condominium or
planned unit development, the by-laws and regulations of the condominium or planned unit
development, and constituent documents. The Borrower shall not permit overcrowded conditions
to exist as defined by the U.S. Department of Housing and Urban Development.
4. Protection of Lender's Security, If the Borrower fails to perform the covenants and agreements
contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects
the Lender's interest in the Property, then the Lender, at the Lender's option, upon notice to the
Borrower, may make such appearances, disburse such sums, including reasonable attorney's fees,
and take such action as is necessary to protect the Lender's interest. If the Lender requires
mortgage insurance as a condition of making the loan secured by this Deed of Trust, the Borrower
shall pay the premiums required to maintain such insurance in effect until such time as the
requirement for such insurance terminates in accordance with the Borrower's and the Lender's
written agreement or applicable laws.
Any amounts disbursed by the Lender pursuant to this Paragraph 4 shall become additional
indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and the Lender
agree to other terms of payment, such amounts shall be payable upon notice from the Lender to
the Borrower requesting payment thereof. Nothing contained in this paragraph 4 shall require the
Lender to incur any expense or take any action hereunder.
5. Inspection. The Lender may make or cause to be made reasonable entries upon and inspections
of the Property, provided that the Lender shall provide the Borrower notice prior to any such
inspection specifying reasonable cause therefore related to the Lender's interest in the Property.
6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in
connection with any condemnation or other taking of the Property, or part thereof, or for conveyance
in lieu of condemnation, are hereby assigned and shall be paid to the Lender, subject to the terms of
any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed
of Trust.
7. Borrower Not Released: Forbearance By Lender Not a Waiver. Extension of the time for payment
or modification of amortization of the sums secured by this Deed of Trust granted by the Lender to
any successor in interest of the Borrower shall not operate to release, in any
manner, the liability of the original the Borrower and the Borrower's successors in interest. The
Lender shall not be required to commence proceedings against such successor or refuse to extend
time for payment or otherwise modify amortization of the sums secured by this
Deed of Trust be reason of any demand made by the original the Borrower and the Borrower's
successors in interest. Any forbearance by the Lender in exercising any right or remedy hereunder,
or otherwise afforded by applicable law, shall not be waiver of or preclude the
exercise of any such right of remedy.
8. Successors and Assignees Bound; Joint and Several Liability: Co-Si ners. The covenants and
agreements herein contained shall bind, and the rights hereunder shall inure to the respective
successors and assignees of the Lender and the Borrower. All covenants and agreements of the
Borrower shall be joint and several. Any borrower who co-signs this Deed of Trust, but does not
execute the Note, (a) is co-signing this Deed of Trust only to grant and convey that the Borrower's
interest in the Property of Trustee under the terms of this Deed of Trust,
(b) is not personally liable on the Note or under this Deed of Trust or the Note, without that the
Borrower's consent and without releasing that Borrower or modifying this Deed of Trust as to that
Borrower's interest in the Property.
9. Transferability. One of the inducements to the Beneficiary for making the Loan is the identity of the
Borrower. The existence of any interest in the Property other than the interests of the Borrower and
the Beneficiary and any encumbrance permitted in this Deed of Trust, even though subordinate to
the security interest of Beneficiary, and the existence of any interest in the Borrower other than
those of the present owners, would impair the Property and the security interest of the Beneficiary,
and, therefore, except as provided herein or in the Loan Documents, the Borrower will not sell,
convey, assign, transfer, alienate, or otherwise dispose of its interest in the Property, either
voluntarily or by operation of law, or agree to do so, without the prior written consent of the
Beneficiary. Consent to one transaction by the Beneficiary will not be deemed a waiver of the right
to require consent to further or successive transactions. If the Borrower is a corporation, any sale,
transfer, or disposition of 50% or more of the voting interest of the Borrower or of any entity that
directly or indirectly owns or controls the Borrower, including, without limitation, the parent company
of the Borrower, and the parent company of the parent company of the Borrower, will constitute a
sale of the Property for purposes of this article. Any transaction in violation of this section will cause
all Indebtedness, irrespective of the maturity dates, at the option of the Beneficiary and without
demand or notice, immediately to become due, together with any prepayment premium in
accordance with the terms of the Note except as prohibited by law.
10.Notice. Except for any notice required under applicable law to be given in another manner, (a) any
notice to Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such
notice by certified mail addressed to the Borrower at the Property Address or at such other address
as the Borrower may designate by notice to the Lender as provided herein, and (b) any notice to
the Lender shall be given by certified mail to the Lender's address stated herein or to such other
address as the Lender may designate by notice to the Borrower as provided herein. Any notice
provided for in this Deed of Trust shall be deemed to have been given to the Borrower or the Lender
when given in the manner designated herein.
11. Governing Law, Severability, The state and local laws applicable to this Deed of Trust shall be the
laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit the
applicability of Federal law to this Deed of Trust or if the Note conflicts with applicable law, such
conflict shall not affect other provisions of this Deed of Trust or the Note which can be given effect
without the conflicting provision, and to this end the provisions of this Deed of Trust and the Note
are declared to be severable. As used herein, "costs", "expenses", and "attorney's fees" include all
sums to the extent not prohibited by applicable law or limited herein.
12.Borrower's Copy The Borrower shall be furnished a conformed copy of the Note and of this Deed
of Trust at the time of execution or after recordation thereof.
NON-CONFORMING COVENANTS. The Borrower and the Lender further covenant and agree as
follows:
13.Acceleration, Remedies. Upon the Borrower's breach of any covenant or agreement of the
Borrower in this Deed of Trust, including the covenants to pay when due any sums secured by this
Deed of Trust, the Note or the Program restrictions, the Lender prior to acceleration shall give notice
to the Borrower as provided in paragraph 9 hereof specifying: (1) the breach, (2) the action
required to cure such breach; (3) a date, not less than 10 days from the date notice is mailed to the
Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before
the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust
and sale of the Property. The notice shall further inform the Borrower of the right to reinstate after
acceleration and the right to bring a court action to assert the nonexistence of a default or any other
defense of the Borrower to acceleration and sale. If the breach is not cured on or before the date
specified in the notice, the Lender, at the Lender's option may declare all of the sums secured by
this Deed of Trust to be immediately due and payable without further demand and may invoke the
power of sale and any other remedies permitted by applicable law. The Lender shall be entitled to
collect all reasonable costs and expenses incurred in pursuing the remedies provided in this
paragraph 13, including, but not limited to, reasonable attorney's fees. If the Lender invokes the
power of sale, the Lender shall execute or cause the Trustee to execute a written notice of the
occurrence of an event of default and of the Lender's election to cause the Property to be sold and
shall cause such notice to be recorded in each county in which the Property or some part thereof is
located. The Lender or the Trustee shall mail copies of such notice in the manner prescribed by
applicable law. The Trustee shall give public notice of sale to the persons and in the manner
prescribed by applicable law. After the lapse of such time as may be required by applicable law,
the Trustee, without demand on the Borrower, shall sell the Property at public auction to the highest
bidder at the time and place and under the terms designated in the notice of sale in one or more
parcels and in such order as Trustee may determine.
The Trustee may postpone sale of all or any parcel of the Property by public announcement at the
time and place of any previously scheduled sale. The Lender or the Lender's designee may
purchase the Property at any sale.
The Trustee shall deliver to the purchaser the Trustee's deed conveying the Property so sold without
any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima
facie evidence of the truth of the statements made therein. The Trustee shall apply the proceeds
of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including,
but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all
sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally
entitled thereto.
14.Borrower's Right to Reinstate. Notwithstanding the Lender's acceleration of the sums secured by
this Deed of Trust due to the Borrower's breach, the Borrower shall have the right to have any
proceedings begun by the Lender to enforce this Deed of Trust discontinued at any time prior to five
days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at
any time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays the
Lender all sums which would be then due under this Deed of Trust and the Note had no acceleration
occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower
contained in this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred by the
Lender and the Trustee in enforcing the covenants and agreements of the Borrower in paragraph
14 hereof, including but not limited to, reasonable attorney's fees; and (d) the Borrower takes such
action as the Lender may reasonably require to assure that the lien of this Deed of Trust, the
Lender's interest in the Property and the Borrower's obligation to pay the sums secured by this Deed
of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this
Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no
acceleration had occurred.
15. Nonrecourse. The Borrower shall not have any personal liability for repayment of the loan. The
sole recourse of the Lender under the Loan Documents for repayment of the Loan shall be the
exercise of its rights against the Homebuyers upon transfer to the homebuyers through escrow.
16. Lien of Deed of Trust. The Beneficiary agrees that the lien of this Deed of Trust shall be
subordinated to any extended low-income housing commitment (the "Extended Use Agreement")
recorded against the Property, provided that such Extended Use Agreement, by its terms, must
terminate upon foreclosure under this Deed of Trust or upon a transfer of the Property by instrument
of lieu of foreclosure.
17.Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Lender shall request
the Trustee to reconvey the Property and shall surrender this Deed of Trust, and all notes evidencing
indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the Property without
warranty and without charge to the person or persons legally entitled thereto. Such person or
persons shall pay all costs of recordation, if any.
18.Substitute Trustee. The Lender at the lender's option, may, from time to time, appoint a successor
trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by the
Lender and recorded in the Fresno County Recorder's Office. The instrument shall contain the
name of the original the Lender, the Trustee and the Borrower, the book and page where this
Instrument is recorded and the name and address of the successor trustee. The successor trustee
shall, without conveyance of the Property, succeed to all the title, powers and duties conferred upon
the Trustee herein and by applicable law. This procedure for substitution of trustee shall govern to
the exclusion of all other provisions for substitution.
19.Statement of Obligation. The Lender may collect a fee not to exceed $50 for furnishing the
statement of obligation as provided by Section 2943 of the Civil Code of California.
20.Event of Default. Prior to declaring or taking any remedy permitted under Loan Documents, (where
applicable) the Borrower shall have an additional period of not less than 30 days to cure such
alleged default. Notwithstanding the foregoing, in the case of a default that cannot with reasonable
diligence be remedied or cured within 30 days, the Borrower shall have such additional time as
reasonably necessary to remedy or cure such default, but in no event more than 90 days from the
expiration of the initial 30 day period above. To the extent that there is a conflict between this
paragraph 20 and any remedy permitted by the HOME CHDO Agreement, Loan Documents, or
Loan, the terms of this paragraph 20 shall control.
The following events are each an "Event of Default":
(a) Default in the payment of any sum of principal or interest when due under the Note or any other
sum due under the Loan Documents.
(b) Failure to maintain insurance as provided in Section 2 hereof.
(c) The failure (without cure during the applicable period, if any, for cure) of any Borrower to observe,
perform, or discharge any obligation, term, covenant, or condition of any of the Loan Documents,
any agreement relating to the Property, or any agreement or instrument between any Loan Party
and Beneficiary.
(d) The assignment by the Borrower, as lessor or sublessor, as the case may be, of the rents or the
income of the Property or any part of it (other than to Beneficiary) without first obtaining the
written consent of Beneficiary.
(e) The following events.
(i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is
prior to this Deed of Trust, and the continued maintenance of the claim or lien for a period of
30 days without discharge, satisfaction, or adequate bonding in accordance with the terms
of this Deed of Trust;
(ii) the existence of any interest in the Property other than those of the Borrower, the Beneficiary,
and any one listed in a title exception approved by the Beneficiary in writing; or
(iii)the sale, hypothecation, conveyance, or other disposition of the Property except with the
express written approval of Beneficiary, any of which will be an Event of Default because the
Borrower's obligation to own and operate the Property is one of the inducements to the
Beneficiary to make the Loan.
(f) Default under any agreement to which the Borrower is a party, which agreement relates to the
borrowing of money by the Borrower from the Beneficiary.
(g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of
Trust or in, under, or pursuant to the Loan Documents, is false or misleading in any material
respect as of the date on which the representation or warranty was made.
(h) Any of the Loan Documents, at any time after their respective execution and delivery and for any
reason, cease to be in full force or are declared null and void, or the validity or enforceability is
contested by the Borrower or any stockholder or partner of the Borrower, or the Borrower denies
that it has any or further liability or obligation under any of the Loan Documents to which it is a
party.
If one or more Event of Default occurs and is continuing, then the Beneficiary may declare all the
Indebtedness to be due and the Indebtedness will become due without any further presentment,
demand, protest, or notice of any kind, and the Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency
of the Borrower, or the existence of waste, enter on and take possession of the Property or any
party of it in its own name or in the name of Trustee, sue for or otherwise collect the rents, issues,
and profits, and apply them, less costs and expenses of operation and collection, including
reasonable attorneys' fees, upon the Indebtedness, all in any order that the Beneficiary many
determine. The entering on and taking possession of the Property, the collection of rents, issues,
and profits, and the application of them will not cure or waive any default or notice of default or
invalidate any act done pursuant to the notice;
(ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the
foreclosure of mortgages of real property;
(iii) deliver to the Trustee a written declaration of default and demand for sale, and a written notice
of default and election to cause the Property to be sold, which notice Trustee or Beneficiary will
cause to be filed for record;
(iv) with respect to any Personalty, proceed as to both the real and personal property in
accordance with the Beneficiary's rights and remedies in respect of the Land, or proceed to sell
the Personalty separately and without regard to the Land in accordance with Beneficiary's rights
and remedies; or
(v) exercise any of these remedies in combination or any other remedy at law or in equity.
21.Protection of Security. If an Event of Default occurs and is continuing, Beneficiary or Trustee,
without notice to or demand upon the Borrower, and without releasing the Borrower from any
obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems necessary to protect
the security of this Deed of Trust;
(b) appear in and defend any action or proceeding purporting to affect, in any manner, the
Obligations or the Indebtedness, the security of this Deed of Trust, or the rights or powers of the
Beneficiary or the Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of the
Beneficiary or the Trustee is prior or superior to this deed of Trust; and
(d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable
attorneys' fees.
The Borrower agrees to repay on demand all sums expended by the Trustee or the Beneficiary
pursuant to this section with interest at the Note Rate of Interest, and those sums, with interest, will
be secured by this Deed of Trust.
�D
IN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day and year set forth
above. By signing below, Borrower agrees to the terms and conditions as set forth above.
BORROWER
SELF-HELP ENTERPRISES, a California Non-Profit Public Benefit Corporation
By: Date:
Name: Thomas J. Callishaw
Title: President/CEO
(Attach notary certificate of acknowledgment)
EXHIBIT "A"
To Deed of Trust
The land referred to is situated in the County of Fresno, City of Fresno, State of
California, and is described as follows:
Adjusted Parcel A
A Portion of Lots 95 and 96 of Fresno Colony, according to the map thereof recorded in Book
2 of Plats at Page 8 on August 1, 1881, Fresno County Records, described as follows:
Commencing a the Southeast corner of Lot 96, said corner being 30 feet North and 30 feet
West of the East quarter corner of Section 21, Township 14 South, Range 20 East, Mount
Diablo Base and Meridian; thence South 890 45' 09" West, along the South line of said Lot
96, a distance of 428.03 feet to the TRUE POINT OF BEGINNING;
thence North 0°01'12" West a distance of 633.55 feet to the North line of the South half of
said Lot 96; thence along said North line of the South half, South 89°46' 09" West a distance
of 204.57 feet to the Northwest corner of the South half of Lot 96; thence South 89°46'09"
West a distance of 57.73 to a point on the North line of the South half of Lot 95; thence
South 0°06'27" East a distance of 72.11 feet; thence South 83°38'50" West a distance of
17.26 feet; thence South 6°28'39" East a distance of 9.00 feet; thence South 07039,34" West
a distance of 1.24 feet to a non-tangent curve having a radius of 40.00 feet, and a radial
bearing of North 28034'07" West; thence along last said curve a distance of 80.05 feet,
through an angle of 114040'03"; thence South 53038'08" East a distance of 1.05 feet; thence
South 0014'51" East a distance of 192.59 feet to a curve having a radius of 285.06 feet, and a
radial bearing of South 89°52'43" West; thence along last said curve a distance of 89.57 feet,
through an angle of 18°00'16"; thence South 17°59'59" East a distance of 36.26 feet; thence
South 35°50'22" West a distance of 17.21 feet; thence South 8045'02" East a distance of
50.56 feet; thence South 45°14'51" East a distance of 21.29 feet; thence South 0014'51" East
a distance of 72.37 feet; thence South 44046'28" West a distance of 21.29 feet; thence North
89045'09" East a distance of 52.68 feet along the South line of Lot 95 to the Southwest corner
of Lot 96; thence North 89045'09" East along the South line of Lot 96 a distance of 204.57
feet to the point of beginning.
APN's: 479-270-16, 479-270-15, 479-270-24 and 479-270-06
Portion APN's: 479-270-04 & 479-270-05
TEMPLATE RIDER TO DEED(S) OF TRUST
The Trustor (herein "Borrower") understands and agrees that the Note secured by this
Deed of Trust is made for the sole purpose of assisting the Borrower in the purchase of
the Borrower's home as their principal place of residence. Therefore, the Borrower
understands and agrees that said Note secured by this Deed of Trust shall be immediately
due and payable upon the earlier of: (1) any change in residency of the Borrower from
the Borrower's home which is used as security for the Note described above, unless
having obtained the written consent of the Beneficiary (herein "Lender"); or (2) the sale
or transfer, without the Lender's prior written consent, of all or any part of the Property, or
any interest in the Property. A "sale or transfer" means the conveyance of the Property
or any right, title or interest therein; whether legal, beneficial or equitable; whether
voluntary or involuntary; whether by outright sale, deed, installment sale contract, land
contract, contract for deed, lease-option contract, or by sale, assignment, or transfer of
any beneficial interest in or to any land trust holding title to the Property, or by any other
method of conveyance of land interest.
The Borrower also assigns to the Lender all rents, issues and profits from said real
property reserving, however, the right to collect and use the same so long as there is no
existing default hereunder, and does hereby authorize the Lender to collect and recover
the same in the name of the Borrower of his successor in interest by use of any lawful
means.
The Lender and the Borrower acknowledge and agree that this security instrument is
second and subordinate in all respects to the liens, terms, covenants and conditions of
the first Deed of Trust and shall not impair the rights of any institutional lender which is
the maker of a loan secured by such first deed of trust, or such lender's assignee or
successor in interest, to exercise its remedies under the deed of trust in the event of
default by the Borrower. These remedies include the right to foreclosure or exercise a
power of sale or to accept a deed or assignment in lieu of foreclosure. The terms and
provisions of the first Deed of Trust are paramount and controlling, and they supersede
any other terms and provisions hereof in conflict therewith. In the event of a foreclosure
or deed in lieu of foreclosure of the first Deed of Trust, any provisions herein or any
provisions in any other collateral agreement restricting the use of the property to very low
to low-income households or otherwise restricting the Borrower's ability to sell the
property shall have no further force or effect on subsequent owners or purchasers of the
property. Any person, including his successors or assigns (other than the Borrower or a
related entity of the Borrower), receiving title to the property through a foreclosure or deed
in lieu of foreclosure of the first Deed of Trust shall receive title to the property free and
clear from such restrictions.
The HOME program restrictions on the Property shall terminate upon foreclosure, transfer
in lieu of foreclosure or assignment of the FHA insured mortgage to HUD. To the extent
that there are any proceeds from the foreclosure or other sale of the Property remaining
after the first deed of trust loan repayment, the remaining proceeds shall be paid to City
of Fresno.
In the event of a catastrophic occurrence that results in the property having to be sold,
the portion of the existing second mortgage lien that results in the combined loan-to-value
ratio being more than 100% of the value of the property will be released with no
forgiveness of that portion of the debt, and the contemporaneous execution of an
unsecured promissory note equal to the amount released from the second mortgage, and
a modification agreement that reduces the secured debt of the existing second mortgage
by the amount of the new unsecured promissory note.
Period of Affordability: The minimum period of affordability for this Project is thirty (30)
years. Year one shall be the 12-month period following date the Project completion
information is entered into IDIS, with each succeeding year beginning on the anniversary
thereof and ending 12 month hence. There will be no partial years.
Recapture of HOME CHDO Funds: Pursuant to 24 CFR 92.254(a)(5)(ii), the City of
Fresno requires that HOME CHDO funds be recaptured if the home does not continue to
be the Borrower's principal residence or if all or any part of the property or any interest in
it is sold, rented, conveyed or transferred for the duration of the Period of Affordability. If
the net proceeds are not sufficient to recapture the full HOME CHDO investment plus
enable the homeowner to recover the amount of the homeowner's down payment and
any capital improvement investment made by the owner since purchase, the CITY may
share the net proceeds. The net proceeds are the sales price minus superior loan
repayment (other than HOME CHDO funds) and any closing costs. The net proceeds
may be divided proportionally as set forth in the following mathematical formulas:
HOME CHDO x Net = HOME CHDO recaptured
investment proceeds
HOME CHDO
investment+ homeowner
investment
Homeowner investment x Net = amount to homeowner
proceeds
HOME CHDO
investment+ homeowner
investment
In the event of foreclosure, the amount subject to recapture is based on the amount of
net proceeds (if any) from the foreclosure sale.
DO NOT RECORD
The following is a copy of provisions (1) to (14), inclusive, of the fictitious deed of trust, recorded
in each county in California, as stated in the foregoing Deed of Trust and incorporated by
reference in said Deed of Trust as being a part thereof as if set forth at length therein.
To Protect the Security of This Deed of Trust, Trustor (herein "Borrower") Agrees:
(1) To keep said property in good condition and repair, not to remove or demolish any building
thereon, to complete or restore promptly and in good and workmanlike manner any building
which may be constructed, damaged or destroyed thereon and to pay when due all claims for
labor performed and materials furnished therefor, to comply with all laws affecting said property
or requiring any alterations or improvements to be made thereon, not to commit or permit waste
thereof, not to commit, suffer or permit any act upon said property in violations of law to
cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or
use of said property may be reasonably necessary, the specific enumerations herein not
excluding the general.
(2) To provide maintain and deliver to the Beneficiary fire insurance satisfactory to and with
loss payable to the Beneficiary. The amount collected under any fire or other insurance policy
may be applied by the Beneficiary upon indebtedness secured hereby and in such order as the
Beneficiary may determine, or at option of the Beneficiary the entire amount so collected or
any part thereof may be released to the Borrower. Such application or release shall not cure
or waive any default or notice of default hereunder or invalidate any act done pursuant to such
notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof
or the rights or powers of the Beneficiary or the Trustee, and to pay all costs and expenses
including cost of evidence of title and attorney's fees in a reasonable sum, in any such action
or proceeding in which the Beneficiary or the Trustee may appear, and in any suit brought by
the Beneficiary to foreclose this Deed of Trust.
(4) To pay at least ten (10) days before delinquency all taxes and assessments affecting said
property, including assessments on appurtenant water stock, when due, all encumbrances,
charges and liens, with interest, on said property or any part thereof, which appear to be prior
or superior hereto, all costs, fees and expenses of this Trust.
Should the Borrower fail to make any payment or to do any act as herein provided, then the
Beneficiary or the Trustee, but without obligation so to do and without notice to or demand upon
the Borrower and without releasing the Borrower from any obligation hereof, may make or do
the same in such manner and to such extent as either may deem necessary to protect the
security hereof the Beneficiary or the Trustee being authorized to enter upon said property for
such purposes; appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of the Beneficiary or the Trustee, pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears to be
prior or superior hereto, and in exercising any such powers, pay necessary expenses, employ
counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by the Beneficiary or the
Trustee, with interest from date of expenditure at the amount allowed by law in effect at the
date hereof, and to pay for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to
exceed the maximum allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any condemnation for public use of or injury
to said property or any part thereof is hereby assigned and shall be paid to the Beneficiary who
may apply or release such moneys received by him in the same manner and with the same
effect as above provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, the Beneficiary
does not waive his rights either to require prompt payment when due of all other sums so
secured or to declare default for failure so to pay.
(8) That at any time or from time to time, without liability therefor and without notice, upon
written request of the Beneficiary and presentation of this Deed and said Note for endorsement,
and without affecting the personal liability of any person for payment of the indebtedness
secured hereby, Trustee may reconvey any part of said property, consent to the making of any
map or plot thereof; join in granting any easement thereon; or join in any extension agreement
or any agreement subordinating the lien or charge hereof.
(9) That upon written request of the Beneficiary state that all sums secured hereby have been
paid, and upon surrender of this Deed and said Note to the Trustee for cancellation and
retention and upon payment of its fees, the Trustee shall reconvey, without warranty, the
property then held hereunder. The recitals in such reconveyance of any matters or facts shall
be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be
described as "The person or persons legally entitled thereto." Five (5) years after issuance of
such full reconveyance, the Trustee may destroy said note and this Deed (unless directed in
such request to retain them).
(10) That as additional security, the Borrower hereby gives to and confers upon the Beneficiary
the right, power and authority, during the continuance of these Trusts, to collect the rents,
issues and profits of said property, reserving unto the Borrower the right, prior to any default
by the Borrower in payment of any indebtedness secured hereby or in performance of any
agreement hereunder, to collect the rents, issues and profits of said property, reserving unto
the Borrower the right, prior to any default by the Borrower in payment of any indebtedness
secured hereby or in performance of any agreement hereunder, to collect and retain such rents,
issues and profits as they become due and payable. Upon any such default, the Beneficiary
may at any time without notice, either in person, by agent, or by a receiver to be appointed by
a court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in his own name
sue for or otherwise collect such rents, issues and profits, including those past due and unpaid,
and apply the same, less costs and expenses of operation and collection, including reasonable
attorney's fees. Upon any indebtedness secured hereby, and in such order as the Beneficiary
may determine. The entering upon and taking possession of said property, the collection of
such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive
any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(11) That upon default by the Borrower in payment of any indebtedness secured hereby or in
performance of any agreement hereunder. The Beneficiary may declare all sums secured
hereby immediately due and payable by delivery to the Trustee of written declaration of default
and demand for sale and of written notice of default and of election to cause to be sold said
property which notice the Trustee shall cause to be filed for record. The Beneficiary also shall
deposit with the Trustee this Deed, said note and all documents evidencing expenditures
secured hereby.
After the lapse of such time as may then be required by law following the recordation of said
notice of default, and notice of sale having been given as then required by law, Trustee, without
demand on the Borrower, shall sell said property at the time and place fixed by it in said notice
of sale, either as a whole or in separate parcels, and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money of the United States, payable at
time of sale. The Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter may postpone
such sale by public announcement at the time fixed by the preceding postponement the Trustee
shall deliver to such purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall
be conclusive proof of the truthfulness thereof. Any person, including the Borrower, the Trustee,
or the Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of the Trustee and of this Trust, including cost of
evidence of title in connection with sale, the Trustee shall apply the proceeds of sale to payment
of all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof, all other sums then secured hereby, and
the remainder, if any, to the person or persons legally entitled thereto.
(12) The Beneficiary, or any successor in ownership of any indebtedness secured hereby, may
from time to time, by instrument in writing, substitute a successor or successors to any Trustee
named herein or acting hereunder, which instrument, executed by the Beneficiary and duly
acknowledged and recorded in the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper substitution of such successor Trustee
or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name of the original
Borrower, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded
and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary
shall mean the owner and holder, including pledgees, of the note secured hereby whether or
not named as Beneficiary herein in this Deed, whenever the context so requires, the masculine
gender includes the feminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is
made a public record as provided by law. Trustee is not obligated to notify any party hereto of
pending sale under any other Deed of Trust or of any action or proceeding in which Borrower,
Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid.
To Title Company, Trustee: Dated
The undersigned is the legal owner and holder of all indebtedness secured by the within
Deed of Trust. All sums secured by said Deed of Trust have been fully paid and satisfied; and
you are hereby requested and directed, on payment to you of any sums owing to you under
the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said
Deed of Trust, delivered to you herewith together with said Deed of Trust, and to reconvey,
without warranty, to the parties designated by the terms of said Deed of Trust, the estate now
held by you under the same.
MAIL RECONVEYANCE TO:
By
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be
delivered to the Trustee for cancellation before reconveyance will be made.
'J�
Exhibit "B"
First Amendment to HOME CHDO Agreement
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RECORDED AT THE REQUEST OF 2021_0083839
AND WHEN RECORDED RETURN TO: FRESNO County Recorder
Paul Dictoe, CPA
Thursday, May 20, 2021 01025:16 PM
Titles: 1 Pages: 7
Fees: 0.00
CA S82 Fee: 8.08
Taxes: 0.@8
Tots l: 0.a0
City of Fresno CITY OF FRESNO
City Cleric - - - - - - - - -
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This First Amendment to the HOME CHDO Agreement is being 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
By. �.
Name: U nnif K. Clark
Title: PaTU
' nd eve[opment Director
Date: &
FIRST AMENDMENT TO
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION AGREEMENT
by and between
City of Fresno
a municipal corporation
and
Self-Help Enterprises
a California non-profrt public benefit corporation
regarding
1405 E. Annadale Avenue, Fresno, CA
(APN: 479-270-34)
Annadale Single-Family Housing Project
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 the HOME CHDO Agreement is being 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
By: �•
Name: n er K. Clark
Title: P ann' iband Development Director
Date: aa��--
FIRST AMENDMENT TO
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION AGREEMENT
by and between
City of Fresno
a municipal corporation
and
Self-Help Enterprises
a California non-profit public benefit corporation
regarding
1405 E. Annadale Avenue, Fresno, CA
(APN: 479-270-34)
Annadale Single-Family Housing Project
FIRST AMENDMENT TO AGREEMENT
This First Amendment to the HOME Investment Partnerships Program, Community
Housing Development Organization 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) and Self-Help Enterprises Housing, a
California non-profit public benefit corporation (Developer) is effective this 2� day of April
2021.
RECITALS
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Agreement on August 28, 2020,
recorded in the Fresno County Recorder's Office on September 17, 2020, as document
number 2020-0126351 (Agreement); and
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Deed of Trust on August 3, 2020,
recorded in the Fresno County Recorder's Office on September 17, 2020, as document
number 2020-0126350 (Deed of Trust); and
WHEREAS, the City and Developer entered into a HOME Investment Partnerships
Program, Community Housing Development Organization Declaration of Restrictions on
August 3, 2020, recorded in the Fresno County Recorder's Office on September 17, 2020, as
document number 2020-0126349 (Declaration of Restrictions); and
WHEREAS, the Agreement, Deed of Trust and Declaration of Restrictions were
recorded with an incorrect legal description contained in Exhibit "A" of each of document,
respectively; and
WHEREAS, the Developer and City have agreed to amend the legal description in the
Agreement, Deed of Trust and Declaration of Restrictions and independently record each
amendment.
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
consideration hereby acknowledged, the parties agree that the Agreement is amended as
follows:
1. Exhibit "A" is removed in its entirety and shall be replaced with the attached
Exhibit "A".
2. 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.
3. Except as expressly provided herein, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the authorized agents of the parties hereto have executed
this First Amendment to the Agreement, at Fresno, California, the day and year first above
written.
CITY OF FRESNO, SELF-HELP ENTERPRISES,
a California municipal corporation a California non-profit pu �lic benefit
corporation -
ey. _
Name: J n fifer K. Clark B
Title: nn ng and Development Name: Thomas J. Co haw
(Attach notary certificate of acknowledgment) Title: President and CEO
(Attach Notary certificate of acknowledgment)
Date: LDate: _� /6 -)-/
r
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
&VO AA0t/y_\
B :
Tracy N, P n(anian Date
Senior D piny City Attorney (4• •� j
ATTEST:
YVONNE SPENCE, MMC CRM
City Clc�'
By: -
Name:le—A ►�1OU-0 (�.,3J•1-f
Title: Deputy
Amendment:
Exhibit A: Corrected Legal Description
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 Fresno )
On April 26, 2021 before me, Linda Cunha Reitz, Notary Public
(insert name and title of the officer)
personally appeared Jennifer K. Clark
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 she executed the same in her authorized
capacity, and that by her 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
Notary Public-California
WITNESS my hand and official seal. I =y Fresno County
Commission a 2215504
My COMM.Expires Sep 23,2021
Signature (Seal)
(�Ln
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 30, 2021 before me, Raven Dunlap, Deputy City Clerk, personally appeared, Jennifer K.
Clark. Planning & Development Department Director 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
* �o
P� r
�� A�rE'O OCY•tiY
By
Raven Dunlap, Deputy Y;t Il 7o�''30-24
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 Tulare
On r before me, Valerie Pedro, Notary Public
(insert name and title of the officer)
personally appeared Thomas J. Collishaw
who proved to me on the basis of satisfactory evidence to be the person(} whose name(} isla
subscribed to the within instrument and acknowledged to me that he/oelt[Ay executed the same in
hislh firltl�&r authorized capacity(ios), and that by his/4rltgeir signature( an 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.
*my
VALERIE PEDRO
Notary Public-California
WITNESS my hand and official seal. x Tulare County 9i
Commission#2315118 Comm.Expires Dec 10,2i)23
Signature (Seal)
EXHIBIT "A"
CORRECTED LEGAL DESCRIPTION
The land referred to is situated in the County of Fresno, City of Fresno, State of California, and
is described as follows:
Adjusted Parcel B:
A portion of Lot 95 of Fresno Colony recorded in Book 2 of Plats at Page 8 on August 1, 1881 in
Fresno CA, Fresno County Official Records:
Commencing at the Southeast corner of said Lot 96, said corner being 30 feet North and 30 feet
West of the East 1/4 corner of Section 21, Township 14 South, Range 20 East, Mount Diablo
Base and Meridian; thence South 89045`09" West along the South line of said Lot 96 and Lot
95, a distance of 965.37 feet to the true point of beginning; thence North 0106'23" West a
distance of 633.70 feet along a line parallel with and 328.43 feet East of the West line of Lot 95
to the North line of the South half of said Lot 95; thence along said North line of the South half
of Lot 95, North 89046'09" East a distance of 276.00 feet; thence South 0006`27" East a
distance of 72.11 feet; thence South 83038'50" West a distance of 17.26 feet; thence South
61028'39" East a distance of 9.00 feet; thence South 07°39'34" West a distance of 1.24 feet to a
non-tangent curve having a radius of 40.00 feet, and a radial bearing of North 29034'07" West;
thence along last said curve a distance of 80.05 feet, through an angle of 114040'03"; thence
South 53038'08" East a distance of 1.05 feet; thence South 0014'51" East a distance of 192.59
feet to a curve having a radius of 285.06 feet and a radial bearing of South 89152'43" West;
thence along last said curve a distance of 89.57 feet, through an angle of 18100'16"; thence
South 171)59'59" East a distance of 36.26 feet; thence South 35150'22" West a distance of
17.21 feet; thence South 8045'02" East a distance of 50.56 feet; thence South 451,14'51" East a
distance of 21.29 feet; thence South 0014`51" East a distance of 72.37 feet; thence South
44046`28" West a distance of 21.29 feet to the South line of Lot 95; thence South 89045"09"
West, along said South line a distance of 280.09 feet to the point of beginning.
APN's: 479-270-34