HomeMy WebLinkAboutHabitat for Humanity Fresno County Inc Home Investment Partnerships Prog Community Housing Development Organization Agreement - 12-8-23 Fresno County Recorder
Paul Dictos, CPA
2023-0115109
Recorded at the Request of Recorded at the request of:
and When Recorded Return to: SIMPLIFILE, PROVO
12/18/2023 10:16 45
Titles: 1 Pages: 74
Fees: $0.00
CA SB2 Fees:$0.00
Taxes: $0.00
Total: $0.00
City of Fresno
City Clerk's Office
2600 Fresno Street, Room 2133
Fresno, CA 93721-3603
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
This HOME CHDO Agreement is recorded at the request and for the benefit of the City of Fresno
and is exempt from the payment of a recording fee pursuant to Government Code Section 6103
CITY OF FRESNO
By. �A
Geo g anne A. White
City anager
Date: 9,
CITY OF FRESNO
HOME INVESTMENT PARTNERSHIPS PROGRAM
COMMUNITY HOUSING DEVELOPMENT ORGANIZATION
AGREEMENT
by and between
CITY OF FRESNO,
a municipal corporation
and
Habitat for Humanity Fresno County, Inc.
a California Corporation
regarding
Single-Family House
64 E. Atchison Street, Fresno, CA 93706
APN: 477-123-06
DOC #2023-0115109 Page 2 of 74
TABLE OF CONTENTS
Page
RECITALS ............................................................................................................................1
ARTICLE1. DEFINITIONS..................................................................................................2
ARTICLE 2. TERMS OF THE LOAN ...................................................................................5
ARTICLE 3. REPRESENTATION AND WARRANTIES OF DEVELOPER..........................6
ARTICLE 4. WARRANTIES AND COVENANTS BY DEVELOPER. ...................................7
ARTICLE 5. COVENANTS AND AGREEMENTS OF THE DEVELOPER.........................12
ARTICLE 6. DISBURSEMENT OF HOME CHDO FUNDS................................................14
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF THE PROJECT......................16
ARTICLE 8. OPERATIONS OF THE PROJECT ...............................................................21
ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS ..............................................22
ARTICLE 10. DEFAULT AND REMEDIES. .......................................................................27
ARTICLE 11. GENERAL PROVISIONS. ...........................................................................29
DOC #2023-0115109 Page 3 of 74
HOME INVESTMENT PARTNERSHIPS PROGRAM AGREEMENT
This HOME Investment Partnerships Program, Community Housing Development
Organization Agreement (Agreement) is entered into on December 5, 2023, by and between
the City of Fresno, a municipal corporation, acting through its Planning and Development
Department - Housing and Community Development Division hereinafter referred to as the
(CITY) and Habitat for Humanity Fresno County, Inc., a California corporation hereinafter
referred to as the (DEVELOPER).
RECITALS
A. WHEREAS, the CITY has received a HOME Investment Partnerships (HOME)
Program grant which includes funds that are reserved for use of a Community Housing
Development Organization (CHDO), collectively here in referred to as (HOME CHDO) from
the U.S. Department of Housing and Urban Development(herein referred to as (HUD), under
Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990, as amended,
herein 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
single-family housing market.
C. WHEREAS, the DEVELOPER is a CITY-certified CHDO in accordance with
HUD's certification criteria of the developer for the project.
D. WHEREAS, the DEVELOPER owns a vacant lot (the Property) located at 64
E. Atchison Street, Fresno, CA 93706, within the boundaries of the City of Fresno, as more
particularly described in EXHIBIT "A" — Property Description and wishes to construct one
new single-family house 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 one single-family house for a
household whose income is up to 80% of the area medium income and will be preserved as
Low- to Moderate-Income housing, as defined by the HOME Program, and related on-site
and off-site improvements as more particularly described in EXHIBIT "B" — Project
Description and Schedule, incorporated herein (Project).
F. WHEREAS, the Project will be constructed upon HOME CHDO Program
eligible Property (Property) owned by the DEVELOPER.
G. WHEREAS, to further its goal to increase the supply of affordable housing
within the City of Fresno, the CITY desires to assist the DEVELOPER by providing Two
Hundred Fifty-Three Thousand Six Hundred Seventy-Three Dollars and 00/100
($253,673.00) in HOME CHDO Funding 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 Note attached as EXHIBIT"F"—Promissory Note loan, upon
the terms and conditions in this Agreement.
H. WHEREAS, the CITY has determined that it has ministerial authority to
approve this Project, which is statutorily exempt from CEQA pursuant to Article 18, Statutory
Exemptions, Section 15268 of the State CEQA Guidelines. Additionally, Developer
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completed an environmental review of the Project pursuant to the National Environmental
Policy Act (NEPA) guidelines and received an Authorization to Use Grant Funds on January
20, 2023.
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 a Low-Income household, as defined
hereunder, (v) planning and administrative expenses incurred in pursuit hereof are necessary
for the production, improvement, or preservation of Lower 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-Assisted Unit constitutes routine programmatic/grantee lender activities utilizing
available and allocated program/grantee funding, outside of the California Constitution Article
XXXIV and enabling legislation.
K. WHEREAS, the CITY and DEVELOPER 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 30, 2022, the DEVELOPER's Board reviewed and
approved the development of the Project and HOME CHDO Application for funding.
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 Acquisition means vesting of the Property in fee title to the DEVELOPER.
1.2 ADA means the Americans with Disabilities Act of 1990, amended.
1.3 Affirmative Marketing means a good faith effort to attract eligible persons of all
racial, ethnic and gender groups, in the housing market area, to sell the proposed Housing
Unit proposed for construction on the eligible Property, as hereinafter defined.
1.4 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.
1.5 Affordable Housing Unit means the one for-sale housing unit which will be
required to meet the affordability requirements of 24 C.F.R. 92.252.
1.6 Budget means the Budget for the development of the Project, as may be
amended upon the approval of the CITY Housing and Community Development Division
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provided any increase in HOME CHDO Funds hereunder requires City Council Approval,
attached hereto as EXHIBIT "C".
1.7 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.
1.8 CFR means the Code of Federal Regulations.
1.9 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.
1.10 Completion Date means the date the City issues a recorded Certificate of
Completion for the Project.
1.11 Declaration of Restrictions means the Declaration of Restrictions in the form
attached hereto as EXHIBIT"D", which contains the affordability covenants and income level
restrictions 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.
1.13 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.
1.14 Eligible Costs means the HOME CHDO eligible construction costs funded by
the HOME CHDO Loan, consistent with the Project Budget attached as EXHIBIT "C",
allowable under 24 CFR Part 92, as specified in 24 CFR 92.205 and 92.206, and not
disallowed by 24 CFR 92.214, provided, however, that costs incurred in connection with any
activity that is determined to be ineligible under the Program by HUD or the CITY shall not
constitute Eligible Costs.
1.15 Event of Default shall have the meaning assigned to such term under Section
10.1 hereunder.
1.16 Federal HOME CHDO Funds also referred to in this Agreement as "HOME
Funds" or"HOME CHDO Program Funds", means the federal Program monies consisting of
the Loan, in an amount not to exceed the sum of Two Hundred Fifty-Three Thousand Six
Hundred Seventy-Three Dollars and 00/100 ($253,673.00) to be used for eligible Project
construction costs.
1.17 Fundinq Sources means the CITY's HOME CHDO Funds, conventional
construction loan, Habitat for Humanity funds any other funds that may become available to
the Project.
1.18 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
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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.
1.19 Household means those persons, related or unrelated, who occupying the Unit
within the Project.
1.20 HOME CHDO - assisted Unit means the one housing unit required to meet the
affordability requirements of 24 CFR 92.252 and preserved as affordable housing for the
duration of the 30-year affordability period.
1.21 HUD means the United States Department of Housing and Urban
Development.
1.22 Loan means the Project Loan of HOME Funds, in the total amount not to
exceed Two Hundred Fifty-Three Thousand Six Hundred Seventy-Three Dollars and 00/100
($253,653.00), the aggregate HOME CHDO per unit cap (24 CFR 92.250), as amended, for
the one HOME-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 payable in accordance
with the terms of the Note, shall be secured by a deed of trust on the parcel constituting the
Property, and shall be subject to the Deed of Trust attached as EXHIBIT "G".
1.23 Loan Documents means collectively this Agreement, Promissory Note -
EXHIBIT "F", Deed of Trust — EXHIBIT "G", and Declaration of Restrictions — EXHIBIT "D",
attached hereto 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.
1.24 Low or Lower-Income Household means Households whose annual income
does not exceed 80% of the area median income for Fresno, California as determined by
HUD.
1.25 Note means that certain Two Hundred Fifty-Three Thousand Six Hundred
Seventy-Three Dollars and 00/100 ($253,673.00) HOME CHDO Loan Note in a principal
amount not to exceed the HOME Program per unit cap (24 CFR 92.250), as amended, and
as determined by the CITY, given by the DEVELOPER as promisor, 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 no worse than 2nd
position lien upon the Property, naming the CITY as beneficiary and provided to the CITY,
no later than the date of the Project funding hereunder, an exemplar of which is attached
hereto as EXHIBIT "F", and incorporated herein, as well as any amendments to,
modifications of and restatements of said Note consented to by the CITY.
1.27 Program Income has the meaning provided in the HOME Program including 24
CFR 92.503.
1.28 Proiect Schedule means the schedule for commencement and completion of
the Project included in EXHIBIT "B".
1.29 Proiect Unit means the construction of one for sale housing unit which will be
preserved as HOME CHDO-assisted Unit.
1.30 Property means the property located at 64 Atchison Street, Fresno, CA
93727, APN: 477-123-06 as more specifically described in the Property Description attached
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to EXHIBIT "A".
1.31 Senior Financing means the financing for the Project set forth on the Budget
and Finance Plan which shall be senior to the HOME CHDO Loan.
1.32 Senior Lender means lenders providing the Senior Financing for the Affordable
Project.
1.33 Very Low Income means, for the purpose of this Agreement, those whose
annual income does not exceed 50% of the area median income for Fresno, California as
determined by HUD.
ARTICLE 2. TERMS OF THE LOAN
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 Two Hundred Fifty-Three
Thousand Six Hundred Seventy-Three Dollars and 00/100($253,673.00), all under the terms
and conditions provided in this Agreement.
2.2 Loan Documents. The DEVELOPER shall execute and deliver the Loan
Documents including the Promissory Note to the CITY, and notarized Deed of Trust to First
American Title Company for recordation against the Property, as provided for in this
Agreement.
2.3 Term of Agreement. This Agreement is effective upon the date of full 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, however, that if for any reason this
Agreement should be terminated in whole or in part as provided hereunder, without default,
the CITY agrees to record a Notice of Cancellation regarding this Agreement upon the written
request of the DEVELOPER.
2.4 Loan Repayment and Maturity. 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 DEVELOPER's HOME CHDO application
dated June 29, 2022 the CITY Council approved Minutes of November 16, 2023,
approving this Agreement, the Loan Documents, the Act and HUD regulations at 24
CFR Parts 85 (administrative requirements), HOME CHDO Program requirements,
CPD 98-2 (cost allocations requirements) 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, as amended.
2.7 Subordination. This Agreement, Declaration of Restrictions, and 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 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 financing plan; (b) the subordination agreement must provide the CITY with
adequate rights to cure any defaults
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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
approved subordination agreement, inter-creditor agreements, 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 CHDO 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. 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 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 HOME CHDO 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 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
the 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 it is an independent governmental agency and 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
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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
its obligations or its ability to complete the Project under this Agreement.
3.5 No Violation of Law. The DEVELOPER represents and warrants to the CITY
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
to the CITY 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 as of the date
hereof.
ARTICLE 4. WARRANTIES AND COVENANTS OF THE DEVELOPER
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.
4.4 Availability of HOME CHDO Funds. The DEVELOPER understands and
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agrees that the availability of HOME 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 Funds to the Project, the CITY shall not provide said
Funds unless and until Funds are allocated to the CITY by HUD. No other funds owned or
controlled by the CITY shall be obligated under this Agreement.
4.5 Compliance with Agreement. The DEVELOPER warrants, covenants and
agrees that, in accordance with the requirements of 24 CFR 92.252 and 24 CFR 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 CFR 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 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, on expiration of this Agreement such covenants and restrictions shall expire,
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 City Attorney approves such document(s) as to form.
A. The CITY and the DEVELOPER hereby declare their understanding and
intent that the covenants and restrictions set forth herein directly benefit the land by:
(a) enhancing and increasing the enjoyment and ownership of the proposed Project
by a certain Lower Income Household, and (b) 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 one HOME CHDO-Assisted Unit to be sold to
a Low- to Moderate-Income household.
C. Without waiver or limitation, the CITY shall be entitled to injunctive or
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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 CFR 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 located 64 Atchison Street,
Fresno, CA 93706 is vacant land and is not occupied.
4.10 Initial and Annual Income Certification and Reporting_ The DEVELOPER
covenants and agrees with the CITY that it shall comply with the procedures for annual
income determination at 24 CFR 92.203. The DEVELOPER, shall obtain, complete and
maintain on file, immediately prior to initial occupancy, and annually thereafter, income
certifications from the Project Unit Household members. 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 a pay stub for the three most recent pay periods; (2)obtain
an income verification form from the applicant's current employer; (3) obtain an income
verification form from the Social Security Administration and California Department of Social
Services if the applicant receives assistance from either of such agencies; (4) obtain income
tax return for the most recent three (3) years; or (5) if the applicant is unemployed, obtain
another form of independent verification. Copies of Household income certification and
verification must be available for review and approval by the CITY prior to the initial sale of
the house to the homebuyer. The DEVELOPER further warrants, covenants and agrees that
it will cooperate with the CITY in the CITY's annual income certification monitoring.
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 CFR Part 35, including the HUD 1012 Rule, and 24 CFR
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
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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 Minority Outreach Activities. The DEVELOPER covenants and agrees with the
CITY that it shall comply with all federal laws and regulations described in Subpart H of 24
CFR Part 92, including, without limitation, any requirement that the DEVELOPER comply
with the CITY's minority outreach program.
4.13 Other Laws and Regulations. The DEVELOPER covenants and agrees with
the CITY 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 Program, including, without limitation, requirements of
24 CFR 58.6 and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001-
4128) and the following:
A. The DEVELOPER does not intend to use any financing that is secured
by a mortgage insured by HUD in connection with the Project as part of its land
acquisition and construction costs of 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 per-unit subsidy amount at 24 CFR 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), regarding the construction and management of the
proposed Project. w
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 CFR chapter 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 CFR part 3, "Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in Part by
Loans or Grants from the United States").
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.
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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 CFR 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.
S. Violence Against Women Act (VAWA), 24 CFR 92.359 and 24 CFR
92.504(c)(3)(v)(F), including but not limited to notice requirements, obligations under
emergency transfer plan, bifurcation of lease requirements, imposition of
requirements for the duration of the HOME CHDO period of affordability, and inclusion
of VAWA lease addendum requirements.
T. Broadband infrastructure requirements for new housing and
rehabilitation projects as set forth in 24 CRF 92.251.
4.14 Faith Based Activities. The DEVELOPER warrants, covenants and agrees with
the CITY that it shall not engage in any prohibited activities described in 24 CFR 92.257.
4.15 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).
4.16 Housing Affordability. The DEVELOPER covenants and agrees with the CITY
that the Project Unit will be HOME CHDO-assisted available to a Low- to Moderate Income
household and other requirements of 24 CFR 92.252 during the Affordability Period and be
available for sale to and occupied by a household whose annual household income at the
time of initial occupancy 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 consistent with HOME CHDO Program regulations, for the
Affordability Period except upon foreclosure or other transfer in lieu of foreclosure following
default under a Deed of Trust. However, if at any time following a transfer by foreclosure or
transfer in lieu of foreclosure, but still during the Affordability Period, the owner of record prior
to the foreclosure or transfer in lieu of foreclosure, or any newly formed entity that includes
such owner of record those whom such owner of record has or had business ties, obtains an
ownership interest in the Project or the Property, the Affordability Period shall be revived
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according to its original terms. In the event the DEVELOPER fails to comply with this Section
or the Affordability Period is not revived following transfer by foreclosure or transfer in lieu of
foreclosure, the DEVELOPER shall return to the CITY all HOME CHDO Funds disbursed to
the DEVELOPER by the CITY.
4.17 Terminated Project. 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 to the Project.
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 Rental Housing. The DEVELOPER covenants and agrees that the
Affordable Project shall constitute one Affordable Housing Unit for sale and preserved for a
Low-to Moderate-Income Household during the 30-year affordability period. In the event the
DEVELOPER fails to comply with the time period in which the Affordable Housing Unit
constitutes 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 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
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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.
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 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
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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 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 Affordable Housing unit through escrow to an eligible Low- to Moderate-Income
homebuyer, the DEVELOPER shall not 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 homebuyer
with the prior written consent of the CITY through escrow documents, which consent and
execution of 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 limitations, the CITY and DEVELOPER agree as follows, regarding the
disbursement of HOME CHDO funds:
6.1 Loan Commitments and Financing Plan. The DEVELOPER shall submit its
most current Finance Plan for the Project to the CITY prior to Council approval and as other
funding sources become part of the Project budget. The City shall approve the Finance Plan
so long as the Plan is consistent with the Budget contained in EXHIBIT "C". The CITY shall
accept the Finance Plan and supporting documentation such as commitment letters, letters
of credit, agreements, and resolutions for proposed funding to the Project. If the CITY
disapproves the Finance Plan, it will specify the reason for the disapproval and ask the
DEVELOPER to provide any additional information the CITY may need to approve the
Finance Plan.
6.2 Finance Plan Content. The Finance Plan shall contain all Project pre-
construction, post-construction, and permanent loans or letters of commitment from one or
more qualified public/private lenders or funding sources in sufficient amounts, combined with
any other DEVELOPER financing, for the DEVELOPER to complete construction of the
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DOC #2023-0115109 Page 17 of 74
Project. The total amount of the liens to be recorded against the Property as presented in
the Finance Plan shall not exceed the DEVELOPER's estimated construction Budget.
6.3 Use of HOME Funds. The DEVELOPER warrants, covenants and agrees that
it shall request HOME CHDO Funds only for reimbursement of eligible construction costs
incurred as identified in the itemized Budget, attached hereto as EXHIBIT"C", including costs
allowable under 24 CFR 92.206, aggregating not more than Two Hundred Fifty-Three
Thousand Six Hundred Seventy-Three Dollars and 00/100 ($253,673.00).
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 costs, and
subject to the notice and cure provisions of Section 10.2 hereunder, an equal amount
from nonpublic 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 to the DEVELOPER
through proper invoicing for eligible construction costs of the HOME CHDO-assisted
Unit as provided in this Article 6.
6.4 Conditions Precedent to Disbursement. The CITY shall not be obligated to
make or authorize any disbursements 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
construction costs.
D. The DEVELOPER has obtained insurance coverage and delivered to
the City for approval as evidence of insurance as required in Article 9.
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 for reimbursement of eligible Project construction costs and
detailing such Eligible Costs applicable to the request on a City provided form.
G. The CITY has received certification required by Section 6.6 of this
Agreement.
H. The CITY has received, and continues to the have the right to disburse,
HOME CHDO Funds.
6.5 Requests for Reimbursement of Funds. The DEVELOPER shall request that
the CITY reimburse funds for eligible construction cost using the CITY's Request for
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Disbursement of Funds form. The DEVELOPER shall only request a maximum of Two
Hundred Fifty-Three Thousand Six Hundred Seventy-Three Dollars and 00/100
($253,673.00) in HOME CHDO Program assistance for the HOME CHDO-assisted unit. All
requests should provide in detail such Eligible Costs applicable to the request. All requests
for HOME CHDO Funds shall be accompanied with the Certification required by Section 6.6
of this Agreement.
6.6 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.
B. The DEVELOPER has carried out 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 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 disbursement of funds shall be used solely for reimbursement of
Eligible construction Costs identified in this Agreement and must by supported by the
itemized obligations that have been properly incurred, expended and are properly
chargeable in connection with construction of the Project.
6.7 Disbursement of Funds. The disbursement of HOME CHDO Program Loan
Funds shall occur within the normal course of CITY business (approximately 30 days) after
the CITY receives the Certification and Request for Reimbursement with correct supporting
documentation and to the extent of annually allocated and available HOME CHDO Funds.
ARTICLE 7. DEVELOPMENT AND CONSTRUCTION OF THE PROJECT
Without waiver of limitation, the parties agree as follows:
7.1 Pre-Construction Meeting Regarding HOME CHDO Program Processes and
Procedures. The CITY may schedule, and the DEVELOPER shall attend, a meeting prior to
construction for the purpose of outlining the Project processes and procedures or the
DEVELOPER may schedule, and the CITY shall attend, a meeting prior to the construction
for the purpose of outlining the Project processes and procedures.
7.2 Commencement and Completion of Project. The DEVELOPER shall commence
construction of the Project, and when completed, record a Notice of Completion of
construction of the Project in accordance with the Project Schedule as identified in EXHIBIT
"B", and provide the CITY with a copy of the recordation.
7.3 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
contractor agreement contain a provision whereby the party(ies)to the agreement, other than
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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.
7.4 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 shall occur 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.
7.5 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.
7.6 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 all funding sources for the Project. The
DEVELOPER shall require each agreement with 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.
7.7 Identification Signage. 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
minimum of 4 inches. The poster/sign shall be appropriately placed and shall remain in place
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throughout the Project construction.
7.8 Inspections. The DEVELOPER shall permit, facilitate, and require its
contractors and consultants to permit and facilitate observation and inspection at the Project
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 Property inspections required of the CITY by 24 CFR 92.504(d).
7.9 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.
7.10 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.
7.11 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 twenty (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
7.11 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.
7.12 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, grading, demolition, 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.
7.13 Plans and Specifications. The DEVELOPER has submitted to the CITY
preliminary plans and specifications for the Project under Zoning Clearance P22-02878
(Project Preliminary Plans).
A. The HOME CHDO Agreement shall contain by reference the design and
site plan of the Project; such design must be approved by the CITY Council with the
HOME CHDO Agreement.
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B. Before Commencement of Construction, 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 Affordable Housing 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 modifications
to the Plans and Specifications.
7.14 Protect Responsibilities/Public Work-Prevailinq Wage Requirements. The
DEVELOPER shall be solely responsible for all aspects of the DEVELOPER's conduct in
connection with the Project, including but not limited to, compliance with all local, State, and
federal laws including without limitation, as to prevailing wage and public bidding
requirements. The Council of the City of Fresno has adopted Resolution No. 82-297
ascertaining the general prevailing rate of per diem wages and per diem wages for holidays
and overtime in the Fresno area for each craft, classification or type of workman needed in
the execution of contracts for the CITY. A copy of the resolution is on file at the Office of the
City Clerk, City Hall, second floor. Actual wage schedules are available upon request at the
City's Construction Management Office, 1721 Van Ness Avenue. Without limiting the
foregoing, the DEVELOPER shall be solely responsible for the quality and suitability of the
work completed and the supervision of all contracted work, qualifications, and financial
conditions of and performance of all contracts, subcontractors, consultants, and suppliers.
Any review or inspection undertaken by the CITY with reference to the Project and/or payroll
monitoring/auditing is solely for the purpose of determining whether the DEVELOPER is
properly discharging its obligation to the CITY and shall not be relied upon by the
DEVELOPER or by any third parties as a warranty or representation by the CITY as to
governmental compliance and/or the quality of work completed for the Project.
7.15 Property Condition. The DEVELOPER shall maintain the Project and all
improvements on site in a reasonably good condition and repair (and, as to landscaping, in
a healthy condition), all according to the basic design and related plans, as amended from
time to time. The DEVELOPER and those taking direction under the DEVELOPER shall: (i)
maintain all on-site improvements according to all other applicable law, rules, governmental
agencies and bodies having or claiming jurisdiction and all their respective departments,
bureaus, and officials; (ii) keep the improvements free from graffiti; (iii) keep the Project
Property free from any accumulation of debris or waste material; (iv) promptly make repairs
and replacements to on-site improvements; (iv) promptly replace any dead, or diseased
plants and/or landscaping (if any) with comparable materials, and (v) enforce tenant lease
terms.
7.16 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 the construction of the Project on the Property in full
conformance with applicable local, State, and federal laws, statutes, regulations, and building
and safety codes.
7.17 Relocation. If and to the extent that the construction of the proposed Project
results in the permanent or temporary displacement of residential tenants, 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.
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7.18 Reportinq 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 31st, June 30th, September 30th, and December 31st,
during said 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 Occupancy 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 upon request and at the annual monitoring of the Property.
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 property and liability insurance, as required in Article 9, listing the CITY
as loss payee.
7.19 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 the Construction and issuance of the Notice 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
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 (force majeure). 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 lay mutual written agreement
of the CITY Housing and Community Development Division Manager and the
DEVELOPER, which shall not cumulatively exceed 180 days.
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7.20 Certificate of Completion. Upon completion of the construction of the Project,
the DEVELOPER shall submit to the CITY: 1) certification in writing 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, in line-item format consistent with the Project
Budget, of construction of the Project; and 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. OPERATIONS OF THE PROJECT
8.1 Operation of the Proiect. The DEVELOPER shall sell the Project Unit in full
conformity with the terms of this HOME CHDO Agreement.
8.2 HOME Occupancy Requirements. One Project Unit shall be marketed and sold
as a principal residence and be owner-occupied by a Low- to Moderate-Income Household.
The DEVELOPER shall comply with the income targeting and Affordable Housing
requirements of 24 C.F.R. 92.217 and 92.254. The homebuyer shall not take occupancy of
the house prior to the close of escrow vesting title in said homebuyer. If escrow is extended
beyond 30 days, the DEVELOPER shall enter into a lease to purchase option with the
homebuyer.
8.3 Homebuyer Packet. Upon selection of the homebuyer, the DEVELOPER shall
submit the homebuyer's financial information and documentation to the CITY for review and
approval. 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. One HOME CHDO-Assisted Unit shall be available for
occupancy on a continuous basis to a household who is income eligible. The DEVELOPER
shall not illegally discriminate or segregate in the use, enjoyment, occupancy or conveyance
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of any part of the Project or Property on the basis of race, color, ancestry, national origin,
religion, sex, marital status, family status, source of income/rental assistance subsidy,
physical or mental disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-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 tenants or vendees of any HOME CHDO-Assisted Unit or in connection with
employment of persons for the construction of any Project Unit. All deeds or contracts made
or entered into by the DEVELOPER as to the Project Units 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 sale
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 house 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 the DEVELOPER'S
Insurance and Indemnity Obligations:
9.1 Insurance Requirements. Throughout the life of this Agreement, the
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:
(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:
$2,000,000 per occurrence for bodily injury and property damage
$2,000,000 per occurrence for personal and advertising injury
$4,000,000 aggregate for products and completed operations
$4,000,000 general aggregate applying separately to work performed
under the Agreement
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least
as broad 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
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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
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 HOME CHDO 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 HOME CHDO 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
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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
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 (5) 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
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Agreement, or work commencement date, the DEVELOPER must purchase extended
reporting period coverage for a minimum of five (5) years after completion of the work
or termination of the HOME CHDO 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
this Agreement. No action taken by CITY hereunder shall in any way relieve the
DEVELOPER of its responsibilities under this 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 this 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,
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 this 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,
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.
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A. The above-described policies of insurance shall be endorsed to provide
an unrestricted thirty (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 fifteen (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. To the furthest extent allowed by law including California Civil Code
section 2782, DEVELOPER shall indemnify, hold harmless and defend 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 CITY,
DEVELOPER or any other person, and from any and all claims, demands and actions in law
or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this
agreement), arising or alleged to have arisen directly or indirectly out of performance of this
Contract. DEVELOPER 'S obligations under the preceding sentence shall apply regardless
of whether 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 or sole negligence, or the willful misconduct, of CITY or
any of its officers, officials, employees, agents or volunteers.
If DEVELOPER should subcontract all or any portion of the work to be performed
under this Contract, DEVELOPER shall require each subcontractor to indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
9.3 Property Insurance. The DEVELOPER shall maintain in full force and effect,
throughout the remaining life of this Agreement, a policy or policies 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
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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 the
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.
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 after
the cure period in Section 10.2 has expired without a cure:
A. The DEVELOPER's use of HOME CHDO Funds for costs other than
Eligible Construction Costs or for uses not permitted by the terms of this Agreement;
except that there shall be no Event of Default if the DEVELOPER's use of the HOME
CHDO Funds were for costs that were Eligible Costs at the time they were incurred
but subsequently lose eligibility;
B. The DEVELOPER's failure to obtain and maintain the insurance
coverage required under this HOME CHDO Agreement;
C. Except as otherwise provided in this HOME CHDO Agreement, the
failure of the DEVELOPER to punctually and properly perform any other covenant or
agreement contained in this HOME CHDO 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 HOME CHDO 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 HOME CHDO
Agreement, unless delay is permitted under Section 7.19 of this Agreement; (4)
cessation of the Project for a period of more than fifteen (15) consecutive days (other
than as provided at Section 7.19 of this HOME CHDO Agreement) prior to submitting
to the CITY certification that the Project is complete; (5) any material adverse change
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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 HOME CHDO 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; or (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 HOME CHDO
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 10 days;
H. The DEVELOPER's breach of any other material condition, covenant,
warranty, promise or representation contained in this HOME CHDO Agreement not
otherwise identified within this Section.
I. 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 HOME CHDO Agreement, any time period provided for in the notice no less
than ten days, or 30 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
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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 HOME
CHDO 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;
B. Bring an action in equitable relief: (1) seeking specific performance of
the terms and conditions of this HOME CHDO Agreement, and/or (2) enjoining,
abating or preventing any violation of said terms and conditions, and/or (3) seeking
declaratory relief;
C. Pursue any other remedy allowed by law or in equity or under this
Agreement; and
ARTICLE 11. GENERAL PROVISIONS
Without waiver of limitation, the DEVELOPER and the CITY 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 DEVELOPER and the
CITY hereto. The CITY recognizes that senior lenders and equity investors may request
revisions to the Loan Documents to be consistent with their funding and investing
requirements. Therefore, the CITY agrees to consider and negotiate as to any reasonable
non-material changes to this HOME CHDO Agreement to address such requests, subject to
approval as to form by the City Attorney's Office.
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 Bindinq on All Successors and Assigns Unless otherwise expressly provided
in this HOME CHDO Agreement, all the terms and provisions of this HOME CHDO
Agreement shall be binding on and inure to the benefit of the parties hereto, and their
respective heirs, successors, assigns, and legal representatives.
11.4 Counterparts. This HOME CHDO Agreement maybe 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 Relationship. Nothing contained in this HOME CHDO
Agreement, nor any act of the CITY or of the DEVELOPER, or of any other person, shall in
Page 29 of 37
DOC #2023-0115109 Page 32 of 74
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. Certain planning, land use, zoning and
other permits and public actions required in connection with the Project including, without
limitation, the approval of this HOME CHDO Agreement, the environmental review and
analysis under NEPA or any other statute, and other transactions contemplated by this
HOME CHDO Agreement are discretionary government actions. Nothing in this HOME
CHDO 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 HOME CHDO Agreement shall be effective upon the date
first above written, upon the CITY and the DEVELOPER's complete execution following City
Council approval and recordation of related documents.
11.8 Entire Agreement. This HOME CHDO Agreement represents the entire and
integrated agreement of the parties with respect to the subject matter hereof. This HOME
CHDO Agreement supersedes all prior negotiations, representations or agreements, either
written or oral.
11.9 Exhibits. Each exhibit and attachment referenced in this HOME CHDO
Agreement is, by the reference, incorporated into and made a part of this HOME CHDO
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 HOME CHDO 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 HOME CHDO
Agreement, including execution, interpretation, performance, and enforcement. Venue for
filing any action to enforce or interpret this HOME CHDO Agreement will be Fresno,
California.
11.12 Headings. The headings of the articles, sections, and paragraphs used in this
HOME CHDO 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 HOME CHDO Agreement in its fully executed form is the
result of the combined efforts of the DEVELOPER and the CITY. Any ambiguity will not be
construed in favor or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
11.14 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
Page 30 of 37
DOC #2023-0115109 Page 33 of 74
withheld or delayed. Notwithstanding the foregoing, upon prior written notice to the CITY,
the DEVELOPER shall be permitted to assign its rights and obligation under this HOME
CHDO Agreement with respect to the Project without the CITY's consent.
11.15 Third-Party 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 HOME CHDO 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 HOME CHDO 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 HOME CHDO 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, its 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: Habitat for Humanity Fresno County, Inc.
Attention: Executive Director
4991 E. McKinley Avenue, Suite 123
Fresno, CA 93727
11.19 Precedence of Documents. In the event of any conflict between the body of
this HOME CHDO Agreement and any exhibit or attachment hereto, the terms and conditions
of the body of this HOME CHDO Agreement will control.
Page 31 of 37
DOC #2023-0115109 Page 34 of 74
11.20 Recording of Documents. The DEVELOPER agrees to cooperate with the
CITY and execute any documents required, promptly upon the CITY's request, and to
promptly effectuate the recordation of this HOME CHDO Agreement, the Declaration of
Restrictions, the Deed of Trust, and any other documents/instruments that the CITY requires
to be recorded, in the Official Records of Fresno County, California, consistent with this
Agreement.
11.21 Remedies Cumulative. All powers and remedies given by this HOME CHDO
Agreement shall be cumulative and in addition to those otherwise provided by law.
11.22 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.
Page 32 of 37
DOC #2023-0115109 Page 35 of 74
IN WITNESS WHEREOF,the parties have executed this HOME CH DO Agreement in
Fresno, California, the day, and year first above written.
CITY OF FRESNO, HABITAT FOR HUMANITY FRESNO
A California municipal c poration COUNTY, INC.,
a California corporation
By:
Name: qeqrgeanne A.White,
Title: Ci anager By:
(Attach notary certificate of acknowledgment)
Name: Ashley Hedemann
Title: Executive Director
APPROVED AS TO FORM: (Attach notary certificate of acknowledgment)
ANDREW JANZ
City Attorney Date:
Name: Tracy N. arvanian BY
Title: Supervi 'n Deputy City Attorney Na . Steve Jones`
Title: Board President
ATTEST: Date:
TODD STERMER, CMG
City Clerk
By: 12. 1
Name: C,,ite. ,t arroo
Title: Deputy City Clerk
Attachments:
EXHIBIT A: PROPERTY DESCRIPTION
EXHIBIT B: PROJECT DESCRIPTION AND SCHEDULE
EXHIBIT C: PROJECT BUDGETAND CASH FLOW STATEMENT
EXHIBIT D: EXEMPLAR DECLARATION OF RESTRICTIONS
EXHIBIT E: EXEMPLAR CERTIFICATE OF COMPLETION
EXHIBIT F: EXEMPLAR PROMISSORY NOTE
EXHIBIT G: EXEMPLAR DEED OF TRUST
EXHIBIT H: HOMEBUYER WRITTEN AGREEMENT
Page 33 of 37
DOC #2023-0115109 Page 36 of 74
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 December 11, 2023 before me, Collette Barrios, Senior Deputy City Clerk , personally
appeared, Georgeanne 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.
WITNESS my hand and official seal
Todd Stermer, CIVIC t
City Clerk, City of Fresno
By �C
Collette Barrios, Senior Deputy City Clerk
Page 34 of 37
DOC #2023-0115109 Page 37 of 74
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Fresno )
On November 17,2023 before me, Stacey Marie Simpson,Notary Public ,
Date Here Insert Name and Title of the Officer
personally appeared Ashley Hedemann
Name(s)of Signer(s)
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.
e STACEY MARIE SIMPSON WITNESS my ha offici seal.%AP
a• Notary Public-California
M Fresno County
Commission#233053!!L41
� •"� My Comm.Expires Jul 27, Signat
S ature o tary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s):
❑Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑General
❑Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact
❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
02015 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907
Page 35 of 37
DOC #2023-0115109 Page 38 of 74
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California )
County of Fresno )
On November 16,2023 before me, Stacey Marie Simpson,Notary Public ,
Date Here Insert Name and Title of the Officer
personally appeared Steve Jones
Name(s)of Signer(s)
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
rM STACEY MARIE SIMPSON is true and correct.
NotaryPublit-California WITNESS my hand and official seal.
Fresno County
Z = Commission N 2330535
"�F •"' My Comm.Expires Jul 27,2024+ —
Signature
Sig ure r
ry Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s):
❑ Partner — ❑Limited ❑General ❑Partner — ❑ Limited ❑General
❑Individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact
❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
02015 National Notary Association -www.NationaiNotary.org - 1-800-US NOTARY(1-800-876-6827) Item#5907
Page 36 of 37
DOC #2023-0115109 Page 39 of 74
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 OFa1�- �� )SS
COUNTY OF -1Q51A f )
On V-V t t f � ,before me,
Notary Public,personally appeared (
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
MW SOMN
NOTMr Pueuc-cNjr%ff"xr+
M IW CO N
Signature My 0em,2xp,AUGUM A,2027
This area for official notarial seal
Page 37 of 37
DOC #2023-0115109 Page 40 of 74
EXHIBIT "A"
LEGAL DESCRIPTION
477-123-06
APN 477-123-06 MORE PARTICULARLY DESCRIBED AS THAT PORTION OF LOT 17 OF THE CALIFORNIA
HEIGHTS ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 12,PAGE 51 OF PLATS,FRESNO
COUNTY RECORDS,DESCRIBED AS FOLLOWS;WEST HALF OF TIME NORTH 135 FEET OF LOT 17 OF
SECTION 17,TOWNSHIP 14 SOUTH,RANGE 20 EAST,MOUNT DIABLO BASE AND MERIDIAN.
EXCEPTING THEREFROM THE SOUTH 15 FEET.IN THE CITY OF FRESNO.
DOC #2023-0115109 Page 41 of 74
EXHIBIT "B"
PROJECT DESCRIPTION AND SCHEDULE
I. PROJECT DESCRIPTION
The Project consists of the construction of one single-family wood framed, detached house
to be located at 64 Atchison Street, Fresno, CA 93706, and related on-site and offsite
improvements. The house will be sold as affordable housing and will be occupied by a Low-
to Moderate-Income household.
The DEVELOPER will construct one (3bed/2bath) 1,200 square foot house at the subject
site. The eligible homebuyer will have an annual income of not more than 80% of area
median income and will invest 500 hours of sweat-equity hours toward construction of their
house.
Once the house is constructed, it will be sold through escrow to Low- to Moderate-Income
homebuyer. The homebuyer may receive all or a portion of the Loan Amount as mortgage
assistance. If only a portion is used for mortgage assistance, Habitat for Humanity will be
responsible for the loan balance.
II. PROJECT SCHEDULE
A. Commencement of Construction: January 31, 2024
B. Completion of Construction: September 15, 2024
C. Sale of the House to the Homebuyer: October 1, 2024
10/7- q DOC #2023-0115109 Page 42 of 74
RESIDENTIAL DEVELOPMENT BUDGET (10A)
Atchison
9/18/2023
. Fund�ri�Sources
Description a City HOIUfi:,Funds, Hal stet re na ' NOtES
Acquisition Costs:
Purchase Price $1,500 $0 $1,500
Liens $0 $0 $0
Closing,Title&Recording Costs $8,000 $0 $8,000
Extension Payment $0 $0 $0
Other: $0 $0 $0
SUBTOTAL $9,500 $0 $9,500
Construction
Basic Construction Contract $204,050 $152,844 $51,206
Bond Premium $9,000 $0 $9,000
Infrastructure Imp: On-Site $35,500 $35,000 $500
Infrastructure Imp: Off-Site $38,725 $0 $38,725
Hazardous Abate.&Monitoring $0 $0 $0
Construction Contingency $17,375 $0 $17,375 9% of Basic Construction Contract
Sales Taxes $0 $0 $0
Other Const.Costs: Project Mgmt $39,375 $0 $39,375 19% of Basic Construction Contract
Other Construction Costs: $0 1 $0 $0
SUBTOTAL $344,025 $187,844 $156,181
Development
Appraisals $1,100 $0 $1,100
Architect/Engineer $15,200 $15,200 $0
Environmental Assessment $7,200 $7,200 $0
Geotechnical&Soils Study $1,929 $1,929 $0
Boundary&Topographic Survey $0 $0 $0
Legal $2,000 $0 $2,000
Developer Fee $47,848 $0 $47,848 loin of Total Project Costs
Project Management $0 $0 $0
Technical Assistance $0 $0 $0
Consultants $5,743 $0 $5,743
SWPPP Plan Costs $0 $0 $0
SUBTOTAL $81,020 $24,329 $56,691
Other Development
Property Tax $500 $0 $500
Insurance $0 $0 $0
Bidding Costs $0 $0 $0
Permits, Fees&Utility Hookups $16,200 $16,200 $0
Impact/Mitigation Fees $25,300 $25,300 $0
Development Period Utilities $3,100 $0 $3,100
Construction Loan Fees $13,758 $0 $13,758
Construction Warranty Costs $0 $0 $0
Other Loan Fees(State HF,etc.) $0 $0 $0
LIHTC Fees $0 $0 $0
Accounting/Audit $13,889 $0 $13,889 7% of Basic Const.Contract(Note A)
Marketing/Loan Orig $19,034 $0 $19,034 9% of Basic Const.Contract(Note B)
Carrying Costs at Rent Up $0 $0 $0
Operating Reserves $0 $0
Replacement Reserves: $0 $0 $0
SUBTOTAL $91,781 $41,500 $50,281
Total Construction Project Costs $526,326 $253,673 $272,653 %split between Funding Sources is based
1 upon the Total Construction Project Costs.
Percentage of Project 100% 48%1 52% Additional info(Note Q.
DOC #2023-0115109 Page 43 of 74
RESIDENTIAL DEVELOPMENT BUDGET (10A)
Atchison
ADDITIONAL NOTES:
A Costs including but not limited to;Construction Loan and HOME agreement implementation,maintenance,and reporting. Processing
general accounting such as: billing vendors,processing staff payroll, monitoring/auditing the project budget,etc.
B Costs including but not limited to; planning&implementing targeted outreach for potential partner families,processing applications,
loan underwriting and escrow documents,homeowner education,monitoring sweat equity,etc.
C $526,326 Avg cost per home Project includes: One-3 Bed/213ath Avg Sq Ft/home: 1,254
DOC #2023-0115109 Page 44 of 74
EXHIBIT "D"
EXEMPLAR DECLARATION OF RESTRICTIONS
Recorded at the Request of
and When Recorded Return to:
City of Fresno
Planning and Development Dept.
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.
APN: 477-123-06
DECLARATION OF RESTRICTIONS
THIS DECLARATION OF RESTRICTIONS (Declaration) is executed as of this day of
2023, by the Habitat for Humanity Fresno County, Inc., a (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 City of Fresno,
County of Fresno, California, 64 Atchison Street, Fresno, CA 93706 (APN: 477-123-06),
which is more particularly described in EXHIBIT "A" — Property Description, attached hereto
and made a part hereof, including the improvements thereon (Property); and
WHEREAS, pursuant to a certain City of Fresno HOME CHDO Investment
Partnerships Agreement dated , 2023, incorporated herein by reference (HOME
CHDO Agreement) and instruments referenced therein, the DECLARANT agrees to utilize,
and 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 one unit as an Affordable Low-to Moderate-
Income unit reserved for a household earning up to 80% of the area median income for the
Fresno Metropolitan Statistical Area (FMSA). The one house shall be a 3bed/2bath unit,
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 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.
DOC #2023-0115109 Page 45 of 74
NOW THEREFORE, the 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 HOME CHDO-Assisted Unit Household information 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. The 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 on the use and
enjoyment of the Property shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are for the benefit and
protection of the 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 CITY. These covenants
and restrictions are as follows:
a. 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 one HOME CHDO-Assisted housing units to be used
as a single-family owner-occupied affordable housing for a Low- to Moderate-Income
Household with an income up to 80% of area median income. Unless otherwise provided in
the HOME CHDO Agreement,the term HOME CHDO-Assisted 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. The Affordable Housing Unit 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.
DOC #2023-0115109 Page 46 of 74
iii. Household Income Requirements. The Affordable Housing Unit
constituting the Project upon the Property 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 the Affordable Housing Unit 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.
Item (a) above is hereinafter referred to as the Covenant and Restriction.
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 unless 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 a HOME CHDO-Assisted Unit 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.
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 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 Attorney'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
DOC #2023-0115109 Page 47 of 74
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 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. Amendments or Modifications. No Amendments or modifications shall be
permitted without the prior written consent of the CITY and the DECLARANT.
12. Recordation. The DECLARANT acknowledges that this Declaration will be file
of record in the County of Fresno Recorder's Office, 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.
DOC #2023-0115109 Page 48 of 74
IN WITNESS WHEREOF, DECLARANT has executed this Declaration of Restrictions
on the date first written above.
DECLARANT:
HABITAT FOR HUMANITY FRESNO COUNTY, INC.,
a California corporation
By:
Name: Ashley Hedemann
Title: Executive Director
(Attach notary certificate of acknowledgment)
Date:
DOC #2023-0115109 Page 49 of 74
EXHIBIT "A"
Legal Description
To Declaration of Restrictions
477-123-06
APN 477-123-06 MORE PARTICULARLY DESCRIBED AS THAT PORTION OF LOT 17 OF THE CALIFORNIA
HEIGHTS ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 12,PAGE 51 OF PLATS,FRESNO
COUNTY RECORDS,DESCRIBED AS FOLLOWS;WEST HALF OF THE NORTH 135 FEET OF LOT 17 OF
SECTION 17,TOWNSHIP 14 SOUTH,RANGE 20 EAST,MOUNT DIABLO BASE AND MERIDIAN.
EXCEPTING THEREFROM THE SOUTH 15 FEET,IN THE CITY OF FRESNO,
DOC #2023-0115109 Page 50 of 74
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 RECORDER'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.
APN: 477-123-06
City of Fresno
By:
Planning and Development Department
Date:
DOC #2023-0115109 Page 51 of 74
Certificate of Completion
APN: 477-123-06
Recitals:
A. By a HOME Investment Partnerships Program, Community Housing Development
Organization Agreement dated , 2023, (HOME CHDO Agreement) between the City of Fresno,
a municipal corporation (CITY), Habitat for Humanity Fresno County, Inc., a California corporation
(DEVELOPER), the DEVELOPER agreed to construct one for sale unit and related on-site and off-site
improvements 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 was recorded on , 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 the CITY to record a Certificate of Completion.
D. The DEVELOPER has asked the 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 CHDO Agreement.
NOW THEREFORE:
1. The CITY certifies that the DEVELOPER commenced construction of the Project on
2023 and completed construction of the Project on 202X 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.
H
DOC #2023-0115109 Page 52 of 74
IN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
^'ay of , 2023.
CITY OF FRESNO
By: Date:
Planning & Development Department
(Attach notary certificate of acknowledgment)
ATTEST: APPROVED AS TO FORM:
TODD STERMER, CMC ANDREW JANZ
CITY CLERK City Attorney
By: By:
Name: Name: Tracy N. Parvanian
Title: Deputy City Clerk Title: Supervising Deputy City Attorney
Date: Date:
HABITAT FOR HUMANITY FRESNO COUNTY, INC.,
a California corporation
By: Date:
Name: Ashley Hedemann
Title: Executive Director
(Attach notary certificate of acknowledgment)
DOC #2023-0115109 Page 53 of 74
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: $253,673.00 Date:
Fresno, California
Promise to Pay. For value received, the undersigned, Habitat for Humanity Fresno County, Inc., a
California Corporation (Borrower), promises to pay to the order of the City of Fresno, a California
municipal corporation (Lender), the sum of Two Hundred Fifty-Three Thousand Six Hundred Seventy-
Three dollars and 00/100 ($253,673.00) along with interest on the unpaid principal at the rate of 2%
per annum, all due and payable on or before (the Borrower Loan Maturity Date)
pursuant to the parties' HOME CHDO Agreement dated , 2023, (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 completed single-family Affordable Unit securing the Note to a Low to
Moderate-Income homebuyer through a purchase escrow (Escrow)that conforms to the HOME CHDO
Agreement and concurrent therewith assigns all or a portion of the Note as mortgage assistance at
0% interest with a lump sum principal only payment due and payable from the homebuyer on, or before
expiration of 30 years 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.
Security. 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-, 2023, 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 the Affordable Housing Unit on the Property. Said Deed
of Trust shall be subject to the terms of the Homebuyer Written Agreement 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
DOC #2023-0115109 Page 54 of 74
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- to Moderate-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 with a term greater than three (3)years, lease-option
contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title
to the Property, or by any other method of conveyance of land interest. If any Trustor is a corporation,
DOC #2023-0115109 Page 55 of 74
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.
H
IN WITNESS WHEREOF, the BORROWER has caused this Promissory Note to be executed
as of the date and year first above written.
HABITAT FOR HUMANITY FRESNO COUNTY, INC.,
a California corporation
By: Date:
Name: Ashley Hedemann
Title: Executive Director
(Attach notary certificate of acknowledgment)
DOC #2023-0115109 Page 56 of 74
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.
A.P.N.:477-123-06
DEED OF TRUST ASSIGNMENT OF RENTS
THIS DEED OF TRUST (Deed of Trust) made this ----day of ;-2023, by and between Habitat
for Humanity Fresno County, Inc., a California corporation (Borrower), Fidelity National Title Company,
a California Corporation (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 (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) known as 64 Atchison Street,
Fresno, CA 93706, located in Fresno County, California and more particularly described in the Attached
EXHIBIT "A", incorporated by reference 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 the Trustee, in trust, with power of sale,
all of the Borrower's right, title and interest now owned or later acquired for and located at the property:
(1) 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 not
DOC #2023-0115109 Page 57 of 74
excluding the general; and
(2) The rents, issues, profits, and proceeds relating to the foregoing; and
(3) The Property to the extent not included on clauses (1) and (2) above.
TO SECURE, in order of priority that the 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 Two Hundred Fifty-Three Thousand Six Hundred
Seventy-Three Dollars and 00/100 ($253,673.00) (Note), payable to the Beneficiary or
order, and all extensions, modifications, or renewals of that Note;
(2) Payment of the interest on that indebtedness according to the terms of the Note;
(3) Payment of all other sums (with interest as provided herein) becoming due and payable
to the Beneficiary or the Trustee pursuant to the terms of this Deed of Trust;
(4) Performance of every obligation contained in this Deed of Trust, the Note, the HOME
Investment Partnerships, Community Housing Development Organization Program
Agreement dated the --- of , 2023 (HOME CHDO Agreement), and its related
documents,the Declaration of Restrictions dated the of ,2023, 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
Borrower as of the same 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 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 encumbered only 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 is in good standing under the laws of the State of California and is
qualified to do business in the State of 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
DOC #2023-0115109 Page 58 of 74
Borrower, or any indenture, agreement, or any other instrument to which the 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 the Borrower, except as contemplated by the provisions of the Loan
Documents; and each of the Loan Documents, when executed and delivered to the 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 of lower-income housing and that the principal purpose of the HOME CHDO
Program Loan is the construction of affordable housing and improvements to the Property.
UNIFORM COVENANTS. The Borrower and the Lender covenant and agree as follows:
1. Payment 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 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 amount, and for such period 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, the Lender is authorized to collect and apply the
insurance proceeds at the 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
DOC #2023-0115109 Page 59 of 74
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, 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 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 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. The 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 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 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-Signers. 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 is: (a) 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, and
(b) not personally liable on the Note or under this Deed of Trust or the Note, without that
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 Beneficiary and any encumbrance permitted in this Deed of Trust, even though
subordinate to the security interest of the 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
DOC #2023-0115109 Page 60 of 74
in the Property, either voluntarily or by operation of law, or agree to do so, without the prior
written consent of the Beneficiary. The 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. If the
Borrower is a partnership any change or addition of a general partner of the Borrower, change
of a partnership interest of the Borrower with the exception of a limited partner transfer, which
shall not require the Beneficiary's consent, or sale, transfer, or disposition of 50% or more of the
voting interest or partnership interest of any general partner of the Borrower or of any
corporation, partnership or entity that directly or indirectly owns or controls any general partner
of the Borrower, including, without limitation, each parent company of a general partner of the
Borrower and each parent company of any parent company of a general partner of the Borrower,
will constitute a sale of the Property for purposes of this section. If the Borrower is a limited
liability company, any change of the manager or any sale, transfer or disposition of 50% or more
of the partnership interests of the Borrower, or disposition of 50% or more of the voting interest
of the Borrower or of any corporation, partnership or entity that directly or indirectly owns or
controls any member of the Borrower, including without limitations, each parent company of the
Borrower and each parent company of any parent company of a member of the Borrower, will
constitute a sale of the Property for purposes of this section. 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 the 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 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 copy of the Note and a conformed copy of
the recorded Deed of Trust at the time of execution or after recordation thereof.
NON-CONFORMING COVENANTS. Borrower and 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 HOME Program restrictions, the Lender, prior to acceleration
DOC #2023-0115109 Page 61 of 74
shall give notice to the Borrower as provided in paragraph 10 hereof specifying: (1) the breach;
(2) the action required to cure such breach; (3) a date, not less than ten days from the date
notice is mailed to the Borrower, by which such breach must be cured or 30 days for a non-
monetary default; 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, persons, entity 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 Borrower contained in this Deed of Trust; (c) the Borrower pays all reasonable
expenses incurred by the Lender and Trustee in enforcing the covenants and agreements of
Borrower in paragraph 13 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, 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.
DOC #2023-0115109 Page 62 of 74
15. Nonrecourse. The sole recourse of the Lender under the Loan Documents for repayment of the
Note shall be the exercise of its rights against the Property.
16. Lien of Deed of Trust. The Beneficiary agrees that the lien of this Deed of Trust shall be
subordinated to any senior lender low-income housing commitment (as such term is defined in
Section (42(h)(6)(B) of the internal Revenue Code) (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, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code.
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. At the Lender's option, the Lender 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, Trustee and 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 fifty dollars and 00/100
($50.00) 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's limited partners 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's
authorized representatives 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, and if the Borrower's limited partners reasonably believe that in order to cure such
default. 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 the 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 the Beneficiary.
DOC #2023-0115109 Page 63 of 74
(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 the 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,
Beneficiary, any tenants of the Borrower, and anyone 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 the 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 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
the Trustee or the 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 the Beneficiary's rights and remedies; or
DOC #2023-0115109 Page 64 of 74
(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, the 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 Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of
Beneficiary or Trustee is prior or senior 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.
DOC #2023-0115109 Page 65 of 74
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:
HABITAT FOR HUMANITY FRESNO COUNTY, INC.,
a California corporation
By: Date:
Name: Ashley Hedemann
Title: Executive Director
(Attach notary certificate of acknowledgment)
DOC #2023-0115109 Page 66 of 74
EXHIBIT "A"
Legal Description
To Deed of Trust
477-123-06
APN 477-123-06 MORE PARTICULARLY DESCRIBED AS THAT PORTION OF LOT 17 OF THE CALIFORNIA
HEIGHTS ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 12,PAGE 51 OF PLATS,FRESNO
COUNTY RECORDS,DESCRIBED AS FOLLOWS;WEST HALF OF THE NORTH 135 FEET OF LOT 17 OF
SECTION 17,TOWNSHIP 14 SOUTH,RANGE 20 EAST,MOUNT DIABLO RASE AND MERIDIAN.
EXCEPTING THEREFROM THE SOUTH 15 FEET.IN THE CITY OF FRESNO.
DOC #2023-0115109 Page 67 of 74
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 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 (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 to do so 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
DOC #2023-0115109 Page 68 of 74
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 it
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 its 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, the 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 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
DOC #2023-0115109 Page 69 of 74
take possession of said property or any part thereof, in its 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
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, the 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 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, 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 the Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address of the new Trustee.
DOC #2023-0115109 Page 70 of 74
(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 the 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. The 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 the 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.
DOC #2023-0115109 Page 71 of 74
EXHIBIT "H"
HOMEBUYER WRITTEN AGREEMENT
HOME Investment Partnerships Program
Homebuyer Agreement for Mortgage Assistance
NOTICE TO HOMEBUYER: This Agreement contains requirements you must fulfill in
exchange for the federal assistance you are receiving through the HOME Investment
Partnerships Program (HOME Program). You should read each paragraph carefully and
ask questions regarding any sections you do not fully understand. This Agreement will
be enforced through a loan and mortgage as set forth in Section 1 below. You should
be sure that you thoroughly understand these documents before you sign them.
This Agreement is entered into this , 2023 by and between
., an individual (herein referred to as HOMEBUYER) and the City of
Fresno, a municipal corporation (herein referred to as CITY), to provide low-income homebuyer
mortgage assistance through funding made available to the CITY from the United States
Department of Housing and Urban Development(HUD), HOME Program. The HOME Program
assistance enables HOMEBUYER to purchase the residence located at
, Fresno, California. The house must remain HOMEBUYER's
principal place of residence during the entire period of time covered by this Agreement.
Section 1: Scope of Program
The CITY will loan the HOMEBUYER the sum of (Loan),
which was provided to the CITY through the HOME Program as a developer subsidy, thus
providing for the construction of the house and after transfer of the completed house to the
HOMEBUYER represents a direct mortgage subsidy to the HOMEBUYER. The Loan will be
protected by mortgage recorded on the property. The Promissory Note and Deed of Trust will
be released once the loan is paid in full.
Section 2: Affordability Period
The period of affordability for the house will be 30 years, based on the amount of the direct
subsidy to the HOMEBUYER. During this thirty 30-year period of affordability, the
HOMEBUYER must always maintain the house as his/her principal place of residence. The
HOMEBUYER should be aware that according to HUD regulations at 24 CFR Part 92, the
period of affordability does not begin until the activity is shown as completed in the HUD's
Integrated Disbursement and Information System (IDIS). Therefore, the 30-year period of
affordability shall begin at the recordation of the Commencement of Affordability, which a
conformed copy shall be provided to the HOMEBUYER. At the end of the 30-year period of
affordability, the Declaration of Restriction will be released.
Section 3. Loan and Interest Rate
The CITY will provide federal HOME Program funds in the form of a 30-year mortgage at 0%
interest to the HOMEBUYER in the sum of ($000.00).
The HOME mortgage assistance in the form of a Promissory Note will be secured by a Deed
of Trust recorded against the property. The HOMEBUYER understands and agrees that the
Promissory Note secured by a Deed of Trust is made for the sole purpose of assisting the
HOMEBUYER in the purchase of the HOMEBUYER's house as the principal place of
residence.
Therefore, the HOMEBUYER understands and agrees that the Promissory Note secured by
this Deed of Trust shall be immediately due and payable upon the earlier of: (1) any change
DOC #2023-0115109 Page 72 of 74
in residency of the HOMEBUYER from the HOMEBUYER's house which is used as security
for the Note described above, unless having obtained the written consent of the CITY; or (2)
the sale or transfer, without the CITY'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 CITY and the HOMEBUYER 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 HOMEBUYER.
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 low-income households or otherwise restricting the HOMEBUYER'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/her successors or assigns (other than
the HOMEBUYER or a related entity of the HOMEBUYER), 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.
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.
Section 4. Use of HOME Funds
The Loan provided to the HOMEBUYER was initially provided to the Developer as a
construction loan for the construction of the house located at , Fresno,
California. Developer's construction loan subsequently converted to a mortgage assistance
loan at the transfer of the property title through escrow to the HOMEBUYER, thus representing
a direct mortgage subsidy assistance to the HOMEBUYER.
Section 5. Principal Residence Requirement
This Agreement shall remain in force throughout the 30-year period of affordability so long as
the house remains the principal residence of the HOMEBUYER. The house shall remain the
HOMEBUYER's principal place of residence for the entire 30-year period of affordability as
evidence by the fully executed and recorded Declaration of Restrictions which contains the
affordability covenants which shall run with the land and be recorded against the property.
Should the HOMBUYER not maintain the house as his/her principal place of residence, or rent
or sell the residence to another party, the HOMEBUYER will be in default of this Agreement
and will be required to repay any amount of the HOME loan outstanding as of the date the
house is no longer the principal place of residence of the HOMEBUYER.
DOC #2023-0115109 Page 73 of 74
Section 6. Recapture Agreement
The CITY requires that HOME funds be recaptured if the house does not continue to be the
HOMEBUYER'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 30-year period of affordability. If
the net proceeds are not sufficient to recapture the full HOME investment plus enable the
HOMEBUYER to recover the amount of the HOMEBUYER's down payment and any capital
improvement investment made by the HOMEBUYER since purchase, the CITY may share the
net proceeds. The net proceeds are the sales price minus superior loan repayment(other than
HOME funds) and any closing costs.
In the event of foreclosure, the amount subject to recapture is based on the amount of net
proceeds (if any) from the foreclosure sale. The net proceeds may be divided proportionally
as set forth in the following mathematical formulas:
HOME investment x Net = HOME recaptured
proceeds
HOME investment +
homeowner investment
Homeowner investment x Net = amount to homeowner
proceeds
HOME investment +
homeowner investment
Section 7. Low-Income Homebuyer
The HOMEBUYER attests, and the CITY has verified, that the HOMEBUYER qualifies as a
low-income individual or household as defined in the HOME Program regulations and has a
total income that does not exceed 80% of the Area Median Income for Fresno County as
defined by HUD.
Section 8. Appraised Value of Housing Determined to be Modest
The CITY certifies that the property appraiser has appraised the value of the house located at
Fresno, California, that is subject of this Agreement is [$ 1.
The CITY has verified that the purchase price of the house does not exceed 95% of the median
purchase price of the area, as set forth in 24 CFR Part 92.254(a)(2)(iii).
Section 9. Insurance Requirement
The HOMEBUYER must at all times during the duration of the Agreement maintain a valid and
current insurance policy on the house for the current appraised or assessed value of the house.
Failure to maintain a valid and current insurance policy will be considered a breach of this
Agreement, and the CITY will have the right to foreclose on its mortgage lien if necessary to
protect the HOME Program investment.
Section 10. Property Standards
Pursuant to the HOME Program rules, the property located at Fresno,
California must meet all State and local housing quality standard and CITY code requirements.
If no such standards or codes apply, the property must at a minimum meet the HUD Section 8
Housing Quality Standards/Uniform Physical Conditions Standards.
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DOC #2023-0115109 Page 74 of 74
HOMEBUYER
an individual Date
(Attach notary certificate of acknowledgment)
CITY OF FRESNO,
A California municipal corporation
By:
Name: Georgeanne A. White,
Title: City Manager
(Attach notary certificate of acknowledgment)
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Name: Tracy N. Parvanian
Title: Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Name:
Title: Deputy City Clerk