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HomeMy WebLinkAboutSelf-HelpSelf-Help Enterprises Disposition & Development Agmnt 10.26.2020 RECORDED AT THE REQUEST OF CITY OF FRESNO IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO 848 M Street, Third Floor Fresno, CA 93721 Attn: Executive Director WHEN RECORDED RETURN TO: CITY CLERK 2600 FRESPdO STREET FRESNO,CA 93721-3603 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) This Agreement is recorded at the request and for the benefit of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. Cr�)`-�� CITY OF FRESNO, a municipal dr{�— vl(ck If`I- corporation, in its capacity as Housing Successor to the Redevelopment Agency By'� {• -t;C.� r Marlene Murphey Its: Executive Director Dated: I �� DISPOSITION AND DEVELOPMENT AGREEMENT By and Between THE CITY OF FRESNO a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno and SELF-HELP ENTERPRISES a California non-profit public benefit corporation DISPOSITION AND DEVELOPMENT AGREEMENT by and among CITY OF FRESNO a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno and SELF-HELP ENTERPRISES a California non-profit public benefit corporation Florence and Walnut Avenues Affordable Housing Project Fresno, California 93706 ATTACHMENTS Exhibit A Site Map Exhibit A-1 Legal Description Exhibit B Scope of Development and Basic Design Exhibit C Performance Schedule Exhibit D Sources & Uses Exhibit E Certificate of Completion Exhibit F Grant Deed Exhibit G Affordability Restrictions Exhibit H Affordability Restrictions Exhibit I Promissory Note Exhibit J Deed of Trust DISPOSITION AND DEVELOPMENT AGREEMENT This Disposition and Development Agreement (DDA or Agreement) is entered into as of the Effective Date (defined below), between CITY OF FRESNO, a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno (FHS) and Self-Help Enterprises, a California non-profit public benefit corporation (the Developer). RECITALS The parties enter this Agreement based on the following facts, understandings, and intentions: A. FHS currently owns one parcel at the southwest corner of Florence and Walnut Avenues and seven parcels at the northwest corner of Florence and Plumas, Fresno, California, more particularly described in Exhibit A (Site Map) and Exhibit A-1, (legal description) attached (the Property). B. Developer proposes to acquire the Property from FHS to develop affordable homeownership housing opportunities, as more particularly described in the Scope of Development and Section 1.19, attached as Exhibit B (the Project). C. Developer agrees to undertake improvements in accordance with the combined Performance Schedule described in Exhibit C attached hereto and incorporated herein (the Performance Schedule). D. This project has been environmentally assessed under the California Environmental Quality Act (CEQA) and is categorically exempt pursuant to Article 19, Section 15332 (Class 32-infill) of the California Environmental Quality Act (CEQA). AGREEMENT In consideration of the mutual promises and covenants and upon the terms and conditions set forth in this Agreement, the parties agree as follows.- 1. DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the following definitions will govern the construction, meaning, application, and interpretation of the defined terms, as used in this Agreement. 1.1 ADA. "ADA" means the Americans with Disabilities Act of 1990. 1.2 Agreement. "Agreement" means this Disposition and Development Agreement between City and Developer. 1.3 Certificate of Completion. "Certificate of Completion" means that Certificate issued in the form attached as Exhibit D to Developer by FHS evidencing completion of the Project, or any Phase thereof, for purposes of this Agreement. 1.4 Cam. "City" means the City of Fresno, a municipal corporation, having its offices at 2600 Fresno Street, Fresno, California 93721-3605, and operating through its Council and its various departments. 1.5 Closing. Close or Close of Escrow. "Closing," "Close" or "Close of Escrow" means the closing of the escrow in which FHS conveys a fee interest in the Property to Developer. 1.6 Day. "Day," whether or not capitalized, means a calendar day, unless otherwise stated. 1.7 Default. "Default" means a party's failure to timely perform any action or covenant required by this Agreement following notice and opportunity to cure. 1.8 Developer. "Developer" means Self-Help Enterprises, a California non- profit public benefit corporation. 1.9 Effective Date. "Effective Date" means the date that FHS signs this Agreement (including attestation by the Clerk), after Developer signs it. 1.10 Environmental Laws. "Environmental Laws" means any federal, state, or local law, statute, ordinance or regulation concerning environmental regulation, contamination or cleanup of any Hazardous Materials or Waste including, without limitation, any state or federal lien or "superlien" law, any environmental cleanup statute or regulation, or any governmentally required permit, approval, authorization, license, variance or permission. 1.11 Escrow. "Escrow" means the escrow opened with Escrow Holder for City to convey a fee interest in the Property to Developer. 1.12 Escrow Holder. "Escrow Holder" means Fidelity National Title, 7485 N. Palm Ave., Fresno, California 93711, Attn: Bernadette Watson, or another title company mutually satisfactory to both parties. 1.13 FHS. "FHS" means the City of Fresno acting in its capacity as Fresno Housing Successor, having its offices at 848 M Street Third Floor, Fresno, California 93721. 1.14 Hazardous Materials. "Hazardous Materials" means any substance, material, or waste, which is or becomes regulated by any local governmental authority, the State of California, or the United States Government including, without limitation, any material or substance, which is: (a) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117, or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, (b) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, (c) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, (d) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, (e) petroleum, (f) friable asbestos, (g) polychlorinated biphenyl, (h) listed under Article 9 or defined as "hazardous" or "extremely hazardous" under Article 11 of Title 22, California Administrative Code, (i) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), Q) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq., or (k) defined as "hazardous substances" pursuant to Section of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9601, etseq.); provided, however, hazardous materials shall not include: (1) construction materials, gardening materials, household products, office supply products or janitorial supply products customarily used in the construction, maintenance, rehabilitation, or management of residential rental housing, mixed-use, or commercial developments or associated buildings or grounds, or typically used in household activities in a manner typical of other residential, mixed-use or commercial developments which are comparable to the Improvements; and (2) certain substances which may contain chemicals listed by the State of California pursuant to Health and Safety Code Section 25249, et seq., which substances are commonly used by a significant portion of the population living within the region of the Property, including, but not limited to, alcoholic beverages, aspirin, tobacco products, NutraSweet, and saccharine. 1.15 Improvements. "Improvements" means the construction of the Project on the Property. 1.16 Outside Date. "Outside Date" means April 30, 2021, the last date on which the parties are willing to Close the Escrow. 1.17 Performance Schedule. "Performance Schedule" means the schedule attached as Exhibit C, setting forth the dates and times by which the parties must accomplish certain obligations under this Agreement. The parties may revise the Schedule from time to time on mutual written agreement of Developer and City, but any delay or extension of the completion date is subject to the requirements in this Agreement. 1.18 Phase. "Phase" means a stage or portion of the Project designated by Developer for construction. A Phase may not consist of less than an entire residential structure. 1.19 Project. "Project" means the development that Developer is to complete on the Property and any off-site improvements, as generally described in the Scope of Development, attached as Exhibit B. The Project includes affordable residential units consisting of approximately 16 single-family homes (the "Self-Help Homeownership Program" and "Infill New Construction Program" and collectively referred to as "the Programs"). The income targets for the project will be approximately 40% of the units for families at approximately 60% AMI or below and approximately 60% for families at approximately 80% AMI or below. The Project includes, without limitation, single family homes, associated on-site improvements, and any off-site improvements that the FHS may require as a condition to approving the Project. The Project may be developed and constructed in two or more Phases as shown in Exhibit C. 1.20 Project Completion Date. "Project Completion Date" means the date that FHS shall have determined the Project, or any Phase thereof, has reached completion in accordance with the plans and specifications in the Development Schedule, as evidenced by FHS's issuance of a Certificate of Completion. 1.21 Property. "Property" means the real property described in Exhibit A and Exhibit A-1 and generally consists of approximately 3.06 acres including 2.24 acres at the northwest corner of Florence and Plumas and approximately 0.82 acres at the southwest corner of Florence and Walnut. 1.22 Security Financing Interest. "Security Financing Interest" means a security interest, which Developer grants in its interest in the Property, before FHS issues and records a Release of Construction Covenants, to secure a debt, the proceeds of which Developer uses to construct the Project. 2. CONVEYANCE OF THE PROPERTY. FHS will convey the Property to Developer on the conditions set forth herein. 2.1 Purchase Price. FHS will contribute the Property to the Project. The Property's fair market value is estimated at $19,900/lot or $318,400. 2.2 Escrow. Within 30 days after the Effective Date of this Agreement, FHS and the Developer will open an Escrow with the Escrow Holder, and deposit a signed copy of this Agreement as their initial joint escrow instructions. FHS and the Developer will sign any supplemental escrow instructions, consistent with this Agreement that the Escrow Holder or either party hereto deems necessary or appropriate. This Agreement will control any inconsistency that may exist between this Agreement and the supplemental escrow instructions. The parties authorize the Escrow Holder to act under the escrow instructions and, after the Escrow Holder accepts the instructions in writing, it will carry out its duties as Escrow Holder under this Agreement. 2.3 Timing of Closing FHS and Developer may close escrow on the Property upon satisfaction of the conditions in 2.4. Property Closing shall occur within 60 days of recordation of the Final Parcel Map for the property being developed in the Infill New Construction Program (APN 477-162-01T). FHS and Developer may close escrow on the property being developed for the Self Help Ownership program (APN 477-145-30T, APN 477-145-31T, APN 477-145-32T, APN 477-145-33T, APN 477-145-42T, APN 477- 145-45T, APN 477-145-44T) within 60 days of recordation of the final parcel map or lot split and when the Developer submits evidence that all approvals have been obtained from the City for the off-site and site work, and all financing for the project is obtained. Required approvals as a condition of close shall not include building permits for the individual housing units for the Self-Help Homeownership program parcels. The Developer shall be allowed to close in phases as shown in Exhibit C. 2.4 Conditions Precedent to Closing Escrow. The following are conditions precedent to FHS's obligations to close the Escrow and convey the Property to the Developer and the Developer's obligation to accept conveyance of the Property from FHS. These conditions must be satisfied by the time stated or, if no time is stated, then by the Outside Date set for the Closing. 2.4.1 FHS Conditions. The Closing is subject to the fulfillment of each of the conditions precedent described below, which are solely for the benefit of FHS and which shall be fulfilled consistent with the Exhibit C Performance Schedule, or waived prior to close of escrow: A. Developer has delivered to FHS, and FHS has approved the form and content of, certificates of insurance for all insurance that this Agreement requires Developer to obtain and maintain. B. Developer has given written notice to FHS that it has inspected the Property and accepts the Property in AS IS condition. If the Developer, after its inspection of the Property and review of any environmental reports, disapproves the Property's environmental or other condition, and FHS is either unwilling or unable to cure the condition to which the Developer objects, then the Developer or FHS may terminate this Agreement by written notice to the other party and without liability for breach or otherwise. C. Developer is not in default of this Agreement and all representations and warranties of Developer contained herein are true and correct in all material respects. D. Developer has entered into, and provided FHS copies of agreements with any and all funding sources for each Phase of the Project. All such funding source agreements shall contain a provision whereby the party(ies) to each such agreement, other than Developer, agree to make reasonable efforts to (i) notify FHS immediately of any event of default by Developer under such agreement; (ii) notify FHS immediately of termination or cancellation of such agreement; and (iii) provide FHS, upon FHS's request, an estoppel certificate certifying that such agreement is in full force and effect and Developer is not in default under such agreement. If the Developer utilizes its own private capital for portions of the development work, the Developer shall submit evidence that funds are available in a form acceptable to the FHS. E. For the Property, Developer has submitted evidence that the combined monies from the funding sources are not less than the greater of the total development cost of the Project or the amount which FHS determines is necessary to complete the Project, including evidence of a loan commitment for such funding sources acceptable to FHS. If FHS determines that said funds are not sufficient, this condition may be satisfied as agreed to by Developer and FHS in writing. F. Developer will have received all land use and development approvals, variances, permits and the like, if any, required by this Agreement. The Developer may proceed with site and off-site work in advance of construction of the individual homes, in which case a building permit shall not be required to close escrow. 2.4.2 Developer Conditions. The Closing is subject to the fulfillment or waiver by the Developer of each of the conditions precedent described below, which are solely for the benefit of the Developer and which shall be fulfilled consistent with the Exhibit C Performance Schedule, or waived prior to close of escrow. A. Developer has approved the condition of title to the Property pursuant to this paragraph A. FHS shall obtain a preliminary title report and transmit a copy to Developer not later than fifteen days following the Effective Date. Developer shall notify FHS in writing within fifteen days after receipt of a copy of the preliminary title report whether it approves the condition of title. Developer's failure to give such notice within fifteen days will be deemed approval of the condition of title. If Developer notifies FHS that it disapproves any title exception, FHS may, but is not obligated to, remove that title exception within fifteen days after receipt of Developer's written notice. If FHS cannot or does not elect to remove any disapproved title exception or give assurance of removal satisfactory to Developer within that period, Developer will have ten business days after the expiration of such fifteen day period to either give FHS written notice that Developer elects to purchase the Property subject to the disapproved title exceptions or to terminate this Agreement. The exceptions to title approved by Developer as provided herein shall be referred to as the "Condition of Title." The Developer shall have the right to approve or disapprove any further exceptions reported by the title company after the Developer has approved the Condition of Title for the Property (which are not created by the Developer). The FHS shall not voluntarily create any new exceptions to title following the date of this Agreement and prior to the Closing. B. Because FHS will convey fee title of the Property to Developer "AS IS,"with all faults, except as specifically provided herein, for a period of 90 days after the Effective Date of this Agreement (the "Review Period"), Developer or its designated representatives may conduct tests, investigations and inspections of the Property in all matters relating to the Property, including, but not limited to, the physical condition or state of the Property and improvements thereon, environmental conditions, including Phase I and Phase II environmental assessments, and all other matters relating to the Property or any improvements thereon or affecting Developer or the feasibility of the Property for the Project(Due Diligence Investigation). If, for any reason, Developer is dissatisfied, in Developer's sole and absolute discretion, with the results of the Due Diligence Investigation, Developer shall provide written notice of disapproval of the Due Diligence Investigation to the FHS and Escrow Holder. Such written notice of disapproval shall be provided prior to the expiration of the Review Period, and will constitute Developer's notice to terminate pursuant to Section 2.4.3, below. Developer has the right to enter the Property to conduct the Due Diligence Investigation on the following conditions: (a) the tests, investigations and inspections are conducted without cost or expense to FHS, (b) the tests, investigations and inspections do not unreasonably interfere with FHS's possession or use of the Property, and (c) Developer will assume responsibility for any loss or liability and for any damage to the Property to the extent resulting from conducting the tests, investigations or inspections. Within thirty days from the Effective Date, FHS shall deliver to Developer any and all then-existing plans, engineering reports, surveys, maps, soil or seismic reports, grading plans, environmental reports and assessments, and other studies, reports, correspondence or materials concerning the Property or any improvements thereon (the "Materials"). The Materials may include, without limitation, the following: (i) copies of any environmental reports or environmental site assessments or any other report relating to toxic or hazardous materials or the environmental condition of the Property or improvements; (ii) engineering studies, maps and cost reports (sewer, water, hydrology, storm drain, flood control, FEMA, utilities, traffic and noise); (iii) soils, geology and seismic reports; (iv) covenants, conditions and restrictions, if any, regarding the Property; (v) archaeological studies and reports; (vi) to the extent not described above, grading, erosion control, water, sewer, storm drain, street improvement, landscape and utility improvement plans; (vii) any other documents or materials which FHS possesses or which are reasonably available to FHS and which Developer requests in writing or FHS determines, in its reasonable judgment, are significant to the evaluation or use of the Property. FHS makes no representation or warranty concerning, and will have no liability or responsibility for, the Materials or the information contained therein. Should the Developer need to update Due Diligence materials as a condition of any financing source, the Developer shall be authorized to enter the site and conduct due diligence prior to the Closing. C. FHS shall not be in default of any provision of this Agreement and all representations and warranties of FHS contained herein are true and correct in all material aspects. D. There shall be no litigation pending with respect to this Agreement, any land use, zoning, development or building permits or entitlements for the development contemplated by this Agreement or encumbering title to the Property, the outcome of which could materially interfere with the development of the Property as set forth herein. 2.4.3 Termination for Failure of Condition. In the event there is a failure of one or more conditions described in Section 2.4.1 or 2.4.2 that are not waived, the party for whose benefit the condition is established may terminate this Agreement by written notice to the other party prior to the Closing, in which event this Agreement shall terminate and no party shall have any further rights or liability to the other under this Agreement. 2.5 Escrow and Title Costs. FHS shall pay 100% of escrow fees, recording fees, and documentary stamp taxes, if any, to convey the Property to Developer. FHS shall pay for an ALTA standard owner's policy of title insurance with coverage not exceeding the fair market value, insuring the title to the Property as described herein. Any other costs associated with the Escrow shall be paid by FHS according to the custom and practice in Fresno County, as declared by the Escrow Holder. 2.6 Prorations. The Escrow Holder will prorate all ad valorem taxes and assessments, if any, as of the Closing, between FHS and the Developer. If the then- current taxes and assessments are not ascertainable, the Escrow Agent will apportion the taxes and assessments based on the most recent statement of taxes and assessments. Escrow Holder will adjust the proration, if necessary, within 30 days after the actual taxes and assessments are available. Developer will be solely responsible for ad valorem taxes or assessments on the Property, or any taxes on this Agreement or any rights hereunder, which may be levied, assessed or imposed for any period after the Closing. 2.7 Form of Deed. FHS will convey the Property to the Developer by a Grant Deed, substantially in the form attached hereto as Exhibit E. The conveyance and Developer's title will be subject to all conditions, covenants, restrictions and requirements set forth in this Agreement, and the Grant Deed. FHS may separately convey approximately 0.82 acres of the Property located at the southwest corner of Florence and Walnut and the balance of the Property located at the northwest corner of Florence and Plumas. 2.8 Nonmerger. Prior to the issuance of a Certificate of Completion, the provisions of this Agreement will not merge with the Grant Deed. The Grant Deed will not affect, impair, or limit the provisions, covenants, conditions or agreements of this Agreement. 2.9 Possession. FHS will deliver exclusive possession of the Property to Developer at or immediately following the Closing. 2.10 Sale "AS IS" — No Warranties. FHS will convey the Property "AS IS" with all faults, including, without limitation, the conditions disclosed in any toxics reports delivered to Developer, any conditions disclosed in the files of the regulators such as, but not limited to, the Fresno County Health Department, and the Regional Water Quality Control Board, and any environmental or other physical conditions on or under the Property, buried debris or structures, and soil compaction, presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, and the suitability of the Property for the development purposes intended hereunder. 2.11 Ciose of Escrow. The Escrow will close within 30 days after the parties satisfy all the conditions precedent to Closing as set forth in this Agreement, but not later than the "Outside Date," unless the parties mutually agree to extend the time for Closing. 2.12 Authority of Escrow Holder. The parties authorize the Escrow Holder to, and the Escrow Holder will do the following: 2.12.1 Title Policy Premium. Pay and charge FHS for the title insurance premiums described in Section 2.3 of this Agreement. 2.12.2 Pay Fees. Pay and charge FHS for 100% of the escrow fees and closing costs, excluding any costs to correct title exceptions or cure property conditions. FHS and Developer must agree in separate writing or instructions to the Escrow Holder to the allocation of costs to cure title exceptions or property conditions. 2.12.3 Record Grant Deed and Disburse Funds. Record and deliver the Grant Deed to the appropriate party when the conditions precedent to Closing are satisfied or waived. 2.12.4 Actions to Fulfill Obligations_ Take any other action necessary to fulfill its obligations under this Agreement. 2.12.5 FIRPTA and More. Direct the parties to deliver any instrument or to perform any act, necessary to comply with FIRPTA or any similar state act and regulation promulgated thereunder. FHS will sign a Certificate of Non-foreign Status, or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as the Escrow Holder may require. 2.12.6 Closing and Other Statements. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including, without limitation, an IRS 1099-S form, and be responsible for withholding taxes, if the law so requires. 2.12.7 Closing Statements. Escrow Holder will forward to both Developer and FHS a separate accounting of all funds received and disbursed for each party, and copies of all signed and recorded documents deposited into Escrow, with the recording and filing date and information endorsed thereon. 2.12.8 Termination Without Close_ If the Escrow is not in condition to close by the Outside Date, then any party that is not in default of this Agreement, may demand the return of money or property and terminate this Agreement and the Escrow. If either party makes a written demand for return of documents or properties, this Agreement will not terminate until five days after Escrow Holder has delivered copies of the demand to the other party at the respective addresses shown in this Agreement. If the other party objects within the five-day period, the parties authorize the Escrow Holder to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of this Agreement will be without prejudice to whatever legal rights either party may have against the other arising from this Agreement. If no party demands that the Escrow terminate, the Escrow Holder will proceed to Closing as soon as possible. 2.13 FHS's AuthoritV to Sin Instructions and Documents. The Executive Director or designee is authorized to execute any supplemental escrow instructions for FHS that are not a material change hereto. The Executive Director or designee may make minor modifications, not constituting a material change, to this Agreement, exhibits and the documents referenced herein, to effect the opening and Close of the Escrow. 2.14 Access Prior to Conveyance. Prior to the conveyance of title from FHS, representatives of Developer shall have the right of access to the Property at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement. The Developer shall hold FHS harmless for any injury or damages arising out of any activity pursuant to this Section. The Developer shall have access to all data and information on the Property available to FHS, but without warranty or representation by FHS as to the completeness, correctness or validity of such data and information. Any preliminary work, other than work in connection with Developer's Due Diligence Investigation, undertaken on the Property by the Developer prior to conveyance of title thereto shall be done only after written consent of FHS, satisfaction of FHS imposed conditions including without limitation evidence of reasonably required insurance coverage(s), all at the sole expense of the Developer. The Developer shall save and protect FHS against any claims or liens resulting from such preliminary work, access, or use of the Property. Copies of the data, surveys and tests obtained or made by the Developer on the Property shall be filed with FHS. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. 3. FHS ASSISTANCE. 3.1 FHS agrees to provide certain financial assistance to the Developer to assist the Developer in construction costs of the Project. FHS shall provide $680,000 in assistance for the Programs that includes infrastructure improvements and first time home buyer assistance. FHS financial assistance for the Programs shall be payable to Developer when the conditions in Section 2.4.1 are satisfied. FHS shall endeavor to seek secondary financing per single family unit in the Programs from sources such as, but not limited to, CDBG, CaIHOME, or HOME funds. 3.2 Developer may apply for an exemption from payment of City development impact fees pursuant to Fresno Municipal Code. 4. PROJECT DEVELOPMENT 4.1 Private Development Project; Revision of Project. Developer will complete the Project as described in the Scope of Development using contractors licensed to do business in California except where provision of state code allows for owner-builder exemptions. Except as set forth in this Agreement, before Developer begins constructing the Improvements or undertakes any other work of improvements on the Property, Developer, at its own cost and expense, will independently secure all land use and other entitlements, permits, and approvals that City of Fresno, FHS or any other governmental agency with jurisdiction over the Project requires for construction of the Project. Notwithstanding the foregoing, the Developer may utilize the mutual self-help method of construction for either of the Programs and sweat equity (i.e. labor) from the families as allowable. 4.2 Except as may be expressly provided herein, Developer shall not begin construction or perform any other work on the Property until after Closing. 4.3 Time for Com letion of the Protect. FHS will convey the Property to Developer for construction of the Project, and not for speculation in real estate. Therefore, the Developer will begin construction by the date provided in the Performance Schedule, and will diligently complete the Project according to the Performance Schedule, or by any other date as the parties may agree in a written extension signed by the parties and subject to any extension of time provided for in Section 4.4. In the event Developer does not perform and complete work pursuant to the Performance Schedule as set forth in Exhibit C or is otherwise unable to deliver a completed project, the sale of the Property may be rescinded and this Agreement may be cancelled pursuant to Section 9.5 and 9.6. 4.4 Extension of Time for Completion. In addition to the specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts of another party; acts or the failure to act of any public or governmental agency or entity or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty days after the commencement of the cause, the period shall commence to run only thirty days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by FHS and the Developer, subject to Council approval. 4.5 Certificate of Completion. After Developer has satisfactorily completed a Phase of the Project according to this Agreement and after the completion of the final Phase of the Project, Developer may ask FHS to record a Certificate of Completion indicating that a Phase or that all Phases are complete, substantially in the form attached as Exhibit E. For purposes of this section, Developer's submission of a "Safe to Occupy" Certificate or Certificate of Occupancy for the Improvements within the subject Phase of the Project shall be conclusive evidence that Developer has satisfactorily completed those Improvements. Acceptance by the FHS of the Subdivision Improvements and or site plan improvements constructed for the Self-Help Homeownership program shall also be conclusive evidence that Developer has satisfactorily completed those Improvements. Subject to the satisfaction of the conditions to its issuance (see next subsection) and within ten days of such request, FHS shall provide an instrument certifying Developer's completion of the Project, or any Phase thereof, by preparing and recording the Certificate of Completion. This release, when recorded, will evidence FHS's conclusive determination that Developer has satisfied the construction covenants in this Agreement as to the subject Phase of the Project. The release will not be evidence that Developer has complied with or satisfied any obligation to any person holding a deed of trust or Security Financing Interest. The release shall not terminate Developer's indemnification or other obligations, which by their nature are intended to survive Project completion. After the release is recorded in the Official Records of Fresno County, any party then owning or after that purchasing, leasing or otherwise acquiring any interest in the applicable portion of the Property shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding the construction requirements or Project development of the completed Project. 4.6 Conditions to Issuing the Certificate of Completion. The following are all conditions precedent to FHS issuing the Certificate of Completion for the Project, or any Phase thereof, and each submission will be in a form and substance satisfactory to FHS: 4.6.1. Evidence that all mechanics' liens or material men's liens and claims recorded against the Property, or any Phase thereof, and the Project Improvements that are the subject of the Certificate of Completion have been unconditionally and finally released or, if not released, sufficiently bonded against as required by law. 4.7 Liens and Stop Notices. If a claim of lien or bonded stop notice is recorded against the Property or any Project improvements, the Developer, within 91 days after that, or within five days after FHS's demand, whichever last occurs, will do the following: 4.7.1. Pay or discharge the same; or 4.7.2. Effect the release of it by recording and delivering to FHS a surety's release bond in sufficient form and amount, or otherwise; or 4.7.3. Give FHS other assurance that FHS, in its sole discretion, deems satisfactory to protect FHS from the effect of the lien, claim or bonded stop notice. 4.8 Annual Proof of Insurance. Annually, beginning with commencement of construction of the Project, and continuing until the issuance of a Certificate of Completion for the Project, Developer shall submit proof of insurance as required by this Agreement. 4.9 Taxes and Assessments. The Developer will pay before delinquency all ad valorem real estate taxes and assessments on the Property, subject to the Developer's right to contest any taxes or assessments in good faith. The Developer will remove any levy or attachment on the Property or any part of it, or assure the satisfaction of the levy or attachment within a reasonable time. 4.10 Compliance with Laws. In performing its obligations hereunder, Developer shall comply with all applicable laws, regulations, and rules of the governmental agencies having jurisdiction, including, without limitation, applicable federal and state labor standards and environmental laws and regulations. Developer, not FHS, is responsible for determining applicability of and compliance with all local, state and federal laws including, without limitation, the California Labor Code, Public Contract Code, Public Resources Code, Health & Safety Code, Government Code, the City Charter, and Fresno Municipal Code. FHS makes no representations regarding the applicability of any such laws to this Agreement, the Project, or the parties' respective rights or obligations hereunder including, without limitation, payment of prevailing wages, competitive bidding, subcontractor listing, or other matters. FHS shall not be liable or responsible, in law or equity, to any person for Developer's failure to comply with any such laws, whether FHS knew or should have known of the need for Developer to comply, or whether FHS failed to notify Developer of the need to comply. 5. INDEMNITY; INSURANCE. 5.1 Indemni . To the furthest extent allowed by law, Developer shall indemnify, hold harmless and defend, with qualified counsel of Developer's choice, FHS, and each of its officers, officials, employees and agents from any loss, liability, fines, penalties, forfeitures, costs, and damages (whether in contract, tort or strict liability including, without limitation, personal injury, death at any time and property damage) incurred by FHS, from any claims, demands and actions in law or equity (including reasonable attorneys' fees, litigation and legal expenses incurred by FHS or City or held to be the liability of FHS or City, including plaintiff's or petitioner's attorney's fees if awarded, in connection with City or FHS's defense of its actions in any proceeding), arising or alleged to have arisen directly or indirectly out of performance or in any way connected with: (i) the making of this Agreement; (ii)the performance of this Agreement; (iii)the performance or installation of the work or Improvements by the Developer and Developer's employees, officers, agents, contractors or subcontractors; (iv) the design, installation, operation and removal or maintenance of the work and Improvements; or (v) City or FHS's granting, issuing or approving use of this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether City or FHS or any of its officers, officials, employees or agents are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or FHS or any of its officers, officials, employees, agents or authorized volunteers. This indemnity shall also cover, without limitation the following: (i) any act, error or omission of Developer as to the FHS or any of their officers, employees, contractors, subcontractors, invitees, agents or representatives in connection with this Agreement, the Project or the Property; (ii) any use of the Property, the Project by Developer or any of its officers, employees, contractors, subcontractors, invitees, agents or representatives, successors or assigns; (iii) the design, construction, operation or maintenance of the Project; or (iv) failure of Developer or any of its officers, employees, contractors, subcontractors, invitees, agents or representatives to comply with any Federal, State or local law, code, ordinance or regulation applicable to this Agreement or the Project, including, but not limited to, claims based upon failure to comply fully with prevailing wage laws as may be determined by any court or agency of the State of California or United States Government; with respect to any and all claims related to prevailing wage, Developer, as provided herein and otherwise in this Agreement, assumes all responsibility for payment of prevailing wage and complying with prevailing wage laws, if required, and specifically waives any and all rights against the City or FHS, as well as City and FHS agents, employees, agencies, and consultants, pursuant to California Labor Code section 1726(c) and analogous federal law, if any, and agrees to defend and fully indemnify the City and FHS, as well as City and FHS agents, employees, agencies, and consultants, for any claims based upon failure to pay prevailing wage, including, without limitation, claims for damages, fines, penalties, litigation expenses, costs,attorneys'fees, and interest. Developer and/or FHS have the right to contest or challenge any finding that prevailing wage applies. Notwithstanding the forgoing, FHS shall fully cooperate with developer as reasonable necessary in order to determine the applicability and compliance with prevailing wage laws. This section shall survive termination or expiration of this Agreement and the potential recordation of the Grant Deeds. 5.1.1 Action Arising Out of Approval of This Agreement. The Developer shall indemnify, defend and hold the FHS and each of their respective officers, officials, employees, agents, boards and volunteers harmless from any judicial action filed against FHS by any third party arising out of FHS's approval of this Agreement or any permit, entitlement or other action required to implement this Agreement, including without limitation approvals under the Law, CEQA or FHS's Municipal Code. FHS will promptly notify the Developer of the action. Within fifteen (15) days after receipt of the notice, the Developer shall take all steps necessary and appropriate to assume defense of the action. FHS will cooperate with the Developer in the defense of the action (at no cost to FHS). Neither the Developer nor FHS will compromise the defense of such action or permit a default judgment to be taken against FHS without the prior written approval of the other party(ies). 5.1.2 Survival of Indemnification Provisions. Except as otherwise specifically stated herein, the indemnification provisions in this subsection and every other indemnification in this Agreement will survive any termination of this Agreement, will survive any Closing, will survive the expiration of any covenant herein and will not merge with any other document evidencing an interest in real property. 5.2 Insurance. Prior to the commencement of the construction and until FHS issues the Certificate of Completion and records it in the Official Records of Fresno County, Developer shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by FHS's Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City or FHS, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. The fact that insurance is obtained by Developer shall not be deemed to release or diminish the liability of Developer, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City or FHS 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 Developer. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer, vendors, suppliers, invitees, contractors, consultants, subcontractors, or anyone employed directly or indirectly by any of them. 5.2.1 Commercial General Liability Insurance. 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 shall 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, contractual liability (including indemnity obligations under this Agreement), with limits of liability of not less than $5,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations. 5.2.2 Commercial Automobile Liability Insurance. Commercial automobile liability insurance, which shall be at least as broad as the most current version of Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 (Section 1, subsection A.1 entitled "Any Auto"), with combined single limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. 5.2.3 Workers' Compensation Insurance. Workers' compensation insurance, as required under the California Labor Code. 5.2.4 Employer's Liability. Employer's liability coverage with minimum limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. 5.2.5 Fire and Extended Coverage Insurance. Fire and extended coverage insurance for at least the full replacement cost of the Developer Improvements on the Property, excluding foundations, footings and excavations and tenant improvements, fixtures and personal property. 5.2.6 Builders Risk Insurance. Builders risk insurance sufficient to cover one hundred percent (100%) of the replacement value of all improvements made on the Property including, without limitation, terms of labor and materials in place or to be used as part of the permanent construction (including, without limitation, surplus miscellaneous materials and supplies incidental to the work, and scaffolding, staging, towers, forms and equipment not owned or rented by Developer, the cost of which is not included in the cost of work). Developer shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Developer shall also be responsible for payment of any self-insured retentions. The above-described policies of insurance shall be endorsed to provide an unrestricted thirty calendar day written notice in favor of the FHS, of policy cancellation, change or reduction of coverage, except the Workers' Compensation policy that shall provide a ten calendar day written notice of such cancellation, change or reduction of coverage. If any policy is due to expire during the term of this Agreement, Developer shall provide a new certificate evidencing policy renewal not less than fifteen calendar days before the expiration date of the policy. When an insurer, broker, or agent issues a notice of cancellation, change, or reduction in coverage, Developer shall immediately obtain and file a certified copy of a new or renewal policy and certificates for such policy with the FHS. The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name the FHS and the officers, officials, agents and employees as an additional insured. Each policy shall be endorsed so that Developer's insurance is primary and no contribution is required of the FHS. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to FHS, its officers, officials, agents, employees, and volunteers. Developer shall furnish the FHS with copies of the actual policies upon the request of its designee, or the FHS's Risk Manager. The fact that insurance is obtained by Developer or its subcontractors shall not be deemed to release or diminish the liability of Developer or its subcontractors including without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify FHS, and their officers, officials, agents, employees and volunteers, shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Developer or its subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer, its principals, officers, agents, employees, persons under the supervision of Developer, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them. If Developer fails to maintain the required insurance in full force and effect, Developer shall immediately discontinue all work under this Agreement, and take all necessary actions to secure the work site to insure that public health and safety is protected, until FHS receive notice that the required insurance has been restored to full effect and that the premiums for the insurance have been paid for a period satisfactory to FHS. Developer's failure to maintain any required insurance shall be sufficient cause for FHS to terminate this Agreement after notice and the right to cure as provided in Section 9.5. If Developer subcontracts all or any portion of the work under this Agreement, Developer shall require each subcontractor to provide insurance protection in favor of Developer and FHS, and their officers, officials, employees, agents and volunteers according to the terms of each of the preceding paragraphs, except that the subcontractors' certificates and endorsements shall be on file with Developer, and FHS before the subcontractor begins any work. 5.2.7 Insurance for Protect ❑esi n Work. Developer shall maintain for its Project design work, or if Developer subcontracts any of the Project design work Developer shall require each design subcontractor to maintain, professional liability insurance (errors and omissions) with a limit of not less than one million dollars ($1,000,000) per occurrence. If claims made forms are used for any Professional Liability Coverage, either (i) the policy shall be endorsed to provide not less than a five year discovery period, or (ii) the coverage shall be maintained for a minimum of five years after the Release of Construction Covenants is recorded. The requirements of this section relating to such coverage shall survive termination or expiration of this Agreement. 5.2.8 Performance anal Payment Bonds. Developer will obtain and deliver labor and material bonds, payment, and performance bonds, issued by an insurance company meeting the criteria for Developer's other insurance under this Agreement. The bonds will at least equal to one hundred percent of Developer's estimated construction costs of any particular Phase of the Project then under construction and shall remain in full force until the issuance of a "Safe to Occupy" Certificate or Certificate of Occupancy, or the recording of a Certificate of Completion for that Phase, whichever is earlier. The bonds will name FHS as co- obligee. Instead of requiring performance and payment bonds, FHS may consider and accept other evidence of Developer's ability to complete the Project. 6. SECURITY FINANCING INTERESTS AND RIGHTS OF HOLDERS 6.1 Prohibition Against Transfer of Property. the Buildings or Structures Thereon and Assignment of Agreement. After conveyance of title and prior to the issuance by FHS of a Certificate of Completion for the Project, the Developer shall not, except as expressly permitted by this Agreement, sell, transfer, convey, assign, or lease the whole or any part of the Property or the buildings or improvements thereon without the prior written approval of FHS. This prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Property or to prohibit or restrict the leasing of any part or parts of a building or structure when said improvements are completed. 6.1.1 Permitted Transfers. Notwithstanding the foregoing, the following events (Permitted Transfers) shall not be deemed a transfer for the purposes of requiring FHS's consent: A. Creation of Security Financing Interests; B. A sale, conveyance, or transfer of the Property at foreclosure (or a deed in lieu of foreclosure) resulting from a Security Financing Interest; C. The conveyance or dedication of parts of the Property to the FHS or the grant of easements or permits solely to facilitate the development of the Property before the Certificate of Completion is recorded; D. Sale to homeowners in accordance with this Agreement; E. Sale or assignment to an entity controlled by or in common control with Developer; F. Assignments resulting from the death or mental or physical incapacity of an individual; G. Assignments in trust for the benefit of a partner's spouse, children, grandchildren or other family members;. 6.2 Approval or Consent of FHS. When a request for transfer or assignment is submitted to FHS for consideration, approval will be conditioned on the following: 6.2.1 Financial Strength and Business Experience. The proposed transferee will demonstrate to FHS's reasonable satisfaction that the proposed transferee has sufficient financial strength and the business experience in planning, financing, development, ownership, and operation of similar projects to complete the Project, or portion thereof, competently. 6.2.2 Assumption Agreement. Any transferee, by recordable instrument acceptable to FHS, shall expressly assume all the unfulfilled or ongoing obligations of the Developer under this Agreement, and agree to be subject to all the conditions and restrictions to which the Developer is subject with respect to the Property or applicable portion thereof. 6.2.3 Transfer Documents. The Developer or its successors shall submit all documents, proposed to effect any transfer or assignment, to FHS for review and approval. 6.2.4 Other Information. Developer or its successors shall deliver all information to FHS that FHS may reasonably request to enable it to evaluate the proposed transfer or assignment. FHS shall approve, conditionally approve, or disapprove a request for assignment within 15 days after receiving the request and all supporting documentation. Requests shall be deemed approved if no response is received in 15 days. 6.2.5 Developer's Release. FHS's approval of any transfer, assignment, or sale will not relieve the Developer or any successor from any unfulfilled or ongoing obligations of Developer under this Agreement with respect to any portion of the Property not transferred. The provisions of this subsection are intended to discourage land speculation, and these provisions shall be liberally interpreted to accomplish that end. 6.3 Security Financinq: Rights of Holders 6.3.1 No Encumbrances Except Mort a as, Deeds of Trust. Sales and Lease-Back or Other Financing for Development. Notwithstanding Section 6.1 of this Agreement, mortgages, deeds of trust, sales and leases-back or any other form of conveyance required for any reasonable method of financing are permitted before issuance of a Certificate of Completion but only for the purpose of securing loans of funds to be used for financing the acquisition of the Property, the construction of improvements on the Property and any other expenditures necessary and appropriate to develop the Property under this Agreement. The Developer shall promptly notify FHS of any mortgage, deed of trust, sale and lease-back or other financing conveyance, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the Property whether by voluntary act of the Developer or otherwise. The words "mortgage" and "deed of trust," as used herein, include all other appropriate modes of financing real estate acquisition, construction, and land development. 6.3.2 Holder Not Obligated To Construct Improvements. The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion, nor shall any covenant or any other provision in the grant deed for the Property be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit, or authorize any such holder to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement. 6.3.3 Notice of Default to Mort a e. Deed of Trust. or Other Securit Interest Holders; Right to Cure. Whenever FHS shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the improvements, FHS shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage, deed of trust, or other security interest authorized by this Agreement who has previously made a written request to FHS therefor default of the Developer under this Section 6.3.3. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to FHS by written agreement reasonably satisfactory to FHS. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates and submit evidence reasonably satisfactory to FHS that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvements shall be entitled, upon written request made to FHS, to a Certificate of Completion from FHS. 6.3.4 Failure of Holder to Complete Improvements. In any case where, six months after default by the Developer in completion of construction of improvements under this Agreement, the holder of any mortgage, deed of trust, or other security interest creating a lien or encumbrance upon the Property has not exercised the option to construct, or if it has exercised the option and has not proceeded diligently with construction, FHS may purchase the mortgage, deed of trust, or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If the ownership of the Property has vested in the holder, FHS, if it so desires, shall be entitled to a conveyance of the Property from the holder to FHS upon payment to the holder of an amount equal to the sum of the following: A. The unpaid mortgage, deed of trust, or other security interest debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); B. All expenses with respect to foreclosure; C. The net expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Property; D. The costs of any authorized improvements made by such holder; and E. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by FHS. 6.3.5 Right of FHS to Cure Mort a e, Deed of Trust or Other Securit Interest Default. In the event of a default or breach by the Developer on a mortgage, deed of trust or other security interest with respect to the Property prior to the completion of the Project, and the holder has not exercised its option to complete the Project, FHS may cure the default prior to completion of any foreclosure. In any such event, FHS shall be entitled to reimbursement from Developer of all reasonable costs and expenses incurred by FHS in curing the default. FHS shall also be entitled to a lien upon the Property to the extent of such costs and disbursements. Any such lien shall be subject to mortgages, deeds of trust or other security interests executed for the sole purpose of obtaining funds to purchase and develop the Property as authorized herein. 7. USE AND MAINTENANCE OF THE PROPERTY. 7.1 Developer covenants and agrees for itself, its successors and assigns, which covenants shall run with the land and bind every successor or assign in interest of Developer, that during development of the Property pursuant to this Agreement and thereafter, neither the Property nor the improvements, nor any portion thereof, shall be improved, used or occupied in violation of any applicable governmental restrictions or the restrictions of this Agreement. Furthermore, Developer and its successors and assigns shall not initiate, maintain, commit, or permit the maintenance or commission on the Property or in the improvements or any portion thereof, of any nuisance, public or private, as now or hereafter defined by any statutory or decisional law applicable to the Property or the improvements, or any portion thereof. 7.2 Notwithstanding anything to the contrary or that appears to be to the contrary in this Agreement, Developer hereby covenants, on behalf of itself, and its successors and assigns, which covenants shall run with the land and bind every successor and assign in interest of Developer, that, Developer and such successors and assigns shall use the Property solely for the purpose of constructing residential development meeting the requirements and restrictions of this Agreement and the Regulatory Agreement. 7.3 Affordable Housing. 7.3.1 Construction of Affordable Housing Units. The Developer covenants and agrees to construct a total of 16 single-family units as part of the Programs. Each Housing Unit shall be subject to the Declaration of Restrictions attached hereto as Exhibit G or Exhibit H. 7.3.2 Obligation to Refrain from Discrimination. There shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the rental, sale, lease, sublease, transfer, use, occupancy or enjoyment of the Site, or any portion thereof, nor shall Developer, or any person claiming under or through Developer, establish or permit any such practice, or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site or any portion thereof (except as permitted by this Agreement). The nondiscrimination and nonsegregation covenants herein shall remain in effect in perpetuity. 7.3.3 Effect of Covenants. FHS is deemed the beneficiary of the terms and provisions of this Agreement and of the restrictions and covenants running with the land appearing in the Regulatory Agreement, for and in its own right for the purposes of protecting the interests of the community in whose favor and for whose benefit the covenants running with the land have been provided. The covenants in favor of FHS shall run without regard to whether FHS has been remains or is an owner of any land or interest in the Site, and shall be effective as both covenants and equitable servitudes against the Site. FHS shall have the right, if any of the covenants set forth in this Agreement which are provided for its benefit are breached, to exercise all rights and remedies available and to maintain any actions or suits at law or in equity or other and proper proceedings to enforce the curing of such breaches to which it may be entitled. No other person or entity shall have any right to enforce the terms of this Agreement under a theory of third-party beneficiary or otherwise. The covenants running with the land and their duration are set forth in the Regulatory Agreement. 8. REPRESENTATIONS AND WARRANTIES. 8.1 Developer Representations and Warranties. 8.1.1 Representations and Warranties of Developer. Developer represents and warrants that: A. Developer is a California nonprofit corporation duly formed and existing under the laws of the State of California, in good standing, and authorized to do business in the State of California, County of Fresno, and FHS of Fresno. B. Developer has all requisite power and authority to carry out its business as now and hereafter conducted and to enter and perform its obligations under this Agreement. C. The person or persons signing this Agreement for Developer have been duly authorized to execute and deliver this Agreement and to legally bind Developer to its terms and conditions. D. Developer's execution and performance of this Agreement does not violate any provision of any other agreement to which Developer is a party. E. Except as may be specifically set forth in this Agreement, no approvals or consents not heretofore obtained by Developer are necessary to Developer's execution of this Agreement. F. Developer has or will have sufficient funds available to fund the Project and to pay all costs assumed by Developer hereunder. G. This Agreement is valid, binding, and enforceable against Developer in accordance with its terms, except as such enforceability may be limited by principals of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors, and rules of law governing specific performance, injunctive relief or other equitable remedies. H. Developer has made no contract or arrangement of any kind the performance of which by the other party thereto would give rise to a lien on the Property. 8.1.2 Survival of Representations and Warranties. The parties are relying upon the above representations and warranties in entering this DDA. The foregoing representations are and shall be continuing in nature and shall remain in full force and effect until all obligations under this DDA are met or this DDA is terminated in a manner provided herein. 9. DEFAULT, REMEDIES AND TERMINATION. 9.1 Default. Failure or delay by either party to perform any term of this Agreement shall be a default under this Agreement if not cured within the time set forth herein. Any failure or delay by a party in asserting any right or remedy will not constitute a waiver, and will not deprive the party of its right to institute and maintain any action or proceeding necessary to protect or enforce any right or remedy. 9.2 Legal Actions. A party may institute a legal action to cure, correct, or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal action shall be brought in the Fresno County Courts, or the Fresno Division of the Federal District Court for the Eastern District of California. 9.3 Rights and Remedies are Cumulative. Except as may be expressly stated otherwise in this Agreement, the rights and remedies of the parties are cumulative. The exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or a different time, of any other rights or remedies for the same default or any other default. In addition to the specific rights and remedies herein, the parties may resort to any other rights or remedies available at law or in equity, including, without limitation, specific performance. 9.4 Notice and Cure Periods. If either party fails to perform under any provision of this Agreement including documents incorporated herein, the non-defaulting party shall serve written notice of the default on the defaulting party, describing the default, and the actions necessary to cure the default. A defaulting party will have 30 days from the date of the notice to cure the breach or failure unless a different time period is provided in this Agreement in which case the latter shall apply. If the default is not susceptible to cure within the 30 days, the defaulting party shall begin to cure the default within the 30 days and after that diligently prosecute the cure to completion. Failure of the defaulting party to cure within these times shall entitle the non-defaulting party to enforce any right or remedy provided in this Agreement, at law, or in equity. This provision is not intended to modify or extend any other notice or cure period specifically provided for in this Agreement. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. 9.5 Right of Re-ent Power of Termination and Reverter. FHS may reenter and take possession of the Property, or part of it, and all improvements on it, terminate the estate conveyed to Developer by the Grant Deed and revest the estate in FHS if, after the Closing, but before recording a Certificate of Completion, any of the following occurs: 9.5.1. Developer does not begin and complete construction of the Project within the time specified in the Performance Schedule or this Agreement unless otherwise extended by the terms herein; or 9.5.2. Developer abandons or substantially suspends construction of the Project for 30 days after FHS gives written notice of the abandonment or suspension; or 9.5.3. Developer assigns or transfers, or suffers an involuntary transfer of, any rights or obligations under this Agreement, or in the Property, in violation of the assignment provision of this Agreement. 9.6 Effect on Security Holders. FHS's right to reenter, repossess, terminate, and revest shall be secured by the provisions of the Deed of Trust attached hereto as Exhibit J. Such right to reenter, repossess, terminate, and revest shall be subject to, limited by, and shall not defeat, render invalid, or limit: (i) any Security Financing Interest permitted by this Agreement; or(ii) any provision of this Agreement protecting the holder's Security Financing Interest. The provisions of Sections 9.5 and 9.6 shall automatically terminate on the recordation of a Certificate of Completion for the Project (or applicable phase). 10. GENERAL PROVISIONS. 10.1 Notice Demands and Communication. All notices, elections, requests, acceptances, demands, instructions or other communications ("notice" or "notices") to be given to any party under this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of service if personally served on the party to whom notice is to be given; (ii) within forty-eight (48) hours after mailing, if mailed to the party to whom notice is to be given, by first class mail which is either registered or certified, postage prepaid, return receipt requested; (iii) within twenty-four (24) hours after being deposited with a recognized private courier service (e.g. Federal Express), if delivered by a private courier service to the party to whom notice is to be given, all charges prepaid; or (iv) when sent, if given by electronic format that provides verification of successful transmission. All notices shall be properly addressed to the party receiving notice as follows: FHS: Fresno Housing Successor Attention: Executive Director 848 M Street, Third Floor Fresno, CA 93721 WITH COPIES TO: City Manager 2600 Fresno Street Fresno CA 93721-3602 City Attorney 2600 Fresno Street Fresno CA 93721-3602 DEVELOPER: Self Help Enterprises Attention: Director of Real Estate Development P.O. Box 6520 Visalia, CA 93290 A party may change its address by notice given according to this subsection. 10.2 Conflict of Interests. No member, official, officer, or employee of the Developer or FHS shall have any direct or indirect interest in this Agreement, or shall participate in any decision relating to this Agreement where such interest or participation is prohibited by law. No officer, employee, or agent of FHS who exercises any function or responsibility concerning the planning and carrying out of the Project, or any other person who exercises any function or responsibility concerning any aspect of this Agreement or the Project, shall have any personal financial interest, direct or indirect, in this Agreement or the Project. 10.2.1 Developer represents and warrants that it has not paid or given, and will not pay or give, to any third party any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, consultants, engineers, and attorneys. 10.2.2 No contractor, subcontractor, mechanic, material man, laborer, vendor or other person hired or retained by Developer shall be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, rather each such person shall be deemed to have agreed (a) that they shall look to Developer as their sole source of recovery if not paid; and (b) except as otherwise agreed to by FHS and any such person in writing, they may not enter any claim or bring any such action against FHS under any circumstances. Except as provided by law, or as otherwise agreed to in writing between FHS and any such person, each such person shall be deemed to have waived in writing all right to seek redress from FHS under any circumstances whatsoever. 10.3 Nonliability of Officials. Employees, and Agent No member, official, officer, employee, or agent of FHS shall be personally liable to the Developer, or any successor in interest, for any default or breach by FHS. 10.4 Counterparts. This Agreement may be executed in counterparts, and together each executed counterpart shall constitute one Agreement. 10.5 Waiver. A party's waiver of the other's breach of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or a different provision of this Agreement. No provision of this Agreement may be waived except in a writing signed by all the parties. Waiver of any one provision shall not be deemed to be a waiver of any other provision herein. 10.6 Attorneys' Fees. If a party initiates or defends litigation or any legal proceeding regarding the enforcement of this Agreement, the prevailing party in such litigation or proceeding, in addition to any other relief that may be granted, shall be entitled to reasonable attorneys' fees. Attorneys'fees shall include attorneys'fees on any appeal. A party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating the action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred with respect to the action. All such fees shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not such action is prosecuted to judgment. 10.7 Governing Law. This Agreement shall be interpreted and enforced, and the rights and duties of the parties under this Agreement (both procedural and substantive) shall be determined according to California law. 10.8 Further Assurances. Each party will take any further acts and will sign and deliver any further instruments required to carry out the intent and purposes of this Agreement. 10.9 Entire Understandina of the Parties. The exhibits referenced as attached are by such references incorporated into this Agreement. This Agreement, including exhibits, is the entire understanding and agreement of the parties. All prior discussions, understandings, and written agreements are superseded by this Agreement. This Agreement shall not be modified except by written instrument duly approved as required by law and executed by authorized representatives of the parties. Should the terms of any exhibit conflict with the body of this Agreement, the body of this Agreement shall govern. 10.10 Consent, Reasonableness. Unless this Agreement specifically authorizes a party to withhold its approval, consent or satisfaction in its sole discretion, any consent, or approval, or satisfaction to be requested or required of a party, shall not be unreasonably withheld, conditioned or delayed. 10.11 Partial Invalidity. If any part of this Agreement is held to be invalid, void or unenforceable in any legal, equitable or arbitration proceeding, the remainder of the Agreement shall continue in effect, unless not giving effect to the invalid or unenforceable part would prevent effecting the purposes of the Project and this Agreement. 10.12 Ambi ui . This Agreement is the result of the combined efforts of the parties. Should any provision of this Agreement be found ambiguous, the ambiguity shall not be resolved by construing this Agreement in favor of or against any party, but by construing the terms according to their generally accepted meaning, considering the objective of the Agreement. 10.13 Number and Gender. Masculine, feminine or neuter gender terms and singular or plural numbers will include others when the context so indicates. 10.14 Headings. All headings are for convenience only, are not a part of this Agreement, and are not to be used in construing this Agreement. 10.15 Binding Upon Successors. This Agreement shall bind and inure to the benefit of the successors in interest, personal representatives, and assigns of each party, subject to the limitation on transfer and assignment contained in this Agreement. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor, representative, or assign of the party who has acquired an interest in compliance with the terms of this Agreement, or under law. 10.16 Relationship of the Parties. Nothing in this Agreement, the Grant Deed, or any other document executed in connection with this Agreement shall be construed as creating a partnership, joint venture, agency, employment relationship, or similar relationship between FHS and the Developer or any of the Developer's contractors, subcontractors, employees, agents, representatives, transferees, successors-in-interest or assigns. Nothing in this Agreement establishes a principal and agent relationship between the parties. 10.17 Nature of the Project. The Project is a private undertaking of the Developer. After FHS conveys title or possession of the property to Developer, the Developer shall have exclusive control over the Property, subject to the terms of this Agreement and all applicable Federal, State and local laws, ordinances, codes, regulations, standards, and policies. 10.18 Time of Essence. Time is of the essence of each term, condition, and covenant contained in this Agreement. 10.19 Survival of Provisions. Those provisions expressly surviving expiration or earlier termination, including each indemnification provision, shall survive the Closing and expiration or earlier termination of this Agreement, and shall not merge with the Grant Deed or other document evidencing any interest in real property. [SIGNATURES APPEAR ON NEXT PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, SELF HELP ENTERPRISES, A California municipal corporation, in its A California Non-Profi ublic Benefit capacity as Housing Successor to the Corporation ` Redevelopment Agengf of the City of Fresno By: LU A klc" Name: Thomas J_ Collishaw 4.&L:4 Marlene Murphey, Executive Director Title: President/CEO (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: ,--LAz� Name: Elizabeth McGovern Garcia i 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 On 10(-'C. PAP '� before me, Date f Here Insert Name and Title of the Officer personally appeared 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. WITNESS my hand and official seal. NOEMI SCHWARTZ NotaryPublic-California z Fresno County } Signature Commission;2215603 g My Comm.Expires Sep 23,2021 Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: . Signer Is Representing: ©2016 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Tulare } On 2-OM before me, Valerie Pedro, Notary Public (insert name and title of the officer) personally appeared Thomas J. Colllshaw who proved to me on the basis of satisfactory evidence to be the personwwhose name;(.$) is/W-19 subscribed to the within instrument and acknowledged to me that he/"/th.ey'executed the same in his/,hc5r/ter authorized capacity(), and that by his/,h*/their signature4o on the instrument the personal, or the entity upon behalf of which the person(sracted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. *my VALERIE PEDRO WITNESS m hand and official seal. Notary Public-California y Tutare County Commission#23151 is Comm.Expires Dec 10,2023 Signature—ll-�" 1 jam( (Seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Tulare } On . 2OZC) before me. Valerie Pedro, Notary Public (insert name and title of the officer) personally appeared Elizabeth McGovern-Garcia who proved to me on the basis of satisfactory evidence to be the person4a' whose name.( is/ar6 subscribed to the within instrument and acknowledged to me that�e she/theS executed the same in bd/her/t.Wir authorized capacity(, and that by leis`/her/tbafr signatureke) on the instrument the person(K, or the entity upon behalf of which the personks) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. *my VALERIE PEDRO Notary Public-California WITNESS my hand and official seal. = Tulare County Commission A 23151la Comm.Expires Dec 10,2023 Signature �! P (Seal) APPROVED AS TO FORM.' Title.- Assistant Secretary DOUGLAS T. SLOAN (If corporation or LLC., CFO, City ttorney Treasurer, Secretary or Assistant Secretary) B : Q C� ``Tracy N. Pkvanon Date REVIEWED BY: Senior D6,IaOty City Attorneys ATTEST: YVONNE SPENCE, MMC OF PR�s� City Clerk 99 ya By. - , f�U OCS.4z Deputy N��co me"a C� 10/Zs I Zou Attachments: Exhibit A Site Map Exhibit A-1 Legal Description Exhibit B Scope of Development and Basic Design Exhibit C Performance Schedule Exhibit D Sources & Uses Exhibit E Certificate of Completion Exhibit F Grant Deed Exhibit G Affordability Restrictions (Self-Help Homeownership Program) Exhibit H Affordability Restrictions (Infill New Construction Program) Exhibit I Promissory Note Exhibit J Deed of Trust 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 October 28,_2020 before me, Marco Martinez Deputy City Clerk, personally appeared, Marlene Murphey, Executive Director, Housing Successor to the Redevelopment Agency_of the City of Fresno who proved to me on the basis of satisfactory evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal OF FRS YVONNE SPENCE, MMC City Clerk, City of Fresno o By. `l7 Deputy i EXHIBIT A SITE MAP EXHIBIT A-1 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF FRESNO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Parcel 1: APN 477-162-01T Parcel 2: APN 477-145-30T Parcel 3: APN 477-145-31 T Parcel 4: APN 477-145-32T Parcel 5: APN 477-145-33T Parcel 6: APN 477-145-42T Parcel 7: APN 477-145-45T Parcel 8: APN 477-145-44T EXHIBIT B SCOPE OF DEVELOPMENT AND BASIC DESIGN Self-Help Homeownership Pro rams Self-Help Enterprises (SHE) proposes to construct 16 single family units (5 at the southwest corner of Florence and Walnut Avenues and 11 at the northwest corner of Florence and Plumas). The homeownership phase of the proposed project would consist of designing the subdivision and associated improvements and constructing all the required infrastructure to develop buildable lots for SHE's mutual self-help and infill housing program. The improvements will consist of all wet utilities (water, sewer, services, etc.), dry utilities (electricity, gas, telecommunications, etc.) and roadway improvements (pavement, sidewalk, curb and gutter, etc.). Funding for construction of the required public improvements will be through SHE capital and may also include a conventional construction loan for the subdivision. SHE will also apply for HOME funds for secondary financing for the project, and may also apply for CalHome and/or CSHHP. SHE would conduct outreach and recruitments through local community based groups, such as the school district, United Way, churches, etc. SHE would construct one group of 8-10 homes at a time and would obtain additional construction capital to assist the families in constructing their homes. The homes constructed through the Infill New Construction Program will be constructed by SHE as the General Contractor or by an independent third- party general contractor. Primary mortgage financing will be through FHA. Secondary funding will be sought out through various avenues which may include housing successor funds, HOME, CDBG and CalHOME funds, if available. Entitlements. Permits and Funding SHE will work with the City to process the necessary plans and permits. In addition, SHE will submit all required documents and plans to obtain permits for construction of improvements associated with construction of the single family homes. SHE will also submit application(s) to secure HOME funds from the City of Fresno. EXHIBIT C PERFORMANCE SCHEDULE Fresno Self-Help Homeownership,Project Timeline Task Start Date Completion Duration [days] Date DDA Fully Approved and Executed 10/1/2020 11/30/2020 60 Complete NEPA Review 10/1/2020 12/30/2020 90 NEPA Posting 12/30/2020 1/29/2021 30 AUGF Signed 1/29/2021 2/28/2021 30 Apply for and secure impact fee waiver 11/1/2020 12/31/2020 60 Engage Civil Engineer for Improvements 1/1/2021 4/1/2021 90 Develop on and off-site plans 4/1/2021 7/30/2021 120 CSHHP Funding Application 10/20/2021 7/20/2022 273 Submit Plans to City for Review 7/30/2021 9/13/2021 45 Complete Plan Check 9/13/2021 1/11/2022 120 Complete LLA and/or Lot Splits 4/1/2021 11/27/2021 240 Process On and Off-Site Permits 11/27/2021 2/25/2022 90 COE and commence construction-On and Off 2/25/2022 3/27/2022 30 Site Improvements Construction: On and Off Site Improvements 3/27/2022 10/23/2022 210 Commence Self-Help Construction group 10/23/2022 9/18/2023 330 Final Sale and Families Move-In 9/18/2023 3/15/2023 30 Infill New Construction Project TimeLine Task Start Date Completion Duration [days] Date DDA Fully Approved and Executed 10/1/2020 11/30/2020 60 Complete NEPA Review 9/1/2020 11/30/2020 90 NEPA Posting 11/30/2020 12/30/2020 30 AUGF Signed 12/30/2020 1/29/2021 30 .Apply for and secure impact fee waiver 11/1/2020 12/31/2020 60 Prepare Tentative Parcel Map 11/30/2020 3/30/2021 120 Tentative Parcel Map-Approval by City 3/30/2021 9/26/2021 180 Develop on and off-site plans 9/1/2021 12/30/2021 120 Submit final parcel map and imporvement plans 11/1/2021 12/31/2021 60 Submit House Plans to City for Review 2/1/2022 3/3/2022 30 Complete Plan Check 1/1/2022 5/1/2022 120 Process Construction Permits-Subdivision 1/1/2021 3/2/2021 60 COE and commence construction 3/15/2022 4/14/2022 30 Construction 4/14/2022 4/14/2023 365 Final Sale and Families Move-In 4/14/2023 8/12/2023 120 EXHIBIT D [Sources & Uses] EXHIBIT E CERTIFICATE OF COMPLETION RECORDED AT THE REQUEST OF: City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno 848 M Street, Third Floor Fresno, CA 93721 WHEN RECORDED RETURN TO.- City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno 848 M Street, Third Floor Fresno, CA 93721 Attn: Marlene Murphey No Fee-Govt. Code Sections 6103-27383 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) APNs L_ 1 This Release of Construction Covenants and Certificate of Completion is recorded at the request and for the benefit of the City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno. A. As agreed in a Disposition and Development Agreement including covenants, conditions and restrictions, (DDA) dated [ , 20 1 entered by the CITY OF FRESNO, a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno ("FHS"), and SELF HELP ENTERPRISES "DEVELOPER), FHS conveyed certain real property to DEVELOPER under a Grant Deed, dated [ , recorded in the Official Records of Fresno County on [ ] as Document No. [ ] (the "DEED"), and the DEVELOPER agreed to complete/cause the completion of the of construction of certain improvements described therein (the "Project") upon the premises described therein as the "Property" according to the terms and conditions of the DDA and the documents and instruments referenced therein, incorporated herein. The DDA or a memorandum of it was recorded [ 20 1 as Instrument No. [_ in the Official Records of Fresno County, California. Under the terms of the DDA, after DEVELOPER completes/causes completion of construction of a Phase of the Project on the Property/portion thereof, DEVELOPER may ask FHS to record an instrument certifying that DEVELOPER has completed the required improvements for such Phase of development in the form of a Release of Construction Covenants and Certificate of Completion. DEVELOPER has asked FHS to furnish DEVELOPER with a recordable Release of Construction Covenants and Certificate of Completion for a Phase of development. FHS'S issuance of this Release of Construction Covenants and Certificate of Completion is conclusive evidence that DEVELOPER has completed the construction on a Phase of development of the Property to terminate and release DEVELOPER from the construction/improvement covenants in the DDA pertaining to such Phase. NOW THEREFORE: 1. As provided in Section 4.6 of the DDA, FHS does hereby certify that construction of all of the improvements required by the DDA on the portion of the Property described in Attachment A, attached hereto and incorporated herein by this reference, has been satisfactorily completed. 2. This Release of Construction Covenants and Certificate of Completion shall not be deemed or construed to constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance the construction of the improvements on the Property. This Release of Construction Covenants and Certificate of Completion, is not a notice of completion as referred to in Section 3093 of the California Civil Code. IN WITNESS WHEREOF, FHS has executed this Release of Construction Covenants and Certificate of Completion as of this day of 20 .] CITY OF FRESNO, A municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno By.-- Its.- Owner hereby consents to recording this Certificate of Completion against the Property described herein. Dated: , 20 Self Help Enterprises By: Name: Title: THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC. ATTEST: APPROVED AS TO FORM: YVONNE SPENCE CRM MMC DOUGLAS T. SLOAN City Clerk City Attorney By: By: Deputy Deputy Dated: Dated: EXHIBIT F FREE RECORDING REQUESTED BY.- CITY OF FRESNO IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO 848 M Street, Third Floor Fresno, CA 93721 Attn: Executive Director AFTER RECORDATION RETURN TO.- Self Help Enterprises P.O. Box 6520 Visalia, CA 93290 Attn: Director of Real Estate Development (Space Above This Line For Recorder's Office Use Only) GRANT DEED For valuable consideration, the receipt of which is hereby acknowledged, CITY OF FRESNO, a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno (Grantor), hereby grants to SELF HELP ENTERPRISES a California Non Profit Corporation (Grantee), the real property (Property" legally described in Exhibit A attached hereto and incorporated herein by this reference. Consistent with the Disposition and Development Agreement including covenants, conditions and restrictions, (DDA) dated [, 20__] entered by Grantor and Grantee, all incorporated herein by this reference, the Grantee herein covenants by and for itself and its successors, transferees, vendees, administrators, and assigns, and all persons claiming under or through it that- 1. There shall be no discrimination against or segregation of, any person or group of persons on account of any bases listed in subdivision (a) or(d) of Section 12995 of the Government Code, as those bases are defined in Section 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. 2. a. Grantee will take all commercially reasonable precautions to prevent the release into the environment of any Hazardous Materials (as defined in the DDA) in, on, or under the Property. Grantee will comply with all governmental requirements with respect to Hazardous Materials. b. Until a Certificate of Completion is recorded as to the Property/portion thereof, Grantee will notify Grantor and give Grantor a copy or copies of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Property including, without limitation, notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements, and reports filed or applications made pursuant to any governmental requirement relating to Hazardous Materials and underground tanks. Immediately after each incident, Grantee will report any unusual or potentially important incidents respecting the environmental condition of the Property to Grantor. C. If a release of any Hazardous Materials into the environment occurs, Grantee will, as soon as possible after the release, furnish Grantor with a copy of any reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request, Grantee will furnish Grantor with a copy of any other environmental entitlements or inquiries relating to or affecting the Property, including, without limitation, all permit applications, permits, and reports, including reports and other matters, which may be characterized as confidential. d. Except with respect to Hazardous Materials found to exist on the Property as of the date of this Grant deed, Grantee will indemnify, defend, and hold Grantor harmless from any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage or expense (including, without limitation, reasonable attorneys' fees), arising out of (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about the Property, or the transportation of any Hazardous Materials to or from the Property, or (ii) the violation, or alleged violation of any statute, ordinance, order, rule, regulation, permit judgment or license relating to any use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in or about, to or from the Property. This indemnity will include, without limitation, any damage, liability, fine, penalty, parallel or cross indemnity occurring after conveyance, cost or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death) tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination lease, spill, release or other adverse effect on the environment. The indemnity covers, without limitation, (a) all foreseeable and unforeseeable consequential damages, (b) the cost of any required or necessary repair, clean-up, or detoxification and the preparation of any closure or other required plans, and (c) costs of legal proceedings and attorneys' fees. e. Grantee releases Grantor from all claims Grantee may have against, resulting from, or connected with the environmental condition of the Property. Such claims include, without limitation, all claims Grantee may have against Grantor under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), or any other federal, state or local law, whether statutory or common law, ordinance, or regulation concerning the release of Hazardous Materials or substances into the environment from or at the Property, and the presence of such materials in, on, under or about the Property. Grantee expressly waives the benefits of Civil Code section 1542, which reads as follows: A general release does not extend to claims which the creditor does not know or expect to exist in his favor at the time of executing the release which if known by him must have materially affected settlement with the debtor. 3. Grantor is the beneficiary of the covenants running with the land for itself and for protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit the covenants are provided, without regard to whether Grantor has been, remains, or is in ownership of any land on the Property/portion thereof. Grantor may exercise all rights and remedies, and maintain any actions or suits at law or in equity or other proceedings to enforce the covenants for itself or any other beneficiaries. The provisions of the DDA which by their terms or nature are intended to survive completion of the Project are fully enforceable under and shall not merge with this Deed. 4. If a conflict exists or arises between the provisions of this Deed and the DDA, the DDA shall control. The obligations of the Grantee hereunder are covenants or conditions running with the land enforceable by Grantor through a reserved right to re-entry and reverter. IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed on its behalf by its respective officers thereunto duly authorized, this day of 20 "GRANTOR" CITY OF FRESNO a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno By: Marlene Murphey, Executive Director Date: ATTACHMENT NO. 1 GRANT DEED Self Help Enterprises LEGAL DESCRIPTION OF THE PROPERTY EXHIBIT G FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF FRESNO IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO 848 M Street, Third Floor Fresno, CA 93721 Attn: Executive Director (Space Above This Line for Recorder's Office DECLARATION OF RESTRICTIONS (SELF-HELP HOME OWNERSHIP PROGRAM 80%) THIS DECLARATION OF RESTRICTIONS, (Declaration), is executed as of this by . (Declarant) in favor of the City of Fresno, a public body corporate and politic, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno (Agency). WHEREAS, Declarant is the owner of real estate in the County of Fresno, State of California located at: which is more particularly described in Exhibit A attached hereto and made a part hereof (the "Property"); and WHEREAS, Declarant agrees to take title to the Property constructed and rehabilitated by the Agency utilizing Agency's Low Income Housing Funds (the "Funds"); and, WHEREAS, the Agency has developed a program to increase, improve and preserve the supply of home ownership opportunities to individuals and families with low and moderate incomes; and, WHEREAS, the California Community Redevelopment Law set forth at California Health and Safety Code Section 33000 et seq. imposes certain affordability requirements upon property benefitted by the Funds, which affordability restrictions are to be enforceable for a minimum 45 year period; and WHEREAS, these restrictions are intended to bind all purchasers and their successors. NOW THEREFORE, in consideration of the economic benefits inuring to the Declarant and the public purposes to be achieved under the affordable housing program, 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 plan for the rehabilitation and/or sale of the Property. 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 Agency and will be enforceable by the Agency. 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 for the period of 45 years constituting the Affordability Period. 1 . Declarations. Declarant hereby declares that the Property is and shall be subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of affordable housing purposes and use, and are established and agreed upon for the purpose of enhancing and protecting the value of the Property and in consideration for the economic benefits inuring to 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 Agency, and shall run with the Property and be binding on any future owners of the Property and inure to the benefit of and be enforceable by the Agency. These covenants and restrictions are as follows: a. Declarant covenants and agrees that from the completion date of construction until the expiration of the Affordability Period it shall cause the Property to be used for Affordable Housing. Unless otherwise provided in the Agreement, the term Affordable Housing shall include without limitation compliance with the following requirements: b. Nondiscrimination. There shall be no discrimination against nor segregation of any person of group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or enjoyment of any of the Property, nor shall Declarant or any person claiming under the Declarant, establish or permit any practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of owners or vendees of the Property. C. Principal Residence. The Property shall be sold or otherwise transferred only to natural persons, who shall occupy the Property as the transferee's principal residence. The foregoing requirement that the purchaser of each home constituting the Property occupy the home as the purchaser's principal residence does not apply to: (i) Declarant; (ii) persons, other than natural persons, who acquire the Property or portion thereof by foreclosure or deed in lieu of foreclosure; or (iii) qualified entities that acquire the Property or portion thereof, with the consent of the Agency. d. Homeowner Income Requirements. The Property may be conveyed only to (a) natural person(s) whose annual household income at the time 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, and at an affordable price which allows monthly housing payments (principal, interest, taxes and insurance) of not more than 30% of the household's gross income. Item "a" above is hereinafter referred to as the Covenant and Restrictions. 3. kgency's Right to Purchase. If the Declarant (a) despite its good faith and best efforts to market to moderate income Households, including but not limited to working with a California licensed realtor to market and sell the home, cannot locate an Eligible Household to purchase the Unit within ninety (90) days after Declarant notifies the Agency in writing that he or she commences to market the Property; (b) transfers or attempts to transfer the Unit in violation of this Agreement; or (c) vacates, abandons or otherwise does not occupy the Property as its principal place of residence, the Agency, or its designee shall have the right but not the obligation, to purchase the Property at a price reflecting the Affordable Housing Cost using the maximum housing cost for a family of moderate income and the applicable Unit size as defined in the regulations governing Health and Safety Code Section 50052.5 (currently Title 25, California Code of Regulations, Section 6932), or any successor thereto. This right to purchase shall be exercised by the Agency by delivery of written notice to Declarant within sixty (60) days of notice from Declarant that one of the events described in (a) through (c) has occurred. If Agency exercises its right to purchase the Property, then close of escrow shall occur no later than ninety (90) days following the opening of escrow. 4. Enforcement of Restriction. Without waiver or limitation, the Agency and/or the Authority shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any Covenant and Restrictions, and shall, in addition, be entitled to damages for any injuries or losses resulting from any violations thereof. 5. Exceptions. The following transfers of title to the Property or any interest therein are not subject to these affordability restrictions: transfer by gift, devise or inheritance to the spouse, issue or adopted child of the Declarant of the Property; transfer resulting from the death of an Declarant when the transfer is to a co-Declarant or joint tenant, transfer by an Declarant to any person who becomes a co-Declarant of the Property provided the Declarant retains at least a thirty-three percent (33%) interest in the Property and the co-Declarant agrees to become a co-Declarant under the Affordable Housing Covenant; transfer of title to a spouse resulting from divorce, decree of dissolution or legal separation or from a property settlement agreement incidental to such a decree in which one of the Declarants becomes the sole Declarant; or acquisition of title to the Property or interest therein in conjunction with marriage; a transfer between co-Declarants or a transfer by Declarant into an inter vivos trust in which the Declarant is a beneficiary and the Declarant continues to occupy the Property 6. 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 Covenant and Restrictions. 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, is accepted and ratified by such future owners, tenant or occupant, and such Covenant and Restriction shall be 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 a FHA-insure mortgage to HUD, the Affordability Period shall be terminated if the foreclosure or other transfer in lieu of foreclosure or assignment recognizes any contractual or legal rights of public agencies, nonprofit sponsors, or others to take actions that would avoid the termination of low-income affordability. However, the requirements with respect to Affordable Housing 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 or those with whom the former owner has or had formerly, family or business ties, obtains an ownership interest in the Property. 7. Benefit. This Declaration shall run with and bind the Property for a term commencing on the date this Declaration is recorded in the Office of the Recorder of the County of Fresno, State of California, and expiring upon the expiration of the Affordability Period. The failure or delay at any time of Agency 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. 8. Costs and Attorne 's Fees. In any proceeding arising because of failure of Declarant or any future owner of the Property to comply with the Covenant and Restrictions required by this Declaration, as may be amended from time to time, Agency shall be entitled to recover its costs and reasonable attorney's fees incurred in connection with such default or failure. 9. Waiver. Neither Declarant nor any future owner of Property may exempt itself from liability for failure to comply with the Covenant and Restrictions required in the Declaration. 10. Severability. The invalidity of the Covenant and Restrictions 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. 11. 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 . 12. 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. 13. Amendment. No amendment or modification of this Declaration shall be permitted without the prior written consent of Agency. 14. Recordation. Declarant acknowledges that this Declaration will be filed of record in the Office of the Recorder of the County of Fresno, State of California. 15. Capitalized Terms. All capitalized terms used in this Declaration, unless otherwise defined herein, shall have the meanings assigned to such terms in that certain Agreement by and between Declarant and Agency, of even date. 16. Heading. The headings of the articles, sections, and paragraphs used in this Agreement are for convenience only and shall not be read or construed to affect the meaning or construction of any provision. 17. Notices. Notices required to be sent to the Agency shall be sent by certified mail, return receipt requested, to the following address: Agency: 848 M. Street, Third Floor Fresno, CA 93721 Attn: Executive Director (559) 621-7600 IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on the date first written above. DECLARANT Name: Date. (attach notary acknowledgment) Attachment: Exhibit "A" ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO ) On 20 before me, Notary Public, personally appeared _ _ _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose nary-}e(s) is/are subs-cribed to the withi-n instrument and a-cknowledged 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. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) EXHIBIT "A" to Declaration of Restrictions Legal Description EXHIBIT H FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF FRESNO IN ITS CAPACITY AS HOUSING SUCCESSOR TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO 848 M Street, Third Floor Fresno, CA 93721 Attn: Executive Director (Space Above This Line for Recorder's Office DECLARATION OF RESTRICTIONS (SELF-HELP HOME OWNERSHIP PROGRAM 60%) THIS DECLARATION OF RESTRICTIONS, (Declaration), is executed as of this - -- --- --by...... -------I (Declarant) in favor of the City of Fresno, a public body corporate and politic, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno (Agency). WHEREAS, Declarant is the owner of real estate in the County of Fresno, State of California located at: . which is more particularly described in Exhibit A attached hereto and made a part hereof (the "Property"); and WHEREAS, Declarant agrees to take title to the Property constructed and rehabilitated by the Agency utilizing Agency's Low Income Housing Funds (the "Funds"); and, WHEREAS, the Agency has developed a program to increase, improve and preserve the supply of home ownership opportunities to individuals and families with low and moderate incomes; and, WHEREAS, the California Community Redevelopment Law set forth at California Health and Safety Code Section 33000 et seq. imposes certain affordability requirements upon property benefitted by the Funds, which affordability restrictions are to be enforceable for a minimum 45 year period-, and WHEREAS, these restrictions are intended to bind all purchasers and their successors. NOW THEREFORE, in consideration of the economic benefits inuring to the Declarant and the public purposes to be achieved under the affordable housing program, 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 plan for the rehabilitation and/or sale of the Property. 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 Agency and will be enforceable by the Agency. 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 for the period of 45 years constituting the Affordability Period. 1 . Declarations. Declarant hereby declares that the Property is and shall be subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of affordable housing purposes and use, and are established and agreed upon for the purpose of enhancing and protecting the value of the Property and in consideration for the economic benefits inuring to 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 Agency, and shall run with the Property and be binding on any future owners of the Property and inure to the benefit of and be enforceable by the Agency. These covenants and restrictions are as follows: a. Declarant covenants and agrees that from the completion date of construction until the expiration of the Affordability Period it shall cause the Property to be used for Affordable Housing. Unless otherwise provided in the Agreement, the term Affordable Housing shall include without limitation compliance with the following requirements.. b. Nondiscrimination. There shall be no discrimination against nor segregation of any person of group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or enjoyment of any of the Property, nor shall Declarant or any person claiming under the Declarant, establish or permit any practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of owners or vendees of the Property. e Principal Residence. The Property shall be sold or otherwise transferred only to natural persons, who shall occupy the Property as the transferee's principal residence. The foregoing requirement that the purchaser of each home constituting the Property occupy the home as the purchaser's principal residence does not apply to: (i) Declarant; (ii) persons, other than natural persons, who acquire the Property or portion thereof by foreclosure or deed in lieu of foreclosure; or (iii) qualified entities that acquire the Property or portion thereof, with the consent of the Agency. d. Homeowner Income Requirements. The Property may be conveyed only to (a) natural person(s) whose annual household income at the time is not greater than 60% of the most recent annual median income calculated and published by HUD for the Fresno Metropolitan Statistical Area applicable to such household's size, and at an affordable price which allows monthly housing payments (principal, interest, taxes and insurance) of not more than 30% of the household's gross income. Item "a" above is hereinafter referred to as the Covenant and Restrictions. 3. Agency's Right to Purchase. If the Declarant (a) despite its good faith and best efforts to market to moderate income Households, including but not limited to working with a California licensed realtor to market and sell the home, cannot locate an Eligible Household to purchase the Unit within ninety (90) days after Declarant notifies the Agency in writing that he or she commences to market the Property; (b) transfers or attempts to transfer the Unit in violation of this Agreement, or (c) vacates, abandons or otherwise does not occupy the Property as its principal place of residence, the Agency, or its designee shall have the right but not the obligation, to purchase the Property at a price reflecting the Affordable Housing Cost using the maximum housing cost for a family of moderate income and the applicable Unit size as defined in the regulations governing Health and Safety Code Section 50052.5 (currently Title 25, California Code of Regulations, Section 6932), or any successor thereto. This right to purchase shall be exercised by the Agency by delivery of written notice to Declarant within sixty (60) days of notice from Declarant that one of the events described in (a) through (c) has occurred. If Agency exercises its right to purchase the Property, then close of escrow shall occur no later than ninety (90) days following the opening of escrow. 4. Enforcement of Restriction. Without waiver or limitation, the Agency and/or the Authority shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any Covenant and Restrictions, and shall, in addition, be entitled to damages for any injuries or losses resulting from any violations thereof. 5. Exceptions. The following transfers of title to the Property or any interest therein are not subject to these affordability restrictions: transfer by gift, devise or inheritance to the spouse, issue or adopted child of the Declarant of the Property; transfer resulting from the death of an Declarant when the transfer is to a co- Declarant or joint tenant; transfer by an Declarant to any person who becomes a co-Declarant of the Property provided the Declarant retains at least a thirty-three percent (33%) interest in the Property and the co-Declarant agrees to become a co-Declarant under the Affordable Housing Covenant; transfer of title to a spouse resulting from divorce, decree of dissolution or legal separation or from a property settlement agreement incidental to such a decree in which one of the Declarants becomes the sole Declarant; or acquisition of title to the Property or interest therein in conjunction with marriage; a transfer between co-Declarants or a transfer by Declarant into an inter vivos trust in which the Declarant is a beneficiary and the Declarant continues to occupy the Property 6. 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 Covenant and Restrictions. 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, is accepted and ratified by such future owners, tenant or occupant, and such Covenant and Restriction shall be 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 a FHA-insure mortgage to HUD, the Affordability Period shall be terminated if the foreclosure or other transfer in lieu of foreclosure or assignment recognizes any contractual or legal rights of public agencies, nonprofit sponsors, or others to take actions that would avoid the termination of low-income affordability. However, the requirements with respect to Affordable Housing 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 or those with whom the former owner has or had formerly, family or business ties, obtains an ownership interest in the Property. 7. Benefit. This Declaration shall run with and bind the Property for a term commencing on the date this Declaration is recorded in the Office of the Recorder of the County of Fresno, State of California, and expiring upon the expiration of the Affordability Period. The failure or delay at any time of Agency 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. 8. Costs and Attorney's Fees_ In any proceeding arising because of failure of Declarant or any future owner of the Property to comply with the Covenant and Restrictions required by this Declaration, as may be amended from time to time, Agency shall be entitled to recover its costs and reasonable attorney's fees incurred in connection with such default or failure. 9. Waiver. Neither Declarant nor any future owner of Property may exempt itself from liability for failure to comply with the Covenant and Restrictions required in the Declaration. 10. Severability. The invalidity of the Covenant and Restrictions 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. 11 . 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. 12. 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. 13. Amendment. No amendment or modification of this Declaration shall be permitted without the prior written consent of Agency. 14. Recordation. Declarant acknowledges that this Declaration will be filed of record in the Office of the Recorder of the County of Fresno, State of California. 15. Capitalized Terms. All capitalized terms used in this Declaration, unless otherwise defined herein, shall have the meanings assigned to such terms in that certain Agreement by and between Declarant and Agency, of even date. 16. Heading_ The headings of the articles, sections, and paragraphs used in this Agreement are for convenience only and shall not be read or construed to affect the meaning or construction of any provision. 17. Notices. Notices required to be sent to the Agency shall be sent by certified mail, return receipt requested, to the following address: Agency: 848 M. Street, Third Floor Fresno, CA 93721 Attn: Executive Director (559) 621-7600 IN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on the date first written above. DECLARANT Name: Date: (attach notary acknowledgment) Attachment: Exhibit A ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO ) On 20 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. (SEAL) EXHIBIT "A" to Declaration of Restrictions Legal Description EXHIBIT I [Promissory Note] EXHIBIT J [Deed of Trust]