HomeMy WebLinkAbout1501 N Blackstone Ave. - Blackstone and Mckinley - OPA - 2016rü-
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno as Housing Successor to the
Redevelopment Agency of the City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca.93721
Attention : Executive Director
THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
CITY OF FRESNO, a municipal
corporation, in its capacity as Housing
Successor to the Redevelopment
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By:
Its: Executive Director
OWNER PARTICIPATION 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
1501 N. BLACKSTONE AVE., L.P., a california rimited partnership
Blackstone and McKinley Mixed Use Development
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ATTACHMENTS
1. Exhibit A: Legal Description of Property
2. Exhibit B: Schedule of Performance/Payment Schedule
3. Exhibit C: Budget/Financial Plan
4. Exhibit D: Certificate of Completion
5. Exhibit E: Scope of Development and Project Design
6. Exhibit F: Form of Regulatory Agreement and Declaratíon of
Covenants and Restrictions
7. Exhibit G: Form of Promissory Note
8. Exhibit H: Form of Deed of Trust
a
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is entered as of
the Effective Date (defined in this Agreement), by and among the CITY OF FRESNO, a
municipal corporation, in its capacity as Housing Successor to the Redevelopment
Agency of the city of Fresno ("city"), and 1501 N. BLACKSTONE AVE. L.p., a
California limited partnership ("Owner").
RECITALS
The parties enter this Agreement based on the following facts, understandings,
and intentions:
A. City is the housing successor in interest to the Redevelopment Agency of the
City of Fresno ("Former RDA') pursuant to Resolution No. 2012-12, and as such
assumes all housing rights and obligations of the Former RDA; and
B. City is responsible for administration of the Low and Moderate lncome Housing
Asset Fund pursuantto Sections 34176 and 34176.1 of the Health & Safety Code, as
amended most recently by Senate Bill 341, effective on January 1,2014.
C. Owner owns, or will acquire, all rights, title and interest in fee to the certain real
property described in Exhibit 'rA" attached hereto and incorporated herein (the
"Property"), including improvements located thereon which shall be improved by Owner
as contemplated by this Agreement located at 1501 -1531 North Blackstone Avenue and
1631 East Home Avenue, Fresno, California (the "Project"). The Property and Project
are located within the territorialjurisdiction of the City.
D. Owner proposes to develop a new mixed use project on the Property consisting
of ninety one (91) residential rental units and 8,500 square feet of ground floor retail.
Eighty one (81) units shall be available to households earning 60% or less of the Area
Median lncome (AMl), and nine (9) units shall be available to households earning 30%
or less AMI (collectively, the "Affordable Units"). The Affordable Units are to be rented
and preserved as Affordable Rental Housing for a period of fifty five (55) years.
E. Owner agrees to undertake improvements in accordance with the combined
Performance and Payment Schedule described in Exhibit "8" attached hereto and
incorporated herein (the "Performance and Payment Schedule").
F. To the extent Housing Set Aside Funds will exceed 50 percent of the cost of
producing the Affordable Units, the City has determined based on substantial evidence,
that the use of the Funds is necessary because the City or Owner of the Affordable
Units has made a good faith attempt but been unable to obtain commercial or private
means of financing the units at the same level of affordability and quantity. The Project
aJ
is not feasible and cannot be completed and restricted to the affordable rental housing
purposes and uses provided under Law and this Agreement absent the financial support
of the City.
G. The Property and associated on site and off site improvements are collectively
referred to in this Agreement as the "lmprovements" or the "Project," all of which will
directly benefit the Property and the Affordable Units, cannot othen¡vise be reasonably
paid for or financed solely through private financing, and are necessary to eliminate
blight.
H. City is willing to assist Owner's construction of the Affordable Units by making
available to Owner as a loan certain Low to Moderate lncome Housing Asset Funds in
the amount of $1,500,000 (the "Loan") upon the terms and conditions specified in this
Agreement. The Loan shall be allocated such that $1,500,000 shall secure affordability
covenants on the nine (9) units available to extremely low income families (30% AMI),
and in addition, in consideration of this Agreement, affordability covenants on the eighty
one (81) units available to lower income families (60% AMI).
l. The Loan shall be paid in accordance with the schedule set out in Exhibit "B" to
the Agreement and repaid in accordance with the promissory note a specimen of which
is attached hereto as Exhibit "G". The Loan and performance of the affordability and
other covenants and restrictions set forth in this Agreement shall be evidenced by this
Agreement and the Restrictions and Deed of Trust, attached hereto as Exhibit "H,"
which shall be recorded against and run with and encumber the Property. Said
Agreement, Restrictions and Deed of Trust shall be recorded concurrent with
construction loan closing.
NOW THEREFORE, in consideration of the above recitals, which are contractual
in nature, the mutual covenants contained herein and such other and further
consideration as is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the
definitions in this Section will govern the construction, meaning, application and
interpretation of the various terms used in this Agreement.
1.1 "ADA" means the Americans with Disabilities Act of 1990.
"Affordability Period" means a period of fifty-five (55) years commencing
from the date City records the Certificate of Completion.
"Affordable Rental Housing" or "Affordable Units" means the ninety (g0)
Units available at affordable rent, as defined by Cal. H.&S.C. Section
50052.5 (4), to persons and families of low and extremely low income, as
1.2
1.3
4
defined in Cal. H.&S.C. Section 50106 of Code, consistent with Recital D
above which requirements shall be enforceable by covenants running with
the land. As used in this Agreement, the term "Affordable Rent" shall
mean annual rentals whose amount does not exceed the maximum
percentage of income that can be devoted to rent as set forth by Health &
Safety Code Section 50053, or its successor, for extremely low, very low,
lower, and moderate income households, which is currently thirty percent
(30%) of thirty percent (30%) for extremely low, thirty percent (30%) of fifty
percent (50%) for very low, thirty percent (30%) of sixty percent (60%) for
lower, and thirty percent (30%) of one-hundred ten percent (110%) for
moderate of the Fresno Metropolitan Statistical Area Median lncome
adjusted for family size appropriate for the Unit. There will be no less than
ninety (90) Affordable Units, and no less than nine (9) of the Affordable
Uníts shall be for extremely low income households.
1.4 "Agreement" means this Owner Participation Agreement.
1.5 "Budget" means the BudgeUFinancial Plan for the Project attached hereto
and incorporated herein as Exhibit "C" (the "Budget").
1.6 "Certificate of Completion" means that Certificate issued in the form
attached as Exhibit "D" to Owner by City evidencing completion of the
Project for purposes of this Agreement.
1.7 "City" shall mean the City of Fresno, California, a municipal corporation,
acting in its capacity as Housing Successor to the Redevelopment Agency
of the City of Fresno.
1.8 "Conditions Precedent of City" means the conditions precedent to the
effectiveness of this Agreement against the City.
1.9 "Day" whether or not capitalized, means a calendar day, unless stated
otheruise.
1.10 "Deed of Trust" shall mean the Deed of Trust recorded against the
Property securing the Loan, as shown in Exhibit "H" of this Agreement.
1.11 "Default" means a party's failure to timely perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.12 "Director" means the Executive Director of City in its Capacity as Housing
Successor.
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1.13 "Entitlements" mean all permits and fees that the City, County of Fresno,
and other governmental agencies with jurisdiction over the Project, the
lmprovements or the Property may require.
1.14 "Effective Date" means the date of complete execution of the Agreement
following City approval thereof.
1.15 "Environmental Laws" means any federal, state, or local law, statute,
ordinance or regulation pertaining to environmental regulation,
contamination or cleanup of any Hazardous Materials or waste including,
without limitation, any state or federal lien or "super lien" law, any
environmental cleanup statute or regulation, or any governmentally
required permit, approval, authorization, license, variance or permission.
1.16 "Funding Source" means the Loan and other funding sources secured by
Owner to construct the lmprovements.
1.17 "Financing Plan" means the Budget including sources and uses of funds
sufficient for Owner to complete the lmprovements according to the
Performance and Payment Schedule.
1.18 "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 byphenyls, (h) listed under Article g or
defined as "hazardous" or "extremely hazardous" under Article 11 of Title22, California Administrative Code, (l) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C.
51317), fi) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act(42 U.S.C. 56901 ef seq., or (k)
defined as "hazardous substances" pursuant to Section of the
Comprehensive Environmental Response, Compensation, and Liability
AcI (42 U.S.C. 59601 , et seq.); provided, however, hazardous materials
shall not include: (1) construction materials, gardening materials,
household products, office supply products or janitorial supply products
customarily used in the construction, maintenance, rehabilitation, or
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management of residential rental housing or associated buildings and
grounds, or typically used in household activities, in a manner typical of
other residential rental housing developments which are comparable to
the lmprovements; and (2) certain substances which may contain
chemicals listed by the State of California pursuant to Health and Safety
Code Sections 25249.8 et seq., which substances are commonly used bya significant portion of the population living within the region of the
Property, including, but not limited to, alcoholic beverages, aspirin,
tobacco products, NutraSweet and saccharine.
1 .19 "Household" means one or more persons occupying an Affordable Unit,
1.20 "Housing Set-Aside Funds" means those California Health and Safety
Code Section 34176 and 34176.1 monies in the Low and Moderate
Income Housing Asset Fund held and administered by City a porlion of
which shall be made available as the Loan to Owner for eligible costs and
expenses incurred by Owner in constructing the lmprovements in such
amounts, and upon such terms and conditions specified in this
Agreement.
1.21 "lmprovements" mean the construction of the Affordable Units and other
units that Owner will complete on the Property as part of the Project,
including associated fencing, and landscaping improvements.
1.22 "Law" means the Community Redevelopment Law of the State (California
Health and Safety Code Sections 33000 ef seq.) and the Dissolution Law
(Assembly Bill x1 26, the California Supreme Court's decision in California
Redevelopment Association, et al. v. Matosantos, Assembly Bill 1484,
Senate Bill 341, and other subsequent dissolution legislation).
1.23 "Loan" means the principal sum of $1,500,000 provided by city to owner
as a loan, upon the terms and conditions set forth in this Agreement and
the Promissory Note attached hereto as Exhibit "G" to be secured by a no
worse than 3rd position deed of trust lien against the Property. lf the deed
of trust securing the Promissory Note is recorded prior to the recordation
of the deed or deeds of trust securing the other Funding Sources
consistent with the Financing Plan, the City shall subordinate such deed of
trust to such other deed(s) of trust, so long as the City deed of trust is no
worse than third position. The Loan shall be allocated such that
$1,500,000 shall secure affordability covenants on the nine (9) units
available to extremely low income families, and in addition, affordability
covenants on the eighty one (81) units available to lower income families.
Notwithstanding, the City will enter into a commercially reasonable
intercred itor ag reement.
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1.24 "Loan Documents" are collectively this Agreement and all exhibits and
attachments thereto any deed of trust given as security, as they may be
amended, modified or restated from time to time.
1.25 "Material Change" means a change, modification, revision or alteration to
the Loan Documents that significantly deviates from those previously
approved by the City, provided that fully funded change(s) which do not
result in a change in the number or type (i.e. residential, affordable) of
Units and/or an increase in the total Loan funding provided in this
Agreement shall not constitute Material Change(s).
1.26 "Owner" means 1501 N. Blackstone Ave., L.P., or an affiliate company in
which it is a Member, Managing Member, Principal, or General Partner.
1.27 "Project" means the mixed-use development including ninety one (91)
residential Units on the Property, of which ninety (90) Units shall be
Affordable Rental Housing.
1.28 "Project Completion Date" means the date that City shall have determined
the Project has reached completion in accordance with the plans and
specifications in the Performance and Payment Schedule, as evidenced
by City's issuance of a Certificate of Completion.
1.29 "Property" means the real property described in Exhibit "A," attached
hereto.
1.30 "Release of Restrictions" means a release of those covenants, conditions
and restrictions contained in this Agreement.
1.31 "Restrictions" means the affordability restrictions contained in this
Agreement and Exhibit "F" thereto, containing all conditions, covenants,
and restrictions required by the Law, any other applicable laws and
regulations, and this Agreement, running with the property and the
Affordable Units thereon and burdening such for the Affordability Period.
1.32 "Performance and Payment Schedule" means the schedule attached as
Exhibit "8," setting forth the dates and times by which the parties must
accomplish certain obligations under this Agreement. The parties may
revise the Performance and Payment Schedule from time to time on
mutual written agreement of Owner and City, but any delay or extension of
the Completion Date is subject to the requirements in this Agreement.
1.33 "Security Financing lnterest" means a security interest which Owner
grants in the Property and the lmprovements thereon before the City
issues and records a Release of Restrictions.
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2.
1.34 "Unit" mean a residential unit constituting the Project.
CONDITIONS PRECEDENT TO CITY'S OBLIGATION TO PERFORM UNDER
THIS AGREEMENT. The following are conditions precedent to City's obligation
to perform under this Agreement. Until each and all of the conditions are
satisfied, City is not obligated to take any action, or provide any funding, or
further funding, under this Agreement. City, in writing by its authorized
representative, may waive any condition or agree to extend the time for
satisfaction of any condition set forth in this Section 2. City may terminate this
Agreement as provided herein for the failure of a condition.
2.1 Owner shall pay for and provide a title report, recorded deed or other
evidence acceptable to City that Owner owns the Property.
2.2 Owner has entered into, and provided City copies of agreements with any
and all funding sources and the general contractor for the Project. All
such funding source agreements shall contain a provision whereby the
party(ies) to each such agreement, other than Owner, agree to make
reasonable efforts to (i) notify City immediately of any event of default by
Owner under such agreement; (ii) notify City immediately of termination or
cancellation of such agreement; and (iii) provide City, upon City's request,
an estoppel certificate certifying that such agreement is in full force and
effect and Owner is not in default under such agreement.
2.3 Owner has submitted evidence that the combined monies from the
Funding Sources are not less than the greater of a total development cost
of $27,212,896 or the amount which City determines is necessary to
complete the Project, including evidence of a loan commitment for such
Funding Sources acceptable to the City. Owner intends to apply for one
or more of the following sources of funds: (A) Affordable Housing and
Sustainable Communities Funding ("AHSC") administered by the
California Department of Housing and Community Development with an
application date of February 2016; (B) the Low lncome Housing Tax Credit
program administered by the California Tax Credit Allocation Committee in
the FY 16117 Round 1 cycle with an application date of March 2017. lf
Owner does not receive 9o/o tax credits in Round 1, Owner may apply in
Round 2 2017 with an application date in July 2017. lf Owner fails to
obtain both a funding commitment from AHSC (or equivalent) funding and
a 9% tax credit reservation letter within the timeframe set forth above and
in no event later than October 15, 2017, then this Agreement will
automatically terminate. lf City determines that said funds are not
sufficient to complete the Project, Owner may satisfy this condition as
agreed to by Owner and City in writing.
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2.4 Owner will submit its Financing Plan to the City for review and acceptance
provided that the purpose of City's review is solely to confirm Owner has
sufficient funds available to complete the lmprovements and maintain
Project as this Agreement requires.
After City accepts the Financing Plan, Owner will not make any Material
Change in the Financing Plan without first submitting such change to City
for review and acceptance, which shall not be unreasonably withheld,
delayed or conditioned.
Owner, at Owner's expense, shall have investigated and determined all
environmental, soil, seismic, and other surface and subsurface conditions
of the Property and the suitability of such conditions for the Project.
Owner's responsibility and due diligence includes, but is not limited to,
determining the presence of Hazardous Materials. Both Owner and City
will promptly give the other copies of all reports and test results. Owner
will indemnify, defend, and hold City harmless from any damages or
claims arising out of Owner's inspections and tests.
Should Owner's property assessmenUinspection reveal any Hazardous
Materials or environmental conditions requiring remediation, Owner will
promptly notify City. Not later than ten (10) days from and after such
notice, Owner shall, at its sole cost and expense, commence to make
required submittals, develop required remedial action plans, and thereafter
pursue remediation activities as to such Hazardous Materials or
environmental conditions and to diligently prosecute such to completion as
required by applicable federal, state and local law and in a manner and
according a reasonable time frame agreeable to City. Without limiting the
foregoing, any remediation will be performed pursuant to a remedial action
plan, ¡f needed, approved by the governmental agencies having
jurisdiction and will be performed according to applicable environmental
laws and governmental requirements.
Owner shall not be in default of this Agreement and all representations
and warranties of Owner contained herein shall be true and correct in all
material respects.
2.7.1 Owner will have signed and delivered all documents required
hereunder.
2.7.2 Owner will have received all land use and development approvals,
variances, permits and the like required for development of the Project.
2.7.3 Owner shall be in full compliance with the Performance and
Payment Schedule.
2.5
2.6
2.7
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2.9
Owner will have provided proof of insurance as required by this
Agreement.
This Agreement, the executed Deed of Trust, and the executed
Restrictions shall have been recorded with the Fresno County Recorder's
Office.
3 . OWNER OBLIGATIONS AFTER SATISFACTION OF CONDITIONS
PRECEDENT. The following obligations of Owner will run with the land and survive this
Agreement:
3.1 Owner will take all reasonable precautions to prevent the release into the
environment of any Hazardous Materials in, on or under the Property in
violation of applicable laws or regulations. Owner will comply with all
governmental requirements with respect to Hazardous Materials. ln
addition, Owner shall install and use equipment and implement and follow
procedures that are consistent with reasonable standards for the
disclosure, storage, use, removal and disposal of Hazardous Materials.
3.2 Owner will notify the City and give City a copy of all environmental
permits, disclosures, applications, entitlements or inquiries relating to the
Property including, without limitation, notices of violation, notices to
comply, citations, inquiries, cleanup or abatement orders, cease and
desist orders, reports filed pursuant to self-reporting requirements and
reports filed or applications made pursuant to any governmental regulation
relating to Hazardous Materials. Within 3 days after each incident, Owner
will report to City any unusual or potentially important incidents respecting
the environmental condition of the Property.
lf a release of any Hazardous Materials into the environment occurs,
Owner will, as soon as possible after the release, furnish City with a copy
of any reports relating thereto and copies of all correspondence with
governmental agencies relating to the release. Upon request, Owner will
furnish City with a copy of any other environmental entitlements or
inquiries relating to or affecting the Properly including, without limitation,
all permit applications, permits and reports, even reports and other
matters.
3.3 From the Effective Date of this Agreement, Owner shall indemnify, hold
harmless and defend City, City and each of their officers, officials,
employees, agents and volunteers from any and all claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, reasonable attorneys'
2.8
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3.4
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 transpodation of
Hazardous Materials on, under, in or about, to or from, the property. This
indemnity will include, without limitation, any damage, liability, fine,
penalty, parallel indemnity after closing, cost or expense arising from or
out of any claim, action, suit or proceeding for personal injury (including
sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic
loss, damage to the natural resource or the environment, nuisance,
contamination leak, spill, release or other adverse effect on the
envíronment. Owner's obligations under the preceding sentence shall
apply regardless of whether city, city or any of their officers, officials,
employees, agents or volunteers are negligent, but shall not apply to any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency,
fine, penalty, punitive damage, or expense caused solely by the gross
negligence, or caused by the willful misconduct, of city, city or any of their
officers, officials, employees, agents or volunteers. This section shall
survive expiration or termination of this Agreement.
The status and qualifications of Owner are of particular concern to City.
From the Effective Date of this Agreement until the Restrictions expire, no
voluntary or involuntary successor-in-interest of owner will acquire any
rights or powers under this Agreement, provided that the parties
acknowledge the Owner shall hold the Affordable Units for rental as
Affordable Rental Housing as provided in this Agreement.
Notwithstanding anything to the contrary herein, owner shall have the
right to transfer ownership of the Property to another person or entity
having experience in the ownership and operation of Affordable Rental
Housing, as reasonably determined by city, which approval shall not be
unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, the sale of a partnership interest to generate proceeds in
consideration of Tax Credits shall be a pre-approved transfer. ln addition,
the Developer's limited partner and any successor thereto, may, without
the prior consent of the City and except as set forth in the senior permitted
liens, sell, transfer, assign, pledge, hypothecate, and encumber some or
all of the partnership interests in the Developer and the same shall not be
a violation of this Agreement. The Developer's limited partner and ay
successor thereto, shall have the right, without the prior consent of the
city and except as set forth in the senior permitted liens, to remove any or
all of the Developer's general partners for cause as permitted under
Developer's limited partnership agreement and replace any or all removed
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general partners with a person or entity determined in the limited partner's
sole discretion.
4. DEVELOPMENT OF THE PROPERTY.
4.2
Except as set forth in this Agreement, before Owner begins constructing
the lmprovements or undertakes any other work of improvement on the
Property, Owner, at its own cost and expense, will secure all land use and
other entitlements, permits, and approvals that City or any other
governmental agency with jurisdiction over the Project requires for
construction of the Project. Without waiver or limitation, Owner will secure
and pay all costs, charges and fees associated with, the following:
4.1.1 All permits and fees that the City, County of Fresno, and
other governmental agencies with jurisdiction over the Project, the
lmprovements or the Property may require.
4.1.2 ADA/Barriers to the Disabled. The Project shall comply with
all applicable federal, state and local accessibility requirements.
scope of Development and Project Design. owner has submitted a
general or basic concept drawing to City, and a copy of which is attached
as Exhibit "E" (the "Scope of Development and Project Design"). Owner
will complete the lmprovements on the Property in one phase, according
to the Scope of Development and Project Design, and the plans,
drawings, and documents that owner submits to city. owner shall carry
out construction of the Project including the lmprovements in accordance
with all applicable local, state and federal laws, codes, ordinances and
regulations, including withoqt limitation all applicable state and federal
labor standards.
Books and Records. Owner shall make available for examination at
reasonable intervals and during normal business hours, all books,
accounts, reports, files and other papers or property with respect to all
matters covered by this Agreement, and shall permit City to audit,
examine and make excerpts or transcripts from such records. City may
audit any conditions relating to this Agreement at city's expense, unless
such audit shows a materially significant discrepancy in information
reported by Owner to City in which case Owner shall bear the cost of such
audit. Owner shall also reasonably cooperate with and assist the City in
City's compliance with any applicable audit requirements of the California
Redevelopment Law including California Health and Safety Code Sections
33080 and 33080.1. This section shall survive for a period of four years
after the expiration or termination of this Agreement.
4.1
4.3
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4.4 Audit. Owner shall be accountable to City for all Loan funds disbursed to
Owner pursuant to this Agreement. Owner will cooperate fully with City
and the State of California in connection with any interim or final audit
relating to the Project that may be performed. Owner will maintain
accurate and current books and records for the Project using generally
accepted accounting principles. Owner agrees to maintain books and
records that accurately and fully show the date, amount, purpose and
payee of all expenditures financed with Loan funds and to keep all
invoices, receipts and other documents related to expenditures financed
with Loan funds for not less than four (4) years after the fiscal year in
which such expenditures are incurred. For purposes of this section,
"books, records and documents" include, without limitation, plans,
drawings, specifications, ledgers, journals, statements,
contracts/agreements, funding information, purchase orders, invoices,
loan documents, computer printouts, correspondence, memoranda and
electronically stored versions of the foregoing. This section shall survive
4.5
for a period of four years
Agreement.
Owner shall cause the
after the expiration or termination of this
issuance of all necessary discretionary
governmental permits, approvals and entitlements, close any implicated
funding or other escrow and begin/complete construction of the
lmprovements according to the Performance and Payment Schedule.
4.5.1 Project Completion. City, acting through and in the
discretion of its Director, may extend dates within the performance
schedule and/or the completion date of the Project for that period of
time that City, in its reasonable discretion, determines necessary to
overcome any delay if and to the extent such delay is due to a
cause which is beyond Owner's reasonable control, and if Owner
could not, with reasonable diligence, have foreseen and avoided
such cause for delay. Such causes include, without limitation, acts
of God, unusually severe weather or flood, war, terrorism, riot or act
of the public enemy, labor disputes, unavoidable inability to secure
labor, materials, supplies, tools or transportation, or acts or
omissions of any governmental authority having jurisdiction. City
will not extend the completion date for acts or omissions occurring
through the fault of Owner. An extension of time as provided in this
subsection will be Owner's sole remedy for any delays in the
Performance and Payment Schedule the Project completion date.
As a condition precedent to any extension requested by Owner,
Owner will give the City notice within ten (10) days after any cause
for delay occurs, stating the cause and the additional time Owner
anticipates needed to complete the Project. Any extension by City
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4.6
4.7
must be in writing and signed by the Director or the Director's
designee, which approval shall not be unreasonably withheld,
delayed or conditioned.
Subject to the terms of this Agreement, the Loan shall be disbursed to
Owner according to the terms of this Agreement including Sections 2.2
and 2.3, and the Performance and Payment Schedule. All Loan funds
shall be used solely for costs of the Project and lmprovements.
Certificate of Completion. Owner will notify City when Owner deems the
Project complete. Within ten (10) business days after such notice, City will
inspect the lmprovements. When City reasonably determines Owner has
completed the lmprovements as required in this Agreement and the Law,
City will furnish Owner with the Certificate of Completion. City will not
unreasonably delay, condition or refuse to issue the Certificate of
Completion. The recorded Certificate of Completion will be a conclusive
determination that Owner has satisfactorily completed the lmprovements
required under this Agreement. Any parties then owning or subsequently
purchasing, leasing or otherwise acquiring any interest in the Property will
not (because of that ownership, purchase, lease or acquisition) after the
recording, incur any obligation or liability under this Agreement for
constructing the lmprovements, but will take such interest in the Property
subject to the continuing covenants set forth in this Agreement.
4.7.1 lf City determines not to furnish the Certificate of
Completion, in accordance with Section 4.7 above, City will give
Owner a written notice stating why City has decided not to issue the
Certificate of Completion, or why it is delaying the issuance, and
the reasonable actions that, in City's opinion, Owner must take
before City can issue the Cedificate of Completion. City's failure to
give the notice within ten (10) days, however, will not cause the
Owner to be entitled to the Certificate of Completion. The
Certificate of Completion is not a notice of completion as referred to
in Section 3093 of the California Civil Code.
4.7.2 The following are conditions precedent to City issuing the
Certificate of Completion, and each submission will be in form and
substance satisfactory to the Director: Evidence that the time to file
all mechanics' liens or material men's liens has expired and any
such liens recorded against the Property or lmprovements have
been released or, if not released, sufficiently bonded (i.e. 150%)
against as required by law.
To the extent economically feasible, consistent with the requirements of
any permitted encumbrance, or as othenruise approved by City or provided
4.8
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in the Agreement, if any building or improvement on the Property is
damaged or destroyed by an insurable cause, Owner shall, at its cost and
expense, diligently undertake to repair or restore said buildings and
improvements consistent with the Scope of Development and Project
Design for the Project. Such work or repair shall commence within ninety
(90) days after the insurance proceeds are made available to Owner and
shall be complete within one (1) year thereafter. All insurance proceeds
collected for such damage or destruction shall be applied to the cost of
such repairs or restoration and, if such insurance proceeds shall be
insufficient for such purpose, Owner shall make up the deficiency.
4.9 lnspections. Owner shall permit, facilitate and require its contractors to
permit and facilitate observation and inspection of the Project by City
during reasonable business hours and upon reasonable notice for the
purpose of determining compliance with this Agreement.
4.10 lf and to the extent that development of the Project results in the
permanent or temporary displacement of residential tenants, homeowners
or businesses, Owner shall comply with all applicable local, state and
federal statutes and regulations with respect to relocation planning,
advisory assistance and payment of monetary benefits. Owner shall be
solely responsible for payment of any relocation benefits to any displaced
persons and any other obligations associated with complying with said
relocation laws. For purposes of this section 4.10 the parties
acknowledge that as of the Effective Date the Project Property is vacant
and unoccupied.
4.11 Reporting Requirements. Owner shall submit to City the following reports:
4.11.1 Annual Reports. Annually, beginning in the year
following City's issuance of the Certificate of Completion, and
continuing until the expiration of this Agreement, on such dates as
are agreeable between the parties and consistent with all federal
and state reporting requirements applicable to the Project, Owner
shall submit an annual report to City, in a form approved by City.
Such annual report shall include for each of the Affordable Units:
the rent, the annual income and the family size of the Household
occupying the Affordable Unit. Such annual report shall also state
the date the tenancy commenced for each Affordable Unit,
certification from an officer of Owner that the Affordable Unit is in
compliance with the Affordable Rental Housing requirements, and
such other information the City may be required by Law to obtain.
Owner shall provide any additional information reasonably
requested by the City provided such information is directly related
to Owner's compliance with this Agreement.
16-
4.11.2 Annual Proof of lnsurance. Annually, beginning in the
year following City's issuance of the Certificate of Completion, and
continuing until the expiration of the Agreement, Owner shall
submit proof of insurance as required by this Agreement.
4.12 All Leases used to rent the Affordable Units are subject to the following:
4.12.1 Annual lncome Certification and Reporting. Owner
shall include in leases for all Affordable Units provisions which
authorize Owner to immediately terminate the tenancy of any
Household one or more of whose members misrepresented any
fact material to the Household's qualification as a Household for
low income family. Each such lease shall also provide that the
Household is subject to annual certification, and that, if the
Household's annual income increases above the applicable limits
for low income family such Household's rent may be subject to
increase to the amount payable by tenant under federal, state or
local law, except that, consonant with the Law, tenants of the
Affordable Units that have been allocated to low income housing
tax credits by a housing credit agency pursuant to section 42 of
the lnternal Revenue code of 1986 (26 u.s.c. 42) must pay rent
governed by Section 42.
4.12.2 The leases for the Affordable Units shall provide that
if the Project is subject to state or federal rules governing low
income housing tax credits, the provision of those rules regarding
continued occupancy by, and increases in rent for, Households
whose incomes exceed the eligible income limitation shall apply in
place of the provisions set forth in subsection 4.12.1 above.
4.13 with respect to the Project, owner shall comply with the following:
Except to any extent othenruise provided in this
Agreement, Owner is specifically responsible for all management
functions with respect to the Affordable Units including, without
limitation, the selection of tenants, certification and re-certification
of Household size and income, evictions, collection of rents and
deposits, maintenance, landscaping, routine and extraordinary
repairs, replacement of capital items and security. City shall have
no responsibility for management of the Affordable Units of the
Project.
4.14 Owner covenants and agrees the Affordable Units shall constitute
Affordable Rental Housing during the entire Affordability Period. lf Owner
4.13.1
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5.
fails to comply the requirement to lease the Affordable Units only to
qualified Households during the Affordability period, as described in the
attached Form of Regulatory Agreement and Declaration of Covenants
and Restrictions attached hereto as Exhibit "F," City shall be entitled to
enjoin Owner from leasing the Affordable Units in the Project, as Owner
acknowledges that damages are not an adequate remedy at law for such
breach.
INDEMNITY; INSURANCE
5.1 Owner shall indemnify, hold harmless and defend City, City and each of
their officers, officials, employees, agents from any and all loss, liability,
fines, penalties, forfeitures, costs and damages (whether in contract, tort
or strict liability, including but not limited to personal injury, death at any
time and property damage) incurred by City, City, Owner, or any other
person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to
have arisen directly or indirectly out of Owner's performance of this
Agreement. Owner's obligations under the preceding sentence shall not
apply to any loss, liability, fines, penalties, forfeitures, costs or damages
caused solely by the gross negligence, or caused by the willful
misconduct, of City, City or any of their officers, officials, employees,
agents or volunteers. This section shall survive expiration or termination
of this Agreement.
5.2 Throughout the life of this Agreement, the Owner shall pay for and maintain
in full force and effect all policy(ies) of insurance required hereunder with
an insurance company either (1) admitted by the California lnsurance
Commissioner to do business in the State of California and rated not less
than "A-Vll" in Best's lnsurance Rating Guide, or (2) authorized by the
City's Risk Manager or his/her designee. The following policies of
insurance are required:
5.2.1 Until the Certificate of Completion is recorded,
Builders Risk (Course of Construction) insurance in an
amount equal to the completed value of the project with no
coinsurance penalty provisions.
5.2.2. Following the recording of the Certificate of
Completion, COMMERCIAL PROPERTY insurance which
shall be as broad as the most current version of lnsurance
Service Office (lSO) commercial Propeñy Form CP 10 30
(Cause of Loss - Special Form), with limits of insurance in
an amount equal to the full (100%) replacement cost (without
deduction for depreciation) of the lmprovements with no
-18-
coinsurance penalty prov¡sions. Such insurance shall
include coverage for business income, including "rental
value", in an amount equal to the two (2) years of the annual
rent generated by the lmprovements. Coverage for business
income, including "rental value," shall be at least as broad as
the most current version of lnsurance Service Office (lSO)
Commercial Property Form CP 00 30.
Owner shall be responsible for payment of any deductibles contained in
any insurance policies required hereunder and owner shall also be
responsible for payment of any self-insured retentions. Any deductibles or
self-insured retentions must be declared to, and approved by, the City's
Risk Manager or his/her designee.
All policies of insurance required hereunder shall be endorsed to provide
that the coverage shall not be cancelled, non-renewed, reduced in
coverage or in limits except after 30 calendar day written notice has been
given to City. Upon issuance by the insurer, broker, or agent of a notice of
cancellation, non-renewal, or reduction in coverage or in limits, Owner
shall furnish City with a new certificate and applicable endorsements for
such policy(ies). ln the event any policy is due to expire during the term of
this Agreement, Owner shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than 1S
calendar days prior to the expiration date of the expiring policy.
The Builders Risk (course of Construction) and Property insurance
policies shall be endorsed to name City as a loss payee.
Owner shall furnish City with all certificate(s) and applicable
endorsements eflecting coverage required hereunder. All cerlificates
and applicable endorsements are to be received and approved by the
City's Risk Manager or his/her designee prior to City's execution of this
Agreement.
lf at any time Owner fails to maintain the required insurance in full force
and effect, owner shall immediately discontinue all work under this
Agreement until City receives notice that the required insurance has been
restored to full force and effect and that the premiums therefore have been
paid for a period satisfactory to the City. owner's failure to maintain any
required insurance shall be sufficient cause for City to terminate this
Agreement.
The fact that insurance is obtained by owner shall not be deemed to
release or diminish the liability of Owner, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to
indemnify City, City and each of their officials, officers, employees, agents
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5.3
and volunteers shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by owner.
Approval or purchase of any insurance contracts or policies shall in no
way relieve from liability nor limit the liability of Owner.
Upon request of City, Owner shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to
be a true and correct copy of the original policy. This requirement shall
survive expiration or termination of this Agreement.
owner will obtain and deliver payment and performance bonds issued by
an insurance company admitted in California in good standing as a surety
and meeting the criteria for Owner's other insurance under this
Agreement, each bond in an amount at least equal to 100% of Owner's
estimated construction costs, provided that the City hereby waives any
requirement for said bonds at all time during which Owner is ín full
compliance with this Agreement and the Project remains fully funded.
Until City issues the Certificate of Completion City will have access to the
Property, after reasonable notice to the Owner (except in emergencies),
without charge or fee, during normal construction hours, for purposes of
assuring compliance with this Agreement. City representatives will comply
with all safety rules while on the Project or the Property.
Owner will design and construct the lmprovements, and after that, prior to
any allowable transfer or sale thereof, Owner will maintain the Property
according to all applicable laws including, without limitation, all applicable
state labor standards, City zoning and development standards, building,
plumbing, mechanical and electrical codes, all provisions of the Fresno
Municipal Code and all applicable access requirements. City makes no
representation about which, if any, of such laws, ordinances, regulations
or standards apply to development of the Project.
owner acknowledges that owner, not City, is responsible for determining
applicability of and compliance with all local, state, and federal laws
including, but not limited to, any applicable provisions of the california
Labor Code, Public Contract Code, and Government Code. City makesno express or implied representation as to the applicability or
inapplicability of any such laws to this Agreement or to the parties'
respective rights or obligations hereunder including, but not limited to,
payment of prevailing wages, competitive bidding, subcontractor listing, or
similar or different matters. Owner further acknowledges that City shall
not be liable or responsible at law or in equity for any failure by owner to
comply with any such laws, regardless of whether City knew or should
5.4
5.5
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6.
have known of the need for such compliance, or whether City failed to
notify Owner of the need for such compliance.
5.6 Owner will take reasonable efforts to not permit any lien or stop notice to
be filed against the Property, provided Owner may reasonably determine
to contest any such lien or stop notice. lf a claim of lien or stop notice is
recorded against the Property or lmprovements, Owner, within 30 days
after recordation of a claim of lien or stop notice or within 5 days after
City's demand, whichever first occurs, will do the following:
5.6.1 Pay and discharge the same; or
5.6.2 Effect the release of such lien by recording and delivering to
City a surety bond in sufficient form and amount (i.e. 1S0%), or
othenruise; or
5.6.3 Give City other assurance which City, in its sole discretion,
deems satisfactory to protect the City from the effect of the lien or. bonded stop notice.
SECURITY FINANCING AND RIGHTS OF HOLDERS.
6.1 Notwithstanding any other provision of this Agreement, Owner may not
grant a security interest in the Property before the City issues and records
a Certificate of Completion, without the written consent of City, provided
that City hereby approves the recommended security interest of Owner's
financial institutions and tax credit investors, including their respective
successors or assigns, as described in the Financing plan.
CONTINUING OWNER OBLIGATIONS
7.1 ln its performance of this Agreement, Owner covenants by and for itself
and its successors and assígns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of any
person, including contractors, subcontractors, bidders and vendors, on
account of race, color, religion, ancestry, national origin, sex, sexual
preference, âgê, pregnancy, childbirth or related medical condition,
medical condition (e.9., cancer related) or physical or mental disability,
and in compliance with all applicable federal, state and local laws,
regulations and rules including without limitation Title VII of the Civil Rights
Act of 1964,42 u.s.c. section 2000, et seq., the Federar Equal payAct of
1963, 29 u.s.c. section 206(d), the Age Discrimination in Employment
Act of 1967,29 u.s.c. section 621, et seq., the lmmigration Reform and
control Act of 1986,8 u.s.c. section 1324b, ef seq.,42 u.s.c. section
1981, the California Fair Employment and Housing Act, Cal. Government
7.
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Code Section 12900, ef seg., the California Equal Pay Law, Cal. Labor
Code Section 1197.5, Cal. Government Code Section 11135, the
Americans with Disabilities Act, 42 U.S.C. Section 12101, ef seq., and all
other applicable anti-discrimination laws and regulations of the United
States and the State of California as they now exist or may hereafter be
amended. Owner will allow City representatives access to its employment
records related to this Agreement during regular business hours and upon
reasonable notice to verify compliance with these provisions when so
requested by the City.
7.2 Owner will pay before delinquency all ad valorem real estate taxes and
assessments on the Property, subject to the Owner's right to contest in
good faith any such taxes. Owner will remove any levy or attachment on
the Properly or any part of it, or assure the satisfaction of the levy or
attachment within a reasonable time. Owner will notify City prior to
applying for or receiving any exemption from the payment of property
taxes or assessments on any interest in or to the Property or the
lmprovements. Owner further agrees that the prior consent of City shall
be required if the basis for such exemption is other than for qualified
property held by a nonprofit entity that has been determined to be exempt
from federal and state income taxation, which consent shall not be
unreasonably withheld.
B. covENANTS AND REsrRlcTloNs RUNNING wtrH THE LAND. The
following covenants shall run with the land and shall bind Owner, and Owner's
successors in interest to the Property for the periods stated, and shall be fully
binding for the benefit of the community and City without regard to technical
classification or designation, legal or otheruise.
8.1 Owner covenants for itself, its successors, assigns, and every successor
in interest to the Property or any part of it that, after closing of any
applicable escrow, during construction, and after completing the
lmprovements, the Owner shall devote the Affordable Units on the
Property to the uses specified in this Agreement for the Affordability
Period. All uses of the Affordable Units including, without limitation, all
activities Owner undertakes pursuant to this Agreement, shall conform
with this Agreement and the Law. Without waiver or limitation, each of the
Affordable Units to be constructed pursuant to this Agreement shall be
maintained as Affordable Rental Housing pursuant to this Agreement and
the Restrictions.
owner and those taking under owner will maintain the property and all
lmprovements on site in reasonably good-condition and repair (and, as to
landscaping, if any, in a healthy condition), all according to the scope of
Development and Project Design and related plans, as-amended from
8.2
1.,-LL-
8.3
time to time. Owner and those taking under Owner shall: (i) maintain all
on-site lmprovements according to all other applicable laws, rules,
ordinances, orders, and regulations of all federal, state, county, municipal,
and other governmental agencies and bodies having or claiming
jurisdiction and all their respective departments, bureaus, and officials; (ii)
keep the lmprovements free from graffiti; (iii) keep the Property free from
any accumulation of debris or waste material; (iv) promptly make repairs
and replacements to the on-site lmprovements; and (v) promptly replace
any dead, or diseased plants and/or landscaping (if any) with comparable
materials.
city will give owner written notice of any breach of this section 8.2.
within 10 days from receipt of such notice, city and owner will meet and
confer, and agree to corrective actions and a schedule of performance for
such corrective actions. Owner must cure the default within the agreed
schedule or within (a) 10 days after the City's notice for any default
involving landscaping, graffiti, debris, waste material, or general
maintenance on the Property; or (b) 30 days after City's notice for any
default involving the lmprovements. lf Owner does not cure the default
within the agreed schedule, City, without obligation to, may enter the
Property, cure the default, and protect, maintain, and preserve the
lmprovements and landscaping.
city may lien or assess the Property for the city's expenses in protecting,
maintaining, and preserving the on-site lmprovements and aesthetics of
the Property, including any lawful administrative charge in the manner
used by the city in the abatement of public nuisances. The notice and
opportunity to cure provided for herein will supplement the noticing,
hearing, and nuisance abatement order used by City. Owner will prompfly
pay all such amounts to City upon demand.
From the Effective Date until the expiration of the Affordability Period,
Owner covenants to use and operate the Affordable Units on the Property
as Affordable Rental Housing pursuant to this Agreement.
Owner covenants for itself and any successors in interest and all persons
claiming by, through or under them, in perpetuity, that there shall be no
discrimination against or segregation of any person or group of persons
because of race, color, creed, religion, sex, sexual preference, marital
status, national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Affordable Units, nor shall
Owner itself or any person claiming under or through Owner establish or
permit any such practice or practices of discrimination or segregation
concerning the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Affordable Units.
8.4
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8.5 All deeds, leases, or contracts concerning the Affordable units shall
contain or be subject to substantially the following nondiscrimination or
nonseg regation clauses:
ln deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and
all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of
persons because of race, color, creed, religion, sex, sexual
preference, marital status, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the grantee or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation concerning the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein, conveyed.
The foregoing covenants shall run with the land."
ln leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns,
and all persons claiming under or through him or her, and this lease
is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation
of any person or group of persons, because of race, color,
creed, religion, sex, sexual preference, marital status,
national origin, or ancestry in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or
herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of
discrimination or segregation concerning the selection,
location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the premises herein
leased."
ln contracts: "There shall be no discrimination against or
segregation of, any person, or group of persons because of race,
color, creed, religion, sex, sexual preference, marital status,
national origin, or ancestry, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises, nor shall the
transferee himself or herself or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation concerning the selection,
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location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the premises."
8.6 City is the beneficiary of the covenants running with the land for itself and
for protecting the interests of the community and other parties, public or
private, in whose favor and for whose benefit the covenants are provided,
without regard to whether City has been, remains, or is an owner of any
land or interest in the Affordable Units on the Property. City may exercise
all rights and remedies, and maintain any actions or suits at law or in
equity or other proceedings to enforce the covenants for itself or any other
beneficiaries.
9.DEFAULTS AND REMEDIES
9.1 Subject to the extensions of time permitted under this Agreement, either
party's failure to perform any material action or material covenant as
required by this Agreement, following notice and failure to cure, is a
"Default" under this Agreement. A party claiming a Default shall give
written notice of Default to the other party specifying the Default
complained of, and the cure demanded. Except as othen¡vise expressly
provided in this Agreement, the noticing party shall not begin any
proceeding against the other party until the other party is given an
opportunity to cure the Default. The other party will have 30 calendar
days after receiving the notice to cure the Default, or, if the party cannot
reasonably cure the Default within such 30 days, the other pañy must
begin to cure within the 30 days and diligently pursue the cure to
completion, whereupon there shall be no event of Default.
Notwithstanding anything to the contrary contained in this Agreement, if a
non-monetary default or event of default occurs under the terms of any of
this Agreement, prior to exercising any remedies thereunder, the City will
give Owner and Limited Partner written notice of such default; provided
the failure by City to notify the lender and Limited Partner shall not vitiate
or negatively affect any notice given to Borrower. lf the default is
reasonably capable of being cured within thirty (30) days, Owner shall
have such period to effect a cure prior to exercise of remedies by City
under this Agreement, or such longer period of time as may be specified in
this Agreement. lf the default is such that it is not reasonably capable of
being cured within thirty (30) days (or such longer period if so specified),
and if Owner (a) initiates corrective action within said period, and (b)
diligently, continually, and in good faith works to effect a cure as soon as
possible, then Borrower shall have such additional time as is reasonably
necessary to cure the default prior to the exercise of any remedies by City.
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10.
The City hereby further agrees that any cure tendered or made by limited
partners of Owner shall be accepted or rejected on the same basis as if
tendered or made by Owner.
9.2 Subject to first giving the notice and opportunity to cure, a party may begin
an action at law to enforce, or in equity to seek specific performance of,
the terms of this Agreement, or to cure, correct, or remedy any Default, to
recover damages for any Default, or to obtain any other remedy consistent
with the purpose of this Agreement. A party must bring any legal action in
the Superior Court of the County of Fresno, State of California, in an
appropriate municipal court in Fresno County, or in the District of the
United States District Court serving Fresno County.
9.3 lf Owner begins any legal action against City, it shall serve process on the
City by personal service on the Director, or in any other manner the law
permits. lf City begins any legal action against the Owner, it will serve
process on the Owner by personal service on Owner, Owner's Agent or in
any other manner the law permits.
9.4 Except as otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and a party's exercise of one or
more rights or remedies will not preclude the party's exercise, at the same
or different times, of any other rights or remedies for the same or any
other Default of the other party.
9.5 A party's failure or delay in asserting any right or remedy will not be a
waiver of any Default or of any right or remedy, and will not deprive the
party of its right to begin and maintain any action or proceeding to protect,
assert or enforce any right or remedy.
9.6 The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
GENERAL PROVISIONS
10.1 Any notice, demand, or other communication permitted or required under
this Agreement will be in writing and given by personal delivery, or by first-
class u.s. mail, postage prepaid, to a party at its respective address
below:
To City:
City of Fresno (Housing Successor)
2344 Tulare, Suite 200
Fresno, CA93721
With a Copy To:
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City Attorney's Office
2600 Fresno Street
Fresno, CA.93721
To Owner:
To lnvestor:
To Limited Partner:
A party may change its address for notices, demands and
communications by giving notice of the new address as provided in this
section. The notice shall be deemed given three (3) business days after
the date of mailing, or, if personally delivered, when received.
10.2 All of the terms, covenants and conditions of this Agreement shall be
binding upon the Owner and its permitted successors and assigns.
Whenever the term "Owner" is used in this Agreement, such term shall
include Owner's successors and assigns as permitted under this
Agreement.
10.3 The City may assign or transfer any of its interests, rights, or obligations
hereunder at any time to any public agency without the consent of the
Owner.
10.4 No member, official or employee of the City shall be personally liable to
the Owner, or any successor in interest to Owner, for any Default or
breach by the City.
10.5 The relationship between the City and the Owner is that of a city and
developer respectively, as permitted by law, and not that of a partnership
or joint venture. City and Owner shall not be deemed or construed for any
purpose to be the agent of the other.
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10.6 Whenever this Agreement references an action or approval required or
permitted by the City, the Director or his or her designee is authorized to
act for the City as agent of the City unless this Agreement, the Law,
Constitutional and/or local law provide othenruise, or the context otherwise
requires.
10.7 This Agreement may be signed in multiple counterparts which, when
signed by all partíes, will be one binding agreement. The parties will sign
three copies of this Agreement, each of which is deemed to be original.
10.8 This Agreement includes the exhibits and attachments referenced and
incorporated in it. This Agreement contains the entire agreement between
the parties relating to the transaction contemplated by this Agreement and
supersedes all prior or contemporaneous agreements, understanding,
representation and statements, whether oral or written.
10.9 lf either party begins a lawsuit or arbitration proceeding, in law or equity, to
enforce or interpret any provision of this Agreement, the prevailing party
will be entitled to recover from the other party reasonable attorneys' fees,
court costs, and legal expenses as determined by the court or tribunal
having jurisdiction.
10.10 Any waiver, alteration, change or modification of or to this Agreement, to
be effective, must be in writing, and signed by each party.
10.11 lf any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances is held invalid or unenforceable,
the remainder of this Agreement and its application to persons or
circumstances, other than those about whom or which it is held invalid or
unenforceable, shall not be affected, and shall remain valid and
enforceable to the fullest extent permitted by law.
10.12 Each party represents and warrants to the other that (a) each has read
this Agreement, and (b) is signing this Agreement with full knowledge of
any rights and obligations each may have, and (c) each has received
independent legal advice from their respective legal counsel as to the
matters set forth in this Agreement, or has knowingly chosen not to
consult legal counsel, and (d) has signed this Agreement without relying
on any agreement, promise, statement or representation by or for the
other pady, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
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10.13 No member, official or employee of City has or shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement
which affects his personal interests or the interests of any corporation,
partnership or association in which he is directly or indirectly interested.
Owner represents and warrants that it has not paid or given, and will not
pay or give, to any third party any money or other consideration for
obtaining this Agreement, other than normal costs of conducting business
and costs of professional services such as architects, consultants,
engineers and attorneys.
10.14 The parties will execute such other and further documents, and will take
any other steps, necessary, helpful, or appropriate to carry out the
provisions of this Agreement.
10.15 No contractor, subcontractor, mechanic, material man, laborer, vendor, or
other person hired or retained by with Owner shall be, nor shall any of
them be deemed to be, third-party beneficiaries of this Agreement, raiher
each such person shall be deemed to have agreed (a) that they shall look
to owner as their sole source of recovery if not paid, and (b) except as
otherwise agreed to by city and any such person in writing, they may not
enter any claim or bring any such action against city under any
circumstances. Except as provided by law, or as othenvise agreed to in
writing between City and such person, each such person shall be deemed
to have waived in writing all right to seek redress from City under any
circu mstances whatsoever.
10.16 Owner hereby covenants and warrants that it is a duly authorized and
existing California limited liability company, in good standing; that it shall
remain in good standing; that it has the full right, power and authority to
enter into this Agreement and to carry out all actions on its part
contemplated by this Agreement; that the execution and delivery of this
Agreement were duly authorized by proper action of the Owner and no
consent, authorization or approval of any person is necessary in
connection with such execution and delivery or to carry out all actions of
the Owner's part contemplated by this Agreement, except as have been
obtained and are in full force and effect; and that this Agreement
constitutes the valid, binding and enforceable obligation of the Owner.
10.17 ln the event of any conflict between the body of this Agreement and any
exhibit or attachment to it, the terms and conditions of the body of this
Agreement will control.
SIGNATURES APPEAR ON NEXT PAGE
-29 -
lN WITNESS WHEREOF, City and Owner have signed this Agreement, and the City
has approved this Agreement, on the dates and in the year set forth below.
ATTEST:
WONNE SPENCE, CMC
City of Fresno,I 501 N. Blackstone Ave.,
AS TO FORM:
B L'^Deputy
Date:
Attach ments to Owner Pa rticipation Ag reement (B lackstone/McKi n ley) :
Exhibit A: Legal Description of Property
Exhibit B: Performance and Payment Schedule
Exhibit C: BudgeUFinancial Plan
Exhibit D: Certificate of Completion
Exhibit E: Scope of Development and Project Design
Exhibit F: Form of Regulatory Agreement and Declaration of Covenants and
Restrictions
Exhibit G: Form of Promissory Note
Exhibit H: Form of Deed of Trust
-30-
EXHIBIT .,A''
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Fresno, County of Fresno, State of California, described as follows:
THAT PORTION OF LOT ONE (1) OF FRESNO HETGHTS HOMESTEAD TRACT, tN THE
CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF RECORDED JANUARY 13, 1888, IN BOOK 2, PAGE 39 OF PLATS, IN THE
OFFICE OF THE COUNTY RECORDER OF FRESNO COUNTY, LYING SOUTH AND WEST
OF THE RIGHT OF WAY OF THE SANTA FE RAILROAD.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA
IN THE DEED RECORDED MAY 19, 1944IN BOOK 2177, PAGE 9 OF OFFICIAL RECORDS
OF FRESNO COUNTY, CALIFORNIA.
APN: 451-064-16
Items Gompleted Time for Performance
Estimated
Date
Submission of Site Plan Review November 2015
Aqency Board approval of Aqreement Januarv 2016
Owner executes and delivers
Aqreement
January 2016
Applv for AHSC Fundinq Februarv 2016
Receive AHSC Fundinq Summer 2016
Applv 'lor 9o/o Tax Credits March2017
Receive 9o/oTax Credits (Round 1)June 2017**Applv for 9% Tax Credits (Round 2)Julv 2017**Receive 9o/oTax Credits (Round 2)October 15,
2017
Submission of Building Plans 60 days after receiving Tax
Credits
August
2017l**Decemb
er 1,2017
Submission and Approval - Certificates
of lnsurance
Within 180 days of receiving tax
credits
No later than
December
2017|*"April
2018
Loan Disbursement Upon Owner providing
agreements evidencing all other
funding sources sufficient to
cover total development cost and
satisfaction of all conditions
precedent under this Aqreement.
No later than
December
20171(".April
2018)
Commencement of Construction At construction loan closing,
within 180 days of receipt of tax
credits
No later than
December
20171("*April
201 8)
Completion of Construction Within 18 months after
commencement of construction
July
2019/(**October
201 9)
lssuance of Certificate of Completion Promptly after completion of
construction and upon written
request of Owner
EXHIBIT "B''
Performance and Payment Schedule
SCHEDULE OF PERFORMANCE
lmprovements shall be completed within 18 months of the start of construction.
Construction shall commence by: December 201 7 l**April 2018
Construction shall be completed by: July 2019/*"October 2Q1g*" lf Owner fails to receive 9o/o Tax Credits in Round 1 2017 , Owner may apply in Round 2 2017 ,
and the Performance Schedule shall be adjusted accordingly. lf Owner is not awarded go/o Tax
Credits by October 1, 2017, the Agreement shall terminate.
EXHIBIT "C''
BudgeUFinancial PIan
EXHIBIT "D"
Certificate of Completion
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno, as Housing Successor to the
Redevelopment City of the City of Fresno
2344 Tulare St., Suite 200
Fresno, Ca.93721
Attention : Executive Director
(sence ABovE THts LrNE FoR REcoRDen's use)
This Certificate of Completion is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
City of Fresno,
a municipal corporation in its capacity as
Housing Successor to the Redevelopment City
of the City of Fresno
By:
Marlene Murphey
Its: Executive Director
Dated:
Certificate of Completion
Blackstone & McKinley Residential Rental Project
RECITALS:
A. By an Owner Participation Agreement (the "Agreement") dated
t 1,201_ between 1501 N. Blackstone Ave., L.P,, a California limited
partnership ("Owner") and the City of Fresno, a municipal corporation, in its capacity as
Housing Successor to the Redevelopment City of the City of Fresno ("City"), Owner
agreed to construct certain residential units on the premises legally described in
Attachment "1" hereto (the "Property") and preserve the Affordable Units, as defined in
the Agreement as rental housing for Low- lncome Households with the assistance of
City housing set aside funds while meeting the Affordable Housing, income targeting
and other requirements of the Community Redevelopment Law set forth at California
Health and Safety Code Sections 33000 et seq. for a fifty-five (55) year Affordability
Period according to the terms and conditions of the Agreement.
B. The Agreement was recorded on l,201 in the Official
Records of Fresno County, California as lnstrument No.
C. Under the terms of the Agreement, after Owner completes the construction on
the Property, Owner may ask City to record a Certificate of Completion.
D. Owner has asked City to furnish Owner with a recordable Certificate of
Completion.
E. City's issuance of this Certificate of Completion is conclusive evidence that
Owner has completed the construction on the Property as set forth in the Agreement.
NOW THEREFORE:
1. City cedifies that Owner commenced the construction work on the Project
onl f, 20-, and completed the construction work on
the Project on
Agreement.
20-, and has done so in full compliance with the
2. This Certificate of Completion is not evidence of Owner's compliance with,
or satisfaction of, any obligation to any mortgage or security interest holder, or any
mortgage or security interest insurer, securing money lent to finance work on the
Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to
in California Civil Code section 3093.
4. Nothing contained herein modifies any provision of the Agreement.
lN WITNESS WHEREOF, the City has executed this Certificate of Completion as
of this _ day of ,20-.
City of Fresno, a municipal corporation, in its capacity as Housing Successor to the
Redevelopment City of the City of Fresno
By:
Marlene Murphey
Executive Director
Owner hereby consents to recording this Certificate of Completion against the Property
described herein.
Dated: ,20
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC.
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
By:
Deputy Deputy
By:
Dated:Dated:
ExHlBlT I to GERTIFICATE OF COMPLETION
LEGAL DESCRIPTION
Real property in the City of Fresno, County of Fresno, State of California, described as follows:
THAT PORTION OF LOT ONE (1) OF FRESNO HETGHTS HOMESTEAD TRACT, tN THE
CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF RECORDED JANUARY 13, 1888, IN BOOK 2, PAGE 39 OF PLATS, IN THE
OFFICE OF THE COUNTY RECORDER OF FRESNO COUNTY, LYING SOUTH AND WEST
OF THE RIGHT OF WAY OF THE SANTA FE RAILROAD.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA
IN THE DEED RECORDED MAY 19, 1944 IN BOOK 2177, PAGE 9 OF OFFICIAL RECORDS
OF FRESNO COUNTY, CALIFORNIA.
APN: 451-064-16
EXHIBIT "E
SCOPE OF DEVELOPMENT AND PROJECT DESIGN
EXHIBIT "F"
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
2344Tulare Street
Fresno, CA 93721
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
REGU LATORY AGREEMENT AN D
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS
AND RESTRICTIONS ("Agreement") is made and entered into this day of
, _, by and between the CITY OF FRESNO, a public body,
corporate and politic ("City"), and 1501 N. Blackstone Ave., L.P., a California limited
pa rtnership ("Owner").
RECITALS:
A. Pursuant to an Owner
Owner dated
Participation Agreement by and between City and
201- (the "OPA"), City has provided to Owner
financial assistance in the amount of approximately One Million Five Hundred Thousand
Eighty One Dollars ($1,500,081.00) in loan funds (the "City Assistance"), for the
purpose of assisting Owner in the acquisition of real property and the construction of a
residential apartment complex thereon wherein one hundred percent of the units shall
be rented to low income households, on that certain real property located in the City of
Fresno, County of Fresno, State of California, more particularly described in Exhibit "1"
attached hereto and incorporated herein by reference (the "Property").
B. Pursuant to the OPA, Owner has agreed to construct and maintain a
rental apartment housing project consisting of ninety one (91) total residential units
(hereinafter referred to collectively as the "Project") on the Property. The Project is also
referred to in the OPA as the "Project," and is further described in the Scope of
Development and Project Design attached to the OPA.
C. City, City, and Owner now desire to place restrictions upon the use and
operation of the Project, in order to ensure that the Project shall be operated
continuously as a rental apartment housing project with ninety (90) of the units available
for rental by low income persons for the term of this Agreement.
AGREEMENT:
NOW, THEREFORE, the Owner and City declare, covenant and agree, by and
for themselves, their heirs, executors, administrators and assigns, and all persons
claiming under or through them, that the Property shall be held, transferred,
encumbered, used, sold, conveyed, leased and occupied, subject to the covenants and
restrictions hereinafter set forth, all of which are declared to be in fuftherance of a
common plan for the improvement and sale of the Property, and are established
expressly and exclusively for the use and benefit of the City, the residents of the City of
Fresno, and every person renting a dwelling unit on the Property.
AFFORDABILITY RESTRICTIONS RUNNING WITH LAND
ln addition to the covenants and conditions contained in the OPA, the following
California Community Redevelopment Law (California Health & Safety Code Section
33000 et seq.) affordability requirements shall be imposed upon the ninety (90)
Affordable Units on the Property funded under the Agreement and shall bind the Owner
and all purchasers of the Property and their successors until the date that is fifty-five
(55) years following recordation of the City's Certificate of Completion as defined in the
OPA.
The Affordable Units on the Propefty are held and will be held, transferred,
encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions,
and limitations set forth in this Agreement, all of which are in furtherance of the Project,
the Community Redevelopment Law including City's obligations set forth at California
Health & Safety Code respect to Low and Moderate lncome Housing Asset Funds. All
of the restrictions, covenants and limitations will run with the land and will be binding on
all pafties having or acquiring any right, title or interest in the Affordable Units upon the
Property or any part thereof, will inure to the benefit of the City, and will be enforceable
by it. Any purchaser under a contract of sale or other transferee of an interest covering
any right, title or interest in any part of the Affordable Units upon the Property, by
accepting a deed or a contract of sale or agreement of purchase, accepts the document
subject to, and agrees to be bound by, any and all restrictions, covenants, and
limitations set forth in this Agreement until the date that is fifty-five (55) years following
recordation of the City's Certificate of Completion.
1. Restrictions. The following covenants and restrictions ("Restrictions") on the use
and enjoyment of the Affordable Units upon the Property shall be in addition to any
other covenants and restrictions affecting the Property, and all such covenants and
restrictions are for the benefit and protection of the City and shall run with the Affordable
Units upon the Property and be binding on any future owners of the Property and inure
to the benefit of and be enforceable by City. These covenants and restrictions are as
follows:
a. From the date of recordation of this Agreement until the expiration of
the Affordability Period, the ninety (90) Affordable Units funded under the OPA are to be
used as Low lncome Affordable Rental Housing and affordable replacement dwellings
as provided for in the OPA and this Agreement. Owner agrees to file a recordable
document setting forth the Project Completion Date and the Affordability Period as and
when determined by the City. Unless otherwise provided in the Agreement, the term
"Affordable Rental Housing" shall include without limitation compliance with the
following req u irements:
Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, ancestry, or handicap in
the sale, transfer, use, occupancy, tenure, or enjoyment of any of the
Property, nor shall Owner or any person claiming under the Owner,
establish or permit any practice of discrimination or segregation with
reference to the selection, location, number, use or occupancy of owners
or vendees of the Property.
Principal Residence. Each of the Affordable Units upon the Property shall
be leased only to natural persons, who shall occupy such as a principal
residence.
lncome Requirements. Nine (9) of the ninety (90) Affordable Units
constituting Low lncome Affordable Rental Housing upon the Properly
may be leased only to (a) natural person(s) whose annual household
income at the time of initial occupancy is not greater than thirty percent
(30%) of the most recent annual median income calculated and published
by HUD for the Fresno Metropolitan Statistical Area applicable to such
household's size, and at an affordable rent for extremely low income
households, consistent with the applicable California Redevelopment Law,
including California Health & Safety Code Section 50053(b). The
remaining eighty one (81) Affordable Units may be leased only to (a)
natural person(s) whose annual household income at the time of initial
occupancy is not greater than eighty percent (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 rent for lower income households, consistent with the
applicable California Redevelopment Law, including California Health &
Safety Code Section 50053(b). The income requirements referenced in
this paragraph shall be referred to collectively as the "Low-lncome
Requirements."
lniunctive Relief and Recapture. Should any of the ninety (90) Affordable
Units constituting Low lncome Affordable Rental Housing upon the
Property not continue, at the time of initial occupancy, to satisfy the Low-
lncome Requirements, then, during the Affordability Period, such Unit(s)
shall be made available for subsequent lease only to Households that
qualify as a required Extremely Low, Very Low-, Lower, or Moderate-
lncome Household, as defined in California Health & Safety Code
Sections 50106, 50105, and 50079.5 for use as the Household's principal
residence.
2. Enforcement of Restrictions. Without waiver or limitation, the City shall be entitled
to injunctive or other equitable relief against any violation or attempted violation of this
Agreement, including the Restrictions, and shall, in addition, be entitled to damages for
any injuries or losses resulting from any violations thereof.
3. lncome Computation and Certification Repodinq Requirements. Prior to each
Household's occupancy of an Affordable Unit, Owner shall comply with all of the
following req uirements:
a. lncome Computation. lmmediately prior to a Household's
occupancy of an Affordable Unit, Owner shall obtain and maintain on file
an Income Computation and Certification form, attached hereto as Exhibit
"2," from each such Household dated immediately prior to the date of
initial occupancy in the Project by such Household. ln addition, the owner
will provide such further information as may be required in the future by
the City. Owner shall use its best efforts to verify that the income provided
by an applicant is accurate by taking the following steps as a part of the
verification process: (i) obtain three (3) pay stubs for the most recent pay
periods; (ii) obtain a written verification of income and employment from
applicant's current employer; (iii) obtain an income verification form from
the Social Security Administration and/or California Deparlment of Social
services if the applicant receives assistance from either agency; (iv) if an
applicant is unemployed or did not file a tax return for the previous
calendar year, obtain other verification of such applicant's income as is
satisfactory to the City; and (v) obtain such other information as may be
requested by the City. A copy of each such completed lncome
Computation and Certification form shall be filed with the City prior to the
occupancy of an Affordable Unit by a Household whenever possible, but in
no event more than thirty (30) days after initial occupancy by said
Household.
b. lncome Recertification. lmmediately prior to the first anniversary
date of the occupancy of an Affordable unit by a Household and on each
anniversary date thereafter, owner shall recertify the income of such
Household by obtaining a completed lncome computation and
Certification form based upon the current income of each occupant of the
Affordable Unit. ln the event the recertification demonstrates that such
Household's income exceeds the income at which such Household would
qualify to rent the Affordable Unit, such Household will no longer qualify
for Affordable Rent. owner shall provide the city with a copy of each such
completed recertification with the next submission of Ceñificate of
Continuing Program Compliance, as specified herein.
c. certificate of continuing Program compliance. upon the issuance
of the certificate of completion and annually by october 31 of each year,
or at any time upon the written request of City, Owner shall advise the City
of the occupancy of the Project by delivering a Certificate of Continuing
Program Compliance, attached hereto as Exhibit "3," certifying: (i) the
number of Affordable Units of the Project which were occupied or deemed
occupied pursuant to this Agreement by a Household during such period;
and (ii) to the knowledge of owner either: (a) no unremedied default has
occurred under this Agreement; or (b) a default has occurred, in which
event the Certificate of Continuing Program Compliance shall describe the
nature of the default and set forth the measures being taken by the Owner
to remedy such default.
d. Maintenance of Records. Owner shall maintain complete and
accurate records pertaining to the Affordable Units, and shall permit any
duly authorized representative of the City to inspect the books and records
of Owner pertaining to the Project including, but not limited to, those
records pertaining to the occupancy of the Affordable Units.
e. Reliance on Tenant Representations. Each lease between Owner
and a Household shall contain a provision to the effect that Owner has
relied on the income certification and supporting information supplied by
the Household in determining qualification for occupancy of the Affordable
Unit, and that any material misstatement in such certification (whether or
not intentional) will be cause for immediate termination of such lease.
4. Acceptance and Ratification. All present and future owners of the Property and
other persons claiming by, through, or under them shall be subject to and shall comply
with the above Restrictions. The acceptance of a deed of conveyance to the Property
shall constitute an agreement that the Restrictions, as such may be amended or
supplemented from time to time, is accepted and ratified by such future owners, tenant
or occupant, and such Restrictions shall be a covenant running with the land and shall
bind any person having at any time any interest or estate in the Property, all as though
such Restrictions were recited and stipulated at length in each and every deed,
conveyance, mortgage or lease thereof.
5 Benefit. This Agreement and the Restrictions herein shall run with and bind the
Propedy for a term commencing on the date this Agreement is recorded in the Office of
the Recorder of the County of Fresno, State of California, and expiring upon the
expíration of the Affordability Period. The failure or delay at any time of City and/or any
other person entitled to enforce these Restrictions shall in no event be deemed a waiver
of the same, or of the right to enforce the same at any time or from time to time
thereafter, or an estoppel against the enforcement thereof.
6. Costs and Attorney's Fees. ln any proceeding arising because of failure of
Owner or any future owner of the Property to comply with the Restrictions required by
this Agreement, as may be amended from time to time, City shall be entitled to recover
its respective costs and reasonable attorney's fees incurred in connection with such
default or failure.
7. Waiver. Neither Owner nor any future owner of the Property may exempt itself
from liability for failure to comply with the Restrictions required in this Agreement.
8. Severability. The invalidity of the Restrictions or any other covenant, restriction,
condition, limitation, or other provision of this Agreement shall not impair or affect in any
manner the validity, enforceability, or effect of the rest of this Agreement and each shall
be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference in this Agreement and the Restrictions herein to the
masculine, feminine, or neuter gender herein shall, unless the context clearly requires
the contrary, be deemed to refer to and include all genders. Words in the singular shall
include and refer to the plural, and vice versa, as appropriate.
10. lnterpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Agreement are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting
or construing this Agreement or any provision hereof.
11. Capitalized Terms. All capitalized terms used in this Agreement, unless
othenruise defined herein, shall have the meanings assigned to such terms in the OPA.
12. Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in title, and duly recorded in the real
property records of the County of Fresno.
13. Notice. Any notice required to be given hereundershall be made in writing and
shall be given by personal delivery, or by certified or registered mail, postage prepaid,
return receipt requested, at the addresses specified below, or at such other addresses
as may be specified in writing by the parties hereto:
City:City of Fresno as Housing Successor
2344 Tulare Street, Suite 200
Fresno, CA 93721
Attn: Executive Director
Copy to:City Attorney
Fresno City Hall
2600 Fresno Street
Fresno, CA92612
Owner:
lnvestor:
Limited Partner:
The notice shall be deemed given three (3) business days after the date of
mailing, or, if personally delivered, when received.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterpads, each of which shall constitute one original and all of which shall be one
and the same instrument.
16. FURTHER ASSURANCES. The parties will execute such other and further
documents, and will take any other steps, necessary, helpful, or appropriate to carry out
the provisions of this Agreement.
IEND -- SIGNATURES ON NEXT PAGE]
lN WITNESS WHEREOF, the City and Owner have executed this Regulatory
Agreement and Declaration of Covenants and Restrictions by duly authorized
representatives on the date first written hereinabove.
ATTEST:
CITY CLERK
CITY OF FRESNO,
a municipal corporation in its capacity as
Housing Successor to the Redevelopment
Agency of the City of Fresno
Marlene Murphey
Executive Director
Deputy
By:
APPROVED AS TO FORM:
CITY ATTORNEY
Deputy
1501 N. BLACKSTONE AVE., 1.P., A
California limited partnership
By
Date:
Name:
Title:
IEND OF S|GNATURESI
Attachments:
Exhibit A: Legal Description of Property
Exhibit B: lncome Computation and Certification Form
Exhibit C: Certificate of Continuing Program Compliance
STATE OF CALTFORNTA )
COUNTY OF
On
) ss.
)
before me,personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
lsEAL]
STATE OF CALTFORNTA )
) ss.
COUNTY OF
On
)
, before me,, personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
ISEALI
til
EXHIBIT "1" to REGULATORY AGREEMENT
LEGAL DESCRIPTION
Real property in the City of Fresno, County of Fresno, State of California, described as follows:
THAT PORTION OF LOT ONE (1) OF FRESNO HETGHTS HOMESTEAD TRACT, tN THE
CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF RECORDED JANUARY 13, 1888, IN BOOK 2, PAGE 39 OF PLATS, IN THE
OFFICE OF THE COUNTY RECORDER OF FRESNO COUNTY, LYING SOUTH AND WEST
OF THE RIGHT OF WAY OF THE SANTA FE RAILROAD.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA
IN THE DEED RECORDED MAY 19, 1944IN BOOK 2177, PAGE 9 OF OFFICIAL RECORDS
OF FRESNO COUNTY, CALIFORNIA.
APN: 451-064-16
EXHIBIT "2" TO REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIONS
Gity of Fresno as Housing
Successor to the
Redevelopment Agency of
the Gity of Fresno
Multi-Familv Housin[Program
INCOME COMPUTATION AND CERTIFICATION
Household lnformation List all members of the household*to live at the address listed above.
*Household is a group of related or unrelated persons occupying the same house with at least one member being the head of the
household. lf roommates, please complete above form as "Self'for each roommate. Use a separate page for additional household
members.
Show income received from the following sources by all persons listed above. Do not show income from persons less than 14 years
of age.
2344Tulare Street
Suite 200
Fresno, CA93721
www.fresnorda.com
559.621.7628
Number of Bedrooms
(see table on page 3
for allowable rents)
Maximum lncome Level
of Household (percent
of Area Median lncome)
RentalAgent (Name):! 0 lstudio
Owner Certification (Signature):! 2 bedrooms
! 120o/o ol AMI
Owner has relied on the income certification and supporting information supplied by the
Applicant in determining qualification for occupancy of the Affordable Unit, and any
material misstatement in such certification by Applicant (whether or not intentional) may
be cause for immediate te¡mination of such lease.
nt Gontact lnformation lnformation on primary lease
Name
(LAST, F|RST, M.t.)
Current Address
City, State, Zip Contact Phone No.Other Phone No.
1
2
1
2
(if different)
1
2
(if different)
I
2
(if different)
Name
(LAST, FtRST, MTDDLE tNtTtAL)
Yes No Source of lncome
Gross lncome
(Current Year)
Person Receiving lncome (As
Shown Abovel¡¡Wages or salary from employment.
¡!Earnings from self-employment
¡¡Unemployment Compensation
!!Social Security or Supplemental Security lncome (SSl)
¡n Veteran's Beneflts
!!Worker's Compensation
¡n Child support or alimony payments
¡!Pensions or Annuities/Railroad Retirement
!¡Property rental income
¡!Aid to Families w/Dependent Children(AFDC)
!!Dividends/lnterest
n ¡Other types of income:
Total Gross lncome
Total Household Members
, being duly sworn, depose and say that l/we are
year-round occupants of (ADDRESS, C|TY & ZtP CODE).
lA/úe the applicant(s) certify that all information in this certification and all information furnished in support
of this certification is correct and complete to the best of my/our knowledge. l/We understand that the
willful falsification of this information (whether or not intentional) will be cause for immediate termination of
such lease. lAlúe agree to provide additional information that may be requested to process this income
certification.
I certify that my income does not exceed the stated income level noted on page 1 of this document, and
that I am eligible for a unit made available at affordable rent for lower income households, as defined by
California Health & Safety Code ("H.&S.C.") Section 50053(b), to persons and families of low income, as
defined in H.&S.C. Section 50093, as shown in the table below.
lA/úe have read the aforementioned statement and release, and understand all of the items. lA/úe execute
it voluntarily, on the date listed below, with full knowledge of its significance. lA/r/e certify under penalty of
perjury that the facts and statements presented in this lncome Computation and Certification, as well as
the attached documents are true and accurate. Perjury is punishable by imprisonment in the state of
California. (CA Penal Code Section 118 & 126).
APPLICANT DATE
APPLICANT DATE
lncome Verification
Owner shall use its best efforts to verify that the income provided by an applicant is accurate by taking the
following steps as a part of the verification process: (i) obtain three (3) pay stubs for the most recent pay
periods; (ii) obtain a written verification of income and employment from applicant's current employer; (iii)
obtain an income verification form from the Social Security Administration and/or California Department of
Social Services if the applicant receives assistance from either agency; (iv) if an applicant is unemployed
or did not file a tax return for the previous calendar year, obtain other verification of such applicant's
income; and (v) obtain such other information as may be requested by the Agency. A copy of each such
completed lncome Computation and Certification form shall be completed and made available for Agency
review prior to the occupancy of an Affordable Unit by a Household whenever possible, but in no event
more than thirty (30) days after initial occupancy by said Household.
2015 Maximum Rent Limits
a Affordable Rent for Extremely Low lncome Households is the product of 30% times 30% of the area median
income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and
Code Section
o Affordable Rent for Very Low lncome Households is the product of 30% times 50% of the area median
income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and
Safety Code Section 50053(bX
a Affordable Rent for Lower lncome Households is the product of 30% times 60% of the area median income
adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and Safety
Code Section 50053(bX3).
a Affordable Rent for Moderate lncome Households is the product of 30% times 1 10% of the area median
income adjusted for family size appropriate to the unit less a reasonable allowance for utilities (Health and
Code Section 50053(bX4).
. Maximum Rents are calculated based on household sizes "appropriate to the unit" of 1 person for a studio
unit; 2 persons for a one-bedroom apartment; 3 persons for a two bedroom apartment; 4 persons for a three
bedroom apartment; 5 persons for a four bedroom & Safety Code Section 50052.
2015 Maximum lncome Levels
Extremely Low (S 30% of AMI)
Very-Low lncome (< 50% of AMI)
Lower lncome - (S 80% of AMI)
Moderate lncome - (S 120% AMI)
One Two
Person Person
$12,150 $15,930
$20,300 $23,200
$32,450 $37,050
$48,650 $55,600
Three Four
Person Person
$20,090 s24,250
$26,100 $28,950
$41,700 $46,300
$62,550 $69,500
Five Six
Person Person
$28,410 $32,570
$31,300 $33,600
$50,050 $53,750
$75,050 $80,600
Maximum Est. Utilitv Net
Maximum Rent for Extremely Low lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment S303.7s s(42.00)5261,.7s
Maximum Monthly Rent for a One-Bedroom Apartment S384.7s s(42.00)5342.is
Maximum MonthlV Rent for a Two-Bedroom Apartment Sso2.2s 5(s4.oo)5448.2s
Rent for a Three-Bedroom
Maximum Monthly Rent for a Four-Bedroom Aoartment 57ro.2s
Maximum Est. Utilitv Net
Maximum Rent for Very low Income Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment ss07.s0 s(42.00)s46s.s0
Maximum Monthly Rent for a One-Bedroom Apartment ss80.00 s(42.00)$s¡s.oo
Maximum Monthly Rent for a Two-Bedroom Apartment 56s2.s0 s(s4.oo)sse8.s0
Maximum MonthlV Rent for a Three-Bedroom Apartment 5723.7s s(66.00)56s7Js
Maximum Monthly Rent for a Four-Bedroom Apartment s782.s0 s(7s.00)Szoz,so
Maximum Est. UtiliW Net
Maximum Rent for Lower lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment s608.7s s(42,00)Ssoo.zs
Maximum Monthly Rent for a One-Bedroom Apartment s6ss.oo $(42.00)s6s3.00
Maximum Monthly Rent for a Two-Bedroom Apartment s7S2.so s(s4.00)s728.s0
Maximum Monthly Rent for a Three-Bedroom Apartment Ssos.zs s(66.00)s802.7s
Maximum Monthly Rent for a Four-Bedroom Apartment s938.7s s(7s.00)S863.7s
Maximum Est. UtiliW Net
Maximum Rent for Moderate lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment S1,115,00 s(42.00)s1,073.00
Maximum Monthly Rent for a One-Bedroom Apartment Sr,zzs.oo s(42.00)s1,233.00
Maximum Monthly Rent for a Two-Bedroom Apartment Sr,¿¡s.zs s(s4.00)5t,ztg.ts
Maximum Monthlv Rent for a Three-Bedroom Apartment S1,592.50 s(66.00)Sr,szo.so
Maximum Monthly Rent for a Four-Bedroom Apartment 51,,720.00 s(7s.00)S1,645.00
. The utility allowance shown above is for a low-rise (1-2 stories) project constructed in2011or later.
Exhibit "3" TO REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS AND RESTRICTIONS
Gity of Fresno as Housing
Successor to the
Redevelopment Agency of the
City of Fresno
Redevelopment Agency
Multi-Family Housing Program
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
Period Covered from to
The undersigned, 1501 N. BlackstoneAve., L.P., a California limited partnership (the "Owner"), has read
and is thoroughly familiar with the provisions of the Owner Participation Agreement ("OPA") and
documents referred to therein executed by Owner and the Redevelopment Agency of the City of Fresno
("Agency") including but not limited to the Regulatory Agreement and Declaration of Covenants and
Restrictions ("Regulatory Agreement"). As of the date of this Certificate, for the period shown above, the
following number of Units in the Project are: (i) occupied by tenants satisfying the Low-lncome
Requirements (as defined in the Regulatory Agreement) as a principal residence ("Eligible Tenants"), or
(ii) currently vacant and being held available for such occupancy and have been so held continuously
since the date an Eligible Tenant vacated such Unit:
Occupied Affordable Units Vacant Affordable Units
The Owner certifies that the information contained in the Occupancy Summary attached is true and
accurate and hereby certifies that (1) a review of the activities of the Owner during such period and of the
Owner's performance under the OPA and the documents referred to therein has been made under the
supervision of the undersigned, and (2) to the best knowledge of the undersigned, based on the review
described in clause (1) hereof, the Owner is not in default under any of the terms and provisions of the
2344 Tulare Street
Suite 200
tr'resno, C^93721
www.fresnorda.com
559.621.7628
Information
Name of Property:
Number of Units by
Bedrooms (see table for
allowable rentsì Income Catesorv
Number of Units by Income
Level of Tenants (percent of
AMI)
Property Address:
0 fstudio)30% of AMI
I bedroom Verv Low 50% of AMI
2 bedrooms Lower 80% of AMI
3 bedlooms Moderate I20o/o of AI|II
Owner completing this Certificate has relied on the inconre cerlification and supporting
Affordable Unit
above documents (or describe the nature of any default and set forth the measures being taken to
remedy such default).
lSignature on following page.l
1501 N. Blackstone Ave., L.P.
a California limited partnership
By:
Date:
Its:
By:
Its:
2015 Maximum lncome Levels
Extremely Low (S 30% of AMI)
Very-Low lncome (S 50% of AMI)
Lower lncome - (S 80% of AMI)
Moderate lncome - (S 120% AMI)
One Two
Person Person
$1 2,1 50 $1 5,930
$20,300 $23,200
$32,450 $37,050
$48,650 $55,600
Three Four
Person Person
$20,090 $24,250
$26,100 $28,950
$41,700 $46,300
$62,550 $69,500
Five Six
Person Person
$28,410 $32,570
$31,300 $33,600
$50,050 $53,750
$75,050 $80,600
Maximum Est. Utilitv Net
Maximum Rent for Extremely Low lncome Households Rent Allowance*Rent
Maxímum Monthlv Rent for a Studio Apartment s303.7s s(42.00)5261,.7s
Maximum Monthlv Rent for a One-Bedroom Aoartment 5384.7s s(42.00)5z+z.ts
Maximum Monthlv Rent for a Two-Bedroom Apartment ss02.2s s(s4.00)s448.2s
Maximum Monthlv Rent for a Three-Bedroom Aoartment Sooo,zs s(66.00)ss40.2s
Maximum Monthly Rent for a Four-Bedroom Apartment Stto.zs s(7s.00)s63s.2s
Maximum Est. Utility Net
Maximum Rent for Verv Low lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment ss07.s0 s(42.00)s46s.s0
Maximum Monthly Rent for a One-Bedroom Apartment ss80.00 s(42.00)ss38.oo
Maximum Monthlv Rent for a Two-Bedroom Apartment s6s2.s0 s(s4.00)ss9B.s0
Maximum Monthlv Rent for a Three-Bedroom Apartment 5t23.ts s(66.00)Sesz.zs
Maximum Monthlv Rent for a Four-Bedroom Apartment 57s2,so s(7s.oo)5707.so
Maximum Est. UtiliW Net
Maximum Rent for Lower lncome Households Rent Allowance*Rent
Maximum Monthlv Rent for a Studio Apartment S6o8.7s s(42.00)Ssoo.zs
Maximum Monthly Rent for a One-Bedroom Apartment s6ss.00 s(42.00)s6s3.00
Maximum Monthly Rent for a Two-Bedroom Apartment s782.s0 5(s4.00)S72s.so
Maximum Monthlv Rent for a Three-Bedroom Apartment s868.7s s(66.00)S8o2.7s
Maximum Monthlv Rent for a Four-Bedroom Apartment s93S.7s s(7s.oo)s863.7s
Maximum Est. Utilitv Net
Maximum Rent for Moderate lncome Households Rent Allowance*Rent
Maximum Monthly Rent for a Studio Apartment S1,i_15.00 s(42.00)S1,073.oo
Maximum Monthly Rent for a One-Bedroom Apartment 5r,27s.oo s(42.00)Sr,zgg.oo
Maximum Monthly Rent for a Two-Bedroom Apartment S1,433.75 s(s4.00)5t,ztg.ts
Maximum Monthlv Rent for a Three-Bedroom Apartment S1,s92.so s(66.00)S1,526.50
Maximum Monthlv Rent for a Four-Bedroom Aoartment St,tzo.oo $(7s.00)5t,6¿s.oo
* The utility allowance shown above is for a low-rise (1-2 stories) project constructed in2011or later.
EXHIBIT "G''
PROMISSORY NOTE
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to
Borrower for cancel lation.
$1,500,000.00 Fresno, CaliforniaI 1,2016
For value received, the undersigned, 1501 N. Blackstone Ave., L.P., a California
limited partnership ("Borrower"), promises to pay to the order of the City of Fresno in its
capacity as Housing Successor to the Redevelopment Agency of the City of Fresno
("Lender" or "Beneficiary"), the sum of $1,500,000.00, together within interest on unpaid
principal at the rate of 3o/o per annum, with such interest accruing as of the Payment
Commencement Date, to the extent such funds are loaned to the Borrower, all due and
payable as described herein and pursuant to the Owner Participation Agreement. This
Promissory Note ("Note") is made and entered into in accordance with the terms of the
Owner Participation Agreement dated t | 201_, entered into between
Borrower and Lender ("Agreement").
Commencing on May 1Sth of the year immediately following issuance of the
Certificate of Occupancy for the Project (the "Payment Commencement Date"), and
continuing on the same date each year thereafter until the date which is fifty-five (55)
years after the Payment Commencement Date ("Maturity Date"), Borrower shall submit
to the Lender an audited project financial statement (covering the previous calendar
year) along with Lender's pro rata share of the annual Project Residual Receipts (as
defined below) as calculated by Borrower. The actual and final amount of Lender's
share of Residual Receipts shall be determined by the Lender upon review of the
audited financial statement. "Residual Receipts" are determined on a cash basis and
defined as revenue minus the total of approved operating expenses, deferred portion fo
the developer fees in the development budget, approved debt service, deposits to
operating and replacement reserve accounts per contract, and approved related party
expenses. Such annual payments shall continue until the Maturity Date at which time
the entire remaining unpaid balance of principal together with interest and unpaid
penalties or late charges where applicable thereon shall be all due and payable, along
with attorney's fees and costs of collection, and without relief from valuation and
appraisement laws. Lender's share of Residual Receipts shall be 25o/o.
Any failure to make a payment required hereunder shall constitute a default
under this Note.
All capitalized terms used in this Note, unless othenruise defined, will have the
respective meanings specified in the Agreement.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust
with Assignment of Rents on real estate in Fresno County, California (the "Property"),
dated as of the same date as this Note, and executed in favor of and delivered to the
Lender ("Deed of Trust"). The Deed of Trust provides for acceleration of the repayment
of this Note upon stated events. The Deed of Trust shall be insured by Old Republic
Title Company or similar nationally recognized Title Company as no worse than an
ALTA or CLTA third position lien.
Time is of the essence with respect to all terms of this Note. lt will be a default
under this Note if Borrower defaults under the Agreement or other documents pursuant
to the Agreement, including but not limited to the Deed of Trust and Regulatory
Agreement and Declaration of Covenants and Restrictions (collectively, the "Project
Loan Documents"), and if Borrower fails to pay when due any sum payable under this
Note, or under any other obligation secured by a Deed of Trust or other lien senior to
the Deed of Trust which secures this Note after the expiration of the applicable cure
period. Borrower shall promptly inform Lender of any new or additional financing or
funding, and Borrower shall provide Lender copies of all agreements with any and all
Funding Sources for this Project, in accordance with the terms set forth in Section 2.2 of
the Agreement. ln the event of a default by Borrower, the Borrower shall pay a late
charge equal to 2% of any outstanding payment. All payments collected shall be
applied first to payment of any costs, fees or other charges due under this Note or any
other project loan documents then to the interest and then to principal balance. On the
occurrence of a default or on the occurrence of any other event that under the terms of
the Agreement or Project Loan Documents gives rise to the right to accelerate the
balance of the indebtedness, then, at the option of Lender, this Note or any notes or
other instruments that may be taken in renewal or extension of all or any part of the
indebtedness will immediately become due without any further presentment, demand,
protest, or notice of any kind.
The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in pad, at any time, without penalty. Lender will apply all the
prepayments first to the payment of any costs, fees, late charges, or other charges due
under this Note, the Agreement or Project Loan Documents, and then to the interest
and then to the principal balance.
All payments are payable in lawful money of the United States of America at any
place that Lender or the legal holders of this Note may, from time to time, in writing
designate, and in the absence of that designation, then to Lender at its address of
record provided in the Agreement.
Borrower agrees to pay all costs including, without limitation, attorney fees,
incurred by the holder of this Note in enforcing payment, whether or not suit is filed, and
including, without limitation, all costs, attorney fees, and expenses incurred by the
holder of this Note in connection with any bankruptcy, reorganization, arrangement, or
other similar proceedings involving the undersigned that in any way affects the exercise
by the holder of this Note of its rights and remedies under this Note. All costs incurred
by the holder of this Note in any action undertaken to obtain relief from the stay of
bankruptcy statutes are specifically included in those costs and expenses to be paid by
Borrower. Borrower will pay to Lender all attorney fees and other costs referred to in
this paragraph on demand.
Any notice, demand, or request relating to any matter set forth herein shall be in
writing and shall be given as provided in the Agreement.
No delay or omission of Lender in exercising any right or power arising in
connection with any default will be construed as a waiver or as an acquiescence, nor
will any single or partial exercise preclude any further exercise. Lender may waive any
of the conditions in this Note and no waiver will be deemed to be a waiver of Lender's
rights under this Note, but rather will be deemed to have been made in pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence in or consent to any preceding or subsequent default.
The Deed of Trust provides as follows:
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Property, or any interest in the
Property. A "sale or transfer" means the conveyance of the Property or
any right, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed,
installment sale contract, land contract, contract for deed, leasehold
interest with a term greater than three (3) years, lease-option contract, or
by sale, assignment, or transfer of any beneficial interest in or to any land
trust holding title to the Property, or by any other method of conveyance of
Property interest. lf any Trustor is a corporation, partnership or limited
liability company, transfer also includes any change in ownership of more
than fifty percent (50%) of the voting stock, partnership interests or limited
liability company interests, as the case may be, of Trustor, other than a
transfer to the managing member of Trustor or an affiliate of the managing
member. However, this option shall not be exercised by Beneficiary if
such exercise is prohibited by applicable law.
Lender may transfer this Note and deliver to the transferee all or any part of the
Property then held by it as security under this Note, and the transferee will then become
vested with all the powers and rights given to Lender; and Lender will then be forever
relieved from any liability or responsibility in the matter, but Lender will retain all rights
and powers given by this Note with respect to Property not transferred.
lf any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a coud of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and
their respective successors and assigns.
Borrower agrees that this Note will be deemed to have been made under and will
be governed by the laws of California in all respects, including matters of construction,
validity, and performance, and that none of its terms or provisions may be waived,
altered, modified, or amended except as Lender may consent to in a writÍng duly signed
by Lender or its authorized agents.
The Loan shall be non-recourse to the Borrower and all constituent members of
the Borrower.
lN WITNESS WHEREOF, Borrower has caused this Note to be executed by
Borrower or Borrower's authorized agent(s) as of the date and year first above written.
Borrower:
l50l N. Blackstone Ave., L.P.
By:By:
Name:
Its:
Name:
Its:
EXHIBIT "H''
DEED OF TRUST
Recording requested by,
and when recorded mail to:
City of Fresno
2344Tulare St., Suite 200
Fresno, Ca.93721
Attention : Executive Director
INSTRUCTIONS TO COUNTY RECORDER:
Index this instrument as
(i) a Deed of Trust, and
(ii) a Fixture Filing
Space above for Recorder's Use
DEED OF TRUST AND ASSIGNMENT OF RENTS
This DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is
entered into between 1501 N. Blackstone Ave,, L.P., a California limited partnership
whose principal executive office is at 5947 Variel Avenue, Woodland Hills, CA 91367
(the "Trustor"), in favor of OLD REPUBLIC TITLE COMPANY, whose address is 7451
N. Remington Avenue, Suite 102, Fresno, CA 93711 (the "Trustee"), forthe benefit of
the CITY OF FRESNO (the "Beneficiary"), with offices at 2344 Tulare St., Suite 200,
Fresno, California 93721 .
THE TRUSTOR IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS TO
THE TRUSTEE, in trust, with the power of sale, the real property in the City of Fresno,
Fresno County, California, more particularly described in Exhibit A attached hereto and
made part hereof by reference (the "Property"), together with:
(i) All tenements, hereditaments and appurtenances of or to the Property,
including without limitation all easements and rights used in connection therewith or as
a means of access thereto, all right, title and interest of the Trustor, now owned or
hereafter acquired, in any land lying within the right-of-way of any street, open or
proposed, adjoining the Property, and any and all sidewalks, alleys, strips and other
areas of land adjacent to or used in connection with the Property;
(ii) All oil and gas or other mineral rights in or pertaining to the Property and
all royalty, leasehold and other rights of the Trustor pertaining thereto;
(iii) All water rights pertaining to the Property and shares of stock evidencing
the same, and all deposits made with or other security given to utility companies by the
Trustor with respect to the Propefty;
(iv) The rents, issues and profits thereof, subject, however, to the right, power
and authority of Trustor to collect and apply such rents, issues and profits and set forth
in this Deed of Trust;
(v) All buildings and improvements of every kind and description now or
hereafter erected or placed on the Property, and all fixtures thereon, including, but not
limited to, all gas and electric fixtures, engines and machinery, radiators, heaters,
furnaces, heating equipment, laundry equipment, steam and hot water boilers, stoves,
ranges, elevators and motors, bath tubs, sinks, water closets, basins, pipes, faucets and
other plumbing and heating fixtures, mantels, cabinets, refrigeration plant and
refrigerators, whether mechanical or othenryise, cooking apparatus and appurtenances,
and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed
that all such fixtures and furnishings shall to the extent permitted by law be deemed
permanently affixed to and a part of the realty;
(vi) All building materials and equipment now or hereafter delivered to the
Property and intended to be installed thereon; and
(vii) All articles of personal property owned by the Trustor and now or hereafter
attached to or used in and about the building or buildings now erected or hereafter to be
erected on the Property which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for which they were or are to
be erected, and all other goods, chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the ones
herein described and referred to, and all renewals or replacements thereof or articles in
substitution therefor, whether or not the same are or shall be attached to the building or
buildings in any manner; subject, however, to (and only to) any purchase money
security interests in such personal property.
Said real property and personal property described above, together with appurtenances,
are referred to collectively in this Deed of Trust as the "Collateral."
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS:
(a) Payment to the Beneficiary of an indebtedness in the principal amount of
One Million Five Hundred Thousand Eighty One Dollars ($t,500,081.00), evidenced by
a promissory note executed by the Trustor and payable to the order of the Beneficiary,
bearing the same date as this Deed of Trust, and any and all modifications, extensions
or renewals thereof or substitutions therefor (the "Note"), and performance and
satisfaction of each and all other obligations of the Trustor under the Note;
(b) Performance of every obligation or Trustor in this Deed of Trust, the Note,
the Owner Participation Agreement between Beneficiary and Trustor related to the
Property (the "Owner Participation Agreement") contemplating the improvement of the
"Project" (as that term is defined in the Owner Participation Agreement); and
(c) Payment of all sums, if any, and interest thereon that may hereafter be
loaned or advanced by the Beneficiary to or for the benefit of the Trustor or to its
successors, transferees and assigns, made to the Trustor while the Trustor is the owner
of record of fee title to the Property, or any portion thereof, or to the successors,
transferees or assigns of the Trustor while they are the owners of record of such fee
title, and evidenced by one or more notes or written instruments which recite that they
are secured by this Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, THE TRUSTOR
COVENANTS AND AGREES AS FOLLOWS:
1. The Trustor shall not use or permit the use of any of the Collateral for any
purpose other than the use for which it was intended at the time this Deed of Trust was
executed, as provided in the Owner Participation Agreement.
2. Upon default under this Deed of Trust or the Note (following delivery of
notice and expiration of the cure period, if any, provided therein), the Beneficiary, at its
option, may declare the whole of the obligations and sums secured hereby to be
immediately due and payable.
3. The person(s) or entity(ies) who have executed this Deed of Trust are fully
authorized, and have obtained any and all written authorizations, approvals or consents
necessary, to bind the Trustor to this Deed of Trust.
4. All rents, profits and income from the Collateral covered by this Deed of
Trust are hereby assigned to the Beneficiary for the purpose of discharging the
obligations hereby secured. However, the Trustor shall be permitted, so long as no
default exists hereunder or under the Note, to collect such rents, profits and income for
use consistent with the provisions of the Owner Participation Agreement.
5. Upon default hereunder or under the Note (following delivery of notice and
expiration of the cure period, if any, provided herein or therein), for the purpose of
protecting its interests hereunder, the Beneficiary will be entitled to the appointment by
a court having jurisdiction, without fuilher notice and without regard to adequacy of any
security for the indebtedness secured hereby, of a receiver to take possession of and
protect the Collateral described herein and operate same and collect the rents, profits
and income therefrom. The entering upon and taking possession of the Property or
other Collateral by such receiver, the collection of such rents, profits and income and
the application thereof shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice.
6. The Trustor, at its sole cost and expense, shall provide and maintain on
the entire Property, including all buildings and improvements thereon: (i) a policy of
broad-form builder's risk insurance sufficient to cover 100 percent of the replacement
value of all buildings and improvements on the Properly including; without limitation,
labor and materials in place or to be used as part of the permanent construction
(including, without limitation, surplus miscellaneous materials and supplies incidental to
the work, and scaffolding, staging, towers, forms and equipment not owned or rented
by the Beneficiary, the cost of which is not included in the cost of work), insuring against
loss or damage by fire, extended coverage perils and such other hazards, casualties or
other contingencies as from time to time may be reasonably required by the Beneficiary;
(ii) a policy of commercial general liability insurance that includes contractual, products
and completed operations coverages, bodily injury and properly damage liability
insurance with combined single limits of not less than $1,000,000 per occurrence; and
(iii) such other insurance as may be reasonably required by the Beneficiary, in each
case in such amounts, in such manner and with such companies as the Beneficiary and
Trustor may reasonably approve. The foregoing minimum insurance coverage limits
shall be subject to reasonable adjustment from time to time by the Beneficiary. Each
such policy shall be endorsed with a standard mortgage clause with loss payable to the
Beneficiary and the Trustor, and shall provide that the policy shall not be canceled or
materially changed without at least thirty (30) days' prior notice to the Beneficiary. Upon
request by the Beneficiary, the Trustor immediately shall deposit with the Beneficiary
certificates evidencing such policies.
7. The Trustor shall pay: (i) at least ten days before delinquency, all taxes
and assessments affecting the Collateral, including assessments on appurtenant water
stock; (ii) when due, all encumbrances, charges and liens, with interest, on the
Collateral or any part thereof which appear to be prior or superior hereto; and (iii) all
costs, fees and expenses of the Trustee or the Beneficiary reasonably incurred in
connection with the trusts created under this Deed of Trust.
8. The Trustor shall: (i) keep the Collateral in good condition and repair andnot remove or demolish any buildings on the Properly; to the extent insurance or
condemnation proceeds are available; (ii) complete or restore promptly and in good and
workmanlike manner the buildings and improvements and any other building or
improvement which may be constructed, damaged or destroyed thereon; (iii) pay when
due all claims for labor performed and materials furnished therefore; (iv) comply in all
material respects with all laws affecting the Collateral or requiring any alterations or
improvements to be made thereon; (v) not commit or permit waste of or on the
Collateral; and (vi) not commit, suffer or permit any act upon the Property in violation of
law and/or any covenants, conditions or restrictions affecting the Collateral.
L The Trustor shall appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of the Beneficiary or the
Trustee, and shall pay all costs and expenses, including cost of evidence of title and
reasonable attorneys'fees, in any such action or proceeding in which the Beneficiary or
the Trustee may appear, or in any suit brought by the Beneficiary to foreclose this Deed
of Trust.
10. Should the Trustor fail to make any payment or do any act as herein
provided, then the Beneficiary or the Trustee, without obligation to do so, and following
notice to or demand on the Trustor, and without releasing the Trustor from any
obligation hereof: (i) may make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, the Beneficiary or the Trustee
being authorized to enter on the Property for such purposes; (ii) may commence,
appear in and/or defend any action or proceeding purporting to affect the security hereof
or the rights or powers of the Beneficiary or the Trustee; (iii) may pay, purchase, contest
or compromise any encumbrance, charge or lien which in the judgment of either
appears to be prior or superior hereto (except for the deeds of trust, encumbrances and
liens securing the Construction/Permanent Financing Loan(s), as such terms are
defined below); and (iv) in exercising any such powers, may pay necessary expenses,
employ legal counsel and pay such counsel's reasonable fees. All such amounts paid
by the Beneficiary or the Trustee hereunder shall be added to the obligations secured
by this Deed of Trust.
The term "Construction/Permanent Financing Loan" means, collectively, the
construction financing and take-out financing, and any refinancing or replacement of
that financing from time to time, to be provided by a commercial or other lender(s);
provided, however, that (i) before entering into any Construction/Permanent Financing
Loan, the Trustor shall give the Beneficiary notice of the Construction/Permanent
Financing Loan and copies of the loan agreement and all other loan documents
evidencing the Construction/Permanent Financing Loan; (ii) the funds disbursed from
each Construction/Permanent Financing Loan shall be used only for costs and charges
associated with the loan and for the operation, maintenance and/or improvement of the
Project or the Property as provided in the Owner Participation Agreement or to
refinance existing indebtedness; (iii) the interest on each Construction/Permanent
Financing Loan shall be at a reasonable rate based on all the facts and circumstances;
and (iv) the combined amounts of all Construction/Permanent Financing Loans or any
re-financing thereof and the Note secured by this Deed of Trust shall not exceed one
hundred percent (100%) of the fair market value of the Property as improved by the
Project under the Owner Participation Agreement (such value to be determined by a
qualified appraiser reasonably acceptable to Trustor and Beneficiary.
11. The Beneficiary shall have the right, but not the obligation, to pay when
due fire or other insurance premiums required hereunder if the Trustor fails to make
such payments. All such amounts paid by the Beneficiary hereunder shall be added to
the obligations secured by this Deed of Trust.
12. The Trustor shall pay immediately upon demand all sums so expended by
the Beneficiary or the Trustee under this Deed of Trust, with interest from date of
expenditure at the legal rate.
13. lf the Trustor fails to pay any amount required by the Note or this Deed of
Trust when due and payable, or fails to perform all other covenants, conditions and
agreements of the Note, this Deed of Trust or the Owner Parlicipation Agreement
(following delivery of notice and expiration of the cure period, if any, provided therein),
the amount of the Note, including unpaid principal and late charges, and all other
charges and amounts required by the Note and this Deed of Trust shall, at the option of
the Beneficiary, become immediately due and payable. This shall be in addition to and
without limitation on any other remedy or right available to the Beneficiary for such
failure.
14. The Trustor shall not voluntarily create or permit to be created against the
Collateral any lien or liens except as specifically permitted by this Deed of Trust or
othenryise authorized by the Beneficiary. The Trustor shall keep and maintain the
Collateral free from the claims of all persons supplying labor or materials who will enter
into the construction, rehabilitation, renovation or repair of any and all buildings or
improvements now existing or to be erected on the Property.
15. By accepting payment of any sum secured by this Deed of Trust after its
due date or by accepting partial payment of any such sum, the Beneficiary does not
waive its right either to require prompt payment when due of all other sums so secured
or to declare default for the Trustor's failure to pay.
16. lf the Trustor, without the prior written consent of the Beneficiary: (i)
agrees to or actually sells, conveys, transfers or disposes of the Collateral or any
interest therein or portion thereof, or (ii) assigns or delegates any right or obligation
under the Owner Participation Agreement, the Note or this Deed of Trust, then all
amounts secured by this Deed of Trust may be declared immediately due and payable,
at the option of the Beneficiary. The Beneficiary shall not unreasonably withhold its
consent to any such transaction. The Beneficiary's consent to one transaction of this
type shall not be a waiver of the right to require consent to future or successive
transactions.
DUE ON SALE-CONSENT BY BENEFICIARY. Beneficiary may, at its
option, declare immediately due and payable all sums secured by this
Deed of Trust upon the sale or transfer, without the Beneficiary's prior
written consent, of all or any part of the Property, or any interest in the
Property. A "sale or transfer" means the conveyance of the Property or
any right, title or interest therein; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed,
installment sale contract, land contract, contract for deed, leasehold
interest with a term greater than three (3) years, lease-option contract, or
by sale, assignment, or transfer of any beneficial interest in or to any land
trust holding title to the Property, or by any other method of conveyance of
Propefty interest. lf any Trustor is a corporation, partnership or limited
liability company, transfer also includes any change in ownership of more
than fifty percent (50%) of the voting stock, partnership interests or limited
liability company interests, as the case may be, of Trustor, other than a
transfer to the managing member of Trustor or an affiliate of the managing
member. However, this option shall not be exercised by Beneficiary if
such exercise is prohibited by applicable law.
17. As fufther security for the full and complete performance of each and
every obligation, covenant, agreement and duty of the Trustor contained herein or in the
Note, the Trustor hereby grants and conveys to the Beneficiary a security interest in and
lien on all of the Collateral. This Deed of Trust shall serve as a security agreement and
financing statement created pursuant to the California Commercial Code, and the
Beneficiary will have and may exercise all rights, remedies and powers of a secured
party under the California Commercial Code. Further, this Deed of Trust is filed as a
fixture filing pursuant to the California Commercial Code and other applicable law, and
covers goods which are or are to become fixtures.
18. Should the Property, the buildings or improvements thereon, or any part of
any of them be taken or damaged by reason of any public improvement or
condemnation proceeding, or damaged by fire or earthquake or in any other manner,
the Beneficiary will be entitled, subject to the rights of the holder of any senior deed of
trust securing a Construction/Permanent Financing Loan, to all of the Trustor's interest
in compensation, awards and other payments or relief therefor; and, following the
occurrence of a default as defined in the Note, the Beneficiary shall be entitled, jointly
with the Trustor, at the Beneficiary's option, to commence, appear in and prosecute in
its own name, any action or proceeding, or to make any compromise or settlement, in
connection with such taking or damage. All such compensation, awards, damages,
rights of action and proceeds, including the proceeds of any fire and other insurance
affecting the Propedy or the buildings or improvements thereon, are hereby assigned to
the Beneficiary, subject to the rights of the holder of any senior deed of trust securing a
Construction/Permanent Financing Loan. After deducting therefrom all its expenses,
including reasonable attorneys' fees, and if there has not occurred a default under the
Note, the Beneficiary shall apply all such proceeds to restoring the Property or the
buildings or improvements thereon, or if there has been such default, or if the Trustor
determines not to rebuild, the Beneficiary shall retain the proceeds to the extent of the
amount due under the Note and any amounts due under this Deed of Trust. Any
balance of such proceeds still remaining shall be disbursed by the Beneficiary to the
Trustor.
19. lf the Trustorfails to perform any covenant or agreement in this Deed of
Trust or the Owner Participation Agreement, or if a default occurs under the Note, the
Beneficiary may declare all obligations and sums secured hereby immediately due and
payable by delivery to the Trustee of written declaration of default and demand for sale
and written notice of default and of election to cause the Collateral to be sold, which
notice the Trustee shall cause to be duly filed for record, and the Beneficiary may
foreclose this Deed of Trust; provided, however that the Trustor shall not be deemed to
be in default hereunder for failure to make any payment when due or for failure to
perform any other covenant or agreement contained herein until thirty (30) days after
written notice of such failure is given to the Trustor and Trustor is afforded a reasonable
opportunity to cure the default. The Beneficiary shall also deposit with the Trustee this
Deed of Trust, the Note and all other documents evidencing the obligations or sums
secured hereby.
20. After the lapse of such time as may then be required by law following the
recordation of the notice of default, and notice of sale having been given as then
required by law, the Trustee, without demand on the Trustor, shall sell the Properly at
the time and place fixed by the Trustee in the notice of sale, either as a whole or in
separate parcels, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States, payable at time of sale. The
Trustee may postpone sale of all or any portion of the Property by public announcement
at the time and place of sale, and from time to time thereafter may further postpone the
sale by public announcement at the time fixed by the preceding postponement. The
Trustee shall deliver to the purchaser its deed conveying fee title to the Property or
portion thereof so sold, but without any covenant or warranty, express or implied. The
recitals in the Trustee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including the Trustor, the Trustee and the Beneficiary,
may purchase at the sale. The Trustee shall apply the proceeds of the sale to paymentof: (i) the expenses of the sale, together with the reasonable expenses of the trust
created by this Deed of Trust, including reasonable Trustee's fees and attorneys' fees
for conducting the sale, and the actual cost of publishing, recording, mailing and posting
notice of the sale; (ii) the cost of any search and/or other evidence of title procedure in
connection with the sale and of revenue stamps on the Trustee's deed; (iii) all sums
expended under the terms hereof not then repaid, with accrued interest at the legal rate;
(iv) all other sums then secured hereby; and (v) the remainder, if any, to the person or
persons legally entitled thereto.
21. The Beneficiary may from time to time substitute a successor or
successors to the Trustee named herein or acting hereunder to execute the trusts under
this Deed of Trust. Upon such appointment, and without conveyance to the successor
trustee, the latter shall be vested with all title, powers and duties conferred upon any
Trustee herein named or acting hereunder. Each such appointment and substitution
shall be made by written instrument executed by the Beneficiary, containing reference
to this Deed of Trust and its place of record, which instrument, when duly recorded in
Fresno County, California, shall be conclusive proof of proper appointment of the
successor trustee.
22. Upon written request of the Beneficiary stating that all obligations secured
hereby have been satisfied and all sums secured hereby have been paid, and upon
surrender of this Deed of Trust and the Note to the Trustee for cancellation and
retention, and upon payment of its fees, the Trustee shall reconvey, without warranty,
the Collateral then held hereunder. The recitals in such reconveyance of any matters or
facts shall be conclusive proof of the truthfulness thereof. The grantee in such
reconveyance may be described as "the person or persons legally entitled thereto."
23. The trusts created by this Deed of Trust are irrevocable by the Trustor.
24. This Deed of Trust applies to, inures to the benefit of, and binds of the
Trustor, the Beneficiary and the Trustee and their respective administrators, executors,
officers, directors, transferees, successors and assigns. The term "Beneficiary" shall
include not only the original Beneficiary hereunder but also any future owner and holder,
including pledges, of the Note secured hereby. In this Deed of Trust, whenever the
context so requires, the masculine gender includes the feminine and/or neuter, and the
singular includes the plural.
25. ln addition to and without limitation on any other rights or remedies of the
Trustee or the Beneficiary, if the Trustee or the Beneficiary commences any legal action
or proceeding to enforce or interpret any provision of this Deed of Trust or the Note, the
Trustor shall pay all costs and expenses incurred by the Trustee or the Beneficiary in
connection with such action or proceeding, including legal expenses and reasonable
attorneys'fees and court costs.
26. The Trustee accepts the trusts hereunder when this Deed of Trust, duly
executed and acknowledged, is made public record as provided by law. Except as
othenryise provided by law, the Trustee is not obligated to notify any party hereto of
pending sale under this Deed of Trust or of any action or proceeding in which the
Trustor, the Beneficiary or the Trustee is a party, unless brought by the Trustee.
27. The Trustor requests that a copy of any notice of default and of any notice
of sale hereunder be mailed to it at its principal place of business, address set forth
above.
28. The Trustor shall cause a copy of each deed of trust securing a
Construction/ Permanent Financing Loan to be provided to the Beneficiary immediately
upon its recordation, so that the Beneficiary may prepare and record a request for
notice of default and notice of sale thereunder pursuant to California Civil Code Section
2924b.
29. PROVIDED THAT NO NOTICE OF DEFAULT HEREUNDER THEN
APPEARS OF RECORD AND SUBJECT TO THE CONDITIONS IN SECTION 10
ABOVE AND/OR IN THE OWNER PARTICIPATION AGREEMENT, THIS DEED OF
TRUST SHALL BE SUBORDINATE AND SUBJECT TO ANY DEED OR DEEDS OF
TRUST SECURING A CONSTRUCTION/PERMANENT FINANCING LOAN.
BENEFICIARY SHALL, UPON REQUEST OF TRUSTOR, EXECUTE SUCH
SUBORDINATION AGREEMENT OR OTHER DOCUMENTATION REASONABLY
NECESSARY TO SUBORIDINATE THE LIEN AND CHARGE OF THIS DEED OF
TRUST TO LIEN OF ANY DEED OR DEEDS OF TRUST SECURING A
CONSTRUCTION/PERMANENT FINANGING LOAN, AS PROVIDED IN THE OWNER
PARTICIPATION AGREEMENT.
30. This Deed of Trust shall be interpreted and enforced, and the rights and
duties (both procedural and substantive) of the parties hereunder shall be determined,
according to California law.
31. Capitalized terms not othenruise defined herein shall have the meanings
given them in the Owner Participation Agreement or the Note.
lN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date
set forth above.
TRUSTOR:
1501 N. Blackstone Ave., L.P.
a California limited partnership
By:
Name:
Its:
By:
Name:
Its:
Attachment: Exhibit A - Legal Description of the Property
ACKNOWLEDGMENTS
STATE OF CALTFORNTA )
) ss.
couNTY oF FRESNO )
On 20-, before ffie,
Notary Public, personally appeared
who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(sEAL)
EXHIBIT A to DEED OF TRUST
LEGAL DESCRIPTION
Real property in the City of Fresno, County of Fresno, State of California, described as follows:
THAT PORTION OF LOT ONE (1) OF FRESNO HETGHTS HOMESTEAD TRACT, tN THE
CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF RECORDED JANUARY 13, 1888, IN BOOK 2, PAGE 39 OF PLATS, IN THE
OFFICE OF THE COUNTY RECORDER OF FRESNO COUNTY, LYING SOUTH AND WEST
OF THE RIGHT OF WAY OF THE SANTA FE RAILROAD.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA
IN THE DEED RECORDED MAY 19, 1944IN BOOK 2177, PAGE 9 OF OFFICIAL RECORDS
OF FRESNO COUNTY, CALIFORNIA.
APN: 451-064-16