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HomeMy WebLinkAboutORANGE HOUSING DEVELOPMENT CORPORATION AND C & C DEVELOPMENT (2)A-2010-048 INSURANCE NO ± ON FILE WORK MAY ~~ ~ ~RCCt14,C~~ CLERK nF Cp~NCil.. n 4TF . ~ ~ ~ NEIGHBORHOOD STABILIZATION PROGRAM (PROGRAM 2) ~~ RENTAL HOUSING DEVELOPMENT AGREEMENT This Agreement is executed by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of oL California (hereinafter "City") and Orange Housing Development Corporation ("OHDC"), a ~ non-profit 501 (c) (3) organization, and C&C Development Co., a Limited Liability Company 1 ~ ("Developer") as of March 1, 2010. ~~ RECITALS: o - A. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110- 289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified municipalities for certain qualified grant funds termed Neighborhood Stabilization Program ("NSP Funds") under a program termed the Neighborhood Stabilization ~ ~ Program (the "NSP"). B. On May 4, 2009, the U.S. Department of Housing and Urban Development ("HUD") issued a Notice of Funding Availability (NOFA) for Neighborhood Stabilization Program 2 Funds (NSP 2). In July 2009, the City submitted an application for $10 million. C. On January 14, 2010, the City was notified that its application under the NSP for NSP 2 Funds was approved by HUD. Funding for Developer is allocated for acquisition and rehabilitation of the multifamily component of the NSP in an amount not to exceed $6,500,000.00, but not less than $2,500,000.00 plus program income. D. The Acquisition and Rehabilitation -Rental Program will be implemented in the target area as illustrated in the map attached hereto as Exhibit A. E. Developer was awarded an agreement for the NSP 1 funds for the Rental Program, and due to its successful implementation of NSP 1 with Developer, this agreement is being awarded to Developer. F. The City intends for the NSP funds to be primarily used for acquisition of foreclosed properties and any expenses related to the acquisition and disposition of such properties, including developer fees. Only in special circumstances will the NSP funds be used for the rehabilitation costs associated with foreclosed properties. NOW THEREFORE, the parties agree as follows: 100. DEFINITIONS "Abandoned" a residential property is abandoned when mortgage or tax foreclosure proceedings have been initiated for that property, no mortgage or tax payments have been made by the property owner for at least 90 days AND the property has been vacant for at least 90 days. "Affordability Covenants and Restrictions on Transfer of Property" means that certain recorded document affecting real property benefiting the City, attached hereto as Exhibit B. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 502 of this Agreement. "Agreement" means this Neighborhood Stabilization Program Agreement (Program 2) between the City and the Developer, and any attachments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP, and the NSP Funds. "Area Median Income" means the median income figures for Orange County adopted by the State of California pursuant to Health and Safety Code Section 50093, as amended from time to time. Also may be referred to as "AMI" herein. "Blighted" a structure is blighted when it exhibits objectively determinable signs of deterioration sufficient to constitute a threat to human health, safety and welfare. "Building Permit" means the building permit(s) issued by City and required for the rehabilitation, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "City" means the City of Santa Ana, a charter city and municipal corporation. "City Manager" means the City Manager, or his/her designee. "Current Market Appraised Value" the current market appraised value means the value of a foreclosed property that is established through an appraisal made in conformity with the appraisal requirements of the Uniform Relocation Act (URA) 49 CFR 24.13 and completed within 60 days prior to the final offer made for the property. "Deed of Trust" means the Deed of Trust with the Developer encumbering the NSP Assisted Unit in the form attached hereto as Exhibit C. "Developer" means a partnership between OHDC and C& C Development Co.which the limited partnership is to be formed. "Eligible Property" shall mean a property that the City shall in its sole discretion determines meets NSP Program Criteria. 2 "Foreclosed" A property "has been foreclosed upon" at that point that, under state or local law, the mortgage or tax foreclosure is complete and the title has been transferred away from the former property owner. A property is not foreclosed until the title for the property has been transferred from the former property owner under a foreclosure proceeding or a transfer in lieu of foreclosure, in accordance with state or local law. A Deed in Lieu of Foreclosure or property sold at auction can also be considered "foreclosed". "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec ., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 6901, et seq., as amended. "Housing Rehabilitation Standards" NSP funded activities will adhere to the Housing Rehab Standards (attached hereto and incorporated herein as Exhibit D). This standard exceeds the HUD Housing Quality Standards. The Standards shall correct housing deficiencies and address items deemed essential for basic health, safety, and welfare. All work shall meet the Uniform Building Code (UBC), Uniform Plumbing Code (UPC), Uniform Mechanical Code (UMC), National Electric Code (NEC) as amended periodically. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in this Agreement as "Area Median Income" or "AMI". "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "Neighborhood Stabilization Program (NSP) Regulations" has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. 3 "NSP Funds" shall mean the money provided under the NSP Program (NSP 2) for the acquisition and rehabilitation of the Property hereunder. "Promissory Note" means the Promissory Note executed by the Developer encumbering the NSP Assisted Unit in the form attached hereto as Exhibit E. "Target area" shall mean the map attached hereto and incorportated herein as Exhibit A. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 200. PROPERTY ACQUISITION 201. Selection of Properties by Developer. Developer shall with reasonable diligence seek to identify proposed Eligible Properties which it determines may meet NSP Program Criteria. The Developer shall provide the City with its Acquisition/Rehabilitation Bid Analysis on each potential property to the City. Upon receipt of complete bid analysis, the City shall review said within two (2) working days, subject to final approval after inspection by City rehabilitation staff which shall occur within two (2) additional working days. The City will approve or reject properties for purchase through the NSP Program. Developer shall negotiate the purchase of the property with the current owner which must be consistent with NSP guidelines. Developer shall take, insure and hold title to the property, and prepare a scope of work to be reviewed by the City. The City anticipates mainly using NSP funds for acquisition, costs associated with maintenance, sales and other related soft costs. The actual number of units to be acquired and rehabilitated by Developer will be determined by the City in its sole discretion based in part on the amount of NSP Funds awarded to Santa Ana. 202. Properties Provided by the National Community Stabilization Trust. The parties shall also be working in conjunction with the National Community Stabilization Trust (NCST) to identify potential eligible properties. Any properties purchased in collaboration with NCST must comply with all NCST requirements and follow the NCST framework for acquisition of eligible properties. Developer shall work with the City's identified acquisition agent, currently ANR Homes, Inc., subject to future change. 203. Offer to Purchase. Any offers to purchase must include a contingency for appraisal to be in compliance with NSP Regulations. Once appraisal is in compliance, then a final offer to purchase may be submitted. 204. Appraisals. The City issued a Request for Proposals (RFP) in order to establish a list of qualified appraisers. The appraisers selected are experienced, qualified and meet the NSP appraiser requirements. The City shall provide its approved list of appraisers to be used for all 4 NSP activities to the Developer. Developer shall select and pay the appraiser directly as one of its development costs. 205. Funding of Acquisition/Rehabilitation. City shall deposit into escrow, funds for Developer as agreed upon during the Selection Phase. City shall record a lien, in the form of a Deed of Trust, Affordability Covenants and Restrictions, and Promissory Note (attached hereto and incorporated herein as Exhibits B, C, and E), against each of the selected properties equal to the amount of money deposited into escrow for such Property. 206. Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the Rehabilitation. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the rehabilitation. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the City Manager in connection therewith. All applicable federal and state guidelines must also be followed. 300. REHABILITATION REQUIREMENTS. The following Rehabilitation Requirements shall apply to all NSP Assisted Units: 301. Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of governmental agencies required in connection with the rehabilitation of the Property. 302. Commencement and Completion of Rehabilitation. The Rehabilitation shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by any governmental authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 303. Rehabilitation Standards. Residential Rehabilitation Standards (24 CFR 570): Developer certifies that it will perform rehabilitation in conformance to the standards outlined in the City's Residential Rehabilitation Standards ,which exceed the HUD Housing Quality Standards and with strict adherence to state and local building codes, safety standards, protection of historical integrity and for maximum achievement in the area of energy efficiency. Demolition shall be conducted in cases of extreme deterioration, to eliminate illegal additions, and in concert with local authorities. 304. Protection of Historical Structures (24 CFR Part 58/36CFR Part 800). Developer will comply with and obtain approval of the Federal and State Historic Preservation Commission(s) when rehabilitation activities are planned on a structure that is listed on the state historic registry, and will provide documentation of such approval to the City prior to commencement of any rehabilitation activities on a property which is funded through this program. 305. Lead-Based Paint. Developer shall comply with the requirements, as applicable of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35 for any housing project it undertakes pursuant to this Agreement. For the activities outlined in this Agreement, Developer will be required to pay particular attention to subpart J (Rehabilitation); subpart K (Acquisition, Leasing, Support Services or Operation) and Subpart R (Methods and Standards for lead based paint hazard reduction activities). 306. Asbestos Abatement: The United States Environmental Protection Agency (EPA) has defined asbestos containing materials (ACM) to be any substance containing more than one percent (1%) or more asbestos by weight. All ACM's must be abated prior to demolition or renovation/remodeling activities by a Cal-OSHA licensed asbestos abatement contractor using methods in accordance with 8 CCR 1529 and SCAQMD Rule 1403. Asbestos abatement procedures should be monitored by a third party or consultant knowledgeable in asbestos abatement procedures and is, at a minimum, either a Cal-OSHA certified Site Surveillance Technician or Certified Asbestos Consultant. The survey for ACMs shall be performed in conjunction with the survey for lead-based paint. All suspect materials are sampled and tested in accordance with the general guidelines for bulk asbestos sampling as presented in Section 40, Part 763 (AHERA) of the Code of Federal Regulations (CFR) and the United States EPA. 307. Energy Efficient Products. Developer shall include energy efficient products in the rehabilitation of the units. Such products include, but are not limited to, the following features: low-flush toilets, insulation, high efficiency systems, and tankless water heaters. In addition, yards will be landscaped with low-maintenance and drought tolerant plants. 308. Rehabilitation Act -Section 504 (As Applicable). Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in federally-assisted activities and programs on the basis of handicap, and imposes requirements to ensure that qualified individuals with handicaps have access to these programs and activities. 309. Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 400. REHABILITATION COSTS PAID WITH NSP FUNDS 6 In those instances where Rehabilitation Costs will be paid with NSP Funds, the following procedures shall be followed: 401. Rehabilitation Costs Paid with NSP Funds. It is the intent of the parties to use NSP funds for acquisition and related soft costs. If there is a need to use NSP funds for rehabilitation, this section will apply. In the event that NSP Funds will be used for construction related expenses, Developer must also comply with the labor and Davis-Bacon regulations as set forth in Section 703 hereof. The documents referenced in this Section 400 (Payment Request, Release of Retention Funds, Notice of Completion) are attached hereto and incorporated herein as Exhibit F. 402. Disbursement Requests. The Rehabilitation Portion proceeds shall be disbursed on a line-item by line-item basis in accordance with the Rehabilitation Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Rehabilitation Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b ) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the NSP Funds, Developer shall deliver to City and to Bank a draw request ("Draw Request"), and all required supporting information as set forth in this Agreement or as otherwise reasonably required by City or Bank in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City and Bank shall notify the other and Developer of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Bank's "Disbursement/Change Order Approval Notice". City and Bank shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 403. Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 404. Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Rehabilitation Budget exceeds the amount allocated to that line item in the Rehabilitation Budget, (b) Rehabilitation Costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Rehabilitation Portion is or may be insufficient to pay all Rehabilitation Costs that may be payable under this Agreement or otherwise in connection with the Rehabilitation, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the NSP Funds; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Rehabilitation Budget; provided, however, that the City Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in anon-interest bearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the City Manager but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Rehabilitation Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining Rehabilitation Portion proceeds. 405. Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Rehabilitation Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 406. Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 407. Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the City Manager) for "punch-list" items. Such holdback will be released when all punch-list items have been completed to the satisfaction of City. 408. Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be condition to all further disbursements until fulfilled. 409. Modification of Disbursement Conditions and Procedures. The City Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Rehabilitation Contract. 410. Other Terms and Conditions of Grant hereunder. the following: A. The Note(s) shall become immediately due and payable, in the event of any of (1) failure to complete the Project within three (3) years of the recording date; (2) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (3) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 411. Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 500. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 501. Use Covenants and Restrictions. Developer agrees to make available, restrict occupancy to, and rent each of the NSP Assisted Units to Extremely Low or Low Income Households (as that term is herein defined) at an Affordable Rent. A. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely low and low income households at rents affordable to such households for fifty-five (55) years from the effective date of this Agreement. B. Reserved. C. Tenancy and relocation shall be managed in accordance with NSP Regulations and guidance. D. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(1), and as provided in the NSP Regulations. Rental increases shall be in conformance with federal and state law. 9 E. Rents During Construction/Rehabilitation: Upon close of escrow, tenants will be notified that leases will be modified to reflect a new rent structure per this Agreement, but in no event will it be more than they are currently paying. 502. Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents may be recalculated to allowable rental amounts at the time of initial lease-up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD and the State of California. 503. Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 504. Recertification of Tenant Income. a. Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with NSP regulations and guidelines. Every fifth (5`h) year, Developer shall require new original income documents to be submitted by tenants. Tenants in NSP assisted units whose incomes no longer comply with federal income guidelines shall have their rents adjusted in accordance with federal NSP guidelines. b. NSP assisted units continue to qualify as affordable housing despite a temporary non- compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 505. Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 506. Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to 10 unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the this Agreement. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 506.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any part of the Property without City's prior consent, except to make non- structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 507. Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 508. Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non-governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 508.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair City interests under this Agreement, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 508.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 508.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City. 11 509. Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Budget, as it may be revised from time to time with City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 510. Replacement Reserve Account. Developer must establish or cause to be established a segregated interest-bearing replacement reserve depository account ("Replacement Reserve Account") no later than sixty (60) days after the Notice of Completion is filed. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 511. Environmental Matters a. Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. b. Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the rehabilitation of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. c. Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. d. Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to 12 be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. e. Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its officers, directors, employees and agents (collectively the "Indemnitees ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 600. DEVELOPER FEE AND PERFORMANCE. 601. Developer Fee. 8% of Project Cost per Developer's Proposal. The Developer Fee is earned at the acquisition of the Property, but shall not be paid to Developer until the rehabilitation of the Property is complete and the Property has 90% occupancy. 602. Performance Measures. Due to the legislative deadlines, performance measurements will be monitored closely. The Developer's contract may be cancelled and the funds reallocated to other developers for failure to meet HUD deadlines. 603. Business License/Professional Licenses. Developer must obtain and maintain a valid business license in order to perform services in the City of Santa Ana. Also, Developer shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Developer shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 604. Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations specific to this Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, 13 and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. 605. Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 606. Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5th) year beginning January 2016. 700. GOVERNMENTAL REQUIREMENTS 701. Economic Opportunities for Low Income People. (24 CFR 570.487, Section 3 of the Housing and Urban Development Act of 1968, 12 USC 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992). Developer certifies that it implements a policy in accordance with Section 3 of the Housing and Urban Development Act of 1968 that requires employment and other economic opportunities arising in connection with housing rehabilitation, housing construction and other public construction projects shall, to the extent feasible and consistent with existing federal, state and local laws and regulations, be given to low and very low-income persons. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the NSP. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, Section 3 is applicable and all disclosure and reporting requirements apply. 702. Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 703. Conformance with Applicable Labor Law. If Section 401 applies, all laborers and mechanics employed by the Developer and any subcontractor in the performance of the construction work under this Agreement (if any) shall be paid wages at rates not less than the prevailing wage as determined by the U.S. Department of Labor, under the Davis-Bacon Act. The Developer further agrees to comply with the provisions of the Copeland Act and the Contractor Work Hours and Safety Act. This paragraph does not apply to contracts which do not exceed $2,000. 14 704. Maintenance of Drug-Free Workplace. Developer shall certify that Developer will provide adrug-free workplace in accordance with 24 CFR 84.13. 705. Books and Records. Developer shall maintain complete books of account and other records, reports and information, as the City Manager may reasonably require, reflecting its operations (in connection with any other businesses as well as with respect to the NSP Assisted Units), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, to meet the record keeping and reporting requirements required of it in accordance with 24 CFR 92.508. 706. Equal Opportunity and Fair Housing. Developer shall carry out the Rehabilitation and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. Developer must also follow the requirements of Health and Safety Code section 33435. 707. Conflict of lnterest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 708. Program Income. When the City receives repayment from sales of the Properties, such funds are "Program Income". Program Income received by the City will be used for NSP activities. Program Income and reallocated funds identified for the rental component will be added to the Agreement with Developer. Developer agrees to comply fully with all federal, state, and local laws applicable to its operation whether or not referred to in this Agreement. 800. DEFAULTS, REMEDIES, TERMINATION 801. Event of Default. Failure or delay by either party to perform any term of provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 15 802. Default Remedies. Failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes 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. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with diligence. 803. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restriction otherwise set forth in this Agreement, either party may institute and action at law or 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. Such legal actions must be instituted in the Courts of the County of Orange, State of California, or in the District of the United States District Court in which such county is located. 804. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such right or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 805. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 806. Termination. This Agreement shall terminate on the earlier of: (a) expenditure of all NSP funds; (b) failure to cure a material breach after notice and time to cure; (c) February 1, 2014; (d) the date ninety (90) days following receipt by Developer of written notice of termination from the City; (e) upon mutual agreement of the parties, or (f) failure to meet Performance Measures as set forth in Section 602. 900. GENERAL PROVISIONS 901. Relationship between the Parties. Both parties expressly acknowledge it is the intention of the parties that this Agreement shall be a contract for services and shall not in any way create any employer/employee relationship between the parties or any co-venture or joint venture. Developer is an independent contractor who shall in no way be considered an employee of the City. It is expressly acknowledged and agreed that Developer shall be responsible for maintaining its own insurance as described in paragraph 906. 902. Notices. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in 16 writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To City: City of Santa Ana -Housing Division 20 Civic Center Plaza, M-37 Santa Ana, California 92701 Attention: City Manager To Developer: With a copy to: Orange Housing Development Corporation 414 East Chapman Avenue Orange, California 92866 Attn: Executive Director C&C Development Co., LLC P.O. Box 311 Tustin, CA 92781 Any written notice, demand or communication shall be deemed received immediate if delivered by hand and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 903. Modification of Terms. The City Manager shall have the authority to make minor modifications to the terms contained herein with the prior approval of the City Attorney's Office. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 904. Limitation on Delegation. Inasmuch as this Agreement is intended to secure the specialized services of Developer, Developer may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other developers or consultants retained by the City. 905. Exclusivity and Amendment. This Agreement represents the complete and exclusive statement between the City and Developer, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Developer. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Developer nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally 17 or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 906. Insurance Policies Required. While any obligation of Developer under this Agreement remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the rehabilitation; (b) prior to commencement and following completion of the rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the rehabilitation and at all times prior to completion of the rehabilitation, permanent property replacement and liability insurance policy covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonable required by City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by City. This countersigned certificate shall name the City and its respective officers, agents, and employees as an additionally insured party under the policy, and the certificates shall be accompanied by a duly executed enforcement evidencing such additional insured status (the City's preferred Additional Insured Endorsement is attached hereto as Exhibit G). The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not be contributing with any insurance maintained by the City, and the policy shall contain such an endorsement. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand therefore, and 18 prior to start of any rehabilitation work. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 906.1 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 906.2 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi-public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 906.3 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 906.4 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a rehabilitation contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to 19 evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 906.5 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 906.6 Failure to Satisfy Conditions. In the event that Developer fails tofulfill the Restoration Conditions within one hundred twenty (120) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in their sole and absolute discretion. 906.7 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property, regardless of whether insurance proceeds are available or sufficient. 906.8 Condemnation; Treatment of Compensation Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. (a) Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 20 (b) Nothwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 906.9 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. The required certificates shall be furnished by the Developer at the time this Agreement is executed. Certificates verifying such coverage has been extended to the City of Santa Ana must be furnished to the City of Santa Ana City Attorney's Office (M-29), 20 Civic Center Plaza, Santa Ana, CA 92701 prior to the commencement of work hereunder. 907. Builders Risk Insurance.. The Developer shall be responsible to cover the properties during the course of rehabilitation. It is recommended that such insurance provide coverage on an all risk basis, including theft and vandalism, for accidental losses, damage or destruction of the Property. 908. Right of Access. For purposes of assuring compliance with this Agreement, representatives of the City shall have the right of access to the properties, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in rehabilitating the improvements so long as City representatives comply with all safety rules. The City (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its right pursuant to this section. 909. Developer Indemnity. Developer shall indemnify, defend and hold harmless City, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of any kind arising out of this Agreement, implementation of this Agreement, the sale of the property by Developer, securing of financing, design development drawings, engineering, construction, reconstruction, structural integrity of the NSP Assisted Units, maintenance of the properties, operation, and subsequent sale of the NSP Assisted Units, including but not limited to: (a) the presence, release, use, generation, discharge, storage or disposal of any hazardous materials, on, under, in or about, or the transportation of any such hazardous materials to or from, the NSP Assisted Units; 21 (b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the NSP Assisted Units; (c) latent material defects in rehabilitation work; (d) any construction defect; (e) personal injury, including death, of the employees, agents, officers, and/or volunteers of Developer, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; (f) property damage claims of the employees, agents, officers, and/or volunteers of Developer, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; (g) delay in rehabilitation; (h) personal injury, including death, of any third party; and (i) property damage claims of any third party. Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of any kind that, are discovered or accrue, either before or after the termination of this Agreement. Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless the City for liability attributable to the active negligence or intentional misconduct of the City or any of its boards, officers, employees, representatives or agents. 910. Attorney's Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 911. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 912. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both parties. 913. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or 22 unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 914. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 915. Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under this Agreement without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 916. Prior Agreements; Amendments; Consents. This Agreement (together with the related documents) contains the entire agreement between the City and Developer with respect to the NSP funds and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement. No modification of any this Agreement (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 917. Governing Law. All of the NSP documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 918. Severability of Provisions. No provision of this Agreement that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of this Agreement are hereby declared to be severable. 919. Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other NSP documents, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 23 920. Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 921. Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 922. Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 923. Nonliability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation under the terms of this Agreement. 924. Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 24 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first stated above. ATTEST: Qivt~ ~-. MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney ~~- By: LISA E. STORCK Assistant City Attorney DEVELOPER: CITY OF SANTA ANA DAVID N. REAM City Manager By: ORANGE HOUSING DEVELOPMENT CORPORATION a California nonprofit public benefit corporation, its sole member By: ' ~~ ~~ ~~~ Eunice Bobert, i~ Chief Exec ive Officer C&C Development a California limited bility,~4c mpany -~:. ~: By: ,- `.~. -. .~ .'~ __ Todd R. Cottle, its member By: Cottle Family Trust Dated 3/8/87, By: m--~-~ G-. arry A. Cottle, its Trustee 25 EXHIBIT A -a 2 445 ~~ d N z r~ s. t ~o~` C o ~1~ ~ a r ~ ~~ N Z 0. 0 Z EXHIBIT B FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-37) P.O. BOX 1988 Santa Ana, CA 92702-1988 Attention: Housing Programs Coordinator AFFORDABILITY COVENANTS AND RESTRICTIONS {Address: ,Santa Ana, CA} THIS AFFORDABILITY RESTRICTION AGREEMENT (the "Restrictions") are entered into by and between , a limited partnership comprised of organization, and ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. Owner is purchasing that certain real property (the "Property") located at in the City of Santa Ana more particularly described in Exhibit "A" which is attached hereto and incorporated herein by this reference. B. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110-289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified municipalities for certain qualified grant funds termed Neighborhood Stabilization Program ("NSP Funds") under a program termed the Neighborhood Stabilization Program (the "NSP"). C. The City was notified that its application under the NSP for NSP Funds was approved by the U.S. Department of Housing and Urban Development ("HUD") with funding allocated for acquisition and rehabilitation of the multi-family rental component of the NSP. The parties hereto have executed the Neighborhood Stabilization Program Rental Housing Development Agreement ("Agreement") concurrently with these Restrictions. Owner must comply with all of the NSP Program requirements as set forth in the Agreement. NSP Funds were used for the acquisition of the Property. D. Owner and the City have entered into that certain Neighborhood Stabilization Program Rental Housing Agreement (the "Agreement"), Deed of Trust and Promissory Note, dated concurrently herewith (collectively the "Agreements") for the purpose of providing for affordable low income residential rental units in the City of Santa Ana pursuant to the NSP Program and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Very Low Income households, as promulgated by the California Department of Housing and Community Development. "City Manager" means the City Manager of the City of Santa Ana, or her/his designee. "Property" shall mean the Property located at ,Santa Ana, CA. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the Orange County, California PMSA, adjusted for household size, as published by HUD, pursuant to Health and Safety Code section 50079.5, as such qualifying limit is amended from time to time. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Agreement and these Restrictions. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. A. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner will make all rental units on the Property available to very low households at rents affordable to such households for fifty- five (55) years from the effective date of this Agreement. B. The Project shall consist of ~) affordable units with (__) studios and (~ one-bedroom units. C. All of the units will be restricted to occupancy fifty (50%) of the AMI. Current residents whose incomes exceed fifty percent (50%) of the AMI will be allowed to remain. 2 Rents for these households will be increased to either thirty (30%) percent of their monthly household income or market rent for the neighborhood, whichever is lower. D. Affordable rents shall be governed as provided in the NSP Regulations. Rental increases shall be in conformance with federal and state law. E. Initial rents may be recalculated to allowable rental amounts at the time of initial lease-up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD and the State of California. 3.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents maybe recalculated to allowable rental amounts at the time of initial lease-up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD and the State of California. ADDRESS Income Rest. Bedrooms No. HOME Units NSP Rent (Gross) Very low 50 % Studio One Bedroom Total Units Affordable rents will be imposed the first day of the first month following close of escrow. 3.3 Rent Increases: On an annual basis, the City shall provide the Owner with the maximum allowable schedule of rents for the Property. In no event can Owner charge any tenant more than such amount. 4. Owner, its successors and assigns shall not charge rents for the Units in excess of the amounts set forth herein, as adjusted on the basis of the revised schedules of area median incomes issued from time-to-time by HUD. The City Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 5. Owner shall adopt and include as part of its Management Plan (described in Section 11 below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; 3 (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re-renting of any Restricted Units (_24 CFR 92.351). 6. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant-based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant-based assistance document. Total rents charged to such tenants, including the tenant contribution and rental assistance, shall not exceed the allowable rents as described above. 7. Any lease of any of the units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in 4 accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 8. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 9. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements (California Health and Safety Code section 33418), and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. 10. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations . 11. Not later than five (5) business days prior to the execution of the documents, Owner shall submit to the City Manager a Management Plan in a form that is acceptable to the, including, but not limited to, the components listed below. Approval of 5 the Management Plan must be obtained from the City Manager not later than the time for the Closing. Owner shall manage the Assisted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the Closing, and annually thereafter not later than ninety (90) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the Executive Director. The budget and cash flow shall be in a form that is acceptable to the Executive Director. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. 12. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. 13. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Assisted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. 6 14. Owner shall not request disbursement of NSP funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreement and these Restrictions [24 CFR 92.504 (c)(10)]. 15. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within ninety (90) days following the end of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the Real Estate Closing occurs. The Annual Report shall contain a certification by Owner as to such information as the City Executive Director may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 10 (c) of the Affordable Housing Restrictions which shall include a financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and financial statement shall be prepared in accordance with generally accepted accounting practices. The City Executive Director may require that the financial statement be audited at Owner's expense by an independent certified public accountant acceptable to the City Manager. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of the NSP Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, 50052.5 and 50053(b)(1) of the California Health and Safety Code, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance 7 with the requirements of Section 6 of the City Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Owner or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreement. (8) Termite reports pertaining to the Property every fifth (5th) year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each Assisted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women-owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative 8 marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the Real Estate Closing (i.e., the date on which Owner obtained site control); (7) records concerning lead-based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. c. All records pertaining to each calendar year of NSP funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City, the State or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City, the State or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, the State or HUD, on reasonable prior notice, for the purpose of examination or audit. f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall 9 reasonably cooperate with City in performing such audit. 16. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. 17. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. 18. The Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof. Each of the Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 10 IN WITNESS WHEREOF, the parties hereto have executed these Affordability Covenants and Restrictions as of the date and year first stated above. CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: LISA E. STORCK Assistant City Attorney DEVELOPER: a California limited partnership MANAGING GENERAL PARTNER By: a By: Eunice Bobert, its Chief Executive Officer DEVELOPER GENERAL PARTNER a California limited liability company By: Todd R. Cottle, its member By: Cottle Family Trust Dated 3/8/87, By: Barry A. Cottle, its Trustee 11 EXHIBIT C 9/25/09 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-37) Santa Ana, California 92702 Attn: Housing Manager CITY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS CITY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "City Deed of Trust") made this day of , 2010, by between California comprised of , a ,a and , a (together the "Trustor"), AmeriNational Community Services, a California corporation (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as ,Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this City Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Neighborhood Stabilization Program Rental Housing Development Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith (the "Agreement"), which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this City 9/25/09 Deed of Trust or in the performance of any agreement under this City Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures 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, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one 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 said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of ($ ) (the "City Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this City Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This City Deed of Trust is executed and delivered, along with the City Note and the Agreement, to benefit the Property. A copy of said Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this City Deed of Trust, the Beneficiary would not enter into the Agreement or City Note secured by this City Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this City Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Re~avment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this City Deed of Trust. 2 9/25/09 4. Subordination. This obligation secured by this City Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Covenants and Restrictions shall remain in first place. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this City Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this City Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. 3 9/25/09 If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this City Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this City Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the City Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this City Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the City Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this City Deed of Trust. 11. Remedies Cumulative. All remedies provided in this City Deed of Trust are distinct and cumulative to any other right or remedy under this City Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 4 9/25/09 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this City Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at ,with copies to at (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This City Deed of Trust shall be governed by the laws of the State of California. 16. Severability. In the event that any provision or clause of this City Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this City Deed of Trust or the City Note which can be given effect without the conflicting provision, and to this end the provisions of the City Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this City Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this City Deed of Trust or the City Note secured by this City Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this City Deed of Trust, the Beneficiary may declare all sums secured by this City Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1} The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this City Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection 9125/09 with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated Limited Partnership Agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, provided that after any such sale, transfer or other disposition an affiliate of the Trustor's limited partner is the managing member or general partner of such transferee limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the City Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this City Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et sec ., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. 6 9/25/09 The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this City Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this City Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this City Deed of Trust or at any time prior to entry of a judgment enforcing this City Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this City Deed of Trust and no acceleration under the City Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this City Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this City Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this City Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this City Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this City Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this City Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this City Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this City Deed of Trust and the City Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, City Note, and this City Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the 7 9/25/09 obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. IN WITNESS WHEREOF, Trustor has executed this City Deed of Trust as of the date first written above_ a California limited partnership a California limited partnership MANAGING GENERAL PARTNER By: By: its DEVELOPER GENERAL PARTNER a California limited liability company By: its By: By: its EXHIBIT D RESIDENTIAL REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the ualit of workmanship and materials expected, and to achieve consistency throughout the federally funded residential rehabilitation activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP • All work shall be performed in a professional and workmanlike manner. • The quality and durability of the work shall meet or exceed the standards established by the construction industry and various trades. MATERIALS 8~ EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable. • All materials and equipment shall be new, in excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY 8~ WATER CONSERVATION /RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. LEAD-BASED PAINT All housing built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead-based paint hazards. HUD's guidelines are available at http://www. hud.gov/offices/lead/Ibp/hudguidelines/index. cfm. The following notification requirements apply to all homes receiving Federal assistance for rehabilitation: • Lead Hazard Information Pamphlet & Disclosure (EPA - "Protect Your Family From Lead In Your Home"). • Notices of Hazard Evaluation & Reduction. Rehabilitation Projects Receiving < $5,000 (Rehabilitation Hard Cost) • Paint testing of surfaces or presume the presence of lead-based paint. • Must control lead hazards. Some hazards may be abated. • Must use certified or trained workers • Must follow HUD's safe work practices • Must obtain clearance of the project. Rehabilitation Projects Receiving $5,000 to $25,000 (Rehabilitation Hard Cost) • Must have a risk assessment or presume the presence of lead-based paint. • Must control all lead hazards. Some hazards may be abated. • Must use certified or trained workers • Must follow HUD's safe work practices • Must obtain clearance of the project. Page 1 of 8 Rehabilitation Projects Receiving > $25,000 (Rehabilitation Hard Cost) • Must have a risk assessment or presume the presence of lead-based paint. • Must abate all lead hazards. • Must use certified workers • Must follow HUD's safe work practices • Must obtain clearance PAINT New Paint • Reputable manufacturer • Latex (exterior & interior) • Highest quality Preparation • All surfaces to be painted shall be properly shall be properly prepared. • Wood surfaces shall be clean and all loose and peeling paint shall be removed. Remaining paint edges shall be feather sanded. • All loose and scaling stucco shall be removed. • Holes and cracks shall be filled with an appropriate material and finished so that they blend into the surrounding area. • Damaged and deteriorated window glazing putty shall be replaced with new putty. • All joints shall be caulked. • Raw (exposed) wood and metal shall be properly primed Painting • All exterior wood surfaces shall receive a complete and even coverage of high-quality exterior- grade latex paint. • All exterior stucco surfaces shall receive a complete and even coverage ofhigh-quality exterior- grade stucco paint. • All interior walls shall receive a complete and even coverage of interior-grade latex paint. Use satin or semi-gloss on doors, trim and in kitchens and bathrooms. • Shoddy workmanship will not be accepted. FLOOR COVERING Carpet 8~ Pad Carpet that is damaged or deteriorated beyond feasible repair shall be replaced. Carpet that is unsanitary and cannot be satisfactorily cleaned shall be replaced. Replace aged carpet that has five or less years of practical utility. New Carpet & Pad • Reputable manufacturer Density of 2000 • 1/2 "thick, 6.5 re-bond pad • Twist rating of 5 • Nylon, olefin, polyester, recycled materials or blend • All surfaces shall be clean, smooth and structurally sound. • Carpeting shall be installed using a minimal number of pieces. • All transition areas shall be properly secured and edges tacked. • All seams shall be hot taped and virtually invisible. Page 2 of 8 Resilient Flooring Resilient flooring that is damaged or deteriorated beyond feasible repair shall be replaced. Resilient flooring that is unsanitary and cannot be satisfactorily cleaned shall be replaced. Replace aged resilient flooring that has five or less years of practical utility. New Resilient Flooring • Reputable manufacturer .080" gauge (minimum) • Medium or better quality • All surfaces shall be clean, smooth and structurally sound. • Flooring shall be .080" gauge (minimum). Cost allowance is $18 per SY. • Flooring shall be installed using a minimal number of pieces. • All seams shall be properly sealed and virtually invisible. • Patterns in the flooring at seams shall match. KITCHEN FIXTURES 8~ APPLIANCES Sinks Sinks that are deteriorated beyond feasible repair shall be replaced. Sinks that are worn and cannot be maintained in a sanitary condition shall be replaced. Economy grade sinks shall be replaced. New Sinks • Reputable manufacturer Double compartment • Stainless steel • Eight inch deep basin • 18 au e Faucets Faucets that are inoperative, leaking or deteriorated beyond feasible repair shall be replaced. Economy grade faucets shall be replaced. New Faucets • Reputable manufacturer IAPMO certified • Solid brass construction CSA 8125 certified • Sin le control valve EPA Water-Sense certified Food Waste Disposers Disposers that are inoperative shall be replaced. Replace aged disposers that have three or less years of practical utility. New !-ood Waste Disposers • Reputable manufacturer Galvanized steel grinding elements • % HP motor Stainless steel swivel !u s Gas Ranges Ranges that are inoperative or deteriorated beyond feasible repair shall be replaced. Replace aged ranges that have five or less years of practical utility. New Gas Ran es • Reputable manufacturer Four sealed burners (one 16, 000 BTU • Electronic ignition burner, two 9, 000 BTU burners and • Self-cleanin oven one 5, 000 BTU burner) Page 3 of 8 Range Hoods Range hoods that are inoperative or deteriorated beyond feasible repair shall be replaced.. Replace aged range hoods that have three or less years of practical utility. New Ran e Hoods • Reputable manufacturer Two speed fan operation • 200 + CFM Cook-top lighting (energy efficient) • Washable grease filter Dishwashers Dishwashers that are inoperative or deteriorated beyond feasible repair shall be replaced. Dishwashers that are worn and cannot be maintained in a sanitary condition shall be replaced. Replace aged dishwashers that have five or less years of practical utility. New Dishwashers • Reputable manufacturer 2 to 3 wash arms • Energy Star certified Adjustable racks • Six wash c cles Air natural or heat d CABINETS Cabinets that are deteriorated or damaged beyond feasible repair shall be replaced. Replace aged cabinets that have five or less years of practical utility. New Cabinets • Reputable manufacturer Nylon and metals guides • Solid hardwood face frames Vinyl laminated backs, cabinet interiors and • Hardwood door frames and drawer fronts drawer bodies • Hardwood veneer on raised door panels Drawer box shall be constructed with wood • Glued mortise, dowel and dado joint (no particle board) construction Drawer bottom shall be/<" thick • Concealed face frame hinges, metal door and drawer ells COUNTERTQPS Countertops that deteriorated or damaged beyond feasible repair shall be replaced. Replace aged countertops that have five or less years of practical utility. New Counterto s • Ceramic the (4" X 4" white) • Bull nose the drip edge • 6"backs lash Neutral rout sealed LIGHTING FIXTURES Lighting fixtures that are inoperative or unsafe shall be replaced. Lighting fixtures that are deteriorated beyond feasible repair shall be replaced. Lighting fixtures that were installed without a permit shall be replaced if they are required by code. If they are not required by code they shall be removed. Page 4 of 8 New Lightin Fixtures • Reputable manufacturer Energy Star certified • U.L. approved BATHROOM FIXTURES Toilets Toilets that are inoperative or deteriorated +~eyond feasible repair shall be replaced. Toilets are worn and cannot be maintained in a sanitary condition shall be replaced. Replace aged toilets that have five or less years of practical utility. Replace older toilets that require more than 1.6 GPF. New Toitets • Reputable manufacturer Vitreous china bowl and tank • EPA Water-Sense certified (1.28 GPF) Faucets /Valves Faucets /valves that are inoperative or deteriorated beyond feasible repair shall be replaced. Replace aged faucets /valves that have five or less years of practical utility. Economy grade faucets /valves shall be replaced. New Faucets /Valves • Reputable manufacturer . Solid brass construction • EPA Water-Sense certified • Metal housing (no plastic) Showerheads Showerheads that are inoperative or deteriorated beyond feasible repair shall be replaced. Economy grade Showerheads shall be replaced. New Showerheads • Reputable manufacturer Metal housing (no plastic) • EPA Water-Sense certified Bathtubs Bathtubs that are deteriorated beyond feasible repair shall be replaced. Bathtubs that are worn and cannot be maintained in a sanitary condition shall be replaced. Replace aged bathtubs that have five or less years of practical utility. New Bathtubs • Reputable manufacturer Slip resistant enamel finish • Cast iron construction Frameless bi-pass doors (medium rade) Combination Tub 8~ Showers Combination tub & showers that are deteriorated beyond feasible repair shall be replaced. Combination tub & showers that are worn and cannot be maintained in a sanitary condition shall be replaced. Replace aged combination tub and showers that have five or less years of practical utility. New Combination Tub & Showers • Cast iron tub Frameless bi-pass doors (medium grade) • Ceramic the walls • Sli resistant enamel finish Page 5 of 8 Showers Showers that are deteriorated beyond feasible repair shall be replaced. Showers that are worn and cannot be maintained in a sanitary condition shall be replaced. Replace aged showers that have five or less years of practical utility. New Showers • Ceramic the floor and walls Integral soap dishes • Hot mopped shower pan Anodized aluminum shower door (medium grade) Medicine Cabinets Medicine cabinets that are deteriorated shall be replaced. Medicine cabinets that are worn and cannot be maintained in a sanitary condition shall be replaced. New Medicine Cabinets • Reputable manufacturer Metal body • Beveled mirror door WATER HEATERS Water heaters that are inoperative or deteriorated beyond feasible repair shall be replaced. Water heaters that are unsafe or installed illegally shall be replaced. Replace aged water heaters that have five or less years of practical utility. New Water Heaters • Reputable manufacturer Pressure and relief valve • 6-year minimum warranty Earthquake straps (top & bottom) • 40-gallon tank Insulation blanket • 40, 000 BTU low NOx radiant burner FURNACES (GAS) Furnaces that are inoperative of deteriorated beyond feasible repair shall be replaced. Replace furnaces that are unsafe or installed illegally. Replace furnaces that have five or less years of practical utility. New Furnaces • Reputable manufacturer Energy Star certified for superior energy • Pilot-free ignition efficiency • Filter cabinet Sealed combustion system All heaters shall be properly sized and installed in accordance with the manufacturer's recommendations and all applicable codes, standards and regulations. WINDOWS Windows that are inoperative or deteriorated beyond feasible repair shall be replaced. Replace windows that are unsafe or installed without a permit. Replace windows that have five or less years of practical utility. Page 6 of 8 New Windows • Reputable manufacturer with lifetime Dual glazed warranty Low-E Glass • Vinyl frame ROOFING Roofs that are leaking or deteriorated beyond feasible repair shall be replaced. Replace roofs that are unsafe or installed without a permit. Replace roofs that have five or less years of practical utility. New Roofin • Reputable manufacturer • 25-year warranty • Com osition shin le LANDSCAPING Trees and shrubs that are damaging or could potentially damage the foundation of a dwelling shall be removed. Trees and shrubs that are damaging or could potentially damage the main water and sewer lines shall be removed. Trees, shrubs and vines that are damaging or could potentially damage the exterior walls of a dwelling shall be removed. Trees that are dropping leaves on the roof of a dwelling shall be trimmed or removed. Trees that are unsafe or located near power lines shall be trimmed or removed. Dead or diseased vegetation shall be removed. Lawns shall be reduced as much as is feasible creating more planting areas for drought resistant plants. Sprinkler systems that are inoperative or inefficient shall be replaced. Drip irrigation systems shall be installed when practical. All new vegetation shall be drought resistant. Contractor is responsible for the care of the new vegetation during the rehabilitation project. FENCING./ BLOGK WALLS Fencing /block walls that are hazardous, deteriorated or damaged beyond feasible repair shall be replaced. Fencing /block walls that were installed illegally shall be replaced or removed if they are not necessary. New Fencing New Block Walls • 4 X 4 pressure treated posts 6 X 8 X 16 concrete • 2 X 4 rough sawn rails Concrete footing and steel bar reinforcing • 1 X 6 cedar fencing boards (per code) • Concrete cap PAVING / QRIYEWAYS /WALKWAYS Paving /driveways /walkways that are hazardous, deteriorated or damaged beyond feasible repair shall be replaced. Asphalt driveways shall be replaced with concrete driveways. Paving /driveways / walkways that are not graded properly and are damaging or could potentially damage the dwelling shall be replaced or removed if they are not necessary. Page 7 of 8 ~vew • Concrete - 2, 000 PSI (minimum) Sawn expansion and contraction joints • 4 inches thick (minimum), 6 inches thick every 10 feet (both directions) on (minimum) at edges of driveways driveways and patio slabs • Sawn expansion and contraction joints every 4 linear feet on walkways • Li ht broom finish Page 8 of 8 EXHIBIT E CITY PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA ( Address) $ , 2010 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, , LP, a limited partnership comprised of (« ») a ~ and , a ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed ($ ) or so much thereof as may be advanced by the City to the Borrower, due and payable at % interest upon completion of rehabilitation, pursuant to the Neighborhood Stabilization Program Rental Housing Development Agreement dated concurrently herewith, between Borrower and the City (the "Agreement"), which is incorporated herein by this reference. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110-289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified municipalities for certain qualified grant funds termed Neighborhood Stabilization Program ("NSP Funds") under a program termed the Neighborhood Stabilization Program (the "NSP"). Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of the Agreement, the Affordability Covenants and Restrictions, Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. City and Borrower have heretofore entered into the Agreement dated concurrently herewith pertaining to the acquisition of certain real property described in the Agreement as the "Property," commonly known as Street, and the operation of the Property as affordable rental housing for Income households. This Note, the Loan Agreement, the Affordability Restrictions on Transfer of Title, and the Deed(s) of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Acquisition Costs" shall mean the costs and expenses of Borrower to acquire the Property, as set forth in the Project Budget attached to the Loan Agreement. "Agreement" means the Neighborhood Stabilization Program Rental Housing Development Agreement between the City and the Developer, and any attachments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP, and the NSP Funds. "Area Median Income" means the median income figures for Orange County adopted by the State of California pursuant to Health and Safety Code Section 50093, as amended from time to time. Also may be referred to as "AMI" herein. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "City Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing_Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged-for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the 2 extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Ex ep rases" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee equal to % of gross rents; (iii) Owner Administration Fee of % of gross rents; (iv) Deposits into required reserves; (v) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) All furniture, fixtures, machinery and equipment expenditures with an individual cost of $1,000 or more and a useful life of more than one year, shall be amortized over a period determined in accordance with generally accepted accounting principles (except to the extent purchased with reserve funds which have otherwise been included as an Operating Expense). Such amortization shall assume equal annual installments of principal and interest with an interest factor at the actual rate not to exceed the reference rate of the plus two percent (2%) if such furniture, fixtures, machinery and equipment are financed, or said reference rate plus two percent (2%) if paid for in cash by Borrower. All furniture, fixtures, machinery and equipment with an individual cost of less than $200 or a useful life of less than one year shall be treated as expense items. (c) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the 3 reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms-length transactions for similar services in the Santa Ana, California area. (vi) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Deed of Trust" shall mean the Deed of Trust in favor of the City, securing the City Loan, substantially in the form attached to the Agreement as Exhibit B, which is incorporated herein by this reference. "Neighborhood Stabilization Pro ram" (NSP) has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "NSP Funds" shall mean the money provided under the NSP Program for the acquisition and rehabilitation of the homes hereunder. "Property" shall mean that property located at Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year less the items listed in Article 5 of the Partnership Agreement, to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of 4 easements to public and private utility companies of the kind customary in real estate development. "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. This Note evidences the obligation of Borrower to the City for the repayment of the City Loan of NSP Funds attributable to the acquisition, operation and maintenance of the Property. 4. This Note is payable at the principal office of City of Santa Ana - Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment). 4. Operating Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. Such loan shall be repaid with the Partnership share of the Residual Receipts. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. The Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Real Estate Closing and on or before the 150th day of each Calendar Year 5 thereafter, the Borrower shall submit to the City an reviewed financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. Fifty percent (50%) of the Residual Receipts shall remain with the Borrower. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. Fifty percent (50%) of the Refinancing proceeds shall remain with Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 7. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. Fifty percent (50%) of the Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; 6 unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Loan Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charles. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or 7 loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded City Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i} a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and 8 substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv} any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within five (5) days of the due date; (b} failure by Borrower to perform any covenant or agreement in the City Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c} a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the City Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorneys' Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 9 17. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non-recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the City Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. c. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). 10 d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the City Deed of Trust. £ If anon-monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) 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 exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock-outs; 11 riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 This City Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" a California limited partnership MANAGING GENERAL PARTNER By: a California nonprofit public benefit corporation, its sole member By: its DEVELOPER GENERAL PARTNER a California limited liability company By: its By: By: its 13 EXHIBIT F 4pucauon ~,i CITY OF SANTA ANA Housing & Neighborhood Development 20 Civic Center Plaza / 3rd Floor / P.O. Box 1988 / M-26 /Santa Ana, CA 92702 (714)667-2250 REQUEST FOR FINAL PAYMENT Date: NSP Grant Services Agreement ANR Homes, Inc. (Developer) Property Address: AMOUNT REQUESTED: AMOUNT RETAINED: AMOUNT DISBURSED: PAYABLE TO: O OFFICE USE ONLY O SOURCE OF FUNDS ^ HOME CJ CALHOME Q 7AX INCREMENT ^ CDBG TOTAL. DISBURSEMENT IDS NUMBER: ESCROW NUMBER: ACCOUNT NUMBER / W.O.#: DEVELOPER The undersigned CONTRACTOR: (1) Certifies that to the best of their knowledge, information and belief, the work summarized on the attached invoice and covered by this Final Payment Request has been completed in accordance with all of the terms and conditions of the NSP Grant Services Agreement; (2) Certifies that they have obtained all required building permits, inspections and approvals for the work covered by this Final Payment Request. Date Pnnt Name /Title Signature CITY OF SANTA ANA Based on site observations, the undersigned Senior Residential Construction Specialist (BRCS) certifies that to the best of their knowledge, information and belief, the work summarized above and covered by this Final Payment Request has been completed in accordance with the terms and conditions of the NSP Grant Services Agreement.. Date Senior Residential Construction Specialist (Signature) The undersigned certifies that to the best of their knowledge, information and belief, this Final Payment Request has been properly prepared and documented and authorizes the disbursement of funds to cover the amount requested. Date Housing Programs Coordinator (Signature) Required Attachments: Project Continuation Sheet, Lien Release, Certificate of Final Inspection, Notice of Completion May 2009 ~ucatton 2si REQUEST FOR RETENTION FUNDS Date NSP Grant Services Agreement ANR Homes, Inc. (Developer) Project Address: AMOUNT: PAYABLE TO: O OFFICE USE ONLY D SOURCE OF FUNDS AMOUNT G HOME _~~__~__..,. CALHQME TAX INCREMENT CDBG TpTAt DISBURSEMENT IDS NUMBER: ESCROW NUMBER: ACCOUNT NUMBER / W.O.# DEVELOPER The undersigned DEVELOPER certifies that to the best of their knowledge, information and belief, all charges for labor and material incurred and used in construction pursuant to the NSP Grant Services Agreement have been paid in full, and that no liens and/or legitimate claims have been reported. Date Date Print Name !Title Signature Homeowner (Signature) CITY OF SANTA ANA The undersigned Senior Residential Construction Specialist (BRCS) certifies that to the best of their knowledge, information and belief, the DEVELOPER has complied with the NSP Grant Service Agreement and is entitled to receive the retention funds withheld during construction. Date Senior Residential Construction Specialist (Signature) The undersigned certifies that to the best of their knowledge, information and belief, this Request for Retention Funds has been properly prepared and documented and authorizes the disbursement of funds in the amount requested. Date Housing Programs Coordinator (Signature) rcegwrea Httacnments: unconditional Lien Release May Order No. Escrow No. Project No. RECORDING REQUESTED BY CITY OF SANTA ANA GOVT. CODE § 6103 WHEN RECORDED MAIL TO: City of Santa Ana /Housing 20 Civic Center Plaza !Third Floor J M-26 Santa Ana, CA 92701 NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is OWNER or agent of the OWNER of the interest or estate stated below in the property hereinafter described. 2. FULL NAME of the OWNER is: 3. The FULL ADDRESS of the OWNER is: 4. The NATURE OF THE INTEREST or ESTATE of the undersigned is: In Fee (If other than fee, strike "in fee" and insert, for example, "purchaser under contract of purchase", or "lessee" ) 5. The FULL NAMES and FULL ADDRESSES of ALL PERSONS, if any, WHO HOLD SUCH INTEREST or ESTATE with the undersigned as JOINT TENANTS or as TENANTS IN COMMON are: NAMES ADDRESSES 6. The FULL NAMES and FULL ADDRESSES of the predecessors in interest of the undersigned if the property was transferred subsequent to the commencement of the work of improvement herein referred to: NAMES ADDRESSES 7. A work of improvement on the property hereinafter described was COMPLETED: 8. The work of improvement completed is described as follows: 9. The NAME OF THE ORIGINAL CONTRACTOR, if any, for such work of improvement is• 10. The street address of said property is: 11. The property on which said work of improvement was completed is in the CITY OF SANTA ANA, County of Orange, State of California, and is described as follows: Printed name of OWNER or AGENT of OWNER Date Signature of OWNER or AGENT of OWNER Verification for INDIVIDUAL owner: I the undersigned declare under penalty of perjury under the laws of the State of California that I am the owner of the aforesaid interest or estate in the property described in the above notice. I have read said notice and I know and understand the contents thereof, and that the facts stated therein are true and correct. Printed name of OWNER named in paragraph 2 EXHIBIT G ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana located 20 Civic Center Plaza M-26, Santa Ana, California 92701; and their respective officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza (M-26), Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to Named Insured this endorsement form as a part of Countersigned by Authorized Representative