HomeMy WebLinkAboutGUEST HOUSE LPbee
A-2016-369
FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 6103 & 27383
Recorded in Official Records, Orange County
When Recorded Mail to: Hugh Nguyen, Clerk -Recorder
jjl 'lllllllllll1l jjl]Jl lj1I IIIII1fII 1I1I1I1I1fjII1I 111l NO FEE
City of Santa Ana *$ x 0 0 0 9 1 9 4 2 9 1$*
201700014775711:19 am 04112117
20 Civic Center Plaza (l -2M 'M "3® 62 0 0. 0 0 102
0.00 0.00 0.00 0.00 303.00 0.00 0.00 0.00
P.O. Box 1988
Santa Ana, California 92702
Attention: 1letrsin�a�er CSP rl���aG�C C�nnin
SPACE ABOVE THIS L!77ORREC0RDIN USE
FREE RECORDING REQUESTED
[Govenunent Code Section 6103]
And
GUEST HOUSE LP
FIRST AMENDED AND RESTATED
ACalifornia Limited Partnership
U
LOAN AGREEMENT
by and between the
(2151 E. First Street, Santa Ana, California)
CITY OF SANTA ANA
01
And
GUEST HOUSE LP
ACalifornia Limited Partnership
(2151 E. First Street, Santa Ana, California)
r
Dated: J* December 21, 2016
FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 6103 & 27383
When Recorded Mail to:
City of Santa Ana
20 Civic Center Plaza (M -M 1'� -3 0
P.O. Box 1998
Santa Ana, California 92702
Attention: Rouging-lbager C �r k- �` f�� ► p
SPACE ABOVE TRIS ONE FOR Rh,CORD G USE
FREE RECORDING REQUESTED
[Government Code Section 6103]
FIRST AMENDED AND RESTATED
LOAN AGREEMENT
by and between the
CITY OF SANTA ANA
And
GUEST HOUSE LP
A California Limited Partnership
(2151 E. First Street, Santa Ana, California)
Dated: 14y December 21, 2016
FIRST AMENDED AND RESTATED
LOAN AGREEMENT
HOME PROGRAM
THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT (the
"Agreement") dated, for identification purposes only, as of Agy December 21, 2016, is
made and entered into by and between the City of Santa Ana, a charter city and municipal
corporation (referred to herein as "City") and Guest House LP, a California limited
partnership with reference to the following:
RECITALS:
A. City has received an allocation of funds from the United States
Department of Housing and Urban Development ("HUD") under the HOME Investment
Partnership Program (the "HOME Program") (42 U.S.C, §12701, et sect.,) to be used in
accordance with applicable statutory requirements and regulations (the "HOME
Regulations") (24 CFR Part 92);
B. Among the purposes of the HOME Program are (1) to expand the supply
of decent, safe, sanitary, and affordable housing, with primary attention to rental housing,
for very low-income and low-income Americans; and (2) to provide participating
jurisdictions, on a coordinated basis, with the various forms of federal housing assistance,
including capital investment, mortgage insurance, rental assistance, and other federal
assistance, needed (a) to promote the development of partnerships among the federal
government, states and units of general local government, private industry, and nonprofit
organizations able to utilize all available resources to provide more of such housing, and
(b) to expand the capacity of nonprofit community housing development organizations to
develop and manage decent, safe, sanitary and affordable housing;
C. Developer is the owner of that certain property conunon.ly Lmown 2151 E,
First Street, within the City of Santa Ana, California, and legally described in Exhibit A
attached hereto (the "Property"). The loans referenced herein shall assist in the
acquisition and rehabilitation of said Property that is improved with a multifamily
residential housing development.
D. In furtherance of the HOME Program, Developer .has applied to City for a
loan with which to:
1. provide deeper affordability for a longer term, as well as acquire and
rehabilitate the Property, and
2. thereafter to maintain, operate and professionally manage the Property
as decent, safe, sanitary and affordable rental housing.
E. City, on certain terms and conditions, desire to make such loan
to Developer in order to make possible the acquisition and rehabilitation of the Property,
thereby eliminating blight while expanding the supply of decent, safe, sanitary and
affordable housing,
2
F. If there is any discrepancy between Federal and State guidelines with regard
to any of the terms and conditions contained herein, the more stringent shall apply.
G. The Loan Agreement and all of its attachments shall be enforceable by
City in accordance with the terms thereof. Each of the Loan Agreement, the
Affordability Restrictions on Transfer of Property, the City/HOME Loan Note and the
City/HOME Deed of Trust provide a means of enforcement by the City if Developer is in
breach of its obligations hereunder and thereunder, including liens on the Property, use
and deed restrictions and covenants running with the land [24 CFR 92.544 (c) (1.3)].
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, City and Developer agree as follows:
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. All capitalized terms used herein, including, without
limitation, in the Recitals above and in all other Project Documents, unless otherwise
expressly defined, are defined where first used in this Agreement and/or as set forth in
this Article 1.
"Affordable Housing" means housing operated in accordance with the
requirements of 24 CFR 92.252 and the rents governed by HUD,
"Affordability Restrictions on Transfer of Property" means that
certain document affecting real property benefiting the City, attached hereto as Exhibit G.
"Affordable Rent" means the monthly rents that are set forth in more
detail in Section 7 of this Agreement.
"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 Halt is open to the public for the conduct of City affairs.
"Calendar Year" means each consecutive twelve (12) month period from
January .t to December 31.
"Certificate of Completion" has the meaning set forth in Article 17.
"City" means the City of Santa Ana, California, a charter city and
municipal corporation.
"City/HOME Loan„ means the loan to be made to Developer by City
from HOME funds pursuant to Article 5 of this Agreement.
"City/HOME Loan Deed of Trust" means the deed of trust encumbering
the Property, in the form attached hereto as Exhibit E, to be executed by Developer
pursuant to Section 53.2 in order to secure the Loan Note.
"City/HOME Loan Dote" means that certain promissory note in the
original principal amount of $1,199,869,00, in the form attached hereto as Exhibit F, and
to be executed by Developer in favor of City to evidence the obligation of Developer to
repay the City/HOME Loan.
"Close of Escrow" shall mean the date upon which the City/HOME Loan
Deed of Trust is recorded in the Official Records of the County.
"Closing Statement" means the final statement of Developer's
Escrow account for the purchase and sale of the Property pursuant to the Purchase
Contract.
"County" means the County of Orange, California.
"Developer" means Guest House .LP, a California limited
partnership, its successors and assigns.
"Developer's Representative" shall mean the Chief Executive Officer of
the Administrative General Partner of Developer or his/her designee,
"Event of Default" has the meaning set forth in Section 20.1.
"Executive Director" means both the Executive Director of the
Community Development Agency, or his/her designee.
"Extremely Low Income" an adjusted income which does not exceed
thirty percent (30%) of the area median income for the Orange County, California
PMSA, adjusted for household size, as published by HUD.
"General Partner(s)" means the General Partners of Developer,
consisting of CDP Guest House LLC (Administrative General Partner) and Affordable
Housing Alliance IT, Inc. Dba Integrity Housing (Managing General Partner) and their
respective successors and assigns.
"Governmental Authority" means any governmental or quasi
governmental agency, board, bureau, commission, department, court, administrative
tribunal or other instrumentality or authority, and any public utility.
"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 kinder any applicable law, including without limitation the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the
4
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. §§ 9601, et seq., as amended.
"HOME Compliance Period" is for a period of fifteen ('15) years.
"HOME Program" has the meaning set forth in Recital "A" above
"HOME Regulations" has the meaning set forth in Recital "A" above.
"HUD" means the United States Department of Housing and Urban
Development and any successors or assigns thereof.
"Improvements" means all improvements and fixtures now and hereafter
comprising any portion of the Property, including, without limitation, landscaping, trees
and plant materials, and offsite improvements (including, without limitation, streets,
curbs, storm drains, and adjacent street lighting).
"Indebtedness" of a person means (a) all indebtedness for borrowed
money, (b) notes payable and drafts accepted representing extensions of credit, whether
or not representing obligations for borrowed money, (c) any obligation for the purchase
of property or services in excess of $10,000 in the aggregate that is (i) deferred for more
than six (6) months, or (ii) evidenced by a note or similar instrument, and ( d) all recourse
and all non-recourse indebtedness secured by any Lien on any property or asset of such
person (whether or not assumed by such person).
"Indemnitees" has the .meaning set forth in Section 14.5.
"Laws" means all statutes, laws, ordinances, regulations, orders, writs,
J udgments, injunctions, decrees or awards of the United States or any state, county,
municipality or other Governmental Authority,
"Lien" means acay 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).
"Limited Partner" means the Limited Partners of Developer, NEF
Assignment Corporation, an Illinois not-for-profit corporation, and their successors and
assigns.
64Loan Documents" means, collectively, this Agreement, the City1HOME
Loan Note, the City/HOME Deed of Trust, the Affordability Restrictions on Transfer of
Property, and any other agreement, document, or instrument that the City requires in
connection with the execution of this Agreement or from time to time to effectuate the
purposes of this Agreement.
"Low Income" means an adjusted income which does not exceed eighty
percent (80%) of the area median income for the Orange County, California DMSA,
adjusted for household size, as published by HUD,
"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 the Loan Documents as "Area Median Income" or "ANII".
"Partnership Agreement" means the Amended and Restated Agfeament
of Limited Partnership Agreement of Guest House LP dated Mafeh 1 November, 2016, as
said Partnership Agreement may be amended from time to tune..
"Permitted Encumbrances for the Affordable Housing Restrictions"
means, collectively, the Senior Loan Deed of Trust and all other title exceptions and
limitations with respect to the Property hereafter approved by the Executive Director in
writing.
"Permitted Encumbrances for the City Loan Deed of Trust"
means, collectively, the Senior Loan Deed of Trust and all other title exceptions and
limitations with respect to the Property hereafter approved by the Executive Director in
writing.
"Project" means the acquisition and rehabilitation of the Property by
Developer pursuant to this Agreement.
"Project Budget" means the line -iter budget for the Project
attached hereto as Exhibit C, as modified from time to time in accordance with this
Agreement.
"Project Costs" means all costs of any nature incurred in connection with
the Project in accordance with generally accepted accounting principles.
"Property" means the Property that is located at 2151 E, First Street,
within the City of Santa Ana, and is more fully described in the "Legal Description" of the
Property attached hereto as Exhibit A and incorporated herein by reference,
"Senior Lender" means Citibank, N.A.or any other holder of the Senior
Loan Note(s).
"Senior Loan" shall mean the senior loan being made by Senior Lender
concurrent to the City Loan for payment of a portion oFthe acquisition and rehabilitation
costs, and shall include any subsequent loan that refinances the initial Senior Loan.
"Senior Loan Deed of Trust" means the deed of tnist securing the
Senior Loan by encumbering the Property.
6
"Senior Loan Documents" means, collectively, the loan agreement
governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and
any other agreement, document or instrument that the Senior Lender requires in
connection with the Senior Loan.
"Senior Loan Note" means the promissory note evidencing the
Senior Loan from Senior Lender.
"Term" the terms and conditions contained herein shall remain in effect
for 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.
1.2 Sinl;ular and Plural Terms. Any defined term used in the plural in this
Agreement or any other City Loan Document shall refer to all members of the relevant
class and any defined term used in the singular shall refer to any number of the members
of the relevant class.
1.3 References and Other Terms. Any reference to this Agreement or any
Loan Document shall include such document both as originally executed and as it may
from time to time be modified. References herein to Articles, Sections and Exhibits shall
be construed as references to this Agreement i-mless a different document is named.
References to subparagraphs shall be constnled as references to the same Section in
which the reference appears, The term "document" is used in its broadest sense and
encompasses agreements, certificates, opinions, consents, instruments and other written
material of every kind. The terms "including" and "include" mean "including (include)
without 1.imitation, "
1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement,
as now existing and as the same may from time to time be modified, are incorporated
herein by this reference.
2. [RESERVED]
3. SCOPE OF WORK/ PROJECT BUDGET
A "Scope of Wort" for the Property is attached hereto as Exhibit B, Any material
change to the Scope of Work requested by the Developer shall be subject to the prior
written approval of the Executive Director.
A line -iter budget for the Project, including a summary statement of sources and
uses of funds, is incorporated into Exhibit C (the "Project Budget"). Any material change
to the Project Budget requested by Developer shall be subject to the prior written
approval of the Executive Director.
4. [RESERVED]
11
5. LOANS
A. CITY LOAN:
1. _Amount and Purpose. Subject to the terms and conditions of this Agreement,
City agrees to make a loan of HOME funds to Developer in the principal amount of up to
$1,199,869 (the "City Loan") for the acquisition and rehabilitation of the Property,
2. City/HOME Note and Deed of Trust. The City/HOME Loan shall be
evidenced by the City/HOME Loan Note in the form attached hereto as Exhibit F. The
City Loan shall be secured by the City/HONM Loan Deed of Trust in the form attached
hereto as Exhibit E. The City/HO.ME Deed of Trust shall be a deed of trust encumbering
the Property, subordinate to the Senior Loan(s) made to Developer.
3. Ci /HOME Loan Terms. The terms and conditions of the City/HON E
Loan are as set forth in the City/HOME Loan Note which is a residual receipts note. The
HOME compliance period is fifteen (15) years, commencing on the date that all work is
complete and the Property is fully occupied.
6. CONDITIONS TO (DISBURSEMENT OF LOAN PROCEEDS
6.1 Conditions Precedent. City's obligation to disburse the Loan Amount is subject
to the satisfaction, or waiver by the Executive Director, of the following conditions
precedent:
( a) Loan Documents. Developer shall have delivered to the
Escrow Holder, signed by the authorized officer or officers of Developer, with such
signature(s) acknowledged where necessary, each of the following documents:
(i) the Loan Agreement;
(ii) The City/R01V1E Loan Note;
(iii) The City/HOW Deed of Trust,
(iv) The Affordability Restrictions on Transfer of Property; and
(b) Title Insurance. City shall have received an LP -10 ALTA Lender's
loan policy of title insurance (2006 edition), or evidence of a commitment therefore
satisfactory to City, issued by .First American Title Insurance Company and in form and
substance satisfactory to City, together with all endorsements and binders required,
naming City as the insured, in a policy amount of not less than the CityIHONIE Loan
Amount, showing Developer as the fee owner of the Property and insuring the
City/E10ME Deed of Trust to be valid priority Bens on the Property. The City/HOME
Loan Note and .Deed of Trust shall be subordinate to the Senior Loan Note and First
Deed.
(c) Affordability Restrictions on Transfer of Property. Developer
shall have delivered to the Escrow Holder, in the forin attached hereto as Exhibit G, the
Affordability Restrictions on Transfer of Title pursuant to which, among other things,
Developer agrees that the Property shall be used only for decent, safe, sanitary and
affordable rental housing purse int to the affordability requirements of Code of Federal
Regulations ("CFR") section 92.252 or 92.254 and California Health and Safety Code
("H&S") sections 50052.5, as applicable.
(d) Documents Recorded. This Loan Agreement, the City/HOME Loan
Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been
recorded in the Official Records of the County.
(e) Request for Notice, For the benefit of City, Escrow .Holder shall
have recorded a request for notice of default of the Senior Loan (the "Request for .Notice
of Default").
(f) Insurance. City shall have received evidence satisfactory to the City
Attorney that all of the policies of insurance required by Section 19 of this Agreement are
in full force and effect.
(g) Representations and Warranties, The representations and
warranties of Developer contained in this Agreement and the other Loan Documents shall
be correct as of the Close of Escrow as though made on and as of that date, and if
requested by the Executive Director, City shall have received a certificate to that effect
signed by Developer's Representative.
(h) No Default. No Event of Default by Developer shall have occurred,
and no event shall have occurred which, with the giving of notice or the passage of time
or both, would constitute an Event of Default by Developer under this Agreement, and if
requested by the Executive Director, City shall have received a certificate to that effect
signed by Developer's Representative,
6.2 Disbursement Procedures for Loan(s).
A portion of the Loan proceeds shall be disbursed through Escrow to finance the
acquisition of the Property, with other proceeds being used for the rehabilitation (as
evidenced in Exhibit C), The Loan proceeds shall not be used for any purpose other than for
acquisition costs of the Property and/or rehabilitation/construction costs, including a
Developer fee and soft costs related to development of the Project (costs all subject to City's
prior review). The City allows for eligible costs to be paid by HOME loan funds that were
incurred not more than 24 rnorltlis prior to the HOME funds coinmitinent date of this loan
agreement in accordance with HOME regulations.
6.3 [Intentionally Omitted]
6,4 [Intentionally Omitted]
6.5 Any Disbursement. City's obligation to make any disbursement of the
Rehabilitation Portion (including the first and final disbursements) is subject to the
satisfaction of the following conditions precedent:
(a) Satisfactory Progress, The Executive Director shall be satisfied,
based on his/her own inspections or other reliable information, that the rehabilitation is
progressing satisfactorily in conformance with all applicable laws and other requirements
(including HOME regulations),
(b) Condition of Title, Either (i) the Executive Director reasonably
believes that no event has occurred since the Close of Escrow that would give rise to a
colorable claim against the Property ( a mechanic's lien) superior to the claim of City
against the Property with respect to the subject disbursement, or (ii) City must have
received, at Developer's expense but payable out of the Rehabilitation Proceeds, from the
title insurer who issued City's LP -10 Title Policy, all endorsements thereto then
reasonably required by City.
(c) Representations and Warranties. The representations and
warranties of Developer contained in this Agreement and the other City Loan Documents
shall. be correct as of the date of the disbursement as though made on and as of that date.
(d) No Default. No Event of Default by Developer shall remain
uncured and no event shall have occurred which, with the giving of notice or the passage
of time or both, would constitute an Event of Default by Developer.
6.6 Final Disbursement. City's obligation to disburse that portion of the
rehabilitation portion retained pursuant to Section 6,12 is subj ect to the satisfaction of the
following additional conditions precedent:
(a) Rehabilitation Complete. The rehabilitation shall be complete.
(b) Certificate of OccupancyIssued. Any portion of the rehabilitation
requiring inspection or certification by any Governmental Authority shall have been
inspected and certified as complete. Developer shall request that the Building Department
issue a Certificate of Occupancy, a copy of which shall be delivered to the Executive
Director, in order for final disbursement to occur.
(c) Lien Free. At least one of the following shall have occurred:
(i) Thirty -rive (35) days shall have passed since the
recording of a valid notice of completion for the rehabilitation, and no mechanic's
or material man's lien shall be outstanding; or
(ii) Ninety-five (95) days shall have passed since actual
completion of the rehabilitation, and no mechanic's or materialman's lien shall be
outstanding, or Developer shall have bonded over any such lien to City's reasonable
satisfaction.
10
6.7 Waiver of Conditions. The conditions set forth pertaining to City's
obligation to make disbursements of the rehabilitation portion are for City's benefit only
and the Executive Director may waive all or any part of such rights by written notice to
Developer,
6.8 Disbursement Requests. The rehabilitation proceeds shall be
disbursed on a Iine-item by lino -item basis in accordance with the Project 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
Project 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 find
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 City Loan, Borrower shall deliver
to City and to Senior Lender a draw request ("Draw Request"), and all required
supporting information as set forth in the Loan Documents or as otherwise reasonably
required by City or Senior Lender in order to provide information for evaluating the
requested disbursement pursuant to customary construction lending practices of
institutional lenders in Southern California,
City and Senior Lender shall notify the other and Borrower of approval or disapproval of
each Draw Request within five (5) business days after receipt of the Draw Request, using
the Senior Lender's "Disbursement/Change Order Approval Notice". City and. Senior
Leander 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.
6.9 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. Disbursement will be made fifteen (15) days
from approval.
6.10 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 Project Budget exceeds the amount allocated to
that line item in the Project 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 the City Loan Documents 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:
11
(a) provide satisfactory evidence to City that Developer has
previously paid such excess or otherwise provided for such insufficiency (collectively,
the "Excess Cost") with fiends from a source other than the City Loan;
(b) reallocate sufficient funds to pay the Excess Cost from funds
allocated to "Contingency" in the Project Budget; provided, however, that the
Executive Director's consent to any such reallocation shall be requured; or
(c) deposit an amount equal to the Excess Cost in a non-interest
bearing account (the "Overrun Account") with City from which withdrawals may be
made only with the consent of the Executive Director 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 Project 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 in the manner described in
subsection 9.3(c).
6.11 Cost Savings. Upon completion of and disbursement for all matters covered by
any line items in the Project Budget, any remaining undisbursed amounts allocated to that
line item shalt be reallocated to "Contingency" and thereafter be available for
disbursement in accordance with the terms of this Agreement.
6.12 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.
6,12.1 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 Executive Director) for "punch -list" items. Such
holdback will be released when all punch -list items have been completed to the
satisfaction of City.
6.13 Waiver of Disbursement Conditions. Unless City otherwiseagrees in
writing, the malting 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
12
6.14 Modification of Disbursement Conditions and Procedures, The
Executive Director 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,
6.15 Other Terms and Conditions of Loan.
A. The Note shall become immediately due and payable, in the event of any
of the following:
(1) failure to complete the Project within four (4) years'ofthe
recording date;
(2) HOME rental units must achieve initial occupancy within 18
months of project completion.
(3) violation of any of the use covenants and restrictions contained in
this Agreement after the expiration of any applicable notice and cure
periods;
(4) 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.
6.16 Closine 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.
7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE
PROPERTY
7.1 Use Covenants and Restrictions.
A. Developer agrees and covenants, which covenants shall run with the land and bind
Developer, its successors, its assigns and every successor in interest to the Property that
Developer 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 t1-iis
Agreement. The H0ME restrictions for the rune (9) HOME assisted units shall be enforced
until the date that is fifteen (15) years after the date on which the City reports the Project as
complete to the Department of Housing and Urban Development. The City permits the
Developer to limit the eligibility and/or give preference to horucless households (a particular
segment of the population) in accordance with 24 CFR 92, 253 (d),
B, The Project shall consist of seventy-two (72) units, including one on-site
manager's unit, of which there will be fifty-eight (5S) studio units and fourteen (1.4) one -
bedroom units. There shall be nine (9) HOME assisted units, The HOME' assisted units
shall be floating units and shall be distributed throughout the complex with comparable
amenities to the other units. The affordability mix for the Project is as follows:
13
Unit Type
AMI Level
9 of Units
Studio
30% AMI
35
Studio
50% AMT
22
One -Bedroom
30% AMI
5
One -Bedroom
60% AMI:
9
Studio
Manager Unit
1
C. At initial lease up, households in the HOME assisted units cannot earn more than
50% of AMT, however existing tenants at the Property who are otherwise eligible under
the HOME Program may continue their tenancy at the Property. Rental increases shall be
in conformance with federal and state law. After the fifteen (15) year HOME compliance
period, the City shall require that the units remain affordable, with rents calculated based
on assumed household size at the same income levels
D. All of the HOME twits will be restricted to occupancy by fifty percent (50%) of the
Area Meehan Income (AMT). Current residents whose incomes exceed eighty percent (80%)
of the AMI will be increased to either thirty (30%) percent of their monthly household
income or market rent for the neighborhood, whichever is lower.
E. Maaximunl Occupancy will be two (2) people per room plus one (1), Example for a two-
bedroom unit, five (5) people would be maximum occupancy.
F. Affordable rents shall be governed by California Health and Safety Code Sections
50052,5 and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2.
G. Developer must have a written lease between tenant and owner for a period of at least
one year, unless a shorter period is mutually agrees! upon. Leases must be consistent with
HOME Regulations 24 CER. section 92.209(8).
H, Rents During Construction/Rehabilitation:
(a) All HOME units shall be charged not more than the Low HOME rent, as
amended from time to time (currently $914.00 for a one -bedroom twit and $853 for a studio
unit).
1. In the event of a foreclosure by Senior Loan the maximum ANI Level for any units
other than HOME assisted units restricted as to both income and rent levels at 30% of
AMI would thereafter continue to be restricted as to both income and rent levels at 60% of
AM1
7.2 Affordable Cross Staflrting Rents (Less Reasonable Utifty Allowance): Initial
rents may 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. Affordable rents for non-HOW
assisted units will be based on the rents published annually by California Tax Credit
Allocation Committee (TCAC).
1.4
A. HOME Assisted Units
# of Units Max Gross Monthly Rent
Very Low Studio 4 $ 853
1 Bedroom 5 $ 9I4
(1) In no event shall the rent charged to the HOME assisted tenants be more
than that amount of the low rent as published by HUD, as amended from
time to time.
(2) Utility allowances must be deducted from the Maximurn Gross Monthly
Rent. The Housing Authority of the City of Santa Ana publishes the
Utility Allowance Schedule.
(3) At the time of project completion, the Developer shall provide to the
City the address and/or unit number of each of the HOME floating units.
(4) Annually with the financial statements, the Developer shall provide an
annual report of rents and occupancy of assisted units, including HOME -
assisted units, to verify compliance with affordability requirements. For
the HOME units, information on unit substitution and filling vacancies
shall be, provided to ensure that the prof ect maintains the required unit
mix.
7.3 ]gent 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.
7.4 Prohibited Fees. The Developer and subsequent owner is prohibited from charging
fees that are not customary, consistent with HOME Regulations 24 CFR section
92.504(c)(3)(xi). The Developer and subsequent owner can charge reasonable application
fees to prospective tenants; other fees only to the extent that they are reasonable and
customary for the project area; and fees for services provided to tenants, provided that these
services are not mandatory.
7,5 Maintenance of the Proper . Solely at Developer's expense, Developer agrees to
maintain the Property in a clean and orderly condition and in good condition and repair and
keep the Property free from any accumulation of debris and waste materials. If at any time
Developer fails to maintain, or cause to be maintained, the Property as required by this
section, and said condition is not corrected after the expiration of a reasonable period of time
not to exceed thirty (30) days from the date of written notice from the City, unless such
condition cannot reasonably be cured within thirty (30) days, in which case Developer shall
have such additional time as reasonably necessary to complete such cure, the City may
perform the necessary maintenance and Developer shall pay all reasonable costs incurred for
such maintenance. The City shall inspect the Property annually after the date of issuance of
the Certificate of Completion as described in Article 17 of this Agreement. During the
affordability period, the Property must meet all applicable State and local codes. The
Property must be free of all health acrd safety defects during the affordability period.
15
7.6 Discrimination. Developer covenants and agrees for
rgatran to Refrain from
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, mental or physical disability, 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 Linder or
through him establish or permit any such practice or practices of discrimination of-
segregation
rsegregation 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 terns of the Agreement.
S. DEFAULTS AND REMEDIES
8.1 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 parry 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 inj Lire 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)
clays, the City shall have the right to terminate this Agreement by delivery of written notice
of termination to Developer.
8,2 Institution of Ceras Actions. In addition to any other rights or remedies, either party
may institute legal action 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.
8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the right and remedies of the parties
are cumulative and the exercise by either party of one or more of such rights 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.
8.4 Drama es. In the event that the City is I [able for damages to Developer, such liability
shall not exceed costs incurred by the Developer in the performance of this Agreement amid
shall not extend to compensation for loss of future income, profits or assets; provided,
however, Developer's only remedy for any breach of this Agreement by the City shall be an
action for specific performance of such parry's obligations.
8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have
any personal liability under this Agreement, or the attached Note and Deed of Trust, and any
j.udgriient, decree or order for the payment of money obtained in any action to enforce tl-le
16
obligation of Developer to repay the loam evidenced by such documents shall be enforceable
against Developer only to die extent of Developer's interest in the Property.
9. GENERAL PROVISIONS AND WARRAN'T'IES
As a material inducement to City to enter into this Agreement, Developer
represents and warrants as follows:
9.1 Formation,_ Qualification and Compliance. 1H Guest House Santa Ana, LLC,
the managing general partner of Developer (a) is a California limited liability company,
validly existing and in good standing under the laws of the State of Cal ifoznia, (b) has all
requisite authority to conduct its business and own and lease its properties, and (c) is
qualified and in good standing in every jurisdiction in which the nature of its business
makes qualification necessary or where failure to qualify could have a material adverse
effect on its financial condition or the performance of its obligations under the Loan
Documents. Developer is in compliance with all laws applicable to its business and has
obtained all approvals, licenses, exemptions and other authorizations from, and has
accomplished all filings, registrations and qualifications with, any Governmental
Authority that are necessary for the transaction of its business.
9.2 Execution and Perf'ox-mance of Loan Documents.
9.2.1 Developer has all requisite authority to execute and
perform its obligations Linder the Loan Documents.
9.2.2 The execution and delivery of Developer of, and the
performance by Developer of its obligations under, each Loan Document has been
authorized by all necessary action and does not and will not:
(a) require any consent or approval not heretofore
obtained of any person having any interest in Developer;
(b) violate any provision of, or require any consent or
approval not heretofore obtained tinder, any articles of incorporation, by-laws or other
governing document applicable to Developer;
(c) result in or require the creation of any lien, claim,
charge or other right of others of any kind (other than under the City Loan Documents)
on or with respect to any property now or hereafter owned or leased by Developer;
(d) violate any provision of any law presently in effect;
Or
(e) constitute a breach or default under, or permit the
acceleration of obligations owed under, any contract, loan agreement, lease or other
agreement or document to which Developer is a party or by which Developer or any of its
property is bound.
17
9.2.3 Developer is not in default, in any respect that is materially adverse
to the interests of City under the Loan Documents or that would have any material
adverse effect on the financial condition of Developer or the conduct of its business,
under any law, contract, lease or other agreement or document described in sub-
paragraph (d) or (e) of the previous subsection.
9.2.4 No approval, license, exemption or other authorization from, or
filing, registration or qualification with, any Governmental Authority is required which
has not been previously obtained in connection with:
(a) the execution of Developer of, and the
performance by Developer of its obligations under, the Loan Documents; and
(b) the creation of the liens described in the Loan
Documents.
9.3 Financial and Other Information. To the best of Developer's knowledge,
all financial information furnished to City with respect to Developer in connection with
the Loan (a) is complete and correct in all material. respects as of the date of preparation
thereof, (b) accurately presents the financial condition of Developer, and (c) has been
prepared in accordance with generally accepted accounting principles consistently
applied or in accordance with such other principles or methods as are reasonably
acceptable to City, To the best of Developer's knowledge, all other documents and
information furnished to City with respect to Developer, in connection with the Loans,
are correct and complete insofar as completeness is necessary to give the City accurate
knowledge of the subject matter. To the best of Developer's knowledge Developer has
no material liability or contingent liability not disclosed to City in writing and there is no
material lien, claire, charge or other right of others of any kinds (including liens or
retained security titles of conditional vendors) on any property of Developer not disclosed
in such financial statements or otherwise disclosed to City in writing.
9A No Material Adverse Chan,2e. There has been no material adverse
change in the condition, financial or otherwise, of Developer since the dates of the latest
financial statements furnished to City. Since those dates, Developer has not entered into
any material transaction not disclosed in such financial statements or otherwise disclosed
to City in writing.
9.5 Tax Liability. Developer has filed all required federal, state and local tax returns
and has paid all taxes (including interest and penalties, but subject to lawful extensions
disclosed to City in writing) other than taxes being promptly and actively contested in
good faith and by appropriate proceedings. Developer is maintaining adequate reserves
for tax liabilities (including contested liabilities) in accordance with generally accepted
accounting principles or in accordance with such other principles or methods as are
reasonably acceptable to City.
9.6 Ooveimmentral Reguirements. Developer is in compliance with all laws
relating to the Property and all Governmental Authority approvals, including zoning, land
use, planning requirements, and requirements arising from or relating to the adoption or
19
amendment of, any applicable general plan, subdivision and parcel map requirement;
environmental requirements, including the requirements of the California Environmental
Quality Act and the National Environmental Policy Act and the preparation and approval
of all required environmental impact statements and reports; use, occupancy and building
permit requirements; and public utilities requirements.
9.7 Rights of Others. Developer is in compliance with all covenants, conditions,
restrictions, easements, rights of way and other rights of third parties relating to the
Property.
9.8 Litivation. There are no material actions or proceedings pending or, to the best of
the Developer's knowledge, threatened against or affecting Developer or any property of
Developer before any Governmental Authority, except as disclosed to City in writing
prior to the execution of this Agreement.
9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or threatened against Developer, nor are
any of such proceedings contemplated by Developer.
9,10 Information Accurate. To the best of Developer's knowledge, all information,
regardless of its form, conveyed by Developer to City, by whatever means, is accurate,
correct and sufficiently complete to give City true and accurate knowledge of its subject
matter, and does not contain any misrepresentation or omission.
9.11 Conflicts of interest. No membcr, official or employee of the City shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to this Agreement which affects his/her
personal interests or the interests of any corporation, partnership or association in which
he/she has a direct or indirect financial interest. The Developer warrants that it neither has
paid nor given, nor will pay or give, any third party any money or other consideration. for
obtaining this Agreement.
9.12 Nonliability of City Officials and Employees. No member, official or employee of
the City shall be personally liable to the Developer in the event of any default or breach by
the City or for any amount which may become due to Developer or on any obligations under
the terms of this Agreement.
9..3 No
.ssl,grient. Developer expressly acknowledges and agrees that the City has
„. m_„�
only agreed to assist the Developer as a means by which to induce the
rehabilitation/development of the Property. Accordingly, Developer further expressly
acknowledges and agrees that this Agreement is a personal right of Developer that is neither
negotiable, transferable, nor assignable except as set forth herein, Developer may assign
some or all of its rights under the Agreement only with the prior written consent of the
Executive Director (such consent not to be unreasonably withheld), except that no prior
consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as
otherwise provided in the Deed of Trust.
19
9.14 Amlicable Lam. This Agreement shall be interpreted, governed and enforced under
federal and state laws.
9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the
City and their successors and assigns, and no other person or persons shall have any rights
or remedies Linder or by reason of this Agreement or any right to the exercise of any right or
power of the City hereunder or arising from any default by Developer, nor shall the City
owe any duty whatsoever to any claimant for labor performed or materials furnished in
connection with the rehabilitation of the Property.
9,16 Control of Property. The parties acknowledge that neither the City has at anytime
participated in any manner in the management or operation of the Property, and will not so
participate at any time hereafter.
10. CONDITIONS FOR REHABILITATION
10.1 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
and conversion of the Property.
10,2 Commencement and Completion of Rehabilitation.
The rehabilitation shall be considered cornplete 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 Governmental Authority has been completed and
all requisite certificates, approvals and other necessary authorizations (including required
final certificates of occupancy) have been obtained.
10.3 Chance Orders. The Rehabilitation Contract shall not be modified
except Pursuant to change orders. All change orders:
(a) shall be in writing, numbered in sequence, signed
by Developer and submitted to City prior to the proposed effectiveness thereof and
accompanied by any working drawings and a written narrative of the proposed change,
(b) Shall be subject to the Executive Director's and Banl<'s
prior written approval of the Executive Director and Bank.
10.4 Entry and Ins ection. At all times prior to con-pletion of the
rehabilitation, upon reasonable notice, City and their agents shall have (a) the right of free
access to the Property and all sites away from the Property where materials for the
rehabilitation are stored, (b) the right to inspect all labor performed and materials
furnished for the rehabilitation, and (c) the right to inspect and copy all documents
pertaining to the rehabilitation.
10.5 COUI lialice with Section 3 Clause_ Section 3 of the Housing and
Urban Development act of 1968, '12 U.S.C. 1701u, as amended by Section 915 of tine
20
Housing and Community Development Act of 1992 requires that economic opportunities
generated by HUD financial assistance for housing and community development
programs be targeted toward low- and very low- income persons, Whenever HUD
assistance generates opportunities for employment or contracting, state and local
grantees, as well as other recipients of HUD housing assistance funds must, to the
greatest extent feasible, provide these opportunities to low- and very low- income persons
and to businesses owned by or employing low- and very low- income persons, Section 3
applies to projects for which HUD's share of project costs exceeds $200,000 and
contracts and subcontracts awarded on projects for which HUD's share or project costs
exceeds $200,000 and the contract or subcontract exceeds $100,000.
For purposes of this Section 3 Clause and compliance thereto, whenever
the word "contractor" is used it shall mean and include, as applicable, the Developer, and
its contractor and subcontractor(s), if any. The particular text to be utilized in any and all
contracts of any contractor doing work covered by Section 3 shall be in substantially the
form of the following, as reasonably determined by the City, or as directed by HUD or its
representative, and shall be executed by the applicable contractor under penalty of
perjury:
"(a) The work to be performed under this contract is subject to the
requirements of Section 3 of the Housing and Urban Development Act of 1968, as
amended, 12 U.S,C.:170lu ("Section 3"). The purpose of Section 3 is to ensure
that employment and other economic opportunities generated by HUD assistance
or HUD -assisted projects covered by Section 3, shall, to the greatest extent
feasible, be directed to low -and very low-income persons [inclusive of Very Low
Income Persons, Very Low Income Households, and Very Low Income Tenants
served by the Project], particularly persons who are recipients ofHUD assistance
for housing.
(b) The parties to this contract agree to comply with HUD's
regulations in 24 CFR part 135, which implement Section 3. As evidenced by
their execution of this contract, the parties to this contract certify that they are
under no contractual or other impediment that would prevent them from
complying with the part 135 regulations.
(c) The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective bargaining
agreement or other understanding, if any, a notice advising the labor organization
or workers' representative of the contractor's commitments under this Section 3
clause, and will post copies of notices in conspicuous places at the work site
where both employees and applicants for training and employment positions can
see the notice. The notice shall describe the Section 3 preference, shall. set forth
minimum number of job titles subject to hire, availability of apprenticeship and
training positions, the qualifications for each; and the name and location of
person(s) taking applications for each of the position; and the anticipated date the
work shall begin.
21
(d) The contractor agrees to include this Section 3 clause in every
subcontract subject to compliance with regulations in 24 CFR part 135, and
agrees to take appropriate action, as provided in an applicable provision of the
subcontract or in this Section 3 clause, upon a finding that the subcontractor is in
violation of the regulations 24 CFR part 135. The contractor will not subcontract
with any subcontractor where the contractor has notice or knowledge that the
subcontractor has been found in violation of the regulations in 24 CFR part 135,
(e) The contractor will certify that any vacant employment positions,
including training positions, that are filled (a) after the contractor is selected but
before the contract is executed, and (b) with persons other than those to whom the
regulations of 24 CFR part 135 require employment opportunities to be directed,
were not filled to circumvent the contractor's obligations under 24 CFR part 135.
(f) Noncompliance with IUD'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."
After the foregoing Section 3 Clause, there shall be a signature block for
the contractor, as applicable, the following text shall be included immediately above the
signature block: "The contractor/provider by his/her signature affixed hereto declares
under penalty of perjury that contractor has read the requirements of the Section 3 Clause
and accepts all its requirements contained therein for all of his/her operations related to
this contract."
To the extent applicable, the Developer shall comply and/or cause
compliance with Section 3 Clause requirements for the Project. For example, when and
if Developer or its contractor(s)/subcontractor(s) hires) full time employees, rather than
volunteer labor or materials, Section 3 is applicable and all disclosure and reporting
requirements apply.
10.6 Rehabilitation Information. From tirrie to time during the course of the
rehabilitation, within ten (10) Business Days following City's written demand therefore,
Developer shall furnish requested reports of project costs, progress schedules and
contractors' costs breakdowns for the rehabilitation, itemized as to trade description and
item, showing the name of the contractor(s) and/or subcontractor(s), and including such
indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and
engineers' fees, Ioan fees, interest during construction and contractors' overhead.
10.7 Protection Against Liens: Developer shall diligently Erle a valid
Notice of Completion upon completion of the rehabilitation, diligently file a notice of
cessation in the event of a cessation of labor on the rehabilitation for a period of thirty
(30) clays or more, and take all actions reasonably required to prevent the assertion of
claims of lien against the Property. In the event that any claire of lien is asserted against
the property or any stop notice or claim is asserted against the City by any person
furnishing labor or materials to the Property, Developer shall immediately give written
notice of the same to City and shall, promptly and in any event within ten (10) Business
Days after written demand therefor, (a) pay and discharge the same, (b) effect the release
22
thereof by delivering to City a surety bond complying with the requirement of applicable
laws for such release, or (c) take such other action as City may require to release City
from any obligation or liability with respect to such stop notice or claim.
10.8 General Contractors who are Related Parties to the Develo en If the
Project is developed with general contractors who are Related Parties to the Developer,
the Developer must be audited to the subcontractor level by an outside auditing firm
approved by the City. The Developer shall pay for the audit to the subcontractor level by
an outside auditing firm..
11. FEDERAL (HOME PROGRAM) COVENANTS
11.1 Qualification as Affordable Housing. As more particularly provided in
the Affordability Restrictions on Transfer of Property, Developer shall use, manage and
operate the Property in accordance with the requirements of 24 CFR 92.252 so as to
qualify the housing on the Property as Affordable Housing with affordable rents.
11.2 Tenant rand Participant „Protection. Developer shall comply with the
requirements of 24 CFR 92.253.
11.3 [Intentionally Omitted]
11,4 Handicapl2ed Accessibility. Developer shall comply with (a) Section
504 of the Rehabilitation Act of 1.973, and implementing regulations at 24 CFR 8C
governing accessibility of projects assisted under the HOME Program; and (b) the
Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 3 5-3 6
in order to provide handicapped accessibility to the extent readily achievable.
11..6 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.
11,7 Maintenance of Drn+a-Free Workplace. Developer shall certify that
Developer will provide a drug-free workplace in accordance with 24 CFR 84.13,
11.8 Lend -Based Paint. Developer shall comply with the requirenrents of the
Lead -Based Paint Poisoning Prevention Act (42 U,S.C. 4821-4846) and implementing
regulations at 24 CFR 35, as applicable.
11.9 Affirmative Mnrketiaaa. Developer shall implement and perform such
affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in
compliance with the City's adopted Program (a copy of which is attached hereto and
incorporated herein as Exhibit H).
`_g -_-- _-- r air Housing. Developer shall carry out the
F
tial ortaanity tracl.�,,,,
rehabilitation and perform its obligations Lander this Agreement in compliance with all of
23
the state and federal laws and regulations regarding equal opportunity and fair housing
described in 24 CFR 92.350.
11.11 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,
11.12 Displacement and „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 Proj ect. 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 Executive Director in connection therewith. All applicable state
guidelines must also be followed.
(a) Developer acknowledges and agrees to hire a Relocation
Consultant to provide relocation services, pursuant to the Uniform
Relocation Act and Real Property Acquisition Policies Act of 1970
("URA") and 24 CFR 92.253.
(b) The City, Developer, and Relocation Consultant will meet
periodically during the relocation to provide updates and review
tenant files, including at Project approval and prior to final benefit
calculations. The Developer and Relocation Consultant shall carry
out activity .in compliance with URA and the City's Acquisition
and Relocation Policy and Procedures Manual ("Manual").
(c) The Developer and Relocation Consultant shall maintain accurate
records and files pertaining to the temporary and permanent
relocation of tenants, in accordance with URA and the City's
Manual,
(d) The Developer and Relocation Consultant shall provide all
relocation and tenant files to the City once relocation is complete
at the Proj ect.
11.13 Other Program Requirements. Developer shall carry out each activity
in compliance with all federal laws and regulations described in subpart I1 of 24 CFR 92,
except that Developer does not assume City's responsibilities for environmental review in
24 CFR 92.352 or the intergovernmental review process in 24 CFR. 92.3 59.
11.14 Ike nest for Disbursements of Funds. Notwithstanding anything
contained in this Agreement to the contrary, Developer may not request disbursements of
24
funds under this Agreement until the funds are needed for payment of eligible costs (such
funds shall be used solely towards the acquisition and rehabilitation of the Property). The
amount of each request shall be limited to the amount needed.
11.15 Eligible Costs, Developer shall use HOME Funds to pay costs defined as
"eligible costs" pursuant to 24 CFR 92,206,
11.16 Records and Reports. Developer shall maintain and from. time to time
submit to City such records, reports and information as the Executive Director may
reasonably require in order to permit City to meet the record keeping and reporting
requirements required of it pursuant to 24 CFR 92.508.
11.17 Uniform Administrative Rg uirements Cost Principles, and Audit
Requirements for Federal Awards. Developer shall comply with the requirements and
standards of 2 CFR 200.
11,18 Conflict of Interest. 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,
11.19 Monitoring Developer shall allow the City to conduct periodic
inspections of the HOME assisted units on the Property as required by the Program after
the date of rehabilitation completion, with reasonable notice. Developer shall cure any
defects or deficiencies found by the City while conducting such inspections within two
weeks of written notice thereof, or such longer period as is reasonable within the sole
discretion of the City.
L L.20 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 HOME regulations and guidelines. Every fifth (5tt') year,
Developer shall require new original income documents to be submitted by
tenants. Tenants in HOME assisted units whose incomes no longer comply with
federal income guidelines shall have their rents adjusted in accordance with
Federal HO VIE guidelines (24 CFR 92.252-92.253).
(B) HOME 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 Nvith this section until the non-compliance is corrected.
11.21 Other ROME Program Rectuiireernents. Developer shall comply with all
other applicable requirements of the HOME Program.
11,22 Controlling _Covenants. 1f there is a discrepancy between State and
Federal law with regard to any of the aforementioned covenants, the more stringent shall
apply.
25
12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION
AND REPAIR OF PROPERTY
12.1 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 unreasonably increase the risk of any
damage to the Property or of any other impairment of City's interests under the Loan
Documents. 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:
12.1.1 Alterations and Re air. Developer shall not remove, demolish or
materially alter any Improvement 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.
12.2 Compl4wee. 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 DeveIoper's business
thereon.
12,3 Tuxes and Impositions. Developer shall pay, prior to delinquency,
all of the following (collectively, the "hnpositions"): (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 linutation, 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).
12.1.3.1 RiLxt fn 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's interests ender the Loan Documents, and (c) Developer has furnished City
26
with a bond or other security satisfactory in an amount not less than 100% of the
applicable claim (including interest and penalties).
12.1.3.2 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.
12,1.3.3 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, in accordance with 24 CFR
92.508.
12.4 Pr:oiect Operating Account. Subject to the requirements of the Senior
Lender, 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 Project 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 (including, without limitation, funding reserves and the
making of debt service payments), project fees and permitted distributions to the partners
of the Developer. Withdrawals from this account for other purposes may be made only
with the prior written approval of the City.
12.5 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 Certificate 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 tinge. Developer may withdraw funds from the Replacement Reserve Account solely
to fund capital improvements for the Project, such as replacing or repairing structural
elenients, 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.
U. NONDISCRIMINATION COVENANTS
13.1 Oblization to Refrain from Discrimination. Developer covenants and
agrees that:
A. In Use of Property. There shall be no discrimination
against or segregation of any person, or ,group of persons, on account of .race, color,
creed, religion, sex, mental or physical disability, marital status, national origin, or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall Developer or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to
27
the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees, or vendors of the Property.
B, In Affordable Housing Restrictions. The
foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of
Property, (b) run with the land, and (c) remain effective for the term of the contract (for
55 years).
C. In Employment. In rehabilitation of the Property,
Developer shall not discriminate against any employee or applicant because of race,
color, creed, religion, sex, marital status, mental or physical disability, national origin, or
ancestry. Developer shall tape affirmative action to ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color,
creed, religion, sex, marital status, national origin, or ancestry,
D, In all Contracts. Developer shall cause the foregoing
covenants to be inserted in all contracts for any work covered by this Agreement so that
such provisions will be binding upon each contractor and subcontractor for the benefit of
City, provided that the foregoing covenant shall not apply to contracts or subcontracts for
standard commercial supplies or raw materials.
14. ENVIRONMENTAL MATTERS
14.1 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,
14.2 Com liarrce 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 hens imposed pursuant to any environmental law, and (d) obtain and renew all
environmental permits required for ownership or use of the Property,
14.3 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 minirrzis 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.
14.4 Notice of Environmental Matters. Developer shall immediately advise
City in writing oP 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
28
anticipated to cause the Property to 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.
14.5 Environmental Indemnification by the Developer. Developer agrees to
defend, indemnify and hold harmless the City and their respective 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 Indemnitees directly or indirectly based on, or arising or resulting
from the actual or alleged presence of Hazardous Materials on the Property other than
arising from the gross negligence, willful misconduct and/or illegal actions of any
Indemnitee.
15, OTHER AFFIRMATIVE COVENANTS
While any obligation of Developer under the City Loan Note or Deed of Trust
remain outstanding, the following provisions shall apply, except to the extent that
Executive Director otherwise consents in writing:
15.1 Existence, Developer's Managing General Partner shall maintain its
existence in good standing under the laws of the State of California, and
Developer shall provide documentation of such status annually to the City.
15.2 Protection of Lien. Developer shall maintain the lien of the City
Deed of Trust as a valid second priority deed of trust on the Property and take all
actions, and execute and deliver to City all documents, reasonably required by
City from time to time in connection therewith.
15.3 Notice of Certain Matters. Developer shall give notice to City, within ten
(10) days of Developer's teaming thereof, of each of the following;
(a) any filed litigation or claim affecting or relating to the
Property and involving an amount in. excess of $5,000; and any litigation or claim that
might subject Developer or any general partner to liability in excess of $5,000, whether
covered by insurance or not,
(b) any dispute between Developer and a Governmental
Authority relating to the Property, the adverse determination of which aright materially
affect the Property;
(c) any change in Developer's principal place of business,
(d) any aspect of the Improvements that is not in
substantial conformity with the plans or code;
29
M any Event of Default or event which, with the giving of
notice or the passage of time or both, would constitute an Event of Default;
(f) any material default by Developer or any other party under
any Senior Loan document, or the receipt by Developer of any notice of default under
any Senior Loan document;
(g) the creation or imposition of any mechanics' or
materialmans' lien or other lien against the Property which might materially affect the
Property; and/or
(h) any material adverse change in the financial condition of
Developer.
15A Further Assurances. Developer shall execute and acknowledge (or cause
to be executed and acknowledged) and deliver to City all documents, and take all actions,
reasonably required by City from time to time to confirm the rights created or now or
hereafter intended to be created under the .Loan Documents; to protect and further the
validity, priority and enforceability of the City Deed of Trust; to subject to the Deed of
Trust any property intended by the terms of any Loan Document(s) to be covered by the
City Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the
transactions contemplated thereunder. Notwithstanding anything to the contrary set forth
herein, the Developer shall have no obligation. to execute any document, or take any
action, which would (i) change a material term of any Loan Document, (ii) change or
impair any material right of Developer and/or (iii) increase the liability of Developer or
any partner thereof.
15.5 Annual ]Financial Statements. Developer shall deliver to City, within
one hundred twenty (120) 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 in connection with the 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
Administrative General Partner 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, 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.
15,6 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
30
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
period ends.
15,7 Termite Inspection Reoort, _ Developer shall deliver a termite report
pertaining to the Property to the City every fifth (5") year beginning January 2019.
16. OTHER NEGATIVE COVENANTS
While any obligation of Developer under the City Note or City Deed of Trust
remain outstanding, the following provisions shall apply, except to the extent that
Executive Director otherwise consents in writing:
16.1 Default on Senior Loan. Developer shall not default on any of the
Senior Loan documents, provided however, that Developer shall have such period as is
provided in the Senior Loan Documents during which to effectuate a cure.
16.2 Sale or Lease of Property. Unless and until Developer has received a
Certificate of Completion for the rehabilitation from City, Developer shall not sell, lease,
sublease or otherwise transfer all or any part of the Property or any interest therein
without the prior written consent of the Executive Director, which consent may be
withheld in the Executive Director's reasonable discretion. In connection with the
foregoing consent requirements, Developer acknowledges that City relied upon
Developer's particular expertise in entering into this Agreement and continues to rely on
such expertise to ensure the satisfactory completion of the rehabilitation,
Notwithstanding anything to the contrary contained herein, a "transfer" shall not
include (i) a transfer of a General Partner's interest in Developer when made in
connection with the exercise by the Developer's limited partner (the "Limited Partner")
of its rights upon a default by a General Partner tinder the Developer'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 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 pursuant to
the right of first refusal or to the General Partners 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 Developer.
31
17. CERT'IFICA.TE OF COMPLETION
Upon satisfactory completion of the rehabilitation and upon the request of
Developer, or at its own election, the City of Santa Ana shall issue a Certificate of
Completion. Such Certificate of Completion shall be, and shall so state, conclusive
determination of satisfactory completion of the rehabilitation.
If City declines to furnish a Certificate of Completion after written request from
Developer, the Executive Director shall, within thirty (30) days after receipt of the
request, provide Developer with a written statement of the reasons therefore. The
statement shall contain a description of the action Developer must take to obtain a
Certificate of Completion. If the reason therefore is that the Developer has not completed
a minor portion of the Rehabilitation, City may, in its sole and absolute discretion, issue
the Certificate of Completion upon the posting with City of a bond or other form of
security acceptable to the Executive Director in the arnount of the fair value of the
uncompleted work.
A Certificate of Completion is not evidence of compliance with or satisfaction of
the Loan Documents or any obligation of Developer to any other party whatsoever,
including any holder of a mortgage or deed of trust. A Certificate of Completion is not
"notice of completion" referred to in Section 3093 of the California Civil Code,
18. INDEMNIFICATION
18.t Nonliab_ility„of City. Developer acknowledges and agrees that:
(a) The relationship between Developer and City is and
shall remain solely that of borrower and lender, City neither undertakes nor assumes any
responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform
Developer of any matter in connection with the rehabilitation, including matters relating
to: (i) the performance of the rehabilitation work, (ii) architects, contractors,
subcontractors and material men, or the workmanship of or materials used by any of them,
or (iii) the progress of the rehabilitation, and Developer shall rely entirely on its own
judgment with respect to such matters and acknowledges that any review, inspection,
supervision, approval or information supplied to Developer by City in connection with
such matters is solely for the protection of City and that neither Developer nor any third
party is entitled to rely on it;
(b) Notwithstanding any other provision of any Loan Document: (i)
the City are not a partner, joint venture, alter -ego, manager, controlling person or other
business associate or participant of any kind of Developer and City does not intend to
ever assume any such status; (ii) City's activities in connection with the Loan(s) shall not
be "outside the scope of the activities of a lender of money” within the meaning of
California Civil Code Section 3434, as rnodified or recodified from time to time, and City
does not intend to ever assume any responsibility to any person for the quality or safety
of the .Property; and (iii) City shall not be deemed responsible for or a participant in any
acts, omissions or decisions of Developer;
32
(c) City shall not be directly or indirectly liable or responsible for any
loss or injury of any Lind to any person or property resulting from any construction on, or
occupancy or use of, the Property, whether arising from: (i) any defect in any building,
grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of
Developer or any of Developer's agents, employees, independent contractors, licensees
or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard
thereon; and
(d) By accepting or approving anything required to be performed or
given to City under the Loan Documents, including any certificate, financial statement,
survey, appraisal or insurance policy, City shall not be deemed to have warranted or
represented the sufficiency or legal effect of the same, and no such acceptance or
approval shall constitute a warranty or representation by City to anyone.
18,2 Indemnity. Developer shall defend (by counsel satisfactory to City),
indemnify and save and hold harmless the Indemnitees from and against all claims,
damages, demands, actions, losses, liabilities, costs and expenses (including, without
limitation, attorneys` fees and court costs) arising from or relating to (i) this Agreement;
(ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has
or asserts against Developer; (iv) any act or omission of Developer, any contractor,
subcontractor or material. supplier, engineer, architect or other person with respect to the
Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the
foregoing, Developer shall not be obligated to indemnify City with respect to the
consequences of any act of illegal conduct, gross negligence or willful misconduct of
City. Developer's obligations under this Section shall survive the cancellation of the City
Loan Note, release and reconveyance of the City Deed of Trust, issuance of the
Certificate of Completion, and termination of this Agreement.
18.2.1 NothWithstanding the foregoing, neither Developer, nor any of its partners,
shall be personally liable for any indemnification obligation hereunder
which would result as the repayment of principal and/or interest under the
Loan.
18.3 Reirnbui-sement of City. Developer shall reimburse City immediately
upon written demand for all costs reasonably incurred by City (including the reasonable
fees and expenses of attorneys, accountants, appraisers and other consultants, whether the
same are independent contractors or employees of City) in connection. with the
enforcement of the Loan Documents and all related matters including all claims,
demands, causes of action, liabilities, losses, conumssions and other costs against which
City is indemnified under the Loan Documents. Such reimbursement obligations shall
bear interest from the date occurring twenty (20) days after City gives written demand to
Developer and shall be secured by the City Deed of Trust. Such reimbursement
obligations shall survive the cancellation of the Loan Note, release and reconveyance of
the City Deed of Trust, issuance of a Certificate of Completion, and termination of this
Agreement
33
19. INSURANCE, CASUALTY AND CONDEMNATION
19.1 Policies Required. While any obligation of Developer under the Loan
Documents 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, windstorrn, 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)
lood);(c) upon commencement of the rehabilitation and at all
times prior to completion of the rehabilitation, builder's risk -all risk insurance 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 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),
(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.
All such insurance shall provide that it may not be canceled or materially modified
without thirty (30) days prior written notice to City. The policies required under
subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form
and substance satisfactory to City, showing the City as encumbrance. The City shall be
named as an additional insured(s) in the policies required under subparagraphs (d) and (e)
with primary coverage. 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 prior to start of any rehabilitation work. All policies insuring against
damage to the Improvements shall contain an agreed value clause sufficient to eliminate
any risk of co-insurance. 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.
34
19.2 City Attorney May Modify. The City Attorney
may modify the type and amounts of insurance required pursuant to this Section.
19.3 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.
19.1 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.
L9.5 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 two years (or such longer 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 (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
evidence and secure Developer's obligation to use aft amounts disbursed for the diligent
restoration of the Property.
35
(d) No Event of Default shall remain uncured.
19.6 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
elects in their sole and absolute discretion.
19.7 Failure to Satisfy Conditions. In the event that Developer
falls to fulfill the Restoration Conditions within ninety (90) 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,
19.8 Restoration. Nothing in this Article 19 shall be
construed to excuse Developer from repairing and restoring all damage to the Property in
accordance with other Loan Document provisions, regardless of whether insurance
proceeds are available or sufficient.
19.9 Condemnation; Treatment of Com ensation
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 elates 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.
19.9,1 Notwithstanding the foregoing, as long as the value of City's liens are not
impaired, any condemnation proceeds may be used by the Borrower for repair and/or
restoration of the Project,
19.10 Waiver of Subrogation. Developer hereby waives all rights to
recover against the City (or any officer, employee, agent or representative of the City) for
any loss incurred by Developer from any cause insured against or required by any Loan
Document, to be insured against, provided, however, that this waiver of subrogation shall
36
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.
20, DEFAULTS AND REMEDIES
20.1 Events of Default. The occurrence of any of the following, whatever the
reason therefore, shall constitute an Event of Default by Developer:
(a) Developer fails to make any payment of principal or
interest under the City Loan Note when due, and such failure is not cured within fifteen
(15) Business Days after Developer's receipt of written notice that such payment was not
received when due;
(b) Developer fails to perform any other obligation for the
payment of money under any Loan Document, and such failure is not cured within fifteen
(15) Business Days after Developer's receipt of written notice that such obligation was
not performed when due;
(c) Developer fails to perform any obligation (other than the
obligations described in subparagraphs (a) and (b) above) under any Loan Document, and
such failure is not cured within thirty (30) days after Developer's receipt of written notice
that such obligation was not performed; provided that, if cure cannot reasonably be
effected within such thirty (30) -day period, such :failure shall not be an Event of Default
so long as Developer (in any event, within ten (10) days after receipt of such notice)
commences to cure, and thereafter diligently (in any event within ninety (90) days after
receipt of such notice) prosecutes such cure to completion;
(d) Any representation or warranty in any Loan Document proves to
have been incorrect in any material respect when made,
(e) The Property is materially damaged or destroyed by fire or other
casualty unless Developer fulfills. the Restoration Conditions set forth in the insurance
provisions of this Agreement within ninety (90) days (unless extended pursuant to
Section 19.5) and thereafter diligently restores the Property in accordance with this
Agreement,
(f) Work on the rehabilitation ceases for thirty (30) consecutive days
for any reason (other than governmental orders, decrees or regulations, acts of God or any
other deity, strikes or other causes beyond Developer's reasonable control), provided that
the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay
the completion of the rehabilitation beyond the required completion date set forth in this
Agreement;
(h) Developer is enjoined or otherwise prohibited by any
Governmental Authority from constructing and/or occupying the inlprove inents and such
injunction or prohibition continues unstayed for sixty (60) days or more for any reason;
37
(i) Developer is dissolved, liquidated or terminated, or all or
substantially all of the assets of Developer are sold or otherwise transferred without the
Executive Director's prior written consent;
0) Developer is the subject of an order for relief by a bankruptcy
court, or is unable or admits its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or Developer applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or any part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of Developer and the appointment continues undischarged or
unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship,
conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part
of its property; or any similar proceeding is instituted without the consent of Developer
and continues undismissed or unstayed for ninety (90) days; or any judgment, writ,
warrant of attachment or execution, or similar process is issued or levied against any
property of Developer and is not released, vacated or fully bonded within ninety (90)
days after its issue or levy; or
(k) any of the Senior Loan documents is revoked or terminated, in
whole or in part and for any reason (except due to repayment of such loans), without the
Executive Director's prior written consent, or (ii) Developer defaults or otherwise fails to
perform any of its duties or obligations under or in connection with any of the Senior
Loan documents, subject to all applicable notice and cure periods, or (iii) any of the
Senior Loan documents is amended, supplemented or otherwise modified without City's
prior vaitten consent, which consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, City hereby agrees that any
cure of any default made or tendered by Developer's Limited Partner shall be deemed to
be a cure by Developer and shall be accepted or rejected on the same basis as if made or
tendered by Developer,
20.2 Remedies Upon Default., Upon the occurrence of any Event of Default,
City may, at its option and in its absolute discretion, do any or all of the following:
(a) By written notice to Developer, declare the principal of all
amounts owing under the Loan. Documents, together with all accrued interest and other
amounts owing in connection therewith, to be immediately due and payable, regardless of
any other specified due date; provided that any Event of Default described in Section
20.1 shall automatically, without notice or other action on City's part, cause all such.
amounts to be immediately due and payable;
(b) In its own right or by a court-appointed receiver, take
possession of the Property, enter into contracts for and otherwise proceed with the
completion of the rehabilitation by expenditure of its own funds,
(c) Exercise any of its rights under the Loan Documents and any rights
provided by law, including, without limitation, the right to seek specific performance and
the right to foreclose on any security and exercise any other rights with respect to any
38
security, all in such order and manner as City elects in its sole and absolute discretion;
and,
(d) Suspend or terminate the award of HOME funds if Developer fails
to comply with any term of that award.
20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the
Loan Documents are cumulative and in addition to all rights and remedies provided by
law. The exercise by City of any right or remedy shall not constitute a cure or waiver of
any default, nor invalidate any notice of default or any act done pursuant to any such
notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of
any default shall be implied from any omission by City to take action on account of such
default if such default persists or is repeated. No waiver of any default shall affect any
default other than the default expressly waived, and any such waiver shall be operative
only for the time and to the extent stated. No waiver of any provision of any Loan
Document shall be construed as a waiver of any subsequent breach of the same provision.
City's consent to or approval of any act by Developer requiring further consent or
approval shall not be deemed to waive or render unnecessary City's consent to or
approval of any subsequent act. The City's acceptance of the late performance of any
obligation shall not constitute a waiver by City of the right to require prompt performance
of all further obligations; City's acceptance of any performance following the sending or
filing of any notice of default shall not constitute a waiver of either party's right to
proceed with the exercise of its remedies for any unfulfilled obligations; and City's
acceptance of any partial performance shall not constitute a waiver by City of any rights.
21.. MISCELLANEOUS
21.1 Obligations Unconditional and Independent. Notwithstanding the
existence at any time of any obligation or liability of City to Developer, or any other
claim by developer against City, in connection with the Loan or otherwise, Developer
hereby waives any right it might otherwise have (a) to offset any such obligation, liability
or claim against Developer's obligations under the Loan Documents, or (b) to claim that
the existence of any such outstanding obligation, liability or claim excuses the
nonperformance by Developer of any of its obligations under the Loan Documents.
21,2 Notices. All notices, demands, approvals and other communications
provided for in the Loan Documents shall be in writing and be delivered to the
appropriate party by personal service or US, mail at its address as follows:
If to Developer: Guest House LP
c/o CDP Guest House LLC
3416 Via Oporto, Suite 301
Newport Beach, California 92663
Attm Kyle Paine
With a copy toy 1HC Guest House Santa Ana., LLC
c/o Affordable Housing Alliance 11, Inc
DBA Integrity Housing
39
4 Venture, Suite 295
Irvine, CA 92618
With a copv to: NEP Assignment Corporation
10 S. Riverside Plaza Suite 1700
Chicago Illinois 60606
If to City: City of Santa Ana
Executive Director (CDA)
20 Civic Center Plaza (M-26)
P.O. Box 1988
Santa Ana, California 92702
With a copy to: City Attorney
City of Santa Ana
20 Civic Center Plaza, 7th Floor (M-29)
Santa Ana, California 92702
Addresses for notice may be changed as required by written notice to all other parties,
All notices personally served shall be effective when actually received. All notices
mailed shall. be effective three (3) days after deposit in the U.S. Mail, postage prepaid.
The foregoing notwithstanding, the non -receipt of any notice as the result of a change of
address of which the sending party was not notified or as the result of a refusal to accept
delivery shall be deemed receipt of such notice.
21.3 Survival of Representations and Warranties. All representations and
warranties in the Loan Documents shall survive the making of the Loan described herein
and have been or will be relied on by City notwithstanding any investigation made by
either party,
21.4 No Third Parties Benefited. This Agreement is made for the purpose of
setting forth rights and obligations of Developer and the City, and no other person shall
have any rights hereunder or by reason hereof,
21.5 Finding 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 any Loan Document 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.
21.6 Prior Agreements; Amendments, Consents. This Agreement (together
with the other Loan Documents) contains the entire agreement between the City and
Developer with respect to the Loan and the Property, and all prior negotiations,
understandings and agreements are superseded by this Agreement and such other Loan
Documents. No modification. of any .Loan Document (including waivers of rights and
conditions) shall be effective unless in writing and signed by the party against whom
40
enforcement of such modification is sought, and then only in the specific instance and for
the specific purpose given.
21.7 Governing Law. All of the Loan Documents shall be governed by, and
construed and enforced in accordance with, the laws of the State of California and.
Federal lav, whichever is more stringent. Developer irrevocably and unconditionally
submits to the jurisdiction of the Superior Court of the State of California for the Cormty
of Orange or the United States District Cont 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 or the Loan Documents. Assuming proper service of process,
Developer also waives any objection regarding personal or in rem jurisdiction or venue.
21.8 Severability of„Provisions. No provision of any Loan Document that is
held to be unenforceable or invalid shall affect the remaining provisions, and to this end
all provisions of the Loan Documents are hereby declared to be severable.
21.9 Headings. Article and section headings are included in the Loan
Documents for convenience of reference only and shall not be used in construing the
Loan Documents.
21.10 Conflicts. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, 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.
21.11 Time of the Essence. Time is of the essence under this Agreement and in
the perForrnance of every term, covenant, and obligation contained herein.
21.12 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.
21.13 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.
21.14 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.
21,15 Plans and Data. Where Developer does not proceed with the
work and rehabilitation of the Property, and when this Agreement is terminated with
respect thereto for any reason, Developer shall deliver to City any and all plans and data
concerning the Property, and City or any person or entity designated by City shall have
41
the right to use such plans and data without compensation to Developer. Such right of
City shall be subject to any right of the preparer of the plans to their use.
21.16 Authority to Enter A.LYreement. 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.
42
IN FITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date set forth at the beginning of this Agreement.
GUEST HOUSE LP
a California limited partnership
ADMINISTRATIVE GENERAL PARTNER
CDP Guest House LLC
a California limited liability company
By: Community Development Partners,
a California Corporation, its sole member
By:/ (-:
Ky�Paine, President
Dated: L- a' l 14
MANAGING GENERAL PARTNER
IH Guest house Santa Ana, LLC
a California limited liability company
By: Affordable Housing Alliance II, Inc.
Dba Integrity Housing
A ColoradUupro corporation
By:
Anjela.Ponce, President
IDated: i— ---S � -7
43
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of (D -GA ylo�p- � )
On G blr % TO C\ before me, g,l NLS l- �1, I A I,. ��j � � ���� I C .
ate Here lnsert Name and title of th�fficer
personally appeared Pvv,-1��� ���C.0
� NameF<of Signero'
who proved to me on the basis of satisfactory evidence to be the person' whose name¢ is/ate
subscribed to the within instrument and acknowledged to me that>ff/she/twy executed the same in
.k /her/thelrauthorized capacity(lesy, and that by Ws'/her/tsignature(oon the instrument the person(,$,
or the entity upon behalf of which the perso*!'Oacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my and official s I.
JULIE FRANCES 701ifornia
UIIIIA1A
Notary Public.-Drange Signature
Commission # 2169858 Signature of Notary blic
Mi Comm. Ex lyes Cct 26, 2020.
Place Notary Seal Above
'OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages:
Document Date:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02014 National Notary Association ° www.Nationa[Notary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange
On Jcth+n(nrj )017 before me, Tim Winger, Notary Public
(insert name and title of the officer)
personally appeared IQ poi;ne
who proved to me on the basis of satisfactory evidence to be the person,( ywhose name(zToare
subscribed to the within instrument and acknowled ed to me that(glshelthey executed the same in
erltheir authorized capacity(0), and that by lherltheir signature(zlon the instrument the
person(o, or the entity upon behalf of which the person(safacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
TIM WINGER
WITNESS my hand and official seal. ComMissien #E 2099074
sorange
Notary Public - Callfornia courdy
M a
AnE. Ex ires Feb 0, 2049+
Signature a (Seal)
ATTEST:
Maria D. H[uizar
Clerk of the Council
Dated: ly/,� /® .'
SONIA R. WVALHO, City Attorney
CITY OF SANTA ANA
Gerardo Mouet
Acting City Manager
Dated:
Ryo Q. 4�dge, Assistant City Attorney
Dated: _ sj2� Jr -7
RECOMMEN D APPROVAL:
Robert C. Cortez
Special Assistant to the City Manager
City Manager's Office
44
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document, to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On _April 04,_201.7 _ before me, Rosa A. Flores , Notary _Public
(insert name and title of the officer)
personally appeared Gerardo Mouet who proved to me on the basis of satisfactory evidence to be
the person* whose namQW is le -re subscribed to the within instrument and acknowledged to me
that hetshe they executed the same in his/her/their authorized capacity(ies), and that by hislherAh-4 kir-
signaturetxs-) on the instrument the person(&), or the entity upon behalf of which the personal acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ROSA A, FL0 ES
* Commission # 2057129
Z
Notary Public - California i
Orange County n
14.comm- Wires Feb 7,2018t
(Seal)