HomeMy WebLinkAboutNORTH BROADWAY HOUSING PARTNERS LP (2)Commonwealth Land Title Comoany
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702
Attention: Clerk of the Council
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
IJIIIIIIIIIIIIIIIIJ�1111111111'1111111111111IJ11111111IIIIIIIIIIIIIIJill NO FEE
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2023000065933 11:34 am 03123/23
90 CRSC06 R29 33
0.00 0.00 0.00 0.00 96.00 0.00 0.000.000.00 0.00
SPACER MCOKDING USE
INSURANCE NOT REQUIRED No FEE DOCUMENT
GOVERNMENT (DOE 2.13S3
WORK MAY PROCEED A—Zas-a?)k-02
AFFORDABILITY RESTRICTIONS
CLERK OF THE COUNCIL ON TRANSFER OF PROPERTY
(1411 North Broadway, Santa Ana, California (APN 398-523-04)
DATE:
THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
(the "Restrictions') are entered into as of March 23, 2023, by and between North Broadway
N Housing Partners LP, a California limited partnership ("Developer"), and the City of Santa
Ana, a charter city and municipal corporation ("City"), with WISEPlace, a California
00 nonprofit public benefit corporation ("WISEPlace"), joining in the restrictions.
o RECITALS:
C
A. WISEPlace is the owner of fee simple title to certain property located at 1411 North
Broadway (APN 398-523-04), in the City of Santa Ana, totaling approximately 0.60 acres
of land area C the Property'l. WISEPlace intends to ground lease the Property to the
Developer (the "Ground Lease") for sixty-five (65) years from the Commencement Date of
the Ground Lease. The Property is located in the City of Santa Ana, more particularly
described in Exhibit A, which is attached hereto and incorporated herein by this reference.
WISEPlace is executing a joinder to these Affordability Restrictions on Transfer of
Property to encumber its fee interests with the covenants contained herein.
B. The Developer is a limited partnership, whose sole general partner is JHC-North
Broadway LLC, a California limited liability company (the General Partner). WISEPlace
and Jamboree Housing Corporation, a California non-profit public benefit corporation
("JHC`% are the sole members of the General Partner. The Developer will adaptively reuse
one existing building on the Property and construct, own and operate an additional building
on the Property to accommodate a forty-eight (48) unit multifamily affordable housing project
("Project'D.
C. The Developer and the City have entered into that certain City/HOME-ARP Loan
Agreement, dated on or about the date hereof ("Loan Agreement"), for the purpose of
WISEPlace Pumanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
Commonwealth Land Title Comoany
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Clerk of the Council
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702
Attention: Clerk of the Council
NO FEE DOCUMENT
GOVERNMENT (DOE -L7383
AFFORDABIIdTY RESTRICTIONS
ON TRANSFER OF PROPERTY
(1411 North Broadway, Santa Ana, California (APN 398-523-04)
THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
(the "Restrictions") are entered into as of March 23, 2023, by and between North Broadway
Housing Partners LP, a California limited partnership ("Developer"), and the City of Santa
Ana, a charter city and municipal corporation ("City"), with WISEPIace, a California
nonprofit public benefit corporation ("WISEPIace"), joining in the restrictions.
RECITALS:
A. WISEPIace is the owner of fee simple title to certain property located at 1411 North
Broadway (APN 398-523-04), in the City of Santa Ana, totaling approximately 0.60 acres
of land area ("the Property"). WISEPIace intends to ground lease the Property to the
Developer (the "Ground Lease") for sixty-five (65) years from the Commencement Date of
the Ground Lease. The Property is located in the City of Santa Ana, more particularly
described in Exhibit A, which is attached hereto and incorporated herein by this reference.
WISEPIace is executing a joinder to these Affordability Restrictions on Transfer of
Property to encumber its fee interests with the covenants contained herein.
B. The Developer is a limited partnership, whose sole general partner is JHC-North
Broadway LLC, a California limited liability company (the General Partner"). WISEPlace
and Jamboree Housing Corporation, a California non-profit public benefit corporation
("JHC"), are the sole members of the General Partner. The Developer will adaptively reuse
one existing building on the Property and construct, own and operate an additional building
on the Property to accommodate a forty-eight (48) unit multifamily affordable housing project
("Project').
C. The Developer and the City have entered into that certain City/HOME-ARP Loan
Agreement, dated on or about the date hereof ("Loan Agreement"), for the purpose of
WISEPIace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
e
making the City/HOME ARP Loan ("Loan") and providing for the development of forty-
seven (47) units of housing that will be affordable to Extremely Low Income Households
("Restricted Units"), with one un-restricted unit reserved for an on -site manager, to which
these Restrictions are attached as Exhibit F (any capitalized term that is not otherwise
defined in these Restrictions shall have the meaning ascribed to such term in the Loan
Agreement).
D. During the twenty (20) year HOME -ARP Compliance Period, sixteen (16) of the
Restricted Units will be designated as HOME -ARP Units. The HOME -ARP Units will be
rented to HOME -ARP Qualifying Populations as set forth in Housing and Urban
Development ("HUD") Community Planning and Development (CPD) Notice: CPD-21-
10 (the "HOME -ARP Notice").
E. The Loan Agreement provides, among other things, for the use of the Property for
affordable housing with all Restricted Units being restricted to Extremely Low Income
Households, at Affordable Rent(s), as well as the requirements imposed by the HOME -
ARP Notice for the HOME -ARP Units, with a preference for individuals and families who
are chronically homeless.
F. The Loan Agreement contains certain provisions relating to the use of the Property.
NOW, THEREFORE, CITY AND DEVELOPER COVENANT AND AGREE AS
FOLLOWS:
1. Developer covenants and agrees (for itself, its successors, its assigns, and every
successor in interest to the Property or any part thereof) that Developer, such successors,
and such assigns shall use the Property exclusively to provide affordable housing to
Extremely Low Income Households, as provided in these Restrictions and in the Loan
Agreement.
2. Developer covenants and agrees (for itself, its successors, its assigns, and every
successor in interest to the Property or any part thereof) that during the HOME -ARP
Compliance Period the HOME -ARP Units will be leased to a HOME -ARP Qualifying
Population as provided in these Restrictions, the Loan Agreement and the HOME -ARP
Notice.
3. Developer, for itself and its successors and assigns, hereby covenants and agrees
that all of the apartments in the Property (less one manager's unit) (the "Units") shall be
rented exclusively, at Affordable Rent, to Extremely Low Income Households to the extent
provided for herein, except to the extent a different eligibility or rent is required for HOME -
ARP Units. Area median income levels and Affordable Rents are subject to adjustment
from time to time as provided in Section 3 below.
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WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
4. DEFINITIONS
"Affordable Rent" means monthly rent that does not exceed the amounts set
forth in Section 5.2 of these Restrictions.
"City Restriction Period" means a period of fifty-five (55) years after the date
on which the Certificate of Completion is issued.
"Chronically Homeless" means an individual or family who meets the definition
of "chronically homeless" under HUD regulations and guidance, including 24 CFR 578.3.
"Extremely Low Income" means an adjusted income that 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.
"Extremely Low Income Household" means an individual or family whose
income qualifies as Extremely Low Income, adjusted for household size, as published by
HUD.
"HOME -ARP Compliance Period" means a period of twenty (20) years from
the issuance of the Certificate of Completion, unless a shorter period is required by HUD
or the HOME -ARP Program.
"HOME -ARP Program" means the program established with the HOME -
American Rescue Plan (HOME -ARP) funds from the United States Department of
Housing and Urban Development ("HUD") under the Section 3205 of the American
Rescue Plan Act of 2021 (P.L. 117-2)) ("ARP) to be implemented through the HOME
Investment Partnerships Program (the "HOME Program") (42 U.S.C. § 12701, et seq.,)
and governed in accordance with applicable statutory requirements, regulations, and
guidance, including but not limited to HUD Notice CPD-21-10 (the "HOME -ARP
Notice") and the HOME Regulations (24 CFR Part 92).
"HOME -ARP Qualifying Populations" means any individual or family who
meets the eligibility criteria of a "qualifying population" of the HOME -ARP Program.
"HOME -ARP Units" the sixteen (16) units assisted under the HOME -ARP
Program and subject to the HOME -ARP Compliance Period.
"Limited Partner" means, collectively, the investor limited partner and special
limited partner of the Developer, and their respective successors and assigns.
"Low HOME Rent" means rent that does not exceed thirty percent (30%) of the
adjusted income of a household whose annual income is equal to or less than fifty percent
(50%) of the area median income for the Orange County, California PMSA, adjusted for
household size, as published by HUD for the HOME -ARP rent limits.
WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
"Restricted Units" means the forty-seven (47) units restricted to Extremely Low
Income Households during the City Restriction Period, which includes the sixteen (16)
HOME -ARP Units assisted under the HOME -ARP Program and available for rental to
HOME -ARP Qualifying Populations during the HOME -ARP Compliance Period.
"Very Low Income" means an adjusted income that 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.
"Very Low Income Household" means an individual or family whose annual
income qualifies as Very Low Income, adjusted for household size, as published by
HUD.
5. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF
THE PROPERTY
5.1. 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 all Restricted Units on the Property will be made available for rent as follows:
(i) Except as set forth in sub -paragraph (ii) of this Section
5.1(a), the Restricted Units shall be rented to Extremely Low Income Households for the
City Restriction Period.
(ii) During the HOME -ARP Compliance Period, all HOME -
ARP Units must be rented to a HOME -ARP Qualifying Population as allowed by the
HOME -ARP Program. After the HOME -ARP Compliance Period expires, all Units shall
be restricted under sub -paragraph (i) of this Section 5.1(a).
(b) The HOME -ARP Units shall be studio units, with comparable
amenities to the other Restricted Units. The HOME -ARP Units shall be initially distributed
throughout the complex, but thereafter shall be allowed to "float' .
(c) It is anticipated that during the Term of Agreement the Project will
be supported by Project -Based Section 8 rental subsidy payments provided by the
Housing Authority of the City of Santa Ana ("Housing Authority") for not less than
twenty-five (25) of the Restricted Units (the "PBV Rental Subsidy"), and the HOME -
ARP Subsidy Reserve will be utilized to cover operating deficits associated with the
sixteen (16) HOME -ARP Units. To the extent allowed by the HOME -ARP Program, the
HOME -ARP Subsidy Reserve cannot be used for HOME -ARP Qualifying Households
with project -based vouchers or project -based rental assistance (but maybe used for
HOME -ARP Qualifying Households with tenant based rental assistance). The PBV
Rental Subsidy may not be placed on any HOME -ARP Unit.
(d) The Developer shall establish a preference for renting Restricted
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WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
Units to individuals and families who qualify as Chronically Homeless in accordance
with Section 7.5, provided, however that any preference applicable to the HOME -ARP
Units must comply with the HOME -ARP Program.
(e) Rental increases in the Restricted Units shall be subject to and in
conformance with federal, state law, and local law.
(f) Maximum Occupancy for Restricted Units will be three persons per
studio unit.
(g) For all Restricted Units, Developer must have a written lease
between tenant and owner for a period of at least one year, unless a shorter period is
mutually agreed upon. All leases must be consistent with the applicable laws and
regulations, including the HOME -ARP Program for the HOME -ARP Units.
5.2. Affordability Levels/Unit Mix:
(a) All Restricted Units in the Property will be studios, except the one
(1) manager unit will be a 2-bedroom unit reserved for the on -site manager.
(b) Except as set forth in sub -paragraph (c) of this Section 5.2, the
allowable rent for the Restricted Units in the Project shall not exceed the Affordable Rent
for an Extremely Low Income Household as follows:
Unit Size
30% TCAC AMI
No.
Units
Current
Rent
Studio
47
$711
Total
47
The remaining unit will be an un-restricted 2-bedroom unit reserved for the onsite manager.
(c) During the HOME -ARP Compliance Period, the allowable rent for
HOME -ARP Units in the Project shall not exceed the lesser of: (a) 30% of the tenant's
actual household income (inclusive of Supplemental Security Income (SSI) / State
Supplementary Payment (SSP) payments); or (b) the Low HOME Rent in accordance with
the HOME -ARP Program. The number of HOME -ARP Units and allowable rent shall be
as follows:
HOME -ARP Units
# of HOME-
HOME -ARP
Maximum
ARP Units
Restriction
Allowable Rent
HOME -ARP
16 Studio Units
Qualifying
Low HOME Rent
Population
WISEPiace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
(i) At the time of project completion, the Developer shall provide
to the City the address and/or unit number of each of the units initially designated as
the HOME -ARP Units.
(ii) Annually with the financial statements, the Developer shall
provide an annual report of rents and occupancy of all Restricted Units, including the
HOME -ARP Units, to verify compliance with affordability requirements. For the
HOME -ARP Units, information on unit substitution and filling vacancies shall be
provided to ensure that the project maintains the required unit mix.
(d) The Affordable Rents charged at the Project must comply with the
standards set forth by TCAC as defined in this Affordability Restrictions on Transfer of
Property, except that during the HOME -ARP Compliance Period, and if allowed by the
HOME -ARP Program, the Affordable Rents for the HOME -ARP Units must comply with the
most stringent of standards set forth by the HOME -ARP Program and TCAC.
(e) At the time of this Agreement, the Project will pay for all utilities with
no tenants being charged for utilities. If tenants are charged for utilities at any time during the
term of this Agreement, a utility allowance must be deducted from the maximum affordable
rent charged at the Project for each unit. With respect to the HOME -ARP Units, utility
allowances must be based on project -specific allowances.
(f) Initial rents may be recalculated to allowable rental amounts at the
time of initial lease -up following completion of construction in accordance with any changes
in allowable rent and income tables as published by HUD.
5.3. Rent Increases.
On an annual basis, the City shall provide Developer with the maximum allowable
schedule of rents for the Property in accordance with changes in allowable rent and income
tables published by HUD and TCAC, provided however that the rent for the HOME -ARP
Units shall in no event be higher than the rent for the equivalent non -HOME -ARP Unit
within the Project. In no event can Developer charge any tenant more than such amount.
All rent increases on the Restricted Units are subject to City approval pursuant to
the terms of this Section. No later than sixty (60) days prior to the proposed
implementation of any rent increase, Developer shall submit to the City a schedule of any
proposed increase in the rent. The City will disapprove a rent increase if it does not comply
with the restrictions set forth in Section 5.2 above.
(a) Termination of Tenancv. Developer may not terminate the tenancy
or refuse to renew the lease of any tenant except for serious or repeated violation of the
terms and conditions of the Lease; for violation of applicable federal, state, or local law;
for completion of the transitional housing tenancy period (if the housing is transitional); or
for other good cause. Any termination or refusal to renew must be preceded by not less
than thirty (30) days by the Developer's service upon the tenant of a written notice
specifying the grounds for the action.
WISEPlace Pennanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
(b) Non -Qualifying Adjusted Income. Subject to the applicable
requirements and provisions of, and changes to, the HOME -ARP Program, and Section 42
and 142(d) of the Internal Revenue Code of 1986, as amended (the "Code"), if, upon
recertification of the income of a tenant of a Restricted Unit, the Developer determines
that a tenant has an adjusted income exceeding 30% of the applicable Median Income for
the Area in each case, adjusted for household size as provided in Section 5.2 above, such
tenant may be permitted to continue to occupy the Restricted Unit at the rental rate as
provided for in Section 5.2 above, until the tenant chooses to vacate the Restricted Unit.
After the Restricted Unit is vacated, the Restricted Unit shall be re -rented to a tenant
pursuant to the terms, covenants and conditions of these Restrictions.
5.4. Maintaining Financial Stability.
It is anticipated that during a portion of the Term of Agreement the Project will be
supported by a PBV Rental Subsidy for not less than twenty-five (25) of the Restricted
Units, and the HOME -ARP Subsidy Reserve for the sixteen (16) HOME -ARP Units.
These subsidies will not overlap on the same units. If, during the Term of Agreement and
through no fault of Developer, (a) the HOME -ARP Subsidy Reserve is depleted, (b) there
is a reduction, termination or nonrenewal of the PBV Rental Subsidy, or (c) the Project
generates insufficient income to cover its operating costs, required deposits to replacement
reserves, and debt service on approved financing as shown on the Operating Budget, and
as is necessary to maintain the financial stability of the Project, with the exception of the
HOME -ARP Units during the HOME -ARP Compliance Period, Developer may request
approval of the City (a) to allow households with adjusted incomes that do not exceed sixty
percent (60%) of AMI, adjusted for actual household size, to occupy the Restricted Units
(i.e., a unit previously restricted to households with adjusted incomes that do not exceed
30% of AMI), and (b) to increase the rent on one or more of the Restricted Units to rents
that are affordable to households with an adjusted income that does not exceed sixty
percent (60%) of AMI, adjusted for actual household size . The rent increase is subject to
the following requirements: (a) concurrently with the request, Developer shall provide the
City with evidence of the anticipated reduction, termination, or nonrenewal of the Rental
Subsidy and/or depletion of the HOME -ARP Subsidy Reserve and/or evidence that the
Project is not operating at a financially stable level, (b) a Management Plan (as defined in
Section 6.1(d) of the Loan Agreement) for the Project for the City's approval pursuant to
Sections 6.1(d) and Exhibit G of the Loan Agreement, showing the impact of the depletion
of the HOME -ARP Subsidy Reserve and/or loss, termination, or reduction of the Rental
Subsidy; (c) a proposed operating budget reflecting the requested rent increases (the
"Operating Budget"); and (d) a description of efforts to obtain alternate sources of rental
subsidy and/or maintain financial stability. The number of the Restricted Units subject to
the rent increase and the amount of the proposed increase may not be greater than the
number or amount required to ensure that the Project generates sufficient income to cover
its operating costs, required deposits to replacement reserves, and debt service on approved
financing as shown on the Operating Budget, and as is necessary to maintain the financial
stability of the Project. In addition , Developer hereby agrees to the following:
(a) Developer shall use good faith commercially reasonable efforts to
obtain alternative sources of rental subsidies and shall provide the City with annual
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WISEPlace Perunanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
progress reports on efforts to obtain alternative sources of rental subsidies that would allow
the rents to be reduced. Upon receipt of any alternative rental subsidies, Developer shall
reduce the rents back to the original restrictions to the extent that the alternative rental
subsidies provide sufficient income to cover the operating costs, required replacement
reserves and debt service of the Project as shown on the Operating Budget.
(b) Developer shall provide tenants in the Restricted Units with notice
of any rent increase pursuant to this Section 5.4, and shall notify the tenant that if they have
received a tenant -based voucher from the Housing Authority they may use the tenant -based
voucher for their Restricted Unit.
(c) All rent increases for the Restricted Units are subject to City
approval pursuant to the terms of this Section 5.4. No later than sixty (60) days prior to
the proposed implementation of any rent increase, Developer shall submit to the City a
schedule of any proposed increase in the rent. The City will disapprove a rent increase if
it does not comply with the restrictions set forth in this Section 5.4. Notwithstanding the
foregoing, rent increases for the Restricted Units shall be subject to review and approval
of the City.
(d) Developer shall give tenants of all Restricted Units written notice at
least sixty (60) days prior to any rent increase.
With respect to any Restricted Units for which City has authorized Developer to increase
rents pursuant to this Section, the preference to rent to Chronically Homeless households
shall automatically terminate. The City's local preferences as Section 7.5 of these
Restrictions shall remain.
6. Developer, its successors and assigns shall not charge rents for the Units in excess
of the amounts set forth herein, as adjusted on the basis of the revised schedules of area
median incomes issued from time -to -time by HUD. The City shall notify Developer in
writing of the adjusted allowable maximum incomes and rents.
7. Developer shall adopt and include as part of its Management Plan (described in
Section 13 below), written tenant selection policies and criteria for the Units that meet the
following requirements:
7.1. Are consistent with the purpose of providing housing to HOME -ARP
Qualifying Populations (applicable only with respect to the HOME -
ARP Units), Extremely Low Income Households, and individuals or families who qualify
as Chronically Homeless;
7.2. Are reasonably related to program eligibility and the applicants' ability to
perform the obligations of the lease;
7.3. Give reasonable consideration to the housing needs of households that
would have a preference under 24 CFR 960.206 (Local preferences for admission to Public
Housing);
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WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
7.4. Provide for:
(a) The selection of tenants through the Coordinated Entry System,
except as necessary to comply with the HOME -ARP Program;
(b) To the extent practicable, and in a manner consistent with sub-
paragraph (a), selection of tenants from a written waiting list in the chronological order of
their application; and
(c) The prompt written notification to any rejected applicant of the
grounds for any rejection.
7.5. With regard to the leasing of the Restricted Units, inclusive of the persons
referred off of the County of Orange coordinated entry system for the HOME -ARP Units,
and subject to compliance with the HOME -ARP Program, the HOME Regulations and
applicable California and federal fair housing laws, and the requirements of Section 142(d)
and Section 42 of the Internal Revenue Code, Developer's tenant selection plan shall
include a preference for individuals or families who qualify as Chronically Homeless and
satisfy the criteria below, in the following order of priority:
(a) First priority shall be given to persons who are either:
(i) Residents of Santa Ana; and/or
(ii) Working in Santa Ana at least 32 hours per week for at least
the last 6 months.
(b) The Restricted Units will still be available to the general public, as
required under Section 142(d) of the Code and Section 42 of the Code, and these
preferences do not restrict the availability of the units to the general public.
7.6. Carry out the affirmative marketing procedures of the City of Santa Ana,
which are designed to provide information and otherwise attract eligible persons from all
racial, ethnic and gender groups in the housing market area to the units. Developer shall
cooperate with the City to effectuate this provision prior to the initial renting, or upon
occurrence of a vacancy, and the re -renting of any HOME -ARP assisted units (24 CFR
92.351).
8. Developer, its successors and assigns, shall not refuse to lease a unit to a holder of
a rental voucher under 24 CFR Part 982 (Housing Choice Voucher Program) or to a holder
of a comparable document evidencing participation in a HOME and/or HOME -ARP
tenant -based assistance program because of the status of the prospective tenant as a holder
of such certificate of family participation, rental voucher, or comparable HOME and/or
HOME -ARP tenant -based assistance document. Total rents charged to the tenant for the
tenant's share of rent shall not exceed the allowable rents as described above.
WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
9. Any lease of any of the units must be maintained in the tenant's rental file held by
the Developer. The lease may not contain any of the following provisions (in which
references to "owner" shall mean the Developer, its successors or assigns):
9.1. Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor
of the owner in a lawsuit brought in connection with the lease;
9.2. Agreement by the tenant that the owner may take, hold, or sell personal
property of household members without notice to the tenant and a court decision on the
rights of the parties. This prohibition, however, does not apply to an agreement by the
tenant concerning disposition of personal property remaining in the housing Unit after the
tenant has moved out of the Unit. The owner may dispose of this personal property in
accordance with state law;
9.3. Agreement by the tenant not to hold the owner or the owner's agent legally
responsible for any action or failure to act, whether intentional or negligent;
9.4. Agreement of the tenant that the owner may institute a lawsuit without
notice to the tenant;
9.5. Agreement by the tenant that the owner may evict the tenant or household
members without instituting a civil court proceeding in which the tenant has the
opportunity to present a defense, or before a court decision on the rights of the parties;
9.6. Agreement by the tenant to waive any right to a trial by jury;
9.7. Agreement by the tenant to waive the tenant's right to appeal, or to
otherwise challenge in court, a court decision in connection with the lease; and
9.8. Agreement by the tenant to pay attorney's fees or other legal costs even if
the tenant wins in a court proceeding by the owner against the tenant. The tenant, however,
may be obligated to pay costs if the tenant loses.
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WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
10. Developer, its successors or assigns, must adhere to state law requirements with
regard to termination of tenancy.
It. Developer shall maintain the improvements on the Property in compliance with all
applicable housing quality standards 24 CFR 982.401 and state and local code requirements
(including but not limited to California Health and Safety Code § 17920.3), and shall keep
the Property free from any unreasonable accumulation of debris or waste materials.
Developer shall also maintain in a healthy condition any landscaping planted on the
Property.
12. Developer covenants and agrees for itself, its successors, its assigns and every
successor in interest to the Property or any part thereof, there shall be no discrimination
against or segregation of any person, or group of persons, on account of race, color, creed,
religion, sex, mental or physical disability, marital status, national origin or ancestry in the
sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the
Developer itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing
Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination
Act of 1975, and all implementing regulations.
13. Not later than fifteen (15) business days prior to the Close of Escrow on the Loan
Agreement, Developer shall submit to the Executive Director a Management Plan in a form
reasonably acceptable to the Executive Director, including, but not limited to, the
components listed below. Approval of the Management Plan must be obtained from the
Executive Director not later than the time for the Close of Escrow. Developer shall manage
the Restricted Units in accordance with the approved Management Plan, including such
amendments as may be approved in writing from time to time by the Executive Director,
for the tern of the income and rent restrictions contained in these Restrictions. The
components of the Management Plan shall include:
13.1. Management Agent. Developer shall submit the name and qualifications
of the proposed Management Agent. The Executive Director shall approve (such approval
not to be unreasonably withheld or delayed) or disapprove the proposed Management
Agent in writing based on the experience and qualifications of the Management Agent.
13.2. Management Agreement. Developer shall submit a copy of the
proposed management agreement specifying the amount of the management fee, and the
relationship and division of responsibilities between Developer and Management Agent.
13.3. Annual Budget and Proiected Cash Flows. Prior to the Closing, and
annually thereafter not less than sixty (60) days prior to the close of each calendar year
thereafter until the Loan is repaid in full, Developer shall submit a projected operating
budget and cash flow to the Executive Director for the following calendar year. The budget
and cash flow shall be in a form that is acceptable to the Executive Director.
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WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
13.4. Tenant Selection Policies. Developer shall include in the Management
Plan the tenant selection policies in accordance with Section 5, above.
14. If at any time the City determines that the units are not being managed or
maintained in accordance with the approved Management Plan, the City shall send the
Developer a detailed description of the management deficiencies (a "Deficiency Notice').
If the deficiencies set forth in the Deficiency Notice are not cured within sixty (60) days
(or such longer period as may be reasonably required to cure the deficiency), with the
exception of any applicable HOME -ARP Program regulations that require a shorter period,
the Executive Director may require Developer to change management practices or to
terminate the management contract and designate and retain a different management agent.
The management agreement shall provide that it is subject to termination by Developer
without penalty, upon thirty (30) days prior written notice, at the direction of the Executive
Director upon failure to cure a Deficiency Notice within the time period specified above.
Within thirty (30) days following a direction of the Executive Director to replace the
management agent in accordance with the terms hereof, the Developer shall select another
management agent or make other arrangements satisfactory to the Executive Director or
designee for continuing management of the units.
14.1. Marketing Plan. The marketing plan will apply to all of the units in the
Project, except the one manager's unit. The Developer shall submit a marketing plan for
review and approval by the Executive Director which approval will not be unreasonably
withheld, conditioned or delayed. The marketing plan must contain procedures that ensure
marketing of the Restricted Units to Extremely Low Income Households, and the HOME -
ARP Units to HOME -ARP Qualifying Populations, with a preference for Chronically
Homeless households for the Restricted Units. Such procedures shall be applicable for
initial rent -up and ongoing marketing of the units throughout the term of these Restrictions.
Developer shall advertise vacancies of the Restricted Units in general distribution
newspapers that circulate throughout the City. Where the Developer utilizes other forms
of advertising, such advertising shall also be distributed throughout the City. The
marketing plan shall be consistent with the County of Orange coordinated entry system.
15. Covenants Binding on the Property.
15.1. The covenants established in these Restrictions and any amendments
hereto approved by the City, Developer, and WISEPIace shall, without regard to
technical classification and designation, be binding for the benefit and in favor of the City
and their respective successors and assigns.
15.2. These Restrictions shall remain in effect for fifty-five (55) years from the
issuance of the Certificate of Completion and the HOME -ARP Units shall be subject to
the HOME -ARP Compliance Period.
15.3. In its discretion, the City may defer repayment of the HOME -ARP Loan
or the City may agree to such reasonable modifications to the requirements of these
Restrictions, as they may determine are necessary for the continued maintenance and
operation of the Restricted Units. The covenants against discrimination shall remain in
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City HOME -ARP Affordability Restrictions on Transfer of property
effect for the period of these Restrictions.
15.4. WISEPIace, as owner of the Project's fee estate and as Lessor under the
Ground Lease with respect to the Project, has joined herein to evidence its consent to
these Restrictions and its agreement that the Restrictions bind the Project, the fee estate,
and the leasehold estate created by the Ground Lease (both landlord and tenant's
interests) and run with the land. WISEPIace agrees and understands that its agreement to
these Restrictions being imposed upon and recorded against the Ground Lease and the fee
estate is part of the consideration for City entering into a Loan Agreement.
16. Developer shall not request disbursement of HOME -ARP Loan until the funds are
needed to pay eligible costs. The City shall have the right to disapprove any request if the
City reasonably determines the request is for an ineligible item or is otherwise not in
compliance with or inconsistent with the Loan Agreement, these Restrictions, the HOME -
ARP Notice and/or the applicable HOME Programs [24 CFR 92.504(c)].
17. Maintenance; Compliance with Law.
During the term of these Restrictions, Developer agrees to maintain all interior and
exterior improvements, including landscaping, on the Project in good condition, repair and
sanitary condition (and, as to landscaping, in a healthy condition) and in accordance with
any Management Plan approved by the City under these Restrictions (including without
limitation any landscaping and signage), as the same may be amended from time to time,
and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state,
county, municipal, and other governmental agencies and bodies having jurisdiction over
the Property and all their respective departments, bureaus, and officials. Developer
acknowledges the great emphasis the City places on quality maintenance to protect its
investment and to provide quality low income housing for its constituents and to ensure
that all City subsidized affordable housing projects within the City are not allowed to
deteriorate due to deficient maintenance. In addition, Developer shall keep the Project free
from all graffiti and any accumulation of debris or waste material. Developer shall
promptly make all repairs and replacements necessary to keep the Project in good condition
and repair and shall promptly eliminate all graffiti and replace dead and diseased plants
and landscaping with comparable approved materials.
In the event that Developer breaches any of the covenants contained in this Section
15 and such default continues for a period of five (5) days after written notice from the City
(with respect to graffiti, debris, waste material, and general maintenance) or thirty (30)
days after written notice from the City (with respect to landscaping and building
improvements), then the City, in addition to whatever other right or remedy it may have
under the Loan Agreement, the other Loan Documents, these Restrictions or at law or in
equity, shall have the right to enter upon the Project and perform or cause to be performed
all such acts and work necessary to cure the default. Pursuant to such right of entry, the
City shall be permitted (but is not required) to enter upon the Project and perform all acts
and work necessary to protect, maintain and preserve the improvements and landscaped
areas on the Project. Developer shall promptly pay to the City, as applicable, the amount
of the expenditure arising from such acts and work of protection, maintenance, and
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City HOME -ARP Affordability Restrictions on Transfer of Property
preservation by the City and/or costs of such cure, including a fifteen percent (15%)
administrative charge.
18. Developer shall prepare, maintain and submit to the City, as appropriate, the
following records and reports in compliance with the HOME -ARP Program and 24 CFR
92.504(c):
18.1. Annual Reports. Developer shall file with the City an Annual Report
(herein referred to as the "Annual Report") by Junel 5th of each calendar year, commencing
with the end of the calendar year (or portion thereof) in which the Ground Lease is
executed. The Annual Report shall contain a certification by Developer as to such
information as the City Executive Director may then reasonably require, including, but not
limited to, the following:
(a) The fiscal condition of the Project, including the Annual Budget and
Project Cash Flow report required by Section 13.3 which shall include a financial statement
for the previous calendar year that includes a balance sheet and a profit and loss statement
indicating any surplus or deficit in operating accounts; a detailed itemized listing of income
and expenses; and the amounts of any fiscal reserves. Such Annual Budget and financial
statement shall be prepared in accordance with generally accepted accounting practices.
The City Executive Director may require that the financial statement be audited at
Developer's expense by an independent certified public accountant acceptable to the
Executive Director.
(b) Any substantial physical defects in the Project, including a
description of any major repair or maintenance work undertaken or needed in the previous
and current years. Such statement shall describe what steps Developer has taken in order
to maintain the Project in a safe and sanitary condition in accordance with applicable
housing and building codes and the property standards set forth in 24 CFR 92.251.
(c) The occupancy of the units indicating the income of each current
resident and the current rents charged each resident and whether those rents include
utilities, including records that demonstrate that the Project meets the requirements of 24
CFR 92.253 for tenant and participant protection under the HOME -ARP Program.
(d) General management performance, including tenant relations and
other relevant information.
(e) Records that demonstrate that the Restricted Units meet the
applicable affordability requirements for the required period of affordability.
(f) Evidence of a currently paid hazard insurance policy in accordance
with the requirements of Section 3 of the City/HOME-ARP Deed of Trust, with a loss
payable endorsement naming the City as a loss payee(s) together with other approved
lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount
sufficient to prevent Developer or City from becoming a co-insurer under the terms of the
policy, but in any event in an amount not less than 100% of the then full replacement cost,
to be determined at least once annually and subject to reasonable approval by the Executive
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City HOME -ARP Affordability Restrictions on Transfer of Property
Director.
(g) Evidence of a currently paid liability insurance policy, naming the
City as additional insured and in a form approved by the City Attorney with coverage as
described in the Loan Agreement.
(h) Termite reports pertaining to the Property every fifth (51) year.
(i) Such other information as may be reasonably required by the
Executive Director or his/her designee.
18.2. Records and Audits. During the HOME -ARP Compliance Period,
Developer shall maintain the following general program records, and make them available
for inspection by the City, the State or HUD:
(a) records which demonstrate that the HOME -ARP Units meet the
property standard specified in 24 CFR 92.251;
(b) records, for each HOME -ARP Unit, which demonstrates that such
units meet the requirements of 24 CFR 92.252;
(c) records which demonstrate compliance with the tenant and
participant protections, as specified in 24 Section 29.253;
(d) records which demonstrate compliance with the Equal Opportunity
and Fair Housing requirements outlined in these Restrictions, including:
(i) data on the extent to which each racial and ethnic group and
single head of household (by gender of head of household) have applied for, participated
in, or benefited from, any program or activity funded in whole or in part with HOME -ARP
funds;
(ii) documentation of actions undertaken to meet the equal
opportunity requirements of 24 CFR 92.350, and 24 CFR Part 75 which implements
Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u);
(iii) documentation and data on the steps taken to implement
Developer's outreach programs to minority -owned and women -owned businesses to meet
the minority outreach requirements of 24 CFR 92.351;
(e) documentation of the steps taken to carry out an affirmative
marketing program in accordance with 24 CFR 92.351, if applicable;
(f) if applicable, records which demonstrate compliance with the
requirements relating to relocation of displaced persons, as described in 24 CFR 92.353.
At a minimum, these shall include project occupancy lists identifying the name and address
of all persons occupying the project property up until the date of the Closing (i.e., the date
on which Developer obtained site control);
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(g) records concerning lead -based paint in accordance with 24 CFR
92.355;
(h) if applicable, records which support any requests for waivers of the
conflict of interest prohibition as stated in 24 CFR 92.356;
(i) records of certifications of contractor qualifications as they relate to
the debarment and suspension requirement as stated in 24 CFR 92.350 and 24 CFR Part
24; and
(j) any other reports required by other monitoring agencies with
jurisdiction over the Property.
18.3. All records pertaining to each calendar year of HOME -ARP funds must be
retained for the most recent five year period, except that records of individual tenant
income verifications, project rents and project inspections must be retained for the most
recent five year period, until five years after the affordability period terminates (24 CFR
92.508). Developer shall cooperate with the City to retain all books and records relevant to
the Loan Agreement for a minimum of five years after the expiration of the Loan
Agreement and any and all amendments hereto, or for five years after the conclusion or
resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is
later. The City, the State, the Office of the Auditor General of HUD, and/or their
representatives shall have unrestricted reasonable access to all locations, books, and
records for the purpose of monitoring, auditing, or otherwise examining said locations,
books, and records with or without prior notice.
18.4. If so directed by the City, the State or HUD upon termination of the Loan
Agreement, Developer shall cause all records, accounts, documentation and all other
materials relevant to the work to be delivered to the City, the State or HUD, as depository.
18.5. All records, accounts, documentation and other materials relevant to the
Project shall be accessible at any time to the authorized representatives of the City, the
State or HUD, on not less than seventy-two (72) hours' prior written notice, for the purpose
of examination or audit.
18.6. Pursuant to 2 CFR Part 200, the City shall perform an annual audit at the
close of each calendar year in which these Restrictions are in effect. Developer shall
reasonably cooperate with City in performing such audit.
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City HOME -ARP Affordability Restrictions on Transfer of Property
19. If an event of default occurs under the terms of these Restrictions, prior to
exercising any remedies hereunder, City shall give Developer written notice of such
default. If the default is reasonably capable of being cured within thirty (30) days,
Developer shall have such period to effect a cure prior to exercise of remedies by the City
under these Restrictions. If the default is such that it is not reasonably capable of being
cured within thirty (30) days, and Developer: (i) initiates corrective action within said
period; and (ii) diligently, continually, and in good faith works to effect a cure as soon as
reasonably possible, then Developer shall have such additional time as is reasonably
necessary to cure the default prior to exercise of any remedies by City. The City shall
provide the Developer's Limited Partner with an opportunity to cure any default. Any
cure made or tendered by Limited Partner shall be accepted as if made by Developer.
The City is a beneficiary of the terms and provisions of these Restrictions and the
covenants herein, both for and in their own right and for the purposes of protecting the
interests of the community and other parties, public or private, for whose benefit these
Restrictions and the covenants running with the land have been provided. Upon the
occurrence of and continuation of an event of default following written notice to Developer
thereof and the expiration of the cure period specified above, the City shall have the right
to exercise all rights and remedies, and to maintain any actions or suits at law or in equity
or other proper proceedings to enforce the curing of such breaches to which they or any
other beneficiaries of these Restrictions and covenants are entitled.
20. Default.
Each of the following shall constitute an "Event of Default" by Developer under
these Restrictions:
20.1. Failure to Make Payments. Developer fails to make any payment due the
City under these Restrictions within thirty (30) days after receiving written notice for said
payment from the City;
20.2. Non -Monetary Failure to Perform. Developer fails to timely perform,
comply with or observe any of the terms, covenants, or conditions of these Restrictions
(other than those provisions elsewhere referred to in this Section 18) and such failure
continues uncured or without Developer commencing to diligently cure for thirty (30) days
after notice thereof in writing is given by the City to Developer, provided that if Developer
has commenced cure but cannot complete such cure reasonably within thirty (30) days,
Developer shall have one hundred and twenty (120) days from the date of notice to cure
such failure without such failure constituting an event of default;
20.3. Senior Loan Document Breach. Any default or breach of Developer which
continues uncured after the expiration of any applicable cure period under the Loan
Agreement (including, but not limited to, the obligations of the Developer under Section 6
of the Loan Agreement), or any Loan Document or any default or breach of Developer
under the Senior Loan Documents, which continues uncured after the expiration of any
applicable cure period thereunder;
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20.4. Voluntary Susnension. The voluntary suspension of Developer's business
or the dissolution or termination of the partnership (if any) constituting Developer;
20.5. Unauthorized Transfer. Developer's sale or other transfer of the Project in
violation of the Loan Agreement;
20.6. Fraud or Material Misstatement or Omissions. Any fraudulent act or
intentional material omission of Developer pertaining to or made in connection with the
Loan, Loan Documents or the Project that is not cured within thirty (30) days after written
notice to Developer, unless such act or omission is not capable of cure;
20.7. Insolvency. A court having jurisdiction shall have made or entered any
decree or order: (i) adjudging Developer to be bankrupt or insolvent; (ii) approving as
properly filed a petition seeking reorganization of Developer or seeking any arrangement
for Developer under the bankruptcy law or any other applicable debtor's relief law or statute
of the United States or any state or other jurisdiction; (iii) appointing a receiver, trustee,
liquidator, or assignee of Developer in bankruptcy or insolvency or for any of their
properties; or (iv) directing the winding up or liquidation of Developer, if any such decree
or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or
undischarged for a period of ninety (90) days, unless a lesser time period is permitted for
cure under any other mortgage on the Property, in which event such lesser time period will
apply under this section as well; or Developer shall have admitted in writing its inability to
pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking
any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence
of any of the events of default in this paragraph shall act to accelerate automatically,
without the need for any action by the City, the indebtedness evidenced by the Note; or
20.8. Project Monies. Developer's intentional misapplication or embezzlement
of Project monies.
21. Reserved.
22. Remedies.
The occurrence of any Event of Default shall, either at the option of the City or
automatically where so specified, relieve the City of any obligation to make or continue
the Loan and shall give the City the right to proceed with any and all remedies set forth in
these Restrictions or otherwise available at law or in equity or by statute (and all of the
City's rights and remedies shall be cumulative), including but not limited to the following:
22.1. Acceleration of Note. The City shall have the right to cause all indebtedness
of the Developer to the City under the Note, together with any accrued interest thereon, to
become immediately due and payable. The Developer waives all right to presentment,
demand, protest or notice of protest, or dishonor. The City may proceed to enforce payment
of the indebtedness and to exercise any or all rights afforded to the City as a creditor and
secured party under the law, including the Uniform Commercial Code, including
foreclosure under the City/HOME-ARP Deed of Trust. The Developer shall be liable to
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City HOME -ARP Affordability Restrictions on Transfer of Property
1
pay the City on demand all expenses, costs and fees (including, without limitation,
reasonable attorneys' fees and expenses) paid or incurred by the City in connection with
the enforcement of this provision, provided that such expenses, costs and fees shall be
subordinate to the Senior Loan made to Developer and the Senior Loan Documents.
22.2. Specific Performance. The City shall have the right to mandamus or other
suit, action or proceeding at law or in equity to require Developer to perform its obligations
and covenants under these Restrictions or to enjoin acts on things, which may be unlawful,
or in violation of the provisions of these Restrictions. The Developer shall be liable to pay
the City on demand all expenses, costs and fees (including, without limitation, reasonable
attorneys' fees and expenses) paid or incurred by the City in connection with the
enforcement of these Restrictions.
22.3. Right to Cure at Developer's Expense. The City shall have the right to cure
any monetary Event of Default by Developer under these Restrictions. The Developer
agrees to reimburse the City for any funds advanced by the City to cure a monetary default
by Developer upon demand therefore, together with interest thereon at the rate of twelve
percent (12%) per annum or the maximum rate permitted by law, whichever rate is lesser,
from the date of expenditure until the date of reimbursement.
22.4. Remedies Cumulative. No right, power, or remedy given to the City by the
terms of these Restrictions is intended to be exclusive of any other right, power, or remedy;
and each and every such right, power, or remedy shall be cumulative and in addition to
every other right, power, or remedy given to the City by the terms of any such instrument,
or by any statute or otherwise against Developer and any other person. Neither the failure
nor any delay on the part of the City to exercise any such rights and remedies shall operate
as a waiver thereof, nor shall any single or partial exercise by the City of any such right or
remedy preclude any other or further exercise of such right or remedy, or any other right
or remedy.
22.5. Waiver of Terms and Conditions. No waiver of any default or breach by
Developer hereunder shall be implied from any omission by the City to take action on
account of such default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the waiver, and such waiver shall be
operative only for the time and to the extent therein stated. Waivers of any covenant, term,
or condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term, or condition. The consent or approval by the City to or of any
act by Developer requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under these Restrictions or the Loan Documents, nor shall it invalidate any act
done pursuant to notice of default, or prejudice the City in the exercise of any right, power,
or remedy hereunder or under the Loan Documents, unless in the exercise of any such right,
power, or remedy all obligations of Developer to City are paid and discharged in full.
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City HOME -ARP Affordability Restrictions on Transfer of Property
23. The covenants and agreements contained herein shall run with the land and not be
personal obligations of Developer. Upon the sale, conveyance or other transfer of the
leasehold interest in the Property (a "Transfer") and the assumption of the obligations
hereunder by a transferee, Developer's liability for performance shall be terminated as to
any obligation to be performed hereunder after the date of such Transfer.
24. 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-ARP Loan Note and the
City/HOME-ARP 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 92.504].
25. Additional Terms.
25.1. Indemnity. To the fullest extent permitted by law, the Developer agrees to
indemnify, hold harmless and defend the City and its elected officials, officers, governing
members, employees, attorneys and agents (collectively, the "Indemnified Parties"), from
and against any and all losses, damages, claims, actions, liabilities, costs and expenses of
any and every conceivable nature, kind or character (including, without limitation,
reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and
amounts paid to discharge judgments) to which the Indemnified Parties, or any of them,
may become subject to under any statutory law (including federal or state securities laws)
or at common law or otherwise, arising out of or based upon or in any way relating to:
(a) these Restrictions or the execution or amendment thereof in
connection with the transactions contemplated thereby;
(b) Developer's ownership of a leasehold interest in or operation of the
Property and the Project or any act or omission of the Developer or any of its agents,
contractors, servants, employees or licensees in connection with the Property and the
Project, the operation of the Project, or the condition, environmental or otherwise,
occupancy, use, possession, conduct or management of work done in or about, or from the
planning, design, acquisition, installation, operation or rehabilitation of, the Project or any
part thereof,
(c) any lien or charge upon payments by the Developer to the City, or
any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments,
impositions and other charges imposed on the City in respect of any portion of the Project;
(d) any violation of any applicable environmental law, rule or regulation
with respect to, or the release of any toxic substance from, the Property or the Project or
any part thereof; or
(e) any untrue or misleading statement of a material fact by the
Developer, which Developer knew or should have known to be untrue or misleading, that
is contained in any Loan Document or any of the documents or instruments relating to said
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City HOME -ARP Affordability Restrictions on Transfer of Property
Loan Documents that the City relied upon in making the Loan; except to the extent such
damages are caused by the active negligence or willful misconduct of such Indemnified
Party. In the event that any action or proceeding is brought against any Indemnified Party
with respect to which indemnity may be sought hereunder, the Developer, upon written
notice from the Indemnified Party, shall assume the investigation and defense thereof,
including the employment and payment for of counsel selected by the Indemnified Party,
and shall assume the payment of all expenses related thereto, with full power to litigate,
compromise or settle the same; provided that the Indemnified Party shall have the right to
review and approve or disapprove any such compromise or settlement.
25.2. Time. Time is of the essence in these Restrictions.
25.3. Construction. Except where the context otherwise requires, words
imparting the singular number shall include the plural number and vice versa, words
imparting persons shall include firms, associations, partnerships and corporations, and
words of either gender shall include the other gender.
25.4. Waiver of Jury Trial. Unless prohibited by Federal, State or local laws,
each party to these Restrictions hereby expressly waives any right to trial by jury of any
claim, demand, action or cause of action arising under any Loan Document or in any way
connected with or related or incidental to the dealings of the parties hereto or any of them
with respect to any Loan Document, or the transactions related thereto, in each case
whether now existing or hereafter arising, and whether sounding in contract or tort or
otherwise; and each party hereby agrees and consents that any such claim, demand, action
or cause of action shall be decided by court trial without a jury, and that any party to these
Restrictions may file an original counterpart or a copy of this section with any court as
written evidence of the consent of the parties hereto to the waiver of their right to trial by
jury.
25.5. Nonliability. By accepting or approving anything required to be performed
or given to City under these Restrictions, 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.
25.6. Obligations Unconditional and Independent. Notwithstanding the existence
at any time of any obligation or liability of City to Developer, or any claim by Developer
against City, in connection with these Restrictions 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 these Restrictions; or (b) to claim that the existence of any
such obligation, liability or claim excuses the nonperformance by Developer of any of its
obligations under these Restrictions.
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City HOME -ARP Affordability Restrictions on Transfer of Property
26. Whenever this Agreement or any other Loan Document references a request that
requires the approval or consent of a party, then each party shall act reasonably and in good
faith in making any such request and responding to the request, but in no event shall either
party be required to agree to terms that are not specified in this Agreement or waive any
rights or privileges set forth herein. Whenever this Agreement references a party having
"sole and absolute" discretion, then that party may exercise its discretion for any reason or
no reason at all as that party may determine in its exclusive and independent judgment.
27. 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 U.S. mail at its address as follows:
If to Developer: During Construction:
North Broadway Housing Partners LP
c/o 17701 Cowan Ave., Suite 200
Irvine, CA 92614
Attention: Chief Executive Officer
Following construction:
North Broadway Housing Partners LP
c/o Jamboree Housing Corporation
17701 Cowan Ave., Suite 200
Irvine, CA 92614
Attention: Asset Management
With a copy to: Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attention: Patrick D. McCalla
With a copy to: WISEPIace
1411 N. Broadway
Santa Ana, CA 92706
Attention: Brateil Aghasi
Limited Partner Bank of America, N.A.
100 Federal Street
MA5-100-04-11
Boston, MA 02110
Attention: Asset Management
Facsimile: 617-346-2257
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WISEPIace Pennanent Supportive Housing
City HOME -ARP Affordability Restrictions on Tmnsfer of Property
and Banc of America CDC Special Holding Company, Inc.
100 Federal Street
MA5-100-04-11
Boston, MA 02110
Attention: Asset Management
Facsimile: 617-346-2257
and Buchalter, a Professional Corporation
1000 Wilshire Blvd., Suite 1500
Los Angeles, CA 90017-2457
Attn: Michael A. Williamson, Esq.
If to Lessor: WISEPIace
1411 N. Broadway
Santa Ana, CA 92706
Attn: Executive Director
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.
{signatures on following page}
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WISEPIace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
IN WITNESS WHEREOF, the parties hereto have caused these Affordability
Restrictions on Transfer of Property to be executed on the date set forth hereinabove.
ATTEST:
Jennifer L. Hall
Clerk of the Co cil
Dated:
APPROVED AS TO FORM:
SONIA R. CARyVAALHO, City Attorney
By:
Matthew Cody
Best, Best & Krieger
Special Counsel for the City
Dated:
RECOMMENDED
Michael L.
Executive 1
Agency
AL:
CITY OF SANTA ANA
Kristine
City Ma
24
WISEPIace Permanent Supportive Housing
City HOME -ARP Afrmdability Restrictions on Transfer of Property
Signed in Counterpart
IN WITNESS WHEREOF, the parties hereto have caused these Affordability
Restrictions on Transfer of Property to be executed on the date set forth hereinabove.
Dated: 3 y�6`,+3
APPROVED AS TO FORM:
SONIA R. CARVALHO, Cit
By:
Matthew (
Best, Best
Special Cc
Dated:
for the City
RECOMMENDED FOR APPROVAL:
Michael L. Garcia
Executive Director
Community Development Agency
CITY OF SANTA ANA &C {tu VL-" 03
Ci n /yl u!I iCi - cp ,PmAtTe
Kristine Ridge
City Manager
Dated: LFIAO%V3
24
WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
� iyred in Ceunterpari
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 March 15, 2023 before me, Claudia M. Femandez-Shaw, Notary Public
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person ) whose name re
subscribed to the within instrument and acknowledged to me thattiVahAMey executed 4he same in
eir authorized capacity(iest and that by reir signature(o on the instrument the
person(5�,or the entity upon behalf of which the persons}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.
hand and
CLAUDIA M. FERNANDEZ-SHAM
Notary Public - California
:I Orange County
Commission t 2388597
1 o My Comm. Expires Jan 25, 2026
DEVELOPER
NORTH BROADWAY HOUSING PARTNERS LP,
a California limited partnership
By: JHC-North Broadway LLC,
a California limited liability company,
its managing general partner
By: Jamboree Housing Corporation,
a California non-profit public benefit
corporation, its managing member
By: /I/4/bli l
Nam' / r_>� G'fi�u/e5 /jJ�tSS/�
Title:BN/d)c D&CW OWT CA-
25
WISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
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 Mar(ar(l 15' '2 D Z 3 before me, Cristina Cota-Nunez, Notary Public
(insert name and title of the officer)
personally appeared IM(&h0rI Uri" 1(5 OAUSsle.
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
CRISTINA COTA•NUNEZ
Notary Public - California
•M1 Orange County
Commission 4 Z379232 —
..o '� My Camm. UPires Cc[ 20. 2025
GROUND LESSOR JOINDER
THE UNDERSIGNED ("Ground Lessor") is joining in the execution of these
Affordability Restrictions on Transfer of Property ("Restrictions") to evidence its consent
to these Restrictions and its agreement that the Restrictions bind the fee simple interest in
the Property and the leasehold interest created by the Ground Lease, and further these
Restrictions run with the land; provided that, by recording these Restrictions, the City, on
behalf of itself and its successors, and assigns and on behalf of all other parties who,
pursuant to the terms of these Restrictions, shall be entitled to the benefit thereof, shall be
deemed to have agreed that: (i) Ground Lessor's execution of this joinder to the
Restrictions shall not give rise to any personal liability or obligation under these
Restrictions or any of the Loan Documents on the part of the Ground Lessor, its
successors and assigns or any present or future officer, director, employee, trustee,
member, agent or advisor of any of the foregoing, and (ii) all notices of default hereunder
and under the other Loan Documents to the Trustor shall also be given to the Ground
Lessor, and the Ground Lessor shall have the right to cure any such default on the terms
and conditions set forth in the applicable Loan Document and Beneficiary shall accept or
reject such cure on the same basis as if made by the Trustor.
The address for notices to Ground Lessor is:
WISEPIace
1411 N. Broadway
Santa Ana, CA 92706
Attn: Executive Director
Dated: * 2023
WISEPIace, a California nonprofit public benefit corporation
!n
Brateil Aghasi
Executive Director
26
wISEPlace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of Property
CALIFORNIA 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 I
California(/W1/�,��1�
County of bf, f ,�� .
On D311612 . before me, �/HVI��io—LxAi i/ tyR,la '
Date Here Insert Name and Title o e bfficer
personally appeared
of
who proved to me on the basis of satisfactory evidence to be the person) whose namesubscribed
to the within instrument and acknowledg to me that he hey executed the same in his er heir
authorized capacity(io, and that by his a h heir signature on the instrument the person, or the entity
upon behalf of which the person( acted, executed the instrument.
DAVID OCIEL UM
Notary Public • California
orange county
CommlHbn N 3310113
MY Comm. EaPIM lup 3/, 3033
Place Notary Seal andfor Stamp Above
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
Signature
OPTIONAL
hand and official
Signature of Notary
Completing this information can deter alteration of the document or v
fraudulent reattachment
ofthisform ttoo�a(n�,unintend d documen ..
Description of Attached Document J C 1 T 'VR O031V I-�'R � 1 61i'S
Title or Type of DocumerttlA v�
Document Date: V7(2K, ayy S NumberofPages: rT `r'1
Signer(t) Other Than Named Above: ND pLLSI G/y�i�S
Capacity(ies) Claimed by Sig1n�e�r�s�)�y�L
Signer's Name: J)4kr6 T:)L_ (
❑ Corporate Officer — Title(s)7
❑ Partner— ❑ Limited ❑ General
'% Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
02019 National Notary Association
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited
❑ General
❑ Individual
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
EXHIBIT A
LEGAL DESCRIPTION
27
WISEPIace Permanent Supportive Housing
City HOME -ARP Affordability Restrictions on Transfer of property
Order No: 09196820-917-CG8-KRE
EXHIBIT "A"
All that certain real property situated in the County of Orange, State of California, described as follows
A PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF
PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12, 1869, IN
BOOK "B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17Tn JUDICIAL DISTRICT IN AND
FOR LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN
ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE
STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A
CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL
RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF
SYCAMORE STREET SOUTH 00° 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE
POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 89' 58' 21" WEST, 312.17 FEET TO THE
CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 00°
16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J.
MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY;
THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 89° 58' 10"
EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND
ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO
SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12, 1869 IN BOOK "B", PAGE 410 OF
JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES
COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08
FEET; THENCE SOUTH 89058'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF
SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH
00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING.
SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023
AS INSTRUMENT NO.2023000018589. OFFICIAL RECORDS OF SAID COUNTY
APN: 398-523-04
E1""A
If
XH��T �+
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ORANGE,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
A PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL
DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS
ENTERED SEPTEMBER 12, 1868, IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE
DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES
COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND
SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067,
RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE
STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT
CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929
IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY,
CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE
STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET
TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 89' 58'
21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY
ALONG SAID CENTERLINE OF BROADWAY NORTH 00° 16' 10" EAST, 75.00 FEET TO
THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX
RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE
COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T.
J. MULLINIX SOUTH 89° 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE
EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS
DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE
SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF
JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND
FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID
WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10"
EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE
STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET,
SOUTH 00004'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING.
SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06
RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL
RECORDS OF SAID COUNTY.
APN: 398-523-04