HomeMy WebLinkAbout815 N. HARBOR, L.P. (HOME INVESTMENT PARTNERSHIP PROGRAM FUNDS) 2-2015A -2015 -029
FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 6103 & 27383
When Recorded Mail to:
City of Santa Ana
Community Development Agency
20 Civic Center Plaza (M -25)
P.O. Box 1988
Santa Ana, California 92702
Attention: Housing Manager
SPACE ABOVE THIS LINE FOR RECORDING USE
FREE RECORDING REQUESTED
[Government Code Section 6103]
LOAN AGREEMENT
by and between the
CITY OF SANTA ANA
F.W4I
815 N Harbor, L.P.
A California Limited Partnership
(815 N. Harbor Boulevard, Santa Ana, California)
Dated: June 26, 2015
LOAN AGREEMENT
HOMEPROGRAM
THIS LOAN AGREEMENT (the "Agreement ") dated, for identification purposes only,
as of June 26, 2015, 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 815 N Harbor,
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 seq.,) 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 has purchased certain property commonly known 815 N.
Harbor Boulevard, 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
development of a multifamily residential housing development on the Property.
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 develop 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 development of the Property, thereby eliminating blight while
expanding the supply of decent, safe, sanitary and affordable housing.
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.
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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 92.504 (c) (13)x.
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 terns 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 IIousing" 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 docurnent 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 5 of this Agreement.
'Building Permit' means the building permit(s) issued by City that are
required for the construction, if any.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs.
"Calendar Year" means each consecutive twelve (12) month period from
January 1 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 3 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 3.13 in order to secure the Loan Note.
"City /HOME Loan Note" means that certain promissory note in the
original principal amount of $380,000.00, 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.
"County" means the County of Orange, California.
"Developer" means 815 N. Harbor, LP, a California limited
partnership, its successors and assigns.
"Developer's Representative" shall mean the Chief Executive Officer of
the General Partner of Developer or his/her designee.
"Event of Default" has the meaning set forth in Article 18.
"Executive Director" means the Executive Director of the Community
Development Agency, or her designee.
"General Partner(s)" means the General Partners of Developer,
consisting of OHDC 815 N Harbor, LLC (the Managing General Partner) and C &C 815
N Harbor, LLC (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 under any applicable law, including without limitation the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. §§ 9601, et seq., as amended.
years.
"HOME Compliance Period" the compliance period is twenty (20)
"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).
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"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 12.5.
"Laws" means all statutes, laws, ordinances, regulations, orders, writs,
judgments, injunctions, decrees or awards of the United States or any state, county,
municipality or other Governmental Authority.
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any lien or security
interest).
"Limited Partner" means the Limited Partners of Developer, C &C and
its successors and assigns.
"Loan Documents" means, collectively, this Agreement, the City /HOME
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 Orange County, California PMSA, 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 "AMP'.
"Partnership Agreement" means the Agreement of Limited Partnership
of 815 N. Harbor, LP dated August 30, 2013.
"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 construction of all of the affordable units on the
Property by Developer pursuant to this Agreement.
"Project Budget" means the line -item 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 815 N. Harbor Boulevard,
within the City of Santa Ana, and is more filly described in the "Legal Description" of the
Property attached hereto as Exhibit A and incorporated herein by reference.
"Senior Lender" means Grandpoint Bank or any other holder of the
Senior Loan Note(s).
"Senior Loan" shall mean the senior loan being made by Grandpooint
Bank, concurrent to the City Loan for payment of a portion of the acquisition and
construction costs, and shall include any subsequent loan that refinances the initial Senior
Loan.
"Senior Loan Deed of Trust" means the deed of trust securing the Senior
Loan by encumbering the Property.
"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 Grandpoint Bank.
"Term" the terms and conditions contained herein shall remain in effect
for fifty -five (55) years from the date of full occupancy of the Project.
"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 Singular 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 unless a different document is named.
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References to subparagraphs shall be construed 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 limitation."
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. SCOPE OF WORK/ PROJECT BUDGET
A "Scope of Work" 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 -item 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.
3. CITY LOAN
A. Amount and Purpose. Subject to the tenns and conditions of this
Agreement, City agrees to make a loan of HOME fiends to Developer in the principal
amount of up to $380,000 (the "City /HOME Loan") for the construction of the
development on the Property.
B. 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 /HOME Loan Deed of Trust in the form attached
hereto as Exhibit E. The City /HOME Deed of Trust shall be a deed of trust encumbering
the Property, subordinate to the Senior Loan(s) made to Developer.
C. City /HOME Loan Terms. The terms and conditions of the City /HOME
Loan are as set forth in the City /HOME Loan Note which is a residual receipts note. The
HOME compliance period is twenty (20) years, commencing on the date that all work is
complete and the Property is fully occupied.
4. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS
4.1 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 City,
signed by the authorized officer or officers of Developer, with such signature(s)
acknowledged where necessary, each of the following documents:
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(i) the Loan Agreement;
(ii) The City /HOME Loan Note;
(iii) The City /HOME 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 (1970 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 City /HOME Loan
Amount, showing Developer as the fee owner of the Property and insuring the
City /HOME Deed of Tnist to be valid priority liens 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 City, in the form 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 pursuant 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 its own benefit, City 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 17 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 at the time of execution of all documents, 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.
4.2 Disbursement Procedures for Loants
(a) The Loan proceeds shall be disbursed to Developer to finance the constriction of
the Property (as evidenced in Exhibit C). The Loan proceeds shall not be used for any
purpose other than for construction costs, including a Developer fee and soft costs related to
development of the Project (costs all subject to City's prior review).
(b) Developer shall provide City with monthly constriction reports regarding status
of constriction and notify City staff of construction meetings.
4.3 Any Disbursement. City's obligation to make any disbursement of the funds
(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 inspections performed or other reliable infonnation, that the construction 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 execution of the documents that would give rise to a
colorable claim against the Property (e.g., 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 loan 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.
4.4 Final Disbursement. City's obligation to disburse that portion of the construction
portion retained pursuant to Section 4.10 is subject to the satisfaction of the following
additional conditions precedent:
(a) Construction Complete. The constriction shall be complete.
(b) Certificate of Occupancy Issued. Any portion of the construction
requiring inspection or certification by any Govermnental Authority shall have been
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inspected and certified as complete. Developer shall request that the Building Department
issue an Inspection Record Card with signed final inspection approvals, 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 -five (35) days shall have passed since the
recording of a valid notice of completion for the construction, 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 construction, 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.
4.5 Waiver of Conditions. The conditions set forth pertaining to City's obligation to
make disbursements are for City's benefit only and the Executive Director may waive all
or any part of such rights by written notice to Developer.
4.6 Disbursement Requests. The construction proceeds shall be disbursed on a
line -item by line -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 oiIly upon Developer's written request in the form of a
Disbursement Request showing all costs which Developer intends to fund with such
disbursement, itemized in such detail as City may reasonably require, accompanied in
each case by (a) invoices and lien releases satisfactory to City, including in any event
partial lien releases executed by each contractor and subcontractor who has received any
payment for work performed, and (b ) all other documents and information reasonably
required by City. Disbursement Requests shall be submitted no less than ten (10)
Business Days prior to the date of the requested disbursement, and shall not be submitted
more often than monthly.
Prior to each disbursement by City of proceeds of the City Loan, Borrower shall deliver
to City and to Bank 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 Bank in order to provide information for evaluating the requested disbursement
pursuant to customary constriction lending practices of institutional lenders in Southern
California.
City and Bank 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
Bank's "Disbursement/Change Order Approval Notice ". City and Bank shall have the
right, but not the obligation, to discontinue processing Draw Requests unless and until
receipt of notification from the other of approval or disapproval of each outstanding
Draw Request.
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4.7 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.
4.8 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) construction costs for any matters not covered by a
specific line item have been or will be incurred, or (c) the undisbursed portion of the
constriction portion is or may be insufficient to pay all construction costs that may be
payable under the City Loan Documents or otherwise in connection with the
constriction, Developer shall, within ten (10) days after it receives written notice thereof
from City of any of the foregoing matters, do one or more of the following:
(a) provide satisfactory evidence to City that Developer has
previously paid such excess or otherwise provided for such insufficiency (collectively,
the "Excess Cost ") with funds from a source other than the City Loan;
(b) reallocate sufficient Rinds to pay the Excess Cost from fiords
allocated to "Contingency" in the Project Budget; provided, however, that the
Executive Director's consent to any such reallocation shall be required; or
(c) deposit an amount equal to the Excess Cost in a non - interest
bearing account (the "Overran 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 construction portion proceeds in the manner described in
subsection 9.3(e).
4.9 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 shall be reallocated to "Contingency" and thereafter be available for
disbursement in accordance with the terns of this Agreement.
4.10 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
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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.
4.10.1 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.
4.11 Waiver of Disbursement Conditions. Unless City otherwise agrees in
writing, the making by City of any disbursement with knowledge that any condition to
such disbursement is not fulfilled shall constitute a waiver of such condition only with
respect to the particular disbursement made
4.12 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 Construction
Contract.
4.13 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 of the 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 teens of this Agreement.
4.14 Closing Costs and Fees. Developer shall pay (a) all recording fees and charges
on any document recorded pursuant to this Agreement, and (b) the premium for the title
insurance required hereunder.
5. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE
PROPERTY
5.1 Use Covenants and Restrictions.
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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 date of full occupancy of the
Project. The HOME restrictions for the two (2) HOME assisted units shall be enforced until
the date that is twenty (20) years after the date on which the City reports the Project as
complete to the Department of Housing and Urban Development. Developer shall report to
City which units are the HOME assisted units (by address number) upon lease up and any
subsequent changes thereto.
B. The Project shall consist of sixty nine affordable units, with two (2) three -
bedroom HOME assisted units.
C. At initial lease up, households in the HOME assisted units cannot earn more than
50% of AMI, 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 twenty (20) 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
At the time of project completion and income lease -up, Developer and/or Owner must
provide the unit number for each HOME unit to the City. The two (2) HOME units will be
floating units.
D. Maximum Occupancy will be two (2) people per room plus one (1). For example for a
three- bedroom unit, seven (7) people would be maximum occupancy.
E. Affordable rents shall be governed by the HOME Regulations 24 CFR section 92.2.
F. 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. Leases must be consistent with
HOME Regulations 24 CFR section 92.209(g).
5.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents
may be recalculated to allowable rental amounts at the time of initial lease -up following
completion of construction in accordance with any changes in allowable rent and income
tables as published by HUD.
HOME Assisted Units
# of Units Max Gross Monthly ent
Very Low 3 Bedroom 2 $ 1,252
(1) In no event shall the rent charged to the HOME assisted units be more
than that amount of the low rent as published by HUD, as anlended from
time to time.
(2) Remaining non -HOME units will be based on TCAC rents.
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5.3 Rent Increases: On an annual basis, the City shall provide the Developer with the
maximum allowable schedule of rents for the Property. In no event can Developer charge
any tenant more than such amount.
5.4 Prohibited Fees. The Developer and 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 Owner can charge reasonable application fees to prospective tenants;
other fees (such as laundry) 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.
5.5 Maintenance of the Property. 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 Final Inspection Card from the City's Planning and Building Agency 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 and safety defects
during the affordability period.
5.6 Obligation to Refrain from Discrimination. Developer covenants and agrees for
itself, its successors, its assigns and every successor in interest to the Property or any part
thereof, that there shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, 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 under or
through him establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall
nun with the land and shall remain in effect for the term of the Agreement.
6. DEFAULTS AND REMEDIES
6.1 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 perfonmance constitutes
a default under the Agreement. If any party defaults in performance of its obligations,
covenants or agreements hereunder, the defaulting party shall be entitled to cure the default
in accordance with this section. The injured party shall give written notice of default to the
party in default, specifying the default complained of by the injure 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
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notice, commence to cure, correct or remedy such failure or delay and shall complete such
cure, correction, or remedy with reasonable diligence. Upon a default by Developer which
is not cured within thirty (30) days following service of said notice, unless such default
cannot reasonably be cured within thirty (30) days, in which case Developer shall have such
additional time as reasonably necessary to complete such cure but no more than ninety (90)
days, the City shall have the right to terminate this Agreement by delivery of written notice
of termination to Developer.
6.2 Institution of Legal 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.
6.3 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 sarne or different times, of any other rights or
remedies for the same default or any other default by the other party.
6.4 Damages. In the event that the City is liable for damages to Developer, such liability
shall not exceed costs incurred by the Developer in the performance of this Agreement and
shall not extend to compensation for loss of firture 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 party's obligations.
6.5 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
judgment, decree or order for the payment of money obtained in any action to enforce the
obligation of Developer to repay the loan evidenced by such documents shall be enforceable
against Developer only to the extent of Developer's interest in the Property.
7. GENERAL PROVISIONS AND WARRANTIES
As a material inducement to City to enter into this Agreement, Developer
represents and warrants as follows:
7.1 Formation, Qualification and Compliance. Orange Housing Development
Corporation, the sole member the managing general partner of Developer (a) is a non-
profit public- benefit corporation, validly existing and in good standing under the laws of
the State of California, (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 Govennnental Authority that are necessary for the transaction of its business.
7.2 Execution and ,Performance of Loan Documents.
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7.2.1 Developer has all requisite authority to execute and
perform its obligations trader the Loan Documents.
7.2.2 The execution and delivery of Developer of, and the
perforrnance 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 under, 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.
7.2.3 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.
7.2.4 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 ir: the Loan
Documents.
7.3 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
1.6
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
infonnation famished 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, claim, 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.
7.4 No Material Adverse Chance. 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.
7.5 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.
7.6 Governmental Requirements. 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
amendment of, any applicable general plan, subdivision and parcel map requirement;
environmental requirements, including the requirements of the California Enviromnental
Quality Act and the National Enviromnental 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.
7.7 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.
7.8 Litigation. 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.
7.9 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.
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7.10 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.
711 Conflicts of Interest. No member, 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.
7.12 Nonliability of Citv 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.
7.13 No Assignment. Developer expressly acknowledges and agrees that the City has
only agreed to assist the Developer as a means by which to induce the 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.
7.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under
federal and state laws.
7.15 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 under 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 construction of the Property.
7.16 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.
g. CONDITIONS FOR CONSTRUCTION
8.1 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 constriction and conversion of
the Property.
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8,2 Commencement and Completion of Construction.
The construction shall be considered complete for purposes of this Agreement
only when (a) all work described has been completed and fully paid for, and (b) all work
requiring inspection or certification by Govemrnental Authority has been completed and
all requisite certificates, approvals and other necessary authorizations (including required
final certificates of occupancy) have been obtained.
8.3 Change Orders. The Construction 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 Bank's
prior written approval of the Executive Director and Bank.
8.4 Entry and Inspection. At all times prior to completion of the construction,
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 construction are
stored, (b) the right to inspect all labor performed and materials furnished for the
construction, and (c) the right to inspect and copy all documents pertaining to the
construction.
8.5 Compliance 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 the Housing
and Community Development Act of 1992 requires that economic opportunities
generated by HUD financial assistance for housing and commrmity 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:
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"(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. 1701u ( "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 of HUD 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.
(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.
(1) Noncompliance with HUD's regulations in 24 CFR part 135 may
result in sanctions, termination of this contract for default, and debannent 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
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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) hire(s) full time employees, rather than
volunteer labor or materials, Section 3 is applicable and all disclosure and reporting
requirements apply.
8.6 Construction Information. From time to time during the course of the
constriction, within ten (10) Business Days following City's written demand therefore,
Developer shall furnish requested reports of project costs, progress schedules and
contractors' cost breakdowns for the construction, 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, loan fees, interest during construction and contractors' overhead.
8.7 Protection Aaainst Liens: Developer shall diligently file a valid Notice of
Completion upon completion of the constriction, diligently file a notice of cessation in
the event of a cessation of labor on the construction for a period of thirty (30) days or
more, and take all actions reasonably required to prevent the assertion of claims of lien
against the Property. In the event that any claim 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 thereof by
delivering to City a surety bond complying with the requirement of applicable laws for
such release, or (e) take such other action as City may require to release City from any
obligation or liability with respect to such stop notice or claim.
9. FEDERAL (HOME PROGRAM) COVENANTS
9.1 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.
9.2 Tenant and Participant Protection. Developer shall comply with the
requirements of 24 CFR 92.253.
9.3 Handicapped Accessibility. Developer shall comply with (a) Section
504 of the Rehabilitation Act of 1973, 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 35 -36
in order to provide handicapped accessibility to the extent readily achievable.
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9.4 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.
9.5 Maintenance of Drug -Free Workplace. Developer shall certify that
Developer will provide a drug -free workplace in accordance with 24 CFR 84.13.
9.6 Lead -Based Paint. Developer shall comply with the requirements of the
Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing
regulations at 24 CFR 35, as applicable.
9.7 Affirmative Marketine. 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).
9.8 Equal Opportunity and Fair Housing. Developer shall carry out the
construction and perform its obligations under this Agreement in compliance with all of
the state and federal laws and regulations regarding equal opporhmity and fair housing
described in 24 CFR 92.350.
9.9 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.
9.10 Other Program Requirements. Developer shall carry out each activity
in compliance with all federal laws and regulations described in subpart H of 24 CFR 92,
except that Developer does not assume City's responsibilities for enviromnental review in
24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359.
9.11 Request for Disbursements of Funds. Notwithstanding anything
contained in this Agreement to the contrary, Developer may not request disbursements of
funds under this Agreement until the funds are needed for payment of eligible costs (such
funds shall be used solely towards the development of the Property). The amount of each
request shall be limited to the amount needed.
9.12 Eligible Costs. Developer shall use HOME Funds to pay costs defined as
"eligible costs" pursuant to 24 CFR 92.206.
9.13 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.
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9.14 Uniform Administrative Requirements. Developer shall comply with the
requirements and standards of OMB Circular No. A -122, "Cost Principles for Non - Profit
Organizations," and with the following Attachments to OMB Circular No. A -110:
(a) Attachment A, "Cash Depositories ", except for paragraph 4
concerning deposit insurance;
(b) Attachment B, 'Bonding and Insurance ";
(c) Attachment C, "Retention and Custodial Requirements for
Records ", except that in lieu of the provisions in paragraph 4, the
retention period for records pertaining to individual CDBG
activities starts from the date of submission of the annual
performance and evaluation report, as prescribed in 24 CFR
570.507, in which the specific activity is reported on for the final
time;
(d) Attachment F, "Standards for Financial Management Systems ";
(e) Attachment H, "Monitoring and Reporting Program Performance ",
Paragraph 2;
(f) Attachment O, "Procurement Standards."
9.15 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.
9.16 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 construction 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.
9.17 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 (5"') 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 HOME guidelines (24 CFR 92.252- 92.253).
(B) HOME assisted units continue to qualify as affordable housing despite a
temporary non- comptiance caused by increases in the incomes of existing tenants
23
if actions satisfactory to HUD are being taken to ensure that all vacancies are
filled in accordance with this section until the non - compliance is corrected.
9.18 Other HOME Program Requirements. Developer shall comply with all
other applicable requirements of the HOME Program.
9.19 Controlling Covenants. If there is a discrepancy between State and Federal
law with regard to any of the aforementioned covenants, the more stringent shall apply.
10. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION
AND REPAIR OF PROPERTY
10.1 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:
10.2 Alterations and Repair. 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 mariner, any Improvement (or other aspect or portion
of the Property) that is damaged or destroyed from any cause.
10.3 Compliance. Developer shall comply with all laws and requirements of
Governmental Authority (including, without limitation, all requirements relating to the
obtaining of Governmental Authority approvals), all Governmental Authority approvals
and all rights of third parties, relating to Developer, the Property or Developer's business
thereon.
10.4 Taxes and Impositions. Developer shall pay, prior to delinquency, all
of the following (collectively, the "Impositions "): (a) all general and special real property
taxes and assessments imposed on the Property; (b) all other taxes and assessments and
charges of every kind that are assessed upon the Property (or upon the owner and /or
operator of the Property) and that create or may create a lien upon the Property (or upon
any personal property or fixtures used in connection with the Property), including,
without limitation, non - governmental levies and assessments pursuant to applicable
covenants, conditions or restrictions; and (c) all license fees, taxes and assessments
imposed on City (other than City's income or franchise taxes) which are measured by or
based upon (in whole or in part) the amount of the obligations secured by the Property. If
24
permitted by law, Developer may pay any Imposition in installments (together with any
accrued interest).
10.4.1 Right to Contest. Developer shall not be required to pay any
Imposition so long as (a) its validity is being actively contested in good faith and by
appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction
that leaving such Imposition unpaid pending the outcome of such proceedings could not
result in conveyance of the Property in satisfaction of such Imposition or otherwise
impair City's interests under the Loan Documents, and (c) Developer has furnished City
with a bond or other security satisfactory in an amount not less than 100% of the
applicable claim (including interest and penalties).
10.4.2 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.
10.4.3 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.
10.5 Project Operating Budget. Developer must promptly deposit all
project income directly into a segregated depository account established exclusively for
the Project ( "Project Operating Account "). Withdrawals from this account maybe 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 and project
fees. Withdrawals from this account for other purposes may be made only with the prior
written approval of the City.
10.6 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 time. Developer may withdraw funds from the Replacement Reserve Account solely
to fund capital improvements for the Project, such as replacing or repairing structural
elements, furniture, fixtures or equipment of the Project that are reasonably required to
preserve the Project. Developer may not withdraw funds from the Replacement Reserve
Account for any other purpose without the prior written approval of the City.
11. NONDISCRIMINATION COVENANTS
11.1 Obligation to Refrain from Discrimination. Developer covenants and
agrees that:
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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
the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees, or vendors of the Property.
B. In Affordable Housina 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 tern of the contract (for
55 years).
C. In Employment. In construction on 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 take 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 for the benefit of City, provided that
the foregoing covenant shall not apply to contracts or subcontracts for standard
commercial supplies or raw materials.
12. ENVIRONMENTAL MATTERS
12.1 Representation and Warrantv. 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.
12.2 Compliance with Environmental Laws. Developer shall (a) comply with
all environmental laws and environmental permits applicable to the Construction 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 envirommental
claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all
environmental permits required for ownership or use of the Property.
12.3 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 minimis quantities used at the ,Property in
26
compliance with all applicable environmental laws and required in connection with the
routine operation and maintenance of the Property.
12.4 Notice of Environmental Matters. Developer shall immediately advise
City in writing of any of the following: (a) any pending or threatened environmental
claim against Developer or the Property, (b) any condition or occurrence that (i) results in
noncompliance with any applicable environmental law, (ii) could reasonably be
anticipated to cause the Property to 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.
12.5 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.
13. 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:
13.1 Existence. Developer's managing general partner (OHDC) 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.
13.2 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.
13.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10)
days of Developer's learning 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 might materially affect the
Property;
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(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;
(e) 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.
13.4 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 Docunent(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.
13.5 Annual Financial Statements. Developer shall deliver to City, within ninety
(90) 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 chief
financial officer that such documents: (i) were prepared in accordance with generally
accepted accounting principles applied on a consistent basis or in accordance with such
other principles or methods as are reasonably acceptable to City, (ii) fairly present
Developer's financial condition, (iii) show all material liabilities, direct and contingent,
and (iv) fairly present the results of Developer's operations. Developer shall also provide
the City with any other amzual audit reports issued by other monitoring agencies.
13.6 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 reasonable notice,
to any books, documents, papers, or other records of Developer which are pertinent to
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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.
13.7 Termite Inspection Report. Developer shall deliver a termite report pertaining
to the Property to the City every fifth (5"') year beginning January 2022.
14. OTHER 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:
14.1 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.
14.2 Sale or Lease of Property. Unless and until Developer has received a
Certificate of Completion for the construction 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 construction.
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 under 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 (3 0) 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.
15. CERTIFICATE OF COMPLETION
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Upon satisfactory completion of the construction 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 constriction.
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 Construction, 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 amount 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.
16. INDEMNIFICATION
16.1 Non - liability 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 construction, including matters relating
to: (i) the performance of the constriction work, (ii) architects, contractors,
subcontractors and materialmen, or the workmanship of or materials used by any of them,
or (iii) the progress of the construction; 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 assune 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 modified 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;
30
(c) City shall not be directly or indirectly liable or responsible for any
loss or injury of any kind 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.
16.2 Indemnity. Developer agrees to defend (by counsel satisfactory to City),
indemnify and hold harmless the City and its respective officers, directors, employees
and agents (collectively the "lndemnitees ") 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 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.
16.2.1 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.
16.3 Reimbursement 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, commissions 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 suvive 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
17. INSURANCE, CASUALTY AND CONDEMNATION
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17.1 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 construction;
(b) prior to commencement and following completion of the
construction, fire and hazard "all risk" insurance covering 100% of the replacement cost
of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious
mischief and all other risks normally covered by "all risk" coverage policies in the area
where the Property is located (including loss by flood if the Property is in an area
designated as subject to the danger of flood);
(c) upon commencement of the constriction and at all times prior to
completion of the construction, builder's risk -all risk insurance covering 100% of the
replacement cost of all hmprovements (including offsite materials) during the course of
constriction 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 reasonably 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 constriction 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.
17.2 City Attorney May Modify. The City Attorney may modify
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the type and amounts of insurance required pursuant to this section.
17.3 Claims and Proceedines. 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 docurents
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.
17.4 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.
17.5 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 a time period reasonably determined by City, to at
least the value it had irmnediately prior to sustaining the damage. Such demonstration
shall include delivery to City of (i) plans and specifications reasonably satisfactory to
City, and (ii) a construction contract in form and content, and with a contractor,
reasonably satisfactory to City.
(b) To the extent that the Proceeds are insufficient to
accomplish the restoration required above, Developer shall deliver to City funds (the
"Shortfall Funds ") in the amount of such shortfall, which funds shall be assigned to City
as security for Developer's obligation hereunder and held and disbursed in the same
manner as the Proceeds.
(c) Developer shall execute such documents as City requires to
evidence and secure Developer's obligation to use all amounts disbursed for the diligent
restoration of the Property.
(d) No Event of Default shall remain uncured.
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17.6 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.
17.7 Failure to Satisfy Conditions. In the event that Developer fails
to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to
Section 17.5) 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.
17.8 Restoration. Nothing in this Article 17 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.
17.9 Condemnation; Treatment of Compensation. Subject to any
superior rights of Senior Lender, Developer hereby assigns to the City, as security for all
obligations to City secured by a lien on the Property, all amounts payable to Developer in
connection with any Condemnation, and any proceeds of any related settlement
(collectively, "Compensation "). Subject to any superior rights of Senior Lender,
Developer shall deliver such remaining Compensation to City immediately upon receipt.
If the taking results in a loss of the Property to an extent that, in the reasonable opinion of
City, renders or is likely to render the Property not economically viable or if, in City's
reasonable judgment Developer's security is otherwise impaired, City may apply the
Compensation received due to judgment or settlement in connection with any
condemnation or other taking to reduce the unpaid obligations secured in such order as
City may determine, and without any adjustment in the amount or due dates of payments
due under the Note. If so applied, any award in excess of the unpaid balance of the Note
and other sums due to City shall be paid to Developer or Developer's assignee. City shall
have no obligation to take any action in connection with any actual or threatened
condemnation or other proceeding.
17.9.1 Notwithstanding the foregoing, as long as the value of City's liens
are not impaired, any condermnation proceeds may be used by the Borrower for
repair and /or restoration of the Project.
17.10 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
not be effective with respect to any insurance policy if the coverage thereunder would be
34
materially reduced or impaired as a result. Developer shall use its best efforts to obtain
only policies which permit the foregoing waiver of subrogation.
18. DEFAULTS AND REMEDIES
18.1 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 wider 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)
comrnences 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 17.5) and thereafter diligently restores the Property in accordance with this
Agreement;
(f) Work on the constriction ceases for thirty (30) consecutive days
for any reason (other than govermnental 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 construction beyond the required completion date set forth in this
Agreement;
(h) Developer is enjoined or otherwise prohibited by any Government
Authority from constructing and /or occupying the improvements and such injunction or
prohibition continues unstayed for sixty (60) days or more for any reason;
35
(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, construction 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) (i) 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 written 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.
18.2 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 18
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
construction by expenditure of its own funds;
(c) Exercise any of its rights under the Loan Documents and any rights
36
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
security, all in such order and mariner 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.
18.3 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.
19. MISCELLANEOUS
19.1 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.
19.2 Notices. All notices, demands, approvals and other communications
provided for in the Loan Documents shall be in writing and be delivered to the
appropri-
ate party by personal service or U.S. mail at its address as follows:
If to Developer: 815 N Harbor, LP
c/o 815 N Harbor, LLC
414 East Chapman Avenue
Orange, California 92866
Attn: Executive Director
With a copy to: C &C 815 N Harbor, LLC
37
1411 Yorba St., Suite 200
Tustin, CA 92780
If to City: City of Santa Ana
Executive Director (CDA)
20 Civic Center Plaza (M -37)
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.
19.3 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.
19.4 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.
19.5 Binding Effect; Assignment of Obligations. This Agreement shall bind,
and shall inure to the benefit of, Developer and City and their respective successors and
assigns. Other than as expressly provided to the contrary in this Agreement, Developer
shall not assign any of its rights or obligations under 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.
19.6 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
enforcement of such modification is sought, and then only in the specific instance and for
the specific purpose given.
19.7 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
W?
Federal law, whichever is more stringent. Developer irrevocably and unconditionally
submits to the jurisdiction of the Superior Court of the State of California for the County
of Orange or the United States District Court of the Central District of California, as City
may deem appropriate, in connection with any legal action or proceeding arising out of or
relating to this Agreement or the Loan Documents. Assuming proper service of process,
Developer also waives any objection regarding personal or in rem jurisdiction or venue.
19.8 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.
19.9 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.
19.10 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.
19.11 Time of the Essence. Time is of the essence under this Agreement and in
the performance of every teen, covenant, and obligation contained herein.
19.12 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.
19.13 Warrantv 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.
19.14 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 terns of this Agreement.
19.15 Plans and Data. Where Developer does not proceed with the
development of the Property, and when this Agreement is tenninated 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 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.
19.16 Authoritv to Enter Agreement. Each undersigned represents and warrants
that its signature hereinbelow has the power, authority and right to bind their respective
39
parties to each of the tenns 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.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date set forth at the beginning of this Agreement.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
ALHO, City Attorney
DEVELOPER:
815 N Harbor, LP
a California limited partnership
MANAGING GENERAL PARTNER
CITY OF SANTA ANA
i
{
David vazos
City Manager
RECOMMEND APPROVAL:
Vim"
Kelly L eenders, E ec tive Director
Cominthiiity Develop m tit Agency
OHDC 815 N Harbor, LLC
a California nonprofit, public benefit corporation
By:
Eunice Bobert, Chief xecutive Officer
DEVELOPER GENERAL PARTNER
C &C 815 N Harbor, LLC
a California limited liability company
BY: Cot le Family Trust Dated 3/8/87, its Member
r
any Cottle, Trustee
By: C
Todd Cottle, Tr-ustca
40
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 June 26th, 2015 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Eunice Bobert
who proved to me on the basis of satisfactory evidence to be the person�6) whose nameDare_
subscribed to the within instrument and acknowledged to me thattolshe/they executed the same in
ail /ber- /their authorized capacity(', and that by�Oher /thslT signatureK on the instrument the
person(sk or the entity upon behalf of which the person(30 /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 pqd official seal. " "" CLAUDIA M.FERNANDEMHAW Commission # 2053995
�. z °' = Notary Public • California z
Orange County
M Comm. Expires Jan 25, 2018
.Signs r � •\/ (Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On June 26th, 2015 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Todd Cottle
who proved to me on the basis of satisfactory evidence to be the person whose name(sj E"a'lare
subscribed to the within instrument and acknowledged to me that 4-Fs bAlhey executedrghe same in
�WVAerat r authorized capacity(ie , and that bydfalAa+ /then - signature) on the instrument the
person( or the entity upon behalf of which the person(Xacted, 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.
CLAUDIA M. FERNANDEZ -SHAW
S py hand and official seal. ; "" Commission # 2053995
I�n i Notary Public • California z
yy� z ° Orange County '
�7 1 My Comm. Expires Jan 25, 2010
(Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On June 26th, 2015 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Barry Cottle
who proved to me on the basis of satisfactory evidence to be the person (O whose name )�fere-
subscribed to the within instrument and acknowledged to me tha hhe /#key- executed the same in
d1gheatheir authorized capacity(yy'er ), and that byJ1-Pher/th�tr signature) on the instrument the
person(s.Y.°or the entity upon be If
of which the person) 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.
CLAUDIA M. FERNANDEZ -SHAW
my hand and official seal., commission a 2053995
Z
Notary Public - California Z
Orange County n
552 My Comm. Expires Jan 25, 2018'
> (Seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Orange )
On June 30th, 2015 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared Kelly L. Reenders
who proved to me on the basis of satisfactory evidence to be the
subscribed to the within instrument and acknowledged to me that
-his/he
heir authorized capacity(iqis), and that by- hisgrltheir sig
person(o or the entity upon behalf of which the person acted,
whose nam
tey executed'the same in
on the instrument the
I the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
my hand and official seal.
? \rfl1 /v�ae�D,
(Seal)
CLAUDIA M.FERNANDEZ -SHAW
Commission # 2053995
Z -o Notary Public - California i
Z ' orange County
My Comm. Ex ires Jan 25, 2018
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 June 30th, 2015 before me, Claudia M. Fernandez -Shaw, Notary Public
(insert name and title of the officer)
personally appeared David Cavazos
who proved to me on the basis of satisfactory evidence to be the person%) whose nam �Oare —
subscribed to the within instrumeF1, nd acknowledged to me tha l 6AIn�xecuted the same in
Ct0s7t,w ieir authorized capacity ( and that by, ?kaerAherr signature(�on the instrument the
person ' or the entity upon beh f which the person( 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 hapnnd official seal.
e
nature _ " U41
¢s.r
Z t o
CLAUDIA M. FERNANDEZ -SHAW
Commission # 2053995
Notary Public • California i
Orange County
My Comm. Expires Jan 25, 2018
LIST OF EXHIBITS
Exhibit A —Legal Description
Exhibit B —Scope of Work
Exhibit C — Project Budget
Exhibit D — Project Schedule and Tasks
Exhibit E — City /HOME Loan Deed of Trust
Exhibit F — City /HOME Loan Note
Exhibit G — Affordability Restrictions on Transfer of Property
Exhibit H — City's Affirmative Marketing Program
EXHIBIT A
Legal Description
Exhibit "A"
Legal Description
Real property in the City of Santa Ana, County of Orange, State of California, described as follows:
LOTS 1 TO 6 INCLUSIVE, AND 11 TO 16 INCLUSIVE, ALL IN BLOCK C OF TRACT NO. 490, AS SHOWN
ON A MAP RECORDED IN BOOK 17, PAGE 22 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA.
EXCEPTING FROM SAID LOTS 13 AND 14, THE LAND DESCRIBED IN A DEED TO THE CITY OF SANTA
ANA RECORDED NOVEMBER 19, 1971 IN BOOK 9894, PAGE 267 OF OFFICIAL RECORDS OF SAID
ORANGE COUNTY,
ALSO EXCEPTING FROM SAID LOTS 14 AND 15, THE LAND DESCRIBED IN A DEED TO THE CITY OF
SANTA ANA RECORDED OCTOBER 02, 1978 IN BOOK 12865, PAGE 1879 OF SAID OFFICIAL RECORDS.
APN: 198 - 162 -44 and 198- 162 -44 and 198- 162 -44 and 198 - 162 -44 and 198 - 162 -44 and 198- 162 -44 and
198- 162 -46 and 198 - 162 -46 and 198 - 162 -46 and 198- 162 -02 and 198 - 162 -02 and 198 - 162 -02 and 198-
162-03 and 198 - 162 -03 and 198 - 162 -03 and 198 - 162 -03 and 198 - 162 -03 and 198- 162 -03 and 198 -162-
45 and 198 - 162 -45 and 198- 162 -45 and 198 - 162 -42 and 198 - 162 -42 and 198 - 162 -42 and 198- 162 -43
and 198 - 162 -43 and 198 - 162 -43 and 198- 162 -43
EXHIBIT B
Scope of Work
EXHIBIT B
SCOPE OF WORK
I. SCOPE OF DEVELOPMENT:
The proposed project, located at 815 N. Harbor Blvd, Santa Ana, CA 92703 will consists of the
construction of an affordable, multifamily rental project comprised of 70 units with a 3,195 sf
community room, leasing office and laundry facility. The development will be constructed on
approximately 2.26 acres (131,916 s.f) and will have 69 three- bedroom units and 1 two- bedroom
unit. The three - bedroom rmits will range from 1,022 -1,050 sf.
7 units will be rented to, very -low income families with household incomes at or below 50% of the
AMI (Area Median Income), 49 units will be rented to low income families with household incomes
at or below 60% of AMI, and 13 units will be rented to families with household incomes at or below
110 %. The one remaining unit will be designated as a manager's unit.
The project will consist of 4 three -story on grade wood framed buildings with a combination of tuck
under and surface parking. One of the buildings will contain the leasing office /community space.
The project provides parking through a combination of tuck under and surface parking. The property
will feature a tot lot, onsite laundry facilities, community room, leasing office and ample open space.
The units shall incorporate design elements and building, practices that will reduce the maintenance
and utility costs and also reduce the adverse environmental impacts otherwise associated with
residential construction. Such design elements and practices may include, but are not limited to
enviromnentally sensitive landscaping, installation of energy efficient furnaces and water heaters
(Energy Star Appliances), and installation of high efficiency toilets. The Project will be fully
landscaped including irrigation. Landscape materials 'will be low maintenance and drought resistant.
Landscaping
All areas of the Site that are not occupied by buildings, driveways, walkways, and parking shall be
landscaped and maintained. Landscaping may consist of grass lawns, groundcovers, shrubs, trees,
decorative block walls, screenings, and terraces' as reasonably approved by the Planning Department.
A permanent water sprinkler system shall be provided in all landscaped areas to insure proper
maintenance.
Refuse
An enclosed refuse area or areas shall be provided at locations in accordance with the requirements
of the City of Santa Ana. Refuse areas shall be designed with building materials compatible with
those used for the other structures on the site.
Utilities
Developer shall be responsible for all utility relocation or installations on the premises; and hookups
to sewers, drains, water and gas distribution lines, electric, telephone, and telegraph lines; and for
hookup to all other public utility lines. All utility services on -side shall be installed
underground or concealed within buildings and no mechanical equipment or meters shall be exposed
at ground level as required by the Santa Ana Municipal Code.
Public Improvements
Developer, at its sole cost and expense, including costs of design plans and specifications, shall
construct all on -and off -site improvements required for the premises all in accordance with technical
specifications, standards and practices of the City of Santa Ana.
EXHIBIT C
Project Budget
815 N Harbor
Version: 70 Units- Mixed Income; 50 %, 60 %, and 110 0/c AMI
SOURCES OF FUNDS
PERMANENT SOURCES
Total
Amount
Interest
CCRC
$10,340,990
5.10 0/a
CCRC(Tranche B)
$758,500
5.10%
City of Santa Ana - NSP
$2,000,000
City of Santa Ana - NSP
$880,000
BofA Subordinate Loan Program
$1,400,000
City of Santa Ana - HOME
$380,000
Deferred Developer Fee
$918,300
General Partner Equity
$100
7.5% of Total Equity.
Limited Partner Equity
$5,727,447
TOTAL
$22,405,337
Refer to Development Budget for Details.
vs. TDC
$22,405,337
Financing Surplus /(Gap)
$0
Term
(Yrs) Comments
35 Bond Rate (Inc. Cushion)
15 Eight (8) Project Based Vouchers
B[]
Federal Tax Credit Pricing: $1.00
CONSTRUCTION SOURCES
Total Term
Amount
Interest (Mnts) Comments
Bank of America
$14,085,889
2.810/4 24 Bonds sized at 66.82% of Aggregate Basis
City of Santa Ana - NSP
$2,000,000
City of Santa Ana - NSP
$880,000
BofA Subordinate Loan Program
$1,400,000
City of Santa Ana - HOME
$380,000
Deferred Developer Fee
$918,300
General Partner Equity
$100
Limited Partner Equity
$1,431,862
7.5% of Total Equity.
Dev, Fee Deferred Until Completion
$649,226
Other Costs Deferred Until Completion
$659,960
Refer to Development Budget for Details.
TOTAL
$22,405,337
vs. TDC
$22,405,337
Financing Surplus /(Gap) -
$0
815 N Harbor
CONSTRUCTION USES BY FUNDING SOURCE
CONSTRUCTION
uitial S[ruRUres*
Site get' wo
Sire rk
GC Gen. Requirement (1.5 %)
GC Overhead Po (4.5%)
Contractor nr Pro At (8 %)
CBnshuctlon Bs
Constr Foods
uction Contingency (7%)
Subtotal ConstrucHan
SOFTCOSTS
Local Development Impact Fees
Local Permit respell, Fees
Envlmnmental Rudles - OEQA
Appralud
Architectural Design & Supervision
Market Study
Survey & Engineering
Syndication Consultant
Legal Constrnllon
Legal: Permanent
Legal: OrganiaaGOn of PartnersM1ip
Legal ayndmaHOn
TIII,Remrding /Escrow- AITWO1ion
T1tle /Recording / Escrew- Construction
Cost. Loan Intelsat(60°.h AOH)
I4arke0ng (lease -up, Advertisement, Setup)
Leo tied Construction lospeRian
Furnishing Focused form Contract
uncom re
Real Estate Taxes
TCAC App /Nlocation - (Monitoring Fee Belovq
FOR Cost Cmtlngenry
Investor Ous .Illgence
Audit /Coat Cerewca0on
...eloper Fee(OVerhovel)
Developer red (Pre t)
Subtotal Soft Cols
COSTS DEFERRED UNTIL CONVERSION
"TE /Recording /Escrow - Permanent
.pestle$ Reserve
Replacement Reserve
TCAC Monitoring Fee
Subtotal Oelerred Cos fs
FINANCING COSTS
Issuer 0111ination Fee(Cli
City 'a Frontal Advisor
Bond Counsel
Isuer AppllCation Fee
Constr. Leer Orlg. Fees
Conrtc Lender Expense
Coast. Tender Legal
Perm Lender Ong, Fees
Perm Lander Fees
Penn Lendel Losel
Troves Fee
COLAC Fee
COIAC Fee
Jaguar Fee Outing Constnmtlnn
SAUDIDal 11... Even Costs
g0 $7,90,491
$0 $1,250,000
$0 $134,707
$0 $404,122
$0 $710,439
$1,25.,000 $1,250,080 $1,250,000
$215,000 $215,000 $215p0o
$40,00. $00,008 $40,000
$15,000 $15,000 $15,000
910,504 $7181504 $718,504
$15,000 $15,000
$30.$700 $300,000 $300,000
$65,000 $65,000
$20,00. $201 $20,080
$20,000 $201 ioNdra ,
$20,.0. $201000
$401 $40,008
$20,000 $2n,.00
$20,0.0 12.,000 $20,000
$474,927 $0 $383,548
$4 g0o0 $0 $4.,0o0
$15,000 $0 $1510.0
$50,000 $0 $50,...
$120,000 $1 $120,000
$84,840 $84,840 $84,840
$7,728 $7,220 $7,728
$250,00. $IDOpoO $25$000
$54,500 $54,500
po,000 $G $30,000
$554,188 $324,613 $o
$14,900
$2.p.0
$91,429
$26,411
$35,000
$60,000
$2,500
$140,859
$60,000
$45,000
$103,41E
$100
$05,000
$20,G..
$40,00.
$54,50.
_$22,405,337 $7,B03,.6G $14,01 S,B90 $2,000,000 $080,000 $1400000 $300000 $910300 $100 $1431862 $649226 $659960
Total PlEi
End of sn ore
clry er
avrtllnare
city of east.
Forror
UidiaE P er
oef d Ontil o olreeeunlll
Costs
Closing Costs
Bank of Ame q -you
q
Lon
qua -H et r loere Ive
Ed. IeHen
ACOULUTION
Lesser of Land Cost or Value
53,056,366
$31056,365
2,000,000
BOg000
$546,362
300,000
$50,004
Come Mr,
$200,000
$G
$200,00.
Legal: AcgulsiHOn
$30.00G
$30,00
SID 000
SuOtofaf ACqulsRRO
$4,086,366
$3,006,366
$O $2,000,000
$800,000
$746,362
$300,000 $0
$0
$00,004
$0
$0
CONSTRUCTION
uitial S[ruRUres*
Site get' wo
Sire rk
GC Gen. Requirement (1.5 %)
GC Overhead Po (4.5%)
Contractor nr Pro At (8 %)
CBnshuctlon Bs
Constr Foods
uction Contingency (7%)
Subtotal ConstrucHan
SOFTCOSTS
Local Development Impact Fees
Local Permit respell, Fees
Envlmnmental Rudles - OEQA
Appralud
Architectural Design & Supervision
Market Study
Survey & Engineering
Syndication Consultant
Legal Constrnllon
Legal: Permanent
Legal: OrganiaaGOn of PartnersM1ip
Legal ayndmaHOn
TIII,Remrding /Escrow- AITWO1ion
T1tle /Recording / Escrew- Construction
Cost. Loan Intelsat(60°.h AOH)
I4arke0ng (lease -up, Advertisement, Setup)
Leo tied Construction lospeRian
Furnishing Focused form Contract
uncom re
Real Estate Taxes
TCAC App /Nlocation - (Monitoring Fee Belovq
FOR Cost Cmtlngenry
Investor Ous .Illgence
Audit /Coat Cerewca0on
...eloper Fee(OVerhovel)
Developer red (Pre t)
Subtotal Soft Cols
COSTS DEFERRED UNTIL CONVERSION
"TE /Recording /Escrow - Permanent
.pestle$ Reserve
Replacement Reserve
TCAC Monitoring Fee
Subtotal Oelerred Cos fs
FINANCING COSTS
Issuer 0111ination Fee(Cli
City 'a Frontal Advisor
Bond Counsel
Isuer AppllCation Fee
Constr. Leer Orlg. Fees
Conrtc Lender Expense
Coast. Tender Legal
Perm Lender Ong, Fees
Perm Lander Fees
Penn Lendel Losel
Troves Fee
COLAC Fee
COIAC Fee
Jaguar Fee Outing Constnmtlnn
SAUDIDal 11... Even Costs
g0 $7,90,491
$0 $1,250,000
$0 $134,707
$0 $404,122
$0 $710,439
$1,25.,000 $1,250,080 $1,250,000
$215,000 $215,000 $215p0o
$40,00. $00,008 $40,000
$15,000 $15,000 $15,000
910,504 $7181504 $718,504
$15,000 $15,000
$30.$700 $300,000 $300,000
$65,000 $65,000
$20,00. $201 $20,080
$20,000 $201 ioNdra ,
$20,.0. $201000
$401 $40,008
$20,000 $2n,.00
$20,0.0 12.,000 $20,000
$474,927 $0 $383,548
$4 g0o0 $0 $4.,0o0
$15,000 $0 $1510.0
$50,000 $0 $50,...
$120,000 $1 $120,000
$84,840 $84,840 $84,840
$7,728 $7,220 $7,728
$250,00. $IDOpoO $25$000
$54,500 $54,500
po,000 $G $30,000
$554,188 $324,613 $o
$14,900
$2.p.0
$91,429
$26,411
$35,000
$60,000
$2,500
$140,859
$60,000
$45,000
$103,41E
$100
$05,000
$20,G..
$40,00.
$54,50.
_$22,405,337 $7,B03,.6G $14,01 S,B90 $2,000,000 $080,000 $1400000 $300000 $910300 $100 $1431862 $649226 $659960
EXHIBIT D
Project Schedule and Tasks
EXHIBIT D
PROJECT SCHEDULE & TASKS
A. GENERAL
Insurance. Developer shall furnish or cause to be furnished As a Condition Precedent to
appropriate certificates of insurance and/or endorsements to disbursement of any portion of
City which meet all requirements of the Agreement. the loans, but no later than ten
(10) days after close of escrow.
B. PROJECT FINANCING
Submission of Evidence of Financing. Developer shall submit Not later than thirty (30) days
to City evidence of financing for the Project after allocation of tax exempt
bond financing for the Project
by CDLAC and /or tax credit
financing by CTCAC, but no
later than July 31, 2015.
2. Receipt of All Funding Commitments Necessary to Complete
Construction of the Improvements. Developer shall use its best
and good faith efforts to secure irrevocable funding
commitments from CDLAC and /or TCAC, Senior Lender, and
other available funding sources which when combined with the
Loans shall equal no less than the total cost to construct the
Improvements, as set forth in the approved Project Budget.
Developer shall submit such commitments to City for review.
Not later than thirty (3 0) days
after allocation of tax exempt
bond financing for the Project
by CDLAC and/or tax credit
financing by CTCAC, but no
later than July 31, 2015.
Approval of Developer's Evidence of Financing. City must Not later than twenty (20)
approve Developer's evidence of financing as required by the business days after receipt of a
Agreement. complete submittal from
Developer
C. CONSTRUCTION OF INIPROVEMENTS
Design Development Drawings. Developer shall prepare and Within seven (7) months
submit Design Development Drawings to City for review and following the date of the
approval. Agreement.
2. Approval of Design Development Drawings. City Housing Within fourteen (14) days of
staff shall review and approve, approve with conditions, or Developer's complete
disapprove the Design Development Drawings. submittal of the Design
Development Drawings.
3. Revision to Design Development Drawings. Developer shall
revise and resubmit Design Development Drawings to address
conditions or disapproval to the satisfaction of City.
4. Management Plan. Developer shall submit its proposed
Management Plan to City for review and approval.
5. Approval of Management Plan. City shall review and approve,
approve with conditions, or disapprove the Management Plan.
6. Revision to Management Plan. Developer shall revise
Management Plan if conditionally approved or disapproved by
City.
Approval of Revised Management Plan. City shall review and
approve, approve with conditions, or disapprove revised
Management Plan.
Within fourteen (14) days of
conditional approval or
disapproval, subject to
extension based upon extent of
revisions requested.
Within thirty (30) days of
approval of Agreement, but no
later than October 20, 2016.
Within fourteen (14) days of
receipt of a complete submittal
from Developer.
Within fourteen (14) days of
receipt of disapproved
Management Plan from City.
Within fourteen (14) days of
receipt of a complete submittal
of revised Management Plan
from Developer, but not later
than 120 days prior to project
completion.
Progress Reports. During construction Developer shall prepare Commencing thirty (30) days
monthly written progress reports and submit to City Manager. after start of the Construction
9. Commencement of Construction of the Improvements.
Developer shall cause the Construction of the Improvements to
be commenced by Contractor.
10. Completion of Construction of the Improvements. Developer
shall complete all work of the Construction of the
Improvements.
11. Release of Construction Covenants. City to furnish Developer
with a Release of Construction Covenants.
work through completion.
No later than 12 months after
the execution of HOME Loan
Agreement and commitment of
HOME finds.
On or before October 20, 2017
(subject to extension by City
based upon substantial
progress toward completion of
construction by Developer).
Within thirty (30) days of
receipt of Developer request
and only after Developer's
satisfactory completion of the
Construction of the
Improvements.
The Schedule of Performance is subject to revision from time to time as mutually agreed upon in
writing between Developer and the City Manager or his /her designee ( "City Manager "), and City
Manager is authorized on behalf of City to agree to make such revisions as he deems reasonably
necessary. The City Manager, in his /her sole discretion, may elect to bring to the City Council for
consideration and action any modifications to this Schedule of Performance. It is understood that the
Schedule of Performance is subject to all of the terms and conditions set forth in the text of the
Agreement. The summary of the items of performance in the Schedule of Performance is not
intended to supersede or modify the more complete description in the text of the Agreement; in the
event of any inconsistency between the Schedule of Performance and the text of the Agreement, the
text shall govern. In the event the City Manager deems it necessary to bring to City Council for
consideration one or more modifications to this Schedule of Performance, the discretion to do so is
expressly reserved to the City Manager. The time periods set forth herein for City approval of plans
and drawings and other submittals that are submitted to City by Developer shall only apply and
commence upon Developer's complete submittal of all the required information. In no event shall an
incomplete submittal by Developer trigger any City obligations of review and /or approval hereunder;
provided, however, that City shall notify Developer of an incomplete submittal as soon as is
practicable and in no event later than the applicable time set forth for City action on the particular
item in question. If any of the foregoing performance measurements are not met then it will be
deemed a default as defined in Section 20 and any remedies shall be cured according to said Section
of the Agreement.
EXHIBIT E
City /HOME Loan Deed of Trust
FREE RECORDING REQUESTED PURSUANT
TO GOVERNMENT CODE SECTION 27383
When Recorded Mail to:
Community Development Agency
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988 (M -37)
Santa Ana, California 92702
Attn: Housing Manager
CITY HOME DEED OF TRUST
AND ASSIGNMENT OF RENTS
THIS CITY HOME DEED OF TRUST AND ASSIGNMENT OF RENTS (the
"Deed of Trust ") made this 26th day of June, 2015, by between 815 Harbor, LP , a
California limited partnership comprised of OHDC 815 N Harbor, LLC, ( "OHDC "), a
California Limited Liability Company, and C &C 815 N Harbor, LLC, a California
Limited Liability Company (together the "Trustor "), ArneriNational Community Services,
a California corporation (the "Trustee "), and the City of Santa Ana, a charter city and
municipal corporation (the "Beneficiary ").
Trustor, in consideration of the promises herein recited and the trust herein created,
irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the
property located in the City of Santa Ana, County of Orange, State of California, described
in the attached Exhibit A and more commonly known as 815 N. Harbor Boulevard, Santa
Ana, California (the "Property ");
TOGETHER with all the improvements now or hereafter erected on the Property,
and all easements, rights, appurtenances and all fixtures now or hereafter attached to the
Property, all of which, including replacements and additions thereto, shall be deemed to be
and remain a part of the Property covered by this City Deed of Trust; provided that so long
as Trustor is not in default hereunder, it shall be permitted to control the Property in
accordance with the requirements of that certain HOME Loan Agreement entered into
between the Trustor and the Beneficiary, dated concurrently herewith and the
Affordability Restrictions on Transfer of Property ( "Loan Agreements "), dated
concurrently herewith, which Loan Agreements are all on file with the Beneficiary as a
public record;
TOGETHER with the right, power and authority during the continuance of these
Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Tnistor the
right, prior to any default by Truster in payment of the indebtedness secured by this Deed of
Trust or in the performance of any agreement under this Deed of Trust, to collect and retain
these rents, issues and profits as they become due and payable; and,
TOGETHER with all articles of personal property or fixtures now or hereafter
attached to or used in and about the building or buildings now erected, or hereafter to be
erected, on the Property which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for which they were or are to be
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one
herein described and referred to, and all renewals or replacements thereof or articles in
substitution therefor, whether or not the same are, or shall be attached to said building or
buildings in any manner; and all of the foregoing, together with the Property, is herein
referred to as the "Security ";
To have and to hold the Security together with acquittances to the Trustee, its
successors and assigns forever;
TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a
Promissory Note to the Beneficiary executed by Trustor of even date herewith in the
principal amount of Three Hundred Eighty Thousand Dollars ($380,000.00) (the "City
Promissory Note "); (b) the performance of the covenants and agreements of Borrower
contained in a certain Agreement as hereinafter defined; and (c) the payment of all other
sums, with interest thereon, advanced in accordance herewith to protect the security of this
Deed of Trust; and the performance of the covenants and agreements of Tnistor contained
herein.
TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS:
1. The Agreement. This Deed of Trust is executed and delivered, along with
the City HOME Promissory Note and the Loan Agreements, to benefit the Property. A. copy
of said Agreements is on file as a public record with the Beneficiary and is incorporated
herein by reference. Tnistor acknowledges that but for the execution of this Deed of Trust,
the Beneficiary would not enter into the Agreement or City HOME Promissory Note
secured by this Deed of Trust.
2. Trustor's Estate. Tnistor is lawfully seized of the estate hereby conveyed and
has the right to grant and convey the Security; that other than this Deed of Trust, the
Security is not encumbered except for obligations secured by deeds of trust, or any other
security agreement, to secure fmancing or refinancing for the purchase and rehabilitation of
the Property.
3. Repayment of the Loan. Trustor will promptly repay, when due, the
principal loan amount, as required by the City HOME Promissory Note secured by this
Deed of Trust.
4. Subordination. This obligation secured by this Deed of Trust shall be
subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of
Property shall remain in first place.
5. Prior Mortgages and Deeds of Tnist; Charges; Liens. Trustor shall perform
all of Trustor's obligations under any mortgage, deed of trust or other security agreement
with a lien which has priority over this Instrument, including Truster's covenants to make
payments when due (subject to an applicable notice and cure provisions). Trustor will pay
all taxes, assessments and other charges, fines and impositions attributable to the Security
which may attain a priority over this Deed of Trust, by Trustor making any payment, when
due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all
notices of amounts due under this paragraph, and in the event Trustor makes payment
directly, Truster will promptly discharge any lien which has priority over this Deed of Trust;
provided that Trustor will not be required to discharge the lien of the Deed of Trust securing
any senior lender or any other lien described in this paragraph so long as Trustor will agree
in writing to the payment of the obligation secured by such lien in a manner acceptable to
the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such
lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture
of the Security or any part thereof.
6. Hazard Insurance. Truster will keep the Security insured by such insurance
policies in such amounts and for such periods as called for in the Agreement. All insurance
policies and renewals thereof will include a standard mortgagee clause with standard
lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their
interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall
have the right to hold, or cause its designated agent to hold, the policies and renewals
thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the
original insurance policies or certificates of insurance, all renewal notices and all receipts of
paid premiums. In the event of loss, Truster will give prompt notice to the insurance carrier
and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may
make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days
advance notice of cancellation of any insurance policies required under this Section.
Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds,
subject to the rights of any senior lender, will be applied to restoration or repair of the
Security damaged, provided such restoration or repair is economically feasible and the
security of this Deed of Trust is not thereby impaired. If such restoration or repair is not
economically feasible or if the security of this Deed of Trust would be impaired, again,
subject to the rights of any senior lender, the insurance proceeds will be used to repay the
loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is
abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated
agent within 30 days from the date notice is mailed by either of them to Trustor that the
insurance carder offers to settle a claim for insurance benefits, the Beneficiary, or its
designated agent, is authorized to collect and apply the insurance proceeds at the
Beneficiary's option either to restoration or repair of the Security or to repay the loan.
If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in
and to any insurance policy and in and to the proceeds thereof resulting from damage to the
Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums
secured by this Deed of Trust immediately prior to such sale or acquisition subject to the
rights of any senior lender.
7. Preservation and Maintenance of Security. Trustor will keep the Security in
good repair and will not commit waste or permit impairment or deterioration of the Security.
8. Protection of the Beneficiary's Security. If Trustor fails to perform the
covenants and agreements contained in this Deed of Trust or if any action or proceeding is
commenced which materially affects the Beneficiary's interest in the Security, including, but
not limited to, default under the Deed of Trust securing any senior lender, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or
decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Truster, may
make such appearances, disburse such sums and take such action as it determines necessary
to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable
attorneys' fees and entry upon the Security to make repairs.
Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest
thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless
Truster and the Beneficiary agree to other terms of payment, such amount will be payable
upon notice from the Beneficiary to Truster requesting payment thereof, and will bear
interest from the date of disbursement at the rate payable from time to time on outstanding
principal under the City Note unless payment of interest at such rate would be contrary to
applicable law, in which event such amounts will bear interest at the highest rate permissible
under applicable law. Nothing contained in this paragraph will require the Beneficiary to
insure any expense or take any action hereunder.
9. Inspection. The Beneficiary may make, or cause to be made, reasonable
entries upon and inspections of the Security during normal business hours; provided that the
Beneficiary will give Trustor reasonable notice of inspection.
10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the
Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any
such right or remedy. The procurement of insurance or the payment of taxes or other liens
or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the
maturity of the indebtedness secured by this Deed of Trust.
11. Remedies Cumulative. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or any other
document, or afforded by law or equity, and may be exercised concurrently, independently
or successively.
12. Successors and Assigns Bound. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective successors and
assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust.
13. Joint and Several Liability. All covenants and agreements of Trustor shall be
joint and several.
14. Notice. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Truster provided for in this City Deed of Trust will be
given by certified mail, return receipt requested, addressed to Trustor at 414 East Chapman
Avenue, Orange, California, 92866, with copies to C &C Properties Group I, LLC at
14211 Yorba St., Suite 200, Tustin, California 92870 (b) any notice to the Beneficiary will
be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center
Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such
other address as the Beneficiary may designate by notice to Trustor as provided above, and
(c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be
effective as of the date received as shown on the return receipt.
15. Governing Law. This Deed of Trust shall be governed by the laws of the
State of California with venue in Orange County.
16. Severability. h1 the event that any provision or clause of this Deed of Trust
or the City Loan Note conflicts with applicable law, such conflict will not affect other
provisions of this Deed of Trust or the City Note which can be given effect without the
conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan
Note are declared to be severable.
17. Captions. The captions and headings in this Deed of Trust are for
convenience only and are not to be used to interpret or define the provisions hereof.
18. Default in Foreclosure; Remedies. Upon Truster's breach of any covenant or
agreement of Trustor in this Deed of Trust or the City Note secured by this Deed of Trust,
including, but not limited to, the covenants to pay, when due, any sums secured by this Deed
of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately
due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the
action required to cure such breach; (3) a date not less than 30 days from the date the notice
is received by Tnustor as shown on the return receipt, by which such breach is to be cured
provided, however, that if such default is not reasonable susceptible to being cured within 30
days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently
prosecuting the cure to completion; and (4) that failure to cuure such breach on or before the
date specified in the notice may result in acceleration of the sums secured by this Deed of
Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to
5
reinstate after acceleration and the right to bring a court action to assert the non - existence of
default or any other defense of Tnrstor to acceleration and sale.
Notwithstanding anything to the contrary contained herein, a "default" shall not
include (i) a transfer of a general partner's interest in Trustor when made in connection
with the exercise by the Trustor's limited partner (the "Limited Partner ") of its rights
upon a default by a general partner under the Truster's Amended and Restated Limited
Partnership Agreement (the "Partnership Agreement ") or upon a general partner's
withdrawal in violation of the Partnership Agreement, so long as the removal and
substitution of the defaulting general partner is made within thirty (30) days of such
default or, if such removal and substitution cannot reasonably be completed within thirty
(30) days, so long as the Limited Partner commences to take action to remove and
substitute the general partner with a reasonable period and thereafter diligently proceeds
to complete such substitution; (ii) any transfer of the Property to the managing general
partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor
pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any
transfer of the Limited Partner's interest in connection with a default by the Limited
Partner under and in accordance with the Partnership Agreement; and (iv) any sale,
transfer or other disposition of a limited partner interest or an interest in a limited partner
of the Trustor, provided that after any such sale, transfer or other disposition an affiliate
of the Trustor's limited partner is the managing member or general partner of such
transferee limited partner.
If the breach is not cured on or before the date specified in the notice or such longer
period as provided above or in the City Note or the Agreement, the Beneficiary, at the
Beneficiary's option, may: (a) declare all of the sums secured by this City Deed of Trust to
be immediately due and payable without further demand and may invoke the power of sale
and any other remedies permitted by California law; (b) either in person or by agent, with or
without bringing any action or proceeding, or by a receiver appointed by a court, and
without regard to the adequacy of its security, enter upon the Security and take possession
thereof (or any part thereof) and of any of the Security, in its own name or in the name of the
Trustee, and do any acts which it deems necessary or desirable to preserve the value or
marketability of the Property, or part thereof or interest therein, increase the income
therefrom or protect the security thereof. The entering upon and taking possession of the
Security shall not cure or waive any breach hereunder or invalidate any act done in response
to such breach and, notwithstanding the continuance in possession of the Security, the
Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by
law upon occurrence of any uncured breach, including the right to exercise the power of
sale; (c) cornmence an action to foreclose this Deed of Trust as a mortgage, appoint a
receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a
written declaration of default and demand for sale, pursuant to the provisions for notice of
sale found at California Civil. Code Sections 2924, et sue., as amended from time to time; or
(e) exercise all other rights and remedies provided herein, in the instruments by which
Trustor acquires title to any Security, or in any other document or agreement now or
hereafter evidencing, creating or securing all or any portion of the obligations secured
hereby, or provided by law.
Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any
cure of any default made or tendered by Trustor's limited partner shall be deemed to be a
cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by
Trustor.
The Beneficiary shall be entitled to collect all reasonable costs and expenses
incurred in pursuing the remedies provided in this paragraph, including, but not limited to,
reasonable attorneys' fees.
19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration
of the sums secured by this Deed of Trust, Trustor will have the right to have any
proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time
prior to 5 days before sale of the Security pursuant to the power of sale contained in this
Deed of Trust or at anytime prior to entry of a judgment enforcing this Deed of Trust if: (a)
Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and
no acceleration under the City Note has occurred; (b) Trustor cures all breaches of any other
covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all
reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants
and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's
and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d)
Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of
this Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay
the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and
cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in Rill
force and effect as if no acceleration had occurred.
20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust,
duly executed and acknowledged, is made a public record as provided by law. Trustee is
not obligated to notify any party to this Deed of Trust of pending sale under any other deed
of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party
unless brought by Trustee,
21. Reconveyance. Upon payment of all stuns secured by this Deed of Trust, the
Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of
Trust and the City Note to the Trustee, The Trustee will reconvey the Security without
warranty and without charge to the person or persons legally entitled thereto. Such person
or persons will pay all costs of recordation, if any.
22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from
time to time remove the Trustee and appoint a successor trustee to any Trustee appointed
hereunder. The successor trustee will succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
23. Request for Notice. Trustor requests that copies of the notice of default and
notice of sale be sent to Trustee at the address set forth in Section 14 above.
7
24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall
have any personal liability under the Agreement, City Note, and this Deed of Trust and any
judgment, decree or order for payment of money obtained in any action to enforce the
obligation of Trustor to repay the loan evidenced by such documents shall be enforceable
against Trustor only to the extent of Trustor's interest in the Property.
(Signatures on Following Page)
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first
written above.
TRUSTOR:
815 HARBOR, LP, a California limited partnership
MANAGING GENERAL PARTNER
OHDC 815 N Harbor, LLC
a California limited liability company
ORANGE HOUSING DEVELOPMENT CORPORATION
a California nonprofit corporation, its sole member
ME
Eunice Bobert, Chief Executive Officer
DEVELOPER GENERAL PARTNER
C &C 815 N Harbor, LLC
a California limited liability company
By:
Todd R. Cottle, its member
By: Cottle Family Trust Dated 3/8/87,
Barry A. Cottle, its Trustee
EXHIBIT F
City /HOME Loan Note
CITY HOME LOAN PROMISSORY NOTE
SECURED BY SUBORDINATED DEED OF TRUST
TO THE CITY OF SANTA ANA, CALIFORNIA
(815 N. Harbor Boulevard)
$380,000,00
1. Principal Amount of Loan
June 26, 2015
Santa Ana, California
FOR VALUE RECEIVED, 815 N. Harbor, LP, a limited partnership comprised of OHDC 815 N
Harbor, LLC, ( "OHDC "), a California Limited Liability Company, and C &C 815 N Harbor, LLC, a
California Limited Liability Company (`Borrower "), hereby promises to pay to the CITY OF SANTA
ANA, a charter city and municipal corporation ( "City "), or order, a principal amount not to exceed
THREE HUNDRED EIGHTY DOLLARS ($380,000.00) or so much thereof as may be advanced by the
City to the Borrower, due and payable with 3% interest by residual receipts over the fifty -five (55) year
term, pursuant to the Loan Agreement between Borrower and the City dated concurrently herewith. The
obligation of Borrower to City hereunder is subject to the terms of said the Loan Agreement,
Affordability Restrictions on Transfer of Property, Deed of Trust and this Note. Said documents are
public records on file in the offices of the City, and the provisions of said documents are incorporated
herein by this reference.
This Note, the Loan Agreement and Affordability Restrictions on Transfer of Property, and the
Deed of Trust are sometimes collectively referred to herein as the "HOME Loan Documents." The
HOME Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana.
Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term
in the Agreement.
2. Definitions.
For the purpose of calculating the payments to be made by Borrower to City pursuant to this
Note, the following terms shall have the following respective meanings:
"Agreement" means the HOME Loan Agreement between the City and the Developer dated
concurrently herewith, and any attachments or amendments thereto.
"Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies
and procedures applicable to the HOME Funds (the "HOME Regulations ") (24 CFR Part 92).
"Area Median Income" means the median income figures for Orange County as published by the
U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein.
"Borrower" means 815 N. Harbor, LP, a California limited partnership comprised of OHDC 815
N Harbor, LLC, a California limited liability company as managing general partner and C &C 815 N
Harbor, LLC, a California limited liability company as developer general partner.
"Calendar Year" means each consecutive twelve (12) month period from January 1 to December
31.
1076A53V1389384.1
"City Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with
the terms of this Note and secured by the Deed of Trust.
"Citv's Percentaee" with reference to the Residual Receipts, shall mean fifty percent (50 %) of the
total Residual Receipts from the Property as further described in Section 5 hereof.
"Closing Costs" shall mean:
G) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result
of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in
the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees,
recording charges, loan repayment charges and other costs reasonably incurred with respect to the
Property, in each case actually paid by Borrower as a condition of the Sale.
(ii) In the case of a Refmancing, the reasonable and necessary costs of completing
such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance
premiums, escrow fees, recording fees and attorneys' fees.
"Deed of Trust" shall mean the Deed of Trust in favor of the City, securing the City HOME Loan.
"Gross Revenues" shall mean all revenues and receipts of every kind actually received by
Borrower from operating the Property, and all parts thereof, including, but not limited to, income from
both cash and credit transactions, rental from leased and /or subleased spaces and parking fees and charges
(but not including security deposits and other tenant deposits, except to the extent such deposits are
forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance
proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds.
Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and /or
other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Proj ect
Accounts ") that are segregated from revenues and income received by Borrower from all other projects.
Gross Revenues shall also include all interest earned on the Project Accounts.
"HOME Assisted Units" shall mean those rental units constricted on the Property which are
subj ect to the term of affordability.
"HOME Funds" shall mean the money provided under the HOME Program for the development
of the rental units hereunder.
"Low Income" means an adjusted income which does not exceed eighty percent (80 %)
of the area median income for the Orange County, California PMSA, adjusted for household size, as
published by HUD.
"Operating Expenses" shall mean the sum of the following:
W payments of principal and interest and all other charges relating to the Senior
Loan(s);
(ii) a property management fee equal to S% of gross rents;
(iii) Owner Administration Fee of 5% of gross rents;
1076A53VL389384.1
(iv) deposits into required reserves;
(v) all other actual, reasonable cash operating costs and expenses, calculated on an
annual basis, that are directly attributable to managing and operating the Property, including, without
limiting the generality of the foregoing, the following: costs and expenses for real and personal property
taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating,
ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and
marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable
reserves for all anticipated expenses as approved by the City; and other such items constituting operation,
maintenance and repair costs actually paid by the Borrower, subject to the following conditions:
(a) Depreciation and amortization expenses shall not be considered
Operating Expenses, except as otherwise provided herein.
(b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only
be included as Operating Expenses to the extent they are not in excess of the reasonable expenses,
compensation or fees which would be payable to unrelated third parties in arms- length transactions for
similar services in the Santa Ana, California area.
(vii) Any other expenses necessary to meet senior lender requirements and requirements of
Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership
(the "Partnership Agreement"),
"Property" shall mean that property located at 815 N. Harbor Boulevard, Santa Ana, California.
"Refmancine" shall mean changing the then existing financing on the Property by, without
limitation, modifying the interest rate and /or the term of the existing Senior Loan, increasing or reducing
the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior
Loan, except for the payoff of the conventional lender's acquisition loan for the Property.
"Refmancine Proceeds" shall be disbursed as set forth in Section 6 hereof.
"Residual Receipts" shall mean the Gross Revenues from the Property for each year, less
deductions for Operating Expenses from the same building, applicable to each such year to the extent not
already deducted as an Operating Expense.
"Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion
thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any
partnership interest in the Borrower by an individual or entity which is a general or limited partner in the
Borrower, or any interest by any individual or entity which holds an interest in any such general or
limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers,
assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the
ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect
partnership interest thereafter. Sale includes a sale in condenmation or under threat thereof. Sale does not
include dedications and grants of easements to public and private utility companies of the kind customary
in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not
include any transaction not considered a "transfer' under Section 13.
1076 ',53V 339334. 1
"Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or
Construction Costs, and shall include any subsequent loan that refinances said Senior Loan.
"Term" the teen for repayment of this Note shall mean fifty -five (55) years from the date of full
occupancy and rental of the Project.
Tenn of Affordability" the term of affordability shall be fifty -five (55) years.
"Ve Low Income" means an adjusted income which does not exceed fifty percent
(50 %) of the area median income for the Orange County, California PMSA, adjusted for household size,
as published by HUD.
3. This Note evidences the obligation of Borrower to the City for the repayment
of the City Loan of HOME Funds attributable to the development of the Property, and related soft costs.
4. This Note is payable at the principal office of City of Santa Ana, Community
Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Art: Housing Division, or at
such other place as the holder hereof may inform Borrower in writing, in lawful money of the United
States.
3. Loan Repavment.
Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6
(Refinancing Proceeds), 7 (Sate Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement.
4. Operating Capital Improvement Loan.
If the replacement reserve account (`reserves ") is depleted clue to unforeseen repairs and the
General Partner makes a loan to the Partnerslup, the reserves must be fully funded prior to payment of
said loan. The outstanding loan balance will be reflected in the annual report.
5. Annual Loan Repayment/ Residual Receipts.
a. Commencing on the date one hundred fifty (150) clays after the close of the initial Calendar
Year following the issuance of the Certificate of Completion and on or before the 150`r day of each
Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the
amount of the lesser of the outstanding balance clue under this Note or the City's Percentage of the
Residual Receipts, as provided in this Section 5.
b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the
Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year
thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and
Operating Expenses attributable to the Property for the applicable Calendar Year, along with a
computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make
a City Loan payment then due.
C. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the
Residual Receipts as payment of principal. At least fifty percent (50 %) of the Residual Receipts shall
1076A53V1389334. t 11
remain with the Borrower, with all Residual Receipts remaining with Borrower once all of the City Loans
have been fully repaid.
d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be
divided with thirty -three percent (33 %) to be applied to the first NSP Loan dated October 2013, thirty -
three percent (33 %) applied to the HOME loan of current date herewith, and thirty -three percent (33 %)
applied to the second NSP loan dated concurrently herewith. As Borrower repays its loans, the payment
percentage applied to the remaining loans shall increase.
e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days
after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce
the principal balance of the loan.
6. Loan Repayment from Refinancing Proceeds.
The Borrower shall make a loan payment to the City from every Refinancing that occurs during
the tern of this Note (other than refinancing of the conventional lender acquisition loan) not to exceed the
outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing
Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay
Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next,
the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the
City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this
Note. At least fifty percent (50 %) of the Refinancing proceeds shall remain with Borrower, with all
remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of
the Note has been fully paid. Such payment shalt be due on the date of such Refinancing, and shall be
applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of
the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in frill.
Loan Repayment from Sale Proceeds.
The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on
this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City
Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are
applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the
amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City
the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on
this Note. At least fifty percent (50 %) of the Sale Proceeds shall remain with Borrower, with all
remaining Sales proceeds remaining with the Developer to the extent the outstanding balance of the Note
has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the
principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if
Sale Proceeds are insufficient to repay the Loan in fill.
8. Accelerated Loan Payment.
The full principal amount outstanding shall be due and payable on the earlier to occur of the
following:
a. Sale or Refinancing of the Property as provided further in Section 13 hereof;
1076A53V1389384.1
unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan,
the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with
the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are
insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains
obligated pursuant to the terms of this Note.
b. In event of default (subject to any applicable notice and cure provisions) pursuant to any
of the Loan Documents or the Senior Loan Documents.
c. Any default (subject to any applicable notice and cure provisions by Borrower as to any
other loan or loans by City to Borrower with respect to the Property; or
d. The date that is fifty five (55) years after the date of execution of this Note. On
that date, the City agrees to review the performance of the Property and consider in good faith any
reasonable request by Borrower to modify the terms or extend the Term of this City Note.
9. Prepayment
Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at
any time without penalty, however the Affordability Restrictions on Transfer of Property still remain for
the entire Affordability Period of fifty -five (55) years.
10. Lawful Monev.
Principal is payable in lawful money of the United States of America.
11. Application of Payments; Late Charles.
a. Any payments received by the City pursuant to the terms hereof shall be applied
first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the
payment of principal.
b. If any payment is not received by the City within fifteen (15) Business Days after Developer's
receipt of written notice that such payment was not received when due, then in addition to the remedies
conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four
percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the
City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late
charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under
applicable law on the obligation evidenced by this Note, computed from the date on which the amount
was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the
other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any
expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any
installment of principal, fees, or other amounts payable to the City under this Note or any other Loan
Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing
provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary
to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall
be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City.
1076A5311389384.1 6
12. Security
This Note is secured by the recorded Deed of Trust.
13. Acceleration by Reason of Transfer or Financing
a. In order to induce City to make the loan evidenced hereby, Borrower agrees
that in the event of any transfer of the Property without the prior written consent of City (other than a
transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the
Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or
notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction
shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City
may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer
shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and
agree to be bound by all provisions contained herein. Such assumption shall not, however, release
Borrower from any liability thereunder without the prior written consent of City.
b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of
the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of
law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or
a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include
the leasing of individual residential units on the Property, so long as Borrower complies with the
provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such
leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which
Borrower is a general partner, or to a corporation or l mited liability company that is wholly owned by the
Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or
the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in
excess of the balance of the Senior Loan, without the prior written consent of City (which consent City
may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be
repaid to the City at the time of each Refmancing or partial Refinancing.
c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not
include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when
made in connection with the exercise by the Borrower's limited partner (the "Limited Partner ") of its
rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership
Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as
the removal and substitution of the defaulting general partner is made within thirty (30) days of such
default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so
long as the Limited Partner commences to take action to remove and substitute the general partner with a
reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the
Property to the managing general partner of Borrower pursuant to the right of first refusal or to the
general partners of Borrower pursuant to the purchase option, as provided for in the Partnership
Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited
Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other
disposition of an interest in a limited partner of the Borrower.
14. Event of Default.
1076\53 \1389384.1
Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be
deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any
payments provided for herein, and if such default is not made good within fifteen (15) Business Days
after Developer's receipt of written notice that such payment was not received when due; (b) failure by
Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability
Restrictions on Transfer of Property within thirty (30) days after written demand therefor by City (or, in
the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail
to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a
default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been
provided and the expiration of any applicable cure period therefore„ if any, provided therein.
15. Remedies.
Upon the occurrence of an Event of Default, after any applicable notice has been provided and
the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby
immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note,
and to Borrower, written declaration of default and demand for sale, and written notice of default and of
election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and
City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note
and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence
of an Event of Default (and so long as such Event of Default shall continue), the entire balance of
principal shall bear interest at the Bank of America reference rate on the due date of the delinquent
payment plus four percent (4 %). No delay or omission on the part of the City in exercising any right
under this Note or under any of the other Loan Documents shall operate as a waiver of such right.
16. Attorney Tees.
If this City Promissory Note is not paid when clue or if any Event of Default occurs, Borrower
promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys'
fees, whether or not any action or proceeding is brought to enforce the provisions hereof.
17. Severabilitv.
Every provision of this Note is intended to be severable. In the event any term or provision
hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms
and provisions shall remain binding and enforceable.
18. Number and Gender.
In this Note the singular shall include the plural and the masculine shall include the feminine and
neuter gender, and vice versa, if the context so requires.
19. Non - recourse.
The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor
any other party shall have any personal liability for repayment of the City Loan or for any other amounts
under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of
t076A5311389334.1 Q
City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts
arising therefrom shall be the exercise of its rights against the Property and related security thereunder.
20. Subordination.
It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a
subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust.
21. Notice of Default.
a. Subject to the applicable cure periods set forth in Section 14 and subject to the further
provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this
Note constitutes a default under t1-:ris Note. The Borrower must immediately commence to cure, correct, or
remedy such failure or delay and shall complete such cure, correction or remedy with reasonable
diligence.
b. The City shall give written notice of default to the Borrower specifying the default
complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor
shall it change the time of default.
c. Except in the case of a monetary event of default, the Borrower shall not be in default so
long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such
cure, correction or remedy is completed within the applicable time period set forth herein after receipt of
written notice (or such additional time as may be deemed by the City to be reasonably necessary to
correct the default).
d. Any failures or delays by the City in asserting any of its rights and remedies as to any default
shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in
asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or
remedies.
e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior
to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower
shall have a period of fifteen (15 Business Days after such notice is received within which to cure the
default prior to exercise of remedies by City under this Note and the Deed of Trust.
f If a non - monetary event of default occurs under the terms of this Note or the Deed of Trust,
prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default
is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a
cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such
that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates
corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a
cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure
the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising
remedies if its security becomes or is about to become materially jeopardized by any failure to cure a
default or the default is not cured within one hundred eighty (180) days after the first notice of default is
given.
107653V1339384.1
22. Insurance and Condemnation.
In the event of any fire or other casualty to the Property or eminent domain proceedings resulting
in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property,
and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are
sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate
security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall
have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major
rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding
under a construction escrow or similar arrangement, and (c) no material default then exists under this
Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total
rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City
Loan in a manner that provides adequate security for repayment of the remaining balance of the City
Loan.
23. Force Maieure.
Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to
be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods;
earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation;
unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor
or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental
City or entity (except that any act or failure to act of City shall not excuse performance by City); or any
other causes beyond the reasonable control or without the fault of the party claiming an extension of time
to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time the party claiming such extension gives notice to the other party, provided
notice by the party claiming such extension is given within thirty (30) days after the commencement of
the cause. Times of performance under this Note may also be extended in writing by the City and the
Borrower.
24. Assignment.
The City, and the assignee of the City, shall have the right to assign this Note and the Deed of
Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower
as soon as practicable after such assignment.
1076153 \13893841 10
This City HOME Promissory Note is hereby agreed to and executed on the date first set forth above.
815 ILIRBOR, LP, a California limited partnership
MANAGING GENERAL PARTNER
OHDC 815 N Harbor, LLC
a California limited liability company
ORANGE HOUSING DEVELOPMENT CORPORATION
a California nonprofit corporation, its sole member
C
Eunice Bobert, Chief Executive Officer
DEVELOPER GENERAL PARTNER
C &C 815 N IIarbor, LLC
a California limited liability company
ME
Todd R. Cottle, its member
By: Cottle Family Trust Dated 3/8/87,
C
Barry A. Cottle, its Trustee
1076A53A1389384.1
EXHIBIT G
Affordability Restrictions on Transfer of Property
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Ana
Corrrrnunity Development Agency
Housing Department M -37
20 Civic Center Plaza, 6th Floor
P.O. Box 1988
Santa Ana, California 92702
SPACE ABOVE THIS LINE FOR RECORDING USE
FREE RECORDING REQUESTED
[Government Code Section 6103]
AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
(815 N. Harbor Boulevard, Santa Ana, CA)
THESE AFFORDABLE HOUSING RESTRICTIONS ON TRANSFER OF
PROPERTY (the "Restrictions ") are entered into as of June 26, 2015, by and among and
815 Harbor, L.P., (referred to herein as the "Developer ") a California limited partnership,
the City of Santa Ana, a charter city and municipal corporation (the "City").
RECITALS:
A. Developer is the owner of that certain real property located at 815 North
Harbor Boulevard, (the "Property ") located in the City of Santa Ana more particularly
described in Exhibit A, which is attached hereto and incorporated herein by this reference.
B. For the purpose of providing two units of housing that will be affordable to
Very Low and Low Income households ( "HOME Assisted Units "), the Developer and the
City have entered into that certain Loan Agreement for the loan of HOME fiords, dated on
or about the date hereof (the "Loan Agreement ") to which these Restrictions are attached
as Exhibit G, which, along with all of its attachments, is incorporated herein by this
reference (any capitalized term that is not otherwise defined in these Restrictions shall
have the meaning ascribed to such term in the Loan Agreement).
C. The Loan Agreement provides, among other things, for the use of the Property
for affordable housing with 56 units being restricted to Very Low and Low Income
households and 13 units restricted to Moderate Income households, at Affordable Rent(s).
D. The Loan Agreement contains certain provisions relating to the use of the
Property.
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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 of Very Low, Low, and Moderate Income households, as provided in these
Restrictions and in the Loan Agreement.
2. Developer, for itself and its successors and assigns, hereby covenants and
agrees that all of the apartments in the Property (the "Units ") shall be rented exclusively,
at Affordable Rent, to Very Low and Low Income households. Area median income
levels and Affordable Rents are subject to adjustment from time to time as provided in
Section 3 below.
3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF
THE PROPERTY
3.1 Use Covenants and Restrictions.
A. Developer agrees and covenants, which covenants shall run with the land and bind
Developer, its successors, its assign and every successor in interest to the Property that
Developer will make all units on the Property available to very low,low, and moderate income
households at rents affordable to such households for fifty -five (55) years from the date of full
occupancy of the Project. The HOME restrictions for the two (2) HOME assisted units shall be
enforced until the date that is twenty (20) years after the date on which the City reports the
Project as complete to the Department of Housing and Urban Development. Upon expiration
of the 20 year HOME compliance period, the City will enforce affordability of the two (2)
HOME assisted units with the same income and rent restrictions as the other units, pursuant to
City guidelines and the California Health and Safety Code.
B. The Project shall consist of seventy units; 69 affordable units, with one on -site
manager unit. There shall be two (2) three - bedroom 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.
C. Rental increases shall be in conformance with federal and state law. After the
twenty (20) 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, as required by the California Health & Safety Code.
D. Affordable rents shall be governed by California Health and Safety Code Sections
50052.5 and 50053(b)(1), and as provided in the HOME Regulations 24 CFR section 92.2.
3.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents
may be recalculated to allowable rental amounts at the time of initial tease -up following
completion of constriction in accordance with any changes in allowable rent and income
tables as published by HUD.
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A. HOME Assisted Units
# of Units Max Gross Monthlv
Rent
Very Low 3 Bedroom 2 $ 1,252
(1) In no event shall the rent charged to the HOME assisted units be more
than that amount of the low rent as published by HUD, as amended from
time to time.
(2) Remaining non -HOME units will be based on TCAC rents.
3.3 Rent Increases: On an annual basis, the City shall provide the Developer with the
maximum allowable schedule of rents for the Property. In no event can Developer charge
any tenant more than such amount.
4. 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 Executive Director shall
notify Developer in writing of the adjusted allowable maximum incomes and rents.
5. Developer shall adopt and include as part of its Management Plan
(described in Section 11 below), written tenant selection policies and criteria for the Units,
that meet the following requirements:
(a) Are consistent with the purpose of providing housing for Very Low,
Low, and Moderate Income households;
(b) Are reasonably related to program eligibility and the applicants'
ability to perform the obligations of the lease;
(c) Give reasonable consideration to the housing needs of households
that would have a preference under 42 CFR §906.211 (Federal selection preferences for
admission to Public Housing);
(d) Provide for:
(i) The selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable; and
(ii) The prompt written notification to any rejected applicant of
the grounds for any rejection;
(e) Provide first priority in the selection of qualified eligible tenants to
households that are referred by the City; and
(f) Carry out the Affirmative Marketing procedures of the City of Santa
Ana, which are designed to provide infonnation and otherwise attract eligible persons
3 of 10
from all racial, ethnic and gender groups in the housing market area to the units.
Developer, the City shall cooperate to effectuate this provision prior to the initial renting,
or upon occurrence of a vacancy, and the re- renting of any Restricted Units (24 CFR
92.351).
6. Developer, its successors and assigns, shall not refuse to lease a unit to a
holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or
to a holder of a comparable document evidencing participation in a HOME tenant -based
assistance program because of the status of the prospective tenant as a holder of such
certificate of family participation, rental voucher, or comparable HOME tenant -based
assistance document. Total rents charged to such tenants, including the tenant
contribution and rental assistance, shall not exceed the allowable rents as described above.
7. Any lease of any of the units must be for not less than one year, unless by
mutual agreement between the tenant and the Developer. Should the tenant and Developer
agree to a term of less than one year, said agreement shall be expressed in some type of
written form, signed by the tenant, and maintained in the tenant's rental file held by the
Developer. The lease may not contain any of the following provisions (in which
references to "owner" shall mean the Developer, its successors or assigns):
(a) Agreement by the tenant to be sued, to admit guilt, or to a judgment
in favor of the owner in a lawsuit brought in connection with the lease;
(b) Agreement by the tenant that the owner may take, hold, or sell
personal property of household members without notice to the tenant and a court decision
on the rights of the parties. This prohibition, however, does not apply to an agreement by
the tenant concerning disposition of personal property remaining in the housing Unit after
the tenant has moved out of the Unit. The owner may dispose of this personal property in
accordance with state law;
(c) Agreement by the tenant not to hold the owner or the owner's agent
legally responsible for any action or failure to act, whether intentional or negligent;
(d) Agreement of the tenant that the owner may institute a lawsuit
without notice to the tenant;
(e) Agreement by the tenant that the owner may evict the tenant or
household members without instituting a civil court proceeding in which the tenant has the
opportunity to present a defense, or before a court decision on the rights of the parties;
(f) Agreement by the tenant to waive any right to a trial by jury;
(g) Agreement by the tenant to waive the tenant's right to appeal, or to
otherwise challenge in court, a court decision in connection with the lease; and
(h) Agreement by the tenant to pay attorney's fees or other legal costs
even i f 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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8. Developer, its successors or assigns, must adhere to state law requirements
with regard to termination of tenancy.
9. Developer shall maintain the improvements on the Property in compliance
with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local
code requirements (California Health and Safety Code section 33418), and shall keep the
Property free from any unreasonable accumulation of debris or waste materials.
Developer shall also maintain in a healthy condition any landscaping planted on the
Property.
10, 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 .
11. Not later than five (5) business days prior to the execution of the
documents, Developer shall submit to the Executive Director a Management Plan in a
form that is acceptable to the Executive Director, including, but not limited to, the
components listed below. Approval of the Management Plan must be obtained fi-orn the
Executive Director not later than the time for the Closing. Developer shall manage the
Assisted 'Units in accordance with the approved Management Plan, including such
amendments as may be approved in writing from time to time by the Executive Director,
for the term of the income and rent restrictions contained in these Restrictions, The
components of the Management Plan shall include:
(a) Management Agent. Advanced Property Services, LLC is
approved as the Management Agent. The Executive Director shall approve or disapprove
any proposed change of the Management Agent in writing based on the experience and
qualifications of the Management Agent,
(b) 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.
(c) Annual Budget and Pro jected Cash Flows. Prior to the Closing,
and annually thereafter not later than ninety (90) days after the close of each calendar year
thereafter, Developer shall submit a projected operating budget and cash flow to the
Executive Director. The budget and cash flow shall be in a form that is acceptable to the
Executive Director.
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(d) Tenant Selection Policies. Developer shall include in the
Management Plan the tenant selection policies in accordance with Section 4, above.
12. If at any time the City determines that the units are not being managed or
maintained in accordance with the approved Management Plan, Developer shall change
the management agent or the practices complained of, upon receipt of written notice from
the Executive Director. 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. Within ten (10) days following a direction of the
Executive Director to replace the management agent, the Developer shall select another
management agent or make other arrangements satisfactory to the Executive Director or
designee for continuing management of the units.
13. The covenants established in these Restrictions and any amendments hereto
approved by the City and Developer shall, without regard to technical classification and
designation, be binding for the benefit and in favor of the City and their respective
successors and assigns. These Restrictions shall remain in effect for fifty -five (55) years
from the date of full occupation of the Project. In its discretion, the City may defer
repayment of the HOME Loan or the City may agree to such reasonable modifications to
the requirements of these Restrictions, as they may determine are necessary for the
continued maintenance and operation of the Assisted Units. The covenants against
discrimination shall remain in effect for the period of these Restrictions.
14. Developer shall not request disbursement of HOME funds until the funds
are needed to pay eligible costs. The City shall have the right to disapprove any request if
the City determines the request is for an ineligible item or is otherwise not in compliance
with or inconsistent with the Loan Agreement and these Restrictions [24 CFR 92.504
(c)(10)].
15. Developer shall prepare, maintain and submit to the City, as appropriate,
the following records and reports in compliance with 24 CFR 92.504 (c) (12):
a. Annual Reports. Developer shall file with the City an Annual Report
(herein refer-red to as the "Annual Report") within ninety (90) days following the end of
each calendar year, commencing with the end of the calendar year (or portion thereof) in
which the Real Estate Closing occurs. The Annual Report shall contain a certification by
Developer as to such information as the City Executive Director may then require,
including, but not limited to, the following:
(1) The fiscal condition of the Project, including the Annual Budget and
Project Cash Flow report required by Section 10 (c) of the Affordable Housing
Restrictions which shall include a financial statement for the previous calendar year that
includes a balance sheet and a profit and loss statement indicating any surplus or deficit in
operating accounts; a detailed itemized listing of income and expenses; and the amounts of
any fiscal reserves. Such Annual Budget and financial statement shall be prepared in
accordance with generally accepted accounting practices. The City Executive Director
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may require that the financial statement be audited at Developer's expense by an
independent certified public accountant acceptable to the Executive Director.
(2) Any substantial physical defects in the Project, including a
description of any major repair or maintenance work undertaken or needed in the previous
and current years. Such statement shall describe what steps 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.
(3) The occupancy of the units indicating the income of each current
resident and the current rents charged each resident and whether those rents include
utilities, including records that demonstrate that the Project meets the requirements of 24
CFR 92.253 for tenant and participant protection under the HOME Program.
(4) General management performance, including tenant relations and
other relevant information.
(5) Records that demonstrate that the units meet the affordability
requirements of 24 CFR 92.252, 50052.5 and 50053(b)(1) of the California Health and
Safety Code, for the required period of affordability according to section 33334.3 of the
California Health and Safety Code.
(6) Evidence of a currently paid hazard insurance policy in accordance
with the requirements of Section 6 of the City /HOME 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
Director.
(7) Evidence of a currently paid liability insurance policy, naming the
City as additional insured and in a form approved by the City Attorney with coverage as
described in the Loan Agreement.
(8) Termite reports pertaining to the Property every fifth (51h) year.
(9) Such other information as may be reasonably required by the
Executive Director or his/her designee.
b. Records and Audits. Developer shall maintain the following general
program records, and make them available for inspection by the City, the State or HUD:
(1) records which demonstrate that the project meets the property
standard specified in 24 CFR 92.251;
(2) records, for each HOME Assisted Unit, which demonstrates that the
project meets the requirements of 24 CFR 92.252.
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(3) records which demonstrate compliance with the tenant and
participant protections, as specified in 24 Section 29.253;
(4) records which demonstrate compliance with the Equal Opportunity
and Fair Ifousing requirements outlined in these Restrictions, including:
(A) data on the extent to which each racial and ethnic group and
single head of household (by gender of head of household) have applied for, participated
in, or benefited from, any program or activity funded in whole or in part with HOME
funds;
(B) documentation of actions undertaken to meet the equal
opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing
Development Act of 1968, as amended (12 U.S.C. 1701u);
(C) documentation and data on the steps taken to implement
Developer's outreach programs to minority -owned and women - owned businesses to meet
the minority outreach requirements of 24 CFR 92.350;
(5) documentation of the steps taken to carry out an affirmative
marketing program in accordance with 24 CFR 92.351, if applicable;
(6) if applicable, records which demonstrate compliance with the
requirements relating to relocation of displaced persons, as described in 24 CFR 92.353.
At a minimum, these shall include project occupancy lists identifying the name and
address of all persons occupying the project property up until the date of the Real Estate
Closing (i.e., the date on which ,Developer obtained site control);
(7) records concerning lead -based paint in accordance with 24 CFR
92.355;
(8) if applicable, records which support any requests for waivers of the
conflict of interest prohibition as stated in 24 CFR 92.356;
(9) records of certifications of contractor qualifications as they relate to
the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Pant
24; and
(10) any other reports issued by other monitoring agencies.
C. All records pertaining to each calendar year of HOME funds must be
retained for the most recent five (5) year period, except that for rental housing projects,
records may be retained for five years after the project completion date; except that
records of individual tenant income verifications, project rents and project inspections
must be retained for the most recent five year period, until five years after the affordability
period terminates (24 CFR 92.508). 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
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expiration of the Loan Agreement and any and all amendments hereto, or for five years
after the conclusion or resolution of any and all audits or litigation relevant to the Loan
Agreement, whichever is 'later. The City, the State, the Office of the Auditor General of
HUD, and /or their representatives shall have unrestricted reasonable access to all
locations, books, and records for the purpose of monitoring, auditing, or otherwise
examining said locations, books, and records with or without prior notice.
d. If so directed by the City, the State or HUD upon termination of the Loan
Agreement, 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.
e. All records, accounts, documentation and other materials relevant to the
Project shall be accessible at any time to the authorized representatives of the City, the
State or HUD, on reasonable prior notice, for the purpose of examination or audit.
f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the
close of each calendar year in which these Restrictions are in effect. Developer shall
reasonably cooperate with City in performing such audit.
16. 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. The City shall
have the right if the covenants are breached, to exercise all rights and remedies, and to
maintain any actions or suits at law or in equity or other proper proceedings to enforce the
curing of such breaches to which they or any other beneficiaries of these Restrictions and
covenants are entitled.
17. The covenants and agreements contained herein shall run with the land and
not be personal obligations of Developer. Upon the sale, conveyance or other transfer of
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.
18. The Loan Agreement and all of its attachments shall be enforceable by
City in accordance with the terns thereof. Each of the Loan Agreement, the Affordability
Restrictions on Transfer of Property, the City/1IOME 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 92.504 (c) (13)].
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IN WITNESS WHEREOF, the patties hereto have caused this Agreement to be executed
on the date set forth at the beginning of this Agreement.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORtNI:
SONIA R. CARVALHO, City Attorney
Ryan O. Hodge,
Assistant City Attorney
DEVELOPER:
815 Harbor, LP
a California limited partnership
MANAGING GENERAL PARTNER
CITY OF SANTA ANA
David Cavazos
City Manager
RECOMMEND APPROVAL:
Kelly L. Reenders, Executive Director
Community Development Agency
OHDC 815 N Harbor, LLC
a California nonprofit, public benefit corporation
C
Eunice Bobert, Chief Executive Officer
DEVELOPER GENERAL PARTNER
C &C 815 N Harbor, LLC
a California limited liability company
BY: Cottle Family Trust Dated 3/8/87, its Member
By:
Barry Cottle, Trustee
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EXHIBIT H
City's Affirmative Marketing Program
Exhibit H
2/24/03L5 .
CITY OF SANTA ANA
AFk'IP.MATIVE MARE ETING AND MII ORITY GUTREACH PRO GRAIA
AFFIRMATIVE MARM TING PROGRAM
The City of Santa Ana is a participating jurisdiction in the federal HOME Investment
Partnership Program (HOME) and the Community, Development Block Grant Program
(CDBG). Federal law requires that all, participating jurisdictions adopt affirmative
marketing policies that.include:
A. Methods to inform the public about federal fair housing laws and the City's
affirmative marketing policy;
B. Requirements- and practices owners niust adhere to in order to carry out this
policy;
C. Procedures owners must use to inform and solicit applications from persons in the
housing market area who are not likely to apply for the housing without special
outreach;
D. Records that owners and the City wi11 keep describing the actions they have taken
to affirmatively market units and records to assess the results of these actions; and
E. A description of how the City will annually assess the success of affirmative
marketing actions and determine what corrective actions are needed.
The City's affnmative marketing procedures and requirements for rental and homebuyer
projects containing five or more FIOME or.CDBG- assisted housing units are set forth
below. These procedures and requirements constitute the City's Affirmative Marketing
Program. These procedures and requirements do not apply to .families with Section 8
tenant -based rental housing assistance or families with tenant -based rental assistance
provided with HOME funds.
A- Methods to inforin the public about federal fair housing harps:
The City will display the Equal Housing logotype or slogan in housing - related
press releases and solicitations for owners, and on the website page for the City's
Housing and Neighborhood Development Division,
The City will request that the County of Orange include information on the City's
HOME and CDBG- assisted rental units in its countywide Affordable Housing
List maintained by the County. This list can be founcl on the intemet at
h -ww.oc.ca nnv/ housing /AffordableHousinQList,hCin. The City will
maintain a link to thus website on the website page for the City's 'Hmising and
EXHIBI'X' I
Resolution No, 2003 -031
Page 3 of 6
Neighborhood Development. Division and for the Santa'Ana Housirig Authority.
Copies of the list will be available at the public "reception counters for the Housing
and Neighborhood Development Division and the Santa Ana Housing Authority.
B. Requirements and practices o }vners must adhere for -
The City will require owners of City HOME and CMG-assisted rental units
covered under this marketing plan to display the Equal Housing Opportunity
logotype or slogan in all correspondence with current or potential tenants, and on
lease agreements. The City will require them to display the fair housing poster in
their leasing "offices, and to develop written procedures for selecting tenants.
These procedures must meet the following criteria:
o They must be consistent with the purpose of providing housing for very
low- income and low - income families;
o They must be reasonably related to program eligibility and the applicants'
ability to perform the obligations of the lease;
o They must give reasonable consideration to the housing needs of families
that would have a federal preference under section 6 0(4)(A) of the Act;
o They must provide for the selection of tenants from a written waiting list
in chronological order of their application, insofar as is practicable;
o They must call for prompt written notification to any rejected applicant of
the grounds for any rejection.
G Procedures for owners:
The City will require Owners of City HOME and CDBG- assisted rental units to
continuously review the demographic makeup of their tenants. If and when such
review indicates that their tenants no longer reflect the City's minority population,
they will be required to inform the City of that fact and request City review and
approval of steps they will take to correct that deficiency.
Compliance with the City's affirmative •marketing - requirements and procedures
will be made an obligation of all rental property owners receiving HOME or
CDBG assistance from the City of Santa Ana, and will be enforceable by means
of appropriate actions described in loan documents recorded through the County
of Orange.
D. Record keeping:
The City will require owners of its HOME and- CDBG- assisted rental units
covered under this marketing plan to make an annual report to the City detailing
the steps they have taken to comply with this program, They will also be required
to report on the ethnicity of their tenants, as well as rents, income levels, and other
household characteristics. Reports will be made on a form that is acceptable to
Resolution No. 2003-031 H YJBBIT 1
Page 4of5
212A/03LS.
the City of Santa Ana, and that will enable the City xo capture the data it needs to
evaluate owner compliance with this program,','
The City will maintain records on owner reports and its evaluation of those
reports for a period of not less than ten years after expiration of the affordability
period required by applicable HUD regulations.
E. Annuaiassessment:
*2� Upon receipt of'owner reports, the City will evaluate the ethnic and racial
characteristics of tenants being 'served to determine if they reflect the City's
housing market. If they do not, the City will direct the owner to take further
affirmative marketing steps to correct the imbalance. The City will track and
evaluate the steps taken to ensure they have the desired effect.
MINORITY OUTREACH PROGRAM
As a participating jurisdiction, the City is also required to adopt certain affirmative steps
to ensure maximum feasible participation in HDIvIE and CDBG- funded projects by
minority business enterprises, women's business enterprises, labor surplus area firms and
other small businesses. These affirmative steps are listed below and constitute the City's
Minority0utrea6h Procedures and Requirements Program for HOlM and CDBG - funded
projects,
•.+ The City will place qualified small and minority businesses and women's
business enterprises on solicitation lists;
The City will assure that small and minority businesses, and women's business
enterprises are solicited whenever they are potential sources;
The City will divide total requirements, when economically feasible, into smaller
tasks or quantities to permit maximum participation by small and minority
business, and women's business enterprises;
�3 Thd City will use the services and , assistance of the Small Business
Administration and the Minority Business Development Agency of the
Department of Commerce; and
The City will require the prime contractor, if subcontracts are to be let, to take the
affirmative steps listed above.
The City will annually review the results of these procedures to determine if additional
steps should be taken.
EX [IM .I
Resolution No. 2003 -031
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