HomeMy WebLinkAboutAgreement A-23-095 PLHA Agreement with Guardian Village LP.pdf 23-0038 Agreement No. 23-095
1 PLHA LOAN AGREEMENT
2
3 THIS LOAN AGREEMENT ("Agreement") is made this 28th day of February
4 2023, by and between the COUNTY OF FRESNO, a political subdivision of the State of California
5 ("County") whose address is 2220 Tulare Street, 6t" Floor, Fresno, CA 93721 and Guardian
6 Village, LP, a California limited partnership consisting of Guardian Village LLC, a California limited
7 liability company as the General Partner and Self-Help Enterprises, Inc., a California non-profit
8 public benefit corporation as the Managing General Partner, ("Borrower" or Partnership), whose
9 address is 8445 W. Elowin Court, Visalia, CA 93290. County and Borrower shall be referred to
10 herein each as a "Party" or collectively as the "Parties."
11 WITNESSETH
12 WHEREAS, the County was awarded funds from the Permanent Local Housing Allocation
13 Program ("PLHA") by the California Department of Housing and Community Development
14 ("HCD"), pursuant to Health and Safety Code sections 50470 et seq. (CH. 364, Stat. 2017 ("SB
15 2"), to provide for eligible housing-related projects and programs to assist in addressing the
16 County's, and its Participating Cities', unmet affordable housing needs according to the County's
17 PLHA Plan; and
18 WHEREAS, pursuant to the County's PLHA and its agreement with HCD, the County
19 intends to utilize those PLHA funds to provide deferred-payment gap loans to developers, to be
20 used for the acquisition, rehabilitation, preservation and/or construction of affordable rental
21 housing; and
22 WHEREAS, the Borrower has applied to the County PLHA Plan funds to assist with the
23 development of an affordable multi-family apartment complex, Guardian Village ("Project"), which
24 shall be affordable to very-low to low-income households; and
25 WHEREAS, the Borrower requested a loan of One Million Seven Hundred Seventy-Five
26 Thousand Dollars ($1,775,000)from the County PLHA Program, to assist with the acquisition and
27 construction of the Project, a forty-eight(48) unit rental housing development, of which forty-seven
28 (47) units shall be restricted, and affordable to very low and low-income persons, with twenty-four
1
1 (24) units of the forty-seven (47) affordable units funded by, and subject to, the County's State
2 PLHA funds requirements ("PLHA-assisted)
3 WHEREAS, the County has One Million Seven Hundred Seventy-Five Thousand Dollars
4 ($1,775,000) available from its PLHA funding to loan to the Borrower for the Project, subject to
5 the terms and conditions described herein; and
6 WHEREAS, the Project shall increase or preserve the supply of affordable rental housing
7 units in Fresno County for the households earning no more than eighty percent (80%) of the
8 Fresno County AMI; and
9 WHEREAS, the total estimated Project cost is Twenty-Four Million, Eight Hundred Sixty
10 Thousand, Eight Hundred Sixty-Two Dollars ($24,860,862), and the Borrower has, or shall obtain,
11 other funding commitments, apart from the County PLHA Loan, to complete the financing for the
12 Project; and
13 WHEREAS, the County has determined the Borrower has the capacity to develop the
14 Project, and the Project has been determined to meet PLHA requirements for funding; and
15 WHEREAS, the County shall loan the designated PLHA Program funds to the Borrower,
16 on the condition that the Project be maintained and operated in the accordance with Health and
17 Safety Code Section 50470, the regulations promulgated thereunder by HCD, and in accordance
18 with additional restrictions concerning affordability, operation, and maintenance of the Project, as
19 specified in the loan documents; and
20 WHEREAS, the Project is consistent with the County's Consolidated Plan and the City of
21 Reedley's General Plan.
22 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
23 herein contained, the Borrower and the County agree as follows:
24 I. DEFINITIONS
25 The following terms have the meaning and content set forth in this Section 1
26 wherever used in this Agreement, attached exhibits, or attachments that are incorporated into this
27 Agreement by reference.
28 A. "Acquisition" means vesting of the Property in fee title to the Borrower.
2
1 B. "Affordable" means a housing unit that satisfies either of the following
2 criteria: 1) if the unit is being rented to Low-Income, Very low-income, or Extremely low-income
3 households, it complies with the Multifamily Housing Programs guidelines Section 7312 and the
4 Section 7301 definition of "Affordable Rent"; or 2) if the unit is being rented to Moderate-Income
5 households, it is available at a gross rent, including a utility allowance, that does not exceed 30
6 percent (30%) of the application income eligibility level, and complies with the definition of
7 Moderate-Income in these guidelines.
8 C. "AMI" means the Area Median Income for Fresno County, as reported
9 annually by HCD.
10 D. "Budget' means the Budget for the development of the Project, attached
11 as Exhibit "C", and incorporated by this reference.
12 E. "Eligible Costs" means the PLHA-eligible property acquisition,
13 rehabilitation, preservation, and/or construction costs for the acquisition, rehabilitation,
14 preservation, and/or construction of multifamily residential rental housing that is affordable to Low-
15 Income households, as identified in the Project Budget, attached as Exhibit "C", and allowable
16 under the PLHA statues and Guidelines. Eligibility Costs shall include construction and
17 development costs directly related to the PLHA Units, but not unrelated administrative costs.
18 F. "Guidelines" or TLHA Guidelines" means the Final PLHA Guidelines
19 promulgated by HCD in October 2019, as they may be amended from time to time.
20 G. "Hazardous Materials" means any hazardous or toxic substances,
21 materials, wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous
22 substances," "hazardous waste," "hazardous materials," "pollutants," "contaminants" or "toxic
23 substances" under federal or state environmental and health safety laws and regulations,
24 including without limitation, petroleum and petroleum byproducts, flammable explosives, urea
25 formaldehyde insulation, radioactive materials, asbestos and lead. Hazardous Materials do not
26 include substances that are used or consumed in the normal course of developing, operating, or
27 occupying a housing project, to the extent and degree that such substances are stored, used, and
28 disposed of in the manner and in amounts that are consistent with normal practice and legal
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1 standards.
2 H. "Loan" means the portion of the County's PLHA Allocation, in an amount
3 not to exceed One Million Seven Hundred, Seventy-Five Thousand Dollars ($1,775,000), to be
4 loaned at a 3% interest, deferred rate to the Borrower, and to be used for the Eligible Costs related
5 to the Project.
6 I. "Loan Documents" are collectively this Agreement, and all related
7 documents or instruments as they may be amended, modified, or restated from time to time, along
8 with all exhibits and attachments, relative to the Loan. Such documents may include the
9 Promissory Note, the Deed of Trust, and the Regulatory Agreement.
10 J. "Low-Income" shall have the meaning set forth in Health and Safety Code
11 section 50079.5, which is a maximum of eighty percent (80%) of AMI, as determined by HCD
12 annually. "Low-Income households" includes "Lower-Income households," as defined in Health
13 and Safety Code Section 50079.5.
14 K. "HCD" means the California Department of Housing and Community
15 Development.
16 L. "Period of Affordability" means fifty-five (55) years, beginning twelve
17 months from the date the Notice of Completion is recorded with the County.
18 M. "PLHA" or "PLHA Program" means the Permanent Local Housing
19 Allocation program administered by HCD, pursuant to Health and Safety Code sections 50470 et
20 seq., implementing SB 2 (Ch. 364, Stat. 2017), and the Guidelines promulgated thereunder.
21 N. "PLHA Funds" means the total sum of PLHA monies granted to the County
22 for five (5) year periods beginning in 2019.
23 O. "PLHA Rent" means Rents that the County of Fresno shall determine to
24 meet the PLHA rent requirements.
25 P. "PLHA Units" means those units in the Property which shall be subject to
26 PLHA Program requirements.
27 Q. "Project" means the acquisition, rehabilitation, and/or construction of the
28 Property with a forty-eight (48) unit rental housing development, of which forty-seven (47) units
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1 shall be restricted, and affordable to very low and Low-Income persons,with twenty-four(24) units
2 of the forty-seven (47)Affordable units PLHA-assisted.
3 R. "Project Schedule" means the schedule for commencement and
4 completion of the Project included in Exhibit "D", attached, and incorporated by this reference.
5 S. "Property" means the proposed rental housing development currently titled
6 Guardian Village, located in Reedley, California, Fresno County, APN 370-122-03, more
7 particularly described in the Legal Description, attached as Exhibit "A", and incorporated by this
8 reference.
9 T. "Regulatory Agreement" means the Regulatory Agreement and Declaration
10 of Restrictive Covenants between the County and the Borrower, to be recorded on the Property
11 pursuant to his agreement.
12 U. "SA" shall mean the Standard Agreement entered into by the County and
13 HCD governing the terms for the initial grant of the PLHA Allocation to the County, and any
14 subgrant or loan of amounts thereof.
15 V. "Term" shall have the meaning identified in Section VI of this Agreement.
16 W. "Total Project Cost" means the current estimated total cost of the
17 development of the Property, including but not limited to the PLHA Loan amount, consisting of
18 Twenty-Four Million, Eight Hundred Sixty Thousand, Eight Hundred Sixty-Two Dollars
19 ($24,860,862) as identified in Exhibit "C".
20 X. "Very Low-Income households" has the meaning set forth in Health and
21 Safety Code Section 50105, which is the maximum of 50 percent (50%)of AMI. "Very low-income
22 households" includes Extremely low-income households, as defined in Health and Safety Code
23 Section 50106.
24 II. PROJECT DESCRIPTION, LOCATION, SECURITY, BUILDING
25 REQUIREMENTS, AND BUDGET
26 A. DESCRIPTION
27 1. The Project consists of the acquisition and construction of forty-
28 eight (48) multi-family rental housing units, of which forty-seven (47) units shall be restricted, and
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1 Affordable to Very Low-Income households, and Low-Income households. The Project shall result
2 in the creation of a total of forty-seven (47) multi-family rental housing units, of which twenty-four
3 (24) shall be PLHA Units, and shall satisfy PLHA occupancy requirements for no less than the
4 required PLHA Period of Affordability ("Period of Affordability"). The Period of Affordability shall
5 be fifty-five (55) years, beginning twelve (12) months from the recordation of the Notice of
6 Completion. The Project's PLHA Units shall include a mix of 1-bedroom, 2-bedroom and 3-
7 bedroom units, as described in Exhibit "B", attached, and incorporated by this reference.
8 2. The Project shall provide rental housing units that shall be
9 affordable to households earning below eighty percent (80%) of AMI for Fresno County, except
10 one (1) manager unit that shall be unrestricted, as reported annually by HCD. The twenty-four
11 (24) PLHA-assisted units shall have rents, including any tenant-paid utilities, at or below the PLHA
12 Rent limits for the duration of the Period of Affordability. The Project shall meet the requirements
13 of the State PLHA, relating to rent limitations.
14 3. Exhibit "B" to this Agreement provides a detailed breakdown of the
15 Project unit mix for the forty-eight (48) units; this includes the twenty-four (24) PLHA Units.
16 Affordability for the twenty-four (24) PLHA Units must follow the AMI and the Rents for Fresno
17 County, as reported annually by the State, and as described in Exhibit "B". All twenty-four (24)
18 PLHA Units shall float within the Project as necessary to ensure compliance with the PLHA Rent
19 and occupancy requirements. The twenty-four (24) PLHA Units must, at a minimum, be the
20 approximate square footage designated, or larger.
21 B. LOCATION
22 The Project site is situated on 1.92 acres located at 601 E. 11'h Street in
23 Reedley, California. The Project shall consist of five (5) residential structures comprised of four
24 (4) three-story walk-ups and one (1) two-story walk-up, and one (1) 1-story community center,
25 which includes a shared laundry facility. The Project site does not include an elevator.
26 C. SECURITY
27 The County shall record the executed PLHA Regulatory Agreement, which
28 shall include deed restrictions against the Property that detail the rent limits and the tenant income
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1 limits for the PLHA Units, as determined by the State annually, for the specified Period of
2 Affordability (see Section I(L)). The County or applicable title company shall provide a copy of the
3 recorded PLHA Regulatory Agreement to the Borrower.
4 D. BUILDING REQUIREMENTS
5 1. All aspects of the building construction shall meet or exceed the
6 County's Affordable Housing Programs Construction/Rehabilitation Standards and the
7 International Energy. Conservation Code, and must comply with all applicable local building
8 codes.
9 2. Rental Property Standards: The Project shall meet the
10 requirements of the State relating to property standards, and all applicable local housing code
11 requirements for the duration of this Agreement, and any modifications or amendments or
12 successor agreements thereto.
13 3. Accessibility Standards: The Project shall meet the requirements of
14 the State relating to handicap accessibility. A minimum of five (5) of the units shall be accessible
15 to those with mobility impairments; two (2) additional units shall be accessible to those with
16 sensory impairments.
17 E. BUDGET
18 1. This Agreement does not provide the Borrower any legal claim to
19 any amount of PLHA loan funds to be used for the specific project or site unless, and until, the
20 Property has received environmental clearance, received authorization from the County and/or
21 State to use grant funds, and has met all other terms of this Agreement.
22 2. The total preliminary Project budget estimate is $24,860,862. The
23 proposed work to be funded with County PLHA loan funds for the development of the twenty-four
24 (24) multi-family rental housing PLHA Units in the Project is as follows:
25 Expenses to be paid with PLHA loan funds:
26 Construction Costs $1,775,000
27 TOTAL PLHA loan funds $1,775,000
28 Notwithstanding the estimates described in the above preliminary Project budget, disbursements
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1 for the twenty-four (24) PLHA Units in the Project from PLHA loan funds shall be based on the
2 actual costs, and shall not exceed the total amount of One Million Seven Hundred Seventy-Five
3 Thousand Dollars ($1,775,000). Disbursement of PLHA funds is subject to approval and
4 execution of loan security, and related documents acceptable to the County, in its sole discretion.
5 F. FUNDING
6 1. Notwithstanding any other provisions of the Agreement, the parties
7 agree and acknowledge that this Agreement does not constitute a commitment of loan funds or
8 site approval, and that such commitment of loan funds or approval may occur only upon
9 satisfactory completion of the environmental review of the Project. In addition, no commitment of
10 loan funds shall be made until all requirements contained in this Agreement or any other loan,
11 security, or other related documents are met by the Borrower, as determined by the County. The
12 parties further agree that the loan of any funds to the Project is conditioned upon the County's
13 determination to proceed with, modify, or cancel the Project, based on the results of the Project's
14 environmental review, as specified in Sections IV and V(B)(2)of this Agreement. The County shall
15 give written notification to the Borrower when these requirements have been met.
16 2. Exhibit "C" to this Agreement lists the potential sources and
17 proposed funding amounts for the Project. With the exception of County PLHA funds, these
18 sources and/or the amounts are subject to change. Notwithstanding the funding sources and
19 amounts identified in Exhibit "C", disbursements for the Project from PLHA loan funds shall be
20 contingent upon reliable evidence acceptable to the County, in its sole discretion, that the
21 Borrower has obtained all funding necessary to meet the total Project cost. In addition, the
22 Borrower may not award the Project until the County has received authorization from HCD, if
23 necessary, to use the grant funds, as described in Section IV.
24 G. CHANGES TO PROJECT
25 The Borrower shall give written notification to the County Department of
26 Public Works and Planning, Community Development Division, of any event that changes the
27 scope of the Project and/or the funding sources. The Director of the Department of Public Works
28 and Planning ("PWP Director"), or his designee, at his discretion, is authorized to permit minor
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1 changes to the scope of the Project, and/or funding sources, provided the PWP Director, or his
2 designee, determines that such changes do not substantively alter the scope of the Project, the
3 maximum amount of PLHA Loan funds allocated to the Project, or the Project's eligibility under
4 the Department of Housing and Community Development PLHA guidelines.
5 H. LOAN DISBURSEMENT
6 1. Request Required
7 The Borrower shall submit written requests to the County for Loan
8 disbursements to pay actual costs incurred in the performance of this Agreement. Any such
9 request for disbursement of Loan funds shall be accompanied by a written certification from the
10 Borrower that the request for disbursement is consistent with the amount of work in furtherance
11 of the Project that has been completed, and that to the best of the Borrower's knowledge, the
12 requested amounts are in accordance with this Agreement. All requests for disbursement and
13 supporting documentation shall be
14 Department of Public Works and Planning
Community Development Division
15 Affordable Housing Programs
2220 Tulare Street, 6t" Floor
16 Fresno, CA 93721
17 2. Documentation
18 Requests for disbursement shall be accompanied by supporting
19 documentation acceptable to the County detailing the items comprising the total sought to be
20 reimbursed, such as invoices or vouchers for services or materials purchased, contractors' costs,
21 or other costs chargeable to the Project.
22 3. Funding
23 Notwithstanding changes in the funding sources and amounts
24 identified in Exhibit "C", disbursements for the Project from PLHA funds shall be contingent upon
25 the County's receipt, review, and approval of reliable evidence acceptable to the County, in its
26 sole discretion, showing that the Borrower has obtained, or shall obtain, all funding commitments,
27 and/or loan documentation from other lenders. The County shall not be obligated to make any
28 disbursements of the Loan unless the following conditions precedent are satisfied:
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1 a) There exists no Event of Default nor any act, failure,
2 omission, or condition that would constitute an Event of Default under this Agreement.
3 b) Borrower has established site control of the Property
4 pursuant to the requirements of the Uniform Multifamily Regulations, Section 8303..
5 c) The Borrower has signed, notarized where applicable, and
6 delivered to the County this Agreement, the Promissory Note, the Regulatory Agreement, and the
7 Deed of Trust.
8 d) The Regulatory Agreement and the Deed of Trust have
9 been recorded against the Property in the official records of the County.
10 e) Receipt of a written request from the Borrower setting forth
11 the use of funds, the application of other sources of funds, and the amount of Loan funds
12 requested, and attached copies of all bills or invoices applicable to the costs incurred.
13 f) The County has received evidence reasonably satisfactory
14 to the County that the Borrower exists in good standing at the time of the proposed disbursement.
15 g) The Borrower has delivered to the County a copy of the
16 Borrower's organizational documents and a resolution or acceptable proof authorizing the
17 Borrower's execution of this Agreement, the Promissory Note, the Deed of Trust, and the
18 Regulatory Agreement, and all transactions contemplated by the Loan Documents.
19 h) The Borrower has furnished the County with evidence of the
20 insurance coverage meeting the requirements of Section 5(L) below.
21 i) A title insurer reasonably acceptable to the County is
22 unconditionally and irrevocably committed to issuing an ALTA Lender's Insurance Policy insuring
23 the priority of the Deed of Trust in the amount of the Loan, subject only to such exceptions and
24 exclusions as may be reasonably acceptable to the County, and containing such endorsements
25 as the County may reasonably require.
26 j) The Borrower has certified in writing to the County, and the
27 County has approved such certification, and has been provided any documentation reasonably
28 requested by the County supporting such certification, that the undisbursed proceeds of the Loan,
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1 together with other funds or firm commitments for funds that the Borrower had obtained in
2 connection with the Project, are not less than the amount that is necessary to pay for the
3 construction costs of the Project, and to satisfy all the covenants contained in this Agreement and
4 the Regulatory Agreement.
5 k) Borrower has obtained all permits and approvals necessary
6 for the construction of the Project, as required by Section V(B)(7), and County has received a
7 copy of the building permit required to construct the Project (required for disbursement for
8 construction costs only).
9 1) The County has received and approved all contracts that the
10 Borrower has entered or proposed to enter for construction of the Project, as required pursuant
11 to Section V(B)(4), herein.
12 m) The County has received copies of labor and material
13 (payment) bonds and performance bonds or alternative security, as required pursuant to Section
14 V(L)(5), herein.
15 n) Notwithstanding any other provisions of this Agreement, the
16 County shall have no further obligation to disburse any portion of the Loan to the Borrower
17 following: (1) termination of this Agreement; or (2) notification by the County to the Borrower of
18 an Event of Default under the terms of this Agreement, until such Event of Default is cured.
19 4. Payments
20 After reasonable review and progress inspections, the County shall
21 promptly make disbursements to the Borrower from County's PLHA funds provided for in this
22 Agreement for all verified Eligible Costs specified herein. The Project's proposed disbursement
23 schedule is provided in Exhibit "E", which is attached and incorporated by this reference. All
24 requests for disbursements shall be processed via Special Run check processing or a wire
25 transfer, as determined by the County, and processed by the County's Auditor-
26 Controller/Treasurer-Tax Collector ("ACTTC").
27 5. Savings
28 In the event that the Project costs less than the current estimated
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1 Total Project cost, the Borrower shall notify the County in writing of such savings. The County
2 may then, at its sole discretion, reduce the County's contribution in direct proportion to the
3 percentage of savings.
4 III. OBLIGATIONS OF THE COUNTY
5 A. FUNDING
6 The County shall reserve One Million Seven Hundred Seventy-Five
7 Thousand Dollars ($1,775,000) from the County's PLHA funds for the Project. All funds shall be
8 paid to the Borrower in accordance with Section II(H) of this Agreement, subject to all applicable
9 state and local statutory and regulatory requirements. Notwithstanding changes in the funding
10 sources and amounts identified in Exhibit"C", disbursements for the Project from PLHA Program
11 funds shall be contingent upon the County's receipt, review, and approval of highly reliable
12 evidence acceptable to the County, in its sole discretion, showing that the Borrower has obtained,
13 or shall obtain, all funding to meet the Project development costs. Evidence may include, but shall
14 not be limited to, funding commitments and/or loan documentation from other lenders, and/or
15 documents regarding tax credit allocation commitments.
16 B. LOAN DOCUMENTS
17 1. Promissory Note
18 The County shall prepare a Promissory Note ("Note")for execution
19 by the Borrower, in a form and content acceptable to the County, in the County's sole discretion.
20 The Note shall set forth the terms and conditions and plan for repayment of the PLHA Loan and
21 other fees or charges, including, but not limited to, liquidated damages, if applicable. In addition
22 to the Note, PLHA Loan funds shall be secured with a Deed of Trust recorded against the
23 Property, and other required security instruments, as described more fully below.
24 2. Deed of Trust
25 County shall prepare and record against the Property a Deed of
26 Trust for the County PLHA Loan, in a form and content acceptable to the County. The Deed of
27 Trust shall be recorded for the purpose of securing repayment of the Loan, and shall name the
28 County of Fresno, a political subdivision of the State of California, as beneficiary. The Deed of
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1 Trust shall be in fourth (4th) lien position during construction and after construction (unless the
2 County provides written approval for a lesser lien position), until the Note described in this Section
3 III(B) is fully repaid.
4 3. PLHA Regulatory Agreement and Declaration of Restrictive
5 Covenants
6 The County shall record a PLHA Regulatory Agreement signed by
7 the Borrower, in a form and content acceptable to the County. The Regulatory Agreement shall
8 impose the requirements of the PLHA Program, as set forth in the HCD PLHA Guidelines, the SA,
9 and the County PLHA Plan.
10 C. LABOR COMPLIANCE
11 The County shall verify that the Project general contractor has not been
12 debarred or suspended from participating in Federal, State, and local public works projects. The
13 County shall provide Borrower with written notification that this requirement has been met.
14 The County shall be provided at least ten (10) days' notice of, and shall
15 attend, the pre-construction meeting between the Borrower and any project or construction
16 management company contracting with the Borrower(whether those construction contractors are
17 contracting directly with the Borrower or indirectly through the Borrower's project or construction
18 management company) to discuss labor compliance requirements for the Project. The County
19 may monitor Project records and conduct field reviews to ensure that labors compliance and other
20 conditions of this Agreement have been met.
21 D. RENT REQUIREMENTS AND AFFORDABILITY
22 1. Rental Requirements
23 The County shall provide the Borrower with direction and policy on
24 establishing the County's authorized utility allowances by unit size, and the household income
25 limits, adjusted for family size, for the initial year of Project operations, and annually thereafter for
26 the Period of Affordability as defined in Section I(B), herein.
27 2. Review and Audit
28 The County shall annually review information provided by the
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1 Borrower for the Project, and shall periodically conduct on-site inspections to ensure compliance
2 with PLHA affordability requirements and compliance with the terms of this Agreement, including,
3 but not limited to, tenants' income, rents, property standards, and other PLHA rental requirements
4 during the Project's Period of Affordability. The County shall maintain a record of inspections in
5 its Project file, and shall provide copies to Borrower upon request.
6 IV. PROJECT SUBJECT TO ENVIRONMENTAL CLEARANCE AND RELEASE OF
7 FUNDS
8 In accordance with state regulations, the Borrower may not incur costs to be paid
9 with PLHA Loan funds for this Project until the County notifies the Borrower that the environmental
10 review has been completed, and is authorized to use funds from HCD. The County shall specify
11 in a letter to the Borrower that such notice of authorization to use funds has been received.
12 Any costs incurred prior to the County's written notification to Borrower that grant
13 funds may be released shall not be reimbursed from the County PLHA Loan funds, and may
14 jeopardize use of County PLHA funds for the Project.
15 V. OBLIGATIONS OF THE BORROWER
16 A. FUNDING
17 1. The Borrower certifies the authenticity and accuracy of the
18 information provided to the County with regards to the fiscal soundness of the Borrower, and
19 Borrower's capacity to undertake the proposed Project. The Borrower further certifies that it has
20 examined the Project neighborhood market conditions and has determined there is adequate
21 need for the Project.
22 2. The Borrower shall provide any and all sums of money in excess of
23 the Loan that may be necessary to complete the Project. Prior to disbursement of County PLHA
24 Loan funds, the Borrower shall secure or obtain firm commitments from other funding sources for
25 any and all sums of money in excess of the Loan amount that may be necessary to complete the
26 Project. The Borrower shall provide evidence of such commitments of funds satisfactory to the
27 County. The failure of Borrower to secure all sums of money in excess of the Loan amount that
28 may be necessary to complete the Project shall be deemed a material breach of this Agreement,
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1 as discussed in Sections IV and V of this Agreement.
2 3. The Borrower shall require that all documents with other lenders to
3 the Project include a clause stating that all Notice of Default statements be provided to the County,
4 who shall have thirty (30) days, or such longer applicable cure period, as set forth in the Note, to
5 cure said default. During said cure period, the lenders shall forbear from taking any action to
6 perfect their default remedies.
7 B. DEVELOPMENT AND CONSTRUCTION
8 1. The Borrower shall acquire, rehabilitate, preserve, develop, and
9 construct the Project as rental housing for households earning no more than eighty percent(80%)
10 of the AMI for Fresno County, as defined by HCD, at time of initial occupancy.
11 2. Environmental Clearance Required
12 The Borrower is prohibited from undertaking or committing any
13 funds to physical or choice-limiting actions, including Property acquisition, demolition, movement,
14 rehabilitation, conversion, repair, or construction prior to the environmental clearance. Violation
15 of this provision shall result in the denial of PLHA Loan funds under this Agreement.
16 3. Appraisal
17 Prior to executing Loan Documents, the Borrower shall provide the
18 County with a copy of an appraisal establishing the fair market value of the land on which the
19 Project is to be rehabilitated. Such appraisal shall be performed by a State-certified real estate
20 appraiser, or other appraiser acceptable to the County.
21 4. Construction Contract
22 Prior to award of the construction contract, the Borrower shall
23 provide the County an independent cost-estimate for the Project to determine cost
24 reasonableness. The Borrower must obtain from the County written approval of the contractor,
25 the award, amount of the contract, and the final Project budget. Prior to the date the work is to
26 begin, the Borrower shall provide both the contractor and the County with a copy of the Notice to
27 Proceed. All construction work and professional services shall be performed by persons or entities
28 licensed or otherwise authorized to perform the applicable construction work or service in the
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1 State of California. The County's approval of the construction contract shall in no way be deemed
2 to constitute approval of our concurrence with any term or condition of the construction contract,
3 except as such term or condition may be required by this Agreement.
4 5. To the extent contractors and/or subcontractors are utilized on this
5 Project, the Borrower shall ensure that contractors/subcontractors are licensed in accordance
6 with the regulations of the State License Board, and shall certify that the contractor(s) are not
7 debarred from State or local government projects.
8 6. The Borrower shall conduct a pre-construction meeting with the
9 Contractor, and shall notify the County at least ten (10)working days prior to the meeting, so that
10 a representative of the County may be in attendance to discuss PLHA labor compliance
11 requirements.
12 7. Permits
13 Prior to the start of construction, the Borrower shall secure all
14 permits required by the City of Reedley. The Borrower shall promptly provide copies of all such
15 permits to the County. All permits and approvals necessary for the construction of the
16 Improvements on the Property must be ready to issue no later than ten (10) months of date of
17 this Agreement, and issued no later than twelve (12) months of the date of this Agreement, or the
18 County, at its option, and with thirty(30) days' prior written notice to the Borrower and opportunity
19 to cure, may declare Borrower in default hereunder.
20 8. Mitigation Measures
21 The Borrower shall comply with all mitigation measures and
22 conditions identified in the Environmental Review/Assessment, which is incorporated herein by
23 reference.
24 9. Construction Contract
25 Borrower shall cause the commencement of construction of the
26 Project no later than twelve (12) months of the signing of this Agreement.
27 10. Completion of Construction
28 Borrower shall diligently prosecute construction of the Project to
16
1 completion, and shall cause the completion of the construction of the Project no later than twenty-
2 four (24) months from the date of the Notice to Proceed.
3 11. Construction Pursuant to Plans and Laws
4 a) Borrower shall construct the Project in conformance with
5 plans and specifications as previously reviewed by the County, and determined to meet County's
6 and PLHA requirements. Following the Effective Date, Borrower shall notify the County in a timely
7 manner of any changes in the work required to be performed under this Agreement after the
8 Effective Date, including any additions, changes, or deletions to the plans and specifications
9 approved by the County. A written change order to be processed after the Effective Date must be
10 submitted to the County for its records, but not approval, for any of the following changes,
11 additions, or deletions in work for the Project (1) any change in the work the cost of which
12 cumulatively exceeds Twenty Five Thousand Dollars ($25,000); or (2) any set of changes in the
13 work the cost of which cumulatively exceeds Fifty Thousand Dollars ($50,000); or(3) any material
14 change in building material or equipment, specifications, or the structural or architectural design
15 or appearance of the Project as provided for in the plans and specifications approved by the
16 County.
17 b) Borrower shall cause all work performed in connection with
18 the Project to be performed in compliance with (i) all applicable laws, ordinances, rules, and
19 regulations of the federal, state, county, or municipal governments or agencies now in force, or
20 that may be enacted hereafter, and (ii) all directions, rules and regulations of any Fire Marshal,
21 Health Officer, Building Inspector, or other officer of every governmental agency now having now
22 having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each
23 permit, license, or other authorization that may be required by a governmental agency having
24 jurisdiction, and Borrower shall be responsible to the County for the procurement and
25 maintenance thereof, as may be required of Borrower and all entities engaged in work on the
26 Project.
27 c) The Borrower shall defend (with counsel reasonably
28 acceptable to the County) the County, its officers, commissioners, officials, employees, and
17
1 agents, against any claim for damages, compensation fines, penalties, or other amounts arising
2 out of the failure or alleged failure of any person or entity (including the Borrower, its contractor
3 and subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections
4 1720 et seq., to hire apprentices in accordance with Labor Code Sections 1777.5 et seq., or to
5 comply with the other applicable provisions of Labor Code Sections 1777.5 et seq., 1725.5, 1771,
6 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the
7 Department of Industrial Relations or comply with the other applicable provisions of Labor Code,
8 or as determined under the federal Davis Bacon Act and its implementing regulations in
9 connection with the construction, pursuant to this Agreement, of the Project or any other work
10 undertaken or in connection with the Property, and shall indemnify and hold the County harmless
11 against any damages, compensation, fines, penalties or other amounts resulting from the
12 successful prosecution of such claim. This Section V(B)(11)(c) shall survive the repayment of the
13 Loan, the reconveyance of the Deed of Trust, and the expiration of the Term.
14 d) All construction work and professional services shall be
15 performed by persons or entities licensed or otherwise authorized to perform the applicable
16 construction work or service in the State of California.
17 12. Equal Opportunity
18 During the construction of the Project, there shall be no
19 discrimination on the basis of race, color, creed, religion, age, sex, sexual orientation, marital
20 status, national origin, ancestry, or disability in the hiring, firing promoting, or demoting of any
21 person engaged in the construction work.
22 13. Construction Responsibilities
23 It shall be the responsibility of Borrower to coordinate and schedule
24 the work, to be performed so that commencement and completion of construction will take place
25 in accordance with this Agreement.
26 Borrower shall be solely responsible for all aspects of Borrower's
27 conduct in connection with the Project, including (but not limited to) the quality and suitability of
28 the plans and specifications, the supervision of construction work, and the qualifications, financial
18
1 condition, and performance of all architects, engineers, contractors, subcontractors, suppliers,
2 consultants, and property managers. Any review or inspection undertaken by the County with
3 reference to the Project is solely for the purpose of determining whether Borrower is properly
4 discharging its obligations to the County and should not be relied upon by Borrower or by any
5 third parties as a warranty or representation by the County as to the quality of the design or of the
6 construction or construction of the Project.
7 14. Mechanics Liens, Stop Notices, and Notices of Completion
8 a) If any claim of lien is filed against the Project, or a stop notice
9 affecting the Loan is served on the County or any other lender or other third party in connection
10 with the Project, then Borrower shall, within twenty (20) days after such filing or service, either
11 pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by
12 delivering to the County a surety bond in sufficient form and amount, or provide the County with
13 other assurance satisfactory to the County that the claim of lien or stop notice will be paid or
14 discharged.
15 b) If Borrower fails to discharge any lien, encumbrance,
16 charge, or claim in the manner required in this Section, then in addition to any other right or
17 remedy, the County may (but shall be under no obligation to) discharge such lien, encumbrance,
18 charge, or claim at Borrower's expense. Alternately, the County may require Borrower to
19 immediately deposit with the County the amount necessary to satisfy such lien or claim and any
20 costs, pending resolution thereof. The County may use such deposit to satisfy any claim or lien
21 that is adversely determined against Borrower.
22 c) Borrower shall file a valid notice of cessation or notice of
23 completion upon cessation of construction on the Project for a continuous period of thirty (30)
24 days or more, and take all other reasonable steps to forestall the assertion of claims of lien against
25 the Project. Borrower authorizes the County, but without any obligations, to record any notices of
26 completion or cessation of labor, or any other notice that the County deems necessary or
27 desirable to protect its interest in the Project.
28 15. Inspections
19
1 Borrower shall permit and facilitate, and shall require its contractors
2 to permit and facilitate, observation and inspection at the Project by the County and by public
3 authorities during reasonable business hours for the purpose of determining compliance with this
4 Agreement.
5 16. Labor Compliance
6 The Borrower shall require the contractor, and all subcontractors,
7 to submit labor compliance documentation, including Certified Payroll, in the manner specified
8 by the County's Labor Compliance Officer, including the use of electronic systems such as
9 LCPtracker.
10 17. Hazardous Materials
11 a) The Borrower shall certify that no Hazardous Materials exist
12 on the Property.
13 b) Borrower shall keep and maintain the Project in compliance
14 with, and shall not cause or permit the Project to be in violation of any federal, state, or local laws,
15 ordinances or regulations relating to industrial hygiene or to the environmental conditions on,
16 under or about the Project including, but not limited to, soil and ground water conditions. Borrower
17 shall not use, generate, manufacture, store or dispose of on, under, or about the Project or
18 transport to or from the Project any flammable explosives, radioactive materials, hazardous
19 wastes, toxic substances or related materials, including without limitation, any substances defined
20 as or included in the definition of "hazardous substances, "hazardous wastes," "hazardous
21 materials," or "toxic substances," under any applicable federal or state laws or regulations
22 (collectively referred to hereinafter as"Hazardous Materials")except such of the foregoing as may
23 be customarily used in construction of projects like the Project or kept and used in and about
24 residential property of this type.
25 c) Borrower shall immediately advise the County in writing if at
26 any time Borrower receives written notice of(i)any and all enforcement, cleanup, removal or other
27 governmental or regulatory actions instituted, completed or threatened against Borrower or the
28 Project pursuant to any applicable federal, state, or local laws, ordinances, or regulations relating
20
1 to any Hazardous Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened by
2 any third party against Borrower or the Project relating to damage, contribution, cost recovery
3 compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in
4 clauses (i) and (ii) above hereinafter referred to as "Hazardous Materials Claims"); and (iii)
5 Borrower's discovery of any occurrence or condition on any real property adjoining or in the vicinity
6 of the Project that could cause the Project or any part thereof to be subject to Health and Safety
7 Code, Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be
8 otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the
9 Project under any Hazardous Materials Law.
10 d) The County shall have the right to join and participate in, as
11 a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous
12 Materials Claims, and to have its reasonable attorneys' fees in connection therewith paid by
13 Borrower. Borrower shall indemnify and hold harmless the County and its officers, employees,
14 agents, successors, and assigns from and against any loss, damage, cost, expense or liability
15 directly or indirectly arising out of or attributable to the use, generation, storage, release,
16 threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about
17 the Project including without limitation: (i) all foreseeable consequential damages; (ii) the costs of
18 any required or necessary repair, cleanup or detoxification of the Project and the preparation and
19 implementation of any closure, remedial or other required plans; and (iii) all reasonable costs and
20 expenses incurred by the County in connection with clauses (i) and (ii), including but not limited
21 to reasonable attorneys' fees. The obligation to indemnify shall survive termination or expiration
22 of this Agreement.
23 e) Without the County's prior written consent, which shall not
24 be unreasonably withheld, Borrower shall not take any remedial action in response to the
25 presence of any Hazardous Materials on, under or about the Project, nor enter into any settlement
26 agreement, consent decree, or other compromise in respect to any Hazardous Material Claims,
27 which remedial action settlement, consent decree or compromise might, in the County's
28 reasonable judgement, impair the value of the County's security hereunder; provided, however
21
1 that the County's prior consent shall not be necessary in the event that the presence of Hazardous
2 Materials on, under, or about the Project either poses an immediate threat to the health, safety or
3 welfare of any individual or is of such a nature than an immediate remedial response is necessary
4 and it is not reasonably possible to obtain the County's consent before taking such action,
5 provided that in such event Borrower shall notify the County as soon as practicable of any action
6 so taken. The County agrees not to withhold its consent, where such consent is required
7 hereunder, if either (i) a particular remedial action is ordered by a court of competent jurisdiction,
8 (ii) Borrower will or may be subject to civil or criminal sanctions or penalties if it fails to take a
9 required action; (iii) Borrower establishes to the reasonable satisfaction of the County that there
10 is no reasonable alternative to such remedial action which would result in less impairment of the
11 County's security hereunder; or (iv) the action has been agreed to by the County.
12 f) Borrower hereby acknowledges and agrees that (i) this
13 Section V(B)(17) is intended as the County's written request for information (and Borrower's
14 response) concerning the environmental condition of the Project, as required by Code of Civil
15 Procedure Section 726.5, and (ii) each representation and warranty in this Agreement (together
16 with any indemnity obligation applicable to a breach of any such representation and warranty)
17 with respect to the environmental condition of the Project is intended by the Parties to be an
18 "environmental provision" for purpose of Code of Civil Procedure Section 436.
19 g) In the event that any portion of the Project is determined to
20 be "environmentally impaired" (as that term is defined in Code of Civil Procedure Section
21 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in Code of Civil Procedure
22 Section 726.5(e)(1), then, without otherwise limiting or in any way affecting the County's or the
23 trustee's rights and remedies under the Deed of Trust, the County may elect to exercise its rights
24 under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such
25 environmentally impaired or affected portion of the Project and (2) exercise (a) the rights and
26 remedies of an unsecured creditor, including reduction of its claim against the borrower to
27 judgement, and (b) judgement, and (c) any other rights and remedies permitted by law. For
28 purposes of determining the County's right to proceed as an unsecured creditor under Code of
22
1 Civil Procedure Section 726.5(a), the Borrower shall be deemed to have willfully permitted or
2 acquiesced in a release or threatened release of hazardous materials, within the meaning of Code
3 of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials
4 was knowingly or negligently cause or contributed to by any lessee, occupant, or user of any
5 portion of the Project, and the Borrower knew or should have known of the activity by such lessee,
6 occupant, or user which caused or contributed to the release or threatened release. All costs and
7 expenses, including (but not limited to) attorneys' fees, incurred by the County in connection with
8 any action commenced under this paragraph, including any action required by Code of Civil
9 Procedure Section 726.5(b) to determine the degree which the Project is environmentally
10 impaired, plus interest thereon at the lesser of ten percent (10%) or the maximum rate permitted
11 by law, until paid, shall be added to the indebtedness secured by the Deed of trust, and shall be
12 due and payable to the County upon its demand made at any time following the conclusion of
13 such action.
14 h) Records demonstrating compliance with applicable
15 relocation requirements must be retained for at least five (5) years after the date by which eligible
16 persons and/or businesses displaced from the Property have received final payments.
17 i) Borrower shall indemnify, defend (with counsel reasonably
18 chosen by the County), and hold harmless the County against all claims for the damages,
19 compensation, fines, penalties, attorneys' fees, relocation payments or other amounts that arise
20 out of relocation obligations to residential tenants, homeowners, or businesses permanently or
21 temporarily displaced by the Project. The provisions of this Section V(B)(17) shall survive
22 expiration of the Term or other termination of this Agreement, and shall remain in full force and
23 effect.
24 18. Maintenance and Damage
25 a) During the course of both construction and operation of the
26 Project, Borrower shall maintain the Project in good repair and in a neat, clean, and orderly
27 condition. If there arises a condition in contravention of this requirement, and if Borrower or
28 Borrower's limited partner, if any, as the case may be, has not cured such condition within thirty
23
1 (30) days after receiving a County notice of such a condition, then in addition to any other rights
2 available to the County, the County shall have the right to perform all acts necessary to cure such
3 condition, and to establish or enforce a lien or other encumbrance against the Project.
4 b) Subject to the availability of insurance proceeds, and the
5 requirements of Senior Lender(s) and Borrower's Investor limited partner, if any, and if
6 economically feasible in the County's reasonable judgement, if any improvement now or in the
7 future on the Property is damaged or destroyed, then Borrower shall, at its cost and expense,
8 diligently undertake to repair or restore such improvement consistent with the plans and
9 specifications approved by the County with such changes as have been approved by the County.
10 Such work or repair shall be commenced no later than the later of one hundred twenty (120) days
11 after the damage or loss occurs, or thirty (30) days following receipt of the insurance proceeds
12 and shall be complete within one (1)year thereafter(or such longer period for the commencement
13 and completion as may be extended by the County in its reasonable discretion). Any insurance
14 proceeds collected for such damage or destruction shall be applied to the cost of such repairs or
15 restoration, provided such insurance proceeds shall be sufficient for such purpose.
16 19. Fees and Taxes
17 Borrower shall be solely responsible for payment of all fees,
18 assessment, taxes, charges, and levies imposed by any public authority or utility company with
19 respect to the Property or the Project, to the extent owned by the Borrower, and shall pay such
20 charges prior to delinquency. However, Borrower shall not be required to pay and discharge any
21 such charge so long as (a) the legality thereof is being contested diligently and in good faith and
22 by appropriate proceedings, and (b) if requested by the County, Borrower deposits with the
23 County any funds or other forms of assurance that the County in good faith from time to time
24 determines appropriate to protect the County from the consequences of the contest being
25 unsuccessful.
26 20. Notice of Litigation
27 The Borrower shall promptly notify the County in writing of any
28 litigation materially affecting the Borrower or the Property and the Project, and of any claims or
24
1 disputes that involve a material risk of such litigation.
2 C. USE OF LOAN FUNDS
3 1. The Borrower shall use the Loan funds to pay for construction costs
4 of the Project, consistent with the Approved Project Budget.
5 2. The Borrower shall not use the Loan funds for any other purpose
6 without the prior written consent of the County.
7 D. DISBURSEMENT
8 1. The Borrower may not request disbursement of Loan funds under
9 this Agreement until all conditions stated under Section II(H)(3) of this Agreement have been
10 satisfied. PLHA Loan funds shall be distributed to the Borrower on a reimbursement basis for
11 actual eligible costs.
12 E. LOAN DOCUMENTS
13 1. Prior to execution of the County's Loan Documents, the Borrower
14 shall submit to the County all Loan term sheets, any and all other requested Loan documents,
15 and any amendments thereto, including any required deed restrictions from other funding
16 sources.
17 2. The Borrower shall select and use a title company acceptable to the
18 County for title work.
19 3. The Borrower shall record a Notice of Completion, and shall provide
20 the County a copy of the Notice of Completion after recordation.
21 4. The Borrower shall inform the County in writing of the names and
22 addresses of all co-owners, all limited partners, and all lenders of the Project. The Partnership
23 shall inform the County in writing of any addition, change, removal, or replacement of any co-
24 owner, any limited partner, or any lender of the Project for County review.
25 5. The Partnership shall not remove or replace the original Managing
26 General Partner, or any proposed partner approved by the County, from the Partnership without
27 the County's prior written approval, which shall not be unreasonably withheld. Furthermore, in the
28 event the Managing General Partner withdraws from the Partnership, the Partnership shall
25
1 replace the Managing General Partner with another Managing General Partner approved by the
2 County, and the new Managing General Partner must be a current member of the Partnership,
3 unless otherwise agreed by County.
4 F. PAYMENT FOR MONITORING/ATTORNEY FEES
5 1. Annual PLHA Monitoring Fees
6 The Partnership shall pay to the County an annual fee to cover the
7 County's actual costs of monitoring the Project during the Period of Affordability. The Annual
8 PLHA Monitoring Fee shall be in an amount reflecting the County's actual costs of monitoring,
9 oversight, and physical inspection of the Project. Monitoring fees shall be paid in an amount not
10 to exceed $3,000 per annum, beginning on the date the Project receives certificates of occupancy,
11 and may increase each year thereafter by up to three percent (3%).
12 2. Attorney Fees
13 The Partnership hereby agrees to reimburse and pay to County the
14 County's actual costs incurred in having legal counsel review Loan documents, security
15 documents, and other documents related to the financing of the Project, up to a maximum of Ten
16 Thousand Dollars ($10,000).
17 G. COMPLIANCE
18 1. Prior to distribution of County PLHA Loan funds, the Borrower, or
19 its property management firm, shall prepare and provide to the County its Affirmative Marketing
20 Procedures.
21 2. Relocation
22 Borrower shall comply with all requirements of applicable California
23 relocation law (Gov. Code § 7260 et seq. and the regulations promulgated thereunder at Cal.
24 Code Regs., tit. 25 § 6000 et seg.). Any relocation plan for the Project shall be subject to the
25 review and approval of the County and HCD. Borrower is solely responsible for payment of any
26 relocation benefits to any displaced persons and any other obligations associated with complying
27 with such relocation laws.
28 3. Federal, State and Local Laws, Rules, Guidelines and Regulations.
26
1 Borrower shall comply with Federal, State and Local Laws, Rules and Regulations that pertain to
2 construction, health and safety, labor, prevailing wage, fair employment practices, equal
3 opportunity, and all other matters applicable to the Loan, the PLHA Program, any subrecipients,
4 and any other activity using PLHA funds. Whenever the Borrower uses the services of a contractor
5 or property management company, whether directly or indirectly, the Borrower shall require that
6 the contractor or property management company comply with all Federal, State and Local Laws,
7 Ordinances, Regulations, this Agreement, and provisions of the Charter of the County of Fresno
8 in the performance of their work.
9 4. Housing First
10 The Borrower shall comply with the housing first practices
11 described in California Code of Regulations, title 25, section 8409(b)(1)-(6).
12 5. Qualified to Do Business
13 The Borrower certifies that it is authorized to do business in
14 California as a private corporation or it is a local public housing authority, duly formed and existing
15 under Health and Safety Code section 34200 et seq., and empowered by statue to acquire,
16 rehabilitate, and/or construct rental housing for persons of Low Income.
17 6. The Borrower shall comply with the requirements of HCD, including,
18 but not limited to, the requirements to annually permit on-site inspections, and provide the County
19 with information on rents and occupancy of PLHA-assisted units to demonstrate compliance with
20 the affordability requirements. The twenty-four (24) PLHA-assisted units are designated "floating
21 units".
22 7. The Borrower shall provide the County with copies of all leases to
23 be executed for the PLHA Units for County's review and approval. In the event that any of the
24 basic terms of such leases are changed during the Period of Affordability, the Borrower shall re-
25 submit such lease(s) to the County for review and approval of the changes prior to the proposed
26 changes taking effect. The Borrower agrees to comply with the requirements regarding tenant
27 leases, including giving tenants a minimum 30-day notice of rent increases.
28 8. The Borrower shall not be required to lower rents below the PLHA
27
1 Rent limits in effect at the time of this Agreement for the twenty-four (24) PLHA Units, but must
2 submit requests for rent increases to the County, and receive County's approval of same before
3 implementing higher rents. PLHA Rent Limits are listed in Exhibit "B" to this Agreement. The
4 Borrower agrees to conduct income determinations utilizing the County's definition of annual
5 income, to certify tenant income eligibility before renting units to tenant applicants, and to recertify
6 tenant household income annually.
7 9. The Borrower agrees to comply with the requirements of the
8 County, shall maintain the correct number of 60% AMI and 80% AMI PLHA-assisted units, and
9 adjust rents accordingly for tenants whose incomes rise above eighty percent (80%) of the AMI.
10 H. FUNDING
11 1. Notwithstanding any other provision of the Agreement, the Parties
12 agree and acknowledge that this Agreement does not constitute a commitment of PLHA Loan
13 funds, and that such "commitment of loan funds" or approval may occur only upon satisfactory
14 completion of all requirements contained in this Agreement or any other loan, security, or other
15 related documents are met by the Borrower, as determined by the County.
16 2. Exhibit "C" lists the potential sources and proposed funding
17 amounts for the Project. With the exception of County PLHA funds, these sources and/or the
18 amounts are subject to change. Notwithstanding the funding sources and amounts identified in
19 Exhibit"C", disbursements for the Project from PLHA Loan funds shall be contingent upon reliable
20 evidence acceptable to the County, in its sole discretion, that the Borrower has obtained all
21 funding necessary to meet the Total Project Cost.
22 3. Payment of Other Indebtedness; Notice of Defaults
23 Borrower shall promptly pay the principal and interest when due on
24 any other indebtedness related to the Project. Borrower shall promptly notify the County in writing
25 of any defaults declared under any other financing for the Project by the lender of such financing.
26 I. PERFORMANCE
27 1. The Borrower agrees to meet the following performance standards
28 for this Project throughout the project's Period of Affordability.
28
1 a. The Property shall be adequately maintained to meet the
2 required property standards.
3 b. Occupancy reports for rental housing projects must be
4 received by the County at least on an annual basis, or additionally, as requested.
5 J. MONITORING, RECORDS, AND RETENTION
6 1. Records and Retention
7 The Borrower shall establish accounting and bookkeeping
8 procedures in accordance with Generally Accepted Accounting Principles ("GAAP") and standard
9 bookkeeping practices, including, but not limited to, employee timecards, payrolls and other
10 records of all transactions to be paid with Loan funds, in accordance with the requirements of this
11 Agreement. All records and accounts shall be available for inspection by the County, the State of
12 California, or any of their duly authorized representatives, at all reasonable times, upon at least
13 three (3) days' notice for a period of at least five (5) years following the term of this Agreement,
14 or the closure of all other related pending matters, whichever is later. The Borrower shall certify
15 accounts when required or requested by the County.
16 2. Financial Statements; Audits
17 The Borrower shall keep and maintain on the Property, or at its
18 principal place of business, or elsewhere with the County's written consent, full, complete, and
19 appropriate books, records, and accounts relating to the Project, including all such books, records,
20 and accounts necessary or prudent to evidence and substantiate in full detail the Borrower's
21 calculation of Residual Receipts. Within nine (9) months after the end of the County's Fiscal Year
22 in which the Project is completed, and for each subsequent Fiscal Year until the end of the Loan
23 term specified in the Note, Borrower shall provide County with audited Statement of Cash Flows,
24 Distribution of Net Cash Flow, Balance Sheet, and Profit and Loss Statements prepared by an
25 independent, certified public accountant. These statements shall be prepared in accordance with
26 GAAP. The Borrower agrees and acknowledges that HCD shall have the right to audit Borrower's
27 records related to the Project, and interview Borrower's employees and contractors during
28 reasonable business hours to determine compliance with PLHA and HCD requirements.
29
1 Whenever the Borrower receives Loan funds form the County for
2 the Project, a copy of any audit performed by the Borrower shall be forwarded to the County
3 Affordable Housing Programs within nine (9) months of the end of any fiscal year in which loan
4 funds were distributed, borrowed, and/or outstanding for the Project. Failure to perform the
5 requisite audit functions as required by this Section V(J)(2) may result in the County performing
6 any necessary audit task or, at the County's option, contracting with a public accountant to
7 perform the audit. All audit costs related to the Borrower's failure to perform the requisite audit
8 are the sole responsibility of the Borrower, and such audit work costs incurred by the County shall
9 be billed to the Borrower, as determined by the County's ACTTC. The Borrower agrees to take
10 prompt and appropriate corrective action on any instance of material non-compliance with
11 applicable laws and regulations.
12 3. Outside Agreements
13 The County shall not be bound by any agreement between the
14 Borrower and any of its partners, agents, employees, or subcontractors. The County shall be
15 bound only by the terms of this Agreement.
16 4. Annual Reports
17 The Borrower shall provide the County information about the status
18 of the Project and the Eligible Costs for the previous year annually no later than April 30t", for so
19 long as the County is required to submit Annual Reports to HCD. Such information shall include
20 1) the Eligible Costs and activities to which PLHA funds were committed; 2) the income levels of
21 the households assisted; and 3)the annual rents and utility allowances and the affordability levels
22 of household assisted.
23 5. Monitoring
24 The Borrower shall, upon at least three (3) days' notice, provide
25 County and/or HCD, or their officers, agents, and employees, reasonable access to the Property,
26 and Borrower's records and documents related to the Property, in order to ensure compliance
27 with PLHA requirements.
28 K. SUBORDINATION
30
1 The Deed of Trust and/or Regulatory Agreement may be subordinated to
2 the Construction Loan converting to the Permanent Loan, Deferred Impact Fees Loan, the HOME
3 Loans and the Permanent Loan (in each case, a "Senior Loan"), but only on condition that all of
4 the following conditions are satisfied or on such other conditions approved in writing by the
5 County.
6 1. All of the proceeds of the proposed Senior Loan, less any
7 transaction costs, must be used to provide acquisition, construction and/or permanent financing
8 for the Project.
9 2. The proposed lender (each, a "Senior Lender") must be a state or
10 federally chartered financial institution, a nonprofit corporation, or a public entity that is not
11 affiliated with Borrower or any of Borrower's affiliates, other than as a depositor or lender, unless
12 approved in writing by the County.
13 3. Borrower must demonstrate to the County's reasonable satisfaction
14 that subordination of the Deed of Trust and/or Regulatory Agreement is necessary to secure
15 adequate acquisition, construction, and/or permanent financing to ensure the viability of the
16 Project, including the operation of the Project as affordable housing, as required by the Loan
17 Documents. To satisfy this requirement, Borrower must provide to the County, in addition to any
18 other information reasonably required by the County, evidence demonstrating that the proposed
19 amount of the Senior Loan is necessary to provide adequate acquisition, construction and/or
20 permanent financing to ensure the viability of the Project, and adequate financing for the Project
21 would not be available without the proposed subordination.
22 4. The subordination agreement(s) must be structured to minimize the
23 risk that the Deed of trust and/or Regulatory Agreement would be extinguished as a result of a
24 foreclosure by the Senior Lender or other holder of the Senior Loan. To satisfy this requirement,
25 the subordination agreement must provide the County with adequate rights to cure any defaults
26 by Borrower, including: (i) providing the County or its successors with copies of any notices of
27 default at the same time and in the same manner as provided to Borrower; and (ii) providing the
28 County with a cure period of at least sixty (60) days to cure any default.
31
1 5. The subordination(s) described in this Section V(K) may be
2 effective only during the original term of the Senior Loan and any extension of its term approved
3 in writing by the County.
4 6. No subordination may limit the effect of the Deed of Trust and/or
5 Regulatory Agreement before a foreclosure, nor require consent of the holder of the Senior Loan
6 to exercise of any remedies by the County under the Loan Documents, except as otherwise
7 agreed by County in a written subordination agreement.
8 7. Upon a determination by the County that the conditions in this
9 Section V(K) have been satisfied, the PWP Director, or his/her designee will be authorized to
10 execute the approved subordination agreement, without the necessity of any further action or
11 approval.
12 8. In the event there is a foreclosure of the Property, the Regulatory
13 Agreement shall be revived according to its original terms if, during the original Regulatory
14 Agreement term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any
15 entity that includes the former owner or those with whom the former owner has or had family or
16 business ties, obtains an ownership interest in the Project or Property.
17 L. INSURANCE
18 Without limiting the County's right to obtain indemnification from the
19 Borrower or any third parties, the Borrower, at its sole expense, shall maintain in full force and
20 effect the following insurance policies throughout the term of this Agreement.
21 1. Property Insurance
22 A policy of Property Insurance to the extent of not less than one
23 hundred percent (100%) of the actual full replacement cost (without depreciation) of all buildings
24 and improvements located on the Property, insuring against loss or damage by fire, extended
25 coverage perils and such other hazards, casualties or other contingencies (other than damage
26 from earthquakes), as from time to time may be reasonably required by the County of Fresno, it's
27 officers, agents, and employees, individually and collectively, as additional insured, but only in so
28 far as the operations under this Agreement are concerned. Such coverage for additional insured
32
1 shall apply as primary insurance and any other insurance, or self-insurance, maintained by the
2 County, its officers, agents and employees shall be excess only and not contributing with
3 insurance provided under the Borrower's policies herein. This insurance shall not be cancelled or
4 changed without a minimum of thirty (30) days advance written notice given to the County.
5 2. Commercial General Liability Insurance
6 Commercial General Liability Insurance with limits of not less than
7 One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
8 ($2,000,000) is required. This policy shall be issued on a per occurrence basis. The County may
9 require specific coverage including completed operations, product liability, contractual liability,
10 Explosion-Collapse-Underground, fire extended coverage, legal liability or any other liability
11 insurance deemed necessary because of the nature of this Agreement.
12 The Borrower shall obtain endorsements to the Commercial
13 General Liability Insurance, fire, and extended coverage, naming the County of Fresno, its
14 officers, agents and employees, individually and collectively, as additional insured, but only
15 insofar as the operations under this Agreement are concerned. Such coverage for additional
16 insured shall apply as primary insurance and any other insurance, or self-insurance, maintained
17 by the County, its officers, agents and employees shall be excess only and not contributing with
18 insurance provided under the Borrower's policies herein. This insurance shall not be cancelled or
19 changed without a minimum of their (30) days advance written notice given to the County.
20 3. Automobile Liability Insurance
21 Comprehensive Automobile Liability Insurance with limits for bodily
22 injury of not less than Two Hundred Fifty Thousand Dollars ($250,000) per person, Five Hundred
23 Thousand Dollars ($500,000) per accident and for property damages of not less than Fifty
24 Thousand Dollars ($50,000) or such coverage with a combined single limit of Five Hundred
25 Thousand Dollars ($500,000) is required. Coverage should include owned and non-owned
26 vehicles used in connection with this Agreement.
27 4. Worker's Compensation Insurance
28 A policy of Worker's Compensation Insurance as may be required
33
1 by the California Labor Code. Borrower hereby waives its right to recover from County, its officers,
2 agents, and employees any amounts paid by the policy of worker's compensation insurance
3 required by this Agreement. Borrower is solely responsible to obtain any endorsement to such
4 policy that may be necessary to accomplish such waiver of subrogation, but Borrower's waiver of
5 subrogation under this Paragraph is effective whether or not Borrower obtains such endorsement.
6 Within thirty (30) days of the date the Borrower signs this
7 Agreement, the Borrower shall provide certificates of insurance and endorsements as stated
8 above for all of the listed policies, as required herein, to the County of Fresno, Community
9 Development Division, Affordable Housing Programs, 2220 Tulare Street, 6` Floor, Fresno, CA
10 93721, stating that such insurance coverages have been obtained and are in full force; that the
11 County of Fresno, its officers, agents and employees shall not be responsible for any premiums
12 on the policies; that for such worker's compensation insurance the Borrower has waived its right
13 to recover from the County, its officers, agents, and employees any amounts paid under the
14 insurance policy and that waiver does not invalidate the insurance policy; that such Commercial
15 General Liability Insurance names the County of Fresno, it's officers, agents and employees,
16 individually and collectively, as additionally insured, but only insofar as the operations under this
17 Agreement are concerned; that such coverage for additional insured shall apply as primary
18 insurance and any other insurance, or self-insurance, maintained by the County, its officers,
19 agents and employees, shall be excess only and not contributing with insurance provided under
20 the Borrower's policies herein; and that insurance shall not be cancelled or changed without a
21 minimum of thirty(30) days advance, written notice given to the County. In the event the Borrower
22 fails to keep in effect at all times insurance coverage as herein provided, the County may, in
23 addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence
24 of such event. All policies shall be with admitted insurers licensed to do business in the State of
25 California. Insurance purchased shall be purchased from companies possessing a current A.M.
26 Best, Inc. rating of A FSC VII or better.
27 5. Bond Insurance
28 Borrower acknowledges as a condition of receiving the Loan, that
34
1 the Borrower shall obtain a performance bond and a labor and materials (payment) bond, in the
2 amount of one hundred percent (100%)of the construction contract sum, prior to the execution of
3 all PLHA Loan and related documents. These bonds shall comply with the requirements of Civil
4 Code Section 3248, and be acceptable to the County. The bonds shall be in recordable form and
5 shall name such parties as indicated by Borrower as co-obligees or assignees. Borrower
6 understands and acknowledges that the aforementioned requirements for both bonds are a
7 condition precedent to Borrower's receipt of any County PLHA Funds, and Borrower's failure to
8 procure such bonds shall be considered a material breach of this Agreement.
9 6. Professional Liability Insurance
10 If the Borrower employs licensed professional staff (e.g., Ph.D.,
11 R.N., L.C.S.W., M.F.C.C., Engineer, Architect) in providing services, Professional Liability
12 Insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence, Two Million
13 Dollars ($2,000,000) annual aggregate is required.
14 M. INDEMNIFICATION
15 The Borrower shall indemnify, save, hold harmless, and at the County's
16 request, defend the County, its partners, officers, agents, and employees from and against any
17 and all costs and expenses (including attorney's fees and costs), damages, liabilities, claims and
18 losses whatsoever occurring or resulting to the County in connection with the performance, or
19 failure to perform, by the Borrower, its partners, officers, agents, employees, or any persons,
20 firms, or corporations furnishing or supplying work, services, materials, or supplies in connection
21 with the performance, or failure to perform, by the Borrower, it's partners, officers, agents,
22 employees, or any persons, firms, or corporations furnishing or supplying work, services,
23 materials, or supplies in connection with the performance of this Agreement, and from any and all
24 costs and expenses (including attorney's fees and costs), claims and losses occurring or resulting
25 to any person, firm, or corporation who may be injured or damaged, including damage, injury, or
26 death arising out of or connected with the performance, or failure to perform, of the Borrower, its
27 partners, officers, agents or employees under this Agreement.
28 The Provisions of this Section V(M) shall survive termination or expiration
35
1 of this Agreement.
2 VI. TERM; TIME OF PERFORMANCE
3 A. TERM
4 The term of this Agreement shall commence on the date upon which this
5 Agreement is executed by the County, and shall expire when the Period of Affordability ends, or
6 when the Loan and such other amounts, including but not limited to liquidated damages, if
7 applicable, as set forth in the Note, have been repaid, and the Deed of Trust has been
8 reconveyed, whichever is later ("Term").
9 B. TIME OF PERFORMANCE
10 The Project shall commence on the date the Agreement is executed by the
11 County, and construction shall be completed within 24 months of the construction start date, as
12 identified in the Project Schedule in Exhibit "D".
13 C. DELAYS
14 The Borrower shall give immediate written notification to the PWP Director,
15 or his designee, of any events that occur, which may affect the Project Schedule and completion
16 date noted above, or any event which may have significant impact upon the Project or affect the
17 attainment of the Project's objectives. The PWP Director, or his or her designee, is authorized to
18 adjust the Project schedule if, in the PWP Director's or his or her designee's judgement, the delays
19 are beyond the control of the parties involved.
20 VI 1. DEFAULT AND REMEDIES
21 A. DEFAULT
22 Each of the following shall constitute an "Event of Default" by Borrower
23 under this Agreement:
24 1. Failure to Construct. Failure of Borrower to commence and
25 complete construction of the Project within the time set forth in Section V(B)(9), herein;
26 2. Failure to Make Payment. Failure to repay the principal and any
27 interest on the Loan that is due and payable to the County pursuant to the Loan Documents
28 (subject to any notice and cure periods set forth in the other Loan Documents).
36
1 3. Breach of Covenants. Failure by Borrower to materially perform,
2 comply with, or observe any of the conditions, terms, or covenants of any of the Loan Documents,
3 and such failure having continued uncured for thirty(30)days after receipt of written notice thereof
4 by Borrower from County or, if the breach cannot be cured within thirty (30) days, Borrower shall
5 not be in breach so long as Borrower is diligently undertaking to cure such breach, and such
6 breach is cured within ninety (90) days; provided, however, that if a different period or notice
7 requirement is specified under any other subsection of this Section VII, the specific provisions
8 shall control.
9 4. Default Under Other Loans. Failure to make any payment or
10 perform any of Borrower's covenants, agreements, or obligations under the documents
11 evidencing and securing any loan or financing secured by the Project following expiration of all
12 applicable notice and cure periods.
13 5. Insolvency. A court having jurisdiction shall have made or entered
14 any decree or order (i) adjudging Borrower to be bankrupt or insolvent, (ii) approving as properly
15 filed a petition seeking reorganization of Borrower or seeking any arrangement for Borrower or
16 under the bankruptcy law or any other applicable debtor's relief law or statute of the United States
17 or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of
18 Borrower in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up
19 or liquidation of Borrower, if any such decree or order described in clauses (i) to (iv), inclusive,
20 shall have continued unstayed or undischarged for a period of ninety (90) days; or Borrower shall
21 have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily
22 submitted to or filed a petition seeking any decree or order of the nature described in clauses (i)
23 to (iv), inclusive. The occurrence of any of the Events of Default in this paragraph shall act to
24 accelerate automatically, without the need for any action by the County, the indebtedness
25 evidenced by the Note.
26 6. Assignment; Attachment. Borrower shall have assigned its assets
27 for the benefit of its creditors or suffered a sequestration or attachment of or execution on any
28 substantial part of its property, unless the property so assigned, sequestered, attached or
37
1 executed upon shall have been returned or released within ninety (90) days after such event or,
2 if sooner, prior to sale pursuant to such sequestration, attachment, or execution. The occurrence
3 of any of the Events of Default in this paragraph shall act to accelerate automatically, without the
4 need for any action by the County, the indebtedness evidenced by the Note.
5 7. Suspension; Termination. Borrower shall have voluntarily
6 suspended its business for more than sixty (60) consecutive days, or Borrower has dissolved or
7 terminated. The occurrence of any of the Events of Default in this paragraph shall act to accelerate
8 automatically, without the need for any action by the County, the indebtedness evidenced by the
9 Note.
10 8. Liens on the Property and the Project. There shall be filed any claim
11 of lien (other than liens approved in writing by the County) against the Project or any part thereof,
12 or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds
13 of the Loan and the continued maintenance of said claim of lien or notice to withhold for a period
14 of twenty (20) days without discharge or satisfaction thereof or provision therefor (including,
15 without limitation, the posting of bonds) satisfactory to the County.
16 9. Condemnation. The condemnation, seizure, or appropriation of all
17 or the substantial part of the Property and the Project, except that condemnation by the County
18 shall cause the Loan to accelerate but shall not be an Event of Default.
19 10. Unauthorized Transfer. Any Transfer other than as permitted by
20 Section IX.
21 11. Representation or Warranty Incorrect. Any Borrower representation
22 or warranty contained in this Agreement, or in any application, financial statement, certificate, or
23 report submitted to the County in connection with any of the Loan Documents, proving to have
24 been incorrect in any material and adverse respect when made.
25 12. In the event the Borrower fails to comply with any of the terms of
26 this Agreement, the County may, at its option, deem the Borrower's failure to be a material breach
27 of this Agreement, and utilize any of the remedies set forth, or that it deems appropriate. Should
28 the County deem a breach of this Agreement to be a material breach, the County shall
38
1 immediately be relieved of its obligations to make further loan disbursements as provided herein.
2 Termination of this Agreement due to breach shall not, in any way whatsoever, limit the rights of
3 the County in seeking any other legal relief in a court of law or equity, including the recovery of
4 damages.
5 B. REMEDIES
6 The occurrence of any Event of Default hereunder following the expiration
7 of all applicable notice and cure periods (including notice to the Borrower's Investor limited
8 partner, if any, and the Investor limited partner having an opportunity to cure (but not the
9 obligation) in the same manner as Borrower) shall, either at the option of the County or
10 automatically where so specified, relieve the County of any obligation to make or continue the
11 Loan, and shall give the County the right to proceed with any and all remedies set forth in this
12 Agreement and the Loan Documents, including but not limited to the following:
13 1. Acceleration of Note. The County shall have the right to cause all
14 indebtedness of the Borrower to the County under this Agreement and the Note, together with
15 any accrued interest thereon, to become immediately due and payable. The Borrower waives all
16 right to presentment, demand, protest or notice of protest or dishonor. The County may proceed
17 to enforce payment of the indebtedness and to exercise any or all rights afforded to the County
18 as a creditor and secured party under the law, including the Uniform Commercial Code, including
19 foreclosure under the Deed of Trust. The Borrower shall be liable to pay the County on demand
20 all reasonable expenses, costs, and fees (including, without limitation reasonable attorney's fees
21 and expenses) paid or incurred by the County in connection with the collection of the Loan and
22 the preservation, maintenance, protection, sale, or other disposition of the security given for the
23 Loan.
24 2. Specific Performance. The County shall have the right to
25 mandamus or other suit, action or proceeding at law or in equity to require Borrower to perform
26 its obligations and covenants under the Loan Documents or to enjoin acts on things which may
27 be unlawful or in violation of the provisions of the Loan Documents.
28 3. Right to Cure at Borrower's Expense. The County shall have the
39
1 right (but not the obligation)to cure any monetary default by Borrower under a loan other than the
2 Loan. The Borrower agrees to reimburse the County for any funds advanced by the County to
3 cure a monetary default by Borrower upon demand therefor, together with interest thereon at the
4 lesser of the maximum rate permitted by law or ten percent (10%) per annum from the date of
5 expenditure until the date of reimbursement.
6 4. Right of Contest. Borrower shall have the right to contest in good
7 faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of
8 Default hereunder. Any such contest shall be prosecuted diligently, and in a manner unprejudicial
9 to the County or the rights of the County hereunder.
10 5. Right to Terminate. As described in Section VIII, herein.
11 6. Remedies Cumulative. No right, power, or remedy given to the
12 County by the terms of this Agreement or the Loan Documents is intended to be exclusive of any
13 other right, power, or remedy; and each and every such right, power, or remedy shall be
14 cumulative and in addition to every other right, power, or remedy given to the County by the terms
15 of any such instrument, or by any statute or otherwise against Borrower and any other person.
16 Neither the failure nor any delay on the part of the County to exercise any such rights and
17 remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the County
18 of any such right or remedy preclude any other or further exercise of such right or remedy, or any
19 other right or remedy.
20 VIII. TERMINATION
21 A. NON-ALLOCATION OF FUNDS
22 The terms of this Agreement, and the funds provided thereunder, are
23 contingent on the award and/or commitment of PLHA funds by HCD to the County, and to the
24 award and/or commitment of funds to the Project by the Sources of Funds identified in Exhibit"C"
25 of this Agreement. Should HCD fail to award funds to County, or should the County determine, in
26 its sole discretion, that sufficient funds have not been allocated by the other sources of funds to
27 complete the development of the Project, the County may terminate this Agreement at any time
28 by giving the Borrower thirty (30) days advance written notice, and the Borrower shall promptly
40
1 repay to the County any unexpended PLHA loan funds previously paid, pursuant to all applicable
2 laws and regulations.
3 B. BREACH; CURE
4 The County may immediately suspend or terminate this Agreement in
5 whole or in part, where in the determination of the County there is:
6 1) An Event of Default, as described in Section VII, herein
7 2) An illegal or improper use of funds;
8 3) A failure to comply with any term of this Agreement;
9 4) A substantial failure to secure adequate funding to complete the
10 Project; or
11 5) A substantially incorrect or incomplete report submitted to the
12 County
13 Borrower shall have fifteen (15) days to submit additional information to
14 clarify or cure the breach or event of default. In no event shall any payment by the County
15 constitute a waiver by the County of any breach of this Agreement or any default which may then
16 exist on the part of the Borrower. Neither shall such payment impair or prejudice any remedy
17 available to the County with respect to the breach or default. The County shall have the right to
18 demand of the Borrower the repayment to the County of any unspent funds disbursed to the
19 Borrower under this Agreement, which in the judgment of the County were not expended in
20 accordance with the terms of this Agreement. The Borrower shall promptly refund any such
21 unspent funds upon demand.
22 C. TERMINATION FOR CONVENIENCE
23 This Agreement may also be terminated for convenience by the County
24 upon thirty (30) days' advance written notice to the Borrower. In the event the County terminates
25 this Agreement solely for convenience, the Borrower shall repay to the County any unspent PLHA
26 Loans funds, pursuant to all applicable laws and regulations. However, in the event of termination,
27 the County, at its sole discretion, may negotiate with the Borrower alternate terms of repayment
28 of PLHA Loan funds.
41
1 ///
2 IX. ASSIGNMENT AND TRANSFERS
3 A. DEFINITIONS
4 As used in this Section IX, the term "Transfer" means:
5 1. Any total or partial sale, lease, assignment, or other conveyance, or
6 any trust or power, or any transfer in any other mode or form, of or with respect to this Agreement
7 or of any part of or interest in the Project, pr any agreement to do any of the foregoing; or
8 2. Any total or partial sale, assignment, or other conveyance, or any
9 trust or power, or any transfer in any other mode or form, of, or with respect to, the general or
10 limited partner ownership interests of the Borrower, or any agreement to do any of the foregoing.
11 B. PURPOSE OF RESTRICTIONS ON TRANSFER
12 1. This Agreement is entered into solely for the purpose of providing
13 assistance for the Borrower's development of the Property in accordance with the terms of this
14 Agreement and the Regulatory Agreement. The qualifications and identity of the Borrower are of
15 particular concern to the County, in view of:
16 2. The importance of the Project to the general welfare of the
17 community;
18 3. The public aid that has been made available by law and by the
19 government for the purpose of making such Project possible;
20 4. The reliance by the County upon the unique qualifications and
21 ability of the Borrower to serve as the catalyst for development of the Property and upon the
22 continuing interest which the Borrower will have in the Project to assure the quality of the use,
23 operation, and maintenance deemed critical by the County in the development of the Property;
24 5. The fact that a change in ownership or control of the Borrower of
25 the Project, or of a substantial part thereof, or ally other act or transaction involving or resulting in
26 a significant change in ownership or with respect to the identity of the parties in control of the
27 Borrower or the degree thereof, is for practical purposes, a transfer or disposition of the Project;
28 and
42
1 6. The importance to the County of the standards of use, operation,
2 and maintenance of the Project. It is because of the qualifications and identity of the Borrower
3 that the County is entering into this Agreement, and that Transfers are permitted only as provided
4 in this Agreement.
5 C. PROHIBITED TRANSFERS
6 1. The limitations on transfers set forth in this Section IX shall apply
7 throughout the term of the Regulatory Agreement. Except as expressly permitted in this
8 Agreement, the Borrower represents that, except for certain purchase options and a right of first
9 refusal entered into in connection with the syndication of limited partnership interests in the
10 Borrower, it has not made or created, and agrees that it will not make or create or suffer to be
11 made or created, any Transfer, either voluntarily or by operation of law, without the prior written
12 approval of the County.
13 2. Any Transfer made in contravention of this Section IX shall at the
14 County's discretion be void, and shall be deemed to be an Event of Default under this Agreement,
15 whether or not the Borrower knew of or participated in such Transfer.
16 D. PERMITTED TRANSFERS WITHOUT PRIOR COUNTY APPROVAL
17 County consent is not required for the following:
18 1. Rental of a Unit by the Borrower in the ordinary course of business
19 and in compliance with the Regulatory Agreement.
20 2. The granting of temporary or permanent easements or permits to
21 facilitate construction of the improvements.
22 3. Any Transfer for the purpose of obtaining and securing financing,
23 approved by the County in the Approved Project Budget, which is necessary to construct the
24 Project, including the grant of a deed of trust, assignment of rents and security agreement, to
25 secure the necessary funding.
26 E. PERMITTED TRANSFERS WITH PRIOR APPROVAL
27 1. Except as permitted under Section IX(D), any Transfer shall be
28 permitted during the Term of this Agreement only after (a) the County has delivered to the
43
1 Borrower its prior written approval of such Transfer, and (b) the transferee has assumed the
2 Borrower's future obligations under this Agreement by signing this Agreement or such other
3 reasonable documentation as the County may require. Following completion of construction of
4 the Improvements, the County shall not unreasonably withhold its consent to a proposed Transfer,
5 provided that the County reasonably determines that the proposed transferee is qualified to
6 operate the Project in compliance with the Regulatory Agreement, including meeting the following
7 requirements:
8 a. The proposed transferee has at least five (5) years'
9 experience operating multifamily rental housing developments comparable to the Project;
10 b. The proposed transferee has no record of loan defaults,
11 maintenance problems, housing or building code violations, or substantiated fair housing
12 complaints at properties it has owned or operated; and
13 C. The proposed transferee has satisfactory credit.
14 X. REPRESENTATIONS AND WARRANTIES OF BORROWER
15 A. REPRESENTATIONS AND WARRANTIES
16 Borrower hereby represents and warrants to the County as follows:
17 1. Organization. Borrower is a duly organized, validly existing a
18 California limited partnership , is in good standing under the laws of the State of California, and
19 has the power and authority to own its property and carry on its business as is now being
20 conducted.
21 2. Authority of Borrower. Borrower has full power and authority to
22 execute and deliver this Agreement and to make and accept the borrowings contemplated
23 hereunder, to execute and deliver this Agreement and to make and accept the borrowings
24 contemplated hereunder, to execute and deliver the Loan Documents and all other documents or
25 instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement,
26 and to perform and observe the terms and provisions of all of the above.
27 3. Authority of Persons Executing Documents. This Agreement and
28 the Loan Documents and all other documents or instruments executed and delivered, or to be
44
1 executed and delivered by the Borrower, pursuant to this Agreement have been executed and
2 delivered by persons who are duly authorized to execute and deliver the same for and on be
3 behalf of Borrower, and all actions required under Borrower's organizational documents and
4 applicable governing law for the authorization, execution, delivery„ and performance of this
5 Agreement and the Loan Documents, and all other documents or instruments executed and
6 delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken (to
7 the extent such actions are required as of the date of execution and delivery of the above-named
8 documents).
9 4. Valid and Binding Agreements. This Agreement and the Loan
10 Documents and all other documents or instruments which have been executed and delivered by
11 the Borrower pursuant to or in connection with this Agreement constitute or, if not yet executed
12 or delivered, will when so executed and delivered, constitute, legal, valid, and binding obligations
13 of Borrower, enforceable by and against it in accordance with their respective terms, subject to
14 bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the rights of
15 creditors generally and general principles of equity.
16 5. No Breach of Law or Agreement. Neither the execution nor delivery
17 of this Agreement and the Loan Documents by the Borrower or of any other documents or
18 instruments executed and delivered, or to be executed or delivered by the Borrower, pursuant to
19 this Agreement, nor the performance by the Borrower of any provision, condition, covenant or
20 other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation,
21 or any judgment, decree or order of any court, board, commission, or County whatsoever binding
22 on Borrower, or any provision of the organizational documents of Borrower, or will conflict with or
23 constitute a breach of or a default under any agreement to which Borrower is a party, or will result
24 in the creation or imposition of any lien upon any assets or property of Borrower, other than liens
25 established pursuant hereto.
26 6. Compliance with Laws; Consents and Approvals. The construction
27 of the Project will comply with all applicable laws, ordinances, rules and regulations of federal,
28 state, and local governments and agencies and with all applicable directions, rules and
45
1 regulations of the fire marshal, health officer, building inspector and other officers of any such
2 government or County.
3 7. Pending Proceedings. Borrower is not in default under any law or
4 regulation or under any order of any court, board, commission or County whatsoever, and there
5 are no claims, actions, suits or proceedings pending or, to the knowledge of Borrower, threatened
6 against or affecting Borrower, or the Project, at law or in equity, before or by any court, board,
7 commission or County whatsoever which might, if determined adversely to Borrower, materially
8 and adversely affect Borrower's ability to repay the Loan or impair the security to be given to the
9 County pursuant hereto.
10 8. Title to Project. At the time of recordation of the Deed of Trust,
11 Borrower will have good and marketable fee title to the Project, and there will exist thereon or with
12 respect thereto no mortgage, lien, pledge, or other encumbrance of any character whatsoever,
13 other than those liens approved in writing by the County, liens securing any of the Approved
14 Financing, or liens for current real property taxes and assessments not yet due and payable.
15 9. Financial Statements. The financial statements of Borrower and
16 other financial data and information furnished by Borrower to the County fairly present the
17 information contained therein. As of the Effective Date, there has not been any adverse, material
18 change in the financial condition of Borrower from that shown by such financial statements and
19 the other data and information.
20 10. Sufficient Funds. Borrower holds sufficient funds and/or binding
21 commitments for sufficient funds to complete the acquisition of the Project and the construction
22 of Project in accordance with the plans and specifications approved by the County.
23 XI. GENERAL PROVISIONS
24 A. NO THIRD-PARTY BENEFICIARIES
25 The County shall not be bound by any agreement between
26 the Borrower and any of its partners, agents, employees, or subcontractors. The County shall be
27 bound only by the terms of this Agreement. It is understood and agreed by the Parties hereto that
28 no third-party beneficiary status or rights are created by or under this Agreement, and that no
46
1 other person, firm, corporation, or entity shall be deemed a third-party beneficiary of this
2 Agreement.
3 B. VENUE; GOVERNING LAW
4 Venue for any action arising out of or relating to this
5 Agreement shall only be in Fresno County, California. The rights and obligations of the parties
6 and all interpretation and performance of this Agreement shall be governed in all respects by the
7 laws of the State California.
8 C. INDEPENDENT CONTRACTOR
9 In performance of the work, duties, and obligations assumed by the
10 Borrower under this Agreement, it is mutually understood and agreed that the Borrower, including
11 any and all of the partners, officers, agents, and employees, shall at all times be acting and
12 performing as an independent contractor, and shall act in an independent capacity and not as an
13 officer, agent, servant, employee,joint venture, partner, or associate of the County. Furthermore,
14 the County shall have no right to control, supervise or direct the manner or method by which the
15 Borrower shall perform its work and function. However, the County shall retain the right to
16 administer this Agreement so as to verify that the Borrower is performing its obligations in
17 accordance with the terms and conditions thereof.
18 The Borrower and the County shall comply with all applicable provisions of law and the rules and
19 regulations, if any, of governmental authorities having jurisdiction over matters of the subject
20 thereof.
21 Because of its status as an independent contractor, the Borrower shall
22 have absolutely no right to employment rights and benefits available to County employees. The
23 Borrower shall be solely liable and responsible for providing to, or on behalf of, its employees all
24 legally required employee benefits. In addition, the Borrower shall be solely responsible and hold
25 the County harmless from all matters relating to payment of the Borrower's employees, including
26 compliance with Social Security withholding, and all other laws and regulations governing such
27 matters. It is acknowledged that during the term of this Agreement, the Borrower may be providing
28 services to others unrelated to the County or to this Agreement.
47
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2 D. NO CLAIMS
3 Nothing contained in this Agreement shall create or justify any claim
4 against the County by any person that Borrower may have employed or with whom Borrower may
5 have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or
6 the performance of any work or services with respect to the purchase, construction, or operation
7 of the Project, and Borrower shall include similar requirements in any contracts entered into for
8 the purchase, construction, or operation of the Project.
9 E. DISCRETION RETAINED BY COUNTY
10 The County's execution of this Agreement in no way limits the discretion of
11 the County in the permit and land use approval process in connection with construction of the
12 Project.
13 F. MODIFICATION
14 Any matters of this Agreement may be modified from time to time by the
15 written consent of all Parties without, in any way, affecting the remainder.
16 G. NON-ASSIGNMENT
17 Neither party shall assign, transfer or sub-contract this Agreement nor their
18 rights or duties under this Agreement without the written consent of the other party. Any transfer
19 or assignment without the County's prior consent shall be voidable and, at the County's sole
20 discretion, shall constitute a material breach of this Agreement. No consent to any assignment
21 shall constitute a further waiver of the provisions of this Section XI(G).
22 H. SEVERABILITY
23 The provisions of this Agreement are severable. The invalidity or
24 unenforceability of any one provision in the Agreement shall not affect the other provisions.
25 I. AUTHORIZATION AND NOTICES
26 1. County Authoritv
27 The PWP Director, or his or her duly authorized designee, at his or
28 her discretion, is hereby authorized to enter into and sign in the name of the County, all loan
48
1 documents, security documents, and other related documents, and any amendments thereto,
2 subject to the prior review and approval of County Counsel, as to legal form, and the ACTTC, as
3 to accounting form, as shall be necessary for the purpose of developing the Project as described
4 in Section I of this Agreement. Additionally, in the County's experience, changes in circumstances
5 frequently occur that require a quick response from the County, otherwise the project and/or its
6 financing may fail. In such cases, where the County's response is time-sensitive, the PWP
7 Director, or his or her duly authorized designee, is hereby authorized, but not required, to consent
8 to the following matters in the name of the County, subject to the prior review of County Counsel,
9 as to legal form, and the ACTTC, as to accounting form: (1)changes to Exhibits to this Agreement
10 that do not substantively alter the terms of the Agreement or substantively alter the scope of the
11 Project; (2) non-substantive changes to the scope of the Project, so long as the PWP Director, or
12 his or her designee, determines that the Project remains eligible under the PLHA Program; (3)
13 changes of funding sources from those specific other entities named in Exhibit "C", so long as the
14 PWP Director, or his or her designee, determines that the Project remains eligible under the PLHA
15 Guidelines and this Agreement; (4) changes of the specific dollar amounts set forth in Exhibit "C"
16 coming from other entities, or the total thereof, provided the total funds coming from the County
17 under this Agreement do not increase, and further provided that the PWP Director, or his or her
18 designee, determines that the Project remains viable, is fully funded, and eligible under the PLHA
19 Guidelines and this Agreement; (5) sign subordination documents, pursuant to Section V(K),
20 solely in order to facilitate the placement of permanent financing, and only within the first two
21 years after the Notice of Completion is recorded; and (6) terminate the Agreement if it has been
22 determined that the Borrower is not able to complete the project or acquire the funds necessary
23 to meet the terms described in the Agreement.
24 2. Borrower Authority
25 The President/CEO of the Borrower has authority to enter into and
26 sign this Agreement, and the Loan, security, and all other related documents, and any
27 amendments thereto on behalf of the Partnership, as shall be necessary for the purpose of
28 borrowing the funds to develop the Project.
49
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2 3. Notices
3 The persons and their addresses having authority to give and
4 receive notices under this Agreement include the following:
5 County:
6 County of Fresno
Department of Public Works and Planning
7 Community Development Division
Attention: Affordable Housing Programs
8 2220 Tulare Street, 61h Floor
Fresno, CA 93721
9
Borrower:
10 Guardian Village, L.P,
8445 W. Elowin Court
11 P.O. Box 6520
Visalia, CA 93290
12 Attention: President/CEO
13 With a copy to Borrower's limited partner:
14 Enterprise Multi-State LIHTC Fund, LLLP
c/o Enterprise Community Asset Management, Inc.
15 70 Corporate Center
11000 Broken Land Parkway, Suite 700
16 Columbia, Maryland 21044
Attn: Asset Management
17
and to:
18 Email: sshack@enterprisecommunity.com
Attn: General Counsel
19
20 All notices between the County and the Borrower provided for or permitted under this Agreement
21 must be in writing and delivered either by telephonic facsimile transmission. A notice delivered by
22 personal service is effective upon service to the recipient. A notice delivered by first-class United
23 States mail is effective three County business days after deposit in the United States mail, postage
24 prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service
25 is effective one County business day after deposit with the overnight commercial courier service,
26 delivery fees prepaid, with delivery instructions given for the next day delivery, addressed to the
27 recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient
28 is completed (but, if such transmission is completed outside if County business hours, then such
50
1 delivery shall be deemed to be effective at the next beginning of a County business day), provided
2 that the sender maintains a machine record of the completed transmission. For all claims arising
3 out of or related to this Agreement, nothing in this section establishes, waives, or modifies any
4 claims presentation requirements or procedures provided by law, including but not limited to the
5 Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section
6 810).
7 J. ENTIRE AGREEMENT
8 This Agreement constitutes the entire Agreement between the Borrower
9 and the County with respect to the subject matter hereof, and supersedes all previous
10 discussions, negotiations, proposals, commitments, writings, advertisements, publications, and
11 understandings of any nature whatsoever unless expressly included in this Agreement.
12 K. EFFECTIVE DATE
13 The effective date of this Agreement shall be the date upon which it is
14 executed by the County. The County shall place the day and month upon which it signs this
15 Agreement on Page 1, in the space provided.
16 L. DISCLOSURE OF SELF-DEALING TRANSACTIONS
17 This provision is only applicable if the Borrower is operating as a
18 corporation (a for-profit or non-profit corporation) or if, during the term of this Agreement, the
19 Borrower changes its status to operate as a corporation.
20 Members of the Borrower's Board of Directors shall disclose any self-
21 dealing transaction that they are a party to while the Borrower is providing goods or performing
22 services under this Agreement. A self-dealing transaction shall mean a transaction to which the
23 Borrower is a party and in which one or more of its directors has a material financial interest.
24 Members of the Board of Directors shall disclose any self-dealing transactions that they are a
25 party to by completing and signing a Self-Dealing Transaction Disclosure Form (Exhibit F) and
26 submitting it to the County prior to commencing with the self-dealing transaction or immediately
27 thereafter.
28 M. COUNTERPARTS
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1 This Agreement may be executed in any number of counterparts, each of
2 which shall constitute one original, and all of which shall be one and the same instrument.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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1 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the
2 County's signature.
3
4 Guardian Village, LP,
a California limited partnership
5
By: Guardian Village, LLC,
6 a California limited liability company,
its general partner
7
By: Self-Help Enterprises, COUNTY OF FRESNO
8 a California nonprofit public
benefit corporation,
9 its sole member/manager
10
11 By By: Li
'Thomas J. CollishaA in, ro, hairman of the Board of
12 President/CEO S6Y{�p►isdr the County of Fresno
13
14
15 Date: �� Date:
16
ATTEST:
17 Bernice E. Seidel
Clerk of the Board of Supervisors
18 County of Fresno, State of California
19
20 By:
Deputy
21
22
23 FUND NO: 0001 REMIT TO:
SUBCLASS NO. 10000 Guardian Village, LP
24 ORG NO. 5512-2017 c/o: Self-Help Enterprises
ACCOUNT NO. 7295 Attention: CEO/Executive Director
25 P.O. Box 6520
Visalia, California 93290
26 Telephone: (559) 802-1620
27
28
53
EXHIBIT "A"
Legal Description
The land referred to is situated in the County of Fresno, City of Reedley, State of California, and
is described as follows: Beginning at a point on the East line of Lot 14, Reed Colony, 438.5 feet
South of the Northeast corner of said Lot 14, thence South along the East line of said Lot 14,
164.4 feet to a point 55.67 feet North of the Southeast corner of said Lot 14, thence South 89'
17' West along the Northerly Bank of the Curtis Ditch 184.1 feet, thence North 750 10 West 45
feet, thence North 310 7' West 75.84 feet, thence North 490 44' East 75 feet, thence North 310 7'
West 214.16 feet to the Southeasterly line of 11th Street, thence North 490 44 East along the
Southeasterly line of 11th Street 200 feet to a point 220.4 feet Southwesterly from the
intersection of the East line of said Lot 14 with the Southeasterly line of 11th Street, thence
South 31° 51' East 318 feet to the point of beginning.
APN: 370-122-03
EXHIBIT "B"
Unit Mix and Rent Schedule
TOTAL UNITS 48
Rent Number Max
Unit Type Level of Units Unit Sq.Ft. Rent
1 Bedroom 30% 4 606 438
1 Bedroom 40% 2 606 585
1 Bedroom 50% 16 606 731
2 Bedroom 30% 4 846 526
2 Bedroom 40% 1 846 702
2 Bedroom 50% 8 846 877
3 Bedroom 30% 2 1247 607
3 Bedroom 40% 3 1247 810
3 Bedroom 50% 7 1247 1013
2 Bedroom Manager 1 N/A
Total 48
Maximum PLHA Allowable Rent and Unit Mix
PLHA UNITS (24)
Rent Number Unit Max
Unit Type Level of Units Sq.Ft. Rent
1 Bedroom 30% 2 635 438
1 Bedroom 40% 0 830 585
1 Bedroom 50% 10 1,021 731
2 Bedroom 30% 2 1,281 526
2 Bedroom 40% 0 635 702
2 Bedroom 50% 4 830 877
3 Bedroom 30% 1 1,021 607
3 Bedroom 40% 1 1,281 810
3 Bedroom 50% 4 635 1,013
Total 24
EXHIBIT "B"
Sources and Uses of Funds
Sources and Uses of Funds are anticipated as follows:
Uses of Funds Summary
Source of Funds
County of Fresno PLHA Loan Funds $ 1,775,000
County of Fresno HOME Loan Funds $ 475,000
HCD Joe Serna Loan $ 2,133,066
LGMG State Surplus Loan $ 2,381,832
Neighborworks Sponsor Loan $ 1,000,000
RD 538 Construction Loan $ 1,216,491
Land Donation $ 700,000
City of Reedley Fee Waiver $ 131,832
Tax Credit Equity $ 12,074,989
Developer Fee $ 400,000
Deferred Costs $ 2,572,652
$ 24,860,862
Uses of Funds
Acquisition/Land Costs $ 1,510,000
Construction Costs $ 15,983,438
Financing Costs $ 535,852
Operating Reserves $ 1,647,131
Soft Costs $ 2,984,441
Development Fees $ 2,200,000
$ 24,860,862
ATTACHMENT "D"
Project Timeline
PROJECT TIMELINE
TCAC Award Se . 2022
Building Permits Mar. 2023
Loan Documents Feb. 2023
Construction Start Mar. 2023
Construction Complete Oct. 2024
Lease Up Complete Dec. 2024
Permanent Loan Closing I Dec. 2025
EXHIBIT "E"
Project Disbursement Schedule
Draw Dollar 10% Amount
No. Percentage of Funds Amount Retention Disbursed
Requested
1 Deposit at escrow $0 $0 $0
2 25% of Total Loan Amount $443,750 $44,375 $399,375
(First construction draw)
3 25% of Total Loan Amount $443,750 $44,375 $399,375
4 25% of Total Loan Amount $443,750 $44,375 $399,375
5 25% of Total Loan Amount $443,750 $44,375 $399,375
Total Amounts $1,775,000 $177,500 $1,597,500
Retention Amount $177,500
(pay at the end of construction)
EXHIBIT "F"
Self-Dealing Transaction Disclosure Form
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor"),
must disclose any self-dealing transactions that they are a party to while providing goods,
performing services, or both for the County. A self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name,job title (if applicable), and date this disclosure is being made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a.The name of the agency/company with which the corporation has the transaction; and
b.The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4)
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party
to):
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code 5233 (a):
5 Authorized Signature
Signature: Date: