4893-1713-7678v9/022620-0095
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
(Bel’Age Senior Apartments)
by and between
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic,
and
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership,
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TABLE OF CONTENTS
Page
1. DEFINITIONS .......................................................................................................................... 6
1.1 Defined Terms .............................................................................................................. 6
2. ACQUISITION OF THE OWNERSHIP INTERESTS BY NEW PARTNERS;
CONDITIONS PRECEDENT TO CLOSING OF ACQUISTION AND
CONDITIONS PRECEDENT TO SUBSTANTIAL REHABILITATION ........................... 22
2.1 Developer Entity Structure and Acquisition of the Ownership Interests .................... 22
2.2 Environmental Condition of the Site .......................................................................... 26
2.3 Escrow for Closing of Acquisition.............................................................................. 29
3. SUBSTANTIAL REHABILITATION - PHASE 1 REHAB AND PHASE 2 REHAB ......... 30
3.1 Developer’s Obligation to Complete Substantial Rehabilitation ................................ 30
3.2 Development Plans for Phase 2 Rehab ....................................................................... 31
3.3 Timing of Construction and Completion of the Substantial Rehabilitation of Phase 2 Rehab ............................................................................................................. 33
3.4 City and Other Governmental Permits ........................................................................ 33
3.5 Release of Construction Covenants ............................................................................ 34
3.6 Insurance Requirements .............................................................................................. 34
3.7 Obligation to Repair and Restore Damage Due to Casualty ....................................... 37
3.8 Indemnity .................................................................................................................... 38
3.9 Entry by Authority ...................................................................................................... 39
3.10 Compliance with Laws ............................................................................................... 39
3.11 Financing of the Project .............................................................................................. 42
3.12 Non-Subordination of Senior Restrictions .................................................................. 43
3.13 Article XXXIV Compliance ....................................................................................... 44
3.14 Existing HAP Contract Second Extension .................................................................. 44
4. AFFORDABLE HOUSING COVENANTS AND OPERATION ......................................... 44
4.1 Number and Allocation of Housing Units; Unit Mix among Very Low Income and Low Income Levels ................................................................................. 44
4.2 Affordable Rent .......................................................................................................... 45 4.3 Duration of Affordability Requirements; Affordability Period .................................. 47
4.4 Selection of Tenants .................................................................................................... 47
4.5 Household Income Requirements ............................................................................... 48
4.6 Relocation; Developer Responsible for Cost of Relocation ....................................... 48
4.7 Leases; Rental Agreements for Housing Units ........................................................... 49
4.8 Supportive Services .................................................................................................... 50
4.9 Intentionally omitted ................................................................................................... 50
4.10 Maintenance ................................................................................................................ 50
4.11 Management of the Project ......................................................................................... 52
4.12 Capital Replacement Reserve ..................................................................................... 55
4.13 Operating Reserve ....................................................................................................... 55
4.14 Non-Discrimination Covenants................................................................................... 55
4.15 Monitoring and Recordkeeping .................................................................................. 57
4.16 Authority Regulatory Agreement to be Recorded ...................................................... 58
5. [Reserved]................................................................................................................................ 58
TABLE OF CONTENTS
(Continued)
Page
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6. DEFAULT AND REMEDIES ................................................................................................ 58
6.1 Events of Default ........................................................................................................ 58
6.2 Remedies ..................................................................................................................... 58
6.3 Force Majeure ............................................................................................................. 59
6.4 Termination by Developer .......................................................................................... 60
6.5 Termination by Authority ........................................................................................... 60
6.6 Attorneys’ Fees ........................................................................................................... 61
6.7 Remedies Cumulative ................................................................................................. 61
6.8 Waiver of Terms and Conditions ................................................................................ 61
7. GENERAL PROVISIONS ...................................................................................................... 61
7.1 Time is of the Essence ................................................................................................ 61
7.2 Notices ........................................................................................................................ 61
7.3 Representations and Warranties of Developer ............................................................ 62
7.4 Transfers; General Prohibition of Transfer without Authority Consent ..................... 63
7.5 Successors and Assigns ............................................................................................... 65
7.6 Non-Recourse; Non-Liability of Public Officials and Employees of Authority or City ......................................................................................................................... 65
7.7 Relationship between Authority and Developer ......................................................... 66
7.8 Executive Director; Authority Approvals and Actions ............................................... 66
7.9 Counterparts ................................................................................................................ 66
7.10 Integration ................................................................................................................... 66
7.11 Real Estate Brokerage Commission ............................................................................ 66
7.12 Titles and Captions ..................................................................................................... 66
7.13 Interpretation ............................................................................................................... 67
7.14 No Waiver ................................................................................................................... 67
7.15 Covenant Not to Sue ................................................................................................... 67
7.16 Developer’s Payment and Reimbursement of Authority’s Third Party Costs ............ 67
7.17 Modifications .............................................................................................................. 68
7.18 Severability ................................................................................................................. 68
7.19 Computation of Time .................................................................................................. 68
7.20 Legal Advice ............................................................................................................... 68
7.21 Cooperation ................................................................................................................. 68
7.22 Conflicts of Interest ..................................................................................................... 69
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LIST OF ATTACHMENTS
ATTACHMENT NO. 1 Legal Description of the Site
ATTACHMENT NO. 2 Schedule of Performance
ATTACHMENT NO. 3 Scope of Substantial Rehabilitation,
including Phase 1 Rehab and Phase 2 Rehab
ATTACHMENT NO. 4 Termination Agreement
ATTACHMENT NO. 5 Authority Regulatory Agreement
ATTACHMENT NO. 6 Completion Guaranty
ATTACHMENT NO. 7 Request for Notice of Default
ATTACHMENT NO. 8 Form of Release of Construction Covenants ATTACHMENT NO. 9 List of Environmental Reports
ATTACHMENT NO. 10 Preliminary Financing Plan; Financial Assumptions ATTACHMENT NO. 11 [Reserved]
ATTACHMENT NO. 12 Supportive Services Plan
ATTACHMENT NO. 13 Property Management Plan, including Parking Management Plan ATTACHMENT NO. 14 Income Verification
ATTACHMENT NO. 15 Memorandum of Agreement
ATTACHMENT NO. 16 Developer Certificate of Continuing Program Compliance
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AFFORDABLE HOUSING AGREEMENT
(Bel’Age Senior Apartments)
This AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (Bel’Age Senior Apartments) (“Agreement”), dated as of and for purposes of identification only as of May 24, 2022 is entered into by and between the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ( “Authority”), and BELAGE PRESERVATION LIMITED PARTNERSHIP, a California limited partnership (“Developer”).
R E C I T A L S
The following recitals are a substantive part of this Agreement.
A. Authority is a California housing authority duly organized and existing under the California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq., of the Health and Safety Code (“ HAL”), and has been authorized to transact business and exercise the power of a California housing authority pursuant to action of the City Council ( “City Council”) of the City of Anaheim.
B. The City of Anaheim (“City”) is a California municipal corporation and charter city.
C. The Developer entity, as restr uctured and reorganized, is comprised of :
(ii) RAHF V Belage, LLC in its capacity as a general partner , together with its permitted successors and assigns (“Administrative General Partner ”), (ii) RAHF V Belage, LLC, a Delaware limited liability company (in its capacity as a limited partner, together with its permitted successors and assigns (“ JRC Limited Partner”), (iii) JHC-Belage LP LLC, a California limited liability company (in its capacity as a limited partner, together with its permitted successors and assigns (“Jamboree Limited Partner ”), (iv) JHC-Belage GP LLC, a California liability company (in its capacity as a general partner, together with its permitted successors and assigns (“ Managing General Partner”). The Administrative General Partner, the JRC Limited Partner, the Jamboree Limited Partner and the Managing General Partner are sometimes referred to collectively as the “New Partners”.
D. The City and Belage Manor Ltd., a California limited partnership and predecessor-in- interest to Developer, (“Original Developer ”) entered into a certain agreement dated as of February 2, 1988 that was recorded as Instrument No. 88-081485 in the Official Records, County of Orange, State of California (“Official Records ”) on February 24, 1988 (“1988 Agreement” ) in connection with the original, then new, construction and operation of a 180-unit senior rental apartment complex, inclusive of two (2) onsite manager units, of which 178 Housing Units were restricted and covenanted as affordable housing for Very Low and Low Income Senior Citizen households (“Original Project”). This development, commonly known as Bel ’Age Manor or Bel’Age Senior Apartments is located at 1660- 1664 West Broadway, Anaheim, California ( “Site”); the Site is particularly described in the Legal Description , Attachment No. 1 and fully incorporated by this reference.
E. The 1988 Agreement affirmed the approval by the City Council of the City of Anaheim (“ City Council ”) of Conditional Use Permit No. 87-220, as amended (“ CUP”), that approved development and operation of the Original Project on the Site and approved certain
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variances therefor. By this Agreement Developer acknowledges and agrees that the 1988 Agreement and the City of Anaheim CUP remain in full forc e and effect; and each such instrument touches and concerns and runs with the land and all zoning and variances shall continue and survive pursuant to the terms thereof, and the Assignment shall include and reference the CUP and 1988 Agreement.
F. The New Partners are currently in escrow with Fidelity National Title, Escrow No. 30063438-997-MAT-TC1 in an interest purchase transaction to receive conveyance of all of the ownership interests in the Site, land and Improvements, from the current owner, as seller, for an effective fee simple “Purchase Price” of $46,000,000.00. Pursuant to the purchase and sale agreement between seller and New Partners the transaction is planned for Closing of Acquisition on or about May 31, 2022.
G. Developer intends for the restructured limited partnership entity described in Recital C above to (i) own fee ownership of the Site, land and improvements, (ii) accept all terms and conditions of that certain Assignment (defined and described below), (iii) obtain commitments for and close new financing, (iv) accept new equity investment s by JRC Limited Partner and Jamboree Limited Partner pursuant to that certain Belage Preservation Limited Partnership Second Amended & Restated Limited Partnership Agreement dated as of May 31, 2022 ( “LPA” or “Partnership Agreement”), to own, undertake and complete the Substantial Rehabilitation (both Phase 1 Rehab and Phase 2 Rehab), manage and maintain the Site and Project, and continued operation of affordable housing at the S ite for the Project as further set forth in this Agreement , the Authority Regulatory Agreement, and related implementing instruments , including the reset of the 99-year Affordability Period.
H. As a part of the financing for new construction of the Original Project the Authority issued those certain Variable Rate Demand Multifamily Housing Revenue Bonds (Bel’Age Apartments Project), 1990 Series A (“1990 Bonds”).
I. In connection with and as a requirement for the Authority’s issuance of the 1990 Bonds, the then Owner (defined therein), Authority (as Issuer), and Trustee (defined therein) entered into that certain Regulatory Agreement and Declaration o f Restrictive Covenants (“1990 Bond Regulatory Agreement ”) dated July 1, 1990 and recorded in the Official Records as Instrument No. 90-375768 on July 15, 1990.
J. The Qualified Project Period of the 1990 Bond Regulatory Agreement expired on or about July 15, 2020.
K. The 1990 Bonds were refunded and refinanced by those certain Anaheim Housing Authority Multifamily Housing R evenue Bonds (Bel Age Manor Apartments Project), Series 2008A (“2008 Bonds”), the proceeds of which were loaned to the Developer, as Borrower, to finance the acquisition and rehabilitation of the Original Project for the public purpose of providing decent, safe and sanitary housing for families and individuals of low and very low income.
L. In connection with and as a requirement for the Authority’s issuance of the 2008 Bonds, the Authority, Developer (as then owner and successor-in -interest to the Original Developer) and Trustee (defined therein) entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of February 1, 2008 and recorded in the Official Records as Instrument No. 2008- 000071739 on February 15, 2008 ( “2008 Bond Regulatory Agreement”).
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M. The 2008 Bond Regulatory Agreement remains in full force and effect and the term of the Qualified Project Period continues for the fifty-five (55)-year period defined and described therein.
N. The 2008 Bond Regulatory Agreement was amended by that certain First Amendment to Regulatory Agreement and Declaration of Restrictive Covenants dated as of February 1, 2008 and recorded in the Official Records as Instrument No. 2008-000071742 (“First Amend ment to 2008 Bond Regulatory Agreement”). Together, the 2008 Bond Regulatory Agreement and First Amendment to 2008 Bond Regulatory Agreement are referred to herein as the “2008 Bond Regulatory Agreement” and such instruments remain in full force and effect.
O. The Site, land and Improvements, is also subject to that certain Regulatory Agreement dated as of July 7, 2008 entered into between the California Tax Credit Allocation Committee (“TCAC”), established under HSC Section 50199.8, and Belage Preservation Limited Partnership, as “Owner” (“Tax Credit Regulatory Agreement”). The Tax Credit Regulatory Agreement is recorded in the Official Records as Instrument No. 2021 -000760297 and remains in full force and effect and the Compliance Period (defined therein) is thirty years as more fully set forth therein including without limitation Appendix A thereto.
P. Also, in connection with the issuance of the 2008 Bonds, the Authority and Developer (as then owner and successor -in-interest to the Original Developer ) entered into a certain Affordable Housing Agreement dated as of February 1, 2008 and recorded in the Official Records as Instrument No. 2008-000071745 on February 15, 2008 (“2008 Agreement”).
Q. The 2008 Agreement was entered into in connection with and as a part of the refinancing of the 19 90 Bonds and issuance of the 2008 Bonds . The proceeds of the 2008 Bonds were expended by Developer to refund all of the outstanding 1990 Bonds and to finance Developer's acquisition and rehabilitation of the Original Project.
R. Section 6 of the 2008 Agreement defined the “Term” thereof as “ninety-nine (99) years, commencing upon recordation of this [2008] Agreement”, that is until February 15, 2107.
S. The 2008 Agreement restricted and covenanted 178 units (of the total 180 units) as affordable housing for Very Low Income and Low Income Senior Citizen tenant households for a 99- year Term; and, by this Agreement that Term (herein “ Affordability Period”) is reset for 99 year s (i.e., until May 31, 2121) as set forth herein and pursuant to that certain Authority Regulatory Agreement, Attachment No. 5 as fully incorporated by this reference.
T. Prior to or concurrently with the Closing of Acquisition, the 2008 Bonds shall be or shall have been redeemed and repaid in full (“2008 Bond Redemption ”); provided however, the 1988 Agreement, 2008 Bond Regulatory Agreement , and 2008 Tax Credit Regulatory Agreement shall and do remain in full force and effect pursuant to their terms, respectively, for the period of the CUP as to the 1988 Agreement, for the Qualified Project Period as to the 2008 Bond Regulatory Agreement, and for the Compliance Period as to the 2008 Tax Credit Regulatory Agreement pursuant to the terms thereof.
U. Pursuant to the 2008 Bond Re gulatory Agreement, “ [i]n the event that the [2008] Bonds are redeemed in part or in full prior to the end of the term of this [2008] Regulatory Agreement, the Issuer Fee payable to the [Authority] for the remainder of the term of this
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[2008] Regulatory Agreement, at the option of the [Authority, as] Issuer, shall be paid by the [Developer, as] Borrower at the time of the redemption of the [2008] Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the prime rat e identified by the Wall Street Journal at the time of redemption) of the Issuer Fee for the number of years remaining under the [2008] Regulatory Agreement.” Developer informs Authority that seller/owner will be paying such lump sum payment obligation, a nd thereby under this Agreement, Developer acknowledges such payment obligation and shall cause remittance of such lump sum fee to the Authority in connection with the 2008 Bond Redemption and as a Condition Precedent thereto and to the Closing of Acquisition.
V. After the 2008 Bond Redemption and in connection with Developer’s restructure of the Developer entity, Developer will continue to be bound by the 1988 Agreement, 2008 Bond Regulatory Agreement, and 2008 Tax Credit Regulatory Agreement . The form of th e “Assignment of Membership Interests to the New Partners” (“Assignment”) is subject to the prior review and approval by the Authority Executive Director and shall be a Condition Precedent to the Closing of Acquisition.
W. Under this Agreement, in addition to two (2), Manager Units, 178 Housing Units in the Project shall be for tenancy by Senior Citizen Households at the following unit size and income restrictions:
(i) fifty-nine (59) one -bedroom units for occupancy by qualified Very Low Income Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households; and
(iii) one hundred sixteen (116) one -bedroom units for occupancy by qualified Low Income Households.
Authority acknowledges that as of the Closing of Acquisition, a third uni t is reserved and occupied as a third manager unit, and Developer intends to, and shall, request the consent of TCAC to remove the third manager unit, upon which said unit, will be subject to the affordability restrictions set forth herein.
X. As of the Date of Agreement, a number of existing tenants in occupancy at the Project hold “ Portable Vouchers ” under the United States Department of Housing and Urban Development’s (“HUD”) Section 8 Housing Choice Vouchers Program , 24 C.F.R. part 882 (Rental Certificate Program), rental vouchers under 24 C.F.R. part 887 (Rental Voucher Program) as such now exist and as may hereafter be amended, or other tenant -based rental assistance programs issued or otherwise administered by the City or the Anaheim Housing Authority (together, “Anaheim”) or by another public housing authority under the Section 8 Laws (together, “ HCV Program ”). The “Section 8 Laws” mean the Housing Choice Voucher Program, 42 U.S.C. 1437f and 3535(d), and the implementing regulations therefor in the Cod e of Federal Regulations, Parts 982 and 983. In this regard, nothing in this Assignment Agreement, expressly or impliedly, amends, modifies or otherwise affects Anaheim’s administration of, exercise of discretion in connection with, or otherwise associated with the HCV Program.
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Y. As of the Date of Agreement, the Developer and Authority are parties to that certain Housing Assistance Payment contract dated as of July 1, 2008 (“ Existing HAP Contract ”) under which the Authority has provided ninety (90) project -based vouchers (“ PBVs”) to the Project in connection with and as part of the Authority’s financial assistance to the Project in 2008.
Z. By this Agreement and expressly subject to the Conditions Precedent to Acquisition, Authority desires to state its intentio n to enter into the “Existing HAP Contract Second Extension”, which will extend the term of the Existing HAP Contract by fifteen (15) years with such extension to commence concurrent with date of the Closing of Acquisition and to end and expire on the 15th anniversary of such date, i.e., May 30, 2037. Under the Existing HAP Contract Second Extension, the Authority will continue to provide ninety (90) PBVs to the Project (herein, “Authority PVB Assistance”). The Authority has entered into this Agreement in material reliance on the information, supporting documentation about the qualifications of Developer to buy, own, operate, manage and maintain the Site and Project, and in material reliance on Developer covenant to undertake and timely complete the Substantial Rehabilitation of the Site, land and Improvements, that comprise the Project.
AA. While the Authority is providing the Existing HAP Contract Second Extension, Developer acknowledges and agrees that in all events and circumstances, Anaheim has and reserve s all rights and discretion in connection with the administration of the HCV Program and each and any housing assistance payment contract, including the Existing HAP Contract and Existing HAP Contract Second Extension with the Anaheim Housing Authority for and related to tenants holding HCV Program portable vouchers (“Portable Vouchers”) and the PBVs. In furtherance thereof, Anaheim intentionally and expressly reserves all discretion in its administration of and duties under the HCV Program, including without limitation, the “payment standards” (24 C.F.R. 982.4), with respect to the Portable Vouchers conducting “rent reasonableness” study(ies), and with respect to both the portable vouchers and the PBV’s determination of fair market rent (“FMR”) to ensure that rents charged by owners to HCV Program participants are reasonable (24 C.F.R. §982.507(b)). (See: https://www.hud.gov/program_offices/public_indian_housing/programs/hcv/guidebook ;
HUD HCV guidebook.)
BB. Part of the material consideration for the Authority’s agreement to provide the Existing HAP Contract Second Extension is Developer’s covenant to plan, de sign, construct and complete the Substantial Rehabilitation (at a n aggregate cost of not less than Nine Million Dollars ($9,000,000)), and to own, operate , manage and maintain the Site and Project for the reset 99-year Affordability Period.
CC. Under this Agreement, Developer and Authority desire to set forth the amended and restated terms and conditions for Developer’s acquisition, financing, equity investment s, Substantial Rehabilitation, operation, maintenance and management of the Bel’Age Senior Apartments from and after the Closing of Acquisition (“Project”).
DD. The Substantial Rehabilitation and operation of the Project shall conform to, and shall continue to conform to, the requirements of the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (“ URA”), as amended, the implementing regulations of Handbook 1378 of the Department of Housing and Urban Development (“ HUD”), the California Relocation Assistance Law, Government Code Section 7260, et seq. (Law), and the Relocation Assistance and Real Property Acquisition Guidelines adopted by the Department of Housing and
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Community Development and set forth at Title 25, California Code of Regulations Section 6000, et seq. (Guidelines) (collectively, the “Relocation Laws”).
EE. Authority (and City) have determined that this Agreement, including the Existing HAP Contract Second Extension and the Substantial Rehabilitation described herein, is/are not a “project” under the provisions of (a) the California Environ mental Quality Act, Public Resources Code Section 21000, et seq., and the Guidelines for Implementation of the California Environmental Quality Act set forth at Title 14 California Code of Regulations , Section 15000, et seq. (together, “CEQA”), and (b) the National Environmental Policy Act, 42 U.S.C. 4321, et seq . (“NEPA”); further, the Project described in this Agreement is within the class of projects described as affordable housing development that are categorically exempt pursuant to Section 21159.23 of the California Public Resources Code and Section 15332 of the Guidelines and the Existing HAP Contract Second Extension is not a new project subject to NEPA review and determination.
FF. The Project is intended to implement Authority’s goals and objectives under the HAL, HCV, and under the City’s Housing Element of the General Plan, and in furtherance of the Authority (and City)’s goals and objectives to provide in the community decent, safe and sanitary affordable housing and to increase, improve and preserve housing available at affordable housing cost for income -eligible households, in particular Senior Citizen Very Low and Low Income Households.
GG. The Project is vital to and in the best interest of the Authority, the City, and the health, safety and welfare of its residents and the community overall , and is in accordance with the public purposes of applicable state and local laws and requirements.
HH. Capitalized terms used in this Agreement are defined in these Recitals and in Section 1., et seq.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Defined Terms . The defined terms set forth in this Section 1.1 shall be used to interpret this Agreement and all attachments hereto except to the extent such terms are otherwise defined in the attachments hereto.
“Affiliate” shall mean any person or entity directly or indirectly, through one or more intermediaries, controlling, contro lled by or under common control with Developer, which shall include each of the constituent partners or members of Developer’s limited partnership. The term “control,” as used in the immediately preceding sentence, means, with respect to a person that is a corporation, the right to exercise, directly or indirectly, at least 50% of the voting rights attributable to the shares of the controlled corporation, and, with respect to a person that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled person.
“Affordability Period” shall mean the ninety -nine (99)-year duration of the affordable housing and operational covenants, conditions, restrictions, and require ments as set forth in this
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Agreement and Authority Regulatory Agreement commencing on the date of the Closing of Acquisition and ending on the 99th anniversary of that date. “Affordable Rent” shall mean the monthly housing cost (excluding any supplemental rental assistance from the State of California, the federal government or any other public agency) not in excess of the amount that may be charged by Developer to each and all tenant household(s) in conformity with and not to exceed HSC Sections 50052.5 and 50053 and applicable implementing regulations in the Cal Code Regs, which is the amount specified herein for the corresponding income category of each household qualifying as Very Low Income and Low Income. In furtherance hereof:
(i) for Very Low Incom e Households, Affordable Rent is thirty percent (30%) of fifty percent (50%) of the AMI for Orange County, adjusted for household size, divided by twelve (12), for use and occupancy of a Housing Unit and facilities associated therewith, and reduced by an allowance for utilities for an adequate level of service in an amount determined by the Housing Authority pursuant to HSC Section 50053 and the Cal Code Regs; and (ii) for Low Income Households, thirty percent (30%) of sixty percent (60%) of the AMI for Orange County, adjusted for household size, divided by twelve (12), for use and occupancy of a Housing Unit and facilities associated therewith, and reduced by an allowance for utilities for an adequate level of service in an amount determined by the Housing Authority pursuant to HSC Section 50053 and the Cal Code Regs.
Pursuant to HSC Section 50052.5, f or the studio Affordable Units, the Affordable Rent calculation shall assume a household size of one (1) person. For the one (1) bedroom Affordable Units, the Affordable Rent calculation shall assume a household size of two (2) persons. “Agreement” and “AHA” shall mean this Amended and Restat ed Affordable Housing Agreement ( Bel’Age Senior Apartments ), including all attachments hereto, between Authority and Developer.
“Annual Financial Statement” shall mean the certified financial statement of Developer for the Project using generally accepted accounting principles (“ GAAP”), as separately accounted for this Project prepared at Developer’s expense, by an independent certified public accountant reasonably acceptable to Authority, as well as the Section 8 Report that shall be submitted annually during the term of the Existing HAP Contract Second Extension. Once every three (3) years or sooner as and when requested by Authority and/or Executive Director, along with and as a part of the Annual Financial Statement, Section 8 Report , Developer, upon request by the Authority, shall submit true, legible, and complete copies of the source documentation supporting the Annual Financial Statement and Section 8 Report.
“Area Median Income” and “AMI” shall mean the area median household income set forth for each county in California (and for this Agreement for Orange County), which are based on median income limits promulgated annually by State HCD pursuant to HSC Sections 50052.5 and 50053.
“Audit” is defined and Authority’s rights to conduct audit(s) are set forth in Section 4.15.1 herein.
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“Authority” shall mean the Anaheim Housing Authority, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq. of the Health and Safety Code.
“Basic Concept Drawings” shall mean the plans and drawings to be submitted and approved by Authority, as set forth in Section 3.2.1 hereof.
“Best Knowledge ” shall mean the actual knowledge or constructive knowledge of Brandon J. Kearse, Managing Director Acquisition-Rehabilitation, Jonathan Rose Companies, and all documents and materials in the possession of lead staff that negotiated this Agreement on behalf of the Developer , and shall not impose a duty of investigation, except as to documents of record or actually provided to such party or its employees or agents, whether actually known or not. “Cal Code Regs ” shall mean the California Code of Regulations, which is the official compilation and publication of the regulations adopted, amended or repealed by state agencies pursuant to the Administrative Procedure Act, and which properly adopted regulations that have been filed with the California Secretary of State have the force of law . (See: https://oal.ca.gov/publications/ccr/.)
“Capital Replacement Reserve” shall mean a separate reserve fund account to be maintained by Developer separately for the Project. As of the Closing of Acquisition the Developer shall have received from the seller all amounts in its existing Capital Replacement Reserve account, which as of the Date of Agreement is approximately $545,635. While Authority acknowledges that Developer intends to expend such amount as a part of the costs to be incurred to undertake and complete the Substantial Rehabilitation, nonetheless Developer agrees to maintain a Capital Replacement Reserve account with a deposit in the amount equal to One Thousand Dollars ($1000) per unit (180 x $1000 = $180,000 to be used as the primary resource to fund capital improvements and replacement improvements for the Project under generally accepted accounting principles and shall include common areas. Developer also shall comply with the Capital Replacement Reserves requirem ent of its Lender which is anticipated to be $250/unit per year initially. All Capital Replacement Reserves shall be held in a single account controlled by Developer’s Lender (if Developer’s Lender from time to time requires the same). The non- availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligation to undertake any and all necessary capital repairs and improvements and to continue to maintain the Project in the manner prescribed herein.
Upon written request of Authority, but not more than once per year, Developer, at its expense, shall submit to Authority Executive Director an accounting for the Capital Replacement Reserve for the Project. Capital repairs to and replacement of improvements shall include only those items with a long useful life, including without limitation the following: carpet and drape replacement; appliance replacement; exterior painting, including exterior trim; hot water heater replacement; plumbing fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and replacement; landscape tree replacement; irrigation pipe and controls replace ment; sewer line replacement; water line replacement; gas line pipe replacement; lighting fixture replacement; elevator replacement and upgrade work; miscellaneous motors and blowers; common area furniture and planters replacement; and common area repainting. Commencing on the fifth (5 th) anniversary of this
Agreement and continuing every fifth anniversary thereafter, Developer will cause a physical inspection of the Property and cause to be prepared a project capital needs assessment (each, a “PCNA”) to be conducted by a qualified third party to determine whether the amounts on deposit in
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the Capital Replacement Reserve account and the amounts of the annual deposits required by the Lender are sufficient to fund the costs of the capital repairs and replacem ents anticipated to occur in the 5-year period being analyzed. The amount of the annual deposits required above may be adjusted to reasonably reflect the conclusions of the PCNA as a material factor in the Executive Director’s evaluation and determination thereof. Developer shall provide to Authority a complete and true copy of each PCNA and supporting documents for review and Executive Director reserves all right s to reasonably evaluate the cumulative amount on deposit in the Capital Replacement Reserve account for the Project and exercise her or his reasonable discretion. Each PCNA is a material factor in the determination if the Lender recommendation(s) align with maintaining balance on deposit in the Capital Replacement Reserve account is adequate to provide for necessary capital repairs and improvement to the Site and the Project.
“City” shall mean the City of Anaheim, a California municipal corporation and charter city.
The City is not a party to this Agreement and shall have no obligations hereunde r; provided, however, City is an intended third-party beneficiary of the covenants and restrictions, as well as the enforcement rights (without any obligation), set forth in this Agreement. “Closing” and “Closing of Acquisition” shall mean the date of the close of Escrow for the New Partners’ acquisition of all of the ownership interests in the Site , land and Improvement, and its closing of the financing therefor along with evidence of adequate funding to undertake and complete the Substantial Rehabilit ation, both the initial Phase 1 Rehab that does not Development Plans (as defined) and Phase 2 Rehab that does require Developer to undertake and complete Development Plan, pursuant to this Agreement.
“Completion Guaranty” is defined in Section 2.1.1(a)(vi). “Conditions Precedent to Closing of Acquisition” shall mean the conditions precedent to the Closing of Acquisition and thereby the Authority’s obligation to enter into the Existing HAP Contract Second Extension as set forth in Section 2.1.1 “Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab” shall mean the conditions precedent to the Developer’s commencement of construction of the Substantial Rehabilitation Phase 2 Rehab as set forth in Section 2.1.2. “Construction Contract ” shall mean each and every contract between Developer and the General Contractor for the completion of construction of any portion of the Substantial Rehabilitation Phase 2 Rehab of the Bel’Age Apartments Project, including construction and completion of any on- site or off-site improvements included in the Scope of Substantial Rehabilitation Phase 2 Rehab and the Dev elopment Plans therefor approved by the City and Authority. The Construction Contract between Developer and the General Contractor for the Substantial Rehabilitation Phase 2 Rehab (“CG Contract”) shall be for a fixed fee or guaranteed maximum price to com plete all work to be performed or caused to be performed by the General Contractor under such Construction Contract.
The GC Contract shall be reviewed and reasonably approved (or disapproved) by Authority Executive Director. Each Construction Contract, a s well as all subcontracts, shall include reference to this Agreement, the insurance and indemnity provisions herein, and all applicable federal regulations and laws based on the final federal funding sources, if any, to which the General Contractor (and Subcontractors) must comply in undertaking the construction and completion of the Substantial Rehabilitation Phase 2 Rehab of the Bel’Age Apartments Project.
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“Construction Drawings” shall mean the construction drawings and plans and specifications for the S ubstantial Rehabilitation Phase 2 Rehab to be submitted and approved by Authority for the Project, as set forth in Section 3.2.2 hereof.
“County” shall mean the County of Orange, California.
“CPI” shall mean the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical Workers, Subgroup “ All Items,” for the Los Angeles-Costa Mesa-Riverside area, [1982 – 84 = 100], or successor or equivalent index in case such index is no longer published. CPI adjustments under this Agreement shall commence not earlier than one year following the issuance of a certificate of substantial completion of the Substantial Rehabilitation by Developer’s architect.
“Date of Agreement” or “Effective Date” shall mean the date the approval of this Agreement by the Anaheim Housing Authority, reserving all discretion to the board to review, consider and approve (or disapprove) this Agreement.
“Debt Service” shall mean payments (including any required reserves) made in a calendar year pursuant to the Primary Loan obtained for the New Partners’ acquisition, and thereafter undertaking and completion of the Substantial Rehabilitation , and ongoing operation of the Project pursuant to Section 3.11.
“Default” or “Event of Default” shall mean the failure of a party to perform any action or comply with any covenant required by this Agreement, including the attachments hereto, within the time periods provided herein following notice and opportunity to cure, as set forth herein or therein. “Developer” shall mean Belage Preservation Limited Partnership, a California limited partnership and its permitted successors and assigns. The Administrative General Partner and JRC Limited Partner is RAHF V Belage, LLC, the Managing General Partner is JHC-Belage LP LLC and the Jamboree Limited Partner is JHC-Belage GP LLC.
“Developer Certificate of Continuing Program Compliance ” means the form of annual certification of the affordable housing requirements for operation of the Project, substantially in the form of Attachment No. 16 attached hereto.
“Development Impact Fees ” shall mean amounts , if any, required to be paid to or through the City prior to and as a condition to issuance of building permits to undertake and complete the Substantial Rehabilitation, both and whether Phase 1 Rehab and Phase 2 Rehab, including, without limitation, if applicable, any of the following fees, sanitation district, traffic signal assessment, schools, public works/drainage, public works/sewer connection, and/or public works/sewer assessment.
“Development Plans ” shall mean together the Basic Concept Drawings and Construction Drawings for the Substantial Rehabilitation Phase 2 Rehab to be submitted to City (and Authority staff) for review and approval pursuant to Section 3.2. “Environmental Claims” shall mean (i) any judicial or administrative enforcement actions, proceedings, claims, orders (including consent orders and decrees), directives, notices (including notices of inspection, notices of abat ement, notices of non- compliance or violation and notices to
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comply), requests for information or investigation instituted or threatened by any governmental authority pursuant to any Governmental Requirements, or (ii) any suits, arbitrations, legal proceedings, actions or claims instituted, made or threatened that relat e, in the case of either (i) or (ii), to any damage, contribution, cost recovery, compensation, loss or injury resulting from the release or threatened release (whether sudden or non-sudden or accidental or non-accidental) of, or exposure to, any Hazardous Materials, or the violation or alleged violation of any Governmental Requirements related to Hazardous Materials, or the generation, manufacture, use, storage, transportation, treatment, or disposal of Hazardous Materials. “Environmental Laws” shall mean all laws, ordinances and regulations relating to Hazardous Materials, including, without limitation: the Clean Air Act, as amended, 42 U.S.C.
Section 7401, et seq.; the Federal Water Polluti on Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601, et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C.
Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; all comparable state and local laws, laws of other jurisdictions or orders and regulations; and all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the U nited States, the State, the County, the City, or any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over Authority, Developer, or the Site. “Environmental Reports” shall mean all existing documents, surveys, studies, and reports relating to the environmental condition of the Site ; the Environmental Reports obtained by the Developer (or received by Developer from the prior partners in Developer entity) relat ed to the Site are listed in Attachment No. 9.
“Escrow” shall have the meaning set forth in Section 2.3. Prior to the Date of Agreement, the Escrow for the Closing of Acquisition was set up with Fidelity National Title. “Escrow Agent” shall mean Fidelity National Title and as further described in Section 2.3. “Executive Director ” shall mean and include the Director of Housing and Community Development for the City of Anaheim and the Executive Director of the Anaheim Housing Authority, which positions as of the Date of Agreement are held by Grace Ruiz -Stepter. Whenever the consent, approval or other action of the “ Executive Director” is required herein, such consent , approval or action may be provided by the Executive Director or her/his authorized designee(s) ; nonetheless, the Executive Director in her/his sole discretion may submit such request to the Authority Board for action to approve or disapprove such request. “Existing HAP Contract ” shall mean that certain Hous ing Assistance Paym ent Contract originally entered into and dated as of July 1, 2008 with an initial term of ten (10) years that ended as of June 30, 2018 under which the Authority provided to the Developer project-based Section 8 payments (“PBVs”) for ninety (90) apartment units in the Project, plus one prior extension of five (5) years for a term commencing July 1, 2018 and ending on June 30, 2023. Notwithstanding such end date, the Existing HAP Contract Second Extension will commence on the date concurrent with the
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Closing of Acquisition (May 31, 2022) and will end on the 15 th anniversary (May 30, 2037) thereof all pursuant and subject to the terms and conditions of such Existing HAP Contract as amended by the Existing HAP Contract Second Extension.
“Existing HAP Contract Second Extension” shall mean that certain second (2nd) extension and modification agreement of the Existing HAP Contract to be entered into between Authority and Developer under the Section 8 Laws and HOTMA for the Site and Project for a fifteen (15)- year extension commencing on the date of Closing of Acquisition (May 31, 202 2) and ending on the fifteenth (15
th) anniversary thereof (May 30, 2037 ), which extension, subject to the Developer’s continued compliance hereof and thereof shall comprise the “Authority PBV Assistance ” and there will continue to be ninety (90) PBVs at the Site and Project, all subject to the Section 8 Laws , HOTMA, and other applicable HUD requirements. On and after May 30, 2037, and thereby during the remaining t erm of the Affordability Period, Developer acknowledges and agrees that under this Agreement, the Authority reserves sole discretion to provide (or not provide) a third (3 rd) extension to the Existing HAP Contract Second Extension, and in the event of a third (3rd) extension, if granted, the term thereof is subject to HOTMA that as of the Date of Agreement does not allow the cumulative number of years of a HAP contract to exceed forty (40) cumulative years. “Final Budget ” shall mean the final budget for t he acquisition, Substantial Rehabilitation Phase 2 Rehab, construction through completion of the Project as approved by Authority pursuant to Section 2.1.2(a)(ii) hereof.
“General Contractor” shall mean the general contractor to be hired by Developer to engage and supervise the subcontractors in the performance and completion of the construction of the Substantial Rehabilitation Phase 2 Rehab of the Bel’Age Senior Apartments Project and all other on- site and off-site, if any, improvements required to be constructed in connection with the Project, all in accordance with the Scope of Substantial Rehabilitation Phase 2 Rehab and approved Development Plans by the City and Authority. The General Contractor shall be reasonably acceptable to and approved by Authority Executive Director, in her/his reasonable discretion; provided, that, Rose Community Builders, LLC and Quality Development and Construction, Inc. each is hereby pre - approved to act as the General Contractor to undertake and complete the Substantial Rehabilitation of the Project. The parties acknowledge that the General Contractor may not be performing all of the actual construction work for any portion of the Project, but instead may hire Subcontractors. “Governmental Requirements” shall mean all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County, the City, or any other political subdivision in which the Site is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over Developer or the Site , as may be amended from time to time.
“Guarantor” shall mean Rose Affordable Housing Preservation Fund V, L.P., pursuant to a Completion Guaranty, to be executed by Guarantor, substantially in the form of Attachment No. 6 attached and incorporated hereto.
“HAL” shall mean the California Housing Authorities Law, HSC Section 34200, et seq. “Hazardous Material ” or “Hazardous Materials” shall mean and include any substance, material, or waste which is or becomes regulated by any local governmental authority, including the County, Orange County Health Care Agency, the Regional Water Quality Control Board, the State of
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California, or the United States Government, including, but not limited to, any material or substance which is: (i) defined as a “ hazardous waste, ” “acutely hazardous waste, ” “restricted hazardous waste,” or “extremely hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to HSC Section 25140, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance ” under HSC Section 25316, Division 20, Chapter 6.8 (Carpenter Presley Tanner Hazardous Substance Accou nt Act); (iii) defined as a “ hazardous material, ” “hazardous substance,” or “hazardous waste” under HSC Section 25501, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “ hazardous substance ” under HSC Section 25281, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) asbestos and/or asbestos containing materials; (vii) lead based paint or any lead based or lead products; (viii) polychlorinated biphenyls, (ix) desig nated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317); (x) defined as a “hazardous waste ” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903); (xi) Methyl tert iary Butyl Ether; (xii) defined as “ hazardous substances ” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq. (42 U.S.C. Section 9601); (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment; and/or (xiv) lead based paint pursuant to and defined in the Lead Based Paint Poisoning Prevention Act, Title X of the 1992 Housing and Community Development Act, 42 U.S.C. §4800, et seq., specifically §§4821–4846, and the implementing regulations thereto. Notwithstanding the foregoing, “Hazardous Materials” shall not include such products in quantities as are customarily used in the construction, maintenance, rehabilitation, management, operation and residence of residential developments or associated buildings and grounds, or typically used in residential activities in a manner typical of other comparable residential developments, or substances commonly ingested by a significant population living within , including without limitation alcohol, aspirin, tobacco and saccharine. “HCV” means the HUD Housing Choice Voucher Program and is further defined and described in Recital X.
“HOTMA” means the Housing Opportunity through Modernization Act of 2016, Public Law 114–201, enacted July 29, 2016, and HUD implementing regulations and notices thereunder. “Housing Unit” and “Housing Units” shall mean, individually and collectively, each and all of the 178 apartments that shall be used and maintained by Developer as affordable Senior Citizen rental housing for occupancy by Very Low Income and Low Income tenants at Affordable Rents for the Affordability Period. There are 180 total apartment units in the Project, inclusive of the two (2) Manager Units; and all units on the Site shall be and remain owned, operated, managed, and maintained by Developer. In addition to two (2), Manager Units, 178 Housing Units shall be for tenancy by Senior Citizen Households as follows:
(i) fifty-nine (59) one -bedroom units for occupancy by qualified Very Low Income Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households;
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(iv) one hundred sixteen (116) one -bedroom units for occupancy by qualified Low Income Households; and
(v) Authority acknowledges that as of the Closing of Acquisition, a third unit is reserved and occupied as a third manager unit, and Developer intends to request the consent of TCAC to remove the third manager unit, upon which said unit, will be subject to the affordability restrictions set forth herein.
“HSC” shall mean the California Health and Safety Code. “HUD” shall mean the United States Department of Housing and Urban Development. “Improvements” shall mean the Bel’Age Apartments 180-unit Senior Citizen apartment complex, as well as the common areas, amenities, appurtenances, and all other improvements, including the building fixtures thereon, now located on the Site , if any, or hereafter constructed on the Site as part of the Project ; all landscaping, fencing, walls, paving, curbing, drainage facilities, lighting, parking areas, roadways and similar site improvements now located or hereafter placed upon the Site , which are to be substantially rehabilitated, constructed and completed on the Site as part of the Project under this Agreement and as approved by the Executive Director and City. “Indemnitees” shall mean collectively all governmental entities formed and/or controlled by the City of Anaheim, including: the Anaheim Housing Authority, the City of Anaheim, the Successor Agency to the Anaheim Redevelopment Agency (“Successor Agency”), any other governmental entity formed and/or controlled by the City of Anaheim, and all of their elected and appointed officials, officers, employees, attorneys, agents, volunteers and representatives. “Intercreditor Instrument” means one or more estoppel or intercreditor agreement(s) or instrument(s), if any, as may be requested by a Lender , for approval by the Executive Director (and legal counsel and special counsel), provided however the terms thereof shall in no event require or otherwise include subordination or modification of the Authority Regulatory Agreement. For each Intercreditor Instrument, and any reaffirmation, amendment or modification thereof, the form of such shall be delivered by the requesting party to Authority for review and action, including complete, legible copy(ies) of supporting documentation, if any, along with Word versions of the requested form(s) thereof, and each form thereof, shall be subject to the review and approval of the Authority through the Executi ve Director and legal counsel in her/his /their sole, reasonable discretion. In no event during the Affordability Period shall any Intercreditor Instrument cause subordination of the Authority Regulatory Agreement.
“Legal Description ” shall mean the legal description for the properties that comprise the Site, which is attached hereto as Attachment No. 1 and incorporated herein. “Lender” shall mean each of the financial lending institutions or persons or entities that provide a Primary Loan (or Primary Loans ), including acquisition loan(s), construction loan(s) or permanent loan(s) for the acquisition, then Substantial Rehabilitation Phase 1 Rehab and then Substantial Rehabilitation Phase 2 Rehab, and operation of the Project as set forth in Section 3.11 hereof. The initial Lender is Capital One, National Association, a national banking association.
Lender shall not include any provider of funds for “green” or sustainable improvements to the Site or Improvements or for the provision of social services to tenant ; provided however, if such source of
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green funding requires a lien instrument or other encumbrance against the Property such shall be and remain in junior lien position to the Authority Regulatory Agreement and the Primary Loan. “Low Income,” “Lower Income, ” “Low Income Households” and/or “Lower Income Households” means a household whose income does not exceed sixty percent (60%) of area median income for Orange County, adjusted for applicable household size, as computed in accordance with HSC Section 50079 and the regulations promulgated pursuant thereto or incorporated therein, including, without limitation, all regulations promulgated pursuant to HSC Section 50093, or any successor statute.
“Marketing and Tenant Selection Plan” shall mean the marketing and tenant selection plan to be prepared by Developer and submitted to Authority for its review and approval as a Condition Precedent to the Substantial Rehabilitation Phase 2 Rehab, as further described in Section 4.4.1. “Material Adverse Change” means any event the occurrence of which is reasonably likely to have a material adverse effect on Developer’s ability to fulfill its obligations under any Transaction Document, including without limitation:
(a) a voluntary or involuntary bankruptcy of Developer (which is not dismissed within ninety (90) days of institution);
(b) a court order placing Developer under receivership; (c) a sale of all or substantially all of the assets held by Developer, except as expressly permitted hereunder;
(d) any violati on of Developer or other failure of Developer to comply at all times with any applicable law, statute, ordinance, code, rule, regulation, judgment, order, ruling, condition or other requirement of a statutory, regulatory, administrative, judicial or quasi -judicial nature or any other legal or governmental requirement of whatever kind or nature related, which violation is likely to have a material adverse effect on the ability of Developer to perform its duties and obligations under any Transaction Document; and/or
(e) Developer incurs one or more liabilities, contingent or otherwise, or pending or threatened litigation or any asserted or unasserted claim exists against Developer, which would have a material adverse effect on its ability to perform its duties and obligations under any Transaction Document.
“New Partners” is defined in Recital C.
“Notice” shall mean a notice in the form prescribed by Section 7.2 hereof. “Official Records ” shall mean the official land records of the County Recorder of the County of Orange, State of California.
“Operating Reserve ” shall mean the Operating Reserve for the Project, which shall be funded by the Developer as an equity investment to the Project in an amount equal to One Hundred Eighty Thousand Dollars ($180,000) (“Target Amount”); provided, a larger Operating Reserve may be maintained if required by the Lender. The Operating Reserve shall thereafter be replenished from Annual Project Revenue to maintain the Operating Reserve balance of the Target Amount.
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“Original Developer” is defined in Recital D.
“Original Project” is defined in Recital D.
“Outside Closing Date” means May 31, 2022.
“Partnership Agreement ” or “LPA” shall mean that certain Belage Preservation Limited Partnership, Second Amended & Restated Limited Partnership Agreement dated as of May 31, 2022, which sets forth the terms of Developer’s limited partnership, as such agreement may be amended from time to time, so long as consistent with the requirements of this Agreement. Developer shall provide copies of any amendments or modifications to the Partnership Agreement to the Authority within fifteen (15) days following execution thereof.
“PBVs” means Section 8 project-based vouchers.
“Permitted Refinancing” shall mean a refinancing of the Primary Loan during the term of the Existing HAP Contract Second Extension that: (a) will not result in an increase in the outstanding principal amount owed, except to the extent necessary to pay (i) reasonable and customary costs and expenses of the new Lender incurred in connection with the refinancing, (ii) to the extent required by such new Lender, to complete required repairs or rehabilitation identified in a then current PCNA and for which funds are not available from funds on account in the Capital Replacement Reserve (and/or Operating Reserve, if any), (iii) the repayment of loan (s) made to Developer by a general partner or limited partner for the Project pursuant to the LPA to the extent loaned for needs of the Project and as reasonably approved by the Executive Director, (iv) the repayment of capital contributions to the Project made by Developer pursuant to the LPA to the extent contributed for needs of the Project and as reasonably approved by the Executive Director, including the capital contrib utions made for acquisition and Substantial Rehabilitation as contemplated herein, (v) a refinancing fee of not more than six percent (6%) of the amount of the new Primary Loan (vi) the amount of any then unpaid Operating Expenses, (vii) required Reserve Deposits to the Capital Replacement Reserve account (and Operating Reserve account, if any), and (b) is made by a reputable lender on then prevailing market terms (including without limitation an interest rate that does not exceed then prevailing market interest rates on similar refinancing loans for affordable housing projects in Orange County, California), which prevailing terms are subject to the reasonable review and approval of the Authority. Developer hereby agrees to provide not fewer than thirty (30) calendar days’ notice to Authority of the proposed terms of such refinancing and Developer acknowledges and agrees that Authority shall have the right to review and approve the terms of such refinancing as being consistent with this definition and this A greement on then prevailing market terms provided by a reputable lender, which approval will not be unreasonably withheld, conditioned or delayed. For the sake of clarity, Authority’s consent will not be required for a new financing obtained for green or sustainable improvements to the Site or the Improvements or for the provision of social services to tenants, provided that if such source of funding requires a lien instrument or other encumbrance against the Property such shall be and remain in junior lien position to the Authority Regulatory Agreement and the Primary Loan. In all events, Developer shall provide Authority the prior notice, and shall obtain the prior approval of, the Authority Executive Director in the event Developer desires undertake Syndication and/or Resyndication of the Project pursuant to the definition of Syndication and Resyndication herein. “Permitted Refinancing Period ” means the period commencing on the Closing of Acquisition and continuing during the effectiveness of the Existing HAP Contract Second Extension.
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“Phase 1 Rehab” means the initial work and improvements to the Bel’Age Senior Apartments complex for which Developer represents do not require issuance of building permits and are not part of the process of Developer prepar ing and obtaining approval of the Development Plans for the Phase 2 Rehab and the building permits associated therewith. The narrative description and specifications of the Phase 1 Rehab work is described in the Scope of Substantial Rehabilitation, Attachment No. 3.
“Phase 2 Rehab” means the second phase of work and improvements to the Bel’Age Senior Apartments complex that is required by the Authority and shall be undertaken by Developer in connection with its preparation of and obtaining approval of the Development Plans and the building permits associated with the Phase 2 Rehab. The narrative description and specifications of the Phase 2 Rehab work is described in the Scope of Substantial Rehabilitation, Attachment No. 3. “Preliminary Financing Plan” and “Financing Assumptions” shall mean the preliminary budget for undertaking the Project, in particular the Substantial Rehabilitation in an amount not less than Nine Million Dollar s ($9,000,000.00), including an overall budget for the Project including all sources and uses of funds, which is attached hereto as Attachment No. 10 and incorporated herein. “Primary Loan” and “Primary Loans” shall mean the acquisition and construction financing obtained by the New Partners for the acquisition of the Site and to fund a portion of the Substantial Rehabilitation. As of the Date of Agreement, the Primary Loan will be issued by Capital One, National Association; and, each subsequent reputable Lender of a Primary Loan shall be a reputable lender other tha n an Affiliate of Developer. The Primary Loan, including, without limitation, in connection with any Permitted Refinancing and permitted Primary Loans shall be the senior monetary lien against the Site but in all events each Primary Loan (all monetary lie ns) shall be and remain subordinate to the Authority Regulatory Agreement, the 1988 Agreement and, to the extent set forth therein, the 2008 Bond Regulatory Agreement.
“Project” shall mean the overall project provided for under this Agreement, including without limitation the New Partners’ acquisition of the ownership interests in the Site (land and Improvements), the Authority’s provision of the Existing HAP Contract Second Extension, the undertaking through completion of the Substantial Rehabilitation, both Phase 1 Rehab and Phase 2 Rehab, and the ownership, operation, management, maintenance of the 180 -unit Senior Citizen affordable housing project called for by this Agreement and the other Transaction Documents. “Property Management Plan ” shall mean the management plan required to be created by Developer and submitted to Executive Director for approval, which a pproval shall not be unreasonably withheld, which shall include a detailed plan and strategy for long term marketing (consistent with the Marketing and Tenant Selection Plan), operation, maintenance, repair, and security for the Project, inclusive of on-site Supportive Services to the Senior Citizen tenants, and the method of selection of tenants, rules and regulations for tenants, operational policies, other rental policies and procedures for the Project. In addition, the Property Management Plan shall describe the operational standards for oversight of the residents at the Project , including the terms and conditions to conduct welfare checks of residents who are known to Developer (and its onsite manager(s)) as infirm, ill, and/or with special needs, and thereby in need of frequent health, safety and welfare checks. The requirements for the Property Management Plan are more fully set forth in Section 4.11.2, and such plan, when approved by the Executive Director shall be appended to this Agreement as Attachment No. 13.
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“Property Manager” is defined in Section 4.11.1 and RCM is the initial Property Manager of the Project approved by the Authority under this Agreement. “RCM” means Rose Community Management, which entity is the property management entity to assume property management of the Project as of the Closing of Acquisition and such entity is approved as the initial Property Manager of the Project pursuant to this Agre ement, and subject to Section 4, et seq. herein.
“Regulatory Agreement” and “Authority Regulatory Agreement” shall mean the regulatory agreement for the Project that shall be entered into between Authority and Developer concurrently with the Closing of Acquisition and that shall be recorded as an encumbrance to the Site , which instrument shall be substantially in the form of Attachment No. 5. The Regulatory Agreement shall be recorded in the Official Records against the Site at the Closing of Acquisition a s and shall be and remain the senior, non-subordinate encumbrance, including senior to each and any Primary Loan and any and all other monetary liens.
“Release of Construction Covenants ” shall mean the document that shall evidence Developer’s satisfactory completion of the Substantial Rehabilitation Phase 2 Rehab , as set forth in Section 3.5 hereof, substantially in the form of Attachment No. 8 hereto. “Relocation” is defined in Section 4.6.
“Relocation Laws” is defined in Recital DD.
“Relocation Plan ” shall mean the “Bel’Age Senior Apartments Project Relocation Plan ” dated as of March 2022 prepared by Overland, Pacific & Cutler, LLC for Developer in connection with implementation of the Project . While the Developer r epresents and warrants to the Authority that it anticipates no permanent relocation of the existing tenants at the Site, nonetheless there may be temporary displacement of existing tenants for which each displaced tenant household will be eligible for temporary relocation assistance and benefits as set forth in the Relocation Plan. Because this Agreement is the initial step in the implementation of a public program or public project, including the Authority PBV Assistance , a Relocation Plan has been prepar ed and was considered and adopted by the City Council of the City of Anaheim all pursuant to the Relocation Laws .
Developer acknowledges and agrees the proper preparation, review and approval of the Relocation Plan by the City Council in accordance with t he Relocation Laws is Condition Precedent to the Closing of Acquisition.
“Rent” means the total of monthly payments by the tenants (inclusive of any and all payments attributable to Authority PBV Assistance , Portable Vouchers, other rental subsidies, or other public subsidies by any local, state, or federal governmental agency) of a Housing Unit for use and occupancy for the Housing Unit and facilities associated therewith, including the allowance for utilities defined in Title 25 Code of Regs Section 6918. “Request for Notice” or “Request for Notice of Default” shall mean the request for notice of default pursuant to Civil Code Section 2924b to be recorded against the Site in connection with the Escrow for Developer’s acquisition of the Site substantially in the form attached hereto as Attachment No. 7 and fully incorporated by this reference.
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“Reserve Deposits” shall mean any payments to the Capital Replacement Reserve account and the Operating Reserve account as and when required pursuant to Sections 4.12 and 4.13. “Schedule of Performance ” shall mean the Schedule of Performance for undertaking through completion of the Substantial Rehabilitation of the Project , both Phase 1 Rehab and Phase 2 Rehab, which is attached as Attachment No. 2 and fully incorporated herein. “Scope of Substantial Rehabilitation ” shall mean that certain Scope of Substantial Rehabilitation attached hereto as Attachment No. 3 and fully incorporated by this reference.
The Scope of Substantial Rehabilitation describes the scope , types, and quality of the repair, improvements and other work that Developer shall cause to be undertaken and completed at the Bel’Age Senior A partments pursuant to the terms and conditions of this Agreement. The Scope of Substantial Rehabilitation will be undertaken in two (2) ph ases: (i) the first phase includes critical repairs and improvements that will commence promptly after the Closing of Acquisition, which “Phase 1 Rehab” is described in Attachment No. 3, and (ii) the second phase includes continued rehabilitation work and improvements as depicted in the final Development Plans, which “Phase 2 Rehab” is described in Attachment No. 3. The full Scope of Substantial Rehabilitation, both Phase 1 Rehab and Phase 2 Rehab, shall be undertaken and completed by Developer within the times set forth in the Schedule of Performance, and all such work of rehabilitation and improvement s shall be completed whether or not the cumulative costs of the Substantial Rehabilitation therefor exceed the minimum of Nine Million Dollars ($9,000,000).
“Section 8 Report” shall mean a report prepared by Developer each year during the term of the Existing HAP Contract Second Extension in a form reasonably acceptable to Authority Executive Director, that is submitted to the Authority for the Project. In the Section 8 Report, Developer shall list and identify each and all of the Section 8 Housing Units, each unit assigned with a PBV and each unit for which tenant uses his/her/their Portable Voucher. This report shall present all relevant data and facts about each and all units at the Project designated as PBV units and Portable Voucher units, including (i) names and ages of each household member by unit number/address, (ii) tenant household income as certified annually, (iii) FMR approved by Authority (or if applicable other public housing authority that issued a Portable Voucher), (iv) amount paid by tenant as his/her/their 30% of gross income toward monthly rent, (v) amount received from Authority (or other public housing authority that issued a Portable Voucher) as the difference between such 30% of income and the applicable FMR, (vi) supporting documentation for same, and subject to Authority’s annual review (vii) any other information and verifiable documentation reasonably requested by the Authority. (A s noted herein, a tenant with a Section 8 voucher may be required to pay more than 30% of household income toward rent if their household has one or more members who do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of household income toward rent; for example, a tenant household with two members, one of whom does not have legal documentation status the voucher is prorated by 50%.) All reporting for each annual Section 8 Report shall apply and be based on cash basis accounting. “Section 8 PBV Program ” and “Section 8 Laws ” shall mean the Housing Choice Voucher and Project-Based (PBV) Voucher Programs, 42 U.S.C. 1437f and 3535(d), and the implementing regulations therefor in the Code of Federal Regulations, Parts 982 and 983. “Section 8 PBV Units ” means the ninety (90) Housing Units in the Project that will be covered by the Existing HAP Contract Second Extension.
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“Section 8 Portable Vouchers” and “Portable Vouchers” shall mean each and all Section 8 tenant-based vouchers, certificates of family participation under the Section 8 Laws, in particular, 24 CFR part 882 (Rental Certificate Program), rental vouchers under 24 CFR part 887 (Rental Voucher Program) as such now exist and as may hereafter be amended, or other tenant -based rental assistance programs issued or otherwise administered by the Authority or by another public housing authority under the Section 8 Laws.
“Senior” and “Senior Citizen” and “Senior Households” shall mean a household where at least one (1) person in residence at a housing unit is fifty-five (55) years of age or older and who resides, or intends to reside, in a housing unit as her or his primary residence on a permanent basis, and any other person residing in the unit is a “qualified permanent resident ” or a “ permitted health care resident ” as provided in California Civil Code Section 51.3, et seq ., or in the Federal Fair Housing Act, 42 U.S.C. Section 3607, and any other applicable federal, state or local laws and regulations governing the use and occupancy of senior housing developments, including the Bel’Age Senior Apartments.
“State HCD” and “ HCD” shall mean the State of California, Department of Housing and Community Development.
“Site” shall have the meaning set forth in Recital D. After completion of the Substantial Rehabilitation Phase 2 Rehab, all Improvements shall be deemed a part of the Site , whenever the term “Site” is used in this Agreement it shall mean and include the land and all Improvements. “Subcontractor” and “Subcontractors” shall mean, individually and collectively, one or more subcontractors hired by Developer’s General Contractor for the Project to perform and complete, or to engage and supervise others to perform and complete, the construction and Substantial R ehabilitation and all other onsite (and offsite , if any) improvements required to be constructed in connection therewith, all of which shall be in accordance with the Scope of Substantial Rehabilitation Phase 2 Rehab and the Development Plans. “Substantial Rehabilitation” shall mean all work of improvement and rehabilitation required to be completed by the Developer to the existing Bel’Age Senior Apa rtments development, both Phase 1 Rehab and Phase 2 Rehab. The costs for the Substantial Rehabilitation are estimated at and the budget therefor shall be for less than Nine Million Dollars ($9,000,000). To the extent there is overlap between the Scope of Rehabilitation Phase 1 Rehab, which is not part of the process to undertake and complete the Development Plans (as defined), and the Phase 2 Rehab that does require Developer to undertake and complete Development Plans , the costs for completing the Scope of Rehabilitation, as between Phase 1 Rehab and Phase 2 Rehab components, may overlap; nonetheless, in connection with negotiation of the terms of the Existing HAP Second Extension and this Agreement, Developer has represented, and this Agreement requires not less than $9,000,000 of costs that comprise the Substantial Rehabilitation.
“Syndication” and/or “ Resyndication” shall mean the application for and obtaining by Developer or any successor or assign of Developer of an allocation of federal and state low income housing tax credits for the Site and Project from TCAC and/or the application for and obtaining of an allocation and award to issue multifamily housing revenue bonds by CDLAC. In all events, whether Syndication or Resyndication, during the Affordability Period the Authority’s prior written consent is required and such decision to approve or disapprove remains in the sole , reasonable discretion of the Authority. On behalf of the Authority, the Executive Director will consider various factors in her or
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his review of Developer’s request to syndicate or resyndicate the Project in connection with her or his approval (or disapproval) thereof, including without limitation (i) the supporting documentation submitted by Developer with the request , i ncluding a project proforma, (ii) a financial analysis of such proforma and related supporting documentation, and/or (iii) whether the Syndication or Resyndication (A ) is or will be in the best, reasonable interests of Authority (and City), (B) will result in reduction of the income and rent standards, i.e., will the affordable housing covenants result in housing units at income and rent levels more affordable than permitted hereunder, and/or (C) will result in further rehabilitation, maintenance, and improvement of the Project. As noted in (i) and (ii) above, the Authority’s review will include an analysis by the Authority’s economic and housing consultant to evaluate, without limitation and as and if applicable to the request: supportable debt, structure and terms for the issuance of bonds, market value of tax credits, other potential funding source(s), investor equity, developer fee, deferred developer fee, other subordinate debt , and the terms therefor. Developer agrees to cooperate with the A uthority and its agents and provide complete, truthful and timely supporting documentation in connection with conducting an analysis of the requested Syndication or Resyndication.
“TCAC” shall mean the California Tax Credit Allocation Committee, the alloca ting agency for Tax Credits in California.
“Termination Agreement” shall mean the instrument(s) terminating the 2008 Agreement recorded against the Site related to the Original Project, in substantially the form attached hereto as Attachment No. 4 and incorporated herein; provided however, the 1999 Agreement and CUP shall continue to remain in full force and effect as to the Site and Project, and Developer in the Assignment and by this Agreement acknowledges such fact. “Third Party Costs” mean all costs reasonably incurred by Authority and City for any and all out of pocket, third party costs, fees, and expenses incurred by Authority or City (but not in house staff time) for attorneys, economic consultants, appraisers, engineers, affordable housing consultants, escrow company fees, title company fees, and other consulting and/or professional services incurred by Authority or City arising from and/or related in any respect to the implement ation of this Agreement during the following periods: (a) from April 22, 2021 to date of Closing of Acquisition, (b) from the date of Closing of Acquisition to the date of commencement of construction of the Phase 2 Rehab, and (c) from the date of the com mencement of the Phase 2 Rehab continuing through the term of the Affordability Period (together, “Third Party Costs”). “Transaction Documents” shall mean this Amended and Restated Affordable Housing Agreement (Bel’Age Senior Apartments), Authority Regulatory Agreement, Termination Agreement, Completion Guaranty, Request for Notice and other documents and instruments implementing this Agreement.
“Very Low Income ” and “Very Low Income Household ” mean a household whose income does not exceed fifty percent (50%) of area median income for Orange County, adjusted for applicable household size, as computed in accordance with HSC Section 50105 and the regulations promulgated pursuant thereto or incorporated therein, including, without limitation, a ll regulations promulgated pursuant to HSC Section 50093, or any successor statute. “1988 Agreement” means a certain agreement dated as of February 2, 1988 that was recorded as Instrument No. 88 -081485 in the Official Records, County of Orange, State of California (“Official Records”) on February 24, 1988 in connection and in implementation of Conditional Use
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Permit No. 2952 issued by the City for development of the original, then new, construction and operation of a 180-unit senior rental apartment complex, inclusive of two (2) onsite manager units, of which 178 Housing Units were restricted and covenanted as affordable housing for Very Low and Low Income Senior Citizen households as the Original Project. The 1988 Agreement is and shall remain an encumbra nce to the Site senior and nonsubordinate to any monetary lien, including each and any Primary Loan.
“2008 Bond Regulatory Agreement ” means that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of February 1, 2008 and recorded in the Official Records as Instrument No. 2008-000071739 on February 15, 2008, which remains in effect for the Qualified Project Period defined therein and is and shall remain an encumbrance to the Site and, to the extent set forth therein, senior and nonsubordinate to any monetary lien, including each and any Primary Loan.
“2008 Tax Credit Regulatory Agreement ” means that certain regulatory agreement dated as of July 7, 2008 entered into between the California Tax Credit Allocation Committee and Belage Preservation Limited Partnership. The Tax Credit Regulatory Agreement is recorded in the Official Records as Instrument No. 2021-000760297, and which remains in full force and effect for the defined Compliance Period therein and is and shall remain an encumbrance to the Site.
2. ACQUISITION OF THE OWNERSHIP INTERESTS BY NEW PARTNERS ;
CONDITIONS PRECEDENT TO CLOSING OF ACQUISTION AND CONDITIONS PRECEDENT TO SUBSTANTIAL REHABILITATION.
2.1 Developer Entity Structure and Acquisition of the Ownership Interests. Subject to the terms and conditions set forth in this Agreement, Developer agrees to restructure its limited partnership entity in the organizational form represented to the Authority and as defined in Recital C. and the definition of the term Developer, and agrees to cause and complete the interest transfer for the New Partners to acquire all of the ownership interests to the Site, land and Improvements, on or before May 31, 2022, all subject to the following Conditions Precedent to Closing of Acquisition.
2.1.1 Conditions Precedent to Closing of Acquisition. The Authority’s obligation to enter into the Existing HAP Contract Second Extension, and the Developer’s obligation to cause the Closing of Acquisition each is expressly and intentionally conditioned upon the satisfaction (or waiver by the benefited party) of the following terms and conditions within the times designated below (each, a “Condition Precedent,” collectively, “Conditions Precedent”). (a) Authority’s Conditions Precedent to Closing of Acquisition. E ach and every one of the following Conditions Precedent (i) through (ix), inclusive, described below are solely for the benefit of Authority, and shall be fulfilled by Developer or waived by Authority within the time periods provided herein:
(i) Redemption of 2008 Bonds . Developer shall have caused the seller/transferor entity to redeem and pay in full the 2008 Bonds. (ii) Execution and Recordi ng of Documents . Developer shall have duly executed, and as applicable, and delivered to Escrow Agent this Agreement, the Termination Agreement, Authority Regulatory Agreement, Completion Guaranty agreement, Memorandum of Agreement, Request for Notice, Existing HAP Contract Second Extension, and
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such documents shall be ready for and meet all conditions to the Closing of Acquisition pursuant to the requirements of this Agreement. The Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, and Request for Notice shall be ready to record against the Site , in that order, in the Official Records at such Closing.
(iii) Evidence of Financing . Developer shall have provided written proof reasonably acceptable to Authority that Developer has obtained a binding commitment for the Primary Loan for the Project, all subject to customary conditions. The Primary Loan shall be ready to close and fund concurrently with the Developer’s Closing of the Acquisition. (iv) Partnership Agreement; Organizational Documents;
Resolution. Developer shall have duly executed or, shall execute concurrently with the Closing of Acquisition, the Partnership Agreement in a form reasonably acceptable to Authority in accordance with Section 3.11, under which the JRC Limited Partner and Jamboree Limited Partner each is committed to make certain equity contributions in an amount, which together with the proceeds of the Primary Loan are sufficient to finance the acquisition and Substantial Rehabilitation (both Phase 1 Rehab and Phase 2 Rehab). As of the Date of Agreement, Developer represents such equity investment is estimated to total an amount in excess of $18,000,000. In addition, Developer shall have certified in writing to Authority that the Primary Loan , Authority PBV Assistance, other affordable housing subsidies, if any, and required equity contributions, are together projected to be sufficient to pay for the undertaking and completion of the Project. Authority shall have received and approved the Partnership Agreement and any other relevant organizational documents of Developer, including a resolution authorizing a representative of Developer to enter into this Agreement, the Termination Agreement, Authority Regulatory Agreement, Existing HAP Contract Second Extension, and all other applicable documents required under the terms of this Agreement, all on behalf of Developer.
(v) Relocation Plan . Developer shall have caused compliance with the Relocation Laws, in particular that the City Council, in its sole discretion and pursuant to the Relocation Laws, has timely received, considered and approved the Relocation Plan for the Project, including the description of the assistance and benefits due to the existing tenants, at the Site who may be temporarily displaced due to and when the Substantial Rehabilitation occurs, and/or who may be permanently displaced , if at all, from the Site due to being over- income or otherwise not an eligible, qualified tenant to remain in lawful occupancy at the Site under the Relocation Laws. (vi) Completion Guaranty Agreement. Developer shall obtain and provide for the benefit of Authority and City, the Completion Guaranty, substantially in the form of Attachment No. 6 pursuant to which Rose Affordable Housing Pres ervation Fund V, L.P. is the guarantor, legally and financially, to cause commencement through completion of construction of the Substantial Rehabilitation (1) substantially within the time limits set forth in the Schedule of Performance attached hereto as Attachment No. 2, (2) substantially in accordance with the Scope of Substantial Rehabilitation and the Development Plans for Phase 2 Rehab (when and as approved), (3) free and clear of any mechanics liens, materialmen’s liens and equitable liens, (4) all costs of construction shall be paid prior to delinquency, and (5) in compliance with applicable federal, state, and local laws . In addition, the Completion Guaranty will provide for the waiver by Guarantor of any and all rights, waivers and defenses which may otherwise be available under state or federal law to prevent Authority’s (or City’s) enforcement of Guarantor’s obligations under the Completion Guaranty.
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(vii) Proof of Insurance . Developer shall have provided to Authority certificates of insurance and endorsements that satisfy all requirements of and are subject to Section 3.6 as to the Project. Further, as and when Developer enters into one or more contracts with a General Contractor (and, as applicable, its Subcontractors), whether for Phase 1 Rehab and/or Phase 2 Rehab, all applicable insurance requirements shall be satisfied. (viii) Authority Third Party Costs. Developer shall have wired funds to Escrow for release and payment to Authority to reimburse the Authority for its Third Party Costs incurred between April 22, 2021 and the date of Closing of Acquisition. (ix) No Default; Representations and Warr anties. Developer shall not be in Default of any of its obligations under the terms of this Agreement. All representations and warranties of Developer contained herein shall be true and correct in all material respects on and as of the Closing Date for a cquisition of the Site as though made at that time, and all covenants of Developer which are required to be performed prior to such Closing shall have been performed by such date.
(b) Developer Conditions Precedent to Closing of Acquisition.
Developer’s obligations to proceed with its acquisition of the Site are subject to the fulfillment or waiver by Developer of each and all of the Conditions Precedent (i) through (vi), inclusive, described below, which are solely for the benefit of Developer, and which shal l be fulfilled or waived by the time periods provided for herein:
(i) Execution and Recording of Documents . Authority shall have duly executed and delivered to Escrow Agent this Agreement, the Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, Request for Notice, Existing HAP Contract Second Extension, and any other documents required hereunder, and such documents shall be ready for and meet all conditions to Closing of Acquisition pursuant to this Agreement.
The Termination Agree ment, Authority Regulatory Agreement, Memorandum of Agreement, and Request for Notice, shall be ready to record in the Official Records at Closing. (ii) Evidence of Financing. Developer shall be ready to close on its Primary Loan for the Project in form and substance acceptable to Developer, all subject to customary conditions.
(iii) Review and Approval of Title . Developer shall have reviewed and approved the condition of title to the Site as provided herein. (iv) Developer’s Title Policy . The Title Company shall have unconditionally committed to issue the Developer Title Policy to Developer. (v) Environmental Condition of the Site . The environmental condition of the Site and Improvements shall be reasonably acceptable to Developer. (vi) No Default; Representations and Warrant ies. Authority shall not be in Default of any of its obligations under the terms of this Agreement. All representations and warranties of Authority contained herein shall be true and correct in all material respects on and as of the Closing of Acquisition as though made at that time.
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2.1.2 Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab.
The Authority has entered into this Agreement and is providing the Existing HAP Contract Second Extension at the Closing of Acquisition in material reliance upon Developer’s full performance under this Agreement. Developer covenants and agrees to undertake and complete the Substantial Rehabilitation, both the Phase 1 Rehab and the Phase 2 Rehab that is the subject of this Section 2.1.2.
The following Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab shall be satisfied substantially within the times designated in the Schedule of Performance. (a) Authority’s Conditions Precedent re Substantial Rehabilitation Phase 2 Rehab . E ach and every one of the f ollowing Conditions Precedent (i ) through (ix), inclusive, described below, are solely for the benefit of Authority, and shall be fulfilled by Developer or waived by Authority:
(i) Development Plans and Building Permits for the
Substantial Rehabilitation. Developer shall have obtained City and Authority approval of the Basic Concept Drawings, Construction Drawings, and all final building plans for the Phase 2 Rehab (collectively, “Development Plans”) and be ready to have issued by the City all building permits therefor to undertake and complete the Substantial Rehabilitation Phase 2 Rehab as required by this Agreement, and such obligation includes continuing and completing the Phase 1 Rehab if such work has not been fully completed by the date for the Closing of Substantial Rehabilitation Phase 2 Rehab. (ii) Final Budget. Developer shall have submitted to Authority for its approval the detailed Final Budget and Authority shall have approved the Final Budget in its reasonable discretion.
(iii) Construction Contract. Developer shall have provided to Authority (not later than thirty (30) days prior to commencement of the Substantial Rehabilitation Phase 2 Rehab to enable Authority Executive Director and legal counsel to review, comment and approve or disa pprove (which approval will not be unreasonably withheld, conditioned, or delayed) the GC Contract(s). Authority Executive Director shall have reasonably approved such General Contractor as having the experience and financial resources necessary to const ruct and complete the Substantial Rehabilitation Phase 2 Rehab, which approval shall not be unreasonably withheld, conditioned or delayed. Developer shall submit to Authority evidence regarding each entity serving as the General Contractor along with sati sfactory evidence of necessary license(s), certification(s), bonding and insurance as required by this Agreement. The GC Contract shall be for a fixed, all - inclusive price or guaranteed maximum fee to complete all work to be performed by the General Contractor to construct and complete the Substantial Rehabilitation Phase 2 Rehab, subject to approved change orders.
(iv) Proof of Insurance . Developer shall have provided to Authority certificates of insurance and endorsements which satisfy all requirements of Se ction 3.6 hereof for both Developer’s continuing obligation to maintain insurance and the insurance required for the General Contractor and the Subcontractors.
(v) Property Management Plan ; Supportive Services Plan.
Developer shall have submitted to Authority, and Authority shall have reasonably approved, the Property Management Plan for the Project in accordance with Section 4., et seq. herein.
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(vi) Marketing and Tenant Selection Plan . Developer shall have submitted to Authority, and Authority shall have reasonab ly approved, the Marketing and Tenant Selection Plan. This plan may be included as a part of the Property Management Plan in (v) above.
(vii) Supportive Services Plan. The final form of the Supportive Services Plan shall have been reviewed and approved by the Executive Director and appended as the applicable attachment to this Agreement , and a copy of one or more agreements with Supportive Services providers for implementation of the approved Supportive Services Plan shall have been provided to the Authority.
(viii) Authority Third Party Costs . Developer shall have wired funds to Escrow for release and payment to Authority to reimburse the Authority for its Third Party Costs incurred between the date of Closing of Acquisiti on and the date Developer commences construction of the Phase 2 Rehab.
(ix) No Default; Representations and Warranties . Developer shall not be in Default of any of its obligations under the terms of this Agreement. All representations and warranties of Developer contained herein shall be true and correct in all material respects.
2.2 Environmental Condition of the Site.
2.2.1 Environmental Condition of the Site . A list of the Environmental Reports obtained by Developer shall be prepared by Developer and true copies of each and all shall be delivered to Authority and the title and dates therefor shall be listed in Attachment No. 9 attached hereto and incorporated herein. Except as disclosed in the Environmental Reports delivered, Developer represents to Authority that it is not aware of, to its Best Knowledge, and it has not received any additional notice or communication from any governmental agency having jurisdiction over the Site or Improvements, notifying it of the presence of Hazardous Materials in, on, or under the Site or Improvements, or any portion thereof. During the term of this Agreement, Developer shall notify Authority, and provide to Authority a copy or copies of any notices of violation, notices to comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements, and reports filed or applications made pursuant to all Environmental Laws and other Governmental Requirements, and Developer shall report to Authority, as soon as possible after an incident, if any, of Hazardous Materials; further, Developer shall provide Authority supplemental or updated documents , if any, that substantively relate to the environmental condition of the Site and Improvements that are received by Developer.
2.2.2 Studies and Reports. Developer acknowledges that the Original Developer has controll ed, operated and managed the Site since 2008. Developer may obtain or cause to be obtained through the Original Developer data and may make any other or additional surveys, tests, studies, and reports necessary to evaluate the suitability of the Site and Improvements, including the investigation of the environmental condition of the Site and Improvements for the Project (collectively, the “ Studies”). Any studies undertaken on the Site and/or Improvements by the Original Developer shall be done at the sole expense of Developer.
2.2.3 Environmental Indemnification. Developer shall save, protect, pay for, defend (with counsel acceptable to Authority and/or City, as applicable , (approval of which shall not
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be unreasonably withheld), indemnify and hold harmless the Anaheim Indemnitees from and against any and all Environmental Claims and any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses (incl uding, without limitation, consultants’ fees, investigation and laboratory fees, attorneys’ fees and remedial and response costs and third-party claims or costs) (the foregoing are hereinafter collectively referred to as “Liabilities”) that may now or in t he future be incurred or suffered by Indemnitees by reason of, resulting from, in connection with or arising in any manner whatsoever as a direct or indirect result of: (i) the presence, use, release, escape, seepage, leakage, spillage, emission, generation, discharge, storage, or disposal of any Hazardous Materials in, on, under, or about, or the transportation of any such Hazardous Materials to or from, the Site ; (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, leakage, spillage, emission, escape, discharge, storage, disposal, or transportation of Hazardous Materials in, on, under, or about, or to or from, the Site; (iii) the environmental condition of the Site, (iv) any Liabilities relating to any Environmental Laws and other Governmental Requirements relating to Hazardous Materials and/or the environmental condition of the Site, and (v) any Environmental Claims relating to the Site . The foregoing indemnification shall continue in full force and effect regardless of whether such condition, liability, loss, damage, cost, penalty, fine, and/or expense shall accrue or be discovered before or after the termination of this Agreement. This indemnification supplements and in no way limits the indemnification set forth in Section 3.8.
2.2.4 Duty to Prevent Hazardous Material Contamination . During the Substantial Rehabilitation, development, operation and management of the Site and Improvements Developer shall take all necessary precautions to prevent the release of any Hazardous Materials into the environment on or under the Site . Such precautions shall include, but not be limited to, compliance with all Environmental Laws and other Governmental Requirements.
2.2.5 Release of Authority and City by Developer . Developer hereby waives, releases and discharges forever the Indemnitees from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, including attorneys’ fees, court and litigation costs and fees of expert witnesses, present and future, arising out of or in any way connected with De veloper’s ownership and/or use of the Site in accordance with this Agreement, the Scope of Substantial Rehabilitation, the approved Development Plans, and for the operation of the Project at the Site , of any Hazardous Materials on the Site, or the existenc e of Hazardous Materials contamination in any state on, under, or about the Site, however they came to be located there , except to the extent evidenced to have been caused by the intentional action or grossly negligent action of an Indemnitee.
In connection with the foregoing, Developer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code that provides as follows:
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“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.”
As su ch relates to this Section 2.2.5, Developer hereby waives and relinquishes all rights and benefits that it may have under Section 1542 of the California Civil Code. _________________
Developer’s Initials
2.2.6 Environmental Inquiries. Developer shall notify Authority upon receipt, and provide to Authority a copy or copies, of the following environmental permits, disclosures, applications, entitlements or inquiries relating to the Site and Project: notices of violation, notices to comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Environmental Laws and other applicable Governmental Requirements relating to Hazardous Materials and underground tanks, and Developer shall report to Authority, as soon as possible and not later than as and when required by applicable law, after each incident, all material information relating to or arising from such incident, including, but not limited to, the following:
(a) All required reports of releases of Hazardous Materials, including notices of any release of Hazardous Materials as required by any Governmental Requirements; (b) All notices of suspension of any permits relating to Hazardous Materials;
(c) All notices of violation from federal, state or local environmental authorities relating to Hazardous Materials;
(d) All orders under the State Hazardous Waste Control Act and the State Hazardous Substance Account Act and corresponding federal statutes, concerning investigation, compliance schedules, clean up, or other remedial actions; (e) All orders under the Porter Cologne Act, including corrective action orders, cease and desist orders, and clean up and abatement orders; (f) Any notices of violation from OSHA or Cal OSHA concerning employees’ exposure to Hazardous Materials;
(g) All complaints and other pleadings filed against Developer relating to Developer’s storage, use, transportation, handling or disposal of Hazardous Materials on or about the Site; and
(h) Any and all other notices, citations, inquiries, orders, filings or any other reports containing information which would have a materially adverse effect on the Site or Authority’s liabilities or obligations relating to Hazardous Materials.
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In the event of a release of any Hazardous Materials into the environment from the Site, Developer shall, as soon as possible after the release, furnish to Authority a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request of Authority, but subject to any limitations imposed by law or by court order, Developer shall furnish to Authority a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Site in Developer’s possession and/or shall notify Authority of any environmental entitlements or inquiries relating to or affecting the Site within Developer’s Best Knowledge if Developer is not in possession of same, including, but not limited to, all permit applications, permits and reports , but excluding report (s) and/or other matters that are reasonably characterized as confidential by a third party and provided that the consultant or consultants that prepared such report(s) shall not characterize such report(s) as confidential.
2.3 Escrow for Closing of Acquisition . Prior to the Date of Agreement, the New Partners (and seller partners) caused the opening of an escrow (“ Escrow”) for the Closing of Acquisition with Fidelity National Title Company (“ Escrow Agent ”). As used herein, “Closing” refers to the close of Esc row for New Partners’ acquisition of the ownership interests in and to the Site, and the execution and recordation of the Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, and Request for Notice of Default.
2.3.1 Costs of Escrow . D eveloper (or selling partners) shall pay all Escrow charges, the premium for Developer’s Title Policy, all recording fees and documentary transfer taxes, if any, due with respect to the Closing, and all other fees, charges, and costs which arise from Escrow. In no event will the Authority be liable or responsible for any costs, fees, charges incurred or due related directly or indirectly to the Closing of Acquisition.
2.3.2 Escrow Instructions. This Agreement constitutes the joint escrow instructions of De veloper and Authority, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties agree to do all acts reasonably necessary to close the Escrow within the time set forth in the Schedule of Performance. (a) If in the opinion of any party it is necessary or convenient in order to accomplish the Closing of the Escrow, a party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control, unless the supplemental escrow instructions expressly state the intent to amend this Agreement. The parties agree to execute such other and further doc uments as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. Developer authorizes the Escrow Agent to release a copy of the settlement statement to the Authority in connection with the Closing of Acquisition.
2.3.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Verify proper and complete execution of all Transaction Documents, including without limitation the Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, and Request for Notice of Default upon Closing; and (b) Do such other actions as necessary to fulfill the Escrow Agent’s obligations under this Agreement.
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2.3.4 Closing Procedure. Escrow Agent shall close the Escrow as follows (as it relates to this Agreement):
(a) Accept receipt of fully and duly executed Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, Completion Guaranty from Rose Affordable Housing Preservation Fund V, L.P., and Request for Notice of Default; (b) Record documents in the following order:
(i) Termination Agreement;
(ii) Authority Regulatory Agreement, with instructions for the Recorder to deliver the recorded instrument to the Authority; (iii) Primary Loan Deed of Trust;
(iv) Memorandum of Agreement, with instructions for the Recorder of Orange County, California (“Recorder”) to deliver the instrument to the Authority; (v) Intercreditor Instrument(s), if any; and
(vi) Request for Notice, with instructions for the Recorder to deliver the instrument to the Authority.
2.3.5 Title Insurance. Concurrently with the Closing of Acquisition there shall be issued to Developer at Developer’s sole cost, an ALTA owner’s policy of title insurance, together with all endorsements Developer may reasonably require (collectively, the “Developer Title Policy”), issued by the Title Company insuring that Developer holds fee simple interests in the Site , land and Improvements. The Title Company shall provide Developer and Authority with copies of the Developer Title Policy , which shall evidence the priority of the Authority Regulatory Agreement, 1988 Agreement and, to the extent set forth therein, the 2008 Bond Regulatory Agreement as senior encumbrances, including senior to the deed of trust securing the Primary Loan and all other monetary liens.
3. SUBSTANTIAL REHABILITATION - PHASE 1 REHAB AND PHASE 2 REHAB.
3.1 Developer’s Obligation to Complete Substantial Rehabilitation . Developer agrees to cause construction and development through completion of the Substantial Rehabilitation, both Phase 1 Rehab (that is not part of Development Plans processing) and Phase 2 Rehab (that does require Developer to undertake and complete Deve lopment Plan s), and all on-site (and off-site , if any) improvements required to be constructed in accordance with the Scope of Substantial Rehabilitation, the final Development Plans for Phase 2 Rehab approved by the City and Authority in accordance with Section 3.2, the Building Permits issued by the City, and all applicable local codes, development standards, ordinances and zoning ordinances, other applicable Governmental Requirements.
3.1.1 Scope of Substantial Rehabilitation. A narrative description of the scope of the Substantial Rehabilitation, both Phase 1 Rehab and Phase 2 Rehab, line item estimated costs, line item description with specifications, is set forth in the Scope of Substantial Rehabilitation attached hereto as Attachment No. 3.
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3.1.2 Developer Covenant to Complete Phase 1 Rehab . While a primary objective of this Agreement and a material basis for which the Authority has agreed to provide the Existing HAP Second Extension is Developer’s agreement to undertake and complete the Substantial Rehabilitation Phase 2 Rehab, nonetheless, Developer has informed Authority that it intends to undertake and complete certain critical repairs and improvements of the Site and Bel’Age Senior Apartments with such work to commence promptly after the Closing of Acquisiti on. Developer represents that the scope of such work does not require building permits and is not part of the Phase 2 Rehab. Developer covenants to the Authority that it shall undertake and complete timely such Phase 1 Rehab. This Phase 1 Rehab is a substantive part of the Scope of Substantial Rehabilitation and is subject to applicable federal, state and local laws and Developer obtaining all necessary permits therefor, are providing insurance coverage therefor. In all events, the cumulative costs of the Substantial Rehabilitation, both Phase 1 Phase 2 Rehab , shall be not less than $9,000,000 as represented by Developer to the Authority during negotiations leading up to the Authority agreeing to enter into the Existing HAP Contract Second Extension and this Agreement.
3.2 Development Plans for Phase 2 Rehab.
3.2.1 Basic Concept Drawings. Developer shall cause to be prepared and submit the basic concept drawings for the Substantial Rehabilitation Phase 2 Rehab (all apartment units, common areas, appurtenances , amenities, and other improvements that comprise Phase 2 Rehab) (“Basic Concept Drawings ”). Within the time set forth in the Schedule of Performance, Developer shall submit, and Authority shall review for approval or disapproval or conditional approval, the Basic Concept Drawings for the Phase 2 Rehab , which approval shall not be unreasonably withheld, conditioned, or delayed. If and once approved, in the event Developer wishes to in any substantial way alter or modify such Basic Concept Drawings, Developer shall re -submit such modified Basic Concept Drawings to both Authority (and City, as necessary ) for reasonable review and approval of such modifications.
3.2.2 Construction Drawings and Related Documents for Phase 2 Rehab.
Within the time set forth in the S chedule of Performance, Developer shall cause to be prepared and submit to Authority, and Authority shall review and approve, disapprove, or conditionally approve, which approval shall not be unreasonably withheld, conditioned or delayed, the detailed construction plans and specifications of the Phase 2 Rehab , as prepared by the architect, engineer, or other design professionals (together, “Construction Drawings”).
3.2.3 Standards for Disapproval . Authority Executive Director shall have and retain all rights to review and approve, or disapprove, in her/his reasonable discretion, as applicable, the Basic Concept Drawings and the Construction Drawings. Disapproval shall oc cur in the event (a) the Construction Drawings do not conform to the approved Basic Concept Drawings, or (b) the Construction Drawings do not conform to the Scope of Substantial Rehabilitation Phase 2 Rehab or this Agreement, or (c) the Construction Drawings are incomplete. Authority review and subsequent approval or disapproval shall be conducted within the time periods set forth in the Schedule of Performance, and Authority’s disapproval, if any, shall include a written statement of the reasons for such disapproval. Developer, upon receipt of any such disapproval, shall revise such portions and resubmit the disapproved Basic Concept Drawings or Construction Drawings, as the case may be, provided, however, in no event shall any such drawings be deemed approved. (a) Developer acknowledges and agrees that Authority is entitled to approve or disapprove the Basic Concept Drawings and Construction Drawings in order to satisfy
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Authority’s obligation to promote the sound Substantial Rehabilitation of Bel’Age Manor , t o promote a high level of design (taking into consideration the constraints of renovating an existing structure) that will benefit the residents and surrounding neighborhood, and to provide an environment for the social, economic and psychological growth a nd well-being of the Senior Citizen tenant households, as well as the Anaheim community.
3.2.4 Consultation and Coordination . During the preparation of the Development Plans and throughout the Substantial Rehabilitation Phase 2 Rehab, Housing and Community Development staff and authorized representatives of Developer shall hold joint progress meetings with City staff to coordinate the preparation of, submission to, and review of the Development Plans by Authority Executive Director and City. Housi ng and Community Development staff and authorized Developer representatives shall communicate and consult informally as frequently as is necessary to ensure that the formal submittal of any documents to Authority and/or City can receive prompt and thorough consideration. Authority shall designate a member of the Housing and Community Development to serve as the Project Manager, who shall be responsible for the coordination of Authority’s activities under this Agreement and for coordinating the permitting process. As of the Date of Agreement such designated staff person is Stephen Stoewer, Senior Project Manager.
3.2.5 Revisions and Change Orders. In the event Authority disapproves or conditionally approves the Development Plans, or any part(s) thereof, or if Developer desires to propose any substantial revisions to the approved Development Plans, or any part(s) thereof, Developer shall submit its revisions or proposed changes thereto to Authority Executive Director and City, and shall also proceed in accordance with any and all Governmental Requirements regarding such revisions. Any substantial revision or change to such Development Plans propos ed by Developer may be disapproved by Authority through its Executive Director in her/his reasonable discretion pursuant to subdivision (a) below. Any and all change orders or revisions required by the City and its inspectors that are required under the A naheim Municipal Code and all other applicable Uniform Codes (e.g. Building, Housing, Plumbing, Fire, Electrical, etc.) and under other Governmental Requirements shall be included by Developer in its Development Plans and completed during the Substantial Rehabilitation. In the event Developer requests substantial revisions, alterations, or modifications, and/or any type of value engineering to the Development Plans, or any part(s) thereof, for any reason including increased construction costs because of unforeseen occurrences or conditions relating to the construction, such modifications shall be subject to the approval of Authority in its reasonable discretion and as applicable the City’s Planning/Building Department consistent with applicable laws, rules, regulations, ordinances and development standards) pursuant to subdivision (a) below. Developer acknowledges and agrees to pay any and all increased costs of construction due to any such revisions, alterations, or modifications of the Development Plans, or any part(s) thereof.
(a) Approval of Change Orders . Developer shall not be required to obtain Authority Executive Director approval of any change orders or other revisions or modifications to the Construction Drawings, so long as each change order, revision, or modification is consistent with the approved Basic Concept Drawings does not cause any value engineering not previously authorized by Authority and does not affect materially the design, materials, and architectural quality and integrity of the Project, except that Developer shall be required to obtain Authority Executive Director approval to the extent such change order, revision, or modification will result in a cost adjustment which, cumulatively with all other change orders, revisions, and modifications, exceeds the amount set forth as the contingency line item in the approved Final
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Budget. Notwithstanding the immediately preceding sentence, Authority shall have the right to review any and all material changes, revisions or modifications to the fi nal Development Plans and/or any and all material change orders to the Construction Contract with the General Contractor which are approved by Developer.
3.2.6 Defects in Development Plans . Neither Authority nor City shall be responsible to Developer or to any third parties in any way for (a) any defects in the Development Plans, (b) any structural or other defects in any work done according to the approved Development Plans, nor (c) any delays caused by the review and approval processes established by this Section 3.2.
Developer shall hold harmless, indemnify and defend the Indemnitees from and against any claims or suits for damages to property or injuries to persons (including death) arising out of or in any way relating to defects, latent or patent, in the D evelopment Plans, or the actual construction work and improvements comprising the Project , including, without limitation, the violation of any Governmental Requirements, or arising out of or in any way relating to any defects in any work done and/or improvements completed according to the approved Development Plans.
3.2.7 Authority Construction Manager . Authority shall have the right , but no obligation, to employ (at its sole cost and expense) a construction manager of its choosing (“Construction Manager”) to oversee the construction and other development work performed at the Site pursuant to this Agreement. The Construction Manager, if retained, will provide Authority with assurances that all work is performed in a timely and safe manner and in accordance with this Agreement, the Scope of Substantial Rehabilitation Phase 2 Rehab , the Development Plans, the approved CG Contract, any permitted change orders and other legal requirements. Developer shall ensure that Authority’s Construction Manager shall have full access to the Site and to all applicable records of Developer, the General Contractor, and each and all Subcontractors relating to the Substantial Rehabilitation to permit the Construction Manager to perform its duties as described in this Section 3.2.7, and the GC Contract shall provide appropriate provisions to effectuate this Section 3.2.7.
3.3 Timing of Construction and Completion of the Substantial Rehabilitation of Phase 2 Rehab. Developer hereby covenants and agrees to commence the construction of the Substantial Rehabilitation within the time set forth in the Schedule of Performance (subject to force majeure pursuant to Section 6.3 hereof). Developer further covenants and agre es to diligently prosecute to completion the construction of the Substantial Rehabilitation in accordance with the approved Development Plans (as the same may be modified in accordance herewith) and to file a notice of completion therefor pursuant to California Civil Code Section 3093 within the time set forth in the Schedule of Performance.
3.4 City and Other Governmental Permits . Before commencement of the Substantial Rehabilitation, Developer shall secure or cause its General Contractor (and subcontractors) to secure any and all permits and approvals which may be required by City or any other governmental agency affected by such construction, including, without limitation and, as applicable, building permits for specified Housing Units, common areas, and other appurtenances. Developer shall pay all necessary building permit type and related fees and timely submit to the City final drawings with final corrections (as necessary) to the Development Plans to obtain any and all such permits. Housing and Community Development staff will, without obligation to incur liability or expense therefor, use their reasonable efforts to expedite the City’s issuance of final building permits and certificates of occupancy that meet Governmental Requirements and this Agreement.
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3.5 Release of Construction Covenants . Promptly after the completion of the Substantial Rehabilitation Phase 2 Rehab in conformity with this Agreement (as reasonably determined by Authority Executive Director or her designee) and as determined completed by the City’s building official, upon the written request of Developer, Authority shall furnish Developer with a Release of Construction Covenants in recordable form (substantially in the form attached hereto as Attachment No . 8, and incorporated herein) which evidences and determines the satisfactory completion of the construction of the Substantial Rehabilitation Phase 2 Rehab in accordance with this Agreement. The issuance and recordation of the Release of Construction Covenants shall not supersede, cancel, amend or limit the continued effectiveness of any obligations relating to the maintenance, property management, operation, uses, payment of monies, or any other obligations, except for the obligation to complete the Substantial Rehabilitation Phase 2 Rehab as of the time of the issuance of the Release of Construction Covenants. Upon receipt of a request for the issuance of a Release of Construction Covenants, the Authority shall, within thirty (30) days, either issue the release as requested or provide a detailed written explanation of the remaining work which must be performed or other requirements for the issuance thereof. If Authority fails to issue a Release of Construction Covenants without providing such detailed written explanation as to what actions Developer must take to obtain such Release of Construction Covenants, within such thirty (30) day period, Developer shall be deemed to be entitled to such Release of Construction Covenants, and Authority shall, within three (3) days of demand by Developer, issue such Release of Construction Covenants to Developer.
3.6 Insurance Requirements. Commencing as of Closing of Acquisition as to the Developer (and the commencement of construction as to the General Contractor and Subcontractors) and continuing throughout the Affordability Period, Developer shall maintain at Developer’s sole expense, with insurers reasonably approved by City and Authority, the following policies of insurance in form and substance reasonably satisfactory to City and Authority with the coverage limits, conditions, and endorsements defined herein. Insurance for contractors and subcontractors shall be provided to City and Authority upon request within ten (10) days of request.
3.6.1 Insurance Coverage from Closing of Acquisition through the Affordability Period. From the date of the Closing of Acquisition through end of the Affordability Period, the Developer shall obtain and maintain the following policies of insurance covering all activities relating to (i) construction (when construction is occurring), and (ii) use and operation of the Project at the Site. All policies shall include an endorsement giving Authority (and City) thirty (30) days advance written notice of cancellation or termination of each policy. Insurers for each policy sh all waive subrogation against the City of Anaheim, the Anaheim Housing Authority, and their respective elected and appointed officials, officers, agents, employees, representatives and volunteers. Insurers for each policy shall provide to Authority (and City) a waiver of subrogation evidencing the same.
(a) Workers’ compensation insurance . Developer shall maintain Workers Compensation Insurance in the amount and type required by California law and Employer’s Liability Insurance in an amount not less than $1,000,000 per occurrence. (i) As a condition precedent to the Closing of Acquisition, Developer shall execute and deliver to Authority (and City) that certain Workers’ Compensation Certificate for limited partnerships and Sole Proprietors and fully incorporated herein by this reference, which certificate is Developer’s representation and warranty that it is a limited partnership
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or sole proprietorship and is not legally required to carry Workers’ Compensation Insurance at the time of execution of this Agreement.
(b) Commercial general liability insurance , including mobile equipment and not excluding XCU, in an amount not less Seven Million Five Hundred Thousand Dollars ($7,500,000) per occurrence and Seven Million Five Hundred Thousand Dollars ($7,500,000) general aggregate for claims arising out of bodily injury, personal injury and property damage.
Coverage shall include contractual, on-going operations and products -completed operations (Claims made and modified occurrence policies are not acceptable.) (c) Automobile liability insurance , in an amount not less than Two Million Dollars ($2,000,000), combined single limit (bodily injury and property damage liability), including coverage for liability arising out of the use of owned, non-owned, leased, hired, or borrowed automobiles for performance of the work. As used herein the term “automobile” means any vehicle licensed or required to be licensed under the State of California. Such insurance shall apply to all operations of Developer both on and away from the Site. In the event that any drivers are excluded from coverage, such drivers will not be permitted to drive in connection with construction of the Project. (Claims made and modified occurrence policies are not acceptable.) (d) A policy of Builder’s All -Risk property insurance in an amount not less than one hundred percent (100%) of the full replacement value of the Project. (e) Follows Form Excess Liability coverage shall be provided for any underlying policy that does not meet the insurance requirements set forth herein. (Claims made and modified occurrence policies are not acceptable.)
(f) For any claims related to this Agreement, Developer’s insurance coverage shall be primary insurance as respects the City of Anaheim, Anaheim Housing Authority, and their respecti ve officers, officials, agents, employees, representatives, and volunteers and shall not contribute with any insurance, or self-insurance, maintained by the parties.
All insurance coverage shall be placed with carriers admitted to write insurance in California, and with an A.M. Best’s Guide Rating of A -, class VII or better, as approved by City. Any deductibles or self-insured retentions in excess of $250,000 must be declared to and approved by City’s risk management director.
3.6.2 Policy Provisions . A certifi cate or certificates evidencing coverage described above (“Insurance”) shall be timely submitted to City and Authority. The certificates shall be accompanied by appropriate policy endorsements stating that:
Developer’s insurance coverage shall be primary insurance as respects each of the Anaheim Housing Authority and City of Anaheim , and their respective officers, officials, agents, employees, representatives, and volunteers, and shall not contribute with any insurance or self- insurance maintained by the Anaheim Housing Authority, City of Anaheim, and/or their respective officers, officials, agents, employees, representatives, and volunteers.
A primary-noncontributory endorsement shall be provided for each policy.
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(a) Insurer shall provide to Authority (and City) not less than (30) days advance written notice for each policy prior to any, cancellation, termination, or non-renewal of the Insurance.
(b) With the exception of the workers compensation policy, each of the Anaheim Housing Authority, City of Anaheim, and their respective elected and appointed officials, officers, agents, employees, representatives, and volunteers, shall be named as additional insureds on all policies, including the excess liability policy. Developer shall provide:
(i) Additional Insured Endorsements, on-going and products- completed operations , including mobile equipment and not excluding XCU, for the policy under
3.6.2(b), Commercial General Liability . Endorsements shall designate the City of Anaheim, Anaheim Housing Authority and their respective officers, officials, agents, employees, representatives, and volunteers, as additional insureds for liability arising out of all work or operations performed by or on behalf of the Developer. Developer shall provide to City proof of insurance and endorsement forms that conform to City’s requirements, as approved by City. (Forms CG 20 26 07 04 and CG 20 37 07 04 or equivalent)
(c) An Additional Insured Endorsement for the policy under section
3.6.1(c), Automobile Liability, shall designate the City of Anaheim, Anaheim Housing Authority and their respective officers, officials, agents, employees, representatives, and volunteers, as additional insureds for automobiles owned, leased, hired, or borrowed. Developer shall provide to City proof of insurance and endorsement forms that conform to City’s requirements, as approved by City. (Form CA 20 48 02 99 or equivalent)
(d) Additional Insured Endorsements, ongoing and products-completed operations, under Section 3.6.2(d), Environmental Liability and Rem ediation, if coverage is applicable to the P roject. Endorsements shall designate the City of Anaheim , Anaheim Housing Authority and their respective officers, officials, agents, employees, representatives, and volunteers, as additional insureds for liabil ity arising out of all work or operations performed by or on behalf of the Developer. Developer shall provide to City proof of insurance and endorsement forms that conform to City’s requirements, as approved by City.
(e) A Loss Payee Endorsement for the policy under Section 3.6.2(d), Builder’s All Risk , shall designate the City of Anaheim and Anaheim Housing Authority as Loss Payee. Developer shall provide to Authority (and City) proof of insurance and endorsement forms that conform to Authority (and City)’s requirements, as approved by the City. (f) If any of the underlying policies do not meet policy limits as required herein, an Additional Insured Endorsement for the policy under section 3.6.1(e), Follows Form Excess Liability, shall designate each of the Anaheim Housing Authority, City of Anaheim, and their respective officers, officials, agents, employees, representatives, as additional insureds under the follows form excess liability policy. Developer shall also provide to Authority (and City) a certificate of insurance stating the excess liability policy follows form and the schedule of underlying policies for the excess liability policy with policy numbers. Developer shall provide to Authority (and City) proof of insurance and endorsement forms that conform to Authority (and City’s) requirements, as approved by the City.
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(g) Upon request by Authority or City, Developer shall, within 10 days of original request, provide Authority (and City) with complete certified copies of insurance policies evidencing coverage as required herein. Certificates and endorsements for each insurance policy shall be signed by a person authorized by the insurer to bind coverage on its behalf. If required by Authority (or City), Developer and/or and subcontractors shall, from time to time, increase the limits of its insurance policies to reasonable amounts customary for owners of improvements similar to those on the Site. In the event any policy of insurance required under this Agreement does not comply with these requirements or is cancelled and not replaced, Authority (and City) have the right but not the duty to obtain the insurance it deems necessary and any premium paid by Authority (or City) will be promptly reimbursed by Developer.
3.6.3 Insurance Requirements of Contractors and Subcontractors . All Contractors and Subcontractors shall be required to provide the same insurance as required of Developer herein, with the exception of policy limits required. Developer shall be responsible to collect and maintain insurance from all Contractors and Subcontractors, which shall provide the following policy limits for the policies as noted in the next table:
Workers compensation As required by California law
Commercial general liability policy Not less than $2,000,000 per occurrence and $4,000,000 general aggregate.
Automobile liability policy Not less than $2,000,000 combined single limit Environmental liability (if applicable) Not less than $2,000,000 per occurrence and $2,000,000 general aggregate
3.6.4 Reduction in Requirements. The Authority hereby designates the City’s Risk Manager, in consultation with the Executive Director, in their sole discretion, to review and authorize each and any reduction or modification of the insurance requireme nts set forth herein, on a temporary or permanent basis, in the event she/he/they determine that such reduction or modification is in Authority’s (and City’s) best interest.
3.6.5 Waiver of Subrogation . Developer hereby waives all rights to recover against each of Authority and City (or any officer, employee, agent or representative of City and/or Authority) for any loss incurred by Developer from any cause insured against or required by any Transaction Document to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation.
3.7 Obligation to Repair and Restore Damage Due to Casualty. If during the period of construction of the Substantial Rehabilitation , the Improvements shall be totally or materially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Developer, Developer shall, subject to the rights of Primary Lender, promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Improvements to substantially the same condition as the Improvements are required to be constructed pursuant to this Agreement if and to the extent the insurance proceeds are sufficient to cover the
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actual cost of repair, replacement, or restoration, and Developer shall complete the same as soon as possible thereafter so that the Improvements can be occupied and operated as a Senior Citizen affordable housing project in accordance with this Agreement. In no event shall the repair, replacement, or restoration period exceed eighteen (18) months from the date the Developer obtains insurance proceeds unless the Executive Director approves a longer period of time. Authority shall cooperate with Developer, at no expense to Authority, in obtaining any governmental permits required for the repair, replacement, or restoration. If, however, then-existing laws of any other governmental agencies with jurisdiction over the Site or the Primary Lender do not permit the repair, replacement, or restoration, or do not permit insurance proceeds to be used therefor, Developer may elect not to repair, replace, or restore the Improvements by giving Notice to City or Developer may reconstruct such other improvements on the Site as are consistent with applicable land use regulations and approved by City, Authority, and the other governmental agency or agencies with jurisdiction, and Authority (and City) may pursue remedies of its choosing under this Agree ment, including without limitation termination. Developer’s said election not to repair, replace, or restore shall not be a default hereunder.
3.8 Indemnity. Developer shall pay for, defend (by counsel reasonably satisfactory to Authority), indemnify and save and hold harmless for each of Authority and City and their Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) arising from or relati ng to:
(i) this Agreement; (ii) the Authority Regulatory Agreement; (iii) a claim, challenge, or cause of action that any person has or asserts against the Project; (v) a claim, challenge or cause of action that any person has or asserts against any approval, whether discretionary or ministerial, by the City, the Authority, zoning administrator, or any other board or commission of the City (or Authority); (vi) a claim, demand or cause of action that any person has or asserts against Developer (iv) any act or omission of Developer, any Contractor, Subcontractor or material supplier, engineer, architect or other person with respect to the Site or the Project; or (v) the ownership, occupancy or use of the Site or the Project. Notwithstanding the foregoing, Developer shall not be obligated to indemnify Authority (or City) with respect to the consequences of any act of gross negligence or willful misconduct of Authority (or City). Developer’s obligations under this Section 3.8 shall survive the issuance of the Certificate of Completion. The requirements under this Section 3.8 are in addition to and do not limit the obligations of Developer under the Authority Regulatory Agreement. (a) Developer shall reimburse Authority (and City) immediately upon written demand for all fees and costs reasonably incurred by Authority (or City) (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of Authority (or City)) in connection with the enforcement of the Transaction Documents, and all related matters including the following:
(i) City’s or Authority’s commencement of, appearance in, or defense of any action or proceeding by a third party purporting to affect the rights or obligations of the parties to any Transaction Document, and (b) all claims, demands, causes of action, liabil ities, losses, commissions and other costs against which Authority (or City) is indemnified under the Transaction Documents. Such reimbursement obligations shall bear interest based upon the amounts and times of disbursement by Authority, provided that Authority gives written demand to Developer at the rate of six percent (6%) per annum.
Such reimbursement obligations shall survive the issuance of the Release of Construction Covenants and termination of this Agreement and are in addition to and do not lim it the obligations of Developer under any or each of this Agreement and the Authority Regulatory Agreement.
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(b) Developer indemnifies each of Authority (and City) from any real estate commissions or brokerage fees which may arise from this Agreement or the Site.
3.9 Entry by Authority. From the date of the Closing and thereafter, Developer (and its successor and assigns) shall permit Authority, City, and their officers, employees, consultants, and agents at all reasonable times, with prior advance notice except in the event of an emergency, and in compliance with the reasonable safety policies and procedures of Developer and its contractor, with prior advance notice except in the event of an emergency, to enter onto the Site , including inspection of the Substantial Rehabilitation work and/or related in any manner to the ongoing operation of the Bel’Age Senior Apartments complex. Developer shall have the right to have a representative accompany the Authority or City’s representative on the Site, except in the event of an emergency.
Developer acknowledges that Authority and City are under no obligation to supervise, inspect, or inform Developer of the progress of construction of the Substantial Rehabilitation , and Developer shall not rely upon Authority or City there for. Any inspection by Authority and/or City is entirely for their purposes in determining whether Developer is in compliance with this Agreement and is not for the purpose of determining or informing Developer of the quality or suitability of construction or any other work at the Site. Developer shall rely entirely upon its own supervision and inspection in determining the quality and suitability of the materials and work, and the performance of architects, subcontractors, and material suppliers.
3.10 Compliance with Laws . Developer shall carry out the design, construction, Substantial Rehabilitation, and operation of the Project in conformity with all applicable federal, state and local laws, including, without limitation, all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the Anaheim Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the America ns With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq., HOTMA, and any other applicable Governmental Requirements. Developer (and its Affiliates and successors and assigns) shall pay prior to delinquency all ad valorem real estate taxes, possessory interest taxes, and assessments , subject to Developer’s (and its Affiliates and successors and assigns) right to contest in good faith any such taxes. Developer may apply for and receive any exemption from the payment of property taxes or assessments on any interest in or as to the Site and/or the Project without the prior approval of Authority.
(a) As to the 180-unit Pro ject, not less than five percent (5%) (nine (9) Housing Units) shall be fully improved as a part of the Substantial Rehabilitation and thereby compliant with UFAS requirements and not less than two percent (2%) (four (4) Housing Units) shall be adapted wit h hearing and visual aid components as required by the City and Authority as part of the final Development Plans.
3.10.2 Prevailing Wage Laws . Developer shall carry out the construction through completion of the Substantial Rehabilitation in conformity with all applicable federal, state and local labor laws and regulations, including, without limitation, as and if applicable, the requirements to pay prevailing wages under federal law (the Davis -Bacon Act, 40 U.S.C. Section 3141, et seq ., and the regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, “ Davis-Bacon”)) and California law (Labor Code Section 1720, et seq.). The parties acknowledge that federal and/or state funding sources and financing scenarios may trigger compliance with applicable state and federal prevailing wage laws and regulations. The applicability of federal, state and local prevailing wage
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laws will be determined based upon the final financing structure and sources of funding of the Project as set forth in the Financial Assumptions, Attachment No. 10.
Developer shall be solely responsible, expressly or impliedly, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, labor laws and standards, and Authority (and City) makes no representation, either legally and/or financially, as to the applicability or non- applicability of any federal, state and local laws to the Substantial Rehabilitation , either onsite or offsite , i f any. Developer expressly, knowingly and voluntarily acknowledges and agrees that Authority (and City) has not previously represented to Developer or to any representative, agent or Affiliate of Developer, or its General Contractor or any subcontractor(s ) for the construction of the Substantial Rehabilitation, in writing or otherwise, in a call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement is (or is not) a “public work,” as defined in Section 1720 of the California Labor Code or under Davis-Bacon.
Developer knowingly and voluntarily agrees that Developer shall have the obligation to provide any and all disclosures or identifications with respect to the Substantial Rehabilitation as and if required by Labor Code Section 1781 and/or by Davis -Bacon, as the same may be amended from time to time, or any other similar law or regulation. Developer shall indemnify, protect, pay for, defend (with legal counsel acceptable to Authority and City, which approval shall not b e unreasonably withheld, conditioned, or delayed) and hold harmless the Indemnitees, from and against any and all loss, liability, damage, claim, cost, expense and/or “increased costs ” (including reasonable attorneys' fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction, and/or operation of the Project , including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the follow ing: (i) the noncompliance by Developer with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages); (ii) the implementation of Section 1781 of the Labor Code and/or of Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation, as and if applicable; and/or (iii) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or by Davis -Bacon, as the same may be amended from time to time, or any other similar law or regulation, as and if applicable . It is agre ed by the parties that, in connection with the construction of the Substantial Rehabilitation, including, without limitation, any and all public works (as defined by applicable law or regulation), Developer shall bear all risks of payment or non-payment of prevailing wages under applicable federal, state and local law or regulation and/or the implementation of Labor Code Section 1781 and/or by Davis -Bacon, as the same may be amended from time to time, and/or any other similar law or regulation. “ Increased costs,” as used in this Section 3.10.2, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction the Substantial Rehabilitation.
3.10.3 Federal Program Regulations . To the extent applicable , Developer shall comply with the following:
(a) Qualification as Affordable Housing. Developer shall use, manage and operate the Project in accordance with the requirements of applicable federal programs and federal regulations so as to qualify the Housing Units as affordable housing thereunder.
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(b) Tenant Protections . Developer shall comp ly with the federal requirements of the Section 8 Program and all regulations relating to tenant protections. (c) Intentionally Omitted.
(d) Handicapped Accessibility. Developer shall comply with applicable federal requirements (and the state and local requirements, as applicable) related to handicapped accessibility, including without limitation (a) Section 504 of the Rehabilitation Act of 1973; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36. (e) Use of Debarred, Suspended, or Ineligible Participants.
Developer shall comply with the applicable federal laws and regulations relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. (f) Maintenance of Drug-Free Workplace. Developer shall certify that Developer will provide a drug-free workplace in accordance with applicable federal requirements. (g) Lead-Based Paint. Developer shall co mply with applicable federal requirements, including without limitation of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35. (h) Affirmative Marketing. Developer shall implement and perform affirmative marketing procedures and requirements for the Site in conformity with applicable federal requirements.
(i) Equal Opportunity and Fair Housing . Developer shall carry out the work of construction and perform its obligations under this Agreement in complianc e with all of the federal laws and regulations regarding equal opportunity and fair housing. (j) Property Standards . Developer shall cause the Site to meet applicable federal housing quality standards as well as all applicable federal, state and local codes and ordinances, including zoning ordinances. Developer shall also cause the Site to meet the federal cost-effective energy conservation and effectiveness standards, as required. (k) Relocation. Developer acknowledges and agrees that the Relocation Laws apply to the implementation of this Agreement in the event there occurs any displacement, both and whether permanent and/or temporary, as defined under applicable Relocation Laws. At its sole cost and expense, Developer shall implement and administer the Relocation Plan and shall comply with applicable Relocation Laws during the term of this Agreement. (l) Records and Reports. Developer shall maintain and from time to time submit to Authority such records, reports and information as Authority may reasonably requi re in order to permit the Authority to meet the recordkeeping and reporting requirements required under applicable state and federal laws.
(m) Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth in applicable federal, state and local requirements.
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(n) Layering Review . As and if applicable, Developer acknowledges that a layering review may be required pursuant to the Section 8 Law s. In connection with such review Developer acknowledges and agrees it shall be required to represent and certify to Authority that no government assistance other than the Existing HAP Contract and Existing HAP Contract Second Extension (and potentially grants or loans for “green” or sustainable improvements and/or for the provision of social services) have been obtained or are contemplated to be obtained for the acquisition, rehabilitation, management and operation of the Project . If such layering review i s conducted, Developer agrees to notify Authority in the event that it applies for or proposes to use governmental funds or assistance , other than as listed in the previous sentence, for the Site , Improvements or any part of the Project.
(o) Conflicts among Fe deral Program Requirements . In the event of conflict or inconsistency, if any, between or among applicable federal programs and requirements, then the more stringent federal requirement shall control, provided however, the foregoing does not and shall not modify or affect the definitions and determination of Very Low Income, Low Income and/or Affordable Rent under this Agreement and the Authority Regulatory Agreement.
3.11 Financing of the Project.
3.11.1 Submission of Evidence of Financing as Condition Precedent to Closing of Acquisition. Prior to and as a Condition Precedent to the Closing of Acquisition, Developer shall submit to Authority, and Authority (and its financial consultant(s) and legal counsel(s)) shall review to confirm Developer has obtained sufficie nt equity capital and firm and binding commitments , which together with the New Partners’ equity contribution commitments under the LPA, as necessary to undertake the Substantial Rehabilitation and operation of the Project , in accordance with this Agreement.
(a) Required Financing Submittals. Such evidence of financing for the Project shall include all of the following:
(i) An updated proforma for the Project showing the projected costs of undertaking and completing the Project, including all costs for New Partners’ acquisition of the ownership interests in the Project, and costs of construction through completion of the Substantial Rehabilitation, and operation, maintenance and management of the Project. (ii) A copy of the Lender’s binding commitment obtained by Developer for the Primary Loan and, when available (but not as a condition precedent to Closing of Acquisition), copies of all loan documents evidencing the Primary Loan. (iii) A current certified financial statement of Developer a nd/or other documentation of the Developer’s right to call capital from the New Partners as evidence of other sources of capital sufficient to demonstrate that Developer has adequate capacity to pay for the Project to cover the difference, if any, between the proceeds of the Primary Loan and proceeds of the Developer’s partners’ equity investments and total Project costs.
3.11.2 Holder Performance of Substantial Rehabilitation. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to complete the Substantial Rehabilitation Phase 2 Rehab or any other portion of the Project, or to guarantee such construction or completion; nor shall any covenant or any other
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provision in this Agreement be construed so to obligate such holder, provided the Authority Regulatory Agreement is and shall remain a senior, nonsubordinate encumbrance against the Site.
3.11.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure .
With respect to any mortga ge or deed of trust granted by Developer as provided herein, whenever Authority may deliver any notice or demand to Developer with respect to any breach or default by Developer hereunder or under any other document executed pursuant to this Agreement, Authority shall at the same time deliver to each holder of record of any mortgage or deed of trust on the Project a copy of such notice or demand. Each holder shall (insofar as the rights granted by Authority are concerned) have the right, but not the obligat ion, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any default and to add the cost thereof to the mortgage debt and t he lien of its mortgage. The holder, in that event, must agree to complete, or cause to be completed by a party which is reasonably acceptable to Authority, in the manner provided in this Agreement, the improvements to which the lien or title of holder re lates. Any holder (or assignee approved by Authority) properly completing the Substantial Rehabilitation Phase 2 Rehab shall be entitled, upon compliance with the requirements here of to a Release of Construction Covenants for the Substantial Rehabilitation Phase 2 Rehab . It is understood that a holder (or assignee approved by Authority) shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires possession of the Site (or portion thereof), if and to the extent any holder (or assignee approved by Authority) has within the sixty (60) day period commenced proceedings to obtain possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default.
Notwithstanding anything to the contrary contained herein, Authority agrees that any cure of any default made or tendered by one or more of Developer’s partners or the Guarantor shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer.
3.11.4 Right of Authority to Cure Mortgage or Deed of Trust Default. In the event of Developer’s default or breach of the Primary Loan, including the loan agreement, promissory note, mortgage or dee d of trust, or a default under the terms of Developer’s Partnership Agreement, Developer shall immediately deliver to Authority a copy of any default notice pertaining thereto received by Developer. If the holder of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of trust has not exercised its option to complete the Substantial Rehabilitation, and the Default occurs prior to completion of the Substantial Rehabilitation (excepting only minor punch-list items), Authority sha ll have the following rights (in addition to the rights and remedies set forth in Section 6. herein): (a) the right but not the obligation to cure the default of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of trust, and (b) the right to cancel and terminate the Existing HAP Contract Second Extension, which Developer knowingly, intentionally, and voluntarily agrees is a remedy and right of the Authority in the event of Developer’s default or breach of the Primary Loan. In such event, Authority shall be entitled to reimbursement from Developer of all proper costs and expenses incurred by Authority in curing any default.
3.12 Non-Subordination of Senior Restrictions . In the event of foreclosure or assignment by deed in lieu of foreclosure occurs as to the Primary Loan, such Lender (or other buyer in the foreclosure proceedings) would acquire the Site subject to the Authority Regulatory
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Agreement, 1988 Agreement and, to the extent set forth therein, the 2008 Bond Regulatory Agreement.
3.12.1 Primary Loan; Effect of Foreclosure or Deed in Lieu of Foreclosure .
In further clarification of the foregoing, in the event of a foreclosure or deed in lieu of foreclosure pursuant to the California Civil Code such proceedings shall be either: (a) foreclosure initiated by the Lender (or its agent) and conveyance of the Site to Lender or to a third party buyer (not an Affiliate of Developer) through a trustee’s sale, or (b) conveyance by a deed in lieu of foreclosure of the Site subject to the Authority Regulatory Agreement, 1988 Agreement, and, to the extent set forth therein, the 2008 Bond Regulatory Agreement to Lender or to a third party (not an Affiliate of Developer). Following the recordation of such trustee deed, or deed in lieu of foreclosure, and evidence of title shall show that the Grantee’s title is subject to the Authority Regulatory Agreement, 1988 Agreement, and, to the extent set forth therein, the 2008 Bond Regulatory Agreement.
3.12.2 Intercreditor Instruments and Confirmation . After the Closing of Acquisition, at the request of a Lender, Authority shall promptly e xecute and deliver (but at no cost to Authority) one or more Intercreditor Instruments in such form as may be reasonably requested by a Lender, limited to certifying the status of this Agreement, the Authority Regulatory Agreement, and such matters as are reasonably requested by a Lender. Such Intercreditor Instrument shall include, but not be limited to, certification by Authority that (a) this Agreement and the Authority Regulatory Agreement are unmodified and in full force and effect (or, if modified, s tate the nature of such modification) and (b) there are not, to Authority’s knowledge, any uncured Events of Default on the part of Developer under this Agreement or the Authority Regulatory Agreement or facts, acts or omissions which with the giving of notice or passing of time, or both, would constitute an Event of Default (or, if there is a default, the nature and scope of the Default) thereunder. Any such Intercreditor Instrument (which shall be subject to the limitations here of) may be conclusively relied upon by a Lender.
3.13 Article XXXIV Compliance . Authority, through the City of Anaheim, has previously obtained the approval of the voters of the City authorizing up to a specific percentage of housing constructed in the City to be publicly funded low -rent housing. The City voters approved Measure G at a special municipal election on June 3, 1980, which voter approval authorized construction of publicly funded low -rent housing in t he City prospectively. The results of this election were certified and declared by City Council Resolution No. 80R-332 on July 29, 1980, and such authorization applies to the Project in compliance with Article XXXIV of the California Constitution and as implemented by HSC Section 37000, et seq.
3.14 Existing HAP Contract Second Extension . The Existing HAP Contract Second Extension commences on the date concurrent with the Closing of Acquisition (May 31, 2022) and ends on May 30, 2037. The Authority PBV Assist ance (90 PBVs) is provided pursuant and expressly subject to applicable Section 8 Laws, HOTMA, and other HUD requirements.
4. AFFORDABLE HOUSING COVENANTS AND OPERATION.
4.1 Number and Allocation of Housing Units ; Unit Mix among Very Low Income and Low Income Levels. Developer covenants and agrees to make available, restrict occupancy to, and rent the 178 Housing Units to eligible and qualified Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, in accordance with this Section 4., et seq. and the Authority Regulatory Agreement.
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(a) fifty-nine (59) one-bedroom units shall be available to Senior Citizen Very Low Income Households;
(b) three (3) studio units shall be available to Senior Citizen Low Income Households; and
(c) one hundre d sixteen (116) one -bedroom units shall be available to Senior Citizen Low Income Households; and
There shall be two (2) Manager Units for occupancy by onsite managers of the Project, both of which are one-bedroom units and are non-restricted as to rent.
Under this Agreement, in addition to two (2) Manager Units, 178 Housing Units in the Project shall be for tenancy by Senior Citizen Households at the following unit size and income restrictions:
(i) fifty-nine (59) one -bedroom units for occupancy by qualified V ery Low Income Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households; and (iii) one hundred sixteen (116) one -bedroom units for occupancy by qualified Low Income Households.
(iv) Authority acknowledges that as of the Date of Acquisition, a third unit is being occupied as a third manager unit, and Developer intends to request the consent of TCAC to remove the third manager unit, upon which said unit, will be subject to the affordability restrictions set forth herein.
“Housing Unit” and “Housing Units” shall mean, individually and collectively, each and all of the 178 apartments that shall be used and maintained by Developer as affordable Senior Citizen rental housing for occupancy by Very Low Income and Low Income tenants at Affordable Rents for the Affordability Period. There are 180 total apartment units in the Project, inclusive of the two (2) Manager Units; and all units on the Site shall be and remain owned, operated, managed, and maintained by Developer. In addition to tw o (2), Manager Units, 178 Housing Units shall be for tenancy by Senior Citizen Households as follows:
4.2 Affordable Rent. Affordable Rent shall be charged for the Housing Units (excepting the Manager Units) throughout the Affordability Period.
4.2.1 Affordable Ren t for Very Low Income Households and Low Income Households; Presumed Household Size . The maximum Affordable Rent chargeable for the Housing Units shall be annually determined by Authority (and charged and implemented by Developer.) The Manager Units shall not be restricted as to rent charged, if any.
4.2.2 Calculation of Affordable Rent. For purposes of this Agreement, “Affordable Rent ” shall mean the total of monthly payments for (a) use and occupancy of each Housing Unit and land and facilities associat ed therewith, (b) any separately charged fees or service charges assessed by Developer that are required of all tenants, othe r than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and
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refrigeration fuels, but not including telephone service, cable or satellite or streaming TV, or internet services, and (d) possessory interest, taxes or other fe es or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. No additional charge shall be assessed against tenant households of the Housing Units for any Supportive Services provided at the Site and/or as a part of Developer’s compliance with the legal requirements imposed in connection with any Section 8 PBV Program assistance pursuant to this Section 4., et seq.
4.2.3 FMR under Existing HAP Contract Second Extension; Affordable Rent to be C harged after Expiration of Existing HAP Contract Second Extension . The parties acknowledge that the Lender has underwritten the Primary Loan at the Closing of Acquisition for the initial term thereof only based in part on the Authority providing the Exist ing HAP Contract Second Extension for ninety (90) PBVs at the Project for a term commencing on the Closing of Acquisition and ending on May 30, 2037 (together, “HAP Units”). The out -of-pocket monthly payment by each tenant of the HAP Units is equal to 30% of each tenant household’s actual gross income and the Authority’s monthly payment for each of the HAP Units is equal to the difference between 30% of each tenant household’s actual gross income and FMR, as FMR is set by the Authority in its sole discretion under the Section 8 Law s and other applicable federal regulations (provided however, a tenant payment may increase if their household has one or more members who do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of household income toward rent; for example, a tenant household with two members, one of whom does not have legal documentation status the voucher is prorated by 50%). On and after May 30, 2037, which is the end date for the term of the Existing HAP Contract Second Extension, and thereby during the remaining term of the Affordability Period, Developer acknowledges and agrees that under this Agreement that (a) Authority reserves sole discretion to provide (or not provide) a third (3
rd) extension to the Existing HAP Contract Second Extension, and in the event of a third extension if granted that the term thereof is subject to HOTMA that as of the Date of Agreement does not allow the cumulative number of years of a HAP contract to exce ed forty (40) cumulative years, and (b) Affordable Rent (not FMR) shall be charged by Developer for all Housing Units, including each and all of the former HAP Units, and such Affordable Rent shall be stated in each rental and/or lease agreement between the Developer and each tenant (or if a tenant has a Section 8 Portable Voucher, the provisions of Section 4.2.4 below shall apply).
4.2.4 Monthly Rent for Non -PBV Housing Units; Acceptance of Section 8 Portable Vouchers. Developer shall set monthly rent at the applicable Affordable Rent as to each and all Housing Units that are not designated as PBV HAP Units under the Existing HAP Second Extension. Developer shall not refuse to lease a Housing Unit to a holder of a Section 8 Portable Voucher who is otherwise qua lified to be a tenant in accordance with the approved tenant selection criteria.
(a) In the event Developer rents a Housing Unit to a household holding a Section 8 Portable Voucher issued by the Authority, the rental agreement (or lease agreement, as applicable) between Developer, as landlord, and the Senior Citizen tenant shall expressly provide that monthly rent collected directly from such tenant holding a Portable Voucher shall be not more than 30% of tenant’s actual gross income pursuant to the applicable voucher program regulations, and the total monthly rent for such unit shall be set at ”fair market rent” (“FMR”) for the area based on the payment standard applicable to the area in which the Property is located, with FMR set by the Authority in its sole d iscretion (with respect to calculation of FMR) under Section 8 Laws and other applicable federal regulations. For Section 8 Portable Vouchers issued by an entity other than the Authority, the total monthly rent for such unit may in the Developer’s discret ion be set at either
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(i) Affordable Rent, or (ii) up to FMR for the area as set by the issuing public housing authority under Section 8 Laws and other applicable federal regulations with respect to calculation of FMR. (As noted above, the tenant payment may increase if their household has one or more members who do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of household income toward rent; for example, a tenant household with two members, one of whom does not have legal documentation status the voucher is prorated by 50%.)
4.2.5 Most Restrictive Affordable Rent Covenants Govern . To the extent of an inconsistency between or among the foregoing covenants relating to Affordable Rent and other covenants or agreements applicable to the Project, the most restrictive covenants or agreement regarding the Affordable Rent for the Housing Units in the Project shall prevail.
4.2.6 Property Management to Cause Occupancy of Housing Units in Acco rd with Covenants . Developer shall, and shall cause its Property Manager to, operate and cause occupancy of and charge Affordable Rent for the Housing Units in conformity with these covenants and this Agreement.
4.3 Duration of Affordability Requirements; Affordability Period . The Project, including without limitation all the Housing Units thereon, shall be subject to the requirements of this Section 4., et seq. for the 99-year Affordability Period, which period commences on the date of the Closing of Acquisition.
4.4 Selection of Tenants.
4.4.1 Marketing and Tenant Selection Plan. During the Affordability Period, the rental of the Housing Units, as and when they are vacated by the existing tenants, shall be conducted in accordance with the approved Marketing and Tenant Selection Plan and any affirmative marketing requirements which have been adopted by the Authority prior to the date hereof. The availability of Housing Units shall be marketed in accordance with the Marketing and Tenant Selection Pla n as the same may be amended from time to time with Authority’s prior written approval, which approval shall not unreasonably be withheld. Developer shall provide Authority with periodic reports with respect to the marketing for lease of the Housing Units . Authority agrees to exercise reasonable efforts to assist Developer in connection with the implementation of the Marketing and Tenant Selection Plan; provided, however, Authority shall not be under any obligation to incur any out -of- pocket expenses in connection therewith.
4.4.2 Waiting List. Developer shall be responsible for the selection of new Senior Citizen tenants for the Housing Units, as and when vacated by the current tenants in occupancy as of Closing of Acquisition, in compliance with all lawful criteria, and shall do so in accordance with the Marketing and Tenant Selection Plan. Throughout the Affordability Period, Developer shall establish and maintain the waiting list of eligible, prospective Senior Citizen tenants to facilitate retenanting Housing Units in compliance with the approved Marketing and Tenant Selection Plan, Property Management Plan, and Anaheim Municipal Code. Further, subject to applicable Fair Housing Laws and in compliance with the Anaheim Municipal Code Authority shall be afforded a priority marketing period for fifteen (15) days after receiving written notice from Developer that one or more Housing Units have become vacant, during which time Authority and Developer shall work cooperatively to select tenants for any vacant Hous ing Unit. Developer shall provide prompt written notice to Authority when vacancies of Housing Units occur to facilitate timely retenanting of Housing Units pursuant to the approved Marketing and Tenant Selection Plan, Property Management
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Plan and Anaheim Municipal Code. Subject to applicable Fair Housing Laws, Developer’s waiting list of prospective, eligible Senior Citizen tenants for Housing Units shall include and follow the following order of priority for selection of tenants, and Authority will follow such order of priority:
(a) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who have been displaced from their residences due to programs or projects implemented by the City of Anaheim or another governmental entity; (b) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who have applied for and have received Portable Vouchers from Authority;
(c) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who are listed on Authority’s waiting lists for affordable housing and who live and/or work in Anaheim; and
(d) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who live and/or work in Anaheim.
4.5 Household Income Requirements. Annually and on or before one hundred twenty (120) days following the end of each calendar year, Developer shall prepare and submit to Authority, at Developer’s expense, a written summary of the income, household size, and rent payable by each of the tenants of the Housing Units and, upon the written request of the Authority, copies of each and all leases or rental agreements and the current rules and regulations for the Project. At Authority’s request, Developer shall also provide to Authority completed income computation and certification forms, all in a form reasonably acceptable to Authority, for each and all tenants. Developer shall obtain, or shall cause to be obtained by the Property Manager, a ce rtification from each household leasing a Housing Unit demonstrating that such household is a Very Low Income Household, or Low Income Household, as applicable, and meets the eligibility and occupancy requirements established for the Housing Unit. Develop er shall verify, or shall cause to be verified by the Property Manager, the income and household size certification of the tenant household.
4.6 Relocation; Developer Responsible for Cost of Relocation . Developer acknowledges that tenants at the Site may be e ligible for advisory assistance, monetary payments, and other benefits related to temporary or permanent displacement under the Relocation Laws and an approved Relocation Plan for the Project. Developer shall be and remain fully responsible for administering determinations of eligibility, extent of advisory assistance, and scope and amount of benefits and monetary payments, if any, pursuant to the applicable Relocation Laws and the Relocation Plan for the Project . Prior to the Date of Agreement, the Reloc ation Plan was reviewed by the Executive Director and presented to the City Council for consideration and action.
Going forward, to the extent the Relocation Laws are otherwise applicable, Developer remains responsible to administer and determine eligibil ity for, extent of advisory assistance, and scope and amount of benefits and monetary payments, if any, to occupants, subject to review by Executive Director. Developer shall cause to be provided and shall pay any and all Relocation assistance and benefits in accordance with Relocation Laws. Developer is and shall remain solely responsible for, and to pay, all out -of-pocket costs for direct payments to eligible persons for Relocation assistance and benefits due and paid and for any other costs incurred re lated to Relocation, including a Relocation consultant, and any and all costs or fees incurred.
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4.6.1 Indemnification by Developer Relating to Relocation . For the duration of the Affordability Period, Developer hereby covenants and agrees to indemnify, save, protect, hold harmless, pay for, and defend the Indemnitees from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including without limitation penalties, fines, and monetary sanctions), losses, costs, or expenses, including without limitation consultants’ and attorneys’ fees, or relocation benefits claimed or payable under applicable Relocation Laws (for purposes hereof, the foregoing shall be referred to as “Liabilities”) which may now or in the future be incurred or suffered by Indemnitees by reason of, or resulting, in full or in part, or in any respect whatsoever from the Relocation of residents of the Site pursuant to or resulting from the implementation of this Agreement or the Regulatory Agreement (but excluding Liabilities, if any, incurred as the result of an Indemnitee’s gross negligence or willful misconduct or a breach by Authority of any representation, warranty or covenant contained in this Agreement or the Regulatory Agreement. At the request of Developer, Authority shall cooperate with and assist Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that Authority shall not be obligated to incur any expense in connection with such cooperation or assistance.
4.6.2 Release. Developer, on behalf of itself and its Affiliates, and any and all successors and assigns hereby fully and finally releases the Indemnitees from any and all manner of actions, causes of action, suits, obligations, liabilities, judgments, executions, debts, claims and demands of every kind and nature whatsoever, known and unknown, which Developer and any of its affiliates, successors or assigns may now have or hereafter obtain against the Indemnitees by reason of, arising out of, relating to, or resulting from in full or in part, the election of Developer to proceed with the Project pursuant to this Agreement or the Regulatory Agreement except to the extent arising out of the gross negligence or willful misconduct of any of the Indemnitees or a breach by Authority of any representation, warranty or covenant contained in this Agreement or the Regulatory Agreement (collectively, “Claims”), which release shall include but not be limited to any Claims for Relocation assistance or benefits under federal, state, local, or any other applicable laws or Governmental Requirements, except to the extent arising out of the gross negligence or willful misconduct of any of the Indemnitees or a breach by Authority of any representation, warranty or covenant contained in this Agreement or any of the other Transaction Documents. The parties agree that, with respect to the release of Claims as set forth above, all rights under Section 1542 of the California Civil Code and any similar law of any state or territory of the United States are expressly waived. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Developer Initials: ______
4.7 Leases; Rental Agreements for Housing Units . Developer shall submit a standard lease form for use at the Project to Authority Executive Director for approval (which approval shall not be unreasonably withheld, conditioned or delayed), which lease form shall comply with the requirements of this Agreement and the Authority Regulatory Agreement, including all applicable provisions of the HAL and the Section 8 Laws. Authority shall reasonably approve such lease form upon finding that such lease form is consistent with this Agreement, including all applicable
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provisions of the HAL and the Section 8 Laws. Developer shall enter into a written lease, in the form approved by Authority (which approval shall not be unreasonably withheld, conditioned or delayed), with each tenant/tenant household of the Project. During the Affordabi lity Period, any material changes to the lease form are subject to the reasonable review and approval of the Executive Director.
4.8 Supportive Services. Developer shall use its best efforts to implement the Supportive Services Plan, and such other services a s may be approved by the Authority Executive Director, which approval shall not be unreasonably withheld. The Supportive Services Plan when approved by the Executive Director shall be appended as Attachment No. 12. Any reduction of or material change in the scope, amount, or type of social and supportive services to be provided at the Site shall be subject to prior approval of Authority, which approval shall not be unreasonably withheld, conditioned or delayed. Developer shall provide Supportive Services at the Project in accordance with this Section 4.8 throughout the Affordability Period. The Supportive Services Plan shall be implemented by Developer shall be included in its annual budget and may be paid for, in whole or in part, with grants or loans from third parties. The nonprofit entity Jamboree Housing Corporation (or its Affiliate) is hereby approved as the provider of Supportive Services under this Agreement.
4.8.1 Alternative Supportive Services . In the event that, despite Developer’s reasonable best efforts, Developer is unable to provide all of the Supportive Services described in the Authority-approved plan, Developer shall use reasonable best efforts to provide comparable social and supportive services programming at the Project that are reasonably similar in scope and content to the Supportive Services Plan during the entire Affordability Period. Such substitute services shall be subject to the prior written approval of the Authority Executive Director, which approval shall not be unreasonably w ithheld, conditioned or delayed. In the event the characteristics of the Senior Citizen resident population at the Project change substantially, Authority Executive Director shall have the authority to approve revisions to the Supportive Services Plan in her/his reasonable discretion.
4.9 Intentionally omitted.
4.10 Maintenance.
4.10.1 General Maintenance. Developer shall maintain the Site and all improvements thereon, including lighting and signage, in good condition, free of debris, waste and graffiti, and in compl iance with all applicable provisions of the Anaheim Municipal Code.
Developer shall maintain in accordance with the Maintenance Standards (as hereinafter defined) the improvements and landscaping on the Site. Such Maintenance Standards shall apply to all buildings, signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all other i mprovements on or about the Site. To accomplish the maintenance, Developer shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement.
4.10.2 Maintenance Standards. Developer and its maintenance staff, contractors or subcontractors shall comply with the following maintenance standards as to the Site and overall Project (collectively, “Maintenance Standards”):
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(a) The Site shall be maintained in conformance and in compliance with the final Development Plans and reasonable maintenance standards that comply with the industry standard for comparable first quality senior affordable housing projects in the County, including but not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all private improvements and public improvements to the curbline. (b) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertiliz ation; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy appearance and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all irrigation components and plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees, as necessary.
(c) Hardscape maintenance shall include, but not be limited to: driveway, parking stalls, parking st ops, walkways (whether concrete, pavers, flagstone or other non- concrete material), must be kept free of trip/fall hazards greater than one -quarter inch (¼ inch); planter borders, retaining features, water features, fencing (metal, wood, vinyl), and outdoor furniture. (d) Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure tha t all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers.
4.10.3 Notice of Non-Compliance with Maintenance Standards. Authority agrees to notify Developer in writing if the condition of the Site does not meet with the Mainte nance Standards and to specify the deficiencies and the actions required to be taken by Developer to cure the deficiencies. Upon notification of any maintenance deficiency, Developer shall have thirty (30) days within which to correct, remedy or cure the deficiency (or commence to correct, remedy or cure the deficiency and thereafter diligently pursue the same .) If the written notification states the problem is urgent relating to the public health and safety, then Developer shall have forty- eight (48) hours to rectify the problem , or at a minimum render the condition safe (and thereafter commence and complete with due diligence a complete correction of the problem.) In the event Developer does not maintain the Site in the manner set forth herein and in ac cordance with the Maintenance Standards, Authority shall have, in addition to any other rights and remedies hereunder after the notice and cure periods set forth herein, the right to maintain the Site, or to contract for the correction of such deficiencies, after written notice to Developer, and Developer shall be responsible for the payment of all such costs incurred by Authority.
4.10.4 Program Maintenance. In addition to the routine maintenance and repair required pursuant to Section 4.10.1, Developer shall pe rform the following minimum programmed maintenance of the Improvements to the Site with due consideration by the Executive Director of the most recent PCNA as a primary factor:
(a) Interior painting and window covering replacement at least every five (5) years;
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(b) Exterior painting at least every ten (10) years;
(c) Repair and resurfacing of parking areas and walkways at least every five (5) years; and
(d) Replacement of all deteriorated or worn landscaping and outdoor furnishings or related equipment at least every five (5) years. (i) Upon the request of Developer, the Executive Director, at her sole and absolute discretion, may grant a waiver or deferral of any program maintenance requirement. Developer shall keep such records of maintenance and repair as are necessary to prove performance of the program maintenance requirements.
4.10.5 Minimum and Maximum Occupancy Limits . The minimum occupancy of the Housing Units shall not be less than one person per bedroom. The max imum occupancy of the Housing Units shall not exceed more than such number of persons as is equal to two persons per bedroom, plus one; thus: (i) for the studio 0-bedroom Housing Units the maximum occupancy is two persons, and (ii) for the one-bedroom Housing Units the maximum occupancy shall not exceed three (3) persons.
4.11 Management of the Project.
4.11.1 Property Manager . Developer shall manage the Project, or cause such property management, including Site and Improvements in a prudent and business -like manner, consistent with good property management standards for other comparable Senior Citizen high quality, well -managed affordable rental housing projects in the County. Developer may contract with a property management company or property manager, to operate and maintain the Project in accordance with the terms of this Section 4.11 (“Property Manager” ); provided, however, the selection and hiring of the Property Manager (and each successor or assignee), including any Affiliate, is and shall be subject to prior written approval of Authority’s Executive Director (or designee) in her or his sole and reasonable discretion, which approval shall not be unreasonably withheld, conditioned or delayed. RCM is hereby approved to act as the Property Manager, subject to Executive Director review of the scope of services, itemized fees, and fee contract for property management between Developer and RCM. The property management contract shall include express provisions referencing this Agreement, the Authority Regulatory Agreement, 2008 Bond Regulatory Agreement, and 2008 Tax Credit Regulatory Agreement, with acknowledgement of receipt and review of such agreements and that RCM (or successive Property Manager) shall manage the Project in compliance therewith. In particular, the Property Manager shall manage the Project in accordance with the definitions of Affordable Rent herein, the tenant selection requirements herein, and the definitions of Very Low Income and Low Income herein. Any fee paid to the Property Manager for Supportive Services provided to the tenants shall be exclusive of the fee paid to the Property Manager relating to the management of the Project. Except for RCM, Developer shall conduct due diligence and background evaluation of any potential third party property manager or property management company to evaluate experience, references, credit worthiness, and related qualifications as a property manager. Any proposed property manager shall have significant and relevant prior experience with Senior Citizen affordable housing projects and properties comparable to Bel’Age Senior Apartments and the references and credit record of such property manager/company shall be investigated (or caused to be investigated) by Developer prior to submitting the name and qualifications of such proposed property manager to the Executive Director
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for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.
A complete and true copy of the results of such background evaluation shall be provided to the Executive Director. Approval of a Property Manager by Authority’s Executive Director shall not be unreasonably delayed but shall be in her/his sole reasonable discretion, and Authority Executive Director shall use good faith efforts to respond as promptly as practicable in order to facilitate effective and ongoing property management of the Project by one qualified Property Manager. The replacement of RCM by Developer and/or the selection by Developer of any new or different Property Manager during the Affordability Period shall also be subject to the foregoing requirements.
4.11.2 Property Management Plan . Prior to and as a Condition Prece dent to the commencement of Substantial Rehabilitation Phase 2 Rehab, Developer shall prepare and submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed, a management plan for the Project that includes a detailed plan and strategy 1 (“Property Management Plan”). Executive Director approval of the Property Management Plan shall not be unreasonably withheld, conditioned, or delayed. Subsequent to approval of the Property Management Plan by the Executive Director the ongoing management and operation of the Project shall be in compliance with the approved Property Management Plan. During the Affordability Period, Developer and its Property Manager may from time to time submit to the Executive Director proposed amendments to the Property Management Plan, the implementation of which shall also be subject to the prior written approval of the Executive Director, which approval shall not be unreasonably withheld, conditioned or delayed.
4.11.3 Gross Mismanagement. During the Affordability Period, and in the event of “Gross Mismanagement” (as defined below) of the Project, Executive Director and/or Authority shall have and retain the authority to direct and require any condition(s), acts, or inact ions of Gross Mismanagement to cease and/or be corrected immediately, and further to direct and require the immediate removal of the Property Manager and replacement with a new qualified and approved Property Manager, if such condition(s) is/are not ceased and/or corrected (or such correction has not commenced) after expiration of thirty (30) days from the date of written notice from Executive Director. If Developer or Property Manager has commenced to cure such Gross Mismanagement condition(s) on or befor e the 20th day from the date of written notice (with evidence of such submitted to the Executive Director), but has failed to complete such cure by the 30th day (or such longer period if the cure cannot reasonably be accomplished in thirty (30) days as rea sonably determined by the non -defaulting party), then Developer and its Property Manager shall have an additional 10 days to complete the cure of Gross Mismanagement condition(s). In no event shall any condition of Gross Mismanagement continue uncured for a period exceeding forty-five (45) days from the date of the initial written notice of such condition(s), except that the condition described in subdivision (d) below may exist for up to, but no longer than sixty (60) days (i.e., 45 plus up to 15 days), without triggering Authority’s right to remove the Property Manager as described in the immediately following sentence as long as Developer has commenced and is diligently and continuously working to cure such conditions of Gross Mismanagement. If such condition(s) do persist beyond such period, Executive Director shall have the sole and absolute right, subject to Section 4.11.3(a) below, to remove the Property Manager and Developer shall contract with a replacement Property Manager reasonably acceptable to Authority (in accordance with this Section 4.11).
1 In the Marketing and Tenant Selection Plan and Social Services Plan.
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(a) In the event the Gross Mismanagement is not cured and corrected by Developer or its Property Manager within the applicable 45-day, or up to 60-day , cure and correction period described in Section 4.11.3 above, Authority shall provide a second notice and additional 30-day cure period to Developer, with copies to its Lender, to inform Developer (and its Lender) that the Authority intends to remove and replace the Property Manager. (i) During that second notice 30-day period, Developer (and its Lender) have the right, but not the obligation, to replace the Property Manager, and thereafter, if not replaced by Developer (or any of the New Partners), the Authority has the sole and absolute right to immediately and without further notice to replace the Property Manager, with all costs associated therewith to be and remain the sole legal and financial obligation of Developer. (b) For purposes of this Agreement, the term “Gross Mismanagement ” shall mean management of the Project in a manner that violates the terms and/or intention of this Agreement to operate a first quality affordable senior housing complex, and shall include, but is not limited to, any one or more of the following:
(i) Habitually leas ing to tenants who exceed the prescribed income levels;
(ii) Habitually allowing tenants to exceed the prescribed occupancy levels without taking prompt action to stop such overcrowding; (iii) Under-funding required reserve accounts after notice and cure period;
(iv) Failing habitually to timely maintain the Project in accordance with the Property Management Plan and Maintenance Standards; (v) Fraud or embezzlement of Project funds, including without limitation funds in the reserve accounts;
(vi) Failing to fully cooperate with the Anaheim Police Department or other local law enforcement agency(ies) with jurisdiction over the Project in maintaining a crime-free environment within the Project; (vii) Failing to cooperate with the Anaheim Fire Department or other local public safety agency(i es) with jurisdiction over the Project in all reasonable respects , in maintaining a safe and accessible environment within the Project, in particular for public safety and other first responders as to ingress, egress and accessibility to and from the Project; (viii) Failing to cooperate with the Anaheim Planning & Building Department, including the Code Enforcement Division, or other local health and safety enforcement agency(ies) with jurisdiction over the Project in all reasonable respects, in maintaining a decent, safe and sanitary environment within the Project;
(ix) Failing to conduct , or refer to appropriate third party(ies) to conduct, health, safety and welfare checks as reasonable for residents who are reasonably known to Developer, its Property Manager, onsite resident manager(s), social and supportive service s
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providers, or other onsite workers be infirm, ill, incapacitated, or otherwise in need of close supervision of their living arrangement and ability to conduct their basic activities of daily living; and (x) Spending funds from the Capital Replacement Reserve account for items that are not defined as eligible costs. (c) Notwithstanding the requirements of the Property Manager to correct any condition of Gross Mismanagement as described above, Developer is obligate d and shall use its best efforts to correct any defects in property management or operations at the earliest feasible time and, if necessary, to replace the Property Manager as provided above. Developer shall include reference to the foregoing requirement s and requirements of this Agreement within any contract between Developer and its Property Manager for the Project.
4.11.4 Code Enforcement. Developer acknowledges and agrees that Authority, City, and their employees and authorized agents, shall have the right to conduct code compliance and/or code enforcement inspections of the Project and the individual Housing Units, both exterior and interior, at reasonable times and upon reasonable notice (not less than 48 hours prior notice, except in an emergency) to Deve loper and/or an individual tenant. If such notice is provided by Authority or City representative(s) to Developer, then Developer (or its Property Manager) shall immediately and directly advise any affected tenant of such upcoming inspection and cause acc ess to the area(s) and/or Housing Units at the Project to be made available and open for inspection.
Developer shall include express advisement of such inspection rights within the lease/rental agreements for each Housing Unit in order for each and every tenant and tenant household to be aware of this inspection right and such inspection(s) shall not unreasonably interfere with use and enjoyment of the premises and common areas or any applicable Housing Unit(s). In the event of refusal of Authority or Cit y representatives’ access hereunder, Developer shall not object to an application for and issuance of an administrative inspection warrant to be issued by a court of competent jurisdiction that authorizes inspection, with the costs therefor to be and remai n the sole financial obligation of Developer as eligible Third Party Costs.
4.12 Capital Replacement Reserve. Upon the Closing of Acquisition, Developer shall fund the Capital Replacement Reserve. The non- availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligation to undertake any and all necessary capital repairs, improvements, or replacements and to continue to maintain the Project in the manner prescribed herein. Not less than once per year, Deve loper, at its expense, shall submit to Authority Executive Director an accounting for the Capital Replacement Reserve for the Project.
Upon the expiration of the term of the Existing HAP Contract Second Extension, and for the remaining years of the Affordability Period, upon request by the Executive Director Developer shall provide evidence of the Capital Replacement Reserve account, amounts on deposit, amounts withdrawn, and supporting documentation for amounts expended therefrom.
4.13 Operating Reserve. Upon the Closing of Acquisition, Developer shall deposit to the Operating Reserve account One Hundred Eighty Thousand Dollars ($180,000).
4.14 Non-Discrimination Covenants.
4.14.1 Nondiscrimination and Equal Opportunity . Developer hereby covenants, by and for itsel f, its successors and assigns, and all persons claiming under or through them, to comply with the following laws relating to nondiscriminat ion and equal opportunity: (1) The Fair
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Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et seq.; Executive Order 11063, as amended by Executive Order 12259 (3 CFR, 1959-1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4) (Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1; the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at part 8 of this title; title II of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq.; 24 CFR part 8; Executive Order 11246, as amended by Executive Orders 11375, 11478, 12086, and 12107 (3 CFR, 1964- 1965 Comp., p. 339; 3 CFR, 1966-1970 Comp., p.684; 3 CFR, 1966-1970 Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978 Comp., p.264, respectively) (Equal Employment Opportunity Programs) and implementing regulations at 41 CFR chapter 60; Executive Order 11625, as amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3 CFR, 1977 Comp., p. 139) (Minority Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise Development); and Executive Order 12138, as amended by Executive Order 12608 (3 CFR, 1977 Comp., p.393 and 3 CFR, 1987 Comp., p. 245) (Women’s Business Enterprise).
4.14.2 Prohibition of Inquiries on Sexual Orientation or Gender Identity .
Developer further covenants, by and for itself, its successors and assigns, and all persons claiming under or through them, not to inquire about the sexual orientation or gender identity of an applicant for, or occupant of, the Project or any Housing Unit at the Site , for the purpose of determining eligibility for occupancy of such Housing Units or otherwise making such Housing Units available.
This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any individual from voluntarily self -identifying sexual orientation or gender identity. Further, determinations of eligibility for occupancy of Housing Units at the Project shall be made in accordance with the eligibility requirements provided for such program by HUD, and such Housing Units shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.
4.14.3 Covenants Run With the Land . The covenants established in this Section
4.14, et seq ., shall, without regard to technical classification and designation, be binding for the benefit and in favor of Authority and its successors and assigns, and shall remain in effect in perpetuity.
4.14.4 Clauses in Contracts and Leases. All contracts and leases relating to the Site shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds : “ The grantee herein covenants by and for himself or herself, her or his heirs, executors, administrators, and assigns, a nd all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or
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occupancy of tenants, lessees, subte nants, sublessees, or vendees in the premises herein conveyed.” The foregoing covenants shall run with the land.”
(b) In leases: “The lessee herein covenants by and for himself or herself, her or his heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
“That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleas ing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.” (c) In contracts: “There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed.”
4.15 Monitoring and Recordkeeping . Throughout the Affordability Period, Developer shall comply with all applicable recordkeeping and monitoring requirements of the HAL and shall annually complete and submit to Authority a Certification of Continuing Program Compliance in a form provided by Authority. Representatives of Authority (and City) shall be entitled to enter the Site upon at least forty- eight (48) hours’ notice, to monitor compliance with this Agreement, to inspect the books and records of the Site , and to conduct an independent audit or inspection of such books and records. Developer agrees to cooperate with Authority in making all of its records for the Project and making the Site and all Housing Units thereon available for inspection or audit subject to the privacy rights of tenants unde r applicable laws. Books and records shall be made available for review and inspection and/or audit in Orange County, California. Developer agrees to maintain all books and records relating to the Site and the Project in a businesslike manner.
4.15.1 Right to A udit. Developer shall keep full and accurate books of account, records and other pertinent data with respect to operations of the Project. Such books of account, records, and other pertinent data shall be kept for a period of three (3) years after the end of each Developer’s fiscal year, and shall be made available for review or audit by the Authority or its designees with a three (3) day written notification to Developer.
4.15.2 Annual Monitoring Fee . Concurrently with the delivery of each annual report and Certificate of Continuing Program Compliance to Authority, Developer shall pay an
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Annual Monitoring Fee to Authority in the amount of Sixt y Dollars ($6 0) per Housing Unit ($60.00 x 178 = $10,680) increased annually by 3%, which shall compensate Authority for its costs incurred to monitor Developer’s compliance with this Agreement.
4.16 Authority Regulatory Agreement to be Recorded . The substant ial form of the Authority Regulatory Agreement is appended as Attachment No. 5. The execution and recordation of the Authority Regulatory Agreement shall occur simultaneously with the Closing of Acquisition.
5. [Reserved].
6. DEFAULT AND REMEDIES.
6.1 Events of Default. An “ Event of Default ” or “Default” shall occur under this Agreement when there shall be a breach of any condition, covenant, warranty, promise or representation contained in this Agreement and the breach shall continue for a period of thirty (30) days after written notice thereof to the defaulting party without the defaulting party curing such breach, or if the breach cannot reasonably be cured within a thirty (30) day period, commencing the cure of the breach within the thirty (30) day period and thereafter diligently proceeding to cure the breach; provided, however, that if a different period or notice requirement is specified for any particular breach under any other paragraph of this Agreement, the specific provision shall control.
6.2 Remedies. The occurrence of any Event of Default shall give the non-defaulting party the right to proceed with any and all remedies set forth in this Agreement, including without limitation (a) an action for damages, (b) an action or proceeding at law or in equit y to require the defaulting party to perform its obligations and covenants under the documents executed pursuant hereto, (c) an action to enjoin acts or things which may be unlawful or in violation of the provisions of such documents, and (d) the right to terminate this Agreement.
6.2.1 Expressly Reserved Right of Authority to Cancel and Terminate the Existing HAP Contract Second Extension in the Event of an Uncured Event of Default by Developer Prior to Completion of the Substantial Rehabilitation . In addition to the remedies described in Section 6.2 above, Developer knowingly, voluntarily and intentionally agrees that until the Substantial Rehabilitation is complete (excepting only minor punch-list items), Authority has and shall retain all rights (but not the obligation) to cancel and terminate unilaterally the Existing HAP Contract Second Extension in the Event of Default by Developer relating to the commencement, construction, and completion of the Substantial Rehabilitation, after passage of the time periods set forth herein for cure of the applicable Event of Default. This unilateral right of termination shall exist independent and notwithstanding contrary provision(s) or any basis to terminate the Existing HAP Contract Second Extension under the terms thereof. Developer acknowledges that Authority would not have entered into this Agreement and thereby extended the Existing HAP Contract by the Existing HAP Contract Second Extension but for the expectation that the Substantial Rehabilitation would be underta ken and completed (excepting only minor punch-list items) by Developer in compliance with this Agreement.
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Developer Initials
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6.3 Force Majeure. Subject to the party’s compliance with the notice requirements as set forth below, performance by a party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control and without the fault of the party claim ing an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that Authority’s acts or failure to act shall not excuse performance of Authority hereunder).
Subject to the timing and provisions of Section 3.11.1, in no event shall Developer’s difficulty or inability to obtain and secure the Primary Loan or other financing become an event of force majeure.
An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party cla iming such extension is sent to the other party within thirty (30) days after the party becomes aware of the commencement of the cause.
6.3.1 COVID-19 Acknowledgement; COVID-19 is Not an Event of Force Majeure. Each of Developer and Authority acknowledge that as of the Date of Agreement, each party is aware of the Coronavirus pandemic ( “COVID-19”); neither party is required to provide a specific notice to the other party of such event pursuant to this Section 6.3, provided however, such acknowledgement shall not, expressly or impliedly, establish force majeure in Developer commencing performance under this Agreement ; provided, however unforeseen circumstances may arise after commencement of performance of this Agreement related to COVID -19 that may constitute force majeure so long as such unforeseen circumstances are due to causes beyond the control and without the fault of the party claiming an extension of time to perform . In this regard, too, the City of Ana heim, including the Anaheim Housing Authority, and related entities (together, “Anaheim Entities”), inform Developer, and other stakeholders in this transaction, there can be no assurances that the spread of COVID -19 will not materially impact the Anaheim Entities, and, accordingly, materially adversely impact local funding and services, such that there may be delays, interruptions, adjustments, even cessations, in the scope of staffing, services, and other functions performed by local government, as well a s federal, State, regional, County functions, provided that nothing in the foregoing is or shall be construed as anticipatory repudiation by the Authority, or any of the Anaheim Entities.
Similarly, Developer informs Authority there can be no assurances that the spread of COVID -19 will not materially impact Developer and accordingly, materially adversely impact Developer’s performance hereunder, including, without limitation, as a result of the shortage or unavailability of labor, materials and supplies, including as a result of various governmental orders and business closures, such that there may be delays, interruptions, adjustments, even cessations, in Developer’s performance hereunder; provided however, in the event of shortage(s) and/or limited availability of labor to Developer in performance of this Agreement, if any, Developer agrees to use its commercially reasonable efforts to cause the procurement of materials and/or supplies, as applicable, and/or cause hiring of labor, as reasonably necessary to cause the shortest feasible and limited shortages, delays, and/or interruptions in performance under this Agreement. (a) The parties expect this transaction will proceed to Closing of Acquisition; nonetheless, the parties intend, and are reciprocally entitled to a continuing sense of
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security and reliance with regard to the other party’s future and continued performance under this Agreement, which both parties hereby acknowledge.
6.4 Termination by Developer. In the event that Developer is not in Default under th is Agreement and:
(a) Developer is unable to obtain sufficient financing for the development and operation of the Project in accordance with the provisions of Section 3.11; or (b) Developer disapproves of the environmental condition of the Site or Improvements pursuant to Section 2.1.1(b)(v); or
(c) Developer disapproves the condition of title to the Site pursuant to Section 2.1.1(b)(iii); or
(d) One or more of the Conditions Precedent set forth in Section 2.1.1(b) is/are not timely satisfied (or waived by Developer), and such Condition Precedent is not satisfied after notice and an opportunity to satisfy as provided in Section 6.1 hereof, and such failure is not caused by Developer; or
(e) Authority is otherwise in Default of this Agreement and fails to cure such Default within the time set forth in Section 6.1 hereof; then this Agreement and any rights of Authority or any assignee or transferee with respect to or arising out of this Agreement may, at the option of Developer, be terminated by Developer by written notice thereof to Authority. From the date of the written notice of termination of this Agreement by Developer to Authority and thereafter this Agreement shall be deemed terminated, subject to the rights of the Lender pursuant to the Primary Loan , except that if Authority is in default hereunder Developer, after delivery of notice of default and expiration of the cure period provided in Section 6.1 hereof, may pursue any remedies it has at law or equity.
6.5 Termination by Authority. In the event that Authority is not in D efault under this Agreement, and:
(a) One or more of the Conditions Precedent set forth in Section 2.1.1(a) is/are not timely satisfied (or waived by Authority), and such Condition Precedent is not satisfied after notice and an opportunity to satisfy as provided in Section 6.1 hereof, and such failure is not caused by Authority; or
(b) Developer is otherwise in Default of this Agreement and fails to cure such Default within the time set forth in Section 6.1 hereof; then this Agreement and any rights of Developer or any assignee or transferee with respect to or arising out of this Agreement may, at the option of Authority, be terminated by Authority by written notice thereof to Developer. From the date of the written notice of termination of this Agreement by Authority to Developer and thereafter this Agreement shall be deemed terminated, and there shall be no further rights or obligations between the parties as to the Project , except that if Developer is in default hereunder Authority, after delivery of notice of default and expiration of the cure period provided in Section 6.1 hereof, may pursue any remedies it has at law or equity, including without
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limitation all rights and remedies of the Authority (and City of Anaheim) under, as applicable, the Existing HAP Contract or the Existing HAP Contract Second Extension.
6.6 Attorneys’ Fees. In addition to any other remedies provided hereunder or available pursuant to law, if any party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder or under any of the documents executed pursuant hereto, the prevailing party shall be entitled to recover from the other party its costs of suit, including without limitation expert witness fees, and reasonable attorneys’ fees.
6.7 Remedies Cumulativ e. No right, power, or remedy given to either party by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to such party by the terms of any such instrument, or by any statute or otherwise against the other party and any other person.
6.8 Waiver of Terms and Conditions. Either party may, in its sole discretion, waive in writing any of the te rms and conditions of this Agreement benefiting such party. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition.
7. GENERAL PROVISIONS.
7.1 Time is of the Essence. Time is expressly made of the essence with respect to the performance by Authority and Developer of each and every obligation and condition of this Agreement.
7.2 Notices. Any approval, disapproval, demand, document or other notice (“ Notice”) which any party may desire to give to another party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii ) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below, or at any other address as that party may later designate by Notice.
Service shall be deemed conclusively made at the time of service if personally served; the next business day if sent by overnight courier and receipt is confirmed by the signature of an agent or employee of the party served; the next business day after deposit in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by express mail; and three (3) days after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by certified mail.
Developer: Belage Preservation Limited Partnership
c/o Jonathan Rose Companies
551 Fifth Avenue, 23
rd Floor
New York, New York 10176
Attention: Brandon Kearse
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With a Copy to: Goulston & Storrs
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attention: Deborah S. Horwitz
With a Copy to: Jamboree Housing Corporation
17701 Cowan Avenue, Suite 200
Irvine, CA 92614
Attention: Michael Massie
Authority: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Theresa Bass, Secretary
With a Copy to: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Grace Ruiz-Stepter, Executive Director
City Attorney, City of Anaheim
200 South Anaheim Boulevard
Anaheim, California 92805
Attention: City Attorney
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attention: Celeste Stahl Brady
Such addresses may be changed by Notice to the other party(ies) given in the same manner as provided above.
7.3 Representations and Warranties of Developer . Developer hereby represents and warrants to Authority as follows:
(a) Organization. Developer is a California limited partnership duly organized, validly existing, formed, and in good standing under the laws of the State of California that has the power and authority to own property and carry on business as is now being conducted. (b) Authority of Developer . Developer has full power and authority to execute and deliver this Agreement , the Authority Regulatory Agreement, Existing HAP Contract Second Extension, all other Transaction Documents, and to perform and observe the terms and provisions of all thereof.
(c) Valid Binding Agreements . This Agreement, the Authority Regulatory Agreement, other Transaction Documents, and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if
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not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Developer enforceable against it in accordance with their respective terms. (d) Pending Proceedings. To Developer’s Best Knowledge, Developer is not in default under any law or regulation or under any order of any federal, state, or local court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Developer, threatened against or affecting Developer or the Site, at law or in equity, before or by any federal, state, or local court, board, commission or agency whatsoever which might, if determined adversely to Developer, materially affect Developer’s ability to perform its obligations hereunder.
(e) Commercial Funding and Public Funding Review . Developer agrees to notify Authority in the event that it applies for or proposes to use other or additional sources of commercial funding and/or public funding for the Project (other than funds obtained by the Developer to be used for “green” or sustainable improvements or for the provision of social services) prior to the issuance of the Release of Construction Covenants as to the Phase 2 Rehab. (f) No Material Adverse Change . Developer hereby represents and warrants, as of the date of this Agreement, that all documents, materials and information provided by Developer to Authority relating to Developer’s qualifications, financial strength, and ability to perform its obligations hereunder are true, correct and complete in all material respects as of their respective dates and no Material Adverse Change has occurred or is reasonably likely to occur that would make any such documents, materials or information incorrect, incomplete, or misleading in any material respect.
(i) The representations an d warranties set forth in this Section 7.3, subject to such exception(s), shall survive the Closing. During the term of the Existing HAP Contract Second Extension, within five (5) business days following a written request from Authority or City, Developer shall either re -affirm in writing the material truth and accuracy of the representations and warranties set forth in this Section 7.3, or identify any material inaccuracies of such representations and warranties. The fact that a representation or warrant y contained in this Section 7.3 has become inaccurate or misleading shall not, in and of itself, constitute a breach under this Agreement or the Authority Regulatory Agreement ; however, (a) failure to notify Authority of material inaccuracies in these repr esentations and warranties of which it has knowledge within ten (10) business days of Authority’s request for such information, and (b) any overt material misrepresentation by Developer relating to such representations and warranties shall each constitute an Event of Default under this Agreement, subject to delivery of notice and expiration of the cure rights hereunder.
7.4 Transfers; General Prohibition of Transfer without Authority Consent.
The qualifications and identity of Developer as an experienced and successful developer and operator/manager of affordable housing, in particular Senior Citizen affordable housing, are of particular concern to Authority. It is because of these identities and the qualifications of each of the partners that comprise the Developer entity that Authority has entered into this Agreement with Developer. Accordingly, commencing upon Date of Agreement and throughout the Affordability Period no voluntary or involuntary successor-in-interest of Developer shall acquire any rights or powers under this Agreement, nor shall Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the Site , or any part thereof, or this Agreement (collectively referred to herein as a “ Transfer”) without the prior written approval of
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Authority, except as expressly set forth herein, which approval shall not be unreasonably withheld, conditioned, or delayed, except in the instance of the Syndication and/or Resyndication of the Project, wh ich request shall be approved or disapproved in accordance with the terms of the definition of Syndication and/or Resyndication.
7.4.1 Permitted Transfers. Notwithstanding the provisions of this Agreement or any other Transaction Documents prohibiting transfer of any interest in Developer, the Site, the Project, and/or this Agreement, Authority’s approval of a Transfer shall not be required in connection with any of the following, provided however nothing in the following allows or shall be construed to permit, preapprove, or otherwise consent to the Syndication and/or Resyndication of the Project in any manner whatsoever during the Affordability Period, which Syndication and/or R esyndication shall require the prior written consent of Authority that will be given or withheld in accordance with the terms of the definition of Syndication and/or Resyndication:
(a) The conveyance or dedication of any portion of the Site to Authority or other appropriate governmental agency, or the granting of easements or permits to facilitate the Substantial Rehabilitation.
(b) An assignment for financing purposes to secure the funds necessary for the interest purchase of the Site, the Subs tantial Rehabilitation, and continued operation of the Project on the Site, or a refinancing thereof during the Permitted Refinancing Period, so long as such refinancing constitutes a Permitted Refinancing and if the same occurs during the Permitted Refinancing Period, all subject to the conditions and provisions of this Agreement. (c) Leasing of individual Housing Units to qualified tenants in accordance with Section 4., et seq. herein, and Section 2., et seq. of the Authority Regulatory Agreement.
(d) The transfer of all or any part of the Site or the Project, or assignment of this Agreement and the Authority Regulatory Agreement to a JRC Affiliate or a Jamboree Affiliate pursuant to the Developer’s Partnership Agreement, so long as not part of any Syndication and/or Resyndication of the Project in default of this Agreement.
In the event of a Transfer by Developer not requiring Authority’s prior approval (other than a residential lease pursuant to clause (c) above), Developer nevertheless agrees that at least fifteen (15) calendar days prior to such Transfer it shall give written notice to Authority of such assignment and satisfactory evidence that the assignee will assume all of the obligations of this Agreement in writing through an assignment and assumptio n agreement in a form reasonably acceptable to Authority. The form of each assignment and assumption agreement shall be submitted to Authority for review and reasonable approval by Authority’s legal counsel not later than fifteen (15) calendar days prior to the proposed date of the Transfer, which approval shall not be unreasonably withheld, conditioned or delayed but such statement shall not dilute the Authority’s exercise of its sole discretion whenever this Agreement reserves to the Authority the exerci se of its sole discretion.
7.4.2 Authority Consideration of Requested Transfer. With the exception of the Syndication and/or Resyndication of the Project, which request shall be approved or disapproved in accordance with the terms of the definition of Syndicati on and/or Resyndication, Authority agrees that it will not unreasonably withhold, condition, or delay approval of a request for approval of a
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Transfer made pursuant to this Section 7.4.2 provided Developer delivers written notice to Authority requesting su ch approval and includes (a) the proposed assignment and assumption contract , (b) all necessary and relevant background and experience information related to the proposed transferee, in particular as to the proposed transferee’s experience in owning and op erating large Senior Citizen affordable housing projects, (c) a current preliminary report of title with hyperlinks to the title exceptions, and (d) if requested, a current rent roll and supporting documentation about then current operation of the Project by Developer (as owner/transferor).
An assignment and assumption agreement in form reasonably satisfactory to Authority’s legal counsel shall be required for each proposed Transfer (other than the permitted transfers under clause (a), (b) or (c) of Section 7.4.1 above), which approval shall not be unreasonably withheld, conditioned, or delayed. Within fifteen (15) calendar days after the receipt of Developer’s written notice requesting Authority approval of a Transfer pursuant to this Section 7.4 (except in the instance of Syndication/Resyndication of the Project for which Developer shall provide Authority not less than sixty (60) days’ written notice with the supporting materials described herein), Authority shall either approve or disapprove such proposed assignment or shall respond in writing by stating what further information, if any, Authority reasonably requires in order to determine the request complete and determine whether or not to grant the requested approval of the proposed Transfer. Upon recei pt of such a response, Developer shall promptly furnish to Authority such further information as may be reasonably requested. Upon the effective date of the approved or permitted Transfer, if an assignment and assumption agreement reasonably acceptable to Authority has been executed and delivered to Authority (if applicable), the assignor and any related party guarantor shall be released by Authority from any and all obligations assumed by the approved or permitted assignee, subject to certain reservation of rights to Authority (and City) set forth in such assignment and assumption agreement.
7.4.3 Refinancing of Primary Loan. Subject to the conditions and limitations of a Permitted Refinancing during the term of the Existing HAP Contract Second Extension, Authority Executive Director shall have the right to review all documents related to and to approve or disapprove the refinancing of the Primary Loan as set forth in the definition of Permitted Refinancing above.
7.4.4 Payment of Authority Third Party Costs re Proposed Transfer . As more fully set forth in Section 7.16, any and all Third Party Costs incurred by Authority in connection with consideration and approval (or disapproval) of a proposed transferee for any Transfer shall be paid by Developer, and payment thereof shall be and remain a condition precedent to Authority’s obligation to approve and execute any Transfer document, including without limitation any assignment and assumption agreement.
7.5 Successors and Assigns. This Agreement shall run w ith the land, and all of the terms, covenants and conditions of this Agreement shall be binding upon Developer and the permitted successors and assigns of Developer, as owner of the Site and Improvements, and of the Authority. Whenever the term “Developer” is used in this Agreement, such term shall include any of Developer’s Affiliate assignee(s) or Affiliate transferee(s), or any other permitted successors and assigns as herein provided.
7.6 Non-Recourse; Non-Liability of Public Officials and Employees of Authority or City. No member, elected or appointed official, or employee of Authority or City shall be personally liable to Developer or any successor in interest in the Event of Default or other breach by Authority
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or for any amount which may become due to Developer or its successors, or for performance of any obligations under the terms of this Agreement. No partner of Developer or any of their members, partners, employees, officers, or agents shall be personally liable for any obligation or breach by Developer hereunder.
7.7 Relationship between Authority and Developer . It is hereby acknowledged and agreed that the relationship between Authority and Developer is not that of a partnership or joint venture or other investor partner and that Authority and Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided in this Agreement, Authority shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Site and/or the Project.
7.8 Executive Director; Authority Approvals and Actions . Authority shall maintain authority to implement this Agreement through Authority’s Executive Director (or her or his duly authorized representative). The Executive Director and her/his duly authorized representative(s) shall have the authority to make approvals, issue interpretations, waive provisions, make and execute further agreements and/or enter into amendments of this Agreement on behalf of Authority so long as such actions do not materially or substantially change or modify the uses or development permitted on the Site, or materially or substantially add to the costs, responsibilities, or liabilities incurred or to be incurred by Authority (or City) as specified herein, and such interpretations, waivers and/or amendments may include extensions of time to perform as specified in the Schedule of Performance.
All material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the Authority Board. Further, Executive Director shall maintain the right to submit to the Authority Board for consideration and action any non- material or non-substantive interpretation, waiver or amendment, if in her/his reasonable judgment he/she desires to do so.
7.9 Counterparts. This Agreement may be signed in multiple counterparts all of which together shall constitute an original binding agreement. This Agreement is executed in three (3) originals, each of which is deemed to be an original.
7.10 Integration. This Agreement together with the Attachments here and the other Transaction Documents contains the entire understanding between the parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. This Agreement includes pages 1 through 6 9, S-1 through S-2, and Attachments Nos. 1 through 16.
7.11 Real Estate Brokerage Commission. Authority is and shall not be responsible, financially or legally, to any broker or finder or to pay any commission or finder’s fee in connection with this transaction. Developer does hereby indemnify and agrees to defend and hold harmless the Indemnitees from any claim related to any commission or fee resulting from this transaction , and not arising from any action of Authority.
7.12 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit t he scope or the intent of this Agreement or of any of its terms.
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References to Section and Paragraph numbers are to sections and paragraphs in this Agreement, unless expressly stated otherwise.
7.13 Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “ including” shall be construed as if followed by the words “ without limitation.” This Agreement shall be interpreted as though prepared jointly by both parties.
7.14 No Waiver. A waiver by any party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeedin g breach of the same or other covenants, agreements, restrictions or conditions of this Agreement or the Attachments hereto.
7.15 Covenant Not to Sue. The following covenant relating to Developer’s obligation not to sue regarding this Agreement, the Project, or the Site , or any issues ancillary thereto (but excluding the specific performance of this Agreement) is a material incentive for and a part of the consideration to Authority to enter into this Agreement with Developer. Therefore, the Authority shall have the right to terminate the performance obligations of Authority under this Agreement, in the event from and after the Date of Agreement until the issuance of the Release of Construction Covenants, Developer, or any Affiliate of Developer or any of its pa rtners, officers, directors, employees, agents, representatives, consultants, attorneys, or any person acting at the direction of Developer, undertakes any act to oppose, or to commence, participate in, prosecute, or otherwise object to, or to litigate, di rectly or indirectly the determination of the Authority and the City for the Authority’s entering into this Agreement, the Existing HAP Contract Second Extension, and the Authority Regulatory Agreement.
Notwithstanding the foregoing, nothing set forth in t his Section 7.15 shall prevent Developer from asserting its rights relating to the performance and enforcement of this Agreement (or any other agreement with the City and/or the Authority) or due to the abuse of discretion by a governmental entity considering and acting upon a future discretionary decision related to the parameters of this covenant. Further, nothing in the foregoing covenant shall prevent Developer from asserting Developer’s rights with respect to prospective action or future conduct by any person who interferes, opposes, or delays implementation and completion of the Project.
7.16 Developer’s Payment and Reimbursement of Authority’s Third Party Costs.
7.16.1 Third Party Costs Defined; Obligation . Developer shall be responsible to pay, and shall pay and reimburse Authority for all Third Party Costs.
7.16.2 Payment of Third Party Costs . Within ten (10) days of the submittal by Authority staff of copies of invoices or billings for Third Party Costs incurred, it is and shal l be the obligation of Developer to reimburse and pay to Authority one hundred percent (100%) of these Third Party Costs, unless Developer reasonably contests such Third Party Costs. The hourly and/or fixed fee expenses incurred by the City and/or Authori ty will be based on the professional services agreement, purchase order, or other written communication between the City and/or Authority and such third party professional. As of the Date of Agreement, the hourly fees charged by outside counsel and economic and housing consultants are less than the hourly design rates and fees charged to private clients of such law firm or consultant.
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(a) This reimbursement obligation shall bear interest from the date occurring ten (10) days after Authority gives written demand to Developer at the rate of six percent (6%), or such lower rate that is the maximum rate then permitted by law. (b) This reimbursement obligation shall survive the issuance of the final Release of Construction Covenants and termination of this Agreement and continue through the term of the Affordability Period.
7.16.3 Exception to Payment of Post-Effective Date Third Party Costs .
Notwithstanding Section 7.16, 7.16.1, and 7.16.2 above, Developer shall not be responsible to pay and reimburse for Third Party Costs if the costs incurred are attributable to one or more of the following events:
(a) City Council, Authority Board, Successor Agency Board, Planning Commission, Zoning Administrator, or other City official with discretionary approval and/or disapproval rights over the Site and/or the Project or the implementation of this Agreement disapproves, denies, or refuses to take action on an applicati on for a permit or other discretionary application necessary to commence and complete ; or
(b) Default by Authority under this Agreement.
7.17 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be ma de in writing and in each instance signed by a duly authorized representative on behalf of each party.
7.18 Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any ext ent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
7.19 Computation of Time . The time in which any act is to be done under this Agreement is computed by excluding the first day and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
7.20 Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have receiv ed independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
7.21 Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful or
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appropriate to carry out the purposes and intent of this Agreement including, but not limited to, implementation agreements, releases or other agreements.
7.22 Conflicts of Interest. No member, elected or appointed public official or employee of Authority (or City) shall have any personal interest, direct or indi rect, in this Agreement, nor shall any such member, elected or appointed public official or employee participate in any decision relating to the Agreement which affects his personal interests, his economic interests, or the interests of any corporation, partnership or association in which he is directly or indirectly interested.
[Signature pages follow]
Affordable Housing Agreement
(Bel’Age Senior Apartments)
S-1
4893-1713-7678v9/022620-0095
IN WITNESS WHEREOF , Authority and Developer have executed this Affordable Housing Agreement (Bel’Age Senior Apartments) as of the date and year first set forth above.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
By: ____________________________
Name: __________________________
Title: Authorized Signatory
[Signatures for Affordable Housing Agreement (Bel’Age Senior Apartments) continue on following page]
Affordable Housing Agreement
(Bel’Age Senior Apartments)
S-2
4893-1713-7678v9/022620-0095
[Signatures for Affordable Housing Agreement (Bel’Age Senior Apartments) continued from previous page]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
By:
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leonie Mulvihill
Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Authority Special Counsel
Attachment No. 1
Legal Description of Site
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ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PA GE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY, CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST 170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Attachment No. 1
Legal Description of Site
4893-1713-7678v9/022620-0095
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DE EDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Attachment No. 2
Schedule of Performance
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 2
SCHEDULE OF PERFORMANCE
1. Submittal of Agreement
Developer shall submit the Agreement for the
agenda package.
By May 12, 2022.
2. Management Plan. Developer shall submit its
proposed Management Plan to Authority for review
and approval.
As a Condition
Precedent to Closing of
Acquisition.
3. Approval of Management Plan. Authority shall
review and approve, approve with conditions, or
disapprove the Management Plan.
As a Condition
Precedent to Closing of
Acquisition.
4. Authority Board Consideration and Action on
Agreement. The Authority board shall consider
and take action in its sole discretion to approve or
disapprove the Agreement.
By May 24, 2022.
5. Insurance.
Developer shall furnish or cause to be furnished
appropriate certificates of insurance and/or
endorsements to Authority (and City) which meet
all requirements of the Agreement.
As a Condition
Precedent to Closing of
Acquisition.
6. Recording; Closing of Acquisition. The Authority
Regulatory Agreement, and other recordable
Transaction Documents shall be recorded against
the Site.
Concurrent with the
Closing of Acquisition
and Developer’s
Primary Loan by
May 31, 2022.
B. PROJECT FINANCING FOR CLOSING OF
ACQUISITION.
1. Submission of Evidence of Financing
Developer shall submit to Authority evidence of
financing for the Project as set forth in Section 3.11
of the Agreement.
A Condition Precedent
to Closing of
Acquisition.
2. Receipt of All Funding Commitments Necessary
to Complete Transfer of the Site by Original
Developer to Developer.
A Condition Precedent
to Closing of
Acquisition.
3. Approval of Developer's Evidence of Financing
Authority shall approve, conditionally approve or
disapprove Developer's evidence of financing as
required by the Agreement.
A Condition Precedent
to Closing of
Acquisition.
Attachment No. 2
Schedule of Performance
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C. ESCROW FOR CLOSING OF ACQUISITION
1. Open Escrow
Developer shall open Escrow to acquire the Site.
Completed.
2. Deposit of Documents into Escrow
Developer shall cause to be fully executed the final
form of all Transaction Documents necessary for
the Closing of Acquisition.
Prior to Closing of
Acquisition.
3. Conditions Precedent to Closing of Acquisition.
Authority must notify Escrow that all Conditions
Precedent to Developer's acquisition of the Site
have been satisfied by Developer or waived by
Authority prior to the Closing of Acquisition.
Prior to Closing of
Acquisition.
4. Close of Escrow
Escrow shall close when all Conditions Precedent to
the Closing of Acquisition have been waived or
satisfied.
By May 31, 2022.
D. IMMEDIATE REHABILITATION
PHASE 1 REHAB
1. Commencement of Phase 1 Rehab Construction.
Developer shall cause the Construction of Phase 1
Rehab to be implemented by Rose Community
Management.
Within 3 weeks of
Closing of Acquisition.
2. Completion of Phase 1 Rehab Construction.
Developer shall complete all work of the Immediate
Rehabilitation Phase 1 Rehab.
Within 12 months from
the commencement of
construction of the
Phase 1 Rehab.
E. SUBSTANTIAL REHABILITATION
PHASE 2 REHAB
1. Basic Concept Design Drawings. By August 1, 2022.
2. Construction Drawings. By November 30,
2022.
3. Building Permits. By February 15, 2023.
4. Submission of Basic Concept Design Drawings.
Developer shall prepare and submit to the Authority
Basic Concept Design Drawings for Phase 2 Rehab.
By August 1, 2022.
5. Approval of Basic Concept Design Drawings.
Authority shall approve or disapprove Basic
Concept Design Drawings for Phase 2 Rehab.
Within two weeks after
Submission of Basic
Concept Design
Drawings.
Attachment No. 2
Schedule of Performance
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6. Submission of Final Budget and Construction
Schedule. Developer shall submit to Authority the
Final Budget and updated construction schedule for
the Construction pursuant to the Agreement.
As a Condition
Precedent to the
Closing of Substantial
Rehabilitation Phase 2
Rehab.
7. Submission to Authority of the Construction
Drawings. Developer shall prepare and submit to
the Authority Construction Drawings for Phase 2
Rehab.
By November 30,
2022.
8. Approval by Authority of the Construction
Drawings. Authority shall approve or disapprove
Construction Drawings for Phase 2 Rehab.
Within two weeks after
Submission of
Construction
Drawings.
9. Submission to City of Anaheim for Building
Permits. Developer shall prepare and submit to
City of Anaheim permit set of construction
drawings for Phase 2 Rehab for review.
By December 16,
2022.
10 Approval – Building Permit. City of Anaheim
shall provide comments and approve permit set for
Phase 2 Rehab.
By February 15, 2023.
11. Commencement of Phase 2 Rehab Construction.
Developer shall cause the Construction of Phase 2
Rehab to be commenced by Contractor.
Within one week of
building permit
approval.
12. Completion of Substantial Rehabilitation Phase
2 Rehab.
Developer shall complete all work of the
Substantial Rehabilitation Phase 2 Rehab.
Within 12-14 months
from the
commencement of
construction of the
Phase 2 Rehab.
13. Release of Construction Covenants for Phase 2
Rehab.
Authority to furnish Developer with a Release of
Construction Covenants for the Phase 2 Rehab.
Within 30 days of
receipt of Developer
request and only after
Developer’s
satisfactory completion
of the Substantial
Rehabilitation Phase 2
Rehab.
[Schedule continues on next page]
Attachment No. 2
Schedule of Performance
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For the purposes of this Schedule of Performance (“Schedule”), the commencement date is the Date of Agreement. This Schedule is subject to revision periodically as agreed in writing between Developer and Authority, with the Executive Director hereby authorized on behalf of Authority to agree to make such revisions as she/he deems reasonably necessary; provided that Executive Director, in her/his sole discretion, may elect to bring to the Authority Board for consideration and action any modifications to this Schedule. The parties agree the Schedule is subject to all of the terms and conditions set forth in the text of the Agreement. The summary of the items of performance in the Schedule is not intended to supersede or modify the more complete description in the text; in the event of any inconsistency between the Schedule and the text of Agreement, the text shall govern. In the event the Executive Director deems it necessary to bring to Authority Board for consideration one or more modifications to this Schedule, the discretion to do so is expressly reserved to the Executive Director. The time periods in the Schedule for Authority’s approval of plans, drawings and other submittals to Authority by Developer shall only apply and commence upon Developer’s complete submittal. In no event shall an incomplete submittal by Developer trigger any of Authority’s obligations of review and/or approval hereunder; provided, however, that Authority shall notify Developer of an incomplete submittal as soon as is practicable and in no event later than the applicable time set forth for Authority’s action on the particular item in question.
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Scope of Substantial Rehabilitation
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ATTACHMENT NO. 3
SCOPE OF SUBSTANTIAL REHABILITATION
Attachment No. 3
Scope of Substantial Rehabilitation
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Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 3
Scope of Substantial Rehabilitation
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Attachment No. 4
Termination Agreement
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 4
TERMINATION AGREEMENT
Recording Requested By and
When Recorded Mail To:
Goulston and Storrs
400 Atlantic Avenue
Boston, MA 02110
Attention: Deborah Horwitz
[Space above for recorder.]
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (“ Termination Agreement ”) is made and entered into as of May 31, 2022, by and among BELAGE PRESERVATION LIMITED PARTNERSHIP, a California limited partnership (“Developer”), and the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic (“Authority”).
RECITALS
WHEREAS, Developer and Authority are parties to that certain Affordable Housing Agreement dated as of February 1, 2008 and recorded in the Official Records, County of Orange, State of California as Instrument No. 2008-000071745 (“2008 Agreement”).
WHEREAS, of even date herewith, Developer and Authority have entered into that certain Amended and Restated Affordable Housing Agreement (“AHA”); the parties intend that the AHA replaces and supersedes the 2008 Agreement.
WHEREAS, the Parties now wish to terminate or cancel the 2008 Agreement concurrent with and effective as of the same date as the Closing of Acquisition as such term is defined in the new AHA and as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the Parties agree as follows:
AGREEMENT
1. Termination of 2008 Agreement . Pursuant to the terms of the new AHA, Developer and Authority the 2008 Agreement is terminated and of no further force or effect upon execution and recordation of this Termination Agreement (“Effective Date of Termination”).
2. Counterparts . T
his Termination Agreement may be executed on one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.
Attachment No. 4
Termination Agreement
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3. Governing Law. This Termination Agreement shall be governed by, and construed under, the laws of the State of California.
IN WITNESS WHEREOF, the Parties have executed this Termination Agreement as of the day and year first written above.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
By: ____________________________
Name: __________________________
Title: Authorized Signatory
[signatures continue on the following page]
Attachment No. 12
Termination Agreement
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[Signatures for Termination Agreement continued from previous page]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
By:
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leonie Mulvihill, Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Housing Authority Special Counsel
Attachment No. 4
Legal Description
4893-1713-7678v9/022620-0095
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNT Y, CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST 170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SO UTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Attachment No. 4
Legal Description
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SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Attachment No. 5
Authority Regulatory Agreement
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 5
AUTHORITY REGULATORY AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Executive Director
This document is exempt from the payment of a
recording fee pursuant to Government Code
§§ 6103 and 27383.
AUTHORITY REGULATORY AGREEMENT
This AUTHORITY REGULATORY AGREEMENT (“ Regulatory Agreement ” or “Authority Regulatory Agreement”) is dated as of May 31, 2022 and is entered into by and between the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ( “Authority”), and BELAGE PRESERVATION LIMITED PARTNERSHIP, a California limited partnership (“Developer”).
RECITALS
A. Authority is the underlying fee owner of an existing Senior Citizen affordable housing apartment complex improved with 180 apartments and include accessways, common areas/amenities, and all ancillary and appurtenant facilities (together, “ Site”), which is located in the City of Anaheim, California at the common address of 1660 – 1664 West Broadway, Anaheim, California.
B. The Site is legally described in the Legal Description attached hereto as Exhibit A and incorporated herein by reference and is the subject of this Authority Regulatory Agreement.
C. Developer and Authority have entered into that certain Affordable Housing Agreement ( Bel’Age Senior Apartments ) dated as of May 24, 2022 (“ Affordable Housing Agreement” or “AHA”).
D. Capitalized terms used in this Authority Regulatory Agreement are as defined in the AHA unless otherwise defined herein.
E. Developer owns the Site and pursuant to the AHA will cause the Substantial Rehabilitation to be completed, and shall operate the Senior Citizen affordable rental housing project (together, “Project” or “Project” ) with 178 of the apartments made available and leased to qualified Very Low Income and Low Income Senior Citizen Households ( each a “Housing Unit ” and
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Authority Regulatory Agreement
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collectively, “Housing Units ”) along with two (2) onsite Manager Units (total of 180 apartment units.)
F. By way of background, the parties acknowledge that the Original Project commonly referred to as “Bel’Age Senior Apartments ” was developed on and has operated at the Site continuously since 1988 as a Senior Citizen affordable housing project for eligible Very Low income and Low Income tenant households.
G. The execution and recording of this Authority Regulatory Agreement is a Condition Precedent to Authority’s approval of the transfer of all ownership interests in the Site and entering into the Existing HAP Contract Second Extension . Copies of this Regulat ory Agreement (and the AHA) may be obtained from the Authority through the City of Anaheim , Office of the City Clerk , located at City Hall, 200 South Anaheim Boulevard, Anaheim, California 92805.
H. This Authority Regulatory Agreement supersedes and terminate s that certain agreement containing covenants between the Authority and the Original Partnership, dated as of February 1, 2008 and recorded against the Original Project as Instrument No. 2008-000071745 in the Official Records, County of Orange, State of California (“Official Records”).
NOW, THEREFORE, in exchange for the mutual covenants, restrictions, and agreements set forth herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the Authority and Developer agree as follows:
1. Substantial Rehabilitation, Completion and Operation of Project . Developer agrees to cause and complete the Substantial Rehabilitation of the Site and to operate the Project thereon in accordance with this Authority Regulatory Agreement and subject to the HAL, Section 8 Laws, Anaheim Municipal Code, Uniform Codes, and all other applicable federal, state, and local laws, codes, regulations, and ordinances.
2. Project Covenants; Affordable Housing Covenants; Senior Citizen Very Low and Low Income Households. In accordance with this Section 2, of the total 180 apartment units, Developer covenants and agrees to make available, restrict occupancy to, and rent 178 Housing Units to tenants who qualify as Senior Citizen Very Low Income Households and Low Income Households, and two (2) apartments are designated as the Manager Units for occupancy by the resident managers . The term Senior Citizen means a tenant household where at least one (1) person in residence in the Housing Unit is fifty-five (55) years of age or older and who resides, or intends to reside, in the unit as her or his primary residence on a permanent basis, and any other person residing in the unit is a “qualified permanent resident” or a “permitted health care resident” as provided in California Civil Code Section 51.3, et seq., or in the Federal Fair Housing Act, 42 U.S.C. Section 3607, and any other applicable federal, state or local laws and regulations governing the use and occupancy of senior housing developments. The term Low Income Household means a household whose income does not exceed sixty percent (60%) of area median income for Orange County, adjusted for applicable household size, as computed in accordance with HSC Section 50079 and the regulations promulgated in the Code of Re gs, including, without limitation, all regulations promulgated pursuant to HSC Section 50093, or any successor statute . And, the term Very Low Income Household means a household whose income does not exceed fifty percent (50%) of area median income for Ora nge County, adjusted for applicable household size, as computed in accordance with HSC Section 50105
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Authority Regulatory Agreement
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and the regulations promulgated in the Code of Regs, including, without limitation, all regulations promulgated pursuant to HSC Section 50093, or any successor statute.
2.1 Number and Allocation of Housing Units; Unit Mix among Very Low Income and Low Income Levels. Developer covenants and agrees to make available, restrict occupancy to, and rent the 178 Housing Units to eligible and qualified Senior Citizen Ve ry Low Income Households and Senior Citizen Low Income Households, at the following unit size and income restrictions, in accordance with this Section 2., et seq . The term “Housing Unit” and “Housing Units” shall mean, individually and collectively, each and all of the 178 apartments that shall be used and maintained by Developer as affordable Senior Citizen rental housing for occupancy by Very Low Income and Low Income tenants at Affordable Rents for the Affordability Period. There are 180 total apartmen t units in the Project, inclusive of the two (2) Manager Units; and all units on the Site shall be and remain owned, operated, managed, and maintained by Developer. The 178 Housing Units shall be for tenancy by Senior Citizen Households as follows:
(a) fifty-nine (59) one -bedroom units for occupancy by qualified Senior Citizen Very Low Income Households;
(b) three (3) studio units for occupancy by qualified Senior Citizen Low Income Households;
(c) one hundred sixteen (116) one -bedroom units for occupancy by qualified Senior Citizen Low Income Households; and
(d) there shall be two (2) Manager Units for occupancy by onsite managers of the Project, both of which are one -bedroom units and are non-restricted as to rent, provided however, Authority acknowledges that as of the Date of Closing of Acquisition, a third unit is being occupied as a third manager unit, and Developer intends to request the consent of TCAC to remove the third manager unit, upon which said unit, will be subject to the affordability restrictions set forth herein.
2.1.2 Affordable Rent. Affordable Rent shall be charged for the Housing Units (excepting the Manager Units) throughout the Affordability Period.
2.1.3 Affordable Rent for Very Low Income Households and Low Income Households; Presumed Household Size . The max imum Affordable Rent chargeable for the Housing Units shall be annually determined by Authority (and charged and implemented by Developer.) The Manager Units shall not be restricted as to rent charged, if any.
2.1.4 Calculation of Affordable Rent. For purposes of this Regulatory Agreement, “Affordable Rent” shall mean the total of monthly payments for (a) use and occupancy of each Housing Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer that are required of all tenants, other than security deposits, (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooki ng and refrigeration fuels, but not including telephone service, cable or satellite or streaming TV, or internet services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. No additional
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Authority Regulatory Agreement
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charge shall be assessed against tenant households of the Housing Units for any Supportive Services provided at the Site and/or as a part of Developer’s compliance with the legal requirements impos ed in connection with any Section 8 PBV Program assistance pursuant to this Section 2., et seq.
2.1.5 FMR under Existing HAP Contract Second Extension; Affordable Rent to be Charged after Expiration of Existing HAP Contract Second Extension . The parties acknowledge that the Lender has underwritten the Primary Loan at the Closing of Acquisition for the initial term thereof only based in part on the Authority providing the Existing HAP Contract Second Extension for ninety (90) PBVs at the Project for a term commencing on the Closing of Acquisition and ending on May 30, 2037 (together, “HAP Units”). The out -of-pocket monthly payment by each tenant of the HAP Units is equal to 30% of each tenant household’s actual gross income and the Authority’s monthly payment for each of the HAP Units is equal to the difference between 30% of each tenant household’s actual gross income and FMR, as FMR is set by the Authority in its sole discretion under Section 8 Law and other applicable federal regulations; (provided however, a t enant payment may increase if their household has one or more members who do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of household income toward rent; for example, a tenant household wi th two members, one of whom does not have legal documentation status the voucher is prorated by 50%.) (a) On and after May 30, 2037, which is the end date for the term of the Existing HAP Contract Second Extension, and thereby during the remaining term of the Affordability Period, Developer acknowledges and agrees that under this Authority Regulatory Agreement that ( i) Authority reserves sole discretion to provide (or not provide) a third (3 rd)
extension to the Existing HAP Contract Second Extension, and in the event of a third extension if granted that the term thereof is subject to HOTMA that as of the recording of this Regulatory Agreement does not allow the cumulative number of years of a HAP contract to exceed forty (40) cumulative years, and (ii) Affordable Rent (not FMR) shall be charged by Developer for all Housing Units, including each and all of the former HAP Units, and such Affordable Rent shall be stated in each rental and/or lease agreement between the Developer and each tenant (or if a tenant h as a Section 8 Portable Voucher, the provisions of Section 2.1.6 below shall apply)
2.1.6 Monthly Rent for Non -PBV Housing Units; Acceptance of Section 8 Portable Vouchers. Developer shall set monthly rent at the applicable Affordable Rent as to each and all Housing Units that are not designated as PBV HAP Units under the Existing HAP Second Extension. Developer shall not refuse to lease a Housing Unit to a holder of a Section 8 Portable Voucher who is otherwise qualified to be a tenant in accordance with the tenant selection criteria. (a) In the event Developer rents a Housing Unit to a household holding a Section 8 Portable Voucher issued by the Authority, the rental agreement (or lease agreement, as applicable) between Developer, as landlord, and the Senior Citizen tenant shall expressly provide that monthly rent collected directly from such tenant holding a Portable Voucher shall be not more than 30% of tenant’s actual gross income pursuant to the applicable voucher program regulations, and the total monthly re nt for such unit shall be set at ”fair market rent” (“FMR”) for the area based on the payment standard applicable to the area in which the Property is located, with FMR set by the Authority in its sole discretion (with respect to calculation of FMR) under the Section 8 Laws and other applicable federal regulations. For Section 8 Portable Vouchers issued by an entity other than the Authority, the total monthly rent for such unit may in the Developer’s discretion be set at either (i) Affordable Rent, or (ii) up to FMR for the area as set by the issuing public housing authority
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Authority Regulatory Agreement
4893-1713-7678v9/022620-0095
under Section 8 Laws and other applicable federal regulations with respect to calculation of FMR. (As noted above, the tenant payment may increase if their household has one or more me mbers who do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of household income toward rent; for example, a tenant household with two members, one of whom does not have legal documentation status the voucher is prorated by 50%.)
2.1.7 Most Restrictive Affordable Rent Covenants Govern . To the extent of an inconsistency between or among the foregoing covenants relating to Affordable Rent and other covenants or agreements applicable to the Project, th e most restrictive covenants or agreement regarding the Affordable Rent for the Housing Units in the Project shall prevail.
2.1.8 Property Management to Cause Occupancy of Housing Units in Accord with Covenants . Developer shall, and shall cause its Property Manager to, operate and cause occupancy of and charge Affordable Rent for the Housing Units in conformity with these covenants of this Regulatory Agreement.
2.2 Duration of Affordability Requirements; Affordability Period . The Project, including without limitation all the Housing Units thereon, shall be subject to the requirements of this Section 2., et seq. for the 99-year Affordability Period, which period commences on the date of the Closing of Acquisition.
2.3 Selection of Tenants.
2.3.1 Marketing and Tenant Selection Plan. During the Affordability Period, the marketing, availability, and rental of the Housing Units, as and when they are vacated by the existing tenants, shall be conducted in accordance with the approved Marketing and Tenant Selection Plan, as the same may be amended from time to time with Authority’s prior written approval, which approval shall not unreasonably be withheld. Developer shall provide Authority with periodic reports with respect to the marketing for lease of the Housing Units. Authority agrees to exercise reasonable efforts to assist Developer in connection with the implementation of the Marketing and Tenant Selection Plan; provided, however, Authority shall not be under any obligation to incur any out -of- pocket expenses in connection therewith.
2.3.2 Waiting List. Developer shall be responsible for the selection of new Senior Citizen tenants for the Housing Units, as and when vacated by the current tenants in occupancy as of Closing of Acquisition, in compliance with all lawful criteria, and shall do so in accordance with the Marketing and Tenant Selection Plan. Throughout the Affordability Period, Developer shall establish and maintain the waiting list of eligible, prospective Senior Citizen tenants to facilitate retenanting Housing Units in compliance with the approved Marketing and Tenant Selection Plan, Property Management Plan, and Anaheim Municipal Code. Further, subject to applicable Fair Housing Laws and in compliance with the Anaheim Municipal Code Authority shall be afforded a prior ity marketing period for fifteen (15) days after receiving written notice from Developer that one or more Housing Units have become vacant, during which time Authority and Developer shall work cooperatively to select tenants for any vacant Housing Unit. D eveloper shall provide prompt written notice to Authority when vacancies of Housing Units occur to facilitate timely retenanting of Housing Units pursuant to the approved Marketing and Tenant Selection Plan, Property Management Plan and Anaheim Municipal Code. Subject to applicable Fair Housing Laws, Developer’s waiting list of prospective, eligible Senior Citizen tenants for Housing Units shall
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include and follow the following order of priority for selection of tenants, and Authority will follow such order of priority:
(a) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who have been displaced from their residences due to programs or projects implemented by the City of Anaheim or another governmental entity; (b) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who have applied for and have received Portable Vouchers from Authority;
(c) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who are listed on Authority’s waiting lists for affordable housing and who live and/or work in Anaheim; and
(d) Senior Citizen Very Low Income Households and Senior Citizen Low Income Households, as applicable, who live and/or work in Anaheim.
2.4 Household Income Requirements. Annually and on or before one hundred twenty (120) days following the end of each calendar year, Developer shall prepare and submit to Authority, at Developer’s expense, a written summary of the income, household size, and rent payable by each of the tenants of the Housing Units and, upon the written request of the Authority, copies of each and all leases or rental agreements and the current rules and regulations for the Project. At Authority’s request, Developer shall also provide to Authority completed income computation and certification forms, all in a form reasonably acceptable to Authority, for each and all tenants. Developer shall obtain, or shall cause to be obtained by the Property Manager, a certification from each household leasing a Housing Unit demonstrating that such household is a Very Low Income Household, or Low Income Household, as applicable, and meets the eligibility and occupancy requirements established for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property Manager, the income and household size certification of the tenant household.
2.5 Relocation; Developer Responsible for Compliance with and Cost of Relocation , if and when Applicable . Developer acknowledges that tenants at the Site may be eligible for advisory assistance, monetary payments, and other benefits related to temporary or permanent displacement under applicable Relocation Laws and an approved Relocation Plan for the Project.
Developer shall be and remain full y responsible for complying with all applicable Relocation Laws and the Relocation Plan for the Project. Developer shall cause to be provided and shall pay any and all Relocation assistance and benefits in accordance with applicable Relocation Laws. Developer is and shall remain solely responsible for, and to pay, all out -of-pocket costs for direct payments to eligible persons for Relocation assistance and benefits due and paid and for any other costs incurred related to any Relocation, including a Relocation consultant, and any and all costs or fees incurred.
2.5.1 Indemnification by Developer Relating to Relocation . Developer acknowledges that this Regulatory Agreement implements a public program or project and thereby during the Affordability Period, Developer covenants and agrees to, and shall, indemnify, save, protect, hold harmless, pay for, and defend the Indemni tees from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including without limitation penalties, fines, and monetary sanctions), losses, costs, or expenses, including without limitation consultants’ and
Attachment No. 5
Authority Regulatory Agreement