EXETER CITY COUNCIL ACTION MINUTES
SEPTEMBER 13, 2022
A closed session of the City Council, City of Exeter was held on Tuesday, September 13, 2022, at 6:30 p.m., in the Exeter City Council Chambers, 137 North F Street, and via zoom.
COUNCIL PRESENT: Barbara Sally, Frankie Alves, Justin Mills, Dave Hails, and Steve Garver COUNCIL ABSENT: None
STAFF PRESENT: Adam Ennis, Julia Lew, and Shonna Oneal
A. CALL TO ORDER CLOSED SESSION
Mayor Sally called the closed session to order at 6:31 p.m.
B. PUBLIC COMMENTS REGARDING CLOSED SESSION MATTERS
Mayor Sally requested those who wish to speak on matters listed on the Closed Session Agenda to do so at this time.
There were no public comments presented.
C. ADJOURN TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION(S):
Mayor Sally adjourned to closed session at 6:31 p.m.
1. 54956.9(d)(4) Conference with Legal Counsel - Significant Exposure to Litigation: Two cases in which facts are not yet known to potential plaintiff
54957.6 Conference with Labor Negotiators
Agency Negotiator: Adam Ennis
Employee Groups: Exeter Police Officer Association
A regular session of the City Council, City of Exeter was held on Tuesday, September 13, 2022, at 7:00 p.m., in the Exeter City Council Chambers, 137 North F Street, and via zoom.
COUNCIL PRESENT: Barbara Sally, Frankie Alves, Justin Mills, Dave Hails, and Steve Garver COUNCIL ABSENT: None
STAFF PRESENT: Adam Ennis, Julia Lew, Daymon Qualls, Shonna Oneal, and Hilary Robello D. CALL TO ORDER REGULAR SESSION AND REPORT ON CLOSED SESSION ITEMS (if any) Mayor Sally called the regular session to order at 7:00 p.m. City Attorney Julia Lew reported on a motion made by Mayor Pro Tem Alves, seconded by Council Member Mills and unanimously carried to reject the claim submitted by Bryan Payne. Ms. Lew also reported on a motion made by Council Member Hails, seconded by Council Member Garver and unanimously carried to reject the claim submitted by Monica Gibby.
E. PLEDGE OF ALLEGIANCE AND INVOCATION
The Pledge of Allegiance was given by Mayor Pro Tem Alves and an invocation was given by Pastor Allen Whittenburg.
F. PUBLIC COMMENTS:
Mike Germain addressed the Council to give an update on the Exeter Dog Park, it is being used daily and Public Works will be out to fix the hinge on the gate.
G. SPECIAL PRESENTATIONS (if any):
a. Receive a presentation regarding Measure U. - Vicki Riddle and Erica Pine Vicki Riddle provided a presentation on Measure U.
Erica Pine provided handouts and additional information on what the funds for Measure U would be used for and sought ideas on informational outreach.
b. Proclamation for the Daughters of the American Revolution Constitution Week.
Mayor Sally presented a Proclamation in honor of Constitution Week.
ACTION MINUTES
EXETER CITY COUNCIL
PAGE 2, SEPTEMBER 13, 2022
H. CONSENT CALENDAR:
It was moved by Mayor Pro Tem Alves, seconded by Council Member Mills, and carried unanimously that the items on the Consent Calendar be approved as presented.
1. Approve regular minutes of August 23, 2022
2. Payment of Bills
3. Payroll: August 19, 2022, and September 2, 2022
4. Treasurer's Report: June 2022
5. Adopt Resolution 2022-38 Re-Authorizing Remote Teleconference Meetings of all Legislative Bodies of the City of Exeter through October 13, 2022, Pursuant to Brown Act Provisions (AB 361) due to continued State Declaration of Emergency.
6. Approve a street closure request for the portion of the route along Rocky Hill Drive from the City limits to Kaweah Avenue, along with no parking on Pine Street, from 6:00 a.m. to 1:00 p.m. on March 11, 2023, for the Rocky Hill Triathlon event subject to the conditions presented.
7. Approve requests by Exeter Chamber of Commerce for facility use and street closures for Fall Festival Events. Authorize use of Mixture Park and closing E Street between Pine Street and the Public Parking lot at Wildflower Café for Family Fun Night Wednesday October 5, 2022, from 4:00pm-8:00pm subject to the conditions outlined. Authorize closing Pine Street and associated alley ways between D Street and F Street, South E Street from East Maple Street to Palm Street, F Street between Pine Street and the City Parking Lot north of Pine Street and the City owned parking lot adjacent to City Hall, from 6:00 a.m. to 5:00 p.m. on Saturday, October 8, 2022, for the Exeter Fall Festival event subject to the conditions outlined.
8. Approve the requests from Michael Young of Forever Young Events to host The Scarecrow 2.0 5k and 2-mile walk/run throughout various city streets in conjunction with the Exeter Fall Festival on Saturday October 8, 2022.
9. Approve a request from Jason Moule representing Exeter Fire Station 11 for a street closure of F St between the City Public Parking Lot and Palm Street to host the South Valley Battle of the Badges Blood Drive at 137 N F St between the hours of 3:00 pm - 7:00 pm on Wednesday November 2, 2022.
10. Affirm extra work and authorize additional payment in the amount of $36,602.37 to Galante Bros.
Enterprises, Inc. of Visalia, CA, for additional work related to the 2021/2022 Annual Asphalt Patch Repair Project, and appropriate said amount into expenditure accounts for street maintenance.
11. Award and authorize the City Administrator to execute an amended agreement with Galante Bros.
Enterprises, Inc., of Visalia, CA in an amount not to exceed $100,000, for construction of the 2022/2023 Annual Asphalt Patch Repair Project.
I. INDIVIDUAL BUSINESS ITEMS
1. Public Hearing to adopt Resolution 2022-39 accepting the City of Exeter's updated Urban Water Management Plan. Public Works Director Daymon Qualls provided a report for Council's review and consideration. Monique Mello, Senior Engineer of Quad Knopf, Inc. provided a PowerPoint presentation highlighting the City's future water supply & demand and SB X7-7 requirements. Mayor Sally opened the public hearing at 7:37 p.m. Vicki Riddle addressed the council asking for staff to clarify if there is a target number of usage to meet to qualify under the state grants. Mayor Sally closed the public hearing at 7:40 p.m. Council posed questions, Mr. Qualls, Ms. Mello, and City Administrator Adam Ennis provided a response thereto. Following brief discussion, it was moved by Council Member Mills, seconded by Council Member Hails, and carried unanimously to adopt Resolution 2022-39 as presented.
Second reading and adoption of Ordinance 707 amending Title 17 of the Exeter Zoning Ordinance by adding text amendment 17.30.04 C-H to add "RV Park" to the conditionally permitted use list of the CH (Highway Commercial) district, read by title only, and waiving further reading. It was moved by Council Member Garver, seconded by Mayor Pro Tem Alves, and carried unanimously to adopt Ordinance 707 amending Title 17 of the Exeter Zoning Ordinance by adding text amendment 17.30.04 C-H to add "RV Park" to the conditionally permitted use list of the CH (Highway Commercial) district, read by title only, and waiving further reading. City Attorney Julia Lew gave second reading of the Ordinance by Second reading and adoption of Ordinance 708 amending Title 17 of the Exeter Zoning Ordinance Commercial) district, read by title only, and waiving further reading. It was moved by Mayor Pro Tem Alves, seconded by Council Member Mills, and carried unanimously to adopt Ordinance 708 amending Title 17 of the Exeter Zoning Ordinance rezoning property located on S. Kaweah Avenue from the I
ACTION MINUTES
EXETER CITY COUNCIL
PAGE 3, SEPTEMBER 13, 2022
(Industrial) district to the CH (Highway Commercial) district, read by title only, and waiving further reading. City Attorney Julia Lew gave second reading of the Ordinance by Title only.
4. Second reading and adoption of Ordinance 709 amending Title 17 of the Exeter Zoning Ordinance by adding text amendment to Section 17.26.04 C-S to add "Martial Arts Studio" to the conditionally permitted use list of the CS (Service Commercial) district, read by title only, and waiving further reading. It was moved by Mayor Pro Tem Alves, seconded by Council Member Mills, and carried unanimously to adopt Ordinance 709 amending Title 17 of the Exeter Zoning Ordinance by adding text amendment to Section 17.26.04 C-S to add "Martial Arts Studio" to the conditionally permitted use list of the CS (Service Commercial) district, read by title only, and waiving further reading. City Attorney Julia Lew gave second reading of the Ordinance by Title only.
5. Discussion and consideration of adopting Resolution 2022-40 for grant application, acceptance and execution for the Exeter-Tooleville Emergency Intertie and Water System Improvement Project and provide staff direction regarding development of the potential Tooleville consolidation. City Administrator Adam Ennis provided a report for Council's review and consideration. Council posed questions, Mr. Ennis provided a response thereto. Following discussion, it was moved by Council Member Hails, seconded by Mayor Pro Tem Alves, and carried unanimously to adopt Resolution 2022-40 a:
J. CITY COUNCIL ITEMS OF INTEREST
Council discussed items of interest.
K. CITY ADMINISTRATOR/DEPARTMENT COMMENTS
City Administrator Adam Ennis provided a brief update on City projects and upcoming events in the City.
L. ADJOURN REGULAR MEETING
Mayor Sally adjourned the regular meeting at 8:16 p.m.
Hilary Robello, Deputy City Clerk
AVENU FINANCIAL SYSTEM CITY OF EXETER
9/20/2022 14:39:14 Payments for Publication GL335R-V08.17 PAGE Approved on 9/08/2022 for Payments Through 9/08/2022
Vendor Name Description Amount
AAA QUALITY SERVICES 105.30
22/23 MBERSHP RENEWAI 222.00
BALDWIN HEADING & COOLING 195.69
367.00
BOOT BARN INC. PULL ON WOLVERINE WORK B 995.64
CALIFORNIA BUSINESS MACHINES ADMIN-09/8-10/7/22 BASE 164.64 350.00
DELTA LIQUID ENERGY, ARRO AUTO 465.25
182.00
MEDICAL CLINIC UTILIZATI 1,891.50
375.00
FRONTIER CALIFORNIA INC. 384.80
FUSION CLOUD SERVICES LLC 7/18-8/17/22 1,353.76
GOVERNMENT REVENUE SOLUTIONS 3,079.36
HARD HEAD VETERANS LLC 12,237.50
INTELLICARE MAINTENANCE 960.00
9,906.29
JORGENSEN COMPANY FIRE EXT ANNUAL MAINT. 522.43
DONATION PD MODLE VEHICI 500.00
OCTOBER-DECEMBER 2022 105.00
83.56 2,676.48
SHERWIN WILLIAMS COMPANY STREET PAINT 273.35
1,138.42
5,976.85
SOUTHERN CALIFORNIA EDISON 07/13-08/10/22 21,693.90
SOUTHERN CALIFORNIA GAS CO. 1600-07/28-08/26/22 171.01
REGULAR TWO TONE BADGE 800.89
183.31
68.96 UNIVAR SOLUTIONS USA INC 5,336.49
ABOVE GRADE SAMPLING STA 2,407.58
BELT KEEPERS, TIE BARS 168.10
1,000.00
TRNG PER DIEM-ACCOC. OF
** Final Totals... 76,587.06
AVENU FINANCIAL SYSTEM CITY OF EXETE
09/20/2022 14:39:14 Payments for Publication GLO60S -V08.17 RECAPPAG GL335R
FUND RECAP:
FUND DESCRIPTION DISBURSEMENTS
104 GENERAL FUND 28,866.28
105 WATER FUND 11,329.86
106 SANITATION FUND 897.57
107 SEWER FUND 2,451.40
109 GAS TAX 18,029.89
116 LOW/MODERATE HOUSING FUND 700.00
129 CDBG CV2BA 1,976.48
138 POLICE DONATIONS 68.96
LANDSCAPE AND LIGHTING DISTR 29.12
149 MEASURE P 12,237.50
TOTAL ALL FUNDS 76,587.06
BANK RECAP:
BANK NAME DISBURSEMENTS
BANK BANK OF THE SIERRA 76,587.06
TOTAL ALL BANKS 76,587.06
AVENU FINANCIAL SYSTEM CITY OF EXETER
10/04/2022 8:50:37 Payments for Publication GL335R-V08.17 PAGE Approved on 9/22/2022 for Payments Through 9/22/2022
Vendor Name Description Amount
ADVENTIST HEALTH TULARE AUG LAB FEES
AFLAC
AXON ENTERPRISE, INC.
B.S. & E. CO INC
BASIC SEPT COBRA FEE
BEN-E-LECT INC.
BLUE SHIELD OF CALIFORNIA 10/01-10/31/2022
CALIFORNIA BUSINESS MACHINES
CENTRAL CAL WATERWORKS, INC
CENTRAL VALLEY SWEEPING LLC AUG 2022 STREET SWEEPING
COLLINS & SCHOETTLER
CORNEJO/ MICHAEL
CORRALEJO-DELVAL/ PABLO M.
CRAIGS AUTO PARTS
CSJVRMA 22/23 2ND QTR LIABILITY
DELTA LIQUID ENERGY, ARRO AUTO
DEPT OF JUSTICE
EWING IRRIGATION PRODUCTS INC PGV -201 2 PLST GLOBE/ANG EXETER MERCANTILE CO.
EXETER MOTORS, INC FILTER ASY-O
EXETER PLUMBING CO.
EXETER VETERANS
FASTENAL COMPANY
ROOTHILLS SUN-GAZETTE
FRESNO OXYGEN
GALANTE BROS. ENTERPRISES, INC EMERGANCY REPAIR SKIN PA
GOLDSTROM/ NORM AUG MILAGE REIMB
GOPHER GETTER
HAAKER EQUIP CO
HARMON/ JEFFERY DOUG
JORGENSEN COMPANY FIRE EXTINGUISHER SERVIC
KAWEAH PUMP, INC. GOULDS GS SERIES 65GPM 7
KENT M. KAWAGE, PH.D. PSYCH-EVAL MORENO
LAWRENCE TRACTOR CO
LEAF CAPITAL FUNDING LLC
LESLEY & ASSOCIATES
M&J TREE SERVICE
MCCORMICK KABOT JENNER LEW JULY GEN GOV
MOORE TWINING ASSOCIATES, INC CROE SO COPER PIPE
BRIDENTAL OVERAN OPTE CO.
QUAD KNOPF ENGINEERING 220130 SANITARY SEWER SY
RADAR SHOP/THE
RIVERA/ ELIZABETH
RIVERA/ GUILLERMO JR
SAN JOAQUIN VALLEY RAILROAD
SELF-HELP ENTERPRISES
AVENU FINANCIAL SYSTEM CITY OF EXETER
10/04/2022 8:50:37 Payments for Publication GL335R-V08.17 PAGE Approved on 9/22/2022 for Payments Through 9/22/2022
Vendor Name Description Amount
SEQUOIA APPAREL, VINYL BANNER- YOUTH FOOT . 11
265/60R17 GOODYEAR 2, 700. 71
0041B-8/11-9/11/22 36,916.71
265/60R17 EAG RSA
AUG PERSON SEARCH
00 197.80
OCT MORE BRING STA 1,602.73
VALLEY EXPETEC 8,978.96
14,099.00
92 RIZON WIRELE PW- 07/29-08/28/22 228.06
TRANSFER LOAD OF DG 2,329.81
YOUNG/SYDNEY 32.73
21369 E PLAM PAVE INV 1,636.25
** Final Totals... 358,571.01
AVENU FINANCIAL SYSTEM CITY OF EXETE
10/04/2022 08:50:37 Payments tor Publication GL060S-V08.17 RECAPPAG:
GL335R
FUND RECAP:
DESCRIPTION DISBURSEMENTS
104 ENERAL FUN 85,352.18
105 NATER FUN 58,440.46
106 SANITATION FUND 613.32
107 SEWER FUND 30,936.28
109 GAS TAX FUND 17,859.74
111 BG REVOLVING FUI 1,744.00
113 RANSPORTATION FUN 4,125.53
115 TRANSIT FUND
116 LOW/MODERATE HOUSING FUND 1,691.70
121 INSURANCE FUND 140,339.38
131 MEASURE R 2,964.63
137 COPS 4, 000.00
140 LANDSCAPE AND LIGHTING DISTR 458.18
TOTAL ALL FUNDS 358,571.01
BANK RECAP:
DISBURSEMENTS
BANK NAME
BANK BANK OF THE SIERRA 358,571.01
TOTAL ALL BANKS 358,571.01
AVENU FINANCIAL SYSTEM CITY OF EXETER
10/04/2022 14:51:31 Payments for Publication GL335R-V08.17 PAGE Approved 9/30/2022 for Payments Through 9/30/2022
Vendor Name Description Amount
DELTA LIQUID ENERGY, ARRO AUTO 210.08
ELITE CORPORATE MEDICAL SERV MEDICAL CLINIC 55
JULY 2022 SUPP 9,037.50
ALL VALVE-3/4 172.25
345.79
FIRE EXTINGUISHER SERV 489.37
20,996.52
KAWAGOE, PH.D. PSYCH EVAL MORENO 325.00
TOWNS COUNTY CAR WA AUG GEN ADMIN 250.00
134.97
US BANK N.A. AUG CUSTODY CHARGE 38.25
** Final Totals... 34,756.27
AVENU FINANCIAL SYSTEM CITY OF EXETE
10/04/2022 14:51:31 Payments for Publication GL060S-V08.17 RECAPPAG GL335R
FUND RECAP:
FUND DESCRIPTION DISBURSEMENTS
104 GENERAL FUND 5,509.20
105 WATER FUND 4,508.27
106 SANITATION FUND 2,259.39
107 SEWER FUND 22,206.38
109 GAS TAX FUND 23.03
116 LOW/MODERATE HOUSING FUND 250.00
TOTAL ALL FUNDS 34,756.27
BANK RECAP:
NAME DISBURSEMENTS
BANK
BANK BANK OF THE SIERRA 34,756.27
TOTAL ALL BANKS 34,756.27
PAYROLL RUN-09/15/2022 09.42.49 PAGE
CHECK FORM STUB CHECK RESISTER PR311R-V14.12 paymate
DIRECT DO 15 3200-9/13/2022 CHECK DATE 9/16/2022
CHECK CHECK EMPLOYEE/BANK/VENDOR CHECK
NUMBER AMOUNT NAME CODE SEQ
36.5 CLOGER POLICE OFFICER AS $ CLOCEA 1 VENDOR STUB ONLY
70. 0 1 VENDOR STUB ONLY
156.90 EXETER POLICE OFFICER AS 3A ONLY
4,668.22 ENNIS/ ADAM 206
2,865.39 ONEAL/SHONNA N 203 ONLY
2,279.76 ROBELLO/HILARY 709 NLY
1,319.98 CARTER/AMY JO 502 ONLY
1,516.10 CORREA/BIANCA 630 NLY
1,319.88 GARVER/ELIJAH 712 • ONLY
846.87 LARSON/MERRI 713 ONTY
3,223.76 PARK MOORE/YUN GYUNG 703 ONLY
529.42 SANCHEZ/CESILIA 307 ONLY
1,432.60 SANTOYO/AIDE G 710 , ONLY
2,249.96 FRANCO/EEKHONG 304 ONLY
1,610.87 PHILLIPS/ZACHARY 705 ONT.Y
1,465.91 CARRETERO/VANESSA 402 ONLY
4,791.05 CULLUM/TRENT 444 ONLY
2,672.43 DURKEE/MARK 404 ONLY
2,310.15 GIEFER/MICHAEL DAVID 438 ONLY
3,442.16 HALL/JOHN T 406 ONLY
2,055.73 HAYES/CURTIS W 437 ONLY
2,653.15 INGLEHART /BRETT A 411 ONLY
1,732.27 LUJAN/ JOSHUA 715 ONLY
2,506.56 MARX/CHRIS 706 ONT V
3,236.66 PHELPS/KEVIN M 429 ONT. V
1,509.83 SHIELDS/ ZION 708 ONI. Y
1,728.85 VILLARREAL/ISIDRO 707 ONLY
2,592.66 YARBER/ ISABEL 422 ONLY
1,328.80 ALDRIDGE/GARY 618 ONT V
1,435.88 ARROYO/MARIE 623 ONLY
1,700.85 BRASSFIELD/TRAVIS 619 ONLY
1,713.59 ESPINOLA/DANIEL M 602 ONLY
61.50 GOLDSTROM /NORMAN 629 ONT Y
1,628.70 HUGGINS/KYLE AARON 621 ONLY
2,985.08 607 ONLY
344.92 QUALLS /DAYMON 607 ONLY
1,840.03 RAMIREZ/JUAN 608 ONLY
354.90 WENDT/EDDIE 626
1,272.51 MILLAN/MARCU: 622
957.80 MILLAN/MARCU 622
1, 154.99 MILLER/JAMES 624
1,260.24 QUIROZ/PATRICK P 512
1, 785.09 PRIDEAUX/TRACI 448
AYROLL HECK FOR SO CHECK RESTEE UN - 09/15/202 09.42.45 PAGE R311R-V14.1 Paymate
DERE POST 15 39/20 0- 9/12/2022 CHECK DATE 9/16/2022
CHECK CHECK EMPLOYEE/BANK/VENDOR CHECK
NUMBER AMOUNT NAME CODE SEQ
TOTALS FOR CHECK FORM: STUB
NEGOTIABLE CHECKS COUNTS
*EMPLOYEE CHECKS
*VENDOR CHECKS
*BANK CHECKS
**TOTAL NEGOTIABLE CHECKS
OTHER CHECKS
0.00 *MANUAL CHECKS
0.00 *CANCELLED CHECKS • 0
0.00 **TOTAL FOR CHECK FORM
NON -NEGOTIABLE CHECKS
76,385.10 *DIRECT DEPOSIT STUBS
863.40 *VENDOR DIR DEP STUBS
PAYROLI RUN-09/28/2022 13.45.48 PAGE
CHECK FORM. STUB CHECK REGISTEF PR311R-V14.12 Paymate
PERIOD 3 DATING 9/12/2022- 9/25/2022 CHECK DATE 9/30/2022
DIRECT DEPOSIT IS TURNED ON
CHECK CHECK CHECK
NUMBER AMOUNT NAPLOYEE/BANK/VENDOR CODE
SEQ
50547 136.50 CLOCEA 1 VENDOR STUB ONLY
50548 570.00 CLOCER POLICE OFFICER AS 5 1 VENDOR STUB
ONLY
50549 156.90 EXETER POLICE OFFICER AS 3A ONLY
50550 4,668.22 ENNIS/ADAM 206
50551 2,865.39 ONEAL/SHONNA N 203
50552 2,279.76 ROBELLO/HILARY 709
50553 1,333.17 CARTER/AMY JO 502
50554 1,516.10 CORREA/BIANCA 630
50555 1,319.88 GARVER /ELIJAH 712
50556 1,091.15 LARSON/MERRI 713
50557 3,223.76 PARK MOORE/YUN GYUNG 703
50558 542.71 SANCHEZ/CESILIA 307
50559 1,476.62 SANTOYO/AIDE G 710
50560 2,249.96 FRANCO/EEKHONG 304
50561 1,610.87 PHILLIPS/ZACHARY 705 HHHHHHHHHHĂAH
50562 1,522.55 CARRETERO/VANESSA 402
50563 2,811.05 CULLUM/TRENT 444
50564 3,547.87 DURKEE /MARK 404
50565 2,285.34 GIEFER/MICHAEL DAVID 438
50566 1,391.32 GRAY/DAIZY 717
50567 3,442.16 HALL/JOHN T 406
50568 1,952.01 HAYES/CURTIS W 437
2,653.15 INGLEHART/BRETT A 411
BELELELEEECEEBEEBEEECEEELEEE ELLE CELEEBEREE
1,732.27 LUJAN / JOSHUA 715
1,852.67 MARX/CHRIS 706
3,236.66 PHELPS/KEVIN M 429
1,428.86 SHIELDS/ ZION 708
1,769.17 VILLARREAL/ISIDRO 707
2,592.66 YARBER/ISABEL 422
1,236.29 ALDRIDGE/GARY 618
1,435.88 ARROYO/MARIE 623
1,518.39 BRASSFIELD/TRAVIS 619
1,713.59 ESPINOLA/DANIEL M 602
260.37 GOLDSTROM/NORMAN 629
1,628.70 HUGGINS /KYLE AARON 621
2,985.08 QUALLS /DAYMON 607
1,369.41 RAMIREZ/JUAN 608
579.05 WENDT/EDDIE 626
350.25 ROWLETT/JACOB 718 HAAAAAAAAMA
1,657.26 MILLAN/MARCUS 622
1,532.52 MILLER/JAMES 624
333.17 MIRWALD/PHILIP 625
1,260.24 QUIROZ/PATRICK P 518
2,682.61 PRIDEAUX/TRACI
AYROLL UN -09/28/202 13.45.48 PAGE
AYCK FORM STUBBIECE REGISTE Paymate
R311R-V14.1
PERIOD 3 DATING 9/12/2022-9/25/2022 CHECK DATE 9/30/2022
DIRECT DEPOSIT IS TURNED ON
CHECK CHECK EMPLOYEE/BANK/VENDOR CHECK
NUMBER AMOUNT NAME CODE SEQ
TOTALS FOR CHECK FORM: STUB
NEGOTIABLE CHECKS COUNTS
*EMPLOYEE CHECKS
*VENDOR CHECKS 0
*BANK CHECKS
**TOTAL NEGOTIABLE CHECKS
OTHER CHECKS
0.00 *MANUAL CHECKS • 0
0.00 *CANCELLED CHECKS
0.00 **TOTAL FOR CHECK FORM
NON -NEGOTIABLE CHECKS
76,938.14 *DIRECT DEPOSIT STUBS
863.40 *VENDOR DIR DEP STUBS
City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: H4 X City Council
Wording for Agenda: Adopt Resolution 2022-41 Re-Authorizing Remote Teleconference Meetings of all Legislative Bodies of the Regular Session:
City of Exeter through November 10, 2022, Pursuant to Brown Act X Consent Calendar Provisions (AB 361) due to continued State Declaration of Regular Item _ Public Hearing
Emergency.
Review:
Submitting Department: Administration
Contact Name: Adam Ennis/Shonna Oneal
City Administrator
Phone Number: (559) 592-4539 or (559) 592-9244 (Initials Required) Email: [email protected] or [email protected] Department Recommendation:
Staff recommends that the City Council consider and adopt Resolution 2022-41 Re-Authorizing Remote Teleconference Meetings of all Legislative Bodies of the City of Exeter through November 10, 2022, Pursuant to Brown Act Provisions (AB 361) due to continued State Declaration of Emergency.
Summary:
On September 13, 2022, the City Council adopted Resolution 2022-38 Reaffirming Its Proclamation of a Local Emergency, Re-Ratifying the Proclamation of a State of Emergency by AB 361 issued on September 16, 2021, and Re-Authorizing Remote Teleconference Meetings of all Legislative Bodies of the City of Exeter through October 13, 2022, pursuant to Brown Act Provisions. This resolution established the criteria necessary for the City to continue conducting teleconference meetings without compliance with the requirements of Government Code section 54953(b)(s) for a period of thirty (30) days. On March 22, 2022, the Council provided staff with direction to review a hybrid meeting option allowing some members to return in person and some to attend virtually as needed.
Pursuant to AB 361, the City Council must re-consider if a state of emergency exists in the City to continue remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of Government Code section 54953 every thirty (30) days. Currently, State and local officials continue to promote social distancing measures and City's conference chambers limited capacity could present imminent risk to health and safety of attendees if there is heavy attendance in the chambers. In addition, a State of Emergency has been proclaimed by the Governor of the State of California. By allowing some members of the legislative bodies to attend remotely and some in person, the City can continue to limit capacity in the City's small conference chambers.
Background:
During the past twenty-nine (29) months, the City Council and its Legislative bodies have been conducting teleconferencing meetings as allowed for pursuant to a series of executive orders, the most recent which expired September 30, 2021 (Executive Order N-08-021, issued June 11, 2021), which waived all physical presence requirements under the Brown Act as a means of limiting the spread of COVID-19. Recently adopted State law, AB 361, extends the authority of public agencies to conduct meetings by teleconference, including video conference, without compliance with all of the Brown Act's limitations on such meetings, while the state of emergency resulting from the COVID-19 pandemic and accompanying recommendations for social distancing remain in place.
Initial reliance on AB 361 requires the following:
1) There must be a proclaimed state of emergency; and
2) One of the following circumstances exist:
a. State or local officials have imposed or recommended measures to promote b. The legislative body has determined by majority vote that, as a result of the emergency, meeting in person would present imminent risk to the health or safety of attendees. See Government Code Section 54953(e) (1).
Both these conditions are presently satisfied. The Governor's State of Emergency Declaration, issued on March 4, 2020, remains in place today. The City's declaration of local emergency issued March 24, 2020, remained in place until March 2022. However, the size of the City's conference chambers could be a potential imminent risk to health and safety measures because State and local agencies continue to recommend social distancing as one of the measures to reduce the spread of COVID-19 and heavy attendance could limit the ability to maintain social distance.
Once the initial invocation of AB 361 is made, continued reliance on AB 361 for subsequent meetings requires the following:
1) Either the proclaimed state of emergency remains active or state or local officials have imposed or recommended measures to promote social distancing; and 2) Not later than 30 days after teleconferencing for the first time under the AB 361 rules, and every 30 days thereafter, the legislative body, by majority vote, finds that it has reconsidered the circumstances of the emergency and at least one of the following circumstances exists:
a. The state of emergency continues to directly impact the ability of the members to meet safely in person; or
b. State or local offices continue to impose or recommend measures to promote social distancing.
If a public agency invokes AB 361, the notice and participation requirements for teleconferenced meetings are as follows:
1) Each notice of the meeting and agenda must identify the means by which members of the public may access the meeting and offer public comment by either a call-in option or an internet-based service option;
2) Teleconferenced meetings must be conducted in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body;
3) Public comments cannot be required to be submitted in advance of the meeting (though this may remain an option);
4) The public must be able to attend the meeting via call-in option or internet-based service option;
5) The public must have an opportunity to address the legislative body directly and offer comment in real time via call-in option or internet-based service option; 6) If there is a disruption that prevents the public agency from broadcasting the meeting using the call-in option or internet-based service option, or if there is a disruption within the public agency's control that prevents members of the public from offering public comments using the call-in option or internet- based service option, the legislative body shall take no further action on items appearing on the agenda until public access to the meeting via the call-in option or internet-based service option is restored; and 7) Where, as in Exeter, the legislative body does not provide a timed public comment period but takes public comment separately on each agenda item, it shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to be recognized for the purpose of providing public comment. See Government Code Section 54953(e)(2).
In light of AB 361, the continuing State COVID-19 emergency, the continuing recommendations by the State and local officials of social distancing as one mechanism for preventing the spread of COVID-19, and the continued threats to health and safety posed by indoor public meetings with large attendance, staff recommends that Council adopt the proposed resolution making the findings required to continue AB 361. In addition, continuing to follow social distancing guidelines will assist in minimizing the potential for outbreaks in the organization and subsequent scrutiny and actions taken by Cal OSHA based on their current requirements.
Doing so will allow City Council and its legislative bodies meetings to continue to occur by teleconference, but allow for in-person attendance as well, without compliance with the teleconferencing requirements set out in Government Code Section 54953(b)(3) that would otherwise apply. The procedures currently set up for City Council meetings, which provide for public attendance and comment through a call-in or internet-based service option, satisfy the requirements of AB 361.
Continued reliance on AB 361 will require the Council to adopt a new resolution making required findings every 30 days.
Fiscal Impact: None.
Prior Council/Board Actions: On March 24, 2020 the Council adopted Resolution 2020-12 proclaiming the existence of a local emergency due to the novel coronavirus (COVID-19).
On May 19, July 14, September 8, November 2 and December 8, 2020, and January 26, March 23, May 11, June 22, August 10, September 28, November 9, December 14, 2021, February 10 and March 8, 2022, Council approved to continue the state of emergency established by Resolution 2020-12 due to the Novel Coronavirus (COVID-19) for an additional 60 days. On September 28, October 26, November 18, December 14, 2021, January 11, February 10, March 8, April 26, May 24, June 14, July 12, August 9, 2022 and August 23, 2022 the Council adopted Resolutions 2021-21, 2021-24, 2021-29, 2021-31, 2022-02, 2022-03, 2022-05, 2022-09, 2022- 17, 2022-21, 2022-26, 2022-34, 2022-35 and 2022-38 authorizing remote teleconferencing meetings pursuant to AB361.
Attachments: 1.) Resolution 2022-41 Re-Authorizing Remote Teleconference Meetings of all Legislative Bodies of the City of Exeter through November 10, 2022, Pursuant to Brown Act Provisions (AB 361) due to continued State Declaration of Emergency.
Recommended motion to be made by Council/Board: 1 move to adopt Resolution 2022-41 as presented.
RESOLUTION 2022-41
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EXETER RE-AUTHORIZING REMOTE
TELECONFERENCE MEETINGS OF ALL LEGISLATIVE BODIES OF THE CITY OF EXETER THROUGH NOVEMBER 10, 2022, PURSUANT TO BROWN ACT PROVISIONS [AB 361] DUE TO
CONTINUED STATE DECLARATION OF EMERGENCY
WHEREAS, the Exeter City Council is committed to preserving and nurturing public access and participation in meetings of all City of Exeter legislative bodies; and, WHEREAS, all meetings of the City of Exeter legislative bodies are open and public, as required by the Ralph M. Brown Act (Cal. Gov. Code 54950-54963), so that any member of the public may attend, participate, and watch the City of Exeter's legislative bodies conduct their business; and, WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(s), subject to the existence of certain conditions; and,
WHEREAS, a required condition is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and,
WHEREAS, a proclamation is made when there is an actual incident, threat of disaster, or extreme period to the safety of persons and property within the jurisdictions that are within the City's boundaries, caused by natural, technological, or human-caused disasters; and, WHEREAS, it is further required that State or local officials have imposed or recommended measures to promote social distancing, or, the legislative body meeting in person would present imminent risks to the health and safety of attendees; and, WHEREAS, the Exeter City Council previously adopted Resolution 2021-21 on September 28, 2021, Resolution 2021-24 on October 26, 2021, Resolution 2021-29 on November 18, 2021, Resolution 2021-31 on December 14, 2021, Resolution 2022-02 on January 11, 2022, Resolution 2022-03 on February 10, 2022, Resolution 2022-05 on March 8, 2022, Resolution 2022-09 on April 26, 2022, Resolution 2022-17 on May 24, 2022, Resolution 2022-21 on June 14, 2022, Resolution 2022-26 on July 12, 2022, Resolution 2022-34 on August 9, 2022, Resolution 2022-35 on August 23, 2022 and Resolution 2022-38 on September 13, 2022 finding that the requisite conditions exist for the legislative bodies of the City of Exeter to conduct remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of section 54953; and WHEREAS, as a condition of extending the use of provisions found in section 54953(e), the Exeter City Council must reconsider the circumstances of the state of emergency that exists in the City, and the Exeter City Council has done so; and
WHEREAS, emergency conditions persist in the City, specifically, a State of Emergency has been proclaimed by the Governor of the State of California; and, WHEREAS, State and local officials continue to promote social distancing measures and City's conference chambers limited capacity could present potential imminent risk to health and safety of attendees if there is heavy attendance in the chambers; and, WHEREAS, the City does hereby accept and acknowledge the proclamation of emergency by the Governor of the State of California; and,
WHEREAS, as a consequence of the proclamation of emergency issued by the Governor of the State of California and the limited size of the Council chambers to conduct business, the City does hereby find that the legislative bodies of the City of Exeter shall continue to permit council Resolution 2022-41
AB 361 Emergency Teleconferencing
members, staff, and the public, and their election, to attend meetings without compliance with paragraph three (3) of subdivision (b) of Government Code section 54953, as authorized by subdivision (e) of section 54953, and that such legislative bodies shall continue to comply with the requirements to provide the public with access to the meetings as prescribed in paragraph two (2) of subdivision (e) of section 54953; and,
WHEREAS, the City will give notice of the meeting and post agendas, as described, to allow members of the public to access the meeting and address the legislative body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the legislative body; and,
WHEREAS, the legislative body will not take any further action on agenda items when there is a disruption which prevents the public agency from broadcasting the meeting, or in the event of a disruption within the local agency's control which prevents members of the public from offering public comments, until public access is restored; and,
WHEREAS, the legislative body will not require public comments to be submitted in advance of the meeting and specifies that the legislative body must provide an opportunity for the public to address the legislative body and offer comment in real time; and, WHEREAS, the legislative body will not close the public comment until the public comment period has elapsed or until a reasonable amount of time has elapsed as specified.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Exeter as follows:
SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference; and,
SECTION 2. Ratification of Governor's Proclamation of a State of Emergency. The City hereby accepts and acknowledges the Governor of the State of California's Proclamation of March 2, 2020 and finds the City's conference chambers limited capacity could present imminent risk to health and safety of attendees if there is heavy attendance in the chambers; and, SECTION 3. Remote Teleconference Meetings. The City Administrator and legislative bodies of the City of Exeter are hereby authorized and directed to take all actions necessary to carry out the intent and purpose of this Resolution including, conducting open and public meetings in accordance vith Government Code section 54953(e) and other applicable provisions of the Brown Act; and SECTION 4. Effective Date of Resolutions. This Resolution shall take effect immediately upon its adoption and shall be effective through November 10, 2022 Passed, approved, and adopted this 11th day of October 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: Mayor
-
Deputy City Clerk
City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: H5 X City Council
Wording for Agenda: Reject the liability claim for damages filed by Regular Session:
Monica Gibby on August 17, 2022 X Consent Calendar
Regular Item
Submitting Department: Administration Public Hearing
Contact Name: Shonna Oneal, City Clerk/HR Manager
Phone Number: 592-9244 Review:
Email: [email protected]
City Administrator
(Initials Required)
Department Recommendation:
Reject the liability claim for damages filed on August 17, 2022 by aBE Monica Gibby.
Summary/Background:
On August 17, 2022, the City received a claim for damages filed by Monica Gibby. The claim is for property damage in the amount of $2,000 to $4,000. The claim alleges that claimant's property was damaged on July 9, 2022, when the Exeter Police Department served a valic search warrant at the claimant's residence.
The claim has been filed with Central San Joaquin Valley Risk Management Authority. The City's claims adjustor has recommended that the claim be rejected and staff be directed to notify the claimant through a Notice of Rejection of Claim, as there are immunities afforded to public agencies in these circumstances.
Fiscal Impact: None.
Prior Council/Board Actions: None.
Attachments: None.
Recommended motion to be made by Council/Board: Reject the liability claim for damages filed by Monica Gibby on August 17, 2022
City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: H6 X City Council
Wording for Agenda: Reject the liability claim for damages filed by Regular Session:
Bryan Payne on August 26, 2022.
X Consent Calendar
Regular Item
Submitting Department: Administration - Public Hearing
Contact Name: Shonna Oneal, City Clerk/HR Manager
Phone Number: 592-9244 Review:
Email: [email protected]
City Administrator
(Initials Required)
Department Recommendation:
Reject the liability claim for damages filed by Bryan Payne on August 26, 2022.
Summary/Background:
On August 26, 2022, the City received a claim for damages filed by Bryan Payne. The claim is for property damage in the amount of $5,918.71. The claim alleges that claimant's vehicle was damaged on August 10, 2022, when he was traveling south on Filbert and struck a pothole.
The claim has been filed with Central San Joaquin Valley Risk Management Authority. The City's claims adjustor has recommended that the claim be rejected and staff be directed to notify the claimant through a Notice of Rejection of Claim, as there is no indication that the City had prior notice of the pothole.
Fiscal Impact: None.
Prior Council/Board Actions: None.
Attachments: None.
Recommended motion to be made by Council/Board: Reject the liability claim for damages filed by Bryan Payne on August 26, 2022.
City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: H7 X City Council
Regular Session:
Wording for Agenda: Affirm $19,616.30 in emergency repairs X Consent Calendar performed by Kaweah Pump, Inc. of Visalia, CA on the fresh water _Regular Item well located at the City's Wastewater Treatment Plant. Public Hearing Submitting Department: Public Works Review:
Contact Name: Daymon Qualls City Administrator
Phone Number: 559.592.3318 (Initials Required)
Email: [email protected]
Department Recommendation:
Staff recommends that Council affirm $19,616.30 in emergency repairs performed by Kaweah Pump, Inc. of Visalia, CA on the fresh water well located at the City's Wastewater Treatment Plant.
Summary/Background:
After a malfunction of the water well located at the City's Wastewater Treatment Plant, public works crews determined that the pump equipment had catastrophically failed and could not be re-started
Due to the urgency of this situation, Kaweah Pump Company was contacted to evaluate the pump equipment and make the necessary repairs. Their evaluation concluded that the pump was inoperable and needed to be replaced. The pump, which is located approximately 130' below ground level, was pulled and subsequently replaced. It was cost effective to replace the top drive equipment with a submersible pump. This time sensitive work was approved under the City Administrator's emergency purchasing authority.
Fiscal Impact: This equipment replacement is funded from the wastewater's 107.441.012.001 "main plant" enterprise fund expenditure account.
Prior Council/Board Actions: None
Attachments: Invoice from Kaweah Pump, Inc.
Recommended motion to be made by Council/Board: I move to affirm $19,616.30 in emergency repairs performed by Kaweah Pump, Inc. of Visalia, CA on the fresh water well located at the City's Wastewater Treatment Plant.
107.441.012.001
15499 AVE 280 Invoice
Kaweah VISALIA, CA 93292
Pump, Inc. PHONE (559) 747-0755
FAX (559) 747-3881 Invoice #
GENERAL ENGINEERING CONTRACTOR PER ADAM ENNIS, THIS INVOICE 7/30/2022 54430 LICENSE #826935
IS APPRODED FOR PAYMENT UNDEE HIS EMERLeNCy PuecisiNe MutibRity.
CITY OF EXETER I WILL TAKE AN ITEM YO COUNCILTO
PO BOX 237
EXETER, CA 93221 AFFeM WORK/ PAYMeNT;
Please Deduct $ 353.00
If Paid By 9/2/2022
WE ACCEPT THESE MAJOR CREDIT CARDS
WE ACCEPT: VISA
Mastercatc
P.O. No. Terms Project
LOCATION: WWTP UPON RECEIPT 22-06-001 W...
Quantity Description Rate Amount
GOULDS GS SERIES 65GPM 7.5HP HC WET END 26STG 4" EA 3,692.85T PUMP -
1 7-1/2HP 4" MOTOR 460V 3PH FRANKLIN EA 2,408.33T
200 10-4 SUB CABLE FT 536.67T
1 10" X 2" SOLID TOP WELL SEAL EA 206.25T
2 4" GALV. T&C PIPE FT 30.67T
4 1/2" 1398 GRAPHITED PACKING FT 20.87T
189 2" GALV T&C PIPE FT 2,312.78T
1 4' PVC DRESSER EA 98.98T
1 #10-12-14 WIRE A4C CLEAR SPLICE KIT EA 4.25T
TOTAL MATERIAL 9,311.65
Mobilized to jobsite. Pulled turbine set material aside. Design new pump. Ordered material. Mobilized to jobsite. Installed submersible connected until clean. Connected and pressurized system. Job complete.
Well diameter 10'
Water level 145'
Pump set 160'
Well depth 175'
TOTAL LABOR 9,583.00
CA SALES TAX (7.75%) 721.65
ERMS: DUE UPON RECEIP Total
1/2% PER MONTH LATE FEE ON ALL OVERDUE BALANCI $19,616.30 BILLING QUESTIONS CALL: 559-747-0755
Payments/Credits $0.00
PLEASE NOTE: A CONVENIENCE FEE OF 3% WILL BE
ASSESSED TO EACH DEBIT/CREDIT CARD TRANSACTION. Balance Due $19,616.30 City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: 11 X City Council
Regular Session:
Wording for Agenda: Consideration to authorize the HOME Consent Calendar Investment Partnership loan in the amount of $952,381 to be X Regular Item assumed by Srinivasula Polimera; and to authorize the City _Public Hearing Administrator to execute a loan subordination agreement in the amount of $900,000; and to affirm forgiveness of the Review:
Redevelopment Loan in the amount of $35,000 in accordance with the Promissory Note; and to authorize the City Administrator to City Administrator execute the necessary documents to transfer the loans and (Initials Required) regulatory agreements to Srinivasula Polimera, for the apartment complex at 211 North F Street.
Submitting Department: Administration & Finance
Contact Name: Adam Ennis, City Administrator
Rainbow Moore, Finance Director/Treasurer
Phone Number: (559) 592-2755
Email: [email protected]
Department Recommendation:
Staff recommends that, for the 211 North F Street apartment complex, the City Council:
1. Authorize the HOME Investment Partnership loan in the amount of $952,381 to be assumed by Srinivasula Polimera contingent upon accepting the Declaration of the Restrictive Covenant prepared by the City and;
2. Authorize the City Administrator to execute a loan subordination agreement in the amount of $900,000, allowing Sprinivasula Polimera to proceed with mortgage refinancing of a HOME loan contingent upon obtaining a property appraisal report to show the property value exceeding the overall loan amount of $1,852,381 and;
3. Affirm forgiveness of the Redevelopment Loan in the amount of $35,000 and;
4. Authorize City Administrator to execute the necessary documents to transfer the loans and regulatory agreements to Srinivasula Polimera
Summary/Background:
On June 17, 1996, CSM Development Properties (CSMDP) received two zero percent loans from the City for the reconstruction of an eighteen (18) unit affordable housing rental project in the City located at 211 N F Street. One of the loans was funded with HOME Investment Partnership (HOME) funds in the amount of $952,381, and the second, for $35,000, was funded from Redevelopment funds.
Both loans are subject to provisions of the Development Agreement (Attachment 1) and the Regulatory Agreement (Attachment 2) which govern, regulate, and restrict development and construction of the project and establish a fifty-five (55) year affordability period.
The HOME Loan is a fifty-five (55) year note with an annual payment to the City of 50% of all residual receipts over $12,000 as demonstrated by the annual financial statement. The note is due in 2051 and has a current balance of $952,381.
The Redevelopment Loan of $35,000 is to be forgiven as specified in the Exeter Redevelopment Agency Promissory Note (Attachment 5):
In consideration of $35,000 from the Exeter Redevelopment Agency, the developer will not sell the Development for 10 years. In the event that the Development is held by the Borrower for 10 years, the entire $35,000 shall be forgiven. If the Development is sold within 10 years, the pro rata remainder of the full $35,000 is due and payable upon transfer of title.
Earlier this year, the City was contacted by Mr. Kenny Walker, one of the partners of the CSMDP, to express his intent to sell the property to Srinivasula Polimera. The City since has worked with the Department of Housing and Community Development (HCD), Self Help Enterprise, and the current property owner to determine the best course of action. The City quickly discovered that resuming the monitoring visits, which was abruptly discontinued in 2017, to bring the loan to compliance was a priority. The City since contracted Self Help Enterprise to resume the required monitoring visits. The loan was brought back to compliance on September 14, 2022 when Self Help Enterprise performed the site visit and the desk-review of the records.
As required by the HOME grant agreement, the following seven areas were inspected and verified without any major exceptions.
1.) Certification of tenant income and assets;
2.) Occupancy Standards;
3.) HOME Rents, Utility Allowance, rent Increase;
4.) Residential Lease;
5.) Affirmative Marketing, Fair Housing, Section 504;
6.) Property Standards;
7.) Unit Inspection
The City also worked with the legal team to perform thorough review of the existing agreements to further determine that recommending the loan transfer and the loan subordination approval is a better option over the alternative: turning the property over to a commercial buyer. The current loan is assumable with the prior written consent of the City as specified in the HOME Promissory Note (Attachment 4):
24.a The Borrower shall not make any sale, encumbrance, hypothecation, assignment, refinancing, pledge, conveyance, or transfer in any other form of the Property or the Development or of any of its interest therein, except with the prior written approval of the City.
To ensure buyer's commitment towards complying with the HCD Regulatory Agreement, the City is requiring Mr. Polimera agree to the Declaration of the Restrictive Covenant.
Additionally, staff reviewed the $900,000 loan subordination request (Attachment 6) from the Bank of the Sierra. Currently, the property is estimated to be valued at $2,150,000. To minimize the financial risk to the City in the event that the current buyer defaults on the loan, staff recommends the Council approves the loan subordination request contingent upon receiving an appraisal report that confirms the appraisal value of the property exceeding the proposed loan value ($1,852,381). Furthermore, the subordination request includes City's request for the 25% cash contribution requirement which is another layer of risk mitigation measure. Staff further recommends that the Declaration of Restrictive Covenant remain independent of the loan subordination documents so that the affordable housing requirements remain in place even in the event of a future default. The staff also obtained a short bio of the new buyer (Attachment 8) to confirm his capacity for managing the low-income housing including his familiarity with the stringent regulatory requirements.
A noteworthy change to the original Regulatory Agreement is the number of the assisted unit requirements from 18 units (which represents the number of units in the entire property) to 11 units as confirmed in the First Amendment to the Regulatory Agreement (Attachment 7) dated August 13, 2007.
Housing insecurity (more than the food shortage) is a number one problem among the disadvantaged communities. Providing affordable housing is the key to reducing intergenerational poverty and increasing economic mobility. This property is one of the few low- income housing options that work within the City boundary. Self Help Enterprise (SHE) confirmed that of the 18 total units, 11 units were provided to low-income tenants following the regulatory agreement. The HOME program requires minimum 20% be reserved for the low- income families and the 11 units represent over 60%. Moreover, SHE verified that 8 of the 11 units (75%) were leased to very low-income households which is a term used by the HCD to describe households with income below 50% of the median household income for the area. Due to the HOME Regulatory Requirements, this property will be monitored annually for compliance to ensure safe low-income housing options for the area.
Mr. Walker, the current owner, submitted a letter (Attachment 9) outlining the benefits and possible concerns and remedies for this request to give us additional insights into the matter.
Fiscal Impact:. There is no immediate cost to the City associated with this request; however, the City will be placed in the first position for the new loan by agreeing to the loan subordination.
If the new owner defaults on the loan, the City will have to cure the loan. To mitigate the risk, staff recommends Council approves the subordination request only after the favorable property appraisal report in addition to the 25% (or $300,000) upfront cash payment by the buyer.
Prior Council/Board Actions:
Attachments:
Attachment 1: Development Agreement
Attachment 2: Regulatory Agreement
Attachment 3: Deed of Trust
Attachment 4: HCD Promissory Note
Attachment 5: Exeter RDA Promissory Note
Attachment 6: Bank of the Sierra Loan Subordination Request Summary Attachment 7: First Amendment to the Regulatory Agreement Attachment 8: Polimera Real Estate Bio
Attachment 9: CSM Letter
Recommended motion to be made by Council/Board: 1 move, for the apartment complex at 211 North F Street, to authorize the HOME Investment Partnership loan in the amount of $952,381 to be assumed by Srinivasula Polimera contingent upon acceptance of the Declaration of the Restrictive Covenant and; to authorize the City Administrator to execute a loan subordination agreement in the amount of $900,000 contingent upon obtaining a property appraisal report to show the property value exceeding the overall loan amount of $1,852,381 and; to affirm forgiveness of the Redevelopment Loan in the amount of $35,000 and; to authorize City Administrator to execute the necessary documents to transfer the loans and regulatory agreements to Srinivasula Polimera.
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME)
DEVELOPMENT AGREEMENT
LOAN NUMBER 95-HOME-0144
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this 3C day of May, 1996, by and between CSM Development Properties, a for profit California general partnership, (the "Borrower"), and the City of Exeter, (the "City"), a municipal corporation in the State of California.
Recitals
A. The Borrower is the owner of, or holder of a fee or leasehold estate in, the real property located at 211 North F. Street, Exeter, California (the "Property") • more fully described in Exhibit A attached hereto and made a part hereof.
Borrower desires to reconstruct and managing a rental housing project (the "Development").
B. The City conditionally received funding for a HOME Project under the provisions stated in the Standard Agreement with the State of California Department of Housing and Community Development, attached as Exhibit K C. The City has agreed to make a loan to Borrower in an amount not to exceed Nine hundred and fifty-two thousand three hundred and eighty-one dollars ($952,381.00) (the "Loan") pursuant to, and with funds provided under the Home Investment Partnerships Program (the "HOME Program") in accordance with Title California Code of Regulations, Sections 8200, et seg. and 24 CFR Part 92, the federal regulations governing the HOME Program commitment (together, the "HOME Regulations"). In consideration of the City's conditional commitment to make the Loan, the Borrower agrees to comply with and fulfill the terms of this Agreement and any amendments, exhibits and attachments hereto.
D. Borrower agrees to abide by all provisions of the Standard Agreement.
Borrower shall execute a promissory note to the City of Exeter (the "Notes") evidencing its obligation to repay the Loan and a deed of trust to the City of Exeter (the "Deed of Trust") conveying Borrower's interest in the Property as security for the Loan. The Notes and the Deeds of Trust shall substantially be in the forms attached to this Agreement as Exhibits F and G respectively.
Borrower agrees to be bound by all terms and conditions of the Notes and Deed of Trust. In further consideration of the Loan, Borrower has agreed to enter into a Regulatory Agreement (the "Regulatory Agreement"), which shall substantially be in the form attached to this Agreement as Exhibit H governing the rent, occupancy, management, and operation of the Development and to comply with the terms and conditions therein. The Notes, the Deed of Trust, the Standard Agreement, the Regulatory Agreement and this Agreement are collectively referred to herein as the "Loan Documents."
E. The Borrower is a for profit California general partnership which agrees to develop and manage the complex (the "CSM Development ") in accordance with HOME Regulations.
F. As an incentive for the project the City will provide in-kind contributions in the amount of $35,000. See Exhibit L for the breakdown of in-kind contributions.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are a part of the Agreement.
2. Development. The Borrower shall acquire and reconstruct on the Property a rental housing project with 18 (eighteen) residential rental units in accordance with the Plans and Specifications described in Exhibit B, attached hereto and made a part hereof. Borrower, and City hereby agree to the Scope and Distribution of Work, as set forth in Exhibit B.
Sources and Uses. The Borrower has received, or will receive, funds for the purpose of developing, constructing and permanently financing the Development in the amounts and from the sources identified in the chart; entitled "Sources and Uses of Funds," in Exhibit C, attached hereto and made a part hereof. All funds shall be used and secured in the manner specified in Exhibit C. Borrower agrees to comply with and satisfy all the terms and conditions imposed on it in connection with the sources of funding identified in Exhibit C.
4. Status of Borrower
- a. Borrower shall not permit or agree to any amendment or modification to the ownership of the property without the written approval of the City.
B. Where the Loan Documents or the HOME Regulations require the inclusion of a particular term or requirement in any contract between a third party, the Borrower shall ensure that all such terms or requirements are included as appropriate in contracts between the Borrower and such third party. For the limited purposes of this subdivision 4.b. only, any person or entity contracting with Borrower to provide goods or services in connection with the Development, nót including any construction or permanent lender, shall be deemed to be a subcontractor of the Borrower.
5. Term. Unless terminated sooner pursuant to Paragraph 4 this Agreement shall be effective on the dates set forth above and terminate on the date that is three years from the date that all of the following events have occurred:
a. The completion of the Development and acceptance by the City in accordance with the Plans and Specifications described in Exhibit B b. Submittal to the City of a Certificate of Occupancy for the Development by the local jurisdiction.
c. Submittal to the City a copy of the recorded Notice of Completion for the Development.
d. Submittal of all required lien waivers, or passage of the applicable statutory periods for filing mechanic, or other similar liens.
6. Representations and Warranties. Borrower represents and warrants to the City as follows:
a. Organization. Borrower is duly organized, validly existing and in good standing under the laws of the State of California and has the power an authority to own the Property and to own, develop, corstruct, operate and maintain the Development. The copies of the documents evidencing the organization of Borrower delivered to the City are trüe; - complete, and correct copies of the originals, as amended to the date of this Agreement.
b. Authority of Borrower. Borrower has full power and authority to execute and deliver this Agreement, the other Loan Documents and all documents or instruments executed, used and delivered, or to be executed and delivered, pursuant to this Agreement, and to perforin and observe the terms and provisions of all of the above:
c. Authority of Persons Executing Documents. The Loan Documents and all documents or instruments executed and delivered, or to be executed - and delivered, pursuant to this Agreement, have beer executed and lelivered by persons who are duly authorized to execute and delive he same of and on behalf of Borrower. All actions required unide orrower's organizational documents and applicable governing law fo he authorization, execution, delivery and performance of thi Agreement, the other Loan Documents and all documents or mass
instruments executed an delivered, or to be executed and delivered; -
pursuant to this Agreement, have been duly taken.
Valid Binding Agreements. The Loan Documents and all documents or instruments executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered, constitute legal, valid and binding obligations of Borrower and enforceable against Borrower in accordance with their respective terms.
e. No Breach of Law or Agreement. None of the execution or delivery of the Loan Documents or of any document or instrument executed and delivered, or to be executed or delivered, pursuant to this Agreemert, or the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any tatute, I rule or regulation, or any judgment, decree or order of ahi court, board, commission, or agency whatsoever binding on either Borrower or any provision of the organizational documents of Borrower, will conflict with or constitute a breach öf or ä default under any agreement to which Borrower is a party, or will result in the creation or imposition of any lien upon any assets or property of Borrower, other than liens approved by the City.
f. Compliance with Laws: Consents and Approvals. The Development Will comply with all applicable laws, ordinances, rules and regulations of federal (including but not limited to the HUD housing quality standards pursuant to 24 CFT 887.109, Section 504 of the Rehabilitation Act of 1973 as amended and the American Disabilities Act of 1992), state and local governments and agencies having jurisdiction over either the Borrower, the Property or the Development and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government ot agency. All permits, consents, permissions and licenses required by any federal, state or local government or agency to which Borrower, the - Property or the Development is subject, which may be necessary in relation to the Agreement or the acquisition, development, construction or ownership of the Development, at or priột tô the - commencement of construction, have been, or will be, obtained, arid none of such consents, permissions and licenses are subject to appeal or to conditions which have not been met.
g. Pending Proceedings. The Borrower is not in default under any law or regulations or under any order of any court, board, commission ot or in equity, before or by any court, board, commission or agericy whatsoever which might, if determined adversely to Borrower, naterally aftect Borrower's ability to acquire, construct or develop the Development or repay the Loan or impair the security to be giveri tr the City pursuant hereto.
h. Title to Property. Upon recordation of the Deeds of Trust, Borrower will have good and marketable title to the Property and there shall exist thereon or with respect thereto no mortgage (except for permanent private financing of up to $200,000), lien, pledge or othet encumbrance of any character whatsoever other than liens for current real property taxes and assessments not yet due and payable and other matters of record approved in writing by the City.
I. Financial Statements. The financial statements of Borrower and other financial data and information furnished by Borrower to the City fairly and accurately present the information contained therein: As of the date of the Agreement, there has not been any adverse, material change in the financial condition of Borrower or any general partner of Borrower from that shown by such financial statements and other data and information.
j. Adequacy of Loan. The amount of the Loan, together with any funds to be provided by the Borrower or to the Borrower from any other sources, is adequate as permanent financing for the Development in accordance with Exhibit C
k. Payment of Taxes. All federal, state, county and municipal taxes required to be paid by the Borrower or on account of the Property due and payable as of the date of the Agreement have been paid in full as of such date.
1. Availability of Utilities. All utilities necessary for the development and occupancy of the Development are available at or withir the boundaries of the Property and all steps necessary to assure that stich utility services will be available upon completion of the Development have been taken.
m. Hazardous Materials. Borrower has performed, or will perform, a due diligence review of the condition of the Property. All information -
the City in writing including but not limited to the soils reports anc ypography/flood zone reports regarding the condition of the Property. - Borrower has, or shall execute a Unsecured Environmental Indemnity Agreement, a copy of which is attached hereto and made a part hereof as Exhibit I. The obligation created thereunder shall be independerit of the obligations arising under the Notes and Deeds of Trust or any other agreements secured by the real property.
7. Changes in the Plans and Specifications/Change Orders. a. There shall be no change in the approved Plans and Specifications or the approved Scope and Distribution of Work without the prior written consent of the City. Change Orders shall be submitted on a form acceptable to the City, signed by the Borrower and the general contractor ("Contractor"") and such other parties as may be required by the City, Contractor's surety or other entity with authority to approve Change Orders. Change Orders shall be accompanied by standard AlA change form, and such other supporting documentation as the City may reasonably require. Borrower acknowledges that this review and approval process may result in delay.
b. To the extent that the City determines that a proposed Change Order will result in a cost increase above the approved construction budget, upon written demand from the City, Borrower shall provide evidence satisfactory to the City that adequate funds are available to pay such increased costs. Upon written demand by the City, Borrower shall deposit into a construction escrow account such funds as the City reasonably determines to bye necessary to ensure payment of the increase costs.
C. Within thirty (30) days after the filing of a notice of completion for the Development, Borrower shall provide to the City without cost a copy of the final as-built Plans and Specifications, including actual changes to the work, for the completed Development.
Project Design. For the performance of design and design supervision work on the Development, Borrower agrees to use the project designer identified in Exhibit B. Any successor to or substitute of the must be approved in writing by the City. Borrower shall not terminate the services of the designer without - written approval of the City.
Contractors and Subcontractor. For the performance of any construction work on the Development, Borrower agrees to use the general contractor identified in Exhibit B (the "Contractor"). Any successor to or substitute of the Contractor must be approved in writing by the City. The Borrower hereby certifies that the Contractor is not on the Federal Debarred list and is appropriately licensed by and in good standing with, the California State Contractors' License Board and agrees that the Borrower shall only contract with contractors, and shall ensure that the contractor and any successor thereto shall only contract with subcontractors, which are so licensed. -
10. Construction Contract. The Borrower shall enter into a written contract with the Contractor for the performance of the construction work as set forth in Paragraph 2 above. Said contract shall not be entered into by the Borrower prior to receiving the City's written approval of the Contractor and the form of the contract. The contract shall include an addendum in the form attached hereto as Exhibit D, "Construction Contract Addendum," which shall, among other things, require the Contractor to comply with the Davis-Bacon prevailing wage law set forth in 29 CFR Subtitle A, Parts 1, 3 and 5. Borrower shall not terminate or amend said construction contract, or addendum without the prior written approval of the City. Borrower shall monitor and enforce the terms and conditions of said contract, including the Construction Contract Addendum.
11. Construction Responsibilities. Borrower shall be solely responsible for all aspects of Borrower's business and conduct in connection with the Property:
and the Development, including, but not limited to, the quality and suitability of the Plans and Specification and the equipment used in the construction of the Development, the supervision of the work of construction, the qualifications, financial condition and performance of all architects, engineers, contractors an subcontractors of any tier, material suppliers, consultants and property managers, and the accuracy of all applications for payment and the proper application of all disbursements.
12. Delay. Borrower shall promptly notify the City in writing of any event causing delay or interruption of construction, in excess of (3) three working days, or the timely completion of construction for a period of (5) five working days beyond the scheduled completion date. The notice shall specify the particular work delayed and the cause and period of each delay.
13. Purchase of Materials Under Title Retention Agreement. The Borrower shall not purchase or install or permit to be purchased or installed any materials, equipment, fixtures or other part of the Development under any agreements or arrangements wherein the supplier or seller reserves or purports to reserve the right to remove or to repossess any such items or to consider them personal property after their incorporation into the Development, unless authorized in writing by the City.
14. Material Warranties. The Borrower shall procure from the Contractor al! warranty documents, including warranties on appliances and on building components (such as the roof and siding, etc.), and all service manuals and operating instructions pertaining to the Development
Disbursement of Funds
15. Use of Funds. Borrower agrees that Loan funds shall be expended only in accordance with the statutes, regulations and rules governing the HOME Program and only for the purposes and activities and in the amount set forth -
in this Agreement.
16. lisbursement or bake any . er act shader the Loan Ded to mas entes all of the following conditions precedent are satisfied a the time of such action:
a. All Loan Documents have been duly executed in a form acceptable to the City and where necessary acknowledged and suitable for recordation;
b. Borrower has obtained all required permits and approvals required for the lawful construction and occupancy of the units;
c. Borrower has obtained and will obtain all necessary insurance as described in Exhibit E:
d. There exists no Event of Default, as defined in this Agreement, or any other of the Loan Documents, or event, omission or failure of condition which would constitute a default or Event of Default after notice or lapse of time, or both that will not be cured concurrently with the funding of the Loan;
e. Borrower will obtain any other required permanent financing identified in Exhibit C (or equivalent, alternative financing approved by the City) and has adequate funding to operate the Development; f. Borrower shall have obtained for the City, at Borrower's expense, the Title Policy insuring the Deeds of Trust described in Paragraph 20 below;
g. Borrower have satisfied all requirements for receipt of the Loan in accordance with the HOME Regulations and the funds for the Loan are available to the City;
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h. Borrower has complied with all special conditions contained hereto in Exhibit I which are conditions precedent to the disbursement of funds; and
Borrower has completed, executed and submitted to the City, on a form provided by the City, a Request for Project Drawdown indicating Borrower's request for disbursement of proceeds of the Loan.
17. Disbursement. The City will make payments in accordance with the Scope and Distribution of Work. The City will disburse payment within 15 days of receipt of invoice.
18. Liens and Stop Notices. If a claim of lien is recorded affecting the Property or Development, or a bonded stop notice is served upon the City which affects the Loan or the Borrower's funds, Borrower shall, within twenty (20) days of such recording or service or with five (5) days of the City's demand (whichever last occurs): (I) pay and fully discharge the same; (ii) effect the release thereof by recording or delivering to the City a surety bond in sufficient form and amount, or otherwise; or (i) provide the City with other assurance which the City deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of the City from the effect of such lien or bonded stop notice. If Borrower has not received actual notice of the claim of lien or bonded stop notice prior to the City's demand, then the five (5) day periods described above shall be extended to twenty (20) days. Borrower shall give the City prompt written notice of all lien claims affecting the Property or Development.
19. Conditions Precedent to Final Disbursement. The final disbursement of the proceeds of the Loan, including any retentions, shall be made upon the satisfactory accomplishment of the following conditions:
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a. all of the conditions set forth in Paragraph 16 above have been met; - b. submission to the City of a Notice of Completion duly recorded by Borrower and a Certificate of Occupancy for the Development issued by the local government having jurisdiction over the Development, or any equivalent thereto acceptable to the City;
c. submission to the City of all lien waivers required by the City or passage - of the applicable statutory periods for filing mechanic and other similar liens;
d. issuance of a certificate or certificates, each in form and substance satisfactory to the City, executed by Borrower and the Architect, either jointly or severally, each certifying that the Development has been completed in accordance with the Plans and Specifications; e. completion of the Development in accordance with Exhibit B and acceptance and approval of the Development by the City and by any person or goverimental agency whose approval may be required; f. receipt by the City, if so requested, of a cost audit for the Development satisfactory to the City;
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g. delivery to the City of "as-built' Plans and Specifications for each lot h. the Borrower shall have obtained for the City, at Borrower's expense, an endorsement to the Title Policy insuring that the Deeds of Trust shall be a lien prior to any statutory lien for labor or materials upon the completion of construction.
20. Title Insurance. Borrower shall procure from a title insurer acceptable to the City a 1970 (or other version acceptable to the City) ALTA Lender's Policy of Title Insurance (the "Title Policy"), with all endorsement the City may reasonably require, insuring the City of the validity and the priority of the lien of the Deeds of Trust upon the Property and Development, in the principal amount of the Loan, subject only to matters of record approved by the City in writing. During the term of the Loan, Borrower shall procure and deliver to the City, within five (5) working days of the City's request, other endorsement to the Title Policy as the City may reasonably require.
21. Record maintenance and Retention. Borrower shall maintain records that accurately and fully show the date, amount, purpose, and payee of al xpenditures incurred in the construction of the Development for a period o not fewer than three years after the completion of the work.
22. Inspections.
a. Authorized representatives and agents of the City shall be permitted upon reasonable demand to inspect all work, materials, payrolls, personnel records, materials invoices and other relevant data pertaining to the Development, and shall have the right of entry and full access to the Property and the Development. Based on the findings during any inspection, the City may issue correction notices or stop work orders. In all cases, the Borrower shall cause to be corrected any items noted in the correction notice or stop work order, and request a reinspection, prior to proceeding to the next phase of work. - The City shall not have any affirmative duty to make any inspection, to make any investigation, or to supervise or inform Borrower or any third party as to any aspect of the construction of the Development and shall not incur any liability for failing to do so. Any inspection, investigation or review undertaken by the City shall be solely to determine whether the Borrower is properly discharging its obligations - to the City and may not be relied upon by Borrower or any third party.
Once having undertaken any such inspection, investigation or review, the City shall not incur any liability of failing to do so properly or for - failing to complete the same. The City owes no duty of care to Borrower or any third party to protect against, or to inform Borrower or any third party of, any negligent, fault, inadequate or defective design or construction of the Development.
The fact that inspection, investigation or review of the design or construction of the Development may or may not have been made by the City shall not relieve the Borrower or the Contractor of any obligation that they may otherwise have to inspect the Development or to otherwise comply with the terms of this Agreement.
23. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" hereunder following notice to the Borrower by the City, specifying (1) the applicable event, (2) the action required to prevent such event from becoming an Event of Default, and (3) a date, which shall be not fewer than fifteen (15) days after the date the notice is mailed to Borrower, by which such action must be taken:
a. Monetary. (1) Borrower's failure to pay when due any sums payable under the notes or any of the other Loan Documents; (ii) Borrower's failure or inability to secure anticipated permanent financing from parties other than the / City as specified in Exhibit C (or equivalent alternative financing approved by the City), regardless of fault of the Borrower; (iii) Borrower's failure to use or apply Loan funds in the manner specified by, or consistent with the purposes of this Agreement and as specified in Exhibits B and C; or (iv) the occurrence of an event of default under the terms of the commitment for any of the loans or grants received from the permanent financing sources specified in Exhibit C hereto which results in termination or cancellation of such commitment.
Construction Use. (I) Borrower's failure to remedy any material deviation in the work of construction from the Scope and Distribution of Work that occurred without the City's approval or defective workmanship or materials in, or use of defective workmanship or materials in constructing, the Development, in each case to the City's satisfaction, within ten (10) days of the City's written demand to do so; (i) the cessation of construction of the Development prior to completion for a continuous period of more than fifteen (15) days (unless caused by war, rebellion, insurrection, strike, lockout, boycott or - act of God, or other event beyond the Borrower's control as determine in the sole discretion of the City); (iii) the prohibition, enjoining or delay (in any manner) of the construction of, or the prohibition or enjoining (in any manner) of the leasing of, any unit in thi Development in accordance with the Loan Documents for
continuous period of more than thirty (30) days; or (iv) the curtailment in availability to the / Development for a continuous period of more than thirty (30) days of utilities or other public services necessary for construction or the full occupancy and utilization of the Development.
C. Performance of Obligations. Borrower's default under any of the other Loan Documents, Borrower's default under any ground lease of the Property, or Borrower's failure to perform its obligations under this Development Agreement and, in each case, the expiration of any tie provided for the remedy of such failure.
d. Representations and Warranties. (I) Any of Borrower's representations or warranties in any of the Loan Documents or any statements, certificates or schedules furnished by Borrower to the City, shall prove to have been untrue in any material respect when made or the Borrower shall have concealed any material fact from the City, (i) any of the Borrower's representations or warranties in any of the Loan Documents or any statements, certificates or schedules furnished by Borrower to the /City, other than representations, warranties, statements and certificates as to the financial condition of Borrower or any other person, shall cease to be true and shall remain untrue for fifteen (15) days after notice of such change to Borrower by the City, or (iii) any material adverse change in the financial condition of Borrower from the financial condition represented to the City as of the date of this Development Agreement.
e. Voluntary Bankruptcy: Insolvency: Dissolution. Borrower's or any general partner of Borrower's (I) filing of a petition for relief under any state or federal law regarding bankruptcy, reorganization or other relief to debtors; (ii) filing any pleading in any involuntary proceeding under any state or federal law regarding bankruptcy, reorganization or other relief to debtors which admits the jurisdiction of the court or the petition's material allegations regarding the Borrower's insolvency; (iii) making a general assignment for the benefit of creditors; (iv) applying for, or the appointment of, a receiver, trustee, custodian or liquidator of Borrower, any general partner of Borrower or any of their respective properties; (v) inability or admission in writing of its inability to pay its debts as they are due; or (vi) death, if an individual; or the filing by Borrower or any general partner of Borrower of a petition seeking the liquidation or dissolution of Borrower or any general partner of Borrower or the commencement of any other procedure to liquidator dissolve Borrower or any general partner of Borrower.
f. Involuntary Bankruptcy. Borrower's or any general partner of Borrower's failure to effect a full dismissal of any involuntary (I) petition under any state or federal law regarding bankruptcy, reorganization or other relief to debtors; (ii) proceeding for the appointment of a receiver, trustee or liquidator for Borrower or any general partner of Borrower or all or a material part of the assets of the Borrower or any general partner of Borrower, or (iii) petition or proceeding under other state or federal law regarding bankruptcy, -
reorganization or other relief to debtors that is filed against Borrower or any general partner of Borrower or in any way restrains or limits Borrower or any general partner of Borrower or the City regarding the Loan, the Property or the Development, in any event prior to the earlier of the entry of any order granting relief sought in the involuntary petition or proceeding, or sixty (60) days after the date of filing of the petition or beginning of the proceeding.
g. Liens: Attachment; Condemnation: Encroachments. (I) The filing of any claim of lien against the Property or the Development, or any part thereot, or service on the City of any bonded stop notice relating to the Loan and the continuance of the claim for lien or bonded stop notice relating to the Loan and the continuance of the claim of lien or bonded stop notice for twenty (20 days after Borrower receives actual notice thereof without discharge, satisfaction or provision for payment being made as provided of in Paragraph 18 hereof; (i) the condemnation, seizure or appropriation of, or the occurrence of an uninsured casualty with respect to, any material portion of the Property or the Development, such materiality to be determined by the City in its sole and absolute discretion; (iii) the sequestration or attachment of, assignment by Borrower for the benefit of its creditors of, or any levy or execution upon, the Property, the Development, other collateral provided by Borrower under any of the Loan Documents, monies in any account as may be required under any Loan Document for the deposit of operating income, or substantial portion of the other assets of Borrower, which is not released, expunged or dismissed prior to the earlier of sixty (60) days after sequestration, attachment or execution or the sale of the assets affected thereby; or (iv) any survey provided to the City upon a request for a disbursement of Loan funds shows encroachments which occurred without the written approval of the City which, in it sole discretion, the city requires to be removed or corrected, and the failure to remove or correct any such encroachments within thirty (30) days after receipt of the survey.
h. General. Borrower's breach of any condition, covenant, warranty, promise of representation contained in this Development Agreement not otherwise resulting in an Event of Default hereunder and the continuance of such breach for a period of thirty (30) days after written notice thereof to Borrower.
24. Remedies upon an Event of Default. upon the happening of an Event of Default, the City's obligation to disburse proceeds of the Loan shall terminate and the City shall have the right to either apply all or any part of the maining proceeds of the Loan to payment of accrued interest an princip ue under any obligation of Borrower hereunder or terminate th Agreement. Upon the occurrence of an Event of Default, the City may also, in -
Development, or any part thereof, or as may be necessary or desirable for the completion of the construction of the Development, or for clearance of title; e) to execute all application and certificates in the name of the Borrower which may be required by the construction contract or documents entered into in connection therewith; (f) to prosecute and defend all actions and proceeding in connection with the Property or the construction of Development and to take such action and require such performance necessary; and g) to do any and every act which the Borrower might do in its own behalf with regard to completion of the construction of the Development. In no event shall the City be required to expend its own funds to complete the Development if the remaining Loan proceeds are insufficient, but the City may, at its option, advance such funds. Any funds so advanced shall be advanced under the Notes and secured by the Deeds of Trust. d. Stoppage of Construction. Upon an event of Default specified in subparagraph (b)(I), (b)(Iv) or (c)(iv) of Paragraph 23, the City may order immediate stoppage of construction and demand that the condition be corrected, notwithstanding any right of Borrower under this agreement to correct or insure against such defects. After issuance of such an order in writing, no further work shall be done on the Development without the prior written consent of the City and until said condition has been fully corrected.
e. Curing of Defaults by Disbursement From the Loan. Upon the happening of any Event of Default which may be cured by payment of money, the City shall have the right to make such payment from the proceeds of the Loan. If the payment of any such sums may, in the City's good faith determination, result in the reduction in the total amount of remaining Loan proceeds below that required to complete construction of the Development, the amount which the City determines in good faith to be necessary to provide for such completion shall be deposited by Borrower with the City or in such - account as the City may designate, within ten (10) days after written demand therefore by the City.
f. Iudgment for Specific Performance: Appointment of a Receiver. Upon the occurrence of an Event of Default the City may seek an order for specific performance in any court of competent jurisdiction or may apply to any such court for the appointment of a receiver to take over and operate the Development in accordance with the terms of the Loan Documents, or for such other relief as may be appropriate.
25. Right to Advance or Post Funds. Where disputes have arisen which, in the ood faith opinion of the City, may endanger timely completion of th Development or fulfillment of any condition precedent or covenant herein o result in lien claims against the Property or the Development, the City may agree to advance funds for the account of Borrower without prejudice to Borrower's rights, if any, to recover said funds from the party to whom paid.
Such agreement or agreements may take the form which the City, in its discretion, deems proper, including, but without limiting the generality of the foregoing, agreements to indemnify a title insurer against possible assertion of lien claims, agreements to pay disputed amounts to the Contractor or any potential lien claimant in the event Borrower is unable or unwilling to pay the same, and the like. All sums paid or agreed to be paic pursuant to such undertaking shall be for the account of Borrower, and Borrower agrees to reimburse the City for any such payments made upon demand therefore with interest at the rate of ten (10%) percent per annum, or such lower rate of interest as may be approved by the City, from the date of payment until date of reimbursement. Nothing in this or any other section of this Agreement shall be construed to require the City to advance monies over and above the amount of the Loan proceeds, though the City may, at its option, advance such amounts.
26. Right of Contest. Borrower shall have the right to contest in good faith any claim, demand, levy or assessment the assertion of which would constitute an Event of Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City hereunder.
Upon demand by the City, Borrower shall make suitable provision by deposit of funds with the City or by bond or by title insurance or other assurance satisfactory to the city for the possibility that the contest will be unsuccessful.
Such provision shall be made five (5) days after demand therefore, and, if made by deposit of funds with the City, the amount so deposited shall e disbursed in accordance with the resolution of the contest either to Borrower or the adverse claimant.
27. Rights Cumulative, No Waiver. All the City's rights and remedies provided in the Loan Documents, granted by law or otherwise, are cumulative and, except as provided herein, may be exercised by the City at any time. No waiver shall be implied from any failure of the City to take, or any delay by the City in taking, action concerning any Event of Default or failure of condition under the Loan Documents, or from any previous waiver of any - similar or unrelated Event of Default or failure of condition. Any waiver or approval under any of the Loan Documents must be in writing and shall be limited to its specific terms.
28. Attorneys' Fees; Enforcement. If any attorney, is engaged by the City to enforce, construe or defend any provision of any of the Loan Documents as a consequence of any Event of Default not cured hereunder or default under any other Loan Document, with or without the filing of any legal action or proceeding, Borrower shall pay to the City, immediately upon demand, the amount of all attorneys' fees and costs incurred by the State in connection therewith, together with interest thereon from the date of such demand at the rate of ten (10%) percent per annum.
29. Enforcement of the Construction Contract. The parties hereto agree that the City shall have, and is hereby assigned, the right of the Borrower to enforce the provisions of the Construction Contract and all documents related thereto in the event, as determined by the City, in its sole discretion, that the Borrower fails, refuses, or is otherwise unable to enforce them. The City shall mario
notify the Borrower, in writing, of its determination to effect this assignment, specifying the reasons therefore, at least fifteen (15) days prior to the City's undertaking any such action.
30. Indemnification and Waiver.
a. Indemnification. Borrower agrees to indemnify the City and its agents, employees and officers against, and hold the City and its agents, employees and officers harmless from, any losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees), of every name, kind and description, which the City may incur as a direct or indirect consequence of: (I) the making of the Loan to the Borrower, except for violations of banking laws or regulations by the City; (i) Borrower's failure to perform any obligations as an when required by this Agreement or any of the Loan Documents; (iii) any failure at any time of any of Borrower's representations or warranties to be true and correct; (iv) any act or omission by Borrower, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or Development; or (v) the presence of hazardous substances at the Development or on the Property. Borrower shall pay immediately upon the City's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate of ten percent (10%) per annum. The duty of the Borrower to indemnify and hold harmless includes the duties to defend as set forth in Section 2778 of the Civil Code. Borrower shall indemnify and hold harmless the City and its agents, officers and employees as set forth herein regardless of the existence or degree of fault or negligence - whether active or passive, primary or secondary on the part of the City or the borrower or their respective agents, officers, employees, contractors or subcontractors; provided, however, that Borrower's duty to indemnify and hold harmless hereunder shall not extend to liability arising from gross negligence or willful misconduct of the City Borrower's duty to indemnify the City shall survive the term of thi Development Agreement, the release and cancellation of the Notes and the reconveyance or partial reconveyance of the Deeds of Trust. b. Waiver and Release. The Borrower waives and releases any and all rights to any types of express or implied indemnity against the City or its agents, officers or employees.
c. Waiver. The Borrower expressly waives the protections of Section 1542 of the Civil Code in relation to subparagraphs (a) and (b) above.
31. Further Assurances. At the City's request and at Borrower's expense, Borrower shall execute, acknowledge and deliver any other instrument and perform any other act necessary, desirable or proper (as determined by the City) to carry out the purpose of the Loan Documents or to perfect and preserve any liens created by the Loan Documents.
32. Notices. All written notices and demands under the Loan Documents shall be deemed served upon delivery or, if mailed, upon the date shown on the -
delivery receipt (or the date on which delivery was refused as shown on the delivery receipt) after deposit in United States Postal Service certified mail, postage prepaid, return receipt requested, or after delivery or attempted delivery by an express delivery service, and addressed to the address of Borrower or to the primary place of business or the mailing address of the City, as applicable, appearing below. Notice of change of address may be given in the same manner, provided Borrower's address shall be in the State of California or the state where Borrower's principal place of business is located, as represented to the City in the Loan Documents.
33. Displacement and Relocation. If the acquisition, construction or development of the Development will result in the temporary or permanent displacement of occupants, the Borrower shall provide relocation payments and assistance in accordance with the applicable Federal and State requirements.
34. Amendments and Additional Agreements. This Agreement shall not be altered or amended except in writing executed by all parties. The Borrower agrees that any other agreements entered into by the Borrower relating to the performance of this Agreement shall be subject to the written approval of the City.
35. Books and Records. Borrower shall maintain complete books of accounts and other records for the Development and for the use of the Loan proceeds; including, but not limited to, records of preliminary notices, lien releases, invoices and receipts, and certificates of insurance pertaining to the Contractor and each subcontractor; and the same shall be available for inspection and copying by the City upon reasonable notice to Borrower.
36. No Third Parties Benefited. No person other than the City, and Borrower, and their permitted successors and assigns shall have any right of action under any of the Loan Documents.
37. Authority to File Notices. At any time subsequent to the funding of the Loan, Borrower irrevocably appoints and authorizes the City, as Borrower's attorney-in-fact, which agency is coupled with an interest, to execute and record, on either of them, in the City's or Borrower's name, any notices, instruments or documents that the City deems appropriate to protect the City's interest under any of the Loan Documents.
38. Actions. At any time subsequent to the funding of the Loan, the City may commence, appear in or defend any action or proceeding purporting to affect the Property, Development, Loan Documents or the rights, duties or liabilities of Borrower or the City under the Loan Documents. In exercising this right, the City may incur or incur and pay reasonable costs and expenses including, without limit, attorneys' fees and court costs and Borrower agrees to pay all such expenses so incurred and reimburse the City for any expenses so paid.
39. Relationship of Parties. The relationship of Borrower and the City under the Loan Documents is, and shall at all times remain, solely that of borrower and lender. The City neither undertakes nor assumes any responsibility or duty to Borrower or to any third party with respect to the Property for the Development, except as expressly provided in the Loan Documents.
40. Assignment of Loan Documents. Borrower shall not assign any interest, or any portion thereof, under any of the Loan Documents, or in any monies due or to become due thereunder, without the City's prior written consent. Any such assignment made without the City's consent shall be void. Borrower recognizes that this is not an ordinary commercial loan and that the City would not make the Loan except in reliance on Borrower's expertise and reputation, the City's knowledge of Borrower, and the City's understanding that this Development Agreement is more in the nature of an agreement involving personal services than a standard loan where the City would rely on security which already exists. In this instance, the work to be funded has not been performed at the time of Loan approval and the City is relying on Borrower's expertise and prior experience to construct and develop the Development in accordance with the terms of the Loan Documents.
41. Restrictions on Transfer of Property, Project and Interest in Borrower.
Borrower shall not assign, sell, transfer or convey any interest in the Borrower, the Property, or the Development, including, without limitation, any general partnership interest in the Borrower, except as provided for in this Agreement, without the City's prior written consent. Borrower shall promptly notify the City of such transfers and shall provide the City with any documents respecting such transfer as the City may reasonably request; provided however that Borrower, if Borrower is a limited partnership, may sell, assign, transfer or convey limited partnership interests without the prior approval of the City.
42. Signs. Any sign placed on the Property during construction which identify the sponsor of, or lenders to, the Development shall include the City as one of the entities providing financing to the Development. During the construction period the City may place one or more signs on the Property stating that it is providing financing for the Development.
43. City's Agents. The City may designate an agent or independent contractor to exercise any of the City's rights under the Loan Documents. Any reference t he City in any of the Loan Documents shall include the City's agents employees or independent contractors.
44. Severability. If any provision of the Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from the Loan Documents and the remaining parts shall remain in full force as though the invalid, illegal, or ~ unenforceable portion had never been part of the Loan Documents.
45. Heirs, Successors and Assigns. The terms of the Loan Documents shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties; provided however, that this Paragraph shall not waive the provisions of Paragraph 41 [restrictions on transfer paragraph].
46. Time. time is of the essence of each term of the Loan Documents.
47. Headings. All headings appearing in any of the Loan Documents are for convenience only and shall be disregarded in construing the Loan Documents.
48. Governing Law. The Loan Documents shall be governed by, and construed in accordance with, the laws of the State of California, except to the extent preempted by Federal laws. Borrower and all persons and entities in any manner obligated to the City under the Loan Documents consent to the jurisdiction of any Federal or State Court within the State of California having proper venue and also consent to service of process by any means authorized by California or Federal law.
49. Integration: Interpretation. The Loan Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated herein and supersede all prior negotiations. No Loan Document shall be modified except by written instrument executed by all the parties thereto. Any reference in any of the Loan Documents to the Property or Development shall include all or any parts of the Property or Development. Any reference to the Loan Documents in any of the Loan Documents includes any amendments, renewals or extensions approved by the City. Any reference in this Development Agreement to the Loan Documents shall include all or any of the provisions of this Development - Agreement and the Loan Documents unless otherwise specified.
50. Loint and Several Liability. The liability of all persons and entities who are in - any manner obligated under any of the Loan Documents shall be joint and several.
- 51. Incorporation. The following Exhibits, all attached hereto, are hereby incorporated into this Agreement:
Exhibit A: Legal Description
Exhibit B: Plans & Specifications/Scope & Distribution of Work Exhibit C: Sources and Uses of Funds
Exhibit D: Construction Contract Addendum
Exhibit E: Insurance Requirements
Exhibit F: Promissory Notes
Exhibit G: Deed of Trust
Exhibit H: Regulatory Agreement
Exhibit I: Unsecured Environmental Indemnity Agreement
Exhibit J: Special Conditions
Exhibit K: Standard Agreement 95-HOME-0144
Exhibit L: City In-kind Contributions
52. Non-Discrimination. In the performance of this Agreement, Borrower shall not discriminate against any provider, or potential provider, on the basis of race, color, religion, ancestry, sex, age, national origin, physical handicap or any other arbitrary factor.
WHEREFORE the parties enter into this Development Loan Agreement as of the date first written above.
BORROWER City
CSM Development Properties City of Exeter
- 983 N. Homassel Ave 137 North F. Street
Lindsay, CA 93247 Exeter, CA 93221
- By: By: ciy on chace
By:
sets
Approved as to form: City Attorney
STATE OF CALIFORNIA
COUNTY OF TULARE
On MAY 16. 1996, before me, Betty J. Darby. Deputy City Clerk, City of Exeter, personally appeared ROY CHACE personally known to me (or proved to me on the basis of satisfactory evidence) to be the - person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
sine Body fe Darly, (Seal)
...
96-0441821 Rea Fee
I Check
ecordG
RECORDING REQUESTED BY: fficial Recor
City of Exeter County of
Tulare
Greg Hardcastle
Recorder
AND WHEN RECORDED MAIL TO: 8: 00am 20-Jun-96 FATC TR 24 City of Exeter
137 North F. Street
Exeter, CA 93221
THIS DOCUMENT IS RECORDED ON BEHALF OF THE CITY OF EXETER AND IS
EXEMPT FROM RECORDING FEES PURSUANT TO GOVERNMENT CODE SECTIONS 6103 and 2783.
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME
REGULATORY AGREEMENT
LOAN NUMBER 95-HOME-0144
THIS REGULATORY AGREEMENT (the "Agreement") is made and entered • to this 1A day of, 6 1996, by and between CSM Development, a California for prof are the Beer, and the City of Exter, a municipal corporation in tt Recitals
A. The Borrower is or will be the owner of, or holder of a fee estate in, the real property located at 211 North F. Street, Exeter, CA 93221, California, more fully described in Exhibit A (the "Property).
B.
...
...
C.
($952,381.00) (the "Loan") from the Home Investment Partnerships Program (the "HOME Program"). The loan will be provided to Borrower by the City in accordance with Title 25, California Code of Regulations, Section 8200, et seg., and 24 CFR Part 92, the federal regulations governing the HOME Program Agreement.
D. Borrower agree to abide by all provisions of the Standard Agreement and the (dies and ed o us in favor the city of repay the Tons one repayment of the nes the Ped of and ed or erist en to borer and Deeds of Trust, the Standard Agreement, the Development Loan Agreement and this Agreement are collectively referred to herein as the "Loan Documents".
E. As further consideration for the Loan and in furtherance of the purposes of NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are a part of this Agreement.
2. Property. The Development will be located on the Property.
3. Definitions. Unless the context requires otherwise, the terms used in this Agreement shall be governed by the definitions set forth in 24 CFR Part 92, and 25 Cal. Code of Regulations section 8201. All references to code sections refer to Title 25 of the California Code of Regulations, unless otherwise noted.
For the purposes of this Regulatory Agreement the following additional definitions shall apply:
"Assisted Unit" means a dwelling unit, or a residential hotel unit, or a edroom in a group home or congregate home, the rehabilitation o onstruction of which was assisted with proceeds of the Loar b. "Eligible Households" means Lower Income Households or Very Low- Income households.
c.
HOME Rents" means rents calculated annually by the federal City o lousing and Urban Development ("HUD") and ar
(1) either the lesser of the Fair Market Rents and 30 percent of 65 percent of area median income (High HOME Rents); or
(2) 30 percent of 50 percent of area median income (Low HOME Rents).
f. "Lower Income Household" means persons or families whose income is 80 percent or less of the area median income as determined by the City of Housing and Urban Development (HUD).
8. "Operation Expenses" means the amount approved by the City that is necessary to pay for the essential recurring expenses of the Development, such as utilities, maintenance, management, taxes licenses, and mandatory direct or supportive tenant services but not including debt service, required reserve account deposits, or costs for h. "Operation Income" means all income generated in connection with operation of the rental housing development including rental income supportive tenant services, or tax benefits received by the sponsor.
I.
including a utility allowance in an amount determined by HÜD. i. "Residual Receipts" means project funds remaining after payment o expenses as described in items 1 through 5 of Section 21(b) k. "Very Low-Income Household" means low-income persons or families whose income is 50 percent or less of the area median income as determined by HUD.
4. Compliance with Program Requirements.
a. The Borrower agrees that at all times its acts regarding the onformity with all provisions of the HOME Program including the statutes, the HOME Regulations and such policies and procedures ol b. The finaricial assistance provided under the HOME Program is
5. 22733
6. Assisted Unit Schedule. Upon occupancy following the completion of onstruction, the Borrower shall rent Assisted Units only in accordance with he Schedule of Assisted Units set forth in Exhibit B, attached hereto an Tenant Selestion Standard. Borrower shall rent Assisted Units in the At all times, 20 percent of the Assisted Units must be rented to Very Low- Income households and, at initial occupancy, no less than 90 percent of the Assisted Units shall be occupied by households whose incomes are at 60 percent and below of are median income as determined by HUD. The Management Plan shall among other things: (1) detail actions to be taken by Borrower to affirmatively market vacant units in a manner which ensured equal access to all persons in any category protected by federal, state or local laws governing discrimination, and regardless of any arbitrary factor; (2) specity reasonable criteria for determination of tenant eligibility, including household size in accordance with the minimum occupancy standard specified in the Program Regulations; (3) require that eligible tenants be selected based on order of application, lottery, or other reasonable method approved by the City; (4) specify procedures through which tenant applicants deemed to be ineligible shall notified of the reason for their ineligibility may appeal this determination; (5) require maintenance of a waiting list of eligible applicants; and (6) specity procedures for obtaining information regarding prospective tenants' incomes as necessary to certify that such income does not exceed the lower or very low-income limit.
8. Nondiscrimination. Borrower shall not discriminate against any tenant or prospective tenant on the basis of race, religion, sex, age, disability, marital status, nor any other arbitrary factor in violation of any state, federal or local w governing discrimination in rental housing. Housing which is intende benefit, and is therefore limited to senior citizens, is permitted only wit the prior approval of the selection criteria by the City.
9. Rental Agreement and Occupancy Frocedures (the "Lease"). a. Each eligible household selected to occupy a unit in the Development shall b. The Lease may not contain any of the following provisions:
(1) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the Borrower or Borrower's agency in a lawsuit brought in connection with the lease;
(2)
sell personal property of household members without notice t he tenant and a court decision on the rights of the parties. Thi The borrower ray dispose of this personal property in
accordance with state law;
(3) Agreement by the tenant not to hold the Borrower or Borrower's agents legally responsible for any action or failure to act, whether intentional or negligent
(4) Agreement of the tenant that the Borrower or Borrower's agents legally responsible for any action or failure to act, whethe intentional or negligent
(5) Agreement by the tenant that the Borrower or Borrower's agent may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of (6) Agreement by the tenant to waive any right to a trial by jury; (7)
(8) Agreement by the tenant to pay attorneys' fees or other legal costs even if the tenant wins in a court proceeding by the owne ainst the tenant. The tenant, however, may be obligated to par c. The Borrower shall establish reasonable rules of conduct and d. The Borrower shall not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds except for serious or repeated violation of the terms and conditions of the Lease; SERIE
e. The Borrower shall maintain the premises in compliance with all applicable housing quality standards and local code requirements
10. Rents.
a. For all Assisted Units, Rents shall not exceed High HOME Rents less a utility allowance. For assisted Units that are set aside for Very Low- Income Households, HOME rents shall not exceed Low HOME Rents less a utility allowance.
b. A minimum of 20 percent of all assisted Units shall be occupied by Very Low-Income Households at Rents that are no greater than the Low HOME Rents less a utility allowance.
c. Any household certified as an Eligible Household upon occupancy but Assisted Units subject to low-income tax credit rules under section 42 of the Internal Revenue Code shall be governed by such rules.
11. Security Deposits.
a. Security deposits shall be required of tenants only in accordance with State law and this Agreement.
b.
said account, plus accrued interest thereon.
12. Certification of Tenant Income and Household Size.
a. The income and household size of all households occupying Assistec Jnits shall be certified by the Borrower prior to occupancy anc •
recertified annually thereafter in a manner approved by the City and specified in the Development's Management Plan.
b. If the income of a tenant upon recertification exceeds the upper limit for Lower Income Households, and there are no other requirements statutorily imposed by another federal or State funding source or tax redit program, that tenant shall not have its Lease terminated as a esult thereof, but shall be charged Rents as provided in Section 10 (c) c.
13. Assisted Unit Substitutions.
a. For purposes of this section, "comparable" units shall be those listed in the same group in the Comparable Unit Schedule set forth in Exhibit C attached hereto and incorporated herein.
b. It sister Unitieserved, in cupany by over income use als exis north old unit as for ase ted, pro eed that al or the felonie conditions are satisfied:
(1) Not later than the date the Borrower designates the unit as non- House told, apy the next available unit with a Lower Income (2) The rent charged for the newly designated Assisted unit will not exceed the high HOME Rent.
C. Where a household occupying an assisted unit reserved for occupancy by Very Low-Income Households no longer qualifies as Very Low- Income at the time of recertification, but qualifies as a Lower Income Household, the following shall apply:
(1) Borrower shall designate the unit as an assisted unit for Lower Income Households;
(2) Borrower shall increase the household's Rent up to the High ....
HOME Rent;
(3) Borrower shall designate the next available comparable assisted Unit reserved for Lower Incore Households as an Assisted Unit reserved for Very Low-Income Households shall not exceed the Low HOME Rent.
(4) The Rent charged for the newly designated Assisted Unit reserved for Very Low-Income Households shall not exceed the Low HOME Rent.
14. Maintenance and Management.
a. Borrower is specifically responsible for all maintenance, repair, and management functions for the Development, including without limitation, selection of tenants, recertification of household income and size, eviction, collection of rents, routine and extraordinary repairs and replacement of capital items. Borrower shall maintain units and common areas in a safe and sanitary manner in accordance with local health, building, and housing codes, HUD housing quality standards pursuant to 24 CFR Section 882, 109, and the Management Plan Borrower may, with the prior written approval of the City, contract to terminate the contract without penalty upon no more than thirty (30) days' notice. Upon a determination by the City, and notice to the Borrower thereof that the contractor and the Management Plan has failed to operate the Development in accordance with this Agreement he Borrower shall exercise such right of termination forthwith and hall make immediate arrangements which shall be subject to Cit pproval, for continuing performance of the requirements of thi c.
15. Hazard and Liability Insurance.
a.
b.
16. Annual Keport. The borrower shall file with the City an annual report, as required by 24 CFR part 92 and 25 Cal. Code of Regulations, Section 8218(a)(2) no later than 60 days after the end of each fiscal year as established for the a.
ccounts; a detailed itemized listing of income and expenses; thi mount of any fiscal reserves and the total amount of Residua Receipts received. Such financial statement shall be prepared i ccordance with the requirements of the City and HUD. The City ma expense by an independent certified public accountant acceptable to the City or other person designated by the City..
The substantial physical defects in the Project, including a description c. The occupancy of the Development indicating:
(1) the verified income of each current household; and
.. . .
POSSES
...
....
(2) the current rents charged each household and whether these rents include utilities.
d. General management performance, including tenant relations and other relevant information.
e. A summary of the information received from the re- certification of tenants' incomes.
f. Evidence of a currently paid hazard and flood insurance policy, with loss payable to the City in the amounts specified in Exhibit C g. Evidence of a currently paid liability insurance policy, naming the City as an additional loss payee in the amounts specified in Exhibit C. h. Other information reasonably required by the City and HUD.
17. Sity Review and Inspections.
a. Upon not less than 48 hours notice to the Borrower, the City or its designee may, at any time during the term of the loan, enter and b.
of the financial condition of the project certified by an independent certified public accountant
c. The City may request any other information that it deems necessary to nonitor compliance with requirements set forth in this Agreement and the Standard Agreement. Such information shall be prompt!
18. Annual Operating Budget.
a. The fiscal year for the Development shail commence on January 1 and conclude on December 31.
b.
.....d
estimate of the Development's income, operating expenses and debt C. Borrower shall operate the Development in accordance with the First- year of portion thereof following initial occupancy.
19. Required Reserves.
a. Commencing no later than the end of the second month following the mitial occupancy of the Development or such other date as the City shall designate in writing, the Borrower shall establish a segregated interest- bearing replacement reserve account in an F.D.I.C. or other comparable federally-insured financial institution. The Borrower shal require adjustments as it deems necessary. Unless otherwise authorized by the City, withdrawals from the replacement reserve account shall be made only upon City's written approval. Withdrawals shall only be made for capital improvements, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Development which are reasonably required to preserve the Property. b.
20. Ascounting Records. In a manner subject to city approval, Borrower shall relation to this system shall be kept for a period of at least seven years and in uch a manner as to ensure that the records are reasonably protected fror lestruction or tampering. All records shall be subject to City inspection an audit.
21. Use of Income from Operations.
a. The Borrower, or borrower's management agent, shall prompti deposit all Operating Income in a segregated account established exclusively for the Development with an F.D.I.C. or other comparable federally-insured financial institution.
b. Withdrawals from the account shall be made only in accordance with he provisions of this Agreement, and the approved budget, and shall be disbursed, applied, or reserved and set aside for payment when due in the following priority, to the extent available: (1) salaries, wages, and any other compensation due and payable to the employees or agents of the Borrower employed on site in connection with the maintenance, administration or operation of the Development, along with all withholding taxes, insurance premiums, Social Security payments and other payroll taxes or payments required in connection with such employees; (2) all charges incurred in the operation of the evelopment in connection with utilities, real estate taxes ar sessments, and liability, fir and other hazard insurance; (3) paymer of required interest, principal, impounds, fees and charges, if any, on loans other than the Loan which are secured by liens on the Property and which have been approved by the City; (4) all other expenses c. The balance of Operating Income remaining after the payments described in section 21.b. above shall be deemed Residual Receipts to be paid and applied as provided in Paragraph 23 below.
22. Non-assisted Units and Common Areas.
a. Borrower shall establish and implement a rent structure for non- assisted residential units which ensures the fiscal integrity of the Development. Borrower shall estimate all income and expenses attributable to the non-assisted units in the annual operating budget described in Section 18 herein, and shall report all income and expenses attributable to non-assisted units in the Annual Report described in b. Borrower shall maintain and repair both assisted and non-assisted assistequally without regard to their designation as asisted or non- c. Tenant selection practices for non-assisted units shall comply with State and federal nondiscrimination laws.
d. The exterior walls, windows, lighting, walkways, mailboxes, landscaping, nonresidential space, and other common areas of the Development shall be safe, clean, well maintained, and in good working order.
23. Residual Receipts and Distributions.
a. Residual Receipts shall first be applied to payments on the Loan as required by, and subject tot he provisions of, the Note. b.
to, or retained by, the Borrower or any party having a beneficial interest c. Borrower shall receive Distributions only once for each fiscal year of he Development and only: (1) upon approval by the City of the Annual Report submitted for that year, and (2) upon determination by the City that the Borrower is in compliance with this Agreement and d. No distribution shall be made to Borrower in the following circumstances:
(1) when written notice of default has been issued by an entity with an equitable or beneficial interest in the Development; (2) when the City determines that the Borrower or the Borrower's managemeny agent habi red to memptor pirope maintenance o he Development
22eS8INT
(3) f all currently required debt service and operating expenses have not been paid; o1
(4) if the replacement reserve account or other reserve accounts are not fully funded pursuant to this Agreement.
24. Restrictions on Sale, Encumbrance, and Other Acts.
a. The Borrower shall not make any sale, encumbrance, hypothecation, assignment, refinancing, pledge, conveyance, or transfer in any other orm of the Property or the Development or of any of its interest herein, except with the prior written approval of the City b. Other than routine maintenance, the Borrower shall not add to, remodel, remove, reconstruct, or demolish any part of the Development without the prior written approval of the City.
C. The Borrower shall not permit the use of the Development for any purpose other than that permitted by this Agreement without the prio written approval of the City.
d.
Note with the City, nor incur any liability, charge, assessment, or obligation whatsoever that is secured in whole or in part by any interes rents.
e. The Borrower shall not enter into any contract relating to rehabilitating or managing the Development, except as authorized by the City. f. Borrower shall not enter into any Lease for more than a single rental unit, ground lease of the Development or any interest therein without prior written City approval. The City may require that such lease allow for termination within 30 days upon request by the City. g.
h. he City may approve a sale, transfer or conveyance provided that a the following conditions are me
(1) the existing Borrower is in compliance with this Agreement or the sale, transfer or conveyance will result in the cure of any existing violations of the Agreement
(2) the successor-in-interest to the Borrower agrees to assume all obligations of the existing borrower pursuant to this Agreement and the Program, and meets any requirements which may be in axistence for the HOME program under the applicable
(3) the success-in-interest demonstrates to the City's satisfaction that it can own and operate the Development in full complianc vith all Program requirements; an
(4) any terms of the sale, transfer or conveyance shall not threater the City's security or the successor's ability to comply with all requirements of the HOME Program and this Agreement.
i.
ompliance with HOME Program requirements and this Agreement uch conditions may include the deposit of sales proceeds, or a portion
25. Use of Syndication Proceeds. Unless otherwise approved by the City in of this Agreement and the disposition of said proceeds. The City may approve, in writing, future syndications of the Development where it All syndication proceeds not identified in Exhibit E shall be distributed only as
26. Violation of Regulatory Agreement by Borrower.
a. In the event of a breach or violation of the provisions of this Agreement, the City may give written notice to the Borrower thereof by ..•.
certified mail or any express delivery service with a delivery receipt ays, the City may declare a default and may seek legal remedi ıcluding the followins
(1) Collect all rents and income in connection with the operation of he Development and use the same and the reserve funds fo he operation and maintenance of the Development
(2)
necessary to enforce any rights of the Borrower growing out of (3)
(4)
commenced to cure such breach and has diligently prosecuted and effected such cure which shall be completed no later than 60 days from the date notice of such breach is given.
(5) The city may seek such other remedies as may be available under •..i
law.
b. In the event that the breach or violation involves the rents to tenants or other charges in excess of those permitted under this Agreement, th City may demand, and seek as an additional remedy, the return of suct excess rents or other charge to the affected households.
C. The tenants of the Assisted Rental Units shall be considered to be third- party beneficiaries of this Agreement, and shall have such rights and remedies to enforce the requirements of this Agreement as may be available to third-party beneficiaries under the law.
d. The remedies of the City hereunder are cumulative, and the exercise of one or more of such remedies shall not be deemed an election of remedies and shall not preclude the exercise by the City of any one or
27. 28. Amendment. This Agreement shall not be altered or amended except in writing, executed between or among all the parties.
29. artial Invalidity. If any provision of this Agreement shall be invalid, illega r unenforceable, the validity, legality and enforceability of the remainin provisions hereof shall not in any way be affected or impaired thereby.
30. Binding on Successors. This Agreement shall bind, and the benefits thereof shall inure to, the respective parties hereto, their legal representatives, executors, administrators, successors in the office of interest, and assigns, provided, however, that the Borrower may not assign this Agreement or any of its obligations hereunder, voluntarily or by operation of law, without the
31. Recording Agreement. This Agreement, and all amendments thereto, shall Shal Be red bye again hehe sube. Tropery in he orcai records or thereof, county in which the Development is situated
32. (including reasonable attorney' fees) arising from or in connection with ..:
....
:
Borrower's management, maintenance or operation of the Development.
33. Waiver. No waiver by the City of any breach of or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereto or default hereunder.
34. Captions. The captions used in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or the intent of this Agreement.
35. Governing Law. This Agreement shall be construed in accordance with and governed by the Laws of the State of California.
Votice. Written notices and other written communications by and betweer he parties hereto shall be addressed as set forth below unless and until a part hereto has, in writing, communicated a different address to the other party hereto.
37. Attorneys' Fees. The prevailing party in any action to enforce this Agreement, including the residents of assisted units, shall be entitled to reasonable attornevs' tees as determined by the trier of fact in that forum.
Special ent the terms of the special Concerns ali prevain of this
39. Incorporation. The following Exhibits, all attached hereto, are hereby incorporated into this Agreement:
Exhibit A:
Exhibit B: Schedule of Assisted Units
Exhibit C: Comparable Unit Schedule
Exhibit D: Insurance Requirements
Exhibit E: Special Conditions
BORROWER City
CSM Development City of Exeter
983 North Homassel Avenue 137 North F. Street
Lindsay, CA 93247 Exeter, CA. 93221
Roy Chace
By: By: Roy Chace
City Administrator
By:
Soproved as to form: City Attorney
: 2800
STATE OF CALIFORNIA,
COUNTY OF TULARE I S.S.
On 6-11-96 before me, citesia, a Notary Public in
the person(s) whose name(s) is/ are subscribed to
the within instrument and acknowledge to me that
he/she/they executed the same in his/her / their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
JARYL M. FARNGWORTH!
0O1/N. 21053352 CTJ
WITNESS my hand an official seat NOTARY PUBLIC-CALIFOANIA PRICIPAL OFFICE IN 1)
TULARE COUNTY
M. dinouss y Commission Exp. March 15, 1S99
Signature
STATE OF CALIFORNIA,
COUNTY OF Lulare I S.S.
6/12/96 → before me, GLORIA JEAN MACHADO a Notary Public in and or acco and State, personally appeared
ersonally known to me (or proved to me ol
the basis of satisfactory evidence) to be
the person(s) whose name(s) is/ are subscribed to
the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or GLORIA JEAN MACHADO the entity upon behalf of which the person(s) COMM. + 1053572 acted, executed the instrument. Notary Public - Collfamic
TULARE COUNTY
My Comm. Expice MAR 19, 1999
Signature
Exhibit A
Legal Description
Molo real property situated in the County of Tulare, State of California, described as PARCEL 1:
Lots 17, 18, 19, 20 and the South half of Lot 21 in Block 42 of the City of Exeter, in the Page of of tapo unt of ce or Saco Callerate of eard Couecorded in Book 2, TAINT
Exhibit B To Regulatory Agreement
Schedule of Assisted Units
"Subject to the definition of "HOME Rents" and the limitations of paragraph 7. 720081
....
Exhibit C To Regulatory Agreement
Comparable Unit Schedule
MARIETTA M. GRAY
Property Management
P. 0. 301
Exeter. CA 93221
APPROXIMATE MONTHLY RENTAL AMOUNTS FOR APARTMENTS IN EXETER:
1 Bedraom - $325.00 to $375.00
2 Bedroom - $400.00 to $475.00
3 Bedroom - $500.00 to $600.00
These amounts could increase or decrease depending on the size of camplex, location, security, etc.
There Mothy
- Exhibit G to Development Agreement
Deed of Trust for the Benefit of City of Exeter
- RECORDING REQUESTED BY: FOR RECORDER'S USE ONLY
City of Exeter
AND WHEN RECORDED MAIL TO:
- City of Exeter
137 North F. Street
Exeter, CA 93221
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THIS DOCUMENT IS RECORDED ON BEHALF OF THE CITY OF EXETER, AND IS EXEMPT FROM - RECORDING FEES PURSUANT TO GOVERNMENT CODE SECTIONS 6103 AND 27383.
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME
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DEED OF TRUST,
- ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND
FIXTURE FILING
- (Multi-Family Construction & Permanent Financing)
LOAN NUMBER 95-HOME-0144
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THIS DEED OF TRUST is made the — day of _ 1996, by CSM
Development (the "Borrower"), whose address is listed herein, to First American itle Insurance, as trustee (the "Trustee"), whose address is 2211 West Whitendale, Suite E, Visalia, California, 93277, for the benefit of the City of Exeter, a municipal corporation in the State of California (the "Lender"), whose mailing address is 137 - 'North F. Street Exeter, CA 93221 (the "City").
A. Borrower, in consideration of the indebtedness herein recited and the trust -
herein created, irrevocably grants, conveys, transfers and assigns to Trustee, in trust, with power of sale and right of entry and possession, all of Borrower's rights, title and interest now held or hereafter acquired in and to the following: (1) All of that certain real property located in the County of Tulare, State of California, and described in Exhibit A, attached hereto and made a part hereof (the "Property"), which has the address of 211 North "F" Street, Exeter, California (herein "Property Address"); (2) All buildings, improvements and fixtures now or hereafter erected thereon, and all appurtenances, easements, and articles of property now or hereafter affixed to, placed upon or used in connection with the Property and owned by Borrower or in which Borrower has an interest; (3) All rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures. -
including, but not limited to, all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, steam and hot water boilers, stoves, ranges, elevators and motors, bathtubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating equipment, cabinets, mantels, refrigerating plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, furniture, shades awnings, screens, Venetian blinds and other furnishings, now or hereafter attached to the Property; and (4) all accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents notes, drafts, letter of credit, insurance policies, insurance and condemnation awards and proceeds arising from or related to the Property; together with all replacements, proceeds, additions and accessions to the foregoing, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and all of the foregoing, together with said Property are herein referred to as the "Property and reted as a limit he listeneral fees of this Deep of trus shall not bev B. The interests herein conveyed are for the purpose of securing to Lender (1) the repayment of the indebtedness evidenced by Borrower's note dated of even date herewith, in the principal sum of Nine hundred and fifty-two thousand and three hundred and eighty-one dollars ($952,381.00) (the "Note"), or such lesser amount as shall equal the aggregate amount disbursed to Borrower by Lender, together with interest thereon according to the terms of the Note, and any and all amendments, modifications, extensions or renewals of the Note; (2) the performance of the covenants and agreements of Borrower herein contained, or contained in the Note, the regulatory agreement between Borrower and Lender dated of even date herewith (the "Regulatory Agreement"), or the development agreement between the Borrower and the Lender dated of even date herewith (the "Development Agreement"): and (c) any other obligation of Borrower to Lender now or hereafter created, whether acquired by assignment from third parties or otherwise, where such obligation specifically recites that it is secured by this Deed of Trust.
1. The Note is evidence of the loan made by Lender to Borrower (the "Loan") pursuant to the Development Agreement for the
reconstruction of a 18-unit rental project in the City of Exeter (the "Project").
The Loan is further subject to the provisions of the Development greement and the Regulatory Agreement (collectively, the "Loa:
Documents"). The Loan Documents, among other things, govern regulate and restrict development and construction of the Project.
C. Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property and Improvements, and that Borrower will warrant and defend generally the title of the Property and Improvements against all claims an demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance -
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- policy insuring Lender's interest in the Property.
Borrower and Lender covenant and agree as follows:
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1. Payment of Principal and Interest. Borrower shall promptly pay when due the principal and interest, on the indebtedness evidenced by the note. all - payments received by Lender under the Note shall be applied by Lender first to interest payable on the Note, and second to principal due on the Note, except for the last payment which is due at the end of the term and shall be any outstanding - principal balance of the Note and any interest accrued by not yet paid.
Charges: Liens. Borrower shall pay all taxes, assessments and other - charges, fines and impositions attributable to the Property and leasehold payments or ground rents, if any, by Borrower making payment, when due, directly to the payee thereof. Borrower shall promptly furnish to Lender all notices of amounts -
due under this Paragraph, and in the event Borrower shall make payment directly, Borrower shall promptly furnish to Lender receipts evidencing such payments.
Borrower shall pay when due all encumbrances, charges and liens, with interest in accordance with the term thereof, on the Property or any portion which are inferior or superior to this Deed of Trust. Borrower shall have the right to contest in good faith, any claim or lien provided that Borrower does so in a diligent manner, without prejudice to the Lender, and without any delays in the completion of the construction work. Borrower shall provide a bond or surety satisfactory to Lender in an amount adequate, as determined by Lender, to cover any amounts disputed by the Borrower.
Hazard Insurance.
a. Borrower shall keep the improvements now existing or hereafter erected or placed on the Property, insured against loss of fire or flood, as required, or hazards under a policy approved by Lender and which provides "special form" coverage in an amount at least equal to the replacement value of the structure. In - addition, Borrower shall insure against loss all furniture, equipment, and other personal property owned by Borrower related to the operation of the Property as a - residen hereafter p. ched for goinguirements shall apply to any and all structures b. The insurance carrier providing the insurance shall be chosen by -
Borrower subject to approval by Lender; provided, that such approval shall not b inreasonably withheld. All premiums on insurance policies shall be paid b - Borrower making payment, when due, directly to the insurance carrier, or in a manner agreed to by the Lender.
C. All insurance policies and renewals thereof shall be with loss payable -
to the Lender. Lender shall have the right to hold the policies and renewals thereof, and Borrower shall promptly furnish to Lender all renewal notices and all receipts -
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of paid premiums. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof or loss if not made promptly by Borrower.
d. Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the property damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not hereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, subject to the rights of senior lien holders, if any, the insurance proceeds shall be applied to the sums secured by this Deed of Trust with the excess, if any, paid to Borrower. If the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the date notice is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust. e. Unless Lender and Borrower otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the payment or payments specified in the Note or change the amount of such payments.
If under Paragraph 19 hereof the Property is acquired by Lender, all rights, title and interest of Borrower in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition.
f. In the event the Borrower fails to maintain insurance coverage, Lender may purchase insurance in such amounts and in such overages as it may elect an all amounts paid therefore shall become part of the principal of the loan and shall be secured by this Deed of Trust. Purchase of insurance by the Lender shall not be considered a waiver of any right to appropriate remedies under this Deed of Trust.
Liability Insurance. Borrower shall keep general liability insurance for the Property and Improvements in the amount and type as required by Lender. The insurance carrier shall be chosen by the Borrower subject to approval by the Lender; provided, that such approval shall not be unreasonably withheld. All premiums shall be paid by Borrower. Lender shall be named as an additional loss payee.
5. Preservation and Maintenance of Property. Borrower agrees: (a) to keep the Property and Improvements in decent, safe, sanitary and tenantable condition and repair and permit no waste thereon or thereto; (b) not to commit or suffer to be done or exist on or about the Property or Improvements any condition causing the Property to become less valuable; (c) not to construct any buildings or improvements on the Property other than the buildings and improvements contemplated by the Loan Documents or add to, remove, demolish or structurally alter any buildings and improvements now or hereinafter located on the Property -
- other than as contemplated by the Loan Documents; (d) to repair, restore, or rebuild promptly any buildings or improvements on the Property which may become damaged or be destroyed while subject to the lien of this Deed of Trust; (e) to comply with all applicable laws, ordinances and governmental regulations affecting the Property or Improvements, or requiring any alteration or improvement thereof, and not to suffer or permit any violations of any such law, ordinance or governmental regulation, nor any covenant, condition or restriction affecting the Property; (f) not to initiate or acquiesce in any change in any zoning or other land use or legal classification which affects any of the Property or Improvements without the Lender's prior written consent; and (g) not to alter the use of all or any part of the Property without prior written consent of Lender.
Protection of Lender's Security.
a. Borrower shall appear and defend any action or proceeding purporting -
to affect the security hereof or the rights of the lender. if borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects Lender's interest in the Property or Improvements, including, but not limited to, foreclosure, involuntary sale, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or descent, then Lender at Lender's option, upon notice to Borrower, may make such appearances, disburse such sums and take such action as is necessary to protect Lender's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Property to make repairs. b. Any amounts disbursed by Lender pursuant to this Paragraph 6, with interest thereon, shall become additional indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof, and shall bear interest from the date of disbursement at the legal rate of interest. Nothing contained in this Paragraph 6 shall require Lender to incur any expense or take any action hereunder.
7. Inspection. Lender may make or cause to be made reasonable entries upon any inspections of the Property, provided that Lender shall give Borrower and occupant notice prior to any such inspection.
8. Condemnation.
a. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall e paid to Lender subject to the rights of senior lien holders. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Deed of Trust, subject to any claims of prior lien holders, with the excess, if any, paid to Borrower. In the event of the partial taking of the Property, - unless Borrower and Lender otherwise agree in writing, and subject to any claims of prior lien holders, there shall be applied to the sums secured by this Deed of Trust such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this Deed of Trust immediately prior to the date of taking bears to the fair market value of the Property immediately prior to the date of taking, with the balance of the proceeds paid to Borrower.
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b. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemner offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date such notice is mailed, Lender is authorized to collect and apply the proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust.
Unless Lender and Borrower otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of payment or payments specified in the Note or change the amount of such payments.
9. Awards and Damages. All judgments, awards of damages, settlements, claims paid and compensation made in connection with or in lieu of 9a) taking of all or any part of or any interest in the Property or Improvements by or under assertion of the power of eminent domain, (b) any damage to or destruction of the Property or Improvements or any part thereof by insured casualty, and (c) any other taking, injury or damage to all or any part of the Property or Improvements, are hereby assigned to and shall be paid to the Lender. The Lender is authorized and empowered (but not required) to collect and receive any such sums and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as the Lender shall determine as its option. The Lender shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. All or any part of the amounts so collected -
and recovered by the Lender may be released to Borrower upon such conditions as the Lender may impose for its disposition. Application of all or any part of the - amounts collected and received by the Lender or the release thereof shall not cure or waive any default under this Deed of Trust. Any and all rights granted to Lender by this Paragraph shall specifically be subject to the rights of the holders of senior liens - and encumbrances approved by Lender.
10. Uniform Commercial Code Security Agreement. Financing Statement - and Fixture Filing.
This Deed of Trust is a security agreement and financing statement - under the Uniform Commercial Code for the benefit of Lender as secured party for ny of the items specified above as part of the Property or Improvements which nder applicable law, may be subject to a security interest pursuant to the Uniform -
Commercial Code, and Borrower hereby grants Lender a security interest in said items. This Deed of Trust is filed as a fixture filing and covers goods which are or are to become fixtures. The address of the principal place of business of Lender (secured party) from which information concerning the security interest may be obtained and the mailing address of Borrower (debtor) are set forth in this Deed of Trust. The types or items of collateral are described in Paragraph A of this Deed of Trust. Borrower agrees that the Lender may file any appropriate document in the appropriate index as a financing statement for any of the items specified above as part of the Property or Improvements. In addition, Borrower agrees to execute and deliver to the Lender, upon the Lender's request, any financing statements, as well as extensions, renewals and amendments thereof, and reproductions of this instrument in such form as the Lender may require to perfect a security interest with respect to said items. Borrower also agrees to execute and deliver to Lender, upon Lender's request, any and all documents in such form as the Lender may require to perfect a security interest in any structure placed on the property. -
Borrower shall pay all costs of filing such financing statements or recording Lender's legal interest in any structure, and any extensions, renewals, amendments, and releases thereof, and shall pay all reasonable costs and expenses of any record or title searches for financing statements, liens, and releases thereof, as the Lender may reasonably require. Without the prior written consent of Lender, Borrower shall not create or suffer to be created pursuant to the Uniform Commercial Code any other security interest in said items, including replacements and additions thereto, except as otherwise expressly permitted by Lender. Upon an acceleration as provided in Paragraph 19 hereof, the Lender shall have the remedies of a secured party under the Uniform Commercial Code and, at the Lender's option, may also invoke the other remedies provided in this Deed of Trust, in the Note and in Loan Documents as to such items. In exercising any of said remedies, the Lender may proceed against the items of real property and any items of personal property specified above as part of the Property and Improvements separately or together and in any order whatsoever, without in any way affecting the availability of the Lender's rights or remedies under the Uniform Commercial Cod or of the other remedies provided in this Deed of Trust, in the Note, in the Loan Documents, or by law.
b. Borrower agrees that the filing of any financing statement in the -
records normally having to do with personal property shall not be construed as in any sheer gain reportin one roper or made is er of the
declared part of the real estate are, and at all times and for all purposes and in all proceedings both legal or equitable shall be, regarded as part of the real estate - irrespective of whether any such item is physically attached to the Property or any such item is referred to or reflected in any such financing statesmen so filed at any time.
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Similarly, the mention in any such financing statement of (1) compensation for damage to or destruction of the Property or Improvements by -
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insured casualty, or 92) any judgment, award, or other compensation for a taking of -
the Property and/or Improvements by eminent domain, or (3) the rents, royalties, issues, accounts and profits of the Property and Improvements under leases, shall never be construed as in any way altering any of the Lender's rights as determined by this Deed of Trust or impugning the priority of the Lender's lien granted hereby or by any other recorded document, but such mention in the financing statement is declared to be fore the protection of the Lender in the event that any court or judge shall at any time hold with respect to (1), (2), or (3) of this Paragraph that notice of the Lender's priority of interest to be effective against a particular class of person, including without limitation the federal government or any subdivision or entity thereof, must be filed as provided for in the Uniform Commercial Code.
11. Borrower Not Released. Extension of the time for payment of the sums secured by this Deed of Trust granted by Lender to Borrower or any successor - in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and borrower's successors in interest. lender shall not be required to commence proceedings against such successor or refuse to extend time for payment by reason of any demand made by the original Borrower or borrower's successors in interest.
- 12. Forbearance by Lender not a Waiver. any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The - procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
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13. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or - afforded by law or equity, and may be exercised concurrently, independently or successively.
- 14. Successors and Assigns Bound: Joint and Several Liability; Captions.
The covenants and agreement herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of Paragraph 16 hereof. All covenants and agreements of Borrower shall be joint and several. The captions and headings of the paragraphs of this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof.
- 15. Notice. Except for any notice required under applicable law to be given in another manner, any notices, demands and communications between the Lender and the Borrower shall be sufficiently given if, and shall not deemed given unless - dispatched by certified mail, postage prepaid, return receipt requested or delivered by express delivery service with the delivery receipt, to the address of the Lender shown below. Such written notices, demands and communications shall be -
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- effective on the date shown on the delivery receipt as the date delivered, the date on which delivery was refused, or the date upon which delivery was attempted. For the purposes of this section the address of the Lender is:
City of Exeter
137 North F. Street
- Exeter, CA 93221
Either the Borrower or Lender may designate another address for service of notices, demands or other communications by notice to the other party in the manner provided herein.
- 16. Governing Law: Severability. This Deed of Trust shall be governed by the laws of the State of California. In the event that any provision or clause of this Deed of Trust or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust or the Note which can be given effect without the conflicting provision, except as set forth in the Note and to this end the provisions of the Deed of Trust and the Note are declared to be severable.
17. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and of this Deed of Trust at the time of execution or after recordation hereof.
18. Transfer of the Property: Assumption.
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a. If all or any part of the Property or Improvements, or an interest therein, is sold or transferred by Borrower without Lender's prior written consent, -
excluding exceptions set forth in the Note or Regulatory Agreement, if any, Lender may, at Lender's option, declare all the sums secured by this Deed of Trust to be immediately due and payable. Lender and the person to whom the Property or -
Improvement is to be sold or transferred reach agreement in writing that the loan may be assumed. If Lender has waived the option to accelerate provided in this •Paragraph and if Borrower's successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Deed of Trust and the Note.
b. If Lender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with Paragraph 15 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by Paragraph 19 hereof.
19. Acceleration: Remedies.
a. Except as provided in Paragraph 18 hereof, upon Borrower's breach of -
any covenant or agreement of Borrower in this Deed of Trust, the Note, including the covenants to pay when due any sums secured by this Deed of Trust, or the Loan Documents, Lender shall mail notice to Borrower as provided in Paragraph 15 hereof specifying: (a) the breach; (b) the action required to cure such breach; (c) a date, no less than 30 days from the date the notice is mailed to Borrower, by which such breach must be cured; and (d) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Property and Improvements. However, in the event of a non- monetary breach which cannot reasonably be cured within the time period set forth in such notice, the loan may not be accelerated hereunder if within said designated time period Borrower has given written notice to Lender of Borrower's intention to cure said breach, has commenced to cure such breach and has diligently prosecuted and effected such cure which shall be completed no later than 60 days from the date notice of such breach is given. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale.
If the breach is not cured on or before the date specified in the notice, Lender at Lender's option may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect from the Borrower, or sale proceeds, if any, all reasonable costs and expenses incurred in pursuing the remedies provided in this Paragraph, including, but not limited to, reasonable attorneys' fees.
b. If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Lender's election to cause the Property and Improvements to be sold and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Lender or Trustee shall mail copies of such notice in the manner prescribed by applicable law to Borrower and to the other persons prescribed by applicable law. Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law. After the lapse of such time as may be required by applicable law, Trustee, without demand on Borrower, shall sell the Property ana Improvements at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously schedule sale. Lender or Lender's designee may purchase the Property and Improvements at any sale.
C. Trustee shall deliver to the purchaser Trustee's deed conveying the Property and improvements so sold without any covenant or warranty, expressed or implied. the recitals in the Trustee's deed shall be prima facie evidence of the truth - of the statements made therein. Trustee shall apply the proceeds of the sale in the following order: (1) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (2) -
- to all sums secured by this Deed of Trust and (3) the excess, if any, to the person or persons legally entitled thereto as determined by Trustee. - 20. Assignment of Rents: Appointment of Receiver: Lender in Possession.
As additional security hereunder, Borrower hereby assigns to Lender the rents of the Property and Improvements, provided that borrower shall, prior to acceleration under Paragraph 19 hereof or abandonment of the Property, have the right to collect such rents as they become due and use them in accordance with the -
provisions of the Loan Documents.
- b. Upon acceleration under Paragraph 19 hereof or abandonment of the Property, Lender, in person, by agent or by judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and - Improvements and to collect the rents of the Property and Improvements including those past due. All rents collected by Lender or the Receiver shall be applied first to payment of the costs of management of the Property and Improvements and collection of rents including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Deed of Trust. Lender and the receiver shall be liable to account only for those rents actually received. The provisions of this Paragraph and Paragraph 19 shall operate subject to the claims of prior lien holders.
21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Lender shall request Trustee to reconvey the Property and Improvements and shall surrender this Deed of Trust and all notes evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the Property and Improvements without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any. The recitals in the reconveyance of any matters of facts shall be conclusive proof of the truthfulness thereof.
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22. Substitute Trustee. Lender, at Lender's option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. Without conveyance of the Property and Improvements, the successor - trustee shall succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law.
23. Request for Notice. Borrower requests that copies of the notice of default and notice of sale be sent to Borrower's address. -
furnishing the tatement obligion as pered byle a 2 not to exed it coe of California.
25. Use Of Property. Borrower shall not permit or suffer the use of any of -
- the Property or Improvements for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed. - 26. Regulatory Agreement Controls. In the event of any inconsistencies between the terms set forth in the Regulatory Agreement and the terms of this Deed of Trust, the terms of the Regulatory Agreement shall control. -
In Witness Whereof, Borrower has executed this Deed of Trust. - BORROWER
- By:
Scot B. Townsend
By: _--
- Kenny D. Walker
- BORROWER'S ADDRESS
CSM Development
- 983 North Homassel Avenue
Lindsay, CA 93247
- Approved as to form: City Attorney
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- STATE OF CALIFORNIA,
COUNTY OF I S.S.
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On _ before me, _ → a Notary Public in
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and for said County and State, personally appeared _
- personally known to me (or proved to me on
the basis of satisfactory evidence) to be
- the person(s) whose name(s) is/ are subscribed to
the within instrument and acknowledge to me that
he/she/they executed the same in his/her/their
- authorized capacity(ies), and that by his/her/ their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
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WITNESS my hand an official seal.
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Signature
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STATE OF CALIFORNIA,
- COUNTY OF ) S.S.
- before me, a Notary
Public in and for said County and State, personally appeared -
personally known to me (or proved to me on
the basis of satisfactory evidence) to be
the person(s) whose name(s) is / are subscribed to
the within instrument and acknowledged to me that
he/she/they executed the same in his/her/ their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
- acted, executed the instrument.
WITNESS my hand and official seal.
Signature
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Exhibit A
Legal Description
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Tolo weal property situated in the County of Tulare, State of California, described as -
- PARCEL 1:
- Lots 17, 18, 19, 20 and the South half of Lot 21 in Block 42 of the City of Exeter, in the City of Exeter, County of Tulare, State of California, as per map recorded in Book 2, page 52 of Maps, in the office of the County Recorder of said County. -
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME)
PROMISSORY NOTE
SECURED BY A DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT & FIXTURE FILING
(Multi-Family Construction & Permanent Financing Loans) $952,381.00
Date JUNE 17, 1996
Loan No. 25 - HOME -0144
FOR VALUE RECEIVED, the undersigned, CSM Development, with its principal office at 983 North Homassel Avenue, Lindsay, California, 93247, (the "Borrower"), hereby promises to pay to the order of the City of Exeter, a municipal corporation of the State of California with its office at 137 North F. Street, Exeter, California 93221 (the "City") the principal amount equal to Nine hundred and fifty- two thousand and three hundred and eighty-one dollars ($952,381.00) or so much thereof as may be advanced by the City to the borrower pursuant to a Regulatory Agreement dated of even date herewith by and between the Borrower and the City (the "Regulatory Agreement"), and a Standard Agreement #95-HOME-0174, between and the City, dated6 17-96 (the Standard Agreement"). The obligations of the Borrower in respect of all such advances is subject to the terms of (a) the Regulatory Agreement, (b) this Note, (c) the Deed of Trust and Assignment of Rents dated of even date herewith securing this Note (the "Trust Deed"), (d) the Development Agreement between the Borrower and the City (the "Development Agreement"), and (e) the Standard Agreement. (Hereinafter, the Trust Deed, the Development Agreement, the Regulatory Agreement and the Standard Agreement are collectively referred to as the "Loan Documents.")
1. This Note evidences the obligation of the Borrower to the City for the repayment ot tunds loaned to the Borrower by the City for the purpose of assisting the Borrower to reconstruct a 18-unit rental housing project in the City of Exeter, as more fully described in the Development Agreement (the "Development") and to be located on that particular property described in the Trust Deed (the "Property").
The Borrower agrees to pay the entire unpaid principal amount advanced
11. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby unless, in the sole discretion of the Exeter Redevelopment Agency, the invalidity, illegality, or unenforceability of the provision negates the program purpose and/or threatens the security of the Exeter Redevelopment Agency:
12. In the event of any inconsistencies between the terms set forth in the Loan Documents and the terms of the Promissory Note, the terms of the Loan Documents shall prevail.
13. The Borrower hereby certifies to the Exeter Redevelopment Agency that this is the Promissory Note described in and secured by the Trust Deed covering the real and personal property therein described.
Executed at VISALA _ California.
BORROWER
By:
By:
BORROWER'S ADDRESS
CSM Development
983 North Homassel Avenue
Lindsay, CA 93247
Approved as to form: City Attorney
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME)
PROMISSORY NOTE
SECURED BY A DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT & FIXTURE FILING
(Multi-Family Construction & Construction Loans)
$35,000.00
Date JUNE 12 1996
Loan No. 95 - HOME -0144.
FOR VALUE RECEIVED, the undersigned, CSM Development with its principal office at 983 North Homassel Avenue, Lindsay, California, CSM Development (the "Borrower"), hereby promises to pay to the order of the Exeter Redevelopment Agency of Exeter, an agency of the City of Exeter with its office at with its office 137 North F. Street, Exeter, California 93221 (the "City") the principal amount equal to thirty-five thousand dollars ($35,000.00) or so much thereof as may be advanced by the Exeter Redevelopment Agency to the Borrower pursuant to a Regulatory Agreement dated of even date herewith by and between the Borrower and the City of Exeter (the "Regulatory Agreement"), and a Standard Agreement #95-HOME-0144, between and the City of Exeter, dated le-17-96 (the Standard Agreement") together with interest thereon as specified herein. The obligations of the Borrower in respect of all such advances is subject to the terms of (a) the Regulatory Agreement, (b) this Note, (c) the Deed of Trust and Assignment of Rents dated of even date herewith securing this Note (the "Trust Deed"), (d) the Development Agreement between the Borrower and the Exeter Redevelopment Agency (the "Development Agreement"), and (e) the Standard Agreement. (Hereinafter, the Trust Deed, the Development Agreement, the Regulatory Agreement and the Standard Agreement are collectively referred to as the "Loan Documents.")
1. This Note evidences the obligation of the Borrower to the Exeter Redevelopment Agency for the repayment of funds loaned to the Borrower by the Exeter Redevelopment Agency for the purpose of assisting the Borrower to reconstruct a 18-unit rental housing project in the Exeter Redevelopment Agency of Exeter, as more fully described in the Development Agreement (the "Development") and to be located on that particular property described in the Trust Deed (the "Property").
The Borrower agrees to pay the entire unpaid principal amount advanced under the Loan Documents and this Note, as follows:
In consideration of $35,000 from the Exeter Redevelopment Agency, the pro rata remainder of the full $35,000 is due and payable upon transfer of title.
The amount due and payable under this Note and the Trust Deed is payable at the principal office of the Exeter Redevelopment Agency set forth above, or at such other place of places as the Exeter Redevelopment Agency hereof may designate to the Borrower in writing from time to time, an any coin or currency of the United States of America which on the respective date of payment thereof shall be legal tender for the payment of public and private debts.
4. All covenants, conditions and agreements contained in the Loan Documents are hereby made a part of this Note. If any installment under this Note is not paid when due or any default occurs in the agreements contained in this Note or the Loan Documents, the entire principle amount outstanding shall become due and payable immediately at the option of the Exeter Redevelopment Agency. All amounts past due shall bear interest at the legal rate of interest. The date specified for payment shall not be less than thirty days from the date such notice is mailed. The Exeter Redevelopment Agency may exercise this option to accelerate during any default by Borrower regardless of any prior forbearance. In the event of default, the Exeter Redevelopment Agency may at its option, exercise off of its rights and remedies enumerated herein, which rights are in addition to and not in limitation of any other rights the Exeter Redevelopment Agency may have under applicable law. If suit is brought to collect this Note, the Exeter Redevelopment Agency shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to, reasonable attorneys' fees. The following shall also constitute default under this Note: Occurrence of (a) the Borrower's becoming insolvent or bankrupt or being unable or admitting in writing its inability to pay its debts as they mature or making a general assignment with creditors; (b) proceedings for the appointment of a receiver, trustee, or liquidator of the assets of the Borrower or a substantial part thereof, being authorized or instituted by or against the Borrower which proceedings are not dismissed within sixty (60) days of institution; (c) proceedings under any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, liquidation or other similar law of any jurisdiction being authorized or instituted against the Borrower which proceedings are not dismissed within sixty (60) days of institution; or (d) dissolution of the corporate or partnership structure of the Borrower.
No delay or failure of Exeter Redevelopment Agency in the exercise of any right or remedy hereunder or under any other agreement which secures or is related hereto shall affect any right or remedy, and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof, and no action taken or omitted by Exeter Redevelopment Agency shall be deemed a waiver of any such right or remedy.
The Borrower hereby agrees to pay all costs and expenses, including reasonable attorneys' fees, which may be incurred by the Exeter Redevelopment Agency hereof in the enforcement of this Note, the Deed of Trust, or any term or provision thereof. Each maker, endorser, surety, and guarantor of this Note hereby jointly and severally waives demand, protest, presentment, notice of nonpayment, notice of protest, notice of dishonor, and alligence in bringing suit against any party and does hereby consent the time of payment of all or any part of said amount may be extended from time to time by the Exeter Redevelopment Agency without notice. The obligations under this Note shall be without recourse against the Borrower and any partners, general or limited, of the Borrower.
7. Any notice to the Borrower provided for in this Note shall be given by mailing such notice by certified mail addressed to the borrower at the address stated below, or to such other address as the Borrower may designate by written notice to the Exeter Redevelopment Agency. Any notice to the Exeter Redevelopment Agency shall be given by mailing such notice by certified mail, return receipt requested, to the Exeter Redevelopment Agency at the address stated above, or at such other address as may have been designated by written notice to Borrower.
This Note shall be binding upon the Borrower and its successors and assigns.
The Borrower shall not make any sale, assignments, or conveyance, or ransfer in any other form, of the Development referred to above or any part thereof or of any of its interest therein other than in accordance with the terms of the Loan Documents and with the prior written approval of the Exeter Redevelopment Agency.
The Borrower shall not be entitled to pay the indebtedness evidenced by this Note, or any part thereof, prior to or in advance of the time for payment, without the prior written consent of the Exeter Redevelopment Agency.
10. This Note shall be construed in accordance with and be governed by the laws of the State of California.
under the Loan Documents and this Note, as follows.
$952,381.00 all due and payable in fifty-five (55) years, annual payment to the City of 50% of all residual receipts over $12,000 as demonstrated by the annual financial statement subject to the following conditions.
A) Annual financial statement shall be defined as the financial statement of operating expenses and revenues prepared at Borrower's expense, by a certified public accountant acceptable to the City, which shall be the basis for determining the residual receipts.
B) Residual receipts shall mean all revenues reduced in the following order:
1) annual operating expenses, including other debt service; and 2) payments to the operating and replacement reserve funds;
C) There shall be no annual interest rate on the total principal amount of $952,381.00.
D) Annual payments required per the loan terms will be made on April 30 of each year beginning April 30, 1998.
Pa There ofall be no pepayment penaly assessed theinte Borrower for
3. The amount due and payable under this Note and the Trust Deed is payable at the principal office of the City set forth above, or at such other place or places as the City hereof may designate to the Borrower in writing from time to time, in any coin or currency of the United States of America which on the respective date of payment thereof shall be legal tender for the payment of public and private debts.
4. All covenants, conditions and agreements contained in the Loan Documents are hereby made a part of this Note. If any installment under this Note is not paid when due or any default occurs in the agreements contained in this Note or the Loan Documents, the entire principal amount outstanding and shall become due and payable immediately at the option of the City. All amounts past due shall bear interest at the legal rate of interest. the date specified for payment shall not be less than thirty days from the date such notice is mailed.
The Cite ma exercise this option to acterate during any deed by Barrower option, exercise all of its rights and remedies enumerated herein, which rights are in addition to and not in limitation of any other rights the City may have under applicable law. If suit is brought to collect this Note, the City shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to, reasonable attorneys' fees. The following shall also constitute default under this Note: Occurrence of (a) the Borrower's becoming insolvent or bankrupt or being unable or admitting in writing its inability to pay its debts as they mature or making a general assignment with creditors; (b) proceedings for the appointment of a receiver, trustee, or liquidator of the assets of the Borrower or a substantial part thereof, being authorized or instituted by or against the Borrower which proceedings are not dismissed within sixty (60) days of institution; (c) proceedings under any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, liquidation or other similar law of any jurisdiction being authorized or instituted against the Borrower which proceedings are not dismissed within sixty (60) days of institution; or (d) dissolution of the corporate or partnership structure of the Borrower.
5. No delay or failure of City in the exercise of any right or remedy hereunder or under any other agreement which secures or is related hereto shall affect any right or remedy, and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof, and no action taken or omitted by City shall be deemed a waiver of any such right or remedy.
The Borrower hereby agrees to pay all costs and expenses, including reasonable attorneys' fees, which may be incurred by the City hereof in the enforcement of this Note, the Deed of Trust, or any term or provision thereof.
Each maker, endorser, surety, and guarantor of this Note hereby jointly and severally waives demand, protest, presentment, notice of nonpayment, notice of protest, notice of dishonor, and diligence in bringing suit against any party and does hereby consent the time of payment of all or any part of said amount may be extended from time to time by the City without notice. The obligations under this Note shall be without recourse against the Borrower and any partners, general or limited, of the Borrower.
7. Any notice to the Borrower provided for in this Note shall be given by mailing such notice by certified mail addressed to the borrower at the address stated below, or to such other address as the Borrower may designate by written notice to Borrower.
This Note shall be binding upon the Borrower and its successors and assigns.
The Borrower shall not make any sale, assignments, or conveyance, or transfer in any other form, of the Development referred to above or any part thereof or of any of its interest therein other than in accordance with the terms of the Loan Documents and with the prior written approval of the City.
Note, or any part thereof, prior to or in advance of the time for payment, The Borrower shall not be entitled to pay the indebtedness evidenced by this without the prior written consent of the City.
10. This Note shall be construed in accordance with and be governed by the laws of the State of California.
11. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby unless, in the sole discretion of the program purpose and/or threatens the security of the City. the City, the invalidity, illegality, or unenforceability of the provision negates
12. In the event of any inconsistencies between the terms set forth in the Loan Documents shall prevail. Documents and the terms of the Promissory Note, the terms of the Loan
13. The Borrower hereby certifies to the City that this is the Promissory Note described in and secured by the Trust Deed covering the real and personal property therein described.
Executed at VISALA, California.
BORROWER
CSM Development
983 North Homassel Avenue
By:
By:
Approved as to form: City Attorney
Exhibit F to Development Agreement
- Promissory Note to the Exeter Redevelopment Agency
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
-
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME)
- PROMISSORY NOTE
SECURED BY A DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT & FIXTURE FILING
(Multi-Family Construction & Construction Loans)
-
$35,000.00
Date , 1996
Loan No. 95 - HOME - 0144
FOR VALUE RECEIVED, the undersigned, CSM Development with its principal office at 983 North Homassel Avenue, Lindsay, California, CSM Development (the "Borrower"), hereby promises to pay to the order of the Exeter - Redevelopment Agency of Exeter, an agency of the City of Exeter with its office at with its office 137 North F. Street, Exeter, California 93221 (the "City") the principal amount equal to thirty-five thousand dollars ($35,000.00) or so much thereof as may be advanced by the Exeter Redevelopment Agency to the Borrower pursuant to a Regulatory Agreement dated of even date herewith by and between the Borrower and the City of Exeter (the "Regulatory Agreement"), and a Standard Agreement #95-HOME-0144, between and the City of Exeter, dated (the Standard Agreement) together with interest thereon as specified herein. The obligations of the Borrower in respect of all such advances is subject to the terms of (a) the Regulatory Agreement, (b) this Note, (c) the Deed of Trust and Assignment of Rents dated of even date herewith securing this Note (the "Trust Deed"), (d) the Development Agreement between the Borrower and the Exeter Redevelopment Agency (the "Development Agreement"), and (e) the Standard Agreement. (Hereinafter, the Trust Deed, the Development Agreement, the Regulatory Agreement and the Standard Agreement are collectively referred to as the "Loan Documents.")
1. This Note evidences the obligation of the Borrower to the Exeter Redevelopment Agency for the repayment of funds loaned to the Borrower by the Exeter Redevelopment Agency for the purpose of assisting the Borrower to reconstruct a 18-unit rental housing project in the Exeter Redevelopment Agency of Exeter, as more fully described in the Development Agreement (the - "Development") and to be located on that particular property described in the Trust Deed (the "Property'").
2. The Borrower agrees to pay the entire unpaid principal amount advanced - under the Loan Documents and this Note, as follows:
In consideration of $35,000 from the Exeter Redevelopment Agency, that the Development is held by the Borrower for 10 years, the entire the developer will not sell the Development for 10 years. In the event - $35,000 shall be forgiven. If the Development is sold within 10 years, the pro rata remainder of the full $35,000 is due and payable upon transfer of title.
-
The amount due and payable under this Note and the Trust Deed is payable at the principal office of the Exeter Redevelopment Agency set forth above, or at designate to the Borrower in writing from time to time, an any coin or such other place of places as the Exeter Redevelopment Agency hereot may currency of the United States of America which on the respective date of payment thereof shall be legal tender for the payment of public and private debts.
4. All covenants, conditions and agreements contained in the Loan Documents paid when due or any default occurs in the agreements contained in this Note are hereby made a part of this Note. If any installment under this Note is not become due and payable immediately at the option of the Exeter or the Loan Documents, the entire principle amount outstanding shall rate of interest. The date specified for payment shall not be less than thirty Redevelopment Agency. All amounts past due shall bear interest at the legal days from the date such notice is mailed. The Exeter Redevelopment Agency may exercise this option to accelerate during any default by Borrower Redevelopment Agency may at its option, exercise off of its rights and regardless of any prior forbearance. In the event of default, the Exeter limitation of any other rights the Exeter Redevelopment Agency may have remedies enumerated herein, which rights are in addition to and not in under applicable law. If suit is brought to collect this Note, the Exeter Redevelopment Agency shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to, reasonable attorneys' fees. The Borrower's becoming insolvent or bankrupt or being unable or admitting in following shall also constitute default under this Note: Occurrence of (a) the writing its inability to pay its debts as they mature or making a general trustee, or liquidator of the assets of the Borrower or a substantial part thereof, assignment with creditors; (b) proceedings for the appointment of a receiver, being authorized or instituted by or against the Borrower which proceedings are not dismissed within sixty (60) days of institution; (c) proceedings under liquidation or other similar law of any jurisdiction being authorized or any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, -
sixty (60) days of institution; or (d) dissolution of the corporate or partnership instituted against the Borrower which proceedings are not dismissed within structure of the Borrower.
- No delay or failure of Exeter Redevelopment Agency in the exercise of any related hereto shall affect any right or remedy, and no single or partial right or remedy hereunder or under any other agreement which secures or is exercise of any such right or remedy shall preclude any further exercise thereof, and no action taken or omitted by Exeter Redevelopment Agency shall be deemed a waiver of any such right or remedy.
-
6. reasonable attorneys' fees, which may be incurred by the Exeter The Borrower hereby agrees to pay all costs and expenses, including -
Trust, or any term or provision thereof. Each maker, endorser, surety, and Redevelopment Agency hereof in the enforcement of this Note, the Deed of - guarantor of this Note hereby jointly and severally waives demand, protest, diligence in bringing suit against any party and does hereby consent the time presentment, notice of nonpayment, notice of protest, notice of dishonor, and time by the Exeter Redevelopment Agency without notice. The obligations of payment of all or any part of said amount may be extended from time to under this Note shall be without recourse against the Borrower and any partners, general or limited, of the Borrower.
7. mailing such notice by certified mail addressed to the borrower at the address Any notice to the Borrower provided for in this Note shall be given by written notice to the Exeter Redevelopment Agency. Any notice to the Exeter stated below, or to such other address as the Borrower may designate by Redevelopment Agency shall be given by mailing such notice by certified mail, return receipt requested, to the Exeter Redevelopment Agency at the written notice to Borrower. address stated above, or at such other address as may have been designated by
8. The Borrower shall not make any sale, assignments, or conveyance, or This Note shall be binding upon the Borrower and its successors and assigns. thereof or of any of its interest therein other than in accordance with the transfer in any other form, of the Development referred to above or any part terms of the Loan Documents and with the prior written approval of the Exeter Redevelopment Agency.
Note, or any part thereof, prior to or in advance of the time for payment, The Borrower shall not be entitled to pay the indebtedness evidenced by this without the prior written consent of the Exeter Redevelopment Agency.
10. of the State of California. This Note shall be construed in accordance with and be governed by the laws
11. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby unless, in the sole discretion of -
- 12.
In the event of any inconsistencies between the terms set forth in the Loan Documents and the terms of the Promissory Note, the terms of the Loan Documents shall prevail.
13. The Borrower hereby certifies to the Exeter Redevelopment Agency that this is the Promissory Note described in and secured by the Trust Deed covering the real and personal property therein described.
-
Executed at . , California.
-
BORROWER
CSM Development
By:
- By:
-
- BORROWER'S ADDRESS
CSM Development
983 North Homassel Avenue
Lindsay, CA 93247
Approved as to form: City Attormey
BANK HE SIERRA
KEEP CLIMBING
July 13, 2022
Srinivasula Polimera
4226 Torres Ave.
Fremont, CA 94536
RE: Expression of Interest
Dear Mr. Polimera,
This Expression of Interest letter represents Bank of the Sierra's proposal to provide a credit facility to support your Comm. RE Purchase . This letter does not represent a commitment to lend but merely serves as a beginning point from which to proceed with evaluating the credit facility proposal. Further "due diligence" may reveal information requiring modification of this proposal.
Credit Facility #1 Proposed Terms and Conditions:
1. Borrower: Srinivasula Polimera
2. Type of Credit: Commercial Real Estate Non-Owner Occupied Term Loan
3. Loan Amount: $ 900,000
4. Purpose: Purchase of 18 unit multi-family in Exeter
5. Interest Rate: Initial rate fixed at loan documentation for 10 years based on 10year CMT + 2%.
Rate to reset every 5 years at prevailing Syear CMT + 2% to maturity
6. Repayment Terms: Principal & Interest Monthly
7. Maturity: 6/20/51(est). Loan to mature concurrently with City of Exeter subordinated note.
8. Loan Fee: 0.50% (S4,500) + all 3rd party fee's ie: appraisal, flood, title, environ., legal, etc.
9. Pre-Payment: Tiered prepay decending annually at 5%, 4%, 3%, 2%, 1%.
11. Maximum Loan to Value: 42.86%
12. Collateral Value Based on: Appraised value or Purchase Price, whichever is less.
13. Guaranties: NA
14. Covenants: Property debt service 1:1, Min Pers NW of S4Mil. Provide: Semi-annual Rent Rolls, Annual TR's, City Annual Report&Budget. BOTS Legal review of existing docs @ buyer cost This credit facility request is further conditioned upon:
• Receipt and evaluation of a complete credit package.
• Full bank underwriting as will be determined solely by Bank of the Sierra after receipt of all requested documents pertaining to the subject loan and its guarantors.
• The loan is subject to:
• A current real estate appraisal, performed by a Bank of the Sierra approved appraiser, with an appraised amount suitable for bank underwriting guidelines.
• An acceptable environmental report performed by a Bank of the Sierra approved party. • Title insurance issued by a title insurance company acceptable to Bank of the Sierra with all appropriate endorsements.
BANK THE SIERRA
KEEP CLIMBING
• Other standard bank conditions applicable to this type of financing including, but not limited to, execution of a Promissory Note, Security Agreements, and other documents as required. • Bank of the Sierra loan committee approval.
The above proposed Rates, Terms, and Conditions are subject to change.
We would welcome the opportunity to engage in further discussions with you regarding this proposal and to perform Closing Costs, no later than to the address noted below.
Sincerely,
Rustle
Bank of the Sierra
Janice Castle
Market President
90 N. Main St, Porterville, CA 93257
559-791-3144
[email protected]
Accepted by:
Date
Date
7 2207-0088603
recorded RED FEE 2.00
Free recording in accordance with afficial Record
California Government Code Tutere
Section 6103 and 27383
Clerk Recorder
RECORDING REQUESTED BY AND : NA
29:21AX 03-001-2007 : Page l of 7
WHEN RECORDED MAIL TO:
City of Exeter
P.O. Box 237
Exeter, CA 93221
(559) 592-9244
(Space above this line for Recorder's Use)
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
HOME INVESTMENT PARTNERSHIP PROGRAM (HOME)
FIRST AMENDMENT TO REGULATORY AGREEMENT
LOAN NUMBER 95-HOME-0144
This First Amendment to Regulatory Agreement (the "Amendment"), dated August 13, 2007, is made and entered into by and among CSM Development, a for profit corporation (the "Borrower"); and the City of Exeter, a municipal corporation in the State of California (the "City").
RECITALS
A. The City and the Borrower have entered into a Regulatory Agreement dated June 17, 1996 for Loan Number 95-HOME-0144 and recorded as Instrument Number 96-044182 in the official records of the County of Tulare on June 20, 1996 (together with this Amendment, the "Agreement") with respect to the reconstructing of an 18-unit rental housing development located at 211 North F Street, Exeter, CA 93221, and more particularly described in Exhibit A (the "Property"), attached hereto and incorporated herein. The term of the Agreement shall apply to the Development through and including the date which is 55 years from the date of its recordation, June 20, 1996.
The Borrower has requested, and the City has agreed, that the Agreement be amended in order to correct the lease term to correspond to the HOME Final Rule 24 CFR 92.253.
C. The Borrower has requested, and the City has agreed, that Exhibit B to the Agreement, "Schedule of Assisted Units" be amended in order to correct the number of HOME Assisted Units from eighteen (18) to eleven (11).
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are a part of this Amendment.
2. Definitions. Unless the context requires otherwise, or the terms are defined herein, the terms used in this Amendment shall be governed by the definitions set forth in the Agreement. The term "Amendment" as used in the revised terms of the Agreement shall mean this Amendment.
3. Subsection a. of Section 9 to the Agreement, "Rental Agreement and Occupancy Procedures (the "Lease") is hereby amended to read as follows:
a. Each eligible household selected to occupy a unit in the Development shall enter into a written rental agreement with the Borrower on a form approved by the City containing such provisions as are required by the HOME Regulations. The lease between a tenant and an owner of rental housing assisted with HOME funds must be for not less than one year, unless by mutual agreement between the tenant and the owner.
Exhibit B to the HOME Regulatory Agreement, "Schedule of Assisted Units," is hereby deleted in its entirety and replaced with the "Revised Exhibit B, Schedule of Assisted Units" which is attached hereto and incorporated herein.
as of the 13" day of August 2007. IN WITNESS WHEREOF, the parties have executed this First Amendment to Regulatory Agreement
BORROWER CITY
CSM Development City of Exeter
983 North Homassel Avenue 137 North F Street
Lindsay, CA 93247 Exeter, CA 93221
By: By:
Townsend City Administrator
By: Porn sile
Kenny D. Walker
Exhibit A to Regulatory Agreement
Legal Description
That real property situated in the State of California, County of Tulare, and described as follows:
PARCEL 1:
Lots 17, 18, 19, 20 and the South half of Lot 21 in Block 42 of the City of Exeter, in the County of Tulare, State of California, as per map recorded in Book 2, page 52 of Maps, in the office of the County Recorder of said Exhibit B to Regulatory Agreement
SCHEDULE OF ASSISTED UNITS
There are to be at all times 11 HOME assisted units in the Development. The HOME assisted units are the total number of HOME assisted units in the Development remains constant. designated as "floating." Those HOME assisted units designated as floating may change overtime as long as Development Initial Occupancy:
no greater than 60% of area median incomes. Upon initial occupancy, at least 90% of the assisted units must be rented to persons and families with incomes During the Period of Affordability:
At least 20% of the HOME assisted units must be occupied by Very Low-Income (50% or less of area median income households paying rents not exceeding Low HOME Rent Area median incomes are set by HUD and adjusted for family size.
Low HOME Rents
Very Low-Income Size
#of Units
1 Bedroom 1
2 Bedroom 2
Total of VLI Units 3
Low Income Size
# of Units
1 Bedroom 3
2 Bedroom 4
| 3 Bedroom 1
Total of LI Units 8
Total HOME Units 11
E:ILINDAISLKICOEIDept. Hsg. & Commun. Dev. - 1st Amend
CITY OF EXETER
COUNTY OF TULARE )
STATE OF CALIFORNIA
On October 8, 2007, before me, SANDRA M. GUILLEN, DEPUTY CITY CLERK, CITY OF EXETER, personally appeared KENNY D. WALKER, personally known to e or proved to me on the basis of satistactory evidence) to be the person (s) whos ame(s) is/are subscribed to the within instrument and acknowledged to me thi he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
• ot BIRTER
(Seal) 116r
• INCO
ATED MARCH
CITY OF EXETER
STATE OF CALIFORNIA COUNTY OF TULARE
CITY OF EXETER, personally appeared SCOT B. TOWNSEND, personally known to On October 8, 200Z, before me, SANDRA M. GUILLEN, DEPUTY CITY CLERK, 2i(s) tore s merite the basis of satisfactory evidence) to be the person (s) whose he he they secute t) on the instrument the personi, ore ty ly up on behal o le within instrument and acknowledged to me th instrument. which the person(s) or the entity upon behalf of which the person(s) acted, executed the • person(S), or the entity upon behalt ol WITNESS my hand and official seal.
Signature
Vancha Mieller SKET
(Seal)
TED
CITY OF EXETER
COUNTY OF TULARE
STATE OF CALIFORNIA )
On October 8, 2007, before me, SANDRA M. GUILLEN, DEPUTY CITY CLERK, CITY OF EXETER, personally appeared JOHN KUNKEL, personally known to me (or is/are subscribed to the within instrument and acknowledged to me that he/she/they proved to me on the basis of satisfactory evidence) to be the person (s) whose names) executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(S) on the instrument the person(s), or the entity upon behalf of which the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal. DU BRETE
sierature ancha Medulla (Seal)
CORro MARCH
TEn
Srinivasula Polimera short real estate biography:
Srinivasula Polimera has over 12+ years' active experience in real estate, And 25 years otal experience. Holding both residential and apartment properties, total 34 unit ncludes multiplex commercial apartment, Single Family Residences, Duplex, Triplexe:
and fourplex, in California includes renting some of them to low-income tenants to stay..
1. Polimera attended real-estate classes, seminars, webinars from Rich-Dad, Commercial Property Advisors, Lifestyles Unlimited®, RealEstateU®
2. Polimera has Bachelor's degree and Project Management Professional certifications. Using this knowledge to investing in real estate to buy and rent it to low income people to stay in home.
3. The main criteria is to heip low income people as much as 1 can.
4. Using buy and hold strategy in real estate, and expand the real estate portfolio further as I plan to devote majority of my time into real estate as i progress.
5. The calculation numbers I looked at before acquiring the property are: socio- economic factors, demographics, Net Operating income (NOl), Debt Coverage Ratio, Capitalization Rate...etc
6. Acquiring the real estate properties and helping low income people by leveraging my real estate creative knowledge and financials.
7. Total investment net worth of my properties are over 7.9Million, got better deals when the prices were low starting from 2009 year and onwards. I was able to heip low-income peopie to rent at low price
Details on Polimera's real estate holding list:
• 2017: Address: 103-105 Morion Bivd, Modesto, CA, bought apartment complex, and I rented some units to low income people. some tenants are in section 8 tenants. etc.
• 2012: Address: 2560 Antoine ci, Stockton, CA-95209, bought in 2012 and I rented some units to low income people.
• 2014: Address: 811 Astor Dr, Stockton, CA-95210, bought in 2014 and I rented some units to low income people.
• 2015: Address: 8123 Albany Dr, Stockton, CA-95210, bought in 2015 and I rented some units to iow income people.
• 2016: Address: 8135 Albany Dr, Stockion, CA-95210, bought in 2016 and I rented some units to low income people.
• 2016: Address: 1870 Bayberry Ln, Tracy, CA - 95376, bought in 2016 and I rented
• 2017: Address: 8020 Cambridge Cir, White Settlement, TX, bought in 2017 and i rented
• 2012: Address: 485 Blanco ct, San Ramon, CA-94583,
2017:bought and i rented.
• 2019: Address: 4226 Torres Ave, Fremont, CA-94536, Primary residence
• 2016: Address: 524 South Sutter St, Stockton, CA-95203, bought in 2016 and I rented to low income people.
CSM Development
33786 Globe Drive
Springville, CA 93265
City of Exeter
Rainbow Moore, Finance Director
137 North F Street
Exeter, CA 93221
City of Exeter:
The City of Exeter holds a deed of trust in the amount of $952,381 (from funds received from an current owners contributed a total over $600,000 into the project. Of that $600,000 plus contribution, a borrowed amount of $334,000 was placed as a lien in first position.
In 1995, current owners obtained the $952,381 HCD grant from the State of California on behalf of the City to make the rehabilitation project financially feasible (the out of code structure in 1996 had to be torn down and all 18 tenants had to be paid relocation assistance). The HCD grant was obtained with the assurance from the City that the new structure would have some dwelling units set aside for affordability (restricted rent limits that the owners can charge) for a term of 55 years. To ensure this requirement was to be met, HCD required the $952,381 grant to be place as a lien (as a silent loan; no payments required) against the property for that 55 year period.
The current owners have met the affordability requirements over the last 26 years and have repaid the bank loans against the property. Because of health reasons, the owners have entered into an escrow for a new buyer that will assume the $952,381 loan and the affordability requirements from HCD. Like the previous owners, the new owner will need to obtain a bank loan and place a first lien against the property from the Bank.
The advantages to restoring a new lien in first position is that it will a) allow the new owner to continue to agree to and to meet the affordability requirements for the remaining 29 years of the agreement; ensuring that the City of Exeter can have safe, clean and attractive affordable housing units available for its residents, b) assist the City in continuing to meet its grant agreements with CD to ensure continued eligibility for future grants, and c) allow the local Bank of the Sierra as a financial institution to meet its affordable housing requirements; the local banks will not do a second position lien behind the HCD grant/loan.
The disadvantage of allowing a first lien in the amount of $1,200,000 is that the City might have to cure the loan if the new owner fails to meet his loan obligations to the bank. To mitigate this disadvantage, the City should require two things: a) that the new owner contribute 25% of the CSM Development
33786 Globe Drive
Springville, CA 93265
new lien amount in cash ($300,000 in cash, remaining $900,000 in a loan) and b) ensure that the property is valued in excess of $1,852,381. The value of the property is currently estimated in excess of $2,150,000, based on recent comparable sales.
Sincerely,
Kenyath
Kenny Walker
General Partner
CSM Development
City of Exeter
Agenda Item Transmittal
Meeting Date: October 11, 2022
For action by:
Agenda Item Number: 12 X City Council
Wording for Agenda: Review and provide direction on the draft Regular Session:
Exeter City Council Handbook of Rules and Procedures of the City Consent Calendar Council of the City of Exeter. X Regular Item
Submitting Department: Administration & City Attorney - Public Hearing Contact Name: Shonna Oneal, City Clerk Review:
Julia Lew, City Attorney
Phone Number: 592-9244
City Administrator
Email: [email protected], [email protected] (Initials Required) Department Recommendation:
Staff recommends that Council review the draft Exeter City Council Handbook of Rules and Procedures and provide any recommended changes, or corrections to the draft handbook.
Summary/Background:
California Government Code Section 36813 provides that the Council may establish rules for the conduct of its proceedings. The City of Exeter has not adopted a handbook, which sets forth the rules and procedures of the general powers and duties of Council, meetings, decorum as well as procedural and administrative rules, that may be useful to the City Council, administrative staff, and the general public.
Submitted for Council's review and consideration is the first draft of Exeter City Council Handbook of Rules and Procedures. The topics covered in the attached handbook are based on the City of Exeter's Charter, Ordinances, and State Law and are summarized as follows:
Chapter 1: General Powers and Duties- This chapter provides general information regarding the powers and duties of the City, City Council Members, City Administrator, City Clerk, City Attorney and other general information regarding the structure of the City government.
Chapter 2: City Council Meetings- This chapter defines the different types of meetings and highlights the process of a City Council meeting.
Chapter 3: Decorum- This chapter highlights the rules and expectations for decorum and conduct in the Council Chambers.
Chapter 4: Procedural Rules- This chapter establishes the City's rules of order for procedural issues during the course of a meeting.
Chapter 5: Administrative Rules- This chapter provides administrative rules to be followed for purchasing, executing documents, appointing an acting City Administrator and outlines support provided to the Council.
The handbook would be a beneficial guide that summarizes the pertinent sections of the City Charter, Ordinances, and procedural matters for the City Council. Once adopted, this handbook would be provided to all City Council Members and provided in the Orientation Packet for newly seated Council Members.
Fiscal Impact: None.
Prior Council/Board Actions: None.
Attachments: Draft Exeter City Council Handbook of Rules and Procedures Recommended motion to be made by Council/Board: Review and provide direction on the draft Exeter City Council Handbook of Rules and Procedures of the City Council of the City of Exeter.
EXETER CITY
COUNCIL
City of
EXETER
PROTECTING, PRESERVING,
AND PROMOTING
SMALL TOWN AMERICA
HANDBOOK OF
RULES AND
PROCEDURES
PREFACE
As provided by California Government Code Section 36813, the City Council of the City of Exeter established the Handbook of Rules and Procedures contained herein. The Handbook shall be in effect upon adoption by the City Council and shall remain in effect until such time as it is amended, or new rules are adopted in the manner provided herein.
In addition to the Handbook of Rules and Procedures, the City Council has included in this document other information which may be useful to the City Council, administrative staff, and the general public. This document is to be known as "The Handbook of Rules and Procedures of the City Council of the City of Exeter."
Adopted _ 2022
Resolution 2022-XX, dated _ 2022
TABLE OF CONTENTS
CHAPTER 1 - GENERAL POWERS AND DUTIES
A. The City of Exeter .. 1
B. Council Elections. 1
C. Vacancies ..1
D. Mayor/Mayor Pro Tem Selection.. 1
E. Compensation .2
F. City Clerk ..2
G. City Attorney (Special/Conflict Counsel) .2
H. Triangle of Policy, Process & Product 3
I. Mayor as Presiding Officer and Duties Thereto...
J. Mayor Pro Tem..
K. Rules of Procedures..
L. Interference in Staff Functions..
M. Council Voting
CHAPTER 2 - CITY COUNCIL MEETINGS
A. Regular Meetings
B. Special Meetings.
C. Study Sessions..
D. Closed Sessions
E. Agenda..
F. Call to Order
G. Quorum....
H. Lack of Quorum
Recognition to Speak, Council Member
1. Interruptions..
2. Public Hearings
J. Council Members' Obligation after Absence..
K. Adjournment of Meeting
L. Agenda Items of Order ..
M. Audio Recordings
N. Video Recordings.
O. Agenda Format for Regular Meetings
P. Components of Regular Meetings..
1. Citizen Comments
2. Communications...
3. Consent Calendar
4. General Business
Q. Minutes..
R. Legislative Procedures
S. Appeals
T. City Council Agenda Item Referrals
U. Appointments.. 11
V. Addressing the City Council 11
1. Speaker Form and Speaker Time 11
2. One Speaker at a Time...... 11
3. Questions and Comments from the Public.. 11
4. Addressing the City Council after a Motion is made. 11 W. Continued Agenda Items.. 12
X. Public Hearing Closed. 12
Y. Cancellation of Meeting 12
Z. Items of Interest. 12
CHAPTER 3 - DECORUM
A. Enforcement of Decorum ... 13
B. Conduct in the City Council Chambers... 13
1. Council Chambers Defined... 13
2. Rules of Decorum for the Public 13
3. Rules of Conduct and Safety. 13
4. Removal from the Council Chambers 13
5. Cell Phones 14
6. Media Equipment - Broadcast, News, Photography, Print, Published, Recording, Video..
C. Courtesy
1. Council Members.
2. City Employees..
3. Public Speakers 15
4. Appointed Members of Boards, Commissions and Committees 15 B. Crowd Control in council Chambers..
15 F. Smoking .. 16
G. Food and Drink 16
H. Distribution of Literature and Other Materials
in City Council Chambers 16
CHAPTER 4 - PROCEDURAL RULES
A. Rules of Order. 17
B. Rules of Discussion .17
1. Withdrawal of Motion 17
2. Voting.. 17
3. Failure to Vote ..17
4. Abstaining from Vote for Reasons Other than an Identified Legal Disqualification. 17
5. Abstention/Recuse: Conflict of Interest 18
6. Tie Votes. 18
C. Council Dais. 18
CHAPTER 5 - ADMINISTRATIVE RULES
A. Purchase by Contract or in the Open Market. 19
B. Public works to be done by Contract 19
C. Execution of Documents. 19
1. Ordinances, Resolutions and Ceremonial Certificates 19
2. Contracts for Supplies, Public Buildings and Work 19 Agreements, Contracts, Addendums, Change Orders,
Memorandums of Understanding for Administrative, Managerial or Professional Services/Programs Over $15,000 19
4. Acting City Administrator Designation 20
D. Council Administrative Support 20
1. Mail 20
2. Letters Addressed to Mayor and/or City Council Members. 20
3. Council Correspondence ... 20
4. Clerical Support 20
5. Council Notification of Significant Incidents 20
E. Rules and Procedures Administration 21
1. Review of City Council Rules and Procedures.
2. Adherence to Rules and Procedures
3. City Attorney as Rules and Procedures Advisor
4. Adherences to Administrative Procedure and Process of Rules and Procedures
5. Applicability of Rules and Procedures 21
F. Conflict with City Charter, City Municipal Code, City Procurement Policies, Administration Policies, State or Federal Law .21 CHAPTER 1
GENERAL INFORMATION, POWERS AND DUTIES
A. THE CITY OF EXETER
The City of Exeter has a City Council/City Administrator form of government.
Under this form of government, the elected City Council sets the policies for the operation of the Exeter City Government.
The administrative responsibility of the city rests with the City Administrator, who is appointed by the City Council.
B. COUNCIL ELECTIONS
The City Council consists of five members, elected by-district in five single- member districts. One member of the City Council shall be elected from each district by the voters of that district alone. Each Council Member serves four- year staggered terms, without limit. Elected Officials serve until his/her successor has been elected and qualified. Elections are held in November of even numbered years.
The City contracts with the County of Tulare to handle municipal elections.
C. VACANCIES
Pursuant to the Exeter City Charter the process for filling a vacancy in any elective office, from whatever cause arising, shall be set by Ordinance. The City has not designated a process for backfilling a vacancy created mid-term so the process requirements are dictated by general law. Government Code 36512 specifies how general law cities fill vacancies. Within 60 days of the creation of the vacancy, the City Council must either fill by appointment or call for a special election. If the Council calls a special election, the special election shall be held on the next regularly established election date not less than 114 days from the call of the special election. A person elected to fill a vacancy by special election would hold office for the remainder of the unexpired term of the former incumbent.
The other option to fill the Council vacancy is by appointment within 60 days of the vacancy. If the vacancy occurs in the first half of the term, the person appointed to fill the vacancy shall hold office until the next general election. If the vacancy occurs in the second half of the term of office and at least 130 days prior to the next general municipal election, the person appointed to fill the vacancy shall hold office for the unexpired balance of the term of office.
Any individual appointed to a vacancy must be a registered voter and reside within the district in which the appointment is to be made. 6 If any officer of the City shall remove from the City or absent himself/herself therefrom for more than thirty (30) days consecutively without the permission of the Council, or shall fail to qualify, or shall resign, or be convicted of a felony, or be adjudged insane, his/her office shall thereupon become vacant.
D. MAYOR/MAYOR PRO TEM SELECTION
The Mayor and Mayor Pro Tem are members of the City Council and selected by said Council and not elected by the voters. These positions typically serve a period of two years, without limit.
E. COMPENSATION
The City of Exeter Municipal Code Section 2.04.030 provides that Council Members, including the Mayor, are entitled to receive the sum of ten dollars for each meeting of the council the individual attends, whether such meeting be a regular meeting, a special meeting, or adjourned or a continued meeting no more than four meetings in any calendar month. The Council Members and their immediate family members have the option of participating in the City's wellness clinic at their cost. Expenses for city related business (i.e. meetings, conference attendance, League Division dinners, etc.) are covered by the City. No other compensation is provided.
F. CITY CLERK
The City Clerk is appointed by the City Council by a majority vote. The City Clerk is the local official for elections, local legislation, the Public Records Act, the Political Reform Act, and the Brown Act (open meeting laws). Before and after the City Council takes action, the City Clerk, in consultation with the City Attorney, ensures that actions are in compliance with all federal, state and local statutes and regulations and that all actions are properly executed, recorded, and archived.
The statutes of the State of California prescribe the basic functions and duties of the City Clerk, and the Government Code and Election Code provide precise and specific responsibilities and procedures to follow.
The Office of the City Clerk is a service department within the municipal government upon which the City Council, all City departments, and the general public rely for information regarding the operations and legislative history of the City. The City Clerk serves as the liaison between the public and City Council and provides related municipal services. In the City of Exeter, the City Clerk also serves as the Human Resources Manager and Risk Manager. 7 G. CITY ATTORNEY
The Exeter City Council appoints the City Attorney, who shall be an attorney-at- law, duly admitted to practice in the courts of this state.
H. TRIANGLE OF POLICY, PROCESS & PRODUCT
The City Council establishes the Policy-establishing vision and direction for the community's future.
The City Clerk, in consultation with the City Attorney, oversees the Process- ensuring that the decision-making process complies with federal, state, and local regulation and that it is properly recorded.
The City Administrator provides the Product-which is the primary reason for the existence of local government: to provide services to the taxpayer that the taxpayers cannot (or will not) provide for themselves.
l. MAYOR AS PRESIDING OFFICER AND DUTIES THERETO
The Mayor shall be recognized as the official head of the City of Exeter for all ceremonial purposes. In the time of public danger or emergency, the Mayor may, with the consent of the City Council, cause order to be maintained and enforce laws. The Mayor shall act as the Presiding Officer at all meetings of the City Council and perform such other duties consistent with the office as may be imposed by the City Council. The Mayor may move, second, and debate from the Chair, subject to such limitations of debate as are imposed on all Council Members by these rules and shall not be deprived of any of the rights and privileges of a Council Member as such Presiding Officer. The Mayor shall possess no veto power.
The Mayor shall preserve strict order and decorum at all times. The Mayor may announce special rules for the consideration of a particular item on the agenda, such as, but not limited to: The length of time persons may speak, require that, if desirable, a spokesperson address the Council on behalf of a group of persons and, in the event of a hearing, provide time for arguments and rebuttals from proponents and opponents. The Mayor shall state each item coming before the City Council, and shall upon conclusion of said presentation related thereto call for the vote. Following the vote, the Mayor shall announce the results of the vote.
The Mayor is eligible to vote on all motions, and shall direct the order of participation of Council Members. The Mayor shall, in all instances, have the last chance to speak. The Mayor shall sign all ordinances and resolutions adopted by the City Council during the Mayor's presence. The Mayor shall sign all agreements and/or contracts, except where otherwise instructed or set forth by policy, or by approval by Council.
J. MAYOR PRO TEM
8 In the absence of the Mayor, the Mayor Pro Tem shall possess and perform the power and duties of the Mayor. In that capacity, the Mayor Pro Tem shall sign ordinances and resolutions adopted in his/her presence. The Mayor Pro Tem may also sign agreements and/or contracts, except where otherwise instructed or set forth by policy, or approval of the Council.
K. RULES OF PROCEDURES
The City Council shall determine its own rules of procedures and amend them from time to time or adopt new rules as it deems necessary.
Simple Parliamentary Decorum shall govern meetings. The Mayor shall ask for a motion and a second prior to calling for a voice vote (i.e. ayes, nays, abstentions) absent an electronic voting device. In the instance of a vote on an ordinance or resolution the Mayor, absent an electronic voting device, may ask the Clerk to poll the Council, beginning with the member who motioned, then the member who seconded and alphabetically thereafter, with the Mayor being polled last unless required to do so for teleconference meetings.
The Mayor reserves the right to direct the Clerk to poll the Council on any vote.
Amendment to or adoption of new City Council Rules shall be accomplished by majority vote.
Any Council Member may move the Mayor to enforce the rules and a majority vote of the City Council shall require the Mayor to so act.
L. INTERFERENCE IN STAFF FUNCTIONS
The City Council shall deal with the administrative services of the City through the City Administrator, except for the purpose of inquiry, and neither the City Council nor any member thereof, shall give orders to subordinates of the City Administrator. No member of the City Council shall publicly criticize or censure any staff member of the City, and shall instead relay any criticism of a staff member privately through the City Administrator.
The City Council shall deal with the Office of the City Attorney only through the City Attorney, except for the purpose of inquiry, and neither the City Council nor any member thereof, should give orders to subordinates of the City Attorney.
M. COUNCIL VOTING
A majority, also known as a simple majority, is a subset of a group that is more than half of the entire group (ex. 50% plus 1 of the members present.) A two-thirds majority or "super majority" means that two-thirds of the entire membership of a body or more must agree to the proposition. It is much stronger than a simple majority requirement (ex. 50% plus 2 of the members). In the event of an absence the vote would have to be unanimous.
Resolutions, orders for payment of money, and all ordinances required a recorded majority vote of the total membership of the city council. Some actions, such as the passage of an urgency ordinance or adoption of a resolution of necessity, require a super majority of the entire membership, or a unanimous vote of those present. Also See Chapter 2, Section G below.
CHAPTER 2
CITY COUNCIL MEETINGS
A. REGULAR MEETINGS
The times of City Council meetings are set by Resolution. Regular meetings of the City Council shall be open to the public and held on the second and fourth Tuesdays of every month, at the hour of 7:00 p.m. Closed Session, when necessary, shall be held at 6:30 p.m. and may be adjourned and/or continued after the regular meeting as noted by the Mayor.
Whenever the day fixed for any regular meeting of the City Council falls upon a day designated as a holiday, such meeting may be held at the same hour on the next succeeding day, not a holiday, as if it were a regular meeting.
B. SPECIAL MEETINGS
A special meeting may be ordered at any time by the Mayor or by his/her designee whenever the public business may require it or upon the request from three members of the City Council. Whenever a special meeting shall be called, notice of such meeting shall be provided pursuant to State law.
C. STUDY SESSIONS
The City Council may meet in a "study session" called as a Special Meeting for the purpose of acquiring information on a particular subjects). Study sessions shall be open to the public. Study sessions are not public hearings; however, public input will be received. The City Council may not vote or otherwise express consensus, intent, or direction and will not take any final action at a study session, unless the agenda specifically notes such action of a vote, consensus, intent or direction.
D. CLOSED SESSIONS
Consistent with Government Code Section 54954.2 the Council may hold closed sessions during any regular or special meeting, or any time otherwise authorized by law to consider or hear any matter which is authorized by State law to be heard or considered in closed session.
The general subject matter for consideration shall be expressed in an open 10 meeting before such session is held. After closed session the legislative body must reconvene to open session and may be required to disclose action taken, if any.
The legislative body in a closed session can consider only matters covered in its agenda descriptions. City Council Members shall keep all written materials and verbal information provided to them on matters that are confidential under law in complete confidence to ensure that the City's position is not compromised. No mention of information in these materials should be made to anyone other than Council Members, City Attorney, or City Administrator, unless one of the aforementioned is precluded or a subject thereof.
If the City Council in closed session has provided direction to City staff on proposed terms and conditions for any type of negotiations whether it be related to property acquisition or disposal, a proposed or pending claims or litigation, and/or employee negotiations, all contact with the other party should be by the designated representative handling the negotiations or litigation. A Council Member should not have any contact or discussions with the other party or its representative(s) involved concerning the negotiation during this time and not communicate any discussion conducted in closed sessions. All public statements, information, press releases, should be handled by the designated representative or spokesperson.
Government Code Section 54963 (a) - (f) outlines the injunctive relief and disciplinary actions that may be imposed on those who divulge confidential closed session discussions, without first receiving authorization from the legislative body.
E. AGENDA
In order to facilitate the orderly conduct of the business of the citizens of Exeter, the City Administrator, with input from Department Heads and the City Attorney shall set the agenda, reviewing same with the Mayor. The City Clerk shall arrange such matters as may have been timely provided, for inclusion in the agenda. Each member of the Council shall be provided with a copy of the City Council agenda in accordance with the provisions as outlined in the Brown Act.
In order for this to occur the City Clerk shall provide deadlines for the submittal of staff reports to be used in the preparation of the City Council agenda.
F. CALL TO ORDER
The meetings of the City Council shall be called to order by the Mayor, or in the Mayor's absence, by the Mayor Pro Tem. In the absence of the Mayor and Mayor Pro Tem, the meeting shall be called to order by the most senior Council Member present. This person shall serve as the Council's presiding officer until the arrival of the Mayor or Mayor Pro Tem, or until adjournment of the meeting. 11 G. QUORUM
Three members of the City Council shall constitute a quorum for the transaction of business. A majority of a quorum shall be sufficient to pass any action taken by the City Council except on such matters, which, by law, require a greater majority. All ordinances, resolutions, and orders for the payment of money require at least three affirmative votes.
H. LACK OF QUORUM
If a majority of the City Council are absent from any meeting, the remaining members of the City Council may declare the meeting adjourned or if no member of the City Council is present, the City Clerk may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced. A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.
I. RECOGNITION TO SPEAK, COUNCIL MEMBER
Every Council Member desiring to speak shall address the Mayor and, upon recognition by the Mayor, shall confine his or her remarks to the item coming before the City Council.
Interruptions:
A Council Member, once recognized, may voice concerns, comments or ask staff to provide explanation or clarification of the item before the City Council, without interruption, unless out of order with the rules and procedures established herein.
2. Public Hearings:
Council Members should not speak to the merits of an issue, other than to ask questions, until the public hearing has been closed.
COUNCIL MEMBERS' OBLIGATION AFTER ABSENCE
When a Council Member is absent from an earlier meeting at which a matter was discussed, it shall be the duty of that Council Member to become acquainted with the issues discussed by reading the documents presented, reviewing the minutes from the meeting in which that item was discussed, listening to or viewing the taped recording of the meeting missed in order to further participate in future discussions and/or vote on the item.
K. ADJOURNMENT OF MEETING
12 The Mayor shall adjourn the meeting. In the instance of the lateness of the hour the Mayor may also adjourn the meeting to a date and time specific to continue discussions on either the remainder of the agenda or on a specific item for discussion.
L. AGENDA ITEMS OUT OF ORDER
The Mayor, may, with the consent of the City Council, modify the order of the agenda at the meeting, if such modifications would promote fluidity in the process and discussions.
M. AUDIO RECORDINGS
All regular meetings (except closed sessions) of the City Council are audio recorded. All special meetings, inclusive of, but not limited to study sessions, budget sessions are recorded. Audio recordings are in digital format and are to be archived in accordance with the City's Records Retention Policy.
N. VIDEO RECORDINGS
The City may video record meetings. In the event a meeting is video recorded, the record will be archived in accordance with the City's Records Retention Policy.
O. AGENDA FORMAT FOR REGULAR MEETINGS
The agenda format for the Exeter City Council regular meetings may be prepared to include, but not limited to the following categories and/or sub-categories, not necessarily in the order herein reflected:
CALL TO ORDER REGULAR SESSION
PLEDGE OF ALLEGIANCE AND INVOCATION
PUBLIC COMMENTS
SPECIAL PRESENTATIONS
CONSENT CALENDAR
INDIVIDUAL BUSINESS ITEMS
COUNCIL ITEMS OF INTEREST
CITY ADMINISTRATION/DEPARTMENT COMMENTS
ADJOURN REGULAR MEETING
P. COMPONENTS OF REGULAR MEETING
The following sections of a regular meeting agenda shall set forth the guidelines of decorum for each respective section of the agenda:
1. Public Comments
This is the time for citizens to comment on subject matters that are not on 13 the agenda that are within the jurisdiction of the Exeter City Council. In compliance with public meeting laws, Council cannot discuss topics that are not included on the published agenda. This is also the time for citizens to comment on items listed on the Consent Calendar or to request an item from the Consent Calendar be pulled for discussion purposes. Public comments related to all pulled Consent Calendar Items and all Individual Business or Public Hearing Items that are listed on this agenda will be heard at the time that item is discussed or at a time the Public Hearing is opened for comment.
In fairness to all who wish to speak, comments shall be limited to five (5) minutes for each individual, ten (10) minutes for an individual representing a group, and thirty (30) minutes overall for the entire public comment period, unless otherwise indicated by the Mayor. Although not required, speakers are asked to begin their comments by stating their name and city of residence.
2. Special Presentation
Items in this category are informational or ceremonial in nature only. No action is required or taken on these items. Issuance of Proclamations, Resolutions of Commendation, Introduction of Employees, presentation from citizen groups, etc., may be scheduled by the City Administrator or City Clerk in consultation with the Mayor.
Consent Calendar
All Consent Calendar Items are considered routine and will be enacted in one motion. There will be no separate discussion of these matters unless a request is made, in which event the item will be removed from the Consent Calendar to be discussed and voted upon by a separate motion.
Individual Business Items
Comments related to Individual Business and Public Hearing Items are limited to three minutes per speaker, for a maximum of 30 minutes per item. The Mayor may reasonably limit or extend the public comment period to preserve the Council's interest in conducting efficient, orderly meetings.
City Council Items of Interest
In this section of the agenda, City Council may provide information or updates on meetings/conferences attended, complaints/concerns/praises received from constituents, announce upcoming events, present information of Council/City interest, etc. Items presented under this section cannot be acted upon at the meeting in which it is discussed; however, it may be agenized for a future meeting upon the majority approval of the City Council.
14 6. City Administrator/Department Comments
City Administrator/Department Comments may include updates on City projects and events. Items presented under this section cannot be acted upon at the meeting or discussed. Informational in nature only.
Q. MINUTES
The City Council utilizes hybrid minutes, a blending of action and/or verbatim minutes and shall be known as "summary minutes" which include the motions made, action taken, and a brief summary of council, staff and/or public comments. The digital audio recordings shall serve as the verbatim record and are kept in accordance with the City's Records Retention Policy. Minutes may be approved under the Consent Calendar without reading. If, however, a Council Member raises a point of correction to the minutes of a City Council meeting, that correction may be made verbally for the record and approved at that meeting in which it is addressed.
R. LEGISLATIVE PROCEDURES
Generally, legislative proceedings shall be conducted in the following order:
Introduction of the item by the Mayor
Staff presentation
If applicable, Public Hearing opened by Mayor
Public Comments
If applicable, Public Hearing closed by Mayor
Questions by Council Members
Discussion by Council Members
Action by City Council
Appeal proceedings shall be conducted in the following order:
Introduction of the item by the Mayor
Staff presentation
Hearing opened by Mayor
Appellant's comments
Public comments
Rebuttal-Appellant comments
Hearing closed by Mayor
Questions by Council Members
Discussion by Council Members
Action by City Council
S. APPEALS
The filing of an appeal shall have the effect of staying the issuance of any permit or procedure until such time as the matter on appeal is resolved. If there are 15 subsequent items to come before the Council that are subject to the outcome of the appeal, those items shall be listed following the item for appeal on the agenda; the decision of which shall be factored upon the Council's decision on appeal.
T. CITY COUNCIL AGENDA ITEM REFERRALS
Any Council Member may, at a regularly scheduled meeting under "City Council Items of Interest", request a matter which is not otherwise scheduled on a City Council agenda to be placed on a future agenda. The Council Member referring the item shall provide a brief description of the subject to be printed on the agenda, sufficient to inform the City Council and public of the nature of the item.
The City Council, after considering the referral, may either refer the matter to staff to schedule as a future City Council agenda item or they may, by concurrence of the majority, advise to not place on a future agenda.
U. APPOINTMENTS
Appointment to the City Boards, Committees and Commissions (Planning Commission and Downtown Design Review Committee) shall be made as set forth in Ordinances adopted by the Exeter City Council and may be amended from time to time. Appointment to outside Agency Boards and Committees shall be made and reviewed consistent with the applicable Board's or Committee's regulations, and shall otherwise be reviewed every two (2) years in December in even years and as needed thereafter.
V. ADDRESSING THE CITY COUNCIL
1. Speaker Form and Speaker Time
A person desiring to address the City Council may be encouraged to complete a Speaker Form. Depending upon the extent of the agenda and the number of persons desiring to speak on an issue, the Mayor may, at the beginning of the hearing, limit the time for individual comments. When deemed necessary, the Mayor may allocate a longer speaker time, other than what is noted on the agenda, without objection from the City Council.
Each person shall stand at the podium, if one is available, and is requested to state & spell his/her name and provide city of residence for the record. All remarks shall be addressed to the Council as a body and not to any member thereof. No person, other than the City Council and person having the floor, shall be permitted to enter into any discussion, either directly or through a member of the City Council, without the permission of the Mayor. No question shall be asked of a Council Member or a member of City staff except through the Mayor.
One Speaker at a Time
No person, other than the person having the floor, shall be permitted to 16 enter into any discussion without the permission of the Mayor. All discussions shall be through the Mayor, and no question shall be asked of a Council Member or City Staff except through the Mayor.
Questions and Comments from the Public
Questions and comments from the public shall be limited to the subject under consideration, except for those items introduced under Citizen Comments.
4. Addressing the City Council after a Public Comment and/or a Motion is made
No person in the audience may address the City Council after the public comment portion is concluded, or after a motion is made, without first securing permission from the Mayor to do so, and the Mayor is permitted but not required to recognized the interruption.Upon recognition by the Mayor and permission being granted by the City Council, the person so recognized shall confine him/herself to the question under discussion.
W. CONTINUED AGENDA ITEMS
It is City Council practice and policy that matters scheduled on an agenda will be heard at the meeting scheduled. When unforeseen circumstances mandate a request for continuance of an agenda item by an applicant, appellant, or other interested parties, the request must be made to the City Council at the outset of the consideration of the item. In addition, any person intending to make a request for a continuance shall inform the City Clerk, orally or in writing, as soon as possible prior to the meeting that such a request for continuance will be made.
The City Clerk shall inform the Mayor. The City Council will consider the request for continuance prior to discussing the substance or merits of the agenda item.
The interested parties may speak to the issue of a continuance without forfeiting the right to speak later to the merits of the issue if a majority of the Council agrees. Comments may be presented by persons not able to attend the meeting for which the item is finally scheduled if the City Council agrees to continue the item.
X. PUBLIC HEARING CLOSED
Once a public hearing is closed it is inappropriate for the public to speak except to answer an inquiry of a Council Member addressed through the Mayor.
However, a public hearing may be re-opened by a majority approval by the Council to hear new information.
Y. CANCELLATION OF MEETING
The City Administrator in consultation with the Mayor, may cancel City Council meetings if there is no business to conduct, or a meeting date conflicts with City 17 holidays. All noticing of the canceled meeting will be done by the City Clerk, or designee, in accordance with the law.
CHAPTER 3
DECORUM
A. ENFORCEMENT OF DECORUM
The Mayor shall designate the Chief of Police, or his/her designated representative as a sergeant-at-arms when necessary to attend City Council meetings for the purpose of maintaining order and decorum in the City Council Chambers, lobby, or other designated meeting location. Upon instructions from the Mayor, the sergeant-at-arms shall eject any person from the City Council Chambers, in conformance with State law.
B. CONDUCT IN THE CITY COUNCIL CHAMBERS
Council Chambers Defined
Council Chambers shall be, in addition to the usual and customary meeting location, any location or facility wherein a majority of the legislative body may meet for an open and public meeting as defined by the Brown Act, whether it be a regular meeting, special meeting, joint meeting, closed session or study session.
Rules of Decorum for the Public
Members of the audience shall not engage in any meeting disruption, which is defined as engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes or renders infeasible the orderly conduct of the meeting and includes, but is not limited to one of the following: a) a failure to comply with reasonable and lawful city council policies/regulations or other applicable laws, or b) engaging in behavior that constitutes use of force or a true threat of force as defined by law.
Examples include disorderly or boisterous conduct, including the utterance of loud, threatening or abusive language, clapping, whistling, and stamping of feet or other acts which actually disturbs, disrupts, impedes or otherwise renders the orderly conduct of the City meeting infeasible. A member of the audience engaging in any such conduct shall, at the discretion of the Mayor (or presiding member of the City Council), be subject to ejection from the meeting per Government Code Section, 54957.9 and 54957.95, if the audience member continues the behavior after having been warned of the consequences the presiding council member or his/her designee. Any person who violates these rules may be guilty of a misdemeanor. This section shall not be construed to prohibit public criticism of the policies, procedures, programs, or services of the agency, or the acts or omissions of the city council. 18 3. Rules of Conduct and Safety
When the City Council is in session, all persons present must preserve safety and order. Members of the public should sit in the seats provided, subject to ADA compliance, unless addressing the Council or entering or leaving the Council Chambers. Members of the public shall not block the aisles or exits in any manner. Members of the public should not bring audible equipment into the Council Chambers, including cellular phones or pagers, without first either turning said equipment off or to a silent mode.
4. Clearing of the Council Chambers
In addition to the remedies set forth above, in accordance with California Government Code Section 54957.9, in the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of the meeting not feasible, and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue the session. Representatives of the press or other media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this provision. The City Council may establish a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.
Cell Phones
In order to minimize interference to audio recording equipment during a City Council cell phones shall be turned off or at minimum placed on silent during all meetings.
Media Equipment - Broadcast, News, Photograph, Print, Published, Recording, Video
The use of media equipment that enables recording of information of an open and public meeting is permissible, absent a reasonable finding by the legislative body that the use of said equipment presents a persistent disruption (noise, illumination, obstruction of view or pathway) to the proceedings.
In the event that use of media equipment is disruptive, the Mayor may first seek to remedy of the equipment operator, asking that the device, whether it is noise, illumination, obstruction of view or pathway, be silenced, turned off, moved or removed from the area in question.
If the equipment operator refuses to make such accommodations the Mayor, by a reasonable finding of the legislative body, may determine that such use is a persistent disruption and bar the use of said equipment, illumination device and/or restrict the equipment operator from setting up at a particular location within the Council Chambers/meeting location. 19 C. COURTESY
1. Council Members
Council Members shall accord the utmost courtesy to each other, City employees and the public appearing before the City Council, and shall refrain at all times from rude and derogatory remarks, public criticism of staff, remarks as to integrity, abusive comments and statement as to motives and personalities.
City Employees
Employees of the City shall observe the same rules of order and decorum applicable to the City Council.
Public Speakers
Members of the public have the right to attend City Council meetings and to address the City Council on specific agenda items and under the Citizen's Comments section of the agenda. As noted above, the right of members of the public to address the City Council includes their right to criticize the policies, procedures, programs, or services of the City, or of the acts or omissions of the City Council and members of the City Council.
While the City Council meeting is in session, all persons must preserve order and decorum. A person who addresses the City Council under a specific agenda item or under Citizen's Comments section of the agenda is subject to the rules of decorum and removal procedures set forth in Section B above.
4. Appointed members of Boards, Commissions and Committees Appointed members of Boards, Commissions and Committees of the City shall observe the same rules of order and decorum applicable to the City Council.
D. NOISE IN THE LOBBY
Noise emanating from the lobby outside the City Council Chambers which disrupts City Council meetings shall not be permitted.
E. CROWD CONTROL IN COUNCIL CHAMBERS
If the City Administrator, or the City Administrator's designee, anticipates in advance a crowd larger than the maximum number of attendees allowed in the City Council Chambers, he/she shall provide for appropriate crowd control.
Alternatively, the City Administrator may in consultation with the Mayor, determine a different location to accommodate the crowd.
F. SMOKING
It is unlawful for any person to smoke in the City Council Chambers. 20 G. FOOD & DRINK
No food or drinks, other than bottled water, may be brought in by the public into the audience seating area of the City Council Chambers.
DISTRIBUTION OF LITERATURE AND OTHER MATERIALS IN CITY
COUNCIL CHAMBERS
No person, other than City staff, shall distribute flyers, leaflets, placards or other literature or circulate any petition within the City Council Chambers.
Flyers, leaflets, placards or literature may only be distributed to the Council by a member of the public under Citizen's Comments, or by a project applicant/appellant pertaining to City business as may be referenced on the agenda, by approaching the City Clerk and requesting such material be distributed on their behalf.
Such other literature may only be displayed or distributed outside the City Council Chambers area.
CHAPTER 4
PROCEDURAL RULES
A. RULES OF ORDER
The City Council shall determine its own rules of order and amend them from time to time, or adopt new rules as it deems necessary. Amendment to or adoption of new City Council procedures shall be accomplished by a majority vote.
B. RULES OF DISCUSSION
1. Withdrawal of Motion
A motion may not be withdrawn by the maker of the motion without the consent of the Council Member who seconded the motion.
The City Council, in the absence of an electronic voting device, votes by "voice vote" on all matters before it, unless a roll call vote is required by law or is requested by the Mayor. Silence shall be recorded as an affirmative vote, unless abstention is required by law, in which case silence shall be recorded as an abstention. The Presiding Officer shall announce the results of the vote. The City Clerk shall show on ordinances and resolutions, the names of Council Members and their respective votes.
21 Failure to Vote
Absent a disqualification under State law, including conflict of interest provisions and prohibitions on participating when personal bias would prohibit a fair decision, it is the responsibility of every Council Member to vote. Failure to vote that is not compelled by a legal disqualification shall constitute an affirmative vote. A Council Member who fails to vote shall nonetheless be counted toward making up a quorum, unless otherwise required by State law.
4. Abstaining from Vote for Reasons Other than an Identified Legal Disqualification
A Member of the City Council who abstains determines not to vote "yes" or "по" ". A vote to "abstain" except for an identified legal disqualification shall be counted as an affirmative vote. A Council Member shall state a reason for abstaining prior to doing so; failure to do so will constitute the same action as silence or failure to vote. A Council Member who abstains from voting for other than an identified legal disqualification shall nonetheless be counted toward making up a quorum.
Abstention/Recuse: Conflict of Interest
Prior to consideration of any matter or item, Council Members may consult with the City Attorney concerning potential conflicts of interest.
Council Members shall disqualify themselves and abstain from voting if they have a financial conflict of interest or any other disqualification prescribed by law in a matter before the City Council. In such event, they may not participate in the discussion or the vote. Council Members shall state the specific reason for such disqualification. Unless the matter is on the consent calendar, the abstaining Council Member shall leave the Council dais until the conclusion of the agenda item. The matter will then proceed as though the member is not present, and the member shall not be counted toward making up a quorum. Further requirement on abstention and absence from the Chambers may be imposed by State law.
It should be noted; however, a Council Member may speak, on his/her own behalf - as opposed to on behalf of someone else - on certain matters that directly affect his/her financial interest even when conflicted out. Thus, while a Council Member would have to disqualify him/herself on a matter affecting a piece of property in which the Council Member has a financial interest, he/she may be able to address the Council, speaking to what the impact would be to his/her property or business. Any Council Member who chooses to speak on an item as an individual resident, that he/she are otherwise legally disqualified from participating as a Council Member, shall do so at their own risk and subject to any consequences from FPPC.
22 Tie Votes
When one Council Member is absent and a matter under discussion has a tie vote, the item will be considered denied and to have not passed. The City Council exercises "appellate jurisdiction" when it considers certain prior determinations in which it is conferred such specific authority. In these instances a tie vote constitutes a non-action, which is a denial of the appeal.
7. Motion for Reconsideration
Upon final vote by the Council of any agenda item, a motion for reconsideration may be made, but only during the Council meeting wherein the agenda item was approved or denied. Any motion made after the close of the Council meeting is untimely. The motion for reconsideration is allowed by a member of Council that voted as part of the majority of the original motion. The motion may be seconded by any member of Council.
If the motion to reconsider passes, then a member of Council may make a new motion related to the same item.
C. COUNCIL DAIS
The City Council seating area, most commonly referred to as the Council Dais is restricted to Council and City Staff at all times. Loitering or the dissemination of materials are not permitted in the area directly in front of the City Council seating area, commonly referred to as the well. Written or photographic materials are to be handed to the City Clerk for dissemination to the Council, and made part of the record.
CHAPTER 5
ADMINISTRATIVE RULES
A. PURCHASE BY CONTRACT OR IN THE OPEN MARKET
When the expenditure required for the purchase of any supplies exceeds the sum established by a policy through a resolution adopted by the City Council, the Purchasing Agent shall advertise for sealed proposals in the manner hereinafter prescribed for proposals for public work and the contract shall be awarded by the Council to the lowest responsible bidder, provided that the Council may reject all bids and order the Purchasing Agent to buy in the open market at a price less than the lowest bid received from a responsible bidder, and provided that if no bids are received, the Council may order the Purchasing Agent to buy in the open market. Until the Council shall otherwise provide by Ordinance, the Finance Director shall act as Purchasing Agent.
B. PUBLIC WORKS TO BE DONE BY CONTRACT
All public buildings and work, when the expenditure therefore shall exceed the sum established by a policy through a resolution adopted by the City Council, 23 shall be done by contract, and shall be let to the lowest responsible bidder, after advertising one (1) time in a daily newspaper of general circulation, for sealed proposals for the work contemplated. Provided, that the Council may reject any and all bids, if deemed excessive, and re-advertise for bids to provide for the work to be done by the Department of Public Works.
C. EXECUTION OF DOCUMENTS
1. Ordinances, Resolutions and Ceremonial Certificates
The Mayor as Presiding Officer or in the Mayor's absence the Mayor Pro Tem shall execute all Ordinances and Resolutions. Ceremonial Resolutions, Proclamations and Certificates will also be executed by the Mayor or in the Mayor's absence the Mayor Pro Tem.
2. Contracts for Supplies, Public Buildings and Work
All contracts for supplies, public buildings and work shall be approved as to form by the City Attorney, and shall be signed by the Mayor or in his absence the Mayor Pro Tem, and attested to by the City Clerk, unless authorized to be signed by the City Administrator or Purchasing Officer per Exeter Code of Ordinances Section 2.10.
Agreements, Contracts, Addendums, Change Orders, Memorandums of Understanding for Administrative, Managerial or Professional Services or Programs over $15,000
All agreements, contracts, or memorandums of understanding for administrative, managerial or professional services or programs over $15,000 shall be, upon approval of Council, approved as to form by the City Attorney, and shall be signed by the City Administrator, or the City Administrator's designee, and attested to by the City Clerk. 24 4. Acting City Administrator Designation
In that the City Administrator is required to be away from the City from time to time, due to conferences, training, business trips, etc., and it is necessary that the City be represented within the authority of the City Administrator, the City Administrator has the ability to use discretion in selecting and designating an Acting City Administrator to carry out the ministerial duties for the duration of the City Administrator's absence as set forth in writing when the Acting City Administrator is designated. Such designee shall be an Employee of the City.
D. COUNCIL ADMINISTRATIVE SUPPORT
1. Mail - All general mail is opened, date stamped and routed to the addressee.
2. Letters Addressed to Mayor and/or City Council Members - All letters addressed to the Mayor and/or City Council Members requiring a response from staff are copied to the City Administrator. A copy of the responses mailed, along with the original letters will be provided to each Council Member.
Letters addressed to the Mayor and/or City Council members that do not require a response, but provide information on Council agenda items or like matters will be copied to the full Council.
Mail pertaining to specific meetings where an individual Council Member is the appointed representative of the Council is opened, said mail will be distributed to that Council Member and not copied to the full Council.
3. Council Correspondence - All Council Members correspondence written with City resources (letterhead, typing, staff report, postage, etc.) will reflect the position of the full Council, not individual Council Member's positions. All Council Member correspondence using City resources will be copied to the full Council. For example, responses to citizen letters will be copied to the full Council along with the original citizen correspondence.
Clerical Support - The City Administrator/City Clerk's Office will coordinate the typing of correspondence requested by individual Council Members for communications reflecting the position of the full Council. All correspondence typed for Council Member will be on City letterhead and will reflect the position of the full Council, not individual Council Member and will be copied to the full Council.
Council Notification of Significant Incidents - In conjunction with the City public safety departments, the City Administrator's Office will report on significant incidents immediately once known via phone call or email. 25 E. RULES AND PROCEDURES ADMINISTRATION
1. Review of City Council Rules and Procedures - The Council will review and revise the Handbook of Rules and Procedures as needed.
2. Adherence to Rules and Procedures - During City Council discussions, deliberations and proceedings, the Mayor has been delegated the primary responsibility to ensure that the City Council, staff and members of the public adhere to the Council's adopted protocol.
City Attorney as Rules and Procedures Advisor - At the behest of the full Council, the City Administrator may be directed to confer with the City Attorney in interpreting the City Council's adopted Rules and Procedures and proposed changes.
4. Adherences to Administrative Procedure and Process of Rules and Procedures - The Council has delegated the City Administrator responsibility to discuss, on behalf of the full Council, any perceived or inappropriate administrative action with a Council Member. The City Administrator will discuss with the Council Member the action and suggest a more appropriate process or procedure to follow. After this discussion, if further inappropriate action continues, the City Administrator will report the concern to the full Council.
Applicability of Rules and Procedures - The City of Exeter City Council Handbook of Rules and Procedures shall also apply to all Board, Commissions and/or Committees as established by the City Council.
F. CONFLICT WITH CITY CHARTER, CITY MUNICIPAL CODE, CITY
PROCUREMENT POLICIES, ADMINISTRATION POLICIES, STATE OR
FEDERAL LAW
If there is any conflict contained hereinabove with the City Charter, City Municipal Code, City Procurement Policies, Administration Policies, State or Federal Law, such laws shall prevail over the provisions contained within this Handbook.
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