reasonable detail and prepared in accordance with GAAP; such statements to be accompanied by a certificate signed by a general partner of Borrower to the effect that such statements fairly present the financial condition of Borrower as at the date indicated and the results of operations for the period indicated, subject, however, to year-end audit adjustments;
5.2 Annual Statements. As soon as available, but in no event later than one hundred twenty (120) days after the close of each Fiscal Year, financial statements of Borrower, including a profit-and-loss statement, reconciliation of capital accounts and a consolidated statement of changes in financial position of Borrower as at the close of and for such Fiscal Year, all in reasonable detail, certified as provided in clause (a) above by a general partner of Borrower;
5.3 Annual Operating Statements. As soon as available but in no event later than one hundred twenty (120) days after the close of each Fiscal Year, an “Annual Operating Statement” showing all Operating Income, Operating Expenses, Debt Service and any other amounts taken into consideration in computing Net Operating Income and Cash Flow, if any, for the subject Fiscal Year, in a form reasonably satisfactory to the Executive Director;
5.4 Tax Returns. As soon as available, but in no event later than at the time of filing with the Internal Revenue Service, the federal tax returns (and supporting schedules, if any) of Borrower;
5.5 Audit Reports. Promptly upon receipt thereof, copies of all reports submitted to Borrower by independent public accountants in connection with each annual, interim or special audit of the financial statements of Borrower, made by such accountants, including the comment letter submitted by such accountants to management in connection with their annual audit;
5.6 Notices, Certificates or Communications . Immediately upon giving or receipt thereof, copies of any material notices, certificates or other communications given by or on behalf of Borrower or received by or on behalf of Borrower from Senior Lender pursuant to or in connection with any of the Senior Loan Documents, as well as any material notices and other communications delivered to the Property or to Borrower naming Lender or the “Construction Lender” as addressee, or which could reasonably be deemed to affect the construction of the Improvements or the ability of Borrower to perform its obligations to Lender.
6. PAYMENT.
Borrower shall make payment on this Note in accordance with the following:
6.1 Annual Payments.
6.1.1 Fixed Payment. Reserved
6.1.2 Residual Receipts . If, when Borrower delivers each Annual Operating Statement to Lender pursuant to Subdivision [5.3], above, said Annual Operating Statement shows that there was Cash Flow for the subject Fiscal Year, or part thereof, Borrower shall make payment to Lender on account of this Note in the amount of [TBD]. [to be shared proportionately with other governmental lenders requiring soft payments]
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6.2 Mandatory Payment on Land Price Portion. Reserved.
6.3 Refinancing. As and when there is any Refinancing of the Property, Borrower shall pay the Net Refinancing Proceeds to Lender on account of this Note to the extent of the outstanding balance of principal and accrued interest.
6.4 Mandatory Payment at Time of TCAC Audit . If, upon completion of construction and when an independent audit of the total cost of the development has been prepared as required by the Tax Credit Allocation Committee, the remainder of said total cost of the development less the sum of (a) the actual syndication proceeds of the State and Federal Low- Income Housing Tax Credits, and (b) the permanent loan proceeds (whether the product of a take- out or sale of the Senior Loan and/or funding under any applicable Authority provided financing) for the Project is less than __________ Dollars ($____________), then Borrower shall, in connection with the closing of the permanent loan, make a prepayment to Lender in the amount of thirty-five percent (35%) of such difference.
6.5 Sale. As and when there is any Sale, Borrower shall pay the Net Sale Proceeds to Lender on account of this Note to the extent of the outstanding balance of principal and accrued interest.
6.5.1 Seller Financing. In the event that the Net Sale Proceeds include financing to be provided by Borrower as a purchase money lender, Lender shall not be obligated to accept any part of said financing. All or any part of the payment to Lender shall be made in cash.
6.5.2 In Kind Consideration. In the event that the Net Sale Proceeds include in kind consideration, Lender shall not be obligated to accept any part of such in kind consideration, but Borrower shall be entitled to substitute cash for the cash equivalent value of the in kind consideration. The cash equivalent value of the in kind consideration shall be its Fair Market Value as determined by the Appraisal Process.
7. DISTRIBUTION OF PROFITS.
From and after the Commencement Date, Borrower covenants and agrees that, except for fees payable as Operating Expenses pursuant to this Note, Borrower shall not withdraw or distribute to the partners in Borrower any of the rents, issues and/or profits of the Project for any Fiscal Year unless payment is concurrently made to Lender of the percentage of such rents, issues and profits payable to Lender pursuant to Section [6.1.2].
8. MATURITY.
This Note shall be all due and payable on the fifty-fifth (55th) anniversary of the Recordation Date.
9. APPLICATION OF PAYMENTS.
Any payments received by Lender pursuant to the terms hereof shall be applied first to (a) sums, other than principal and interest, due Lender pursuant to this Note; (b) next to the payment of all interest accrued on the Land Price Portion to the date of such payment; (c) next to the 451
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principal of the Land Price Portion until paid in full; (d) next to the payment of all interest accrued on the Project Portion to the date of such payment; and (e) the balance, if any, to the principal of the Project Portion.
10. FORM OF PAYMENT.
All amounts due hereunder are payable in immediately available funds and lawful monies of the United States of America.
11. DISPUTE REGARDING ANNUAL OPERATING STATEMENT.
If Lender disputes any Annual Operating Statement, Lender shall notify Borrower of such dispute and the parties shall cause their representatives to meet and confer concerning the dispute and to use all reasonable efforts to reach a mutually acceptable resolution of the matter in question within thirty (30) days after Lender’s notice of such dispute. If the parties are unable to achieve a mutually acceptable resolution within such 30-day period, then, within twenty (20) days after the expiration of such period, Borrower and Lender shall appoint a national firm of certified public accountants to review the dispute and to make a determination as to the matter in question within thirty (30) days after such appointment. If the parties cannot, within ten (10) days, agree on the firm to be appointed, then, upon the application of either party, such firm shall be appointed by the Presiding Judge of the Superior Court for the County of San Bernardino, California. Such firm’s determination shall be final and binding upon the parties. Such firm shall have full access to the books, records and accounts of the Borrower and the Project.
11.1 Underpayment. If any audit by Lender reports an underpayment by Borrower on this Note, Borrower shall pay the amount of any such underpayment, together with the late charge specified in Section [14] of this Note, to Lender within five (5) days after notice thereof to Borrower or, in the event of a dispute, after notice to Borrower of the resolution of such dispute by the independent firm of certified public accountants, as the case may be, and, if such underpayment amounts to more than three percent (3%) of the disputed payment for the period audited, then, notwithstanding anything to the contrary in this Section, Borrower shall pay to Lender, within five (5) days after demand, Lender’s reasonable costs and expenses in conducting such audit and exercising its rights under Section [11] of this Note (including a reasonable charge for the services of any employees of Lender conducting such audit and exercising its rights under this Section).
12. PREPAYMENT.
At any time, Borrower may prepay in whole or in part, without penalty, the outstanding principal balance under this Note, together with all accrued and unpaid interest, fees, costs and expenses payable hereunder.
13. SECURITY.
This Note and all amounts payable hereunder are secured by the Authority Subordinate Loan Deed of Trust. The terms of the Authority Subordinate Loan Deed of Trust are incorporated herein and made a part hereof to the same extent and with the same force and effect as if fully set forth herein. A default under any of the provisions of the Authority Subordinate Loan Deed of 452
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Trust shall be a default hereunder, and a default hereunder shall be a default under the Authority Subordinate Loan Deed of Trust.
14. LATE PAYMENT.
If any annual payment of accrued interest and principal is not received by the Lender within ten (10) calendar days after the installment is due, Borrower shall pay to the Lender a late charge of five percent (5%) of such payment, such late charge to be immediately due and payable without demand by Lender.
15. ACCELERATION AND OTHER REMEDIES.
If:
(a) any payment under this Note is not made when due and Borrower fails to cure said default within fifteen (15) days after notice from Lender; (b) Borrower defaults under any other provision of this Note and Borrower shall have failed to cure said default within thirty (30) days after notice from Lender, provided, however, if cure of such default reasonably requires more than thirty (30) days, then, provided that Borrower commences to cure within such thirty (30)-day period and thereafter diligently and continuously prosecutes the cure to completion, Borrower shall not be in default during the cure period;
(c) Borrower, subject to force majeure (as defined in Section [22.11] of the DDA), fails to complete the Construction;
(d) Subject to all notice and cure periods, there is an event or occurrence which, pursuant to the Authority Subordinate Loan Deed of Trust, gives rise to acceleration of the indebtedness evidenced by this Note, the entire principal amount outstanding hereunder and accrued interest thereon shall at once become due and payable, at the option of Lender.
16. REMEDIES.
Upon the occurrence of an event of default and the expiration of any cure period therefor as provided in this Note without such event of default having been cured, then, at the option of Lender, the entire balance of principal together with all accrued interest thereon shall, without demand or notice, but subject to the non-recourse provisions of Section [22] of this Note, immediately become due and payable. Upon the occurrence of an event of default (and so long as such event of default shall continue), the entire balance of principal together with all accrued interest shall bear interest at the lesser of (a) the maximum rate permitted by law, and (b) the Base Rate plus three percent (3%) per annum. No delay or omission on the part of Lender in exercising any right under this Note or under the Authority Subordinate Loan Deed of Trust shall operate as a waiver of such right.
17. THIRD PARTY CURE RIGHTS.
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Notwithstanding anything to the contrary contained in this Note, Lender, prior to any action to enforce this Note, shall give ___________________________________________ and its successors and assigns (the “Tax Credit Partner”) notice and opportunity to cure for a period of not less than (a) ten (10) days if a monetary default, and (b) thirty (30) days if a nonmonetary default; provided, however, if in order to cure such a default Tax Credit Partner reasonably determines that it must remove the general partner of Borrower, Tax Credit Partner shall so notify Lender and so long as Tax Credit Partner is diligently and continuously attempting to so remove such general partner, Tax Credit Partner shall have until the date thirty (30) days after the effective date of the removal of the general partner or general partners to cure such default but in no event more than one (1) year.
18. WAIVER.
Except as otherwise expressly provided herein, Borrower hereby waives diligence, presentment, protest and demand, notice of protest, dishonor and nonpayment of this Note, and expressly agrees that, without in any way affecting the liability of Borrower hereunder, Lender may extend any maturity date or the time for payment of any installment due hereunder, accept additional security, release any party liable hereunder and release any security now or hereafter securing this Note. Borrower further waives, to the full extent permitted by law, the right to plead any and all statutes of limitations as a defense to any demand on this Note, or on any deed of trust, security agreement, lease assignment, guaranty or other agreement now or hereafter securing this Note.
19. ATTORNEYS’ FEES.
If this Note is not paid when due or if any event of default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorney’s fees, whether or not any action or proceeding is brought to enforce the provisions hereof.
20. SEVERABILITY.
Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable.
21. INTEREST RATE LIMITATION.
Lender and Borrower stipulate and agree that none of the terms and provisions contained herein or in any of the loan instruments shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of California. In such event, if any holder of this Note shall collect monies which are deemed to constitute interest which would otherwise increase the effective interest rate on this Note to a rate in excess of the maximum rate permitted to be charged by the laws of the State of California, all such sums deemed to constitute interest in excess of such maximum rate shall, at the option of such holder, be credited to the payment of the sums due hereunder or returned to Borrower. 454
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22. NON-RECOURSE.
Notwithstanding anything to the contrary contained in this Note or in the Authority Subordinate Loan Deed of Trust referred to in this Note, but without in any manner affecting the validity of this Note or the lien or charge of the Authority Subordinate Loan Deed of Trust, in the event of any default under the terms of this Note or the Authority Subordinate Loan Deed of Trust, the sole recourse of the Lender for any and all such defaults shall be by judicial foreclosure or by the exercise of the trustee’s power of sale, or such other appropriate means of enforcing the Authority Subordinate Loan Deed of Trust, and the undersigned, and the partners of the undersigned, shall not be personally liable for the payment of this Note or for any other default under the Authority Subordinate Loan Deed of Trust or for the payment of any deficiency established after judicial foreclosure or trustee’s sale under the Authority Subordinate Loan Deed of Trust. Notwithstanding the limitations of liability set forth above, Borrower shall be fully liable for:
(a) Cash Flow payable to Lender pursuant to Section [6.1] but not applied to this Note; and
(b) all legal costs and expenses reasonably incurred by Lender in the enforcement of this Note.
23. HEADINGS.
Headings at the beginning of each numbered Section of this Note are intended solely for convenience and are not to be deemed or construed to be a part of this Note.
24. GIVING OF NOTICE.
Unless applicable law requires a different method, any notice that must be given to Borrower under this Note will be given by mailing it by first class mail to Borrower at the following address:
National Community Renaissance of California
9692 Haven Avenue, Suite 100
Rancho Cucamonga, CA 91730
Attn: Chief Financial Officer
or at a different address if Borrower gives Lender a notice of that different address.
Any notice that must be given to Lender under this Note will be given by mailing it by first class mail to Lender at the following address:
303 East “B” Street
Ontario, California 91764
Attention: Executive Director
or at a different address if Lender gives Borrower a notice of that different address. 455
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25. CHOICE OF LAW.
This Note shall be governed by and construed and enforced in accordance with the laws of the State of California.
“Borrower”
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit, public
benefit corporation
By: ______________________________________
_______________, President
Date: ____________________ [Mandatory]
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EXHIBIT “G”
SUBORDINATED DEED OF TRUST
RECORDING REQUESTED BY:
ONTARIO HOUSING AUTHORITY
AND WHEN RECORDED RETURN TO:
ONTARIO HOUSING AUTHORITY
Records Management Department
303 East “B” Street
Ontario, California 91764
[Free Recording Requested
Government Code § 6103]
SUBORDINATED DEED OF TRUST
WITH ASSIGNMENT OF RENTS
[Holt/Allyn Multifamily Affordable Housing Project]
[Authority Subordinate Loan Deed of Trust]
This DEED OF TRUST is made as of _______________, 202_, by and between NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA , a California nonprofit, public benefit corporation (“Trustor”), ___________________ TITLE COMPANY, a California corporation (“Trustee”), and ONTARIO HOUSING AUTHORITY , a public body, corporate and politic (“Beneficiary”).
Trustor grants, transfers and assigns to Trustee in trust, upon the trusts, covenants, conditions and agreements and for the uses and purposes hereinafter contained, with power of sale, and right of entry and possession, all of its title and interest in that real property (the “Property”) in the City of Ontario, County of San Bernardino, State of California, described in Exhibit A attached hereto and incorporated herein by this reference.
Together with Beneficiary’s interest in all buildings, structures and improvements of every nature whatsoever now or hereafter situated on the Property; and Together with the rents, issues and profits thereof; and together with all buildings and improvements of every kind and description now or hereafter erected or placed thereon, and all fixtures, including but not limited to all gas and electric fixtures, engines and machinery, radiators, heaters, furnaces, heating equipment, laundry equipment, steam and hot-water boilers, stoves, ranges, elevators and motors, bathtubs, sinks, water closets, basins, pipes, faucets and other plumbing and heating fixtures, mantles, cabinets, refrigerating plant and refrigerators, whether mechanical or otherwise, cooking apparatus and appurtenances, and all shades, awnings, screens, blinds and other furnishings, it being hereby agreed that all such fixtures and furnishings shall to the extent permitted by law be deemed to be permanently affixed to and a part of the realty; and
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Together with all building materials and equipment now or hereafter delivered to said premises and intended to be installed therein; and Together with all plans, drawings, specifications, and articles of personal property now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the completion and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner.
To have and to hold the property hereinbefore described (including the Property and all appurtenances), all such property being referred to collectively herein as the “Property,” to Trustee, its successors and assigns forever.
FOR THE PURPOSE of securing (1) payment of indebtedness of Trustor to the Beneficiary in the principal sum of ______________ Dollars ($__________) (the “Authority Subordinate Loan”), evidenced by a promissory note of even date herewith between Trustor and Beneficiary (the “Authority Subordinate Loan Note”), together with all sums due thereunder including interest and other charges; and (2) the performance of each agreement of Trustor in this Deed of Trust and the Authority Subordinate Loan Note. Said Authority Subordinate Loan Note and all of its terms are incorporated herein by reference and this conveyance shall secure any and all extensions, amendments, modifications or renewals thereof however evidenced, and additional advances of the Authority Subordinate Loan evidenced by any note reciting that it is secured hereby.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES:
1. That it will pay the Authority Subordinate Loan Note at the time and in the manner provided therein;
2. That it will not permit or suffer the use of any of the Property for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed, namely, as affordable rental housing;
3. That the Authority Subordinate Loan Note is incorporated herein and made a part of this Deed of Trust. Upon default under the Authority Subordinate Loan Note or this Deed of Trust, Beneficiary, at its option, may declare the whole of the indebtedness secured hereby to be due and payable;
4. That all rents, profits and income from the Property covered by this Deed of Trust are hereby assigned to Beneficiary for the purpose of discharging the debt hereby secured.
Permission is hereby given to Trustor so long as no default exists hereunder, to collect such rents, profits and income;
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5. That upon default hereunder, Beneficiary shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the Property described herein and operate same and collect the rents, profits and income therefrom;
6. That Trustor will keep the improvements now existing or hereafter erected on the Property insured against loss by fire and such other hazards, casualties and contingencies as may be required in writing from time to time by Beneficiary, and all such insurance shall be evidenced by standard fire and extended coverage insurance policy or policies, in the amount of the replacement value of the improvements. Such policies shall be endorsed with a standard mortgage clause with loss payable to Beneficiary subordinate to the rights and interest of the beneficiary of the Senior Loan Deed of Trust described in paragraph 31, below) and certificates thereof together with copies of original policies shall be deposited with Beneficiary;
7. To pay, prior to delinquency, any taxes and assessments affecting said Property when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof which appear to be prior or superior hereto, all costs, fees and expenses of this Trust;
8. To keep said Property in good condition and repair (ordinary wear and tear excepted), not to remove or demolish any buildings thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged, or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor (unless contested in good faith if Trustor provides security satisfactory to Beneficiary that any amounts found to be due will be paid and no sale of the Property or other impairment of the security hereunder will occur); to comply with all laws affecting said Property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said Property in violation of law and/or covenants, conditions and/or restrictions affecting said Property; not to permit or suffer any alteration of or addition to the buildings or improvements hereafter constructed in or upon said Property without the consent of Beneficiary;
9. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and attorneys’ fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear;
10. Should Trustor fail to make any payment or do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof.
Beneficiary or Trustee, being authorized to enter upon said Property for such purposes, may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase, contest or compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and pay counsel’s reasonable fees;
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11. Beneficiary shall have the right to pay fire and other property insurance premiums when due should Trustor fail to make any required premium payments. All such payments made by Beneficiary shall be added to the principal sum secured hereby;
12. To pay immediately and without demand all sums so expended by Beneficiary or Trustee, under permission given under this Deed of Trust, with interest from date of expenditure at the rate specified in the Authority Subordinate Loan Note;
13. That the Authority Subordinate Loan advanced hereunder is to be used in the development of the Property; and upon the failure of Trustor to keep and perform such covenants, the principal sum and all arrears of interest, and other charges provided for in the Authority Subordinate Loan Note shall, at the option of Beneficiary, become due and payable, anything contained herein to the contrary notwithstanding;
14. Trustor further covenants that it will not voluntarily create, suffer or permit to be created against the Property, subject to this Deed of Trust, any lien or liens except as authorized by Beneficiary and further that it will keep and maintain the Property free from the claims of all persons supplying labor or materials which will enter into the construction of any and all buildings now being erected or to be erected on the Property;
15. That any and all improvements made or about to be made upon the Property, and all plans and specifications, comply with all applicable municipal ordinances and regulations and all other regulations made or promulgated, now or hereafter, by lawful authority, and that the same will upon completion comply with all such municipal ordinances and regulations and with the rules of the applicable fire rating or inspection organization, bureau, association or office;
16. Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing representative of Beneficiary a charge not to exceed that permitted by law for providing a statement regarding the obligation secured by this Deed of Trust as provided by Section 2954, Article 2, Chapter 2, Title 14, Division 3 of the California Civil Code.
IT IS MUTUALLY AGREED THAT:
17. Subject to the additional cure rights in Section 17 of the Authority Subordinate Loan Note, if the construction of any improvements as herein referred to shall not be carried on with reasonable diligence, or shall be discontinued at any time for any reason other than events of Force Majeure pursuant to Paragraph 36 hereof, Beneficiary, after due notice to Trustor or any subsequent owner, is hereby invested with full and complete authority to enter upon the Property, employ watchmen to protect such improvements from depredation or injury and to preserve and protect the personal property therein, and to continue any and all outstanding contracts for the erection and completion of said building or buildings, to make and enter into any contracts and obligations wherever necessary, either in its own name or in the name of Trustor, and to pay and discharge all debts, obligations and liabilities incurred thereby. All such sums so advanced by Beneficiary (exclusive of advances of the principal of the indebtedness secured hereby) shall be added to the principal of the indebtedness secured hereby and shall be secured by this Deed of Trust and shall be due and payable on demand;
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18. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, Trustor shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to rebuild the Project in a manner that provides adequate security to Beneficiary for repayment of the Authority Subordinate Loan or if such proceeds are insufficient then Trustor shall have funded any deficiency, (b) Beneficiary shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under the Authority Subordinate Loan Note or this Deed of Trust. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Authority Subordinate Loan in a manner that provides adequate security for repayment of the remaining balance of the Authority Subordinate Loan. The rights of the Beneficiary to any insurance proceeds or condemnation awards pursuant to this paragraph 18 are and shall be subject to the prior right to any insurance proceeds or condemnation awards of the beneficiary of the Senior Loan Deed of Trust described in paragraph 31;
19. Upon default by Trustor in making any payments provided for herein or in the Authority Subordinate Loan Note secured hereby, and if such default is not made good within ten (10) days after notice from Beneficiary, or if Trustor shall fail to perform any covenant or agreement in this Deed of Trust within thirty (30) days after written demand therefor by Beneficiary (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Trustor fail to promptly commence such cure, and diligently prosecute same to completion), Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale, and of written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust. Beneficiary shall also deposit with Trustee this Deed of Trust, the Authority Subordinate Loan Note and all documents evidencing expenditures secured hereby;
20. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said Property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said Property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee’s fees or attorneys’ fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee’s deed; (3) all sums expended under the terms hereof, not 461
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then repaid, with accrued interest at the rate specified in the Authority Subordinate Loan Note; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto;
21. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the property is situated, shall be conclusive proof of proper appointment of the successor trustee;
22. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law;
23. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and the Authority Subordinate Loan Note to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters of fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as “the person or persons legally entitled thereto”;
24. The trust created hereby is irrevocable by Trustor;
25. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term “Beneficiary” shall include not only the original Beneficiary hereunder but also any future owner and holder including pledgees, of the Authority Subordinate Loan Note secured hereby. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of each Trustor hereunder are joint and several;
26. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee;
27. The undersigned Trustor requests that copies of any notice of default and of any notice of sale hereunder be mailed to it c/o National Community Renaissance of California, 9692 Haven Avenue, Suite 100, Rancho Cucamonga, California 91730, Attn: Chief Financial Officer, and to [Tax Credit Partner]
___________________________________________________________.
28. Trustor agrees at any time and from time to time upon receipt of a written request from Beneficiary, to furnish to Beneficiary a detailed statement in writing of income, rents, profits, 462
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and operating expenses of the premises, and the names of the occupants and tenants in possession, together with the expiration dates of their leases and full information regarding all rental and occupancy agreements, and the rents provided for by such leases and rental and occupancy agreements, and such other information regarding the Property and their use as may be requested by Beneficiary.
29. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following:
(a) As more particularly provided in the Authority Subordinate Loan Note, sale, transfer, assignment or refinancing of the Property as provided further in this paragraph 29; unless: (i) in the case of a sale in which the sale proceeds are insufficient to repay in full the Authority Subordinate Loan, the Beneficiary approves such sale and the purchaser assumes the balance of the Authority Subordinate Loan in accordance with the terms of the Authority Subordinate Loan Note; or (ii) in the case of a refinancing in which the refinancing proceeds are insufficient to repay in full the Authority Subordinate Loan, the Beneficiary approves such refinancing and the Borrower remains obligated pursuant to the terms of the Note.
(b) In order to induce Beneficiary to make the loan evidenced hereby, Trustor agrees that in the event of any transfer of the Property without the prior written consent of Beneficiary (other than a transfer (x) to National Community Renaissance of California, a California nonprofit, public benefit corporation (“NCRC”), or affiliate thereof, after issuance of a Certificate of Completion pursuant to Article 14 of that certain Disposition and Development Agreement, dated as of __________, 202_, by and between NCRC and Trustor, or (y) resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), Beneficiary shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. Beneficiary may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this paragraph 29, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Trustor from any liability thereunder without the prior written consent of Beneficiary.
(c) As used herein, “transfer” includes the sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. “Transfer” shall not include the leasing of individual residential units on the Property.
(d) The term “Sale” means any transfer, assignment, conveyance or lease (other than to a tenant for occupancy) of the Property and/or the improvements thereon, or any portion thereof, or any interest therein by the Trustor, and (if Trustor is a partnership) includes any transfer, assignment or sale of any partnership interest in the Trustor by an 463
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individual or entity which is a general or limited partner in the Trustor, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Trustor, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Deed of Trust to more than thirty-five percent (35%) of the ownership interests in the Trustor, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development.
Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor, prior to any action to enforce this Deed of Trust, shall give and its successors and assigns (the “Tax Credit Partner”) notice and opportunity to cure for a period of not less than (a) ten (10) days to cure a monetary default, and (b) thirty (30) days to cure a nonmonetary default; provided, however, if in order to cure such a default Tax Credit Partner reasonably determines that it must remove the general partner of Borrower, Tax Credit Partner shall so notify Trustor and so long as Tax Credit Partner is diligently and continuously attempting to so remove such general partner, Tax Credit Partner shall have until the date thirty (30) days after the effective date of the removal of the general partner or general partners to cure such default but in no event more than one (1) year.
Notwithstanding the foregoing, the following shall not constitute a “Sale” under this Deed of Trust: (a) a Sale made pursuant to an option granted to a general partner or affiliate thereof of Trustor following the expiration of the tax credit compliance period, or (b) any assignment of an interest as limited partner of Trustor by _______________, a _____________ limited liability company (“_______________“), or _____________, a ______________limited liability company (“________________“), to an entity whose general partner or managing member is controlled by _______________ or is under common control with ________________, which assignment shall not require the consent of Beneficiary, provided that _________________ or _______________, as applicable, shall give written notice to Beneficiary of such assignment; or (ii) __________________’s removal of the general partner of Trustor as general partner, and substitution of ______________ or an affiliate of_________________ as a general partner of Trustor, which removal shall not require Beneficiary approval, provided that shall give notice to Beneficiary of its intent to so remove such general partner not less than ten (10) days prior to such removal. Any proposed replacement of the general partner with an entity other than ________________ or an affiliate of ________________ will be subject to Beneficiary’s prior reasonable approval.
30. Trustor shall permit Beneficiary and its agents or representatives, to inspect the Property at any and all reasonable times, with or without advance notice. Inspections shall be conducted so as not to interfere with the tenants’ use and enjoyment of the Property.
31. It is hereby expressly agreed and acknowledged by Trustor and Beneficiary that this Deed of Trust is a second and subordinate deed of trust, and that the Authority Subordinate Loan secured hereby, and the Authority Subordinate Loan Note are subject and subordinate only to the deed of trust securing a loan to Trustor in an approximate original principal amount not to exceed $ _____________________ in which __________________ (“Senior Lender”) is the 464
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Beneficiary, including any loan that refinances the balance of the Senior Loan or an assignment of the Senior Loan (collectively referred to as the “Senior Loan”).
32. For purposes of this Deed of Trust, “Hazardous Materials” mean and include any hazardous, toxic or dangerous waste, substance or material including, without limitation, flammable explosives, radioactive materials, asbestos, hazardous wastes, toxic substances and any materials or substances defined as hazardous materials, hazardous substances or toxic substances in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act of 1380 (“CERCLA”), as amended (42 U.S.C. §9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.) and those substances defined as hazardous wastes in §25117 of the California Health and Safety Code or as hazardous substances in §25316 of the California Health and Safety Code or in any regulations promulgated under either such law, any so-called “Superfund” or “Superlien” law, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
33. In addition to the general and specific representations, covenants and warranties set forth in the Deed of Trust or otherwise, Trustor represents, covenants and warrants, with respect to Hazardous Materials, as follows:
(a) Neither Trustor nor, to the best knowledge of Trustor, any other person, has ever caused or permitted any Hazardous Materials to be manufactured, placed, held, located or disposed of on, under or at the Property or any part thereof, and neither the Property nor any part thereof, or any property adjacent thereto, has ever been used (whether by the Trustor or, to the best knowledge of the Trustor, by any other person) as a manufacturing site, dump site or storage site (whether permanent or temporary) for any Hazardous Materials;
(b) Trustor hereby agrees to indemnify Beneficiary, its officers, employees, contractors and agents, and hold Beneficiary, its officers, employees, contractors and agents harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary, its officers, employees, contractors or agents for, with respect to, or as a direct or indirect result of, the presence or use, generation, storage, release, threatened release or disposal of Hazardous Materials on or under the Property or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials from the Property (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under CERCLA, any so-called “Superfund” or “Superlien” law, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials), caused by Trustor. (c) Trustor has not received any notice of (i) the happening of any event involving the use, spillage, discharge or cleanup of any Hazardous Materials (“Hazardous Discharge”) affecting Trustor or the Property or (ii) any complaint, order, citation or notice 465
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with regard to air emissions, water discharges, noise emissions or any other environmental, health or safety matter affecting Trustor or the Property (“Environmental Complaint”) from any person or entity, including, without limitation, the United States Environmental Protection Agency (“EPA”). If Trustor receives any such notice after the date hereof, then Trustor will give, within seven (7) business days thereafter, oral and written notice of same to Beneficiary.
(d) Without limitation of Beneficiary’s rights under this Deed of Trust, Beneficiary shall have the right, but not the obligation, to enter onto the Property or to take such other actions as it deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with, any such Hazardous Materials or Environmental Complaint upon its receipt of any notice from any person or entity, including without limitation, the EPA, asserting the existence of any Hazardous Materials or an Environmental Complaint on or pertaining to the Property which, if true, could result in an order, suit or other action against Trustor affecting any part of the Property by any governmental agency or otherwise which, in the sole opinion of Beneficiary, could jeopardize its security under this Deed of Trust. All reasonable costs and expenses incurred by Beneficiary in the exercise of any such rights shall be secured by this Deed of Trust and shall be payable by Trustor upon demand together with interest thereon at a rate equal to the highest rate payable under the Authority Subordinate Loan Note secured hereby.
34. The following shall be an Event of Default:
(a) Failure of Trustor to pay, when due, principal and interest and any other sums or charges on the Authority Subordinate Loan Note, in accordance with the provisions set forth in the Authority Subordinate Loan Note; (b) A violation of the terms, conditions or covenants of the Authority Subordinate Loan Note or this Deed of Trust; or
(c) A default under the Senior Loan Deed of Trust to which the lien of this Deed of Trust is subordinate.
35. Subject to the extensions of time set forth in paragraph 36, and subject to the further provisions of this paragraph 35 and of paragraph 37, failure or delay by the Trustor to perform any term or provision of this Deed of Trust constitutes a default under this Deed of Trust. The Trustor must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. (a) The Beneficiary shall give written notice of default to the Trustor, specifying the default complained of by the Beneficiary. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (b) The Trustor shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within thirty (30) days after receipt of written notice (or such 466
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additional time as may be deemed by the Beneficiary to be reasonably necessary to correct the cause).
(c) Any failures or delays by the Beneficiary in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the Beneficiary in asserting any of its rights and remedies shall not deprive the Beneficiary of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies.
36. Notwithstanding specific provisions of this Deed of Trust, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the Beneficiary, or any other public or governmental agency or entity (except that any act or failure to act of Beneficiary shall not excuse performance by Beneficiary); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Deed of Trust may also be extended in writing by the Beneficiary and Trustor.
37. If a monetary event of default occurs under the terms of the Authority Subordinate Loan Note or this Deed of Trust, prior to exercising any remedies thereunder Beneficiary shall give Trustor written notice of such default. Trustor shall have a period of ten (10) days after such notice is given within which to cure the default prior to exercise of remedies by Beneficiary under the Authority Subordinate Loan Note and this Deed of Trust.
38. If a non-monetary event of default occurs under the terms of the Authority Subordinate Loan Note or this Deed of Trust, prior to exercising any remedies thereunder, Beneficiary shall give Trustor notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Trustor shall have such period to effect a cure prior to exercise of remedies by the Beneficiary under the Authority Subordinate Loan Note and this Deed of Trust.
If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Trustor (a) initiates corrective action within said period, and (b) diligently, continually, and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given.
39. Upon the occurrence of an Event of Default as described in paragraph 34, Trustor shall be obligated to repay the Authority Subordinate Loan and, subject to the nonrecourse provision of the Authority Subordinate Loan Note, Beneficiary may seek to enforce payment of any and all amounts due by Trustor pursuant to the terms of the Authority Subordinate Loan Note. 467
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40. All expenses (including reasonable attorneys’ fees and costs and allowances) incurred in connection with an action to foreclose, or the exercise of any other remedy provided by this Deed of Trust, including the curing of any Event of Default, shall be the responsibility of Trustor.
Except as provided in paragraph 31, each successor owner of an interest in the Property, other than through foreclosure, deed in lieu of foreclosure or an owner who takes an interest in the Property after a foreclosure has occurred, shall take its interest subject to this Deed of Trust. “Trustor”
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit, public
benefit corporation
By: ______________________________________
_______________, President
Date: ____________________ [Mandatory]
468
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EXHIBIT “A” - 1
EXHIBIT “A”
LEGAL DESCRIPTION OF THE PROPERTY
The real property situated in the City of Ontario, County of San Bernardino, State of California, and described as follows:
Holt Blvd.
APN: 1048-481-06-0000
38,768 SF/.89 acres
Lot Number: 6 District: 07 City, Municipality, Township: CITY OF COLTON Brief Description: REVISED MAP OF HANSON AND CO ADD E 87 FT S 1/2 W 1/2 E 1/2 LOT 6 935 E Holt Blvd.
APN: 1048-481-07-0000
40,129 SF/.92 acres
Lot Number: 6 District: 07 City, Municipality, Township: ONTARIO Brief Description:
REVISED MAP OF HANSON AND CO ADD E 43.5 FT S 297.5 FT E 1/2 W 1/2 AND W 87 FT S 1/2 W 1/2 E 1/2 LOT 6 EX ST
905 E Holt Blvd
APN: 1048-481-08-0000
68,389 SF/1.57 acres
Lot Number: 6 District: 07 Brief Description: REVISED MAP OF HANSON AND CO ADD E 1/2 W 1/2 LOT 6 EX E 43.5 FT S 297.5 ST EX N 153 FT AND EX ST 1.57 AC M/L 957 E Holt Blvd.
APN: 1048-481-28-0000
51,531 SF/1.18 acres
District: 07 City, Municipality, Township: ONTARIO Brief Description: PARCEL 2 OF THAT CERTAIN LLA 08-007 IN THE CITY ONTARIO COUNTY OF SAN BERNARDINO STATE OF CA RECORDED NOVEMBER 10, 2008 AS
469
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TO EXHIBIT “G”
#42883323v1<IMANAGE> - Ontario Housing Authority (OHA) - DDA with National Community Renaissance of California (NCRC)- Holt_Allyn Multifamily Housing Project - NCRC and KG comments; BBK updated redline and comments 10.31.24 957 E Holt Blvd.
APN: 1048-481-29-0000
50,965 SF/1.17 acres
District: 07 City, Municipality, Township: ONTARIO Brief Description: ALL THAT CERTAIN
REAL PROPERTY SITUATED IN THE COUNTY OF STATE OF CA DESCRIBED AS FOLLOWS PARCEL 1 OF THAT CERTAIN LLA 08-007
470
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EXHIBIT “H”
EXHIBIT “H”
[Intentionally Omitted]
471
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EXHIBIT “I”
EXHIBIT “I”
ASSIGNMENT OF ARCHITECTURAL AGREEMENTS
AND PLANS AND SPECIFICATIONS
[Holt/Allyn Multifamily Affordable Housing Project]
FOR VALUE RECEIVED , the undersigned, NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA , a California nonprofit, public benefit corporation (“NCRC”), assigns to ONTARIO HOUSING AUTHORITY, a public body, corporate and politic (“Authority”), all of its right, title and interest in and to:
1. All architectural, design, engineering and development agreements, and any and all amendments, modifications, supplements, addenda and general conditions thereto (collectively, “Architectural Agreements”), and
2. All plans and specifications, shop drawings, working drawings, amendments, modifications, changes, supplements, general conditions and addenda thereto (collectively, “Plans and Specifications”),
heretofore or hereafter entered into or prepared by any architect, engineer or other person or entity (collectively, “Architect”), for or on behalf of NCRC in connection with the construction of the Improvements on the Real Property described on Exhibit “A” attached hereto. The Plans and Specifications, as of the date hereof, are those which NCRC has heretofore, or will hereafter deliver to Authority. The Architectural Agreements include, but are not limited to, the architectural agreement or contract between NCRC and __________________, dated _________________.
This ASSIGNMENT OF ARCHITECTURAL AGREEMENTS AND PLANS AND SPECIFICATIONS (“Assignment”) constitutes a present, absolute and unconditional assignment to Authority.
NCRC acknowledges that by accepting this Assignment, Authority does not assume any of NCRC’s obligations under the Architectural Agreements with respect to the Plans and Specifications.
NCRC represents and warrants to Authority that: (a) all Architectural Agreements entered into by NCRC are in full force and effect and are enforceable in accordance with their terms and no default, or event which would constitute a default after notice or the passage of time, or both, exists with respect to said Architectural Agreements; (b) all copies of the Architectural Agreements and Plans and Specifications delivered to Authority are complete and correct; and (c) NCRC has not assigned any of its rights under the Architectural Agreements or with respect to the Plans and Specifications other than to [insert Construction Lender], which assignment shall be senior and superior to the assignment contemplated hereby in all respects.
This Assignment shall be governed by the laws of the State of California, except to the extent that federal laws preempt the laws of the State of California, and NCRC consents to the jurisdiction of any federal or state court within the State of California having proper venue for the 472
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filing and maintenance of any action arising hereunder and agrees that the prevailing party in any such action shall be entitled, in addition to any other recovery, to reasonable attorneys’ fees and costs.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal representatives, assigns, and successors-in-interest of NCRC and Authority.
The attached Architect’s/Engineer’s Consent and Exhibit “A” are incorporated by reference.
Executed by NCRC on ____________________, 202__
“NCRC”
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit, public
benefit corporation
By: ______________________________________
_______________, President
Date: ____________________ [Mandatory]
473
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EXHIBIT “I”
ARCHITECT’S/ENGINEER’S CONSENT
[Holt/Allyn Multifamily Affordable Housing Project]
The undersigned architect and/or engineer (collectively referred to as “Architect”) hereby consents to the foregoing Assignment to which this Architect’s/Engineer’s Consent (“Consent”) is a part, and acknowledges that there presently exists no unpaid claims due to the Architect arising out of the preparation and delivery of the Plans and Specifications to Partnership and/or the performance of the Architect’s obligations under the Architectural Agreements described in the Assignment.
Architect agrees that, by virtue of the foregoing Assignment, Authority has succeeded to all of Partnership’s right, title and interest in, to and under the Architectural Agreements and the Plans and Specifications and, therefore, so long as the Architect continues to receive the compensation called for under the Architectural Agreements, Authority and its successors and assigns may, at their option, use and rely on the Plans and Specifications for the purposes for which they were prepared, and Architect will continue to perform its obligations under the Architectural Agreements for the benefit and account of Authority and its successors and assigns in the same manner as if performed for the benefit or account of Partnership in the absence of the Assignment.
Architect warrants and presents that it/he has no knowledge of any prior assignment(s) of any interest in either the Plans and Specifications and/or the Architectural Agreements. Except as otherwise defined herein, the terms used herein shall have the meanings given them in the Assignment.
Executed on __________________, 202__
“Architect”
, a
By:
Name:
Its:
Architect’s Address:
Phone No.: (____) _____________________
Fax No.: (____) _____________________
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EXHIBIT “A”
TO EXHIBIT “I”
EXHIBIT “A”
PROPERTY DESCRIPTION
Exhibit “A” to Assignment of Architectural Agreements and Plans and Specifications dated as of ________________, 202_, between, NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, a California nonprofit, public benefit corporation, and ONTARIO HOUSING AUTHORITY, a public body, corporate and politic.
LEGAL DESCRIPTION OF THE PROPERTY
The Real Property situated in the City of Ontario, County of San Bernardino, State of California, and described as follows:
475
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EXHIBIT “J”
EXHIBIT “J”
[Intentionally Omitted]
476
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EXHIBIT “K”
EXHIBIT “K”
[Intentionally Omitted]
477
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EXHIBIT “L”
EXHIBIT “L”
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Ontario Housing Authority
Records Management Department
303 East “B” Street
Ontario, California 91764
[Free Recording Request
Government Code § 6103]
AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY
[Affordable Housing]
[Holt/Allyn Multifamily Affordable Housing Project]
THIS AGREEMENT CONTAINING COVENANTS AFFECTING REAL
PROPERTY (the “Regulatory Agreement”), dated as of ________________, 202__ for identification purposes only, is made and entered into by and between the ONTARIO HOUSING AUTHORITY, a public body, corporate and politic (“Authority”), and NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA , a California nonprofit, public benefit corporation (“Owner”), with reference to the following recitals:
A. WHEREAS, Authority and Owner entered into that certain Disposition and Development Agreement dated as of ____________, 202__ (the “DDA”); B. WHEREAS, pursuant to the DDA, Authority sold to Owner and Owner purchased from Authority certain real property located in the City of Ontario, County of San Bernardino, State of California and legally described on Exhibit “A” attached hereto and incorporated herein by this reference as if set forth in full (the “Property”); C. WHEREAS, pursuant to the DDA, Owner agreed to develop the Property into a multifamily, rental housing project containing a total of _____________ (___) dwelling units comprised of ___________ (__) 2-bedroom units and ____________ (__) 3-bedroom units (including one (1) manager’s unit) (the “Project”);
D. WHEREAS, pursuant to the DDA, Authority agreed to provide certain financial assistance to Owner for the Project in consideration for Owner’s agreement, among other things, to supply certain affordable housing on the Property; and E. WHEREAS, as more particularly provided herein, Owner has agreed to provide and maintain all of the dwelling units in the Project (other than one (1) resident manager’s unit) at rents affordable to families of low and very low-income.
NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, conditions and restrictions herein contained, the parties hereto declare, covenant and agree as follows:
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EXHIBIT “L”
1. DEFINITIONS AND INTERPRETATIONS
1.1 Defined Terms . Unless otherwise provided in this Regulatory Agreement, capitalized terms used herein shall have the meanings ascribed to them in the DDA. The following terms shall have the respective meanings assigned to them in this Section [1.1] unless the context in which they are used clearly requires otherwise:
“Affordable Units ,” subject to the provisions of Section [3.2] means all of the Units in the Property except for one (1) resident manager’s Unit. “Approved Budget ” has the meaning set forth in Section [3.10(c)] of this Regulatory Agreement.
“Business Days” means any Monday, Tuesday, Wednesday, Thursday or Friday on which Ontario City Hall is open to the public for the conduct of City affairs. “Certificate of Completion” has the meaning set forth in Article [14] of the DDA. “Certificate of Continuing Program Compliance ” shall mean the Certificate to be filed annually by Owner with Authority which shall be substantially in the form attached to this Regulatory Agreement as Exhibit [“B.”]
“City” means the City of Ontario, California.
“Code” means the Internal Revenue Code of 1986, as amended, including the Regulations promulgated thereunder or under any predecessor statute. “County” means the County of San Bernardino, California. “CPI” means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers, Los Angeles — Riverside — Orange County, California Area, Base Period 1982-84 = 100.
“DDA” has the meaning set forth in Recital [“A,”] above. “Event of Default ” shall have the meaning set forth in Article [11] of this Regulatory Agreement.
“Excess Rents” means any rent or charge collected by Owner from a Tenant in excess of Affordable Rent.
“Executive Director ” means the Executive Director of Authority or his/her designee.
“HUD” means the United States Department of Housing and Urban Development. “Improvements” means the improvements to the Property and all improvements and fixtures now or hereafter comprising any portion of the Property. 479
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“Indemnitees” means Authority, City and their boards, commissions, officers, directors, employees, contractors, agents, successors and assigns. “Official Records” means the Official Records of the County. “Operating Expenses ” has the meaning set forth in the Authority Subordinate Loan Note of even date herewith.
“Operating Income” has the meaning set forth in the Authority Subordinate Loan Note of even date herewith.
“Partnership Agreement” means that certain Agreement of Limited Partnership of Owner dated as of _________________, 202__.
“Project” has the meaning set forth in Recital [“C,”] above. “Property” has the meaning set forth in Recital [“B,”] above. “Secretary” means the U.S. Secretary of Housing and Urban Development. “Senior Lender” means from time to time, the holder of the Senior Loan. “Senior Loan” means _____________.
“TCAC” means the California Tax Credit Allocation Committee. “TCAC Regulatory Agreement ” means the regulatory agreement expected to record against the Property in favor of TCAC, with an initial term of fifty-five (55) years, in connection with the Tax Credits awarded to the Project pursuant to the Tax Credit Program. “Tenant” means the occupants of an Affordable Unit.
“Term” shall have the meaning set forth in Article [2]. “Unit” means a dwelling unit in the Property.
1.2 Singular and Plural Terms. Any defined term used in the plural in this Regulatory Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class.
1.3 Accounting Principles. Any accounting term used and not specifically defined in this Regulatory Agreement shall be construed in conformity with, and all financial data required to be submitted under this Regulatory Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to the Executive Director.
1.4 References and Other Terms. Any reference to any other document shall include such document both as originally executed and as it may from time to time be modified. References 480
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herein to Articles, Sections and Exhibits shall be construed as references to this Regulatory Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation”. References herein to statutes, laws, codes, ordinances or regulations by specific number (e.g., Health and Safety Code Section 33334 or 24 CFR 92.502) shall mean such statute, law, code, ordinance or regulation as it existed as of the date of this Agreement and as it may be amended from time to time thereafter.
1.5 Exhibits Incorporated. All attachments and exhibits to this Regulatory Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.
2. TERM
The term of this Regulatory Agreement shall commence on the date it is recorded in the Official Records of the County and shall expire on expiration of the initial fifty-five (55)-year term of the TCAC Regulatory Agreement, but not later than __________.
3. AFFORDABLE HOUSING
3.1 Definitions Applicable to this Article . All capitalized terms used in this Article [3] and not elsewhere defined shall have the following meanings:
“30% of Median Income Tenants ” means, consistent with California Health & Safety Code Section 50106, persons or families with Adjusted Income that does not exceed thirty percent (30%) of the Median Income for the Area, adjusted for household size. “50% of Median Income Tenants ” means, consistent with California Health & Safety Code Section 50105, persons or families with Adjusted Income that does not exceed fifty percent (50%) of the Median Income for the Area, adjusted for household size. “60% of Median Income Tenants ” means, consistent with California Health & Safety Code Section 50079.5, persons or families with Adjusted Income that does not exceed sixty percent (60%) of the Median Income for the Area, adjusted for household size. “Adjusted Income ” means the adjusted income of a person (together with the adjusted income of all persons of the age of eighteen (18) years or older who intend to reside with such person in one residential unit) as calculated in the manner prescribed under Section 142(d)(2)(B) of the Code.
“Affordable Rent ” means either Affordable Rent for 30% of Median Income Tenants, Affordable Rent for 50% of Median Income Tenants, or Affordable Rent for 60% of Median Income Tenants, as the context requires.
“Affordable Rent for 30% of Median Income Tenants ” means monthly rent consistent with the most restrictive of (a) the rent required for a Unit occupied by a 30% of Median 481
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Income Tenant under the TCAC Regulatory Agreement, or (b) the rent required for a Unit under California Health & Safety Code Section 50053(b)(2).
“Affordable Rent for 50% of Median Income Tenants ” means monthly rent consistent with the most restrictive of (a) the rent required for a Unit occupied by a 50% of Median Income Tenant under the TCAC Regulatory Agreement, or (b) the rent required for a Unit under California Health & Safety Code Section 50053(b)(4).
“Affordable Rent for 60% of Median Income Tenants ” means monthly rent consistent with the most restrictive of (a) the rent required for a Unit occupied by a 60% of Median Income Tenant under the TCAC Regulatory Agreement, or (b) the rent required for a Unit under California Health & Safety Code Section 50053(b)(4).
“Certificate of Continuing Program Compliance ” shall mean the Certificate to be filed annually (or quarterly at the written request of the Executive Director) by Owner with the Executive Director which shall be substantially in the form attached to this Regulatory Agreement as Exhibit [“B”].
“Code” means the Internal Revenue Code of 1986, as amended, including the Regulations promulgated thereunder or under any predecessor statute. “Median Income for the Area ” means “area median income” as defined in California Health & Safety Code Section 50093.
“Unit” means a dwelling unit on the Property.
“Utility Allowance” means a monthly allowance for Utility Services based on a utility allowance schedule published annually as the California Utility Allowance Calculator. “Utility Services ” means all utility services included on the utility allowance schedule published annually by Authority.
3.2 Affordable Housing. As hereinafter more particularly provided, Owner shall use the Property and the Improvements as multifamily rental housing and ancillary purposes as follows: (a) not less than [_______]) of the Units shall be rented to and occupied by 30% of Median Income Tenants at Affordable Rent for 30% of Median Income Tenants, of which [________] of said Units shall be two (2)-bedroom Units and [_______] of said Units shall be three (3)-bedroom Units; (b) not less than [________] of the Units shall be rented to 50% of Median Income Tenants at Affordable Rent for 50% of Median Income Tenants, of which [___________] of said Units shall be two (2)-bedroom Units and [_____________] of said Units shall be three (3)-bedroom Units; (c) not less than [_________] of the Units shall be rented to 60% of Median Income Tenants at Affordable Rent for 60% of Median Income Tenants, of which [________] of said Units shall be two (2)-bedroom Units and [________] of said Units shall be three (3)-bedroom Units. One (1) of the [one-bedroom Units] in the Project may be a manager’s unit, provided, however, if not so used, it shall be rented to 50% of Median Income Tenants at Affordable Rent for 50% of Median Income Tenants. Except for such reasonable periods during which a Unit is, or Units are, being maintained, repaired or rehabilitated, Owner shall actively market any vacant Unit or Units and 482
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rent it or them as soon as reasonably possible so as to satisfy the leasing requirements immediately above.
[specifics to be filled in once final deal structure confirmed]
3.3 Tenant Selection. In the selection of Tenants for occupancy of the Units, Owner shall, subject to applicable local, state and federal fair housing laws and Section 6.4 of this Agreement, give priority to eligible persons and families displaced by Authority and/or the City of Ontario, California. Any such priority shall be subject to the rules and regulations of the Tax Credit Program and to each such applicant meeting screening criteria approved by the Executive Director, which approval shall not be unreasonably withheld.
3.4 Increase in Person’s or Family’s Income . For purposes of satisfying the obligation to rent the dwelling units as set forth in Section [3.2] above, a person or family who at the commencement of his, hers or its occupancy qualified as a 30%, 50% or 60% of Median Income Tenant shall continue to be treated as such Tenant irrespective of any later increase in his, her or their income. A Unit occupied by a 30%, 50% or 60% of Median Income Tenant shall be deemed, upon the termination of such person’s or family’s occupancy, to be continuously occupied by such 30%, 50% or 60% of Median Income Tenant until reoccupied, provided that Owner actively, diligently and continuously markets such Unit for occupancy by a Tenant of the same income classification.
3.5 Section 8 Certificate Holders . Owner shall accept as Tenants, on the same basis as all other prospective tenants, persons and families that are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, as amended, or its successor, and shall not apply selection criteria to Section 8 certificate holders that are more burdensome than the criteria applied to all other prospective tenants. Owner agrees to modify the rental agreements for the Units, as necessary, to allow the rental of Units to Section 8 certificate holders.
3.6 Rent Increases . Owner may adjust the Affordable Rents in accordance with periodic revisions to the Median Income for the Area by; provided, however, that the Affordable Rent for any Unit may not be increased more often than one time per 12-month period, and only after at least thirty (30) days prior written notice to the affected Tenant(s).
3.7 Initial Income Certification . Immediately prior to the initial occupancy of each Tenant, and at least annually thereafter, Owner shall obtain, in substantially the form set forth on Exhibit [“C”], current income certification statements for each Tenant. Owner shall comply with Sections “D” [Determining Income Eligibility] and “E” [Initial Income-Eligibility Determinations] of Section 3.2 of the Guide. Owner shall maintain each such income certification statement on file for not less than three (3) years.
3.8 Annual Recertification. Not less than annually, Owner shall obtain and maintain on file, again in substantially the form set forth in Exhibit [“C”] of current income recertification statements for each Tenant. Owner shall make a good faith effort to verify each income recertification statement in the manner described in Section [3.7]. Owner shall also maintain each such income recertification statement on file for not less than three (3) years. 483
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3.9 Form of Rental Agreement . The form of rental agreement used by Owner shall clearly notify Tenants that Owner has relied on the income certification supplied by the Tenant, and will rely on the annual income recertification to be supplied by the Tenant, in determining qualification for occupancy at Affordable Rent, and that any material misstatement in such certification or recertification will be cause for immediate termination of such rental agreement.
3.10 Low-Income Housing Tax Credit Program. Notwithstanding anything contained in this Regulatory Agreement to the contrary, if and when the Property is subject to the requirements of the California and Federal Low-Income Housing Tax Credit Program under the provisions of Section 42 of the Code and Section 23610.5 of the California Revenue and Taxation Code (collectively, the “Tax Credit Program”) and there is a conflict between the requirements of the Tax Credit Program and the affordability provisions set forth in Sections [3.1] through [3.8] above, inclusive, then the provisions of the Tax Credit Program shall prevail. That notwithstanding, the fact that this Regulatory Agreement and the Tax Credit Program provide for greater, lesser or different obligations or requirements shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed.
3.11 Access and Reporting. Owner shall permit the representatives of Authority at any time or from time to time, upon one day’s notice, to inspect, audit and copy all of its properties, books, records and accounts. Owner shall maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements which shall be in conformity with GAAP basis of accounting. Owner shall furnish or cause to be furnished to Authority the following:
(a) Notice of Default . As soon as possible, and in any event not later than five (5) days after the occurrence of any Event of Default, a statement of an officer of Owner describing the details of such Event of Default and any curative action Owner proposes to take; (b) Annual Statements. As soon as available, and in any event not later than one hundred twenty (120) days after the close of each fiscal year of Owner, financial statements of Owner, including a profit and loss statement, reconciliation of capital accounts and a consolidated statement of changes in financial position of Owner as at the close of and for such fiscal year, all in reasonable detail, certified as provided in clause (a) above by an officer or partner of Owner and, upon request of Authority, if total Operating Expenses for such year exceed the total amount set forth in the Approved Budget by more than five percent (5%), accompanied by a compilation report prepared by a firm of certified public accountants, and in a format, each reasonably acceptable to the Executive Director;
(c) Pro Forma Budget. As soon as available and in any event not later than December 15 of each calendar year beginning with the year in which Construction is completed, Owner shall provide Authority, for the Executive Director’s approval, with a detailed projection of Operating Income and budgets of estimated Operating Expenses for the immediately succeeding calendar year (the “Pro Forma Budget”) and a detailed Cash Flow projection for the next succeeding year. Owner shall also submit to Authority on request additional detail, information and assumptions used in the preparation of the Pro Forma Budget. 484
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Within fifteen (15) days following its receipt of the Pro Forma Budget, Authority shall deliver to Owner its written approval or disapproval thereto, which approval shall not be unreasonably withheld. If Authority disapproves the Pro Forma Budget, it shall set forth its reasons with reasonable specificity. If Authority fails to indicate either its approval or disapproval of the Pro Forma Budget within such period, then Authority shall be deemed to have approved the Pro Forma Budget as submitted by Owner.
Once the Pro Forma Budget is approved or deemed approved by Authority, such approved Pro Forma Budget shall become the “Approved Budget” for the entire applicable calendar year. Owner shall use commercially reasonable efforts to operate the Property during such calendar year within the Approved Budget; provided, however, that the Owner shall not be required to obtain the approval of Authority for any deviation from the Approved Budget so long as the total Operating Expenses and expenditures for Capital Improvements paid or incurred during such calendar year do not exceed the originally budgeted amount thereof in the Approved Budget by more than five percent (5%) in the aggregate. To the extent required hereunder, any request by Owner to deviate from the Approved Budget shall be submitted to Authority in writing with an explanation thereof and shall be accompanied by supporting information for the request. Authority shall reasonably respond to any such request within fifteen (15) days of the receipt of same and if Authority fails to do so, such request shall be deemed to be approved;
(d) Tax Returns. As soon as available, and in any event not later than at the time of filing with the Internal Revenue Service, the federal tax returns (and supporting schedules, if any) of Owner;
(e) Certificate of Performance. Concurrently with delivery of each of the financial statements provided for in clause (b) above, a certificate of an officer or partner of Owner stating that Owner has, in all material respects, performed and observed each of its covenants contained in this Regulatory Agreement and that no Event of Default has occurred or, if any such event has occurred, specifying its nature;
(f) Rent Roll. As soon as possible and in any event not later than forty- five (45) days after the close of each calendar quarter, the rent roll as of the end of such calendar quarter setting forth such information, and in such format, as is reasonably acceptable to the Executive Director;
(g) Annual Project Reports . As requested by Authority, and in any event not later than one hundred twenty (120) days after the close of each calendar year, annual financial reports for the Property, certified by an officer or partner of Owner, showing income, operating expenses and a rent roll as of such year end, and setting forth such information, and in such format, as is reasonably acceptable to the Executive Director; (h) Audit Reports. Promptly upon receipt thereof, copies of all reports submitted to Owner by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of Owner made by such accountants, including the comment letter submitted by such accountants to management in connection with their annual audit;
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(i) Notices, Certificates or Communications . Immediately upon giving or receipt thereof, copies of any notices, certificates or other communications given by or on behalf of Owner or received by or on behalf of Owner from lenders pursuant to or in connection with any of the loan documents, as well as any notices and other communications delivered to the Property or to Owner naming Authority or the “Construction Lender” as addressee, or which could reasonably be deemed to affect the Construction or the ability of Owner to perform its obligations to Authority;
(j) Monthly Leasing Report. As soon as available and in no event later than the twenty fifty (25th) day of every calendar month, a monthly property analysis report for the Property indicating the current leasing status for the Property; (k) Monthly Operating Statements . As soon as available and in no event later than the twenty-fifth (25th) day of every calendar month, commencing with the first full calendar month following commencement of lease-up of the Property, a “Monthly Operating Statement” showing all Operating Income, Operating Expenses, Debt Service and any other amounts taken into consideration in computing Net Operating Income, Operating Deficits, and/or Cash Flow, as applicable, for the prior month, in a form reasonably satisfactory to the Executive Director;
(l) Certificate of Continuing Program Compliance . Owner shall submit to Authority on an annual basis the Certificate of Continuing Program Compliance. (m) Other Information. Such other documents and information relating to the affairs of Owner and the Property as Authority reasonably may request from time to time which Owner can provide at a reasonable cost.
3.12 Onsite Manager . Owner, through an onsite professional property manager or property management company, shall manage the Project or cause it to be managed. Any manager or management company retained to act as agent for Owner in meeting the obligation of providing an onsite manager shall be subject to prior written approval of the Executive Director, which approval shall not be unreasonably withheld or delayed. National Community Renaissance of California (“NCRC”) is hereby approved by Authority as the initial property manager. In exercising his/her approval rights hereunder, the Executive Director may require proof of ability and qualifications of the manager and/or management company based upon (i) prior experience, (ii) assets, and (iii) other factors determined by the Executive Director as necessary. Furthermore, upon sixty (60) days prior written demand from Authority with cause, Owner shall remove and replace a property manager and/or property management company. In any agreement with a property manager or property management company (“Management Agreement”), Owner shall expressly reserve the right to terminate such agreement upon written demand of Authority with cause. That notwithstanding, Authority agrees that NCRC shall be entitled to a thirty (30)-day notice of default and a reasonable opportunity to cure before any such termination.
4. MAINTENANCE, OPERATION, PRESERVATION AND REPAIR OF
PROPERTY
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4.1 Maintenance. Owner shall maintain the Property (including, without limitation, the buildings; signage; sidewalks; parking lots; lighting; landscaping; fencing; and pool, if any; and other Improvements) in accordance with the requirements of 24 CFR 92.251; shall operate the Property in a businesslike manner; shall prudently preserve and protect both its own and Authority’s interests in connection with the Property, shall not commit or permit any waste or deterioration of the Property; shall not abandon any portion of the Property; and shall not otherwise act in such a way as to unreasonably increase the risk of any damage to the Property. Such maintenance shall include, without limitation, the following:
(a) keeping the exterior surfaces of buildings painted, plastered or otherwise appropriately treated;
(b) replacing broken windows and other glass surfaces promptly; (c) keeping the Property free from any accumulation of debris, graffiti, and waste materials; and
(d) keeping trees, lawns, shrubs and other plant materials trimmed and in healthy condition.
4.2 Alterations and Repair . Owner shall not remove, demolish or alter any Improvement, except to make non-structural repairs which preserve or increase the Property’s value, and shall promptly restore, in a good and workmanlike manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause.
4.3 Management Plan . Owner covenants and agrees to fully implement and continuously perform the Management Plan for the Property, including, without limitation, security management.
4.4 Compliance. Owner shall comply with all laws and requirements of governmental agencies (including, without limitation, all requirements relating to the obtaining of governmental agency approvals), all governmental agency approvals and all rights of third parties, relating to Owner, the Property or Owner’s business thereon.
5. ________ PROGRAM COVENANTS
[Reserved].
6. OTHER COVENANTS
6.1 Affirmative Covenants. Throughout the Term, Owner covenants and agrees:
(a) Pay Claims and Indebtedness. Promptly to pay (i) such amounts, chargeable against Owner or the Property, as Authority reasonably deems necessary to protect and preserve the Property and this Regulatory Agreement, and (ii) all encumbrances, charges, and liens on the Property, with any interest on them, which, in the judgment of the Executive Director are, or appear to be, prior or superior to this Regulatory Agreement or to bond over any such encumbrances, charges, and liens to Executive Director’s reasonable satisfaction. 487
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(b) Perform Obligations Under Senior Loan Documents. To perform all of the obligations of Owner under the Senior Loan Documents. (c) Protection of Lien . To maintain the lien of the Authority Subordinate Loan Deed of Trust as a valid deed of trust on the Property and take all actions, and execute and deliver to Authority all documents, reasonably required by Authority from time to time in connection therewith.
(d) Notice of Certain Matters. To give notice to Authority, within ten (10) days of Owner’s learning thereof, of each of the following:
(i) any litigation or claim affecting or relating to the Property and involving an amount in excess of $25,000; and any litigation or claim that might subject Owner to liability in excess of $25,000, whether covered by insurance or not; (ii) any dispute between Owner and any governmental agency (other than Authority or City) relating to the Property, the adverse determination of which might affect the Property;
(iii) any change in Owner’s principal place of business; and (iv) any material adverse change in the financial condition of Owner.
(e) Further Assurances. To execute and acknowledge (or cause to be executed and acknowledged) and deliver to Authority all documents and take all actions reasonably required by Authority from time to time to confirm the rights created or now or hereafter intended to be created under the Authority Subordinate Loan Documents; to protect and further the validity, priority and enforceability of the Authority Subordinate Loan Deed of Trust; to subject to the Authority Subordinate Loan Deed of Trust any property intended by the terms of any Authority Subordinate Loan Document to be covered by the Authority Subordinate Loan Deed of Trust; or otherwise to carry out the purposes of the Authority Subordinate Loan Documents and the transactions contemplated thereunder.
6.2 On-Site Inspections. Owner acknowledges and agrees that Authority will conduct an annual on-site inspection of some or all of the Units to determine compliance with applicable housing codes. Owner agrees to cooperate fully in the conduct of such inspections, including, without limitation, allowing Authority unfettered access and entry to the Property.
6.3 Anti-Crime Program . Throughout the Term, Owner covenants and agrees to participate in any City anti-crime program.
6.4 Initial Marketing Campaign to Ontario Residents. Prior to marketing the Project to the general public, Owner shall, subject to applicable local, state and federal fair housing laws, conduct an initial marketing campaign of two (2)- weeks duration, directed solely at residents of the City of Ontario, during which such residents shall be given preference in the rental of Units. 488
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6.5 Violence Against Women Act . Owner shall fully comply with 24 CFR 92.359 Violence Against Women Act (VAWA) requirements as if the Project were funded under the HOME Investment Partnerships Program.
6.6 Occupancy Standard. Owner shall enforce a maximum occupancy per Unit of two (2) persons per bedroom plus one additional person.
7. AUTHORITY SUBORDINATE LOAN DEED OF TRUST
Until the Authority Subordinate Loan Note has been paid in full, the Authority Subordinate Loan Deed of Trust shall secure performance of all of Owner’s obligations under this Regulatory Agreement.
8. SALE OR TRANSFER OF PROPERTY
8.1 Assumption Required . Owner covenants and agrees not to sell, transfer or otherwise dispose of the Property, or any portion of it (other than for individual tenant use as contemplated under this Agreement), unless and until the Executive Director has received (a) reasonably satisfactory evidence that the proposed transferee has (i) in the then recent past successfully maintained, managed and operated affordable housing of a type similar to the Property, (b) financial resources sufficient to perform Owner’s obligations under this Regulatory Agreement, and (c) an assumption agreement, in form and substance satisfactory to the Executive Director, pursuant to which the transferee assumes in full Owner’s duties and obligations under this Regulatory Agreement. This section shall not be deemed, construed or interpreted to prohibit any transfer of the Property (a) to Senior Lender with or without Authority’s consent, (b) or to National Community Renaissance of California, a California nonprofit, public benefit corporation, or an affiliate thereof after a Certificate of Completion has been issued.
8.2 Transfers in Violation . The Property and any interest in title to it shall not be transferred or conveyed to any person or entity except as provided in this Regulatory Agreement.
Any such conveyance or other transfer in violation of the terms of this Regulatory Agreement shall be voidable at the election of Authority.
9. NONDISCRIMINATION
Owner covenants and agrees that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Owner itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property.
10. INDEMNIFICATION AND INSURANCE
10.1 Indemnification. Owner shall defend (by counsel reasonably satisfactory to Authority), indemnify, save and hold harmless the Indemnitees from and against all claims, 489
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damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) arising from or relating to the ownership, occupancy, maintenance or use of the Property. Notwithstanding the foregoing, Owner shall not be obligated to indemnify Authority with respect to the consequences of any act of gross negligence or willful misconduct of Authority. Owner’s obligations under this Section shall survive the termination of this Regulatory Agreement.
10.2 Insurance. Throughout the term of this Regulatory Agreement, Owner shall maintain the following types of insurance in the forms and amounts (as may be increased each calendar year by the corresponding increase in the CPI) set forth below, at Owner’s sole expense.
Notwithstanding the amounts of insurance set forth below, the Executive Director shall have the right, but not the obligation, to reduce the amounts required from time to time. (a) Comprehensive General Liability in an amount not less than Two Million Dollars ($2,000,000.00) combined single limit for each occurrence or Four Million Dollars ($4,000,000.00) general aggregate for bodily injury, personal injury and property damage including contractual liability. The limits of this insurance shall be increased to an amount not less than Five Million Dollars ($5,000,000.00) combined single limit upon the recordation of the Certificate of Completion in the Official Records. The Indemnitees shall be covered as additional insureds with respect to liability arising out of activities by or on behalf of Owner or in connection with the use or occupancy of the Property. Coverage shall be in a form acceptable to the City Risk Manager and shall be primary and noncontributing with any insurance or self insurance maintained by City or Authority.
(b) Automobile Liability in an amount not less than One Million Dollars ($1,000,000.00) combined single limit per accident for bodily injury and property damage covering owned, non owned and hired vehicles.
(c) Workers’ Compensation as required by the Labor Code of the State of California and Employers’ Liability insurance in an amount not less than One Million Dollars ($1,000,000.00).
(d) “All Risk” property including builder’s risk protection during the course of construction, covering the full replacement value of the Improvements constructed on or about the Property by Owner. Said insurance shall include debris removal, and, if typically carried upon similar affordable housing projects in San Bernardino County, California, coverage for earthquake and flood if this protection is required by the Senior Lender. Authority shall be named as insured under a standard loss payable endorsement. [Insurance subject to current market conditions]
10.3 Other Insurance. Owner shall also obtain and maintain such other insurance in forms and amounts reasonably required from time to time by Authority or the City Risk Manager for protection against the same or other insurable hazards which are then typically insured against by similar properties in San Bernardino County, California, provided that such coverage is available at commercially reasonable rates.
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10.4 Contractors. All contractors employed by Owner with contracts of Fifty Thousand Dollars ($50,000.00) or more shall be required to furnish evidence of Comprehensive General Liability insurance subject to all the requirements stated herein with limits of not less than One Million Dollars ($1,000,000.00) combined single limit each occurrence. The Indemnitees shall have the right to receive evidence of compliance with the foregoing by contractors at any time upon written request therefor.
10.5 Acceptable Terms of Coverage . Acceptable insurance coverage shall be placed with carriers admitted to write insurance in California, or carriers with a rating of or equivalent to A-:VIII by A.M. Best & Company. Any deviation from this rule shall require specific approval in writing from the City’s Risk Manager. Any deductibles in excess of Ten Thousand Dollars ($10,000.00) per occurrence or self insured retentions must be declared to and approved by the City Risk Manager. At the option of the City Risk Manager, Owner may be required to reduce or eliminate such deductibles or self insured retentions or to procure a bond guaranteeing payment of losses and related investigations, claim administration and defense costs. In the event such insurance provides for deductibles or self insured retention, Owner agrees that it will fully protect the Indemnitees in the same manner as those interests would have been protected had the policy or policies not contained a deductible or retention. Coverage under each policy shall not be suspended, avoided or canceled by either party except after thirty (30) days’ prior written notice to Authority. Owner shall furnish the Indemnitees with certificates of insurance and with original endorsements effecting coverage as required under this Article. The certificates and endorsements for each insurance policy shall be signed by a person authorized by the insurer to bind coverage on its behalf. The Indemnitees reserve the right to require complete certified copies of all insurance policies not previously provided at any time.
10.6 Blanket Coverage . Notwithstanding anything to the contrary set forth in this Article [10], Owner’s obligations to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Owner; provided, however, (i) that the Indemnitees and other parties in interest to it shall be named as additional insureds as their interests may appear, and (ii) that the coverage afforded the Indemnitees will not be reduced or diminished by reason of the use of such blanket policy of insurance, and (iii) that the requirements set forth in this Article [10] are otherwise satisfied.
10.7 Waiver of Subrogation. Each policy of insurance procured pursuant to this Article [10] shall contain, if obtainable upon commercially reasonable terms, either (i) a waiver by the insurer of the right of subrogation against either party hereto for negligence of such party, or (ii) a statement that the insurance shall not be invalidated should any insured waive in writing prior to a loss any or all right of recovery against any party for loss accruing to the property described in the insurance policy. Each of the parties hereto waives any and all rights of recovery against the other, or against the officers, employees, agents and representatives of such other party, for loss or damage to such waiving party or its property or the property of others under its control, arising from any cause insured against under the form of insurance policies required to be carried pursuant to this Article [10] or under any other policy of insurance carried by such waiving party.
11. DEFAULTS
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The occurrence of any of the following, whatever the reason therefor, shall constitute an “Event of Default” by Owner:
(a) Owner fails to perform any obligation for the payment of money under this or any other Authority Subordinate Loan Document, and such failure is not cured within fifteen (15) days after Owner’s receipt of written notice that such obligation was not performed when due; or
(b) Owner fails to perform any obligation (other than obligations described in subparagraph (a), above) under this Regulatory Agreement, and such failure is not cured within thirty (30) days after Owner’s receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such 30-day period, such failure shall not be an Event of Default so long as Owner (in any event, within fifteen (15) Business Days after receipt of such notice) commences cure, and thereafter diligently and continuously prosecutes such cure to completion; or
(c) Owner is enjoined or otherwise prohibited by any governmental agency (other than City) from occupying all or any of the Property and such injunction or prohibition continues unstayed for ninety (90) days or more for any reason; unless Owner is diligently and continuously attempting to have such injunction or prohibition stayed or lifted and Owner demonstrates, to the reasonable satisfaction of the Manager, that such stay or lifting will occur within a reasonable time; or
(d) Owner is dissolved, liquidated or terminated without the Manager’s prior written consent; or
(e) Owner is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Owner applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Owner and the appointment continues undischarged or unstayed for ninety (90) days; or Owner institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Owner and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against the Property and is not released, vacated or fully bonded within ninety (90) days after its issue or levy.
11.2 Right to Cure . Notwithstanding anything to the contrary contained in this Regulatory Agreement, prior to declaring any default or taking any remedy permitted under this Regulatory Agreement or applicable law based upon an alleged default, __[the tax credit limited partner and the senior lender]_____________ shall have a period of not less than thirty (30) days to cure such alleged default; provided, however, if in order to cure such default ________________ reasonably believes that it must remove a general partner of Owner, or all of them, pursuant to the Partnership Agreement, ___________________ shall so notify Authority 492
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and so long as _______________is reasonably and diligently attempting to remove the general partner or general partners, _______________ shall have until the date thirty (30) days after the effective date of the removal of the general partner or general partners to cure such default.
12. REMEDIES
12.1 Remedies Upon Default. Upon the occurrence of any Event of Default, Authority may, at its option and in its absolute discretion, do any or all of the following:
(a) Specific Performance . By mandamus or other suit, action or proceeding at law or in equity, require Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of Authority hereunder.
(b) Disgorgement of Excess Rents. Demand and receive payment from Owner of any Excess Rents received by Owner together with interest thereon, at the highest rate permitted by law, from the time such Excess Rents were received by Owner until paid to Authority. (c) Exercise Other Rights. Exercise any other rights provided by law or in the other Authority Subordinate Loan Documents, including, without limitation, the Authority Subordinate Loan Deed of Trust, all in such order and manner as Authority elects in its sole and absolute discretion.
(d) Terminate Regulatory Agreement . Terminate this Regulatory Agreement. Termination in such event shall be effective immediately upon Owner’s receipt of written termination notice from Authority. No act by Authority other than giving notice to Owner shall terminate this Regulatory Agreement. In the event of such a termination, any rights or remedies for breach of this Regulatory Agreement shall survive. (e) Lease Units . If the Event of Default is the collection of Excess Rents, then for each Unit producing Excess Rents, for the length of the Term and for as long as the Event of Default continues, Authority shall have the right to lease each such Unit for a rental of one dollar ($1.00) per Unit per year. Authority shall sublease such Units to the extent necessary to comply with the provisions of Section [3.2]. Any rent paid under such sublease shall be paid to Owner after Authority has been reimbursed for any expenses reasonably incurred by it in connection with the sublease.
12.2 Cumulative Remedies; No Waiver . Authority’s rights and remedies under this Regulatory Agreement are cumulative and in addition to all rights and remedies provided by law or in the other Authority Subordinate Loan Documents, including, without limitation, the Authority Subordinate Loan Deed of Trust, from time to time. The exercise by Authority of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice Authority in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by Authority to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of this 493
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Regulatory Agreement shall be construed as a waiver of any subsequent breach of the same provision. Authority’s consent to or approval of any act by Owner requiring further consent or approval shall not be deemed to waive or render unnecessary Authority’s consent to or approval of any subsequent act. Authority’s acceptance of the late performance of any obligation shall not constitute a waiver by Authority of the right to require prompt performance of all further obligations. Authority’s acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of Authority’s right to proceed with the exercise of its remedies for any unfulfilled obligations; and Authority’s acceptance of any partial performance shall not constitute a waiver by Authority of any rights relating to the unfulfilled portion of the applicable obligation.
13. COVENANTS TO RUN WITH THE LAND
Owner hereby subjects the Property to the covenants, reservations and restrictions set forth in this Regulatory Agreement. Authority hereby declares its express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner’s successors in interest to all or any part of the Property; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying all or any part of the Property, or any interest therein, shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments.
14. BURDEN AND BENEFIT
Authority and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Owner’s legal interest in the Property is rendered less valuable thereby. Authority and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by the Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Regulatory Agreement was made.
15. UNIFORMITY; COMMON PLAN
The covenants, reservations and restrictions hereof shall apply uniformly to the Property in order to establish and carry out a common plan for the use, development and improvement of the Property.
16. MISCELLANEOUS
16.1 Governing Law. This Regulatory Agreement shall be governed by the laws of the State of California.
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16.2 Amendments. This Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the Official Records.
16.3 Notice. All notices, certificates or communications shall be sufficiently given and shall be deemed given on the second day following the date on which the same have been personally delivered or mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Owner: National Community Renaissance of California 9692 Haven Avenue, Suite 100
Rancho Cucamonga, CA 91730
Attn: Chief Financial Officer
with a copy to: [Tax Credit Partner]
________________________________________
________________________________________
________________________________________
If to Authority: Ontario Housing Authority
303 East “B” Street
Ontario, California 91764
Attn: Executive Director
Any of the foregoing persons may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent.
16.4 Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
16.5 Multiple Counterparts . This Regulatory Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original.
16.6 Construction of Titles . The captions, headings and titles of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise.
16.7 No Partnership with Authority . Owner is, and shall be deemed to be, an independent contractor and is not an employee of Authority and shall not become an agent of Authority.
16.8 Attorney’s Fees. In case any action at law or in equity, including an action for declaratory relief, is brought against Owner to enforce the provisions of this Regulatory 495
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Agreement, the losing party agrees to pay reasonable attorney’s fees and other reasonable expenses incurred by the prevailing party.
16.9 Successors and Assigns. The terms and provisions of this Regulatory Agreement bind and benefit the heirs, legal representatives, successors and assigns of the parties.
16.10 Subordination. If required by the Senior Lender, this Regulatory Agreement shall be subordinate to the Senior Loan Documents.
496
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EXHIBIT “L”
IN WITNESS WHEREOF , Authority and Owner have executed this Regulatory Agreement by duly authorized representatives, all on the date first written hereinabove. “Owner”
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit, public
benefit corporation
By: ______________________________________
_______________, President
Date: ____________________ [Mandatory]
“Authority”
ONTARIO HOUSING AUTHORITY, a public
body, corporate and politic
By: ______________________________________
Scott Ochoa,
Executive Director
APPROVED AS TO FORM:
Best, Best & Krieger LLP
Authority Counsel
By:
Date:
497
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EXHIBIT “A” - 1
EXHIBIT [“A”]
TO EXHIBIT [“L”]
AFFORDABLE HOUSING REGULATORY AGREEMENT
LEGAL DESCRIPTION
The real property situated in the City of Ontario, County of San Bernardino, State of California, and described as follows:
Holt Blvd.
APN: 1048-481-06-0000
38,768 SF/.89 acres
Lot Number: 6 District: 07 City, Municipality, Township: CITY OF COLTON Brief Description: REVISED MAP OF HANSON AND CO ADD E 87 FT S 1/2 W 1/2 E 1/2 LOT 6 935 E Holt Blvd.
APN: 1048-481-07-0000
40,129 SF/.92 acres
Lot Number: 6 District: 07 City, Municipality, Township: ONTARIO Brief Description:
REVISED MAP OF HANSON AND CO ADD E 43.5 FT S 297.5 FT E 1/2 W 1/2 AND W 87 FT S 1/2 W 1/2 E 1/2 LOT 6 EX ST
905 E Holt Blvd
APN: 1048-481-08-0000
68,389 SF/1.57 acres
Lot Number: 6 District: 07 Brief Description: REVISED MAP OF HANSON AND CO ADD E 1/2 W 1/2 LOT 6 EX E 43.5 FT S 297.5 ST EX N 153 FT AND EX ST 1.57 AC M/L 957 E Holt Blvd.
APN: 1048-481-28-0000
51,531 SF/1.18 acres
District: 07 City, Municipality, Township: ONTARIO Brief Description: PARCEL 2 OF THAT CERTAIN LLA 08-007 IN THE CITY ONTARIO COUNTY OF SAN BERNARDINO STATE OF CA RECORDED NOVEMBER 10, 2008 AS
498
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EXHIBIT [“A”]
TO EXHIBIT [“L”]
957 E Holt Blvd.
APN: 1048-481-29-0000
50,965 SF/1.17 acres
District: 07 City, Municipality, Township: ONTARIO Brief Description: ALL THAT CERTAIN
REAL PROPERTY SITUATED IN THE COUNTY OF STATE OF CA DESCRIBED AS FOLLOWS PARCEL 1 OF THAT CERTAIN LLA 08-007
499
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EXHIBIT [“B”]
TO EXHIBIT [“L”]
EXHIBIT [“B”]
TO EXHIBIT [“L”]
AFFORDABLE HOUSING REGULATORY AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
[Ontario Phase 2 Multifamily Affordable Housing Project] The undersigned (the “Owner”) has read and is thoroughly familiar with the provisions of the Agreement Containing Covenants dated as of _____________, 202_ by and between Owner and the Ontario Housing Authority (the “Regulatory Agreement”). Capitalized terms when used herein shall have the same meanings ascribed to them in the Regulatory Agreement, unless otherwise defined herein.
As of the date of this Certificate, the following percentages of residential Units (i) are occupied by 30%, 50% or 60% of Median Income Tenants (as such terms are defined in the Regulatory Agreement), or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a tenant vacated such Unit; as indicated:
Occupied by 30% of Median Income Tenants: ____%; Unit Nos. _______________ Held vacant for occupancy continuously since last occupied by 30% of Median Income Tenant:
Vacant Units: ____%; Unit Nos. _______________
Occupied by 50% of Median Income Tenants: ____%; Unit Nos. _______________ Held vacant for occupancy continuously since last occupied by 30% of Median Income Tenant:
Vacant Units: ____%; Unit Nos. _______________
Occupied by 60% of Median Income Tenants: ____%; Unit Nos. _______________ Held vacant for occupancy continuously since last occupied by 60% of Median Income Tenant:
Vacant Units: ____%; Unit Nos. _______________
Occupied by % of Median Income Tenants: ____%; Unit Nos. ____________________ Held vacant for occupancy continuously since last occupied by __% of Median Income Tenant:
Vacant Units: ____%; Unit Nos. _______________
500
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EXHIBIT [“B”]
TO EXHIBIT [“L”]
The undersigned hereby certifies that the Owner is not in default under any of the terms and provisions of the Regulatory Agreement.
“Owner”
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit, public
benefit corporation
By: ______________________________________
_______________, President
Date: ____________________ [Mandatory]
501
46700.12002\42883323.1
EXHIBIT [“C”]
TO EXHIBIT [“L”]
EXHIBIT “C”
TO EXHIBIT [“L”]
AFFORDABLE HOUSING REGULATORY AGREEMENT
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income in accordance with the method set forth in the Department of Housing and Urban Development (“HUD”) Regulations (24 CFR 813). You should make certain that this form is at all times up to date with the HUD Regulations.
Re: __________________ Apartments, Ontario, California
I/We, the undersigned state that I/we have read and answered fully, franldy and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who intend to reside in the unit:
1. Names of
Members of
Household
2. Relationship
to Head of
Household
3. Age
4. Social
Security
Number
5. Place/Source
of
Employment
6. Monthly
Gross Income
Amount (before
deducations)
HEAD
SPOUSE
Income Computation
7. The total anticipated income, calculated in accordance with the provisions of this paragraph 7, of all persons over the age of 18 years listed above for the 12-month period beginning the date that I/we plan to move into a unit is $___________________.
Included in the total anticipated income listed above are:
(a) all wages and salaries, overtime pay, commissions, fees, tips and bonuses and other compensation for personal services, before payroll deductions; (b) the net income from the operation of a business or profession or from the rental of real or personal property (without deducting expenditures for business expansion or amortization of capital indebtedness or any allowance for depreciation of capital assets), 502
46700.12002\42883323.1
EXHIBIT [“C”]
TO EXHIBIT [“L”]
(c) interest and dividends (including income from assets excluded below); (d) the full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts, including any lump sum payment for the delayed start of a periodic payment;
(e) payments in lieu of earnings, such as unemployment and disability compensation, workmen’s compensation and severance pay;
(f) the maximum amount of public assistance available to the above persons other than the amount of any assistance specifically designated for shelter and utilities; (g) periodic and determinable allowances, such as alimony and child support payments and regular contributions and gifts received from persons not residing in the dwelling; (h) all regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is the head of the household or spouse; and (i) any earned income tax credit to the extent that it exceeds income tax liability.
Excluded from such anticipated income are:
(a) casual, sporadic or irregular gifts;
(b) amounts which are specifically for or in reimbursement of medical expenses; (c) lump sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and workmen’s compensation), capital gains and settlement for personal or property losses; (d) amounts of educational scholarships paid directly to the student or the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships or payments to veterans not used for the above purposes are to be included in income; (e) special pay to a household member who is away from home and exposed to hostile fire;
(f) relocation payments under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
(g) foster child care payments;
(h) the value of coupon allotments for the purchase of foods pursuant to the Food Stamp Act of 1977;
(i) payments to volunteers under the Domestic Volunteer Service Act of 1973; 503
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
(j) payments received under the Alaska Native Claims Settlement Act; (k) income derived from certain submarginal land of the United States that is held in trust for certain Indian tribes;
(l) payments or allowances made under the Department of Health and Human Services’ Low-Income Home Energy Assistance Program;
(m) payments received from the Job Training Partnership Act; (n) income derived from the disposition of funds of the Grand River Band of Ottawa Indians; and
(o) the first $2,000.00 of per capita shares received from judgment funds awarded by the Indian Claims Commission or the Court of Claims.
504
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
8. Do the persons whose income or
contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real
property or other form of capital investment
(excluding the values of necessary items of personal
property such as furniture and automobiles and
interests in Indian trust land); _____ Yes _____ No
(b) have they disposed of any assets (other than
at a foreclosure or Credit Bankruptcy sale) during
the last two years at less than fair market value? _____ Yes _____ No (c) If the answer to (a) or (b) above is yes, does
the combined total value of all such assets owned or
disposed of by all such persons total more than
$5,000? _____ Yes _____ No
(d) If the answer to (c) above is yes, state:
(1) the amount of income expected to be
derived from such assets in the 12-month period beginning on the date of initial occupancy in the unit that you propose to rent: $
(2) the amount of such income, if any,
that was included in item 7 above:
$
9. (a) Are all of the individuals who
propose to reside in the unit full-time students*? _____ Yes _____ No *A full-time student is an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance and is not an individual pursuing a full-time course of institutional or farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof.
(b) If the answer to 8(a) is yes, is at least 1 of the
proposed occupants of the unit a husband and wife
entitled to file a joint federal income tax return? _____ Yes _____ No 505
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
10. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the “Owner”), has any family relationship to the Owner, or owns directly or indirectly any interest in the Owner. For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual.
11. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum income for eligibility to occupy the unit, and I/we declare that all information set forth herein is true, correct and complete and based upon information I/we deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary.
12. I/we will assist the Owner in obtaining any information or documents required to verify the statements made herein, including either an income verification from my/our present employer(s) or copies of federal tax returns for the immediately preceding calendar year.
13. I/we acknowledge that I/we have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a breach of my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other appropriate proceedings.
14. Housing Authority Statistical Information (Optional - will be used for reporting purposes only).
Race (Head of Household)
White Black Asian
Hispanic Native American Other
Physical Disability: Yes _____ No _____
I/we declare under penalty of perjury that the foregoing is true and correct.
Executed this _____________ day of _______________ in the County of _____________, California.
__________________________________________
Applicant
__________________________________________
Applicant
[Signatures of all persons over the age of 18 years listed in number 2 above required.] 506
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
FOR COMPLETION BY APARTMENT OWNER ONLY:
1. Calculation of eligible income:
(a) Enter amount entered for entire household in 6
above: $
(b) (1) If answer to 7(c) above is yes, enter the
total amount entered in 7(d)(1), subtract from that figure the amount entered in 7(d)(2) and enter the remaining
balance ($_________)
(2) Multiply the amount entered in 7(c) times
the current passbook savings rate to determine what the total annual earnings on the amount in 7(c) would be if invested in passbook savings ($__________), subtract from that figure the amount entered in 7(d)(2) and enter the remaining balance ($ ____________)
(3) Enter at right the greater of the amount
calculated under (1) and (2) above: $
(c) TOTAL ELIGIBLE INCOME (line 1.a plus line
1.b(3)): $
2. The amount entered in 1.c:
_____ Qualifies the applicant(s) as Very Low-Income Tenant(s). _____ Does not qualify the applicant(s) as Very Low-Income Tenant(s)
3. Number of apartment unit assigned: ____Bedroom
Size: _____ Rent: $__________________
Tenant-Paid Utilities
Water _____ Gas _____ Electric _____
Trash _____ Other (list Type) ___________
4. Was this apartment unit last occupied for a period
of 31 consecutive days by persons whose aggregate anticipated annual income as certified in the above manner upon their initial occupancy of the apartment unit qualified them as Very Low- Income Tenants? _____ Yes _____ No
5. Method used to verify applicant(s) income:
507
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
_____ Employer income verification
_____ Social Security Administration verification
_____ Department of Social Services verification
_____ Copies of Tax returns
_____ Other: (______________________________)
__________________________________________
Manager
508
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
INCOME VERIFICATION
(For Employed Persons)
The undersigned employee has applied for a rental unit located in a project financed under the _____________________ Multifamily Housing Program for persons of low income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee’s current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis.
Annual Wages:
Overtime:
Bonuses:
Commissions:
Total Current Income:
I hereby certify that the statements above are true and complete to the best of my knowledge.
Dated:
Signature
Title:
I hereby grant you permission to disclose my income to _________________ in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under ___________________Multifamily Housing Program.
Dated:
Signature
Please send form to:
509
46700.12002\42883323.1
EXHIBIT [“C”]
TO EXHIBIT [“L”]
INCOME VERIFICATION
(For Social Security Recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the __________________ Multifamily Housing Program for persons of low income. Every income statement of a prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby give my consent to release to ________________________ the specific information requested below.
Dated:
Signature
Social Security No.: Name (Print)
Address (Print):
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deduction:
Are benefits expected to change? _____ Yes _____ No
If yes, please state date and amount Date:
of change: Amount:
If recipient is not receiving full benefit amount, please indicate reason and date recipient will start receiving full benefit amount:
Reason: Date of Resumption: Amount: $
Dated:
Signature
Telephone: Name (Print):
Title:
Please send form to:
510
46700.12002\42883323.1
EXHIBIT [“C”]
TO EXHIBIT [“L”]
INCOME VERIFICATION
(For Department of Social Services Aid Recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit located in a project financed under the _____________________Multifamily Housing Program for persons of very low income. Every income statement of a prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby authorize the Department of Social Services to release to the specific information requested below.
Dated:
Signature
Caseload Number: Name (Print):
Case Number: Case Worker:
1. Number of persons included in budget:
2. Total monthly budget:$
a. Amount of grant: $ Date aid last began:
b. Other income and source:
c. Is other income included in total budget? _____ Yes _____ No
3. Please specify type of aid
(AFDC, FR, Food Stamps, ANB, Medical, etc.)
4. If recipient is not receiving full grant, please indicate reason:
_____ Overpayment due to client’s failure to report other income _____ Computation error
_____ Other
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
5. Date when full grant will resume:
Dated:
Case Worker’s Signature
Telephone:
District Office
Your very early response will be appreciated.
Please return form to:
512
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EXHIBIT [“C”]
TO EXHIBIT [“L”]
INCOME VERIFICATION
(For Self-Employed Persons)
I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge.
Dated:
Signature
513
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EXHIBIT “M”
EXHIBIT “M”
[INTENTIONALLY OMITTED]
514
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EXHIBIT “N”
EXHIBIT “N”
ONTARIO HOUSING AUTHORITY
______________, 202_
[Construction Lender]
Re: National Community Renaissance of California
Ontario, California
Dear______:
Reference is hereby made to that certain “Building Loan Agreement,” dated as of__________, 202_, by and between National Community Renaissance of California, a California nonprofit corporation (“Borrower”), and _________________________________ (“Lender”).
Capitalized words and terms used herein shall have the meanings ascribed thereto in the Building Loan Agreement.
Pursuant to the Building Loan Agreement, Lender will open the Housing Authority Funds Account into which will be deposited $_______ of Housing Authority Loan proceeds. Housing Authority hereby expressly agrees that Lender shall have the right, without further consent or authorization of Housing Authority, to disburse said proceeds to pay project costs pursuant to the Building Loan Agreement. By executing this letter below, Lender acknowledges and agrees that pending such disbursement, Lender holds said Housing Authority Loan proceeds in trust for Housing Authority and will, upon written demand from Housing Authority actually received by Lender at the address above prior to disbursement of said funds, and provided that Lender has received no other written claims to said funds, promptly return said funds to Housing Authority.
Housing Authority hereby agrees not to make any such demand unless and until it has given notice to Borrower with a copy to Lender of a default under the Disposition and Development Agreement, dated as of ____________, 202_, by and between Housing Authority and Borrower or under the documents evidencing and/or securing the Housing Authority Loan. In the event that Housing Authority makes such a written demand and Lender receives one or more competing claims to the subject funds, Housing Authority agrees that Lender may hold the funds pending unanimous agreement of the claimants thereto to the disposition thereof or pending the order of a court of competent jurisdiction.
ONTARIO HOUSING AUTHORITY, a public
body, corporate and politic
By: ______________________________________
Scott Ochoa,
Executive Director
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EXHIBIT “N”
[SIGNATURES CONTINUED]
APPROVED AS TO FORM:
Best, Best & Krieger LLP
Authority Counsel
By:
Date:
AGREE:
[CONSTRUCTION LENDER]
By:
Its:
516
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, APPROVING THAT CERTAIN CITY GRANT AGREEMENT [HOLT/ALLYN MULTIFAMILY HOUSING PROJECT] CONCERNING THE
GRANT OF AFFORDABILITY IN-LIEU FEE FUNDS TO THE ONTARIO
HOUSING AUTHORITY FOR THE HOLT/ALLYN MULTIFAMILY
HOUSING PROJECT
WHEREAS, the City of Ontario (“City”) holds Fifteen Million Dollars ($15,000,000.00) in Affordability In-Lieu Fees collected from developers for the purpose of increasing the City’s supply of affordable housing available to persons and families of low-income.
WHEREAS, the Ontario Housing Authority (“Authority”) is the owner of certain real property in the City comprised of approximately 5.73 acres located on East Holt Boulevard east of Allyn Avenue (the “Property”).
WHEREAS, the Authority has negotiated the terms of a Disposition and Development Agreement (“DDA”) with National Community Renaissance of California, a California non-profit public benefit corporation (“Developer”) setting forth the terms for the sale of the Property to Developer and the development thereon of a 130-150-unit affordable rental housing project (the “Development”).
WHEREAS, the Authority desires to provide assistance to the Development by, among other things, providing a loan to Developer in an amount not to exceed the lesser of One Hundred Thousand Dollars ($100,000) per unit, or a maximum assistance amount of Fifteen Million Dollars ($15,000,000).
WHEREAS, the City desires to develop and support affordable rental housing, and stabilize the community through the grant of the funds described herein.
WHEREAS, the City wishes to extend to the Authority financial assistance in the form of a grant (the “Grant”) from the Affordability In-Lieu Fees in the amount of $15,000,000.00 (the “Funds”).
WHEREAS, the City desires to make the Grant in accordance with the terms and conditions set forth in the City Grant Agreement [Holt/Allyn Multifamily Housing Project] included in the agenda documents accompanying this Resolution, and the Authority desires to receive the Grant from the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario (“City Council”) as follows:
SECTION 1. Recitals. The above recitals are true and correct, and are incorporated into this Resolution by reference as though fully set forth herein. 517
SECTION 2. Approval of City Grant Agreement [Holt/Allyn Multifamily Housing Project]. The City Council hereby approves the City Grant Agreement [Holt/Allyn Multifamily Housing Project] in the form on file at the Offices of the City.
SECTION 3. Authorization. The City Council hereby authorizes the City Manager (with the concurrence of the City Attorney) to execute and deliver on behalf of the City the agreement referenced herein, with such changes as may be authorized by the City Attorney, and such other documents and instruments as may be necessary or convenient in the furtherance of the actions authorized in this Resolution.
SECTION 4. Direction. City staff is hereby directed to do all that is necessary to effectuate the intent of this Resolution.
SECTION 5. CEQA Compliance. The City has determined that it can be seen with certainty that there is no possibility that approval of the actions authorized under this Resolution will have a significant adverse effect on the environment. Thus, the adoption of this Resolution is exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to Section 15061(b)(3) of the CEQA Guidelines.
SECTION 6. Certification. The City Clerk shall certify the adoption of this Resolution.
SECTION 7. Effective Date. This Resolution shall become effective upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 17th day of December, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
518
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
519
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held December 17, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held December 17, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
520
46700.12002\42890363.1
CITY GRANT AGREEMENT
[HOLT/ALLYN MULTIFAMILY HOUSING PROJECT]
THIS CITY GRANT AGREEMENT ("Agreement") dated, for identification purposes only, as of December __, 2024, is made and entered into by and between the CITY OF ONTARIO, a California municipal corporation and general law city (the "City"), and ONTARIO HOUSING AUTHORITY, a public body, corporate and politic (the "Authority"), with reference to the following:
RECITALS
A. Authority owns certain real property in the City commonly described as an approximately 5.73-acre site located on East Holt Boulevard east of Allyn Avenue (the "Property").
B. Authority has negotiated the terms of a Disposition and Development Agreement ("DDA") with National Community Renaissance of California ("Developer") setting forth the terms for the sale of the Property to Developer and the development thereon of a 130-150-unit affordable rental housing project (the "Development").
C. Authority desires to provide assistance to the Development by, among other things, providing a loan to Developer in an amount not to exceed the lesser of One Hundred Thousand Dollars ($100,000) per unit, or a maximum assistance amount of Fifteen Million Dollars ($15,000,000).
D. City holds Fifteen Million Dollars ($15,000,000) in Affordability In-Lieu Fees ("AI-LF Funds") collected for the purpose of increasing the supply in the City of affordable housing to persons and families of low-income.
E. City, on certain terms and conditions, desires to supply the AI-LF Funds to Authority for Authority to use to finance the Development pursuant to the DDA.
NOW, THEREFORE, in consideration of the promises contained below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Authority agree as follows:
1. Grant of AI-LF Funds. City hereby conditionally grants to Authority the AI-LF Funds in an amount not to Fifteen Million Dollars ($15,000,000). The AI-LF Funds shall only be paid by City to Authority if, as determined by the City Manager, the conditions set forth in the DDA to Authority's obligation to make the gap loan to Developer has been satisfied or waived.
2. Development Commencement Date. If the AI-LF Funds will be utilized, Authority shall be required to ensure that construction of the Development is commenced and completed in accordance with the terms of the DDA.
3. Accounting Records; Return of Unused Funds.Authority shall return to City any unused portion of the AI-LF Funds following completion of the Development. 521
46700.12002\42890363.1
4. Termination of Agreement. If, prior to "Close of Escrow" under the DDA, the DDA is terminated, this Agreement and the grant of AI-LF Funds hereunder shall terminate.
5. Incorporation of Recitals. The Recitals set forth above are true and correct and are incorporated into this Agreement by reference as though fully set forth herein.
6. Entire Agreement. This Agreement constitutes the complete, exclusive and final statement of the terms of the Agreement.
[Signatures on the following pages]
522
46700.12002\42890363.1
SIGNATURE PAGE TO
CITY GRANT AGREEMENT
[HOLT/ALLYN MULTIFAMILY HOUSING PROJECT]
IN WITNESS WHEREOF, City and Authority have caused this Agreement to be duly executed as of the date first above written.
CITY:
CITY OF ONTARIO, a California
municipal corporation and general law
city
By: ___________________________
Title: __________________________
City’s Address:
303 East “B” Street
Ontario, CA 91764
ATTEST:
By: _________________________
Title: ________________________
APPROVED AS TO LEGAL FORM:
By: __________________________
Title: _________________________
[Signatures continued on following page]
3 523
46700.12002\42890363.1
SIGNATURE PAGE TO
CITY GRANT AGREEMENT
[HOLT/ALLYN MULTIFAMILY HOUSING PROJECT]
IN WITNESS WHEREOF, City and Authority have caused this Agreement to be duly executed as of the date first above written.
AUTHORITY
ONTARIO HOUSING AUTHORITY, a
public body, corporate and politic
By: ___________________________
Title: __________________________
Authority’s Address:
208 W. Emporia Street
Ontario, CA 91762-3803
ATTEST:
By: ________________________
Title: _______________________
APPROVED AS TO LEGAL FORM:
By: __________________________
Title: _________________________
4 524
RESOLUTION NO. ________
A RESOLUTION OF THE ONTARIO HOUSING AUTHORITY OF THE
CITY OF ONTARIO, CALIFORNIA, APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE ONTARIO HOUSING
AUTHORITY AND NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA FOR PROPERTY GENERALLY LOCATED ON EAST HOLT
BOULEVARD EAST OF ALLYN AVENUE
WHEREAS, the Ontario Housing Authority, a California public agency ("Authority"), currently owns certain real property generally located on East Holt Boulevard east of Allyn Avenue and more specifically described in Exhibit A attached to this Resolution and incorporated herein by this reference (“Property”); and WHEREAS, the Authority proposes to enter into a certain Disposition and Development Agreement (the "DDA"), dated as of December 3, 2024, with National Community Renaissance of California, a non-profit public benefit corporation (the "Developer"), pursuant to which (a) the Authority will sell to Developer the Property; and (b) the Developer will develop thereon an approximately 130 to 150-unit, multifamily, affordable, rental housing project (the "Project"); and WHEREAS, the DDA further provides for the Authority to assist the Project by (a) providing a loan to Developer in the amount of the purchase price of the Property, as shall be determined pursuant to an appraisal; and a loan to Developer in an amount not to exceed the lesser of One Hundred Thousand Dollars ($100,000) per unit, or a maximum assistance amount of Fifteen Million Dollars ($15,000,000); and WHEREAS, the Project is consistent with the Housing Element of the General Plan of the City of Ontario and with the City's Consolidated Plan; and WHEREAS, on December 6, 2024, the Authority published notice of the public hearing to consider the disposition of the Property pursuant to the DDA; and WHEREAS, Developer’s proposed acquisition of the Property and the Developer’s anticipated construction of the Project on the Property in accordance with the terms of the DDA, are in the best interest of the Authority and of the health, safety and welfare of the residents of the City, and are in accordance with the public purposes set forth in applicable law. Implementation of the DDA will further the goals and objectives of the City’s general plan and the goals and objectives of the Authority by creating new, high quality affordable housing in the City; and
WHEREAS, Authority has duly considered all of the terms and conditions of the DDA and believes that the Project is in the best interests of the City of Ontario and the health, safety, morals and welfare of its residents, and is in accord with the public purposes and provisions of applicable state and local law and requirements.
NOW, THEREFORE, THE AUTHORITY DOES HEREBY RESOLVE AND
DECLARE AS FOLLOWS:
525
Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Section 2. Findings. The Authority intends to sell the Property to Developer in accordance with the terms of the DDA, and based on the Recitals and all other information and testimony provided, the Authority Board finds and determines that the sale and development of the Property pursuant to the DDA will provide housing for very low and low-income persons and is consistent with Authority's obligations under the California Housing Authority Law, and any obligations under the former California Redevelopment Law.
Section 3. Hearing. In accordance with California Health and Safety Code Section 34312.3 (the Housing Authority law) a duly noticed public hearing was held by the Authority on December 3, 2024.
Section 4. CEQA. The Authority’s approval of the DDA does not constitute approval of any development of the Property or of other activity on the Property that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA. (See 14 C.C.R. §§ 15060(c); 15378(b).) Moreover, close of escrow on the Property under the DDA, and Developer’s future use or development of the Project is expressly conditioned on CEQA compliance.
Section 5. Approval of Agreement. The Authority Board hereby approves the DDA, a copy of which is on file with the Secretary of the Authority, subject to any non- substantive revisions which do not increase the Authority’s liability and are approved by the Authority counsel, and authorizes the Executive Director to sign and enter into the DDA and perform the obligations of the Authority under the DDA.
Section 6. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The Authority declares that the Authority would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.
Section 7. Effective Date. This Resolution shall become effective immediately upon its adoption.
The Secretary of the Ontario Housing Authority shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 17th day of December, 2024. 526
_____________________________________
PAUL S. LEON, CHAIRMAN
ATTEST:
____________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
APPROVED AS TO FORM:
_______________________________________
AUTHORITY COUNSEL
527
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, Secretary of the Ontario Housing Authority, DO HEREBY CERTIFY that the foregoing Resolution No. OHA- was duly passed and adopted by the Board Members of the Ontario Housing Authority at their regular meeting held December 17, 2024 by the following roll call vote, to wit:
AYES: CHAIRMAN/BOARD MEMBERS:
NOES: BOARD MEMBERS:
ABSENT: BOARD MEMBERS:
___________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
The foregoing is the original of Resolution No. OHA- duly passed and adopted by the Ontario Housing Authority at their regular meeting held December 17, 2024. ____________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
528
RESOLUTION NO. ________
A RESOLUTION OF THE ONTARIO HOUSING AUTHORITY OF THE
CITY OF ONTARIO, CALIFORNIA, APPROVING THAT CERTAIN CITY GRANT AGREEMENT [HOLT/ALLYN MULTIFAMILY HOUSING
PROJECT] CONCERNING THE GRANT OF AFFORDABILITY IN-LIEU
FEE FUNDS TO THE ONTARIO HOUSING AUTHORITY FOR THE
HOLT/ALLYN MULTIFAMILY HOUSING PROJECT
WHEREAS, the City of Ontario (“City”) holds Fifteen Million Dollars ($15,000,000.00) in Affordability In-Lieu Fees collected from developers for the purpose of increasing the City’s supply of affordable housing available to persons and families of low-income.
WHEREAS, the Ontario Housing Authority (“Authority”) is the owner of certain real property in the City comprised of approximately 5.73 acres located on East Holt Boulevard east of Allyn Avenue (the “Property”).
WHEREAS, the Authority has negotiated the terms of a Disposition and Development Agreement (“DDA”) with National Community Renaissance of California, a California non-profit public benefit corporation (“Developer”) setting forth the terms for the sale of the Property to Developer and the development thereon of a 130-150-unit affordable rental housing project (the “Development”).
WHEREAS, Authority desires to provide assistance to the Development by, among other things, providing a loan to Developer in an amount not to exceed the lesser of One Hundred Thousand Dollars ($100,000) per unit, or a maximum assistance amount of Fifteen Million Dollars ($15,000,000).
WHEREAS, the City desires to develop and support affordable rental housing, and stabilize the community through the grant of the funds described herein.
WHEREAS, the City wishes to extend to the Authority financial assistance in the form of a grant (the “Grant”) from the Affordability In-Lieu Fees in an amount not to exceed $15,000,000.00 (the “Funds”).
WHEREAS, the City desires to make the Grant in accordance with the terms and conditions set forth in the City Grant Agreement [Holt/Allyn Multifamily Housing Project] included in the agenda documents accompanying this Resolution, and the Authority desires to receive the Grant from the City.
NOW, THEREFORE, BE IT RESOLVED by the Ontario Housing Authority as follows:
SECTION 1. Recitals. The above recitals are true and correct, and are incorporated into this Resolution by reference as though fully set forth herein. 529
SECTION 2. Approval of City Grant Agreement [Holt/Allyn Multifamily Housing Project]. The Authority hereby approves the City Grant Agreement [Holt/Allyn Multifamily Housing Project] in the form on file at the Offices of the Authority.
SECTION 3. Authorization. The Authority hereby authorizes the Executive Director (with the concurrence of the Authority Counsel) to execute and deliver on behalf of the Authority the agreement referenced herein, with such changes as may be authorized by the Authority Counsel, and such other documents and instruments as may be necessary or convenient in the furtherance of the actions authorized in this Resolution.
SECTION 4. Direction. Authority staff is hereby directed to do all that is necessary to effectuate the intent of this Resolution.
SECTION 5. CEQA Compliance. The Authority has determined that it can be seen with certainty that there is no possibility that approval of the actions authorized under this Resolution will have a significant adverse effect on the environment. Thus, the adoption of this Resolution is exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to Section 15061(b)(3) of the CEQA Guidelines.
SECTION 6. Certification. The Authority Secretary shall certify the adoption of this Resolution.
SECTION 7. Effective Date. This Resolution shall become effective upon its adoption.
The Secretary of the Ontario Housing Authority shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 17th day of December, 2024. _____________________________________
PAUL S. LEON, CHAIRMAN
ATTEST:
____________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
530
APPROVED AS TO FORM:
_______________________________________
AUTHORITY COUNSEL
531
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, Secretary of the Ontario Housing Authority, DO HEREBY CERTIFY that the foregoing Resolution No. OHA- was duly passed and adopted by the Board Members of the Ontario Housing Authority at their regular meeting held December 17, 2024 by the following roll call vote, to wit:
AYES: CHAIRMAN/BOARD MEMBERS:
NOES: BOARD MEMBERS:
ABSENT: BOARD MEMBERS:
___________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
The foregoing is the original of Resolution No. OHA- duly passed and adopted by the Ontario Housing Authority at their regular meeting held December 17, 2024. ____________________________________
SHEILA MAUTZ, AUTHORITY SECRETARY
(SEAL)
532
Department: Development Administration
Prepared By: Pablo De Lara
Staff Member Presenting: Rudy Zeledon,
Executive Director Community Development
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:
AN ORDINANCE APPROVING A THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT (FILE NO. PDA05-001) BETWEEN THE CITY OF ONTARIO AND
EDENGLEN ONTARIO, LLC
CITY OF ONTARIO
Agenda Report
December 17, 2024
SECTION:
ADMINISTRATIVE
REPORTS/DISCUSSION/ACTION
RECOMMENDATION:
That the City Council consider and waive further reading of an Ordinance approving a Third Amendment to the Development Agreement (File No. PDA05-001) between the City of Ontario and Edenglen Ontario, LLC.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:
There is not a direct fiscal impact associated with this action. The Development Agreement continues to provide the mechanism for funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Edenglen Specific Plan (Specific Plan) development, thereby mitigating the increased costs associated with such services. In addition, the City will receive public service funding fees plus development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to support the Ontario Ranch development.
BACKGROUND & ANALYSIS:
On November 1, 2005, the City Council approved the Edenglen Specific Plan and the Environmental Impact Report (EIR). Subsequently, The City Council approved two amendments to the Edenglen Specific Plan on May of 2009 and February 2021. The Specific Plan established land use designations, development standards, and design guidelines for approximately 153 gross acres of land, which included the potential development of 584 single- family units, 40,000 square feet of commercial space, and 951,500 square feet of business park/light industrial space. In conjunction with the City Council approval of the Edenglen Specific Plan in 2005, a Development Agreement, File No. PDA05-001, between the City of Ontario and Brookfield Edenglen, LLC, was approved. The Agreement applied to 80 acres of land located within 533
residential Planning Areas 1 through 8 of the Edenglen Specific Plan and granted Brookfield a vested right to develop the project as long as Brookfield complied with the Terms and Conditions of the Edenglen Specific Plan and EIR. Since that initial Development Agreement approval, several agreements and two amendments have been approved by the City to provide the Applicant flexibility in constructing the Edenglen Community during the economic recession 2007-08 and extend the term of the Development Agreement and clarified and updated the phasing of the construction of public infrastructure to serve various tract maps within the Specific Plan.
On August 26, 2022, the Planning Commission approved Tract Map 20524, for condominium purposes, to accommodate a Rowtown development of 108 units on the last remaining undeveloped residential pad within the Edenglen Specific Plan. Earlier this year, Brookfield commenced construction of the 108 townhome units. On April 3, 2024, the Development Agreement expired, however the City and Brookfield Edenglen LLC agreed to fully reinstate the Development Agreement. The reinstatement of the Development Agreement will ensure that Brookfield Edenglen LLC continues to meet the obligations of their Development Agreement and infrastructure requirements to facilitate the compilation of Tract Map 20524. Staff is recommending that the Development Agreement be extended an additional two years. The extension would allow Brookfield adequate time to complete the required infrastructure work and ensure compliance with the conditions necessary for the successful completion of Tract Map 20524. This extension will also facilitate the timely development of the 108 townhome units and allow the developer to address any unforeseen delays while still adhering to the overall goals of the Edenglen Specific Plan and Development Agreement.
ENVIRONMENTAL REVIEW:
The environmental impacts of this project were previously reviewed in conjunction with the Edenglen Specific Plan EIR (SCH# 2004051108) that was adopted by the City Council on October 4, 2005. This project introduces no new significant environmental impacts. All previously adopted mitigation measures are to be a condition of project approval and are incorporated herein by reference.
534
Exhibit A— Edenglen Specific Plan Land Use Plan
535
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, APPROVING THE THIRD AMENDMENT TO THE
DEVELOPMENT AGREEMENT, FILE NO. PDA05-001, BETWEEN THE
CITY OF ONTARIO AND EDENGLEN ONTARIO, LLC, TO EXTEND THE
TERM OF THE DEVELOPMENT AGREEMENT ASSOCIATED WITH
TRACT MAP NO’S 17392, 17558, 17559, 17560, 17561, 17562, 17563, 17564, 18789, 18790,18791, AND 20524, GENERALLY LOCATED
NORTH OF CHINO AVENUE, SOUTH OF RIVERSIDE DRIVE, EAST OF
MILL CREEK AVENUE, AND WEST OF THE SCE UTILITY CORRIDOR, WITHIN PLANNING AREAS 1 THROUGH 8 OF THE EDENGLEN
SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF — APN: 0218-171-15; 0218-921-07, 08, 16, 19, 22, AND 30; 0218-931-01 THROUGH 25; 218-931-75 THROUGH 89; 0218-932-01 THROUGH 21; 0218-933-01 THROUGH 17; 0218-934-01 THROUGH 24; 0218-935-01- THROUGH 04; 0218-935-12 THROUGH 19; 0218-935-22 THROUGH 38; 0218-941-01 THROUGH 39; 0218-941-55 THROUGH 93; 0218-951-01 THROUGH 70; 0218-952-19 THROUGH 82; 0218-954-01 THROUGH 42; 0218-955-01 THROUGH 42; 0218-956-01 THROUGH 58; 0218-961-07 THROUGH 88.
WHEREAS, on April 4, 1995, the City Council of the City of Ontario adopted Resolution No. 95-22 establishing procedures and requirements whereby the City of Ontario may consider Development Agreements; and
WHEREAS, on September 10, 2002, the City Council of the City of Ontario adopted Resolution No. 2002-100 which revised the procedures and requirements whereby the City of Ontario may consider Development Agreements; and WHEREAS, on November 15, 2005, the City Council of the City of Ontario, adopted Ordinance No. 2820, approving a Development Agreement between Brookfield Edenglen, LLC and the City; and
WHEREAS, the CITY and OWNER have previously supplemented the Development Agreement pursuant to: the Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC, (hereinafter the “First Supplemental Memorandum”) dated February 20, 2007; the Second Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC, (hereinafter the “Second Supplemental Memorandum”) dated November 14, 2007; the Third Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC, (hereinafter the “Third Supplemental Memorandum”) dated January 17th, 2008; the Amended and Restated Fourth Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC, dated, June 7, 2010 and the First Amendment to the Development Agreement by and between the City of Ontario and Edenglen Ontario LLC, dated January 1, 2011 (the “First Amendment”); the Second Amendment to the Development Agreement by and between 536
the City of Ontario and Edenglen Ontario, LLC dated April 3, 2018 (the “Second Amendment”); and
WHEREAS, OWNER and CITY also previously entered into the “Agreement For Temporary Water Service From and Abandonment of Agricultural Well, dated September 27, 2006 (hereinafter, the “Well Use Agreement”); and
WHEREAS the CITY and OWNER now intend to amend further the Original Development Agreement, as amended by the First and Second Amendments respectively (collectively, the “Development Agreement”), as set forth herein; and WHEREAS, the Owner has additional infrastructure work to complete on the Project that has been delayed for various reasons, including approvals by Southern California Edison; and
WHEREAS, the environmental impacts of this project were previously reviewed in conjunction with the Edenglen Specific Plan EIR (SCH# 2004051108) that was adopted by the City Council on October 4, 2005. This project introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by reference; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
NOW, THEREFORE, it is hereby found, determined, and ordained by the City Council of the City of Ontario as follows:
SECTION 1. Environmental Determination and Findings. As the decision- making body for the Project, the City Council has reviewed and considered the information contained in the previously adopted Edenglen Specific Plan EIR (SCH# 2004051108) that was adopted by the City Council on October 4, 2005, and supporting documentation. Based upon the facts and information contained in the addendum to the Edenglen Specific Plan EIR (SCH# 2004051108) and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this project were previously reviewed in conjunction with the previously adopted addendum to the Edenglen Specific Plan EIR (SCH# 2004051108) that was adopted by the City Council on October 4, 2005. This application introduces no new significant environmental impacts; and
(2) The Addendum and administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(3) The City's "Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed. This Application introduces no new 537
significant environmental impacts.
(4) All previously adopted mitigation measures shall be a condition of project approval, as they are applicable to the Project, and are incorporated herein by this reference.
(5) The Addendum contains a complete and accurate reporting of the environmental impacts associated with the Project, and reflects the independent judgment of the City Council; and
(6) There is no substantial evidence in the administrative record supporting a fair argument that the project may result in significant environmental impacts; and
SECTION 2: Subsequent or Supplemental Environmental Review Not Required. Based on the Addendum, all related information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Environmental Impact Report is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and
(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or
538
(d) Mitigation measures or alternatives are considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.
SECTION 3. Housing Element Consistency. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision-making body for the Project, the City Council finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, The project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is one of the properties listed in the Available Land Inventory contained in Table A-3 (Available Land by Planning Area) of the Housing Element Technical Report Appendix, and the proposed project is consistent with the maximum number of dwelling units and density specified within the Edenglen Specific Plan. Per the Available Land Inventory, the Edenglen Specific Plan is required to provide 584 dwelling units.
SECTION 4: Ontario International Airport Land Use Compatibility Plan (“ALUCP”) Compliance.The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan (“ALUCP”), establishing the Airport Influence Area for Ontario International Airport (“ONT”), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2-2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2-3), [3] Airspace protection Zones (ALUCP Map 2-4), and [4] Overflight Notification Zones (ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.
SECTION 5. Concluding Facts and Reasons. The City Council hereby specifically finds as follows:
(a) The Development Agreement applies to approximately 61.1 acres of land generally located north of Chino Avenue, south of Riverside Drive, east of Mill Creek Avenue, and west of the SCE utility corridor, within Planning Areas 1 through 8, of the Edenglen Specific Plan), and is presently improved with residential development and residential construction is on-going; and
(b) The properties to the north of the Project site are within the Creekside 539
Specific Plan, are developed with open space and residential uses.
The property to the south of the project site is developed with a SCE substation. The properties to the east are within the Edenglen Specific Plan, are designated for Utility Corridor, Commercial, Business Park, and Industrial uses and are vacant and developed with a landscape nursery. The property to the west is developed with a high school; and
(c) This Development Agreement will provide for the continued orderly development of the Edenglen Specific Plan; and
(d) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously adopted Edenglen Specific Plan EIR (SCH# 2004051108) that was adopted by the City Council on October 4, 2005, and supporting
documentation. This application introduces no new significant environmental impacts; and
(e) All adopted mitigation measures of the related EIR shall be a condition of project approval and are incorporated herein by reference.
Key points addressed in the Third Amendment are the following:
(a) The term of the Development Agreement will be extended for an additional two (2) year period years from the date the Third Amendment becomes effective.
SECTION 6: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the Third Amendment to the Development Agreement, File No. PDA05-001, attached hereto as “Attachment A,” and incorporated herein by this reference.
SECTION 7: City Manager Administrative Authority . The City Council acknowledges that refinement and further development of the Ontario Ranch development area may demonstrate that changes are appropriate with respect to the details and performance of the parties under the Development Agreement. The City Council desires to retain a certain degree of flexibility with respect to the details of the Ontario Ranch developments, and with respect to those items covered in general terms under the Development Agreement. If and when the City Manager (or designee) and the Developer mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of the Development Agreement, and such are not materially inconsistent with the Development Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications by written amendment to this Agreement, or through one or more memoranda which are mutually approved by the City Manager on behalf of the City and by the Developer, and, after execution, shall be 540
attached to the Development Agreement and become a part thereof. Unless otherwise required by law, no such changes, adjustments, or clarifications shall require prior notice or hearing before the City Council. The City Manager, with the approval of the City Attorney, shall have authority but not the obligation to execute amendments, memoranda or other documents, and may take any action necessary to implement the Development Agreement.
SECTION 8: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action or proceeding, and the City of Ontario shall cooperate fully in the defense.
SECTION 9: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East “B” Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.
SECTION 10: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
SECTION 11: Effective Date. This Ordinance shall become effective 30 days following its adoption.
SECTION 12: Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2025. _____________________________________
PAUL S. LEON, MAYOR
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ATTEST:
_________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2025 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
_________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:
File No. PDA05-001
THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation,
And
EDENGLEN ONTARIO, LLC
a Delaware limited liability company
(Development Agreement to follow this page)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Ontario
303 East “B” Street
Ontario California, California 91764
Attn: City Clerk
Exempt from Fees Per Gov. Code § 6301
______________________________________________________________________ Space above this line for Recorder’s Use Only
File No. PDA05-001
THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation,
And
EDENGLEN ONTARIO, LLC
a Delaware limited liability company
_________________________, 2024
San Bernardino County, California
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THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF ONTARIO AND EDENGLEN ONTARIO LLC
This Third Amendment (hereinafter “Third Amendment”) is entered into effective as of the _____ day of ___________________ 2024 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and Edenglen Ontario LLC, a Delaware limited liability company (hereinafter “OWNER”).
RECITALS
A WHEREAS, pursuant to Section 65864, et seq., of the California Government Code, the CITY and OWNER's predecessor have previously entered into that certain Development Agreement dated November 15, 2005 and recorded on November 23, 2005, as Document No. 2005-0883742, in the Official Records of San Bernardino County, California, as supplemented by that certain Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC dated February 20, 2007; Second Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC dated November 14, 2007; Third Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC dated January 17, 2008; Amended and Restated Fourth Supplemental Memorandum of Agreement By and Between the City of Ontario and Edenglen Ontario LLC, dated, June 7, 2010; and amended by that certain First Amendment to Development Agreement by and between the City of Ontario and Edenglen Ontario LLC dated December 7, 2010 and recorded on February 23, 2011, as Document No. 2011-0075859 (the “First Amendment”), and that certain Second Amendment to Development Agreement By and Between the City of Ontario and Edenglen Ontario LLC (PDA05- 001) dated April 3, 2018 and recorded on April 29, 2019 as Document No. 2019- 0133239 (the "Second Amendment") (collectively, the Development Agreement); and Fifth Supplemental Memorandum Agreement By and Between the City of Ontario and Edenglen Ontario LLC, dated August 17, 2022; and
WHEREAS the CITY and OWNER now intend to amend further the Original Development Agreement, as amended by the First and Second Amendments respectively (collectively, the “Development Agreement”), as set forth herein; and WHEREAS, the Owner has additional infrastructure work to complete on the Project that has been delayed for various reasons, including approvals by Southern California Edison
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AGREEMENTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual agreements hereinafter contained, the parties agree as follows:
1. Section 2.3 is hereby revised to add subsection (d) as follows:
(d) Notwithstanding the above, CITY and OWNER agree that the Term of the Development Agreement will be extended for an additional two (2) years from the date the Third Amendment becomes effective.
2. Reinstatement. The term of the Development Agreement, as heretofore extended, has expired, however CITY and OWNER hereby agree that notwithstanding anything to the contrary that may be set forth in the Development Agreement, to fully reinstate the Development Agreement as of the date this Third Amendment is fully executed as if it had never terminated subject to the terms, provisions and modifications set forth in this Third Amendment.
3. Integration. All remaining Sections of the Development Agreement and the Exhibits thereto shall not be affected by this Third Amendment.
4. Additional Documents/Actions. The City Manager is authorized with the approval of the City Attorney to approve and execute any documents and to take any actions necessary to effectuate the purposes of this Third Amendment to the Development Agreement.
5. Defined Terms/Other Provisions. Unless otherwise defined herein, capitalized terms contained in this Third Amendment shall have the meanings ascribed to them in the Development Agreement. Except as expressly amended herein, all provisions of the Development Agreement, as supplemented, restated and amended, shall remain.
6. Integration. This Third Amendment reflects the complete understanding of the parties with respect to the subject matter hereof. To the extent this Third Amendment conflicts with the Development Agreement, this Third Amendment supersedes such previous document. In all other respects, the parties hereto re-affirm and ratify all other provisions of the Development Agreement as amended.
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7. Indemnification. OWNER hereby agrees to indemnify, defend and hold harmless the CITY, its officials, officers, employees, agents, contractors and volunteers from and against any and all claims, suits or proceedings arising from or related to CITY’s entering into, or carrying out, this Third Amendment.
This indemnification includes the payment of all penalties, fines, judgments, awards, decrees, attorney’s fees and related costs or expenses incurred by the CITY.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the date the ordinance adopting this Third Amendment becomes effective.
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SIGNATURE PAGE
TO THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
EDENGLEN ONTARIO LLC
"OWNER"
Edenglen Ontario LLC, a Delaware limited
liability company
By:_______________________________
Name: Nicole Burdette
Title: President
Date: ___________________
"CITY"
CITY OF ONTARIO
By:_______________________________
Scott Ochoa, City Manager
Date: ___________________
ATTEST:
__________________________________
City Clerk, Ontario
APPROVED AS TO FORM:
BEST, BEST & KRIEGER LLP
__________________________________
City Attorney
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF _________________________)
On _________________, 20_____, before me, _______________________________________, Date Insert Name and Title of the Officer
personally appeared ____________________________________________________________ Name(s) of Signer(s)
_____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature________________________________
Signature of Notary Public
Place Notary Seal Above
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF _________________________)
On _________________, 20_____, before me, _______________________________________, Date Insert Name and Title of the Officer
personally appeared ____________________________________________________________ Name(s) of Signer(s)
_____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature________________________________
Signature of Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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