HomeMy WebLinkAbout2007/08/07 Item 16
CITY COUNCIL
AGENDA STATEMENT
~\'f:.. CITY OF
J~CHULA V1SfA
ITEM TITLE:
August 7, 2007, Item~
PUBLIC HEARING: CITY COUNCIL CONSIDERATION OF
THE ISSUANCE OF TAX EXEMPT OBLIGATIONS WITH
RESPECT TO THE PROPOSED DEVELOPMENT OF THE
LANDINGS AFFORDABLE APARTMENTS.
SUBMITTED BY:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROPRIATING $960,000 FROM HOME
INVESTMENT PARTNERSHIP FUNDS FOR FINANCIAL
ASSISTANCE FOR THE DEVELOPMENT OF THE LANDINGS
AFFORDABLE APARTMENTS, AUTHORIZING THE CITY
MANAGER TO EXECUTE A LOAN AGREEMENT BETWEEN
THE CITY OF CHULA VISTA AND CIC LANDINGS, L.P. AND
ALL OTHER AGREEMENTS AND DOCUMENTS NECESSARY
FOR THE FINANCING OF THE PROPOSED LANDINGS
AFFORDABLE APARTMENTS, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AMENDMENT TO THE
EXISTING AFFORDABLE HOUSING REGULATORY
AGREEMENT FOR THE 115 AFFORDABLE FOR-SALE UNITS
AND A NEW AFFORDABLE HOUSING AGREEMENT FOR
. THE 92 AFFORDABLE RENTAL UNITS IN NEIGHBORHOOD
R-19 IN OT A Y RANCH VILLAGE ELEVEN
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VIST A APPROVING THE ISSUANCE OF BONDS BY
THE HOUSING AUTHORITY OF THE CITY OF CHULA
VISTA FOR THE PROPOSED DEVELOPMENT OF THE
LANDINGS AFFORDABLE APARTMENTS PURSUANT TO
SECTION 147(F) OF THE INTERNAL REVENUE CODE OF
1986
ACTING DIRECTO- O~ ~~UNITY DEVELOPMENT ~
CITY MANAGER I~ V ...-
ASSISTANT CITY AGER S)
REVIEWED BY:
4/5THS VOTE: YES 0 NO D
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August 7, 2007, Item~
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BACKGROUND
On September 5, 2006, the City of Chula Vista and Brookfield Shea Otay, LLC, a California
Lirnited Liability Corporation, entered into an Affordable Housing Regulatory Agreement to
provide affordable for-sale housing in Neighborhood R-19 ofOtay Ranch Village Eleven. This
Agreement was entered into to satisfY the master developer's affordable housing obligations to
provide 207 total affordable units (92 low-income and 115 moderate-income) under the City's
Balanced Communities Policy of the Housing Element.
After the execution and subsequent recordation of this Agreement, the master developer
requested that the City of Chula Vista consider revising the affordable housing development
and the related Agreement to allow the affordable units for low-income households to be
rental rather than for-sale housing, while continuing to provide homeownership opportunities
for moderate-income households. The Landings apartment development (Project) will
provide 92 affordable rental units for lower income households, located on the corner of
Discovery Falls Road and Crossroads Street in Otay Ranch Village II in Chula Vista (see
Attachment I).
On March 20, 2007 the City Council directed staff to bring back to Council for its
consideration an amendment to the Affordable Housing Regulatory Agreement for
Neighborhood R-19 in Otay Ranch Village Eleven replacing the obligation of affordable for-
sale units for low-income households with affordable rental units, concurrently with
consideration of all other agreements and documents necessary for the fmancing of the
proposed rental housing development. Such agreements are being brought for consideration at
this time (Attachments 2-4).
Chelsea Investment Corporation (Developer) has been selected by the master developer to
pursue development of the affordable rental housing on the R-19 site. The Developer is
currently in the process of securing fmancing for the project and requested consideration of
financial assistance. On March 20, 2007, the City Council adopted a resolution conditionally
approving financial assistance of $920,000 from the HOME Investment Partnership Program to
Chelsea Investment Corporation for the development of the proposed project.
As a part of the financing package, the City of Chula Vista received a request from the
Developer to consider the issuance of tax exempt obligations to develop the project. On July
17, 2007, the Housing Authority of the City of Chula Vista approved a Housing Authority
Resolution which expressed the Authority's intent to issue multi-family housing revenue
bonds in an amount not to exceed $17.5 million to finance the proposed project.
At this time, the City Council is asked to hold a public hearing on the question of whether the
Housing Authority should issue tax exempt bonds for the financing of the project and to
approve the issuance, sale, and delivery of multi-family housing revenue bonds by the
Housing Authority at the time a bond allocation is received. If successful in obtaining a bond
commitment from the California Debt Limit Allocation Committee (CD LAC), the Developer
plans to come back to the Authority to request fmal approval for the issuance of the bonds.
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August 7, 2007, Item~
Page 3 of6
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed project for compliance
with the California Environmental Quality Act and has determined that the proposed project
was adequately covered in previously adopted Final Second Tier Environmental Impact
Report, EIR 01-02. Thus, no further CEQA review is necessary.
Additionally, the Environmental Review Coordinator has reviewed the proposed project for
compliance with the National Environmental Protection Act due to the use of Federal funds, and
has determined that the proposed project will not result in a significant impact on the quality of the
human environment.
RECOMMENDATION
It is recommended that the City Council take the following actions:
1. That the City Council conduct the required public hearing regarding the Authority's
intent to issue the tax exempt obligations for the proposed development of existing
affordable units at The Landings Apartments.
2. That the City Council adopt a resolution [a] Establishing a new non-CIP project -
"Landings Project" and amending the FY 2008 Home Program Budget to appropriate
$960,000 in grant funds from Housing and Urban Development to the "Landings
Project" for a loan related to the development of the Landings project and expenses
related to the processing of the loan [b) authorizing the City Manager to execute a loan
agreement by and between the City of Chula Vista and crc Landings, L.P. and all
other agreements and documents necessary for the fmancing of the proposed rental
housing development [c] authorizing the City Manager to execute an amendment to
the existing Affordable Housing Agreement and a new Affordable Housing
Agreement for neighborhood R-19 in Otay Ranch Village Eleven, separating out the
obligation of 115 affordable for-sale units and 92 affordable rental units.
3. That the City Council adopt a resolution approving the issuance, sale and delivery of
multifamily revenue bonds of the Housing Authority of the City of Chula Vista for the
proposed development of The Landings affordable apartments, and authorizing the
City Manager to execute all necessary documents for processing.
BOARDS/COMMISSION RECOMMENDATION
On February 28, 2007, the Housing Advisory Commission voted to recommend the
development of The Landings at Winding Walk as an affordable rental community and the
conditional approval of HOME funds to assist in its fmancing.
DISCUSSION
The AuuIicant
The Chelsea Investment Corporation (CIC) has developed several projects in Chula Vista,
primarily in eastern Chula Vista, to satisfy developer inclusionary housing requirements
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August 7, 2007, Item~
Page 4 of6
(Teresina Apartments, Rancho Buena Vista Apartments and Villa Serena). CIC has developed
and financed over 5,100 housing units. The company has a strong and experienced team of
professionals. CIC has successfully managed low income housing units for over 20 years.
The Property
The Landings development will be built within the Winding Walk subdivision of eastern
Chula Vista. The low-income units will satisfY the requirements of the City's Program for
the Provision of Affordable Housing within the Village II community. The development
envisions 92 townhome style units with all units affordable to low income households. The
proposed development will consist of 92 3-bedroom units, approximately 1,200 SF each. Each
unit will include an enclosed 2-car garage, balcony, and full sized appliances. Project
amenities include a pool, spa, clubhouse, and a tot lot.
The Proposal
All 92 units will be rented on a rent restricted basis to households whose income is at or
below 30-60 percent of the Area Median Income as determined by HUD. This project will
provide a balance of housing opportunities and fulfill a need in Chula Vista for large family
rental housing, particularly in the neighborhoods east of Interstate 805, as outlined in the City
of Chula Vista Housing Element.
Income And Rent Restrictions
For the bond funding, Section 142 (d) of the Internal Revenue Services Code requires either a
minimum of twenty percent of the rental units in the Project to be available for occupancy by
persons or families whose income does not exceed 50 percent of the area median income
(AMI) for the San Diego Primary Metropolitan Statistical Area, or alternatively, at least 40
percent of the rental units are required to be available for occupancy by persons or families
whose income does not exceed 60 percent of the AMI. In each case, the units are to be made
available at affordable rents established by the applicable State law.
Per the Affordable Housing Agreement for the inclusionary obligation, all 92 units must be
affordable for low income households. Because of the financing Chelsea is pursuing, the
entire project will provide rents even lower than what the City requires.
Unit No. of Target Inclusionary Proposed
Description Units Income Housing Rents
Group Obligation
Rent
3 Bd/2 Ba 32 30% AMI $1,035 $479
3 Bd/2 Ba 12 50% AMI $1,035 $838
3 Bd/2 Ba 22 55% AMI $1,035 $928
3 Bd/2 Ba 25 60% AMI $1,035 1,018
MGR 1 N/A N/A N/A
Total 92
Restricted
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August 7, 2007, Item~
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The Chelsea Investment Corporation proposes to maintain the income and rent restrictions for
The Landings for a period not less than fifty-five years, exceeding the 30-year term of the
bonds. The income and rent restrictions outlined above are to be incorporated into the
Regulatory Agreement for the bonds, which will be recorded against the property.
Compliance with the income and rent restrictions will be subject annually to a regulatory
audit and annual tax credit certification. Compliance with strict property management
policies and procedures will ensure that income and rent restrictions will be maintained for
the full 55-year compliance period, and will bind all subsequent owners of The Landings, so
that the commitment remains in force regardless of ownership.
Proposed Financinl! OfProiect
Financing and development of The Landings is proposed as a joint private-public partnership.
CIC will be using Tax Exempt Multi-Family Revenue Bonds, Low Income Housing Tax
Credit financing, and the State Multifamily Housing Program (MHP) to support the majority
of the estimated $33.8 million ($367,300 per unit) cost of constructing the project.
Chelsea Investment Corporation has requested that the Housing Authority of the City of
Chula Vista consider the issuance of up to $17.5 million in private placement bonds, which is
the projected maximum construction loan. The permanent bond loan is estimated at
approximately $5 million. The initial bond issuance of $17.5 million is necessary to comply
with a requirement to bond for at least fifty percent of the project costs (fifty per cent test),
which is critical to receipt of the tax credit equity. Chelsea Investment Corporation will apply
for approximately $9.6 million in Low Income Housing Tax Credits. The permanent bonds
and Tax Credits would cover over 41 percent of the estimated cost. The balance is expected
to be provided by land donation, a small City subsidy and State financing.
The required documents will be presented to the City/Housing Authority for approval at such
time as final approval of the issuance of the bonds and the related bond documents is
requested.
The proposed total project cost is estimated at $33,790,249 ($367,285 per unit). Below is a
summary of development costs and associated sources:
COST AMOUNT SOURCE AMOUNT
Land Purchase $10,590,000
Construction $14,269,634
Contingencv $625,861 Tax Credit Equity $9,624,000
Permits & Fees $2,684,928 State MHP Loan $7,216,260
Interest/Fees, Financing Costs $1,668,887 Bond $4,948,000
Design}Engineering $755,000 City Loan $920,000
Developer Fees $2,500,000 Land Donation $10,580,000
Reserves, Legal, Other $695,939 Deferred Developer Fee $501,989
TOTAL ESTIMATED COST $33,790,249 $33,790,249
TOTAL SOURCES
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August 7, 2007, Item~
Page 6 of6
The City Council conditionally approved $920,000 in fmandal assistance from HOME
Investment Partnership funds, to assist 11 units at the extremely low income range. F onnal
appropriations are requested at this time.
DECISION MAKER CONFLICT
Staffhas reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property which is the subject of this action.
FISCAL IMPACT
The total HOME appropriation of $960,000 is available from the City's allocation of HOME
Investment Partnership grant funds. The loan amount of $920,000 will be used towards a loan
for CIC, Landings L.P. for costs related to the development of the Landings. The HOME
grant funds will also provide an additional $40,000 for project management costs; which will
offset staff time and overhead costs related to loan underwriting, legal services, and
environmental review.
Bond financing is a self-supporting program with the owner responsible for the payment of all
costs of issuance and other costs and repayment of the bonds. ,All costs related to the issuance
of the bonds will be paid for from bond proceeds or tax credit equity. The bonds will be
secured by the project and will not constitute a liability to or obligation of the City or Housing
Authority.
The City of Chula Vista Housing Authority will receive compensation for its services in
preparing the bond issuance by charging an origination fee of 1/8 of 1 % of the bond loan,
approximately $21,875. Additionally, staff costs associated with monitoring compliance of
the regulatory restrictions and administration of the outstanding bonds will be reimbursed
from an annual administrative fee of approximately $7,505 paid to the Housing Authority by
the owner.
ATTACHMENTS
1. Locator Map
2. Loan Agreement
3. Affordable Housing Agreement (Low Income)
4. Affordable Housing Agreement Amendment (Moderate Income)
5. Disclosure Statement
Prepared by: Amanda Mills, Housing Manager, Community Development Department
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Attachment 2
THE LANDINGS
LOAN AGREEMENT
by and between
THE CITY OF CHULA VISTA
a public body, corporate and politic
and
CIC Landings, L.P.,
a California Limited Partnership
16-8
LOAN AGREEMENT
THIS LOAN AGREEMENT AND RELATED RESTRICTED COVENANTS (the
"Agreement") is entered into as of August _,2007, between the THE CITY OF CHULA VISTA, a
public body, corporate and politic ("City"), and CIC Landings, L.P., a California limited partnership
("Borrower"), and/or its successors or assignees.
ARTICLE 1- Recitals
1.1 Authority: City is a municipal corporation, organized under the laws of the State of California,
City is authorized to enter into binding agreements for the purpose of protecting public
health, safety, and welfare.
1.2 Available Funds: City has been allocated funds from the United States Department of Housing
and Urban Development ("HUD") pursuant to the federal government's HOME Investment
Partnership Act Program (42 U.S.c. 1274, et seq) which can be used, subject to final HUD
approval, for the purposes of funding certain City obligations under this Agreement in
accordance with HOME Program regulations (24 C.F.R. 92 et seq)
1.3 The Property: Borrower is or will become the legal owner of the fee title to the real property
located on the corner of Discovery Falls Road and Crossroads Street within Otay Ranch
Village 11 in the City of Chula Vista, as described in the attached Exhibit A, which is
incorporated herein (the "Property").
1.4 Proiect: Borrower proposes to construct 92 affordable housing units. The majority of the
residential units will be restricted as affordable units to low income households through an
Affordable Housing Agreement for Village Eleven's Inclusionary Housing Requirement.
Units will be further restricted though other funding sources under the terms of a separate
Affordable Housing Agreement. The financial contribution from the City, in the form of
HOME Program Funds, will restrict 11 units to extremely low income households at or
below 30 percent of AMI (the "Project"). The Project will be subject to certain affordable
housing obligations pursuant to a Declaration of Covenants, Conditions and Restrictions by
and among the Borrower and the City (the "Declaration").
1.5 Citv Financial Assistance to Borrower: Through the development and operation of the Project,
City and Borrower desire to provide extremely low income households with affordable
housing opportunities within the City in accordance with the Community Redevelopment
Law, the City's redevelopment plans, the City's Consolidated Plan, and the Housing Element
of the City General Plan. In order to accomplish this goal, the City desires to make a loan to
Borrower from its HOME funds to Borrower for a portion of the costs of the construction of
the Project, subject to certain conditions designed to assure the implementation of the Project
in accordance with the redevelopment plans, the General Plan, state and federal law, HOME
Program regulations and as otherwise provided herein.
1.6 Interests of the City and the Public: The Borrower's acquisition, construction and operation of
the Project pursuant to this Agreement, and the fulfillment generally of this Agreement, are in
the vital and best interests of the City and the welfare of the residents of the City of Chula
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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Vista, and in accordance with the public purposes and provisions of applicable federal, state,
and local laws and requirements.
1.7 Housing Obiectives and Goals: The Project accommodates several of the City's Comprehensive
Housing Plan Objectives, which are expressly noted in the Housing Element as priorities for
the City. The objectives this Project serves are:
(I) Encourage the provision of a wide range of housing choices, particularly
within each geographic area of the City
(2) The provision of adequate rental housing opportuml1es and assistance to
households with low and very low incomes, including those with special
needs such as the elderly, handicapped, single-headed households, large
families and those "at-risk" ofhomelessness.
WHEREFORE, based upon the foregoing recitals and in consideration of their mutual and
prospective promises and subject to the terms and conditions hereinafter set forth, the parties
do hereby agree as follows:
ARTICLE 2 - Definitions
The following terms as used in this Agreement shall have the meanings given unless expressly
provided to the contrary:
2.1 "Affordable Housing Agreement" means that certain agreement, between the Borrower and the
City, which sets forth Borrower's obligations to maintain the Project as an affordable
multifamily housing project for low income households. Said Affordable Housing Agreement
is not attached to this Agreement..
2.2 "Borrower" means CIC Landings, L.P., a California limited partnership. The term "Borrower"
includes any legally permissible assignee or successor to the rights, powers, and
responsibilities of Borrower hereunder, following such assignment and succession, in
accordance with Section 11.1 0 of this Agreement.
2.3 "Borrower's Limited Partner" means the limited partner referenced in the Borrower's Partnership
Agreement, as approved by the City, in its reasonable discretion, and its successors and
assigns.
2.4 "Certificate of Completion" shall have the meaning ascribed in Section 9.8 of this Agreement.
The form of the Certificate of Completion shall be as approved by the City Attorney, in
his/her reasonable discretion.
2.5 "City" shall mean the City of Chula Vista, a municipal corporation, organized under the laws of
the State of California and having its offices at 276 Fourth Avenue, Chula Vista, California
91910.
2.6 "City Loan" means the loan for an amount of Nine Hundred Twenty Thousand Dollars
($920,000) by the City to Borrower, which loan is the subject of this agreement.
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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2.7 "City Note" shall mean the promissory note, in a form and format as approved by the City
Attorney, in his/her reasonable discretion.
2.8 "City Trust Deed" shall mean that certain deed of trust which secures the Borrower's obligations
pursuant to the City Note and which shall be recorded in the order of priority set forth in this
Agreement), in a form and format as approved by the City Attorney, in his/her reasonable
discretion.
2.9 "Declaration" shall mean the Declaration of Covenants, Conditions and Restrictions between the
Borrower and the City.
2.10 "Developer" means Chelsea Investment Corporation, a California corporation, and its
successors and assigns, as approved by the City, in his/her reasonable discretion.
2.11 "Development Fee" and "Deferred Development Fee" shall have the meaning ascribed in
Section 8.1.
2.12 "Bonds" means the Multifamily Housing Revenue Bonds issued by the Housing Authority of
the City of Chula Vista in the aggregate principal amount of $6,004,000.
2.13 "Effective Date" means the date first appearing in this Agreement above.
2.14 "Gross Revenue" shall have the meaning ascribed in Section 4.5.
2.15 "Housing Manager" means the Housing Manager of the Community Development
Department of the City Of Chula Vista.
2.16 "Partnership Agreement" means the Limited Partnership, for the Borrower, as such may be
amended or supplemented from time to time, and as approved by the City, in its reasonable
discretion.
2.17 "Project" shall have the meaning ascribed in Section 1.4 of this Agreement.
2.18 "Project Budget" means that certain budget referred to in Section 4.11 of this Agreement and
attached hereto as Exhibit C, which is incorporated herein by this reference, which budget
may not be materially changed without the prior approval of the Director of Community
Development , which approval shall not be unreasonably withheld (a material change is a
change that causes the total Project cost to increase or decrease by three percent (3%) or more
from what is shown in Exhibit C.
2.19 "Project Pro Forma" means that certain Project Pro Forma referred to in Section 4.11 of this
Agreement and attached hereto as Exhibit D, which is incorporated herein by this reference,
which pro forma Borrower represents to be a good faith projection of the information set
forth therein.
2.20 "Property" means that certain real property legally described in Exhibit A which is attached
hereto and incorporated herein.
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Landings Loan Agreement and Restrictive Covenants. Clean. 7.30.07
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2.21 "Property Manager" means the property management company managing the Project,
whether or not the Project is managed by Borrower. The term Property Manager shall not
mean the on-site property manager.
2.22 "Reasonable Operating Expenses" shall have the meaning ascribed in Section 4.5 (b) (ii).
2.23 "Regulatory Agreement" or "Bond Regulatory Agreement", the terms being synonymous,
means the Regulatory Agreement by and among the Borrower, the Bond Issuer.
2.24 "Residual Receipts" shall have the meaning as ascribed in Section 4.5 (b).
2.25 "Restricted Units" means the residential units in the Project whose rent levels and occupancy
are to be restricted as set forth in this Agreement.
2.26 "Schedule of Performance" means that certain Schedule of Performance attached hereto as
Exhibit F and incorporated herein, as the same may be modified or extended pursuant to
Sections 9.4 and 13.3 hereof.
2.27 "TCAC Regulatory Agreement" means that regulatory agreement entered into by and
between the Borrower and the TCAC, as that term is hereinafter defined, concerning the
Project.
2.27 "Title Insurer" means the title insurance company chosen by the Borrower for the Project, as
reasonably approved by the City.
ARTICLE 3 - Financing of the Project
3.1 Summary of Financing: Borrower's current sources and uses of funds summary for the
Project is attached hereto as Exhibit B, which is incorporated herein. Borrower contemplates
a total project budget of approximately $37,298,627. Borrower will obtain construction and
permanent loan financing funded by the Chula Vista Housing Authority ("Bond
Issuer/Lender"), in the aggregate principal amount of $6,004,000, which are planned to be
issued by the Bond Issuer/Lender in the approximate aggregate amount of $6,004,000 (the
"Bond Loan"). City shall loan Borrower the amount of $920,000, secured by the City Trust
Deed, which shall be subordinate to the Bond Loan funded by the Bonds. Borrower represents
that it will receive a Tax Exempt Reservation Letter reserving $11,863,000 of "4%" tax
credits for the Project from the California Tax Credit Allocation Committee ("TCAC") which
will support an equity investment in Borrower by Borrower's Limited Partner in the amount
of approximately $11,863,000, pursuant to the terms and conditions of the Partnership
Agreement. Borrower shall also obtain a loan from the State of California Multi-Family
Housing Program (MHP) of approximately $6,931,052.00. In addition, the Developer will
defer a portion of its Developer Fee in the amount of $620,575 to finance the Project. City
acknowledges that the foregoing amounts (other than the amount of the City Loan) are
approximations and may change, provided, however, the maximum amount of debt senior to
the City Loan shall not increase by more than 10% in aggregate. In no event shall the City
Loan fund if the amount of debt senior to the City Trust Deed exceeds the limit referenced
above, without the further written consent of the City.
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ARTICLE 4- City Loan
4.1 Amount and Disbursement: Subject to the terms and conditions set forth herein, the City hereby
commits to loan to Borrower the total sum of $920,000 (the "City Loan"), to be applied
solely for payment of a portion of the cost of the construction ofthe Project.
4.2 Interest: The outstanding principal amount of the City Loan shall accrue simple interest at the
rate of three (3%) percent per annum.
4.3 Borrower's Obligations.: The following conditions must be fully satisfied as reasonably
determined by the City in order to obligate the City to make each disbursement of the City
Loan:
a. Borrower shall have submitted a complete application for a preliminary allocation of
"4%" low-income housing tax credits from the California Tax Credit Allocation
Committee in the amount set forth in the Sources and Uses attached hereto as Exhibit
B, or such greater or lesser amount as may be mutually agreed to by the parties.
b. Borrower shall have acquired fee title to the Property concurrently with the first
disbursement ofthe City Loan.
c. Borrower shall have received a firm commitment for an equity contribution from
Borrower's Limited Partner in Borrower of not less than $11,863,000, which number
is subject to adjustment pursuant to the Partnership Agreement, or such lesser amount
as may be mutually agreed to by the parties. The City shall not unreasonably
withhold or delay its consent to Borrower's request to approve such a lower amount.
d. Borrower shall have obtained a firm commitment for the Bond Loan in an amount
equal to the net proceeds of the Bonds or such greater or lesser amount as may be
mutually agreed to by the parties, and the MHP Loan shall have closed or be ready to
close concurrently with the City Loan.
e. Borrower shall have duly executed (and acknowledged, if applicable) the City Note,
the City Trust Deed, the Declaration and the Affordable Housing Agreement, and
shall have submitted the same into the escrow established for the Borrower's
acquisition of the Property, and the City Trust Deed, the Declaration and Affordable
Housing Agreement shall be ready to be recorded concurrently with the recording of
the grant deed conveying title to the Property to the Borrower as an encumbrance to
the Property, subordinate only to the liens securing the Bonds, the MHP Loan, the
Bond Regulatory Agreement and other non monetary encumbrances approved by the
City.
f. Borrower shall have submitted to the City, and City shall have reviewed and
approved, in its reasonable discretion, any and all loan documents, regulatory
agreements or grant contracts to be executed by or otherwise to be binding upon City
or Borrower in connection with its acquisition of the Property, its construction and
operation of the Project and/or its financing thereof, including without limitation the
Bond Loan Documents, the MHP Loan Documents, the regulatory agreement to be
executed and recorded in favor of the TCAC (the "TCAC Regulatory Agreement"),
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and the Partnership Agreement of the Borrower and documents executed pursuant
thereto, such as guaranties and funding agreements.
g. Borrower shall have provided the City with satisfactory evidence that Borrower's
general and limited partners have approved this Agreement and the related City Loan
documents and authorizing Borrower's signatories to execute this Agreement and the
related City Loan documents on its behalf.
h. The Title Insurer or another title insurance company reasonably acceptable to the City
shall have unconditionally committed to issue the Lender's Policy to the City in
accordance with Section 4.9 hereof.
I. Borrower shall have satisfied all other obligations under this Agreement required to
be performed prior to the closing on the City Loan, and shall not be in default in any
of its obligations under the terms of this Agreement. All representations and
warranties of Borrower contained herein shall be true and correct in all material
respects on and as of the date of the disbursement of the City Loan as though made at
that time.
J. At least 60 days shall have passed since the City's final approval of this Agreement.
Alternatively, the Borrower shall have provided to the City (i) an opinion of legal
counsel, in a form and from legal counsel which is reasonably satisfactory to the City
Attorney, that the Project is not a "low rent housing project" subject to the
requirements of Article XXXIV of the California Constitution, or (b) an agreement in
a form and from a party which is reasonably satisfactory to the City, in which the
party agrees to indemnify, defend and hold harmless the City from any losses or
liability arising from a legal claim that the City loan violates the provisions of Article
XXXIV of the California Constitution.
4.4 Source of City Loan: The source of the City Loan is to be obtained by City from HUD pursuant
to the federal government's HOME Investment Partnership Act Program (42U.S.C. 12741 et
seq) hereinafter referred to as "the HOME Program". Pursuant to the HOME Program
requirements, out of the total of ninety-two (92) units in the Project, eleven (II) three-
bedroom units are being assisted with HOME funds (the "HOME assisted units") for
extremely low income households and must meet all of the HOME requirements for the term
of the affordability restrictions on the units. The specific units to be designated HOME-
assisted units may change from time to time in Borrower's sole discretion, known as
"floating units", provided that the aggregate number and category of said units remains the
same.
4.5 Repayment: Payments under the City Loan shall be made as follows:
a. Commencing on the Initial Payment Date (defined below), payment of principal and
interest on the City Note shall be made, on an annual basis, in an amount equal to fifty
percent (50%) of the "Residual Receipts" (defined below) derived from the Property
and/or the operation of the Project. Such amounts shall be paid on a priority basis to all
other debt service on the Property, except for the Bond Loan funded with the proceeds
of the Bonds and the Deferred Development Fee (as defined below) if any. Residual
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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Receipts shall be calculated by Borrower each and every year commencing with the
first anniversary of the issuance of the Certificate of Completion by the City. The fifty
percent (50%) Residual Receipts payments, if any, shall be made on or before thirty
(30) days after the later of (i) the first year anniversary of the issuance of the Certificate
of Completion by the City or (ii) the first year anniversary of the date on which the
Deferred Development Fee, if any, has been paid in full (the "Initial Payment Date"),
and on or before 30 days after each subsequent yearly anniversary of the Initial
Payment Date.
b. "Residual Receipts" is specifically defined as the "Gross Revenue" (as defined below)
from the Project minus the "Reasonable Operating Expenses" (as defined below) for
the same period.
(i) "Gross Revenue" shall mean all revenue, income, receipts, and other
consideration actually received from operation and leasing of the Project.
Gross Revenue shall include, but not be limited to: all rents, fees and charges
paid by tenants, Section 8 payments or other rental subsidy payments
received for the dwelling units, all cancellation fees; proceeds from vending
and laundry room machines; the proceeds of business interruption or similar
insurance to the extent not applied to the Bond Loan; the proceeds of casualty
insurance to the extent not utilized to repair or rebuild the Project or applied
to the Bond Loan; and condemnation awards for a taking of part or all of the
Project for a temporary period to the extent not applied to the Bond Loan or
used to repair or restore the Project. Gross Revenue shall not include tenants'
security deposits, loan proceeds, capital contributions or similar advances or
payments from reserve funds.
(ii) "Reasonable Operating Expenses" shall include any and all reasonable and
actually incurred costs associated with the ownership, operation, use or
maintenance of the Property, calculated in accordance with generally
accepted accounting principles. Such expenses may include, without
limitation, property and other taxes and assessments imposed on the Project;
premiums for property damage, liability and business interruption insurance;
utilities not directly paid for by the tenants including, without limitation,
water, sewer, trash collection, gas and electricity, maintenance and repairs
including, without limitation, pest control, landscaping and grounds
maintenance, painting and decorating, cleaning, general repairs, and supplies;
tenant relocation costs and expenses; license fees or certificate of occupancy
fees required for operation of the Project; general administrative expenses
directly attributable to the Property including, without limitation, advertising
and marketing, security services and systems, and professional fees for legal,
audit and accounting; property management fees and reimbursements
including on-site manager and assistance manager expenses; any fees payable
to Borrower's Limited Partner pursuant to the Partnership Agreement,
including but not limited to the Asset Management Fee, as such terms are
defined in the Partnership Agreement, debt service on any loan made to the
Borrower by any partner of the Borrower to cover operating expenses; a
reasonable property management fee, cash deposited into a reserve for capital
replacements of the Project improvements and an operating reserve (and such
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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other reserve accounts required with respect to the Bond Loan) in such
amounts as are required by the Bond Issuer/Lender and as may be reasonably
required by Project equity investors; tenant services costs; debt service
payments (excluding debt service due to City from Residual Receipts of the
Project) on financing for the Project; reasonable supplemental management
fees; and payment of the Deferred Development Fee. In no event shall
expenditures, including attorneys' fees or litigation costs, normally required
to be paid out of the Replacement Reserve, be treated as Reasonable
Operating Expenses unless specifically approved in writing by the City. For
purposes of the foregoing definition of "Reasonable Operating Expenses,"
any property management fee or partnership management fee which is paid to
Borrower or an affiliate of Borrower shall at no time exceed an amount as is
customary and standard for affordable housing projects similar in size, scope
and character to the Project. Notwithstanding the foregoing, for purposes of
this calculation, Reasonable Operating Expenses shall not include the
following: principal and interest payments on any debt subordinate to the City
Note (except debt service on loans made to the Borrower by a partner to
cover operating expenses, as provided above), depreciation, amortization,
depletion or other non-cash expenses, incentive partnership asset management
fees payable to the Borrower or its affiliate (other than the supplemental
management fee described above), or any amount expended from a reserve
account. In the event that any of the above costs is incurred partially with
respect to the Project and incurred partially with respect to the commercial
retail development located on the Property, the parties shall mutually agree
upon an allocable portion of such costs which shall be deemed Reasonable
Operating Expenses of the Project for the purposes ofthis Agreement.
c. The fifty percent (50%) of Residual Receipts remaining after the annual Residual
Receipts payments on the City Note may be retained and used by Borrower in
Borrower's sole discretion.
d. Except as otherwise expressly provided hereunder, Borrower's obligation to repay the
City Loan shall be limited to Borrower's annual payment, until the City Loan is
repaid in full, of fifty percent (50%) of the Residual Receipts as described above, to
be applied to the payment of the City Loan for a period from the completion of the
Project until the date which is fifty-five (55) years following the date of the City's
issuance of the final Certificate of Completion for the Project (but in no event later
than sixty (60) years from the date of execution of the City Note) (the "Conditional
Maturity Date"). Upon the Conditional Maturity Date, City shall have the option, at
any time, in its sole discretion, but after good faith discussions with Borrower as to
available options, upon ninety (90) days' written notice to Borrower, to (a) declare
the remaining balance of all amounts owed under the City Note immediately due and
payable, or (b) to require installment payments under the City Note based upon (i) a
restated principal balance comprised, in the aggregate, of any and all outstanding
principal and interest under the City Note existing as of the date of its election, (ii) a
prospective fixed interest rate per annum equal to the prime rate then in effect for
Bank of America, San Diego office, or such other rate mutually agreed to by the City
and Borrower, and (iii) monthly installments of principal and interest paid over the
course of an amortization schedule to be determined by the City in its sole discretion,
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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not to be less than ten (10) years. In the event that City elects repayment approach
(b), Borrower agrees to execute an amendment to the Note in favor of City reflecting
the amended repayment terms described above.
e. Notwithstanding the foregoing, in the event that Borrower, or any successors thereto,
is in default under this Agreement pursuant to Section 12.1 hereof, the City shall have
the right in its sole discretion, to declare immediately due and payable all outstanding
principal, interest and other sums due under the City Note, or to pursue any and all
other remedies provided herein, under the City Note, City Trust Deed, or the
Affordable Housing Agreement, or as otherwise provided at law or in equity.
4.6 Prepavment: Borrower may prepay the principal and any interest due under the City Note prior
to or in advance of the time for payment thereof as provided in the City Note, without
penalty; provided, however, that Borrower acknowledges that certain provisions hereof and
the provisions of the Affordable Housing Agreement and the Regulatory Agreement will be
applicable to the Project in accordance with their respective terms even though Borrower
may have prepaid the City Note.
4.7 Assumotion: In the event the Project is sold or transferred as approved by the City or otherwise
permitted pursuant to Section 11.1 0 hereof, the City Loan shall be fully assumable by the
approved or permitted transferee.
4.8 Use of Loan Proceeds: City Loan proceeds shall be disbursed by City and shall be used by
Borrower only to pay for a portion of the cost of the construction of the Project.
4.9 Lien Prioritv. Title Insurance: As a condition to the obligations of City to fund the City
Loan, there shall be no liens or encumbrances upon the Property having priority over the City
Trust Deed, other than: (a) the deed of trust securing the Bond Loan (b) the Affordable
Housing Agreement; (c) the Bond Regulatory Agreement; (d) the MHP Trust Deed; (e) the
TCAC Regulatory Agreement and (f) those existing non-monetary encumbrances which are
disclosed in title reports delivered to City and which have not been objected to by the City in
writing. Such priority shall be evidenced by an ALTA lender's insurance policy, including
title endorsements reasonably requested by the City with liability equal to the amount of the
City Loan, or such other amount as may be mutually agreed to by the parties (the "Lender's
Policy") to be issued to City by Borrower to Title Insurer at the close of escrow for the
Borrower's acquisition of the Property. Borrower shall be responsible for the cost of the
Lender's Policy, which may be paid for from the proceeds of the City Loan.
4.1 0 Subordination: Refinancing: City agrees to take such actions as may be necessary to
subordinate the City Trust Deed to the Bond Loan or any future refinancing(s) thereof;
provided, however, that any such subordination to the Bond Loan shall be evidenced by a
recorded subordination agreement containing such notice, cure, loan purchase or assumption
and Project purchase rights as may be reasonably required by the City in a form to be
approved by the City Attorney, which approval shall not be unreasonably withheld or
delayed. In no event, shall the City be required to subordinate to debt in excess of that
referenced within this Agreement as being senior to the City Deed of Trust.
4.11 Borrower's Evidence of Financial Caoabilitv: The anticipated sources and uses of funds for
acquisition of the Property and construction of the Project are set forth in the Project Budget
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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(Exhibit C). The financial projections for the Project are set forth in the Project Pro Forma
(Exhibit D). The City acknowledges that the numbers in the foregoing exhibits may change,
subject to reasonable City approval of such changes, which approval shall not be
unreasonably withheld.
Upon request but in no event later than the disbursement of the City Loan proceeds,
Borrower shall submit to the City's Housing Manager evidence reasonably satisfactory to the
City's Housing Manager that Borrower has the financial capability necessary for the
acquisition of the Property and the construction of the Project thereon in accordance with this
Agreement, the Project Budget, and the Project Pro Forma. Such evidence of financial
capability shall include the following:
a. Copy of the Partnership Agreement, as amended from time to time, with the approval
of the City, which approval shall not be unreasonably withheld, and other documents
evidencing commitments for equity financing.
b. Copy of the guaranteed maximum cost construction contract between Borrower and
its general contractor for all of the improvements required to be constructed by
Borrower hereunder, which shall be deemed to be certified by Borrower to be a true
and correct copy thereof.
c. Copy of the regulatory agreement to be required by TCAC, and other verifiable
documentation that Borrower will receive an allocation of "4%" low income housing
tax credits with respect to the Project.
d. Copies of all senior financing documentation, including the Bond documents, the
TCAC Regulatory Agreement, the MHP Loan Documents, and all other documents
required to finance and acquire the Property and Project.
4.12 Reports and Accountimr of Residual Receipts.
a. In connection with the annual repayment of the City Loan, commencing upon the
Initial Payment Date, the Borrower shall furnish the City with an audited statement
duly certified by an independent firm of certified public accountants approved by the
City, setting forth in reasonable detail the computation and amount of Residual
Receipts during the preceding calendar year.
b. The Borrower shall keep and maintain, in accordance with Section 13.4 hereof, full,
complete and appropriate books, records and accounts necessary or prudent to
evidence and substantiate in full detail Borrower's calculation of Residual Receipts.
All such books, records, and accounts shall be open to and available for inspection by
the City, and its auditors or other authorized representatives in accordance with
Section 13.4 hereof.
c. Such other and further records and documentation as may be required by the City in
its reasonable discretion to verify the amount of the Residual Receipts.
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ARTICLE 5 - Note and Deed of Trust
5.1 Security for Loan: Borrower's obligations to repay the City Loan shall be evidenced by the City
Note, and shall be subject to the terms and conditions contained therein. The City Note shall
provide for simple interest at the rate ofthree percent (3%) per annum. Among other things,
the City Note shall further provide that such Note is non-recourse to the Borrower and the
partners of Borrower and that payments of principal and interest shall be made only from
fifty percent (50%) of the Residual Receipts (as defined in Article 4 hereof).
The City Note shall be secured by the City Trust Deed encumbering the Property, which shall
be junior and subordinate to the liens securing the Bond Loan and the State Multi-Family
Housing Program Loan, the TCAC Regulatory Agreement, the Bond Regulatory Agreement
and the Affordable Housing Agreement. The City Trust Deed shall further provide that the
occurrence of any default pursuant to Section 12.1 of this Agreement shall constitute a
"default" or "event of default" under such Trust Deed. Prior to the close of escrow for the
Borrower's acquisition of the Property, Borrower shall execute and deliver to City the City
Note and the City Trust Deed. The City Trust Deed shall be recorded with the Office of the
San Diego County Recorder in accordance with City's instructions to escrow. Borrower shall
be responsible for any and all of City's escrow, title and recording costs arising in connection
with the City Loan, such costs to be paid by Borrower through escrow.
5.2 Nonrecourse Oblil!ation: Following the timely completion of the construction of the Project,
measured by the timely filing of a Certificate of Completion, nothing herein contained shall
be deemed to cause Borrower (or any of its partners, or any of their respective directors,
officers, employees, partners, principals or members) personally to be liable to payor
perform any of its obligations evidenced hereby, and the City shall not seek any personal or
deficiency judgment on such obligations, and the sole remedy of the City with respect to the
repayment of the City Loan shall be against the Property; provided, however, that the
foregoing shall not in any way affect any rights the City may have (as a secured party or
otherwise) hereunder or under the City Note, City Trust Deed, or any other rights the City
may have to: (a) recover directly from the Borrower any funds, damages or costs (including,
without limitation, reasonable attorneys' fees and costs) incurred by the City as a result of
fraud, intentional misrepresentation or intentional waste by Borrower; or (b) recover directly
from the Borrower any condemnation or insurance proceeds, or other similar funds or
payments attributable to the Property which under the terms of the City Trust Deed should
have been paid to the City, and any costs and expenses incurred by the City in connection
therewith (including, without limitation, reasonable attorneys' fees and costs).
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ARTICLE 6 -Disbursement of City Loan
6.1 Disbursement: Upon the removal and approval of all contingencies by the City, as required
under the terms of Section 4.3 of this Agreement and upon the acquisition of the Property, the
City shall fund and disburse ninety percent (90%) of the principal amount of the City Loan. The
balance of the City Loan shall be funded upon lease up of 90% of the Project, including but not
limited to eleven (II) HOME units.
ARTICLE 7 - HOME Requirements
7.1 Requirements: Because the source of the City Loan is funds to be obtained by City from HUD
pursuant to the federal government's HOME Program, Borrower is required to construct and
operate the entire Project in compliance with all requirements of the HOME Program and the
HOME Regulations (24 C.F.R. 92 et seq.) as said regulations may be amended or suspended
from time to time, whether or not such requirements are set forth in this Agreement.
Not by way of limitation the foregoing, in compliance with 24 C.F.R 92.504(c), from the
Effective Date of this Agreement through the end of the term that the HOME-assisted units
are required to remain affordable pursuant to the HOME Regulations, Borrower and
Developer, as the general partner of the Borrower, shall comply with all of the following
requirements:
a. Use of the HOME Funds: HOME funds shall be used only for eligible costs (see,
e.g., 24 C.F.R. 92.20, 92.214) in accordance with the Project Budget and Project Pro
Forma; all pre-construction and construction activities shall be completed within
times referenced in the Schedule of Performance attached hereto, as said times may
be extended in accordance with HUD Regulations.
b. Affordabilitv: The HOME-assisted units shall meet the affordability requirements of
the HOME Regulations (24 C.F.R. 92.252), the TCAC Regulatory Agreement (as
defined below) or this Agreement or the Bond Regulatory Agreement, whichever is
more restrictive.
c. Proiect Requirements: Borrower shall comply with all project requirements set forth
in CFR 92. (the HOME Regulations), as applicable in accordance with the type of
project assisted, or with the provision of this Agreement, whichever requirements are
most restrictive.
d. Housing Oualitv Standard: Borrower shall maintain HOME-assisted units in
compliance with applicable Housing Quality Standards and local housing code
requirements or the provisions of this Agreement, whichever requirements are more
restrictive.
e. Affirmative Marketing: Borrower shall perform those affirmative marketing
responsibilities set forth in 24 C.F.R. 92.351 or in the marketing plan described in
this Agreement, whichever are more restrictive.
f. Records and Reports: In addition to the other prOVlSlons of this Agreement,
including without limitation Section 4.12 (b) hereof, Borrower shall provide to City
13
Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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all records and reports relating to the Project that my be reasonably requested by City
in order to enable it to perform its record keeping and reporting obligations pursuant
to Section 92.508 and 92.509 of the HOME Regulations.
g. Enforcement A~eement: In addition to the other provisions set forth herein, City
shall have the authority to enforce Borrower's obligation to comply with the HOME
Investment Partnership Act Program and the HOME regulations as set forth in this
Agreement.
h. Duration of Covenants Regardinl? HOME-Assisted Units: In accordance with the
applicable requirements of 24 Part 92, concerning the term of affordability, the
HOME Regulations shall remain in full force and effect for a term of twenty (20)
years measured from the effective date of the Declaration, which shall commence
upon the timely completion of the Project and timely lease up of the Project as
required under the provisions of the TCAC Regulatory Agreement. As used herein,
the term of this Agreement shall be the twenty-year term of the affordability
restrictions.
1. HousinlJ; Ouality Standards. Borrower represents and warrants that, to the extent
the Project assists eligible tenants, that said housing shall be maintained, at all times
during the term of the Agreement, in complete compliance with all housing quality
standards contained within 24 CFR 92.251. Further, in any housing that is newly
constructed or substantially rehabilitated as a result of this Project, Borrower warrants
that all construction meet or exceed the applicable local codes and construction standards,
including zoning and building codes of the City ofChula Vista as well as the provisions
of the Model Energy Code published by the County of American Building Officials.
Borrower hereby consents to periodic inspection by City's designated inspectors and/or
designees during regular business hours, including the Code Enforcement Agents of the
City of Chula Vista, to assure compliance with said zoning, building codes, regulations,
and housing quality standards. Borrower agrees to comply with the provisions of 24 CFR
92.251, whether or not contained in this Section.
j. Limitation of Use of Funds for Religious Purooses. Borrower represents and
warrants that it will fully comply with any and all requirements and limitations contained
in 24 CFR 92.257, as amended, from time to time. Borrower further represents, warrants
and agrees that Project funds will not be used for any purpose proscribed in 24 CFR
92.257, as amended.
k. Approval of City Disclosure Statement. This Agreement is subject to approval
by the Housing Manager of an executed disclosure statement of Borrower showing the
absence of any prohibited conflicts of interest as required by federal law . City's Housing
Manager may, in his/her sole discretion, disapprove of said disclosure statement on or
before recordation of the Deed of Trust. In the event of such disapproval, this Agreement
shall be terminated and of no further force and effect.
I. Administrative Requirements. Borrower shall strictly comply with the
administrative requirements contained within 24 CFR Section 92.505, including, but not
limited to, the requirements of OMB Circular No. A-87 and the requirements of 24 CFR
Part 85, Section 85.6, 85.12, 85.20, 85.22, 85.26, 85.32, 85.33, 85.34, 85.36, 85.44,
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Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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85.51, and 85.52. Further, Borrower covenants (if it is a nonprofit organization) to
comply with the OMB Circular No. A-122 and the applicable provisions of OMB
Circular No. A-IIO. Copies of said OMB Circulars are on file in the offices of City and
are available for inspection and copying by Borrower. Borrower further agrees that
should the administrative requirements contained in Section 92.505 be amended and/or
changed from time to time by HUD, that Borrower will comply with the terms and
conditions of such changed and/or amended administrative requirements.
m. Records and Reports. Borrower shall supply City, annually, on July 1st of each
year during the term of this Agreement, with such records and reports as are required and
are requested by City to aid it in complying with the reports and record keeping
provisions, terms and conditions of24 CFR 92.508 and 92.509, as amended from time to
time, and any and all other requirements of this Agreement. The records and reports
include, but are not limited to the following:
(I) Amount of funds expended pursuant to this Agreement;
(2) Eligible Tenant information, including yearly income verifications;
(3) Housing payments charged to resident tenants, to the extent applicable;
(4) On-site inspection results;
(5) Affirmative marketing records;
(6) Insurance policies and notices;
(7) Equal Employment Opportunity and Fair Housing records;
(8) Labor costs and records;
(9) An audited income and expense statement and balance sheets for Borrower;
(10) An audited income and expense statement and balance sheets for the Project;
(II) A Management Plan for the calendar year in which the report is prepared
showing anticipated rental income, other income, expenses, anticipated repairs
and replacements to the Project, timing of such repairs and replacements,
insurance maintained on behalf of the Project, and such other matters as City
shall require, in its sole discretion;
(12) Federal and State income tax returns for the calendar year, ending on the
preceding December 31st;
(13) Annual analysis of reserves for repair and replacement;
(14) Annual certification and representation regarding status of all loans,
encumbrances and taxes;
(15) Annual statement regarding condition of the Property and disclosing any known
defects;
(16) An OMB A-B3 financial audit;
(17) A report or reports, certifYing compliance with the terms and provisions of the
Section 3 requirements, as set forth in this Agreement and
certifYing compliance with the provisions of federal law as it relates to Section 3,
whether or not specifically set forth herein; and
(18) Such other and further information and records as City and/or HUD shall request
in writing from Borrower.
[NOTE: As to items (12), (13), and (14), drafts may be initially submitted if the fmal documents
are not available at the stated deadline(s). However, final documents must be submitted when available.]
Time is of the essence in supplying each and every report required to be supplied to City. The
parties agree that a fee of $25 .00 per day shall be paid by Borrower to City for each day that each report is
delinquent. The parties agree that multiple fees may be charged at anyone time, depending upon the
15
Landings Loan Agreement and Restrictive Covenants.Clean.7.30.07
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number ofreport(s) and/or information that is delinquent.
The parties agree that a fee of $25.00 per day, per report and/or information is a reasonable
estimation of the damages that will accrue to City as a result of the failure of Borrower to timely submit
the required information and/or reports and that said fees shall be treated as liquidated damages by the
parties, in anticipation of the damages that will be incurred by City as a result of a breach by Borrower.
The parties further agree that it would be difficult, if not impossible, to determine the exact actual amount
of damages suffered by City in the event of a breach by Borrower in the reporting requirements of this
Agreement. Notwithstanding the foregoing or anything to the contrary contained herein, City shall give
Borrower prior written notice of any report and/or information that Borrower has failed to provide City
pursuant to this Section and Borrower shall have thirty (30) days to provide such report and/or
information to City prior to the assessment of any liquidated damages.
n. Monitoring of Proiect Activities. Borrower agrees to allow City, upon such prior written
notice and during regular business hours, such reasonable access to review and inspect Borrower's
activities under this Agreement as City shall require to perform its monitoring duties under the provisions
of 24 CFR Part 92, as amended, from time to time. City shall monitor Borrower's activities without
liability for said inspection and review.
o. Federal and State Reauirements. Borrower represents, warrants and agrees that it will
fully comply, during the term of this Agreement, with any and all HOME requirements including, but not
limited to the requirements of24 CFR Part 92, 24 CFR Section 92.351 (Affirmative Marketing), 92.352
(Environmental Review), 92.353 (Displacement, Relocation and Acquisition Residential,
Antidisplacement and Relocation Plan), 92.354 (Labor), 92.356 (Conflict of Interest), and 92.358 (Flood
Insurance). Borrower further warrants, represents and agrees that should said Program requirements be
changed by HUD, from time to time, that Borrower will comply with said changed and amended
regulations. Borrower, the general contractor, and any and all subcontractors, shall pay prevailing wages
for all work done with respect to the Project to the extent required by Federal and California law.
p. Affirmative Marketing. Borrower shall, at all times during the term of this Agreement,
comply with all of the provisions of Section 24 CFR 92.351 and the affmnative marketing procedures
adopted by City, including, but not limited to, all requirements and procedures referenced in said Section
24 CFR 92.351 (b), amended from time to time. Borrower shall maintain records to verify compliance
with the applicable affirmative marketing procedures and compliance. Such records are subject to
inspection by City during regular business hours upon written notice from the City to Borrower.
q. Equal Opportunity and Fair Housing Programs. During the term of this Agreement,
Borrower agrees as follows:
(1) Borrower will not discriminate against any employee, person, or applicant for
employment and/or housing because ofrace, age, sexual orientation, marital status, color, religion, sex,
handicap, or national origin. Borrower will take affirmative action to ensure that applicants are employed
and/or are housed, and that employees or applicants are treated during employment and/or housing,
without regard to their race, age, sexual orientation, marital status, color, religion, sex, handicap, or
national origin. Such action shall include, but is not limited to the following: employment, upgrading,
demotion, or termination; rates of payor other forms of compensation; and selection for training,
including apprenticeship. Borrower agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided by City setting forth the provisions of this
nondiscrimination clause.
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(2) Borrower will, in all solicitations or advertisements for employees and housing
placed by on or behalf of Borrower, state that all qualified applicants will receive consideration for
employment without regard to race, age, sexual orientation, marital status, color, religion, sex, handicap,
or national origin.
(3) Borrower will cause the foregoing provisions to be inserted in all subcontracts for
any work covered by this Agreement so that such provisions will be binding upon each subcontractor,
provided that the foregoing provision shall not apply to contracts or subcontracts for standard commercial
supplies of raw materials.
(4) Borrower hereby agrees to comply with the Title VII of the Civil Rights Act of
1964, as amended, the California Fair Employment Practices Act, and any other applicable Federal and
State laws and regulations. City will provide technical assistance and copies of the referenced programs
upon request. 24 CFR Section 92.350.
(5) All activities carried out by Borrower and/or agents of Borrower shall be in
accordance with the requirements of the Federal Fair Housing Act. The Fair Housing Amendments Act
of 1988 became effective on March 12, 1989. The Fair Housing Amendments Act of 1988 and Title VIII
of the Civil Rights Act of 1968, taken together, constitute The Fair Housing Act. The Act provides
protection against the following discriminatory housing practices if they are based on race, sex, religion,
color, handicap, familial status, or national origin: denying or refusing to rent housing, denying or
refusing to sell housing, treating differently applicants for housing, treating residents differently in
connection with terms and conditions, advertising a discriminatory housing preference or limitation,
providing false information about the availability of housing, harassing, coercing or intimidating people
from enjoying or exercising their rights under the Act, blockbusting for profit, persuading owner to sell or
rent housing by telling them that people of a particular race, religion, etc. are moving into the
neighborhood, imposing different terms for loans for purchasing, constructing, improving, repairing, or
maintaining a home, or loans secured by housing; denying use or participation in real estate services, e.g.,
brokers' organizations, multiple listing services, etc.
The Fair Housing Act gives HUn the authority to hold administrative hearings
unless one of the parties elects to have the case heard in U.S. District Court and to issue subpoenas. Both
civil and criminal penalties are provided.
The Act also provides protection for people with disabilities, and proscribes those
conditions under which senior citizen housing is exempt from the prohibitions based on familial status.
All activities carried out by the Borrower and/or agents of Borrower shall be in
accordance with the following provisions of California Law: Fair Employment and Housing Act, Unruh
Civil Rights Act of 1959, Ralph Civil Rights Act of 1976, and Civil Code Section 54.1.
r. Labor Reauirements. Borrower represents and warrants that during the term of this
Agreement it will comply with each and every provision and requirement contained within CFR 92.3 54,
as amended from time to time, to the extent applicable, and will pay not less than the wages prevailing in
the locality, as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C.
276a-276a-5), to all laborers and mechanics employed in the development of any part of the Project in
accordance with the terms and provisions of CFR 92.3 54 and will comply with the overtime provisions,
as applicable, of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-332). Prevailing
wages need not be paid to "Volunteers" or for "Sweat Equity" as defined in 24 CFR 92.354(b) and (c).
Furthermore, Borrower, the general contractor, and any and all subcontractors, shall pay prevailing wages
for all work done with respect to the Project to the extent required by Federal and California law.
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s. Lead Based Paint. Borrower represents and warrants that during the term of the
Agreement that it will comply with each and every provision and requirement contained within CFR
92.355, as amended from time to time, to the extent applicable.
t. Certification Concerning Debarment and Susoension. Borrower represents, warrants and
hereby certifies, pursuant to 24 CFR 92.357, that it will not use a contractor that has been debarred and or
suspended, nor that is proposed for debarment, declared ineligible or voluntarily excluded from
participation in the Project, which is the subject matter of this Agreement. Borrower agrees to execute
such further certification(s) required by City and/or HUD including, if necessary, that certification
included as Appendix B ofCFR Part 24, to verify the certification made in this Section 2.l(p).
u. Flood Insurance. Borrower represents, warrants, and certifies, pursuant to 24 CFR
92.358, that no Real Property which is the subject of this Agreement, is located within a Flood Plain or
Flood Hazard Zone or Area, as indicated on a FEMA Map; or that the Real Property is located within a
community participating in the National Flood Insurance Program and Borrower agrees to purchase and
maintain flood insurance for the duration ofthe term of this Agreement concerning such Real Property.
v. Fire Protection and Safety Guards. Borrower represents and warrants that it will comply
with all requirements and regulations of the Fire Administration Act of 1992 and the Federal Fire and
Prevention Control Act. Borrower will use and install all fire and safety related equipment pursuant to the
National Fire Protection Association standards.
w. Accessibility Standards. Borrower represents and warrants that it will comply with all
federal, state and local requirements and regulations concerning access to the units by the disabled and
handicapped persons, including, but not limited to, those requirements of the HOME Program.
x. Section 3 Reauirements. Borrower shall comply with the following requirements during
the term of the City Loan:
(i) The work to be performed under this Agreement is subject to the
requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12
U.S.C. ~1701u (section 3). The purpose of section 3 is to ensure that employment and other
economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3,
shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly
persons who are recipients ofHUD assistance for housing.
(ii) The parties to this Agreement agree to comply with HUD's regulations in 24
CFR part 135, which implement section 3. As evidenced by their execution of this Agreement, the parties
to this Agreement certify that they are under no contractual or other impediment that would prevent them
from complying with the part 135 regulations.
(iii) Borrower agrees to send to each labor organization or representative of workers
with which Borrower has a collective bargaining agreement or other understanding, if any, a notice
advising the labor organization or workers' representative of Borrower's commitments under this section
3 clause, and will post copies ofthe notice in conspicuous places at the work site where both employees
and applicants for training and employment positions can see the notice. The notice shall describe the
section 3 preference, shall set forth minimum number and job titles subject to hire, availability of
apprenticeship and training positions, and qualifications for each; and the name and location of the
person(s) taking applications for each of the positions; and the anticipated date the work shall begin.
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(iv) Borrower agrees to include this section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an
applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is
in violation of the regulations in 24 CFR part 135. Borrower will not subcontract with any subcontractor
where Borrower has notice or knowledge that the subcontractor has been found in violation of the
regulations in 24 CFR part 135.
(v) Borrower will certify that any vacant employment positions, including training
positions, that are filled (1) after Borrower is selected but before the contract is executed, and (2) with
persons other than those to whom the regulations of24 CFR part 135 require employment opportunities
to be directed, were not filled to circumvent Borrower's obligations under 24 CFR part 135.
(vi) Noncompliance with HOD's regulations in 24 CFR part 135 may result in
sanctions, termination of this Agreement for default, and debarment or suspension from future HOD
assisted contracts.
y. Drug Free Workplace. Borrower shall comply with all applicable State and Federal rules,
laws and regulations to ensure a drug free workplace at all times during the term of this Agreement.
Further, Borrower shall incorporate such federal provisions as are required in each contract or subcontract
that it enters into in connection with the Project.
z. Lobbving Prohibition. Borrower hereby certifies to City, under penalty ofpeljury, under
the terms of applicable federal law, that at all applicable times before, during and after the term of the
Agreement, that:
(i) No Federal appropriated funds have been paid or will be paid, by or on behalf of
it, to any person for influencing or attempting to influence an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of any Federal contract, the making
of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or
cooperative agreement;
(ii) If any funds other than Federal appropriated funds have been paid to any person
for influencing or attempting to influence an officer or employee of any agency, a Member of Congress,
an officer or employee of Congress, or an employee ofa Member of Congress in connection with this
Federal contract, grant, loan or cooperative agreement, it will complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions;
(iii) Borrower will require that the above stated language be included in the award
documents for all subawards at all tiers, including subcontracts, subgrants, loans, contracts, and
cooperative agreements concerning the subject matter of this Agreement; and
(iv) Further, Borrower and all subrecipients, at all times, shall certify compliance
with the provisions of31 D.S.C. 91352 and any and all terms and conditions of the Byrd Anti-Lobbying
Amendment, as amended from time to time.
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ARTICLE 8 - Development Fee
8.1 Develooment Fee: The Developer is entitled to a development fees which may include general
overhead and profit, the amount of such development fee shall not exceed the amount set
forth therefor in the Sources and Uses, Project Budget and Pro Forma attached hereto, and
shall in no event be greater than the maximum amount permitted pursuant to the Low Income
Housing Tax Credit statutes and regulations (the "Development Fee"). It is anticipated that a
portion of the Development Fee shall be paid by Borrower from additional capital
contributions to be made by Borrower's Limited Partner pursuant to the terms of the
Partnership Agreement, with the balance of the Development Fee (the "Deferred
Development Fee") to be paid from the Gross Revenue of the Project and equity
contributions to Borrower made after the closing. The Borrower's obligation to pay the
Deferred Development Fee shall be evidenced by a promissory note (the "Deferred
Development Fee Note") which shall be unsecured. In the event there are any cost savings
realized in the construction of the Project, all available funds attributable to such cost savings
shall also be applied to the Deferred Development Fee. Regular payments on the Deferred
Development Fee Note shall be made on an annual basis out of the Gross Revenues of the
Project. Such amounts shall be paid to Developer on a priority basis to all other debt service
on the Property except for the MHP Loan and the Bond Loan. Developer shall specifically
be entitled to payment of the Deferred Development Fee before payment of the amounts due
to City pursuant to the City Note. The Deferred Development Fee shall not be secured by
any liens upon the property.
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ARTICLE 9 -Development of the Project
9.1 Work to be Performed: Borrower agrees to develop the Property so that it consists of a multi-
family residential project consisting of 92 units, and to operate the Project for occupancy by
extremely low, very low, and low income households, subject to the terms of this Agreement,
the Scope of Work attached hereto as Exhibit _ and incorporated herein, the Bond Loan
Documents, the MHP Loan Documents, the Affordable Housing Agreement, and the TCAC
Regulatory Agreement. The Project shall consist of three-bedroom units, open space, a
recreation area, storage areas, laundry rooms, garages and other common area facilities in
accordance with the plans approved by the City in connection with issuance of the building
permit(s), and with the terms of and conditions of all land use permits and approvals required
by the City to the extent such permits and approvals are required by applicable law. The
Project's units and occupancy shall be restricted in accordance with the terms of this
Agreement. If Borrower desires to make any change in any construction or building plans
after the same have been approved, Borrower shall submit the proposed change to the
appropriate body for approval, if and to the extent required by applicable law. Borrower
shall be responsible for all construction and installation and for obtaining all the necessary
permits.
9.2 Comoliance with Permits and Laws: Borrower and its contractors shall carry out the
development of the Project and operation of the Project in conformity with all applicable
laws, regulations, and rules of the governmental agencies having jurisdiction, including
without limitation all legally applicable conditions and requirements of California
Community Redevelopment Law (Health and Safety Code, Division 24); all legally
applicable prevailing wage requirements, if any, the applicability of which is for Borrower to
determine, pursuant to federal and state law, including California Labor Code Sl770 et seq.;
all legally applicable conditions and requirements imposed by the Low Income Housing Tax
Credit Program; all legally applicable labor standards; the legally applicable provisions of the
City zoning and development standards, building, plumbing, mechanical and electrical codes,
and all other provisions of the City Municipal Code, and all legally applicable disabled and
handicapped access requirements, which may include, without limitation, the Americans
With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et
seq., Government Code Section 11135, et seq., the Unruh Civil Rights Act, Civil Code
Section 51, et seq., and the California Building Standards Code, Health and Safety Code
Section 18900, et seq., and City policies adopted pursuant to said federal standard regulations
and requirements.
The work shall proceed only after procurement of each permit, license, or other authorization
that may be required under applicable law by any governmental City having jurisdiction, and
the Borrower shall be responsible to the City for procurement and maintenance thereof, as
may be required of the Borrower and all entities engaged in work on the Project.
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9.3 Costs of Develooment: Subject to the terms and conditions of this Agreement, Borrower shall be
responsible for all costs of developing the Project, including but not limited to
predevelopment costs incurred for items such as planning, design, engineering, and
environmental remediation; all development and building fees; the cost incurred to demolish
and clear any and all existing improvements, furnishings, fixtures, and equipment from the
Property; costs for insurance and bonds (as required); costs for financing; preparation of the
Property for construction; and all on-site construction costs. This Agreement does not
require Borrower to construct any off-site improvements. Borrower shall be responsible for
verifying the adequacy and availability of all utilities. If at any time during the course of the
development of the Project, Borrower exhausts fifty percent (50%) or more of the
contingency amounts set forth in the Project Budget, City shall have the right, but not the
obligation, to approve any additional cost overruns (unless such approval has been obtained
from the Bond Issuer/Lender), which approval shall not be umeasonably withheld.
9.4 Schedule of Performance: Progress Reoorts: Subject to Section 13.3, Borrower shall begin and
complete all construction within the times specified in the Schedule of Performance, subject
to any extension granted by City, which extension shall not unreasonably be withheld upon
the written request of the Borrower. Once construction has commenced, it shall be
continuously and diligently pursued to completion, and shall not be abandoned for more than
fifteen (15) consecutive business days, except when due to causes beyond the control and
without the fault of Borrower, as set forth in Section 13.3 of this Agreement.
During the course of the construction, and prior to the completion of the Project, Borrower
shall keep City informed of the progress of the construction on the Property and, if requested,
shall provide City with monthly written progress reports and meet with City staff as
appropriate. If requested, Borrower shall furnish a construction schedule to City indicating
completion dates for each portion of work showing progress toward completion of the
Project.
After completion of construction of the Project and within the time set forth in the Schedule
of Performance (as it may be revised as provided above), Borrower shall provide the City's
Housing Manager a true and correct copy of the final cost certification submitted to TCAC
concerning the construction of the Project on the Property. Borrower shall provide additional
cost information as may be reasonably requested by the City's Housing Manager to permit
the City's Housing Manager to make such determinations as is reasonably required for City
to verify Borrower's conformance to this Agreement and the Scope of Work, as it may be
revised by mutual agreement of the parties from time to time during the course of the
construction.
9.5 Right of Access: For the purpose of assuring compliance with this Agreement, representatives of
City, upon reasonable prior notice, shall have the reasonable right of access to the Property,
without charges or fees, at normal construction hours during the period of construction for
the purposes of this Agreement, including but not limited to the inspection of the work being
performed by Borrower in developing the Project. Such representatives of City shall be those
who are so identified in writing by the Housing Manager. City shall indemnify, defend, and
hold harmless Borrower and Borrower's officers, employees, and agents from any damage
caused or liability arising out of the sole negligence or willful misconduct of City or their
officers, officials, employees, volunteers, agents, or representatives in their exercise of this
right of access; provided that it is understood that City does not by this Section 9.6 assume
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any responsibility or liability for a negligent inspection or failure to inspect. Any inspection
by City pursuant to this section shall be conducted so as not to interfere or impede the
construction or operations of the Project.
9.6 Mechanics Liens. Stop Notices. and Notices of Como let ion:
a. Subject to Borrower's right to contest set forth in Section 11.4 of this Agreement, if
any claim or lien is filed against the Project or a stop notice affecting the City Loan is
served on the City or any other lender or other third party in connection with the
Project, then the Borrower shall, within forty-five (45) days after such filing or
service, either pay and fully discharge the lien or stop notice, effect the release of
such lien or stop notice by delivering to the City a surety bond in sufficient form and
amount, or provide the City with other assurance satisfactory to the City that the
claim oflien or stop notice will be paid or discharged.
b. If Borrower fails to discharge any lien, encumbrance, charge, or claim in the manner
required in Section 9.7 (a), subject to notice and an opportunity to cure as provided in
Section 12.1 hereof, then in addition to any other right or remedy, the City may (but
shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at
the Borrower's expense. Alternately, the City may require the Borrower to
immediately deposit with the City or title company the amount necessary to satisfy
such lien or claim and any costs pending resolution thereof. The City shall use such
deposit to satisfy any claim or lien that is adversely determined against the Borrower.
c. The Borrower shall file a valid notice of cessation or notice of completion upon
cessation of construction on the Project for a continuous period of thirty (30) days or
more, and take all other reasonable steps to forestall the assertion of claims of lien
against the Project. The Borrower authorizes the City, but without any obligation, to
record any notices of completion or cessation of labor, or any other appropriate notice
that the City deems necessary or desirable to protect its interest in the Project.
9.7 Certificate of Completion: Upon Borrower's satisfactory completion of construction of the
Project, City shall furnish Borrower with a Certificate of Completion upon written request
therefor by Borrower. Such Certificate of Completion shall be in a form so as to permit
recordation in the Office of the Recorder of the County of San Diego in a form and format as
approved by the office of the City Attorney, in its reasonable discretion.
The Certificate of Completion shall be, and shall so state, a conclusive determination of
satisfactory completion of the construction of the Project and of full compliance with the
terms of this Agreement relating to such construction. After the date of the issuance of the
Certificate of Completion, and notwithstanding any other provisions of this Agreement to the
contrary, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any
interest in the Property shall not (because of such ownership, purchase, lease, or acquisition)
incur any obligation or liability under this Agreement for the construction of the Project.
City shall not unreasonably withhold the Certificate of Completion. If City refuses or fails to
furnish the Certificate of Completion after written request from Borrower, the City shall,
within fifteen (15) days after such written request, provide Borrower with a written statement
of the reasons the City refused or failed to furnish such Certificate of Completion. The
statement shall also contain the City's opinion of the action Borrower must take to obtain
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such Certificate of Completion. If the reason for such refusal is confined to the immediate
availability of specific items or materials for landscaping, City shall issue the Certificate of
Completion upon the posting of cash deposit or an irrevocable letter of credit in favor of City
in an amount representing the fair value of the work not yet completed and in a form
reasonably acceptable to City's attorneys. A Certificate of Completion is not a notice of
completion as referred to in California Civil Code Section 3093.
9.8 Estoppels: At the request of Borrower or any holder of a mortgage or deed of trust, City shall,
from time to time and upon the request of Borrower or such holder, timely execute and
deliver to Borrower or such holder a written statement of City that no default or breach exists
(or would exist with the passage of time, or giving of notice, or both) by Borrower under this
Agreement, the City Note, the City Trust Deed, and/or the Affordable Housing Agreement, if
such be the case, and certifying as to whether or not Borrower has at the date of such
certification complied with any obligation of Borrower hereunder or under such of those
documents as to which such holder may inquire. The form of any estoppel letter shall be
prepared by the holder or Borrower.
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ARTICLE 10 - Uses Of The Property
10.1 Summary: Borrower covenants and agrees for itself and its successors and assigns to its
interest in the Property that Borrower and such successors and assigns shall devote the
Property to uses consistent with California Community Redevelopment Law, the Bond Loan
Documents, the MHP Loan Documents, the Regulatory Agreement, The TCAC Regulatory
Agreement, the Affordable Housing Agreement, the City Trust Deed, and this Agreement,
whichever is most restrictive, for a period ending fifty-five (55) years from the date of the
City's issuance of the final Certificate of Completion for the Project, provided, however, the
HOME affordability restrictions shall only be effective for a term of twenty years after their
effective date as referenced in the Declaration.. City shall be a third-party beneficiary under
the Regulatory Agreement, the Bond Regulatory Agreement, the TCAC Regulatory
Agreement, the MHP Regulatory Agreement. In addition, the Redevelopment Agency of the
City of Chula Vista shall have the authority to enforce any and all of such agreements, in
addition, to the right of the City to enforce said agreements, and shall have full authority to
enforce any breach or default by Borrower under such agreement in the same manner as
though it were a breach or default hereunder. Without City's prior written consent, which
consent shall not be unreasonably withheld, Borrower shall not consent to any amendment of
or modification to the TCAC Regulatory Agreement or Bond Regulatory Agreement which
(i) shortens the term of the affordability restrictions on the units in the Project to a term of
less than fifty-five (55) years after the date of the City's issuance of the final Certificate of
Completion for the Project or (ii) modifies the number of units required to be rented at
affordable housing costs to persons of specified incomes; provided, however, that any such
amendment shall not modify the Borrower's obligations under this Agreement or the
Affordable Housing Agreement.
10.2 Affordable Housing: Borrower covenants and agrees for itself and its successors and assigns
to its interest in the Property that commencing upon the completion of the Project and
continuing thereafter for a period of fifty-five (55) years from the date of the City's issuance
of the final Certificate of Completion for the Project, Borrower and such successors and
assigns shall devote ninety-two (92) residential units on the Property (hereinafter the
"Restricted Units") to its continuous use as affordable rental housing for very low, lower and
low income households in accordance with the terms of this Agreement, and one unit may be
occupied by the on-site property manager, subject to the occupancy restrictions contained in
this Section 10.2. 11 HOME Restricted Units shall be made available to extremely low
income households at or below 30 percent of the Area Median Income ("AMI"), at affordable
rents for the twenty (20)year term, as referenced within the Declaration, which shall be in a
form and format as approved by the City Attorney, in his/her reasonable discretion.
In determining income eligibility for a particular Restricted Unit, including a Home Program
restricted unit, Borrower shall be entitled to rely upon the documentation provided by the
prospective tenant as required pursuant to the TCAC Regulatory Agreement, Affordable
Housing Agreement, the Declaration and Bond Regulatory Agreement. Borrower shall not
be required to perform further investigations into the household income other than those
which are required pursuant to such agreements. Throughout this Agreement, wherever it is
stated that Borrower must comply with the affordability requirements and/or verify such
compliance, Borrower shall be entitled to rely upon the tenant documentation discussed in
this paragraph.
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In addition to the foregoing, to the fullest extent allowed by law the lease agreement for each
Restricted Unit in the Project shall restrict occupancy of each Restricted Unit to a total of
occupants that does not exceed the maximum allowed by HUD for three bedroom units. Any
violation of such restrictions shall constitute a default by the tenant, unless such occupancy
restriction is found invalid by a court of competent jurisdiction in a final non-appealable
judgment in a lawsuit in which the Project's occupancy restriction is at-issue, or in an
applicable and binding published appellate opinion, or by statute, regulation or other binding
court order.
10.3 Reports: Borrower, at its expense, shall submit, or cause the Property Manager to submit, to
the appropriate entities any and all reports required to be submitted pursuant to Federal
Regulations.
10.4 Subordination of Affordabilitv Covenants: In the event that the City finds that an
economically feasible method of financing for the construction and operation of the Project,
without the subordination of the affordable housing covenants as may be set forth in this
Agreement, is not reasonably available, the City shall make the affordable housing covenants
set forth in this Agreement junior and subordinate to the deeds of trust and other documents
required in connection with the construction and permanent financing for the Project
approved pursuant to this Agreement. Any other subordination agreement entered into by
the City shall contain written commitments which the City finds are reasonably designed to
protect City's investment in the event of default, such as any of the following: (a) a right of
City to cure a default on the loan prior to foreclosure, (b) a right of City to negotiate with the
lender after notice of default from the lender and prior to foreclosure, (c) an agreement that if
prior to foreclosure of the loan, City takes title to the property and cures the default on the
loan, the lender will not exercise any right it may have to accelerate the loan by reason of the
transfer of title to City, and (d) a right of City to reacquire the Property from the Borrower at
any time after a material default on the loan.
10.5 Condition of the Property:
a. Borrower hereby represents that to the best of its knowledge, except as otherwise
disclosed to the City in writing, it is not aware of and has not received any notice or
communication from any government agency having jurisdiction over the Property
notifying Borrower of the presence of surface or subsurface zone Hazardous
Materials in, on, or under the Property, or any portion thereof. "Best knowledge," as
used herein, shall mean the actual knowledge of the Borrower and its officers,
directors and employees, as based upon the documents and materials in the
possession of Borrower, and its officers, directors and employees, including the site
investigation report or study referred to in Section 1 0.5(b) herein.
b. In addition to the foregoing, the Borrower has, at its sole cost and expense, engaged
its own environmental consultant to conduct a Phase 1 investigation of the Property
and produce a report thereof, a copy of which has been provided to the City by
Borrower. Such report concludes that no Hazardous Materials have been detected on
the Property.
c. Borrower shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which may be located in, on or under the
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Property. Such precautions shall include compliance with all Governmental
Requirements with respect to Hazardous Materials. In addition, Borrower shall
install and utilize such equipment and implement and adhere to such procedures as
are consistent with commercially reasonable standards as respects the disclosure,
storage, use, removal and disposal of Hazardous Materials.
d. Borrower shall indemnify, defend and hold City harmless from and against any
claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty,
punitive damage, or expense (including, without limitation, reasonable attorneys'
fees), resulting from, arising out of, or based upon (i) the release, use, generation,
discharge, storage or disposal of any Hazardous Materials on, under, in or about, or
the transportation of any such Hazardous Materials to or from, the Property, no
matter when such claim, action, suit or proceeding is first asserted or begun and no
matter how the Hazardous Materials came to be released, used, generated,
discharged, stored or disposed of on, under, in or about, to or from the Property, or by
whom or how they are discovered (except for such damages which arise after the
transfer of the Property pursuant to foreclosure or deed in lieu of foreclosure), or
(ii) the violation, or alleged violation, of any statute, ordinance, order, rule,
regulation, permit, judgment or license relating to the use, generation, release,
discharge, storage, disposal or transportation of Hazardous Materials on, under, in or
about, to or from, the Property. This indemnity shall include, without limitation, an):'
damage, liability, fine, penalty, parallel indemnity after closing, cost or expense
arising from or out of any claim, action, suit or proceeding, including injunctive,
mandamus, equity or action at law, for personal injury (including sickness, disease or
death), tangible or intangible property damage, compensation for lost wages, business
income, profits or other economic loss, damage to the natural resource or the
environment, nuisance, contamination, leak, spill, release or other adverse effect on
the environment.
e. For purposes of this Agreement, "Hazardous Materials" means any substance,
material, or waste which is or becomes regulated by any local governmental
authority, San Diego County, the State of California, regional governmental
authority, or the United States Government, including, but not limited to, any
material or substance which is (i) defined as a "hazardous waste," "extremely
hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or
25122.7, or listed pursuant to Section 25130 of the California Health and Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
Account Act), (iii) defined as a "hazardous material," "hazardous substance," or
"hazardous waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage
of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the
California Code of Regulations, Division 4, Chapter 20, (x) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. 91317), (xi)
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defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 D.S.C. ~6901, et seq. (42 V.S.C. ~6903) or (xii)
defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 D.S.C. ~9601, et seq.
The term hazardous materials shall not include any material in such quantities as are
commonly used in the development, construction, operation and/or occupancy of a
multifamily housing project.
10.6 Marketing Plan: In furtherance of the requirements of Section 7.1 p. of this Agreement,
Borrower shall submit for the approval of the City, which approval shall not unreasonably be
withheld, a plan for marketing the rental of the apartment units in compliance with federal
and state fair housing law. Such marketing plan shall include a plan for publicizing the
availability of the apartment units within the City, such as notices in any City sponsored
newsletter, newspaper advertising in local newspapers and notices in City offices. The
marketing plan shall require Borrower to obtain from the City the names of low-income
households who have been displaced by the City's redevelopment projects, and to notify
persons on such list of the availability of units in the Project prior to undertaking other forms
of marketing. Subject to the restrictions of the State MHP Loan, the marketing plan shall
provide that the persons on such list of displaced persons be given not fewer than ten (10)
days after receipt of such notice to respond by completing application forms for rental of
apartment units, as applicable.
10.7 Maintenance of Property: Borrower agrees for itself and its successors in interest to all or
any portion ofthe Property, to maintain the improvements on the Property in conformity with
applicable provisions of the City Municipal Code, and shall keep the Property free from any
accumulation of debris or waste materials. During such period, the Borrower shall also
maintain the landscaping planted on the Property in a healthy condition. If at any time
Borrower fails to maintain the Property and such condition is not corrected within ten days
after written notice from City with respect to graffiti, debris, waste material, and general
maintenance, or thirty days after written notice from City with respect to landscaping and
building improvements, then City, in addition to whatever remedy it may have at law or at
equity, but subject to the rights of the Bond Issuer/Lender, shall have the right to enter upon
the applicable portion of the Property and perform all acts and work necessary to protect,
maintain, and preserve the improvements and landscaped areas on the Property, and to attach
a lien upon the Property, or to assess the Property, in the amount of the expenditures arising
from such acts and work of protection, maintenance, and preservation by City and/or costs of
such cure, including a fifteen percent (15%) administrative charge, which amount shall be
treated as an additional loan hereunder payable pursuant to the terms of the Partnership
Agreement.
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10.8 Property Management: The parties acknowledge that the City is interested in the long term
management and operation of the Property and in the qualifications of any person or entity
retained by the Borrower for that purpose (the "Property Manager"). Therefore, during the
period of the effectiveness of the affordability covenants set forth herein, the City may from
time to time review and evaluate the identity and performance of the Property Manager as it
reasonably deems appropriate. Prior to the completion of construction of the Project,
Borrower shall submit to the City a copy of an executed property management agreement for
the Project with an experienced property manager which is reasonably acceptable to the
parties. If the City determines that the performance of the Property Manager is materially
deficient based upon the standards and requirements set forth in this Section 10.8 and the
approved Management Plan (as defined below), the City shall provide notice to the Borrower
of such deficiencies and the Borrower shall use its best efforts to correct such deficiencies
within a reasonable period of time, subject to the requirements of the Bond IssuerILender and
the Department of Housing and Community Development and the terms and conditions of
the Partnership Agreement. Upon the failure of the Property Manager to cure such
deficiencies within the time set forth herein, the City shall have the right to require the
Borrower to immediately remove and replace the Property Manager with another property
manager or property management company who is reasonably acceptable to the City who is
not related to or affiliated with the Borrower, subject to the requirements of the Bond
IssuerILender and the Department of Housing and Community Development and the terms
and conditions of the Partnership Agreement.
In addition, the Borrower shall submit for the reasonable approval of the City a detailed
"Management Plan" which sets forth in reasonable detail the duties of the Property Manager,
the tenant selection process, a security system and crime prevention program, the procedures
for the collection of rent, the procedures for monitoring of occupancy levels, the procedures
for eviction of tenants, the rules and regulations of the Property and manner of enforcement,
a standard lease form, and other matters relevant to the management of the Property. The
management plan shall require the Property Manager to adhere to a fair lease and grievance
procedure and provide a plan for tenant participation in management decisions. The
management of the Property shall be in compliance with the Management Plan which is
approved by the City, subject, however, to any requirements of the Bond Issuer/Lender
pursuant to the Bond Loan Documents. The Management Plan may be revised from time to
time upon the approval of the City and the Borrower.
10.9 Affordable Housing Al?feement: Certain requirements with respect to the affordable housing
obligations and other operational and maintenance obligations of the Project are set forth in
the Affordable Housing Agreement, as amended and as approved by the office of the City
Attorney, in its reasonable discretion. The execution and recordation of the Affordable
Housing Agreement is a condition precedent to the disbursement of the City Loan, as set
forth in Section 4.3 hereof.
ARTICLE 11- Continuing Obligations of Borrower
11.1 Applicabilitv: For the entire term of the requirements set forth in Section 11.1 hereof, the
Borrower shall comply with the provisions of this Article 11.
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11.2 Insurance: Within ten (10) days after the Borrower's acquisition of the Property, Borrower
shall furnish to the City duplicate originals or appropriate certificates of insurance coverage
evidencing that Borrower has obtained, or cause to be obtained, insurance coverage with
respect to the Property and Project in type, amount and from insurers with Best's ratings as
are reasonably acceptable to City (or have been approved by the Bond Issuer/Lender),
naming the City and its officers, agents, employees, representatives and their respective
successors, as named or additional insureds by appropriate endorsements. Such policy shall
include, without limitation "all risk" property casualty insurance and comprehensive general
liability insurance. Without limiting the generality of the foregoing, such policy shall also
include coverage to insure Borrower's indemnity obligations provided herein. Borrower
covenants and agrees for itself and its successors and assigns that Borrower and such
successors and assigns shall keep such liability policy in full force and effect for the term of
the City Loan, and Regulatory Agreement.
In addition to any other remedy which City may have hereunder for Borrower's failure to
procure, maintain, and/or pay for the insurance required herein, City may (but without any
obligation to do so, and subject to the rights of the Bond Issuer/Lender under the Bond Loan
Documents) at any time or from time to time, after thirty (30) days written notice to
Borrower, procure such insurance and pay the premiums therefor, in which event Borrower
shall immediately repay the City all sums so paid by the City, together with interest thereon
at the rate of ten percent (10%) per annum or the maximum legal rate, whichever is less.
11.3 Proceeds of Insurance: Should the Project be totally or partially destroyed or rendered
wholly or partly uninhabitable by fire or other casualty required to be insured against by
Borrower, Borrower shall promptly proceed to obtain insurance proceeds and take all steps
necessary to promptly and diligently commence the repair or replacement of the Project to
substantially the same condition as the Project is required to be maintained in pursuant to this
Agreement if (i) the Borrower agrees in writing within ninety (90) days after payment of the
proceeds that such repair or rebuilding is economically feasible, and (ii) the Bond
Issuer/Lender and the Department of Housing and Community Development permit such
repair or rebuilding, provided that the extent of Borrower's obligation to restore the Project
shall be limited to the amount of the insurance proceeds actually received by the Borrower.
If the Borrower is unable or is not permitted to repair, replace, or restore the Project,
Borrower must give notice to City (in which event Borrower will be entitled to all insurance
proceeds, subject to any outstanding lien obligations, but Borrower shall be required to
remove all debris from the Property) and Borrower may construct such other improvements
on the Property as are consistent with applicable land use regulations and approved by the
City and the other governmental agencies with jurisdiction.
11.4 Taxes. Assessments. Encumbrances. and Liens: Borrower shall pay prior to delinquency all
real estate taxes and assessments properly assessed and levied on the Property.
Until the payment in full of all amounts owing under the City Note, Borrower shall not place
or allow to be placed thereon any mortgage, trust deed, encumbrance, or lien (except
mechanic's liens prior to suit to foreclose the same being filed) not authorized by this
Agreement, without the City's consent, which consent shall not unreasonably be withheld.
Borrower shall remove or have removed any levy or attachment made on the Property, or
assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale
thereunder.
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Nothing herein contained shall be deemed to prohibit Borrower from contesting the validity
or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available
to Borrower in respect thereto.
11.5 Hold Harmless: Borrower agrees to indemnify, protect, defend and hold harmless City, and
City's officers, agents, employees, representatives and successors, from and against any and
all claims, damages, actions, costs, demands, expenses or liability, including without
limitation, reasonable attorneys' fees and court costs, which may arise from the direct or
indirect actions or inactions of the Borrower or those of its contractors, sub-contractors,
agents, employees or other persons acting on Borrower's behalf which relate to the Property
or Project; excluding, however, from Borrower's indemnity any such liability, losses,
damages (including foreseeable or unforeseeable consequential damages), penalties, fines,
expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) directly or
indirectly arising out of the actions of City or its employees, contractors, subcontractors or
agents. This hold harmless agreement applies, without limitation, to all damages and claims
for damages suffered or alleged to have been suffered by reasons of the operations referred to
in this paragraph, regardless of whether or not the City prepared, supplied or approved plans
or specifications, or both, for the Property or Project. This indemnity by Borrower, and all
other indemnities set forth herein shall survive any foreclosure of the Property by the City
pUrsuant to the terms of the City Trust Deed.
11.6 Further Indemnification of Citv: It is understood and agreed that the parties hereto have
entered this Agreement as a method of providing necessary assistance to Borrower in
connection with the construction of low and moderate income housing and development of
the Property pursuant to all applicable laws and that by contributing public funds to assist in
the accomplishment of such development, or by otherwise contributing or assisting with the
accomplishment of such development, the City assumes no responsibility for insuring that the
same is adequately undertaken (including, without limitation, the existence and/or
remediation of any hazardous or toxic substances on the Property) and as a material
consideration to City for entering into this Agreement (and not by way of limiting the
generality of Section 11.5 above) Borrower agrees to indemnify, protect, defend and hold
harmless City and its representatives, officers, employees and their respective successors
from and against any and all claims, damages, actions, demands, liabilities, obligations,
expenses, losses or costs, including without limitation, reasonable attorneys' fees and court
costs, which may arise or in any manner connected with the development of the Project
pursuant to this Agreement; excluding, however, from Borrower's indemnity any such
liability, losses, damages (including foreseeable or unforeseeable consequential damages),
penalties, fines, expenses (including out-of-pocket litigation costs and reasonable attorneys'
fees) directly or indirectly arising out of the actions of City or its employees, contractors,
subcontractors or agents.
11. 7 Obligation to Refrain from Discrimination: There shall be no discrimination against, or
segregation of, any persons, or group of persons, on account of race, color, creed, religion,
sex, marital status, ancestry, or national origin in the enjoyment of the Property, nor shall
Borrower 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, sub lessees, or vendees of the
Property or any portion thereof. Borrower shall further comply with all the requirements of
the Americans with Disabilities Act. City acknowledges that, pursuant to the restrictions of
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the Farmworker Grant, Borrower is required to use status as an agricultural worker as a basis
oftenant selection.
11.8 Form of Nondiscrimination and Nonsegregation Clauses: Borrower shall refrain from
restricting the rental, sale, or lease of any portion of the Property, or contracts relating to the
Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national
origin of any person and shall comply with all the applicable requirements of the Americans
with Disabilities Act of 1990. All such deeds, leases or contracts, shall contain or be subject
to substantially the following nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, ancestry, or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee
himself, or any persons claiming under or through him, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sub lessees, or
vendees in the land herein conveyed and further covenants that all such individuals
and entities shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990, as the same may be iunended from time to time (42 V.S.C.
912101, et seq.). The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through him,
and this lease is made and accepted upon and subject to the following conditions:
'That there shall be no discrimination against or segregation of any person or group
of persons on account of race, color, creed, religion, sex, marital status, ancestry, or
national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the land herein leased, nor shall the lessee himself, or any person
claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use,
or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein
lease and the lease shall be carried out in compliance with all applicable requirements
of the Americans with Disabilities Act of 1990, as the same may be amended from
time to time (42 V.S.C. 912101, et seq.).'"
c. In contracts: "There shall be no discrimination against or segregation of any persons
or group of persons on account of race, color, creed, religion, sex, marital status,
ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or
enjoyment of land, nor shall the transferee himself, or any person claiming under or
through him, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sublessees, or vendees ofland and all such activities shall
be conducted in compliance with all applicable requirements of the Americans with
Disabilities Act of 1990, as the same may be amended from time to time (42 V.S.C.
912101, et seq.)."
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11.9 Effect of Covenants:
a. Unless sooner terminated by City as provided for herein, all covenants contained in
this Article II shall run with the land and shall be extinguished and of no further
force and effect upon the fifty-fifth anniversary of the issuance of the Certificate of
Completion for the Project by the City, with the exception of the non-discrimination
and non-segregation covenants which shall run in perpetuity. The covenants
established herein shall, without regard to technical classification and designation, be
binding on the part of Borrower and any successors and assigns to the Property or any
part thereof, and the tenants, lessees, sublessees and occupants of the Property, for the
benefit of and in favor of the Property and the City, and its successors and assigns
and any successor in interest thereto. City is deemed the beneficiary of such
covenants for and in its own right and for the purposes of protecting the interest of
the community and other parties, public or private, in whose favor and for whose
benefit of such covenants running with the land have been provided, without regard
to whether City has been, remained, or is the owner of any particular land or interest
therein. City shall have the right to unilaterally terminate the covenants at any time
(subject to the TCAC Regulatory Agreement) or, if such covenants are breached
(subject to any cure rights provided herein) to exercise all rights and remedies and to
maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it or any other beneficiaries of this
Agreement and the covenants may be entitled, including specific performance (it
being recognized that the breach of such covenants cannot be adequately
compensated by monetary damages), and any and all remedies provided in the City
Trust Deed and City Note, including, without limitation, foreclosure proceedings
against the Property.
b. Without limiting the generality of the foregoing, in the event that there is a breach of
the terms of this Agreement or any covenants provided herein, the City shall have the
right, but not the obligation, to take any and all actions the City deem necessary to
cure such breach, including, without limitation, taking possession of the Property for
management and/or repair purposes, and to obtain reimbursement from Borrower for
any reasonable costs incurred by the City in the exercise of such remedy.
Furthermore, Borrower hereby covenants by and for itself, its successors and assigns
and every person acquiring an interest in the Property, or any part thereof, that City
and other public agencies at their sole risk and expense, and subject to the rights of
tenants in possession, shall have the right to enter the Property or any part thereof at
all reasonable times and with as little interference as possible for the purposes of
construction, reconstruction, maintenance, repair or service of any public
improvements or public facilities located on the Property and to ensure compliance
with the restrictions and covenants contained herein. Any such entry shall be made
only after reasonable notice to Borrower and, any damage or injury to the Property
resulting from such entry shall be promptly repaired at the sole expense of the public
City responsible for the entry except to the extent any such damage or injury arises as
a result of the negligence or willful misconduct of the Borrower or its officers,
employees, agents, invitees or contractors.
c. No violation or breach of the covenants, conditions, restrictIOns, provIsions or
limitations contained in this Agreement shall defeat or render invalid or in any way
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impair the lien or charge of any mortgage, deed of trust or other financing or security
instrument; provided, however, that any successor of Borrower to the Property shall
be bound by such remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise. Failure to comply with the covenants,
conditions, restrictions, provisions or the limitation contained in this Agreement
within the time period required by Section 12.1 shall constitute a material default
hereunder permitting the City to exercise any of its rights or obligations provided
hereunder, including, without limitation, those provided under the City Note, City
Trust Deed of Trust, or otherwise provided at law or in equity.
11.10 Prohibition A!!ainst Assi!!nment and Transfer: The qualifications and identity of Borrower
are of particular concern to City. It is because of those qualifications and identity that City
has entered into this Agreement with Borrower. Accordingly, for the term of the City Loan
and Affordable Housing Agreement, Borrower, without City's prior written approval, shall
not, whether voluntarily, involuntarily, or by operation of law, and except as permitted in this
Section 11.10, (I) undergo any significant change in ownership (including the sale or
conveyance of any of the general partnership interests in the Borrower, except as otherwise
permitted under the terms of the Partnership Agreement regarding the removal of the General
Partner, provided that any replacement General Partner shall be subject to the reasonable
approval of the City, or (2) assign all or any part of this Agreement or any rights hereunder,
or (3) sell, lease, assign, further encumber or refinance, or otherwise convey all or any part of
the Property or Project, whether voluntarily, involuntarily, or by operation of law.
Notwithstanding the foregoing, the following shall not be considered a significant change in
ownership or an assignment or transfer and shall not require City approval for purposes of
this Section 11.1 0:
(i) Transfers to any entity or entities wholly owned and controlled by Borrower or all of
its partners.
(ii) The conveyance or dedication of portions of the Property to the City or other
appropriate governmental City for the formation of an assessment district, or the
granting of easements or permits to facilitate the development of the Property.
(iii) A sale or transfer of some or all of the limited partnership interests in the Borrower.
(iv) The leasing of all or any apartment units to tenants in the ordinary course of business.
(v) The leasing of furniture, fixtures or equipment in the ordinary course of business,
including, without limitation, laundry equipment and facilities, cable television
equipment and facilities, and vending machine equipment and facilities.
(vi) Transfers of property management responsibilities in accordance with Section 11.8
hereof, provided, however, that Borrower shall provide City thirty (30) days prior
written notice of any such management change, and that this exception shall be
limited to transfers to property managers with significant experience in managing
projects similar to the Project.
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(vii) The conveyance of the Property to the nonprofit general partner ofthe Borrower upon
such general partner's exercise of its right of first refusal to acquire the Property at
the end of the tax credit compliance period.
Any such assignee shall be subject to all terms and conditions of this Agreement,
including, without limitation, all affordability restrictions concerning the occupancy
of the Property.
Borrower shall deliver written notice to City requesting approval of any assignment
or transfer requiring City approval hereunder. Such notice shall be given prior to
Borrower entering into a formal written agreement with the proposed assignee.
In considering whether it will grant approval to any assignment by Borrower of its
interest in the Property or any portion thereof, which assignment requires City
approval, City shall consider factors such as (i) the financial strength and capability
of the proposed assignee to perform Borrower's obligations hereunder and (ii) the
proposed assignee's experience and expertise in the planning, financing, construction,
development, and operation of similar projects.
No assignment, including assignments which do not require City approval hereunder,
but excluding assignments for financing purposes, shall be effective unless and until
the proposed assignee executes and delivers to City an agreement, in form
satisfactory to the City's attorneys, assuming the obligations of the assignor which
have been assigned. Thereafter, the assignor shall be relieved of all responsibility to
City for performance of the obligations assumed by the assignee.
No lender approved by City pursuant to Section 4 shall be required to execute an
assumption agreement and such lender's rights and obligations hereunder shall be as
set forth in Section 4.
11.1 I Secured Financinl!: Right of Holders.
a. Permitted Encumbrances. Mortgages, deeds of trust, conveyances, and
leases-back or any other form of conveyance required for any financing
permitted and/or approved by the City pursuant to Section 4 hereof are
permitted before City's issuance of the Certificate of Completion.
b. Holder Not Oblil!ated to Construct Imorovements. The holder of any
mortgage or deed of trust or other security interest authorized by this
Agreement shall in no way be obligated by the provisions of this Agreement
to construct or complete the improvements or to guarantee such construction
or completion; provided, however, that nothing in this Agreement shall be
deemed or construed to permit or authorize any such holder (with the
exception of the holder of any deed of trust securing the loan made from the
proceeds of the Bonds) to devote the Property or any part thereof to any uses,
or to construct any improvements thereon, other than those uses or
improvements provided for or authorized by this Agreement.
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c. Notice of Default to Mortgage. Deed of Trust or Other Secured Instrument
Holders: Right to Cure. Whenever City shall deliver any notice or demand to
Borrower with respect to any breach or default by Borrower hereof, the City
shall at the same time deliver a copy of such notice or demand to Borrower's
Limited Partner and each approved holder of record of any mortgage, deed of
trust, or other security instrument which has previously requested such notice
in writing. Each such holder shall (insofar as the rights of City are
concerned) have the right, at its option within ninety (90) days after the
receipt for the notice, to commence and thereafter to diligently proceed to
cure or remedy such default and add the cost thereof to the security interest
debt and the lien on its security interest.
d. Right of City to Cure Mortgage. Deed of Trust. or Other Security Instrument
Default. In the event of a default or breach by Borrower of a mortgage, deed
of trust, or other security instrument or lease-back or conveyance for
financing prior to the issuance by City of the Certificate of Completion for the
Project, City may cure the default prior to completion of any foreclosure. In
such event, the City shall be entitled to reimbursement from Borrower of all
costs and expenses it has reasonably incurred in curing the default, which
right of reimbursement shall be secured by a lien upon the Property to the
extent of such costs and disbursements. Any such lien shall be subject to:
(i) Any mortgage, deed of trust, or other security instrument or sale and
lease-back or other conveyance for financing permitted by this
Agreement; or
(ii) Any rights or interests provided in this Agreement for the protection
of the holders of such mortgages, deed of trust, or other security
instruments, the lessor under a sale and lease-back, or the grantee
under such other conveyance for financing; provided that nothing
herein shall be deemed to impose upon City any affirmative
obligations (by the payment of money, construction, or otherwise)
with respect to the Property in the event of its enforcement of its lien.
11.12 Right of Citv to Satisfy Liens: Prior to the issuance by City of the Certificate of Completion
for the Project, and after Borrower has had a reasonable time to challenge, cure, or satisfy
any liens or encumbrances on the Property, City, after sixty (60) days prior written notice to
Borrower, shall have the right, but not the obligation, to satisty any liens or encumbrances on
the Property; provided, however, that nothing in this Agreement shall require Borrower to
payor make provision for the payment of any tax, assessment, lien, or charge so long as
Borrower in good faith shall contest the validity or amount thereof, and so long as such delay
in payment shall not subject the Property to forfeiture or sale.
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ARTICLE 12 - Defaults, Remedies, And Termination
12.1 Defaults - General: Subject to all of the extensions of time available in Section 13.3, failure
or delay by any party to perform any term or provision of this Agreement constitutes a
default under this Agreement; however, the party shall not be deemed to be in default if (i)
such party cures, corrects, or remedies such default within thirty (30) days after receipt of a
notice specifying such failure or delay, or (ii) for such defaults that cannot reasonably be
cured, corrected, or remedied within thirty (30) days, if such party commences to cure,
correct, or remedy such failure or delay within thirty (30) days after receipt of a notice
specifying such failure or delay, and diligently prosecutes such cure, correction or remedy to
completion.
The injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Copies of any notice of default given to
Borrower shall also be delivered to the Bond Issuer/Lender, the Limited Partner of Borrower,
and any other permitted lender requesting such notice. Except as provided in Section 12.3
herein or as required to protect against further damages, the injured party may not institute
proceedings against the party in default until thirty (30) days after giving such notice. Except
as otherwise expressly provided in this Agreement, any failure or delay in giving such notice
or in asserting any of its rights and remedies as to any default shall not constitute a waiver of
any default, nor shall it change the time of default, nor shall it deprive either party of its
rights to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
12.2 Termination.
12.2.1 Termination bv City: Notwithstanding any other provision of this Agreement to the
contrary, in the event that the City is not in default under this Agreement, City shall
have the right to terminate this Agreement prior to disbursement of the City Loan
upon written notice to the Borrower if: (i) Borrower commits a material default
hereunder and fails to cure said default within the time specified in Section 12.1
hereof; or (ii) Borrower fails to obtain the necessary approvals from the Tax Credit
Allocation Committee for an allocation of "4%" Low Income Housing Tax Credits
under terms that will restrict the residential units in the Project to the requirements set
forth herein; (iii) Borrower fails to timely remove any and all other requirements of
Section 4.3 of this Agreement; or (iv) Escrow has not closed on the conveyance of
the Property to Borrower on or before , as such date may be
extended by agreement of all the parties hereto in their sole and absolute discretion;
or (v) Subject to extensions of time made pursuant to Section 13.3 hereof, City shall
have the right to terminate this Agreement with prior written notice Borrower, if
Borrower shall have failed to commence construction of the Project pursuant to a
valid building permit or permits and is not diligently proceeding with such
construction on or before the time required in the Schedule of Performance and does
not timely cure such default.
In addition, in the event of Borrower's uncured material default under this Agreement
at the time City exercises its right under this Section 12.2 to terminate the Agreement,
nothing in this Section 12.2 is intended or shall be interpreted as a limitation of any
other legal or equitable rights to which City may be entitled.
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In addition to the right of the City to terminate this Agreement prior to disbursement
of funds by the City, the City shall have the right to pursue any and all rights, at law
or in equity, against the Borrower for breach of the Agreement, including without
limitation, the recoupment of monies disbursed by the City together with any and all
other damages incurred by the City as a result of the uncured breach by the Borrower,
including attorney's fees, expert witnesses fees, consultant fees and other fees, costs,
expenses and damages.
12.2.2 Termination bv Borrower: Notwithstanding any other provision of this Agreement to the
contrary, provided that Borrower is not in default under this Agreement, Borrower shall
have the right to terminate this Agreement prior to disbursement of the City Loan, upon
written notice to City, if: (i) City commits a material default hereunder and fails to cure
said default within the time specified in Section 12.1; or (ii) Escrow has not closed on the
conveyance of the Property to Borrower on or before , as such date
may be extended by agreement of all the parties hereto, in their sole and absolute
discretion; or (iii) City fails to approve, after best efforts by Borrower to obtain such
approval, such permits as are required to commence and complete construction of the
Project on the Property.
In addition, in the event of City's uncured material default under this Agreement at
the time Borrower exercises its right under this Section 12.2 to terminate the
Agreement, nothing in this Section 12.2 is intended or shall be interpreted as a
limitation of any other legal or equitable rights to which Borrower may be entitled.
12.3 Legal Actions.
12.3.1 Institution of Legal Actions: In addition to any other rights or remedies, any
party may institute legal action to cure, correct, or remedy any default, to
recover damages for any default, or to obtain any other remedy consistent
with the purposes of this Agreement. Such legal actions must be instituted
and maintained in the Superior Court of the County of San Diego, State of
California, or in any other appropriate court in that county.
12.3.2 Applicable Law: The laws of the State of California shall govern the interpretation
and enforcement of this Agreement.
12.3.3 Acceptance of Service of Process: In the event that any legal action is commenced by
Borrower against City, service of process on City shall be made by personal service
upon the City's Housing Manager or City Clerk, or in such other manner as may be
provided by law.
In the event that any legal action is commenced by City against Borrower, service of
process on Borrower shall be made in such manner as may be provided by law, and
shall be valid whether made within or without the State of California.
12.3.4 Action for Specific Performance: If either the Borrower or City defaults with regard to
any of the provisions of this Agreement, the non-defaulting party shall serve written
notice of such default upon the defaulting party. If the default does not commence to be
cured by the defaulting party within thirty (30) days after service of the notice of default,
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the non-defaulting party at its option may thereafter commence an action for specific
performance of the terms of this Agreement pertaining to such default, subject to the
provisions of Sections 12.1 and 13.3 hereof.
12.3.5 Rjghts and Remedies are Cumulative: Except as otherwise expressly stated in this
Agreement, the rights and remedies ofthe parties are cumulative, and the exercise by
either party of one or more of its rights or remedies shall not preclude the exercise by
it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other party.
ARTICLE 13 - General Provisions
13.1 Notices. Demands. and Communications Between the Parties: Formal notices, demands, and
communications between City, and Borrower shall be given either by (i) personal service, (ii)
delivery by reputable document delivery service such as Federal Express that provides a
receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified
mail, postage prepaid, return receipt requested, to the address of the party as set forth below,
or at any other address as that party may later designate by notice:
To City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Community Development Director
With a copy to: City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Attorney
To Borrower:
CIC Landings, L.P.
c/o Chelsea Investment Corporation
5993 Avenida Encinas, Suite 101
Carlsbad, CA 92008
Attention: Wally Dieckmann
With a copy to:
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Notices personally delivered or delivered by document delivery service shall be deemed
effective upon receipt. Notices mailed shall be deemed effective on the second business day
following deposit in the United States mail. Such written notices, demands, and
communications shall be sent in the same manner to such other addresses as either party may
from time to time designate by mail.
13.2 Nonliabilitv of Citv Officials and Emplovees: Conflicts of Interest: No member, official,
employee, or contractor of City shall be personally liable to Borrower in the event of any
default or breach by City or for any amount which may become due to Borrower or on any
obligations under the terms of this Agreement.
No member, official, employee, or agent of City shall have any direct or indirect interest in
this Agreement nor participate in any decision relating to this Agreement which is prohibited
bylaw.
13.3 Enforced Delav: Extension of Times of Performance: In addition to specific provIsIons of
this Agreement, and except as expressly set forth in Section 12.2 and this Section 13:3,
performance by either party hereunder shall not be deemed to be in default and such party
shall be entitled to an extension of time to perform its obligations hereunder where delays in
performance are due to causes beyond the control and without the fault of such party,
including as applicable: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires;
casualties; supernatural causes; 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, subcontractor or supplies; acts of the other party; acts or the failure to act of City
or any other public or governmental City or entity (except that any act or failure to act of or
by City shall not excuse timely performance by City). In addition, nothing in this Section
13.3 is intended or shall be interpreted to entitle Borrower to an extension of time to close the
escrow for acquisition of the Property or to delay commencement of construction of the
Project.
An extension of time for any cause permitted under this Section 13.3 shall be limited to the
period of the enforced delay and shall commence to run from the time of the commencement
of the cause, if notice by the party claiming such extension is sent to the other party within
thirty (30) days of knowledge of the commencement of the cause, or if no written notice is
sent within thirty (30) days, from the date written notice is sent by the other party.
Times of performance under this Agreement may be extended by mutual written agreement
of City and Borrower.
13.4 Inspection of Books and Records: The Borrower shall keep and maintain at the Project, or
elsewhere within the County of San Diego, full, complete and appropriate books, records and
accounts relating to the Project, including all such books, records and accounts necessary or
prudent to evidence and substantiate in full detail Borrower's calculation of Residual
Receipts and compliance with the affordable housing requirements herein. Books, records
and accounts relating to Borrower's compliance with the terms, provisions, covenants, and
conditions of this Agreement shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied, and shall be consistent with
requirements of this Agreement. All such books, records, and accounts shall be open to and
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available for inspection by tbe City, and its auditors or otber authorized representatives at
reasonable intervals during normal business hours upon reasonable prior notice to Borrower.
Copies of all tax returns and otber reports tbat Borrower may be required to furnish any
governmental City shall at all reasonable times, upon reasonable prior notice to Borrower, be
open for inspection by tbe City at tbe place that tbe books, records, accounts of tbe Borrower
are kept. The Borrower shall preserve records on which any statement of Residual Receipts
is based for a period of not less tban five (5) years after such statement is rendered. City shall
have the right at all reasonable times to inspect tbe books and records of Borrower pertaining.
to the Property and the Project as pertinent to the purposes of this Agreement. Borrower
shall provide its books and records to City witbout reasonable delay upon no less than five
(5) days prior written request by City. City shall not request inspection for Borrower's books
and records more than once in any twelve (12) montb period, unless City is required to obtain
information in order to comply with reporting or otber requirements of law herein.
Borrower shall have the right at all reasonable times to inspect tbe books and records of City
pertaining to the Property and tbe Project as pertinent to the purposes oftbis Agreement.
13.5 Interoretation: The terms of this Agreement shall be construed in accordance with tbe
meaning of tbe language used and shall not be construed for or against any party by reason of
tbe autborship of this Agreement or any other rule of construction which might otberwise
apply. The section headings are for purposes of convenience only, and shall not be construed
to limit or extend the meaning of tbis Agreement.
13.6 Entire Alp"eement. Waivers and Amendments: This Agreement, togetber with the
Promissory Note, Deed of Trust, Affordable Housing Agreement and otber documents
executed pursuant to this Agreement, integrates all of tbe terms and conditions mentioned
herein, or incidental hereto, and supersedes all negotiations and previous agreements between
the parties with respect to all or any part of tbe subject matter hereof.
All waivers of the provisions of this Agreement must be in writing and signed by tbe
appropriate autborities of tbe party to be charged, and all amendments and modifications
hereto must be in writing and signed by the appropriate authorities of City and Borrower.
13.7 ConsentlReasonableness: Except when this Agreement specifically authorizes a party to
witbhold its approval or consent in its sole and absolute discretion, when either City or
Borrower shall require the consent or approval of another party in fulfilling any agreement,
covenant, provision, or condition contained in tbis Agreement, such consent or approval shall
not be unreasonably withheld, conditioned, or delayed by the party from whom such consent
or approval is sought.
13.8 Severability: If any term, provision, covenant, or condition of tbis Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of tbis
Agreement shall not be affected tbereby to the extent such remaining provisions are not
rendered impractical to perform taking into consideration the purposes of tbis Agreement. In
the event that all or any portion of tbis Agreement is found to be unenforceable, this
Agreement or tbat portion which is found to be unenforceable shall be deemed to be a
statement of intention by tbe parties; and the parties further agree tbat in such event, and to
the maximum extent permitted by law, they shall take all steps reasonably necessary to
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comply with such procedures or requirements as may be reasonably necessary in order to
make valid this Agreement or that portion which is found to be unenforceable.
13.9 Third Party Beneficiaries: Notwithstanding any other provision of this Agreement to the
contrary nothing herein is intended to create any third party beneficiaries to this Agreement,
and no person or entity other than City and Borrower, and the permitted successors and
assigns of each of them, shall be authorized to enforce the provisions of this Agreement.
13.10 Reoresentations and Warranties: Borrower represents and warrants that: (i) Borrower is a
limited partnership organized and existing under the laws of the State of California, in good
standing, and authorized to do business and doing business in the County of San Diego; (ii)
Borrower has all requisite power and authority to carry out its business as now and whenever
conducted and to enter into and perform its obligations under this Agreement; (iii) by proper
action of Borrower, Borrower's signatories have been duly authorized to execute and deliver
this Agreement; (iv) the execution of this Agreement by Borrower does not violate any
provision of any other agreement to which Borrower is a party; (v) except as may be
specifically set forth in this Agreement, and except for the approval of Borrower's investor
limited partner, no approvals or consents not heretofore obtained by Borrower are necessary
in connection with the execution of this Agreement by Borrower or with the performance by
Borrower of its obligations hereunder, and (vi) no attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, receivership
or other proceedings are pending or threatened against the Borrower, or any partners of
Borrower, nor are any of such proceedings contemplated by Borrower or any partners of
Borrower.
13.11 Execution: This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, and such counterparts shall constitute one and the same instrument.
13.12 Relationshio of Parties: It is understood that the contractual relationship between the City
and Borrower is such that Borrower is an independent entity and not an agent or partner of
City. Nothing in this Agreement shall constitute Borrower as the agent or partner or
representative of City for any purpose whatsoever.
13.13 Attornev's Fees: If either party to this Agreement is required to initiate or defend litigation in
any way connected with this Agreement, the prevailing party in such litigation, in addition to
any other relief which may be granted, whether legal or equitable, shall be entitled to its
actual and reasonable attorney's fees. If either party to this Agreement is required to initiate
or defend litigation with a third party because of the violation of any term or provision of this
Agreement by the other party, then the party so litigating shall be entitled to its actual and
reasonable attorney's fees from the other party to this Agreement. Attorney's fees shall
include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall
be entitled to all other reasonable costs for investigating such action, retaining expert
witnesses, taking depositions and discovery, and all other necessary costs incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such action
and shall be enforceable whether or not such action is prosecuted to judgment. The parties
hereto acknowledge and agree that each such party shall bear its own legal costs incurred in
connection with the negotiation, approval, and execution of this Agreement.
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Article 14- Option and First Right of Refusal
14.1 City Ootion to Acquire the Prooertv Uoon Uncured Default.
(a) Granting of the Ootion to Acquire Prooertv Upon Uncured Default bv Borrower.
Borrower grants to City an Option ("Option") to purchase the Property, including without limitation the
Project, on the terms and conditions set forth in an Option and First Right of Refusal as approved by the
office of the City Attorney, in its reasonable discretion, to be exercised upon the uncured default of the
Borrower under the terms of this Agreement, the MHP Loan Documents, the Bond Documents, the
TCAC Regulatory Agreement, the Affordable Housing Agreement and any and all other loan documents
and/or regulatory agreements affecting the Property and/or Project.
(b) Consideration for the Ootion. The execution of this Agreement and the making of the
City Loan by the City to the Borrower shall be the consideration for entering into the Option. Borrower
hereby acknowledges that the City would not enter into this Agreement or make the City Loan without
the Borrower granting the Option.
(c) Memorandum ofOotion and First Right of Refusal. Borrower shall execute,
acknowledge, deliver and cause to be recorded upon the close of the Escrow for the City Loan, the
Memorandum of Option and First Right of Refusal, in a form and format as reasonably approved by the
office of the City Attorney.
(d) The Ootion Price. The Option price shall be the amount of the senior debt to the City
Loan as approved by the City in this Agreement.
(e) Rights of Tax Credit Limited Partner. The tax credit limited partner of the Borrower
shall have an option to acquire the Property, upon default, which is senior to that granted to the City
herein. The City's option shall be junior and subordinate to that of the tax credit limited partner, as
approved by the City.
(t) Term of the Ootion. The option in favor of the City shall commence upon the acquisition
of the Property by the Borrower and shall terminate fifty-five years thereafter.
(e) Exercise of the Option. The City may exercise the option within thirty (30) days after the
expiration of notice of an uncured event of default under the applicable agreements, in accordance with
the provisions of Section 12.1 of this Agreement.
(t) Escrow to Effectuate Option. An escrow shall be opened between the Borrower and the
City upon the timely exercise of the option and shall close within ninety (90) days thereafter.
14.2 City First Right of Refusal to Acouire Property.
(a) Granting of Erst Right of Refusa! to Acouire Prooertv. In addition to the Option
referenced within Section 14.1 of this Agreement, the Borrower hereby grants the City a First Right of
Refusal to purchase the property on the terms set forth in an Option and First Right of Refusal as
approved by the office of the City Attorney, in its reasonable discretion.
(b) Consideration for First Right of Refusal. The execution of this Agreement and the
making of the City Loan by the City is the consideration for entering into this First Right of Refusal.
(d) Term of First Right of Refusal. The City's first right of refusal shall commence upon the
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acquisition of the Property by the Borrower and shall expire fifty-five years thereafter.
[SIGNATURE PAGE TO FOLLOW]
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1 6-51
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date
specified herein.
"CITY"
CITY OF CHULA VISTA, a public body, corporate
and politic
By:
David R. Garcia, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Ann Moore, City Attorney
"BORROWER"
ere Landings, L.P., a California limited partnership
By: Ajax-Landings, LLC, a California limited liability company,
Its Administrative General Partner
By: Chelsea Investment Corporation,
a California corporation, its Manager
By:
James J. Schmid, President
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EXHIBIT A
LEGAL DESCRIPTION
(To be supplied at closing)
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Exhibit "B"
SOURCES AND USES
COST AMOUNT SOURCE AMOUNT
Land Purchase $10,590,000
Construction $14,269,634
Contingencv $625,861 Tax Credit Eauity $9,624,000
Permits & Fees $2,684,928 State MHP Loan $7,216,260
InterestlFees, Financing Costs $1,668,887 Bond $4,948,000
DesilffiJEn"ineerin" $755,000 citY Loan $920,000
Develoner Fees $2,500,000 Land Donation $10,580,000
Reserves, Le"al, Other $695,939 Deferred Developer Fee $501,989
TOTAL ESTIMATED COST $33,790,249 ARTICLE 14TOTAL $33,790,249
SOURCES
B-1
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EXHIBIT C
PROJECT BUDGET
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EXHIBIT D
PROJECT PRO FORMA
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EXlllBIT E
SCOPE OF WORK
Borrower agrees to develop the Property so that it consists of a multi-family residential project consisting
of 92 units, and to operate the Project for occupancy by very low and low income households. The
Project shall consist of 92 three-bedroom units open space, a recreation area, storage areas, laundry
rooms, garages, and other common area facilities in accordance with the plans approved by the City.
The residential units will consist of II units affordable to very low income households at or below 30
percent of AMI according to HOME Program rules and regulations.
Pursuant to the HOME Program requirements, eleven( II) three-bedroom units are being assisted with
HOME funds (the "HOME assisted units") and must meet all of the HOME requirements for the term of
the affordability restrictions on the units. The specific units to be designated HOME-assisted units may
change from time to time in Borrower's sole discretion, provide that the aggregate number and category
of said units remains the same.
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Exhihit F
SCHEDULE OF PERFORMANCE
July 27, 2007
Au ust 17, 2007
5e tember 26, 2007
October, 2007
November, 2007
December, 2007
Au ust, 2007
December, 2007
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Attachment 3
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Redevelopment Agency of the City of Chula Vista
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Clerk
No fee for recording pursuant to
GOVERNMENT CODE Section 27383
(Space above for Recorder's Use)
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is entered into as of
, 2007, between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA
VISTA, a public body, corporate and politic ("Agency"), the CITY OF CHULA VISTA, a municipal
corporation ("City"), and BROOKFIELD SHEA OT A Y LLC, a California limited liability company
("Developer"), and/or its successors or assignees.
ARTICLE 1 - Recitals
l.l Authoritv.
Agency is a public body, corporate and politic, exercising governmental functions and powers
and organized and existing under the Community Redevelopment Law of the State of California
(HEALTH AND SAFETY CODE Section 33000, et seq.). City is a municipal corporation, organized and
existing under the laws of the State of California. Agency and City are authorized to enter into binding
agreements for the purpose of protecting public health, safety, and welfare.
1.2 Developer: Prooertv.
Developer is the legal owner of the fee title to the real property located in the City ofChula Vista,
which is described in the attached Exhibit A, which is hereby incorporated herein (the "Real Property").
The Real Property is currently unimproved. This agreement is intended to apply to the rental project on
this property, of which a Final Map is forthcoming.
1.3 Proiect.
Developer proposes to construct a multifamily housing project with 92 rental units in Otay Ranch
Village II (the "Project"). Each dwelling unit in the Project is referred to as a "Unit" in this Agreement.
The Project will consist of ninety-two (92) Units affordable to Low Income households at or below sixty
percent (60%) of the Area Median Income.
1.4 Master Affordable Housin!! Aweement - Implementation of Citv Council Resolution 2003-492.
This Agreement is intended to satisfY, in part, the requirements of City Council Resolution 2003-
492 and the Affordable Housing Agreement previously entered into between Developer and the City and
DOC S00989729vI \ 24036.0030
HSRGB Doc 327324_<1 6/14/07
I
16-59
recorded February 24, 2003, as Document No. 2003-0200562, which requires that, as a condition to
issuance of certain building permits to the land covered by the Otay Ranch Village 11 Sectional Planning
Area (SPA) Plan, an "Affordable Housing Regulatory Agreement" be entered into between the City and
Developer whereby Developer agrees to provide a specified percentage of the Units as low income
housing and moderate income housing ("Master Affordable Housing Agreement"). The parties intend
that this Agreement constitute an agreement referred to in City Council Resolution 2003-492 and also
constitute an "Affordable Housing Regulatory Agreement" as described in the Master Affordable Housing
Agreement and that this Agreement satisfy Master Developers low income affordable housing
obligations thereunder.
1.5 Existing Regulatorv Agreement.
The parties have previously entered into that certain Affordable Housing Regulatory Agreement,
recorded December 1, 2006, as Document No. 2006-0855757, that satisfies Master Developer's moderate
and low income affordable housing obligations under the Master Affordable Housing Agreement (as "for-
sale" units) with respect to approximately 489 acres of land described as the "Project" in the Master
Affordable Housing Agreement (together with any existing or future amendments thereto, "Existing
Regulatory Agreement"). The parties have or will execute an amendment to the Existing Regulatory
Agreement that allows Developer to fulfill the low income requirements set forth in the Master
Affordable Housing Agreement through implementation of this Agreement. In the event this Agreement
is terminated pursuant to Section 5.2.2 below, Developer shall fulfill the low income requirements set
forth in the Master Affordable Housing Agreement in accordance with the Existing Regulatory
Agreement.
1.6 Future Owner: Financing Contingencv.
It is anticipated that the Project will be constructed, owned and operated by a developer with
expertise in low-income rental housing ("Apartment Developer"). Implementation of this Agreement is
contingent upon Apartment Developer's ability to secure various state and local subsidies and tax credits
for the Project, as described on Exhibit B attached hereto (collectively, "Low Income Financing"). As
more particularly described in Section 5.2.2 below, this Agreement shall automatically terminate in the
event Apartment Developer is unable or unwilling to secure the Low Income Financing. In such event,
Developer shall fulfill the low income requirements set forth in the Master Affordable Housing
Agreement in accordance with the Existing Regulatory Agreement.
1.7 Standards.
The permitted uses of the Real Property, the density of use thereof, the maximum height and size
of buildings thereon, and provisions for reservations or dedication of land for public purposes and all
other standards of development of the Real Property will be consistent and remain in compliance with the
approved Design Review Committee application (DRC 05-44).
1.8 Binding on Successive Owners.
Pursuant to Califomia GOVERNMENT CODE Section 27281.5, the parties intend that this
Agreement constitute an encumbrance against the Real Property (other than the Unrestricted Units)
which, during the Term of this Agreement, is binding on the owners and successive owners of the Real
Property (other than the Unrestricted Units) for the benefit of the City.
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NOW THEREFORE, AGENCY, CITY, AND DEVELOPER HEREBY AGREE AS
FOLLOWS:
ARTICLE 2 - Low Income Housinl!
2.1 Definitions.
For the purposes ofthis article, the following defmitions apply:
2.1.1 "Area Median Income" means the latest median income from time to time determined
by the United States Department of Housing and Urban Development (pursuant to Section 8 of the United
States Housing Act of 1937) for the San Diego Standard Metropolitan Statistical Area and as established
by regulation of the State of California pursuant to HEALTH AND SAFETY CODE Section 50093.
2.1.2 "City Deed of Trust" means that certain deed of trust to be recorded against the portion
or the Real Property comprising the Project that secures the City Note and the HOME Funds Agreement.
2.1.3 "City Note" means that certain promissory note and loan agreement to be executed by
in connection with the City's allocation of the HOME Funds.
2.1.4 "HOME Funds Agreement" means that certain regulatory agreement entered into by the
parties in connection with the City's allocation of the HOME Funds.
2.1.5 "HOME Funds" means the nine hundred twenty thousand dollars ($920,000) in HOME
Funds allocated by the City to the Project.
2.1.6 "Low Income Tenants" means individuals or families with an income which does not
exceed sixty (60) percent of the Area Median Income, as adjusted for household size.
2.1.7 "Low Income Apartment" means any of the ninety-two (92) apartment units on the Real
Property which shall be continuously occupied only by and affordable to a Low Income Tenant.
2.1.8 "Manager's Unit" means that unit on the Real Property occupied by a resident property
manager which may be exempt from occupancy restrictions.
2.1.9 "Affordable Apartment" means anyone of the apartments defined in Section 2.1.7
through 2.1.8; "Affordable Apartments" means all of such apartments collectively.
2.1.10 "Rent" means the total of monthly payments for all of the following: (a) use and
occupancy of the apartment unit and land and facilities associated therewith, (b) any separately charged
fees or service charges assessed by the lessor which are required of all tenants, other than security
deposits, and (c) a reasonable allowance for utilities not included in the above costs, excluding telephone
service, which takes into consideration an adequate level of service.
2.1.11 "Housing Manager" means the Housing Manager of the Agency and City.
2.2 Oualification of Tenants.
As to the Affordable Apartments, the following will apply:
2.2.1 Low Income Apartments. Developer shall restrict the occupancy and rental rate of the
ninety two (92) Low Income Apartments (other than the Manager's Unit) to Low Income Tenants. Each
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three-bedroom Low Income Apartment will be leased to a household of up to six persons, meeting the
maximum income levels.
2.3 Monthlv Rent.
As to the Affordable Apartments, the following will apply:
2.3.1 Calculation of Maximum Low Income Rent. The monthly rent charged for all the Low
Income Apartments shall not exceed one-twelfth of the amount obtained by multiplying 30 percent times
60 percent of the Area Median Income, as adjusted for household size appropriate to the unit as specified
in Section 2.3.2. The Maximum Low Income Affordable Rent of a Low Income Apartment shall include
use and occupancy of a housing unit and associated land and facilities, less a reasonable utility allowance.
2.3.2 Unit Sizes and Appropriate Household Sizes. Calculation of the Low Income Affordable
Rent shall be based upon an assumed household size of four (4) persons for each three- (3-) bedroom unit,
notwithstanding the actual size of the household that rents the Affordable Apartment. If Tax Credit
requirements differ, the Tax Credit standards shall apply.
2.4 Proof of Oualification.
Developer will obtain from each person(s) to whom Developer rents an Affordable Apartment a
"Supplemental Rental Application" ("Application") in the form of Exhibit B attached hereto and
incorporated herein (or such other form as Agency and City may from time to time adopt and of which
Agency and City notifY Developer in writing). Developer will be entitled to rely on the Application and
the supporting documents thereto in determining the eligibility of such person(s) to rent such Affordable
Apartment. Developer will retain the Application and supporting documents for a period of at least three
years after the applicant thereof ceases to occupy such Affordable Apartment.
Copies of the most recent Applications for Low Income Tenants commencing or continuing
occupancy of an Affordable Apartment shall be attached to the semi-annual report to be filed with the
Agency and City in compliance with Section 2.5 of this Agreement.
An Affordable Apartment occupied by a qualified tenant who at the commencement of the
occupancy qualifies as a low income household shall be treated as occupied by a Low Income Tenant
until a recertification of such tenant's income in accordance with Section 2.4.1 below demonstrates that
such tenant no longer qualifies as a Low Income Tenant in accordance with the standards set forth in this
Article 2.
2.4.1 Recertification of Income. Immediately prior to the first anniversary date of the
occupancy of an Affordable Apartment by a qualified tenant, and on each anniversary date thereafter, the
Developer shall recertifY the income of the occupants of each Affordable Apartment by obtaining a
completed Supplemental Rental Application based upon the current income of each occupant of the
Affordable Apartment. In the event the recertification demonstrates that such household's income exceeds
the income at which such household originally qualified, but such household remains qualified as a
Moderate Income Tenant, such tenant shall not be required to vacate the unit, but may be charged the
lessor of 30% of their income or the 80% rent level for the unit size.
2.5 Waiver.
Developer may apply in writing to the Housing Manager for a waiver, as to a specifically
designated Affordable Apartment. Each such application will be accompanied by written data or other
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evidence relied upon by Developer to show that, for the near future, there will be no reasonable demand
for such Affordable Apartments(s). Within 30 days after receipt of any such application, the Housing
Manager will, in writing, either grant or disapprove the requested waiver. Such a waiver shall not be
permanent in nature. If and when data or other evidence suggest that the environment has changed since
the application and granting of the waiver, and a demand for such apartments then exists, the Developer
shall rent the next available unit to an income qualified household.
2.6 Records. Audits.
Developer will submit to Agency and City semi-annual certified rent rolls, disclosing with respect
to each Affordable Apartment (i) the monthly rent rate, (ii) the number of occupants for which the
Affordable Apartment is rented, and (iii) the income of such occupant(s). Such submission shall be in the
form of Exhibit C attached hereto and incorporated herein (or such other form as Agency and City may
from time to time adopt and of which Agency and City notify Developer in writing). If Agency or City
reasonably believes that violations of the rent, occupancy and/or income requirements of this Agreement
have occurred and that an audit is necessary to verify a submitted rent roll, it will so notify Developer in
writing thereof. Within ten days after delivery of said notice, Developer will deliver to Agency and City
the names of three certified public accountants doing business in the metropolitan San Diego area.
Agency and City will promptly deliver to Developer the Agency's and City's approval of one or more of
said names. The audit will be completed by an approved certified public accountant, at Developer's cost,
within 60 days after the delivery to Developer of Agency's and City's said approval. The certified public
accountant will promptly deliver a copy of the written audit to Agency and City.
2.7 Term.
This Agreement shall commence on the date this Agreement is signed by the Developer and City.
Unless terminated earlier pursuant to Section 5, the Term of this Agreement shall be for a period of fifty-
five (55) years after the Project receives a Certificate of Occupancy for the Affordable Apartments. Upon
verification from the City that all obligations have been satisfied, or upon the early termination of this
Agreement pursuant to Section, the City shall record a termination of this Agreement in the Office of the
County Recorder of San Diego County, California.
2.8 Reports.
Developer, at its expense, shall submit, or cause the Property Manager to submit, to the
appropriate entities any and all reports required to be submitted pursuant to California Community
Redevelopment Law.
2.9 Subordination of Affordabilitv Covenants.
In the event that the Agency and City fmd that an economically feasible method of financing for
the construction and operation of the Project, without the subordination of the affordable housing
covenants as may be set forth in this Agreement, is not reasonably available, the Agency and City shall
make the affordable housing covenants set forth in this Agreement junior and subordinate to the deeds of
trust and other documents required in connection with the construction and permanent financing for the
Project approved pursuant to the HOME Funds Agreement. Any subordination agreement entered into by
the Agency and City shall contain written commitments which the Agency and City fmd are reasonably
designed to protect Agency's and City's investment in the event of default, such as any of the following:
(a) a right of Agency and City to cure a default on the loan prior to foreclosure, (b) a right of Agency and
City to negotiate with the lender after notice of default from the lender and prior to foreclosure, (c) an
agreement that, if (prior to foreclosure of the loan) Agency or City takes title to the property and cures the
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default on the loan, the lender will not exercise any right it may have to accelerate the loan by reason of
the transfer of title to Agency or City, and (d) a right of Agency and City to acquire the Real Property
from the Developer at any time after a material default on the loan. This section may be revised pending
receipt of fmal form of senior loan documents.
ARTICLE 3 - Uses of the Real PrODertv
3.1 Condition of the Real Prol'ertv.
a. Developer shall take all necessary precautions to prevent the release into the environment
of any Hazardous Materials which may be located in, on or under the Real Property. Such precautions
shall include compliance with all Govemmental Requirements with respect to Hazardous Materials. In
addition, Developer shall install and utilize such equipment and implement and adhere to such procedures
as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal
and disposal of Hazardous Materials.
b. Developer shall indemnifY, defend and hold Agency and City harmless from and against
any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fme, penalty, punitive
damage, or expense (including, without limitation, reasonable attorneys' fees), resulting from, arising out
of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous
Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the
Real Property, no matter when such claim, action, suit or proceeding is first asserted or begun and no
matter how the Hazardous Materials came to be released, used, generated, discharged, stored or disposed
of on, under, in or about, to or from the Real Property, or by whom or how they are discovered, or (ii) the
violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or
license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous
Materials on, under, in or about, to or from, the Real Property. This indemnity shall include, without
limitation, any damage, liability, fme, penalty, parallel indemnity after closing, cost or expense arising
from or out of any claim, action, suit or proceeding, including injunctive, mandamus, equity or action at
law, for personal injury (including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the natural
resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment.
c. For purposes of this Agreement, "Hazardous Materials" means any substance, material,
or waste which is or becomes regulated by any local governmental authority, San Diego County, the State
of California, regional governmental authority, or the United States Government, including, but not
limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous
waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to
Section 25130 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act);
(iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated byphenyls; (viii) methyl tertiary
butyl ether; (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to
Article II of Title 22 of the California Code of Regulations, Division 4, Chapter 20; (x) designated as
"hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.c. 91317); (xi) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
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U.S.C. ~690l, et seq. (42 U.S.c. ~6903); or (xii) defmed as "hazardous substances" pursuant to Section
101 oftbe Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. ~960l,
et seq.
d. For purposes of tbis Agreement, "Governmental Requirements" means all laws,
ordinances, statutes, codes, rules, regulations, orders and decrees of tbe United States, tbe State, tbe
County of San Diego, tbe City, or any otber political subdivision in wmch tbe Property is located, and of
any otber political subdivision, agency or instrumentality exercising jurisdiction over tbe Agency, tbe
City, the Borrower or tbe Property.
3.2 Marketinl! and Selection of Tenants.
The three (3) bedroom Low Income Apartments shall be marketed by Developer, or its successor
or assignee, to persons who qualifY as Low Income Tenants witb households of three (3) persons or more.
Tbe following are tbe household sizes appropriate to an Affordable Apartment:
Maximum Affordable
Marketinl! Tarl!et
Marketinl! Tarl!et
Three (3)
Bedroom
Rent Based
on Assumed
Household Size
Four Persons
Minimum
Household
Size
Three Persons
Maximum
Household
Size
Six Persons
Unit Size
Developer shall submit for the approval of tbe Agency and City, which approval shall not
unreasonably be witbheld, a plan for marketing the rental of the Low Income Apartments. Developer's
marketing of units shall be in compliance witb federal and state fair housing law. Such marketing plan
shall include a plan for publicizing tbe availability of the Low Income Apartments witbin the City, such
as notices in any City-sponsored newsletter, newspaper advertising in local newspapers and notices in
City offices. The marketing plan shall require Developer to obtain from tbe Agency the names of low-
and moderate-income households who have been displaced by the Agency's redevelopment projects, and
to notifY persons on such list of the availability of units in tbe Project prior to undertaking otber forms of
marketing. The marketing plan shall provide tbat tbe persons on such list of displaced persons be given
not fewer tban fifteen (15) days after receipt of such notice to respond by completing application forms
for rental of Low Income Apartments, as applicable.
All tenants of each Affordable Apartment shall meet tbe income requirements set forth herein and
shall be in conformance witb the standards set forth in the approved Management Plan. Selection of
residents shall be made randomly witbin the following levels of priority, ratber tban on a fIrst-come, first-
serve basis:
a. First Prioritv. Households which are displaced from tbeir primary residence as a result of
an action of City or Agency, a condominium conversion involving the household's residence, expiration
of affordable housing covenants applicable to such residence, or closure of a mobile home or trailer park
community in which the household's residence was located, and tbe household resided in such housing as
the household's primary place of residence for at least two years prior to such action or event.
b. Second Prioritv. Households which meet one of tbe following criteria: (i) households
which are displaced from tbeir primary residence as a result of an action of City or Agency, a
condominium conversion involving the household's residence, expiration of affordable housing covenants
applicable to such residence, or closure of a mobile home or trailer park community in which tbe
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household's residence was located, and the household resided in such housing as the household's primary
place of residence for at least one year but less than two years prior to such action or event; (ii)
households with at least one member who has resided within the City, as that person's primary place of
residence, for at least two years prior to the date of application for such housing; or (iii) households with
at least one member who has worked within the City, as that person's principal place of full-time
employment, for at least two years prior to the date of application for such housing.
c. Third Priority. Other Low Income Households who do not meet the criteria for first
priority or second priority above.
3.3 Maintenance of Real Property.
Developer agrees for itself and its successors in interest to all or any portion of the Real Property,
to maintain the improvements on the Real Property in conformity with applicable provisions of the City
Municipal Code, and shall keep the Real Property free from any accumulation of debris or waste
materials. During such period, the Developer shall also maintain the landscaping planted on the Real
Property in a healthy condition. Developer shall participate in the City's Crime-Free Multi-Housing
Program (or similar program which is adopted by the City) which has been adopted to facilitate strong
property management, screening of applicants, and maintenance of multifamily rental properties. If at any
time Developer fails to maintain the Real Property and such condition is not corrected within five days
after written notice from Agency or City with respect to graffiti, debris, waste material, and general
maintenance, or thirty days after written notice from Agency or City with respect to landscaping and
building improvements, then Agency and City, in addition to whatever remedy it may have at law or at
equity, but subject to the rights of the Permanent Lender, shall have the right to enter upon the applicable
portion of the Real Property and perform all acts and work necessary to protect, maintain, and preserve
the improvements and landscaped areas on the Real Property, and to attach a lien upon the Real Property,
or to assess the Real Property, in the amount of the expenditures arising from such acts and work of
protection, maintenance, and preservation by Agency and City andlor costs of such cure, including a
fifteen percent (15%) administrative charge, which amount shall be promptly paid by Developer to
Agency and City upon demand.
3.4 Property Management.
The parties acknowledge that the Agency and City are interested in the long-term management
and operation of the Real Property and in the qualifications of any person or entity retained by the
Developer for that purpose (the "Property Manager"). Therefore, during the period of the effectiveness
of the affordability covenants set forth herein, the Agency and City may from time to time review and
evaluate the identity and performance of the Property Manager as it deems appropriate. If the Agency or
the City determines that the performance of the Property Manager is materially deficient based upon the
standards and requirements set forth in this Section 4.4 and the approved Management Plan (as defined
below), the Agency and City shall provide notice to the Developer of such deficiencies, and the
Developer shall use its best efforts to correct such deficiencies within a reasonable period of time. Upon
the failure of the Property Manager to cure such deficiencies within the time set forth herein, the Agency
and City shall have the right to require the Developer to immediately remove and replace the Property
Manager with another property manager or property management company who is reasonably acceptable
to the Agency and City, who (if required in the reasonable discretion of the Agency and City) is not
related to or affiliated with the Developer, and who has not less than five (5) years experience in property
management, including experience managing multifamily residential developments of the size, quality
and scope of the Real Property.
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In addition, the Developer shall submit for the reasonable approval of the Agency and City a
detailed "Management Plan" which sets forth in reasonable detail the duties of the Property Manager,
the tenant selection process, a security system and crime prevention program in compliance with the
City's Crime-Free Multi-Housing Program (or similar program which is adopted by the City), the
procedures for the collection of rent, the procedures for monitoring of occupancy levels, the procedures
for eviction of tenants, the rules and regulations of the Real Property and manner of enforcement, a
standard lease form, and other matters relevant to the management of the Real Property. The management
plan shall require the Property Manager to adhere to a fair lease and grievance procedure and provide a
plan for tenant participation in management decisions. The management of the Real Property shall be in
compliance with the Management Plan which is approved by the Agency and City, subject, however, to
any requirements of the Permanent Lender pursuant to the Permanent Loan Documents. The Management
Plan may be revised from time to time upon the reasonable approval of the Agency, the City and the
Developer.
3.5 Insurance.
Within ten (10) days after the Apartment Developer's acquisition of the Real Property, Developer
shall furnish to the Agency and City duplicate originals or appropriate certificates of insurance coverage
evidencing that Developer has obtained, or cause to be obtained, insurance coverage with respect to the
Real Property and Project in type, amount and from insurers with Best's ratings as are reasonably
acceptable to Agency and City (or have been approved by the Permanent Lender), naming the Agency
and City and its officers, agents, employees, representatives and their respective successors, as named or
additional insureds by appropriate endorsements. Such policy shall include, without limitation, "all risk"
property casualty insurance and comprehensive general liability insurance. Without limiting the generality
of the foregoing, such policy shall also include coverage to insure Developer's indemnity obligations
provided herein, unless Developer can demonstrate to the Agency's and City's reasonable satisfaction that
such coverage is not available or is not available at a commercially reasonable cost consistent with the
Project Budget. Developer covenants and agrees for itself and its successors and assigns that Developer
and such successors and assigns shall keep such liability policy in full force and effect until the date that
is fifty-five (55) years from the date of the City's issuance of the [mal certificate of completion for the
Proj ect.
In addition to any other remedy which Agency and City may have hereunder for Developer's
failure to procure, maintain, and/or pay for the insurance required herein, Agency and City may (but
without any obligation to do so, and subject to the rights of the Permanent Lender under the Permanent
Loan Documents) at any time or from time to time, after thirty (30) days written notice to Developer,
procure such insurance and pay the premiums therefor, in which event Developer shall immediately repay
Agency and City all sums so paid by Agency and City together with interest thereon at the rate of ten
percent (10%) per annum or the maximum legal rate, whichever is less.
3.6 Proceeds of Insurance.
Should the Project be totally or partially destroyed or rendered wholly or partly uninhabitable by
fire or other casualty required to be insured against by Developer, Developer shall promptly proceed to
obtain insurance proceeds and take all steps necessary to promptly and diligently commence the repair or
replacement of the Project to substantially the same condition as the Project is required to be maintained
in pursuant to this Agreement if (i) the Developer agrees in writing within ninety (90) days after payment
of the proceeds that such repair or rebuilding is economically feasible and (ii) the Permanent Lender
permits such repair or rebuilding, provided that the extent of Developer's obligation to restore the Project
shall be limited to the amount of the insurance proceeds actually received by the Developer. If the
Developer is unable or is not permitted to repair, replace, or restore the Project, Developer must give
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notice to Agency and City (in which event Developer will be entitled to all insurance proceeds, subject to
any outstanding lien obligations, but Developer shaH be required to remove all debris from the Real
Property) and Developer may construct such other improvements on the Real Property as are consistent
with applicable land use regulations and approved by the Agency and City and the other governmental
agency or agencies with jurisdiction.
3.7 Taxes. Assessments. Encumbrances. and Liens.
Developer shall pay prior to delinquency all real estate taxes and assessments properly assessed
and levied on the Real Property. Nothing herein contained shall be deemed to prohibit Developer from
contesting the validity or amounts of any tax, assessment, encumbrance, or lien, or to limit the remedies
available to Developer in respect thereto.
3.8 Hold Harmless.
Developer agrees to indemnifY, protect, defend and hold harmless Agency and City, and their
officers, agents, employees, representatives and successors, from and against any and all claims, damages,
actions, costs, demands, expenses or liability, including, without limitation, reasonable attorneys' fees and
court costs, which may arise from the direct or indirect actions or inactions of the Developer or those of
its contractors, subcontractors, agents, employees or other persons acting on Developers' behalf which
relate to the Real Property or Project. This hold harmless agreement applies, without limitation, to all
damages and claims for damages suffered or alleged to have been suffered by reasons of the operations
referred to in this Section, regardless of whether or not the Agency or City prepared, supplied or approved
plans or specifications, or both, for the Property or Project. This indemnity by Developer and all other
indemnities set forth herein shall survive any foreclosure of the Real Property by the City pursuant to the
terms of the City Deed of Trust.
3.9 Further Indemnification of Agencv and City.
It is understood and agreed that the parties hereto have entered the HOME Funds Agreement as a
method of providing necessary assistance to Developer in connection with the construction of low income
housing and related improvements on the Real Property pursuant to all applicable laws and that, by
contributing public funds to assist in the accomplishment of such construction or by otherwise
contributing or assisting with the accomplishment of such construction, the Agency and City assume no
responsibility for insuring that the same is adequately undertaken (including, without limitation, the
existence and/or remediation of any hazardous or toxic substances on the Real Property); and, as a
material consideration to Agency and City for entering into the Loan Agreement (and not by way of
limiting the generality of Section 3.8 above), Developer agrees to indemnifY, protect, defend and hold
harmless Agency and City and all their representatives, officers, employees and their respective
successors from and against any and all claims, damages, actions, demands, liabilities, obligations,
expenses, losses or costs, including, without limitation, reasonable attorneys' fees and court costs, which
may arise or in any manner are connected with the construction of the Project pursuant to the HOME
Funds Agreement, excluding, however, from Developer's indemnity any such liability, losses, damages
(including foreseeable or unforeseeable consequential damages), penalties, fines, expenses (including out-
of-pocket litigation costs and reasonable attorneys' fees) arising out of the sole negligence of Agency,
City or their employees, contractors, subcontractors or agents.
3.10 Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of persons, on
account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the enjoyment of
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the Real Property, nor shall Developer itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Real
Property or any portion thereof. Developer shall further comply with all applicable requirements of the
Americans with Disabilities Act ("ADA").
3.11 Form of Nondiscrimination and Nonsel!fel!ation Clauses.
Developer shall refrain from restricting the rental, sale, or lease of any portion of the Real
Property, or contracts relating to the Real Property, on the basis of race, color, creed, religion, sex, marital
status, ancestry, or national origin of any person and shall comply with all applicable requirements for the
ADA. All such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there shall be
no discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, subl~ase, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any
persons claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sub lessees, or vendees in the land herein conveyed and further covenants that
all such individuals and entities shall comply with all requirements of the Americans with Disabilities Act
of 1990, as the same may be amended from time to time (42 V.S.C. 912101, et seq.). The foregoing
covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through him, and this lease is
made and accepted upon and subject to the following conditions: 'That there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure,
or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or
through him, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants,
or vendees in the land herein lease and the lease shall be carried out in compliance with all requirements
of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42
V.S.c. 912101, etseq.).'"
c. In contracts: "There shall be no discrimination against or segregation of any persons or
group of persons on account ofrace, color, creed, religion, sex, marital status, ancestry, or national origin
in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself,
or any person claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sublessees, or vendees of land and all such activities shall be conducted in
compliance with all the requirements of the Americans with Disabilities Act of 1990, as the same may be
amended from time to time (42 V.S.C. 912101, et seq.)."
ARTICLE 4 - Breach
4.1 Breach bv Al!encv or City.
DOC soa989729vl \ 24036.0030
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II
16-69
If Agency or City breaches any of its covenants contained in this Agreement, Developer will have
available to it all legal and equitable remedies afforded by the laws of the State of California. This
section shall not be construed as a waiver of any the City's immunities.
4.2 Breach bv Developer of Rent Limit Reauirements.
If, with respect to any Affordable Apartment, Developer breaches this Agreement by charging
higher rent than that herein permitted, Developer will, immediately upon Agency's or City's demand, (i)
reduce the rent to that permitted herein and (ii) refund to any tenants who theretofore paid such higher
rent the amount of the excess, together with interest hereon at the rate of ten (10) percent per annum,
computed from the date(s) of payment of the excess by said tenants to the date of said refund. The
provisions of this Section constitute a third-party beneficiary contract in favor of such tenants. Further,
Agency and City are hereby granted the power (but not the duty) to act as attorney-in-fact of such tenants
in enforcing this Section.
4.3 Breach by Developer of Leasing Requirements.
If, with respect to any Affordable Apartment, Developer breaches this Agreement by leasing to
tenants who are not qualified pursuant to Section 2.2, Developer will, immediately upon Agency's or
City's written demand and at Developer's sole cost, take all lawful steps to terminate such leasing.
4.4 Breach bv Develooer of Other Reauirements.
If the Developer breaches any of its covenants contained in this Agreement, the City and the
Agency will have available to it all legal and equitable remedies afforded by the laws of the State of
California in addition to any remedies provided herein.
4.5 Remedies Not Exclusive.
The remedies set forth in Sections 4.2 and 4.3 are not exclusive, but are in addition to all legal or
equitable remedies otherwise available to Agency and City.
ARTICLE 5 - General Provisions
5.1 Assignment.
The rights and obligations of Developer under this Agreement may be transferred or assigned,
provided such transfer or assignment is made as a part of the conveyance of the fee of all or a portion of
the Real Property. Any such transfer or assignment will be subject to the provisions of this Agreement.
During the term of this Agreement, any such assignee or transferee will observe and perform all of the
duties and obligations of Developer contained in this Agreement as such duties and obligations pertain to
the portion of said real property so conveyed.
5.2 Amendment or Termination of Agreement.
5.2.1 By Mutual Consent. This Agreement may be amended from time to time or terminated by
the mutual consent of the parties hereto, but only in the same manner as its adoption. The term "this
Agreement" includes any such amendment properly approved and executed.
5.2.2 Earlv Termination Uoon Failure of Financing Contingencv. This Agreement shall
automatically terminate in the event Apartment Developer is unable to secure the Low Income Financing
DOC S0C\989729vl \ 24036.0030
HSRGB Doc 327324_4 6/14/07
12
16-70
on or before Julv I, 2008, or if Developer provides written notice to the City (at any time prior to such
date) that Apartment Developer is no longer seeking or is unable to secure the Low Income Financing. In
such event, Developer shall fulfill the low income requirements set forth in the Master Affordable
Housing Agreement in accordance with the Existing Regulatory Agreement.
5.3 Enforcement.
Unless amended or terminated as provided in Section 5.2, this Agreement is enforceable by any
party to it despite a change in the applicable general or specific plans, zoning, subdivision or building
regulations adopted by City which alter or amend the rules, regulations or policies governing permitted
uses of the land, density and design.
5.4 Binding Effect of Agreement.
The burdens of this Agreement bind and the benefits of the Agreement inure to the parties'
successors or assignees in interest.
5.5 Relationshio of Parties.
It is understood that the contractual relationship between Agency, City and Developer is such that
Developer is an independent contractor and not an agent of Agency or City.
5.6 Notices.
All notices, demands or requests provided for or permitted to be given pursuant to this Agreement
must be in writing. All notices, demands or requests to be sent to any party shall be deemed to have been
properly given or served if personally served or deposited in the United States mail, addressed to such
party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified
herein as the places of business for each of the designated parties.
Agencv/Citv:
Redevelopment Agency of the City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: Community Development Director
With a Coov to:
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Attorney
Develooer:
Shea Homes
9990 Mesa Rim Road
San Diego, California 92121
Attn: Jim Kilgore
DOC soa989729vl \ 24036.0030
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13
16-71
With a CODV to:
Brookfield Shea Otay LLC
12865 Pointe Del Mar, Suite 200
Del Mar, California 92014
Attention: Ron Grunow
A party may change its address by giving notice in writing to the other party. Thereafter, notices,
demands and requests shall be addressed and transmitted to the new address.
ARTICLE 6 - Conflicts of Law
6.1 Conflict of City and State or Federal Laws.
In the event that state or federal laws or regulations enacted after this Agreement has been entered
into prevent or preclude compliance with one or more provisions of this Agreement or require changes in
plans, maps or permits approved by the City, the parties will:
6.1.1 Notice and CODies: Provide the other party with written notice of such state or federal
restriction; provide a copy of such regulation or policy and statement of conflict with the provisions of
this Agreement.
6.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good faith
in a reasonable attempt to modifY this Agreement to comply with such federal or state law or regulation.
6.2 Agencv Board and City Council Hearings.
Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or
state law or regulation upon this Agreement, the matter will be scheduled for consideration by the
governing board of the Agency and the City Council. The Agency and City Council, at such meeting, will
determine the exact modification or suspension which shall be necessitated by such federal or state law or
regulation. Developer, at the meeting, will have the right to offer oral and written testimony. Any
modification or suspension will be taken by the affirmative vote of not less than a majority of the
authorized voting members of the governing board of the Agency and City Council.
6.3 Cooperation in Securing Permits.
The Agency and City shall cooperate with the Developer in the securing of any permits which
may be required as a result of such modifications or suspensions.
ARTICLE 7 - Miscellaneous Provisions
7.1 Rules of Construction.
The singular includes the plural and the neuter gender includes the masculine and the feminine.
7.2 Severability.
The parties hereto agree that the provisions are severable. If any provision of this Agreement is
held invalid, the remainder of this Agreement will be effective and will remain in full force and effect,
unless amended or modified by mutual consent of the parties.
DOC SOC\989729vl \ 24036.0030
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7.3 Entire Agreement Waivers and Amendments.
Except for the Regulatory Agreement, this Agreement, together with any other written document
referred to or contemplated herein, embody the entire agreement and understanding between the parties
relating to the Low Income Apartments. Neither this Agreement nor any provision hereof may be
amended, modified, waived, or discharged, except by an instrument in writing executed by the party
against which enforcement or such amendment, waiver, or discharge is sought.
7.4 Caoacities of Parties.
Each signatory and party hereto hereby warrants and represents to the other party that it has legal
authority and capacity and direction from its principal to enter into this Agreement and that all resolutions
or other actions have been taken so as to enable it to enter into this Agreement.
7.5 Governing LawNenue.
This Agreement shall be governed by and construed in accordance with the laws of the State of
California. Any action arising under or relating to this Agreement shall be brought only in the Federal or
State courts located in San Diego County, State of California and, if applicable, the City of Chula Vista or
as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of
Chula Vista.
[NEXT PAGE IS SIGNATURE PAGE]
DOC SOC\989729vl \ 24036.0030
HSRGB Doc 327324_4 6/14/07
15
16-73
IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed as of
the day and year first written above.
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA, a public body, corporate and politic
By:
Its: Chair
ATTEST:
Agency Secretary
"CITY"
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
Its: Mayor
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
City and Agency Attorney
DOC S0C\989729vl \ 24036.0030
S-I
16-74
"DEVELOPER"
BROOKFIELD SHEA OTAY LLC, a California limited
liability company
BY: BROOKFIELD OTAY LLC, a Delaware limited
liability company, a Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
BY: SHEA OTAY II LLC, a California limited
liability company, a Member
BY: SHEA HOMES LIMITED PARTNERSHIP,
a California limited partnership, its sole
Member
By:
Name:
Its Authorized Agent:
Date:
By:
Name:
Its Authorized Agent:
Date:
DOC SQC\989729vl \ 24036.0030
S-2
16-75
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized
capacity(ies), and that by hislher/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized
capacity(ies), and that by hislher/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
DOC SQC\989729vl \ 24036.0030
16-76
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
DOC soa989729vl \ 24036.0030
16-77
EXHIBIT "A"
Legal Description of Project
All that certain real property situated in the City of Chula Vista, County of San Diego, State of
California, described as follows:
Lot I of CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE II
NEIGHBORHOODS MU-I AND R-19, in the City ofChula Vista, County of San Diego,
State of California, according to Map thereof No. , filed with the County
Recorder of San Diego County.
DOC SOC\989729vl \ 24036.0030
16-78
DOC SOC\989729vl \ 24036.0030
EXHIBIT "B"
Low Income Financing Requirements
[To be attached]
16-79
Attachment 4
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista CA 91910
Attn: City Clerk
No fee for recording pursuant to
Government Code Section 27383
(Space above for Recorder's Use)
FIRST AMENDMENT TO
AFFORDABLE HOUSING REGULATORY AGREEMENT
THIS FIRST AMENDMENT TO AFFORDABLE HOUSING REGULATORY
AGREEMENT (this "Amendment") is entered into as of ,2007, between the CITY OF
CHULA VISTA, a municipal corporation ("City"), and BROOKFIELD SHEA OTAY LLC, a
California limited liability ("Developer"), and/or its successors or assignees. Unless otherwise
defined herein, capitalized terms shall have the same meaning as ascribed in the Regulatory
Agreement.
Recitals
A. Developer is the legal owner of the fee title to the real property which is described in
the attached Exhibit "A," which is hereby incorporated herein (the "Real Property").
B. Developer and City have entered into that certain Affordable Housing Regulatory
Agreement, recorded December I, 2006, as Document No. 2006-0855757 ("Regulatory
Agreement"). The Regulatory Agreement is intended to satisfy the requirements of City Council
Resolution 2003-492 and that certain Affordable Housing Agreement previously entered into by the
City and Developer and recorded February 24, 2003, as Document No. 2003-0200562 ("Master
Affordable Housing Agreement"). Although the Master Affordable Housing Agreement allows the
affordable housing obligations to be met through a combination of housing types that may include
rental housing, "for-sale" housing or other forms of housing, the Regulatory Agreement currently
requires Developer to provide ninety-two (92) units affordable to Low Income Buyers and one
hundred fifteen (115) units affordable to Moderate Income Buyers on a "for-sale" basis.
C. Subsequent to the recordation of the Regulatory Agreement, Developer proposed an
alternative to the original project that would allow the 92 units for low-income households ("Low
Income Units") to be rental housing rather than for-sale housing. A developer with expertise in low-
income rental housing ("Apartment Developer") has been selected by Developer to develop and
construct the Low Income Units as a low-income apartment project ("Apartment Project"). It is
anticipated that Apartment Developer or one of its affiliates would ultimately own and operate the
-1-
61800-180 327345_2
16-80
Apartment Project. The City tentatively approved the Apartment Project alternative on March 20,
2007, subject to Apartment Developer being able to secure various state and local subsidies and tax
credits for the Apartment Project, including a subsidy from the State of California Multi-family
Housing Program (collectively, "Low Income Financing").
D. Developer and the City intend to enter into a separate "Affordable Housing
Agreement" ("For-Rent Agreement") that allows Developer to meet the low-income housing
requirements through the development of the Apartment Project. Upon execution of the For-Rent
Agreement and thereafter until it is terminated early pursuant to Section 5.2.2 of the For-Rent
Agreement ("Early Termination"), the provisions of the For-Rent Agreement shall control and
supersede all of the provisions in the Regulatory Agreement relating to the Low Income Units.
E. An amendment to the Regulatory Agreement is needed to allow Developer to meet
the low-income housing requirements through implementation of the For-Rent Agreement or, in the
event the For-Rent Agreement is terminated, through implementation of the Regulatory Agreement.
F. Developer and the City also acknowledge that current market conditions may result in
a lengthy marketing period for the sale of the Affordable Units. Rather than allowing such
Affordable Units to remain vacant, the City agrees that Developer may rent the Affordable Units to
qualified Low or Moderate Income households on an interim basis, subject to the provisions set forth
in Section 2 below.
G. Developer and the City desire to amend the Regulatory Agreement to address these
and other items.
NOW THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE TO AMEND
THE REGULATORY AGREEMENT AS FOLLOWS:
I. Low-Income Requirements - Alternative Comoliance. The Regulatory Agreement is
amended to allow for alternative compliance mechanisms to meet the low-income requirement set
forth in the Master Affordable Housing Agreement as follows:
(a) Prior to Execution ofF or-Rent Agreement. Prior the execution of the For-Rent
Agreement, the Regulatory Agreement shall be the exclusive mechanism for implementing the low-
income requirements set forth in the Master Affordable Housing Agreement.
(b) After Execution of For-Rent Agreement. Upon execution of the For-Rent
Agreement, and thereafter while the For-Rent Agreement remains in effect, the provisions of the For-
Rent Agreement shall control and supersede all of the provisions of the Regulatory Agreement
relating to the Low Income Units. While the For-Rent Agreement is in effect, the provisions of the
Regulatory Agreement relating to the Low Income Units shall have no force and effect. If and when
the funds associated with the Low Income Financing are secured, as verified by the City, the
provisions of the Regulatory Agreement relating to the Low Income Units shall permanently
terminate, have no further force and effect and shall be replaced by the F or-Rent Agreement.
(c) Earlv Termination of For-Rent Agreement. In the event of Early Termination
of the For-Rent Agreement (pursuant to Section 5.2.2 of the For-Rent Agreement) as a result of
. -2- 61800-180 327345_2
1 6-81
Apartnient Developer's failure to meet the Low Income Financing contingency, the provisions of the
Regulatory Agreement relating to the Low Income Units shall become operative and be utilized to
fulfill the low-income requirements set forth in the Master Affordable Housing Agreement.
2. Interim For-Rent Option. The Regujatory Agreement is amended to allow the
Affordable Units to be rented on an interim basis as follows:
(a) Marketing Period. In the event Developer has been unable to sell an
Affordable Unit within one hundred twenty (120) days after such Affordable Unit is first marketed to
Affordable Buyers, Developer may request approval from the City to rent such Affordable Unit to a
qualified Low or Moderate Income household, as the case may be. The Developer should submit
documentary evidence to the Housing Manager of the City's Community Development Department,
which in the opinion of the Housing Manager, demonstrated a good faith effort by the Developer to
market and sell the Affordable Unit, but resulted unsuccessfully based on the existing market
conditions and other relevant factors..
(b) Oualification. The Affordable Units shall be rented only to qualified
households whose annual income, adjusted for household size, is at or below 60% of Area Median
Income (for Low Income Units) or 110% of Area Median Income (for Moderate Income Units) as
reasonably verified by the City. Such Affordable Units shall also be subject to any additional
qualification, monitoring and reporting requirements imposed by the City.
(c) Limited Lease Term. The lease term of any Affordable Unit rented to a
qualified household pursuant to this Section shall not exceed one (1) year, but may be extended for
periods not exceeding one (1) year each, provided that, prior to the expiration of the then current
lease term, the Developer submits to the Housing Manager of the City's Community Development
Department documentary evidence, which in the opinion of the Housing Manager, demonstrates a
good faith effort by the Developer to continue to market and sell the Affordable Unit or that such
effort would be unsuccessful based on the existing market conditions and other relevant factors.
(d) Rent-to-Own Arrangements. Developer may enter into a rent-to-own
transaction with qualified Low or Moderate Income households with the City's prior written consent
and approval of the documentation that will be utilized for such transaction( s).
3. Application of Oualification Criteria. Section 3.16 of the Regulatory Agreement is
deleted in its entirety and replaced with the following:
"3.16 Application of Oualification Criteria. The Housing Manager
of the City's Community Development Department may allow one or
more qualification criteria set forth in Section 3.15 to not apply to a
particular sale of an Affordable Unit if for a period of 120 days
Developer has not been able to sell the Affordable Unit to an
Affordable Buyer who could meet all of the qualification criteria set
forth in Section 3.15."
4. Scope of Amendment. As amended by this Amendment, the Regulatory Agreement
remains in full force and effect.
-3-
61800-180 327345_2
16-82
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be executed
as ofthe day and year fIrst written above.
"CITY":
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
Cheryl Cox, Mayor
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
Ann Moore, City Attorney
-4-
61800-180 327345_2
16-83
"DEVELOPER":
BROOKFIELD SHEA OTAY LLC, a California limited
liability company
BY: BROOKFIELD OTAY LLC, a Delaware limited
liability company, a Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
BY: SHEA OTA Y 1I LLC, a California limited liability
company, a Member
BY: SHEA HOMES LIMITED PAR1NERSHIP, a
California limited partnership, its sole
Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
-5-
61800~180 327345_2
16-84
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
All that certain real property situated in the City of Chula Vista, County of San Diego, State of
California, described as follows:
Lot I of CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE 11
NEIGHBORHOODS MU-I AND R-19, in the City ofChula Vista, County of San Diego,
State of California, according to Map thereof No. . filed with the County
Recorder of San Diego County.
-6-
61800.}80327345_2
16-85
City of Chula Vista
Request for Information
Affordable Housing Review
ATTACHMENTS
DISCLOSURE STATEMENT
(Please Print)
The following information must be disclosed:
1. Aoollcant . List the names and addresses of all persons having a financial interest In the application.
Ii_:~~~~~:~~:~}~?f.~:te:~! ,7t~:~~~;~J~~~i~~ .~, ~~~~~.t~__
~~~~~... ,..",-<_~~"~",_>=,,,-,>.: r ~_ _e;,~.,-,~ .:;.:~l""=~;::.;.~~< ,"-.' , .~..~;r.. ,--'.~
James J. Schmid 5993 Avenida Encinas. Suile 101
Carlsbad CA 92008
2. Qml!!:. List the names and addresses of all persons having any ownershlp interest In the property
involved.
5993 Avenida Encinas. Suite 101
Carlsbad. CA 92008
Prometheus-Landings, LLC. a to-be-formed limited 5993 Avenida Encinas, Suite 101
Ilsbill com Carlsbad. CA 92008
3. If any person Identified pursuant to (1) or (2) above Is a corporation or partnership, list the names and
addresses of all individuals owning more than 10% of \he shares in the shares of the corporation or
owning any partnership interest in the partnership,
~~t;i~r~5F,~ ,-c~:'~~~~~)ti:l.o ~ ~~.,. ?-~~ ~~~ ~ ";t;_~~{~~~~Dt~~~=.~~~~~~9Jg~J,~{,-:~~~:~~
~~W~~,,:,~_,,',"$:'~ *"."-~i:t'~,,""71~ . ~,_ _-.''4.'>.'' ~ ~,,~ e'l;;'T-~~"''''~~~4--,"",~w.-Sk~~'''~.{::~~0<''I~~';~
4. If any person Identified pursuant to (1) or (2) above is a non-profit organization or a trust, list the
names and addresses of any person serving as officer or director of the non-profit organization or as
a trustee or benefICiary of the trust.
Community Development Housing Divlslon
276 FOURTH AVE . CHULA VISTA' CALIFORflr!dt10 . (619) 585-5722 . FAX (619) 585 -5698
blSCLOSURE STATEMENT
PAGE 2
5. Have you had more than $250 worth of business transacted with any member of City staff. Boards.
Commissions. Committees and/or City Council wlthin the past twelve months?
YesO
No
IXI
If yes. please indicate person(s):
Person identified as: "Any individual, firm. co-partnership. joint venture, association, social club,
fraternal organization, corporation, estate trust. receiver, syndicate. this and any other county,
city municipality, district or other political subdivision. or any other group or combination acting
as a unit."
NOTE: Attach additional pages as necessary.
2 -/~-07
Date
-::;;;;,,~S -:T ~,l#f1'E/
Print or Type Name
'2-1'/-07
Date
Community Development Housing Division
276 FOURTH AVE' CHULA VISTA' CAUFORNIA 91910' (619) 585-5722 . FAX (619) 585 -5698
16-87
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROPRIATING $960,000 FROM HOME
INVESTMENT PARTNERSHIP FUNDS FOR FINANCIAL
ASSISTANCE FOR THE DEVELOPMENT OF THE LANDINGS
AFFORDABLE APARTMENTS, AUTHORIZING THE CITY
MANAGER TO EXECUTE A LOAN AGREEMENT BETWEEN
THE CITY OF CHULA VISTA AND CIC LANDINGS, L.P. AND
ALL OTHER AGREEMENTS AND DOCUMENTS NECESSARY
FOR THE FINANCING OF THE PROPOSED LANDINGS
AFFORDABLE APARTMENTS, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AMENDMENT TO THE
EXISTING AFFORDABLE HOUSING REGULATORY
AGREEMENT FOR THE 115 AFFORDABLE FOR-SALE UNITS
AND A NEW AFFORDABLE HOUSING AGREEMENT FOR
THE 92 AFFORDABLE RENTAL UNITS IN NEIGHBORHOOD
R-19 IN OT A Y RANCH VILLAGE ELEVEN.
WHEREAS, Brookfield Shea Otay, LLC proposed to build 207 affordable for-sale units (92
low-income and 115 moderate-income) in Neighborhood R-19 ofOtay Ranch Village Eleven to
satisfy its affordable housing obligations; and
WHEREAS, the City and Brookfield Shea entered into an Affordable Housing Regulatory
Agreement (the "Regulatory Agreement") to assure the continued affordability of the units; and
WHEREAS, Brookfield Shea desires to revise the development so that the 92 low-income
units will be rental units rather than for-sale units; and
WHEREAS, the Landings Affordable Apartments will provide 92 affordable rental units: and
WHEREAS, the City and Brookfield Shea wish to amend the Affordable Housing Regulatory
Agreement to apply only to the 115 moderate-income for-sale units; and
WHEREAS, the City and Brookfield Shea wish to enter into an additional Affordable
Housing Agreement to apply to the 92 low-income rental units; and
WHEREAS, on March 20,2007, pursuant to Resolution No. 2007-064, the City Council
conditionally approved financial assistance, subject to future appropriation, in an amount not to
exceed $920,000 from the City's HOME Investment Partnership Program (HOME) funds for the
development ofthe Landings Affordable Apartments subject to the City's approval ofan affordable
housing regulatory agreement and a loan agreement and certain minimum conditions.
16-88
Resolution No. 2007-
Page 2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista as
follows:
I. That it appropriates $960,000 from HOME Investment Partnership funds for financial
assistance for the development of the Landings Affordable Apartments.
2. That it authorizes the City Manager to execute a loan agreement between the City of
Chula Vista and CIC Landings, L.P. and all other agreements and documents necessary for the
financing of the Landings Affordable Apartments.
3. That it authorizes the City Manager to execute an amendment to the existing Affordable
Housing Regulatory Agreement for the liS affordable for-sale units and a new Affordable Housing
Agreement for the 92 affordable rental units in neighborhood R-19 in Otay Ranch Village Eleven.
Presented by
Approved as to form by
Ann Hix
Acting Director of Community
Development
,!~ j (/A~
Ann Moore
City Attorney
J:\Altomey\RESQICOMM DEV\FINANClAL (LANDINGS) 8-7,07,doc
16-89
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE ISSUANCE OF BONDS BY
THE HOUSING AUTHORITY OF THE CITY OF CHULA
VISTA FOR THE PROPOSED DEVELOPMENT OF THE
LANDINGS AFFORDABLE APARTMENTS PURSUANT TO
SECTION 147(F) OF THE INTERNAL REVENUE CODE OF
1986
WHEREAS, on July 17, 2007, pursuant to Housing Authority Resolution No. 2007-034,
the Housing Authority of the City of Chula Vista (the "Authority") declared its intention to issue
multifamily housing revenue bonds not to exceed $17,500,000 aggregate principal amount (the
"Bonds") to finance the development of a 92-unit multifamily rental housing project (the
"Project") located at the comer of Discovery Falls Road and Crossroads Street in Otay Ranch
Village 11 in the City of Chula Vista to be owned by CIC Landings, L.P.; and
WHEREAS, pursuant to Section 147(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), the elected representative of the governmental unit having jurisdiction
over the area in which the Project is located is required to approve the Bonds after a public
hearing following reasonable public notice; and
WHEREAS, the Project is located within the City ofChula Vista (the "City"); and
WHEREAS, the City Council of the City (the "City Council") is the elected legislative
body and representative of the City; and
WHEREAS, on July 20,2007, the City caused a notice to appear in the Star News, which
is a newspaper of general circulation in the City, to the effect that a public hearing would be held
by the City Council on August 7, 2007, regarding the issuance of the Bonds by the Authority;
and
WHEREAS, on August 7, 2007, the City Council held the public hearing, at which time
an opportunity was provided to present arguments both for and against the issuance of the Bonds.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Chula
Vista, as follows:
1. That it finds and declares that the above recitals are true and correct.
2. That it approves the issuance of the Bonds by the Authority, in an aggregate principal
amount not to exceed $17,500,000 and with a final maturity not later than 45 years from the date
of issuance, to finance the proposed development of the Landings Affordable Apartments.
16-90
COllncil Resolution No. 2007-
Page 2
3. That it intends that this Resolution constitute the approval of the issuance of the Bonds
by the applicable elected representative of the governmental unit having jurisdiction over the
area in which the Project is located, in accordance with Section 147(f) of the Code.
Presented by
Approved as to form by
Ann Hix
Acting Director of Community Development
~~~ !l/:~
Ann Moore
City Attorney
JIAllom,ylRESOICOMM DEVITEFRA (LANDINGS) 8-7-07.DOC
16-91
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~~tLC~6
Ann Moore
City Attorney
Dated: '7 ! ? 0 I 0 '1
First Amendment to
Affordable Housing Regulatory Agreement
Between
City of Chula Vista
And
Brookfield Shea Otay LLC
16-92
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista CA 91910
Attn: City Clerk
No fee for recording pursuant to
Government Code Section 27383
(Space above for Recorder's Use)
FIRST AMENDMENT TO
AFFORDABLE HOUSING REGULATORY AGREEMENT
THIS FIRST AMENDtvfENT TO AFFORDABLE HOUSING REGULATORY
AGREEMENT (this "Amendment") is entered into as of ,2007, between the CITY OF
CHULA VISTA, a municipal corporation ("City"), and BROOKFIELD SHEA OTAY LLC, a
California limited liability ("Developer"), and/or its successors or assignees. Unless otherwise
defined herein, capitalized terms shall have the same meaning as ascribed in the Regulatory
Agreement.
Recitals
A. Developer is the legal owner of the fee title to the real property which is described in
the attached Exhibit "A," which is hereby incorporated herein (the "Real Property").
B. Developer and City have entered into that certain Affordable Housing Regulatory
Agreement, recorded December I, 2006, as Document No. 2006-0855757 ("Regulatory
Agreement"). The Regulatory Agreement is intended to satisfy the requirements of City Council
Resolution 2003-492 and that certain Affordable Housing Agreement previously entered into by the
City and Developer and recorded February 24, 2003, as Document No. 2003-0200562 ("Master
Affordable Housing Agreement"). Although the Master Affordable Housing Agreement allows the
affordable housing obligations to be met through a combination of housing types that may include
rental housing, "for-sale" housing or other forms of housing, the Regulatory Agreement currently
requires Developer to provide ninety-two (92) units affordable to Low Income Buyers and one
hundred fifteen (115) units affordable to Moderate Income Buyers on a "for-sale" basis.
C. Subsequent to the recordation of the Regulatory Agreement, Developer proposed an
alternative to the original project that would allow the 92 units for low-income households ("Low
Income Units") to be rental housing rather than for-sale housing. A developer with expertise in low-
income rental housing ("Apartment Developer") has been selected by Developer to develop and
construct the Low Income Units as a low-income apartment project ("Apartment Project"). It is
anticipated that Apartment Developer or one of its affiliates would ultimately own and operate the
-1-
61800-180 327345_2
16-93
Apartment Project. The City tentatively approved the Apartment Project alternative on March 20,
2007, subject to Apartment Developer being able to secure various state and local subsidies and tax
credits for the Apartment Project, including a subsidy from the State of California Multi-family
Housing Program (collectively, "Low Income Financing").
D. Developer and the City intend to enter into a separate "Affordable Housing
Agreement" ("For-Rent Agreement") that allows Developer to meet the low-income housing
requirements through the development of the Apartment Project. Upon execution of the For-Rent
Agreement and thereafter until it is terminated early pursuant to Section 5.2.2 of the For-Rent
Agreement ("Early Termination"), the provisions of the For-Rent Agreement shall control and
supersede all of the provisions in the Regulatory Agreement relating to the Low Income Units.
E. An amendment to the Regulatory Agreement is needed to allow Developer to meet
the low-income housing requirements through implementation of the For-Rent Agreement or, in the
event the F or-Rent Agreement is terminated, through implementation of the Regulatory Agreement.
F. Developer and the City also acknowledge that current market conditions may result in
a lengthy marketing period for the sale of the Affordable Units. Rather than allowing such
Affordable Units to remain vacant, the City agrees that Developer may rent the Affordable Units to
qualified Low or Moderate Income households on an interim basis, subject to the provisions set forth
in Section 2 below.
G. Developer and the City desire to amend the Regulatory Agreement to address these
and other items.
NOW THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE TO AMEND
THE REGULATORY AGREEMENT AS FOLLOWS:
1. Low-Income Requirements - Alternative Compliance. The Regulatory Agreement is
amended to allow for alternative compliance mechanisms to meet the low-income requirement set
forth in the Master Affordable Housing Agreement as follows:
(a) Prior to Execution of For-Rent Agreement. Prior the execution of the For-Rent
Agreement, the Regulatory Agreement shall be the exclusive mechanism for implementing the low-
income requirements set forth in the Master Affordable Housing Agreement.
(b) After Execution of For-Rent Agreement. Upon execution of the For-Rent
Agreement, and thereafter while the F or-Rent Agreement remains in effect, the provisions of the For-
Rent Agreement shall control and supersede all of the provisions of the Regulatory Agreement
relating to the Low Income Units. While the For-Rent Agreement is in effect, the provisions of the
Regulatory Agreement relating to the Low Income Units shall have no force and effect. If and when
the funds associated with the Low Income Financing are secured, as verified by the City, the
provisions of the Regulatory Agreement relating to the Low Income Units shall permanently
terminate, have no further force and effect and shall be replaced by the For-Rent Agreement.
(c) Earlv Termination ofFor-Rent Agreement. In the event of Early Termination
of the For-Rent Agreement (pursuant to Section 5.2.2 of the For-Rent Agreement) as a result of
-2. 61800.]80 327345_2
16-94
Apartment Developer's failure to meet the Low Income Financing contingency, the provisions of the
Regulatory Agreement relating to the Low Income Units shall become operative and be utilized to
fulfill the low-income requirements set forth in the Master Affordable Housing Agreement.
2. Interim For-Rent Option. The Regulatory Agreement is amended to allow the
Affordable Units to be rented on an interim basis as follows:
(a) Marketing Period. In the event Developer has been unable to sell an
Affordable Unit within one hundred twenty (120) days after such Affordable Unit is first marketed to
Affordable Buyers, Developer may request approval from the City to rent such Affordable Unit to a
qualified Low or Moderate Income household, as the case may be. The Developer should submit
documentary evidence to the Housing Manager of the City's Community Development Department,
which in the opinion of the Housing Manager, demonstrated a good faith effort by the Developer to
market and sell the Affordable Unit, but resulted unsuccessfully based on the existing market
conditions and other relevant factors..
(b) Oualification. The Affordable Units shall be rented only to qualified
households whose annual income, adjusted for household size, is at or below 60% of Area Median
Income (for Low Income Units) or 110% of Area Median Income (for Moderate Income Units) as
reasonably verified by the City. Such Affordable Units shall also be subject to any additional
qualification, monitoring and reporting requirements imposed by the City.
(c) Limited Lease Term. The lease term of any Affordable Unit rented to a
qualified household pursuant to this Section shall not exceed one (1) year, but may be extended for
periods not exceeding one (1) year each, provided that, prior to the expiration of the then current
lease term, the Developer submits to the Housing Manager of the City's Community Development
Department documentary evidence, which in the opinion of the Housing Manager, demonstrates a
good faith effort by the Developer to continue to market and sell the Affordable Unit or that such
effort would be unsuccessful based on the existing market conditions and other relevant factors.
(d) Rent-to-Own Arrangements. Developer may enter into a rent-to-own
transaction with qualified Low or Moderate Income households with the City's prior written consent
and approval of the documentation that will be utilized for such transaction(s).
3. Application ofOualification Criteria. Section 3.16 ofthe Regulatory Agreement is
deleted in its entirety and replaced with the following:
"3.16 Application of Oualification Criteria. The Housing Manager
of the City's Community Development Department may allow one or
more qualification criteria set forth in Section 3.15 to not apply to a
particular sale of an Affordable Unit if for a period of 120 days
Developer has not been able to sell the Affordable Unit to an
Affordable Buyer who could meet all of the qualification criteria set
forth in Section 3.15."
4. Scope of Amendment. As amended by this Amendment, the Regulatory Agreement
remains in full force and effect.
-3-
61BOO-180 327345_2
16-95
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be executed
as of the day and year first written above.
"CITY":
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
Cheryl Cox, Mayor
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
Ann Moore, City Attorney
-4-
16-96
61800-180327345_2
"DEVELOPER":
BROOKFIELD SHEA OTAY LLC, a California limited
liability company
BY: BROOKFIELD OTA Y LLC, a Delaware limited
liability company, a Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
BY: SHEA OTA Y 11 LLC, a California limited liability
company, a Member
BY: SHEA HOMES LIMITED PARTNERSHIP, a
California limited partnership, its sole
Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
-5-
61800-180327345_2
16-97
EXHIBIT A
LEGAL PROPERTY DESCRIPTION
All that certain real property situated in the City of Chula Vista, County of San Diego, State of
California, described as follows:
Lot I of CHULA VISTA TRACT NO. 01-11 OTA Y RANCH VILLAGE II
NEIGHBORHOODS MU-I AND R-19, in the City of Chula Vista, County of San Diego,
State of California, according to Map thereof No. , filed with the County
Recorder of San Diego County.
-6-
61800.180 327345_2
16-98
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~~ it __J:~
Ann Moore
City Attorney
Dated:
l/"J>O! 0-1
Affordable Housing Agreement
Between
City of Chula Vista
and
Brookfield Shea Otay LLC
16-99
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Redevelopment Agency of the City ofChula Vista
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Altn: City Clerk
No fee for recording pursuant to
GOVERNMENT CODE Section 27383
(Space above for Recorder's Use)
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is entered into as of_
, 2007, between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA
VISTA, a public body, corporate and politic ("Agency"), the CITY OF CHULA VISTA, a municipal
corporation ("City"), and BROOKFIELD SHEA OTAY LLC, a California limited liability company
("Developer"), and/or its successors or assignees.
ARTICLE 1 - Recitals
1.1 Authority.
Agency is a public body, corporate and politic, exercising governmental functions and powers
and organized and existing under the Community Redevelopment Law of the State of California
(HEALTH AND SAFETY CODE Section 33000, et seq.). City is a municipal corporation, organized and
existing under the laws of the State of California. Agency and City are authorized to enter into binding
agreements for the purpose of protecting public health, safety, and welfare.
1.2 Develooer: Pr01?ertv.
Developer is the legal owner of the fee title to the real property located in the City ofChula Vista,
which is described in the attached Exhibit A, which is hereby incorporated herein (the "Real Property").
The Real Property is currently unimproved. This agreement is intended to apply to the rental project on
this property, of which a Final Map is forthcoming.
1.3 Project.
Developer proposes to construct a multifamily housing project with 92 rental units in Otay Ranch
Village II (the "Project"). Each dwelling unit in the Project is referred to as a "Unit" in this Agreement.
The Project will consist of ninety-two (92) Units affordable to Low Income households at or below sixty
percent (60%) of the Area Median Income.
1.4 Master Affordable Housing Agreement - Imolementation of City Council Resolution 2003-492.
This Agreement is intended to satisfy, in part, the requirements of City Council Resolution 2003-
492 and the Affordable Housing Agreement previously entered into between Developer and the City and
DOC SOO989729vl \ 24036.0030
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I
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recorded February 24, 2003, as Document No. 2003-0200562, which requires that, as a condition to
issuance of certain building permits to the land covered by the Otay Ranch Village II Sectional Planning
Area (SPA) Plan, an "Affordable Housing Regulatory Agreement" be entered into between the City and
Developer whereby Developer agrees to provide a specified percentage of the Units as low income
housing and moderate income housing ("Master Affordable Housing Agreement"). The parties intend
that this Agreement constitute an agreement referred to in City Council Resolution 2003-492 and also
constitute an "Affordable Housing Regulatory Agreement" as described in the Master Affordable Housing
Agreement and that this Agreement satisfy Master Developer's low income affordable housing
obligations thereunder.
1.5 Existing Regulatorv Agreement.
The parties have previously entered into that certain Affordable Housing Regulatory Agreement,
recorded December 1,2006, as Document No. 2006-0855757, that satisfies Master Developer's moderate
and low income affordable housing obligations under the Master Affordable Housing Agreement (as "for-
sale" units) with respect to approximately 489 acres of land described as the "Project" in the Master
Affordable Housing Agreement (together with any existing or future amendments thereto, "Existing
Regulatory Agreement"). The parties have or will execute an amendment to the Existing Regulatory
Agreement that allows Developer to fulfill the low income requirements set forth in the Master
Affordable Housing Agreement through implementation of this Agreement. In the event this Agreement
is terminated pursuant to Section 5.2.2 below, Developer shall fulfill the low income requirements set
forth in the Master Affordable Housing Agreement in accordance with the Existing Regulatory
Agreement.
1.6 Future Owner; Financing Contingencv.
It is anticipated that the Project will be constructed, owned and operated by a developer with
expertise in low-income rental housing ("Apartment Developer"). Implementation of this Agreement is
contingent upon Apartment Developer's ability to secure various state and local subsidies and tax credits
for the Project, as described on Exbibit B attached hereto (collectively, "Low Income Financing"). As
more particularly described in Section 5.2.2 below, this Agreement shall automatically terminate in the
event Apartment Developer is unable or unwilling to secure the Low Income Financing. In such event,
Developer shall fulfill the low income requirements set forth in the Master Affordable Housing
Agreement in accordance with the Existing Regulatory Agreement.
1. 7 Standards.
The permitted uses of the Real Property, the density of use thereof, the maximum height and size
of buildings thereon, and provisions for reservations or dedication of land for public purposes and all
other standards of development of the Real Property will be consistent and remain in compliance with the
approved Design Review Committee application (DRC 05-44).
1.8 Binding on Successive Owners.
Pursuant to California GOVERNMENT CODE Section 27281.5, the parties intend that this
Agreement constitute an encumbrance against the Real Property (other than the Unrestricted Units)
which, during the Term of this Agreement, is binding on the owners and successive owners of the Real
Property (other than the Unrestricted Units) for the benefit of the City.
DOC sa0989729vl \ 24036.0030
HSRGB Doc 327324_4 6114/07
2
16-101
NOW THEREFORE, AGENCY, CITY, AND DEVELOPER HEREBY AGREE AS
FOLLOWS:
ARTICLE 2 - Low Income Housin!!:
2.1 Definitions.
For the purposes of this article, the following definitions apply:
2.1.1 "Area Median Income" means the latest median income from time to time determined
by the United States Department of Housing and Urban Development (pursuant to Section 8 of the United
States Housing Act of 1937) for the San Diego Standard Metropolitan Statistical Area and as established
by regulation of the State of California pursuant to HEALTH AND SAFETY CODE Section 50093.
2.1.2 "City Deed of Trust" means that certain deed of trust to be recorded against the portion
or the Real Property comprising the Project that secures the City Note and the HOME Funds Agreement.
2.1.3 "City Note" means that certain promissory note and loan agreement to be executed by
in connection with the City's allocation of the HOME Funds.
2.1.4 "HOME Funds Agreement" means that certain regulatory agreement entered into by the
parties in connection with the City's allocation of the HOME Funds.
2.1.5 "HOME Funds" means the nine hundred twenty thousand dollars ($920,000) in HOME
Funds allocated by the City to the Project.
2.1.6 "Low Income Tenants" means individuals or families with an income which does not
exceed sixty (60) percent of the Area Median Income, as adjusted for household size.
2.1. 7 "Low Income Apartment" means any ofthe ninety-two (92) apartment units on the Real
Property which shall be continuously occupied only by and affordable to a Low Income Tenant.
2.1.8 "Manager's Unit" means that unit on the Real Property occupied by a resident property
manager which may be exempt from occupancy restrictions.
2.1.9 "Affordable Apartment" means anyone of the apartments defined in Section 2.1.7
through 2.1.8; "Affordable Apartments" means all of such apartments collectively.
2.1.1 0 "Rent" means the total of monthly payments for all of the following: (a) use and
occupancy of the apartment unit and land and facilities associated therewith, (b) any separately charged
fees or service charges assessed by the lessor which are required of all tenants, other than security
deposits, and (c) a reasonable allowance for utilities not included in the above costs, excluding telephone
service, which takes into consideration an adequate level of service.
2.1.11 "Housing Manager" means the Housing Manager of the Agency and City.
2.2 Oualification of Tenants.
As to the Affordable Apartments, the following will apply:
2.2.1 Low Income Aoartments. Developer shall restrict the occupancy and rental rate of the
ninety two (92) Low Income Apartments (other than the Manager's Unit) to Low Income Tenants. Each
DOC S00989729vl \ 24036.0030
HSRGB Doc 327324_46114107
3
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three-bedroom Low Income Apartment will be leased to a household of up to six persons, meeting the
maximum income levels.
2.3 Monthlv Rent.
As to the Affordable Apartments, the following will apply:
2.3.1 Calculation of Maximum Low Income Rent. The monthly rent charged for all the Low
Income Apartments shall not exceed one-twelfth of the amount obtained by multiplying 30 percent times
60 percent of the Area Median Income, as adjusted for household size appropriate to the unit as specified
in Section 2.3.2. The Maximum Low Income Affordable Rent of a Low Income Apartment shall include
use and occupancy of a housing unit and associated land and facilities, less a reasonable utility allowance.
2.3.2 Unit Sizes and AOOfooriate Household Sizes. Calculation of the Low Income Affordable
Rent shall be based upon an assumed household size of four (4) persons for each three- (3 -) bedroom unit,
notwithstanding the actual size of the household that rents the Affordable Apartment. If Tax Credit
requirements differ, the Tax Credit standards shall apply.
2.4 Proof of Qualification.
Developer will obtain from each person(s) to whom Developer rents an Affordable Apartment a
"Supplemental Rental Application" ("Application") in the form of Exhibit B attached hereto and
incorporated herein (or such other form as Agency and City may from time to time adopt and of which
Agency and City notify Developer in writing). Developer will be entitled to rely on the Application and
the supporting documents thereto in determining the eligibility of such person(s) to rent such Affordable
Apartment. Developer will retain the Application and supporting documents for a period of at least three
years after the applicant thereof ceases to occupy such Affordable Apartment.
Copies of the most recent Applications for Low Income Tenants commencing or continuing
occupancy of an Affordable Apartment shall be attached to the semi-annual report to be filed with the
Agency and City in compliance with Section 2.5 of this Agreement.
An Affordable Apartment occupied by a qualified tenant who at the commencement of the
occupancy qualifies as a low income household shall be treated as occupied by a Low Income Tenant
until a recertification of such tenant's income in accordance with Section 2.4.1 below demonstrates that
such tenant no longer qualifies as a Low Income Tenant in accordance with the standards set forth in this
Article 2.
2.4.1 Recertification of Income. Immediately prior to the first anniversary date of the
occupancy of an Affordable Apartment by a qualified tenant, and on each anniversary date thereafter, the
Developer shall recertify the income of the occupants of each Affordable Apartment by obtaining a
completed Supplemental Rental Application based upon the current income of each occupant of the
Affordable Apartment. In the event the recertification demonstrates that such household's income exceeds
the income at which such household originally qualified, but such household remains qualified as a
Moderate Income Tenant, such tenant shall not be required to vacate the unit, but may be charged the
lessor of 3 0% of their income or the 80% rent level for the unit size.
2.5 Waiver.
Developer may apply in writing to the Housing Manager for a waiver, as to a specifically
designated Affordable Apartment. Each such application will be accompanied by written data or other
DOC S00989729vl \ 24036.0030
HSRGB Doc 327324_4 61l4/07
4
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evidence relied upon by Developer to show that, for the near future, there will be no reasonable demand
for such Affordable Apartments(s). Within 30 days after receipt of any such application, the Housing
Manager will, in writing, either grant or disapprove the requested waiver. Such a waiver shall not be
permanent in nature. If and when data or other evidence suggest that the environment has changed since
the application and granting of the waiver, and a demand for such apartments then exists, the Developer
shall rent the next available unit to an income qualified household.
2.6 Records. Audits.
Developer will submit to Agency and City semi-annual certified rent rolls, disclosing with respect
to each Affordable Apartment (i) the monthly rent rate, (ii) the number of occupants for which the
Affordable Apartment is rented, and (iii) the income of such occupant(s). Such submission shall be in the
form of Exhibit C attached hereto and incorporated herein (or such other form as Agency and City may
from time to time adopt and of which Agency and City notify Developer in writing). If Agency or City
reasonably believes that violations of the rent, occupancy and/or income requirements of this Agreement
have occurred and that an audit is necessary to verify a submitted rent roll, it will so notify Developer in
writing thereof. Within ten days after delivery of said notice, Developer will deliver to Agency and City
the names of three certified public accountants doing business in the metropolitan San Diego area.
Agency and City will promptly deliver to Developer the Agency's and City's approval of one or more of
said names. The audit will be completed by an approved certified public accountant, at Developer's cost,
within 60 days after the delivery to Developer of Agency's and City's said approval. The certified public
accountant will promptly deliver a copy of the written audit to Agency and City.
2.7 Term.
This Agreement shall commence on the date this Agreement is signed by the Developer and City.
Unless terminated earlier pursuant to Section 5, the Term of this Agreement shall be for a period of fifty-
five (55) years after the Project receives a Certificate of Occupancy for the Affordable Apartments. Upon
verification from the City that all obligations have been satisfied, or upon the early termination of this
Agreement pursuant to Section, the City shall record a termination of this Agreement in the Office of the
County Recorder of San Diego County, California.
2.8 Reports.
Developer, at its expense, shall submit, or cause the Property Manager to submit, to the
appropriate entities any and all reports required to be submitted pursuant to California Community
Redevelopment Law.
2.9 Subordination of Affordabilitv Covenants.
In the event that the Agency and City find that an economically feasible method of financing for
the construction and operation of the Project, without the subordination of the affordable housing
covenants as may be set forth in this Agreement, is not reasonably available, the Agency and City shall
make the affordable housing covenants set forth in this Agreement junior and subordinate to the deeds of
trust and other documents required in connection with the construction and permanent financing for the
Project approved pursuant to the HOME Funds Agreement. Any subordination agreement entered into by
the Agency and City shall contain written commitments which the Agency and City find are reasonably
designed to protect Agency's and City's investment in the event of default, such as any of the following:
(a) a right of Agency and City to cure a default on the loan prior to foreclosure, (b) a right of Agency and
City to negotiate with the lender after notice of default from the lender and prior to foreclosure, (c) an
agreement that, if (prior to foreclosure of the loan) Agency or City takes title to the property and cures the
DOC SOC\989729vl \ 24036.0030
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default on the loan, the lender will not exercise any right it may have to accelerate the loan by reason of
the transfer of title to Agency or City, and (d) a right of Agency and City to acquire the Real Property
from the Developer at any time after a material default on the loan. This section may be revised pending
receipt of final form of senior loan documents.
ARTICLE 3 - Uses of the Real ProDertv
3.1 Condition of the Real ProperlY.
a. Developer shall take all necessary precautions to prevent the release into the environment
of any Hazardous Materials which may be located in, on or under the Real Property. Such precautions
shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In
addition, Developer shall install and utilize such equipment and implement and adhere to such procedures
as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal
and disposal of Hazardous Materials.
b. Developer shall indemnify, defend and hold Agency and City harmless from and against
any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, reasonable attorneys' fees), resulting from, arising out
of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous
Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the
Real Property, no matter when such claim, action, suit or proceeding is first asserted or begun and no
matter how the Hazardous Materials came to be released, used, generated, discharged, stored or disposed
of on, under, in or about, to or from the Real Property, or by whom or how they are discovered, or (ii) the
violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or
license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous
Materials on, under, in or about, to or from, the Real Property. This indemnity shall include, without
limitation, any damage, liability, fine, penalty, parallel indemnity after closing, cost or expense arising
from or out of any claim, action, suit or proceeding, including injunctive, mandamus, equity or action at
law, for personal injury (including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the natural
resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment.
c. For purposes of this Agreement, "Hazardous Materials" means any substance, material,
or waste which is or becomes regulated by any local governmental authority, San Diego County, the State
of California, regional governmental authority, or the United States Government, including, but not
limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous
waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to
Section 25130 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act);
(iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated byphenyls; (viii) methyl tertiary
butyl ether; (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to
Article II of Title 22 of the California Code of Regulations, Division 4, Chapter 20; (x) designated as
"hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. 91317); (xi) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
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U.S.C. S6901, el seq. (42 U.S.C. S6903); or (xii) defined as "hazardous substances" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. S9601,
elseq.
d. For purposes of this Agreement, "Governmental Requirements" means all laws,
ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the
County of San Diego, the City, or any other political subdivision in which the Property is located, and of
any other political subdivision, agency or instrumentality exercising jurisdiction over the Agency, the
City, the Borrower or the Property.
3.2 Marketing and Selection of Tenants.
The three (3) bedroom Low Income Apartments shall be marketed by Developer, or its successor
or assignee, to persons who qualify as Low Income Tenants with households of three (3) persons or more.
The following are the household sizes appropriate to an Affordable Apartment:
Maximum Affordable
Marketinl! Tarl!et
Marketinl! Tarl!et
Three (3)
Bedroom
Rent Based
on Assumed
Household Size
Four Persons
Minimum
Household
Size
Three Persons
Maximum
Household
Size
Six Persons
Unit Size
Developer shall submit for the approval of the Agency and City, which approval shall not
unreasonably be withheld, a plan for marketing the rental of the Low Income Apartments. Developer's
marketing of units shall be in compliance with federal and state fair housing law. Such marketing plan
shall include a plan for publicizing the availability of the Low Income Apartments within the City, such
as notices in any City-sponsored newsletter, newspaper advertising in local newspapers and notices in
City offices. The marketing plan shall require Developer to obtain from the Agency the names of low-
and moderate-income households who have been displaced by the Agency's redevelopment projects, and
to notify persons on such list of the availability of units in the Project prior to undertaking other forms of
marketing. The marketing plan shall provide that the persons on such list of displaced persons be given
not fewer than fifteen (15) days after receipt of such notice to respond by completing application forms
for rental of Low Income Apartments, as applicable.
All tenants of each Affordable Apartment shall meet the income requirements set forth herein and
shall be in conformance with the standards set forth in the approved Management Plan. Selection of
residents shall be made randomly within the following levels of priority, rather than on a first-come, first-
serve basis:
a. First Priority. Households which are displaced from their primary residence as a result of
an action of City or Agency, a condominium conversion involving the household's residence, expiration
of affordable housing covenants applicable to such residence, or closure of a mobile home or trailer park
community in which the household's residence was located, and the household resided in such housing as
the household's primary place of residence for at least two years prior to such action or event.
b. Second Priority. Households which meet one of the following criteria: (i) households
which are displaced from their primary residence as a result of an action of City or Agency, a
condominium conversion involving the household's residence, expiration of affordable housing covenants
applicable to such residence, or closure of a mobile home or trailer park community in which the
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household's residence was located, and the household resided in such housing as the household's primary
place of residence for at least one year but less than two years prior to such action or event; (ii)
households with at least one member who has resided within the City, as that person's primary place of
residence, for at least two years prior to the date of application for such housing; or (iii) households with
at least one member who has worked within the City, as that person's principal place of full-time
employment, for at least two years prior to the date of application for such housing.
c. Third Priority. Other Low Income Households who do not meet the criteria for first
priority or second priority above.
3.3 Maintenance of Real Prooertv.
Developer agrees for itself and its successors in interest to all or any portion of the Real Property,
to maintain the improvements on the Real Property in conformity with applicable provisions of the City
Municipal Code, and shall keep the Real Property free from any accumulation of debris or waste
materials. During such period, the Developer shall also maintain the landscaping planted on the Real
Property in a healthy condition. Developer shall participate in the City's Crime-Free Multi-Housing
Program (or similar program which is adopted by the City) which has been adopted to facilitate strong
property management, screening of applicants, and maintenance of multifamily rental properties. If at any
time Developer fails to maintain the Real Property and such condition is not corrected within five days
after written notice from Agency or City with respect to graffiti, debris, waste material, and general
maintenance, or thirty days after written notice from Agency or City with respect to landscaping and
building improvements, then Agency and City, in addition to whatever remedy it may have at law or at
equity, but subject to the rights of the Permanent Lender, shall have the right to enter upon the applicable
portion of the Real Property and perform all acts and work necessary to protect, maintain, and preserve
the improvements and landscaped areas on the Real Property, and to attach a lien upon the Real Property,
or to assess the Real Property, in the amount of the expenditures arising from such acts and work of
protection, maintenance, and preservation by Agency and City and/or costs of such cure, including a
fifteen percent (15%) administrative charge, which amount shall be promptly paid by Developer to
Agency and City upon demand.
3.4 Prooerty Management.
The parties acknowledge that the Agency and City are interested in the long-term management
and operation of the Real Property and in the qualifications of any person or entity retained by the
Developer for that purpose (the "Property Manager"). Therefore, during the period of the effectiveness
of the affordability covenants set forth herein, the Agency and City may from time to time review and
evaluate the identity and performance of the Property Manager as it deems appropriate. If the Agency or
the City determines that the performance of the Property Manager is materially deficient based upon the
standards and requirements set forth in this Section 4.4 and the approved Management Plan (as defined
below), the Agency and City shall provide notice to the Developer of such deficiencies, and the
Developer shall use its best efforts to correct such deficiencies within a reasonable period of time. Upon
the failure of the Property Manager to cure such deficiencies within the time set forth herein, the Agency
and City shall have the right to require the Developer to immediately remove and replace the Property
Manager with another property manager or property management company who is reasonably acceptable
to the Agency and City, who (if required in the reasonable discretion of the Agency and City) is not
related to or affiliated with the Developer, and who has not less than five (5) years experience in property
management, including experience managing multifamily residential developments of the size, quality
and scope of the Real Property.
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In addition, the Developer shall submit for the reasonable approval of the Agency and City a
detailed "Management Plan" which sets forth in reasonable detail the duties of the Property Manager,
the tenant selection process, a security system and crime prevention program in compliance with the
City's Crime-Free Multi-Housing Program (or similar program which is adopted by the City), the
procedures for the collection of rent, the procedures for monitoring of occupancy levels, the procedures
for eviction of tenants, the rules and regulations of the Real Property and manner of enforcement, a
standard lease form, and other matters relevant to the management of the Real Property. The management
plan shall require the Property Manager to adhere to a fair lease and grievance procedure and provide a
plan for tenant participation in management decisions. The management of the Real Property shall be in
compliance with the Management Plan which is approved by the Agency and City, subject, however, to
any requirements of the Permanent Lender pursuant to the Permanent Loan Documents. The Management
Plan may be revised from time to time upon the reasonable approval of the Agency, the City and the
Developer.
3.5 Insurance.
Within ten (10) days after the Apartment Developer's acquisition of the Real Property, Developer
shall furnish to the Agency and City duplicate originals or appropriate certificates of insurance coverage
evidencing that Developer has obtained, or cause to be obtained, insurance coverage with respect to the
Real Property and Project in type, amount and from insurers with Best's ratings as are reasonably
acceptable to Agency and City (or have been approved by the Permanent Lender), naming the Agency
and City and its officers, agents, employees, representatives and their respective successors, as named or
additional insureds by appropriate endorsements. Such policy shall include, without limitation, "all risk"
property casualty insurance and comprehensive general liability insurance. Without limiting the generality
of the foregoing, such policy shall also include coverage to insure Developer's indemnity obligations
provided herein, unless Developer can demonstrate to the Agency's and City's reasonable satisfaction that
such coverage is not available or is not available at a commercially reasonable cost consistent with the
Project Budget. Developer covenants and agrees for itself and its successors and assigns that Developer
and such successors and assigns shall keep such liability policy in full force and effect until the date that
is fifty-five (55) years from the date of the City's issuance of the final certificate of completion for the
Project.
In addition to any other remedy which Agency and City may have hereunder for Developer's
failure to procure, maintain, and/or pay for the insurance required herein, Agency and City may (but
without any obligation to do so, and subject to the rights of the Permanent Lender under the Permanent
Loan Documents) at any time or from time to time, after thirty (30) days written notice to Developer,
procure such insurance and pay the premiums therefor, in which event Developer shall immediately repay
Agency and City all sums so paid by Agency and City together with interest thereon at the rate of ten
percent (10%) per annum or the maximum legal rate, whichever is less.
3.6 Proceeds ofInsurance.
Should the Project be totally or partially destroyed or rendered wholly or partly uninhabitable by
fire or other casualty required to be insured against by Developer, Developer shall promptly proceed to
obtain insurance proceeds and take all steps necessary to promptly and diligently commence the repair or
replacement of the Project to substantially the same condition as the Project is required to be maintained
in pursuant to this Agreement if (i) the Developer agrees in writing within ninety (90) days after payment
of the proceeds that such repair or rebuilding is economically feasible and (ii) the Permanent Lender
permits such repair or rebuilding, provided that the extent of Developer's obligation to restore the Project
shall be limited to the amount of the insurance proceeds actually received by the Developer. If the
Developer is unable or is not permitted to repair, replace, or restore the Project, Developer must give
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notice to Agency and City (in which event Developer will be entitled to all insurance proceeds, subject to
any outstanding lien obligations, but Developer shall be required to remove all debris from the Real
Property) and Developer may construct such other improvements on the Real Property as are consistent
with applicable land use regulations and approved by the Agency and City and the other governmental
agency or agencies with jurisdiction.
3.7 Taxes. Assessments. Encumbrances. and Liens.
Developer shall pay prior to delinquency all real estate taxes and assessments properly assessed
and levied on the Real Property. Nothing herein contained shall be deemed to prohibit Developer from
contesting the validity or amounts of any tax, assessment, encumbrance, or lien, or to limit the remedies
available to Developer in respect thereto.
3.8 Hold Harmless.
Developer agrees to indemnify, protect, defend and hold harmless Agency and City, and their
officers, agents, employees, representatives and successors, from and against any and all claims, damages,
actions, costs, demands, expenses or liability, including, without limitation, reasonable attorneys' fees and
court costs, which may arise from the direct or indirect actions or inactions of the Developer or those of
its contractors, subcontractors, agents, employees or other persons acting on Developers' behalf which
relate to the Real Property or Project. This hold harmless agreement applies, without limitation, to all
damages and claims for damages suffered or alleged to have been suffered by reasons of the operations
referred to in this Section, regardless of whether or not the Agency or City prepared, supplied or approved
plans or specifications, or both, for the Property or Project. This indemnity by Developer and all other
indemnities set forth herein shall survive any foreclosure of the Real Property by the City pursuant to the
terms of the City Deed of Trust.
3.9 Further Indemnification of Agencv and City.
It is understood and agreed that the parties hereto have entered the HOME Funds Agreement as a
method of providing necessary assistance to Developer in connection with the construction of low income
housing and related improvements on the Real Property pursuant to all applicable laws and that, by
contributing public funds to assist in the accomplishment of such construction or by otherwise
contributing or assisting with the accomplishment of such construction, the Agency and City assume no
responsibility for insuring that the same is adequately undertaken (including, without limitation, the
existence and/or remediation of any hazardous or toxic substances on the Real Property); and, as a
material consideration to Agency and City for entering into the Loan Agreement (and not by way of
limiting the generality of Section 3.8 above), Developer agrees to indemnify, protect, defend and hold
harmless Agency and City and all their representatives, officers, employees and their respective
successors from and against any and all claims, damages, actions, demands, liabilities, obligations,
expenses, losses or costs, including, without limitation, reasonable attorneys' fees and court costs, which
may arise or in any manner are connected with the construction of the Project pursuant to the HOME
Funds Agreement, excluding, however, from Developer's indemnity any such liability, losses, damages
(including foreseeable or unforeseeable consequential damages), penalties, fines, expenses (including out-
of-pocket litigation costs and reasonable attorneys' fees) arising out of the sole negligence of Agency,
City or their employees, contractors, subcontractors or agents.
3.10 Obligation to Refrain from Discrimination.
There shall be no discrimination against, or segregation of, any persons, or group of persons, on
account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the enjoyment of
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the Real Property, nor shall Developer itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, subtenants, sub lessees, or vendees of the Real
Property or any portion thereof. Developer shall further comply with all applicable requirements of the
Americans with Disabilities Act ("ADA").
3. I I Form of Nondiscrimination and Nonsegregation Clauses.
Developer shall refrain from restricting the rental, sale, or lease of any portion of the Real
Property, or contracts relating to the Real Property, on the basis of race, color, creed, religion, sex, marital
status, ancestry, or national origin of any person and shall comply with all applicable requirements for the
ADA. All such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there shall be
no discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any
persons claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sub lessees, or vendees in the land herein conveyed and further covenants that
all such individuals and entities shall comply with all requirements of the Americans with Disabilities Act
of 1990, as the same may be amended from time to time (42 V.S.C. 912101, et seq.). The foregoing
covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through him, and this lease is
made and accepted upon and subject to the following conditions: 'That there shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure,
or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or
through him, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees, sub lessees, subtenants,
or vendees in the land herein lease and the lease shall be carried out in compliance with all requirements
of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42
V.S.C. 912101, etseq.).'"
c. In contracts: "There shall be no discrimination against or segregation of any persons or
group of persons on account ofrace, color, creed, religion, sex, marital status, ancestry, or national origin
in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself,
or any person claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, subtenants, sub lessees, or vendees of land and all such activities shall be conducted in
compliance with all the requirements of the Americans with Disabilities Act of 1990, as the same may be
amended from time to time (42 V.S.C. 912101, etseq.)."
ARTICLE 4 - Breach
4. I Breach bv Agencv or Citv.
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If Agency or City breaches any of its covenants contained in this Agreement, Developer will have
available to it all legal and equitable remedies afforded by the laws of the State of California. This
section shall not be construed as a waiver of any the City's immunities.
4.2 Breach bv Develooer of Rent Limit Requirements.
If, with respect to any Affordable Apartment, Developer breaches this Agreement by charging
higher rent than that herein permitted, Developer will, immediately upon Agency's or City's demand, (i)
reduce the rent to that permitted herein and (ii) refund to any tenants who theretofore paid such higher
rent the amount of the excess, together with interest hereon at the rate of ten (10) percent per annum,
computed from the date(s) of payment of the excess by said tenants to the date of said refund. The
provisions of this Section constitute a third-party beneficiary contract in favor of such tenants. Further,
Agency and City are hereby granted the power (but not the duty) to act as attorney-in-fact of such tenants
in enforcing this Section.
4.3 Breach bv Develooer of Leasing Requirements.
If, with respect to any Affordable Apartment, Developer breaches this Agreement by leasing to
tenants who are not qualified pursuant to Section 2.2, Developer will, immediately upon Agency's or
City's written demand and at Developer's sole cost, take all lawful steps to terminate such leasing.
4.4 Breach bv Develooer of Other Requirements.
If the Developer breaches any of its covenants contained in this Agreement, the City and the
Agency will have available to it all legal and equitable remedies afforded by the laws of the State of
California in addition to any remedies provided herein.
4.5 Remedies Not Exclusive.
The remedies set forth in Sections 4.2 and 4.3 are not exclusive, but are in addition to all legal or
equitable remedies otherwise available to Agency and City.
ARTICLE 5 - General Provisions
5.1 Assignment.
The rights and obligations of Developer under this Agreement may be transferred or assigned,
provided such transfer or assignment is made as a part of the conveyance of the fee of all or a portion of
the Real Property. Any such transfer or assignment will be subject to the provisions of this Agreement.
During the term of this Agreement, any such assignee or transferee will observe and perform all of the
duties and obligations of Developer contained in this Agreement as such duties and obligations pertain to
the portion of said real property so conveyed.
5.2 Amendment or Termination of Agreement.
5.2.1 Bv Mutual Consent. This Agreement may be amended from time to time or terminated by
the mutual consent of the parties hereto, but only in the same manner as its adoption. The term "this
Agreement" includes any such amendment properly approved and executed.
5.2.2 Earlv Termination Uoon Failure of Financing Contingencv. This Agreement shall
automatically terminate in the event Apartment Developer is unable to secure the Low Income Financing
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on or before fu!D, 2008, or if Developer provides written notice to the City (at any time prior to such
date) that Apartment Developer is no longer seeking or is unable to secure the Low Income Financing. In
such event, Developer shall fulfill the low income requirements set forth in the Master Affordable
Housing Agreement in accordance with the Existing Regulatory Agreement.
5.3 Enforcement.
Unless amended or terminated as provided in Section 5.2, this Agreement is enforceable by any
party to it despite a change in the applicable general or specific plans, zoning, subdivision or building
regulations adopted by City which alter or amend the rules, regulations or policies governing permitted
uses of the land, density and design.
5.4 Binding Effect of Agreement.
The burdens of this Agreement bind and the benefits of the Agreement inure to the parties'
successors or assignees in interest.
5.5 RelationshiD of Parties.
It is understood that the contractual relationship between Agency, City and Developer is such that
Developer is an independent contractor and not an agent of Agency or City.
5.6 Notices.
All notices, demands or requests provided for or permitted to be given pursuant to this Agreement
must be in writing. All notices, demands or requests to be sent to any party shall be deemed to have been
properly given or served if personally served or deposited in the United States mail, addressed to such
party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified
herein as the places of business for each of the designated parties.
Agencv/Citv:
Redevelopment Agency of the City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: Community Development Director
With a COllV to:
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Attorney
DeveloDer:
Shea Homes
9990 Mesa Rim Road
San Diego, California 92121
Attn: Jim Kilgore
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With a copv to:
Brookfield Shea Otay LLC
12865 Pointe Del Mar, Suite 200
Del Mar, California 92014
Attention: Ron Grunow
A party may change its address by glvmg notice in writing to the other party. Thereafter, notices,
demands and requests shall be addressed and transmitted to the new address.
ARTICLE 6 - Conflicts of Law
6.1 Conflict ofCitv and State or Federal Laws.
In the event that state or federal laws or regulations enacted after this Agreement has been entered
into prevent or preclude compliance with one or more provisions of this Agreement or require changes in
plans, maps or permits approved by the City, the parties will:
6.1.1 Notice and Copies: Provide the other party with written notice of such state or federal
restriction; provide a copy of such regulation or policy and statement of conflict with the provisions of
this Agreement.
6.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good faith
in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation.
6.2 Agencv Board and City Council Hearings.
Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or
state law or regulation upon this Agreement, the matter will be scheduled for consideration by the
governing board of the Agency and the City Council. The Agency and City Council, at such meeting, will
determine the exact modification or suspension which shall be necessitated by such federal or state law or
regulation. Developer, at the meeting, will have the right to offer oral and written testimony. Any
modification or suspension will be taken by the affirmative vote of not less than a majority of the
authorized voting members of the governing board of the Agency and City Council.
6.3 Cooperation in Securing Permits.
The Agency and City shall cooperate with the Developer in the securing of any permits which
may be required as a result of such modifications or suspensions.
ARTICLE 7 - Miscellaneous Provisions
7.1 Rules of Construction.
The singular includes the plural and the neuter gender includes the masculine and the feminine.
7.2 Severability.
The parties hereto agree that the provisions are severable. If any provision of this Agreement is
held invalid, the remainder of this Agreement will be effective and will remain in full force and effect,
unless amended or modified by mutual consent of the parties.
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7.3 Entire Agreement. Waivers and Amendments.
Except for the Regulatory Agreement, this Agreement, together with any other written document
referred to or contemplated herein, embody the entire agreement and understanding between the parties
relating to the Low Income Apartments. Neither this Agreement nor any provision hereof may be
amended, modified, waived, or discharged, except by an instrument in writing executed by the party
against which enforcement or such amendment, waiver, or discharge is sought.
7.4 Caoacities of Parties.
Each signatory and party hereto hereby warrants and represents to the other party that it has legal
authority and capacity and direction from its principal to enter into this Agreement and that all resolutions
or other actions have been taken so as to enable it to enter into this Agreement.
7.5 Governing LawNenue.
This Agreement shall be governed by and construed in accordance with the laws of the State of
California. Any action arising under or relating to this Agreement shall be brought only in the Federal or
State courts located in San Diego County, State of California and, if applicable, the City ofChula Vista or
as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of
Chula Vista.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed as of
the day and year first written ahove.
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA, a public body, corporate and politic
By:
Its: Chair
ATTEST:
Agency Secretary
nCITY"
CITY OF CHULA VISTA, a municipal corporation of the
State of California
By:
Its: Mayor
ATTEST:
Susan Bigelow, City Clerk
APPROVED AS TO FORM:
City and Agency Attorney
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"DEVELOPER"
BROOKFIELD SHEA OTAY LLC, a California limited
liability company
BY: BROOKFIELD OTAY LLC, a Delaware limited
liability company, a Member
By:
Name:
Its:
Date:
By:
Name:
Its:
Date:
BY: SHEA OTAY 11 LLC, a California limited
liability company, a Member
BY: SHEA HOMES LIMITED PARTNERSHIP,
a California limited partnership, its sole
Member
By:
Name:
Its Authorized Agent:
Date:
By:
Name:
Its Authorized Agent:
Date:
DOC S0C\989729vl \ 24036.0030
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STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
DOC S0C\989729vl \ 24036.0030
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STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
. personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislherltheir authorized
capacity(ies), and that by hislher/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , before me,
(here insert name and title of the officer)
personally appeared
. personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized
capacity(ies), and that by hislher/their signature(s) on the instrument, the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
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EXlllBIT "A"
Legal Description of Project
All that certain real property situated in the City of Chula Vista, County of San Diego, State of
California, described as follows:
Lot I of CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE II
NEIGHBORHOODS MU-I AND R-19, in the City ofChula Vista, County of San Diego,
State of California, according to Map thereof No. , filed with the County
Recorder of San Diego County.
DOC SOC\989729vl \ 24036.0030
16-119
DOC SOC\989729vl \ 24036.0030
EXHIBIT "B"
Low Income Financing Requirements
[To be attached]
16-120