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HomeMy WebLinkAboutRDA Agenda Packet 120809ARCHIVE COPY CITY CLERK 1%, SPECIAL MEETING Community Redevelopment Agency of Atascadero Tuesday, December 8, 2009, 6:00 P.M. City Hall, Council Chambers 6907 El Camino Real, Atascadero, California AGENDA ROLL CALL. Chairperson O'Malley Vice Chairperson Kelley Board Member Beraud `40e Board Member Clay Board Member Fonzi APPROVAL OF AGENDA. Roll Call BOARD REORGANIZATION 1 Board Appointment of Chairperson — The Board Secretary will accept nominations from the Board Members 2. Board Appointment of Vice -Chairperson — The new Chairperson will accept nominations from the Board Members COMMUNITY FORUM (This portion of the meeting is reserved for persons wanting to address the Board on any matter not on this agenda and over which the Board has jurisdiction Speakers are limited to three minutes Please state your name and address for the record before making your presentation The Board may take action to direct the staff to place a matter of business on a future agenda. A maximum of 30 minutes will be allowed for Community Forum, unless changed by the Board ) 1 A. CONSENT CALENDAR 1 Community Redevelopment Agency Draft Minutes — November 10, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of November 10, 2009 [Board Secretary] B. PUBLIC HEARINGS Allocation of Funds for Zoo Entrance and Gift Shop Project ■ Ex Parte Communications ■ Fiscal Impact: $670,660 of budgeted Redevelopment Agency Funds ■ Recommendations. Agency Board 1 Adopt the Draft Resolution irrevocably allocating funds for completion of the Zoo Entrance and Gift Shop Project, and authorize the Executive Director to execute a Financing Agreement, if necessary, with the City of Atascadero, OR 2 Direct Staff to not use Agency funds for completion of the Zoo Entrance and Gift Shop Project. [Executive Director] 2. Allocation of Funds for Lake Park Sign and Frontage improvements Proiect ■ Ex Parte Communications ■ Fiscal Impact: $430,180 of budgeted Redevelopment Agency Funds ■ Recommendation. Agency Board adopt the Draft Resolution irrevocably allocating funds for Lake Park Sign and Frontage Improvements Project and authorize the Executive Director to execute a Financing Agreement with the City of Atascadero [Executive Director] 3. Allocation of Funds for Zoo Wall Improvement Project • Ex Parte Communications ■ Fiscal Impact: With the adoption of the draft resolution and authorization to execute the financing agreement, the Agency commits $240,000 to the Zoo Wall Improvement Project. If the Board does not adopt the draft resolution, there is no fiscal impact. ■ Recommendations. Agency Board 1 Adopt the Draft Resolution irrevocably allocating funds for completion of the Zoo Wall Improvement Project and authorize the Executive Director to enter a Financing Agreement with the City of Atascadero, OR 2 Direct Staff to not use Agency funds for completion of the Zoo Wall Improvement Project. [Executive Director] 2 C MANAGEMENT REPORTS 1 Business Stimulus Program Loan Program for Downtown Affordable Housing and Related Retail Uses ■ Fiscal Impact- Loans would be capped at $100,000 per affordable housing unit built. The total cost of the program is $500 000 Funding for this program is available in the Affordable Housing Fund ■ Recommendations. Agency Board 1 Find the program consistent with the Council approved housing policy; and, 2 Authorize the Administrative Services Director to appropriate $500,000 from the Redevelopment Low/Moderate income Housing Fund for the Downtown Affordable housing Program, and, 3 Authorize the Executive Director to implement the program and sign related loan documents and agreements [Executive Director] BOARD ANNOUNCEMENTS AND REPORTS (On their own initiative, the Board Members may make a brief announcement or a brief report on their own activities Board Members may ask a question for clarification, make a referral to staff or take action to have staff place a matter of business on a future agenda. The Board may take action on items listed on the Agenda.) D ADJOURNMENT TO CITY COUNCIL MEETING 3 IJ In En ITEM NUMBER. RAA 1 DATE 12/08/09 SPECIAL MEETING Community Redevelopment Agency of Atascadero Tuesday, November 10, 2009, 6:00 P.M. City Hall, Council Chambers 6907 EI Camino Real, Atascadero, California DRAFT MINUTES Chairperson O'Malley called the meeting to order at 6 01 p m ROLL CALL Present: Board Members Beraud, Clay, Fonzi, Vice Chairperson Kelley and Chairperson O'Malley Others Present: Board Secretary Marcia McClure Torgerson Staff Present: Executive Director Wade McKinney, Assistant Executive Director Jim Lewis, Police Chief Jim Mulhall, Community Development Director Warren Frace, Administrative Services Director Rachelle Rickard, Public Works Director Russ Thompson, and City Attorney Brian Pierik. APPROVAL OF AGENDA. Roll Call MOTION By Board Member Fonzi and seconded by Board Member Beraud to approve the agenda. Motion passed 5.0 by a roll -call vote. RDA Draft Minutes 11/10/09 Page 1 of 4 I ITEM NUMBER RA A -1 DATE 12/08/09 COMMUNITY FORUM Tom Gaddis, member of the Atascadero Ministerial Association, led those present in prayer r„l� Heather Young, Managing Editor of the Atascadero News, invited everyone to a seminar called "How to Get Your News in the Atascadero News " Ann Hatch invited everyone to the Veterans Day celebration being held at the Veterans Memorial tomorrow Steve Martin, Executive Director of Main Street, announced upcoming events in the Downtown, including Wine and Art Tour, Holiday Tree Lighting ceremony, and Winter Wonderland He also asked everyone to come to the Downtown to see the new holiday banners Chairperson O'Malley closed the Community Forum period. A. CONSENT CALENDAR. 1 Community Redevelopment Agency Draft Minutes —September 22, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of September 22, 2009 [Board Secretary] MOTION By Board Member Fonzi and seconded by Vice Chairperson Kelley to approve the Consent Calendar Motion passed 5.0 by a voice vote. B PUBLIC HEARINGS None C MANAGEMENT REPORTS Business Stimulus Program. Loan Program for Downtown Affordable Housing and Related Retail Uses ■ Fiscal Impact: Loans would be capped at $100,000 per affordable housing unit built. The total cost of the program is $500,000 Funding for this program is available in the Affordable Housing Fund ■ Recommendations. Agency Board 1 Find the program consistent with the Council approved housing policy; and, 2 Authorize the Administrative Services Director to appropriate $500,000 from the Redevelopment Low/Moderate income Housing Fund for the Downtown Affordable housing Program, and, RDA Draft Minutes 11/10/09 Page 2 of 4 5 en En ITEM NUMBER. RA A 1 DATE 12/08/09 3 Authorize the Executive Director to implement the program and sign related loan documents and agreements Assistant Executive Director Jim Lewis gave the staff report and answered questions from the Board PUBLIC COMMENT None Vice Chairperson Kelley stated that he supports this program, but is uncomfortable with the way it is set up, and would like Staff to come back to the Council with more information Board Member Fonzi stated that she supports this program but would like Staff to come back with more options for the property owners Board Member Beraud said that she supports the program as it is proposed as she feels that there are people in the community that are currently interested in taking advantage of this opportunity Board Member Clay said that he is concerned that there seems to be too many loopholes in this program. He would like to see more specific figures before he could support this proposal Chairperson O'Malley stated that he can support this proposal but realizes that the Board may need to tinker with the details MOTION Board Member Beraud made a motion to approve Staffs recommendations, adding the clause that the loan value amount may be up to $100,000 00 per unit, and did not receive a second on the motion MOTION By Board Member Clay and seconded by Board Member Kelley to direct Staff to return to the Board with additional information and options including the following 1 Several different alternatives 2. Pros and cons of each alternative 3 Wording changed so that there is a mid -point inspection 4 Language regarding historical preservation 5 Information that assures the Board that there will be a deed restriction that will continue on if there is a foreclosure. Motion passed 3 2 by a roll -call vote. (Beraud & O'Malley opposed) RDA Draft Minutes 11/10/09 Page 3 of 4 I BC' *iRl) ANNOUNCEMENTS AND REPORTS None D ADJOURNMENT TO CITY COUNCIL MEETING Chairperson O'Malley adjourned the meeting at 6 59 p m Mi 4 JTES PREPARED BY Marcia McClure Torgerson, C M C City Clerk / Board Secretary RDA Draft Minutes 11/10/09 Page 4 of 4 7 ITEM NUMBER. RAA 1 DATE 12/08/09 In ITEM NUMBER RA B-1 DATE. 12/08/09 Atascadero Community Redevelopment Agency Staff Report - Executive Director Allocation of Funds for Zoo Entrance and Gift Shop Project RECOMMENDATIONS Agency Board Adopt the Draft Resolution irrevocably allocating funds for completion of the Zoo Entrance and Gift Shop Project, and authorize the Executive Director to execute a Financing Agreement, if necessary, with the City of Atascadero, OR 2 Direct Staff to not use Agency funds for completion of the Zoo Entrance and Gift Shop Project. DISCUSSION The Agency Board has indicated in the past that the Zoo Entrance and Gift Shop Project was a high priority and one that should be funded with Agency General Funds The Agency began budgeting for this project in fiscal year 2007-2008 and funding for the entire project is currently included in the Agency's budget. Recent legislation has passed and will take effect on January 1, 2010, that limits the Agency's ability to fund this and other projects outside the Redevelopment Project Area unless funds are committed to the project prior to the end of the calendar year The Agency received bids for the Zoo Restroom, Zoo Entrance and Gift Shop projects, and on September 22, 2009 awarded the contract to C3 Construction, Inc of Paso Robles (C3) The restroom project is underway and on -schedule The Zoo Entrance and Gift Shop portion of the bid was approved by the Agency subject to staff successfully reducing project costs to the budgeted funding level of $1,083,000 for the combined project via a value engineering effort with C3 Since that time, staff has been working with C3 on the requested value engineering to reduce project costs Since the proposed reductions involved sub -contracted construction, C3 had to go back to their sub -contractors to verify cost reductions This )cess has taken since September 22, 2009 to complete A contract has been Iteloped and is currently being reviewed by C3 The contractor must also acquire the cppropriate bonds for the reduced scope of work. It is staff's belief that the contract and bonds will be in place within the next few weeks 9ased on past experience, there is always the chance the contractor will not be able to ,nalize the contract and have bonds for review and approval by the Agency, and in place prior to the December 31, 2009 deadline If C3 is unable to successfully negotiate a final contract for the Zoo Entrance and Gift Shop the project would have to be re -bid in -cordance with the purchasing policy Rebidding alone could not be used to avoid losing funding for the project; therefore, staff is recommending a contingency plan be approved in case the project must be re -bid To protect against the possibility of losing funding for the project, the Board may adopt the attached draft resolution tonight and authorize the Executive Director, if needed, to execute a Financing Agreement with City if C3 is unable to fully execute a contract by the close of business on December 30, 2009 and the project must be re -bid i� ,he Board continues to see this project as a high priority and would like to fund it with H,ency funds, the Board may adopt the attached draft resolution tonight. This draft resolution commits the Agency to pay $670,660 for the project, should C3 not be able to generate a fully executed contract by the close of business on December 30, 2009 If this contingent is used, this commitment is part of a legally binding financing agreement ,pith the City and once pledged, cannot be reversed On the other hand, if the Board finds that Zoo Entrance and Gift Shop Project is no longer one of the highest priorities of he Agency, the Board may elect not to adopt the draft resolution Without the adoption of the draft resolution, the Agency may not legally be able to provide funding for this project if it is re -bid since it is outside of the Redevelopment Project Area, and the oroject will be canceled he Agreement In effect this draft resolution and agreement change the project from a project that is completed directly by the Redevelopment Agency to a project that the Agency is contracting with the City to complete The attached draft resolution and agreement commit the Agency to reimburse the City up to $670,660 for the project. This commitment is part of a legally binding financing agreement with the City and once pledged, cannot be reversed The Agency will not pay the City any additional administrative funds and any funds remaining at the end of the project will be returned to the Agency The Project The City of Atascadero has existing plans for the construction of the Zoo Entrance and Gift Shop Project. This project provides for construction of a new zoo entrance and gift shop structure, interior improvements and site work. The project will enhance the beauty of the Zoo, increase tourism interest in the site and alleviate the blighted conditions A M Benefit to Project Area The completion of the Zoo Entrance and Gift Shop Project would benefit the Project Area by- • Providing improved aesthetic appeal to the Lake Park, the Charles Paddock Zoo, and the Veteran's Memorial area. This whole area is a popular tourist attraction • Installation of improved accessible pathways and parking will help to provide access to the zoo in accordance with the Americans with Disabilities Act. Alleviating blighting conditions The current condition of the Zoo Entrance and Gift Shop is blighted and in poor condition The project will improve the visual appeal and reduce the blighted condition The location of the Lake Park and Zoo is considered to be the western gateway to the Redevelopment Project Area. The completion of this project is expected to improve the beauty and alleviate the blighted condition of this gateway area, enhance visitors' experiences, and generate additional tourism throughout the Project Area. No Other Method of Financing With the condition of the local, state, and national economy, the City has reduced the general fund budget. All but the highest Council priorities have been cancelled or postponed The City has indicated to the Agency that sufficient funding is not otherwise available It is not practical to arrange for an assessment district or other funding mechanism for the project at this time Elimination of Blighting Conditions As indicated earlier in this report, the location of this project at the Atascadero Lake Park is part of the western gateway to the Redevelopment Project Area. The installation of the new Zoo Entrance and Gift Shop will enhance the visual appeal of the Charles Paddock Zoo entry area, alleviating the appearance of the blighting conditions Consistency with implementation Plan The Agency's Redevelopment Implementation Plan was last revised in June of 2008 The construction of the Zoo Entrance and Gift Shop Project is consistent with the Plan and helps to accomplish two of the goals set forth in Section 210, Objectives of the Redevelopment Plan • Section 21011 — Creation/enhancement of recreational and cultural opportunities available to the residents of the Project Area and of the community at -large, including enhancement of Atascadero Lake Park. • Section 210 15 — Elimination or mitigation of other existing blighting conditions and influences, including incompatible and uneconomic land uses, obsolete or substandard structures, inadequate and deteriorated public facilities, and/or small, multiple ownership, irregular or landlocked parcels FISCAL IMPACT The fiscal impact is $670,660 of budgeted Redevelopment Agency Funds for the Zoo Entrance and Gift Shop Project. 10 ATTACHMENTS Draft Resolution 2 Draft Financing Agreement -Zoo Entrance and Gift Shop Project In Attachment t DRAFT RESOLUTION RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, CALIFORNIA, IRREVOCABLY ALLOCATING FUNDS FOR COMPLETION OF THE CITY OF ATASCADERO'S ZOO ENTRANCE AND GIFT SHOP PROJECT WHEREAS, the City Council for the City of Atascadero (the "City") has adopted the Redevelopment Plan for the Project Area (the "Redevelopment Plan") WHEREAS, the Community Redevelopment Agency of Atascadero (the "Agency") and the Agency Board of Directors ("Board") is vested with responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan in the Project Area. WHEREAS, the Redevelopment has commenced planning and design for the construction of Zoo Entrance and Gift Shop Project (the "Project") at Atascadero Lake Park within the City which public facilities upon their completion will be operated by the City WHEREAS, the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will attract additional tourists, assist with improving physical aesthetics, and alleviate blighting conditions In the area serving as the gateway to the Project Area. WHEREAS, the Project is consistent with and will promote the Agency's Implementation Plan. WHEREAS, the construction of the Project conforms to the General Plan of the City WHEREAS, the City lacks sufficient capital or general funds available which could be used to undertake the Project and bring it to completion and it is not practical to arrange for assessment district or any other similar financing for the Project. WHEREAS, the Redevelopment Agency has completed bid documents and awarded the bid for the Project to C3 Construction, but has failed to execute the contract for the Project. WHEREAS, the City desires that the Project be completed in a timely manner WHEREAS, the City and the Agency have an interest in executing a contract prior to January 1 2010 WHEREAS, the Agency intends to provide funding ("the Agency Funds") for the Project. 12 WHEREAS the Agency may enter into a binding contract ("Agreement") with the City pursuant to which the Agency will irrevocably commit the Agency Funds to the Project. WHEREAS a staff report (the "Staff Report," incorporated herein by reference), which sets forth facts supporting the findings made in this resolution pursuant to Section 33445 of the Health and Safety Code, has been prepared to accompany this resolution WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may, with the consent of the City, pay part or all of the cost of the construction of the Project if the Board and the City make certain specified findings NOW, THEREFORE BE IT RESOLVED 1 That the Board hereby finds and determines that. (a) the Project will be of benefit to the Project Area, (b) no other reasonable method of financing the gap between the total cost of construction of the Project and the funds available to the City is available to the community; (c) the Project will assist in the elimination of one or more blighting conditions inside the Project Area, and (d) Agency assistance for the Project is consistent with the Agency's current Implementation Plan. The factual and analytical basis used by the Agency in making these findings and determinations is set forth in the Staff Report, and matenals regarding the Project provided to the Agency 2. If the Agency has not fully executed a contract with C3 Construction for the Project, by the close of business on December 30, 2009, that the Board directs the Executive Director of the Agency to execute the Agreement with the City irrevocably committing the Agency Funds to the City for the Project and requiring that the Agency Funds be held in a separate account pursuant to IRS Code Section 18(b) 3 If it becomes necessary to execute the Agreement, that the Board approves the expenditure of Agency Funds as set forth in the Agreement, between the Agency and the City and submitted to the Agency in connection with consideration of this Resolution. 4 If it becomes necessary to execute the Agreement, that the Agency hereby authorizes the Executive Director of the Agency to segregate six hundred seventy thousand, six hundred sixty dollars and no cents ($670,660 00), within the Agency's accounts to be held in a separate account ("Escrow Account") upon execution of the Agreement governing the use of and accounting for the Agency Funds IT IS FURTHER RESOLVED AND ORDERED that this resolution will become effective upon the effective date of approval by the Agency's Board of Directors On motion by Board Member and seconded by Board Member , the foregoing resolution is hereby adopted in its entirety on the following roll call vote 13 ru AYES NOES ABSENT ADOPTED ATTEST Marcia McClure Torgerson, C.M.0 , Board Secretary APPROVED AS TO FORM. On Brian A. Pienk, City Attorney 01m COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO Chair 14 Fn m Attachment 2 FINANCING AGREEMENT ZOO ENTRANCE and GIFT SHOP PROJECT THIS FINANCING AGREEMENT ("Agreement") is made and entered into this 31st day of December, 2009 by and between the CITY OF ATASCADERO a general law city and municipal corporation ("City") and the COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, a public body, corporate and politic ("Agency") Hereinafter, City and Agency shall be referred to collectively as the "Parties" and singularly as the "Party " RECITALS WHEREAS, the City Council previously adopted a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment project area (the "Project Area") and WHEREAS, the Agency is vested with responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan both within and without the Project Area, and WHEREAS, the City has commenced planning for the construction of Zoo Entrance and Gift Shop Project (the "Project") at Atascadero Lake Park within the City which public facilities upon their completion will be owned and operated by the City; and WHEREAS, the City lacks sufficient capital or general funds available which could be used to fully fund the Project and bring it to completion and it is not practical to arrange for assessment district or similar financing for the Project; and WHEREAS, the City has represented to the Agency that final planning and public bidding required before construction on the Project may commence and may take up to 12 months to be completed, and WHEREAS, the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will attract additional tourists, assist with improving physical aesthetics, and alleviate blighting conditions in the area serving as the gateway to the Project Area, and WHEREAS, the Project is consistent with and will promote the Agency's Implementation Plan, and WHEREAS, the Agency intends to provide funding ("the Agency Funds") to assist the City with the cost of the Project because the Project will directly benefit the Project Area, and WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may, with the consent of the City Council, pay part or all of the cost of the construction of the Project if the Board and the City make certain specified findings, and WHEREAS, a noticed public hearing was held on December 8, 2009 wherein the Agency adopted Resolution No making all required findings for the use of Agency funds for the Project pursuant to Section 33445 cm NOW THEREFORE, the Parties hereto state and agree as follows *400� 1 The purpose of this Agreement is to set forth the understanding and agreement of e --es with respect to the Agency s commitment to fund of the Project. The contents of this Ag Bement are intended to be as comprehensive as possible with respect to the Agency's o ., nitment of funds to the Project yet not exhaustive with respect to additional issues that may an ;c relative to the development of the Project. In the event that issues occur that are not identified in this Agreement, the Parties agree to work together in good faith to resolve each i� tter 2 The Parties understand that the City will be required to complete final planning and public bidding required before construction on the Project may commence Those final plans and the public bidding are prerequisites for the City's construction of the Project, including the improvements that will be of benefit to the Project Area. 3 The Parties further understand that the City expects that undertaking final planning activities, putting the Project out to bid, receiving bids, selecting a contractor and r►eotiatzng a contract with the selected contractor will take at least 6 months and could take as long as 12 months 4 The estimated total cost of the Project is $670,660 ("Total Cost") The Agency anticipates that the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area by attracting additional tourists, enhancing the visitors' experience, assisting with improving physical aesthetics, and alleviating ghting conditions in the area serving as the gateway to the Project Area. The Agency has agreed to commit a total sum of six hundred seventy thousand, six hundred sixty dollars and no r. --nt- '$670,660 00) ("Agency Funds") to the Project to pay for the direct benefit to the Project .rea. 5 The Parties agree that the Agency shall use the Agency Funds to the extent such funds have not been previously committed and are available in the Agency General Fund 220 to pay for and/or reimburse City for costs and expenses associated in any way with the construction of the Project including, but not limited to, services and costs for construction, installation, landscaping, project management, outside construction support, CEQA costs and necessary permits 6 Within thirty (30) business days of the Parties executing this Agreement, Agency shall segregated the sum of six hundred seventy thousand, six hundred sixty dollars and no cents ,$670,660 00) within the Agency's accounts to be held in a separate account ("Escrow Account") to pay the Agency's share of the Project costs The Agency Funds shall be held in the Escrow Account until 2 months from the later of the date the project is completed or the date of the final invoice The City shall request reimbursement from the Agency for Project costs actually incurred and the Agency shall reimburse the City from the Agency Funds in the Escrow Account. It is understood and agreed between the Parties that any funds remaining in the Escrow account at the expiration of the 2 month period following the later of the date of the project .;ornpl tion or the date of the last invoice shall revert to the full control and discretion of the Agency 17 E5 7 The Citv understands and agrees that the sources of the Agenc,,Funds may be the NOW proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to California Health and Safety Code Section 33670 (the "Bonds") If bonds are used as a funding source, the City covenants and agrees with respect to the Project to comply with all applicable requirements of the federal Internal Revenue Code necessary to preserve the tax- exempt status of the interest on the Bonds and specifically covenants, without limiting the generality of the foregoing, as follows (a) Private Activity The City will take no action or refrain from taking any action or make any use of the proceeds of the Bonds or of any other monies or property which would cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended, and (b) Arbitrage The City will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take any action or refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and (c) Federal Guaranty The City will make no use of the proceeds of the Bonds or take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of 1986, as amended, and (d) Information Reporting. The City will cooperate with the Agency in providing information that the Agency needs to comply with the informational reporting %MW requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended, and (e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any other amounts or property, regardless of the source, or take any action or refrain from taking any action that would cause the Bonds to be considered "hedge bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, unless the City takes all necessary action to assure compliance with the requirements of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, to maintain the tax exempt status of interest on the Bonds for federal income tax purposes and such action has been approved by the Agency 8 In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being Parties to an agreement as defined in Section 895 of said code, the Parties hereto, as between themselves pursuant to the authorization contained in Sections 895.2 and 895 6 of said code, will each assume the full liability imposed upon it or any of its officers, agents or employees by law for personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or omission of that party occurring in the performance of the Agreement. To achieve the above stated purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or expense ansing out of its own negligent or wrongful acts or omissions. 05 :1 9 This Agreement shall be governed by the laws of California and together with the attached exhibits represents the entire agreement of the Parties as to the subject matter of this Agreement. IN WITNESS WHEREOF the City and Agency have approved the foregoing FINANCING AGREEMENT and caused the same to be executed by their duly authorized officers as set forth oelow APPROVED AS TO FORM City Attorney APPROVED AS TO FORM By - Agency y.Agency General Counsel 19 CITY City Manager AGENCY By - Executive y•Executive Director n E5 x ITEM NUMBER RA B-2 DATE 12/08/09 Atascadero Community Redevelopment Agency Staff Report - Executive Director Allocation of Funds for Lake Park Sign and Frontage Improvements Project RECOMMENDATION Agency Board adopt the Draft Resolution irrevocably allocating funds for Lake Park Sign and Frontage Improvements Project and authorize the Executive Director to execute a Financing Agreement with the City of Atascadero DISCUSSION ,%NW The Agency Board has indicated in the past that the Lake Park Sign and Frontage Improvements Project was a high priority and one that should be funded with Agency General Funds The Agency began budgeting for this project in fiscal year 2007-2008 and funding for the entire project is currently included in the Agency's budget. Recent legislation has passed and will take effect on January 1, 2010, that limits the Agency's ability to fund this and other projects outside the Redevelopment Project Area unless funds are committed to the project prior to the end of the calendar year If the Board continues to see this project as a high priority and would like to fund it with Agency funds, the Board may adopt the attached Draft Resolution tonight and authorize the Executive Director to execute a Financing Agreement with City If the Board finds that Lake Park Sign and Frontage Improvements Project is no longer one of the highest priorities of the Agency, the Board may elect not to adopt the Draft Resolution Without the adoption of the Draft Resolution, the Agency may not legally be able to provide funding for this project since it is outside of the Redevelopment Project Area, and the project will be canceled The Agreement In effect, this Draft Resolution and agreement change the project from a project that is completed directly by the Redevelopment Agency to a project that the Agency is contracting with the City to complete The attached Draft Resolution and agreement commit the Agency to reimburse the City up to $430,180 for the project. This *4W commitment is part of a legally binding financing agreement with the City and once pledged, cannot be reversed The Agency will not pay the City any additional W administrative funds and any funds remaining at the end of the project will be returned to the Agency The Project The City of Atascadero has commenced planning and design for the construction of the Lake Park Sign and Frontage Improvements Project. This project provides for landscaping and other improvements along Highway 41 from the Lake Park driveway to the Veteran's Memorial It will include signage for the Lake Park, and ornamental fencing along the pedestrian path The project will enhance the beauty of the park and the Highway 41 corridor, provide safety for pedestrians, and alleviate the blighted conditions Benefit to Project Area The completion of the Lake Park Sign and Frontage Improvements Project would benefit the Project Area by - Providing improved aesthetic appeal to the Lake Park, the Highway 41 corridor, Charles Paddock Zoo, and the Veteran's Memorial This whole area is a popular tourist attraction Increasing pedestrian safety Installation of pathways and fencing will help to keep the vehicular and the non -vehicular traffic separated and safe Alleviating blighting conditions The current condition of the frontage is blighted and in poor condition The frontage project will improve the visual appeal and reduce the blighted condition The location of the Lake Park is considered to be the western gateway to the Redevelopment Project Area. The completion of this project is expected to improve the beauty and alleviate the blighted condition of this gateway area, enhance visitors' experiences, and generate additional tourism throughout the Project Area. Additionally, the project will provide residents of the Project Area an enhanced and more aesthetically pleasing recreational opportunity No Other Method of Financing With the condition of the local, state, and national economy, the City has reduced the general fund budget. All but the highest Council priorities have been cancelled or postponed The City has indicated to the Agency that sufficient funding is not otherwise available It is not practical to arrange for an assessment district or other funding mechanism for the project at this time Elimination of Blighting Conditions As indicated earlier in this report, the location of this project at the Atascadero Lake Park is the western gateway to the Redevelopment Project Area The installation of the new landscaping, fencing and pathways will enhance the visual appeal of the entire gateway area alleviating the appearance of the blighting conditions Consistency with Implementation Plan The Agency's Redevelopment Implementation Plan was last revised in June of 2008 The construction of the Lake Park Sign and Frontage Improvements Project is l consistent with the Plan and helps to accomplish two of the goals set forth in Section 210, Objectives of the Redevelopment Plan 21 Section 21011 — Creation/enhancement of recreational and cultural opportunities available to the residents of the Project Area and of the community at -large, including enhancement of Atascadero Lake Park. • Section 210 15 — Elimination or mitigation of other existing blighting conditions and influences, including incompatible and uneconomic land uses, obsolete or substandard structures, inadequate and deteriorated public facilities, and/or small, multiple ownership, irregular or landlocked parcels FISCAL IMPACT The fiscal impact is $430,180 of budgeted Redevelopment Agency Funds for the Lake Park Sign and Frontage Improvements Project. ATTACHMENTS 1 Draft Resolution 2 Draft Financing Agreement -- Lake Park Frontage Improvements Project on 22 23 Attachment I DRAFT RESOLUTION RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, CALIFORNIA, IRREVOCABLY ALLOCATING FUNDS FOR COMPLETION OF THE CITY OF ATASCADERO'S LAKE PARK SIGN AND FRONTAGE IMPROVEMENTS PROJECT WHEREAS, the City Council for the City of Atascadero (the "City") has adopted the Redevelopment Plan for the Project Area (the "Redevelopment Plan") WHEREAS the Community Redevelopment Agency of Atascadero (the "Agency") and the Agency Board of Directors (`Board") is vested with responsibility pursuant to the Community Redevelopment Law (Part I of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan in the Project Area. WHEREAS, the City has commenced planning and design for the construction of Lake Park Sign and Frontage Improvements Project (the "Project") at Atascadero Lake Park within the City, which public facilities upon their completion will be owned and operated by the City WHEREAS, the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will improve the public safety, attract additional tourists, assist with improving physical aesthetics and alleviate blighting conditions in the area serving as the gateway to the Project Area. WHEREAS, the Project is consistent with and will promote the Agency's Implementation Plan. WHEREAS, the construction of the Project conforms to the General Plan of the City WHEREAS the City lacks sufficient capital or general funds available which could be used to undertake the Project and bring it to completion and it is not practical to arrange for assessment district or any other similar financing for the Project. WHEREAS, the City has represented to the Agency that final planning and public bidding required before construction on the Project may commence and may take up to 24 months to be completed. WHEREAS, the Agency intends to provide funding ("the Agency Funds") to assist the City with the cost of the Project in order that the Project be fully funded. WHEREAS, the Agency upon adoption of this resolution, will enter into a binding contract ("Agreement") with the City pursuant to which the Agency will irrevocably commit the Agency Funds to the Project. *40W 24 WHEREAS, a staff report (the "Staff Report," incorporated herein by reference) which se- forth facts supporting the findings made in this resolution pursuant to Section 33445 of the Hi4,alth and Safety Code, has been prepared to accompany this resolution WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may, with the consent of the City, pay part or all of the cost of the construction of the Project if the Board ar.•d the City make certain specified findings. NOW, THEREFORE BE IT RESOLVED 1 That the Board hereby finds and determines that. (a) the Project will be of benefit to the Project Area, (b) no other reasonable method of financing the gap between the total cost of construction of the Project and the funds available to the City is available to the community; (c) the Project will assist in the elimination of one or more blighting conditions inside the Project Area, and (d) Agency assistance for the Project is consistent with the Agency's current Implementation Plan. The factual and analytical basis used by the Agency in making these findings and determinations is set forth in the Staff Report, and matenals regarding the Project provided to the Agency 2 That the Board approves the expenditure of Agency Funds as set forth in the Agreement, between the Agency and the City and submitted to the Agency in connection with consideration of this Resolution. That the Agency hereby authorizes the Executive Director of the Agency to segregate four hundred thirty thousand, one hundred eighty dollars and no cents ($430,180 00), within the Agency's accounts to be held in a separate account ("Escrow Account") upon execution of the Agreement governing the use of and accounting for the Agency Funds. 3 That the Board directs the Executive Director of the Agency to execute the Agreement with the City irrevocably committing the Agency Funds to the City for the Project and requiring that the Agency Funds be held in a separate account pursuant to IRS Code Section 18(b) IT IS FURTHER RESOLVED AND ORDERED that this resolution will become effective upon the effective date of approval by the Agency's Board of Directors. On motion by Board Member and seconded by Board Member , the foregoing resolution is hereby adopted in its entirety on the following roll call vote AYES NOES ABSENT ADOPTED• 25 n ATTEST Marcia McClure Torgerson, C.M.0 , Board Secretary APPROVED AS TO FORM. Brian A. Pienk, City Attorney on COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO I' 0 , Chair In I on Attachment 2 FINANCING AGREEMENT LAKE PARK SIGN AND FRONTAGE IMPROVEMENTS PROJECT THIS FINANCING AGREEMENT ("Agreement") is made and entered into this 8th day of December, 2009 by and between the CITY OF ATASCADERO, a general law city and municipal corporation ("City") and the COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, a public body, corporate and politic ("Agency") Hereinafter, City and Agency shall be referred to collectively as the "Parties" and singularly as the "Party " RECITALS WHEREAS, the City Council previously adopted a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment project area (the "Project Area"), and WHEREAS, the Agency is vested with responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan both within and without the Project Area, and WHEREAS, the City has commenced planning for the construction of Lake Park Sign and Frontage Improvements Project (the "Project") at Atascadero Lake Park within the City, which public facilities upon their completion will be owned and operated by the City; and WHEREAS, the City lacks sufficient capital or general funds available which could be used to fully fund the Project and bring it to completion and it is not practical to arrange for assessment district or similar financing for the Project; and WHEREAS, the City has represented to the Agency that final planning and public bidding required before construction on the Project may commence and may take up to 24 months to be completed, and WHEREAS the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will improve the public safety, attract additional tourists, assist with improving physical aesthetics, and alleviate blighting conditions in the area serving as the gateway to the Project Area, and WHEREAS, the Project is consistent with and will promote the Agency's Implementation Plan, and WHEREAS, the Agency intends to provide funding ("the Agency Funds") to assist the City with the cost of the Project because the Project will directly benefit the Project Area, and WHEREAS pursuant to Health and Safety Code Section 33445, the Agency may with the consent of the City Council, pay part or all of the cost of the construction of the Project if the Board and the City make certain specified findings, and WHEREAS, a noticed public hearing was held on December 8, 2009 wherein the Agency adopted Resolution No making all required findings for the use of Agency funds for the Project pursuant to Section 33445 NOW THEREFORE, the Parties hereto state and agree as follows 1 The purpose of this Agreement is to set forth the understanding and agreement of the Parties with respect to the Agency s commitment to fund of the Project The contents of this Agreement are intended to be as comprehensive as possible with respect to the Agency s commitment of funds to the Project yet not exhaustive with respect to additional issues that may arise relative to the development of the Project. In the event that issues occur that are not identified in this Agreement, the Parties agree to work together in good faith to resolve each matter 2. The Parties understand that the City will be required to complete final planning and public bidding required before construction on the Project may commence Those final plans and the public bidding are prerequisites for the City's construction of the Project, including the improvements that will be of benefit to the Project Area. 3 The Parties further understand that the City expects that undertaking final planning activities, putting the Project out to bid, receiving bids, selecting a contractor and negotiating a contract with the selected contractor will take at least 6 months and could take as long as 24 months. 4 The estimated total cost of the Project is $450,000 00 ("Total Cost") The Agency anticipates that the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area by improving public safety, attracting additional tourists, enhancing the visitors experience, assisting with improving physical aesthetics, and alleviating blighting conditions in the area serving as the gateway to the Project Area. The Agency has agreed to commit a total sum of four hundred thirty thousand, one hundred eighty dollars and no cents ($430 180 00) ("Agency Funds") to the Project to pay for the direct benefit to the Project Area. 5 The Parties agree that the Agency shall use the Agency Funds to the extent such funds have not been previously committed and are available in the Agency General Fund 220 to pay for and/or reimburse City for costs and expenses associated in any way with the design and construction of the Project including, but not limited to, services and costs for design, construction, installation, landscaping, project management, outside construction support, CEQA costs, necessary permits, temporary construction easements, and access agreements. 6 Within thirty (30) business days of the Parties executing this Agreement, Agency shall segregated the sum of four hundred thirty thousand, one hundred eighty dollars and no cents ($430,180 00) within the Agency s accounts to be held in a separate account ("Escrow Account") to pay the Agency s share of the Project costs The Agency Funds shall be held in the Escrow Account until 2 months from the later of the date the project is completed or the date of the final invoice. The City shall request reimbursement from the Agency for Project costs actually incurred and the Agency shall reimburse the City from the Agency Funds in the Escrow Account. It is understood and agreed between the Parties that any funds remaining in the Escrow Account at the expiration of the 2 month period following the later of the date of the project completion or the date of the last invoice shall revert to the full control and discretion of the k-gency 7 The City understands and agrees that the sources of the Agency Funds may be the proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to California Health and Safety Code Section 33670 (the "Bonds") If bonds are used as a funding source, the City covenants and agrees with respect to the Project to comply with all 29 applicable requirements of the federal Internal Revenue Code necessary to preserve the tax- exempt status of the interest on the Bonds and specifically covenants without limiting the generality of the foregoing, as follows (a) Private Activity The City will take no action or refrain from taking any action or make any use of the proceeds of the Bonds or of any other monies or property which would cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended, and (b) Arbitrage The City will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take any action or refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and (c) Federal Guaranty The City will make no use of the proceeds of the Bonds or take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of 1986, as amended, and (d) Information Reporting. The City will cooperate with the Agency in providing information that the Agency needs to comply with the informational reporting requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended, and (e) Hedge Bonds The City will make no use of the proceeds of the Bonds or any other amounts or property, regardless of the source, or take any action or refrain from taking any action that would cause the Bonds to be considered "hedge bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, unless the City takes all necessary action to assure compliance with the requirements of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, to maintain the tax exempt status of interest on the Bonds for federal income tax purposes and such action has been approved by the Agency 8 In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being Parties to an agreement as defined in Section 895 of said code, the Parties hereto, as between themselves pursuant to the authorization contained in Sections 895.2 and 895 6 of said code, will each assume the full liability imposed upon it or any of its officers, agents or employees by law for personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or omission of that party occurring in the performance of the Agreement. To achieve the above stated purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or expense ansing out of its own negligent or wrongful acts or omissions 9 This Agreement shall be governed by the laws of California and together with the attached exhibits represents the entire agreement of the Parties as to the subject matter of this Agreement. 005 IN WITNESS WHEREOF, the City and Agency have approved the foregoing FINANCING AGREEMENT and caused the same to be executed by their duly authorized officers as set forth below APPROVED AS TO FORM City Attorney APPROVED AS TO FORM LM 31 Agency General Counsel CITY : City Manager AGENCY Lo Executive Director M M ITEM NUMBER Rk, B-3 DATE 12/08/09 Atascadero Community Redevelopment Agency Staff Report - Executive Director Allocation of Funds for Zoo Wall Improvement Project RECOMMENDATIONS Agency Board Adopt the Draft Resolution irrevocably allocating funds for completion of the Zoo Wall Improvement Project and authorize the Executive Director to enter a Financing Agreement with the City of Atascadero, 2 Direct Staff to not use Agency funds for completion of the Zoo Wall Improvement Project. DISCUSSION The Redevelopment Agency Board has indicated in the past that the Zoo Wall Improvement Project was a high priority and one that should be funded with Agency General Funds The Agency began budgeting for this project in fiscal year 2007-2008 and funding for the entire project was included as part of the Lake Park Sign, Frontage and Zoo Wall Improvements Project in the budget adopted by the Agency board on June 9, 2009 On September 22, 2009, the Agency Board moved all funds ($240,000) slated for zoo wall improvements to the Zoo Restroom and Entrance Project. At the same time, the Agency Board voted to delay (but not eliminate) the zoo wall improvements and reminded staff that the Zoo Wall Improvement Project remains a high priority of the Redevelopment Agency This means that the Zoo Wall Improvement Project does not currently have funding, but there was a strong desire expressed by the Board to find funding Recent legislation has passed and will take effect on January 1, 2010, that limits the Agency's ability to fund this and other projects outside the Redevelopment Project Area unless funds are committed to the project prior to the end of the calendar year If the V,, Board continues to see this project as a high priority and would like to fund it with Agency funds, the Board may adopt the attached draft resolution tonight and authorize the Executive Director to execute a Financing Agreement with the City This action 32 v. cuid commit the Agency to funding the Zoo Wall Improvement Project as soon as r!.,nds become available and prior to funding any new Agency projects. On the other hand, if the Board finds that Zoo Wall Improvement Project is not one of the highest priorities of the Agency, the Board may elect not to adopt the draft resolution This would allow the Agency to commit funds to new projects, however, without the adoption of the draft resolution, the Agency may not legally be able to provide funding for this project since it is outside of the Redevelopment Project Area Because of City funding constraints this action would severely limit the feasibility of completing the project in the foreseeable future The Agreement In effect this draft resolution and agreement change the project from a project that is completed directly by the Redevelopment Agency to a project that the Agency is contracting with the City to complete The attached draft resolution and agreement commit the Agency to reimburse the City up to $240,000 for the project as soon as funds become available This commitment is part of a legally binding financing agreement with the City and once pledged, cannot be reversed Once Agency funds become available, the City will be committed to building and completing the Zoo Wall improvement Project. The Agency will not pay the City any additional administrative funds and any funds remaining at the end of the project will be returned to the Agency The Project The City of Atascadero has commenced planning for the construction of the Zoo Wall Improvement Project. This Project would install a ten -foot high masonry wall for the angth of the City's Charles Paddock Zoo, along Highway 41 The wall will enhance the beauty of the corridor along Highway 41 and the Zoo, serve as a decorative sound barrier between the Zoo and the vehicular and pedestrian traffic, and provide safety and security for pedestrians, exhibits, and animals Benefit to Project Area The completion of the Zoo Wall Improvement Project would benefit the Project Area by• • Providing improved aesthetic appeal both from inside and outside the Zoo, and along the Highway 41 corridor From inside the Zoo, the wall will act as a beautiful backdrop for future exhibits From outside the Zoo, the decorative masonry will provide a visually pleasing barrier and will define the perimeter of the facility and the Highway throughway • Increasing safety and security The wall would offer enhanced safety for visitors and would provide a greater level of security against criminal activities • Alleviating blighting conditions The current fence is deteriorating and is an ineffective visual barrier to the area along Highway 41 that is currently used in a storage capacity • Providing a sound barrier The 10 foot masonry wall will diminish the noise pollution resulting from the vehicular traffic from the adjoining Highway 41 The location of the Zoo is considered to be the western gateway to the Project Area. The completion of this project is expected to improve the beauty and alleviate the •,, blighted condition of this gateway area, enhance the visitors' experiences, and generate additional tourism throughout the Project Area Additionally, the project will provide 33 residents of the Project Area an enhanced and more aesthetically pleasing recreational opportunity No Other Method of Financing With the condition of the local, state, and national economy, the City has reduced the general fund budget. All but the highest Council priorities have been cancelled or postponed The City has indicated to the Agency that sufficient funding is not otherwise available It is not practical to arrange for an assessment district or other funding mechanism for the project at this time Elimination of Blighting Conditions As indicated earlier in this report, the wall project location at the Charles Paddock Zoo is the western gateway to the Redevelopment Project Area. The removal of the old, chain link fencing and the installation of the new masonry wall will provide a visual barrier, alleviating the appearance of the blighting conditions Consistency with Implementation Plan The Agency's Redevelopment Implementation Plan was last revised in June of 2008 The construction of the Zoo wall is consistent with the Plan and helps to accomplish two of the goals set forth in Section 210, Objectives of the Redevelopment Plan • Section 21011 — Creation/enhancement of recreational and cultural opportunities available to the residents of the Project Area and of the community at -large, including enhancement of Atascadero Lake Park. • Section 210 15 — Elimination or mitigation of other existing blighting conditions and influences, including incompatible and uneconomic land uses, obsolete or substandard structures, inadequate and deteriorated public facilities, and/or small, multiple ownership, irregular or landlocked parcels FISCAL IMPACT With the adoption of the draft resolution and authorization to execute the financing agreement, the Agency commits $240,000 to the Zoo Wall Improvement Project. If the Board does not adopt the draft resolution, there is no fiscal impact. ATTACHMENTS 1 Draft Resolution 2 Draft Financing Agreement -Zoo Wall Capital Improvement Project M 34 19 Attachment i DRAFT RESOLUTION RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, CALIFORNIA, IRREVOCABLY ALLOCATING FUNDS FOR COMPLETION OF THE CITY OF ATASCADERO'S ZOO WALL IMPROVEMENT PROJECT WHEREAS, the City Council for the City of Atascadero (the "City") has adopted the Redevelopment Plan for the Project Area (the "Redevelopment Plan") WHEREAS, the Community Redevelopment Agency of Atascadero (the "Agency") and the Agency Board of Directors ("Board") is vested with responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan in the Project Area. WHEREAS, the City has commenced planning for the construction of Zoo Wall Improvement Project (the "Project") at Charles Paddock Zoo within the City, which public facilities upon their completion will be owned and operated by the City WHEREAS, the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will improve the public safety, attract additional tourists, enhance the visitors' experiences, and assist with improving physical aesthetics, and alleviate blighting conditions in the area serving as the gateway to the Project Area. WHEREAS, the Project is consistent with and will promote the Agency's Implementation Plan. WHEREAS, the construction of the Project conforms to the General Plan of the City WHEREAS, the City lacks sufficient capital or general funds available which could be used to undertake the Project and bring it to completion and it is not practical to arrange for assessment district or any other similar financing for the Project. WHEREAS, the City has represented to the Agency that final planning and public bidding required before construction on the Project may commence and may take up to 60 months to be completed. WHEREAS the Agency intends to provide funding ("the Agency Funds") to assist the City with the cost of the Project in order that the Project be fully funded. WHEREAS, the Agency, upon adoption of this resolution, will enter into a binding contract ("Agreement") with the City pursuant to which the Agency will irrevocably commit the In 36 Agency Funds to the Project if and when those funds become available and are adopted by the E �-iard for use on this project. WHEREAS a staff report (the "Staff Report," incorporated herein by reference), which sets forth facts supporting the findings made in this resolution pursuant to Section 33445 of the Health and Safety Code, has been prepared to accompany this resolution WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may, with the consent of the City, pay part or all of the cost of the construction of the Project if the Board and the City make certain specified findings NOW, THEREFORE BE IT RESOLVED 1 That the Board hereby finds and determines that. (a) the Project will be of benefit to the Project Area, (b) no other reasonable method of financing the gap between the total cost of construction of the Project and the funds available to the City is available to the community; (c) the Project will assist in the elimination of one or more blighting conditions inside the Project Area, and (d) Agency assistance for the Project is consistent with the Agency's current Implementation Plan The factual and analytical basis used by the Agency in making these findings and determinations is set forth in the Staff Report, and materials regarding the Project provided to the Agency 2. That the Board approves the expenditure of Agency Funds as set forth in the Agreement, between the Agency and the City, and submitted to the Agency in connection with consideration of this Resolution when those funds become available That the Agency hereby authorizes the Executive Director of the Agency to segregate two hundred forty thousand dollars and no cents ($240,000 00), within the Agency's accounts to be held in a separate account ("Escrow Account") upon the later of the execution of the Agreement governing the use of and accounting for the Agency Funds or the availability of the funds for use on this project. 3 That the Board directs the Executive Director of the Agency to execute the Agreement with the City irrevocably committing the Agency Funds to the City for the Project and requiring that the Agency Funds be held in a separate account pursuant to IRS Code Section 18(b) IT IS FURTHER RESOLVED AND ORDERED that this resolution will become effective upon the effective date of approval by the Agency s Board of Directors On motion by Board Member , the foregoing resolution following roll call vote 37 and seconded by Board Member is hereby adopted in its entirety on the M AYES NOES ABSENT ADOPTED ATTEST Marcia McClure Torgerson, C.M.C., Board Secretary APPROVED AS TO FORM. Brian A. Pienk, City Attorney En COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO C Chair W: F5 m Attachment 2 FINANCING A GREEMENT ZOO WALL IMPROVEMENT PROJECT THIS FINANCING AGREEMENT ("Agreement") is made and entered into this 8tn day of December, 2009 by and between the CITY OF ATASCADERO a general law city and municipal corporation ("City") and the COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, a public body, corporate and politic ("Agency") Hereinafter, City and Agency shall be referred to collectively as the "Parties" and singularly as the "Party " RECITALS WHEREAS, the City Council previously adopted a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment project area (the "Project Area"), and WHEREAS, the Agency is vested with responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of California) (the "Law") to implement the Redevelopment Plan both within and without the Project Area, and WHEREAS, the City has commenced planning for the construction of Zoo Wall Improvement Project (the "Project") at Charles Paddock Zoo within the City, which public facilities upon their completion will be owned and operated by the City; and WHEREAS, the City lacks sufficient capital or general funds available which could be used to fully fund the Project and bring it to completion and it is not practical to arrange for assessment district or similar financing for the Project, and WHEREAS, the City has represented to the Agency that final planning and public bidding required before construction on the Project may commence and may take up to 60 months to be completed, and WHEREAS, the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that the Project will improve public safety, attract additional visitors, assist with improving physical aesthetics, and alleviate blighting conditions in the area serving as the gateway to the Project Area, and WHEREAS, the Project is consistent with and will promote the Agency s Implementation Plan, and WHEREAS, the Agency intends to provide funding ("the Agency Funds") to assist the City with the cost of the Project because the Project will directly benefit the Project Area, and WHEREAS, pursuant to Health and Safety Code Section 33445 the Agency may with the consent of the City Council, pay part or all of the cost of the construction of the Project if the Board and the City make certain specified findings, and WHEREAS, a noticed public hearing was held on December 8, 2009 wherein the Agency adopted Resolution No making all required findings for the use of Agency funds for the Project pursuant to Section 33445 NOW THEREFORE, the Parties hereto state and agree as follows 1 The purpose of this Agreement is to set forth the understanding and agreement of the Parties with respect to the Agency s commitment to fund of the Project. The contents of this Agreement are intended to be as comprehensive as possible with respect to the Agency's commitment of funds to the Project yet not exhaustive with respect to additional issues that may arise relative to the development of the Project. In the event that issues occur that are not identified in this Agreement, the Parties agree to work together in good faith to resolve each matter 2. The Parties understand that the City will be required to complete final planning and public bidding required before construction on the Project may commence. Those final plans and the public bidding are prerequisites for the City's construction of the Project, including the improvements that will be of benefit to the Project Area. 3 The Parties further understand that the City expects that undertaking final planning activities, putting the Project out to bid, receiving bids, selecting a contractor and negotiating a contract with the selected contractor will take at least 24 months and could take as long as 60 months. 4 The estimated total cost of the Project is $258,000 00 ("Total Cost") The Agency anticipates that the Project will address the goals and objectives of the Redevelopment Plan for the Project Area and will be of benefit to the Project Area by improving public safety, attracting additional visitors, enhancing the visitors' experiences, assisting with improving physical aesthetics, and alleviating blighting conditions in the area serving as the gateway to the Project Area. The Agency has agreed to commit a total sum of two hundred forty thousand dollars and no cents ($240,000 00) ("Agency Funds") to the Project to pay for the direct benefit to the Project Area. 5 The Parties agree that the Agency shall use currently available Agency Funds to the extent such funds have not been previously committed. If funds are not currently available, Agency agrees to dedicate uncommitted tax increment revenue received in the next fiscal year(s) until the total commitment of Agency Funds is reached. These funds are hereby dedicated to pay for and/or reimburse City for costs and expenses associated in any way with the design and construction of the Project including, but not limited to, services and costs for design, construction, installation, landscaping, project management, outside construction support, CEQA costs, necessary permits temporary construction easements, and access agreements. 6 No later than thirty (30) business days of the date the City puts the contract out to bid, Agency shall segregated the sum of two hundred forty thousand dollars and no cents ($240,000 00) within the Agency's accounts to be held in a separate account ("Escrow Account") to pay the Agency's share of the Project costs The Agency Funds shall be held in the Escrow Account until 2 months from the later of the date the project is completed or the date of the final invoice The City shall request reimbursement from the Agency for Project costs actually incurred and the Agency shall reimburse the City from the Agency Funds in the Escrow Account. It is understood and agreed between the Parties that any funds remaining in the Escrow Account at the expiration of the 2 month period following the later of the date of the project 41 In completion or the date of the last invoice shall revert to the full control and discretion of the Agency 7 The City understands and agrees that the sources of the Agency Funds may be the proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to California Health and Safety Code Section 33670 (the "Bonds") If bonds are used as a funding source, the City covenants and agrees with respect to the Project to comply with all applicable requirements of the federal Internal Revenue Code necessary to preserve the tax- exempt status of the interest on the Bonds and specifically covenants, without limiting the generality of the foregoing, as follows (a) Private Activity The City will take no action or refrain from taking any action or make any use of the proceeds of the Bonds or of any other monies or property which would cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended, and (b) Arbitrage The City will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take any action or refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, and (c) Federal Guaranty The City will make no use of the proceeds of the Bonds or take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of 1986, as amended, and (d) Information Reporting. The City will cooperate with the Agency in providing information that the Agency needs to comply with the informational reporting requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended, and (e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any other amounts or property regardless of the source, or take any action or refrain from taking any action that would cause the Bonds to be considered "hedge bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, unless the City takes all necessary action to assure compliance with the requirements of Section 149(g) of the of the Internal Revenue Code of 1986, as amended, to maintain the tax exempt status of interest on the Bonds for federal income tax purposes and such action has been approved by the Agency 8 In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being Parties to an agreement as defined in Section 895 of said code, the Parties hereto, as between themselves pursuant to the authorization contained in Sections 895 2 and 895 6 of said code, will each assume the full liability imposed upon it or any of its officers, agents or employees by law for personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or omission of that party occurring in the performance of the Agreement. To achieve the above stated purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or expense ansing out of its own negligent or wrongful acts or omissions CM 42 9 This Agreement shall be governed by the laws of California and together with the attached exhibits represents the entire agreement of the Parties as to the subject matter of this Agreement. IN WITNESS WHEREOF, the City and Agency have approved the foregoing FINANCING AGREEMENT and caused the same to be executed by their duly authorized officers as set forth below APPROVED AS TO FORM City Attorney APPROVED AS TO FORM ma W Agency General Counsel CITY City Manager AGENCY Executive Director M ITEM NUMBER RA C-1 DATE 12/08/09 Initially brought before the Board on 11/10/09 Atascadero Community Redevelopment Agency Staff Report — Executive Director Business Stimulus Program Loan Program for Downtown Affordable Housing and Related Retail Uses RECOMMENDATIONS Agency Board 1 Find the program consistent with the Council approved housing policy; and, 2 Authorize the Administrative Services Director to appropriate $500,000 from the Redevelopment Low/Moderate income Housing Fund for the Downtown Affordable housing Program, and, 3 Authorize the Executive Director to implement the program and sign related loan documents and agreements DISCUSSION This item was initially brought before the Community Redevelopment Agency Board on November 10, 2009, at which time the Board referred it back to Staff for more information At the November 24, 2009, Agency Board meeting, it was the consensus of the Board to withdraw their request for more information and to have the report brought back as originally presented Summary: In response to the City Council's number one goal, to increase revenues through economic development and stimulate the City's economy, the Atascadero Office of Economic Development (OED) was established in December 2008 One of the first projects for the OED was to develop a comprehensive business stimulus program The Atascadero Business Stimulus Program was approved by the City Council on June 23, 2009 One of the components of the program was to encourage development of affordable housing units and retail space within vacant buildings in the downtown area. This report introduces such a program Background. There are several two-story buildings of various ages throughout the downtown area that are currently vacant. The buildings are located predominantly along EI Camino Real and Entrada Avenue The buildings have sat vacant for some time Based on their condition, cost to renovate and the current economic environment, it is not financially feasible to invest in the buildings to make them suitable for occupancy, as revenues derived from current lease rates would not create a reasonable return on investment or positive cash flow Because of this, these buildings continue to sit vacant. One of the suggestions approved by the City Council on June 23, 2009 was to create a program that would provide long-term loans to property owners of these vacant buildings to improve them, specifically for retail uses on the first floor and affordable housing on the second floor Staff has created such a program for Agency consideration Comaonents of Proqram The primary goal of the program is to create an incentive for developers to improve vacant buildings in the downtown zone for housing/retail uses through a favorable loan program The program offers a $100,000 loan from the Affordable Housing Fund in exchange for the Agency receiving an affordable housing unit downtown for 55 years, and a new or improved retail use on the ground floor Owners are responsible to rent and maintain the affordable housing unit throughout the duration of the loan and are responsible for all related reporting and placement of tenants Revenues generated from the affordable housing unit are kept by the owner Owners may participate in the program by filling out the attached Draft Owner Participation Agreement (Attachment A) The loan is due to the Agency through one balloon payment payable at the conclusion of the 55 -year term, or sooner if the property is sold This payment shall consist of the original principal amount of $100,000 plus a pro -rata share of the appreciation of the project since the date the loan was initiated The pro -rata share of appreciation is determined based on an appraisal provided by the project owner at the time the loan is issued For example, if a property owner receives a $100,000 loan on a building that is worth $500,000 on the day the loan is taken out in 2009, and at the end of the loan term in 2064 the building is worth $2,000,000, the Agency would receive a payment of $400,000 This is calculated based on the fact that the Agency's investment was equivalent to 20% of the building's value in 2009 If the building appreciated $1,500,000 over 55 years, the Agency would receive 20% of the appreciation, or $300,000 This appreciation, plus the principal would total $400,000 If the property has depreciated in fair market value upon the conclusion of the 55 year term or upon sale, the City will forgive the amount of the depreciation up to the $100,000 loan principal amount. This policy of forgiving a portion of the debt upon decreases in value due to normal market fluctuations is consistent with the City's other affordable housing programs Although, the property may be sold prior to the end of the 55 -year term, the restriction shall remain in place for the remainder of the 55 -year term Loans will be secured by a deed of trust (Attachment B) and Promissory Note (Attachment C), and the affordable housing unit will be protected through a recorded Regulatory Agreement (Attachment D) For an owner to be eligible to participate in the 45 rn project, the loan to value on the existing note must not exceed 90% In other words, on a property valued at $500,000, an owner must have equity of at least $50,000 To protect the Agency from a participant taking loan proceeds and abandoning the project without developing the affordable housing unit, funding will be disbursed in three increments throughout the project. After execution of the agreement and upon receipt of an approved building permit for an affordable unit, participants will receive $30,000 Upon completion of the inspection for interior framing, the participant would receive an additional $30,000 At final inspection and occupancy of the housing unit, the participant would receive the final $40,000 Funding is advanced to participants and is not provided on a reimbursement basis In essence, the Agency is buying affordable units in the downtown area for $100,000 each, not for the actual cost of completing the unit. Consistency with the General Plan, Redevelopment Plan and Affordable Housing Policy The proposed program is consistent with the City's adopted General Plan, Redevelopment Agency Plan and the Council -approved Affordable Housing Policy The current General Plan Housing Element provides the following policy direction for Downtown housing Goal HOS 1. Promote diverse and high quality, housing opportunities to meet the needs of all segments of the i%r comm xnityt Policy 1 7 Encourage shady production of new housing, including mixed-use projects in commercial land use areas, to meet the needs of all household types in the City 2. Continue to allow mixed residential and commercial development in the Downtown Zoning District. Responsible Agency- Planning Commission, City Council Timeframe: Ongoing Quantifiedobjective 1 very low income unitslyear 8 low income unitstyear The draft proposed Housing Element includes the following policy - CM Establish a program to assist building owners in converting upper floor residential space in the downtown to deed restricted extremeiy lova- very low- and low-income units Funding Source, Redevelopment Agency Set -Aside Funds and In -lieu Fees Responsible Agency Community development Department, Redevelopment Agency Timeframe within the planning period Quantified Objective. 10 units The Redevelopment Agency Plan includes the following housing policies 210.9 Expansion and/or improvement in the quality of the community's existing housing stock for low- and moderate -income persons, through rehabilitation, reconstruction programs. Section 420 — PROVISION OF LOW AND MODERATE INC MP HO StNC To carry out the purposes of this Article 4, the Agency may, to the extent permitted by law, acquire land, donate land, improve sites, or construct or rehabilitate structures or exercise any or all of its powers authorized under Section 33334.2 of the Health and Safety Code in order to provide housing for persons and families of low or moderate income. The Agency may also provide subsidies to, or for the benefit of such persons and families or households to assist them in obtaining housing within the City The Agency may enter into agreements with appropriate organizations for the purpose of increasing and improving the City's supply of low or moderate -income housing The Agency shall provide preference to projects and activities within the Project Area for the purposes of this provision. 720 4 Housing programs including the fallowing (1) Rehabilitation (2) Replacement housing needs (3) Neighborhood residential conservation (4) Development of new, affordable units The City Council approved an Affordable Housing Plan and RDA funding checklist in August 2009 Staff has completed a preliminary checklist scoring for the program on the following pages The program receives 79% percent of all the possible points, which staff considers a good score The program loses points on the cost per unit, which is on the high side of the checklist scale and the lack of a local non-profit in the program However, due to the nature of this program, focusing on rehabilitating existing downtown apartments, these deficiencies are understandable 47 M It is staff's opinion that the proposed program is very consistent with both the City's downtown and affordable housing goals and policies En City of Atascadero - Affordable Housing Participation Checklist Organization Name: Project Name: Contact Person Phone: Email Address: Application Number - City of Atascadero PDA Downtown StI1111.111.1s Loan Program Warren Frace 8051461-5000 F— wfrace�tataagLadero orc Is this an update to an existing checklist? Date: Project Type: New Construction Rehabilitation 1r es Optional Points value 2 points Description 11 "'W "V' Encouraged Points value 4 points 1-1 Funding Lei eraged High Priority Points value 10dR-0 ntg 2-3 En,,ironmental Suitability Mandatory Points value 2 1-2 Principal Sum Public lnw'c ztment Criteria Description 11 "'W "V' Requirement Type Points 1-1 Funding Lei eraged Does the project follow General Plan Consistency? Are there funds from other sources? 2-3 En,,ironmental Suitability Are therenosignificant environmental issues? 2 1-2 Principal Sum Public lnw'c ztment Will principal sum be recovered in specified time? 1-3 Return on Investment Will there be a reasanable, return on investment? 1 Cost Per Unit 0 Lower City cost per unit given higher priority Does project provide high quality architecture? 420,000 10,pts. $26.000-40,0001,iopts. ,$40,001-60;000 =- 8 pts.460,00"101,000 -4 Pts 2 Does project provide high quality landscape? 2 2-S Commercial Component Project includes mooed use? 10 f0I V�N A ~ 001 10 F- —OA 7P 2-1 Neighborhood Compatibility Does the project fit the neighborhood? 4 2-2 vkd heren cc - Zo n in g Requirements Does the project follow General Plan Consistency? Z 2-3 En,,ironmental Suitability Are therenosignificant environmental issues? 2 2-- Neighborhood ;acceptance Does the neighborhood support? (neighborhood meeting required) 2 2-5 Green Development Plan Is the project LEED certified? 0 2--6 Building Appearance Does project provide high quality architecture? 4 2-7 Landscape Does project provide high quality landscape? 2 2-S Commercial Component Project includes mooed use? 10 2-9 Downtown Site Project in downtown zone? 10 2-10 Located in RDA Project 4ve.a Project in the Redevelopment Project Area? 10 48 M En 49 '-1 Ver} Low Income Percentage very low income units? t10F p Q"�OF� t pts 9ko_P 18 -2 Low Income Percentage very lotw income units? 410 ..= 0Pts,10.30x= 5pts,00Y ellopts 10 '-3 Moderate Income Will there be any Moderate Income units? 0 3-4 Rental Units Project Does p-roject include rental units? t50'/-Opts,50.75Y= 5pts,s75%=10pts 10 E Number of unitsildensityF Is Project at maximum General Plan density's 3-u Variety of Unit SizeIs there a mix of unit sizefbedrooms? (min, 25% of units) 0 ar a rs `�, A ) VMS,, 4-1 OwnershipUnits. Deed Restriction Term 4S year term required �- 2 Rental Unit Deed Restriction Term 55 year term required Proposing to. ded restrict, at lease 10 years more than 0 4-3 Add itional 'ime Restriction 451,55 years? e, .,u" �u� X 11 n.. S� �'+ x "t'a. '� 18 =1 Local Non-profUl'or Profit is project a SLO county nan-profit involved in the protect 7,i. ' 0 S-2 Local Proponent is project propn'nent iacsted in SLQ County? 2 Is developer experienced in affordable housing 70y! 10 3 Experience of Proponent. references?. M S-4 Project Timing & Readiness jAre Project entitlements approved? , : grim S{ Percentage of Points Received = 79% Paint Scored 157 Out of Total Points 20,0 FISCAL IMPACT Loans would be capped at $100,000 per affordable housing unit built. The total cost of the program is $500,000 Funding for this program is available in the Affordable Housing Fund ATTACHMENTS Attachment A- Owner Participation Agreement Attachment B- Deed of Trust Attachment C- Promissory Note Attachment D- Regulatory Agreement 50 Attachment A OWNER PARTICIPATION AGREEMENT [Atascadero Downtown.stimulus Program] by and: between the COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO LA #4828-1716-5060 v2 51 Dated 2009 OWNER PARTICIPATION AGREEMENT This Owner Participation Agreement (the "Agreement"), which is dated for reference as Indicated on the cover page, is hereby entered Into by and between the COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO, a public body, corporate and politic ("Agency") and ("Participant"), on the following terms and conditions RECITALS A. General Purpose. This Agreement provides a;.mechanism whereby Participant may participate in the redevelopment of the Project Area Itsx eneral purpose is to Implement the Redevelopment Plan, to decrease blight, and to enhiince the economic feasibility of development within the Project Area in a manner consisten°t\wltth the goals, objectives, policies and standards of the Redevelopment Plan and those of Agency and the City This Agreement is in accord with the applicable state and federal laws;..:,_ B Specific Purpose. The spec!tac ,,purpose of this Agf`eement is to facilitate development of the Project by Participant as de�ein ibed her.,. Conditions;:existmg within the Project Area are perpetuating the existence of blig tf ery g"ho retard private evelopment, and currently render development of thect economical&.1"',feasible without the assistance of the ,, Agency This Agreement is, therefo e, 4i 'Onded to set"f r,,tb the obligations of Participant to develop the Project and the manner d the ex ento which the Agency will assist Participant in that endeavor Specifical ;,this Ag enient wiIU th forth Participant's obligation to provide housing at an �ble Cost d the Sade aid .Agency"s obligation to assist in the funding of renovation s"the S'it& � ' E Y r . .i C Evidence Indebt ness. Thf"gh this Agreement, Agency has indebted itself to the payment of a mond �; oblii i�n.aubject;o, the terms and conditions contained herein, and such € cbt� Nether fund, iin unded assumed .or otherwise, may be considered a debt of Agency, f6i purpose-l"pf; ;issuing �ol zatements Qf Indebtedness and Reconciliation Statements pursuattt tt ;:.California 14 and S,4fdty. Code § 33675 D Speculation not Permitter Participant understands and acknowledges that the purpose of thisAgreement is not'tp facilitate speculation or excess profit-taking in the Project or Site within the meanipg of Calit"riia Health and Safety Code § 33437.5 as that section exists on the date of this Agreeiient © 's it may thereafter be amended, repealed and reenacted, or otherwise modified.r DEFINITIONS "Action" shall mean any suit (whether legal, equitable, or declaratory in nature), proceeding or hearing (whether administrative or judicial), arbitration or mediation (whether voluntary, court-ordered, binding, or non-binding), or other alternative dispute resolution process, and the filing, recording, or service of any process, notice, claim, demand, lien, or other instrument which is a prerequisite or prelude to commencement of the Action. "Affordable Rent" shall mean "affordable housing cost" as that term is defined and applied under California Health and Safety Code § 50052.5 and the implementing regulations ,%W LA #4828-1716-5060 Q 52 -ontained in Title 25 Cal. Code Regs § 6910 et seq to renter -occupied housing for Very Low Income Households Affordable rent is further defined as the monthly housing expenses, including all fees for housing services and a reasonable allowance for utilities, that for Very Low income Households, is equal to or less than one -twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Area Annual Median Income, as adjusted for Appropriately -Sized households Affordable Rent shall be calculated by the City as shown in Exhibit A or as issued on a monthly basis by San Luis Obispo County "Agency" shall mean the Community Redevelopment Agency of Atascadero, a public body organized and existing and exercising those governmental functions and powers, as authorized under the Community Redevelopment Law (Health and Safety Code § 33000, et seq ) of the State of California. The term the "Agency" shall also include any assignee of, or successor to, the rights and responsibilities of Agency under this Agreement. "Agency Loan" shall mean the amount paid b,y the Agencypursuant to Section 3 1 1 "Appreciation Amount" shall mean the difference between the original fair market value of the Site as appraised pursuant to Section 3 1.2.2,and the appraised fair'triorket value upon sale of the Site. "City" shall mean the City formed and existing under the laws any assignee of, or successor to, its "Completion" 41ralfi iean the [Completion] of this?Agreement. "Contingent Interest" shalvi 5l v the a gene law city and municipal corporation California ,;,The term "City" shall also include and responsibilities afih Project as provided for in Section 1.2.1.5 lernuned;by dividing the amount of the Agency Loan to as appraised pursuant to Section 3 1.2.2 and then onAmount. "Default" shall mean :the failure of a party to perform any material action or covenant required by"at3d within the tune periods ,provided herein following notice and opportunity to cure, as set for h, 0P Section 6 11 [,Default] Of this Agreement. "Developmehi Costs" shall mean all the costs and expenses which must necessarily be incurred in the design, development, construction and completion of the Project, including but not limited to predevelopment costs, Participant's overhead and related costs, costs of acquiring the Site, design and engineering costs, development costs, construction costs, fees payable to accountants, appraisers, architects, attorneys, biologists, construction managers, engineers, geologists, hydrologists, inspectors, planners, testing facilities, and other consultants, impact, development, park, school and other fees and charges imposed by governmental entities as a condition approval on the Project; costs for obtaining permits and approvals, taxes, assessments, costs related to testing for and remediation of Hazardous Substances, utility connection fees and other utility related charges, costs relating to financing including principal, interest, points, fees and other lender charges, escrow fees and closing costs, recording fees, court costs, costs relating to insurance, costs relating to title insurance, costs relating to bonds, Development Fees, and all LA #4828-1716-5060 Q 53 In In other costs and expenses of Participant related to the performance of this Agreement. "Development Fees" shall mean those fees, charges, and exactions imposed by the City upon the development of the Project on the Site, including, but not limited to, application fees, processing fees, development fees, impact fees, mitigation fees, park fees, storm drain fees, sewer fees, and other related charges "Effective Date" shall mean the date the Agreement has been formally approved by the Agency's governing board and executed by the appropriate authorities of the Agency and Participant. "Environmental Review" shall mean the mves4, Oi in and analysis of the Project's impacts on the environment as may be required under th ... forma Environmental Quality Act 3 ' ("CEQA"), Public Resources Code § 21000, et seq, an for the Tmect's impacts on any species of plant or animal listed as a species of concern, althreatened species,, or an endangered species, or habitat therefore, as may be required by the 61iforma Endangered Species Act ("CESA"), Fish and Game Code § 2050, et seq , and/or "the' U S Endangered Species Act ("USESA"), 16 vP U S C § 1531, et seq , or other applicable Califorritia or federal."law or regulid on. "Executive Director" shit"t h .mean the Ex c Director of the Community Redevelopment Agency of Atascaierzi and/or any perst�q designated and authorized by the Executive Director to act in the Execuirector°s capacityyvith regard to this Agreement. "Hazardous Substances" shall me inany and.Xill.00f the (i) any substance, product, waste `ort ofhtr materIA,-6f any nature whatsoever which is or becomes listed, rai hated, o for which �l!1ability arises for nususe, pursuant to the Comprehensive Environ' al Re pi se Compensation and Liability Act ("CERCLA"), 42 U.S C §9b0,teq the It`'"afti ials Trsportation Act, 49 U S C §1801, et seq ,the Resouro C0riservaton ,and I��very Act"--, 42 USC §6901, et seq , the Toxic Substances Control Act S.U.S C ,;§2601, ei seq , the Clean Water Act, 33 U S C §1251, et seq , thesecticide, Fungicide, R+adrnticide Act, 7 U S C § 136, et seq , the Superfund AmendmentVand Reauthorization Act, 42 U.S C. §6901, et seq , the Clean Air Act, 42 U S C. §7401, et seq , the Safe Drinking Water Act, 42 U S C §300f, et seq , the Solid Waste Disposal Act, 42 U S C §69,01, et seq , ,tie Surface Mining Control and Reclamation Act, 30 U S C § 1201, et seq ,the Emergency Planning and Community Right to Know Act, 42 U S C §11001, et seq , the Occupationa iSafety;-.and Health Act, 29 U.S C §§655 and 657, the Hazardous Waste Control Act, California Halih and Safety Code ("H.&S C ") §25100, et seq, the Hazardous Substance Account Act, H.&S C.§25330, et seq , the California Safe Drinking Water and Toxic Enforcement Act, H.&S C §25249.5, et seq, the Underground Storage of Hazardous Substances, H.&S C. §25280, et seq, the Carpenter -Presley -Tanner Hazardous Substance Account Act, H.&S C §25300, et seq, the Hazardous Waste Management Act, H.&S C. §25170 1, et seq, the Hazardous Materials Response Plans and Inventory, H.&S C §25001, et seq , the Porter -Cologne Water Quality Control Act, Water Code § 13000, et seq , all as they may from time to time be amended, (ii) any substance, product, waste or other material of any nature whatsoever which is LA #4828-1716-5060 Q *#AW 54 or becomes listed, regulated, or for which liability for misuse arises pursuant to any other federal, state or local statute, law ordinance resolution, code, rule, regulation, order or decree due to its hazardous, toxic or dangerous nature, (iii) any petroleum, crude oil or any substance, product, waste, or other material of any nature whatsoever which contains gasoline, diesel fuel or other petroleum hydrocarbons other than petroleum and petroleum products contained within regularly operated motor vehicles, and (iv) polychlorinated biphenyls (PCB), radon gas, urea formaldehyde, asbestos, and lead. "Litigation Expenses" shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the investigation, prosecution or defense of an Action or to cure a Default of another party, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys fees, comitant fees, fees for investigators, witness fees (both lay and expert), travel expenses, deposition and transcript cosfs,`and any other costs or expenses, the award of which a court of competent jurisdiction may defermme to be dust and reasonable provisions of the City's General Plan, the City's 1 zoning, development, subdivision, and building 'all,.uniform codes incorporated therein), any app11e4.ble,map bung processed or having been ernx unt Cade ,§ 66410, et seq ), any mitigation ,,Review forth& Project, all as they exist on the after be amended, repealed and reenacted, or rurncipanr snail mean The term ,"Participant" shall, to fhdi.extent sucfi`is expressly permitted under this Agreement, include any of, orsuccessor to, the rights and responsibilities of the Participant under this Aereerfid&.,. "Project"' shall mean the renovation by the Participant of the interior and exterior of the building located on the Site under the terms and conditions set forth in this Agreement. The Project shall specifically, require, but not be limited to, the items of construction and renovation defined and described in Attachment "E" [Scope of Project] "Project Approvals" shall mean any permit, approval, determination, and/or entitlement required by the Agency and/or City and pertaining to the design, development, construction, and installation of the Project, including, but not limited to, General Plan amendments, Specific Plan amendments, zone changes, zone variances, conditional use permits, site development plans, change plans, planned sign programs, grading permits, building permits, actions under the Subdivision Map Act, encroachment permits, business licenses and other such approvals as may be required under the Atascadero Municipal Code, the Redevelopment Plan, and all other applicable ordinances, codes, policies, and procedures approved by the Agency and/or City and LA #4828-1716-5060 v2 55 en M n effective as of the Effective Date of the Agreement. "Project Area" shall mean that portion of the City that is subject to, and the boundaries of which are specifically described in, the Redevelopment Plan for the City "Project Plans" shall mean all construction, building, engineering, and architectural plans, drawings, and diagrams for grading, drainage, traffic, parking, construction and/or building, landscaping and other plans related to the Project and all designs, diagrams, drawings, specifications and other representations of or documents associated with the Project Plans. "Redevelopment Plan" shall mean merged plan of rede(Iopment for the Downtown and Midway Redevelopment Projects that was adopted by xhh "gency and City pursuant to the California Community Redevelopment Law, by Ordinan'0-6 loo ,-1280 on February 26, 2002, and as subsequently may be amended, from time to time, hereafter "Regulatory Agreement" shall mean recorded against the Site containing the Agreement. "Site" shall mean that cet square feet located at Number , as more pad and incorporated herein by reference as hereto and incorporated kiearnrrZy refer( , "Very Low Inbome Household" shad rqpt3very lord -income households" as that term is defined and used in Hgalth and Safety Code X0105 A "very low income household" means a person or family whose s ome does not exceedxftfty percent (50%) of the area median income for the apAid, geographi f i tate, adf 91ed for family size, and revised annually by the Calipia Dept of I1alig and "it�cluni`t Development. r O>f+tATIVE PROVISIONS NOW3 THEREin consdration of the mutual promises and covenants made by the parties and Contained hereit`and other' consideration, the value and adequacy of which are hereby acknowledged, the partieagree as follows ARTICLE I - DE OF THE PROJECT 1 1 Scope of D'&elopment. Participant shall, at its sole cost and expense, notwithstanding any Agency Loan assistance that may be provided by the Agency under this Agreement, design, develop, and construct the Project on the Site in accordance with the following provisions 1 1 1 Quality It is the intent of the parties that the Project exhibit the highest standards of competent design and good workmanship As such, all design work for the Project shall be undertaken by qualified architectural and/or engineering consultants and all construction work shall be performed by responsible contractors holding valid licenses for the class and 1%W LA #4828-1716-5060 Q 56 c. Pi�,ory of work being undertaken. All materials incorporated into the Project shall be of a sta dard or grade reasonably acceptable to the Agency 1 12 Project Approvals. Participant shall prepare, file, process applications for, and obtain all Project Approvals, whether ministerial or discretionary, which the City and/or in ✓ other governmental entity having jurisdiction requires for the Project. Participant agrees to Mply with the Local Regulations and all established procedures and policies of the City's planning, building, and public works departments regarding the submittal and review of applications Participant understands, acknowledges, and agrees that nothing in this Agreement is, or shall be interpreted to be, an agreement by the Agency or ;the City to approve or issue any permit, approval, or entitlement for the Project. 11.3 Conformity to Redevel Approvals required by Section 1 1.2 [Project f wat the Agency, by either its Governing Boar procedure adopted by the Agency, has the p' Agreement and the Project as to conformity.a prepare, file, and process any application requ Executive Director to undertake this review and lent Pian., In addition to any Project >valifl',Participant acknowledges and agrees Executive Director, in accordance with the and discretion to eview and approve this the RedevelopmentllPlan. Participant shall by the AQencv for tho 07 overniniz Board or y agrees to assist in the Project by partially icted or'renovated on the second floor of the and conditions set forth in Section _ of this I`hrus.and Dollars ($100,000 00) toward the '-This r assistance shall be provided out of the oceeds administered by Agency pursuant to for the purpose of increasing the supply of 1. more particularly in the Project Area. In shall record against the Site the Affordable le Regulatory Agreement required by Section I-,_1.5 Tenant Iaxking.Pticipant shall provide reserved off street parking for each affordable t"'Ousing unit in' nformance with the requirements of the zoning ordinance. In no case shall fewer4than one reserved, off-street parking space be provided for each housing unit. Participant shall mclud� and enforce a provision in its rental agreement with each tenant that the tenant will not park any vchio or trailers on City streets 1 16 Development Costs Notwithstanding any assistance to be provided by the Agency under this Agreement, Participant shall be solely responsible for payment of all Development Costs 1 17 Development Fees. Notwithstanding any assistance to be provided by the agency under this Agreement, Participant shall be solely responsible for payment of all Development Fees LA #4828-1716-5060 v2 57 In In 1 1 8 Rights of Access and Inspection. Representatives of the Agency and the 1%W City, including the Executive Director and his or her designees, shall have the reasonable right of access to the Site without charges or fees, at normal construction and/or business hours during the performance of the Project, for the purpose of, including but not limited to, reviewing Participant's progress in commencing and diligently pursuing the Project to Completion as required under this Agreement. 1 19 Compliance with Prevailing Wage Law Participant acknowledges that the construction and construction -related activities for the Project may be subject to the California Prevailing Wage Law and Participant is required to Pal y the general prevailing wage rates of per diem wages and overtime and holiday wages,A06rmined by the Director of the Department of Industrial Relations under Section 1720, et soj;, of the California Labor Code for all covered work performed on the Project. The Direct t?r'S deteznination of prevailing rates is on file with, and open to inspection at, the office of thc:City'Clerk Wxdas referred to and made a part hereof Due to the fact that Prevailing Wage L,% *, -applies to tfi'&%oject, the Contractor shall submit weekly certified payrolls of all workers eip'loyed on this Projt to the Agency in a form acceptable to the Agency Participant acknovw ages the possibility of 4age increases during construction of the Project and that Participant asid/or its contractors shMtrbe responsible for paying such increases Participant acknowledges th it mare of and shaft trnply with, and that its contractors shall be aware;,., �,pd shall corn with, the following sections of the California Labor Code (i) Section 17` ,510*t5 bing san Wns for failure to pay prevailing wage rates, (ii) Section 1776 requiring the making,1ke�ping and disdlosing of detailed payroll records and prescribing sanctions for failure to'- so, (iii) Section I'" P.5 prescribing the terms and conditions for employing registered apprentices,)Section 181bsprovidmg that eight hours of labor shall be a day's work-, an ".,(v) Section I&prescribing sanctions for violations of the provisions concerning eight-hour *,w.,wk days and`forty-hour work weeks 1.2 Schedule oiF T erfo r>ree. Participant shall undertake, commence, and thereafter dilleently'nuroiect �.,Compf611ck l As provided herein according to the Schedule of as 1.2.1 Amendments trig%chedule. The Schedule of Performance is subject to revision from ,time -to -time as-tiW, tually a�g ed upon in writing by Participant and the Executive Director In the ent that Partitbpant desires a change to the Schedule of Performance, it shall submit a written request to the 9ther party specifying the nature of the change, the reason for the change, that the changfis not.iue to the negligence or Default of the Participant, and evidence that the chane is reasd I. bi bcessar to implement this Agreement. The Executive Director g �' �.� � y p g shall either approve or disapprove the request in writing within ten (10) days of its receipt. Such extension approved by the Executive Director shall not exceed thirty (30) days unless a longer extension is approved by the Governing Board of the Agency Extensions of time required by acts of God and other force majeure events shall be controlled by Section 7.2 [Enforced Delays, Extension of Times] of this Agreement. 1.3 Compliance with Laws. Participant shall design, develop, and construct the Project in compliance with all applicable federal and state laws, regulations, and rules, all Local Regulations (including but not limited to the obtaining of building permits for all construction related work as required by the California Building Code), and the Redevelopment Plan. LA #4828-1716-5060 v2 En ARTICLE 2 - USE AND MAINTENANCE OF THE SITE 2.1 Regulatory Agreement. Participant covenants and agrees that the provisions set forth in this Article 2 [Use and Maintenance of the Site] of the Agreement shall be incorporated into a Regulatory Agreement in a form substantially similar in all material respects to the form set forth in Attachment "N." The Regulatory Agreement shall be recorded against the Site and shall have provisions addressing the commercial portion of the Site and Affordable Cost provisions The Regulatory Agreement shall run with title to the Site and shall be binding upon the Participant, its successors and its assigns throughout the term of the Operating Covenant. 2.2. Management of Site The unique qualifications and expertise of Participant are of particular significance to the success of the Project and.Ibng-term viability of the Site. It is because of this expertise and experience that the Agency hhas" entered into this Agreement with Participant. Participant therefore agrees that it will cimtnue to .own and manage the Site in a professional manner or will contract with a t selection and oversight. Participant agrees affordable unit, that Tenants will not create parking on City streets, outdoor storage of r the accumulation of solid waste Participant Tenants in a timely and professional manne require Participant to hire a third party,xrian to the satisfaction of the City 2.3 Hours of Operation. Partidi a key property for -the revitaliVtion of th commercial portion of;the Project` and contin of other businesses in the :area subject to the agrees to the following - dj a y managemdi t company to oversee tenant xrquire and enforce, -as > a condition of renting -, iy nuisances mcludmg bud. not limited to noise, pe�y, interfering with commercial businesses or arthet greens'.' to" address any c,naplaints against As a coii on of this agreement, the City may nent com'pairiv if nuisance issues are not resolved al the commercial portion of the Site is ct-' o, the Redevelopment Plan. The of the Site directly effects the viability nent Plan. In light of this, Participant 2.3 1'' The commercial portion of .the Site shall be open to the public at least Monday through Saturday,:for not'Iess than eight'(8) hours per day, excepting state holidays as provided in .'California Government Code..sections 6700 and 6701 Nothing in the foregoing shall prohibit any les -see from operating a business in excess of eight (8) hours per day or on any state holiday - sF, y: 2.3.2. T wicipant hall require as a condition of the lease for each and every tenant leasing commercial space in the Site, a provision requiring the tenant to open their business to the public at least. Monday through Saturday, for not less than eight (8) hours per day, excepting national holidays 24 Affordable Housing Covenants. 2 4 1 Affordable Rent Unit(s) In exchange for the Agency Loan provided in Section 3 1 1, Developer covenants and agrees that each unit in the residential portion of the Site shall only be leased to a person or family qualifying as Very Low Income Maximum rents shall not exceed the City s adopted standards for Very Low Income rental rates LA #4828-1716-5060 Q 59 In In 2 4.2 Affordable Units Reportinur. Following completion of construction of any 1%W Rental Affordable Unit, a report verifying compliance of all completed Rental Affordable Units, prepared on any form specified by the Agency, and certified as correct under penalty of penury by the owner of the Rental Affordable Units and any property management company managing the units, shall be submitted annually to the Administering Agency on February 1 of each year, commencing on the February 1 following issuance of final certificates of occupancy for one hundred percent (100%) of the Rental Affordable Units Developer shall retain all records related to compliance with obligations under this Agreement, the Ordinance, and the Inclusionary Policy for a period not less than five (5) years from the date of origination of such records, and make them available to the Agency for inspection and copying on,, five (5) business days' written notice Developer shall permit the Agency or others design ats>'by the City to inspect the Rental Affordable Unit Property to monitor compliancetlas Agreement or the Regulatory Agreement following two (2) business days' wntten notce `to Developer 2.4.3 Recordation of Affordabiliiq. Covenant.The,: Very Low Income rental restrictions on the unit or units shall remain in5�p' ace for a period�%af fifty-five (55) years in compliance with California Health & Safety Caio § 33334 3(f)(1) and shall be recorded against the Site as part of the Regulatory Agreement regtii d by Sect�pii 2 1 2.4 4 Eviction and%04 ttmg of Unitcitwithstanding this rental restriction, the covenant shall not prohibit Part fpm exercisii° y of its rights to evict a tenant and reclaim possession of any Affordable Cd t uiiit ;may be allayed under the terms of its recorded security instruments and the law In sucilieveri't,'azEicipantaat use its best efforts to timely complete any eviction as cir ny unlawfb.L4tainer au ccs ;and to 6`1 t said unit at an Affordable Cost to a person or faitqualifying as a VeityI w "'Ji"come l^lousehold. 2.4.5 F Members not Permitted as Tenants. Participant covenants for it and its successors that it shad not %eiii, lease or:,allow a unit to be occupied by an immediate family members; anyother le","son" wti aancial':felationship to the owner Use Covenant. Participant covenants and agrees for itself, its successors and assigns, aiid any successor LTi -interest to the Site or part thereof, that, during the term of the Operating Covenant, Participa� hall use -the Site in accordance with the following provisions 2.5:1 Adult-Orrted Businesses. No adult-oriented businesses (as regulated by Atascadero Municipal Code:§ 5-10 101 et seq ), shall be established, maintained, or permitted to be established or mairitanelin the Site. 2.5.2. Check Cashing Businesses. No establishments regularly and primarily engaged in the business of cashing checks or advancing funds as against paychecks or later - received moneys shall be established, maintained, or permitted to be established or maintained on the Site, with the exception of federally -insured banks, credit unions, savings and loan institutions, and commercial lenders. 2.5.3 Tattoo parlors and body piercing shops No tattoo parlors or body piercing shops shall be established, maintained, or permitted to be established or maintained on the Site. LA #4828-1716-5060 Q En 2 5 4 Commercial Retail The ground floor of the Site shall be used for commercial space directly serving the public and contributing to the economic viability of the area subject to the Redevelopment Plan. No enterprise that consists substantially of office space or similar non -retail uses shall be permitted as a tenant on the Site The foregoing shall not be deemed to disallow commercial tenants from including within their leased space an office sized to serve the needs of the commercial business conducted therein. 26 Maintenance of the Site. The Participant covenants and agrees for itself, its tenants, its successors and assigns, and any successor -in -interest to the Site, or part thereof, that it will, at its sole cost and expense (i) maintain the appearance; and safety of the Site (including all improvements, fixtures, and landscaping) in good order,,,condition, and repair, and free from the accumulation of trash, waste materials, and other debris (1i) remove all graffiti placed upon the Site (including all improvements, fixtures, and landscaping) within seventy-two (72) hours of its appearance, (iii) maintain in good order, condition and repair, properly functioning landscape irrigation systems on the Site, and (iv) remove grid promptly replace all dead or diseased landscaping material on the Site In the eventbf a default of this covenant and of a failure to cure the default within fifteen (15) days after service of a written notice Eby Agency and/or the City, Agency and/or the City, or their agents, em loyees and °contractors,'s-b have the right to enter upon the Site without further notice and to take such A`t ons as are net scary to cure the default. Participant shall reimburse gcney and/or the Cit 'for all costs associated with cure of the default (including but not lirmted,'36 staff services, administrative costs, legal services, and third -party costs), within fifteen (15) days after service of'`a.Wntten notice by Agency and/or City If Participant fails to ,pay within e time "ll ded, such costs shall be a lien upon the Property, as provided by California Civil Code § 28 'he Agen may enforce and foreclose such lien in any manner legally a towed. M, 27 Nondiscriminationih EmnloyW""" t. The Participant covenants and agrees for itself, its successors and assignsxA, any successor in -interest to the Site or part thereof, that all persons empliayed b or appl %ir! for employment by it, its affiliates, subsidiaries, or holding companies, and all subcontractors, .bidders and vendors, are and will be treated equally by it without ^ .-regard to, or because of race, color, religion, ancestry, national origin, sex, age, pregnancy, childbirth, or related medical condition, medical condition (cancer related) or physical or mental disability, ani in compliance with Title VII of the Civil Rights Act of 1964, 42 U S C § 200 ..et seq , the Federal Equal Pay Act of 1963, 29 U S C § 206(d), the Age Discrimination in Employment,,: Act of 1967, 29 USC. § 621, et seq , the Immigration Discrimination in Employment ;Act of 1967, 29 U S C § 621, et seq , the Immigration Reform and Control Act of 1986;B;;U S C § 1324b, et seq , 42 U.S C § 1981, the California Fair Employment and Housing Act, California Government Code § 12900, et seq , the California Equal Pay Law, California Labor Code § 1197.5, California Government Code § 11135, the Americans with Disabilities Act, 42 U S C. § 12101, et seq , and all other anti -discrimination laws and regulations for the United States and the State of California as they now exist or may hereafter be amended. 2.8 Nondiscrimination and Nonsegregation. Participant covenants and agrees for itself, its successors and assigns and any successor -in -interest to the Site or part thereof, that it shall abide by the following provisions LA #4828-1716-5060 Q 61 M 2 8 1 Obligation to Refrain from Discrimination. Thev shall refrain from °err restricting the rental, sale, lease, sublease, transfer, use, development, occupancy, tenure, or enjoyment of the Site (or any part thereof) on the basis of race, color, creed, religion, sex, marital status, ancestry, national origin, familial status, physical disability, mental disability, or medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto), of any person or group of persons, and shall comply with the applicable anti -discrimination provisions of the Americans with Disabilities Act (42 U S C § 12101, et seq ) and the California Fair Employment and Housing Act (Cal. Government Code § 12900, et seq ) as they exist on the date of this Agreement or as they may thereafter be amended, repealed and.:eenacted, or otherwise modified. They shall not establish or permit any such practice or practiees��of discrimination or segregation with reference to the selection, location, number, uses ,,6,t occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein coriVy�ca< 2 8.2. Nondiscrimination and Nnx segregation Ci ses. Any deeds, leases, or contracts which are proposed to be, or which ar''entered into wi"spect to the rental, sale, lease, sublease, transfer, use, development, ,occupancy, tenure, or enjoyment of the Site (including improvements and fixtures) (or party ,thereof), shall be subject to and shall expressly contain, nondiscrimination or nonsegregation clauses in substerifially the following form. 2 8.2.1 In Keds the grantee ibrein covenants by and for itself, its successors and assigns, and all perso�Ycfirli under orough them, that it shall comply with the applicable anti -discrimination p ovisions,bf the An—endcans with Disabilities Act (42 U S C § 12101, e,,and the Ciforma 1~tmplont and Housing Act (Cal. Government Code § 2300 seq ), as " urrentl tcist or as they may thereafter be vow amended, repealed ind reenkt- or o rise modifiand that there shall be no discrimination against a,.,.segregtion of, any person or group or persons on account of race, color, creed, :religion, sec} mariat status, ancestry, national origin, familial status, physical disabilit ri nta] disability; Apr medical «,conditi46tn,„� (including, but not limited to, Acquired Immune''Deficienc y yxidrome MAIDS), the <iman Immune Deficiency Virus (HIV), or condifii ttrelated thereto` the i` gal, sale, lease, sublease, transfer, use, occupancy, or tenure of the lairdlierem convee�, nor 11 the grantee itself or any person claiming under or through it, establish or perinif any such:practice or practices of discrimination or segregation with reference-,Ao the select xt location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vend�es in the land herein conveyed. The foregoing covenants shall run with the land.” 2 8.2.2 In Leases "The lessee covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that it shall comply with the applicable anti -discrimination provisions of the Americans with Disabilities Act (42 U S C. § 12101, et seq ) and the California Fair Employment and Housing Act (Cal. Gov Code § 12900, et seq ), as they currently exist or as they may thereafter be amended, repealed and reenacted, or otherwise modified, and 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, national origin, familial status, physical disability, mental disability, or medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto) in the LA #4828-1716-5060 Q 62 rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the land herein conveyed, nor shall the grantee 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 in the premises herein leased." 2.8.2.3 In Contracts. "There shall be no discrimination against or segregation of, any person or group or persons on account of race, color, creed, religion, sex, marital status, ancestry, national origin, familial status, physical disability, mental disability, or medical condition (including, but not limited to, Acquired. -Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto) in the rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the land or premises affected by this instrument, nor shall the contracting or subc? ntracting party or parties, or other transferees under this instrument, or any person &I ng under or through it, violate the applicable anti -discrimination provisions of A.16- Amencans uuith Disabilities Act (42 U S C § 12 10 1, et seq ), and the California Fir npHoa loyment and ng Act (Cal. Gov Code § 12900, et seq ) as they currently exist oras ` hey may thereafter be `:amended, repealed and reenacted, or otherwise modified, nor establiA .-or permit. any such pr4ce or practices of discrimination or segregation with reference to the selection, location, ":number, use or occupancy of tenants, lessees, subte, 'ts, sublessees,fi.- vendees of the land. This provision shall obligate the contracting and subcontracting party orparties, and other transferees under this instrument, or any person claiming under-ur through it.' 29 Taxes and ncumbrances., Participarit;shall pay, when due (i) all ad valorem property taxes imposed<:,on the Site under Article I A of'tie California Constitution, (ii) all special taxes imposed .on the Site; baa) all spec�a assessments unposed on the Site, (iv) all taxes payable under the California Bradley -Burns Unitirm Local Sales & Use Tax Law, Revenue and Taxation Code.§ 7200, etE,segx, anctvall other taxes, assessments, fees, exactions, or charges, any portio6 ;iviftware alloc"ted to, 'or ieceivec� by, the City or the Agency and which are imposed �c�tie to the &wr ship, age, or posse §W of the Site or interest therein or due to the constr6666n or operation �, f , the ProJ`ect. Upon failure to so pay, Participant shall remove any lien, levy, ncumbrance made on the :Site within ninety (90) days of the attachment of such. Participant h&tby waives any right it 1nay have to contest the imposition of such taxes, assessments, fees, .-exactions, or Barges against the Site or upon the construction or operation of the Project which are,, levied by ,the City, the Agency, the County of Riverside, or the State of California, or any special:district:of any of the foregoing 2.10 Compliance _with Laws. The Participant covenants and agrees for itself, its successors and assigns and any successor -in -interest to the Project and/or Site or part thereof, that it shall operate and maintain the Site and Project in conformity with the Redevelopment Plan, Local Regulations, the CC&Rs, and all applicable state and federal laws, including all applicable labor standards, disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U S C § 12101, et seq and the Unruh Civil Rights Act, California Civil Code § 51, et seq 2 11 Effect of Violation. The Agency and City are deemed the beneficiaries of the terns and provisions of this Agreement and for the purposes of protecting the interest of the LA #4828-1716-5060 Q 63 community and other parties, public or private in whose favor and for whose benefit this 1"' Agreement has been provided. The Agency and City shall have the right, if the Agreement or covenants are breached, 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 the Agreement and covenants may be entitled. CM ARTICLE 3 - AGENCY ASSISTANCE 3 1 Method of Assistance. Subject to and conditioned upon Participant's satisfaction and continued compliance with the provisions of Section- 3 3 [Conditions of Providing Assistance] of this Agreement, the Agency agrees to provide Participant with certain assistance related to the Project as follows. 3 1 1 Funding. The Agency shall loan`'° to Pa e pant an Agency Loan in an amount not to exceed One Hundred Thousand D011ars and No Opts ($100,00000) for each affordable housing unit. 3 1.2 Requisites for Funding or to Agency being ool�gated to advance any funds to Participant, Participant shall be required t„vid��i���followmg` 3 1.2.1 Prod6 application for and receipt of Project Approvals, 3 1.2.2. An appraisal of the Site by , a. California licensed appraiser chosen by Participant acrd approved by Agency in itasonablo'discretion, 1.2. chosen by P Promissory lei : and recc property A Requ6s0: pfor N •eliminar Pdl e "report of the Site from a title company by Agency” ir its reasonable discretion, al amount of the all debt secured by value of the Site. -cutioY of Regulatory Agreement, Deed of Trust and of the Regulatory Agreement and Deed of Trust against the Default will be recorded for any/all Senior Loans 3 1.3 Trm�g df' Funding Upon receipt and verification by Agency of the requisites for funding set forth in Section 3 12 and approval by the City and/or Agency of any and all Project Approvals necessary for construction of the Project on the Site, Participant shall request in writing that the Agency disburse proceeds of the Agency Loan. Agency shall disburse the proceeds of the Agency Loan in three (3) installments 3 1.3 1 Thirty per cent (30%) of the total Agency Loan amount within fifteen (15) days of permit issuance, LA #4828-1716-5060 Q 3 1 3.2 Thirty per cent (30%) of the total Agency Loan amount when Participant provides documentation to Agency showing that the framing inspection or Mo comparable inspection has been completed on Site , and 3 1.3.3 Forty per cent (40%) of the total Agency Loan amount at Completion. 3.2. Security for Agency Loan. Participant shall make and give to the Agency the following types of security for the Agency Loan 3.2.1 Reimbursement. Participant covenantsf°arid agrees that in the event that Participant is in Default of this Agreement, which Default. remains uncured after the period provided for cure in Section 6 1 [Default] of this )"ment, Participant shall repay to the Agency on demand all Agency Loan proceeds paid or; ndvanctd; to Participant by the Agency under Section 3 1 [Method of Assistance], in addition to all Contingent Interest as determined on the date that demand is made by the Agony, without further notice or demand by the Agency 3.2.2 Promissory Note. Participari 's obti a 'on to reimbur;,the Agency for Agency Loan proceeds pard or advand.by the Agency to Participant under Section 3 1 [Method of Assistance] shall be further evideric d' i,by a promissory note having a form and content the same in all material respects to the pron*sdlry note attached;:hereto and incorporated herein by reference as Attachment "0" (the "Note,') .and shall provide 3.2.2 L That neitherprincipal nor. interest shall be payable under the Note until such time as Participant: sells or otherwise transfers the Site, 3:2.21.2. That..the interesf due on the Note shall be Contingent Interest reflecting the Agency's ef the Site bayed on the appraised fair market value of the Site as ofs.al e c i&'ir6ement of the A2encv`L�. 3:2 2.� That ;Participant may at any time, without selling or otherwise transferringthe Site, decide -to repaythe Agency Loan amount and that any such repayment will trigger the requirement that Participant also repay the Contingent Interest; �- _3.2.2.4 "What any Default of this Agreement by Participant which remains uncured after` :the period provided for cure under Section 6 1 [Default] of this Agreement with the exdepon of a Default arising under Section 2.5 1 [Use Consistent with Project] where the City elects to exercise its right to seek out tenants under Section 2.5 1.3 [Agency's Right to Execute Lease and Secure Tenants], shall be a breach of the Note in which event the entire outstanding principal balance of the Note plus accrued Contingent Iterest shall become due and payable by Participant on demand by the Agency; 3.2.2 5 That the Note shall be secured by a deed of trust and assignment of rents having a form and content the same in all material respects to the deed of trust attached hereto and incorporated herein by reference as Attachment "D" ("Deed of Trust") The Deed of Trust shall provide that, by incorporating this Agreement by reference, it LA #4828-1716-5060 Q 65 M is subordinate and junior only to prior encumbrances and subsequent encumbrances as may `sir approved by the Agency The rights established in this Section and under the Deed of Trust are not intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity These rights are to be interpreted in light of the fact that the Agency will have provided public funds to assist the development of a private Project as permitted under the Community Redevelopment Law 3.3 Conditions on Assistance. The following are conditions upon the Agency's obligation to provide the Agency Loan assistance specified in Section 3 1 [Method of Assistance] 3.3 1 Limit on Assistance. Except a&J"s exprit'ssly provided for in Section 3 1 [Method of Assistance], the City shall have no obrtion to provide ,Participant with additional assistance, to make any other contribution towdi IAfie Project, to pay'�S­iny Development Cost or Development Fee, or to carry-out or completfte Project or any phas8u " reof Nothing in this Agreement is or shall be construed to be a pledit or,, commitment by the X"g"16incy of any specific tax revenue, grant funds, or other specific momes,`� N`nds, otwenues to whielill e Agency is in possession of or may become entili�,receive i`hreement does not, and shall not be construed to, grantor vest the ParticiAnt 91 any right �ake a claim or impose alien against any specific tax revenue, grant funds, or pthex xspecific moi�' funds, or revenues to which the Agency is in possession of or may becom entitle dwtoreceive T i .Agency, in its sole discretion, may use any revenue, fupdg, otmonies available to the #agency, as t ay be allowed for by law, to provide the Assistance gibvided3under this Agreem, ent; 3.3.2 be*e1opmenf f the Prb*t. Participant's commencement and diligent construction of,-the Project ro Coi lotion withfh,the time provided and otherwise in strict compliance with. W`rt cle 1 [De:VeIe ment of.�the Pro�edt] of this Agreement; 3.3 3 Use of the Site. Participant's compliance with the covenants and agreements:made under Artidle=2 [Use and Maintenance of the Site] of this Agreement; 11,34 Insuraneii, olicies. Participant delivering to the Agency the insurance �$ 3 policies and evident;e of insurace as required under Article 4 [Insurance] of this Agreement prior to the Agency'Kpayment,&,..x dvancement of assistance to Participant; 3.3.5 Payment of Taxes Participant's payment, when due, of all ad valorem property taxes levied against the Site under Article XIII A of the California Constitution, as well as any special assessments or special taxes levied against the Site (collectively "Property Taxes"), payment of all taxes payable under the California Bradley -Burns Uniform Local Sales & Use Tax Law, Revenue and Taxation Code §7200, et seq , and payment of all other taxes, any portion of which is allocated to, or received by, the City or the City's Community Redevelopment Agency ARTICLE 4 - INSURANCE LA #4828-1716-5060 Q on 41 Participant's Liability Insurance. Participant shall, at its sole expense obtain and keep in force until the expiration of term of the Operating Covenant, a policy of commercial general liability insurance in an occurrence form providing for broad form property damage coverage, broad form contractual coverage, personal injury, bodily injury, and advertising injury coverage with employee exclusion as to each named insured deleted, and products and complete operations coverage, insuring Participant, and naming Agency and City as an additional named insureds, against any liability arising out of or in connection with Participant's possession and use of the Site and all improvements thereon, Agency's activities in connection with the Project, or any other claim arising out of or relating to the Project or work on the Site Such insurance policy shall have (a) a combined single limit for both bodily injury or death in an amount not less than Three Million Dollars ($3,000,000 00), and (b) a limit for :both bodily injury or death in one accident or occurrence or for property damage in an amount not less than One Million Dollars ($1,000,000 00), which amounts shall be increased from time to time as reasonably required by Agency Such insurance policy and each portron,.:thereof shall. be in the broadest and most comprehensive form available in the market at the tje such policy -is issued or amended. The policy shall insure performance by Participant of the indemnity prayrsrons of Section 5 1 [General Indemnity] of this Agreement. The lits of said insurance shall xnot limit the liability of Participant hereunder 4.2. 's and/or cause to be maintained by any and improvements constructed as part o Covenant, a policy of standard "all risk and malicious mrschref efiderements, replacement value against "all r' s of ce. Participant shall, at its sole expense, obtain the Site, W,shall keep in force on all buildings lett until the expiration of term of the Operating id",ex%nded coverage insurance, with vandalism externn of,..one hundred percent (100%) of full lca � includixtg without limitation a guaranteed replacement cost and";code compliance covet4ge `endorsement (including without limitation, if recommended by a seismic engineer retained by Agency, earthquake coverage with deductible related thereto�of no more than ten percent (10%) of the replacement value of the all buildings and rmpro,veruents N�.anstructed :as_part of ­the, project,including boiler and machinery insurance coverage;" 'heating, air °Oondit16mlig, equipment, ,,,,,.,and other equipment of such nature), and insurance ,against loss or image to�,�p�ersonal property located on the Site by fire and other hazards covered by such insurance (without any deductible clause unless approved in writing by Agency) In the event any tenant on the Site falls to maintain coverage to the extent of one hundred percent (lQ9%) of fulhreplacement value for the Site, then Participant shall maintain such additional or 'grip„ insurance io satisfy the requirements of this Section. All such insurance shall be payable to Agency Such insurance policy and each portion thereof shall be in the broadest and most comprehensive form available in the market at the time such policy is issued or amended. Such policy shall, if required by Agency, contain an agreed value clause sufficient (as determined by Agency) to eliminate any risk of Agency's coinsurance. 43 Worker's Compensation Insurance. Participant shall, at its expense, obtain and keep in effect (or cause any contractor to procure and keep in effect), Worker's Compensation Insurance (including employer's liability in an amount satisfactory to Agency and if applicable, insurance covering claims of workers against employers arising under Federal law) covering all employees of Participant and any contractor and, if required under applicable law, any subcontractor engaged in work on, or with respect to, the Property, in such amount as is LA #4828-1716-5060 Q 67 In reasonable satisfactory to Agency and in the minimum amount for one (1) person of not less than One Million Dollars ($1,000,000 00), and 1n the minimum amount for one (1) accident or occurrence of not less than Five Hundred Thousand Dollars ($500,000 00) 44 Insurance Policies All of Participant's insurance shall be primary insurance written in a form satisfactory to Agency by companies licensed in California acceptable to Agency (which must be Class IX A or better as rated by Best's Insurance Reports) and shall specifically provide that such policies shall not be subject to cancellation or other change except after at least thirty (30) days prior written notice of Agency Copies of the policies, together with satisfactory evidence of payment of premiums shall be depq ited with Agency as provided herein, and upon each renewal of such policies, which shallite6iffected not less than thirty (30) days prior to the expiration date of the term of such coverage , 4.5 Other Insurance Provisions Saidpolicy dv policies, as applicable, shall combine aggregate limits for Bodily Injury, Prope'ty,Damages, Personal Injury, and Advertising Injury, in the amounts specified above, that apply specifically to and ,Can only be exhausted in connection with claims arising out of or relating to the Property If any, claim, event, or loss occurs during the policy period which will or m decrease the aggregate amount of insurance coverage available under the policy, Participant !%411. imnm','�&fflately secure i4tional coverage sufficient to provide total aggregat6%uts at least equWto the amounts set fdrth above on a going forward basis. Should any parrsfcverage reged above be provided by "excess" or "umbrella" policies, those policies sh l spexral"ically pr6VW. that the coverage under those policies shall "drop down" as to both defense149`td , inderrirq._ obligations in the event of insolvencyof the rim ` '4 prderlying comer Sum "`excess" oarnmbrella" policies shall also contain all the other,pt isions required by fhz :Agreement ARTICLE 5 - 5 I,,. i mineral Inde "` Expt as tithe sole negligence, active negligence or 7-1 �77willful nibconduct of ,Agee y o� City, expressly agrees to, and shall, indemnify, defend, release, and hof e;Agen��the City, and their respective officials, officers, employees, agents, an&contractors lith ss frog ,and against any Action, liability, loss, damage, entry, judgment, or' er„lien, and Costs and Expenses which arises out of, or are in any way related to, any act or omission of Participant, or its officers, directors, employees, agents, or contractors, connected with the performance,drider this Agreement, the obligations set forth in Section 1 19 [Compliance with Prevailing Wage Law], the construction, use, or operation of the Project or Site, notwithstanding that A� Agency and/or City may have benefited therefrom, or any challenge to this Agree m 6f. This Section shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Participant's officers, directors, employees, agents and contractors. The Parties expressly agree that any payment, or Costs and Expenses the Agency and/or City incurs or makes to, or on behalf of, an inured employee under the Agency's self administered workers' compensation, is included as a loss or Costs and Expenses for the purpose of this Section. The Agency and City shall not be responsible for any acts, errors or omissions of any person or entity except the Agency and the City and their respective officers, agents, servants, employees or contractors. The Parties expressly agree that the obligations of Participant under this Section shall survive the expiration or early termination of the Agreement. 1%WLA #4828-1716-5060 v2 5.2 Hazardous Substances Indemnity Participant expressly agrees to indemnify defend, and hold the Agency the City and their respective officials, officers, employees, agents `. and contractors harmless from and against any Action, liability, loss, damage, entry, judgment, order, lien, encumbrance, and Costs and Expenses that, foreseeably or unforeseeably, directly or indirectly, arises from, or is in any way related to, the release, treatment, use, generation, transportation, storage, or disposal in, on, under, to, or from the Site of any Hazardous Substances by Participant or its officers, directors, employees, agents, and contractors. For the purposes of this Section, "Costs and Expenses" include, but are not limited to, the cost of any necessary, ordered, adjudicated, or otherwise required remediation or removal of Hazardous Substances, any cost of repair of improvements on the Site or surrounding property necessitated by or related to the remediation or removal of Hazardous Substances, the cost of any tests, samples, studies, investigations, or other preparation reaspriably undertaken in preparation or furtherance of remediation or removal of Hazardous Spbstancds. and the cost of preparing plans for the remediation or removal of Hazardous Substances Notwithstanding the foregoing, Participant expressly agrees to, at its sole expe, and with legal.; -counsel of the Agency's choice, defend the Agency, the City and their, .respective officials, officers, employees, agents, and contractors in any Action in which the Agency, the City or their respective officials, officers, employees, agents, and contractors become or may become involved as a result of the release, treatment, use, generation, transportation, storage, ordisposal in, on, under, to; ax from the Site of any Hazardous Substances by Participant or its officers, directors, partners, employees, agents, and contractors Participant's obligations under this Section shall survive the Termination of this Agreement. ARTICLE 6 - DEFA 6 1 Defauit Either party's failure car °unreasonable delay to perform any term or provision of this Agreerndnt consttthtes a Defatt of this Agreement. In the event of a Default, the injured party shall give written `°Nottce of r*cult" to the defaulting party, specifying the Default DeAay iii ,;;giving such, notice` shill, not constitute a waiver of the Default. If the default dig: party falls to. cure the.,Default Within thirty (30) days after receipt of a notice specifyiti :,the Default, or; if the Default is of a' nature that cannot be cured within thirty (30) days, the flefaulting party fails to commence to cure the Default within said thirty (30) days and thereafter dilig6titly prosecute such cure to completion, then the defaulting party shall be liable to the injured party fog any and all'Aamages caused by such Default, unless otherwise provided for by this Agreement. - 6.2 No Waiver. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times 6.3 Specific Performance. If a Default under this Agreement is not fully cured by the defaulting party as provided in Section 6 1 [Default], the non -defaulting party may, at its option, thereafter commence an action for specific performance of the terms of this Agreement. LA #4828-1716-5060 Q 69 In 64 Legal Actions. In addition to any other rights and remedies any party may 1%W institute a legal action to require the cure of any default and to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. The following provisions shall apply to any such legal action. CM 6 4 1 Jurisdiction and Venue. Legal actions must be instituted and maintained in the Superior Court of the County of San Luis Obispo, State of California„ or, if appropriate, in the United States District Court for the Central District of California, Eastern Division. Participant specifically waives any rights provided to it pursuant to California Code of Civil Procedure §394 and any federal statute or rule of similar effect,,:;;; 6 4.2. Applicable Law The laws of the.19p1".te of California shall govern the interpretation and enforcement of this Agreement. 6 4.3 Attorney's Fees. In the the other party which arises out of a Default of related to, this Agreement, then the Prevailin entitled to recover its Litigation Expenses (as c whatever relief to which the prevailing party "Litigation Expenses" includes all fists and amount, that are actually and necess jfyncut related to the Action. For the purposes thi ascribed in § 1032(a)(4) of the Californialtode 6.5 Rights, an Rg� are cumulative, and-. i exercise'` preclude the exercise ti's t, at the same Default or anv others ault of any of n either partyO, mences an Action against each of, failure to pxform, or that is otherwise rty (as defined hereil in the Action shall be ted herein),from the othdr-party in addition to Y be entiftd For purp61' ,_of this section, genes, Ftp the extent such are reasonable in in g0e with by the Prevailing Party directly on, "P re f ing Party" shall have the meaning are Cumulative." Ti'ieq ghts and remedies of the Parties a party t a or more 'dfAs rights or remedies shall not ,ie or different time, of any other rights or remedies for the may terminate this Agreement upon the 6.6 1 Participant (or any; lupcessor in interest) Assigns or attempts to Assign the Agreement or any%rights therein br in the Site in violation of this Agreement; 6 6 2 Participant (or any successor in interest) becoming insolvent or Participant (or any successor in interest) voluntarily or involuntarily making an assignment or transfer for the benefit of creditors otan the Agency and/or the City, and/or the voluntary or involuntary appointment of a receiver, 'custodian, liquidator or trustee of Participant's property and/or the Site, 6 6.3 Participant is otherwise in Default of this Agreement and fails to cure such Default within the time set forth in Section 6 1 [Default] hereof If, after the occurrence of any of the above -entitled events, the Agency elects, in its sole discretion, to terminate this Agreement, then all rights of Participant and any person or entity claiming by or through Participant arising under this Agreement or with regard to the Site LA #4828-1716-5060 v2 70 as may arise under this Agreement shall immediately cease and be terminated, except that any obligations of the Participant to indemnify or reimburse the Agency or the City shall continue in full force and effect and the Agency shall have all of the remedies to enforce a breach or a Default of this Agreement as may be provided hereunder and under the law 67 Termination by Participant. In the event that Participant is not in default under this Agreement and the Agency is otherwise in default and which is not cured within the time set forth in Section 6 1 [Default] hereof, and any such failure is not cured within the applicable time period after written demand by Participant, then this Agreement may, at the option of Participant, be terminated by written notice thereof to the Agency From, the date of the written notice of termination of this Agreement by Participant to the Agency and thereafter, this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties, except that Participant may pursue any remedies it has het'enntier. ARTICLE 7 - GENERAL PROVISIONS 7 1 No Excuse for Changes in Economic ConditionsParticipant agrees that foreseeable or unforeseeable future changes in -,economic or market eWitions may make performance of its obligations and covenants under ;;this Agreement impradi¢able, difficult or economically infeasible. However, Participant expr68s1 :assumes the risk offoreseeable and unforeseeable future changes in economic and general itarket conditions and expressly agrees that such changes shall not excuse or delay thestrict performance of Participant's obligations and covenants hereunder Without limiting the generality of the foregoing, Participant agrees that future foreseeable or unforeseeable changes in economic and market. conditions shall not operate to relieve Participant ah its (or its _successo'rs),obligation t©;.abide by the terms, conditions, and Covenants of this Am,6ment. 7.2 Enforced Delays,,Extension of Thnes. In addition to specific provisions of this Agreement, p Of i. by eithei ypart here�,,nder sh all not be deemed to be in Default, and all performance"and other dates specified in thiil3 Agreement shall be extended, where delays or Defaults`;arr due to litigali us chdIlOgmg the validity of this transaction or any element thereof or the right of either party ­ to engage in the acts and transactions contemplated by this z._. Agreement; inability to secure,Mecessaro4bor materials or tools, delays of any contractor, sub- contractor or supplier; or withd, rawal of financing not caused by any act or omission of Participant; war; insurrection, sn' fifes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the pi1blic enemy; epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental agency or entity (other than the acts of failures to act of the Agency which shall not excuse performance by the Agency), or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within forty- five (45) days of the commencement of the cause LA #4828-1716-5060 Q 71 M F5 In 7 3 Tax Consequences 7.3 1 Participant understands and acknowledges that it may experience adverse federal, state, and/or local tax consequences resulting from or related to the performance of this Agreement. Participant acknowledges and agrees that Agency and City are in no manner responsible or liable for any of Participant s federal, state, or local tax liabilities arising out of, or in any way related to, this Agreement. 7.3.2. Participant acknowledges that performance of this Agreement may create a taxable possessory interest in real or personal property and that Participant will be responsible for the payment of any and all tax upon such possessory intmst. Participant expressly agrees that by inclusion of this Section in the Agreement, Agen y'!has satisfied all of its obligations under Revenue and Taxation Code § 107 6 Partic eby waives, releases and holds Agency and City harmless from any right to damages, rch m4y now or in the future accrue to Participant against Agency or City under Reytrre and Taiattn Code § 107 6 or such comparable section of the United States Int e `Revenue Code rn' any way relating to this Agreement. 7.3.3 Participant acknowledges thAtr official, officer, employee, agent,ronsuitant ther legal, accounting, or other advice 10 �pqons, or concerning the tax consequences, legal, IOffectc of the Agreement may have on Participant, 7.3 4 Pi 114" Participant's own iri11 dep and/or financial consult Agreement based solely of the facts4rid`taossble En ncy, the Ci,,ynor any elected ided Participant with any tax, representations or warranties, other effects that performance t,has been represented in this transaction by but not Im' ted to, attorneys, accountants and warrants that it is entering into this nvestrgation, conducted with due diligence, Participant. ,TiA Non-liabYli[tiy .of Mg v Officials -and Employees No board member, official, ..._ consultant,,;,, -Corney, or emp asee off' 6,mAgency shall be personally liable to Participant, or any successor, of sign, or any ptr;on clai; under or through them, in the event of any default or I. breach by the � 'agency or for my amount which may become due to Participant or to its successor, or on a"ligations sing under this Agreement. 75 Conflicts of I.Jo Brest. No board member, official, consultant, attorney, or employee of the Agency shill` have anypersonal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate In any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested. 76 Warranty Against Payment of Consideration for Agreement. Participant represents and warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement, other than payments to attorneys or consultants retained by Participant to assist it In the negotiation of this Agreement, excepting however, any contributions which this Agreement requires Participant to make to the Project. LA #4828-1716-5060 Q 72 77 No Third Party Beneficiaries This Agreement and the CC&R s are for the sole and exclusive benefit of the Agency the City, and Participant. No other parties or entities are intended to be, or shall be considered, a beneficiary of the performance of any of the parties_ obligations under this Agreement. 78 Integration. This Agreement consists of pages 1- , inclusive, and Attachments A -M attached hereto and incorporated herein by this reference, which constitute the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof 79 Recitals and Definitions. The Recitals and Definitions set forth at the beginning of this Agreement are a substantive and integral part of this,Agreement and are incorporated by reference in the Operative Provisions of this Agreement. 7 10 Titles and Captions. Titles and captions are for cQnvemence of reference only and do not define, describe or limit the scope qx' o intent of this Agr65,ment or any of its terms. References to section numbers are to sect i ins in this Agreement Less expressly stated otherwise. 7 11 Interpretation. The agency and Parti'cip4.n°t-acknowledge that`thf° Agreement is ,he product of mutual arms -length negotiation and drafiij .and each represents and warrants to the other that it has been represented by legit; counsel m`',the negotiation and drafting of this Agreement. Accordingly, the rule of construction, etch provides the ambiguities in a document, shall be construed against the drafter of that document shall have no application to the interpretation and enforcement .of this Agreement ;Itt any ;action or proceeding to interpret or enforce this Agreement; the firidef.of fact m Irefer to such`' extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the parties hereto., 7J2. Sev&Ability Each provision, term, condition, covenant, and/or restriction, in whole arid, in part, in this- greement:<shall be c"sidered severable In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is declared invAW, unconstituho%a], or v6i4"r any reason, such provision or part thereof shall be severed from thWAgreement anclshall not affect any other provision, term, condition, covenant, and/or restriction, fm�this Agreeirient and the remainder of the Agreement shall continue in full force and effect. 7 13 Amendments"to Agreement. Any amendments to this Agreement must be in writing and signed by the appropriate authorities of the Agency and Participant. 714 Administration. This Agreement shall be administered and executed by Agency's Executive Director, or his or her designated representative, following approval of this Agreement by Agency's governing board. Agency shall maintain authority of this Agreement through the Executive Director (or his or her authorized representative) The Executive Director shall have the authority to issue interpretations and to make minor amendments to this Agreement on behalf of Agency as provided in Section 7 13 [Amendments to Agreement] All LA #4828-1716-5060 v2 73 M other changes, modifications, and amendments shall require the prior approval of Agency s governing board. 715 Communications Between the Parties. Formal notices, demands and communications between the parties shall be given in writing and personally served or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the parties, as designated in this Section, or telefaxed to the facsimile number listed below followed by dispatch as above described. Such written notices, demands, and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section."Any such notice shall be deemed to have been received (i) upon the date personal service is of ie6 , if given by personal service, (ii) upon the expiration of one (1) business day, if telefaxetl,,pr (iii) upon the expiration of three (3) business days after mailing, if given by certified,,. il, ;return receipt requested, postage prepaid. to Community Redevelopment Ageix�i,of Atascadero Attn. Executive Director/City Managtr 6907 El Camino Rea EM Atascadero, California Facsimile transmission f,O y b ode to (805);4,6,1,-76l2 to 76 Ceremonies To enure proper protocol and recognition of the Agency board members, Participant sha 1 d erate 'wtth the Agency and City staff in the organization or any project-relatedy groundbreaki qS$, gran%mpemngs or any such inaugural events/ceremonies sponsored by P*clpant celebfitti the development, which is the subject of this Agreement. 7 17 Comji tion o%�'ime. The time in which any act is to be done under this Agreement is computed3xixding the first day and including the last day, unless the last day is a holiday or Saturday or S,iday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Government Code § 6700 and § 6701 If any act is to be done by a particular time during a day, that time shall be Pacific Standard Zone time 7 18 Authority The individuals executing this Agreement on behalf of Participant and the instruments referenced on behalf of Participant represent and warrant that they have the legal power, right and actual authority to bind Participant to the terms and conditions hereof and thereof LA #4828-1716-5060 Q on 74 7 19 Counterpart Originals This Agreement may be executed in duplicate originals, each of which is deemed to be an original 7.20 Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the Agency's Governing Board and executed by the appropriate authorities of the Agency and Participant. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first -above written. ATTEST By - Agency Secretary APPROVED AS TO FORM Burke, Williams & Sorensen, LLP LA #4828-1716-5060 Q 75 AGENCY: Executive Director/City Manager M Agenev General Counsel PARTICIPANT By, , LA #4828-1716-5060 Q Noe W EXHIBIT A CALCULATION OF AFFORDABLE RENT The Affordable Rent for Rental Affordable Units shall be calculated using the procedures and formulas described below The current City of Atascadero Moderate, Lower, and Very Low Income Limits as established pursuant to the Inclusionary Policy shall be used in these calculations I Determine the area median income for a household size that is one person larger than the number of bedrooms in the Affordable Rental Unit.: 2. Multiply the income limit as follows, to obtain the annual housing allowance, Very Low Income 300/0' of 50% of the area f"an income, adjusted for household size appropriate to the unit. Lower Inc( for household size 3 Divide the annual hous] (12) to determine the monthly housing 4 mandatory fees 5 Subtract tl calculated in'Step 3:10.co 1442\02\319175.2_2.10.2006 77 use 30% of 80% of `the' area median income, adjusted to the unit. �at�tce determined in the previous step by twelve in C-1 telephone) and all 4 from the monthly housing allowance In E5 on Attachment B ATTACHMENT "_" RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO - (Document exempt from recording fees pursuant to Cal. Gov Code § 27383) Community Redevelopment Agency of the City of Atascadero Atm. Executive Director 6907 El Camino Real Atascadero California 93422 DEED OF TRUST AND ASSIGNMENT OF RENTS This DEED OF TRUST AND ASSIGNMENT OF RENTS made as of 2009 between herein called TRUSTOR, whose mailing address is Atascadero, California, 93422, herein called TRUSTEE, and COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF ATASC.ADERO a public body corporate and politic, herein called BENEFICIARY Trustor irrevocably grants,- transfers and assigns to Trustee in Trust, with Power of Sale, that property in the City of Atascadero, County of San Luis Obispo, State of California, described as. SEE EXHIBIT "A ATTACHED HERETO (hereinafter referred to as "Property") Together with the rents, issues and profits thereof, subject, however to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits. For the Purpose of.Securing- (1) repayment of'`the sum of Dollars and no cents plus ;interest thereon as may accrue, according to the terms of that Agreement entered into by and between Trustor and Beneficiary dated, , 2009 (hereinafter referred to as the Agreement") and that Regulatory Agreement executed by Trustor on 2009 (hereinafter refered to as the `Regulatory Agreement") and as reflected in -the Pronussory Note (hereinafter referred to as "Promissory Note') executed by Trustor and dated , 2009; (2) the performance of Trustor's covenants, promises, agreements, obligations and responsibilities under the Agreement, Regulatory Agreement, and Promissory Note, which are incorporated herein by reference; and (3) payment of additional sums and interest thereon which may hereafter be loaned or otherwise disbursed to Trustor or its successors or assigns, when evidenced by an amendment to the Agreement or other instruments reciting that they are secured by this Deed of Trust. RN #4812-6017 5361 v LA #4810-4248-7044 v1 W Trustor acknowledges that this Deed of Trust secures not only the repayment of money and the obligations recited herein, but also the performance by the undersigned of certain covenants, promises, agreements, obligations and responsibilities created in Trustor under the Agreement and Promissory Note incorporated herein. Any default or breach by the undersigned of any covenant, promise, agreement or obligation of Trustor under any of said instruments secured hereby that is not timely cured as required in such instruments, shall allow Beneficiary to take all actions to which it is entitled, including but not limited to, the exercise of its right to declare the loan immediately due and payable and foreclose on the Property under this Deed of Trust. A. To protect the security of this Deed of Trust, Trustor agrees: (1) To keep said Property in good condition and repair- not to remove or demolish any building thereon, to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefore; to comply with all laws affecting said Property or requiring any alterations or improvements to be made thereon, not to commit or permit waste thereof; not to commit, suffer or permit any act upon said Property in violation of law- to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said Property may be reasonably necessary the specific enumerations herein not excluding the general. (2) To provide, maintain and deliver to Beneficiary insurance satisfactory to Beneficiary pursuant to the Agreement. The amount collected under any insurance poficy may be applied by Beneficiaryupon any indebtedness secured hereby and in such order as Beneficiary may determine; or at the option of Beneficiary;the entire amount so collected or any part thereof may be released to Trustor Such application or release shall not cure or waive any default or notice of default hereunder or invalidate, any act done pursuant to such notice. (3) To appear in and defend any action or, proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in whichBeneficiary or Trustee may appear and in any suit brought by Beneficiary to foreclose this Deed of Trust. (4) To pay at least ten:days before delinquency all taxes and assessments affecting said Property including assessments on appurtenant water stock when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof, which appear to be prior or superior hereto all costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to-do any act as herein provided, then Beneficiary or Trustee, but without obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof Beneficiary or Trustee being authorized to enter upon said Property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, pay purchase,„ contest or compromise any encumbrance, charge, or lien which in the judgement of either appears to be prior, or superior hereto and, in exercising any such powers, pay necessary expenses, employ counsel land pay reasonable attorney's fees. (5) To pay immediately and without demand all sums so expanded by Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. B. It is mutually agreed. (1) That any award of damages in connection with any condemnation for public use of or injury to said Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such monies received by him or her in the same manner and with the same effect as provided above in paragraph A(2) regarding disposition of proceeds of fire or other insurance. RN #4812-6017 5361 v LA #4810-4248-7044 v 1 79 F5 CM (2) That by accepting payment of anN sum secured hereby after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure to so pay (3) That upon written request of Beneficiary stating that all sums secured hereby have been paid or forgiven, and upon surrender of this Deed of Trust and said Promissory Note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey without warranty the Property then held hereunder The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof The Grantee in such reconveyance may be described as the person or persons legally entitled thereto (4) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of the Agreement and Promissory Note, Beneficiary may declare all sums secured' -hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said Property which notice Trustee shall Cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust, said Promissory Note and, all documents evidencing expenditures secured hereby After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law Trustee, without demand on Trustor shall sell said Property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money; of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said Property by public announcement at such time and place of sale, and from time -to time, thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof Anyperson, including Trustor Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof• all other sums then secured hereby- and the remainder if any, to the person or persons legally entitled thereto (5) That Beneficiary, or any successor in ownershipof any indebtedness secured hereby may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said :Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor succeed to all its title, estate, rights, powersandduties. Said instrument must contain the name of the original Trustor Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee. (6) That this Deed of Trust applies to inures to the benefit of, and binds all parties hereto their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term Beneficiary shall mean the owner and holder including pledgees of the Promissory Note secured hereby whether or not named as Beneficiary herein. (7) That Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor Beneficiary or Trustee shall be a party unless brought by Trustee. RN #4812-6017 5361 vl LA #4810-4248-7044 vl (8 That in the event of anv Transfer (as defined below) of said Property Beneficiary shall have the absolute n�ht at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. As used herein, `Transfer means any sale, conveyance, lease, transfer or disposition of all or any part of said Property or any interest of Trustor therein, or the further hypothecation or encumbering of said Property or any part thereof or the entry into any agreement to do any of the foregoing, without the prior written consent of Beneficiary Beneficiary may charge for a statement regarding the obligation secured hereby provided the charge thereof does not exceed the maximum allowed by laws. The undersigned Trustor requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address hereinbefore set forth. TRUSTOR [name], [type of organization or natural persons] By RN #4812-6017 5361 vI LA #4810-4248-7044 vl [requires notary's acknowledgement] M En Attachment C ATTACHMENT " " PROMISSORY NOTE SECURED BY DEED OF TRUST Borrower- Lender- Community Redevelopment [street address Agency of the City of Atascadero California 9 Atascadero 6907 El Camino Real Atascadero California 934220 _2009 2009 Atascadero, California For value received, (the "Borrower"), promises to pay to Community Redevelopment Agency .of the City of Atascadero, a public body, corporate and politic (the "Agency"), or order, at Agency's office located at the above address, or at such other place as Agency from time to time may designate, the principal sum of Dollars and, _ cents: (; _) (the "Agency Loan or such lesser amount as may be advanced under this promissory note (the "Note"), plus contingent interestas specified in this Note, plus any amounts due the Agency as Excess Rents pursuant to, Section , of . the Regulatory Agreement executed by Borrower and Agency. This Note is secured by aDeed of Trust dated the same date as this note. This Ntte evidences" -.a loan (Che "Loan") from Agency to Borrower, pursuant to that Owner Participation Agreement dated 2009 ("Agreement"), and that Regulatory Agreement... dated: ("Regulatory Agreement") the terms of which are hereby incorporated herein and made a part of this Note 2. Borrow shall pay Contingent Interest (as defined in the Agreement) equal to percent (_%) of the Appreciation Amount, (i) in the event of a default by Borrower under this Note, or the Deed of Trust, or (ii) on the date a Transfer is made, or (iii) in the event of any prepayment of the balance due under this Note In the event the Appreciation Amount is less than zero upon sale of the Property at Fair Market Value, no Contingent Interest shall be due If the Appreciation Amount is a negative number, it shall be converted to a positive number and shall be referred to as the Depreciation Amount. The principal amount due on this Note shall be decreased by the Depreciation Amount. However, the principal amount may not be decreased (i) in the event of a default by this Note, (ii) in the event of any prepayment of the balance due under this Note, (iii) in the event a creditor acquires title to the Property through a deed in -lieu of foreclosure, or otherwise, or (iv) in the event the Property is sold at less than Fair Market Value RN #4812-6017 5361 v1 LA #4810-4248-7044 vi Borrower understands that advances under this Note will be made subject to and only as provided in the Agreement. The Agency has no obligation to make any advance under this Note at any time when an Event of Default exists under this Note or under any of the Loan documents The Agency is not required under any circumstances to make any advance if that would cause the outstanding principal of this Note to exceed the Loan Amount. 4 Borrower's obligations under this Note are in addition to its obligations to pay Loan Fees and all other amounts payable by the Borrower under the other Loan documents Borrower understands that term ("Term") of this Note commences on the date of execution of this Note and expires fifty-five (55) years from execution date unless sooner repaid or prepaid. Borrower further understands that repayment of this Note is deferred for the Term of the Note, except as provided in subsection 5.1 below 5 1 The total amount of the principal and any Contingent Interest owed under this Note shall immediately become ,due and payable. (i) in the event of a default by the Borrower under this Note, Agreement, the Regulatory Agreement, the Deed of Trust, or the First Lender Loan, (ii) on the date a Transfer ° is -made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of sale, gift, devise, bequest or otherwise. Failure to declare such amounts due shall not constitute a waiver on the part of .the City to declare them due in the event of a subsequent Transfer 6 If any of the following "Events of Default" occur, any obligation of the Agency to make advances under ;this Note terminates and atAhe Agency's option, exercisable in its sole discretion, all sums of principal and interest under this Note will become immediately due and payable without notice of default, presentment or demand for payment, protest or notice -of protest, nonpayment or dishonor, or other notices or demands of any kind or character - 6 1, The Borrower applies any of the principal amount to any cost, expense, or liability other than the Project defined in the Agreement. 6.2. Anvent of Default (as defined therein) occurs under the Agreement or any other Loan document. 7 All amounts payable under this Note are payable in lawful money of the United States during normal business hours on a Banking Day, as defined below Checks constitute payment only when collected. The Borrower agrees to pay all costs and expenses (including, without limitation, attorneys' fees) incurred by the Agency in connection with or related to this Note, or its enforcement, whether or not suit is brought. The Borrower's agreement to pay all costs and expenses includes any matter arising out of or relating to any Insolvency Proceeding or any other situation in which the Agency incurs cost and expenses to enforce or protect the Agency's rights or interests under this Note or any of the other Loan Documents From the time(s) incurred until paid in full to the Agency,The Borrower further waives RN #4812-6017 5361 v1 LA #4810-4248-7044 v1 In presentment, demand for payment, notice of dishonor notice of nonpavment, protest, N*AW notice of protest, and any and all other notices and demands in connection with the delivery, acceptance, performance, default, or enforcement of this Note, and the Borrower hereby waives the benefits of any statute of limitations with respect to any action to enforce or otherwise related to this Note 9 This Note, and all acts and transactions pursuant or relating hereto, and all rights and obligations of the parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of California without regard for principles of conflicts of laws Borrower (i) agrees that all actions or proceedings relating directly or indirectly hereto shall, at the option of Agency be litigated in courts located within the county in the State of California where the Loan is payable, (ii) consents to the jurisdiction of any such court and consents to the service of process in any such action or proceeding by personal delivery or any other method pernutted by law and (iii) waives any and all rights Borrower may have to transfer or change the venue of any such action or proceeding Borrower and Agency hereby waive the right to„a jury trial in any action, proceeding, claim or counterclaim in connection with this Note or the Loan Documents 10 The Agency may accept additional or substitute security for this Note, or release any security or any party liable for this Note, or extend or renew this Note, all without notice to the Borrower and without affecting the liability of>the Borrower 11 If the Agency delays in exercising;or fails to exercise<a °ny of its rights under this Note, that delay or failure will not constitute a waiver of any of the Agency's rights, or of any breach, default: or failure of condition of or under this Note No waiver by the Agency of any of its rights, or of any such breach, default or failure of condition is effective, unless the waiver is expressly stated in a writing signed by a duly authorized officer of the Agency All of the Agency's remedies in connection with this Note or under applicable law are cumulative, and the Agency's exerciseofany one or more of those remedies will not constitute an election offremedies. 12 This note inures to the benefit of and binds the heirs, legal representatives, successors and assigns of the Borrower, and the Agency; provided, however, that the Borrower may not assign this Note or any Loan funds, or assign or delegate any of its rights or obligations, without the Agency's prior written consent in each instance which consent may be granted or withheld in the Agency's sole discretion. The Agency in its sole discretion may transfer this Note, and may sell or assign participation or other interests in all or part of the Loan, on the terms and subject to the conditions of the Loan Documents, all without notice to or the consent of the Borrower Also without notice to or the consent of the Borrower, the Agency may disclose to any actual or prospective purchaser of any securities issued or to be issued by the Agency or its affiliates, and to any actual or prospective purchaser or assignee of any participation or other interest in this Note, the Loan or any other loans made by the Agency to the Borrower (whether evidenced by this Note or otherwise), any financial or other information, data or material in the Agency's possession relating to the Borrower, the Loan or the Property, including any improvements on it. If the Agency so requests, the Borrower agrees to sign and deliver a new note, in the form and substance of this Note to be issued in exchange for this Note RN #4812-6017 5361 vi LA #4810-4248-7044 vl I The term 'Banking Day" means a day other than a Saturdav or Sunday that the Agency is open for business In Atascadero California. By • D_: Name: RN #4812-6017 5361 v LA #4810-4248-7044 vl �-* In cm OFFICIAL BUSINESS Document entitled to free recording per Government Code § 27837 Recording Requested by and When Recorded Mall to Community Redevelopment Agency of the City of Atascadero 6907 El Camino Real Atascadero, California 934220 ATTACHMENT "_" SPACE ABOVE REGULATORY AGREEMENT Owner: Property Address. Fair Market Value. Attachment D This Regulatory Agreement ("Regulatory Agreement"), dated for reference purposes as of , is made- and entered into by and between ("Owner") and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF ATASCADERO, a public body corporate and politic ("Agency") with reference to the following - RECITALS A. This Regulatory Agreement is made and recorded in accordance with, and subject to, that certain OWNER PARTICIPATION AGREEMENT dated , 2009 ("Agreement"), by and between Owner and the Agency The Agreement and all associated documents are public records maintained on file with the Office of the Atascadero City Clerk located at 6907 El Camino Real, Atascadero, California 93422, or as may thereafter, from time to time, be established. B Unless otherwise specified herein, all definitions in the Agreement will have the RN #4812-6017 5361 v LA #4810-4248-7044 vl same meaning when referred to herein C. This Agreement affects that parcel of real property commonly known as Assessor's Parcel Number , generally located at , in the City of Atascadero, County of San Luis Obispo, State of California, as more particularly described on the legal description attached hereto as Exhibit "A", and incorporated herein ("Property") D The term "Owner" as used in this Regulatory Agreement includes and —his/her/their/its— successors and assigns to the Property described herein, and all lessees, tenants, contractors,agents, and all persons claiming an interest in the Property, or claiming an interest by and through any of the foregoing E. Owner has proposed and by the recording of this document will have commenced construction on the Property of the Project as defined; in the Agreement. NOW, THEREFORE, Owner, in consideration of Agency entering into the Agreement, hereby covenants, agrees, and declares that the Property shall be owned, held, used, maintained, occupied, rented, and otherwise transferred pursuant to the following restrictive covenants ("Covenants") and that such Covenants shall be binding upon all Owner's successors and assigns to the Property, and all lessees, tenants, contractors, agents, and: all persons claiming an interest in the Property, or claiming an interest by and through any of the foregoing - COVENANTS Covenants Run With the Land. The Covenants set forth herein are limitations on the ownership and use of the land as, provided in California Civil Code § 784 The Covenants are° made for the direct benefit of the Property and shall run with the land and be binding upon the Owner, as defined herein, as provided in California Civil Code § 1460through§ 1468. The Covenants set forth herein benefit, and may be enforced by, Agency, the City of Atascadero ("City"), and their respective successors or assigns Owner shall not challenge the Restrictions as set forth in this Regulatory Agreement or any right of Agency or the City created under this Regulatory Agreement or the Agreement. Owner expressly acknowledges and agrees that the Covenants are reasonable restraints on Owner's right to own, use, maintain, and transfer the Property and any estate or interest therein and are not and shall not be construed to be an unreasonable restraint or alienation. 2. Term. The parties agree that these Covenants shall remain in effect for a period of not less than fifty-five (55) years from and after Completion of the Project as anticipated by the Agreement ("Term") The Term shall run continuously from the date of Completion until expiration, unless tolled by operation of law, order of a court of competent jurisdiction, or as may be provided for in the Agreement. RIV #4812-6017 5361 vi LA #4810-4248-7044 v M cm 3 Management of Site. The unique qualifications and expertise of Owner are of particular significance to the success of the Project and long-term viability of the Site. It is because of this expertise and experience that the Agency has entered into this Agreement with Owner Owner therefore agrees that it will continue to own and manage the Site in a professional manner or will contract with a third party management company to oversee tenant selection and oversight. Participant agrees to require and enforce, as a condition of renting affordable unit, that Tenants will not create any nuisances including but not limited to noise, parking on City streets, outdoor storage of property, interfering with commercial businesses or the accumulation of solid waste Participant further agrees to address any complaints against Tenants in a timely and professional manner As a condition of this agreement, the City may require :Participant to hire a third party management company if nuisance issues are not resolved to the satisfaction of the City 4 Hours of Operation. Owner agrees that the commercial portion of the Site is a key property for the revitalization of the area subject to the Redevelopment Plan. The commercial portion of the Project and continued viability ofthe,Site directly effects the viability of other businesses in the area subject to the Redevelopment Plan. In light of this, Owner agrees to the following- 41 ollowing 5 41 The commercial portion" of the Site sliall Jbe ,,ripen to the public at least Monday through Saturday, for nat,lless than eight ,(,8) hours per day, excepting state holidays as provided in";Californta Government Code sections 6700 and 6701 Nothing in the foregoing shall prohibt any les,"see, from operating a business in excess of,-ei, m.(S) hours per, day or on:any state holiday 4.2 Owner shall requir,6'as a condati©n�of the leaseT-for each and every tenant leasing commercial,, space in the Site, a.- rovision requiring the tenant to open their business to the public at least Monday through Saturday, for not less than eight (8).liours per'day; excepting national holidays 5 1 �A.ffordable Rent Unit(s): Owner covenants and agrees that each unit in the residential portion, of the Site shall only be leased to a person or family qualifying as Very Low Income Maximum rents shall not exceed the City s adopted standards for Very "Low Income rental rates In the event the Owner leases the Property 'm'excess of the established rental rates, the amount over the allowable rate (Excess�7, nts) shall be due and payable to the Agency immediately upon receipt by the Owner Such Excess Rents shall be considered a recourse debt of the Owner to the Agency, which the Agency may collect by legal action against the Owner and/or the Note shall be due. 5.2 Affordable Units Reporting. Following completion of construction of any Rental Affordable Unit, a report verifying compliance of all completed Rental Affordable Units, prepared on any form specified by the Agency, and certified as correct under penalty of penury by the owner of the Rental Affordable Units and any property management company managing the units, shall be submitted RN #4812-6017 5361 v1 LA #4810-4248-7044 v1 allnuaby to the Administering Agency on February I of each year commencing uh the February 1 following issuance of final certificates of occupancy for one hundred percent (100%) of the Rental Affordable Units If similar reports on .,ume or all of the Rental Affordable Developer shall retain all records related to compliance with obligations under this Agreement, the Ordinance, and the Inclusionary Policy for a period not less than five (5) years from the date of origination of such records, and make them available to the Agency for inspection and copying on five (5) business days' written notice Developer shall permit the agency or others designated by the City to inspect the Rental Affordable Unit Property to monitor compliance with this Agreement or the Regulatory Agreement following two (2) business days' written notice to Developer 5.3 Recordation of Affordability Covenant. The Very Low Income rental restrictions on the unit or units shall remain in place for a period of fifty-five (55) years in compliance with California Health & Safety Code § 33334 3(f)(1) 54 Eviction and Reletting of Unit(s) Notwithstanding this rental restriction, Owner may exercise its rights to evict a tenant and reclaim possession of any Affordable Cost unit as may be allowed under the terms of its recorded security instruments and the law In such event, Owner shall use its best efforts to timely complete any eviction and/or any unlawful detainer action and to relet said unit at an Affordable Cost to a person or family qualifying as a Very Low Income Household. 5 5 Family Members not Permitted as Tenants. Owner covenants for it and its successors that it shall not rent, lease or allow a unit to be occupied by an immediate family member or any other person with a financial relationship to the owner 6 Use Covenant. Owner covenants and agrees for itself, its successors and assigns, and airy s-iccessor=in-interest,to-the Site or part thereof, that, during the term of the Operating Coi,enant, Owner shall use 'the -Site in accordance with the following provisions 61 Adult -Oriented Businesses. No adult-oriented businesses (as regulated by Atascadero Municipal Code § 5-10 101 et seq ), shall be established, maintained, or permitted to be established or maintained on the Site 6.2 Check Cashing -Businesses. No establishments regularly and primarily engaged in the business- of cashing checks or advancing funds as against paychecks or later -received moneys shall be established, maintained, or permitted to be established or maintained on the Site, with the exception of federally -insured banks, credit unions, savings and loan institutions, and commercial lenders 63 Tattoo parlors and body piercing shops. No tattoo parlors or body piercing shops shall be established, maintained, or permitted to be established or maintained on the Site. 64 Commercial Retail. The ground floor of the Site shall be used for commercial space directly serving the public and contributing to the economic viability of the RN #4812-6017 5361 v LA #4810-4248-7044 v1 0 n area subject to the Redevelopment Plan. No enterprise that consists substantially 1%WW of office space or similar non -retail uses shall be permitted as a tenant on the Site. The foregoing shall not be deemed to disallow commercial tenants from including within their ]eased space an office sized to serve the needs of the commercial business conducted therein. on 7 Maintenance of the Site. The Owner covenants and agrees for itself, its tenants, its successors and assigns, and any successor -in -interest to the Site, or part thereof, that it will, at its sole cost and expense (i) maintain the appearance and safety of the Site (including all improvements, fixtures, and landscaping) in good order, condition, and repair, and free from the accumulation of trash, waste materials, and other debris (ii) remove all graffiti placed upon the Site (including all improvements, fixtures, and landscaping) within seventy-two (72) hours of its appearance, (in) maintain in good order, condition and repair properly functioning landscape irrigation systems on the Site, and (iv) remove and promptly replace all dead or diseased landscaping material on the Site In the event of a default of this covenant and of a failure to cure the default within fifteen (15) days after service of a written notice by Agency and/or the City, Agency and/or the City, or their agents, employees and contractors, shall have the right to enter upon the Site without further notice and to take such actions as are necessary to cure the default. Owner shall reimburse Agency and/or the City for all costs associated with cure of the default (including buf, not limited to, staff services, administrative costs, legal services, and third -party costs), within :fifteen (15) days after service of a written notice by Agency and/or City If Owner fails to pay within the time provided, such costs shall be a hen upon the Property, as provided by California Civil Code § 2881 The Agency may enforce and foreclose such lien in any manner legally allowed. 8 Nondiscrimination in Employment. The Owner covenants and agrees for itself, its successors and assigns and any successor -in -interest to the Site or part thereof, that all persons employed by!or .applying for employment by it, its affiliates, subsidiaries or .holding companies, and all subcontractors, bidders and vendors are and will be treated equally by it without regard to, or because of race, color, religion, ancestry, national origin, sex, age, pregnancy, childbirth, or related medical condition, medical condition (cancer related) or physical or mental disability, and in compliance with Title VII of the Civil Rights.Act of 1964, 42 U S C § 200, et seq , the Federal Equal Pay Act of 1963, 29 U S C. § 206(d), the Age Discrimination in Employment Act of 1967, 29 U S C. § 621, et seq, the Immigration Discrimination in Employment Act of 1967, 29 U S C. § 621, et seq, the Immigration ;Reform and Control Act of 1986, 8 U S C § 1324b, et seq, 42 U S C. § 1981, the California Fair Employment and Housing Act, California Government Code § 12900, et seq, the California Equal Pay Law, California Labor Code § 1197.5, California Government Code § 11135, the Americans with Disabilities Act, 42 U S C. § 12101, et seq , and all other anti -discrimination laws and regulations for the United States and the State of California as they now exist or may hereafter be amended. 9 Nondiscrimination and Nonseuegation. Owner covenants and agrees for itself, its successors and assigns and any successor -in -interest to the Site or part thereof, that it shall abide by the following provisions RN #4812-6017 5361 v1 LA #4810-4248-7044 v] MA 9 1 Obligation to Refrain from Discrimination. They shall refrain from restricting the rental, sale, lease, sublease, transfer use, development, occupancy tenure, or enjoyment of the Site (or any part thereof) on the basis of race, color, creed, religion, sex, marital status, ancestry, national origin, familial status, physical disability, mental disability or medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto) of any person or group of persons, and shall comply with the applicable anti -discrimination provisions of the Americans with Disabilities Act (42 U.S C. § 12101, et seq ) and the California Fair Employment and Housing Act (Cal Government Code § 12900, et seq) as they exist on the date of this Agreement or as they may thereafter be amended, repealed and reenacted, or otherwise modified. They shall not 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 in the land herein conveyed. 9.2. Nondiscrimination and Nonsegregation Clauses. Any deeds, leases, or contracts which are proposed to be, or which are, entered into with respect to the rental, sale, lease, sublease, transfer,, use, development, occupancy, tenure, or enjoyment of the Site (including improvements and fixtures) (or party thereof), shall be subject to, and shall expressly contain, nondiscrimination or nonsegregation clauses in substantially the following form. 9.21 In Deeds "The grantee herein covenants by ,and for itself, its successors and assigns, and all persons claiming under or through them, that it shall comply with the applicable anti -discrimination provisions of the Americans with Disabilities Act (42 U S C § 12101, et seq) and the California Fair Employment- and Housing Act (Cal Government Code § 12900, et "seq ), as they currently exist or as they may thereafter be amended, repealed and reenacted, or otherwise modified, and that there shall' be no discrimination against or segregation of, any person or group or persons on account of race, color, creed, religion, sex, marital status, ancestry, national origin, familial status, physical disability, mental disability,, or medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto) in the rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the land herein conveyed, nor shall the grantee 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 in the land herein conveyed. The foregoing covenants shall run with the land." 9.2.2 In Leases "The lessee covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that it shall comply with the applicable anti -discrimination provisions of the Americans with Disabilities Act (42 U S C § 12101, et seq ) and the RN #4812-6017 5361 vl LA #4810-4248-7044 v 1 91 In On California Fair Employment and Housing Act (Cal Gov Code § 12900 ei seq ), as they currently exist or as they may thereafter be amended, repealed and reenacted, or otherwise modified, and 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, national origin, familial status, physical disability, mental disability, or medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency Virus (HIV), or condition related thereto) in the rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the .land herein conveyed, nor shall the grantee 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 in the premises herein leased." 92.3 In Contracts "There shall be no discrimination against or segregation of, any person or group or persons on account of race, color, creed, religion, sex, marital status, ancestry, national origin, familial status, physical disability, mental disability, or,, medical condition (including, but not limited to, Acquired Immune Deficiency Syndrome (AIDS), the Human Immune Deficiency; Virus (HIV), or condition related thereto) in the rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the land or premises affected by this instrument,. nor shall the contracting or subcontracting party or parties, or other transferees under this instrument, or any person claiming under or through it, violate the applicable anti- discrimination;, provisions of the Americans with Disabilities Act (42 U.S.C.§ 1210"1; et seq ), andtheCalifornia Fair Employment and Housing Act '(Cal. Goan,. Code § 12900, et seq ) as they currently exist or as they may thereafter be amended, repealed and reenacted, or otherwise modified, :nor 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 land. This provision shall obligate the contracting and subcontracting party or parties, and other transferees under this instrument, or any person claiming under or through it." 10 Taxes and Encumbrances. Owner shall pay, when due (i) all ad valorem property taxes imposed on the Site under Article XIII A of the California Constitution, (ii) all special taxes imposed on the Site, (ill) all special assessments imposed on the Site, (iv) all taxes payable under the California Bradley -Burns Uniform Local Sales & Use Tax Law, Revenue and Taxation Code § 7200, et seq , and (v) all other taxes, assessments, fees, exactions, or charges, any portion of which are allocated to, or received by, the City or the Agency and which are imposed due to the ownership, use, or possession of the Site or interest therein or due to the construction or operation of the Project. Upon failure to so pay, Owner shall remove any lien, levy, or encumbrance made on the Site within ninety (90) days of the attachment of such. Owner hereby waives any right it may have to contest the imposition of such taxes, assessments, fees, exactions, or charges against RN #4812-6017 5361 v LA #4810-4248-7044 v 92 the Site or upon the construction or operation of the Project which are levied bti the City the Agency, the County of Riverside or the State of California, or any special district of any of the foregoing. 11 Compliance with Laws The Owner covenants and agrees for itself, its successors and assigns and any successor -in -interest to the Project and/or Site or part thereof, that it shall operate and maintain the Site and Project in conformity with the Redevelopment Plan, Local Regulations, the CC&Rs, and all applicable state and federal laws, including all applicable labor standards, disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U S C § 12101, et seq and the Unruh Civil Rights Act, California Civil Code § 51, et seq 12 Effect of Violation. The Agency and City are deemed the beneficiaries of the terms and provisions of this Regulatory Agreement and for the purposes of protecting the interest of the community and other parties, public or private, in whose; favor and for whose benefit this Regulatory Agreement has been recorded. The Agency and City shall have the right, if the Regulatory Agreement is breached, to exercise all rights :and remedies, and to maintain any actions or suits at law or inequity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of the Regulatory Agreement and covenants may be entitled. 13 Subordination. This Regulatory Agreement is subject and subordinate to the following Senior loan(s) Name of Lender Amount a. $ c $ Date Deed of'Trust Recorded [7 Request for Notice of Default. A request for notice of default and notice of sale regarding the Loan(s) referenced above shall be recorded in the Office of the Recorder of the County of San Luis Obispo for the benefit of the City 14 Refinance of First Lender 141 City Consent Required. The Owner covenants and agrees not to place any additional mortgage or deed of trust, including any line of credit, on the Property without obtaining prior written consent of the City 14.2 Permitted Debt. At no time shall the total principal amount of the all debt secured by the Property exceed the 'Permitted Debt," which is defined as the greater of - (i) ninety percent (90%) of the fair market value of the Site as appraised pursuant to Section 3 1.2.2, or (ii) the outstanding balance of the existing First Lender Loan as of the date of the Owner Request to Refinance If escrow does not close on the refinance or subordinate loan within one hundred twenty (120) days of the date of RN #4812-6017 5361 v LA #4810-4248-7044 v1 93 In on the Owner Request to Refinance, the City shall have the right to recalculate the Permitted Debt. A form for use by the Owner in requesting Agency subordination to a refinanced First Lender Loan or a subordinate loan is attached as Exhibit to this Agreement. 14.3 Refinance of First Lender Loan. This Agreement and the City Deed of Trust shall be subordinated to a refinanced First Lender Loan only if - 14.3 1 following such refinance, the principal amount of all debt secured by the Property will not exceed the Permitted Debt; 143.2 the refinanced First Lender Loan is: fully amortized with a fixed rate of interest for a nummum five (5) year, period, permits no negative amortization, and requires no balloon payments, 14.33 if the remaining balance of the original First Lender Loan exceeds ninety percent (90%) of the fair.market value of the Site as appraised pursuant to Section 3 1.2.2, then the refinanced First Lender Loan reduces the Owner's principal and interest payments; .:,and-., 14.3 4 the new payment Amount after the refimance does not exceed the Owner's ability to pay 144 Junior Loans and Equity Lmes "bf Credit:` Mortgage loans or equity lines of credit junior in:""l"ten priority., to this Agreement and the City Deed of Trust are not permitted;except as :ekpressly approved by the City in writing The City shall r approve junior.mortgage="loans or equity lines of credit only if - 1441 1 following such refinance, the principal amount of all debt secured by the Property will n'ot::oxceed the Permitted Debt; 14.4.2 the refinanced First Lender Loan is fully amortized with a maximum rate of interest no eater than five percent (5%) above the initial rate, permits no negative amortization, and requires no balloon payments, and 144.3 the "new payment amount after the refinance does not exceed the Owner's ability to pay 14.5 Request for Notice of Default. As a condition for subordination of this Agreement and the City Deed of Trust or for recordation of a subordinate loan, a request for notice of default and notice of sale regarding the refinanced First Lender Loan and any subordinate loan shall be recorded in the Office of the Recorder of the County of San Luis Obispo for the benefit of the City RN #4812-6017 5361 vl LA #4810-4248-7044 v 1 M IN WITNESS WHEREOF, the Owner has caused this instrument to be executed by themselves or by their respective officers duly authorized this day of 20 The Owner hereby approves each of the Covenants set forth in this Regulatory Agreement. AGENCY COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF ATASCADERO, Title APPROVED AS TO FORM By - City --Attorney RN #4812-6017 5361 vl LA #4810-4248-7044 v 95 OWNER Print Name Signature Print Name Signature In STATE OF CALIFORNIA ) COUNTY OF SAN LUIS OBISPO ) On , before me, , Notary Public, personally appeared , 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. I certify UNDER PENALTY OF PERJURY under the laws `of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA 1%W COUNTY OF SAN LUISOBISPO On befo personally appeared of satisfactory evidence to be the instrument and acknowledged 'to. authorized eapacity(ies), and .ghat by the entity upon, behalf of which Ithe I e me, , Notary Public, proved to me on the basis person(s); whose name(s) is/are subscribed to the within me that he/she/they executed the same in his/her/their his/her/their signature(s) on the instrument the person(s), or :rson(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is -true and correct. WITNESS my hand and official seal. Notary Public RN #4812-6017 5361 vl LA #4810-4248-7044 v] 0 m