Loading...
HomeMy WebLinkAboutRDA Agenda Packet 111009CITY CLERK SPECIAL MEETING Community Redevelopment Agency of Atascadero Tuesday, November 10, 20099 6:00 P.M. City Hall, Council Chambers 6907 EI Camino Real, Atascadero, California AGENDA ROLL 'CALL. Chairperson O'Malley Vice Chairperson Kelley Board Member Beraud Board Member Clay Board Member Fonzi APPROVAL OF AGENDA. Roll Call 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) A. CONSENT CALENDAR (All items on the consent calendar are considered to be routine and non -controversial by City staff and will be approved by one motion if no member of the Agency Board or public wishes to comment or ask questions If comment or discussion is desired by anyone, the item will be removed from the consent calendar and will be considered in the listed sequence with an opportunity for any member of the public to address the Agency Board concerning the item before action is taken DRAFT MINUTES Agency meeting draft minutes are listed on the Consent Calendar for approval of the minutes Should anyone wish to request an amendment to draft minutes, the item will be removed from the Consent Calendar and their suggestion will be considered by the Agency Board If anyone desires to express their opinion concerning issueE included in draft minutes, they should share their opinion during the Community Forum portion of this meeting ) 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] B PUBLIC HEARINGS None. C MANAGEMENT REPORTS Business Stimulus. Proaram. 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 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 1► ITEM NUMBER R/, A DATE 11110/0S CITY OP ATASCADERO COMMUNITY REDEVELOPMENT A GENC Y DRAFT MINUTES Tuesday, September 22, 2009 REGULAR SESSION 6 00 P M City Hall Council Chambers 6907 EI Camino Real Atascadero, California REGULAR SESSION 6 00 P M. 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: 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 Beraud and seconded by Board Member Fonzil to approve the agenda. Motion passed 5.0 by a roll -call vote. RDA Draft Minutes of 09/22/2009 Page 1 of 4 0 J ITEM NUMBER RAA -1 DATE 11/10/09 COMMUNITY FORUM Tom Ferrell, member of the Atascadero Ministerial Association, led those present in prayer Michael Sherer stated that he and a group of supporters in the audience would like to make a presentation concerning a potential project He asked the Board to give their architect more time to make their presentation by allowing the supporters to give their speaking time to their architect. Chairperson O'Malley stated he supported extending the speaking time limit for this presentation and asked the Board Members for a unanimous consensus to extend the speaking time limit. There was a unanimous Board consensus to extend the speaking time limit for the architect's presentation. Erin Uesugi, representative of Uesugi & Associates in San Francisco, gave a presentation of a potential project entitled "La Plaza Cinemas / Retail Project." Chairperson O'Malley closed the Community Forum period. A. CONSENT CALENDAR 1 Community Redevelopment Agency Draft Minutes —July 14, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of July 14, 2009 [Board Secretary] 2. Community Redevelopment Agency Draft Minutes — August 11, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of August 11, 2009 [Board Secretary] MOTION By Board Member Beraud and seconded by Board Member Fonzi to approve the Consent Calendar Motion passed 5.0 by a roll -call vote. B PUBLIC HEARINGS None. RDA Draft Minutes of 09/22/2009 Page 2 of 4 4 ITER/ N MBER Rk A 1 DATE 11/10/0 C MANAGEMENT REPORTS Zoo Entrance and Restroom Project Funding Alternatives ■ Fiscal Impact: $513,655 00 ■ Recommendations. Agency Board 1 Direct the Public Works Director to work with C3 Construction to value engineer the Zoo Entrance and Restroom Project and to reduce the contracted amounts accordingly, and, 2 Award Add Alternate #1 Entry/Gift Shop Shell Building in the amount of $369,943 (subject to reduction through the value engineering process) to C3 Construction, and, 3 Award Add Alternate #2 Interior Improvements- Ticketing, Office, Restroom in the amount of $50,703 (subject to reduction through the value engineering process) to C3 Construction, and, 4 Award Add Alternate #3 Interior Improvements- Retail, Storage in the amount of $73,009 (subject to reduction through the value engineering process) to C3 Construction, and, 5 Authorize the Director of Public Works to negotiate with and award work to C3 Construction for necessary (reduced) site work, and, 6 Authorize the Director of Administrative Services to move $240,000 from the Zoo Wall Improvement Project to the Zoo Restroom and Entrance Project. [Public Works] Public Works Director Russ Thompson gave the staff report and answered questions from the Board. PUBLIC COMMENT None Chairperson O'Malley closed the Public Comment period. MOTION By Chairperson O'Malley and seconded by Board Member Clay to 1 Direct the Public Works Director to work with C3 Construction to value engineer the Zoo Entrance and Restroom Project and to reduce the contracted amounts accordingly, and, 2. Award Add Alternate #1 Entry/Gift Shop Shell Building in the amount of $369,943 (subject to reduction through the value engineering process) to C3 Construction, and, 3. Award Add Alternate #2 Interior Improvements- Ticketing, Office, Restroom in the amount of $50,703 (subject to reduction through the value engineering process) to C3 Construction, and, 4 Award Add Alternate #3 Interior Improvements- Retail, Storage in the amount of $73,009 (subject to reduction RDA Draft Minutes of 09/22/2009 Page 3 of 4 5 ITEM NUMBER RAA 1 DATE 11/10/09 through the value engineering process) to C3 Construction, and, 5. Authorize the Director of Public Works to negotiate with and award work to C3 Construction for necessary (reduced) site work, and, 6. Authorize the Director of Administrative Services to move $240,000 from the Zoo Wall Improvement Project to the Zoo Restroom and Entrance Project. 7 Direct Staff to postpone the Zoo wall and frontage improvements rather than eliminating them Motion passed 5.0 by a roll -call vote. BOARD ANNOUNCEMENTS AND REPORTS None D ADJOURNMENT TO CITY COUNCIL MEETING Chairperson O'Malley adjourned the meeting at 6 42 p m MINUTES PREPARED BY Marcia McClure Torgerson, C M C Board Secretary / City Clerk RDA Draft Minutes of 09/22/2009 Page 4 of 4 ITEM NUMBEF RA. C i DATE i 1/1 Q/QS 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 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 11 ITEM NUMBER RAC -1 DATE 11/10/09 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. Components 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 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 3 ITEM NUMBEF RAG s DATE ;1/10/0S, 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 housinq Goal HCS 1. Promote diverse and high quality housing opportunities to meet the needs of all segment's of the Community Policy 1 1 Encourage steady production of new housing, including mined -use projects in commercial land use areas, to meet the needs of all household types in the City. 2. Continue to allm mixed residential and commercial development in the Downtown Zoning District. Responsible Agency- Planning Commission, city council Timeframe: ongoing Quantified objective: 1 very low income unitslyear 8 low income unitslgtear The draft proposed Housing Element includes the following policy* s Establish a program to assist building owners in converting tipper floor residential space in the downtown to deed restricted extremely lour- 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: 1.0 units 9 ITEM NUMBER RA C DATE 1 /10/04 The sFRedevelopment Agency Pian includes the following housing policies 210.9 Expansion anchor 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 INCOME HOQSING 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 following: (1) Rehabilitation (2) Replacement housing needs (3) Neighborhood residentialconservation (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 It is staff's opinion that the proposed program is very consistent with both the City's downtown and affordable housing goals and policies 10 EM iTE[Vi NUMSEP ESA C ' DATE it Pi010S City of Atascadero - Affordable mousing Participation Checklist Organization Name: Project Name: Comact Person Phone: Email Address; Application Number City of Atasca.derc RDS, Downtown Stimulus Loan Program Warren Frace 806;461-5000 taafrsce Qatascadero.or Date: F,012&-.`0 5 Project Type: New Construction Rehabilitation w°eS Is this an update to an existing checklist? no 33' 2-1 Neighborhood Compatibility, Does bepnaject'.fit4he nmeigiTborhaod .., 2-2 Adherence -Zoning Requirements Doesthe,,project to1loW neral Plan Consistency? 4 2-3 Environmenta ISufta.bility ,Arelhertexwsignificant eavronmentalwi ufm7 2 2-4 Neighborhood .Acceptance �Omt# ineighib"rhoDd support? (naighboThood,meeting.s regu.ired'p 2-5 Green Development Plan 4s thp,prooctl EED certified? G 2-6 Building Appearance 1}n ,pT4ject pr Adilhlg�i €lualty architscture'? 2-77 Lan ds•cape Doesp+roject�irou�de.hlg�qualitytlandscape? 2 2-Z Commercial camponent ;use? 10 2-z Downtown Site lartr�ect+in dm canton. zone? M-110 2-10 Located in RDA Project Area Projectirvthe.Rede aiDpmentPTgjectArea? sir 1G ITEM NUMBER RAC i DATE 11 /10/08 S—e0onAXoardl 1-1 Vent' Lov, Income Percenta.gevery low incomeunits? Q 3-2 Low Income Percentage very lora income units? 10 3 Moderate Income Will there beany h1oderate Income units? 0 3- Rental Units Project Doesrroject include rental units? i50/..Dpt5;50.75/.=5pts >75�;='tOpts• •'='' 10 3-5 hiumtrer of unitsJdens.ity Is Project at maximum General Plan density? 13-s- Jariety of Unit Size Is there a mix of unitsiza edroorns"? (min 25% of unitsi 0 , u, a 1 Ownership Units Deed Restriction Term 4-2 Rental Unit Deed Restriction T erm -3 `additional Time Restriction S-1 Local Nton-profrVFor Profit 5-2 Local Proponent 5-11 Experience of Proponent `-4 Project Timing & Readiness - GLi]I Wnty�2 �wrdable hain� J �}aod 1� 0 In - Percentage of Points Received = 7'9% Point Scored 1 457 Out of Total Points 20 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 Aareement Attachment B- Deed of Trust Attachment C- Promissory Note Attachment D- Regulatory Agreement 12 M OWNER PARTICIPATI [Atascadero Downtol �Mulus by and!between the COMMUNITY REDE Dated LA #4828-1716-5060 v2 Attachment /� REEMENT GENIC, ' OF ATASCADERO , 2009 1" J 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 Tts general purpose is to implement the Redevelopment Plan, to decrease blight, and to .enhance the economic feasibility of development within the Project Area in a manner consi,,stient with the goals, objectives, policies and standards of the Redevelopment Plan and those.,.of Agency�itnd.;the City This Agreement is in accord with the applicable state and federal laws;: B Specific Purpose The specific, ,purpose of this Agreement is to facilitate development of the Project by Participant as de c i.bed herein,.. Conditi6filfi, xisting within the Project Area are perpetuating the existence of blight,oervun . 0 retard privatNyelopment, and currently render development of the .,,,Pr economicallfeasible without the," assistanee of the Agency This Agreement is, therefore, �iiiff;�ided to set gtir�li the obligations of Participant to develop the Project and the manner mvhih the extent to which the Agency will assist Participant in that endeavor Specificalf :this e willset. forth Participant's obligation to provide housing at an A.0rtrdable Cost oto the Skad;Agency' obligation to assist in the funding of renovation, the Site.' C Evidence off -Indebtedness. Thrnigh this Agreement, Agency has indebted itself to the paymen� of a monetary obltgatibn, subject to the terms and conditions contained herein, and suchiebh�ther funded, iinfunded,'assumed pr otherwise, may be considered a debt of Agency r purpose of.,assumg..Statemenig ' ofq!hidebtedness and Reconciliation Statements pursuantao;::California Health and Safety Code § 33675 D °Speculation not'Permitte& Participant understands and acknowledges that the purpose of this Agreement is not to facilitate speculation or excess profit-taking in the Project or Site within the meaning of California Health and Safety Code § 33437 5 as that section exists on the date of this Agreement or --as it may thereafter be amended, repealed and reenacted, or otherwise modified. 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 LA #4828-1716-5060 Q 14 cm contained in Title 25 Cal Code Regs § 6910 et seq to renter -occupied housing for Very Lov 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, d Safety Code § 33000 et seq ) of the State of California. The term the "Agency" shAftialso include any assignee of, or successor to, the rights and responsibilities of Agency under tlxis Agreement. the A enc ursuant to Section 3 1 1 "Agency Loan" shall mean the amount paily g yea "Appreciation Amount" shall mean the�difference between the Ta,g nal fair market value of the Site as appraised pursuant to Section 3 1.12 2 and the appraised fair "ket value upon sale of the Site "City" shall mean the City of formed and existing under the laws of any assignee of, or successor to, its rid "Completion" Miall mean the [Completion] of this�Agreement "Contingent Interest" shall zf by original -fair narket v "De cult" shall mef required by and within the law city and municipal corporation The term "City" shall also include as provided for in Section 1.2.1.5 dividing the amount of the Agency Loan ed pursuant to Section 3 1.2.2 and then of a party to perform any material action or covenant ,provided herein following notice and opportunity to cure as set forth.n Section 6 1' lDefault] of this Agreement. "Development Costs" shall mean all the costs and expenses which must necessarily be incurred in the design, 4levelopment, construction and completion of the Project, including but not limited to predevelopirp 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 v'_' J;; 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 investigation and analysis of the Project's impacts on the environment as may be required under the California Environmental Quality Act ("CEQA"), Public Resources Code § 21000 et seq , and/or thea- mect's impacts on any species of plant or animal listed as a species of concern, a threatened species,, or an endangered species, or habitat therefore, as may be required by the California Endangeed:..Species Act ("CESA"), Fish and Game Code § 2050, et seq, and/or the U S Endangered Species Act ("USESA"), 16 U S C § 1531, et seq , or other applicable California, or federal,jaw or regul ion. "Executive Director" shale .mean the Executive Director of die Community Redevelopment Agency of Atascadero�andlor any person designated and authorized by the Executive Director to act in the Executive Dir1. tor" s capacit with regard to this Agreement. "Hazardous Substances" shall mea .any and a 4o. the following - (i) any substance,sproduct, waste or off er materi"fany nature whatsoever which is or becomes fisted, regulated, or dor which liability arises for misuse, pursuant to the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 USC §9601 ePseq , theft ardous'W1ktemis Transportation Act, 49 US C § 1801, et seq , the Resource �o'nservatiort,x nd Recovery Act ('�VPWRA"), 42 US C. §6901, et seq the Toxic Substances Control Act; g15 ,,.0 S C:S, ,,§2601, et "seq the Clean Water Act, 33 U S C. § 1251 et seq , the Insecticide, Fungicide, Rodenticide Act, 7 US C § 136, et seq , the Superfund Amendments:.and 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 §6901, et seq , .the 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 Occupational Safety and Health Act, 29 U S C §§655 and 657, the Hazardous Waste Control Act, California Health 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 v2 16 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 expirises, to the extent reasonable in amount, actually and necessarily incurred by a faith in the investigation, prosecution or defense of an Action or to cure a Deanit of laother party, including, but not limited to, court costs, filing, recording, and services, copying"osts, exhibit production costs, special media rental costs attorneys fees, consiilant fees, fees forwestigators, witness fees (both lay and expert), travel expenses, deposition and transcript costs, Arid any other costs or expenses, the award of which a court of compe t jurisdiction may dettwjinine to be dust and reasonable rT arF_ "Local Regulations" shall MeAlIffit.,the prov1s16r 5 of the City's General Plan, the City's Municipal Code (including but not limited tri, all zoning, dee 81gpment, subdivision, and building standards, regulations, and procedures, end a11uniform`les incorporated therein), any L applicable specific plannitheNconditions of;ny applX"Imap ging processed or having been approved under the Sub�'di isi dap Act revery rrietlt �e § 66410, et seq ), any mitigation measures of lnvironmentliew for�i`Project, all as they exist on the imposed as fi J'" date of this Agreement;°or as they may thereafter be amended, repealed and reenacted, or otherwise modified. ``Prxrttcipan T". -,Shall icier -Ari The term "Participant shall, to the extent such is expressly permitted under this Agreement, include any,assignee of, or.su..ccessor to,, the rights and responsibilities of the Participant under this Agreement.. "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 specificallyrequie; but not be limited to, the items of construction and renovation defined and described in Attadhment "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 17 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 Midway Redevelopment Projects that was adopted by 1 California Community Redevelopment Law, by Ordmar as subsequently may be amended, from time to time, here "Regulatory Agreement" shall mean recorded against the Site containing the Agreement. and lopment for the Downtown and ;ncy and City pursuant to the 280 on February 26, 2002, and by Participant and vided for in this V`verylow income households" as that term 105 A "very low income household" means fty percent (50%) of the area median income sted for family size, and revised annually by iDevelopment. OPERATIVE PROVISIONS NOS, THEREFORE,, -ui consideration of the mutual promises and covenants made by the parties and :eontamed herein and other' consideration, the value and adequacy of which are hereby acknowledged, the parties.,agree as follows ARTICLE 1 - DEVELOPMENT OF THE PROJECT I 1 Scope of Development. 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 LA #4828-1716-5060 Q ;] category of work being undertaken All materials Incorporated Into the Project shall be of a standard or grade reasonably acceptable to the Agencv 1 1.2 Project Approvals Participant shall prepare, file, process applications for and obtain all Project Approvals, whether ministerial or discretionary which the City and/or any other governmental entity having jurisdiction requires for the Project. Participant agrees to comply 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 oxahe City to approve or issue any permit, approval, or entitlement for the Project. 1 13 Conformity to Redeve Approvals required by Section 1 1.2 [Project i that the Agency, by either its Governing Boar procedure adopted by the Agency, has the pi Agreement and the Project as to conformity prepare, file, and process any application requ Executive Director to undertake this review and 1 14 Affordable Housing, Al funding the affordable housing unit(s)'t be"'epa Site Agency shall loan to Participant, oiOthe to Agreement, an amount not, tar exceed One sync cost of providing each STforc[able llousmg utli`tu Low and Moderate f et me Housk Fund bop California Health & Safety Code section 333" Affordable Cost, housing avallablexir the City consideratbn.for,:reGept of thsl~uricls, Pati Cost hotising covenants and restrictions as part;+ 2.1 of this:<Aereement. lentRlanr.x In )vats], Partrbipar Executive Dirge and discretion t the Redevelobm the Agencv fo addition to any Project acknowledges and agrees r, in accordance with the review and approve this i ,%an. Participant shall r theCravernin2 Board or Y agrem rto assist in the Project by partially cted or Srerovated on the second floor of the and condlet forth in Section , of this kiusand D� s ($100,000 00) toward the This"aBsiance shall be provided out of the ceeds am nistered by Agency pursuant to for the purpose of Increasing the supply of more particularly in the Project Area. In hall record against the Site the Affordable e Regulatory Agreement required by Section x.,1.5 Tenant Parking 1?azticipant shall provide reserved off street parking for each affordable housing unit in.'conformance with the requirements of the zoning ordinance. In no case shall fewer`fhan one reserved, off-street parking space be provided for each housing unit. Participant shall includ&.and e*rce a provision in its rental agreement with each tenant that the tenant will not park any phles-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 anv 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 19 1 1 8 Rights of Access and Inspection. Representatives of the Agency and the 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 toll pay the general prevailing wage rates of per diem wages and overtime and holiday wages�dermined by the Director of the Department of Industrial Relations under Section 1720, etf' of the California Labor Code for all covered work performed on the Project. The Directcixsleermination of prevailing rates is on file with, and open to inspection at, the office of the City Clerk an 1,is referred to and made a part hereof Due to the fact that Prevailing Wage Llies to theoject, the Contractor shall submit week/ certified payrolls of all worker,e 10 ed on this Pro et'to the Agency in a form Y PY Y J; g Y acceptable to the Agency Participant acknowledges the possibility 'of wage increases during construction of the Project and that Participant end/or its contractors shQhbe responsible for paying such increases Participant acknowledges t ItAt .are of and shall ;nply with, and that its contractors shall be aware° d and shall cornpl' _bvith, the following sections of the California Labor Code (i) Section 1"77$ -pi smbing sandioz s for failure to pay prevailing wage rates, (ii) Section 1776 requiring the rnaking,4meg ng and ay.6losing of detailed payroll records and prescribing sanctions for failure to do;, so, (i�Section o77.5 prescribing the terms and conditions for employi.Rg,rogistered appreA ,es, (iv$Seetion 1810 -providing that eight hours of labor shall be a days ; t�vbrk; and A(v) Section 1$ 3 rescfil-71,Asanctions for violations of the a as.y6 provisions concerning fight -hour *Ork days acid forty -hour work weeks 1.2. -:Schedule of IPerfo, ce.1,,Participant shall undertake, commence, and thereafter diligentictrsn fkierolect to Compldtitas provided herein according to the Schedule of Perforriaaliee attachedreto as Attachment �� ; ` 1.2.1 Amend gents tochedule. The Schedule of Performance is subject to revision from brie -to -time as �riutually agTeed upon in writing by Participant and the Executive Director In the event that Participant desires a change to the Schedule of Performance, it shall submit a written request to the other party specifying the nature of the change, the reason for the change, that the change is not Ade to the negligence or Default of the Participant, and evidence that the change is reasonably .necessary to implement this Agreement. The Executive Director ............ 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 Q 20 ARTICLE22 - 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. 22 Management of Site. The unique qualificatibditj,end expertise of Participant are of particular significance to the success of the Project and6rmig-term viability of the Site It is because of this expertise and experience that theAgencyi entered into this Agreement with Participant. Participant therefore agrees that it will continue tcq n and manage the Site in a professional manner or will contract with a third paxty managerieit company to oversee tenant selection and oversight. Participant agrees towire and enforcd, a condition of renting affordable unit, that Tenants will not create arty„ nuisances including'ltt not limited to noise, parking on City streets, outdoor storage of properly, mterferulg with commercial businesses or p gr y laints the accumulation of solid waste Participant furtl'�.r�a eestti address an �pirlp against Tenants in a timely and professio4inanner As a coed Pion of this agreement; the City may require Participant to hire a third party srilafii,inent company if nuisance issues are not resolved to the satisfaction of the City 2.3 Hours of Operation. Partiedant agree ,that the commercial portion of the Site is a key property for the revit ration of t W o the Redevelopment Plan. The commercial portion ofhthe Project46d contend di i6ility of tSe"'Site directly effects the viability of other businesses in the area suW.ct to the Redevelopment Plan. In light of this, Participant agrees to the following " 2.3 1The., comneia al portionfthe Site shall be open to the public at least Monday hrough Saturday,dpr not'16ss than eight '(8) hours per day excepting state holidays as provided 111,California Goverment C 6700 and 6701 Nothing in the foregoing shall prohibit any Tdssee from operarng a business in excess of eight (8) hours per day or on any state holiday 2.3.2P.ticipadt shall require as a condition of the lease for each and every tenant leasing commercial ,pace 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 2.4 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 v2 21 2 4.2 Affordable Units Reportina. 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 perjury 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 ons=: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 withfhis Agreement or the Regulatory Agreement following two (2) business days' written noticeo Dueloper 2.4.3 Recordation of Affordab#*W� ovenant. The.. Very Low Income rental restrictions on the unit or units shall remain �n4place for a period �c���£ifty-five (55) years in compliance with California Health & Safety Code, § 33334 3(f)(1) and shall. be recorded against the Site as part of the Regulatory Agreement re ud by Sean 2 1 -- << 2.4 4 Eviction and 8061 the covenant shall not prohibit Partieaa reclaim possession of any Affordable Cci security instruments and the law In sui complete any eviction unlawf Cost to a person or family qualify-pIg as a of Umtf twithstanding this mental restriction, m exercisiri`an,y of its rights to evict a tenant and 6 8". nay be alloW_ed under the terms of its recorded ent;#R, scipant sks it use its best efforts to timely Lamer a it n and t&i et said unit at an Affordable 2.4.5 Faruly Members not Permitted as Tenants. Participant covenants for it and its successors that it shallnot ii int; lease or 11.ow a unit to be occupied by an immediate family meaber other person with ��ncial'lationship to the owner ;: Use Covenant. Patticpant covenants and agrees for itself, its successors and assigns, W any successor ,ini�interest.�"ito. the Site or part thereof, that, during the term of the Operating Cov9nant, Participarshall usbibe Site in accordance with the following provisions 2.51 Adult -Oriented Businesses No adult-oriented businesses (as regulated by Atascadero Municipal Code: § "-10 101 et seq ), shall be established, maintained, or permitted to be established or ma ntained on 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 22 2.5 4 Commercial Retail. The ground floor of the Site shall be used for 140w, 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. 2.6 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, clition, and repair, and free from the accumulation of trash, waste materials, and other debri$, (u) 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 anal repair; operly functioning landscape irrigation systems on the Site, and (iv) removed promptlyteZlace all dead or diseased landscaping material on the Site In the evenly`; default of this 80.0nant and of a failure to cure the default within fifteen (15) days after service of a written notree�my Agency and/or the City, Agency and/or the City, or their agents, employees andontractors, sTl,, have the right to enter upon the Site without further notice and to til e sucAlti, (ions as are ne nsary to cure the default. Participant shall reimburse &ncy and/or theme. for all costs associated with cure of the default (including but not limited.o, services, axxrustrative costs, legal services, and third -party costs), within fifteen (15) `days a e service of k'4, !ritten notice by Agency and/or City If Participant fails to. pay within te time'pSt' tided, surli posts shall be a lien upon the Property, as provided bye California Civil Code § 2881 the Agency may enforce and foreclose such lien in any manr), Regally aglowed. 2.7 Nondiscrimination rti Employment. The Participant covenants and agrees for itself, its successors and as�tg s ad�t:qsuccessor in -interest to the Site or part thereof, that all persons . 1, ed kby For app`ly"tn for ernp7 iyxneriOf y, it, its affiliates, subsidiaries, or holding companies; and allsu%Mmtractors, :bidders and vendors, are and will be treated equally by it without regard to, or beeause of xace, color, religion, ancestry, national origin, sex, age, pregnancy;: childbirth, or related inal condition, medical condition (cancer related) or physical or mental disability, 'an"d, in co mp`l'iance with Title VII of the Civil Rights Act of 1964, 42 US C § 20`0;vet seq , the YWeral Equal Pay Act of 1963, 29 U S C. § 206(d), the Age Discrimination in Employment Act of 1967, 29 US C. § 621, et seq, the Immigration Discrimination in Emp'l men( Act of 1967 29 U S C § 621, et seq, the Immigration Reform and Control Act of 1986'n,;9U S C § 1324b, et seq , 42 US 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 v2 2I'D' 2.8 1 Obligation to Refrain from Discrimination. The), 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 and4eenacted, or otherwise modified. They shall not establish or permit any such practice or practicss of discrimination or segregation with reference to the selection, location, number, use ko occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein cqn�ed 2 8.2. Nondiscrimination and N6J*gregation Clauses Any deeds, leases, or contracts which are proposed to be, or which ark,entered into with4 spect to the rental, sale, lease, sublease, transfer, use, development,le.cupancy, tenure, or gyment of the Site (including improvements and fixtures) (or party '16zeof), shall be subject t nd shall expressly contain, nondiscrimination or nonseg , gation clauses s4l~t�ially the follow form. 2 8.2 1 In Deeds"i., grantee .� arem covenants by and for itself, its successors and assigns, and all persons claitriixtg under or through them, that it shall comply with the applicable anti -discrimination;provisic�rs nf. the Am>sicans with Disabilities Act (42 U S C § 12101, et se .).,and the California P4i`r "-Emploprent and Housing Act (Cal. Government Code 12904, et ;seq ), asthey nrrentlyiA exi> or as they may thereafter be amended, repealed' d reenacted, or othe ��'se modified, and that there shall be no discrimination against br segregation of, any person or group or persons on account of race, color, creed, > elagion, s� , mai al' status, ancd, #y, national origin, familial status, physical disabilit !3 rtieii al d, sability,; br 'medical pnditi iU;jincluding, but not limited to, Acquired Immune Deficiency " yndromb {AIDS), the;MUman Immune Deficiency Virus (HIV), or condiholated thereto" the rental, sale, lease, sublease, transfer, use, occupancy, or tenure of the l ritl,.,herein conveyed, nor §1941 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* the selectxsn, location, number, use or occupancy of tenants, lessees, subtenants, sublessiees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 2 8:212. 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 24 rental, sale, lease sublease, transfer use occupancN 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), ozikcoridition related thereto) in the rental, sale, lease, sublease, transfer use, occupancy, ovtenu e of the land or premises affected by this instrument, nor shall the contracting or su'bcoi 6zting party or parties, or other transferees under this instrument, or any person c`laiYning tinder or through it, violate the applicable anti -discrimination provisions of ;-4the' Americans ith Disabilities Act (42 U S C § 12101, et seq ), and the California Fair Employment and 14ms ,ng Act (Cal Gov Code § 12900, et seq ) as they currently exist or as�_Oey may thereafter be atmended, repealed and reenacted, or otherwise modified, nor establish or permit"py such praelice or practices of discrimination or segregation with reference to the.�eection, location,l„aumber, use or occupancy of tenants, lessees, subt6nants, sublessees or vendees of the lanW This provision shall obligate the contracting and silffid tracting party` pTarties, and other transferees under this instrument, or any person claimingnder or'through 2.9 Taxes and acun property taxes imposed on the S special taxes imposed on,, the Site payable under the California Bra( Taxation Code § 7200, et seq-, a any porti(�n .ref$ hi h are all- at imposed«llne to the dwriershin. i consirucrron or operation ,,( lien, levyr,;encumbrance Participant herdby waives assessments, fees, ,exaction the Project which afojevie California, or any special:.d tbrances Participant shall pay, i, en due (i) all ad valorem to under Article VIII A of.:the California Constitution, (ii) all 6 (iii) all special, Assessments imposed on the Site, (iv) all taxes [toy -Burns Uniform Local Sales & Use Tax Law, Revenue and (u11,11. other taxes, assessments, fees, exactions, or charges, yd to, or,,rapeaveall,y, the City or the Agency and which are sC or posseis� of the Site or interest therein or due to the 'roiect. Upon failure to so pay, Participant shall remove any on thdA to within ninety (90) days of the attachment of such. fight it may have to contest the imposition of such taxes, iarges against the Site or upon the construction or operation of he City the Agency, the County of Riverside, or the State of sf any of the foregoing 210 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 terms and provisions of this Agreement and for the purposes of protecting the interest of the I1r' LA #4828-1716-5060 v2 25 community and other parties public or private, in whose favor and for whose benefit this Agreement has been provided. The Agency- and City shall have the nght, 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. 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 provideTrarticipant with certain assistance related to the Project as follows 3 1 1 Funding The Agency shall lccxpant an Agency Loan in an amount not to exceed One Hundred Thousand JQ rs and NoRkdents ($100,000 00) for each affordable housing unit. 3 1.2. Requisites for Funding Dior to Agency being obi led to advance any funds to Participant, Participant shall be required id"", vidqig ollowing. ` 3 1.2.1 Proof cbf bwlication 3 1.2.2 An appraisal' o�vthe chosen by Participant and approved by gency in its 9,. 3 1.2.3 A.,preliminary Af1d-= i chosen by Participant"end approv,6d by Agency its 3 1: the Sit cle �ot� ed 90 n.. receipt of Project Approvals, Site b California licensed appraiser easonabl`e.�discretion, ie Site from a title company discretion, ,al amount of the all debt secured by value of the Site. 31.2.5.,=Execution of Regulatory Agreement, Deed of Trust and Promissory K and recordatign of the Regulatory Agreement and Deed of Trust against the property A Regiteh'tfor Notice of Default will be recorded for any/all Senior Loans 3 1.3 TMYng =ofFunding. Upon receipt and verification by Agency of the requisites for funding set forth in Section 3 1.2 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 W 'twrr 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 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 covenants `°and agrees that in the event that Participant is in Default of this Agreement, which Default iremains uncured after the period provided for cure in Section 6 1 [Default] of this A eeiriont, Participant shall repay to the Agency on demand all Agency Loan proceeds paidordvan 41, to Participant by the Agency under Section 3 1 [Method of Assistance] in addition to all Cd`n`u, en t Interest as determined on the date that demand is made by the Agency, without further�',%otice or demand by the Agency r 3.2.2. Promissory Note Participar'�s obligii( n to reimbti �N the Agency for Agency Loan proceeds paid or advanced by the Agenc�,4t`�,.artiocipant under Seon 3 1 [Method of Assistance] shall be further evidenc-dall, ry a pronussfiz note having a form and content the same in all material respects to the p o' nussOrly,tote attact hereto and incorporated herein by reference as Attachment " " (the "Note"3;,and shaleprovide �rw+► 3 2' 1.; That neither principal =ri. ! intereff' shall be payable under the Note until such time,.as Participant<sells or otherwise transfers "the Site, 3 2.2.2 That the interest due on the Note shall be Contingent Interest reflecting the Agency' s equity share of Attie. Site based on the appraised fair market value of the Siteas c� .ltlie isbut eirx�ent Agency,%, i,q 3'2,2 3 T1 Participant may at any time, without selling or otherwise transferrinoe Site, decide to repay the Agency Loan amount and that any such repayment will trigger the requirement t a Participant also repay the Contingent Interest; 3.2.2 4 That any Default of this Agreement by Participant which remains uncured after ahe pdrod provided for cure under Section 6 1 [Default] of this Agreement with the exception 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 13 [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 27 is subordinate and junior only to prior encumbrances and subsequent encumbrances as may 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 specidfed in Section 3 1 [Method of Assistance] 3.3 1 Limit on Assistance. Exce] [Method of Assistance], the City shall have no ola assistance, to make any other contribution toward' Development Fee, or to carry -out or complete Elie Agreement is or shall be construed to be a pledge'; tax revenue, grant funds, or other specific monies, possession of or may become entitled 'to.. receive ►t as Is expressly provided for in Section 3 1 tgAtion to provite4Participant with additional the Project, to pa'any Development Cost or Project or any phasetreof Nothing in this it commitment by the zicy of any specific construed to, grant or vest the Participaxit wltk any right lu:any specific tax revenue, grant funds, px otheipecific Agency is in possession of or may become entitledto reg may use any revenue, funds bl inomes avable to the provide the Assistance provided under this Agreeixlerat; ;nues to why die Agency is in nent does not,ad shall not be a claim or impose a lien against funds, or revenues to which the 2e,Agency, in its sole discretion, is y be allowed for by law, to 3 3.2 Development:of the Project. Participant's commencement and diligent construction of ,.the Project `to Completion within the time provided and otherwise in strict compliance .-th7Article 1 [Development of -:the Project] of this Agreement; 3.3 3 Use of the Site. Participant's compliance with the covenants and agreeme f rade under Artidle 2 [Us"e and Maintenance of the Site] of this Agreement; 3.%4 Insurance :Policies Participant delivering to the Agency the insurance policies and evidenue, of insurance as required under Article 4 [Insurance] of this Agreement r prior to the Agency's payment, or=advancement of assistance to Participant; ............. 3.3 5 Payierit 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 41 Participant's Liabilitv Insurance Participant shall, at its sole expense obtain `mow+` 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, bodilv 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 fp.7both bodily injury or death in one accident or occurrence or for property damage in an amoulit.not less than One Million Dollars ($1,000,000 00), which amounts shall be increased fromi ime19, time as reasonably required by Agency Such insurance policy and each portion .thereof shallybe in the broadest and most comprehensive form available in the market at th tune such pout, issued or amended. The policy shall insure performance by Participants of the indemnityavisions of Section 5 1 [General Indemnity] of this Agreement. Thel, is of said insurance s it T! of limit the liability of Participant hereunder 4.2 Participant's Casuftfturance. PaM,"' giant shall, at its sokexpense, obtain and/or cause to be maintained by anyitenanfin the Site, acid shall keep in force on all buildings and improvements constructed as partof�tlie Prbjeet until thecpiration of term of the Operating Covenant, a policy of standard "all risk' ifire andxnded co%r ge insurance, with vandalism and malicious mischief endarsements, toEflae extenfone hued percent (100%) of full replacement value against "all risks of physical 1Qss'"`incliiclirxg, without limitation a guaranteed replacement cost and code compliAnce coverageiendorsement' (including without limitation, if recommended by a seismic .engineer retained by � gency earthquake coverage with deductible related thereto,,of rio more than teo percen;t (l0%),v,, the replacement value of the all buildings and impro omerits constructed as part of the Project,°�mcluding boiler and machinery insurance coverage, heating, air::'bonditionig equipment, Viand other equipment of such nature), and insuranceyVamst loss or d#mage tai ,personal property located on the Site by fire and other � hazards co eyed by such msurhnce (without any deductible clause unless approved in writing by Agency) In (& ,event any t ram on the'.°Site fails to maintain coverage to the extent of one hundred percent .11100%) of fulogplacement value for the Site, then Participant shall maintain such additional or gip ansuranc6 o satisfy the requirements of this Section. All such insurance shall be payable to Agency Duch insurance policy and each portion thereof shall be in the broadest and most compfe"h.ensive 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 deterrruned by Agency) to eliminate any risk of Agency's coinsurance 4.3 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 emplovers arising under Federal law) covering all employees of Participant and anv 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 v2 29 reasonable satisfactory to Agency and in the minimum amount for one (1) person of not less than One Million Dollars ($1000 000 00) and in 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 deposited with Agency as provided herein, and upon each renewal of such policies, which shall�be effected not less than thirty (30) days prior to the expiration date of the term of such covera,Al, 4.5 Other Insurance Provisions Said policy °off" jpoli( combine aggregate limits for Bodily Injury, Proporty Damages, Person Injury, in the amounts specified above, that app1 `specifically to a4, connection with claims arising out of or relating, to the Property If occurs during the policy period which will or rna�y dei coverage available under the policy„ "Participant1 sufficient to provide total aggregate -limits at least erj going forward basis Should any part. of th=overage r "umbrella" policies, those policies s1ia11 sp �way :. ll policies shall "drop down" as to bothdefensemd insolvency of the primary or,underlymg carrier Such', contain all the other provisions required by flus Agreerr ARTICLE 5 - s, as applicable, shall Injury, and Advertising .n only be exhausted in i =,claim, event, or loss teaount of insurance olately secure AStonal coverage the amounts set forth above on a I above be provided by "excess" or that the coverage under those nrt+ obligations in the event of spolicies shall also 5 1. en6r-al Indemnity" Eccept. as to .the sole negligence, active negligence or willful rn7sconduct of�gAgency or City, P4,60,pant expressly agrees to, and shall, indemnify, defend, re ,ease, and hold fie Agency; the City, anti their respective officials, officers, employees, agents, and. contractors ha ss frorn.iand against any Action, liability, loss, damage, entry, judgment, or .,lien, and Costs` and Expenses which arises out of, or are in any way related to, any act or omis-say.n of Participant, or its officers, directors, employees, agents, or contractors, connected with the performance -under this Agreement, the obligations set forth m Section 1 19 [Compliance with Pre��aWlmg WA, e Law], the construction, use, or operation of the Project or Site, notwithstanding that ,iffie Agency and/or City may have benefited therefrom, or any challenge to this Agreement: 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. LA #4828-1716-5060 v2 W 3.2 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 ori&Urrounding property necessitated by or related to the remediation or removal of Hazardous Substances, the cost of any tests, samples, studies, investigations, or other preparation redsonably undertaken in preparation or furtherance of remediation or removal of Hazardous Sub ance�,T:: and the cost of preparing plans for the remediation or removal of Hazardous Substances N10twithstanding the foregoing, Participant expressly agrees to, at its sole exponlik; and with 1e�rcounsel of the Agency's choice, defend the Agency, the City and their Tib pective officials, afters, employees, agents, and contractors in any Action in which the Agency, the City or their respave officials, officers, employees, agents, and contractors become or r*,becomejlevolved as a tilt of the release, treatment, use, generation, transportation, storage, or�odispeshl';'in, on, under, tii� r from the Site of any Hazardous Substances by PaiUmpant or its officeriy irectors, partners, employees, agents, and contractors Participant's obligatiotis',diider this Sectiortthall survive the Termination of this Agreement. I ARTICLE 6 - DEFAULT AluDREMEDS 6 1 Defauit:.r Either pai y's failure,or unreasonable delay to perform any term or provision of this Agreement constitutes a Default,.of this Agreement. In the event of a Default, the Injured party shall give written " Notace of Default" to the defaulting party, specifying the Default. Delay 'xin giving such ,notice shall not constitute a waiver of the Default. If the defaulting party fails :cure the ::Default wttYiz thirty (30) days after receipt of a notice specifying;.the Default, or, Jif the Default is of a' nature that cannot be cured within thirty (30) days, the dtfaulting party failglto coin ence to cure the Default within said thirty (30) days and thereafter dili'g tly prosecute t, cure tc ompletion, then the defaulting party shall be liable to the Injured partyf any and alf .damages 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 U2 31 64 Leaal Actions In addition to anv other rights and remedies anv party may institute a legal action to require the cure of ani 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. 6 4 1 Jurisdiction and Venue. Legal actions must be instituted and maintained in the Superior Court of the Countv 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 State 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 Prevailiril' entitled to recover its Litigation Expenses (as c whatever relief to which the prevailing party "Litigation Expenses" includes all Zosts and amount, that are actually and necessar3ly�aj,cui related to the Action. For the purposes of this ascribed in § 1032(a)(4) of the California Code 65 Rights and Remedies are C are cumulative, and the;. exercise by a party ether party commences an Action against of, failure to nrm, or that is otherwise (as defined herei�an the Action shall be herein) from the ofher�party in addition to e endw. For purpOst of this section, ses A the extent such Vie; reasonable in in gotfaith by the Prevailing Party directly on, "Preailing Party" shall have the meaning and remedies of the Parties or more df'its rights or remedies shall not time, of any other rights or remedies for the may terminate this Agreement upon the b.6 1 Participant, (or any Successor in interest) Assigns or attempts to Assign the Agreement or a6mghts therein.§or 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 othor than 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 Q 32 as may arise under this Agreement shall immediately cease and be terminated, except that ani obligations of the Participant to indemmfv 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 anv 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 Froin'the date of the written notice of termination of this Agreement by Participant to the Agency a.ndfhereafter this Agreement shall be deemed terminated and there shall be no further rights v'i obligations between the parties, except that Participant may pursue any remedies it has .hereunder. ARTICLE 7 - GENERAL PROVISIONS 7 1 No Excuse for Changes in Economic Conditions ,Participant agrees that foreseeable or unforeseeable future changes if,economic tor market `editions may make performance of its obligations and covenants under this A°gx ement impra bboble, difficult or economically infeasible. However,Participant expresso assumes the risk oforeseeable and unforeseeable future changes in economic:and general'' market conditions and expressly agrees that such changes shall not excuse or delayYthe strict perform ice of Participant s obligations and covenants hereunder Without limiting the generality of the': T oing, Participant agrees that future foreseeable or unforeseeable changes in economy( and malet conditions shall not operate to relieve Participant. f.lts (or ,,successo4_1 obi Pb n ,,,,a i., e by the terms, conditions, and Covenants of this Agreement. 7.2 Enforced b6lays, Eitension of T es In addition to specific provisions of this Agreement,'�performance by 'either"party"hereunderssball not be deemed to be in Default, and all performance' and other dates specified in this Agreement shall be extended, where delays or Defaults are due to litigations challenging the validity of this transaction or any element thereof or the right . of either paf"ty..to engage in the acts and transactions contemplated by this Agreement; inability to secure "ecessar *or materials or tools, delays of any contractor, sub- contractor or supplier; or withdrawal of financing not caused by any act or omission of Participant; war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy;° epidemics, quarantine restrictions, freight embargoes lack of transportation, governmentah:agency or entity (other than the acts of failures to act of the Agency which shall not excuse perfol mance 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 v2 3' J' 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 interest. Participant expressly agrees that by inclusion of this Section in the Agreement, Agency�l?as satisfied all of its obligations under Revenue and Taxation Code § 107 6 Participant hereby waives, releases and holds Agency and City harmless from any right to damages w ich may :now or in the future accrue to Participant against Agency or City under Revenue and Taxatioq Code § 107 6 or such comparable section of the United States Internal^ Revenue Code in ;zany way relating to this Agreement.: 7.3.3 Participant acknowledges that official, officer, employee, agent, ar consultant they legal, accounting, or other advice ns, or concerning the tax consequences, legal effect;inanc of the Agreement may have on Participant gency, thenor any elected : -ovided Particip'M with any tax, y representations or warranties, or other effects that performance ihas heen,represented in this transaction by but not limited to, attorneys, accountants, and warrants that it is entering into this nvestigation, conducted with due diligence, Participant. ,7 Non -fiat ility.of Aizeiicy Officials -and Employees No board member, official, consultant; attorney, or employee of the ,Agency shall be personally liable to Participant, or any successor, or assign, or any person claiming under or through them, in the event of any default or breach by theencv or for .any amount which may become due to Participant or to its successor, or on a ty ;bligations arising under this Agreement. 7.5 Conflicts of Filfiterest. No board member, official, consultant, attorney, or employee of the Agency shall` have any personal 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 34 77 No Third Part, Beneficiaries This Agreement and the CC&R s are for the sole www and exclusive benefit of the Agency the Citv and Participant. No other parties or entitles are intended to be, or shall be considered, a beneficiary of the performance of anv 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 D" tions set forth at the beginning of this Agreement are a substantive and integral part of flus Agreement and are incorporated by reference in the Operative Provisions of this Agreement, 7 10 Titles and Captions. Titles and .captions are for convenience of reference only and do not define, describe or limit the scope ot'the intent of this Agreement or any of its terms. References to section numbers are to sections in this Agreement unless expressly stated otherwise::.; 7 11 Interpretation. The Agency and that ' Y"'s Agreement is the product of mutual arms -length ridg.b it on and drafd igi, d each represents and warrants to the other that it has been represented by Fega1 counsel iii negotiation and drafting of this Agreement. Accordingly, the rule of consttruction,luch provide:the ambiguities in a document, shall be construed against,,o the drafter of ..that dou ent shah uhave no application to the interpretation and enfbreeriient of this Agreement tri anyktion or proceeding to interpret or enforce this Agreement, the findef.of fact ma gr yrder to such-i✓xtnnsic evidence not in direct conflict with any specific,, provision of this Agreement to determine and give effect to the intention of the parties hereto. /,''I:.' Severa=bii ty Each;` provision, term, condition, covenant, and/or restriction, in whole and in part, in this Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from th% w,Agreement a4. shall not affect any other provision, term, condition, covenant, and/or restriction; of ,this Agreement and the remainder of the Agreement shall continue in full force and effect. 7 13 Amendmeris 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 Q 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 eff'e&dd, if given by personal service, (i1) upon the expiration of one (1) business day, if telefaxed,r:,& (in) upon the expiration of three (3) business days after mailing, if given by certified mail; return receipt requested, postage prepaid. notice is to be mai Community Redevelopment Agendy;Fof Atascadero Attn. Executive Director/City Manager. V r 6907 El Camino Real, Atascadero, Cahfornla'`93422.. ,.. Facsimile transmission i#" be twe to (805 X01-7612 to Californiaj9. Facsimile transmission may:bemadeto; 7-,.,.,.!,,6 Ceremonies. To ensure proper protocol and recognition of the Agency board ;, members, Prticapant shall cooperate vwith the Agency and City staff in the organization or any project -related -,groundbreakings, grand openings or any such inaugural events/ceremonies sponsored by Participant celebrating the development, which is the subject of this Agreement 7 17 Computation of .Time The time in which anv act is to be done under this Agreement is computed°by ecluding the first day and including the last day, unless the last day is a holiday or Saturday or ,unday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified 1n 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 M. 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 am Burke, Williams & Sorensen, LLP LA #4828-1716-5060 v2 AGENCY COMMUNITY REDEVELOPMENT AGENCY OFTASCADERO Director/City Manager 37 Agencv General Counsel PARTICIPANT 'Name Title' LA #4828-1716-5060 v2 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 1 Determine the area median income for a household size that is one person larger than the number of bedrooms in the Affordable Rental Unit. 1442\02\319175.2_2.10.2006 C-1 39 in Attachment E ATTACHMENT " " RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO - (Document exempt from recording fees pursuant to Cal. Gov Code §''7383) Community Redevelopment Agency of the City of Atascadero Attn Executive Director 6907 EI Camino Real Atascadero California 9342 DEED OF TRUST AND ASSIONMM-T OF RED 'S. This DEED OF TRUST AND ASSIGNMEIsrOF RE S, made as.tif, 2009 between herein called TRUSTOR vlihiise mailing address is Atascadero California, 93422, , herein calle '"i'kUSTEE, arWOOMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF A, ASCADERO a public body,,, coxpoxate. and pdh&, herein called BENEFICIARY Trustor irrevocably grants iransfers and Atascadero, County of San Luis':Obispo, Together :with the rents, issues and profit given to an&c9nferred upon Beneficiary to is to Trustee xn.,7rust, with Power of Sale, that property in the City of of California;,described as. IBI "'A AT IACHED HERETO after ierred to Property") Mreof subject, however to the right, power and authority hereinafter lect and apply such rents, issues and profits. For the Purpose of Securing- (1) repayment of the sum of Dollars and no cents plus: pterest thereon 'as may accrue, according to the terms of that Agreement entered into by and between Trustor and Ren.eficiary 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 an the `,Promissory 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 1 LA #4810-4248-7044 v I 41 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 remov complete or restore promptly and in good and workmanlike manner.::1411i damaged or destroyed thereon and to pay when due all claims for labor, perfe to comply with all laws affecting said Property or requiring any alterations o: to commit or permit waste thereof not to commit, suffer or permit"any act,i cultivate, irrigate, fertilize, fumigate, prune and do all other_uets which froi may be reasonably necessary the specific enumerations herein not excluding or demolish any building thereon, to building which may be constructed, med and materials furnished therefore; improvements to be made thereon, not on said Property in violation of law- to i«the, character or use of said Property (2) To provide, maintain and deliver to Beneficiary, insurance satisfactory to Beneficiary pursuant to the Agreement. The amount collected under any insurance policymay be applied by Beneficxary..upon any indebtedness secured hereby and in such order as Beneficiary may deterrriine,,.or at the option of Benefi6iA glte entire amount so collected or any part thereof may be released. to Trustor Such application or release shall 11 G' ure 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 toaffect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all •costs and expenses, including,eost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in whieh Beneficiary or'xustee may appear and in any suit brought by Beneficiary to fortelose.this Deed of Trust (4) To pay at least ten -days before delinquency allaakes and assessments affecting said Property including assessments on appurtenanC water stock;7when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof, which:appear to b—prior or superior hereto all costs, fees and expenses of this Trust. liould Trustor:fail`to make a4y.payment or to.do: any.;act as herein provided, then Beneficiary or Trustee, but without obhgation to do: so and without notice to oVd`ernand upon Trustor and without releasing Trustor from any o 'atit'n hereof, may make or do thesame 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 and pay reasonable attorney's fees. (5) To pay immediately: and'uwithout demand all sums so expanded by Beneficiary or Trustee, with interest from date of expenditure at thetitiount 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 vl LA #4810-4248-7044 v1 12 (2) That by accepting pavment of any sum secured herebv 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 pati (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 s.eeured hereby or in performance of the Agreement and Promissory Note, Beneficiary may declare all sums secured1�herebv 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 ail,. documents evidencing expenditures secured hereby .._.......... After the lapse of such time as may then be required by law following tli recordation of said notice of default, and notice of sale having been given as then required by law Trustee, withiv outEilemand on Trustor, shall sell said Property at the time and place fixed by it in said notice:;of sale, either as a whole or m separate parcels, and in such order as it may determine, at public auction to the highest"bidder fof cash in lawful moni ..of the United States, payable at time of sale. Trustee may postpone,,sale of all or any portion elf said Property by p6lIc announcement at such time and place of sale, and from time t6- me. thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. T'rustee.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 Any person, mcludii g, Trustor, Trustee, or Beneficiary as hereinafter defined, may purchaseAat,such sale. x' After deducting°all-costs, fees.and expenses of"Trust6e=and of this,gust, including cost of evidence of title in connection with sale Trustee shall applyo,the proceeds o rale to payment of- all sums expended under the terms hereof not then repaid, with accrued interesfat the amountIL .allowed by law in effect at the date hereof; all other sums then secured hereby and the remainder if arty,°to the persona r,persons legally entitled thereto (5) That,Benefi'cf y, or any successor in ownership of any indebtedness secured hereby may from time to 3. time, by'Iinstrument in venting ,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, withoutconvevance from the Trustee predecessor succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor Trustee and Beneficiary hereunder, he book and page where this Deed of Trust is recorded and the name and address of the new Trustee (6) That this Deed of Tf istapplies 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 herebti 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 403 (8) That in the event of any Transfer las defined below) of said Property Beneficiary shall have the absolute right 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 copv 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 v I 44 [requires notary06knowledgement] R:: A-ttachment C ATTACHMENT'*—" PROMISSORY NOTE SECURED BY DEED OF TRUST Borrower Lender Community Redevelopment [street address Agency of the City of Atascadero California 9 Atascadero X907 El Camino Real Atascadero California 934220 Atascadero, California For value received, Community Redevelopment) and politic (the "Agency"), or such other place as Agency or such lesser4amount as may contingent inter. st as specifi6 Rents pursuant fo S.ection= a. Agency ,T is Note is :ecuf6d be advancedlm der this p missory note (the "Note"), plus I in this Note" plus any amounts due the Agency as Excess lV `t6evi"dence&,a.loan (the "Loan'" Participation Agreement dated _ Regulatory Agreement dated. which are hereby incorporated hereil Reguhatory Agreement executed by Borrower and )eed o;Trust dated the same date as this note. This from, Agency to Borrower, pursuant to that Owner 2009 ("Agreement"), and that ("Regulatory Agreement") the terms of 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 v LA #4810-4248-7044 v] 45 Borrower understands that advances under this Note will be made subject to and onlv 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 anv 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 5 Borrower understands that term ("Term") of this Nate commences on the date of execution of this Note and expires fifty-five (55) yearsfrom execution date unless sooner repaid or prepaid. Borrower further understands that rirpayment of this Note is deferred for the Term of the Note, except as provided miu`bsection,,5..1 below 5 1 The total amount of the prmcipq°and any Conting#nt Interest owed under this Note shall immediately becomeiii and payable. (i) in`'th.e.event of a default by the Borrower under this Note, Agree&nt, the Regulatory Agtieement, the Deed of Trust, or the First Lender Loan, (ii) a>a'khe d1i "M Transfer ,' §�,,made whether voluntarily, involuntarily, t� ty operation of lave wand whether by�d�ed, contract of sale, gift, devise, bequest or iu ase. Failure�declare such amounts due shall not constitute a waiver on the pto"fhe City to ndlare them due in the event of a subsequent Transfer . 6 If any of the fo1lcirig="�ents of Default" occur any obligation of the Agency to make advances uncq 'i- this Note"t> in atidz aC the Agend s option, exercisable m its sole discretion, all of priricipal and interest under this Note will become immediately due and ayable Mi iout n6d eaof defaulbviesentment or demand for payment, protest or nom p rot t, nonpa�t t b d shonor,;Epr other notices or demands of any land or ,e orter � R. R The Beany of the principal amount to any cost, expense, or lAbility other tlii the Pr©ject defined in the Agreement. 6.2 An vent of Default (as defined therein) occurs under the Agreement or any other Loan cument 7 All amounts payab% 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. 8 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 RIV #4812-6017 5361 v1 LA #4810-4248-7044 v 1 M I%W presentment, demand for payment, notice of dishonor notice of nonpayment, protest, 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 rn�hodpe naitted by law and (iii) waives any and all rights Borrower may have to t Mi9fer or change the venue of any such action or proceeding. Borrower and Agency hereby waive the nghtyto�a, jury trial in any action, proceeding, claim or counterclaim in connection with this Note 6 Loan Documents 10 The Agency may accept additional or su6WWte s6dikwity for this Ndte,. or release any security or any party liable for this Note, or eAtendib"17 renew this Note, 611 without notice t 7F to the Borrower and without AA i .wthe liability f he Borrower 11 If the Agency delays in exercising or fails 71, opexercisdipi., of its rights under this Note, that delay or failure vil1; not constitute a watt —r`Tpf any 6174be Agency's rights, or of any RI breach, default! & failurebf conditi6"f or under llir Note. No waiver by the Agency of any of its ngh.9,,or of an%ia,ch breach; d"`I li or failtz eAof condition is effective, unless the waiver is 6N=O essly stated in a wriiing signed by a duly authorized officer of the Agency All of the Ageny'i gemedies in connection with this Note or under applicable la et nulative, ai d it'd Agencys exerc>se...of any one or more of those remedies will notonsti'arr,,6ectioftMTemedies�' M 12 This>�note inures to fhb benefit`gf and binds the heirs, legal representatives, successors and assigns, of the Borr0 eTignd the ,Agency; provided, however, that the Borrower may not assign flu`s Note or anypan funds, or assign or delegate any of its rights or obligations, without th�,Agency's pnabr written consent in each instance which consent may be granted or withheld ince Agency's sole discretion. The Agency in its sole discretion may transfer thi'sNoe att�1 may sell or assign participation or other interests in all or part of the Loan, on the >erms 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 vl LA #4810-4248-7044 vl 47 13 The term 'Banking Dav means a day other than a Saturdav or Sunda', that the Agencv is open for business in Atascadero California. BORROWER. By Name: RN #4812-6017 5361 vl LA #4810-4248-7044 v M 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 of is r ("Owner") a COM ATASCADERO;` 1publie following: ATTACHMENT " " SPACE ABOVE IN R lkttachment G �_ Z'Property *[dress ,,arket`'�v�tlue. eF Jr.. M nt (R,gulatory Agreement"), dated for reference purposes as and ened into by and between ITY REDEVELOPMENT AGENCY OF THE CITY OF y corporate and politic ("Agency") with reference to the RF.f TTAT.0 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 v1 LA #4810-4248-7044 v W same meaning when referred to herein. C. This Agreement affects that parcel of real property commonly known as Assessors 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-m,ents, 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 recordin& th .Ao, cument will have commenced construction on the Property of the Project as definedun the Agreement. NOW, THEREFORE, Owner, in consi hereby covenants, agrees, and declares that the occupied, rented, and otherwise tranf£erred 1 ("Covenants") and that such Covenant Zshal11be, to the Property, and all lessees, tenants ',iiko.ntrae in the Property, or claimig,n interest byand th 1 Hugh § 1468' The the City of etas All not challei112L, any rignrm _f Agreement reasonable resb and any estate unreasonable re CO of,A,ency entering��* the Agreement, nhlbe owned, held; teed, maintained, to the following restrictive covenants np4WI Owner's successors and assigns '71"40"d ' k r" nts, aril all persons claiming an interest ;v of theibreaoinL Viand. The Ci enants set forth herein are limitations on the land ias provided in California Civil Code § 784 The direct bddidit ofProperty and shall run with the land and r, -,as definecfi6rein, as provided in California Civil Code § oenants set forth herein benefit, and may be enforced by, cadero'("City"), and their respective successors or assigns the Reili ictions as set forth in this Regulatory Agreement or the City created under this Regulatory Agreement or the ressly acknowledges and agrees that the Covenants are vner's right to own, use, maintain, and transfer the Property serest therein and are not and shall not be construed to be an 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. RN #4812-6017 5361 v LA #4810-4248-7044 vl 50 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 requireNPdrticipant to hire a third party management company if nuisance issues are not ro,611 ed to the satisfaction of the City 4 Hours of Operation. Owner agrees that the bbinmerd I l,_ portion of the Site is a key property for the revitalization of the arrda..' bject to thez'Redevelopment Plan. The commercial portion of the Project andpoilt nued viability of rthe.,Site directly effects the viability of other businesses in the areaisubject to the Redevelopment Plan. In light of this, Owner agrees to the following- 41 ollowing 5 41 The commercial portitbib& the Site shdlli'be pen to the public ndt least Monday through Saturday, forret #ess than eigf%ut X48) hours per day, excepting state holidays as provided ifalffata Governizient Code sections 6700 and 6701 WT Nothing in the foregoinghall probitany lessee from operating a business in excess of,;0j") hours pel day or on un tate hdlt y 4.2 Owner liall require&as a condi on f the lease for each and every tenant leasing commerc L.space J -hp the Site, 4rovision requiring the tenant to open their business tome pubt�,,east Maniay through Saturday, for not less than eight 5 1 Wfordable lZ Unit(i)il,�,Owner covenants and agrees that each unit in the 'residential portio�of the Site shall only be leased to a person or family qualifying ase�ry Low h*0 "°�me Maximum rents shall not exceed the City's adopted standards;; for Vary °"Low Income rental rates In the event the Owner leases the , Pro ert m; p yI2i exle��' of the established rental rates, the amount over the allowable rate (Excess Rt 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 perjury by the owner of the Rental Affordable Units and any property management company managing the units, shall be submitted RN #4812-6017 5361 vi LA #4810-4248-7044 v 1 51 annually to the Administering Agencv on February 1 of each vear commencing on the February 1 following issuance of final certificates of occupancy for one hundred percent (100%) of the Rental Affordable Units If similar reports on some 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 Cahfornia�Health & Safety:Code § 33334.3(f)(1) 54 Eviction and Reletting of Un>Et(�& 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 sep-urity instruments and the law In sucha,e�enty Owner shall ai5:e its best efforts to timely complete any eviction and/or any urilawfub etamer action'and to relet said unit at an Affordable Cost to a person or familyTquallfytng as a Veiy ow Income Household. 5.5 Family M-eff bers not Per tted as�'Xenants "Owner covenants for it and its success fiha `at shall not `rent ,;ease of allow a unit to be occupied by an immediate family member or er person w- ith a financial relationship to the owner 6 Use Cloant Owner covenants ;and agrees for itself its successors and assigns, and ariyFsuccessov� terest-to the Srte``or part, thereof, that, during the teen of the Operating Covenant, OwnM,;&`iall use the Site in accordance with the following provisions 6 1 .Adult -Oriented ;bBusinesses. No adult-oriented businesses (as regulated by �ltiascadero Municipal Code § 5-10 101 et seq ), shall be established, maintained or'peiamitted to be°established or maintained on the Site 6.2. Check whin 'tus inesses. No establishments regularly and primarily engaged in the busuless�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. 6.3 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 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 v1 LA #4810-4248-7044 vl 52 area subject to the Redevelopment Pian No enterprise that consists substantialIti 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. 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, wasteriaterials, and other debris, (ii) remove all graffiti placed upon the Site(including'`all improvements, fixtures and landscaping) within seventy-two (72) hours ofts �earance, (in) maintain in good order, condition and repair, properly functiongllandscap m " irrigation systems on the Site, and (iv) remove and promptly replace all d or diseased'+landscapmg material on the Site In the event of a default of this ao enant and of a failure�to„cure the default within fifteen (15) days after service of a wiatten notice by Agency or the City, Agency and/or the City, or their agents, employ&,ii�and contactors, shall I Ye the right to enter upon the Site without further notice and to t ie such.,-, i✓tions as are ridcessary to cure the default. Owner shall reimbtt Aft, and/or ie� ity for all costs assdciated with cure of the default (including buf,,.A ted to, sta ervices, administrative costs, legal services, and third -party costsYleWithih �f been (15�a i, after service of a written notice by Agency and/or City If Ownerails tofwithm thtime provided, such costs shall be a lien upon the N. rty, as prRhded bya rm Civil Code § 2881 The Agency may enforce ancxforec dch lien irinyanneilegaily allowed. 8 NondiscriminA an;. in EMoyment The Owner covenants and agrees for itself, its successors and assrg>san�ati�,�uccessor rfi-interest to the Site or part thereof that all per o t`s e p oyed by zi�pplying r Memplayment by it, its affiliates, subsidiaries, or ing compam s, and allasubcontractoxs, .bidders and vendors, are and will be treated ,wally by it wifhtat� , regso, or because of race, color, religion, ancestry, national K Ong sex, age, prd ancy, ch Idbirth, or related medical condition, medical condition (cand lated) or physikal or mental disability, and in compliance with Title VII of the Civil Rigits,,Act of 19642 U S C. § 200, et seq ,the Federal Equal Pay Act of 1963, 29 U.S C § 20�td), the Age iscrimination in Employment Act of 1967, 29 U.S C § 621, et seq , the Immi&tion i "drimmation in Employment Act of 1967, 29 U S C. § 621, et seq., the Immigratl�n�eform and Control Act of 1986, 8 U S C. § 1324b, et seq , 42 U S C § 1981, the &fornia 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 Nonsegregation. 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 I 53 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 US 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,,pr 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 Nongregation Clauses Any deeds, leases, or contracts which are proposed to be'orwhich are, entered into with respect to the rental, sale, lease, sublease, transfer,�use, development, occupancy, tenure, or enjoyment of the SiteJ� nclnding imprno ents and fixtures) (orY party thereof), shall be subject tb',y axil shall expres ly contain, nondiscrimination or nonsegregation clauses insubstamYally the following form. 9.2 .1 In R.4s "The grantee herein .2cov&enants iiy= nd for itself, its successors asst`giis�and all pesonsrlimmgunder or through them, that it shall 6 mply with the app ble anti -discrimination provisions of the )Wricans wtli Disabilities Act (42 U S C. § 12101, et seq) and the Call �iiaairan ploymart :and Housing Act (Cal Government Code r� , fire12900�et seq )AUlkhey cif ently exist or as they may thereafter be �- ded,repealed andeenacted, or otherwise modified, and that there hno discrimination against or segregation of, any person or group or perlsans on acoount of race, color, creed, religion, sex, marital status, ancestry' rational :,origin, familial status, physical disability, mental x,66,disability,Ar medical condition (including, but not limited to, Acquired iblinintine Nficiency Syndrome (AIDS), the Human Immune Deficiency '0xiis (iIV), or condition related thereto) in the rental, sale, lease, s40W> 5 transfer, use, occupancy, or tenure of the land herein conveyed, nor1' 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 v1 LA #4810-4248-7044 v1 54 California Fair Employment and Housing Act (Cal GO\ 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 rental, sale, lease, sublease, transfer, use, occupancy, or tenure of thepland herein conveyed, nor shall the grantee itself or any person claimingmnder or through it, establish or permit any such practice or practiceAso"discrimmation or segregation with reference to the selection, location,Dnuniber, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees:"in-the premises herein leased." 9.2.3 In Contracts "There shal,1e'no discrimmatioxtagainst or segregation of, any person or group or;per,c sons on account of raeolor, creed, religion, sex, marital status, ancdkb , national .._origin, faiii bal status, physical disability, mental condition '(nWilding, but not limited to, A ipUed Immune Defibiency Syndrome (AIDS), the Human Immune DefiQielci 'KIX art (HIV) or. condition related thereto) in the rental, sale, lease,`s blee,,taransfer, ups, occupancy, or tenure of the land or premises affected by "tom tnstrument nor shall the contracting or sul��ieQitakaing partyytr parties,4,ox ther trio6rees under this instrument, any persi n claiming uiad r kor Through it, violate the applicable anti- licrirmnatii� provisionsi the Americans with Disabilities Act (42 U C.§ 121}1.; et seq ), and;,the California Fair Employment and Housing Act FCa�.0=Code § 1290,0, et seq) as they currently exist or as they -' risay thrfter be amended,. repealed and reenacted, or otherwise nified,°x�r establislY'or: permit any such practice or practices of disnatioor segregation with reference to the selection, location, numb se oiupancy of tenants, lessees, subtenants, sublessees, or vendees f the lair: This provision shall obligate the contracting and Y„ subcontr' MW CY party or parties, and other transferees under this xnstrumer any person claiming under or through it." 10 Taxes and Ences. Owner shall pay, when due (i) all ad valorem property taxes imposed on dii"Site under Article XIII A of the California Constitution, (ii) all special taxes imposed on the Site, (iii) 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 v1 LA #4810-4248-7044 v 55 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, 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,�`%iseq 12 Effect of Violation. The Agency and City are de'ftd'd!the beneficiaries of the terms and provisions of this Regulatory Agreement and foxhe purposes of protecting the interest of the community and other parties, public or pr vate, in whose#favor and for whose benefit this Regulatory Agreement has been reoo4ed. The Agency am City shall have the right, if the Regulatory Agreement is breached, to exercise all ngh[t ,sand remedies, and to maintain any actions or suits at law or iniquity or other proper proeedings to enforce the curing of such breaches to which it crrx any ''beneficiariehe Regulatory Agreement and covenants ma.entitled. 13 Subordination. This Regulatazsy Agreement is subji✓ - and subordinate to the following Senior loan(s)- t _ z �,w r 1r aFP Aids, Name of Lender ��rxrount ""� �fl8te@e�d ofTrust Recorded i.. a. ; b C' 5. A Request er. Notice of Defalult. 4 west for notice of default and notice of sale regarding the Loan(s%*erenced above. shall be�xecorded in the Office of the Recorder of the County of San Luis Obispo for the benefit of th itv 14 Refinance of 141 City Consef f e wired. 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 vl LA #4810-4248-7044 v 56 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; 14.3.2 the refinanced First Lender Loan .i wily amortized with a fixed rate of interest for a minimum five (5) year period, permits no negative amortization, and requires no balloon payinipnts, 14.3.3 if the remaining balance i fRihe original First t der Loan exceeds ninety percent (90%) of the faii°4riarket value of the Site'asgappraised pursuant to Section 3 1.2.2, then the r8fif anced First Lender Loanyreduces the Owner's principal and interest _, n 14.3 4 the new paymetitaaunt after the refinance does not exceed the Owner's f� ability to pay w � 7 14 4 Junior L naris ands Eiluity Li of Cxedtt. 1VIortgage loans or equity lines of credit junior ri>ien priontyw to this Agrneement and the City Deed of Trust are not permitted; =eept as,qexpressly appz•oved by the City in writing The City shall �approve lumoxmorfaeoans or equ%ty lines of credit only if 14 4 1 fciQl wing stidhi refinance,-�the,principal amount of all debt secured by the Prope'v_will riot:xceed the Permitted Debt; the refinanced First Lender Loan is fully amortized with a maximum rate of interest nosr:eater than five percent (5%) above the initial rate, permits no f,. iregative amortization, and requires no balloon payments, and 14 4 3 ther3 payment amount after the refinance does not exceed the Owner's abilitylopay 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 Countv of San Luis Obispo for the benefit of the City RN #4812-6017 5361 vi LA #4810-4248-7044 v 57 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, LOW Title RN #4812-6017 5361 vl LA #4810-4248-7044 vl W. OWNER. Print Name Signature. Pant Name Signature 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:jnstrument. 4 S, 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 COUNTY OF SAN On personally of satisfac instruttimnf and acknoiA authorize �Napacity(ies), the entity uppn. behalf of I certify UNDER E foregoing paragraph WITNESS my hand a RN #4812-6017 5361 vl LA #4810-4248-7044 vl LL_, befte me, Notary Public, proved to me on the basis to 13 2- e perso n ,wh&8 name(s) is/are subscribed to the within .dged une that ` hey he/they executed the same in his/her/their Adahat byes/her/their signature(s) on the instrument the person(s), or vhir he persoi (s) acted, executed the instrument. TY OFtPERJURY under the laws of the State of California that the seal. Notary Public 59 WO