HomeMy WebLinkAboutCarlsbad Veteran Housing LP; 2020-09-01;CONSTRUCTLON AND PERMANENT LOAN AGREEMENT
by and between
THE CITY OF CARLSBAD
and
CARLSBAD VETERAN HOUSING, L.P.
(Windsor Pointe)
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TABLE OF CONTEN_I~
Page
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 Definitions ......................................................................................................... I
Section 1.2 Exhibits ............................................................................................................. 9
ARTICLE 2 LOAN PROVISIONS 10
Section 2.1 Loan ................................................................................................................ 10
Section 2.2 Interest. ............................................................................................................ I 0
Section 2.3 Security ........................................................................................................... 10
Section 2.4 Subordination .................................................................................................. 10
Section 2.5 Construction Closing ...................................................................................... 1 I
Section 2.6 Condit ions to Closing ..................................................................................... 12
Section 2. 7 Repayment of the C ity Loan ........................................................................... 13
Section 2.8 Reports and Accounting of Residual Receipts ................................................ 14
Section 2.9 Non-Recourse ................................................................................................. 14
Section 2.10 Developer Fee ............................................................................................... 15
Section 2.11 Partner Fees ................................................................................................... 15
ARTICLE 3 CONSTRUCTION OF THE IMPROVEMENTS 15
Section 3.1 Permi ts and Approvals .................................................................................... 15
Section 3.2 Plans and Specifications ................................................................................. 16
Section 3.3 Construction Contract. .................................................................................... 16
Section 3.4 Performance and Payment Bonds ................................................................... 16
Section 3.5 Commencement of Construction .................................................................... 16
Section 3.6 Completion of Construction ............................................................................ 17
Section 3.7 Performance of Work Pursuant to Plans and Laws; Prevailing Wages .......... 17
Section 3.8 Relocation ....................................................................................................... 19
Sectio n 3.9 Equal Opportunity ........................................................................................... 19
Section 3.10 Progress Reports ........................................................................................... 20
Section 3.11 Construction Responsibilities ....................................................................... 20
Section 3.12 Mechanics Liens, Stop Notices, and Notices of Completion ........................ 20
Section 3.13 Inspections ..................................................................................................... 21
Section 3.14 Approved Development Budget; Revisions to Budget. ................................ 21
Section 3.15 Financial Accountings and Post-Completion Audits .................................... 2 1
Section 3.16 Post Completion Documents and Reports .................................................... 21
ARTICLE 4 ONGOING OBLIGATIONS 22
Section 4.1 Marketing Plan ................................................................................................ 22
Section 4.2 Management Plan ............................... .' ............................................................ 22
Section 4.3 Operation of Development as Affordable Housing ........................................ 23
Section 4.4 Maintenance and Damage ............................................................................... 23
Section 4.5 Operating Budget; Information ....................................................................... 24
Section 4.6 Records ........................................................................................................... 24
Section 4.7 Audits .............................................................................................................. 25
Section 4.8 Hazardous Materials ....................................................................................... 26
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TABLE OF CONTENTS
( continued)
Page
Section 4.9 Fees and Taxes ................................................................................................ 28
Section 4.10 Notice of Litigation ....................................................................................... 28
Section 4.11 Non-Discrimination ...................................................................................... 28
Section 4.12 Mandatory Language in All Subsequent Deeds, Leases and
Contracts .......................................................................................................... 28
Section 4.13 Insurance Requirements ............................................................................... .29
Section 4. 14 Transfer. ....................................................................................................... .30
Section 4.15 Covenants Regarding Development Financing and Partnership
Agreement. ....................................................................................................... 3 I
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER 32
Section 5.1 Representations and Warranties ...................................................................... 32
ARTICLE 6 DEFAULT AND REMEDTES 34
Section 6.1 Events of Default. ........................................................................................... 34
Section 6.2 Remedies ......................................................................................................... 36
Section 6.3 Right of Contest. ............................................................................................. 36
Section 6.4 Remedies Cumulative ..................................................................................... 36
Section 6.5 Remedies by Other Entities/Individuals Pursuant to California Law ............. 37
Section 6.6 Survival .......................................................................................................... .37
ARTICLE 7 GENERAL PROVISIONS 37
Section 7.1 Relationship of Parties .................................................................................... 37
Secti on 7.2 No Claims ....................................................................................................... 37
Section 7.3 Amendments ................................................................................................... 38
Section 7.4 Entire Understanding of the Parties ............................................................... .38
Secti on 7.5 Indemnification ............................................................................................... 38
Section 7.6 Non-Liability Officials, Employees and Agents ............................................. 38
Section 7.7 No Third Party Benefi c iaries .......................................................................... 38
Section 7.8 Action by the City ........................................................................................... 38
Section 7.9 Waivers ........................................................................................................... 39
Section 7.10 Notices, Demands and Communications ..................................................... .39
Section 7.11 Applicable Law and Yenue .......................................................................... .41
Section 7 .12 Parties Bound ................................................................................................ 4 1
Section 7.13 Severability ................................................................................................... 4 1
Section 7.14 Force Majeure ............................................................................................... 4 1
Section 7.15 Title of Parts and Sections ........................................................................... .42
Section 7.16 Operating Memoranda ................................................................................. .42
Section 7 .17 Time is of the Essence ................................................................................. .42
Secti on 7.18 Multiple Originals; Counterpart ................................................................... .43
Exhibit A
Exhibit B
10 I 012612835757.7
Legal Description of the Property
Development Budget
II
CONSTRUCTION AND PERMANENT LOAN AGREEMENT
(Windsor Point)
This Construction and Permanent Loan Agreement (the "Agreement") is dated as of
September I, 2020 (the "Effective Date"), by and between the City of Carlsbad, a municipal
corporation (the "City"), and Carlsbad Veteran Housing, L.P., a California limited partnership
(the "Borrower").
RECITALS
A. Capitalized terms used, but not defined, in these recitals are as defined in Article I
of this Agreement.
B. Prior to the Effective Date, the Bo1Tower acquired the Property for the purpose of
constructing, owning, and operating the Development. Pursuant to the Purchase Agreement, the
Borrower has agreed to convey the fee interest in the Property to the City on, or about, the
Effective Date. Concurrently with the conveyance of the fee interest in the Property to the City,
the City has agreed to enter into the Ground Lease with the Borrower for the development of the
Development.
C. This Agreement evidences the City's loan to Borrower for construction of the
Development, in the amount of Three Million Seven Hundred Ninety-Three Thousand Three
Hundred Ninety-Two Dollars ($3,793,392). Upon or prior to Construction Closing, among other
things, the following will occur (or the following shall have occurred): (i) the Borrower shall
convey the Property to the City pursuant to the Purchase Agreement, (ii) the City and the
Borrower shall enter into the Ground Lease, (iii) Borrower will execute the Note evidencing the
City Loan; (iv) Borrower will execute the Deed of Trust and record it against the Borrower's
leasehold interest in the Property; and (v) the City and the Borrower will execute the Regulatory
Agreement and Affordability Notice and record them against the Borrower's leasehold interest in
the Property.
NOW, THEREFORE, in consideration of the recitals hereof and the mutual promises and
covenants set forth in this Agreement, the Parties agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following capitalized terms have the meanings set forth in this Section l. I wherever
used in this Agreement, unless otherwise provided:
(a) "Affirmed" means Affirmed Housing Group, r nc., a Delaware corporation.
(b) "Affordability Notice" means the Notice of Affordability Restrictions on
Transfer of Property between the City and Borrower to be recorded against the Property at
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Construction Closing pursuant to Health and Safety Code Secti ons 33334.3 and/or 33413( c )(5),
or successor provision.
(c) "Agreement" means this Construction and Permanent Loan Agreement.
(d) "Annual Operating Budget" has the meaning in Section 4.5 below.
(e) "Annual Operating Expenses" means fo r each calendar year, the following
costs reasonably and actually incurred for operation and maintenance of the Development:
(I) property taxes and assessments imposed on the Development;
(2) debt service currently due on a non-optional basis (excluding debt
service due from residual receipts or surplus cash of the Development) on loans associated with
Development Fi nancing;
(3) on-site service provider fees for tenant social services, provided the
City has approved, in writing, the plan and budget for such services before such services begin;
(4) property management fees and reimbursements, on-site property
management office expenses, and salaries of property management and maintenance personnel,
not to exceed amounts that are standard in the industry and pursuant to a management contract
approved by the City;
(5) fees for accounting, audit, and legal services incurred by
Borrower's general partner in the asset management of the Development, not to exceed amounts
that are standard in the industry, to the extent such fees are not included in the Managing General
Partner Fee or Limited Partner Fee;
(6) premiums for property damage and liability insurance;
(7) utility services not paid for directly by tenants, including water,
sewer, and trash collection;
(8) maintenance and repair;
(9) any annual lice nse or certificate of occupancy fees required for
operation of the Development;
( I 0) security services;
( 11 ) advertising and marketing;
( 12) cash deposited monthly into reserves for capital replacements of
the Development in an amount not to exceed $19,800 annually;;
( 13) cash deposited into an operating reserve as needed to replenish the
minimum operating reserve requirement in accordance with the Borrower's Partnership
Agreement;
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( 14) the Managing General Partner Fee and the Limited Partner Fee, as
described in Section 2.11 ;
(15) the Deferred Developer Fee, as described in Section 2.1 O;
( 16) extraordinary operating costs specifically approved in writing by
the City;
( 17) payments of deductibles in connection with casualty insurance
claims not normally paid from reserves, the amount of uninsured losses actually replaced,
repaired or restored, and not normally paid from reserves, and other ordinary and reasonable
operating expenses approved in writing by the City and not listed above.
Annual Operating Expenses do not include the fo llowing: depreciation, amortization,
depletion or other non-cash expenses, any amount expended from a reserve account, any capital
cost associated with the Development, as determined by the accountant for Borrower.
(f) "Borrower" means Carlsbad Veteran Housing, L.P., a California limited
partnership, and its permitted successors or assigns.
(g)
Residual Receipts.
"Borrower's Share of Residual Receipts" shall mean fifty percent (50%) of
(h) "Business Day" shall mean a day of the week on which the City is open to
the public for carrying on substantially al l business functions of the City. In no event shall a
Saturday, Sunday, or any legal holiday in the State of California be considered a Business Day.
(i) "City" means the City of Carlsbad, a municipal corporation.
G) "City Council" means the City Council of the City.
(k) "City Loan" means the loan to the Borrower in the principal amount not to
exceed Three Mi llion Seven Hundred Ninety-Three Thousand Three Hundred Ninety-Two
Dollars ($3,793,392), as evidenced by the Note.
(I) "City Manager" means the City Manager of the City or the City Manager's
designee.
(m) "City Prorata Percentage" means the percentage resulting from dividing
the City Loan funds disbursed to the Borrower in accordance with this Agreement by the sum of
such City Loan funds disbursed in accordance with this Agreement and County Loan funds
disbursed to the Borrower in accordance with the County Loan Agreement. As of the Effective
Date, the amount of the City Prorata Percentage is anticipated to be 37% of the Lender's Share of
Residual Receipts.
(n) "City's Prorata Percentage of the Net Proceeds of Permanent Financing"
means 37%.
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(o) "Code" means the Internal Revenue Code of 1986, as amended.
(p) "Commencement of Construction" has the meaning set forth in Section 3.5
below.
(q) "Completion Date" means the date a final certificate of occupancy, or
eq uivalent document, is issued by the City's building department, to certify that the Development
may be legally occupied.
(r) "Construction Bonds" has the meaning set forth in Section 3.4 below.
(s) "Construction Closing" means the date that deeds of trust evidencing the
Development Financing described in Sections 1. I (jj), and the City Loan are recorded against the
Property, immediately prior to the Commencement of Construction.
(t) "Construction Contract" has the meaning set forth in Section 3.3 below.
(u) "Construction Plans" has the meaning set forth in Section 3.2 below.
(v) "Control" shall mean direct or indirect management or control of: (I) the
managing member or members in the case of a limited liability company; (2) the managing
general partner or general partners in the case of a partnership; and (3) a majority of the directors
in the case of a corporation, as determined by the C ity.
(w) "County" means the County of San Diego.
(x) "County Loan Agreement" means that certain Development Agreement
between the County and the Borrower governing the County Loan, as may be amended from
time to time.
(y) "County Order" means that certain order of the Health Officer and
Emergency Regulations, dated as June 4, 2020, issued by the County's Health and Human
Services Agency, as amended from time to time.
(z) "County Prorata Percentage" means the percentage resulting from dividing
the County Loan funds disbursed to the Borrower in accordance with the County Loan
Agreement by the sum of such Coun ty Loan funds disbursed in accordance with the County
Agreement, and City Loan funds disbursed to the Borrower in accordance with this Agreement.
As of the Effective Date, the amount of the County Prorata Percentage is anticipated to be 63%
of the Lender's Share of Residual Receipts.
(aa) "County Subsidy Agreement" means that certain Capitalized Operating
Subsidy Reserve Agreement between the County and the Borrower regarding the County COSR
Loan to be provided by the County to the Borrower for the Development.
(bb) "Bond Issuer" means the California Municipal Finance Authority, a joint
powers authority.
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(cc) "Deed of Trust" means the deed of trust that will encumber the
Development to secure repayment of the City Loan.
(dd) "Default" has the meaning set forth in Section 6.1 below.
(ee) "Default Rate" means the lesser of the maximum rate permitted by law
and ten percent (10%) per annum.
(ff) "Deferred Developer Fee" has the meaning set forth in Section 2.10.
(gg) "Developer Fee" has the meaning set forth in Section 2.10.
(hh) "Development" means the Property and the Improvements.
(ii) "Development Budget" has the meaning given in Section 3.14 below.
Gj) "Development Financing" means all of the fo llowing funds obtained by
Borrower, and approved by the City for the purpose of financing the construction of the
Development, in addition to the City Loan:
, (I) A construction loan utilizing funds from Bank of the West, N .A.,
or another commercial lender reasonably acceptable to the City (the "Bank"), in the approximate
amount of Twelve Million Three Hundred Twenty-Six Thousand Five Hundred and Thirteen
Dollars ($12,326,513) (the "Bank Loan");
(2) A loan of "No Place Like Home" program funds made by the
County in the approximate amount of Six Million Five Hundred Twenty Three Thousand Six
Hundred Twenty Six Dollars ($6,523,626)(the "County Loan");
(3) Low Income Housing Tax Credit investor equity funds in the
approximate amount of Thirteen Million Seventy-Eight Thousand and Forty-Four Dollars
($13,078,044), subject to the terms, conditions, and adjustments of the Partnership Agreement
(the "Tax Credit Investor Equity"), provided by the Investor Limited Partner;
(4) A "Capitalized Operating Subsidy Reserve" loan made by the
County in the approximate amount of Six Million Five Hundred Twenty Three Thousand Six
Hundred Twenty Six Dollars ($6,523,626) (the "County COSR Loan"); and
(5) Contribution from Affirmed of no less than Five Hundred
Thousand Dollars ($500,000), a portion of which may be deferred Developer Fee in a projected
amount not to exceed Two Hundred Thousand Fifty Dollars ($250,000) unless otherwise
approved under the Partnership Agreement.
(kk) "Development Fiscal Year" shall mean for the Development, the annual
period commencing on January 1 and concluding on December 31 each year.
(II) "Fifteen Year Compliance Period" means the fifteen ( 15)-year compliance
period as described in Section 42(i)( I) of the Code.
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(mm) "Final Cost Ce,tification" has the meaning set forth in Section 3.15.
(nn) "Final Development Cost" means the total of the cost of construction of
the Development as shown on the Final Cost Certification.
(oo) "Force Majeure" means the occurrence of one or more of those events
described in Section 7.14, permitting an extension of time for performance of obi igations under
this Agreement.
(pp) "General Partner" means AHG Windsor Pointe, LLC, a California limited
liability company, the general partner of the Borrower.
(qq) "General Partner Fee" means the fee payable to the General Partner
pursuant to the Partnership Agreement in the amount of Twenty-Five Thousand Dollars
($25,000) per year (increasing annually by a maximum of three percent (3%)).
(rr) "Gross Revenue" means for each calendar year, all revenue, income,
receipts, and other consideration actually received from the operation and leasing of the
Development. Gross Revenue includes, but is not limited to:
the dwelling units;
Agreement;
or rental agreements;
paid to senior lenders;
(I)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
all rents, fees and charges paid by tenants;
Section 8 payments or other rental subsidy payments received for
all funds provided to the Borrower pursuant to the County Subsidy
deposits forfeited by tenants;
all cancellation fees;
price index adjustments and any other rental adjustments to leases
net proceeds from vending and laundry room machines;
the proceeds of business interruption or similar insurance and not
(9) the proceeds of casualty insurance not used to rebuild the
Development and not paid to senior lenders; and
( I 0) condemnation awards for a taking of part or all of the
Development for a temporary period.
Gross Revenue does not include tenants' security deposits, loan proceeds, capital
contributions or similar advances.
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(ss) "Ground Lease" means that certain ground lease dated as of, or about, the
Effective Date, between the City, as landlord, and the Borrower, as tenant, for the Borrower's
lease of the Property.
(tt) "Hazardous Materials" means: (i) any substance, material, or waste that is
petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing
material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a
pesticide, herbicide, or any other agricultural chemical; (ii) mold (which has been or is proven to
be harmful to human beings), fungus (which has been or is proven to be harmful to human
beings), or toxic and mycotoxin spores; and (iii) any waste, substance or material defined as or
included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"toxic materials", "toxic waste", "toxic substances," or words of similar import under any
Hazardous Materials Law.
(uu) "Hazardous Materials Claims" means with respect to the Property: (i) any
and all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against Borrower or the Property pursuant to any Hazardous Materials
Law; and (ii) all claims made or threatened by any third party against Borrower or the Property
relating to damage, contribution, cost recovery compensation, loss or injury resulting from any
Hazardous Materials.
(vv) "Hazardous Materials Law" means any federal, state or local laws,
ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene,
environmental conditions, or the regulation or protection of the environment, and all
amendments thereto as of this date and to be added in the future and any successor statute or rule
or regulation promulgated thereto.
(ww) "HCD" means the State of California Department of Housing and
Community Development, or any successor.
(xx) "Improvements" means the fifty (50) unit housing development, including
two (2) managers' units, appurtenant landscaping and on-site improvements to be constructed on
the Property.
(yy) "lntercreditor Agreement" means that certain intercreditor agreement by
and among, the City, the Borrower, and the County.
(zz) "Investor Limited Partner" means Raymond James Tax Credit Fund XX
L.L.C., or its affiliate, or its successors and assigns.
(aaa) "Lender's Share of Residual Receipts" shall mean fifty percent (50%) of
Residual Receipts to be allocated to the City, in the amount of the City Prorata Percentage, and
to the County, in the amount of the County Prorata Percentage.
(bbb) "Limited Partner Fee" or "Asset Management Fee" means fee payable to
the Investor Limited Partner pursuant to the Partnership Agreement during the Fifteen Year
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Compliance Period, in the amount of Five Thousand Dollars ($5,000) per year (increasing
annually by a maximum of three percent (3%)).
(ccc) "Loan Documents" means this Agreement, the Note, the Regulatory
Agreement, the Deed of Trust, the Affordability Notice, the [ntercreditor Agreement, and any
other document or agreement evidencing the City Loan. The Ground Lease is specifically
excluded from the definition of Loan Documents.
(ddd) "Management Plan" has the meaning set forth in Section 4.2 below.
(eee) "Managing General Partner" means Las Palmas Foundation, a California
nonprofit public benefit corporation, the managing general partner of the Borrower.
(fft) "Managing General Partner Fee" means the fee payable to the Managing
General Partner pursuant to the Partnership Agreement during the Fifteen Year Compliance
Period, in the amount of Seven Thousand Five Hundred Dollars ($7,500) per year (increasing
annually by a maximum of three percent (3%)).
(ggg) "Marketing Plan" has the meaning set forth in Section 4. I below.
(hhh) "Net Proceeds of Permanent Financing" means the amount by which
Permanent Financing exceeds Final Development Costs.
(iii) "Note" means the promissory note, in the amount of the City Loan
executed by the Borrower in favor of the City.
Qjj) "Official Records" means the official land records of the County.
(kkk) "Operating Memorandum" has the meaning given in Section 7.16 below.
(Ill) "Partnership Agreement" means the agreement between Borrower's
general partners and the Investor Limited Partner that governs the operation and organization of
Borrower as a California limited partnership.
(mmm)"Parties" means the City and Borrower.
(nnn) "Permanent Conversion" means the date the Bank Loan is repaid, or
converts from a construction loan to a permanent loan (as applicable).
(ooo) "Permanent Financing" means the sum of the following amounts: (i) the
City Loan; (ii) the permanent component of the Bank Loan; (iii) the County Loan; and (iv) the
Tax Credit Investor Equity.
(ppp) "Property" means the Borrower's leasehold interest in all of the real
property located in the City of Carlsbad, more particularly described in the attached Exhibit A.
(qqq) "Purchase Agreement" means that certain agreement between Borrower,
as seller, and the City, as buyer, for the City's acquisition of the Property.
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(rrr) "Regulatory Agreement" means the Regulatory Agreement and
Declaration of Restrictive Covenants between the City and Borrower to be recorded against the
Property at Construction Closing.
(sss) "Related Entity Investor Transferee" means any of Special Limited
Partner, or any entity under the Control of, Controlling, or under common Control with, the
Investor Limited Partner.
(ttt) "Special Limited Partner" means any entity admitted to the Borrower as a
special lim ited partner,, or its affiliate or its successors and assigns.
(uuu) "Statement of Residual Receipts" means an itemized statement of Residual
Receipts, including the City Prorata Percentage and the County Prorata Percentage.
(vvv) "Relocation Plan" means the relocation plan for the Property approved by
the City on May 5, 2020.
(www)"Residual Receipts" means for each calendar year, the amount by which
Gross Revenue exceeds Annual Operating Expenses.
(xxx) "Tax Credit Investor Equity" has the meaning set forth in
Section 1.1 Uj)(3).
(yyy) "TCAC" means the California Tax Credit Allocation Committee.
(zzz) "Term" means the period of time that commences as of the Effective Date,
and expires, unless sooner terminated in accordance with this Agreement, on the fifty-fifth (55th)
anniversary of the Completion Date; provided, however, if a record of the Completion Date
cannot be located or established, the Term will expire on the fifty-seventh (57th) anniversary of
the Effective Date.
(aaaa) "Title Company" means Corinthian Title Company.
(bbbb) "Transfer" has the meaning set forth in Section 4.14 below.
(cccc) "Unit" means one (I) of the fifty (50) multi-family residential units to be
constructed on the Property.
(dddd) "Veteran" means: (i) any person, regardless of discharge status, who
served in the active military, naval, or air service of the United States, or as a member of the
National Guard who was called to and released from active duty or active service, for a period of
not less than 90 consecutive days or was discharged from the service due to a service-connected
disability within that 90-day period, or (ii) any other definition of "veteran" utilized by HCD
following the Effective Date.
Section 1.2 Exhibits.
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T he fo llowing exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A:
Exhibit B:
Legal Description of the Property
Development Budget
ARTICLE2
LOAN PROVISIONS
Section 2.1 Loan.
On and subject to the terms and conditions of this Agreement, the City shall make the
City Loan to Borrower. Borrower's obligation to repay the City Loan is evidenced by the Note.
Section 2.2 Interest.
(a) Interest. Subject to the provisions of Section 2.2(b) below, the outstanding
principal balance of the City Loan will accrue interest from the date of the Note, at the rate of
three percent (3%).
(b) Default Interest. In the event of a Default (and any applicable notice and
cure period), interest on the City Loan w ill begin to accrue, as of the date of Default and continue
until such time as the City Loan funds are repaid in full or the Default is cured, at the Default
Rate.
Section 2.3 Security.
Borrower shall secure its obligation to repay the City Loan, as evidenced by the Note, by
executing the Deed of Trust, and causing or permitting it to be recorded as a li en against the
Property. Borrower sha ll also cause or permit the Regulatory Agreement to be recorded against
the Property.
Section 2.4 Subordination.
(a) The City will agree to subordinate the Deed of Trust to the deed of tru st
evidenc ing the Bank Loan, and the Bond Issuer regulatory agreement, subject to the satisfaction
of the fo llowing conditions:
(I) All of the proceeds of the proposed Bank Loan or the Coun ty
Loan, less any transacti on costs, are used to provide acquisition, construction, and/or permanent
financing for the Development.
(2) The maker of the Bank Loan or the County Loan is a state or
federally chartered financial institution, a nonprofit corporation or a public entity that is not
affiliated with Borrower or any of Borrower's affiliates, other than as a depositor or a lender.
(3) Borrower demo nstrates to the City's reasonable satisfacti on that
subordination of the Deed of Trust and/or Regulatory Agreement is necessary to secure adequate
IO I 0\26\2835757. 7 10
acquisition, construction and/or permanent financing to ensure the viability of the Development,
including the operation of the Development as affordable housing, as required by the Loan
Documents. To satisfy this requirement, Borrower must provide to the City, in addition to any
other information reasonably required by the City, evidence demonstrating that the proposed
amount of the Bank Loan or the County Loan is necessary to provide adequate acquisition,
construction, and/or permanent financing to ensure the viability of the Development, and
adequate financing for the Development would not be available without the proposed
subordination.
(4) The subordination agreement(s) is structured to minimize the risk
that the Deed of Trust and/or Regulatory Agreement will be extinguished as a result of a
foreclosure by the ho lder of the Bank Loan or the County Loan. To satisfy this requirement, the
subordination agreement must provide the City with adequate rights to cure any defaults by
Borrower, including: (i) providing the City or its successor with copies of any notices of default
at the same time and in the same manner as provided to Borrower; and (ii) providing the City
with a cure period of at least sixty (60) days to cure any default.
(5) The subordination(s) of the City Loan to the Bank Loan or County
Loan is effective only during the ori ginal term of the Bank Loan or the County Loan, as
applicable, and any extension of the applicable loan term that is approved in writing by the City.
(6) The subordination does not limit the effect of the Deed of Trust
and/or Regulatory Agreement before a foreclosure, nor require the consent of the holder of the
Bank Loan or the County Loan prior to the City exercising any remedies available to the City
under the Loan Documents, or otherwise limit or impair the City's ability to enforce the
Regulatory Agreement.
(7) The subordination complies with the requirements of Health and
Safety Code Section 33334.14.
(b) Upon a decision by the City to subordinate the Deed of Trust and/or
Regulatory Agreement to the Bank Loan or the County Loan, and the determination by the City
Manager that the conditions in this Section 2.4 have been satisfied, the City Manager or his/her
designee will be authorized to execute the approved subordination agreement w ithout the
necessity of any further action or approval.
Section 2.5 CQnstruction Closing.
Upon Construction Closing the following shall occur:
(a) The City shall have acquired the Property pursuant to the Purchase
Agreement, and the Borrower shall have executed a grant deed in favor of the City.
(b) The City and the Borrower shall have executed the Ground Lease, and
recorded a memorandum of ground lease against the Property.
(c) Borrower shall execute the Note.
IO I 0\26\2835757. 7 11
(d) Borrower shall execute the Deed of Trust, and Borrower shall record the
Deed of Trust as a li en against the Property.
(e) Borrower and City shall execute the Regulatory Agreement, and
Affordability Notice and Borrower shall record each of them against the Property.
Section 2.6 Conditions to Closing.
The City shall not be obligated to take any action under the Loan Documents and
authorize the Title Company to proceed towards Construction Closing unless the fo llowing
conditions precedent are satisfied prior to Construction Closing:
(a) There exists no Default nor any act, failure, omission or condition that
would constitute an event of Default under this Agreement;
(b) There exists no Default nor any act, failure, omission or condition that
would constitute an event of Default under the Purchase Agreement;
( c) The City has received a copy of authorizing reso lutions from Borrower,
authorizing Borrower's execution of the Loan Documents and the transactions contemplated by
this Agreement and the Ground Lease;
(d) There exists no material adverse change in the financial condition of
Borrower from that shown by the financial statements and other data and information furnished
by Borrower to the City prior to the date of this Agreement;
( e) Borrower has furnished the City with evidence of the insurance coverage
meeting the requirements of Section 4.13 below;
(t) Borrower has executed and delivered to the City the Note, the Deed of
Trust, the Affordability Notice, and the Regulatory Agreement; and the Deed of Trust,
Affordability Notice, and Regulatory Agreement have been, or will be concurrently with the
Construction Closing, recorded against the Property in the Official Records in a lien position
acceptable to the City;
(g) Borrower has executed and delivered to the City all other documents,
instruments, and policies required under the Loan Documents;
(h) The Title Company is unconditionally and irrevocably committed to
issuing to the City: (i) a 2006 ALTA Lender's Policy of title insurance insuring the priority of the
Regulatory Agreement, the Affordability Notice, and the Deed of Trust in the amount of the City
Loan subject only to such exceptions and exclusions as may be reasonably acceptable to the City,
and containing such endorsements as the City may reasonably require; and (ii) a 2006 AL TA
Owner's Policy of title insurance insuring the City as the fee owner of the Property, and that no
liens and encumbrances created by the Borrower for the Development encumber the City's fee
interest in the Property. The Borrower shall provide whatever documentation (including an
indemnification agreement), depos its or surety is reasonably required by the Title Company in
order for the City's Deed of Trust to be senior in lien priority to any mechanics liens in
IO I 0\26\2835757. 7 12
connection with any start of construction that has occurred prior to the recordation of the Deed of
Trust against the Property in the Official Records, or otherwise necessary for the City's owner's
policy to show the City's fee interest free and clear of liens and encumbrances;
(i) Borrower has delivered, and the City has approved, evidence of
Borrower's compliance with the Relocation Plan;
U) The City has acquired the Property pursuant to the Purchase Agreement;
(k) Borrower has closed on the Development Financing, and the Borrower has
executed the Partnership Agreement in which the Investor Limited Partner is obi igated to
provide Borrower the Tax Credit Investor Equity;
(I) Borrower has reimbursed the City for certain C ity staff time and City
outside counsel fees related to the Development in the amount of Twenty-Five Thousand Dollars
($25,000) (this condition may be satisfied in conjunction with the Construction Closing); and
(m) The City has received a written draw request from the Borrower, and
setting forth the proposed uses of funds consistent with the City approved Development Budget,
the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost
incurred or to be incurred. When a disbursement is requested to pay any contractor, the written
request must be accompanied by: (l) where applicable, certification by the Borrower's architect
reasonably acceptable to the City that the work for which disbursement is requested has been
completed (although the City reserves the right to inspect the Property and make an independent
evaluation); and (2) conditional lien releases for such work to be paid with such funds, and
unconditional lien releases for work previously funded, all as reasonably acceptable to the City.
Provided the conditions set forth above have been satisfied, the City shall from time to
time (but not more frequently than one (I) time per month) disburse the Loan funds to the
Borrower no later than fourteen (14) days following the City's receipt and approval of the draw
request. In the event the City disapproves of the draw request, the City shall provide a written
notice to the Borrower setting forth the City's reasons for such disapproval within ( I 0) ten days
of receipt of Borrower's draw request and Borrower shall be permitted to submit a revised draw
request. Thereafter, upo n the disbursement of the City Loan funds to the Borrower, the
Borrower shall directly pay the vendor as set forth on the approved invoice no later than thirty
(30) days following receipt of such invoice. Upon written request from the City, the Borrower
shall provide the City with a copy of each check and such other documentation reasonably
requested by the City to document the use of the proceeds of the City Loan.
Section 2.7 R~payment of the City Loan.
The C ity Loan shall be repaid as follows:
(a) Subject to Subsection (c) below, commencing on May I 5, 2023, and on
May 15 of each year thereafter during the Term, Borrower shat I make a loan payment in an
amount equal to the City's Share of Residual Receipts, (each, an "Annual Payment"). Annual
Payments will be applied first, to accrued interest, and second, to principal.
l010\26\2835757.7 13
(b) Additional Payment from Net Proceeds of Permanent Financing.
Commencing on May 15, 2023, or such other date as reasonably acceptable to the City,
Borrower shall pay to the City the City's Prorata Percentage of the Net Proceeds of Permanent
Financing, as a special repayment of the City Loan. No later than one hundred eighty ( 180) days
following completion of construction of the Development, Borrower shall submit to the City for
its review a preliminary calculation of the Net Proceeds of Permanent Financing and a draft of
the Final Cost Certifi cation as defined Section 3.15 below. The City shall approve or disapprove
Borrower's determination of the amount of the Net Proceeds of Permanent Financing in writing
within thirty (30) days after receipt. If Borrower's determination is disapproved by the City,
Borrower shall re-submit documentation to the City until the City approval is obtained.
(c) Payment in Full. Borrower shall pay all outstanding principal and accrued
interest on the City Loan, in full, on the earliest to occur of: (i) any Transfer other than as
permitted pursuant to Section 4.14; (ii) an event of Default unless City permits Borrower to cure
such Default; and (iii) the expiration of the Term.
(d) Prepayment. Borrower may prepay the Loan at any time without premium
or penalty. However, the Regulatory Agreement will remain in effect for the entire Term,
regardless of any prepayment or Transfer.
Section 2.8 Reports and Accounting of Residual Receipts.
In connection with the Annual Payment, Borrower shall furnish to the City:
(a) The Statement of Residual Receipts for the relevant period. The first
Statement of Residual Receipts will cover the period that begins as of Construction Completion
and ends on December 31 st of that same year. Subsequent statements of Residual Receipts will
cover the twelve ( 12) month period that ends on December 3 I of the prior year;
(b) A statement from the independent public accountant that audited the
Borrower's financial records for the relevant period, which statement must confirm that
Borrower's calculation of the Lender's Share of Residual Receipts, the City Prorata Percentage,
and the County Prorata Percentage are accurate based on Gross Revenue and Annual Operating
Expenses; and
(c) Any additional documentation reasonably required by the C ity to
substantiate Borrower's calculation of the City Prorata Percentage.
The receipt by the City of any statement pursuant to subsection (a) above or any payment
by Borrower or acceptance by the City of any City Loan repayment for any period does not bind
the City as to the correctness of such statement or payment. The City may audit the Residual
Receipts and all books, records, and accounts pertaining thereto pursuant to Section 4.7 below.
Section 2.9 Non-Recourse.
Except as provided below, neither Borrower nor any of its partners shall have any direct
or indirect personal liability for payment of the principal of, or interest on, the City Loan.
Following recordation of the Deed of Trust the sole recourse of the City with respect to the
10 10\26\2835757.7 14
principal of, or interest on, the Note will be to the Property described in the Deed of Trust;
provided, however, that nothing contained in the foregoing limitation of liability shall: (a) limit
or impair the enforcement against all such security for the Note of all the rights and remedies of
the City thereunder; or (b) be deemed in any way to impair the right of the City to assert the
unpaid principal amount of the Note as demand for money within the meaning and intendment of
Section 431.70 of the California Code of Civil Procedure or any successor provision thereto.
The foregoing limitation of liability is intended to apply only to the obligation for the repayment
of the principal of, and payment of interest, on the Note and the performance of Borrower's
obligations under the Deed of Trust, except as hereafter set forth; nothing contained herein is
intended to relieve Borrower of its obligation to indemnify the City under this Agreement; or
liability for: (i) fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or
other charges which may create liens on the Property that are payable or applicable prior to any
foreclosure under the Deed of Trust (to the ful I extent of such taxes, assessments or other
charges); (iii) the fair market value of any personal property or fixtures removed or disposed of
by Borrower other than in accordance with the Deed of Trust; and (iv) the misappropriation of
any proceeds under any insurance policies or awards resulting from condemnation or the
exercise of the power of eminent domain or by reason of damage, loss or destruction to any
portion of the Property.
Section 2.10 Develon.er Fee.
The maximum cumulative Developer Fee that may be paid to Affirmed, in its capacity as
the developer of the Development, whether paid up-front or on a deferred basis, is not to exceed
Two Million Five Hundred Thousand Dollars ($2,500,000), or such other amount as approved by
the City in writing. Deferred Developer Fee means the portion of Developer Fee to be paid out
of Gross Revenue after completion of the construction of the Development, in the amount set
forth in the Development Budget.
Section 2.11 £_art:necFee~.
During the Fifteen Year Compliance Period, the Limited Partner Fee is not to exceed
Five Thousand Dollars ($5,000) per year, increasing annually by three percent (3%). The
Limited Partner Fee is payable from Gross Revenue and pursuant to the Partnership Agreement
may accrue in any year there is insufficient Gross Revenue to make a payment in the amount set
forth above. During the Fifteen Year Compliance Period, the General Partner Fee is not to
exceed Twenty-Five Thousand Dollars ($25,000) per year, increasing annually by three percent
(3%). The General Partner Fee are payable from Gross Revenue and pursuant to the Partnership
Agreement may accrue in any year there is insufficient Gross Revenue to make a payment in the
amount set forth above. Any other partner fees set forth in the Partnership Agreement shall only
be payable from Borrower's share of Residual Receipts.
Section 3.1
ARTICLE 3
CONSTRUCTION OF THE IMPROVEMENTS
Permits and Amrovals.
All pem,its and approvals necessary for the construction of the Improvements must be
received no later than December 31, 2020, or the City, at its option, and with thirty (30) days
IO I 012612835757. 7 15
prior written notice to Borrower and opportunity to cure, may declare Borrower in default
hereunder.
Section 3.2 Plans and Sn.ecifications.
Prior to the Effective Date, Borrower submitted to the City a copy of the Construction
Plans for the Improvements for the City's review, and the City has approved the Construction
Plans. As used in this Agreement, "Construction Plans" shal l mean all construction
documentation upon which Borrower and Borrower's contractor shall rely in constructing the
Improvements (including the Units, landscaping, parking, and common areas) and shall include,
but not necessarily be limited to, final architectural drawings, landscaping plans and
specifications, building plans and specifications (also known as "working drawings").
Section 3.3 Construction Contract.
(a) Not later than fifteen ( 15) days prior to the proposed Commencement of
Construction, Borrower shall submit to the City for its approval a draft of the proposed
construction contract for the Development. All construction work and professional services are
to be performed by persons or entities licensed or otherwise authorized to perform the applicable
construction work or service in the State of California. The City's approval of the construction
contract shall not be deemed to constitute approval of or concurrence with any term or condition
of the construction contract, or the enforceability, or business advantage of the construction
contract.
(b) Upon receipt by the City of the proposed construction contract, the City
shall promptly review same and approve or disapprove it within ten ( I 0) days. If the
construction contract is not approved by the City, the City shall set forth in writing and notify
Borrower of the City's reasons for withholding such approval. Borrower shall thereafter submit a
revised construction contract for City approval, which approval is to be granted or denied in ten
( I 0) days in accordance with the procedures set forth above. Any construction contract executed
by Borrower for the Development is to be in the form approved by the City.
Section 3.4 Performance and_P_a_yment Bonds.
Prior to the proposed Commencement of Construction, Borrower shall deliver to the City
copies of labor and material bonds and performance bonds for the construction of the
Improvements in an amount equal to one hundred percent (I 00%) of the scheduled cost of the
construction of the Improvements (the "Construction Bonds"). Such bonds shall: (i) be in a
form reasonably acceptable to the City; (ii) be issued by a surety licensed to do business in
California, named in the current list of "Surety Companies Acceptable on Federal Bonds" as
published in the Federal Register by the Audit Staff Bureau of Accounts, U.S. Treasury
Department, and reasonably acceptable to the City; and (iii) name the City as a co-obligee.
Section 3.5 Commencement of Construction.
Subject to Force Majeure, Borrower shal I cause the commencement of construction of the
Improvements no later than November 30, 2020, or such later date that the City approves in
writing. For the purposes of this Agreement, "commencement of construction" means the date
IO I 012612835757. 7 16
for the start of physical construction of the Development, including demolition, in the notice to
proceed issued by Borrower to Borrower's general contractor.
Section 3.6 Completion of Construction.
Subject to Force Majeure, Borrower shall diligently prosecute construction of the
Improvements to completion, and shall cause the completion of the construction of the
Improvements no later than June 30, 2022. Upon completion of construction Borrower shall
promptly apply for a final certificate of occupancy for the Development. Upon request by the
City, Borrower shall submit the final certificate of occupancy to the City Manager w ithin seven
(7) days after receipt.
Section 3.7 Performance of Work Pursuant to Plans and Laws; Prevailing Wages.
(a) Changes. Borrower shall construct the Improvements in conforma nce
with the plans and specifications approved by the City. Borrower shall notify the City in a
timely manner of any changes in the work required to be performed under this Agreement,
including any additions, changes, or deletions to the plans and specifications approved by the
City, in its capacity as a municipal government authority A written change order authorized by
the Bank must be provided to the City before any of the following changes, additions, or
deletions in work for the Development may be performed: (I) any change in the work the cost of
which exceeds One Hundred Thousand Dollars ($100,000) (or such greater amount set forth in
the Bank loan documents); or (2) any set of material changes in the work the cost of which
cumulatively exceeds Two Hundred Fifty Thousand Dollars ($250,000) (or such greater amount
set forth in the Bank loan documents); or (3) any material change in building materials or
equipment, specifications, or the structural or architectural design or appearance of the
Improvements as provided for in the plans and specifications approved by the City. City consent
to Changes (defined below) shall not be required if Bank approval is provided, however, Bank or
City consent to any additions, changes, or deletions to the work (collectively, "Changes") shall
not relieve or release Borrower from any other obligations under this Agreement, or relieve or
release Borrower or its surety from any surety bond. City consent to any Changes, pursuant to
this Agreement, does not relieve Borrower from any requirements to receive approval from the
City, in its capacity as municipal governmental authority, for such Changes. The City shall
utilize best efforts to approve or disapprove change orders within five (5) working days of
receipt of a request for approval which approval shall not be unreasonably withheld. If the City
fails to approve or disapprove within such timeframe, then such change order(s) shall be deemed
approved.
(b) Compliance w ith Laws. Borrower shall cause all work performed in
connection with the Development to be performed in compliance with: (i) all applicable laws,
ordinances, rules and regulations of federal, state, county or municipal governments or agencies
now in force or that may be enacted hereafter, including (without limitation and where
applicable) the prevailing wage provisions of Sections 1770 et~-, of the California Labor Code
and implementing rules and regulations, as set forth in subsection (c) below; and (ii) a ll
directions, rules and regulations of any fire marshal, health officer, building inspector, or other
officer of every governmental agency now having or hereafter acquiring jurisdiction. The work
shall proceed only after procurement of each permit, license, or other authorization that may be
required by any governmental agency having jurisdiction, and Borrower shall be responsible to
1010\2612835757.7 17
the City for the procurement and maintenance thereof, as may be required of Borrower and all
entities engaged in work on the Development.
(c) Compliance with State Prevailing Wages. To the extent required by
appli cable law Borrower shall:
(l) pay, and shall cause any consultants or contractors to pay,
prevailing wages in the construction of the Development as those wages are determined pursuant
to California Labor Code Section 1720 et seq.;
(2) cause any consultants or contractors to employ apprentices as
required by California Labor Code Section 1777.5 et seq., and the implementing regulations of
the Department of Industrial Relations (the "DIR"), and to comply w ith the other applicable
provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and implementing
regulations of the DIR;
(3) keep and retain, and shall cause any consultants and contractors to
keep and retain, such records as are necessary to determine if such prevailing wages have been
paid as required pursuant to California Labor Code Section I 720 et seq., and apprentices have
been employed are required by California Labor Code Section 1777.5 et seq.;
( 4) post at the Property, or shall cause the contractor to post at the
Property, the applicable prevailing rates of per diem wages. Copies of the currently applicable
current per diem prevailing wages are available from DIR;
(5) cause contractors and subcontractors constructing the Development
to be registered as set fo rth in California Labor Code Section 1725.5;
(6) cause its contractors and subcontractors, in all calls for bids,
bidding materials and the construction contract documents for the construction of the
Development to specify that:
(A) no contractor or subcontractor may be listed on a bid
proposal nor be awarded a contract fo r the construction of the Development unless registered
with the DIR pursuant to California Labor Code Section 1725.5; and
(B) the construction of the Development is subject to
compliance monitoring and enforcement by the DIR.
(7) provide the City all information required by California Labor Code
Section 1773.3 as set forth in the DI R's on line fo rm PWC-100 within 2 days of the award of any
contract (https://www.dir.ca.gov/pwc I 00ext/);
(8) cause its contractors to post job site notices, as prescribed by
regulation by the DIR; and
(9) cause its contractors to furnish payroll records required by
California Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the
electronic format prescribed by the Labor Commissioner.
IO I 0\26\2835757. 7 18
(d) Borrower shall indemnify, hold harmless and defend (with counsel
reasonably acceptable to the C ity) the City and its councilmembers, commissioners, directors,
officers, employees, agents, successors and assigns against any claim for damages,
compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any
person or entity (including Borrower, its contractor and subcontractors) to pay prevailing wages
as determined pursuant to Labor Code Sections 1720 et~-, to employ apprentices pursuant to
Labor Code Sections 1777.5 et seq .. and implementing regulations of the DlR or to comply with
the other applicable provisions of Labor Code Sections I 720 et~-, 1777.5 et seq., and the
implementing regulations of the DIR in connection with the construction of the Development or
any other work undertaken or in connection with the Property. The requirements in this
subsection shall survive the repayment of the City Loan, and the reconveyance of the Deed of
Trust.
(e) Accessibility Requirements. To the extent required by applicable law,
Borrower shall construct the Development in compliance with all applicable federal and state
disabled persons accessibility requirements including but not limited to the Federal Fair Housing
Act; Section 504 of the Rehab ii itation Act of 1973 ("Section 504"); Title ll and/or T itle III of the
Americans with Disabilities Act; and Title 24 of the California Code of Regulations
(collectively, the "Accessibility Requirements"). In compliance with Section 504, upon request
from the City, Borrower shall provide the City with a certification from the Development
architect that to the best of the architect's knowledge, the Development complies w ith all federal
and state accessibility requirements applicable to the Development. Borrower shall indemnify,
hold harmless and defend (with counsel reasonably acceptable to the City) the City against any
claim for damages, compensation, fines, penalties or other amounts arising out of the failure or
alleged failure of any person or entity (including Borrower, its architect, contractor and
subcontractors) to construct the Development in accordance with the Accessibility
Requirements. The requirements in thi s subsection survive repayment of the Loan and the
reconveyance of the Deed of T rust.
Section 3.8 Relocation.
(a) Borrower Obligation. Borrower shall comply with the Relocation Plan.
Borrower sha ll be solely responsible for payment of any relocation benefits to any displaced
persons and any other obligations associated w ith complying with the Relocation Plan.
(b) fndemnity. Borrower shall indemnify, defend and hold harmless, (with
counsel reasonably acceptable to the City), the City and its councilmembers, commissioners,
officers, employees, agents, successors and assigns against any claim for damages,
compensation, fines, penalties, relocation payments or other amounts and expenses (including
reasonable attorneys' fees) arising out of the failure or a lleged failure of any person or entity
(including Borrower or the City) to satisfy relocation obligations related to the development of
the Development. These obligations to indemnify shall survive termination of this Agreement.
Section 3.9 Equal Opportunity.
During the construction of the Improvements there shall be no discrimination on the basis
of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin,
IO I 0\26\2835757. 7 19
ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the
construction work.
Section 3. 1 0 Progress Reports.
Until such time as Borrower has completed construction of the Improvements, as
evidenced by final certificate(s) of occupancy issued by the City, Borrower shall provide the City
with quarterly progress reports regarding the status of the construction of the Improvements,
including a certification that the actual construction costs to date conform to the Development
Budget, as it may be amended from time to time pursuant to Section 3.14.
Section 3.11 Construction Res_p_onsibi lities.
(a) It shall be the responsibility of Borrower to coordinate and schedule the
work to be performed so that commencement and completion of construction will take place in
accordance with this Agreement.
(b) Borrower shall be solely responsible for all aspects of Borrower's conduct
in connection with the Development, including (but not limited to) the quality and suitability of
the plans and specifications, the supervision of construction work, and the qualifications,
financial condition, and performance of all architects, engineers, contractors, subcontractors,
suppliers, consultants, and property managers. Any review or inspection undertaken by the City
with reference to the Development is solely for the purpose of determining whether Borrower is
properly discharging its obligations to the City, and should not be relied upon by Borrower or by
any third parties as a warranty or representation by the City as to the quality of the design or
construction of the Improvements and does not relieve Borrower, or its consultants, from any
applicable requirement to obtain City approval and/or inspections.
Section 3.12 Mechanics Liens, Stop Notices, and Notices of Completion.
(a) If any claim of lien is filed against the Property or the Improvements or a
stop notice affecting the City Loan is served on the City or any other lender or other third party
in connection with the Development, then Borrower shall, within twenty (20) days after such
filing or service, either pay and fully discharge the lien or stop notice, effect the release of such
li en or stop notice by deli vering to the City a surety bond from a surety acceptable to the City in
sufficient form and amount, or provide the City with other assurance satisfactory to the City that
the claim of lien or stop notice will be paid or discharged.
(b) If Borrower fails to discharge any li en , encumbrance, charge, or cla im in
the manner required in this Section, then in addition to any other right or remedy, the City may
(but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at
Borrower's expense. Alternately, the City may require Borrower to immediately deposit with the
City the.amount necessary to satisfy such lien or claim and any costs, pending resolution thereof.
The City may use such deposit to satisfy any claim or lien that is adversely determined against
Borrower.
(c) Borrower shall file a valid notice of cessation or notice of completion
upon cessation of construction of the Improvements for a continuous period of thirty (30) days or
IO I 0\26\2835757. 7 20
more, and take all other reasonable steps to forestall the assertion of claims of lien against the
Property and/or Improvements. Borrower authorizes the City, but without any obligation, to
record any notices of completion or cessation of labor, or any other notice that the City deems
necessary or desirable to protect its interest in the Development and Property.
Section 3.13 Inspections.
Borrower shall permit and facilitate, and shall require its contractors to permit and
facilitate, observation and inspection at the Development by the City and by public authorities
during reasonable business hours for the purposes of determining compliance with this
Agreement. Such inspections do not re lieve Borrower, or its contractors, from any applicable
requirement to obtain City inspections in connection with the construction of the Improvements.
Section 3.14 Approved Development Budget; Revisions to Budget.
As of the Effective Date, the City has approved the Development Budget set forth in
Exhibit B. Borrower shall submit any amendments to the Development Budget to the City for
approval within five (5) days of the date Borrower receives information indicating that actual
costs of the Development will materially vary from the costs shown on the previously approved
Development Budget. Written consent of the City will be required to materially amend the
Development Budget.
Section 3.15 Financial Accountings and Post-Completion Audits.
(a) No later than ninety (90) days following completion of construction of the
Improvements, Borrower shall provide to the City for its review and approval an unaudited
financial accounting of all sources and uses of funds for the Development.
(b) No later than one hundred twenty (120) days after Permanent Conversion,
Borrower shall submit an audited financial report showing the sources and uses of all funds
utilized for the Development. This requirement may be satisfied by providing the Final Cost
Certification to the City. "Final Cost Certification" means the Final Cost Certification Sources
and Uses of Funds prepared by Borrower for the Development that (1) Borrower submits to
TCAC, and (2) has been prepared using generally accepted accounting standards in effect in the
United States of America from time to time, consistently applied.
Section 3.16 Post Completion Documents and Reports.
No later than sixty (60) calendar days following completion of construction of the
Improvements, Borrower shall provide to City:
(a) A completion report setting forth: (i) the Unit size, rent amount and utility
allowance for all Units in the Development; and (ii) designation of the accessible and/or
adaptable Units in the Development;
IO I 0\26\2835757. 7 21
(b) Copies of the final certificate of occupancy for the Development or other
equivalent document showing applicable governmental agency sign-off on the construction work
(if requested by the City);
(c) Current evidence of the insurance coverage meeting the requirements of
Section 4.1 3 below;
(d) A final form of tenant lease and tenant selection plan for the Development;
(e) A final management plan for the Development and contact information for
the property manager of the Development and the name and phone number of the on-site
property manager;
(f) Evidence of marketing for vacant units in the Development such as copies
of flyers, list of media ads, list of agencies and organizations receiving information on
availability of units, as applicable; and
(g) ff not previously submitted to the City, City has received from Borrower
evidence of compliance with the Relocation Plan.
Section 4.1
ARTICLE 4
ONGOING OBLIGATIONS
Marketing Plan.
(a) No later than six (6) months prior to the projected date of the completion
of the construction of the Improvements, Borrower shall submit to the City for approval its plan
for marketing the Development to income-eligible households as required pursuant to the
Regulatory Agreement, including info rmation on affirmative marketing efforts to Veterans, and
compliance with fair housing laws (the "Marketing Plan").
(b) Upon receipt of the Marketing Plan, the City shall promptly review the
Marketing Plan and shall approve or disapprove it within thi rty (30) days after submission. If the
Marketing Plan is not approved, Borrower shall submit a revised Marketing Plan within thirty
(30) days following Borrower's receipt of the City's written disapproval and the reasons for the
City's disapproval. If the City does not approve the revised Marketing Plan because Borrower
fails to make specific revisions requested by the City, Borrower shall be in default hereunder.
The foregoing notwithstanding, Borrower will not be found in default under this provision if
Borrower is demonstrating good faith efforts to comply with the City's revisions.
(c) Nothing in this Section shall be deemed to limit the Borrower's ability to
submit the Marketing Plan, or limit the City's obligation to review such plan, prior to the
Construction Closing.
Section 4.2 Managementf>lan.
IO I 012612835757. 7 22
(a) No later than six (6) months prior to the projected date of the completion
of the construction of the Improvements Borrower shall submit to the City for approval a
proposed management plan which shall include but not be limited to written guidelines or
procedures for operation and management of the Development including maintenance and
security processes and staffing levels, and implementation of the tenant selection, income
certification, reporting, and leasing requirements of the Regulatory Agreement (the
"Management Plan").
(b) Upon receipt of the Management Plan, the City shall promptly review the
Management Plan and shall approve or disapprove it within thirty (30) days after submission. If
the Management Plan is not approved, Borrower shall submit a revised Management Plan within
thirty (30) days following Borrower's receipt of the City's written disapproval, and the reasons
for the City's disapproval. If the City does not approve the revised Management Plan because
Borrower fails to make specific revisions requested by the City, Borrower shall be in default
hereunder. The foregoing notwithstanding, Borrower will not be found in default under this
provision if Borrower is demonstrating good faith efforts to comply with the City's revisions.
(c) Nothing in this Section shall be deemed to limit the Borrower's ability to
submit the Management Plan, or limit the City's obligation to review such plan, prior to the
Construction Closing.
Section 4.3 Operation of Development as Affordable Housing.
(a) Promptly following the completion of construction of the Improvements,
Borrower shall continuously operate and maintain the Development as multifamily housing
rented to tenants and at rent levels in conformity with: (i) this Agreement; (ii) the Ground Lease;
(iii) the Regulatory Agreement; and (iv) any other regulatory requirements imposed on Borrower
and the Property including but not limited to the regulatory agreement associated with the Low
lncome Housing Tax Credits provided by TCAC.
(b) Prior to completion of construction of the Improvements Borrower shat I
submit its proposed form of lease agreement fo r the City's review and approval. The term of the
form of lease agreement for the Units shall be for no less than one (l) year, except by mutual
agreement between Borrower and the tenant.
(c) Borrower shal l determine the income eligibility of each tenant household
occupying a Unit pursuant to the income certification procedures set forth in the Regulatory
Agreement.
(d) The maximum household income of a household occupying a Unit, and
the total charges for rent, utilities, and related services to each household occupying a Unit, shall
be maintained as provided in the Regulatory Agreement.
Section 4.4 Maintenance and Damage.
(a) Maintenance. During the course of both construction and operation of the
Development, Borrower shall maintain the Development and the Property in good repair and in a
neat, c lean and orderly condition (subject to ordinary construction conditions). If there arises a
IO 10\26\2835757. 7 23
condition in contravention of this requirement, and if Borrower has not cured such condition
within thirty (30) days after receiving a written notice from the City of such a condition, or if a
period longer than thirty (30) days is reasonably necessary in the City's discretion to correct the
deficiency, then if Borrower has not begun to correct the deficiency within thirty (3 0) days and
has not corrected the deficiency as soon as reasonably possible thereafter, then in addition to any
other rights available to the City, the City shall have the right to perform all acts necessary to
cure such condition, and to establish or enforce a lien or other encumbrance against the Property.
(b) Damage. Subject to the requirements of Senior Lenders [NTD-
Definition?] (if any) and the Ground Lease, and if economically feasible in the City's reasonable
judgment after consultation with Borrower, if any improvement now or in the future on the
Property is damaged or destroyed, then Borrower shall, at its cost and expense, use commercially
reasonable efforts to undertake to repair or restore such improvement consistent with the plans
and specifications approved by the City with such changes as have been approved by the City.
Such work or repair shall be commenced no later than the later of one hundred twenty ( 120)
days, or such longer period approved by the City in writing, after the damage or loss occurs or
thirty (30) days following receipt of the insurance proceeds, and shall be complete within one (I)
year thereafter. Any insurance proceeds collected for such damage or destruction shall be
applied to the cost of such repairs or restoration and, if such insurance proceeds shall be
insufficient for such purpose, then Borrower shall use commercially reasonable efforts to make
up the deficiency. If Borrower does not make repairs, then any insurance proceeds collected for
such damage or destruction shat I be distributed as if such proceeds were Residual Receipts,
subj ect to the rights of the Senior Lenders.
Section 4.5 Operating Budget; Information.
Borrower shall provide the following to the City for its review and approval: (i) by not
later than thirty (30) days prior to commencement of each Development Fiscal Year for the
Term, the estimated annual budget for the upcoming Development Fiscal Year for the operations
of the Development which shall include projected income from all sources, projected expenses,
including operating expenses, debt service, and deposits to and withdrawals from reserves (the
"Annual Operating Budget"); and (ii) within one hundred twenty ( 120) days following the end of
each Development Fiscal Year, a report showing the actual income and expenditures with respect
to the Development for the immediately preceding Development Fiscal Year and the status of all
reserves. The City's review shall be limited to, in its reasonable judgment, whether the
Development is being operated and managed in accordance with the material requirements and
standards of the Loan Documents. The City shat I notify Borrower in writing of any
insufficiencies in the documents within thirty (30) days of receipt of the documents. Borrower
shall have twenty-one (21) calendar days after the receipt of such a notice to correct any
deficiency in the documents specified by the City in such notice, or if a period longer than
twenty-one (2 1) days is reasonably necessary to correct the deficiency, then Borrower shat I begin
to correct the deficiency within twenty-one (21) days and correct the deficiency as soon as
reasonably possible.
Section 4.6 Records.
(a) Borrower shall keep and maintain at the Development, or elsewhere with
the City's written consent, full, complete and appropriate books, record and accounts relating to
IO I 0\26\2835757. 7 24
the Development, including all such books, records and accounts necessary or prudent to
evidence and substantiate in full detail Borrower's compliance with the terms and provisions of
this Agreement including but not limited to Borrower's calculation of Residual Receipts. Books,
records and accounts relating to Borrower's compliance with the terms, provisions, covenants
and conditions of this Agreement shall be kept and maintained in accordance with generally
accepted accounting principles consistently applied, and shall be consistent with requirements of
this Agreement. All such books, records, and accounts shall be open to and available for
inspection and copying by the City, its auditors or other authorized representatives at reasonable
intervals during normal business hours. Borrower shall permit any duly authorized
representative of the City to inspect and copy such records. Copies of al I tax returns and other
reports that Borrower may be required to furnish to any governmental agency shall at all
reasonable times be open for inspection by the City at the place that the books, records and
accounts of Borrower are kept. Such records shall include all invoices, receipts, and other
documents related to expenditures from the City Loan funds and must be kept accurate and
current. Borrower shall maintain complete, accurate, and current records pertaining to the
Development for a period of not less than five (5) years after the creation of such records with
respect to expenditure of the City Loan funds. lf any litigation, claim, negotiation, audit
exception, monitoring, inspection or other action relating to the use of the City Loan is pending
at the end of the record retention period stated herein, then Borrower shat I retain such records
until such action and all related issues are resolved. Such records shall include but not be limited
to:
(I) Records demonstrating compliance with the affordability and
income requirements for tenants set forth in the Regulatory Agreement;
(2) Records documenting compliance with the fair housing, equal
opportunity, and affirmative fair marketing requirements, as applicable;
(3) Records demonstrating compliance with applicable Relocation
Requirements which must be retained for at least five (5) years after the date by which persons
displaced from the Property have received final payments.
(b) The City shall notify Borrower in writing of any records it deems
insufficient. Borrower shall have twenty-one (21) calendar days after the receipt of such a notice
to correct any deficiency in the records specified by the City in such notice, or if a period longer
than twenty-one (21) days is reasonably necessary to correct the deficiency, then Borrower shall
begin to correct the deficiency within twenty-one (21) days and correct the deficiency as soon as
reasonably possible.
Section 4.7 Audits.
(a) Each year, Borrower shall provide the City with a copy of Borrower's
annual audit, which is to include information on all of Borrower's activities and not just those
pertaining to the Development.
(b) In addition, the City may, at any time, upon reasonable notice to
Borrower, audit all of Borrower's books, records, and accounts pertaining to the Development
including but not limited to the Residual Receipts of the Development. Any such audit is to be
IO I 0\26\2835757. 7 25
conducted during normal business hours at the principal place of business of Borrower and
wherever records are kept. Immediately after the completion of an audit, the City shall de liver a
copy of the results of the audit to Borrower.
(c) If it is determined as a result of an audit that there has been a deficiency in
a loan repayment to the City then such deficiency will become immediately due and payable,
with interest at the Default Rate from the date the deficient amount should have been paid. In
addition, if the audit determines that Residual Receipts have been understated for any year by the
greater of: (i) Five Thousand Dollars ($5,000); and (ii) an amount that exceeds five percent (5%)
of the Residual Receipts, then, in addition to paying the deficiency with interest, Borrower shall
pay all of the City's costs and expenses connected with the audit and review of Borrower's
accounts and records in which such error was found.
Section 4.8 Hazardous Materials.
(a) Borrower shall keep and maintain the Property (including but not limited
to, soil and ground water conditions) in compliance with, and shall not cause or permit the
Property to be in violation of, any Hazardous Materials Law. Borrower shall not, and shall not
cause or permit the use, generation, manufacture, storage or disposal of on, under, or about the
Property or transportation to or from the Property of any Hazardous Materials except such of the
foregoing as may be customarily used in construction or operation of projects li ke the
Development or kept and used in and about residential property of this type.
(b) Borrower shall immediately advise the City in writing if at any time it
receives written notice of any Hazardous Materials Claims, and Borrower's discovery of any
occurrence or condition on any real property adj oining or in the vicinity of the Property that
could cause the Property to be subject to California Health and Safety Code Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Property under any
Hazardous Materials Law.
(c) The City has the right to j oin and participate in, as a party if it so elects,
and be represented by coun sel of its own choice in, any legal proceedings or actions initiated in
connection w ith any Hazardous Materials C laims and to have its reasonable attorneys' fees in
connection therewith paid by Borrower.
(d) Borrower shall indemnify and hold harmless the City and its
counci lmembers, commissioners, directors, officers, employees, agents, successors and assigns
from and against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or
liability, directly or indirectly arising out of or attributable to: (i) any actual or alleged past or
present violation of any Hazardous Materials Law; (ii) any Hazardous Materials Claim; (iii) any
actual or alleged past or present use, generation, manufacture, storage, release, threatened
release, discharge, disposal, transportation, or presence of Hazardous Materials on, under, or
about the Property; (iv) any investigation, cleanup, remediation, removal, or restoration work of
site conditions of the Property relating to Hazardous Materials (whether on the Property or any
other property); and (v) the breach of any representation of warranty by or covenant of Borrower
in this Section 4.8, and Section 5.1 (I). Such indemnity shall include, without limitation: (i) all
consequential damages; (ii) the costs of any required or necessary investigation, repair, cleanup
IO I 0\26\2835757. 7 26
or detoxification of the Property and the preparation and implementation of any closure, remedial
or other required plans; and (iii) all reasonable costs and expenses incurred by the City in
connection with clauses (i) and (ii), including but not limited to reasonable attorneys' fees and
consultant fees. This obligation to indemnify will survive termination of this Agreement and
will not be diminished or affected in any respect as a result of any notice, disclosure, knowledge,
if any, to or by the City of Hazardous Materials. Borrower's obligations under this section shall
not extend to any violation of any Hazardous Materials Law or any Hazardous Materials Claim
arising from the fraud, gross negligence or w illful misconduct of the City, or arising from
circumstances and events which occur after Borrower is no longer the holder of the leasehold
interest in the Property.
(e) Without the City's prior written consent, which will not be unreasonably
delayed or withheld, Borrower may not take any remedial action in response to the presence of
any Hazardous Materials on, under or about the Property, nor enter into any settlement
agreement, consent decree, or other compromise in respect to any Hazardous Material Claims,
which remedial action, settlement, consent decree or compromise might, in the City's reasonable
judgment, impair the value of the City's security hereunder; provided, however, that the City's
prior consent is not necessary in the event that the presence of Hazardous Materials on, under, or
about the Property either poses an immediate threat to the health, safety or welfare of any
individual or is of such a nature that an immediate remedial response is necessary and it is not
reasonably possible to obtain the City's consent before taking such action, provided that in such
event Borrower shall notify the City as soon as practicable of any action so taken. The City
agrees not to withhold its consent, where such consent is required hereunder, if: (i) a particular
remedial action is ordered by a court of competent jurisdiction; (i i) Borrower will or may be
subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii)
Borrower establishes to the reasonable satisfaction of the City that there is no reasonable
alternative to such remedial action which would result in less impairment of the City's security
hereunder, or (iv) the action has been agreed to by the City.
(t) Borrower hereby acknowledges and agrees that: (i) this Section is
intended as the City's written request for information (and Borrower's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5; and (ii) each representation and warranty in this Agreement (together with any
indemnity obligation appli cable to a breach of any such representation and warranty) with
respect to the environmental condition of the Property is intended by the Parties to be an
"environmental provision" for purposes of California Code of Civil Procedure Section 736.
(g) fn the event that any portion of the Property is determined to be
"environmentally impaired" (as that term is defined in California Code of Civil Procedure
Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of
Civil Procedure Section 726.5(e)(l )), then, without otherwise limiting or in any way affecting the
City's or the trustee's rights and remedies under the Deed of Trust, the City may elect to exercise
its rights under California Code of Civil Procedure Section 726.5(a) to: (i) waive its lien on such
environmentally impaired or affected portion of the Property; and (ii) exercise, (l) the rights and
remedies of an unsecured creditor, including reduction of its claim against Borrower to
judgment, and (2) any other rights and remedies permitted by law. For purposes of determining
the City's right to proceed as an unsecured creditor under California Code of Civil Procedure
Section 726.5(a), Borrower will be deemed to have willfully permitted or acquiesced in a release
IO I 0\26\2835757. 7 27
or threatened release of Hazardous Materials, within the meaning of California Code of Civil
Procedure Section 726.5( d)( I), if the release or threatened release of Hazardous Materials was
knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion
of the Property and Borrower had actual knowledge or should have reasonably known of the
activity by such lessee, occupant, or user which caused or contributed to the release or threatened
release. All costs and expenses, including (but not limited to) reasonable attorneys' fees,
incurred by the City in connection with any action commenced under this paragraph, incl uding
any action required by California Code of Civil Procedure Section 726.5(b) to determine the
degree to which the Property is environm entally impaired, plus interest thereon at the Default
Rate, until paid, will be added to the indebtedness secured by the Deed of Trust and is due and
payable to the C ity upon its demand made at any time following the conclusion of such action.
Section 4.9 Fees and Taxes.
Borrower shall be solely responsible for payment of all fees, assessments, taxes, charges,
and levies imposed by any public authority or uti lity company with respect to the Property or the
Development to the extent owned by Borrower, and sha ll pay such charges prior to delinquency.
However, Borrower shall not be required to pay and discharge any such charge so long as: (a)
the legality thereof is being contested diligently and in good faith and by appropriate
proceedings; and (b) if requested by the City, Borrower deposits with the City any funds or other
forms of assurance that the City in good faith from time to time determines appropriate to protect
the City from the consequences of the contest being unsuccessful.
Section 4.10 Notice of Litigation.
Borrower shall promptly notify the City in writing of any litigation known to Borrower
affecting Borrower or the Property, and of any claims or disputes that involve a material risk of
litigation (other than routine actions related to tenant evictions).
Section 4.11 Non-Discrimination.
Borrower covenants by and for itself and its successors and assigns that there shall be no
discrimination against or segregation of a person or of a group of persons on account of any
protected classification under any applicable laws, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Development, nor sha ll Borrower or any person claiming
under or through Borrower 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 Development.
Section 4.12 Mandatory Language in All Subsequent Deeds, Leases and Contracts.
All deeds, leases or contracts made or ente red into by Borrower, its successors or assigns,
as to any portion of the Development shall contain therein the fo llowing language:
(a) In Deeds:
"(1) Grantee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be no discrimination
1010\26\2835757.7 28
against or segregation of, any person or group of persons on account of any basis listed in
subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1 , subdivision (m) and paragraph (I) of subdivision (p) of Section 12955
and Section 12955 .2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any
person claiming under or through the grantee, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sub lessees or vendees in the property herein conveyed. The
foregoing covenant shall run with the land.
(2) Notwithstanding paragraph(!), with respect to fam ilial status,
paragraph (I) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall
be construed to affect Sections 51.2, 51.3, 51.4, 5 1.10, 51.11 , and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision ( d) of Section 51 and Section 1360 of the
Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (I). 11
(b) fn Leases:
11(1) Lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of any basis listed in
subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1 , subdivision (m) and paragraph (I) of subdivision (p) of Section 12955
and Section 12955.2 of the Government Code in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee or any person
claiming under or through the lessee, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.
(2) Notwithstanding paragraph ( l ), with respect to fami lial status,
paragraph ( 1) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) sha ll
be construed to affect Sections 51.2, 5 1.3, 51.4, 51. l 0, 51.1 1, and 799.5 of the Civil Code,
relating to housi ng for senior citizens. Subdivis ion ( d) of Section 51 and Section 1360 of the
Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to paragraph (I). 11
(c) In Contracts:
"(I) There shall be no discrimination against or segregation of, any
person or group of persons on account of any basis listed in subdivision (a) and (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of
the Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the property nor shall the transferee or any person claiming under or through the transferee
establish or permit any such practice or practices of discrimination or segregation with reference
10 10\26\2835757.7 29
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or
vendees of the land.
(2) Notwithstanding paragraph (I), with respect to familial status,
paragraph (I) shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in paragraph (I) shall
be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 5 1.1 I, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the
Civil Code and subdivisions (n), ( o ), and (p) of Section 12955 of the Government Code shall
apply to paragraph (I)."
Section 4.13 Insurance Re_g_uirements.
The Borrower shall maintain, throughout the Term, the applicable insurance policies as
set forth in the Ground Lease. In addition to all other requirements set forth in the Ground
Lease, the Borrower shall cause such polic ies to name the Lender as loss payee. The fo llowing
notice is provided in accordance with the provisions of California Civi l Code Section 2955.5:
Under Cali fornia law, no lender shall require a borrower, as a condition of receiving or
maintaining a loan secured by real property, to provide hazard insurance coverage against risks
to the improvements on that real property in an amount exceeding the replacement value of the
improvements on the property.
Section 4.14 Transfer.
(a) Definition. For purposes of this Agreement, "Transfer" shall mean any
sale, assignment, or transfer, whether voluntary or involuntary, of: (i) any rights and/or duties
under this Agreement; and/or (ii) any interest in the Borrower or the Development, including
(but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership
interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by
which possession of the Development is transferred and Borrower retains title. The term
"Transfer" shall exclude the leasing of any single Un it in the Development to an occupant in
compliance with the Regulatory Agreement.
(b) Prohibited Transfers. Other than the Pre-approved Transfers, no Transfer
shall be permitted without the prior written consent of the City, which the City may withhold in
its reasonable discretion. The C ity Loan shall automatically accelerate and be due in full upon
any unauthorized Transfer.
(c) Permitted Transfers. A Transfer shall be permitted only after: (i) the City,
in its reasonable discretion, has delivered to Borrower its prior written approval of such Transfer;
and (ii) the transferee has assumed Borrower's obligations under the Loan Documents by signing
an assignment and assumption agreement, in a form prepared by the City, and such other
reasonable documentation as the City may reasonably require to evidence such transferee's
assumption of Borrower's duties and obligations under the Loan Documents.
(d) Pre-approved T ransfers. Notwithstanding the foregoing, the City hereby
approves the fo llowing:
1010\26\2835757.7 30
(I) Future Transfers of the limited partner interest of Borrower
provided that: (A) such Transfers do not affect the timing and amount of the Investor Limited
Partner capital contributions provided for in, and subject to the terms, conditions, and
adjustments of the Partnership Agreement; and (B) in subsequent Transfers prior to the
investment of all project equity by the Investor Limited Partner, such Transfer is to a Related
Entity Investor Transferee.
(2) Transfer of the Property from the Borrower to: (i) the Managing
General Partner, an entity under the c ·ontrol of the Managing General Partner, or (i i) the General
Partner, an entity under the Control of the General Partner ( or its member), and an assumption of
the C ity Loan by such transferee at the end of the Fifteen Year Compliance Period, or as
otherwise permitted by the Investor Limited Partner, pursuant to an option or right of first refusal
agreement as described in the Partnership Agreement, or related documents; provided that: (A) if
such transferee is the Managing General Partner or an affiliate of the Managing General Partner,
the transferee is exempt from federal income taxation pursuant to Section 50 I ( c )(3) of the Code,
(B) the transferee is under the Control of the Managing General Partner, an entity under the
Control of the Managing General Partner, the General Partner, an entity under the Control of the
General Partner ( or its member), and (C) the transferee expressly assumes the obligations of the
Borrower under the Loan Documents, utilizing a form of assignment and assumption agreement
to be provided by the City, and approved by the transferee.
(3) Transfers of any interest in the Borrower from: (i) the Limited
Partner to the General Partner or an affiliate of the General Partner (or Affirmed), (ii) the
General Partner to any affiliate of the General Partner (or Affirmed), and (ii i) the Managing
General Partner to another corporation that is exempt from federal income taxation pursuant to
Section 50 I ( c )(3) of the Code, and that is reasonably acceptable to the City.
( 4) In the event the Managing General Partner or the General Partner
is removed by a limited partner of Borrower for cause fo llowing default under the Partnership
Agreement, the City hereby approves the Transfer of the general partner interest to: (A) a
corporation exempt from federal income tax pursuant to Section 501(c)(3) of the Code, or a
limited liability company whose member is a corporation exempt from federal income tax under
Secti on 50 I (c)(3) of the Code, selected by the limited partner and approved by the City, which
approval shall not be withheld unreasonably; or (B) the Investor Limited Partner, the Special
Limited Partner, or a Related Entity Investor Transferee, but only for a period not to exceed one
hundred eighty ( 180) days during which time such entity shall diligently seek a replacement
general partner meeting the requirements of subsection (A) above, or otherwise acceptable to the
Investor Limited Partner, the Special Limited Partner, and the City (such approval not to be
unreasonably withheld, delayed, or conditioned).
(5) The grant of the security interests in the Property for Development
Financing.
Section 4.15 Covenants Regarding Development Financing and Partnership Agreement.
1010\26\2835757.7 31
(a) Borrower shall promptly pay the principal and interest when due on any
Development Financing, and shall comply with all the terms and conditions of the County
Subsidy Agreement.
(b) Borrower shall promptly notify the City in writing of the existence of any
default under the County Subsidy Agreement, or any documents evidenci ng Development
Financing, whether or not a default has been declared by the lender, and any defaults under the
Partnership Agreement, and provide the City copies of any notice of default.
(c) Borrower may not materially amend, modify, supplement, cancel or
terminate the Partnership Agreement, the County Subsidy Agreement, or any documents related
to any loan (excluding any partner loans made pursuant to the Partnership Agreement) that is
part of the Development Financing without the prior written consent of the City, except in
connection with Pre-approved Transfers pursuant to Section 4.14( d).
( d) No less than one (I) year prior to the expiration of the term of the County
Subsidy Agreement, Borrower shall deliver to the City, in writing, Borrower's anticipated plan to
secure or otherwise obtain additional funding to replace the funding provided pursuant to the
County Operating Agreement unless Borrower has determined, subject to City's approval, that
additional funding is lio longer necessary for operati on of the Property. Such plan may include
an extension of the then existing term of the County Operating Agreement.
( e) Borrower may not incur any indebtedness of any kind other than
customary trade debts and Development Financing or encumber the Development with any liens
(other than liens for Development Financing approved by the City) without the prior written
consent of the City.
(f) In the event that any provisions of the Partnership Agreement conflict with
the provisions of this Agreement, including, without limitation, the payment provisions of
Section 2.7 above, then the provisions of this Agreement shall control.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 5.1 Ren_resentations and Warranties.
Borrower hereby represents and warrants to the City as follows:
(a) Organization. Borrower is a duly organized, validly existing limited
partnership and is in good standing under the laws of the State of California and has the power
and authority to own its property and carry on its business as now being conducted.
(b) Authority of Borrower. Borrower has fu ll power and authority to execute
and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to
execute and deliver the Loan Documents and all other documents or instruments executed and
delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and
observe the terms and provisions of al I of the above.
IO I 0\26\2835757. 7 32
(c) Authority of Persons Executing Documents. This Agreement and the
Loan Documents and all other documents or instruments executed and delivered, or to be
executed and delivered, pursuant to this Agreement have been executed and delivered by persons
who are duly authorized to execute and deliver the same for and on behalf of Borrower, and all
actions required under Borrower's organizational documents and applicable governing law for
the authorization, execution, delivery and performance of th is Agreement and the Loan
Documents and all other documents or in struments executed and delivered, or to be executed and
delivered, pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. This Agreement and the Loan Documents and
all other documents or instruments whi ch have been executed and delivered pursuant to or in
connection with this Agreement constitute or, if not yet executed or delivered, wi II when so
executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable
against it in accordance with their respective terms.
( e) No Breach of Law or Agreement. To the best of Borrower's knowledge,
neither the execution nor delivery of this Agreement and the Loan Documents or of any other
documents or instruments executed and delivered, or to be executed or delivered, pursuant to this
Agreement, nor the performance of any provision, condition, covenant or other term hereof or
thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment,
decree or order of any court, board, commission or agency whatsoever binding on Borrower, or
any provision of the organizational documents of Borrower, or will conflict with or constitute a
breach of or a default under any agreement to which Borrower is a party, or wil l result in the
creation or imposition of any lien upon any assets or property of Borrower, other than liens
established pursuant hereto.
(f) Compliance with Laws; Consents and Approvals. To the best of
Borrower's knowledge, the construction of the [mprovements will comply with all applicable
laws, ordinances, rules and regulations of federal, state and local governments and agencies and
with all applicable directions, rules and regulations of the fire marshal, health officer, building
inspector and other officers of any such government or agency.
(g) Pending Proceedings. To the best of Borrower's knowledge, Borrower is
not in default under any law or regulation or under any order of any court, board, commission or
agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or the Property, at law or in
equity, before or by any court, board, commission or agency whatsoever which might, if
determined adversely to Borrower, materially affect Borrower's ability to repay the City Loan or
impair the security to be given to the City pursuant hereto.
(h) Title to Land. At the time of recordation of the Deed of Trust, Borrower
w ill have good and marketable leasehold title to the Property, pursuant to the Ground Lease, and
there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of
any character whatsoever other than I iens for current real property taxes a nd assessments not yet
due and payable, those liens securing Development Financing, and liens in favor of the City or
approved in writing by the City.
1010\26\2835757.7 33
(i) Financial Statements. The financial statements of Borrower and other
financial data and information furnished by Borrower to the City fairly and accurately present the
information contained therein. As of the date of this Agreement, there has not been any adverse,
material change in the financial condition of Borrower from that shown by such financial
statements and other data and information.
U) Sufficient Funds. Borrower holds sufficient funds and/or binding
commitments for sufficient funds to complete the construction of the Improvements.
(k) Taxes. To the best of Borrower's knowledge, Borrower and its
subsidiaries have filed a ll federal and other material tax returns and reports required to be fi led,
and have paid all federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their income or the Property otherwise due and payable,
except those which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with generally accepted accounting
principles. There is no proposed tax assessment against Borrower or any of its subsidiaries that
could, if made, be reasonably expected to have a material adverse effect upon the Property,
liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of
Borrower and its partners, taken as a whole, which would be expected to result in a material
impairment of the ability of Borrower to perform under any Loan Document to which it is a
party, or a material adverse effect upon the legality, validity, binding effect or enforceabi lity
against Borrower of any Loan Document.
(I ) Hazardous Materials. To the best of Borrower's knowledge, except as
disclosed in writing by Borrower to the City prior to the Effective Date: (i) no Hazardous
Material has been disposed of, stored on, discharged from, or released to or from, or otherwise
now exists in, on, under, or around, the Property except such of the foregoing as may be
customarily used in construction of projects like the Development or kept and used in and about
residential property of this type, (ii) neither the Property nor Borrower are in violation of any
Hazardous Materials Law; and (iii) neither the Property nor Borrower are subject to any existing,
pending or threatened Hazardous Materials Claims.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events of Default.
Each of the foll owing shall constitute a "Default" by Borrower under this Agreement:
(a) Failure to Make Payment. Failure to make any payment when such
payment is due pursuant to the Loan Documents, and fai lure to cure within ten (I 0) days
following written demand from the City.
(b) Failure to Construct. Subject to Section 7.15 below, fai lure of Borrower
to obtain permits, commence, and prosecute to completion, construction of the Development
within the times set forth in Article 3 above.
IO I 0\26\2835757. 7 34
(c) Breach of Covenants. Failure by Borrower to duly perform, comply with,
or observe any of the conditions, terms, or covenants of any of the Loan Documents ( other than
obligations described in subsections (a) and (b) above), and Borrower fails to cure such default
within thirty (30) days after receipt of written notice thereof from the City to Borrower and to the
Investor Limited Partner and the Special Limited Partner of such failure; provided, however, that
if a longer period or notice requirement is specified under any other section of this Article 6, the
specific provisions shall control. If the Investor Limited Partner or the Special Limited Partner
cures an event of Default within the cure period set forth in this subsecti on, the City will accept
such action as curing the event of Default as if such cure was performed by Borrower. If the
Investor Limited Partner or the Special Limited Partner, if any, is unable to cure an event of
Default because Borrower's general partner is in bankruptcy and/or because the cure requires
removal of the general partner of Borrower and the Investor Limited Partner or the Special
Limited Partner is proceeding diligently to remove the general partner of Borrower in order to
effect a cure of the event of Default, the cure period shall be extended for such reasonable time
as is necessary for the Investor Limited Partner or the Special Limited Partner to effect a cure of
the event of Default, but in no event longer than sixty (60) days after the effective date of such
removal.
(d) Default Under Other Loans. A default is declared under any
Development Financing by the lender of such Development Financing (subject to the expiration
of applicable notice and cure periods).
(e) Insolvency. A court having jurisdiction shall have made or entered any
decree or order (i) adjudging Borrower to be bankrupt or insolvent, (ii) approving as properly
filed a petition seeking reorganization of Borrower or seeking any arrangement for Borrower
under the bankruptcy law or any other applicable debtor's relief law or statute of the United
States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee
of Borrower in bankruptcy or insolvency or for any of their properties, (iv) directing the winding
up or liquidation of Borrower, if any such decree or order described in clauses (i) to (iv),
inclusive, shall have continued unstayed or undischarged for a period of one-hundred twenty
(120) days; or (v) Borrower shall have admitted in writing its inability to pay its debts as they fal l
due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the
nature described in clauses (i) to (iv), inclusive. The occurrence of any of the events of Default
in this paragraph shall act to accelerate automatically, without the need for any action by the
City, the indebtedness evidenced by the Note.
(t) Assignment; Attachment. Borrower shall have assigned its assets for the
benefit of its creditors or suffered a sequestration or attachment of or execution on any
substantial part of its property, un less the property so assigned, sequestered, attached or executed
upon shall have been returned or released within one-hundred twenty (1 20) days after such event
or, if sooner, prior to sale pursuant to such sequestration, attachment, or executio n. The
occurrence of any of the events of default in this paragraph shall act to accelerate automatically,
without the need for any action by the City, the indebtedness evidenced by the Note.
(g) Suspension; Dissolution. Borrower shall have voluntarily suspended its
business or the dissolution of Borrower.
IO I 0\26\2835757. 7 35
(h) Liens on Property and the Development. There shall be filed any claim of
lien (other than liens approved in writing by the City or those being contested in good faith by
Borrower) against the Development, the Property, or any part thereof, or any interest or right
made appurtenant thereto, or the service of any notice to withhold proceeds of the City Loan and
the continued maintenance of said claim of I ien or notice to withhold for a period of twenty (20)
days without discharge or satisfaction thereof or provision therefore (including, without
limitation, the posting of bonds) satisfactory to the City.
(i) Condemnation. The condemnation, seizure, or appropriation of all or a
substantial part of the Property and the Development, except that condemnation by the City shall
cause the City Loan to accelerate but shall not be a Default.
(j) Unauthorized Transfer. Any Transfer other than as permitted by and/or
pre-approved by Section 4.14.
(k) Representation or Warranty Incorrect. Any representation or warranty of
Borrower contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the City in connection with any of the Loan Documents, proves to have been
incorrect in any material and adverse respect when made.
(I) Adverse Financial Condition. A material adverse change in Borrower's
financial condition, or an event or condition materially impairing Borrower's ability to repay the
City Loan occurs.
(m) Applicability to General Partners. The occurrence of any of the events set
forth in subsection (e), subsection (f), or subsection (g) in relation to the General Partner or the
Managing General Partner, provided that the occurrence of the events in subsections (e), (f), or
(g) in relation to the Managing General Partner shall not be a Default so long as actions are
commenced to replace the Managing General Partner in accordance with the Partnership
Agreement, and thereafter promptly completed.
Section 6.2 Remedies.
The occurrence of any Default hereunder following the expiration of all applicable notice
and cure periods will, either at the option of the City or automatically where so specified, relieve
the City of any obligation to make or continue the City Loan and shall give the City the right to
proceed with any and all remedies set forth in this Agreement and the Loan Documents,
including but not limited to the following:
(a) Acceleration of Note. The City shall have the right to cause all
indebtedness of Borrower to the City under this Agreement and the Note, together with any
accrued interest thereon, to become immediately due and payable. Borrower waives all right to
presentment, demand, protest or notice of protest or dishonor. The City may proceed to enforce
payment of the indebtedness and to exercise any or all rights afforded to the City as a creditor
and secured party under the law including the Uniform Commercial Code, including foreclosure
under the Deed of Trust. Borrower shall be liable to pay the City on demand all reasonable
expenses, costs and fees (including, without limitation, reasonable attorney's fees and expenses)
paid or incurred by the City in connection with the collection of the City Loan and the
I 010\26\2835757.7 36
preservation, maintenance, protection, sale, or other disposition of the security given for the City
Loan.
(b) Specific Performance. The City shall have the right to mandamus or other
suit, action or proceeding at law or in equity to require Borrower to perform its obligations and
covenants under the Loan Documents or to enjoin acts or things which may be unlawful or in
violation of the provisions of the Loan Documents.
(c) Right to Cure at Borrower's Expense. The City shall have the right (but
not the obligation) to cure any monetary default by Borrower under a loan other than the C ity
Loan. Borrower agrees to reimburse the C ity for any funds advanced by the City to cure a
monetary default by Borrower upon demand therefor, together with interest thereon from the
date of expenditure until the date of reimbursement at the Default Rate.
Section 6.3 Right of Contest.
Borrower shall have the right to contest in good faith any claim, demand, levy, or
assessment the assertion of which would constitute a Default hereunder. Any such contest shall
be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City
hereunder.
Section 6.4 Remedies Cumulative.
Subject to the non-recourse provisions contained in thi s Agreement, no ri ght, power, or
remedy given to the City by the terms of this Agreement or the Loan Documents is intended to
be exclusive of any other right, power, or remedy; and each and every such right, power, or
remedy shall be cumulative and in addition to every other right, power, or remedy given to the
C ity by the terms of any such instrument, or by any statute or otherwise against Borrower and
any other person. Neither the failure nor any delay on the part of the City to exercise any such
rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by
the City of any such right or remedy preclude any other or further exercise of such right or
remedy, or any other right or remedy.
Section 6.5 Remedies by Other Entities/Individuals Pursuant to California Law.
Pursuant to Health and Safety Code Section 33334.3(t)(7) a default under the Regulatory
Agreement, including the rental of a Unit to a household not eligible under the Regulatory
Agreement, may be enforceable by the City, a residents' association, a resident of another
affordable unit, a former resident of a Unit, a person on an affordable housing waiting list, and
others who are listed in any applicable state law.
Section 6.6 Survival.
Upon termination of this Agreement those provisions of this Agreement that recite that
they survive termination of this Agreement shall remain in effect and be binding upon the Parties
notwithstanding such termination.
1010\26\2835757.7 37
Section 7.1
ARTICLE 7
GENERAL PROVISIONS
RelationshiQ of Parties.
Nothing contained in this Agreement shall be interpreted or understood by any of the
Parties, or by any third persons, as creating the relationship of employer and employee, principa l
and agent, limited or general partnership, or joint venture between the City and Borrower or
Borrower's agents, employees or contractors, and Borrower shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its agents,
or both, perform the services required of it by the terms of this Agreement. Borrower has and
retains the right to exercise full control of employment, direction, compensation, and discharge
of all persons assisting in the performance of services under the Agreement. In regards to the
development of the Development, Borrower shall be solely responsible for all matters relating to
payment of its employees, including compliance with Social Security, withholding and all other
laws and regulations governing such matters, and shall include requirements in each contract that
contractors shall be solely responsible for s imilar matters relating to their employees. Borrower
agrees to be solely responsible for its own acts and those of its agents and employees.
Section 7.2 No Claims.
Nothing contained in this Agreement shall create or justify any claim against the City, by
any person Borrower may have employed or with whom Borrower may have contracted relative
to the purchase of materials, supplies or equipment, or the furni shing or the performance of any
work or services with respect to the development of the Development, and Borrower shall
include similar requirements in any contracts entered into for the development of the
Development.
Section 7.3 Amendments.
Except as otherwise provided in connection with Operating Memoranda executed
pursuant to Section 7.16 below, no alteration or variation of the terms of this Agreement shall be
valid unless made in writing by the Parties and approved by the City Council.
Section 7.4 Entire Understanding of the Parties.
This Agreement, in conjunction with the Loan Documents, constitutes the entire
understanding and agreement of the Parties with respect to the City Loan. This Agreement shall
not be construed as if it had been prepared by one of the Parties, but rather as if all Parties had
prepared it. The Parties to this Agreement have read and reviewed this Agreement and agree that
any rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not apply to the interpretation of this Agreement (including but not limited to Civil Code
Section I 654 as may be amended from time to time).
Section 7.5 Indemnification.
Upon demand by the City, and in addition to any obligations under the Purchase
Agreement, the Ground Lease, the Regulatory Agreement, and applicable land use permits and
IO I 0\2612835757. 7 38
approvals, Borrower shall indemnify, defend (with counsel reasonably satisfactory to the City),
and hold harmless the City and its councilmembers, commissioners, directors, officers,
employees, agents, successors and assigns (each a n "Indemnified Party") from and against any
and all claims, liens, demands, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, and all costs incurred in connection therewith
(including without limitation actual attorneys' fees and costs of experts and consultants) arising
from: (i) Borrower's performance or non-performance of its obligations under this Agreement;
(ii) Borrower's lease of the Property; or (iii) the development, construction, marketing, rental and
operation of the Development or the relocation of any occupants on the Property, except for
claims arising solely from the gross negligence, willful misconduct, illegal acts, or breach of this
Agreement by an Indemnified Party. The provisions of this Section shall survive termination of
this Agreement and the repayment of the City Loan.
Section 7.6 Non-Liability Officials, Employees and Agents.
No member, official, employee or agent of the City shall be personally li able to
Borrower, or any successor in interest, in the event of any defaul t or breach by the City, or for
any amount which may become due to Borrower or its successor or on any obligation under the
terms of this Agreement.
Section 7.7 No Third Party Bendiciaries.
There shall be no third party beneficiaries to this Agreement.
Section 7.8 Action by the City.
(a) Except as may be otherwise specifically provided herein, whenever any
approval, notice, direction, consent, request, extension ohime, waiver of condition, termination,
or other action by the City is required or permitted under this Agreement, such action may be
given, made, or taken by the City Manager without further approval by the City Council, and any
such action shall be in writing. The amount of the City Loan may not be increased without
approval of the City Council.
(b) Any consents or approvals required under this Agreement shall not be
unreasonably withheld or made, except w here it is specifically provided that a sole discretion
standard applies. The C ity Manager is also hereby authorized to approve, on behalf of the City,
requests by Borrower for reasonable extensions of time deadlines set forth in this Agreement.
The City shall not unreasonably delay in reviewing and approving or disapproving any proposal
by Borrower made in connection with this Agreement.
(c) The Borrower acknowledges that the City is entering into this Agreement
in its capacity as a lender (and not in a regulatory capacity), and nothing in this Agreement
(including any approval by the City Manager in accordance with this Agreement) shall limit,
waive, or otherwise impair the authority and discretion of: (i) the City's Community
Development Department, in connection with the review and approval of the proposed
construction plans for the Development (or any change to such plans), or any use, or proposed
use, of the Property, or (ii) any other office or department of the City acting in its capacity as a
IO I 0\26\2835757. 7 39
governmental regulatory authority with jurisdiction over the development, use, or operation of
the Development.
Section 7.9 Waivers.
Any waiver by the City of any obligation or condition in this Agreement must be in
writing. No waiver will be implied from any delay or failure by the City to take action on any
breach or default of Borrower or to pursue any remedy allowed under this Agreement or
applicable law. Any extension ohime granted to Borrower to perform any obligation under this
Agreement shall not operate as a waiver or release from any of its obligations under this
Agreement. Consent by the City to any act or omission by Borrower shall not be construed to be
a consent to any other or subsequent act or omission or to waive the requirement for the City's
written consent to future waivers.
Section 7. IO Notices, Demands and Communication~.
(a) Notices. Formal notices, demands, and communications between the City
and the Borrower shall be in writing and shal I be sufficiently given if and shall not be deemed
given unless dispatched by: (i) registered or certified mail, postage prepaid, return receipt
requested; (ii) delivered by reputable overnight delivery service; or (iii) delivered by facsimile or
by electronic mail, with an additional copy immediately delivered by one of the methods set
forth in clause (i) or (ii), to the principal office of the Parties as fol lows:
City:
with a copy to:
Borrower:
With a copy to:
IO I 0\26\2835757. 7
City of Carlsbad
Community Development Depa11ment
Housing Services
1200 Carl sbad Vi ti age Ori ve
Carlsbad, CA 92008-1949
Attn: Housing Services Manager
Email: Housing@carlsbadca.gov
Fax: 760-720-2037
City of Carlsbad
Office of the City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
Attn: City Attorney
Emai 1: Attorney@carlsbadca.gov
Fax: 760-720-2037
Carlsbad Veteran Housing, L.P.
c/o Affirmed Housing Group, Inc.
13520 Evening Creek Drive North, Suite 160
San Diego, CA 92128
Email: j im@affirmedhousing.com
Fax: 858-679-9076
Katten Muchin Rosenman LLP
40
With a copy to:
With a copy to:
Limited Partner:
And a copy to:
2029 Century Park East, Suite 2600
Los Angeles, CA 90067
Attention: David Cohen, Esq.
Email: David.Cohen@katten.com
Fax: 310-788-4471
Las Palmas Foundation
53 1 Encinitas Boulevard, Suite 206
Encinitas, Californ ia 92024
Attention: Joseph M. Michaels
Emai I: jmichaels@laspalmashousing.com
Fax No. -------
Hobson Bernardino
725 S. Figueroa Street, Suite 3230
Los Angeles, CA 90017
Attention: Jason A. Hobson, Esq.
Emai I: jhobson@hbdlegal.com
Fax No.: 213-235-9191
Raymond James Tax Credit Fund XX L.L.C.
c/o Raymond James Tax Credit Funds, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33 716
Attention: Steven J. Kropf, President
Fax No.: 727-567-8455
Bocarsly Emden Cowan Esmail & Arndt LLP
633 West 5th Street, 64th Floor
Los Angeles, California 90071
Attention: Kyle Arndt, Esq.
Email: karndt@bocarsly.com
Fax No.: 213-239-0410
(b) New Address; Delivery. Such written notices, demands and
communications may be sent in the same manner to such other addresses as the affected party
may from time to time designate by mail as provided in this Section. Receipt shall be deemed to
have occurred on the date shown on a written receipt for delivery or refusal of delivery.
(c) Mandatory Provision. Notwithstanding any provision of this Agreement
to the contrary, in no event shall any submittal by the Borrower to the City be deemed approved
unless the request for approval contains the following provision, in bold print, with the blank
space completed by Borrower with the appropriate number of days provided for the approval of
such item in this Agreement:
NOTICE IS HEREBY GIVEN THAT FAILURE TO APPROVE OR DISAPPROVE THE
REQUESTED MATTER WITffiN _ DAYS SHALL BE DEEMED AN APPROVAL
PURSUANT TO SECTION OF THE LOAN AGREEMENT. TffiS PROVISION
1010\26\2835757.7 41
HAS BEEN INCLUDED WITH THIS SUBMITTAL PURSUANT TO SECTION 7.10 OF
THE LOAN AGREEMENT.
The City shall not be deemed to have approved, or otherwise waived any approval right, of any
item submitted by the Borrower if the notice from the Borrower does not include such provision
as set forth above. In the event of any conflict between this provision and any other provision of
this Agreement, the terms of this provision shall control.
Section 7.11 Applicable Law and Venue.
This Agreement shall be governed by California law. Any action brought claiming a
breach of this Agreement or interpreting this Agreement shall be brought and venued in the
County.
Section 7 .12 Parties Bound.
Except as otherwise I imited herein, the provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties a nd their heirs, executors, administrators, legal
representatives, successors and assigns. This Agreement is intended to bind Borrower and its
successors and assigns in the Property and the Development for the entire Term, and the benefit
hereof shall inure to the benefit of the City and its successors and assigns.
Section 7.13 Severability.
lfany term of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
Section 7.14 Force Majeure.
ln addition to specific provisions of this Agreement, performance by either Party
hereunder shall not be deemed to be in default where delays or defaults are due to war;
insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; further amendments or modifications to the County Order or similar statewide
orders (provided that the impact(s) of such amendment or modification could not have been
reasonably anticipated, and had a material adverse impact on the Party's ability to sati sfy its
obligation hereunder); other epidemics or pandemics that result in the declaration of a public
health emergency by the County or similar statewide orders (provided that the im pact(s) of such
public health emergency could not have been reasonably anticipated, and had a material adverse
im pact on the Party's ability to satisfy its obligation hereunder); quarantine restrictions; freight
embargoes; governmental restrictions or priority; litigation (including suits filed by third parties
concerning or arising out of this Agreement); weather (provided that such claim is documented
by data substantiating that weather conditions were abnormal for the period of time, could not
have been reasonably anticipated, and had a material adverse im pact on the Party's ability to
satisfy its obligation hereunder); inability to secure necessary labor, materials or tools (despite
the Borrower's good fa ith and commercially reasonable efforts to obtain); acts of the other Party;
acts or failure to act of any public or governmental agency or entity (other than the acts or failure
IO I 0\26\2835757. 7 42
to act of the City); or any other causes (other than Borrower's inability to obtain financing for the
Property) beyond the control or without the fault of the Party claiming an extension of time to
perform (collectively, "Force Majeure"). An extension of time for any cause will be deemed
granted if notice by the Party claiming such extension is sent to the other within thirty (30) days
from the date the Party seeking the extension first discovered the cause and such extension of
time is not rejected in writing by the other Party within thirty (30) days after receipt of the notice.
Times of performance under this Agreement may also be extended in writing by the City and the
Borrower. Notwithstanding the foregoing, in no event shall: (a) the City be required to agree to
cumulative delays in excess of one hundred eighty (180) days; or (b) any delay, regardless of
cause, be deemed to waive, limit, or otherwise amend Borrower's obligation to repay the Loan, in
accordance with Loan Documents.
Section 7.15 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of
reference only and shall be disregarded in interpreting any part of the Agreement's provisions.
Section 7. 16 Operating Memor~nda.
The Parties acknowledge that the provisions of this Agreement require a close degree of
cooperation, and that new information and future events may demonstrate that changes are
appropriate with respect to the details of performance of the Parties under thi s Agreement. The
Parties desire, therefore, to retain a certain degree of flexibility with respect to the details of
performance of those items covered in general terms under this Agreement. lf and when, from
time to time during the term of this Agreement, the Parties find that refinements or adjustments
regarding details of performance are necessary or appropriate, they may effectuate such
refinements or adjustments through a memorandum (individually, an "Operating Memorandum",
and collectively, "Operating Memoranda") approved by the Parties which, after execution, shall
be attached to thi s Agreement as addenda and become a part hereof. This Agreement describes
some, but not all, of the circumstances in which the preparation and execution of Operating
Memoranda may be appropriate.
Operating Memoranda may be executed on the City's behalf by its City Manager.
Operating Memoranda shall not require prior notice or hearing, and shall not constitute an
amendment to this Agreement. Any substantive or significant modifications to the terms and
conditions of perfo rmance under this Agreement shall be processed as an amendment of thi s
Agreement in accordance with Section 7.3, and must be approved by the City Council.
Section 7.17 Time is of the Essence.
Time is of the essence in this Agreement and the Loan Documents. All references to
days in this Agreement are calendar days, unless explicitly referenced as a Business Day. The
number of days specified in any provision of this Agreement shall be counted by excluding the
first day and including the last day, unless the last day is a not a Business Day, in which case it
shall be excluded. Any act required by this Agreement to be performed by a certain day is
timely performed if completed before 5:00 p.m. local time on that date. If the day for
performance of any obligation under this Agreement is not a Business Day, then the time for
IO I 0\26\2835757.7 43
performance of that obligation is extended to 5:00 p.m. local time on the first day following that
is a Business Day.
Section 7.18 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts. This Agreement shall become effective when the
Parties have duly executed and delivered signature pages of this Agreement to each other.
Delivery of this Agreement shall be effectuated by electronic communication (including by PDF
sent by electronic mail, facsimile or similar means of electronic communication). Any
signatures (including electronic signatures) delivered by electronic communication shall have the
same legal effect as physically delivered original signatures.
Remainder of Page Left Intentionally Blank
1010\26\2835757.7 44
WHEREFORE, this Agreement has been entered into by the undersigned as of the
Effective Date.
Loan Agreement
Signature Page
1010\26\2835757.7
BORROWER:
CARLSBAD VETERAN HOUSING, L.P., a California
limited partnership
By: AHG Windsor Pointe, LLC, a California limited
liability company, its administrative general partner
CITY:
By: Affirmed Housing Group, Inc., a Delaware
corporation, its manager
By:
Name: ,l tg~ &1lve1woocl
Its: yrc~\ dvV\t
By: Las Palmas Foundation, a California non-
profit public benefit corporation, its
managing general partner
By:
Joseph M. Michaels, President
CITY OF CARLSBAD, a municipal corporation
By:
Geoff Patnoe, Assistant City Manager
APPROVED AS TO FORM AND LEGALITY
By:
C INDIE K. MCMAHON
Assistant City Attorney
45
WHEREFORE, this Agreement has been entered into by the undersigned as of the
Effective Date.
Loan Agreement
Signature Page
1010\26\2835757. 7
BORROWER:
CARLSBAD VETERAN HOUSING, L.P., a California
limited partnership
By: AHG Windsor Pointe, LLC, a California limited
liability company, its administrative general partner
CITY:
By: Affirmed Housing Group, Inc., a Delaware
corporation, its manager
By:
Name: -------------
Its:
By: Las Palmas Foundation, a California non-
profit public benefit corporation, it:
managing general partn~
By: ~/'fels, President
CITY OF CARLSBAD, a municipal corporation
By:
Geoff Patnoe, Assistant City Manager
APPROVED AS TO FORM AND LEGALITY
By:
CINDIE K. MCMAHON
Assistant City Attorney
45
WHEREFORE, this Agreement has been entered into by the undersigned as of the
Effective Date.
Loan Agreement
Signature Page
IO I 012612835757, 7
BORROWER:
CARLSBAD VETERAN HOUSING, L.P., a Califo rnia
limited partnership
By: AHG Windsor Pointe, LLC, a California limited
liability company, its administrative general partner
CITY:
By: Affirmed Housing Group, Inc., a Delaware
corporation, its manager
By:
Name: -------------
Its:
By: Las Palmas Foundation, a California non-
profit public benefit corporation, its
managing general partner
By:
Joseph M. Michaels, President
CITY OF CARLSBAD, a municipal corporation
By: ~~~~
Geoff Patnoe, Assistant City Manager
APPROVED AS TO FORM AND LEGALITY
By: ~.,t/ll ~ ~IE K. MCMAHON
Assistant City Attorney
45
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to herein below is situated in the County of San Diego, State of California, and
is described as fo llows:
PARCEL A:
ALL THAT PORTION OF LOT I OF THE SUBDJV ISION OF TRACTS 114 AND 120 OF
CARLSBAD LAND, fN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1744. FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN OTEGO COUNTY, JANUARY 3, 1923, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT OF THE CENTER LfNE OF OAK A VENUE, DISTANT
THEREON NORTH 55° 27' EAST 469.95 FEET FROM ITS INTERSECTION WITH THE
CENTER LfNE OF FIFTH STREET, THENCE CONTINUING ALONG THE SAlD CENTER
UNE OF OAK A VENUE, NORTH 55° 27' EAST A DISTANCE OF 90 FEET TO THE
NORTHWESTERLY CORNER OF THAT TRACT OF LAND AS CONVEYED BY THE
SOUTH COAST LAND COMPANY TO ROBERT W. AND MARYE. CHAMBERS, BY
DEED DATED APRIL 13 , 1925 AND RECORDED IN BOOK 1095. PAGE20 OF DEEDS;
THENCE ALONG THE SOUTHWESTERLY LINE OF SAlD CHAMBERS LAND, SOUTH
34° 33' EAST A DISTANCE OF 480 FEET TO A POINT ON THE CENTER LINE OF PINE
A VENUE; THENCE ALONG THE SAlD CENTER LINE OF PINE A VENUE SOUTH 55° 27'
WEST, A DISTANCE OF 90 FEET; THENCE NORTH 34° 33' WEST A DISTANCE OF 480
FEET TO A POCNT OF BEGINNING.
EXCEPTING THEREFROM THE SOUTHEASTERLY 240 FEET.
TOGETHER WITH THAT PORTION OF OAK AVENUE CONTIGUOUS AND ADJACENT
NORTHWESTERLY TO THE ABOVE DESCRIBED LAND AS VACATED AND CLOSED
BY A RESOLUTION OF THE CITY OF CARLSBAD RECORDED MARCH 3. 1961 AS
FILE/PAGE NO. 38238 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAlD VACA TED STREET DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE CENTER LINE OF OAK AVENUE, DJSTANT ALONG
SAlD CENTER LINE NORTH 55° 59' 02" EAST, 554.35 FEET FROM THE INTERSECTION
OF SAID CENTER UNE WITH THE CENTER LINE OF HARDfNG STREET (FORMERLY
FIFTH STREET); THENCE (I) SOUTH 34° 00' 58" EAST, 30.00 FEET TO THE
NORTHWESTERLY LfNE OF THE SOUTHERLY 10 FEET OF OAK AVENUE, AS
CLOSED TO PUBLIC USE BY THE CITY OF CARLSBAD BY RESOLUTJON NO. 723,
RECORDED MARCH 3, 1961 AS FlLE/PAGE NO. 38238 OF OFFICIAL RECORDS;
THENCE (2) SOUTH 79° 00' 58" EAST, 7.89 FEET TO THE NORTHEASTERLY LINE OF
IO I 0\26\2835757. 7 A-1
SAID AAPODACA'S LAND THENCE (3) ALONG SAID NORTHEASTERLY LINE,
NORTH 34° 01' 26" WEST, 35.58 FEET TO SAID CENTER LfNE OF OAK A VENUE;
THENCE (4) ALONG LAST SAID CENTER LINE SOUTH 55° 59' 02" WEST, 5.58 FEET TO
THE POINT OF BEGINNING.
PARCEL A-I:
AN EASEMENT FOR MAINTAINING A WATER PIPELINE OVER THE
NORTHEASTERLY 3 FEET OF THE SOUTHEASTERLY 240 FEET OF THAT PORTION
OF LOT 1 OF THE SUBDIVISION OF TRACTS 114 AND 120 OF CARLSBAD LAND, TN
THE COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 1744, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, JANUARY 3, 1923, DESCRIBED AS FOLLOWS:
BEGINNfNG AT A POINT OF THE CENTER LINE OF OAK AVENUE, DISTANT
THEREON NORTH 55° 27' EAST 469.95 FEET FROM ITS fNTERSECTION WITH THE
CENTER UNE OF FIFTH STREET THENCE CONTINUING ALONG THE SAID CENTER
LINE OF OAK AVENUE, NORTH 56° 27' EAST, A DISTANCE OF 90 FEET TO THE
NORTHWESTERLY CORNER OF THAT TRACT OF LAND AS CONVEYED BY THE
SOUTH COAST LAND COMPANY TO ROBERT W. AND MARYE. CHAMBERS, BY
DEED DATED APRIL 13, 1925 AND RECORDED IN BOOK 1095, PAGE 20 OF DEEDS;
THENCE ALONG THE SOUTHWESTERLY LINE OF SAID CHAMBERS LAND, SOUTH
34° 33' EAST, A DISTANCE OF 480 FEET TO A POINT ON THE CENTER LINE OF PINE
A VENUE; THENCE ALONG THE SAID CENTER LINE OF PINE A VENUE SOUTH 55° 27'
WEST, A DISTANCE OF 90 FEET; THENCE NORTH 34° 33' WEST A DISTANCE OF 480
FEET TO A POINT OF BEGINNING.
APN: 204-1 11-02-00
PARCEL B:
THAT PORTION OF LOTS 3 AND 4 IN BLOCK "B" PER MAP OF RESUBDIYISION OF A
PORTlON OF ALLES AVOCADO ACRES, fN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STA TE OF CALIFORNIA, COUNTY OF SAN DIEGO, STA TE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2027, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 17, 1927, AS DESCRIBED fN
GRANT DEED RECORDED OCTOBER 3 1, 2018 AS DOCUMENT NO. 2018-0455093 OF
OFFICIAL RECORDS, TOGETHER WlTH THAT PORTION OF SAID LOT 4 fN BLOCK
"B" OF MAP NO. 2027, AS DESCRIBED IN GRANT DEED RECORDED DECEMBER 22,
2016 AS DOCUMENT NO. 2016-0703741 OF OFFICIAL RECORDS, MORE
PARTlCULARL Y DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT 6 fN SAI D BLOCK "B" OF
MAP NO. 2027; THENCE ALONG THE NORTHEASTERLY 30.00 FOOT HALF-WIDTH
SlDELINE OF HARDING STREET (FORMERLY 5TH STREET) DEDICATED PER SAID
MAP NO. 2027, SOUTH 28°06'37" EAST, 190.4 1 FEET TO TH E NORTHWEST CORNER
IO I 0126\2835757. 7 A-2
OF SAID PORTION OF LOT 4 DESCRIBED fN GRANT DEED DOCUMENT NO. 2016-
0703741, SArD CORNER BEING THE TRUE POINT OF BEGfNNING; THENCE ALONG
THE NORTHWESTERLY LINE OF SAID PORTION OF LOT 4 DESCRIBED IN GRANT
DEED DOCUMENT NO. 20 I 6-070374 1, NORTH 61 °53'4911 EAST, 187.86 FEET TO THE
NORTHEASTERLY LINE OF SAID LOT 4; THENCE ALONG SAID NORTHEASTERLY
LINE OF LOT 4, SOUTH 28°06'5011 EAST, 74.27 FEET TO THE SOUTHWESTERLY
RIGHT-OF-WAY OF INTERSTATE 5 GRANTED TO THE STATE OF CALIFORNIA PER
DEED RECORDED FEBRUARY 7, 1967 AS fNSTRUMENTNO. 16496 OF OFFICIAL
RECORDS; THENCE ALONG SAID SOUTHWESTERLY RIGHT-OF-WAY THE
FOLLOWfNG TWO (2) COURSES; SOUTH 22°41'2711 EAST, 18.28 FEET; THENCE SOUTH
18°34'3811 EAST, 34.91 FEET TO THE SOUTHEASTERLY LINE OF SAID PORTION OF
LOTS 3 AND 4 DESCRIBED IN GRANT DEED DOCUMENT NO.2018-0455093; THENCE
SOUTH 61 °53'4411 WEST, 180.36 FEET ALONG SAID SOUTHEASTERLY LfNE TO
PREVIOUSLY DESCRIBED NORTHEASTERLY 30.00 FOOT HALF-WIDTH SIDELINE OF
HARDING STREET; THENCE NORTH 28°06'3711 WEST, 126.91 FEET ALONG SAID
SIDELINE TO THE TRUE POINT OF BEGINNING.
APN: 204-192-05-00 AND 204-192-06-00
IO I 0\26\2835757. 7 A-3
1010\26\2835757 7
EXHIBIT B
DEVELOPMENT BUDGET
8-1
SOURCES
Name of Lender/Source
City Fundina-Commitment
NPLH
COSR NPLH
Deferred Developer Fee
Seller Contribution
Federal Tax Credit Eouitv
State Tax Credit Eauitv
TOTAL SOURCES
USES ----Land/Acaulsltion Cost
Total New Construction Costs
Hard Cost Subtotal
Construction Contingency
Architecture & Enaineerina
Construction Interest & Fees
Capitalized Reserves
Taxes & Insurance
Cost of Issuance
Construction Services
Escrow & ntte
Leaal Fees
Devel Impact Fees & Permits
Tax Credit Fees
Misc. Soft Costs
Soft Cost subtotal
Soft Cost Contlnaencv
Develocer Fee
TOTAL USES
FINANCING ASSUMPTIONS
Permanent Loan Amount
Permanent Loan Interest Rate
Permanent Loan Term (yr.)
Permanent Loan Amort (yr.)
Net Operating Income
Debt Service
Debt Coverage Ratio
Construction Loan Amount
Construction Loan Interest Rate
Construction Loan Term (mo.)
Loan to Value
Windsor Pointe 20-0916
Windsor Pointe
965-967 OAK AVE. & 3606-3618, 3630 HARDING ST., CARLSBAD, CA
50 UNIT SCATTERED SITE (2 SITES, 2 BUILDINGS)
4% TAX CREDITS+ CITY CONTRIBUTION+ NPLH CAPITAL+ NPLH COSR + CLIHTC
9/16/2020
l_t,j__CQME ...... ..,,.,_
Amount of Funds Per Unit % Type Qty. %AMI Net Income
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
3,793,392
6,523,626
6,523,626
351,181
416,671
8,245,506
4,826,1 t2
30 680 114
262,446
14,678,086
14,678,086
1,174,000
1,424,700
540,000
7,305,626
263,491
150,000
35,000
50,000
215,000
896,000
95,236
803,500
11,778,553
287,029
2,500,000
30 680 114
NIA
NIA
N/A
N/A
($108,082)
$0
N/A
$12.505.995
3.50%
24
40.76%
75,868
130.473
130,473
7,024
8,333
164,910
96,522
613,602
5,249
293,562
293,562
23,480
28,494
10,800
146,113
5,270
3,000
700
1,000
4,300
17,920
1,905
16,070
235,571
5,741
50,000
613,602
12.4%
21.3%
21.3%
1.1%
1.4%
26.9%
15.7%
100.0%
0.9%
47.8%
47.8%
3.8%
4.6%
1.8%
23.8%
0.9%
0.5%
0.1%
0.2%
0.7%
2.9%
0.3%
2.6%
38.4%
0.9%
8.1%
100.0%
Studio-NPLH 12 25% $ 280
Studio 12 60% $ 1,193
1BR-NPLH 9 25% $ 325
1BR 3 50% $ 1,058
1BR 4 60% $ 1,274
2BR-NPLH 3 25% $ 427
2BR 1 50% $ 1,270
2BR 2 60% $ 1,530
3BR 1 30% $ 719
3BR 1 60% $ 1,762
1BR MGR 1 $
2BRMGR 1 $
TOTAL 50
Annual Residential Income
Excess PBV Income
Other Income
Total Gross Annual Income
Vacancv@1 7.0%
TOTAL NET ANNUAL INCOME
EXPENSES -------
Administrative $ 2.500
Manaaement $ 640
Utilities $ 820
Payroll $ 1.970
Total Insurance: $ 340
Maintenance $ 950
Other: ~ency Monitorina Fees $ 80
Other: Partnership Fees $ 100
Subtotal $ 7,400
Resident Services $ 2,600
Reolacement Reserves $ 375
Real Estate Taxes $ 100
Other: $
l'\1'11'111.JML :Ar-:N::St:::S
TAX CREDIT ASSUMPTIONS
9% Tie Breaker Score
Federal Tax Credits Requested
Federal Tax Credit Pricing
State Tax Credits Requested
State Tax Credit Pricing
LP Interest
Applicable Rate
50% Test
N/A
$876,715
$0.95
$6,587.649
$0.74
99.00%
3.07%
56.26%
CONFIDENTIAL
Property of Affimied Housing Group
Total Income
$ 3,360
$ 14,316
$ 2,925
$ 3.174
$ 5,096
$ 1.281
$ 1,270
$ 3,060
$ 719
$ 1,762
$ -
$
$ 36 963
$ 443,556
$
$ 8,400
$ 451,956
$ (36,288
$ 415 668
$ 125,000
$ 32,000
$ 41,000
$ 98,500
$ 17,000
$ 47,500
$ 4,000
$ 5,000
$ 370,000
$ 130,000
$ 18.750
$ 5,000
$ -
~ 523 750
9/16/2020 9:42 AM
Name of Lender/Source
Construction Loan Amount
Tax Credit Equity
NPLH
Costs Deferred Until Perm
Name of Lender/Source
City Fundinq-Commitment
NPLH
COSR NPLH
Contributed Developer Fee
Deferred Developer Fee
Seller Contribution
Windsor Pointe 20-0916
CONSTRUCTION & PERMANENT FINANCING
Windsor Pointe
Construction Financing
Term (months) Interest Rate Amount of Funds
24 3.50% 12,505,995
7,842,971
4,678,918
5,652,231
Total Funds for Construction 30,680,114
Permanent Financing
Term (months) Interest Rate Amount of Funds
660 3.00% 3,793,392
420 0.00% 6,523,626
6,523,626
-
351,181
416,671
Total Permanent Financing 17,608,496
Federal Tax Credit Equity 8,245,506
State Tax Credit Equity 4,826,112
Total Sources of Project Funds 30,680,114
CONFIDENTIAL
Int. Reserve
385,000
Debt Service
Property of Affirmed Housing Group 9/16/2020 9:42 AM
DEVELOPMENT BUDGET Windsor Pointe
TOTAL RESIDENTIAL COMMERCIAL I I 70% PVC for I 30% PVC for PROJECT COST COST . . Contributed New Acquisition T C d't E ity City Funding-NPLH COSR NPLH Deferred Developer COST ax re I qu Commitment Developer Fee Fee construction/
I I I I I Rehabilitation
LAND COST/ACQUISITION
Purchase Plice
Land Closing Costs & Interest Cany
Predev loan cost & interest carry I 262,«6 I 262,446
Total Land Cost or Value 262,446 262,446
Existing Improvements Value
Off-Site Improvements
Total Acquisition Cost
Total Land Cost I Acquisition Cost I 262.«6 I 2621446
REHABILITATION
Abatement/Demolition
Structures
General Requirements
Contractor Overhead
Contractor Profit
Prevaiflng Wages
General Liability Insurance
Contractor contingency
Total Rehabilitation Costs
Total Relocation Expenses
NEW CONSTRUCTION
Site Work
Structures 11.077,058 11,077 058
General Requirements 1,400,000 1 400 000 -I -I I I I -I 1 400,000
Contraclor Overhead -
Contractor Profit 350,000 350,000 --I -I -I -I -I -I 350,000 Demolition & Abatement 100 000 100,000
Prevailing Wages inc above
General liability Insurance/ Bond Prem 233,578 233 578 I -I -I -I I I -I -I -I 233,578
Solar
Other: Sile Security 100 000 100000 I -I -I I -I -I - I -I - I 100 000 Total New Construction Costs 14 678,086 14,678,086 I -I I I I I r I I 14,578,086
DEVELOPMENT BUDGET Windsor Pointe
TOTAL RESIDENTIAL COMMERCIAL 70% PVC for I 30% PVC for PROJECT COST COST Tax Credit City Funding• Contributed I Deferred Developer I NC/Rehab or Acquisition COST Equity Commttment -NPLH COSR NPLH Oevelope,r Fee Fee 30% PVC for
I
ARCHITECTURAL FEES
Design nnci ADA)
Other:
Total Architectural Costs
Total Survey and Engineering
CONST. INTEREST & FEES
Construction Loan Interest 230,000 230 000
Origination Fee 155,000 155 000
Cost of Issuance 150,000 150 000
Taxes 125 000 125,000 -125 000
Insurance 138,491 138491 --138,491
Titte and Recording 50,000 50 000 -50 000 Construction Service Fees {Bank) 35.000 35 000 --35,000 Other: Const Mgmt & Deputy Services
Other
CONFDENTlAL Windsor Pointe 20-0916 Property of Affirmed Housng Group 9116/20209 42 AM
Total Const Interest & Fees I
PERMANENT FINANCING
Loan Origination Fee
Credit Enhancement/Application Fee
Title and Recording
Taxes
Insurance
Other:
Other: Interest Prior to Conversion I
Total Perm. Financing Costs I
LEGAL FEES
lender Legal Pd. by Applicant
Other: Partnership & Transaction I
Total Attorney Costs I
RESERVES
Transi1ion Reserve
Cap. Operating Subsidy Reserve NPLH
•3-Month Operating Reserve
Other. (Specify)
Total Reserve Costs
DEVELOPMENT BUDGET
Total Appraisal Costs
Total Hard Cost Contingency
OTHER PROJECT COSTS
TCAC App/AHocation/Monitoring
Environmental Audit
Local Dev, Impact Fees
Permit Processing Fees
Marketing
Furnishings, Fixtures, Equipment
Market Study
Accounting/Reimbursables
Soft Cost Contingency
Other: PSH/Prop Mgmts Lease Up fees
Other: Nonprofit services fee
Other: Entitlements Consulting
Other:
Total Other' Costs
SUBTOTAL PROJECT COST
DEVELOPER COSTS
Developer Overhead/Profit
Consultant/Processing Agent
Project Adrrinistration
Broker Fees Paid to a Related Party
Construction Oversight by Devek>pe
Other. (Specify
Total Developer Costs
TOTAL PROJECT COSTS
r
Windsor Pointe 20-0916
883,491 I 883,491
155,ooo I 155,000
155 ooo I 155,000
85,ooo I 85 000
130000 I 130 000
215 ooo I 215 000
700,000 700 000
6,523,626 6 523 626
82 000 82 000
7,305 626 7 305,626
Windsor Pointe
TOTAL RESIDENTIAL COMMERCIAL
PROJECT COST COST
COST
15 000 15 000 .
1,174 000 1 174,000 .
95 236 95 236
11,000 11 000
871 000 871 000
25 000 25,000
25,000 25 000 .
225 000 225 000
8,000 8,000
45,000 45 000 .
287,029 287,029
75,000 75 000
27,000 27 000 . . .
. . .
1,694 265 1 694 265
28180 114 28180114
Total Project Total Total
Cost Residential Commercial
2,500 000 2,500 000 .
. .
2 500 000 2 500,000
30 680 114 30 680,114
70% PVC for 30% PVC for
Tax Credit City Funding-Contributed Deferred Developer NC/Rehab or Acquisition
Equity Commitment . NPLH COSR NPLH Developer Fee Fee 30% PVC for
Fed Subsidized
NC/Rehab . . . 15 000
~
1174000 •
. . . . . . . . 871 ooo I . . . 25,ooo I . . . 225 ooo I . . 8,000 I . . . . 45 000 . . . .. . . . . . . . . . . . . . . . .
1 472,029 . . 19467306 .
Subtotal Eligib'8 Basis 19,467,306
. 2 500 000 . . . . . . . . . . . . . . . . . . . . . . . . . . 2 500 000
21 967 306
Bridge Loan Expense Dunng Construction
Total Eligible Basis 21 967 306
CONFIDENTIAL
Property of Affirmed HCMJS.!ng Group 91'16/20209 42 AM
Ineligible Amounts
ELIGIBLE AND QUALIFIED BASIS
Windsor Pointe
Total Eligible Basis:
Subtract all Grant Proceeds Used to Finance Costs in Eligible Basis:
Subtract Non-Qualified Non-Recourse Financing:
Subtract Non-Qualifying Portion of Higher Quality Units:
Subtract Photovoltaic Credit (as applicable):
Subtract Historic Credit (residential portion only):
Total Ineligible Amounts:
Total Eligible Amount Voluntarily Excluded:
Total Basis Reduction:
Total Requested Unadjusted Eligible Basis:
Total Adjusted Threshold Basis Limit
•Qualified Census Tract (QCT) or Difficult to Develop Area (DDA) Adjustment:
Total Adjusted Eligible Basis:
Applicable Fraction:
Qualified Basis
Total Qualified Basis
**Total Credit Reduction:
Total Adjusted Qualified Basis:
*130% boost if your project is located in a ODA or QCT
**to be calculated in "Points System"
CONFIDENTIAL
Windsor Pointe 20-0916 Property of Affirmed Housing Group
70% PVC for
New
Construction/ 30% PVC for
Reha bi I itation AcQuisition
21,967,306 -
-
--
--
--
-
--
--
-
--
21,967,306 -
38,542,552
130% 100%
28,557,498 -
100% 100%
28,557,498 -
28,557,498
-0
28,557,498
9/16/20209:42 AM
BASIS AND CREDITS
Windsor Pointe
New Construction
/Rehabilitation
Adiusted Qualified Basis, After Credit Reduction: 28,557,498
Aoolicable Percentaae -30% PV (4%, varies) 3.07%
Project's Aoolicable Percentage: 3.07%
Subtotal Annual Federal Credit: 876,715
Acauisition
.
3.07%
3.07%
.
Total Combined Annual Federal Credit: 876,715 <--· $2.5M Max
Determination of Minimum Federal Credit Necessary For Feasibility
Total Project Cost
Permanent Financing
Funding Gap
Federal Tax Credit Factor••
Total Credits Necessary for Feasibility
Annual Federal Credit Necessary for Feasibility
Maximum Annual Federal Credits
Equity Raised From Federal Credit
Remaining Funding Gap
Determination of State Credit
Adjusted Qualified Basis
Factor Amount •
Maximum Total State Credit
BASIS AND CREDITS: STATE
NC/Rehab
21,967,306 1
30%
6,590,192
30,680,114
17,608,496
13,071,618
0.94
13,898,584
1,389,858]
876.!.715
8,245,506
4,826,112
Ac.9.uisition -l
13% -l
0.950
99.00%
0.740 Equity Pricing Determination of Minimum State Credit Necessary for Feas,..i_b_ili~ty'------~
State Tax Credit Factor•• ' I 0. 731 99.00% LP Interest
Maximum Total State Credit
State Credit Necessary for Feasibility
Equity Raised from State Credit
6,587,649 FIXED PER STATE CREDIT APP
6,587,649
4,826,112
Remaining Funding Gap o l
CONFIDENTIAL
Windsor Pointe 20-0916 Property of Affirmed Housing Group
Equity Pricing
LP Interest
9/16/20209:42 AM
Borrower: T8D
Project Name: Windsor Pointe
Proforma Type: 50 UNIT SCATTERED SITE (2 SITES, 2
BUILDINGS)
Location: 965-967 OAK AVE.. & 3606-3618, 3630 HARDING ST. CARLSBAD. CA
I I '~ I
PROJECTED CONSTRUCTION LOAN s 12,505,995 Loan CI061~ Date 911/2020 pancy
LOAN-TO-VALUE 40.76% Construction SchechJe (# mo) 19
lnterl!St Rate Construction 3.50% Lease Up Schec:Ue (# mo) 3
Conversion Schedlie (# mo) 25
Loan CI06ing 50%
Complebon
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ~ ~ Qs&22 ~ ~ .lin:Z1 ~ Mitll ~ ~ &l:Z1 ,l.\lill ~ ~ Q!;l:41 !:l2cl1 ~ CONSTRUCTION USES:
Total Land Cost/ AcqUtSrt!On Cost 262,446 262,446 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Dtt'ect Costs 14,678,086 0 0 440,343 440,343 440,343 587,123 587,123 733,904 733,904 733.904 880,685 880,685 1,027 466 880,685 733.904 1,174.247 Constr. Contingency@ 8.0% 1.174.000 0 0 35,220 35,220 35,220 46,960 46.960 58,700 58,700 58,700 70,440 70,440 82.180 70.440 58,700 93,920 Total Rl!tocattoo ~es 372,500 Jn,soo 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Arct111:ect1.nl Costs 855,000 684,000 9,500 9,500 9,500 9,500 9,500 9,500 9,500 9,500 9,500 9,500 9,500 9500 9,500 9,500 9,500 Total Survey and Engineermg 569,700 455,760 6,330 6,330 6,330 6,330 6330 6.330 6,330 6,330 6,330 6,330 6,330 6330 6,330 6,330 6,330 Construction Loan Interest 230,000 0 1.712 1.761 1,858 1,956 2,054 2.152 2,250 2,349 3,658 6,105 9,028 11,959 15.368 18,318 20,808 Origination Fee 155,000 155,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Cost of Issuance 150,000 150,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Taxes 125,000 125,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Insurance 138,491 138,491 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 T!Ue ano Recording 50,000 40,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Cons1ructl0n Service Fees (Bank) 35,000 3,500 1,750 1,750 1.750 1,750 1,750 1.750 1.750 1,750 1,750 1,750 1,750 1,750 1,750 1.750 1.750 Other Interest Prior to Convers10n 155,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Lender legal Pd. ~ Applicant 85,000 85,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Other Partnership & Transaction 130,000 130,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Reserve Costs 7,305,626 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 App,asal 15,000 15,0C() 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 TCAC App'Allocauon/Monlloong 95,236 95,236 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Envwonmental Audit 11,0CO 11,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Local Dev. Impact Fees & Permll Process~ Fet 896,000 896.000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Market Study(Mar1ceting,f'F&E/Misc. 258,000 25,800 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Ac.counmg/Reimblnables 45,000 31,500 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Soft Cost Contingency 287,029 43,054 13554 13,554 13.554 13,554 13,554 13,554 13,554 iJ,554 13,554 13,554 13 554 13.554 13,554 13,554 13.554 Other PSH/Prop Mgmts Lease Up fees 75,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18750 Other Nonpmflt seMces fee 27,000 27,000 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Oeveloper OverheadfProfit -Paid 2,148.819 859,528 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Contnbuted Devek>pef Fee 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Deferred Developer Fee 351,181 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 TOT AL BUDGET 30,680,114 4,EiOS,815 32647 508,458 508,555 508,653 667,271 667 369 825,989 826,087 827,396 988,364 991,287 1.152,739 997,627 642.056 1,338 859 Compared to Development BUdget Tab BALANCED
SOURCES:
City Fundirg. Commitment 3,793,392 0 0 221,334 221285 221236 300 448 300.399 627,912 383,421 0 0 0 0 0 NPLH 6,523626 2 302 908 16423 254 229 25"42TT 254 326 333636 333 685 16'1692 0 0 0 0 0 0 COSRNPLH 6,523626 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Contnbuled Developer Fee 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Deferred Oeveloper Fee 351,181 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Seier Contnbuuon 416,671 416,671 0 0 0 0 0 0 0 0 0 0 0 0 0 Federal Tax Cre<f1t Equity 8,245 506 824 551 0 0 0 0 0 0 0 0 0 0 0 0 0 State Tax Credit EqUlly 4 826,112 482,611 0 0 0 0 0 0 0 0 0 0 0 0 0 Total Monthly Sources 30,680,114 4,026.741 16,423 475,563 475,563 475,563 634,063 634,063 792,604 383,421
Compared 10 Uses on thtS Iab BALANCED
LOAN BALANCE:
Cumulatll/e Monthly Constr. Loan Balance 579 075 595,498 628,393 661.385 694,47",;oofl~ 760 949 794.334 1 237,000 2,064 396 3,052,760 4 044 047 5,196 786 6194,414 7,036 470 8,375 329 'MrQIOl'PonelO-Olillll P~ of Affirmed Howing Group lill'lll/20'209"42AM
BotrO'lllt'er: TBO
Project Name: Windsor Pointe
Protocma Type: 50 UNIT SCATTERED SITE (2 SITES, 2
BUILDINGS)
Location: 965-967 OAK AVE. & 3606-3618 3630 HARi
PROJECTED CONSTRUCTJON LOAN s 12,505,995
LOAN-TO-VALUE 40.76%
Interest Rate Construction 3.50%
~ CONSTRUCTION USES:
Total land Cost I AcqulSibon Cost 262,446
Direct Costs 14678,086
Coostr. Cont;ngency C!I 8.0'l4> 1.174,000
Total Relocation Expenses 372,500
Total Arctutectural Costs 855000
Total Survey and Engmenng 569,700
Construcbon Loan Interest 230,000
Ongmabon Fee 155,000
Cost of Issuance 150000
Taxes 125.000
Insurance 138,491
Title and Recording 50,000
Construction Se,vice Fees (Bank) 35,000
Other Interest Pnor to Conversion 155.000
Lender legal Pd. by Applicant 85.000
Other Partnership & Transaction 130,000
Total Reserve Costs 7,305,626
Appra,sal 15.000
TCAC A.pplABocationfMontonng 95,236
Env1ronmental Audit 11,000
local DtN. Impact Fees & Permd Processng Feti 896,000
Market Study/Market1ng.lFF&E/Misc. 258.000
Accounliro'Re!mbur&able$ 45,000
Soft Cost Contirgency 287,029
Othet PSt-VProp Mgmts lease Up fees 75,000
Other Nonprofit services fee 27,000
Oevek>per Overhead/Profit -Paid 2,148,819
Contributed Oevek>pe, Fee 0
Deferred Oevetopet Ftt 351,181
TOTAL BUDGET 30,680,114
Com.pated to Development Budget Tab BALANCED
SOURCES:
City Funding-Commitment 3,793,392
NPI.H 6,523,626
COSR NPLH 6 523 626
Contributed Developer Fee 0
Deterred Developer Fee 351,181
Seller Contnbuoo 416671
Federal Tax Credit Equity 8 245,506
State Tax Credit Equity 4 826,112
Total Monthty Source11 30,680,114
Compa,ed to Uses on this tab BALANCED
LOAN BALANCE:
Cumulative Monthly Constr. loan Balance
IMndaof Poinl:1 20-0IU&
COOJlruction Final Payment Complet:10n
17 18 19 20
,1""'22 ~ l!i"22 &l!:Zl.
0 0 0 0
1 174,247 880,685 1,174,247 1,174 247
93920 70,440 93,920 93,920
0 0 0 0
9,500 9,500 9,500 0
6.330 6,330 6,330 0
24,767 29.067 32,441 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
1,750 1,750 1,750 0
0 0 0 36435
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
111,100 111,100 0 10,000
0 0 0 0
13,554 13,554 13,554 0
18.750 18,750 18,750 0
0 0 0 0
0 0 0 214 882
0 0 0 0
0 0 0 0
1,453,918 1.141,176 1,350,492 1,529,484
0 0 0 503 425
0 0 0 764 742
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 0
0 0 0 4,122.753
0 0 0 2 413,056
0 0 0 7.803,976
9,829 247 10,970,424 12,320.916 6.046 424
100% Conversion to 8609 Operatons Occupancy Pem,
21 22 23 24 25 26 27 28 29 30 31 ~ .!.l!l:ZZ ,llll,22 ~ = = lil1>c22 ~ .!,"'22 = ~ =
0 0 0 0 0 0 0 0 0 0 0 262446 0 0 0 0 0 0 0 0 0 0 0 14.678,086 0 0 0 0 0 0 0 0 0 0 0 1,174,000 0 0 0 0 0 0 0 0 0 0 0 372,500 0 0 0 0 0 0 0 0 0 0 0 855,000 0 0 0 0 0 0 0 0 0 0 0 569,700 0 0 0 0 0 0 0 0 0 0 0 187,611 0 0 0 0 0 0 0 0 0 0 0 155.000 0 0 0 0 0 0 0 0 0 0 0 150,000 0 0 0 0 0 0 0 0 0 0 0 125,000 0 0 0 0 0 0 0 0 0 0 0 138 491 0 0 0 0 10,000 0 0 0 0 0 0 50,000 0 0 0 0 0 0 0 0 0 0 0 35.000 17,880 17,933 17986 18,039 18,093 0 0 0 0 0 0 126,367 0 0 0 0 0 0 0 0 0 0 0 85.000 0 0 0 0 0 0 0 0 0 0 0 130,000 0 0 0 0 7,305,626 0 0 0 0 0 0 7,305,626 0 0 0 0 0 0 0 0 0 0 0 15,000 0 0 0 0 0 0 0 0 0 0 0 95,236 0 0 0 0 0 0 0 0 0 0 0 11,000 0 0 0 0 0 0 0 0 0 0 0 896,000 0 0 0 0 0 0 0 0 0 0 0 258,000 0 0 0 0 13,500 0 0 0 0 0 0 45,000 0 0 0 0 0 0 0 0 0 0 0 287,029 0 0 0 0 0 0 0 0 0 0 0 75,000 0 0 0 0 0 0 0 0 0 0 0 27,000 0 0 0 0 974 865 99,545 0 0 0 0 0 2148,819 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 351,181 0 0 0 0 351,181 17,880 17,933 17,986 18,039 8322,083 99545 351,181 0 0 0 0 30609,092
0 0 0 0 1.013.932 0 0 0 0 0 0 3 793,392 0 0 0 0 1.844 708 0 0 0 0 0 0 6 523626 0 0 0 0 6523626 0 0 0 0 0 0 6 523,626 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 351,181 0 0 0 0 351,181 0 0 0 0 0 0 0 0 0 0 0 416671 0 0 0 0 3,235,154 63048 0 0 0 0 0 8,245,506 0 0 0 0 1.893542 36902 0 0 0 0 0 4,826,112 0 0 0 0 14,510,963 99951 351.181 0 0 0 0 30,680,114
6064,304 c&.mml 6,100 224 6_118263 (70616) (71.022) (71022) (71.022) (71,022) (71,022) (71022)
PfOJ)t"lyofAffirmldHoumgG-oup 9'1&'2020942AM
Bofr~r: TBO
Project Name: Wn:tsor Pointe
Proforma Type: 50 UNIT SCATTERED SITE (2 SITES, 2
BUILDINGS)
Location: 965-967 OAK AVE. & 360&-3618, 3630 HAR{
PROJECTED CONSTRUCTION LOAN
LOAN-TO-VALUE
Interest Rate Construct10n
CONSTRUCTtoN USES:
Total Land Cost' AcqulSlbon Cost
Direct Costs
Con<tr. Cont,,_cy 0
Total Relocaoon Expenses
Total Arc:hrtectixal Costs
Total Survey and El"IQll"leet'll"O
ConstrUCbOn Loan lnte-rest
Ofignat10nFee
Cost or Issuance
Taxes
lnsutance
Title ano Recording
Construct10n Service Fees {Bank)
Other Interest Pnor to Convers10n
Lendef Legal Pd. by Applicant
Other Pannership & Transact,on
Total Reserve Costs
Appraisal
TCAC App/AllocabonlMonitonng
Environmental Audit
8.0%
Local Dev. Impact Fees & Permit Processing F~
MarkN Study/Marketing/FF&E/MISC.
Accoootll"O'Reimbursat:lles
Son: Cost Connngency
Other PSI-VProp Mgmts Lease Up fees
Other Nonproflt services lee
Developer Overhead/Profit ~ Pait
Corutlbuted Oeveiopr, Fee
~fffled Devebper Fee
TOTAL BUDGET
Compared to Development Budge! Tab
SOURCES:
City Funding-Comrnitment
NPLH
COSR NPLH
Contributed Developer Fee
Deferred Developer Fee
Seier Contribution
Federal Tax Credit Equty
State Tax Credi Equ,ty
Total Monthly Sources
Compared to Uses on lhts tab
LOAN BALANCE:
Cumutatwe Monthly Constr. Loan Balance
1Mndso1Poinl1 20-0it&
12,505,995
40.76'.4
3.50%
~
262,446
14 676,086
1.174000
372.500
855.000
569,700
230 000
155000
150,000
125.000
136491
50000
35,000
155,000
85000
130,000
7,305,626
15000
95,236
11,000
896,000
258000
45,000
267,029
75000
27.000
2,148819
0
351.181
30,680,11•
BALANCED
3,793,392
6.523,626
6 523,626
0
351,181
416,671
6,245 506
•826.112
30,680,11•
BALANCED
'""" '""" '""" '""" '""" '""" 82% 42389
'""" '""" '""" '""" """' '""" 82% 28,633
'""" '""" '""" '""" '""" '""" '""" '""" '""" '""" '""" '""" '""" NA
'""" 71,022
'""" '""" '""" NA
'""" '""" '""" '""" '"""
CONFIDENTIAL ~fy ol Al'llm.i HoUWlg ~ 9f1IS/2020942AM
(c) (d)
PROJECT INCOME INFORMATION
Windsor Pointe
(e) (f) (a)
#of (b) Proposed Total Monthly Monthly Monthly Rent
Bedrooms # of Units Monthly Rent Rents Utility Plus Utilities
Less Utilities (bxc) Allow. (c + e)
Studio-NPLH 12 $ 280 $ 3,360 $ 20 $ 300
Studio 12 $ 1,193 $ 14,316 $ 20 $ 1,213
1BR-NPLH 9 $ 325 $ 2,925 $ 25 $ 350
1BR 3 $ 1,058 $ 3,174 $ 25 $ 1,083
1BR 4 $ 1,274 $ 5,096 $ 25 $ 1,299
2BR-NPLH 3 $ 427 $ 1,281 $ 30 $ 457
2BR 1 $ 1,270 $ 1,270 $ 30 $ 1,300
2BR 2 $ 1,530 $ 3,060 $ 30 $ 1,560
3BR 1 $ 719 $ 719 $ 40 $ 759
3BR 1 $ 1,762 $ 1,762 $ 40 $ 1,802
18R MGR 1 $ -$ -$ . $ -
2BRMGR 1 $ -$ -$ -$
Affordable Units 48 Total Rent $ 36,963
Aggregate Monthly Rents for All Units: $ 36,963 I Avg Affordability
Aggregate Annual Rents for All Units: $ 443,556
Total Affordable Plus Manager Units: I 50 I
Annual Income from Laundry Facilities $ 2,400 4.00 per unit per month
Annual Income from Vending Machines
Annual Interest Income
Other Annual Income (Specify) 6,000
Total Miscellaneous Income: $ 8,400
Total Annual Potential Gross Income: Is 451,9561
Total Gross Annual Income Is 451,9561
Utility Allowances
Studio 1 BR 2 BR 3 BR
Space Heating: - --
Water Heating: ----
Cooking: . -. -
Lighting: ----
Electricity: --
Water:• --. -
AC -. -
City's Fee --. -
Total: 20 25 30 40
•owner paid utilities
CONFIDENTIAL
Windsor Pointe 20-0916 Property of Affirmed Housing Group
(g) PBV
Add Mo. Total ¾of Area PBVs Rent Add. Mo. Mediam Rents Above Rents Income TCAC
25% $ $ . $
60% $ $ . $
25% s . $ . $
50% $ . $ . $
60% $ $ . $
25% $ -$ -$
50% $ -$ -$
60% $ $ $
30% $ -$ -$
60% $ -$ -$
MKT $ -$ -$
MKT $ -$ -$
Total Tranche B: $
I 41%
Excess PBV Income I s -I
4BR
-
9/16/20209:42 AM
Administrative
Management
Utilities
Payroll
/ Payroll Taxes
Maintenance
Other Expenses
Total Expenses
ANNUAL RESIDENTIAL OPERATING EXPENSES -NPLH UNITS
Windsor Pointe
Advertisina: 2,000
Leaal: 4,000
Accountina/Audit: 4,000
Security: 65,000
General Office Costs: 3,000
Total Administrative: 78,000
Total Management Fee:I 16,000 1
Fuel: -
Gas: 3,000
Electricity: 5,000
Water/Sewer: 12,500
Total Utilities: 20,500
On-site Manaaer(s): 25,000
Maintenance Personnel: 20,000
Other: Payroll Burden/Taxes 10,000
Total Payroll/Payroll Taxes: 55,000
Total Insurance: 8,500
Paintina: 5,000
Repairs: 5,000
Trash Removal: 4,000
Exterminatina: 2,500
Grounds: 5,000
Other: Elevator 2,000
Other: Fire Monitorina Svcs 2,250
Total Maintenance: 25,750
Other: Partnershio Fees 2,500
Other: County Monitoring Fees 4,000
Other: -
Other: -
Other: -
Total Other: 6,500
Total Annual Residential Ooeratinq Exoenses:
Total Number of Units in the Project:
Total Annual Or:ieratina Exoenses Per Unit:
Total 3-Month Ooeratinq Reserve:
Total Annual Internet Exoense (site amenity election):
Per Unit
80
160
160
2,600
120
3,120
640]
120
200
500
820
1,000
800
400
2,200
340
200
200
160
100
200
80
90
!i_030
·100
160
260
210,250
25
8,410
82,000
-
Total Annual Service Amenities Budqet (from project expenses): 102,000
Total Annual Reserve for Replacement: 12,500
Total Annual Real Estate Taxes: 2,500
Other:
TOTAL: 327,250
Commercial Income
Total Annual Commercial/Non Residential Revenue: -
Total Annual Commercial/Non Residential Expenses: -
Total Annual Commercial/Non Residential Debt Service: -
Total Annual Commercial/Non Residential Net Income: -
CONFIDENTIAL
Windsor Pointe 20-0916 Property of Affirmed Housing Group
5,400 min per unit
4,080 per unit
500 per NPLH unit
250 per other unit
6,545 per unit
545 per month
9/16/2020 9:42 AM
30-YEAR CASH FLOW PROJECTION -NPLH UNITS
Windsor Pointe
'""""°" Year, Yea,2 Yea13 Year 4 VearS Ve&r6 Year7 Years Yea,9 Year 10 Year 11 Year 12 Vear 13 Yuir 14 Vear 15 Year16 Year 17 Year 18 Facto, = = = = = = = = = = = ~ = = = = mi = Rental Income 2.0% 90,792 92,608 94460 96,349 98,276 100,242 102.247 104,291 106.3TT 108,505 110,67S 112,888 115 146 117,449 119,798 122.194 124,638 127,131 PBV INCOME IF APPUCABLE 2.0% 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 TOT Al GROSS POTENllAL REVENUE 90,792 92.608 94,460 96,349 98,276 100242 102.247 104,291 100.Jn 108,505 110,67S 112,888 115 146 117,449 119,798 122,194 124,638 127,131
Vacancy@ 5.0% 4,S40 4,630 4n3 4,817 4,914 S,012 5112 5,215 5,319 5,425 5,534 5.644 5.757 s,an 5,990 6,110 6,232 6,357 Other tncorne 2.0% 4.200 4,284 4,370 4,457 4,546 4637 4,730 -4,824 4,921 5,019 5,120 5,222 5,327 5,433 5,542 5,653 5,766 5,881
TOTAL NET RENTAL INCOME 90,4S2 9~261 9-41107 9~939 971909 991867 101,M,C 10~901 10!t979 108,099 1101261 11~"66 1141716 1171010 119350 121-737 124,172 1261655
Advetb51ng· 3.0'4 2.000 2,060 2.122 2,185 2,251 2,319 2.388 2.460 2.534 2,610 2,688 2.768 2.852 2,937 3,025 3,116 3209 3306 L•gal 3.0'4 4,000 4.120 4,244 4 371 4,502 4,637 4,TT6 4 919 5,067 5,219 5,376 5537 5,703 5,874 6,050 6.232 6.419 6.611 AccounbnglAvdit 3.0% 4,000 4,120 4,244 4,371 4,502 4,637 •.ne 4,919 ~067 5,219 5,376 5,537 S.703 5,874 6,050 6,232 6419 6,611 S.CU"1y 3.0'4 65,000 68,050 68,959 71,027 73,158 75,353 77,613 79,942 82.340 84,810 87,355 89,975 92.674 95,455 98,318 101,268 104306 107,435 General Office CO&ts 3.0'4 3,000 3,090 3,183 3,273 3.Jn 3,478 3582 3600 3,600 3,914 4,032 4,153 4,2n •.406 4,536 4.674 4814 4 959 Total Management Fee ,..,. 16,000 16,400 16,810 17230 17,661 18,103 18,555 19,019 19,494 19,982 20,481 20,993 21,518 22,056 22.608 23.173 23,752 24346 Gas. 3.0'4 3,000 3,090 3,183 3.278 3,ln 3,478 3,582 3600 3,600 3,914 4,032 4153 4,m 4,406 4.536 4,674 4 814 4959 -3.0'I< 5,000 5.150 5,305 5,464 5,628 5,796 5,970 6,149 6,33-t 6,524 6,720 6,921 7.129 7,343 7,563 7,790 8024 8,264 Wate1/Sewer 3.0'I< 12.500 12.875 13,261 13,659 14,069 14,491 14,926 15,373 15,835 16,310 16,799 17,303 17,822 18,357 18,907 19,475 20,059 20661 On-&teManager'(s) 3.0'I< 25,000 25,750 26,523 27,318 28,138 28,982 29851 30,747 31,669 32,619 33,598 34006 35,644 36,713 37,815 38,949 40,118 41,321 M•ntenance Per$00ne' 3.0'I< 20,000 20,600 21.218 21,855 22,510 23,185 23.881 24,597 25,335 26,095 26,878 27,685 28.515 29,371 30,252 31,159 32.094 33,057 Other Payrol Burderv'Taxes 3.0'4 10,000 10,300 10,609 10,927 11,255 11,593 11.941 12.299 12,668 13,048 13,439 13 842 14,258 14,685 15,126 15,580 16,047 16,528 Total lnsutance 3.0'4 6,500 8,755 9,018 9 288 9,567 9,854 10149 10,454 10,768 11,091 11,423 11,766 12,119 12,483 12.857 13,243 13,640 14049 Patobng 3.0'4 5,000 5,150 5,305 5,464 5,628 5,796 5970 6,149 6,334 6,524 6,720 6,921 7,129 7,343 7,563 7,700 8024 6,264 Repans 3.0'4 5.000 5150 5,305 5,464 5,628 5,796 5970 6,149 6,33-4 6,524 6,720 6921 7,129 7,343 7,563 7,790 8024 8,264 Trash Removal 3.0'4 4,000 4.120 4.244 4,371 4,502 4,637 4,776 4,919 5,067 S,219 5,376 5,537 5,703 5,874 6,050 6,232 6419 6,611 &ietminatino 3.0% 2.500 2.575 2.652 2,732 2.814 2.696 2.985 3,075 3,167 3,252 3,360 3,461 3,564 3,671 3,781 3,895 4,012 4,132 Qounc:Js. 3.0% 5,000 5150 5,305 5,464 5,628 5,796 5970 6,149 6,334 6,524 6,720 6,921 7,129 7,343 7,563 7,790 6024 6,264 Other Elevatof 3.0% 2,000 2.060 2,122 2,185 2,251 2,319 2.3'8 2,460 2.534 2,610 2,686 2,768 2.852 2,937 3,025 3,116 3,209 3300 Other Fire Morvtonng Svcs 3.0'4 2 250 2,318 2,387 2,459 2,532 2.608 2,687 2,767 2.850 2.936 3,024 3,115 3208 3,304 3,403 3.505 3611 3,719 Othet' Partnership Fees 3.0% 2,500 2.575 2,652 2,732 2.814 2.896 2.985 3,075 3,167 3,202 3,360 3,461 3,564 3,671 3,781 3,895 4012 4132 Other County MonAonng Fees 1.0% 4,000 4040 4,080 4,121 4,162 4,204 4246 4,289 4,331 4,375 4,418 4,463 4,507 4,552 4,598 4,644 4600 4 737 SeMCe Amerriles Budget 3.0% 102,000 105,060 108,212 111,458 114,802 118,246 121,793 125447 129,211 133,087 137,079 141,192 145,428 149,790 154,284 158,913 163,680 168500 Reill Es.late Taxes 2.0'4 2.500 2.550 2,601 2,653 2,706 2.760 2,815 2,872 2.929 2,088 3,047 3,108 3.171 3,234 3299 3,365 3432 3,501 Replacement Reserve 0.0'4 12500 12500 12500 1~500 12500 1i soo 12500 12,500 ,isoo 12500 12500 12500 12500 12500 12,500 12500 12500 12500
TOT Al EXPENSES 3271250 3361508 34Sl039 35~854 365,959 376,365 3871078 398,110 -'M,469 421,164 433,207 44~507 4581375 4711522 485,059 498,997 513,350 528,128
Cash Row Prior to Debt Service (NOi) [~7Ml p44,2411 [2511'"1 p 59N~ pu ios11 !21614111 pas.21•1 l2M.20el [303,4191 '313,06!} p22.wa1 pll11411 IKl,6591 13s...s121 j365,7091 p n.2601 pa91n1 [40114731
DEBT SERVICE -City Funding-Commitment
FOfl:ECASTEO CASH AVJIJLABLE 123617a&J [24412481 125119331 125918&~ 126810511 p1s49al 12115121•1 '29412081 j30314S91 P131os~ j3221946j 13331411 IKlM91 p.s.c.5121 ps~7091 pn1260I 1389,1781 140114731
Percent of Gross R&Yenue 8" Max -260.81% -263.74% •266.71% ·269,71% •V2,75% •275.83% -278.95% -282,10% ·285,30'% -288.53% •291.809.4 -295.11% ·298.45% -301.84% -305.27% -308.74% -312.25% ·315.80%
Cash Available IOf OlstJibuHon (236,795) (244,246) (251,933) (259,865) (268,(151) (27S,493) (2:llS.214) (294,208) (303,489) (313,065) (322,9461 (333,141) (343,S59) (354,512) (365,709) (3n .2601 {389,178) (401,473)
Percentage Draw Based on Cash Availa~ 3,6% 3.7" 3.11'11 4.0% 4.1% 4.2" .... 4.5% '·"' ,_.,. 5.1)% 5,1% 5.3% 5.4% 5.6"' 5.8% 6.0'4 6.2"
NPLH Cash Available-fot Feu 89,3&4 81,935 7',249 66,31S 58,130 49,683 40,967 31,973 22.692 13,116 3,235
Asset Management Fee 3.0% 2.500 2,575 2652 2.732 2,814 2,698 2.985 3,075 3,167 3,262 3,235 Partnership Management Fee 3.0'4 10,000 10300 10,609 10,927 11,255 11,593 11,941 12.299 12,688 9,854
NPLH Cash Used fOf FttS 1~500 59,835 13,261 13,659 14,069 14,491 14,926 15,373 15,835 13,11S 3,235
CHh Available ftX COSR Draw Reduction (NOfW>IPLJ-1 Units) 117.222 117,e53 118.031 11&,355 118,621 118,825 11&,9" 115,34.5 105,4n 101,&M 100,994 100,226 99,356 ta,379 97,291 ......
Cap. ()pefating Subsidy Rieserve NPLH S S,523,S26 (249,298) (30-4,081) (147,972) (155,871) (164,0MI (172.63.A) (1&1,519) (190,757) (200,358) (210,337) (220,705) (231,476) 1242,665) (254,265) (266,352) (27&,&81) (291,887) {305,388) -0.000%
balance 6,27',328 5,970,247 5.,822.276 S,&66,404 S.502,316 S,329,632 5,148,163 4,957,406 4,7S7,0•7 4_54&,711 4,326.()()g 4,09.C,SJO 3,851,8SS 3,597,sao 3,"1 ,227 3,052.347 2,760,459 2,455,072
W,ndtof Point• 20-09115 CONFIDENTIAL
Propetty ot Afflrme<I HouslnQ Group 9'16l'20209 '42 AM
30-YEAR CASH FLOW PROJECTION· NPLH UNITS
VVtnd5or Pon,te
Inflation Vear 19 Vear 20 Vear21 Vear 22 Vear 23 Vea,24 VeJr 25 Vear 26 Vear 27 Vear28 Year29 Year 30
FadO< = = = = = WA = WA ~ ~ = =
Rental Income 2.0% 129,673 132,267 134,912 137,610 140,363 143,170 146,033 148,QS.4 151,933 1549n 158,071 161232
PBV INCOME IF APPLICABLE 2.0'I<, 0 0 0 0 0 0 0 0 0 0 0 0
TOTAL GROSS POTENTIAL REVENUE 129,673 132,267 134912 137,610 140,363 143.170 146.033 148,954 151,933 154.en 158,071 161.232
Vacancy@ ..,,.,,. 6484 6,613 6,746 6,881 7,018 7,158 7,31)2 7,448 7,S97 7,749 7,904 8,062
Other Income 2.0'I<, 5,999 6,119 6,241 6,366 6,493 6,623 8,755 6,891 7,028 7,169 7,312 7,459
TOTAL NET RENTAL INCOME 12911S8 1311n2 134."'8 1371®6 1391333 1~&34 1451487 1'31397 151,3&5 154,392 15714.&0 160,£29
Advertsmg 3.0'I<, 3,405 3,507 3,612 3.721 3,832 3,9'7 4,066 4,188 4,313 4,443 4,576 4 713
legal. 3.0'I<, 6810 7,014 7224 7 441 7,664 7894 8,131 8,375 86'6 8,885 9,152 9426
Accounting Audit 3.0% 6.810 7,014 7,224 7,4'1 7,664 7,894 8,131 8,375 8,826 8,885 9,152 9,426
Se<urtty 3.0% 110658 113 978 117397 120919 124,547 128,283 132,132 1315,0Ele 140178 144,384 148,715 153,1TT
Generat Office Costs 3.0% 5,107 5.281 5,418 5,581 5,748 5,921 6,098 &,281 6,470 6,664 6,884 7,070
Total Management Fee. 2.5% 24,955 25,578 26218 26,873 27,545 28,234 28.940 29,063 30,405 31,165 31,944 32,743
G ... 3.0% 5107 5,261 5418 5,581 5,7◄8 5,921 6,098 6.281 6,470 6,884 6,864 7.070 Eleotrioty 3.0% 8,512 8768 9,031 9,301 9,581 9666 10,164 10,469 10,783 11,106 11,440 11,783
Water/Sev,ef 3.0% 21,280 21,919 22.576 23,254 23,951 24,670 25,410 26,1n 26,957 27,766 28,599 29,457 ~e Menage~•) 3.0% 42,561 43636 45,153 46507 47,903 49,340 50,820 52,344 53,915 55,532 57,198 58,914
Mamtenance Personnef 3.0% 34,049 35070 36,122 37,206 36,322 394n 40.656 41,876 43,132 44.426 45,759 47,131
Other· Payrol 8urdervl'axes 3.0% 17,024 17,535 18,061 18603 19,161 19,736 20,328 20,938 21,566 22.213 22,879 23,566 Total Insurance 3.0% 14,471 14,905 15,352 15.813 16.287 16,TT5 17,279 17,797 18331 18,881 19,447 20031
Painting 3.0% 8,512 8768 9,031 9,301 9,581 9,666 10164 10,469 10.783 11,106 11,440 11,783
Repa,1:r1, 3.0% 8512 8,768 9,031 9,301 9,581 9,666 10,1&4 10,469 10,783 11,106 11,440 11,783
r,ash Removal 3.0% 6,810 7,014 7,224 7,,441 7,664 7,894 8,131 8,375 8,826 8685 9,152 9426
Brternwlabng: 3.0% 4,256 • 384 4,515 4,651 4,790 4,934 5.082 5.234 5,391 5,553 5,720 5891 Grounds 3.0% 8.512 8.768 9,031 9,301 9.581 9,666 10164 10,469 10,783 11,106 11,440 11.783 Other. EJevatOf 3.0% 3,405 3,507 3,e12 3,721 3,832 3,947 4,066 4,188 4313 4,443 4,S76 4713
Other· Fire Monrtoong SVcs 3.0% 3,830 3,945 4,064 4,186 4,311 4 441 4,574 4,711 4,852 4,998 5,148 5302 Other: Partnership Fees 3.0% 4256 4.384 4515 4,651 4,790 4934 5.082 5,234 5,391 5553 5,720 58"1
CXher· County MoMonng Fees 1.0% 4,785 4832 4,881 4,930 4,979 5,029 5.079 5,130 5181 5,233 5,285 5338 SeMCe AmeMes Budget 3.0% 173,648 178,858 184,223 189,750 195,443 201,306 207,345 213,565 21s,sn 226,571 233,369 240370
Real Estate Taxei 2.0% 3..571 3,642 3,715 3,789 3,665 3,942 4,021 4.102 4,184 4,267 4,353 4,440
Replacemer« Resef"r'e 0.0% 12.500 12500 12500 12.500 12500 12500 12500 12,500 12.500 12.500 12500 12.500
TOT AL EXPENSES 5,0t34Ei 559,015 575.150 5911763 SOB,870 &26,485 6«1624 663,301 &8~533 702.337 722s729 743,726
Cash Flow Prliof to Debt Servlee (NOi) 1414,158i 1427,243) 1440,7'21 f45',Y ?J I"'·~ 14113.1511 14tt,13?J 1514,9041 j531,1611 I547,14~ 1515,2491 (S&l.D97)
DEST SERVJCE • City Funding-Comrrntmeoe 0 0 0 0
0
FORECASTED CASH AV ML.ABLE 1414,1158! 142712'31 14'0i742l I4s.c6611 14&910331 !4838511 , .. 99 1371 151!!9041 !53111681 !54794~ !565,249j (MJ.097)
Perce11: of Gross ReYenue 8%Max ·319.39% •323.02% ·32tS.69% -330.40% .J34.16% .J37.96% ~1.80% •345.68% ·349.61% --353.58% -357.59% ·361,65%
Cash Avail.abae tor Distriblltlon (414,158) (427,243) (4'0,742) (454,&87) (4&9,033) (483,351) (499,137) (514.,904) (531,1M) (5'7,945) (565,249) (583,097)
Percentage Draw Baud on Cash Available-6.3% 6.5% 6.8% 7.0% 7.2% 7.4% 7.7% 7.9% 8.1% 8.4% 8.7% 8.9%
NPUI Cash Availabte tor Fees
A&&et Maoagement Fee 3.0%
Partnership Management Fee 3.0%
NPLH Cash Used for Fees
Cash Available for COSR Draw Reduction (Non-NPLH Units) 94,759 93,304 91,711 19,992 SS,123 a&,103 33,925 81,585 79,074 7&,385 73,511 70,445
Cap. Operating Subskty Reserw NPLH S &,523,626 (319,399) (333,938) (349,024) (364,675) (360,910) (397,748) (41$.211) (433,320) (452,095) (471,560) (491,737) (512,652) eanw,g 0.000%
balonc, 2,135,873 1,801,734 1,452,710 1,088,035 707,125 309,37& (105.,835) (539,155) (K1,249) (1,462,809) 11,95,4.547) (2,467,198)
IMndaof PcWe 20-081& CONFIDENTIAL
Property of AffTI'ned Houull Group 9ill5f.2020lil-◄2AM
ANNUAL RESIDENTIAL OPERATING EXPENSES -NON-NPLH UNITS
Windsor Pointe
Administrative Advertising: 2,000
Legal: 4,000
Accountino/Audit: 4,000
Security: 34,000
General Office Costs: 3,000
Total Administrative: 47,000
Management Total Management Fee:! 16,000]
Utilities Fuel: -
Gas: 3,000
Electricity: 5,000
Water/Sewer: 12,500
Total Utilities: 20,500
Payroll On-site Manaoer(s): 25,000
I Payroll Taxes Maintenance Personnel: 13,500
Other: Payroll Burden/Taxes 5,000
Total Pavroll/Pavroll Taxes: 43,500
Total Insurance: 8,500
Maintenance Painting: 3,500
Repairs: 3,500
Trash Removal: 3,000
Exterminatino: 2,500
Grounds: 5,000
Other: Elevator 2,000
Other: Fire Mon itorino Svcs 2,250
Total Maintenance: 21,750
Other Expenses Other: Partnership Fees 2,500
Other: -
Other: -
Other: -
Other: -
Total Other: 2,500
Total Expenses
Total Annual Residential Operating Expenses:
Total Number of Units in the Project:
Total Annual Operating Expenses Per Unit:
Total 3-Month Operating Reserve:
Total Annual Internet Expense (site amenity election):
Total Annual Service Amenities Budqet (from project expenses):
Total Annual Reserve for Replacement:
Total Annual Real Estate Taxes:
Other: CMFA issuer fees + LP fees+ County monitorinq fee
TOTAL:
Commercial Income -
Total Annual Commercial/Non Residential Revenue:
Total Annual Commercial/Non Residential Expenses:
Total Annual Commercial/Non Residential Debt Service:
Total Annual Commercial/Non Residential Net Income:
CONFIDENTIAL
Windsor Pointe 20-0916 Property of Affirmed Housing Group
Per Unit
80
160
160
1,360
120
1,880
640 J
120
200
500
820
1,000
540
200
1,740
340
140
140
120
100
200
80
90
870
100
100
159,750
25
6,390
49,000
-
28,000
6,250
2,500
196,500
-
-
-
-
5,400 min per unit
1,120 per unit
500 per NPLH unit
250 per other unit
3,930 per unit
328 per month
9/16/2020 9:42 AM
30-YEAR CASH FLOW PROJECTION -NON-NPLH UNITS
'NindlsorPointe
lnftabon
Facto<
Year 1
=
352.764
Year2 =
359,819
Yeat3 = 367,016
Year4 =
374,356
Years = 361,843
Year6 = 369,460
Year7 =
397,270
Yea, 8
=
405.21S
Year9
=
413,319
Year 10
= Year 11 = Year 12
.SW
Year 13 = Year 14
.ml!
Year 1S
=
Yeat 16
=
Yea, 17 ~ Year 18 = 493,955 Rentatlncome
P8V INCOME IF APPUCA8LE
TOTAL GROSS POTENTlAL REVENUE
Other Income
Vacel'IC)'@
TOTAL NET RENTAL INCOME
A4v6fn&ing
legal
Accoun,ng'Aulit -General Office C06ts
Total Management Fee
Gas
Eledncrty,
Water/Se'Mlr
On-site Manager{•)
Mamteriar.ce Ptiraonnet
Other Payrol Burden/Taxes
Total lt$Uf ance
Painting
Rep,i" Trash Removal
Exterminating
GfounC,S
Ottier· Elevator
OCher: Fire fAorvtonng Svcs
Other· Partn~p FffS
Other· County Mon«onng Fees
$erv1ee AmelVtlff Budget
Real Estate Taxes
Replacement Reserve
TOTAL EXPENSES
Cash Flow Prior to Debt Service (NOO
DEBT SER\l!CE • Clty Fundin~ Comrntrnent
FORECASTED CASH AVAILABLE
,. ... ,. ...
..... ,. ...
0
352.764
31,749
4.200
325,215
0
359,819
32,384 . ., ...
331,720
0
367,016
33,031
4,370 ~
0
374,356
33,692
4,457
-~!n
0
361,843
3'.366
4,546
352,023
0 369,480
35,053
4,637
359,064
0
31V:Z.70
35,754
4,730
366,245
0
405,215
38,469
4,824
373,570
0
413,319
37,199
4,921
381,041
421,586
0
421 S&6
37,9'3
S,019 ~
430017
0
430017
36,702
S.120
396,436
436618
0
438618
39,476
5,222
..a.c,364
447.390
0
447.390
40,265
5,327
412,452
456,338
0
456,338
41,070
S,433
420,701
465 465
0
465 465
41.892
5,542
429,115
474TT4
0
474.n4
42730
5,653
fil!!!.
484.269
0
484,269
43,584
S,766
446.451
0 493.955
44,458
5,881
455.380
3.0% 2,000 2,060 2,122 2,185 2,2S1 2,319 2,388 2,460 2,53-4 2,610 2,688 2,768 2.852 2,937 302S 3,116 3,209 3.306
3.0% 4,000 4,120 4,244 4,371 4,502 4,1537 4,n6 4 919 5,067 5,219 S,376 5,537 5,703 5,874 6,050 15.232 6,419 6,811
3.0% 4 000 4,120 4,244 4,371 4,502 4,637 4,n 6 4,919 S,067 S.219 5,376 S,537 5,703 5,874 6 050 6.232 6,419 6.611
3.0% 34,000 JS,020 36,071 37,153 38,267 39,415 40,598 41,816 43,070 44,362 45,693 47,064 48476 49,930 S1,428 52,971 54,560 56,197
3.0% 3,000 3,090 3,183 3,278 3,3n 3,478 3,582 3,690 3,800 3,914 4,032 4,153 4,Z17 4,406 4,538 4,674 4,814 4.959
2.5% 16,000 16,400 16.810 17,230 17,661 18 103 18,SSS 19,019 19,494 19.~2 20,481 20 993 21.518 22,056 22 608 23,173 23,752 24,346
3.0% J.ooo 3,090 3,183 J,278 J,3n 3,478 J,582 3 690 J,soo 3,914 4,032 4,153 4 211 4,406 4,538 4,674 4,814 4.959
3.0% 5,000 5,150 5,305 5.464 S,628 5,796 S,97D 6,149 6,334 6,524 6,720 6.921 7,129 7,J.43 7,563 7,790 8.024 8.264
3.0% 12,500 12.87S 13,261 13,659 14,069 14,491 14,926 15,373 15,835 16,310 16,799 17,303 H,822 18,357 18,907 19,47S 20,059 20.661
3.0% 25,000 25.750 26,523 27,318 28,138 28.982 29,851 30,747 31,669 32,619 33,598 34,606 35,644 36,713 37,815 38,949 40,118 41,321
3.0% 13,500 13905 14,322 14,752 15,194 15,650 16,120 16,603 17,101 17,614 18,143 18,687 19.248 19,825 20,420 21,033 21.664 22,313
3.0% 5.000 5,150 S.305 5,464 5.628 5,796 5,970 6,149 6,334 6.524 6,720 6,921 7.129 7,343 7,563 7,790 8,024 8.264
3.0% 8,500 8,755 9,018 9,288 9,567 9,854 10,149 10,454 10,768 11,091 11,423 11,766 12.119 12,483 12,857 13.243 13,640 14,049
3.0% 3,500 3,605 3,713 3,825 3,939 4,057 4,179 4,305 4,434 4 567 4,704 4.84S 4,990 5,140 s 294 5,4S3 5.616 5.785
3.0% 3,500 3,605 3,713 3,825 3,939 4,057 4,179 4 305 4,434 4,567 4 704 4,845 4.990 5,140 5,294 5,453 5,616 5,785
3.0% J.ooo J,090 3,183 J.21e 3,Jn 3.478 3,582 3,690 3,800 J,&14 4,032 4.t53 •.m 4,406 4,538 4,674 4,814 4.959 3.0% 2,500 2,575 2,652 2,732 2,814 2,898 2,985 3,075 3,167 3,262 3 360 3,461 3.564 3 671 3781 3,895 4,012 4,132
3.0% 5.000 5.150 5.305 5.464 S.628 S.796 5,970 &,149 6,334 6,S24 6,720 6921 7.1~ 7,343 7,563 7,7SM> 8,024 B,2$4
3.0% 2,000 2,060 2,122 2,185 2,251 2,319 2,388 2 460 2,534 2 610 2.688 2,768 2,852 2,937 3,025 3,116 3,.209 3,306
3.0% 2,2SO 2,318 2,387 2,4S9 2,532 2,608 2,687 2,767 2,850 2,936 3,024 3,115 3 208 3,304 3,403 3.505 3,611 3,719
3.0% 2.500 2,575 2,652 2,732 2,814 2,898 2,1>85 3,075 3,167 3,262 3 360 3,461 3,564 3,671 3781 3,895 4,012 4,132
3.0% 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O
3.0% 28.000 28,840 29,70S 30.596 31,514 32,460 33,433 34 436 35,470 36.534 37 630 38,759 39,921 41. 119 42,353 43,623 44,932 46,280
2.0% 2,500 2,550 2,601 2,653 2,706 2,760 2,615 2,872 2,929 2,988 3047 3,108 3,171 3,234 3299 3,365 3,432 3,501
0.0% 6 250 6 250 6 250 6,250 6 250 6.250 6 250 6 250 6 2SO 6.250 6,250 6.250 6 250 6 250 6 2SO 6,250 6 250 6,250
198,500
128,715
128,715
202.103
129,617
129,617
207,871
130,483
1301443
"13,809 219,923
131,312 132.100
131,312 132,100
226,218
132,8-46
~
232,699 239,372 246,241 253,314
133,546 134.199 13',800 ~
133.546 ~ 135 J.48
260,596
135,839
Z68.I.Q94
136,270
136 270
27t813
136,638
.E!:E!.
283,761
136,940
136 940
291JM4 300.363 309,042 317,973
137171 ~ ~ 137,-407
137,408 137,-407
Percent ot Gr06S Rev11nue 8% Max 36.49%
>.YJO
10,000
36.02%
2.m
10,300
35.55%
2,652
10,809
35.08%
2,732
10,927
3'.60%
2,814
11.2.55
34.11%
2,898
11,593
33.62%
,.. ..
11,G41
33.12%
3.075
12.2"
13',800
32.61%
l.167
12. ...
32.1 ...
3,26>
16,2.41
135:839
31.59%
3,484
26,878
31.07%
6.921
27,6-a5
30.54%
7,129
28,515
30.01%
7,343
29,371
137171
29.47%
7.SU
30.252
137,329
28.93%
1,190
31,159
28.37%
8,024
32,094
27.82% .,,..
33,057
~t Management Fee 3.0"4
Partnership Management Fee 3.0%
Cash AvaMble tOt Dstnbution {~)
Deferred DeYeloper Fee (Non-NPLH) $ 351,181
earning 2.000,r.
Bslance (Non-NPLH)
Addi Cash A11$llable for OOF (NPUi)
Balance (Al Unr15)
Cash Available for COSR o,-...., R«tuction
'MncaorPolrie20-<»16
116,215
116.215
4,699
239.665
76884
162.781
116,742
116,742
921
48,960
48960
117,222 117,653 118,031
117,222 117,653 118,031
118,355 118,621 118,825 118,Me 115,8-45 105,4TT 101,664 100,994 100,228 99.356 98,379 97,291 90,11116
118,355 118,621 118,825 118,Me 115.8-45 10S.4TT 101,664 100,994 100,226 99,356 98,379 97.291 96,086
CONFlOE.NTIAL
Proptfly ot Al'ftrmtd Housing Group 9t'US/20209 42 AM
30-YEAR CASH FLOW PROJECTION-NON-NPLH UMTS
Wind!lof Pointe
Rental Income
PBV INCOt.E IF APPUCABl.E
TOT AL GROSS POTENTIAL REVENUE
Other Income
Vacancy@
TOTAL NET RENTAL INCOME
Advertlling
Legal
Ac.c:ounll'!gAudit
Sea,rny
General Office Co&ts
Total Management Fee oa.
Eledno<y·
Wat.er/Se~
()o..s.te Mana~s ):
Maintenance Pe1son1W
Other Peyrol BurdenfTaxn
Total Insurance.
Pu,ting·
Repairs
Tra&h Removal
Exterminat1ng..
"'°"""' Other Elevator
Other Fire Monitoong Svcs
Othe<: Partnership Fees
Other: County f.Aonitoring Fees
Service Amervtles Budget
Real Estate Taxn
Replacement Reserve
TOTAL EXPENSES
Cash Flow Prior 10 De,bt Service (NOi)
DEBT SERVICE -City Fundin~ Coml'TV1ment
FORECASTED CASH AVAILABLE
,_on
Fedor
2.0%
2.0%
9.0%
2.0%
Yea, 19 =
503 83<
0
503,834
45,345
5,999
464,437
Vear 20 =
513,911
0
513,911
46,252
6,119
473777
Year21 =
524,189
0
524.189
47.,n
6,241
433,253
Vear22
22!!
534,673
0
534,673
48,121
6,366
492,918
Year 23 =
S45,J66
0
S45,366
49,083
6,493
502,TT6
Vear24 ~
556,273
0
556.273
50,065
6623
512.832
Vear 25 = 567,399
0
567,399
51,066
6,755
523,00ll
Vaar26
Z!!!l
578,747
0
578,747
52,087
6,891
533,550
YeatV ~
590322
0
590,322
53,129
7,028
544,221
Year 28 =
602.128
0
602128
~.192
7.169 ~
Year29 =
614,171
0
614171
55275
7.312
56G,20e
Year 30 = 626.454
0
626,454
56361
7,459
577,532
3.0% J.405 J,507 3,612 3,n, 3 832 3 947 4,066 4,1aa 4,313 4,443 4,576 , 113
3.0% 6810 7,014 7.224 7,441 7,664 7.894 8,131 8,375 8,626 8.885 9,152 9.t26
3.0% 6,810 7,014 7,224 7,441 7,664 7,894 8,131 8,375 8,626 8,885 9.152 9,426
3.0% sr,aa3 59,619 e1.408 63,2so 65.14a e1. 102 59. 115 11. 166 73,324 1s.s24 n ,790 eo. ,n
3.0% 5,107 5 261 5,418 5,581 5,748 5 921 6 098 6.281 6,470 6,664 6,864 7 070
2.5'% 24955 25,578 26,218 26,873 27,545 28.234 28.SMO 29,663 30,405 31,165 31.944 32,743
3.0% 5,107 5 261 5,418 5,581 5 748 5 921 6,098 6,281 6,470 6,664 6.864 7,070
3.0% 8 512 8 768 9,031 9,301 9,581 9.868 10,164 10,469 10,783 11,106 11,440 11,783
J..0% 21.2eo 21,919 22.s1s 23,254 23,951 2.t,670 25,410 2e.1n 26,957 27,766 28,599 29,-457
3.0% 42,561 43,838 45,153 46,507 47.903 49.340 50,820 52.344 53,915 55,532 57.198 58.914
3.0% 22,083 23,Bn 24,383 25,114 25,867 26.643 27,443 28,266 29,114 29,987 30,887 31,814
3.0% 8,512 8768 9,031 9,301 9,581 9,868 10,164 10.469 10.783 11,106 11,440 11.783
3.0% 14471 14005 15,352 1s,s1J 1s,2a1 16,ns 17.279 17,797 1a,JJ1 ,a,sa, 19,447 20,031
3.0% s,959 6137 6,321 s,s11 6.706 6.906 1,115 7328 7,548 1,n5 a.ooa 8.248
J.0% 5959 s.137 6,321 6,511 s,100 e,908 1,11s 7,328 7,S4s 1,ns a.ooe s,248
3.0% 5 107 5 261 5,418 5,581 5,748 5.921 6,098 6,281 6,470 6,664 6,864 7,070
3.0% 4 256 4 384 4,515 4,651 4,790 4,934 5,082 5,234 5.391 5,553 5,720 5,891
3.0% 8.512 8768 9,031 9,301 9,581 9,868 10,1641 10.469 10,783 11.106 11440 11,783
3.0"I. 3,405 3,507 3,612 3,721 3,832 3,947 4,066 4,188 4,313 4,443 4,576 4,713
3.0% 3,830 3,945 4,064 4,186 4,311 4,441 4,574 4,711 4,852 4,998 5,148 5.302
3.0% 4,256 4,38.4 4,515 4,651 4,790 4,934 5,082 5,234 5,391 5,553 5,720 5 891
3.0% 0 0 0 0 0 0 0 0 0 0 0 0
3.0% 47,668 49,098 50,571 52.088 53,651 55,260 56,918 58,626 60 385 62,198 64,062 65.964
2.0% 3,571 3.642 3,715 3,789 3,865 3,942 4,021 4,102 4.184 4,267 4,353 4 4-40
0.0% 6 250 6 250 6 250 6 250 6 250 • 6.250 6 250 6 250 6,250 6.250 6.250 6 250
327,168 336,IS35 J.46,342 356,418
137 319 137,142 136.870 136,500
136,870 136 500
366,751 3TT1390
136 025 135,4'2
136,025 135.442
333,343
134 745
134.745
399,821 411,233
133,929 ~
133,929
423.183
131,917
131,917
43~
130710
130710
448,172
129,360
PerceM of. Grou Revenue 8% Max
137,319
27.25%
a.s12
34.049
137,142
2669'4
8,768
35,070
26.11%
9.031
36122
25.53%
9,301
37,206
24.94%
,.sa,
38,322
24.35%
.....
39,472
23.75%
10.164
40,856
23.14%
10,469
41.&76
132,988
22.53%
10,783
43,132
2191%
11,106
4442&
21.28%
11,440
45,759
129,360
20.65%
11,783
47,131
Anet Management Fee l.0"4
Partnetshlp Mana'19ment FN 3.0%
Cash Available for DtstnbYtlon (Nol').Nf>LH) 94.759 93.J<M 91.71& 89,992 83,123 86,103 aJ,925 81,585 79,074 7&,385 73,511 70,445
Deferred Developer FN (~PU1) S 351,181
aarl'llOg 2.000'"4 Balance(~)
Add Cash Available f0f OOF (NPU1)
Balance (Al Un1t&)
Cash Available for CDSR Draw Reduction 94,759 93,304 91,718 89,992 88,123 86,103 83,925 81,585 79,074 78,385 73,511 70,445
Vlllnd9ol' Polnl• 20-0DHS CONF10ENT1AL
Pn,peny of Afflrm9<1 Housong Group ~18.'202CG42AM
$3,793,392
PROMISSORY NOTE
(Windsor Pointe)
Carlsbad, California
September I , 2020
FOR VALUE RECEIVED, Carlsbad Veteran Housing, L.P., a California limited
partnership ("Borrower"), promises to pay to the City of Carlsbad, a municipal corporation (the
"City"), or order, the principal sum of Three Million Seven Hundred Ninety-Three Thousand
Three Hundred Ninety-Two Dollars ($3,793,392), disbursed by the City to the Borrower
pursuant to that certain Construction and Permanent Loan Agreement dated as of September I,
2020, as may be amended or implemented from time to time (collectively, the "Loan
Agreement"), or so much as is disbursed to Borrower, plus interest thereon pursuant to Section 2
below.
I. Borrower's Obligation. This promissory note (the "Note") evidences the
Borrower's obligation to pay the City the principal amount of Three Million Seven Hundred
Ninety-Three Thousand Three Hundred Ninety-Two Dollars ($3,793,392) (the "Loan" or the
"City Loan"), for the funds loaned to the Borrower by City to finance the development of the
Property pursuant to the Loan Agreement. All capitalized terms not otherwise defined in this
Note shall have the meanings set forth in the Loan Agreement.
2. Interest. The outstanding principal balance of this Note shall bear simple interest
at the rate of three percent (3%) per annum; provided, however, if an Event of Default occurs,
interest on the principal balance shall begin to accrue, as of the date of the Event of Default
(following expiration of applicable notice and cure periods), and continuing until such time as
the Loan funds are repaid in full or the Event of Default is cured, at the default rate of ten percent
(10%) compounded annually, or the highest rate permitted by law (whichever is lower).
3. Term and Repayment Requirements.
(a) The term of this Note (the "Term") shall commence on the date set forth
above and shall expire on the earliest of: (i) on the fifty-fifth (55th) anniversary of the
Completion Date; (ii) if a record of the Completion Date cannot be located or established, the
fifty-seventh (57th) anniversary of the date set forth above, or (ii) the date ofan Event of Default
as provided in Section 3(b) below.
(b) Subject to the provisions of subsection ( d) below, all principal and
interest, if any, on the Loan shall, at the option of the City, be due and payable upon the earliest
of: (i) a Transfer other than a Transfer permitted or approved by the City as provided in the
Loan Agreement; (ii) the occurrence of an Event of Default for which the City exercises its right
to cause the City Loan indebtedness to become immediately due and payable; or (iii) the
expiration of the Term.
(c) The Borrower shall make annual repayments of the City Loan in an
amount equal to the City Prorata Percentage of Residual Receipts, solely to the extent Residual
IO I 01261286 1722.4
Receipts exist, in accordance with the Loan Agreement.
(d) The Borrower shall have the right to prepay the City Loan at any time
without penalty or additional charge.
4. No Assumption. This Note shal l not be assumable by the successors and assigns
of Borrower without the prior written consent of the City, or as set forth in the Loan Agreement.
5. Security. This Note is secured by a Leasehold Construction Deed of Trust, with
Assignment of Rents, Security Agreement, and Fixture Filing ( collectively, the "Deed of Trust")
of even date herewith, wherein the Borrower is Trustor and the City is the Beneficiary, recorded
against the Borrower's leasehold interest in the Property.
6. Terms of Payment.
(a) All payments due under this Note shall be paid in currency of the United
States of America, which at the time of payment is lawful for the payment of public and private
debts.
(b) All payments on this Note shall be paid to the City at the following
address: City of Carlsbad, Community Development Department, Housing Services, 1200
Carlsbad Village Drive, Carlsbad, CA 92008-1949, Attn: Housing Services Manager, or to such
other place as the City may from time to time designate in writing.
(c) All payments on this Note shall be without expense to the City, and the
Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable
attorney's fees of the City, incurred in connection with the payment of this Note and the release
of any security hereof.
(d) Notwithstanding any other provision of this Note, or any instrument
securing the obligations of the Borrower under this Note, if, for any reason whatsoever, the
payment of any sums by the Borrower pursuant to the terms of this Note would result in the
payment of interest which would exceed the amount that the City may legally charge under the
laws of the State of California, then the amount by which payments exceeds the lawful interest
rate shall automatically be deducted from the principal balance owing on this Note, so that in no
event shall the Borrower be obligated under the terms of this Note to pay any interest which
would exceed the lawful rate.
7. Default.
(a) Any of the following shall constitute an "Event of Default" under this
Note:
(i) Any failure to pay, in full, any payment required under this Note
when due following written notice by the City of such failure and ten ( I 0) days opportunity to
cure;
2
1010\26\2861722.4
(ii) Any failure in the performance by the Borrower of any other term,
condition, provision or covenant set forth in the Loan Documents subject to the applicable notice
and cure period set forth therein; and
(b) Upon the occurrence of such an Event of Default, the entire unpaid
principal balance, together with all interest thereon, and together with all other sums then
payable under this Note and the Deed of Trust shall at the option of the City become
immediately due and payable upon written notice by the City to the Borrower without further
demand.
(c) The failure to exercise the remedy set forth in subsection 7(b) above or
any other remedy provided by law upon the occurrence of one or more of the foregoing events of
default shall not constitute a waiver of the right to exercise any remedy at any subsequent time in
respect to the same or any other default. The acceptance by the City hereof of any payment
which is less than the total of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the foregoing remedies or options at that time
or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the
express consent of the City, except as and to the extent otherwise provided by law.
8. Waivers.
(a) The Borrower hereby waives diligence, presentment, protest and demand,
and notice of protest, notice of demand, and notice of dishonor of this Note. The Borrower
expressly agrees that this Note or any payment hereunder may be extended from time to time,
and that the City may accept further security or release any security for this Note, all without in
any way affecting the liability of the Borrower.
(b) No extension of time for payment of this Note or any installment hereof
made by agreement by the City with any person now or hereafter liable for payment of this Note
shall operate to release, discharge, modify, change or affect the original liability of the Borrower
under this Note, either in whole or in part.
(c) The obligations of the Borrower under this Note shall be absolute and the
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reason whatsoever.
9. Miscellaneous Provisions.
(a) All notices to the City or the Borrower shall be given in the manner and at
the addresses set forth in Section 7.10 of the Loan Agreement, or to such addresses as the City
and the Borrower may hereinafter designate.
(b) The Borrower promises to pay all costs and expenses, including
reasonable attorney's fees and other professional service fees and costs, incurred by the C ity in
the enforcement of the provision of this Note, regardless of whether suit is filed to seek
enforcement.
3
IO I 0\26\2861722 4
(c) This Note may not be changed orally, but only by an agreement in writing
signed by the Party against whom enforcement of any waiver, change, modification or discharge
is sought.
(d) This Note shall be governed by and construed in accordance with the laws
of the State of California.
(e) The times for the performance of any obligations hereunder shall be
strictly construed, time being of the essence.
(f) This Note, together with the Loan Agreement, the Deed of Trust, and any
other applicable City Document, contain the entire agreement between the Parties as to the Loan.
(g) This Note is subject to the non-recourse provision, and the limitations
thereto, as set forth in Section 2.9 of the Loan Agreement.
Signatures on Following Page
4
IO 10\26\2861722.4
Borrower has executed this Note as of the date first written above.
l010126\2861722.4
BORROWER:
CARLSBAD VETERAN HOUSING, L.P., a California
limited partnership
By: AHG Windsor Pointe, LLC, a California limited
liability company, its administrative general partner
By: Affirmed Housing Group, Inc., a Delaware
corporation, its manager
By:
Name: fv\(~ 01 \'(tfY'(00
Its: Tt(~\&0'.\t
By: Las Palmas Foundation, a California non-profit
public benefit corporation, its managing general
partner
By:
Joseph M. Michaels, President
5
Borrower has executed this Note as of the date first written above.
IO I 0\26\2861722.4
BORROWER:
CARLSBAD VETERAN HOUSING, L.P., a California
limited partnership
By: AHG Windsor Pointe, LLC, a California limited
liability company, its administrative general partner
By: Affirmed Housing Group, Inc., a Delaware
corporation, its manager
By:
Name: -----------
Its:
By: Las Palmas Foundation, a California non-profit
public benefit corporation, its mana • g general
partner
By:
5