AHA-2022-004RESOLUTION NO. AHA-2022-004
A RESOLUTION OF THE ANAHEIM HOUSING AUTHORITY APPROVING
THAT CERTAIN AMENDED AND RESTATED AFFORDABLE HOUSING
AGREEMENT (BEL'AGE SENIOR APARTMENTS) BETWEEN THE
ANAHEIM HOUSING AUTHORITY AND BELAGE PRESERVATION
LIMITED PARTNERSHIP, SUBSTANTIALLY IN THE FORM ATTACHED
HEREWITH; AUTHORIZING THE AUTHORITY EXECUTIVE DIRECTOR,
OR HER DESIGNEE TO EXECUTE AND IMPLEMENT THE AGREEMENT
AND IMPLEMENTING INSTRUMENTS; AND MAKING CERTAIN OTHER
FINDINGS IN CONNECTION THEREWITH
WHEREAS, the Anaheim Housing Authority ("Authority") is a California housing authority
duly organized and existing under the California Housing Authorities Law, Part 2 of Division 24,
Section 34200, et seq., of the Health and Safety Code, and has been authorized to transact business
and exercise the power of a California housing authority pursuant to action of the City Council of the
City of Anaheim; and
WHEREAS, the City of Anaheim ("City") is a California municipal corporation and charter
city; and
WHEREAS, Belage Preservation Limited Partnership is a California limited partnership
("Developer"); and
WHEREAS, the City and Belage Manor Ltd., a California limited partnership and
predecessor -in -interest to Developer, ("Original Developer") entered into a certain agreement dated
as of February 2, 1988 (Instrument No. 88-081485 in Official Records) (` 1988 Agreement") in
connection with the original, then new, construction and operation of a 180-unit senior rental
apartment complex, inclusive of two onsite manager units, of which 178 Housing Units were
restricted and covenanted as affordable housing for Very Low and Low Income Senior Citizen
households ("Original Project"); and
WHEREAS, this development, commonly known as Bel'Age Manor or Bel'Age Senior
Apartments, is located at 1660-1664 West Broadway, Anaheim, California ("Site"); and
WHEREAS, the Authority and Developer (as then owner and successor -in -interest to the
Original Developer) entered into an Affordable Housing Agreement dated as of February 1, 2008
(Instrument No. 2008-000071745 in Official Records) ("2008 Agreement"); and
WHEREAS, the 2008 Agreement was entered into in connection with and as a part of the
refinancing of certain series of bonds issued in 1990 and refunded and refinanced in 2008; and
WHEREAS, under the 2008 Agreement certain conditions, covenants and restrictions were
established for the long-term ownership, operation and management of the Bel'Age Senior
Apartments for a term of ninety-nine (99) years; and
WHEREAS, Developer is currently in escrow related to an interest purchase transaction to
receive conveyance of all of the ownership interests in the Site, land and Improvements, from the
current owner entity, as seller; and
1
4868-7949-519N5/022620-0095
WHEREAS, the Authority and Developer have negotiated the terms of an Amended and
Restated Affordable Housing Agreement (Bel'Age Senior Apartments) ("2022 AHA"), which if
approved in the Authority's sole discretion by this Resolution, will replace and supersede the
2008 Agreement and establish updated and more detailed conditions, covenants and restrictions for
ownership, operation and management of the complex as an affordable senior housing project for
occupancy by Very Low Income and Low Income Senior Citizen Households at an Affordable Rent;
and
WHEREAS, under the 2022 AHA Developer will cause the substantial rehabilitation of the
Bel'Age Senior Apartments in an amount of not less than Nine Million Dollars ($9,000,000), which
together with the amended and restated conditions, covenants and restrictions is the "Project"; and
WHEREAS, under the 2022 AHA, prior to or concurrently with Developer will have caused
the redemption of the 2008 Bonds, provided however, the 1988 Agreement, 2008 Bond Regulatory
Agreement, and 2008 Tax Credit Regulatory Agreement (as defined therein) will remain in full force
and effect pursuant to and for their respective terms; and
WHEREAS, under the 2022 AHA, 178 Housing Units in the Project will be operated and
managed as affordable housing for tenancy by qualified Senior Citizen Households at the following
unit size and income restrictions:
• fifty-nine (59) one -bedroom units for occupancy by qualified Very Low Income
Households;
• three (3) studio units for occupancy by qualified Low Income Households; and
• one hundred sixteen (I16) one -bedroom units for occupancy by qualified Low Income
Households; and
WHEREAS, the Developer and Authority are parties to a certain Housing Assistance
Payment contract, as amended, dated as of July 1, 2008 ("Existing HAP Contract") under which the
Authority has provided ninety (90) project -based vouchers ("PBVs") to the Project in connection
with and as part of the Authority's financial assistance to the Project in 2008; and
WHEREAS, under the 2022 AHA, the Authority states its intention to enter into a
fifteen (15)-year extension of the Existing HAP Contract (called "Existing HAP Contract Second
Extension") to continue to provide ninety (90) PBVs at the Project; and
WHEREAS, part of the material consideration for the Authority's agreement to provide the
Existing HAP Contract Second Extension is Developer's covenant to plan, design, construct and
complete the Substantial Rehabilitation at an aggregate cost of not less than $9,000,000, and to own,
operate, manage, and maintain the Site and Project for the reset 99-year Affordability Period; and
WHEREAS, Authority (and City) have determined that the Existing HAP Contract Second
Extension with the Substantial Rehabilitation described in the 2022 AHA is not a "project" under the
provisions of (a) the California Environmental Quality Act, Public Resources Code Section 21000,
et seq., and the Guidelines for Implementation of the California Environmental Quality Act set forth
at Title 14 California Code of Regulations, Section 15000, et seq. (together, "CEQA"), and
(b) the National Environmental Policy Act, 42 U.S.C. 4321, el seq. ("NEPA"), further, the
2022 AHA is within the class of projects described as affordable housing development that are
4868-7949-519301022620-0095
categorically exempt pursuant to Section 21159.23 of the California Public Resources Code and
Section 15332 of the Guidelines and the Existing HAP Contract Second Extension is not a new
project subject to NEPA review and determination; and
WHEREAS, the Existing HAP Contract Second Extension, the 2022 ARA and Project to he
implement are intended to further the Authority's goals and objectives under the Housing Authorities
Law, federal Housing Choice Voucher Law, the City's Housing Element of the General Plan, and in
furtherance of the Authority's (and City's) goals and objectives to provide in the community decent,
safe and sanitary affordable housing and to increase, improve and preserve housing available at
affordable housing cost for income -eligible households, in particular Senior Citizen Very Low and
Low Income Households; and
WHEREAS, capitalized terms used in this Resolution are as defined the 2022 AHA; and
WHEREAS, the Authority has duly considered all terms and conditions of the 2022 AHA
and Existing HAP Contract Second Extension and believes that such agreements and the Project are
in the best interests of the Authority and City and the health, safety, and welfare of its residents, and
in accord with the public purposes and provisions of applicable state and local laws and
requirements.
NOW, THEREFORE, BE IT RESOLVED BY THE ANAHEIM HOUSING
AUTHORITY:
Section 1. The Authority finds and determines that the foregoing recitals are true and correct
and are a substantive part of this Resolution.
Section 2. The Authority affirms the statements in the above Recitals related to CEQA and
NEPA because the Existing HAP Contract Second Extension and the 2022 AHA is/am not a
"project" under CEQA and/or NEPA review and determination; and, no further action is necessary
under CEQA and NEPA.
Section 3. Based on all documentation and evidence in the record before it, the Authority Board
approves the 2022 AHA, including the PBVs extended by the Existing HAP Contract Second
Extension, between the Authority and Developer, with such changes to the 2022 AHA as may be
mutually agreed upon by the Executive Director, City Attorney, and Developer, respectively, as are
minor and in substantial conformance with the form of the 2022 AHA submitted with this matter.
The Executive Director and Authority Secretary (City Clerk) are hereby authorized to execute and
attest the 2022 AHA and various implementing agreements and instruments on behalf of the
Authority so long as in substance consistent with the transaction contemplated by the 2022 AHA.
Copies of the final form of the 2022 AHA, when duly executed and attested, shall be placed on file in
the office of the City Clerk. Further, the Executive Director (or her designee) is authorized to
implement the 2022 AHA and take all further actions and execute all documents referenced therein
and/or necessary and appropriate to carry out the contemplated transaction. The Executive Director
(or her designee) is authorized to the extent necessary during the implementation of the 2022 AHA to
make technical or minor changes and interpretations of the 2022 AHA after execution, as necessary
to properly implement and carry out the 2022 AHA, including all exhibits thereto and referenced
therein, provided any and all such changes shall not in any manner materially affect the rights and
obligations of the Authority thereunder.
Section 4. This Resolution shall be effective upon adoption.
Section 5. The Authority Secretary shall certify to the adoption of this Resolution.
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4868-7949-5193v5/022620-0095
THE FOREGOING RESOLUTION IS PASSED, APPROVED AND ADOPTED BY THE
ANAHEIM HOUSING AUTHORITY ON MAY 24, 2022 BY THE FOLLOWING ROLL
CALL VOTE:
AYES: Vice -Chairman O'Neil and Authority Members Diaz,
Ma'ae, Moreno, Valencia and Faessel
NOES: None
ABSTAIN: None
ABSENT: None
[Mayoral vacancy)
jAthn
Secretary
ANAHEIM HOUSING AUTHORITY
By: r
Vice- Chair
4868.7949.51930/022620.0095
SECRETARY'S CERTIFICATE
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) as.
CITY OF ANAHEIM )
I, THERESA BASS, Secretary of the Anaheim Housing Authority, do hereby certify that the foregoing
is the original Resolution No. AHA-2022-004 adopted at a regular meeting provided by law, of the
Anaheim Housing Authority held on the 24th day of May. 2022, by the following vote of the members
thereof:
AYES: Vice -Chairman O'Neil and Authority Members Diaz, Ma'ae, Moreno, Valencia, and
Faessel
NOES: None
ABSTAIN: None
ABSENT: None
[Mayoral vacancy]
IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of May. 2022
�-®
SECREJARY OF THE ANAHEIM HOUSING AUTHORITY
(SEAL)
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
(Bel'Age Senior Apartments)
by and between
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic,
and
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership,
4893-1713-7678v9/022620-0095
TABLE OF CONTENTS
Page
1. DEFINITIONS.......................................................................................................................... 6
1.1 Defined Terms..............................................................................................................6
2. ACQUISITION OF THE OWNERSHIP INTERESTS BY NEW PARTNERS;
CONDITIONS PRECEDENT TO CLOSING OF ACQUISTION AND
CONDITIONS PRECEDENT TO SUBSTANTIAL REHABILITATION ...........................22
2.1 Developer Entity Structure and Acquisition of the Ownership Interests....................22
2.2 Environmental Condition of the Site.......................................................................... 26
2.3 Escrow for Closing of Acquisition..............................................................................29
3. SUBSTANTIAL REHABILITATION - PHASE 1 REHAB AND PHASE 2 REHAB ......... 30
3.1
Developer's Obligation to Complete Substantial Rehabilitation ................................
30
3.2
Development Plans for Phase 2 Rehab.......................................................................
31
3.3
Timing of Construction and Completion of the Substantial Rehabilitation of
Phase2 Rehab.............................................................................................................33
3.4
City and Other Governmental Permits........................................................................
33
3.5
Release of Construction Covenants............................................................................
34
3.6
Insurance Requirements..............................................................................................34
3.7
Obligation to Repair and Restore Damage Due to Casualty .......................................
37
3.8
Indemnity....................................................................................................................
38
3.9
Entry by Authority......................................................................................................
39
3.10
Compliance with Laws...............................................................................................
39
3.11
Financing of the Project..............................................................................................42
3.12
Non -Subordination of Senior Restrictions..................................................................
43
3.13
Article XXXIV Compliance.......................................................................................
44
3.14
Existing HAP Contract Second Extension..................................................................44
4. AFFORDABLE HOUSING COVENANTS AND OPERATION .........................................
44
4.1
Number and Allocation of Housing Units; Unit Mix among Very Low
Income and Low Income Levels.................................................................................44
4.2
Affordable Rent..........................................................................................................45
4.3
Duration of Affordability Requirements; Affordability Period ..................................
47
4.4
Selection of Tenants....................................................................................................47
4.5
Household Income Requirements...............................................................................
48
4.6
Relocation; Developer Responsible for Cost of Relocation.......................................48
4.7
Leases; Rental Agreements for Housing Units...........................................................
49
4.8
Supportive Services....................................................................................................50
4.9
Intentionally omitted...................................................................................................50
4.10
Maintenance................................................................................................................50
4.11
Management of the Project.........................................................................................
52
4.12
Capital Replacement Reserve.....................................................................................
55
4.13
Operating Reserve.......................................................................................................
55
4.14
Non -Discrimination Covenants...................................................................................
55
4.15
Monitoring and Recordkeeping..................................................................................
57
4.16
Authority Regulatory Agreement to be Recorded......................................................
58
5. [Reserved]................................................................................................................................58
4893-1713-7678v9/022620-0095
TABLE OF CONTENTS
(Continued)
Page
6. DEFAULT AND REMEDIES................................................................................................
58
6.1
Events of Default........................................................................................................
58
6.2
Remedies.....................................................................................................................58
6.3
Force Majeure.............................................................................................................59
6.4
Termination by Developer..........................................................................................
60
6.5
Termination by Authority...........................................................................................
60
6.6
Attorneys' Fees...........................................................................................................
61
6.7
Remedies Cumulative.................................................................................................
61
6.8
Waiver of Terms and Conditions................................................................................
61
7. GENERAL PROVISIONS......................................................................................................61
7.1
Time is of the Essence................................................................................................
61
7.2
Notices........................................................................................................................
61
7.3
Representations and Warranties of Developer............................................................
62
7.4
Transfers; General Prohibition of Transfer without Authority Consent .....................
63
7.5
Successors and Assigns...............................................................................................
65
7.6
Non -Recourse; Non -Liability of Public Officials and Employees of Authority
orCity.........................................................................................................................
65
7.7
Relationship between Authority and Developer.........................................................
66
7.8
Executive Director; Authority Approvals and Actions ...............................................
66
7.9
Counterparts................................................................................................................66
7.10
Integration...................................................................................................................
66
7.11
Real Estate Brokerage Commission............................................................................
66
7.12
Titles and Captions.....................................................................................................
66
7.13
Interpretation...............................................................................................................
67
7.14
No Waiver...................................................................................................................67
7.15
Covenant Not to Sue...................................................................................................
67
7.16
Developer's Payment and Reimbursement of Authority's Third Parry Costs ............
67
7.17
Modifications..............................................................................................................
68
7.18
Severability.................................................................................................................
68
7.19
Computation of Time..................................................................................................68
7.20
Legal Advice...............................................................................................................68
7.21
Cooperation.................................................................................................................68
7.22
Conflicts of Interest.....................................................................................................
69
u
4893-1713-7678v9/022620-0095
LIST OF ATTACHMENTS
ATTACHMENT NO. 1 Legal Description of the Site
ATTACHMENT NO. 2 Schedule of Performance
ATTACHMENT NO. 3 Scope of Substantial Rehabilitation,
including Phase 1 Rehab and Phase 2 Rehab
ATTACHMENT NO. 4 Termination Agreement
ATTACHMENT NO. 5 Authority Regulatory Agreement
ATTACHMENT NO. 6 Completion Guaranty
ATTACHMENT NO. 7 Request for Notice of Default
ATTACHMENT NO. 8 Form of Release of Construction Covenants
ATTACHMENT NO. 9 List of Environmental Reports
ATTACHMENT NO. 10 Preliminary Financing Plan; Financial Assumptions
ATTACHMENT NO. 11 [Reserved]
ATTACHMENT NO. 12 Supportive Services Plan
ATTACHMENT NO. 13 Property Management Plan, including Parking Management Plan
ATTACHMENT NO. 14 Income Verification
ATTACHMENT NO. 15 Memorandum of Agreement
ATTACHMENT NO. 16 Developer Certificate of Continuing Program Compliance
4893-1713-7678v9/022620-0095
AFFORDABLE HOUSING AGREEMENT
(Bel'Age Senior Apartments)
This AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
(Bel'Age Senior Apartments) ("Agreement"), dated as of and for purposes of identification only as
of May 24, 2022 is entered into by and between the ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic ("Authority"), and BELAGE PRESERVATION LIMITED
PARTNERSHIP, a California limited partnership ("Developer").
RECITALS
The following recitals are a substantive part of this Agreement.
A. Authority is a California housing authority duly organized and existing under the
California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq., of the Health and
Safety Code ("HAL"), and has been authorized to transact business and exercise the power of a
California housing authority pursuant to action of the City Council ("City Council") of the City of
Anaheim.
B. The City of Anaheim ("City") is a California municipal corporation and charter city.
C. The Developer entity, as restructured and reorganized, is comprised of:
(ii) RAHF V Belage, LLC in its capacity as a general partner, together with its permitted successors
and assigns ("Administrative General Partner"), (ii) RAHF V Belage, LLC, a Delaware limited
liability company (in its capacity as a limited partner, together with its permitted successors and
assigns ("JRC Limited Partner"), (iii) JHC-Belage LP LLC, a California limited liability company
(in its capacity as a limited partner, together with its permitted successors and assigns
("Jamboree Limited Partner"), (iv) JHC-Belage GP LLC, a California liability company (in its
capacity as a general partner, together with its permitted successors and assigns ("Managing General
Partner"). The Administrative General Partner, the JRC Limited Partner, the Jamboree Limited
Partner and the Managing General Partner are sometimes referred to collectively as the
"New Partners".
D. The City and Belage Manor Ltd., a California limited partnership and predecessor -in -
interest to Developer, ("Original Developer") entered into a certain agreement dated as of
February 2, 1988 that was recorded as Instrument No. 88-081485 in the Official Records, County of
Orange, State of California ("Official Records") on February 24, 1988 ("1988 Agreement") in
connection with the original, then new, construction and operation of a 180-unit senior rental
apartment complex, inclusive of two (2) onsite manager units, of which 178 Housing Units were
restricted and covenanted as affordable housing for Very Low and Low Income Senior Citizen
households ("Original Project"). This development, commonly known as Bel'Age Manor or
Bel'Age Senior Apartments is located at 1660-1664 West Broadway, Anaheim, California ("Site");
the Site is particularly described in the Legal Description, Attachment No. 1 and fully incorporated
by this reference.
E. The 1988 Agreement affirmed the approval by the City Council of the City of
Anaheim ("City Council") of Conditional Use Permit No. 87-220, as amended ("CUP"), that
approved development and operation of the Original Project on the Site and approved certain
4893-1713-7678v9/022620-0095
variances therefor. By this Agreement Developer acknowledges and agrees that the 1988 Agreement
and the City of Anaheim CUP remain in full force and effect; and each such instrument touches and
concerns and runs with the land and all zoning and variances shall continue and survive pursuant to
the terms thereof, and the Assignment shall include and reference the CUP and 1988 Agreement.
F. The New Partners are currently in escrow with Fidelity National Title, Escrow No.
30063438-997-MAT-TC1 in an interest purchase transaction to receive conveyance of all of the
ownership interests in the Site, land and Improvements, from the current owner, as seller, for an
effective fee simple "Purchase Price" of $46,000,000.00. Pursuant to the purchase and sale
agreement between seller and New Partners the transaction is planned for Closing of Acquisition on
or about May 31, 2022.
G. Developer intends for the restructured limited partnership entity described in
Recital C above to (i) own fee ownership of the Site, land and improvements, (n) accept all terms and
conditions of that certain Assignment (defined and described below), (iii) obtain commitments for
and close new financing, (iv) accept new equity investments by JRC Limited Partner and Jamboree
Limited Partner pursuant to that certain Belage Preservation Limited Partnership Second Amended &
Restated Limited Partnership Agreement dated as of May 31, 2022 ("LPA" or "Partnership
Agreement"), to own, undertake and complete the Substantial Rehabilitation (both Phase 1 Rehab
and Phase 2 Rehab), manage and maintain the Site and Project, and continued operation of affordable
housing at the Site for the Project as further set forth in this Agreement, the Authority Regulatory
Agreement, and related implementing instruments, including the reset of the 99-year Affordability
Period.
H. As a part of the financing for new construction of the Original Project the Authority
issued those certain Variable Rate Demand Multifamily Housing Revenue Bonds
(Bel'Age Apartments Project), 1990 Series A ("1990 Bonds").
I. In connection with and as a requirement for the Authority's issuance of the
1990 Bonds, the then Owner (defined therein), Authority (as Issuer), and Trustee (defined therein)
entered into that certain Regulatory Agreement and Declaration of Restrictive Covenants
("1990 Bond Regulatory Agreement") dated July 1, 1990 and recorded in the Official Records as
Instrument No. 90-375768 on July 15, 1990.
J. The Qualified Project Period of the 1990 Bond Regulatory Agreement expired on or
about July 15, 2020.
K. The 1990 Bonds were refunded and refinanced by those certain Anaheim Housing
Authority Multifamily Housing Revenue Bonds (Bel Age Manor Apartments Project), Series 2008A
("2008 Bonds"), the proceeds of which were loaned to the Developer, as Borrower, to finance the
acquisition and rehabilitation of the Original Project for the public purpose of providing decent, safe
and sanitary housing for families and individuals of low and very low income.
L. In connection with and as a requirement for the Authority's issuance of the
2008 Bonds, the Authority, Developer (as then owner and successor -in -interest to the
Original Developer) and Trustee (defined therein) entered into that certain Regulatory Agreement
and Declaration of Restrictive Covenants dated as of February 1, 2008 and recorded in the
Official Records as Instrument No. 2008-000071739 on February 15, 2008 ("2008 Bond Regulatory
Agreement").
2
4893-1713-7678v9/022620-0095
M. The 2008 Bond Regulatory Agreement remains in full force and effect and the term
of the Qualified Project Period continues for the fifty-five (55)-year period defined and described
therein.
N. The 2008 Bond Regulatory Agreement was amended by that certain First Amendment
to Regulatory Agreement and Declaration of Restrictive Covenants dated as of February 1, 2008 and
recorded in the Official Records as Instrument No. 2008-000071742 ("First Amendment to 2008
Bond Regulatory Agreement"). Together, the 2008 Bond Regulatory Agreement and
First Amendment to 2008 Bond Regulatory Agreement are referred to herein as the "2008 Bond
Regulatory Agreement" and such instruments remain in full force and effect.
O. The Site, land and Improvements, is also subject to that certain Regulatory
Agreement dated as of July 7, 2008 entered into between the California Tax Credit Allocation
Committee ("TCAC"), established under HSC Section 50199.8, and Belage Preservation Limited
Partnership, as "Owner" ("Tax Credit Regulatory Agreement"). The Tax Credit Regulatory
Agreement is recorded in the Official Records as Instrument No. 2021-000760297 and remains in
full force and effect and the Compliance Period (defined therein) is thirty years as more fully set
forth therein including without limitation Appendix A thereto.
P. Also, in connection with the issuance of the 2008 Bonds, the Authority and
Developer (as then owner and successor -in -interest to the Original Developer) entered into a certain
Affordable Housing Agreement dated as of February 1, 2008 and recorded in the Official Records as
Instrument No. 2008-000071745 on February 15, 2008 ("2008 Agreement").
Q. The 2008 Agreement was entered into in connection with and as a part of the
refinancing of the 1990 Bonds and issuance of the 2008 Bonds. The proceeds of the 2008 Bonds
were expended by Developer to refund all of the outstanding 1990 Bonds and to finance Developer's
acquisition and rehabilitation of the Original Project.
R. Section 6 of the 2008 Agreement defined the "Term" thereof as "ninety-nine (99)
years, commencing upon recordation of this [2008] Agreement", that is until February 15, 2107.
S. The 2008 Agreement restricted and covenanted 178 units (of the total 180 units) as
affordable housing for Very Low Income and Low Income Senior Citizen tenant households for a 99-
year Term; and, by this Agreement that Term (herein "Affordability Period") is reset for 99 years
(i.e., until May 31, 2121) as set forth herein and pursuant to that certain Authority Regulatory
Agreement, Attachment No. 5 as fully incorporated by this reference.
T. Prior to or concurrently with the Closing of Acquisition, the 2008 Bonds shall be or
shall have been redeemed and repaid in full ("2008 Bond Redemption"); provided however, the
1988 Agreement, 2008 Bond Regulatory Agreement, and 2008 Tax Credit Regulatory Agreement
shall and do remain in full force and effect pursuant to their terms, respectively, for the period of the
CUP as to the 1988 Agreement, for the Qualified Project Period as to the 2008 Bond Regulatory
Agreement, and for the Compliance Period as to the 2008 Tax Credit Regulatory Agreement pursuant
to the terms thereof.
U. Pursuant to the 2008 Bond Regulatory Agreement, " [i]n the event that the
[2008] Bonds are redeemed in part or in full prior to the end of the term of this [2008] Regulatory
Agreement, the Issuer Fee payable to the [Authority] for the remainder of the term of this
3
4893-1713-7678v9/022620-0095
[2008] Regulatory Agreement, at the option of the [Authority, as] Issuer, shall be paid by the
[Developer, as] Borrower at the time of the redemption of the [2008] Bonds and shall be a lump sum
amount equal to the present value (based on a discount rate equal to the prime rate identified by the
Wall Street Journal at the time of redemption) of the Issuer Fee for the number of years remaining
under the [2008] Regulatory Agreement." Developer informs Authority that seller/owner will be
paying such lump sum payment obligation, and thereby under this Agreement, Developer
acknowledges such payment obligation and shall cause remittance of such lump sum fee to the
Authority in connection with the 2008 Bond Redemption and as a Condition Precedent thereto and to
the Closing of Acquisition.
V. After the 2008 Bond Redemption and in connection with Developer's restructure of
the Developer entity, Developer will continue to be bound by the 1988 Agreement, 2008 Bond
Regulatory Agreement, and 2008 Tax Credit Regulatory Agreement. The form of the "Assignment
of Membership Interests to the New Partners" ("Assignment") is subject to the prior review and
approval by the Authority Executive Director and shall be a Condition Precedent to the Closing of
Acquisition.
W. Under this Agreement, in addition to two (2), Manager Units, 178 Housing Units in
the Project shall be for tenancy by Senior Citizen Households at the following unit size and income
restrictions:
(1) fifty-nine (59) one -bedroom units for occupancy by qualified Very Low
Income Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households;
and
(iii) one hundred sixteen (116) one -bedroom units for occupancy by qualified
Low Income Households.
Authority acknowledges that as of the Closing of Acquisition, a third unit is reserved and
occupied as a third manager unit, and Developer intends to, and shall, request the consent of TCAC
to remove the third manager unit, upon which said unit, will be subject to the affordability
restrictions set forth herein.
X. As of the Date of Agreement, a number of existing tenants in occupancy at the
Project hold "Portable Vouchers" under the United States Department of Housing and Urban
Development's ("HUD") Section 8 Housing Choice Vouchers Program, 24 C.F.R. part 882 (Rental
Certificate Program), rental vouchers under 24 C.F.R. part 887 (Rental Voucher Program) as such
now exist and as may hereafter be amended, or other tenant -based rental assistance programs issued
or otherwise administered by the City or the Anaheim Housing Authority (together, "Anaheim") or
by another public housing authority under the Section 8 Laws (together, "HCV Program"). The
"Section 8 Laws" mean the Housing Choice Voucher Program, 42 U.S.C. 1437f and 3535(d), and the
implementing regulations therefor in the Code of Federal Regulations, Parts 982 and 983. In this
regard, nothing in this Assignment Agreement, expressly or impliedly, amends, modifies or
otherwise affects Anaheim's administration of, exercise of discretion in connection with, or
otherwise associated with the HCV Program.
4
4893-1713-7678v9/022620-0095
Y. As of the Date of Agreement, the Developer and Authority are parties to that certain
Housing Assistance Payment contract dated as of July 1, 2008 (`Existing HAP Contract") under
which the Authority has provided ninety (90) project -based vouchers ("PBVs") to the Project in
connection with and as part of the Authority's financial assistance to the Project in 2008.
Z. By this Agreement and expressly subject to the Conditions Precedent to Acquisition,
Authority desires to state its intention to enter into the `Existing HAP Contract Second Extension",
which will extend the term of the Existing HAP Contract by fifteen (15) years with such extension to
commence concurrent with date of the Closing of Acquisition and to end and expire on the
15th anniversary of such date, i.e., May 30, 2037. Under the Existing HAP Contract Second
Extension, the Authority will continue to provide ninety (90) PBVs to the Project (herein,
"Authority PVB Assistance"). The Authority has entered into this Agreement in material reliance on
the information, supporting documentation about the qualifications of Developer to buy, own,
operate, manage and maintain the Site and Project, and in material reliance on Developer covenant to
undertake and timely complete the Substantial Rehabilitation of the Site, land and Improvements,
that comprise the Project.
AA. While the Authority is providing the Existing HAP Contract Second Extension,
Developer acknowledges and agrees that in all events and circumstances, Anaheim has and reserves
all rights and discretion in connection with the administration of the HCV Program and each and any
housing assistance payment contract, including the Existing HAP Contract and Existing HAP
Contract Second Extension with the Anaheim Housing Authority for and related to tenants holding
HCV Program portable vouchers ("Portable Vouchers") and the PBVs. In furtherance thereof,
Anaheim intentionally and expressly reserves all discretion in its administration of and duties under
the HCV Program, including without limitation, the "payment standards" (24 C.F.R. 982.4),
with respect to the Portable Vouchers conducting "rent reasonableness" study(ies), and with respect
to both the portable vouchers and the PBV's determination of fair market rent (" FMR") to ensure that
rents charged by owners to HCV Program participants are reasonable (24 C.F.R. §982.507(b)).
(See: https://www.hud.gov/program_offices/public_indian housing/programs/hcv/guidebook;
HUD HCV guidebook.)
BB. Part of the material consideration for the Authority's agreement to provide the
Existing HAP Contract Second Extension is Developer's covenant to plan, design, construct and
complete the Substantial Rehabilitation (at an aggregate cost of not less than Nine Million Dollars
($9,000,000)), and to own, operate, manage and maintain the Site and Project for the reset 99-year
Affordability Period.
CC. Under this Agreement, Developer and Authority desire to set forth the amended and
restated terms and conditions for Developer's acquisition, financing, equity investments,
Substantial Rehabilitation, operation, maintenance and management of the Bel'Age Senior
Apartments from and after the Closing of Acquisition ("Project").
DD. The Substantial Rehabilitation and operation of the Project shall conform to, and shall
continue to conform to, the requirements of the federal Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970 ("URA"), as amended, the implementing regulations of
Handbook 1378 of the Department of Housing and Urban Development ("HUD"), the California
Relocation Assistance Law, Government Code Section 7260, et seq. (Law), and the Relocation
Assistance and Real Property Acquisition Guidelines adopted by the Department of Housing and
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Community Development and set forth at Title 25, California Code of Regulations Section 6000,
et seq. (Guidelines) (collectively, the "Relocation Laws").
EE. Authority (and City) have determined that this Agreement, including the
Existing HAP Contract Second Extension and the Substantial Rehabilitation described herein, is/are
not a "project" under the provisions of (a) the California Environmental Quality Act, Public
Resources Code Section 21000, et seq., and the Guidelines for Implementation of the California
Environmental Quality Act set forth at Title 14 California Code of Regulations, Section 15000,
et seq. (together, "CEQA"), and (b) the National Environmental Policy Act, 42 U.S.C. 4321, et seq.
("NEPA"); further, the Project described in this Agreement is within the class of projects described
as affordable housing development that are categorically exempt pursuant to Section 21159.23 of the
California Public Resources Code and Section 15332 of the Guidelines and the Existing HAP
Contract Second Extension is not a new project subject to NEPA review and determination.
FF. The Project is intended to implement Authority's goals and objectives under the
HAL, HCV, and under the City's Housing Element of the General Plan, and in furtherance of the
Authority (and City)'s goals and objectives to provide in the community decent, safe and sanitary
affordable housing and to increase, improve and preserve housing available at affordable housing
cost for income -eligible households, in particular Senior Citizen Very Low and Low Income
Households.
GG. The Project is vital to and in the best interest of the Authority, the City, and the
health, safety and welfare of its residents and the community overall, and is in accordance with the
public purposes of applicable state and local laws and requirements.
HH. Capitalized terms used in this Agreement are defined in these Recitals and in
Section 1., et seq.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Defined Terms. The defined terms set forth in this Section 1.1 shall be used to
interpret this Agreement and all attachments hereto except to the extent such terms are otherwise
defined in the attachments hereto.
"Affiliate" shall mean any person or entity directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with Developer, which shall
include each of the constituent partners or members of Developer's limited partnership. The term
"control," as used in the immediately preceding sentence, means, with respect to a person that is a
corporation, the right to exercise, directly or indirectly, at least 50% of the voting rights attributable
to the shares of the controlled corporation, and, with respect to a person that is not a corporation, the
possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of the controlled person.
"Affordability Period" shall mean the ninety-nine (99)-year duration of the affordable
housing and operational covenants, conditions, restrictions, and requirements as set forth in this
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Agreement and Authority Regulatory Agreement commencing on the date of the Closing of
Acquisition and ending on the 99th anniversary of that date.
"Affordable Rent' shall mean the monthly housing cost (excluding any supplemental rental
assistance from the State of California, the federal government or any other public agency) not in
excess of the amount that may be charged by Developer to each and all tenant household(s) in
conformity with and not to exceed HSC Sections 50052.5 and 50053 and applicable implementing
regulations in the Cal Code Regs, which is the amount specified herein for the corresponding income
category of each household qualifying as Very Low Income and Low Income. In furtherance hereof.
(i) for Very Low Income Households, Affordable Rent is thirty percent (30%) of
fifty percent (50%) of the AMI for Orange County, adjusted for household size, divided by twelve
(12), for use and occupancy of a Housing Unit and facilities associated therewith, and reduced by an
allowance for utilities for an adequate level of service in an amount determined by the Housing
Authority pursuant to HSC Section 50053 and the Cal Code Regs; and
(ii) for Low Income Households, thirty percent (30%) of sixty percent (60%) of the
AMI for Orange County, adjusted for household size, divided by twelve (12), for use and occupancy
of a Housing Unit and facilities associated therewith, and reduced by an allowance for utilities for an
adequate level of service in an amount determined by the Housing Authority pursuant to
HSC Section 50053 and the Cal Code Regs.
Pursuant to HSC Section 50052.5, for the studio Affordable Units, the Affordable Rent
calculation shall assume a household size of one (1) person. For the one (1) bedroom Affordable
Units, the Affordable Rent calculation shall assume a household size of two (2) persons.
"Agreement" and "AHA" shall mean this Amended and Restated Affordable Housing
Agreement (Bel'Age Senior Apartments), including all attachments hereto, between Authority and
Developer.
"Annual Financial Statement" shall mean the certified financial statement of Developer for
the Project using generally accepted accounting principles ("GAAP"), as separately accounted for
this Project prepared at Developer's expense, by an independent certified public accountant
reasonably acceptable to Authority, as well as the Section 8 Report that shall be submitted annually
during the term of the Existing HAP Contract Second Extension. Once every three (3) years or
sooner as and when requested by Authority and/or Executive Director, along with and as a part of the
Annual Financial Statement, Section 8 Report, Developer, upon request by the Authority, shall
submit true, legible, and complete copies of the source documentation supporting the Annual
Financial Statement and Section 8 Report.
"Area Median Income" and "AMI" shall mean the area median household income set forth
for each county in California (and for this Agreement for Orange County), which are based on
median income limits promulgated annually by State HCD pursuant to HSC Sections 50052.5 and
50053.
"Audit" is defined and Authority's rights to conduct audit(s) are set forth in Section 4.15.1
herein.
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"Authority" shall mean the Anaheim Housing Authority, a public body, corporate and
politic, exercising governmental functions and powers and organized and existing under the
California Housing Authorities Law, Part 2 of Division 24, Section 34200, et seq. of the Health and
Safety Code.
"Basic Concept Drawings" shall mean the plans and drawings to be submitted and approved
by Authority, as set forth in Section 3.2.1 hereof.
"Best Knowledge" shall mean the actual knowledge or constructive knowledge of
Brandon J. Kearse, Managing Director Acquisition -Rehabilitation, Jonathan Rose Companies, and all
documents and materials in the possession of lead staff that negotiated this Agreement on behalf of
the Developer, and shall not impose a duty of investigation, except as to documents of record or
actually provided to such party or its employees or agents, whether actually known or not.
"Cal Code Regs" shall mean the California Code of Regulations, which is the official
compilation and publication of the regulations adopted, amended or repealed by state agencies
pursuant to the Administrative Procedure Act, and which properly adopted regulations that have been
filed with the California Secretary of State have the force of law.
(See: https://oal.ca.gov/publications/ccr/.)
"Capital Replacement Reserve" shall mean a separate reserve fund account to be maintained
by Developer separately for the Project. As of the Closing of Acquisition the Developer shall have
received from the seller all amounts in its existing Capital Replacement Reserve account, which as of
the Date of Agreement is approximately $545,635. While Authority acknowledges that Developer
intends to expend such amount as a part of the costs to be incurred to undertake and complete the
Substantial Rehabilitation, nonetheless Developer agrees to maintain a Capital Replacement Reserve
account with a deposit in the amount equal to One Thousand Dollars ($1000) per unit (180 x $1000 =
$180,000 to be used as the primary resource to fund capital improvements and replacement
improvements for the Project under generally accepted accounting principles and shall include
common areas. Developer also shall comply with the Capital Replacement Reserves requirement of
its Lender which is anticipated to be $250/unit per year initially. All Capital Replacement Reserves
shall be held in a single account controlled by Developer's Lender (if Developer's Lender from time
to time requires the same). The non -availability of funds in the Capital Replacement Reserve does
not in any manner relieve or lessen Developer's obligation to undertake any and all necessary capital
repairs and improvements and to continue to maintain the Project in the manner prescribed herein.
Upon written request of Authority, but not more than once per year, Developer, at its expense, shall
submit to Authority Executive Director an accounting for the Capital Replacement Reserve for the
Project. Capital repairs to and replacement of improvements shall include only those items with a
long useful life, including without limitation the following: carpet and drape replacement; appliance
replacement; exterior painting, including exterior trim; hot water heater replacement; plumbing
fixtures replacement, including tubs and showers, toilets, lavatories, sinks, faucets; air conditioning
and heating replacement; asphalt repair and replacement, and seal coating; roofing repair and
replacement; landscape tree replacement; irrigation pipe and controls replacement; sewer line
replacement; water line replacement; gas line pipe replacement; lighting fixture replacement; elevator
replacement and upgrade work; miscellaneous motors and blowers; common area furniture and
planters replacement; and common area repainting. Commencing on the fifth (5th) anniversary of this
Agreement and continuing every fifth anniversary thereafter, Developer will cause a physical
inspection of the Property and cause to be prepared a project capital needs assessment (each, a
"PCNA") to be conducted by a qualified third parry to determine whether the amounts on deposit in
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the Capital Replacement Reserve account and the amounts of the annual deposits required by the
Lender are sufficient to fund the costs of the capital repairs and replacements anticipated to occur in
the 5-year period being analyzed. The amount of the annual deposits required above may be adjusted
to reasonably reflect the conclusions of the PCNA as a material factor in the Executive Director's
evaluation and determination thereof. Developer shall provide to Authority a complete and true copy
of each PCNA and supporting documents for review and Executive Director reserves all rights to
reasonably evaluate the cumulative amount on deposit in the Capital Replacement Reserve account
for the Project and exercise her or his reasonable discretion. Each PCNA is a material factor in the
determination if the Lender recommendation(s) align with maintaining balance on deposit in the
Capital Replacement Reserve account is adequate to provide for necessary capital repairs and
improvement to the Site and the Project.
"City" shall mean the City of Anaheim, a California municipal corporation and charter city.
The City is not a party to this Agreement and shall have no obligations hereunder; provided,
however, City is an intended third -parry beneficiary of the covenants and restrictions, as well as the
enforcement rights (without any obligation), set forth in this Agreement.
"Closing" and "Closing of Acquisition" shall mean the date of the close of Escrow for the
New Partners' acquisition of all of the ownership interests in the Site, land and Improvement, and its
closing of the financing therefor along with evidence of adequate funding to undertake and complete
the Substantial Rehabilitation, both the initial Phase 1 Rehab that does not Development Plans (as
defined) and Phase 2 Rehab that does require Developer to undertake and complete Development
Plan, pursuant to this Agreement.
"Completion Guaranty" is defined in Section 2. 1. 1 (a)(vi).
"Conditions Precedent to Closing of Acquisition" shall mean the conditions precedent to the
Closing of Acquisition and thereby the Authority's obligation to enter into the Existing HAP
Contract Second Extension as set forth in Section 2.1.1
"Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab" shall mean the
conditions precedent to the Developer's commencement of construction of the Substantial
Rehabilitation Phase 2 Rehab as set forth in Section 2.1.2.
"Construction Contract" shall mean each and every contract between Developer and the
General Contractor for the completion of construction of any portion of the Substantial Rehabilitation
Phase 2 Rehab of the Bel'Age Apartments Project, including construction and completion of any on -
site or off -site improvements included in the Scope of Substantial Rehabilitation Phase 2 Rehab and
the Development Plans therefor approved by the City and Authority. The Construction Contract
between Developer and the General Contractor for the Substantial Rehabilitation Phase 2 Rehab
("CG Contract") shall be for a fixed fee or guaranteed maximum price to complete all work to be
performed or caused to be performed by the General Contractor under such Construction Contract.
The GC Contract shall be reviewed and reasonably approved (or disapproved) by Authority
Executive Director. Each Construction Contract, as well as all subcontracts, shall include reference
to this Agreement, the insurance and indemnity provisions herein, and all applicable federal
regulations and laws based on the final federal funding sources, if any, to which the General
Contractor (and Subcontractors) must comply in undertaking the construction and completion of the
Substantial Rehabilitation Phase 2 Rehab of the Bel'Age Apartments Project.
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"Construction Drawings" shall mean the construction drawings and plans and specifications
for the Substantial Rehabilitation Phase 2 Rehab to be submitted and approved by Authority for the
Project, as set forth in Section 3.2.2 hereof.
"County" shall mean the County of Orange, California.
"CPI" shall mean the United States Department of Labor, Bureau of Labor Statistics,
Consumer Price Index for Urban Wage Earners and Clerical Workers, Subgroup "All Items," for the
Los Angeles -Costa Mesa -Riverside area, [1982 — 84 = 100], or successor or equivalent index in case
such index is no longer published. CPI adjustments under this Agreement shall commence not
earlier than one year following the issuance of a certificate of substantial completion of the
Substantial Rehabilitation by Developer's architect.
"Date of Agreement" or "Effective Date" shall mean the date the approval of this Agreement
by the Anaheim Housing Authority, reserving all discretion to the board to review, consider and
approve (or disapprove) this Agreement.
"Debt Service" shall mean payments (including any required reserves) made in a calendar
year pursuant to the Primary Loan obtained for the New Partners' acquisition, and thereafter
undertaking and completion of the Substantial Rehabilitation, and ongoing operation of the Project
pursuant to Section 3.11.
"Default" or "Event of Default" shall mean the failure of a party to perform any action or
comply with any covenant required by this Agreement, including the attachments hereto, within the
time periods provided herein following notice and opportunity to cure, as set forth herein or therein.
"Developer" shall mean Belage Preservation Limited Partnership, a California limited
partnership and its permitted successors and assigns. The Administrative General Partner and
JRC Limited Partner is RAHF V Belage, LLC, the Managing General Partner is JHC-Belage LP LLC
and the Jamboree Limited Partner is JHC-Belage GP LLC.
"Developer Certificate of Continuing Program Compliance" means the form of annual
certification of the affordable housing requirements for operation of the Project, substantially in the
form of Attachment No. 16 attached hereto.
"Development Impact Fees" shall mean amounts, if any, required to be paid to or through
the City prior to and as a condition to issuance of building permits to undertake and complete the
Substantial Rehabilitation, both and whether Phase 1 Rehab and Phase 2 Rehab, including, without
limitation, if applicable, any of the following fees, sanitation district, traffic signal assessment,
schools, public works/drainage, public works/sewer connection, and/or public works/sewer
assessment.
"Development Plans" shall mean together the Basic Concept Drawings and Construction
Drawings for the Substantial Rehabilitation Phase 2 Rehab to be submitted to City (and Authority
staff) for review and approval pursuant to Section 3.2.
"Environmental Claims" shall mean (i) any judicial or administrative enforcement actions,
proceedings, claims, orders (including consent orders and decrees), directives, notices (including
notices of inspection, notices of abatement, notices of non-compliance or violation and notices to
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comply), requests for information or investigation instituted or threatened by any governmental
authority pursuant to any Governmental Requirements, or (n) any suits, arbitrations, legal
proceedings, actions or claims instituted, made or threatened that relate, in the case of either
(i) or (ii), to any damage, contribution, cost recovery, compensation, loss or injury resulting from the
release or threatened release (whether sudden or non -sudden or accidental or non -accidental) of, or
exposure to, any Hazardous Materials, or the violation or alleged violation of any Governmental
Requirements related to Hazardous Materials, or the generation, manufacture, use, storage,
transportation, treatment, or disposal of Hazardous Materials.
"Environmental Laws" shall mean all laws, ordinances and regulations relating to
Hazardous Materials, including, without limitation: the Clean Air Act, as amended, 42 U.S.C.
Section 7401, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251
et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901,
et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980,
as amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"),
42 U.S.C. Section 9601, et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C.
Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651,
the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Section 11001
et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe
Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; all comparable state and local laws,
laws of other jurisdictions or orders and regulations; and all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the State, the County, the City, or any other
political subdivision in which the Site is located, and of any other political subdivision, agency or
instrumentality exercising jurisdiction over Authority, Developer, or the Site.
"Environmental Reports" shall mean all existing documents, surveys, studies, and reports
relating to the environmental condition of the Site; the Environmental Reports obtained by the
Developer (or received by Developer from the prior partners in Developer entity) related to the Site
are listed in Attachment No. 9.
"Escrow" shall have the meaning set forth in Section 2.3. Prior to the Date of Agreement,
the Escrow for the Closing of Acquisition was set up with Fidelity National Title.
"Escrow Agent" shall mean Fidelity National Title and as further described in Section 2.3.
"Executive Director" shall mean and include the Director of Housing and Community
Development for the City of Anaheim and the Executive Director of the Anaheim Housing
Authority, which positions as of the Date of Agreement are held by Grace Ruiz-Stepter. Whenever
the consent, approval or other action of the "Executive Director" is required herein, such consent,
approval or action may be provided by the Executive Director or her/his authorized designee(s);
nonetheless, the Executive Director in her/his sole discretion may submit such request to the
Authority Board for action to approve or disapprove such request.
"Existing HAP Contract" shall mean that certain Housing Assistance Payment Contract
originally entered into and dated as of July 1, 2008 with an initial term of ten (10) years that ended as
of June 30, 2018 under which the Authority provided to the Developer project -based Section 8
payments ("PBVs") for ninety (90) apartment units in the Project, plus one prior extension of five (5)
years for a term commencing July 1, 2018 and ending on June 30, 2023. Notwithstanding such end
date, the Existing HAP Contract Second Extension will commence on the date concurrent with the
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Closing of Acquisition (May 31, 2022) and will end on the 15th anniversary (May 30, 2037) thereof
all pursuant and subject to the terms and conditions of such Existing HAP Contract as amended by
the Existing HAP Contract Second Extension.
"Existing HAP Contract Second Extension" shall mean that certain second (2"d) extension
and modification agreement of the Existing HAP Contract to be entered into between Authority and
Developer under the Section 8 Laws and HOTMA for the Site and Project for a fifteen (15)-year
extension commencing on the date of Closing of Acquisition (May 31, 2022) and ending on the
fifteenth (15th) anniversary thereof (May 30, 2037), which extension, subject to the Developer's
continued compliance hereof and thereof shall comprise the "Authority PBV Assistance" and there
will continue to be ninety (90) PBVs at the Site and Project, all subject to the Section 8 Laws,
HOTMA, and other applicable HUD requirements. On and after May 30, 2037, and thereby during
the remaining term of the Affordability Period, Developer acknowledges and agrees that under this
Agreement, the Authority reserves sole discretion to provide (or not provide) a third (3rd) extension
to the Existing HAP Contract Second Extension, and in the event of a third (3rd) extension, if granted,
the term thereof is subject to HOTMA that as of the Date of Agreement does not allow the
cumulative number of years of a HAP contract to exceed forty (40) cumulative years.
"Final Budget" shall mean the final budget for the acquisition, Substantial Rehabilitation
Phase 2 Rehab, construction through completion of the Project as approved by Authority pursuant to
Section 2.1.2(a)(11) hereof.
"General Contractor" shall mean the general contractor to be hired by Developer to engage
and supervise the subcontractors in the performance and completion of the construction of the
Substantial Rehabilitation Phase 2 Rehab of the Bel'Age Senior Apartments Project and all other on -
site and off -site, if any, improvements required to be constructed in connection with the Project, all in
accordance with the Scope of Substantial Rehabilitation Phase 2 Rehab and approved Development
Plans by the City and Authority. The General Contractor shall be reasonably acceptable to and
approved by Authority Executive Director, in her/his reasonable discretion; provided, that, Rose
Community Builders, LLC and Quality Development and Construction, Inc. each is hereby pre -
approved to act as the General Contractor to undertake and complete the Substantial Rehabilitation of
the Project. The parties acknowledge that the General Contractor may not be performing all of the
actual construction work for any portion of the Project, but instead may hire Subcontractors.
"Governmental Requirements" shall mean all laws, ordinances, statutes, codes, rules,
regulations, orders, and decrees of the United States, the State of California, the County, the City, or
any other political subdivision in which the Site is located, and of any other political subdivision,
agency, or instrumentality exercising jurisdiction over Developer or the Site, as may be amended
from time to time.
"Guarantor" shall mean Rose Affordable Housing Preservation Fund V, L.P., pursuant to a
Completion Guaranty, to be executed by Guarantor, substantially in the form of Attachment No. 6
attached and incorporated hereto.
"HAL" shall mean the California Housing Authorities Law, HSC Section 34200, et seq.
"Hazardous Material" or "Hazardous Materials" shall mean and include any substance,
material, or waste which is or becomes regulated by any local governmental authority, including the
County, Orange County Health Care Agency, the Regional Water Quality Control Board, the State of
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California, or the United States Government, including, but not limited to, any material or substance
which is: (i) defined as a "hazardous waste," "acutely hazardous waste," "restricted hazardous
waste," or "extremely hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant
to HSC Section 25140, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a
"hazardous substance" under HSC Section 25316, Division 20, Chapter 6.8 (Carpenter Presley
Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under HSC Section 25501, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under
HSC Section 25281, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances);
(v) petroleum; (vi) asbestos and/or asbestos containing materials; (vii) lead based paint or any lead
based or lead products; (viii) polychlorinated biphenyls, (ix) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317); (x) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, etseq. (42 U.S.C. Section 6903); (xi) Methyl tertiary Butyl Ether;
(xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, etseq.
(42 U.S.C. Section 9601); (xiii) any other substance, whether in the form of a solid, liquid, gas or any
other form whatsoever, which by any Governmental Requirements either requires special handling in
its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as
"hazardous" or harmful to the environment; and/or (xiv) lead based paint pursuant to and defined in
the Lead Based Paint Poisoning Prevention Act, Title X of the 1992 Housing and Community
Development Act, 42 U.S.C. §4800, etseq., specifically §§4821-4846, and the implementing
regulations thereto. Notwithstanding the foregoing, "Hazardous Materials" shall not include such
products in quantities as are customarily used in the construction, maintenance, rehabilitation,
management, operation and residence of residential developments or associated buildings and
grounds, or typically used in residential activities in a manner typical of other comparable residential
developments, or substances commonly ingested by a significant population living within , including
without limitation alcohol, aspirin, tobacco and saccharine.
"HCV" means the HUD Housing Choice Voucher Program and is further defined and
described in Recital X.
"HOTMA "means the Housing Opportunity through Modernization Act of 2016, Public Law
114-201, enacted July 29, 2016, and HUD implementing regulations and notices thereunder.
"Housing Unit" and "Housing Units" shall mean, individually and collectively, each and all
of the 178 apartments that shall be used and maintained by Developer as affordable Senior Citizen
rental housing for occupancy by Very Low Income and Low Income tenants at Affordable Rents for
the Affordability Period. There are 180 total apartment units in the Project, inclusive of the two (2)
Manager Units; and all units on the Site shall be and remain owned, operated, managed, and
maintained by Developer. In addition to two (2), Manager Units, 178 Housing Units shall be for
tenancy by Senior Citizen Households as follows:
(1) fifty-nine (59) one -bedroom units for occupancy by qualified Very Low
Income Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households;
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(iv) one hundred sixteen (116) one -bedroom units for occupancy by qualified
Low Income Households; and
(v) Authority acknowledges that as of the Closing of Acquisition, a third unit is
reserved and occupied as a third manager unit, and Developer intends to request the consent
of TCAC to remove the third manager unit, upon which said unit, will be subject to the
affordability restrictions set forth herein.
"HSC' shall mean the California Health and Safety Code.
"HUD" shall mean the United States Department of Housing and Urban Development.
"Improvements" shall mean the Bel'Age Apartments 180-unit Senior Citizen apartment
complex, as well as the common areas, amenities, appurtenances, and all other improvements,
including the building fixtures thereon, now located on the Site, if any, or hereafter constructed on
the Site as part of the Project; all landscaping, fencing, walls, paving, curbing, drainage facilities,
lighting, parking areas, roadways and similar site improvements now located or hereafter placed
upon the Site, which are to be substantially rehabilitated, constructed and completed on the Site as
part of the Project under this Agreement and as approved by the Executive Director and City.
"Indemnitees" shall mean collectively all governmental entities formed and/or controlled by
the City of Anaheim, including: the Anaheim Housing Authority, the City of Anaheim, the
Successor Agency to the Anaheim Redevelopment Agency ("Successor Agency"), any other
governmental entity formed and/or controlled by the City of Anaheim, and all of their elected and
appointed officials, officers, employees, attorneys, agents, volunteers and representatives.
"Intercreditor Instrument" means one or more estoppel or intercreditor agreement(s) or
instrument(s), if any, as may be requested by a Lender, for approval by the Executive Director
(and legal counsel and special counsel), provided however the terms thereof shall in no event require
or otherwise include subordination or modification of the Authority Regulatory Agreement. For each
Intercreditor Instrument, and any reaffirmation, amendment or modification thereof, the form of such
shall be delivered by the requesting parry to Authority for review and action, including complete,
legible copy(ies) of supporting documentation, if any, along with Word versions of the requested
form(s) thereof, and each form thereof, shall be subject to the review and approval of the Authority
through the Executive Director and legal counsel in her/his/their sole, reasonable discretion. In no
event during the Affordability Period shall any Intercreditor Instrument cause subordination of the
Authority Regulatory Agreement.
"Legal Description" shall mean the legal description for the properties that comprise the
Site, which is attached hereto as Attachment No. 1 and incorporated herein.
"Lender" shall mean each of the financial lending institutions or persons or entities that
provide a Primary Loan (or Primary Loans), including acquisition loan(s), construction loan(s) or
permanent loan(s) for the acquisition, then Substantial Rehabilitation Phase 1 Rehab and then
Substantial Rehabilitation Phase 2 Rehab, and operation of the Project as set forth in Section 3.11
hereof. The initial Lender is Capital One, National Association, a national banking association.
Lender shall not include any provider of funds for "green" or sustainable improvements to the Site or
Improvements or for the provision of social services to tenant; provided however, if such source of
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green funding requires a lien instrument or other encumbrance against the Property such shall be and
remain in junior lien position to the Authority Regulatory Agreement and the Primary Loan.
"Low Income," "Lower Income," "Low Income Households" and/or "Lower Income
Households" means a household whose income does not exceed sixty percent (60%) of area median
income for Orange County, adjusted for applicable household size, as computed in accordance with
HSC Section 50079 and the regulations promulgated pursuant thereto or incorporated therein,
including, without limitation, all regulations promulgated pursuant to HSC Section 50093, or any
successor statute.
"Marketing and Tenant Selection Plan" shall mean the marketing and tenant selection plan
to be prepared by Developer and submitted to Authority for its review and approval as a Condition
Precedent to the Substantial Rehabilitation Phase 2 Rehab, as further described in Section 4.4.1.
"Material Adverse Change" means any event the occurrence of which is reasonably likely to
have a material adverse effect on Developer's ability to fulfill its obligations under any Transaction
Document, including without limitation:
(a) a voluntary or involuntary bankruptcy of Developer (which is not dismissed
within ninety (90) days of institution);
(b) a court order placing Developer under receivership;
(c) a sale of all or substantially all of the assets held by Developer, except as
expressly permitted hereunder;
(d) any violation of Developer or other failure of Developer to comply at all
times with any applicable law, statute, ordinance, code, rule, regulation, judgment, order, ruling,
condition or other requirement of a statutory, regulatory, administrative, judicial or quasi-judicial
nature or any other legal or governmental requirement of whatever kind or nature related, which
violation is likely to have a material adverse effect on the ability of Developer to perform its duties
and obligations under any Transaction Document; and/or
(e) Developer incurs one or more liabilities, contingent or otherwise, or pending
or threatened litigation or any asserted or unasserted claim exists against Developer, which would
have a material adverse effect on its ability to perform its duties and obligations under any
Transaction Document.
"New Partners" is defined in Recital C.
"Notice" shall mean a notice in the form prescribed by Section 7.2 hereof.
"Official Records" shall mean the official land records of the County Recorder of the
County of Orange, State of California.
"Operating Reserve" shall mean the Operating Reserve for the Project, which shall be
funded by the Developer as an equity investment to the Project in an amount equal to One Hundred
Eighty Thousand Dollars ($180,000) ("Target Amount"); provided, a larger Operating Reserve may
be maintained if required by the Lender. The Operating Reserve shall thereafter be replenished from
Annual Project Revenue to maintain the Operating Reserve balance of the Target Amount.
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"Original Developer" is defined in Recital D.
"Original Project" is defined in Recital D.
"Outside Closing Date" means May 31, 2022.
"Partnership Agreement" or "TPA" shall mean that certain Belage Preservation Limited
Partnership, Second Amended & Restated Limited Partnership Agreement dated as of May 31, 2022,
which sets forth the terms of Developer's limited partnership, as such agreement may be amended
from time to time, so long as consistent with the requirements of this Agreement. Developer shall
provide copies of any amendments or modifications to the Partnership Agreement to the Authority
within fifteen (15) days following execution thereof.
"PBVs" means Section 8 project -based vouchers.
"Permitted Refinancing" shall mean a refinancing of the Primary Loan during the term of
the Existing HAP Contract Second Extension that: (a) will not result in an increase in the
outstanding principal amount owed, except to the extent necessary to pay (i) reasonable and
customary costs and expenses of the new Lender incurred in connection with the refinancing, (ii) to
the extent required by such new Lender, to complete required repairs or rehabilitation identified in a
then current PCNA and for which funds are not available from funds on account in the Capital
Replacement Reserve (and/or Operating Reserve, if any), (iii) the repayment of loan(s) made to
Developer by a general partner or limited partner for the Project pursuant to the LPA to the extent
loaned for needs of the Project and as reasonably approved by the Executive Director,
(iv) the repayment of capital contributions to the Project made by Developer pursuant to the LPA to
the extent contributed for needs of the Project and as reasonably approved by the Executive Director,
including the capital contributions made for acquisition and Substantial Rehabilitation as
contemplated herein, (v) a refinancing fee of not more than six percent (6%) of the amount of the
new Primary Loan (vi) the amount of any then unpaid Operating Expenses, (vii) required Reserve
Deposits to the Capital Replacement Reserve account (and Operating Reserve account, if any), and
(b) is made by a reputable lender on then prevailing market terms (including without limitation an
interest rate that does not exceed then prevailing market interest rates on similar refinancing loans for
affordable housing projects in Orange County, California), which prevailing terms are subject to the
reasonable review and approval of the Authority. Developer hereby agrees to provide not fewer than
thirty (30) calendar days' notice to Authority of the proposed terms of such refinancing and
Developer acknowledges and agrees that Authority shall have the right to review and approve the
terms of such refinancing as being consistent with this definition and this Agreement on then
prevailing market terms provided by a reputable lender, which approval will not be unreasonably
withheld, conditioned or delayed. For the sake of clarity, Authority's consent will not be required for
a new financing obtained for green or sustainable improvements to the Site or the Improvements or
for the provision of social services to tenants, provided that if such source of funding requires a lien
instrument or other encumbrance against the Property such shall be and remain in junior lien position
to the Authority Regulatory Agreement and the Primary Loan. In all events, Developer shall provide
Authority the prior notice, and shall obtain the prior approval of, the Authority Executive Director in
the event Developer desires undertake Syndication and/or Resyndication of the Project pursuant to
the definition of Syndication and Resyndication herein.
"Permitted Refinancing Period' means the period commencing on the Closing of
Acquisition and continuing during the effectiveness of the Existing HAP Contract Second Extension.
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"Phase I Rehab" means the initial work and improvements to the Bel'Age Senior
Apartments complex for which Developer represents do not require issuance of building permits and
are not part of the process of Developer preparing and obtaining approval of the Development Plans
for the Phase 2 Rehab and the building permits associated therewith. The narrative description and
specifications of the Phase 1 Rehab work is described in the Scope of Substantial Rehabilitation,
Attachment No. 3.
"Phase 2 Rehab" means the second phase of work and improvements to the Bel'Age Senior
Apartments complex that is required by the Authority and shall be undertaken by Developer in
connection with its preparation of and obtaining approval of the Development Plans and the building
permits associated with the Phase 2 Rehab. The narrative description and specifications of the
Phase 2 Rehab work is described in the Scope of Substantial Rehabilitation, Attachment No. 3.
"Preliminary Financing Plan" and "Financing Assumptions" shall mean the preliminary
budget for undertaking the Project, in particular the Substantial Rehabilitation in an amount not less
than Nine Million Dollars ($9,000,000.00), including an overall budget for the Project including all
sources and uses of funds, which is attached hereto as Attachment No. 10 and incorporated herein.
"Primary Loan" and "Primary Loans" shall mean the acquisition and construction financing
obtained by the New Partners for the acquisition of the Site and to fund a portion of the Substantial
Rehabilitation. As of the Date of Agreement, the Primary Loan will be issued by Capital One,
National Association; and, each subsequent reputable Lender of a Primary Loan shall be a reputable
lender other than an Affiliate of Developer. The Primary Loan, including, without limitation, in
connection with any Permitted Refinancing and permitted Primary Loans shall be the senior
monetary lien against the Site but in all events each Primary Loan (all monetary liens) shall be and
remain subordinate to the Authority Regulatory Agreement, the 1988 Agreement and, to the extent
set forth therein, the 2008 Bond Regulatory Agreement.
"Project" shall mean the overall project provided for under this Agreement, including
without limitation the New Partners' acquisition of the ownership interests in the Site (land and
Improvements), the Authority's provision of the Existing HAP Contract Second Extension, the
undertaking through completion of the Substantial Rehabilitation, both Phase 1 Rehab and Phase 2
Rehab, and the ownership, operation, management, maintenance of the 180-unit Senior Citizen
affordable housing project called for by this Agreement and the other Transaction Documents.
"Property Management Plan" shall mean the management plan required to be created by
Developer and submitted to Executive Director for approval, which approval shall not be
unreasonably withheld, which shall include a detailed plan and strategy for long term marketing
(consistent with the Marketing and Tenant Selection Plan), operation, maintenance, repair, and
security for the Project, inclusive of on -site Supportive Services to the Senior Citizen tenants, and the
method of selection of tenants, rules and regulations for tenants, operational policies, other rental
policies and procedures for the Project. In addition, the Property Management Plan shall describe the
operational standards for oversight of the residents at the Project, including the terms and conditions
to conduct welfare checks of residents who are known to Developer (and its onsite manager(s)) as
infirm, ill, and/or with special needs, and thereby in need of frequent health, safety and welfare
checks. The requirements for the Property Management Plan are more fully set forth in
Section 4.11.2, and such plan, when approved by the Executive Director shall be appended to this
Agreement as Attachment No. 13.
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"Property Manager" is defined in Section 4.11.1 and RCM is the initial Property Manager of
the Project approved by the Authority under this Agreement.
"RCM" means Rose Community Management, which entity is the property management
entity to assume property management of the Project as of the Closing of Acquisition and such entity
is approved as the initial Property Manager of the Project pursuant to this Agreement, and subject to
Section 4, et seq. herein.
"Regulatory Agreement" and "Authority Regulatory Agreement' shall mean the regulatory
agreement for the Project that shall be entered into between Authority and Developer concurrently
with the Closing of Acquisition and that shall be recorded as an encumbrance to the Site, which
instrument shall be substantially in the form of Attachment No. 5. The Regulatory Agreement shall
be recorded in the Official Records against the Site at the Closing of Acquisition as and shall be and
remain the senior, non -subordinate encumbrance, including senior to each and any Primary Loan and
any and all other monetary liens.
"Release of Construction Covenants" shall mean the document that shall evidence
Developer's satisfactory completion of the Substantial Rehabilitation Phase 2 Rehab, as set forth in
Section 3.5 hereof, substantially in the form of Attachment No. 8 hereto.
"Relocation" is defined in Section 4.6.
"Relocation Laws" is defined in Recital DD.
"Relocation Plan" shall mean the "Bel'Age Senior Apartments Project Relocation Plan"
dated as of March 2022 prepared by Overland, Pacific & Cutler, LLC for Developer in connection
with implementation of the Project. While the Developer represents and warrants to the Authority
that it anticipates no permanent relocation of the existing tenants at the Site, nonetheless there may be
temporary displacement of existing tenants for which each displaced tenant household will be
eligible for temporary relocation assistance and benefits as set forth in the Relocation Plan. Because
this Agreement is the initial step in the implementation of a public program or public project,
including the Authority PBV Assistance, a Relocation Plan has been prepared and was considered
and adopted by the City Council of the City of Anaheim all pursuant to the Relocation Laws.
Developer acknowledges and agrees the proper preparation, review and approval of the Relocation
Plan by the City Council in accordance with the Relocation Laws is Condition Precedent to the
Closing of Acquisition.
"Rent" means the total of monthly payments by the tenants (inclusive of any and all
payments attributable to Authority PBV Assistance, Portable Vouchers, other rental subsidies, or
other public subsidies by any local, state, or federal governmental agency) of a Housing Unit for use
and occupancy for the Housing Unit and facilities associated therewith, including the allowance for
utilities defined in Title 25 Code of Regs Section 6918.
"Request for Notice" or "Request for Notice of Default" shall mean the request for notice of
default pursuant to Civil Code Section 2924b to be recorded against the Site in connection with the
Escrow for Developer's acquisition of the Site substantially in the form attached hereto as
Attachment No. 7 and fully incorporated by this reference.
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"Reserve Deposits" shall mean any payments to the Capital Replacement Reserve account
and the Operating Reserve account as and when required pursuant to Sections 4.12 and 4.13.
"Schedule of Performance" shall mean the Schedule of Performance for undertaking
through completion of the Substantial Rehabilitation of the Project, both Phase 1 Rehab and Phase 2
Rehab, which is attached as Attachment No. 2 and fully incorporated herein.
"Scope of Substantial Rehabilitation" shall mean that certain Scope of Substantial
Rehabilitation attached hereto as Attachment No.3 and fully incorporated by this reference.
The Scope of Substantial Rehabilitation describes the scope, types, and quality of the repair,
improvements and other work that Developer shall cause to be undertaken and completed at the
Bel'Age Senior Apartments pursuant to the terms and conditions of this Agreement. The Scope of
Substantial Rehabilitation will be undertaken in two (2) phases: (i) the first phase includes critical
repairs and improvements that will commence promptly after the Closing of Acquisition, which
"Phase 1 Rehab" is described in Attachment No. 3, and (ii) the second phase includes continued
rehabilitation work and improvements as depicted in the final Development Plans, which "Phase 2
Rehab" is described in Attachment No. 3. The full Scope of Substantial Rehabilitation, both Phase 1
Rehab and Phase 2 Rehab, shall be undertaken and completed by Developer within the times set forth
in the Schedule of Performance, and all such work of rehabilitation and improvements shall be
completed whether or not the cumulative costs of the Substantial Rehabilitation therefor exceed the
minimum of Nine Million Dollars ($9,000,000).
"Section 8 Report" shall mean a report prepared by Developer each year during the term of
the Existing HAP Contract Second Extension in a form reasonably acceptable to Authority Executive
Director, that is submitted to the Authority for the Project. In the Section 8 Report, Developer shall
list and identify each and all of the Section 8 Housing Units, each unit assigned with a PBV and each
unit for which tenant uses his/her/their Portable Voucher. This report shall present all relevant data
and facts about each and all units at the Project designated as PBV units and Portable Voucher units,
including (i) names and ages of each household member by unit number/address, (ii) tenant
household income as certified annually, (iii) FMR approved by Authority (or if applicable other
public housing authority that issued a Portable Voucher), (iv) amount paid by tenant as his/her/their
30% of gross income toward monthly rent, (v) amount received from Authority (or other public
housing authority that issued a Portable Voucher) as the difference between such 30% of income and
the applicable FMR, (vi) supporting documentation for same, and subject to Authority's annual
review (vii) any other information and verifiable documentation reasonably requested by the
Authority. (As noted herein, a tenant with a Section 8 voucher may be required to pay more than
30% of household income toward rent if their household has one or more members who do not have
legal documentation status, then, the voucher is prorated and the tenant may or will pay more than
30% of household income toward rent; for example, a tenant household with two members, one of
whom does not have legal documentation status the voucher is prorated by 50%.) All reporting for
each annual Section 8 Report shall apply and be based on cash basis accounting.
"Section 8 PBV Program" and "Section 8 Laws" shall mean the Housing Choice Voucher
and Project -Based (PBV) Voucher Programs, 42 U.S.C. 1437f and 3535(d), and the implementing
regulations therefor in the Code of Federal Regulations, Parts 982 and 983.
"Section 8 PBV Units" means the ninety (90) Housing Units in the Project that will be
covered by the Existing HAP Contract Second Extension.
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"Section 8 Portable Vouchers" and "Portable Vouchers" shall mean each and all Section 8
tenant -based vouchers, certificates of family participation under the Section 8 Laws, in particular, 24
CFR part 882 (Rental Certificate Program), rental vouchers under 24 CFR part 887 (Rental Voucher
Program) as such now exist and as may hereafter be amended, or other tenant -based rental assistance
programs issued or otherwise administered by the Authority or by another public housing authority
under the Section 8 Laws.
"Senior" and "Senior Citizen" and "Senior Households" shall mean a household where at
least one (1) person in residence at a housing unit is fifty-five (55) years of age or older and who
resides, or intends to reside, in a housing unit as her or his primary residence on a permanent basis,
and any other person residing in the unit is a "qualified permanent resident" or a "permitted health
care resident" as provided in California Civil Code Section 51.3, et seq., or in the Federal Fair
Housing Act, 42 U.S.C. Section 3607, and any other applicable federal, state or local laws and
regulations governing the use and occupancy of senior housing developments, including the Bel'Age
Senior Apartments.
"State HCD" and "HCD" shall mean the State of California, Department of Housing and
Community Development.
"Site" shall have the meaning set forth in Recital D. After completion of the Substantial
Rehabilitation Phase 2 Rehab, all Improvements shall be deemed a part of the Site, whenever the
term "Site" is used in this Agreement it shall mean and include the land and all Improvements.
"Subcontractor" and "Subcontractors" shall mean, individually and collectively, one or
more subcontractors hired by Developer's General Contractor for the Project to perform and
complete, or to engage and supervise others to perform and complete, the construction and
Substantial Rehabilitation and all other onsite (and offsite, if any) improvements required to be
constructed in connection therewith, all of which shall be in accordance with the Scope of Substantial
Rehabilitation Phase 2 Rehab and the Development Plans.
"Substantial Rehabilitation" shall mean all work of improvement and rehabilitation required
to be completed by the Developer to the existing Bel'Age Senior Apartments development, both
Phase 1 Rehab and Phase 2 Rehab. The costs for the Substantial Rehabilitation are estimated at and
the budget therefor shall be for less than Nine Million Dollars ($9,000,000). To the extent there is
overlap between the Scope of Rehabilitation Phase 1 Rehab, which is not part of the process to
undertake and complete the Development Plans (as defined), and the Phase 2 Rehab that does require
Developer to undertake and complete Development Plans, the costs for completing the Scope of
Rehabilitation, as between Phase 1 Rehab and Phase 2 Rehab components, may overlap; nonetheless,
in connection with negotiation of the terms of the Existing HAP Second Extension and this
Agreement, Developer has represented, and this Agreement requires not less than $9,000,000 of costs
that comprise the Substantial Rehabilitation.
"Syndication" and/or "Resyndication" shall mean the application for and obtaining by
Developer or any successor or assign of Developer of an allocation of federal and state low income
housing tax credits for the Site and Project from TCAC and/or the application for and obtaining of an
allocation and award to issue multifamily housing revenue bonds by CDLAC. In all events, whether
Syndication or Resyndication, during the Affordability Period the Authority's prior written consent is
required and such decision to approve or disapprove remains in the sole, reasonable discretion of the
Authority. On behalf of the Authority, the Executive Director will consider various factors in her or
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his review of Developer's request to syndicate or resyndicate the Project in connection with her or
his approval (or disapproval) thereof, including without limitation (i) the supporting documentation
submitted by Developer with the request, including a project proforma, (ii) a financial analysis of
such proforma and related supporting documentation, and/or (iii) whether the Syndication or
Resyndication (A) is or will be in the best, reasonable interests of Authority (and City), (B) will
result in reduction of the income and rent standards, i.e., will the affordable housing covenants result
in housing units at income and rent levels more affordable than permitted hereunder, and/or
(C) will result in further rehabilitation, maintenance, and improvement of the Project. As noted in (i)
and (ii) above, the Authority's review will include an analysis by the Authority's economic and
housing consultant to evaluate, without limitation and as and if applicable to the request: supportable
debt, structure and terms for the issuance of bonds, market value of tax credits, other potential
funding source(s), investor equity, developer fee, deferred developer fee, other subordinate debt, and
the terms therefor. Developer agrees to cooperate with the Authority and its agents and provide
complete, truthful and timely supporting documentation in connection with conducting an analysis of
the requested Syndication or Resyndication.
"TCAC" shall mean the California Tax Credit Allocation Committee, the allocating agency
for Tax Credits in California.
"Termination Agreement" shall mean the instrument(s) terminating the 2008 Agreement
recorded against the Site related to the Original Project, in substantially the form attached hereto as
Attachment No. 4 and incorporated herein; provided however, the 1999 Agreement and CUP shall
continue to remain in full force and effect as to the Site and Project, and Developer in the
Assignment and by this Agreement acknowledges such fact.
"Third Party Costs" mean all costs reasonably incurred by Authority and City for any and all
out of pocket, third party costs, fees, and expenses incurred by Authority or City (but not in house
staff time) for attorneys, economic consultants, appraisers, engineers, affordable housing consultants,
escrow company fees, title company fees, and other consulting and/or professional services incurred
by Authority or City arising from and/or related in any respect to the implementation of this
Agreement during the following periods: (a) from April 22, 2021 to date of Closing of Acquisition,
(b) from the date of Closing of Acquisition to the date of commencement of construction of the Phase
2 Rehab, and (c) from the date of the commencement of the Phase 2 Rehab continuing through the
term of the Affordability Period (together, "Third Party Costs").
"Transaction Documents" shall mean this Amended and Restated Affordable Housing
Agreement (Bel'Age Senior Apartments), Authority Regulatory Agreement, Termination Agreement,
Completion Guaranty, Request for Notice and other documents and instruments implementing this
Agreement.
"Very Low Income" and "Very Low Income Household' mean a household whose income
does not exceed fifty percent (50%) of area median income for Orange County, adjusted for
applicable household size, as computed in accordance with HSC Section 50105 and the regulations
promulgated pursuant thereto or incorporated therein, including, without limitation, all regulations
promulgated pursuant to HSC Section 50093, or any successor statute.
"1988 Agreement' means a certain agreement dated as of February 2, 1988 that was recorded
as Instrument No. 88-081485 in the Official Records, County of Orange, State of California
("Official Records") on February 24, 1988 in connection and in implementation of Conditional Use
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Permit No. 2952 issued by the City for development of the original, then new, construction and
operation of a 180-unit senior rental apartment complex, inclusive of two (2) onsite manager units, of
which 178 Housing Units were restricted and covenanted as affordable housing for Very Low and
Low Income Senior Citizen households as the Original Project. The 1988 Agreement is and shall
remain an encumbrance to the Site senior and nonsubordinate to any monetary lien, including each
and any Primary Loan.
"2008 Bond Regulatory Agreement' means that certain Regulatory Agreement and
Declaration of Restrictive Covenants dated as of February 1, 2008 and recorded in the
Official Records as Instrument No. 2008-000071739 on February 15, 2008, which remains in effect
for the Qualified Project Period defined therein and is and shall remain an encumbrance to the Site
and, to the extent set forth therein, senior and nonsubordinate to any monetary lien, including each
and any Primary Loan.
"2008 Tax Credit Regulatory Agreement' means that certain regulatory agreement dated as
of July 7, 2008 entered into between the California Tax Credit Allocation Committee and
Belage Preservation Limited Partnership. The Tax Credit Regulatory Agreement is recorded in the
Official Records as Instrument No. 2021-000760297, and which remains in full force and effect for
the defined Compliance Period therein and is and shall remain an encumbrance to the Site.
2. ACQUISITION OF THE OWNERSHIP INTERESTS BY NEW PARTNERS;
CONDITIONS PRECEDENT TO CLOSING OF ACQUISTION AND CONDITIONS
PRECEDENT TO SUBSTANTIAL REHABILITATION.
2.1 Developer Entity Structure and Acquisition of the Ownership Interests. Subject
to the terms and conditions set forth in this Agreement, Developer agrees to restructure its limited
partnership entity in the organizational form represented to the Authority and as defined in Recital C.
and the definition of the term Developer, and agrees to cause and complete the interest transfer for
the New Partners to acquire all of the ownership interests to the Site, land and Improvements, on or
before May 31, 2022, all subject to the following Conditions Precedent to Closing of Acquisition.
2.1.1 Conditions Precedent to Closing of Acquisition. The Authority's
obligation to enter into the Existing HAP Contract Second Extension, and the Developer's obligation
to cause the Closing of Acquisition each is expressly and intentionally conditioned upon the
satisfaction (or waiver by the benefited parry) of the following terms and conditions within the times
designated below (each, a "Condition Precedent," collectively, "Conditions Precedent").
(a) Authority's Conditions Precedent to Closing of Acquisition. Each
and every one of the following Conditions Precedent (1) through (ix), inclusive, described below are
solely for the benefit of Authority, and shall be fulfilled by Developer or waived by Authority within
the time periods provided herein:
(i) Redemption of 2008 Bonds. Developer shall have caused
the seller/transferor entity to redeem and pay in full the 2008 Bonds.
(ii) Execution and Recording of Documents. Developer shall
have duly executed, and as applicable, and delivered to Escrow Agent this Agreement, the
Termination Agreement, Authority Regulatory Agreement, Completion Guaranty agreement,
Memorandum of Agreement, Request for Notice, Existing HAP Contract Second Extension, and
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such documents shall be ready for and meet all conditions to the Closing of Acquisition pursuant to
the requirements of this Agreement. The Termination Agreement, Authority Regulatory Agreement,
Memorandum of Agreement, and Request for Notice shall be ready to record against the Site, in that
order, in the Official Records at such Closing.
(iii) Evidence of Financing. Developer shall have provided
written proof reasonably acceptable to Authority that Developer has obtained a binding commitment
for the Primary Loan for the Project, all subject to customary conditions. The Primary Loan shall be
ready to close and fund concurrently with the Developer's Closing of the Acquisition.
(iv) Partnership Agreement; Organizational Documents;
Resolution. Developer shall have duly executed or, shall execute concurrently with the Closing of
Acquisition, the Partnership Agreement in a form reasonably acceptable to Authority in accordance
with Section 3.11, under which the JRC Limited Partner and Jamboree Limited Partner each is
committed to make certain equity contributions in an amount, which together with the proceeds of
the Primary Loan are sufficient to finance the acquisition and Substantial Rehabilitation (both
Phase 1 Rehab and Phase 2 Rehab). As of the Date of Agreement, Developer represents such equity
investment is estimated to total an amount in excess of $18,000,000. In addition, Developer shall
have certified in writing to Authority that the Primary Loan, Authority PBV Assistance, other
affordable housing subsidies, if any, and required equity contributions, are together projected to be
sufficient to pay for the undertaking and completion of the Project. Authority shall have received
and approved the Partnership Agreement and any other relevant organizational documents of
Developer, including a resolution authorizing a representative of Developer to enter into this
Agreement, the Termination Agreement, Authority Regulatory Agreement, Existing HAP Contract
Second Extension, and all other applicable documents required under the terms of this Agreement, all
on behalf of Developer.
(v) Relocation Plan. Developer shall have caused compliance
with the Relocation Laws, in particular that the City Council, in its sole discretion and pursuant to the
Relocation Laws, has timely received, considered and approved the Relocation Plan for the Project,
including the description of the assistance and benefits due to the existing tenants, at the Site who
may be temporarily displaced due to and when the Substantial Rehabilitation occurs, and/or who may
be permanently displaced, if at all, from the Site due to being over -income or otherwise not an
eligible, qualified tenant to remain in lawful occupancy at the Site under the Relocation Laws.
(vi) Completion Guaranty Agreement. Developer shall obtain
and provide for the benefit of Authority and City, the Completion Guaranty, substantially in the form
of Attachment No. 6 pursuant to which Rose Affordable Housing Preservation Fund V, L.P. is the
guarantor, legally and financially, to cause commencement through completion of construction of the
Substantial Rehabilitation (1) substantially within the time limits set forth in the Schedule of
Performance attached hereto as Attachment No. 2, (2) substantially in accordance with the Scope of
Substantial Rehabilitation and the Development Plans for Phase 2 Rehab (when and as approved),
(3) free and clear of any mechanics liens, materialmen's liens and equitable liens, (4) all costs of
construction shall be paid prior to delinquency, and (5) in compliance with applicable federal, state,
and local laws. In addition, the Completion Guaranty will provide for the waiver by Guarantor of
any and all rights, waivers and defenses which may otherwise be available under state or federal law
to prevent Authority's (or City's) enforcement of Guarantor's obligations under the Completion
Guaranty.
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(vii) Proof of Insurance. Developer shall have provided to
Authority certificates of insurance and endorsements that satisfy all requirements of and are subject
to Section 3.6 as to the Project. Further, as and when Developer enters into one or more contracts
with a General Contractor (and, as applicable, its Subcontractors), whether for Phase 1 Rehab and/or
Phase 2 Rehab, all applicable insurance requirements shall be satisfied.
(viii) Authority Third Party Costs. Developer shall have wired
funds to Escrow for release and payment to Authority to reimburse the Authority for its Third Party
Costs incurred between April 22, 2021 and the date of Closing of Acquisition.
(ix) No Default; Representations and Warranties. Developer
shall not be in Default of any of its obligations under the terms of this Agreement. All
representations and warranties of Developer contained herein shall be true and correct in all material
respects on and as of the Closing Date for acquisition of the Site as though made at that time, and all
covenants of Developer which are required to be performed prior to such Closing shall have been
performed by such date.
(b) Developer Conditions Precedent to Closing of Acquisition.
Developer's obligations to proceed with its acquisition of the Site are subject to the fulfillment or
waiver by Developer of each and all of the Conditions Precedent (i) through (vi), inclusive, described
below, which are solely for the benefit of Developer, and which shall be fulfilled or waived by the
time periods provided for herein:
(i) Execution and Recording of Documents. Authority shall
have duly executed and delivered to Escrow Agent this Agreement, the Termination Agreement,
Authority Regulatory Agreement, Memorandum of Agreement, Request for Notice, Existing HAP
Contract Second Extension, and any other documents required hereunder, and such documents shall
be ready for and meet all conditions to Closing of Acquisition pursuant to this Agreement.
The Termination Agreement, Authority Regulatory Agreement, Memorandum of Agreement, and
Request for Notice, shall be ready to record in the Official Records at Closing.
(ii) Evidence of Financing. Developer shall be ready to close on
its Primary Loan for the Project in form and substance acceptable to Developer, all subject to
customary conditions.
(iii) Review and Approval of Title. Developer shall have
reviewed and approved the condition of title to the Site as provided herein.
(iv) Developer's Title Policy. The Title Company shall have
unconditionally committed to issue the Developer Title Policy to Developer.
(v) Environmental Condition of the Site. The environmental
condition of the Site and Improvements shall be reasonably acceptable to Developer.
(vi) No Default; Representations and Warranties. Authority
shall not be in Default of any of its obligations under the terms of this Agreement. All
representations and warranties of Authority contained herein shall be true and correct in all material
respects on and as of the Closing of Acquisition as though made at that time.
4893-1713-7678v9/022620-0095
2.1.2 Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab.
The Authority has entered into this Agreement and is providing the Existing HAP Contract Second
Extension at the Closing of Acquisition in material reliance upon Developer's full performance under
this Agreement. Developer covenants and agrees to undertake and complete the Substantial
Rehabilitation, both the Phase 1 Rehab and the Phase 2 Rehab that is the subject of this Section 2.1.2.
The following Conditions Precedent to Substantial Rehabilitation Phase 2 Rehab shall be satisfied
substantially within the times designated in the Schedule of Performance.
(a) Authority's Conditions Precedent re Substantial Rehabilitation
Phase 2 Rehab. Each and every one of the following Conditions Precedent (i) through (ix),
inclusive, described below, are solely for the benefit of Authority, and shall be fulfilled by Developer
or waived by Authority:
(i) Development Plans and Building Permits for the
Substantial Rehabilitation. Developer shall have obtained City and Authority approval of the Basic
Concept Drawings, Construction Drawings, and all final building plans for the Phase 2 Rehab
(collectively, "Development Plans") and be ready to have issued by the City all building permits
therefor to undertake and complete the Substantial Rehabilitation Phase 2 Rehab as required by this
Agreement, and such obligation includes continuing and completing the Phase 1 Rehab if such work
has not been fully completed by the date for the Closing of Substantial Rehabilitation Phase 2 Rehab.
(ii) Final Budget. Developer shall have submitted to Authority
for its approval the detailed Final Budget and Authority shall have approved the Final Budget in its
reasonable discretion.
(iii) Construction Contract. Developer shall have provided to
Authority (not later than thirty (30) days prior to commencement of the Substantial Rehabilitation
Phase 2 Rehab to enable Authority Executive Director and legal counsel to review, comment and
approve or disapprove (which approval will not be unreasonably withheld, conditioned, or delayed)
the GC Contract(s). Authority Executive Director shall have reasonably approved such General
Contractor as having the experience and financial resources necessary to construct and complete the
Substantial Rehabilitation Phase 2 Rehab, which approval shall not be unreasonably withheld,
conditioned or delayed. Developer shall submit to Authority evidence regarding each entity serving
as the General Contractor along with satisfactory evidence of necessary license(s), certification(s),
bonding and insurance as required by this Agreement. The GC Contract shall be for a fixed, all-
inclusive price or guaranteed maximum fee to complete all work to be performed by the General
Contractor to construct and complete the Substantial Rehabilitation Phase 2 Rehab, subject to
approved change orders.
(iv) Proof of Insurance. Developer shall have provided to
Authority certificates of insurance and endorsements which satisfy all requirements of Section 3.6
hereof for both Developer's continuing obligation to maintain insurance and the insurance required
for the General Contractor and the Subcontractors.
(v) Property Management Plan; Supportive Services Plan.
Developer shall have submitted to Authority, and Authority shall have reasonably approved, the
Property Management Plan for the Project in accordance with Section 4., et seq. herein.
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(vi) Marketing and Tenant Selection Plan. Developer shall
have submitted to Authority, and Authority shall have reasonably approved, the Marketing and
Tenant Selection Plan. This plan may be included as a part of the Property Management Plan in (v)
above.
(vii) Supportive Services Plan. The final form of the Supportive
Services Plan shall have been reviewed and approved by the Executive Director and appended as the
applicable attachment to this Agreement, and a copy of one or more agreements with Supportive
Services providers for implementation of the approved Supportive Services Plan shall have been
provided to the Authority.
(viii) Authority Third Party Costs. Developer shall have wired
funds to Escrow for release and payment to Authority to reimburse the Authority for its Third Parry
Costs incurred between the date of Closing of Acquisition and the date Developer commences
construction of the Phase 2 Rehab.
(ix) No Default; Representations and Warranties. Developer
shall not be in Default of any of its obligations under the terms of this Agreement. All
representations and warranties of Developer contained herein shall be true and correct in all material
respects.
2.2 Environmental Condition of the Site.
2.2.1 Environmental Condition of the Site. A list of the Environmental Reports
obtained by Developer shall be prepared by Developer and true copies of each and all shall be
delivered to Authority and the title and dates therefor shall be listed in Attachment No. 9 attached
hereto and incorporated herein. Except as disclosed in the Environmental Reports delivered,
Developer represents to Authority that it is not aware of, to its Best Knowledge, and it has not
received any additional notice or communication from any governmental agency having jurisdiction
over the Site or Improvements, notifying it of the presence of Hazardous Materials in, on, or under
the Site or Improvements, or any portion thereof. During the term of this Agreement, Developer
shall notify Authority, and provide to Authority a copy or copies of any notices of violation, notices
to comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports riled
pursuant to self -reporting requirements, and reports riled or applications made pursuant to all
Environmental Laws and other Governmental Requirements, and Developer shall report to Authority,
as soon as possible after an incident, if any, of Hazardous Materials; further, Developer shall provide
Authority supplemental or updated documents, if any, that substantively relate to the environmental
condition of the Site and Improvements that are received by Developer.
2.2.2 Studies and Reports. Developer acknowledges that the Original Developer
has controlled, operated and managed the Site since 2008. Developer may obtain or cause to be
obtained through the Original Developer data and may make any other or additional surveys, tests,
studies, and reports necessary to evaluate the suitability of the Site and Improvements, including the
investigation of the environmental condition of the Site and Improvements for the Project
(collectively, the "Studies"). Any studies undertaken on the Site and/or Improvements by the
Original Developer shall be done at the sole expense of Developer.
2.2.3 Environmental Indemnification. Developer shall save, protect, pay for,
defend (with counsel acceptable to Authority and/or City, as applicable, (approval of which shall not
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be unreasonably withheld), indemnify and hold harmless the Anaheim Indemnitees from and against
any and all Environmental Claims and any and all liabilities, suits, actions, claims, demands,
penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses,
costs or expenses (including, without limitation, consultants' fees, investigation and laboratory fees,
attorneys' fees and remedial and response costs and third -party claims or costs) (the foregoing are
hereinafter collectively referred to as "Liabilities") that may now or in the future be incurred or
suffered by Indemnitees by reason of, resulting from, in connection with or arising in any manner
whatsoever as a direct or indirect result of: (i) the presence, use, release, escape, seepage, leakage,
spillage, emission, generation, discharge, storage, or disposal of any Hazardous Materials in, on,
under, or about, or the transportation of any such Hazardous Materials to or from, the Site; (ii) the
violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or
license relating to the use, generation, release, leakage, spillage, emission, escape, discharge, storage,
disposal, or transportation of Hazardous Materials in, on, under, or about, or to or from, the Site;
(iii) the environmental condition of the Site, (iv) any Liabilities relating to any Environmental Laws
and other Governmental Requirements relating to Hazardous Materials and/or the environmental
condition of the Site, and (v) any Environmental Claims relating to the Site. The foregoing
indemnification shall continue in full force and effect regardless of whether such condition, liability,
loss, damage, cost, penalty, fine, and/or expense shall accrue or be discovered before or after the
termination of this Agreement. This indemnification supplements and in no way limits the
indemnification set forth in Section 3.8.
2.2.4 Duty to Prevent Hazardous Material Contamination. During the
Substantial Rehabilitation, development, operation and management of the Site and Improvements
Developer shall take all necessary precautions to prevent the release of any Hazardous Materials into
the environment on or under the Site. Such precautions shall include, but not be limited to,
compliance with all Environmental Laws and other Governmental Requirements.
2.2.5 Release of Authority and City by Developer. Developer hereby waives,
releases and discharges forever the Indemnitees from all present and future claims, demands, suits,
legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees
and expenses, including attorneys' fees, court and litigation costs and fees of expert witnesses,
present and future, arising out of or in any way connected with Developer's ownership and/or use of
the Site in accordance with this Agreement, the Scope of Substantial Rehabilitation, the approved
Development Plans, and for the operation of the Project at the Site, of any Hazardous Materials on
the Site, or the existence of Hazardous Materials contamination in any state on, under, or about the
Site, however they came to be located there, except to the extent evidenced to have been caused by
the intentional action or grossly negligent action of an Indemnitee.
In connection with the foregoing, Developer acknowledges that it is aware of and
familiar with the provisions of Section 1542 of the California Civil Code that provides as follows:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
As such relates to this Section 2.2.5, Developer hereby waives and relinquishes all
rights and benefits that it may have under Section 1542 of the California Civil Code.
Developer's Initials
2.2.6 Environmental Inquiries. Developer shall notify Authority upon receipt,
and provide to Authority a copy or copies, of the following environmental permits, disclosures,
applications, entitlements or inquiries relating to the Site and Project: notices of violation, notices to
comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports riled
pursuant to self -reporting requirements and reports riled or applications made pursuant to any
Environmental Laws and other applicable Governmental Requirements relating to Hazardous
Materials and underground tanks, and Developer shall report to Authority, as soon as possible and
not later than as and when required by applicable law, after each incident, all material information
relating to or arising from such incident, including, but not limited to, the following:
(a) All required reports of releases of Hazardous Materials, including
notices of any release of Hazardous Materials as required by any Governmental Requirements;
(b) All notices of suspension of any permits relating to Hazardous
Materials;
(c) All notices of violation from federal, state or local environmental
authorities relating to Hazardous Materials;
(d) All orders under the State Hazardous Waste Control Act and the State
Hazardous Substance Account Act and corresponding federal statutes, concerning investigation,
compliance schedules, clean up, or other remedial actions;
(e) All orders under the Porter Cologne Act, including corrective action
orders, cease and desist orders, and clean up and abatement orders;
(f) Any notices of violation from OSHA or Cal OSHA concerning
employees' exposure to Hazardous Materials;
(g) All complaints and other pleadings riled against Developer relating to
Developer's storage, use, transportation, handling or disposal of Hazardous Materials on or about the
Site; and
(h) Any and all other notices, citations, inquiries, orders, filings or any
other reports containing information which would have a materially adverse effect on the Site or
Authority's liabilities or obligations relating to Hazardous Materials.
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In the event of a release of any Hazardous Materials into the environment from the
Site, Developer shall, as soon as possible after the release, furnish to Authority a copy of any and all
reports relating thereto and copies of all correspondence with governmental agencies relating to the
release. Upon request of Authority, but subject to any limitations imposed by law or by court order,
Developer shall furnish to Authority a copy or copies of any and all other environmental entitlements
or inquiries relating to or affecting the Site in Developer's possession and/or shall notify Authority of
any environmental entitlements or inquiries relating to or affecting the Site within Developer's
Best Knowledge if Developer is not in possession of same, including, but not limited to, all permit
applications, permits and reports, but excluding report(s) and/or other matters that are reasonably
characterized as confidential by a third party and provided that the consultant or consultants that
prepared such report(s) shall not characterize such report(s) as confidential.
2.3 Escrow for Closing of Acquisition. Prior to the Date of Agreement, the New
Partners (and seller partners) caused the opening of an escrow ("Escrow") for the Closing of
Acquisition with Fidelity National Title Company ("Escrow Agent"). As used herein, "Closing"
refers to the close of Escrow for New Partners' acquisition of the ownership interests in and to the
Site, and the execution and recordation of the Termination Agreement, Authority Regulatory
Agreement, Memorandum of Agreement, and Request for Notice of Default.
2.3.1 Costs of Escrow. Developer (or selling partners) shall pay all Escrow
charges, the premium for Developer's Title Policy, all recording fees and documentary transfer taxes,
if any, due with respect to the Closing, and all other fees, charges, and costs which arise from
Escrow. In no event will the Authority be liable or responsible for any costs, fees, charges incurred
or due related directly or indirectly to the Closing of Acquisition.
2.3.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Authority, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties agree to do all acts
reasonably necessary to close the Escrow within the time set forth in the Schedule of Performance.
(a) If in the opinion of any party it is necessary or convenient in order to
accomplish the Closing of the Escrow, a party may require that the parties sign supplemental escrow
instructions; provided that if there is any inconsistency between this Agreement and the supplemental
escrow instructions, then the provisions of this Agreement shall control, unless the supplemental
escrow instructions expressly state the intent to amend this Agreement. The parties agree to execute
such other and further documents as may be reasonably necessary, helpful or appropriate to
effectuate the provisions of this Agreement. Developer authorizes the Escrow Agent to release a
copy of the settlement statement to the Authority in connection with the Closing of Acquisition.
2.3.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Verify proper and complete execution of all Transaction Documents,
including without limitation the Termination Agreement, Authority Regulatory Agreement,
Memorandum of Agreement, and Request for Notice of Default upon Closing; and
(b) Do such other actions as necessary to fulfill the Escrow Agent's
obligations under this Agreement.
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2.3.4 Closing Procedure. Escrow Agent shall close the Escrow as follows (as it
relates to this Agreement):
(a) Accept receipt of fully and duly executed Termination Agreement,
Authority Regulatory Agreement, Memorandum of Agreement, Completion Guaranty from
Rose Affordable Housing Preservation Fund V, L.P., and Request for Notice of Default;
(b) Record documents in the following order:
(i) Termination Agreement;
(ii) Authority Regulatory Agreement, with instructions for the
Recorder to deliver the recorded instrument to the Authority;
(iii) Primary Loan Deed of Trust;
(iv) Memorandum of Agreement, with instructions for the
Recorder of Orange County, California ("Recorder") to deliver the instrument to the Authority;
(v) Intercreditor Instrument(s), if any; and
(vi) Request for Notice, with instructions for the Recorder to
deliver the instrument to the Authority.
2.3.5 Title Insurance. Concurrently with the Closing of Acquisition there shall be
issued to Developer at Developer's sole cost, an ALTA owner's policy of title insurance, together
with all endorsements Developer may reasonably require (collectively, the "Developer Title Policy"),
issued by the Title Company insuring that Developer holds fee simple interests in the Site, land and
Improvements. The Title Company shall provide Developer and Authority with copies of the
Developer Title Policy, which shall evidence the priority of the Authority Regulatory Agreement,
1988 Agreement and, to the extent set forth therein, the 2008 Bond Regulatory Agreement as senior
encumbrances, including senior to the deed of trust securing the Primary Loan and all other
monetary liens.
3. SUBSTANTIAL REHABILITATION - PHASE 1 REHAB AND PHASE 2 REHAB.
3.1 Developer's Obligation to Complete Substantial Rehabilitation. Developer
agrees to cause construction and development through completion of the Substantial Rehabilitation,
both Phase 1 Rehab (that is not part of Development Plans processing) and Phase 2 Rehab (that does
require Developer to undertake and complete Development Plans), and all on -site (and off -site,
if any) improvements required to be constructed in accordance with the Scope of
Substantial Rehabilitation, the final Development Plans for Phase 2 Rehab approved by the City and
Authority in accordance with Section 3.2, the Building Permits issued by the City, and all applicable
local codes, development standards, ordinances and zoning ordinances, other applicable
Governmental Requirements.
3.1.1 Scope of Substantial Rehabilitation. A narrative description of the scope of
the Substantial Rehabilitation, both Phase 1 Rehab and Phase 2 Rehab, line item estimated costs, line
item description with specifications, is set forth in the Scope of Substantial Rehabilitation attached
hereto as Attachment No. 3.
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3.1.2 Developer Covenant to Complete Phase 1 Rehab. While a primary
objective of this Agreement and a material basis for which the Authority has agreed to provide the
Existing HAP Second Extension is Developer's agreement to undertake and complete the Substantial
Rehabilitation Phase 2 Rehab, nonetheless, Developer has informed Authority that it intends to
undertake and complete certain critical repairs and improvements of the Site and Bel'Age Senior
Apartments with such work to commence promptly after the Closing of Acquisition. Developer
represents that the scope of such work does not require building permits and is not part of the Phase 2
Rehab. Developer covenants to the Authority that it shall undertake and complete timely such
Phase 1 Rehab. This Phase 1 Rehab is a substantive part of the Scope of Substantial Rehabilitation
and is subject to applicable federal, state and local laws and Developer obtaining all necessary
permits therefor, are providing insurance coverage therefor. In all events, the cumulative costs of the
Substantial Rehabilitation, both Phase 1 Phase 2 Rehab, shall be not less than $9,000,000 as
represented by Developer to the Authority during negotiations leading up to the Authority agreeing
to enter into the Existing HAP Contract Second Extension and this Agreement.
3.2 Development Plans for Phase 2 Rehab.
3.2.1 Basic Concept Drawings. Developer shall cause to be prepared and submit
the basic concept drawings for the Substantial Rehabilitation Phase 2 Rehab (all apartment units,
common areas, appurtenances, amenities, and other improvements that comprise Phase 2 Rehab)
("Basic Concept Drawings"). Within the time set forth in the Schedule of Performance, Developer
shall submit, and Authority shall review for approval or disapproval or conditional approval, the
Basic Concept Drawings for the Phase 2 Rehab, which approval shall not be unreasonably withheld,
conditioned, or delayed. If and once approved, in the event Developer wishes to in any substantial
way alter or modify such Basic Concept Drawings, Developer shall re -submit such modified Basic
Concept Drawings to both Authority (and City, as necessary) for reasonable review and approval of
such modifications.
3.2.2 Construction Drawings and Related Documents for Phase 2 Rehab.
Within the time set forth in the Schedule of Performance, Developer shall cause to be prepared and
submit to Authority, and Authority shall review and approve, disapprove, or conditionally approve,
which approval shall not be unreasonably withheld, conditioned or delayed, the detailed construction
plans and specifications of the Phase 2 Rehab, as prepared by the architect, engineer, or other design
professionals (together, "Construction Drawings").
3.2.3 Standards for Disapproval. Authority Executive Director shall have and
retain all rights to review and approve, or disapprove, in her/his reasonable discretion, as applicable,
the Basic Concept Drawings and the Construction Drawings. Disapproval shall occur in the event
(a) the Construction Drawings do not conform to the approved Basic Concept Drawings, or
(b) the Construction Drawings do not conform to the Scope of Substantial Rehabilitation Phase 2
Rehab or this Agreement, or (c) the Construction Drawings are incomplete. Authority review and
subsequent approval or disapproval shall be conducted within the time periods set forth in the
Schedule of Performance, and Authority's disapproval, if any, shall include a written statement of the
reasons for such disapproval. Developer, upon receipt of any such disapproval, shall revise such
portions and resubmit the disapproved Basic Concept Drawings or Construction Drawings, as the
case may be, provided, however, in no event shall any such drawings be deemed approved.
(a) Developer acknowledges and agrees that Authority is entitled to
approve or disapprove the Basic Concept Drawings and Construction Drawings in order to satisfy
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Authority's obligation to promote the sound Substantial Rehabilitation of Bel'Age Manor, to
promote a high level of design (taking into consideration the constraints of renovating an existing
structure) that will benefit the residents and surrounding neighborhood, and to provide an
environment for the social, economic and psychological growth and well-being of the Senior Citizen
tenant households, as well as the Anaheim community.
3.2.4 Consultation and Coordination. During the preparation of the
Development Plans and throughout the Substantial Rehabilitation Phase 2 Rehab, Housing and
Community Development staff and authorized representatives of Developer shall hold joint progress
meetings with City staff to coordinate the preparation of, submission to, and review of the
Development Plans by Authority Executive Director and City. Housing and Community
Development staff and authorized Developer representatives shall communicate and consult
informally as frequently as is necessary to ensure that the formal submittal of any documents to
Authority and/or City can receive prompt and thorough consideration. Authority shall designate a
member of the Housing and Community Development to serve as the Project Manager, who shall be
responsible for the coordination of Authority's activities under this Agreement and for coordinating
the permitting process. As of the Date of Agreement such designated staff person is
Stephen Stoewer, Senior Project Manager.
3.2.5 Revisions and Change Orders. In the event Authority disapproves or
conditionally approves the Development Plans, or any part(s) thereof, or if Developer desires to
propose any substantial revisions to the approved Development Plans, or any part(s) thereof,
Developer shall submit its revisions or proposed changes thereto to Authority Executive Director and
City, and shall also proceed in accordance with any and all Governmental Requirements regarding
such revisions. Any substantial revision or change to such Development Plans proposed by
Developer may be disapproved by Authority through its Executive Director in her/his reasonable
discretion pursuant to subdivision (a) below. Any and all change orders or revisions required by the
City and its inspectors that are required under the Anaheim Municipal Code and all other applicable
Uniform Codes (e.g. Building, Housing, Plumbing, Fire, Electrical, etc.) and under other
Governmental Requirements shall be included by Developer in its Development Plans and completed
during the Substantial Rehabilitation. In the event Developer requests substantial revisions,
alterations, or modifications, and/or any type of value engineering to the Development Plans, or any
part(s) thereof, for any reason including increased construction costs because of unforeseen
occurrences or conditions relating to the construction, such modifications shall be subject to the
approval of Authority in its reasonable discretion and as applicable the City's Planning/Building
Department consistent with applicable laws, rules, regulations, ordinances and development
standards) pursuant to subdivision (a) below. Developer acknowledges and agrees to pay any and all
increased costs of construction due to any such revisions, alterations, or modifications of the
Development Plans, or any part(s) thereof.
(a) Approval of Change Orders. Developer shall not be required to
obtain Authority Executive Director approval of any change orders or other revisions or
modifications to the Construction Drawings, so long as each change order, revision, or modification
is consistent with the approved Basic Concept Drawings does not cause any value engineering not
previously authorized by Authority and does not affect materially the design, materials, and
architectural quality and integrity of the Project, except that Developer shall be required to obtain
Authority Executive Director approval to the extent such change order, revision, or modification will
result in a cost adjustment which, cumulatively with all other change orders, revisions, and
modifications, exceeds the amount set forth as the contingency line item in the approved Final
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Budget. Notwithstanding the immediately preceding sentence, Authority shall have the right to
review any and all material changes, revisions or modifications to the final Development Plans
and/or any and all material change orders to the Construction Contract with the General Contractor
which are approved by Developer.
3.2.6 Defects in Development Plans. Neither Authority nor City shall be
responsible to Developer or to any third parties in any way for (a) any defects in the Development
Plans, (b) any structural or other defects in any work done according to the approved Development
Plans, nor (c) any delays caused by the review and approval processes established by this Section 3.2.
Developer shall hold harmless, indemnify and defend the Indemnitees from and against any claims or
suits for damages to property or injuries to persons (including death) arising out of or in any way
relating to defects, latent or patent, in the Development Plans, or the actual construction work and
improvements comprising the Project, including, without limitation, the violation of any
Governmental Requirements, or arising out of or in any way relating to any defects in any work done
and/or improvements completed according to the approved Development Plans.
3.2.7 Authority Construction Manager. Authority shall have the right, but no
obligation, to employ (at its sole cost and expense) a construction manager of its choosing
("Construction Manager") to oversee the construction and other development work performed at the
Site pursuant to this Agreement. The Construction Manager, if retained, will provide Authority with
assurances that all work is performed in a timely and safe manner and in accordance with this
Agreement, the Scope of Substantial Rehabilitation Phase 2 Rehab, the Development Plans, the
approved CG Contract, any permitted change orders and other legal requirements. Developer shall
ensure that Authority's Construction Manager shall have full access to the Site and to all applicable
records of Developer, the General Contractor, and each and all Subcontractors relating to the
Substantial Rehabilitation to permit the Construction Manager to perform its duties as described in
this Section 3.2.7, and the GC Contract shall provide appropriate provisions to effectuate this
Section 3.2.7.
3.3 Timing of Construction and Completion of the Substantial Rehabilitation of
Phase 2 Rehab. Developer hereby covenants and agrees to commence the construction of the
Substantial Rehabilitation within the time set forth in the Schedule of Performance (subject to force
majeure pursuant to Section 6.3 hereof). Developer further covenants and agrees to diligently
prosecute to completion the construction of the Substantial Rehabilitation in accordance with the
approved Development Plans (as the same may be modified in accordance herewith) and to file a
notice of completion therefor pursuant to California Civil Code Section 3093 within the time set forth
in the Schedule of Performance.
3.4 City and Other Governmental Permits. Before commencement of the Substantial
Rehabilitation, Developer shall secure or cause its General Contractor (and subcontractors) to secure
any and all permits and approvals which may be required by City or any other governmental agency
affected by such construction, including, without limitation and, as applicable, building permits for
specified Housing Units, common areas, and other appurtenances. Developer shall pay all necessary
building permit type and related fees and timely submit to the City final drawings with final
corrections (as necessary) to the Development Plans to obtain any and all such permits. Housing and
Community Development staff will, without obligation to incur liability or expense therefor, use their
reasonable efforts to expedite the City's issuance of final building permits and certificates of
occupancy that meet Governmental Requirements and this Agreement.
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3.5 Release of Construction Covenants. Promptly after the completion of the
Substantial Rehabilitation Phase 2 Rehab in conformity with this Agreement (as reasonably
determined by Authority Executive Director or her designee) and as determined completed by the
City's building official, upon the written request of Developer, Authority shall furnish Developer
with a Release of Construction Covenants in recordable form (substantially in the form attached
hereto as Attachment No.8, and incorporated herein) which evidences and determines the
satisfactory completion of the construction of the Substantial Rehabilitation Phase 2 Rehab in
accordance with this Agreement. The issuance and recordation of the Release of Construction
Covenants shall not supersede, cancel, amend or limit the continued effectiveness of any obligations
relating to the maintenance, property management, operation, uses, payment of monies, or any other
obligations, except for the obligation to complete the Substantial Rehabilitation Phase 2 Rehab as of
the time of the issuance of the Release of Construction Covenants. Upon receipt of a request for the
issuance of a Release of Construction Covenants, the Authority shall, within thirty (30) days, either
issue the release as requested or provide a detailed written explanation of the remaining work which
must be performed or other requirements for the issuance thereof. If Authority fails to issue a
Release of Construction Covenants without providing such detailed written explanation as to what
actions Developer must take to obtain such Release of Construction Covenants, within such thirty
(30) day period, Developer shall be deemed to be entitled to such Release of Construction Covenants,
and Authority shall, within three (3) days of demand by Developer, issue such Release of
Construction Covenants to Developer.
3.6 Insurance Requirements. Commencing as of Closing of Acquisition as to the
Developer (and the commencement of construction as to the General Contractor and Subcontractors)
and continuing throughout the Affordability Period, Developer shall maintain at Developer's sole
expense, with insurers reasonably approved by City and Authority, the following policies of
insurance in form and substance reasonably satisfactory to City and Authority with the coverage
limits, conditions, and endorsements defined herein. Insurance for contractors and subcontractors
shall be provided to City and Authority upon request within ten (10) days of request.
3.6.1 Insurance Coverage from Closing of Acquisition through the
Affordability Period. From the date of the Closing of Acquisition through end of the Affordability
Period, the Developer shall obtain and maintain the following policies of insurance covering all
activities relating to (i) construction (when construction is occurring), and (ii) use and operation of
the Project at the Site. All policies shall include an endorsement giving Authority (and City)
thirty (30) days advance written notice of cancellation or termination of each policy. Insurers for
each policy shall waive subrogation against the City of Anaheim, the Anaheim Housing Authority,
and their respective elected and appointed officials, officers, agents, employees, representatives and
volunteers. Insurers for each policy shall provide to Authority (and City) a waiver of subrogation
evidencing the same.
(a) Workers' compensation insurance. Developer shall maintain
Workers Compensation Insurance in the amount and type required by California law and Employer's
Liability Insurance in an amount not less than $1,000,000 per occurrence.
(i) As a condition precedent to the Closing of Acquisition,
Developer shall execute and deliver to Authority (and City) that certain Workers' Compensation
Certificate for limited partnerships and Sole Proprietors and fully incorporated herein by this
reference, which certificate is Developer's representation and warranty that it is a limited partnership
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or sole proprietorship and is not legally required to carry Workers' Compensation Insurance at the
time of execution of this Agreement.
(b) Commercial general liability insurance, including mobile equipment
and not excluding XCU, in an amount not less Seven Million Five Hundred Thousand Dollars
($7,500,000) per occurrence and Seven Million Five Hundred Thousand Dollars ($7,500,000)
general aggregate for claims arising out of bodily injury, personal injury and property damage.
Coverage shall include contractual, on -going operations and products -completed operations (Claims
made and modified occurrence policies are not acceptable.)
(c) Automobile liability insurance, in an amount not less than Two
Million Dollars ($2,000,000), combined single limit (bodily injury and property damage liability),
including coverage for liability arising out of the use of owned, non -owned, leased, hired, or
borrowed automobiles for performance of the work. As used herein the term "automobile" means
any vehicle licensed or required to be licensed under the State of California. Such insurance shall
apply to all operations of Developer both on and away from the Site. In the event that any drivers are
excluded from coverage, such drivers will not be permitted to drive in connection with construction
of the Project. (Claims made and modified occurrence policies are not acceptable.)
(d) A policy of Builder's All -Risk property insurance in an amount not
less than one hundred percent (100%) of the full replacement value of the Project.
(e) Follows Form Excess Liability coverage shall be provided for any
underlying policy that does not meet the insurance requirements set forth herein. (Claims made and
modified occurrence policies are not acceptable.)
(f) For any claims related to this Agreement, Developer's insurance
coverage shall be primary insurance as respects the City of Anaheim, Anaheim Housing Authority,
and their respective officers, officials, agents, employees, representatives, and volunteers and shall
not contribute with any insurance, or self-insurance, maintained by the parties.
All insurance coverage shall be placed with carriers admitted to write insurance in California,
and with an A.M. Best's Guide Rating of A-, class VII or better, as approved by City. Any
deductibles or self -insured retentions in excess of $250,000 must be declared to and approved by
City's risk management director.
3.6.2 Policy Provisions. A certificate or certificates evidencing coverage
described above ("Insurance") shall be timely submitted to City and Authority. The certificates shall
be accompanied by appropriate policy endorsements stating that:
Developer's insurance coverage shall be primary insurance as respects each of the
Anaheim Housing Authority and City of Anaheim, and their respective officers, officials,
agents, employees, representatives, and volunteers, and shall not contribute with any
insurance or self- insurance maintained by the Anaheim Housing Authority, City of Anaheim,
and/or their respective officers, officials, agents, employees, representatives, and volunteers.
A primary -noncontributory endorsement shall be provided for each policy.
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(a) Insurer shall provide to Authority (and City) not less than (30) days
advance written notice for each policy prior to any, cancellation, termination, or non -renewal of the
Insurance.
(b) With the exception of the workers compensation policy, each of the
Anaheim Housing Authority, City of Anaheim, and their respective elected and appointed officials,
officers, agents, employees, representatives, and volunteers, shall be named as additional insureds on
all policies, including the excess liability policy. Developer shall provide:
(i) Additional Insured Endorsements, on -going and products -
completed operations, including mobile equipment and not excluding XCU, for the policy under
3.6.2(b), Commercial General Liability. Endorsements shall designate the City of Anaheim,
Anaheim Housing Authority and their respective officers, officials, agents, employees,
representatives, and volunteers, as additional insureds for liability arising out of all work or
operations performed by or on behalf of the Developer. Developer shall provide to City proof of
insurance and endorsement forms that conform to City's requirements, as approved by City. (Forms
CG 20 26 07 04 and CG 20 37 07 04 or equivalent)
(c) An Additional Insured Endorsement for the policy under section
3.6.1(c), Automobile Liability, shall designate the City of Anaheim, Anaheim Housing Authority and
their respective officers, officials, agents, employees, representatives, and volunteers, as additional
insureds for automobiles owned, leased, hired, or borrowed. Developer shall provide to City proof of
insurance and endorsement forms that conform to City's requirements, as approved by City. (Form
CA 20 48 02 99 or equivalent)
(d) Additional Insured Endorsements, ongoing and products -completed
operations, under Section 3.6.2(d), Environmental Liability and Remediation, if coverage is
applicable to the Project. Endorsements shall designate the City of Anaheim, Anaheim Housing
Authority and their respective officers, officials, agents, employees, representatives, and volunteers,
as additional insureds for liability arising out of all work or operations performed by or on behalf of
the Developer. Developer shall provide to City proof of insurance and endorsement forms that
conform to City's requirements, as approved by City.
(e) A Loss Payee Endorsement for the policy under Section 3.6.2(d),
Builder's All Risk, shall designate the City of Anaheim and Anaheim Housing Authority as Loss
Payee. Developer shall provide to Authority (and City) proof of insurance and endorsement forms
that conform to Authority (and City)'s requirements, as approved by the City.
(f) If any of the underlying policies do not meet policy limits as required
herein, an Additional Insured Endorsement for the policy under section 3.6.1(e), Follows Form
Excess Liability, shall designate each of the Anaheim Housing Authority, City of Anaheim, and their
respective officers, officials, agents, employees, representatives, as additional insureds under the
follows form excess liability policy. Developer shall also provide to Authority (and City) a
certificate of insurance stating the excess liability policy follows form and the schedule of underlying
policies for the excess liability policy with policy numbers. Developer shall provide to Authority
(and City) proof of insurance and endorsement forms that conform to Authority (and City's)
requirements, as approved by the City.
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(g) Upon request by Authority or City, Developer shall, within 10 days of
original request, provide Authority (and City) with complete certified copies of insurance policies
evidencing coverage as required herein. Certificates and endorsements for each insurance policy
shall be signed by a person authorized by the insurer to bind coverage on its behalf. If required by
Authority (or City), Developer and/or and subcontractors shall, from time to time, increase the limits
of its insurance policies to reasonable amounts customary for owners of improvements similar to
those on the Site. In the event any policy of insurance required under this Agreement does not
comply with these requirements or is cancelled and not replaced, Authority (and City) have the right
but not the duty to obtain the insurance it deems necessary and any premium paid by Authority (or
City) will be promptly reimbursed by Developer.
3.6.3 Insurance Requirements of Contractors and Subcontractors. All
Contractors and Subcontractors shall be required to provide the same insurance as required of
Developer herein, with the exception of policy limits required. Developer shall be responsible to
collect and maintain insurance from all Contractors and Subcontractors, which shall provide the
following policy limits for the policies as noted in the next table:
Workers compensation As required by California law
Commercial general liability policy Not less than $2,000,000 per occurrence and $4,000,000
general aggregate.
Automobile liability policy Not less than $2,000,000 combined single limit
Environmental liability (if applicable) Not less than $2,000,000 per occurrence and $2,000,000
general aggregate
3.6.4 Reduction in Requirements. The Authority hereby designates the City's
Risk Manager, in consultation with the Executive Director, in their sole discretion, to review and
authorize each and any reduction or modification of the insurance requirements set forth herein, on a
temporary or permanent basis, in the event she/he/they determine that such reduction or modification
is in Authority's (and City's) best interest.
3.6.5 Waiver of Subrogation. Developer hereby waives all rights to recover
against each of Authority and City (or any officer, employee, agent or representative of City and/or
Authority) for any loss incurred by Developer from any cause insured against or required by any
Transaction Document to be insured against; provided, however, that this waiver of subrogation shall
not be effective with respect to any insurance policy if the coverage thereunder would be materially
reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which
permit the foregoing waiver of subrogation.
3.7 Obligation to Repair and Restore Damage Due to Casualty. If during the period
of construction of the Substantial Rehabilitation , the Improvements shall be totally or materially
destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured
against by Developer, Developer shall, subject to the rights of Primary Lender, promptly proceed to
obtain insurance proceeds and take all steps necessary to begin reconstruction and, upon receipt of
insurance proceeds, to promptly and diligently commence the repair or replacement of the
Improvements to substantially the same condition as the Improvements are required to be constructed
pursuant to this Agreement if and to the extent the insurance proceeds are sufficient to cover the
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actual cost of repair, replacement, or restoration, and Developer shall complete the same as soon as
possible thereafter so that the Improvements can be occupied and operated as a Senior Citizen
affordable housing project in accordance with this Agreement. In no event shall the repair,
replacement, or restoration period exceed eighteen (18) months from the date the Developer obtains
insurance proceeds unless the Executive Director approves a longer period of time. Authority shall
cooperate with Developer, at no expense to Authority, in obtaining any governmental permits
required for the repair, replacement, or restoration. If, however, then -existing laws of any other
governmental agencies with jurisdiction over the Site or the Primary Lender do not permit the repair,
replacement, or restoration, or do not permit insurance proceeds to be used therefor, Developer may
elect not to repair, replace, or restore the Improvements by giving Notice to City or Developer may
reconstruct such other improvements on the Site as are consistent with applicable land use
regulations and approved by City, Authority, and the other governmental agency or agencies with
jurisdiction, and Authority (and City) may pursue remedies of its choosing under this Agreement,
including without limitation termination. Developer's said election not to repair, replace, or restore
shall not be a default hereunder.
3.8 Indemnity. Developer shall pay for, defend (by counsel reasonably satisfactory to
Authority), indemnify and save and hold harmless for each of Authority and City and their
Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and
expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to:
(1) this Agreement; (ii) the Authority Regulatory Agreement; (iii) a claim, challenge, or cause of
action that any person has or asserts against the Project; (v) a claim, challenge or cause of action that
any person has or asserts against any approval, whether discretionary or ministerial, by the City, the
Authority, zoning administrator, or any other board or commission of the City (or Authority);
(vi) a claim, demand or cause of action that any person has or asserts against Developer (iv) any act
or omission of Developer, any Contractor, Subcontractor or material supplier, engineer, architect or
other person with respect to the Site or the Project; or (v) the ownership, occupancy or use of the Site
or the Project. Notwithstanding the foregoing, Developer shall not be obligated to indemnify
Authority (or City) with respect to the consequences of any act of gross negligence or willful
misconduct of Authority (or City). Developer's obligations under this Section 3.8 shall survive the
issuance of the Certificate of Completion. The requirements under this Section 3.8 are in addition to
and do not limit the obligations of Developer under the Authority Regulatory Agreement.
(a) Developer shall reimburse Authority (and City) immediately upon
written demand for all fees and costs reasonably incurred by Authority (or City) (including the
reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the
same are independent contractors or employees of Authority (or City)) in connection with the
enforcement of the Transaction Documents, and all related matters including the following:
(i) City's or Authority's commencement of, appearance in, or defense of any action or proceeding by
a third party purporting to affect the rights or obligations of the parties to any Transaction Document,
and (b) all claims, demands, causes of action, liabilities, losses, commissions and other costs against
which Authority (or City) is indemnified under the Transaction Documents. Such reimbursement
obligations shall bear interest based upon the amounts and times of disbursement by Authority,
provided that Authority gives written demand to Developer at the rate of six percent (6%) per annum.
Such reimbursement obligations shall survive the issuance of the Release of Construction Covenants
and termination of this Agreement and are in addition to and do not limit the obligations of
Developer under any or each of this Agreement and the Authority Regulatory Agreement.
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(b) Developer indemnifies each of Authority (and City) from any real
estate commissions or brokerage fees which may arise from this Agreement or the Site.
3.9 Entry by Authority. From the date of the Closing and thereafter, Developer (and its
successor and assigns) shall permit Authority, City, and their officers, employees, consultants, and
agents at all reasonable times, with prior advance notice except in the event of an emergency, and in
compliance with the reasonable safety policies and procedures of Developer and its contractor, with
prior advance notice except in the event of an emergency, to enter onto the Site, including inspection
of the Substantial Rehabilitation work and/or related in any manner to the ongoing operation of the
Bel'Age Senior Apartments complex. Developer shall have the right to have a representative
accompany the Authority or City's representative on the Site, except in the event of an emergency.
Developer acknowledges that Authority and City are under no obligation to supervise, inspect, or
inform Developer of the progress of construction of the Substantial Rehabilitation, and Developer
shall not rely upon Authority or City therefor. Any inspection by Authority and/or City is entirely
for their purposes in determining whether Developer is in compliance with this Agreement and is not
for the purpose of determining or informing Developer of the quality or suitability of construction or
any other work at the Site. Developer shall rely entirely upon its own supervision and inspection in
determining the quality and suitability of the materials and work, and the performance of architects,
subcontractors, and material suppliers.
3.10 Compliance with Laws. Developer shall carry out the design, construction,
Substantial Rehabilitation, and operation of the Project in conformity with all applicable federal, state
and local laws, including, without limitation, all applicable state labor standards, City zoning and
development standards, building, plumbing, mechanical and electrical codes, and all other provisions
of the Anaheim Municipal Code, and all applicable disabled and handicapped access requirements,
including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq.,
Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh
Civil Rights Act, Civil Code Section 51, et seq., HOTMA, and any other applicable Governmental
Requirements. Developer (and its Affiliates and successors and assigns) shall pay prior to
delinquency all ad valorem real estate taxes, possessory interest taxes, and assessments, subject to
Developer's (and its Affiliates and successors and assigns) right to contest in good faith any such
taxes. Developer may apply for and receive any exemption from the payment of property taxes or
assessments on any interest in or as to the Site and/or the Project without the prior approval of
Authority.
(a) As to the 180-unit Project, not less than five percent (5%) (nine (9)
Housing Units) shall be fully improved as a part of the Substantial Rehabilitation and thereby
compliant with UFAS requirements and not less than two percent (2%) (four (4) Housing Units) shall
be adapted with hearing and visual aid components as required by the City and Authority as part of
the final Development Plans.
3.10.2 Prevailing Wage Laws. Developer shall carry out the construction through
completion of the Substantial Rehabilitation in conformity with all applicable federal, state and local
labor laws and regulations, including, without limitation, as and if applicable, the requirements to pay
prevailing wages under federal law (the Davis -Bacon Act, 40 U.S.C. Section 3141, et seq., and the
regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, "Davis -Bacon")) and
California law (Labor Code Section 1720, et seq.). The parties acknowledge that federal and/or state
funding sources and financing scenarios may trigger compliance with applicable state and federal
prevailing wage laws and regulations. The applicability of federal, state and local prevailing wage
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laws will be determined based upon the final financing structure and sources of funding of the
Project as set forth in the Financial Assumptions, Attachment No. 10.
Developer shall be solely responsible, expressly or impliedly, for determining and
effectuating compliance with all applicable federal, state and local public works requirements,
prevailing wage laws, labor laws and standards, and Authority (and City) makes no representation,
either legally and/or financially, as to the applicability or non -applicability of any federal, state and
local laws to the Substantial Rehabilitation, either onsite or offsite, if any. Developer expressly,
knowingly and voluntarily acknowledges and agrees that Authority (and City) has not
previously represented to Developer or to any representative, agent or Affiliate of Developer, or its
General Contractor or any subcontractor(s) for the construction of the Substantial Rehabilitation, in
writing or otherwise, in a call for bids or otherwise, that the work and construction undertaken
pursuant to this Agreement is (or is not) a "public work," as defined in Section 1720 of the California
Labor Code or under Davis -Bacon.
Developer knowingly and voluntarily agrees that Developer shall have the obligation to
provide any and all disclosures or identifications with respect to the Substantial Rehabilitation as and
if required by Labor Code Section 1781 and/or by Davis -Bacon, as the same may be amended from
time to time, or any other similar law or regulation. Developer shall indemnify, protect, pay for,
defend (with legal counsel acceptable to Authority and City, which approval shall not be
unreasonably withheld, conditioned, or delayed) and hold harmless the Indemnitees, from and against
any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including
reasonable attorneys' fees, court and litigation costs, and fees of expert witnesses) which, in
connection with the development, construction, and/or operation of the Project , including, without
limitation, any and all public works (as defined by applicable law), results or arises in any way from
any of the following: (1) the noncompliance by Developer with any applicable local, state and/or
federal law or regulation, including, without limitation, any applicable federal and/or state labor laws
or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal
prevailing wages); (ii) the implementation of Section 1781 of the Labor Code and/or of Davis -Bacon,
as the same may be amended from time to time, or any other similar law or regulation, as and if
applicable; and/or (iii) failure by Developer to provide any required disclosure or identification as
required by Labor Code Section 1781 and/or by Davis -Bacon, as the same may be amended from
time to time, or any other similar law or regulation, as and if applicable. It is agreed by the parties
that, in connection with the construction of the Substantial Rehabilitation, including, without
limitation, any and all public works (as defined by applicable law or regulation), Developer shall bear
all risks of payment or non-payment of prevailing wages under applicable federal, state and local law
or regulation and/or the implementation of Labor Code Section 1781 and/or by Davis -Bacon, as the
same may be amended from time to time, and/or any other similar law or regulation. "Increased
costs," as used in this Section 3.10.2, shall have the meaning ascribed to it in Labor Code Section
1781, as the same may be amended from time to time. The foregoing indemnity shall survive
termination of this Agreement and shall continue after completion of the construction the Substantial
Rehabilitation.
3.10.3 Federal Program Regulations. To the extent applicable, Developer shall
comply with the following:
(a) Qualification as Affordable Housing. Developer shall use, manage
and operate the Project in accordance with the requirements of applicable federal programs and
federal regulations so as to qualify the Housing Units as affordable housing thereunder.
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(b) Tenant Protections. Developer shall comply with the federal
requirements of the Section 8 Program and all regulations relating to tenant protections.
(c) Intentionally Omitted.
(d) Handicapped Accessibility. Developer shall comply with applicable
federal requirements (and the state and local requirements, as applicable) related to handicapped
accessibility, including without limitation (a) Section 504 of the Rehabilitation Act of 1973; and
(b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36.
(e) Use of Debarred, Suspended, or Ineligible Participants.
Developer shall comply with the applicable federal laws and regulations relating to the employment,
engagement of services, awarding of contracts, or funding of any contractor or subcontractor during
any period of debarment, suspension, or placement in ineligibility status.
(f) Maintenance of Drug -Free Workplace. Developer shall certify that
Developer will provide a drug -free workplace in accordance with applicable federal requirements.
(g) Lead -Based Paint. Developer shall comply with applicable federal
requirements, including without limitation of the Lead -Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35.
(h) Affirmative Marketing. Developer shall implement and perform
affirmative marketing procedures and requirements for the Site in conformity with applicable federal
requirements.
(1) Equal Opportunity and Fair Housing. Developer shall carry out
the work of construction and perform its obligations under this Agreement in compliance with all of
the federal laws and regulations regarding equal opportunity and fair housing.
0) Property Standards. Developer shall cause the Site to meet
applicable federal housing quality standards as well as all applicable federal, state and local codes
and ordinances, including zoning ordinances. Developer shall also cause the Site to meet the federal
cost-effective energy conservation and effectiveness standards, as required.
(k) Relocation. Developer acknowledges and agrees that the Relocation
Laws apply to the implementation of this Agreement in the event there occurs any displacement, both
and whether permanent and/or temporary, as defined under applicable Relocation Laws. At its sole
cost and expense, Developer shall implement and administer the Relocation Plan and shall comply
with applicable Relocation Laws during the term of this Agreement.
(1) Records and Reports. Developer shall maintain and from time to
time submit to Authority such records, reports and information as Authority may reasonably require
in order to permit the Authority to meet the recordkeeping and reporting requirements required under
applicable state and federal laws.
(m) Conflict of Interest. Developer shall comply with and be bound by
the conflict of interest provisions set forth in applicable federal, state and local requirements.
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(n) Layering Review. As and if applicable, Developer acknowledges
that a layering review may be required pursuant to the Section 8 Laws. In connection with such
review Developer acknowledges and agrees it shall be required to represent and certify to Authority
that no government assistance other than the Existing HAP Contract and Existing HAP Contract
Second Extension (and potentially grants or loans for "green" or sustainable improvements and/or for
the provision of social services) have been obtained or are contemplated to be obtained for the
acquisition, rehabilitation, management and operation of the Project. If such layering review is
conducted, Developer agrees to notify Authority in the event that it applies for or proposes to use
governmental funds or assistance, other than as listed in the previous sentence, for the Site,
Improvements or any part of the Project.
(o) Conflicts among Federal Program Requirements. In the event of
conflict or inconsistency, if any, between or among applicable federal programs and requirements,
then the more stringent federal requirement shall control, provided however, the foregoing does not
and shall not modify or affect the definitions and determination of Very Low Income, Low Income
and/or Affordable Rent under this Agreement and the Authority Regulatory Agreement.
3.11 Financing of the Project.
3.11.1 Submission of Evidence of Financing as Condition Precedent to Closing
of Acquisition. Prior to and as a Condition Precedent to the Closing of Acquisition, Developer shall
submit to Authority, and Authority (and its financial consultant(s) and legal counsel(s)) shall review
to confirm Developer has obtained sufficient equity capital and firm and binding commitments,
which together with the New Partners' equity contribution commitments under the LPA, as necessary
to undertake the Substantial Rehabilitation and operation of the Project, in accordance with this
Agreement.
(a) Required Financing Submittals. Such evidence of financing for the
Project shall include all of the following:
(i) An updated proforma for the Project showing the projected
costs of undertaking and completing the Project, including all costs for New Partners' acquisition of
the ownership interests in the Project, and costs of construction through completion of the Substantial
Rehabilitation, and operation, maintenance and management of the Project.
(ii) A copy of the Lender's binding commitment obtained by
Developer for the Primary Loan and, when available (but not as a condition precedent to Closing of
Acquisition), copies of all loan documents evidencing the Primary Loan.
(iii) A current certified financial statement of Developer and/or
other documentation of the Developer's right to call capital from the New Partners as evidence of
other sources of capital sufficient to demonstrate that Developer has adequate capacity to pay for the
Project to cover the difference, if any, between the proceeds of the Primary Loan and proceeds of the
Developer's partners' equity investments and total Project costs.
3.11.2 Holder Performance of Substantial Rehabilitation. The holder of any
mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of
this Agreement to complete the Substantial Rehabilitation Phase 2 Rehab or any other portion of the
Project, or to guarantee such construction or completion; nor shall any covenant or any other
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provision in this Agreement be construed so to obligate such holder, provided the
Authority Regulatory Agreement is and shall remain a senior, nonsubordinate encumbrance against
the Site.
3.11.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure.
With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever
Authority may deliver any notice or demand to Developer with respect to any breach or default by
Developer hereunder or under any other document executed pursuant to this Agreement, Authority
shall at the same time deliver to each holder of record of any mortgage or deed of trust on the Project
a copy of such notice or demand. Each holder shall (insofar as the rights granted by Authority are
concerned) have the right, but not the obligation, at its option, within sixty (60) days after the receipt
of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due
diligence the cure or remedy of any default and to add the cost thereof to the mortgage debt and the
lien of its mortgage. The holder, in that event, must agree to complete, or cause to be completed by a
party which is reasonably acceptable to Authority, in the manner provided in this Agreement, the
improvements to which the lien or title of holder relates. Any holder (or assignee approved by
Authority) properly completing the Substantial Rehabilitation Phase 2 Rehab shall be entitled, upon
compliance with the requirements hereof to a Release of Construction Covenants for the Substantial
Rehabilitation Phase 2 Rehab. It is understood that a holder (or assignee approved by Authority)
shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure
or remedy a Developer default which requires possession of the Site (or portion thereof), if and to the
extent any holder (or assignee approved by Authority) has within the sixty (60) day period
commenced proceedings to obtain possession and thereafter the holder diligently pursues such
proceedings to completion and cures or remedies the default.
Notwithstanding anything to the contrary contained herein, Authority agrees that any
cure of any default made or tendered by one or more of Developer's partners or the Guarantor shall
be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made
or tendered by Developer.
3.11.4 Right of Authority to Cure Mortgage or Deed of Trust Default. In the
event of Developer's default or breach of the Primary Loan, including the loan agreement,
promissory note, mortgage or deed of trust, or a default under the terms of Developer's Partnership
Agreement, Developer shall immediately deliver to Authority a copy of any default notice pertaining
thereto received by Developer. If the holder of the Primary Loan, including the loan agreement,
promissory note, mortgage or deed of trust has not exercised its option to complete the Substantial
Rehabilitation, and the Default occurs prior to completion of the Substantial Rehabilitation
(excepting only minor punch -list items), Authority shall have the following rights (in addition to the
rights and remedies set forth in Section 6. herein): (a) the right but not the obligation to cure the
default of the Primary Loan, including the loan agreement, promissory note, mortgage or deed of
trust, and (b) the right to cancel and terminate the Existing HAP Contract Second Extension, which
Developer knowingly, intentionally, and voluntarily agrees is a remedy and right of the Authority in
the event of Developer's default or breach of the Primary Loan. In such event, Authority shall be
entitled to reimbursement from Developer of all proper costs and expenses incurred by Authority in
curing any default.
3.12 Non -Subordination of Senior Restrictions. In the event of foreclosure or
assignment by deed in lieu of foreclosure occurs as to the Primary Loan, such Lender (or other buyer
in the foreclosure proceedings) would acquire the Site subject to the Authority Regulatory
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Agreement, 1988 Agreement and, to the extent set forth therein, the 2008 Bond Regulatory
Agreement.
3.12.1 Primary Loan; Effect of Foreclosure or Deed in Lieu of Foreclosure.
In further clarification of the foregoing, in the event of a foreclosure or deed in lieu of foreclosure
pursuant to the California Civil Code such proceedings shall be either: (a) foreclosure initiated by
the Lender (or its agent) and conveyance of the Site to Lender or to a third party buyer (not an
Affiliate of Developer) through a trustee's sale, or (b) conveyance by a deed in lieu of foreclosure of
the Site subject to the Authority Regulatory Agreement, 1988 Agreement, and, to the extent set forth
therein, the 2008 Bond Regulatory Agreement to Lender or to a third party (not an Affiliate of
Developer). Following the recordation of such trustee deed, or deed in lieu of foreclosure, and
evidence of title shall show that the Grantee's title is subject to the Authority Regulatory Agreement,
1988 Agreement, and, to the extent set forth therein, the 2008 Bond Regulatory Agreement.
3.12.2 Intercreditor Instruments and Confirmation. After the Closing of
Acquisition, at the request of a Lender, Authority shall promptly execute and deliver (but at no cost
to Authority) one or more Intercreditor Instruments in such form as may be reasonably requested by
a Lender, limited to certifying the status of this Agreement, the Authority Regulatory Agreement, and
such matters as are reasonably requested by a Lender. Such Intercreditor Instrument shall include,
but not be limited to, certification by Authority that (a) this Agreement and the Authority Regulatory
Agreement are unmodified and in full force and effect (or, if modified, state the nature of such
modification) and (b) there are not, to Authority's knowledge, any uncured Events of Default on the
part of Developer under this Agreement or the Authority Regulatory Agreement or facts, acts or
omissions which with the giving of notice or passing of time, or both, would constitute an Event of
Default (or, if there is a default, the nature and scope of the Default) thereunder. Any such
Intercreditor Instrument (which shall be subject to the limitations hereof) may be conclusively relied
upon by a Lender.
3.13 Article XXXIV Compliance. Authority, through the City of Anaheim, has
previously obtained the approval of the voters of the City authorizing up to a specific percentage of
housing constructed in the City to be publicly funded low -rent housing. The City voters approved
Measure G at a special municipal election on June 3, 1980, which voter approval authorized
construction of publicly funded low -rent housing in the City prospectively. The results of this
election were certified and declared by City Council Resolution No. 8OR-332 on July 29, 1980, and
such authorization applies to the Project in compliance with Article XXXIV of the California
Constitution and as implemented by HSC Section 37000, et seq.
3.14 Existing HAP Contract Second Extension. The Existing HAP Contract Second
Extension commences on the date concurrent with the Closing of Acquisition (May 31, 2022) and
ends on May 30, 2037. The Authority PBV Assistance (90 PBVs) is provided pursuant and
expressly subject to applicable Section 8 Laws, HOTMA, and other HUD requirements.
4. AFFORDABLE HOUSING COVENANTS AND OPERATION
4.1 Number and Allocation of Housing Units; Unit Mix among Very Low Income
and Low Income Levels. Developer covenants and agrees to make available, restrict occupancy to,
and rent the 178 Housing Units to eligible and qualified Senior Citizen Very Low Income
Households and Senior Citizen Low Income Households, in accordance with this Section 4., et seq.
and the Authority Regulatory Agreement.
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(a) fifty-nine (59) one -bedroom units shall be available to Senior Citizen
Very Low Income Households;
(b) three (3) studio units shall be available to Senior Citizen Low Income
Households; and
(c) one hundred sixteen (116) one -bedroom units shall be available to
Senior Citizen Low Income Households; and
There shall be two (2) Manager Units for occupancy by onsite managers of the Project, both
of which are one -bedroom units and are non -restricted as to rent.
Under this Agreement, in addition to two (2) Manager Units, 178 Housing Units in the
Project shall be for tenancy by Senior Citizen Households at the following unit size and income
restrictions:
(i) fifty-nine (59) one -bedroom units for occupancy by qualified Very Low Income
Households;
(ii) three (3) studio units for occupancy by qualified Low Income Households; and
(iii) one hundred sixteen (116) one -bedroom units for occupancy by qualified Low
Income Households.
(iv) Authority acknowledges that as of the Date of Acquisition, a third unit is being
occupied as a third manager unit, and Developer intends to request the consent of TCAC to remove
the third manager unit, upon which said unit, will be subject to the affordability restrictions set forth
herein.
"Housing Unit" and "Housing Units" shall mean, individually and collectively, each and all
of the 178 apartments that shall be used and maintained by Developer as affordable Senior Citizen
rental housing for occupancy by Very Low Income and Low Income tenants at Affordable Rents for
the Affordability Period. There are 180 total apartment units in the Project, inclusive of the two (2)
Manager Units; and all units on the Site shall be and remain owned, operated, managed, and
maintained by Developer. In addition to two (2), Manager Units, 178 Housing Units shall be for
tenancy by Senior Citizen Households as follows:
4.2 Affordable Rent. Affordable Rent shall be charged for the Housing Units (excepting
the Manager Units) throughout the Affordability Period.
4.2.1 Affordable Rent for Very Low Income Households and Low Income
Households; Presumed Household Size. The maximum Affordable Rent chargeable for the
Housing Units shall be annually determined by Authority (and charged and implemented by
Developer.) The Manager Units shall not be restricted as to rent charged, if any.
4.2.2 Calculation of Affordable Rent. For purposes of this Agreement,
"Affordable Rent" shall mean the total of monthly payments for (a) use and occupancy of each
Housing Unit and land and facilities associated therewith, (b) any separately charged fees or service
charges assessed by Developer that are required of all tenants, other than security deposits,
(c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b)
above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and
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refrigeration fuels, but not including telephone service, cable or satellite or streaming TV, or internet
services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and
facilities associated therewith by a public or private entity other than Developer. No additional
charge shall be assessed against tenant households of the Housing Units for any Supportive Services
provided at the Site and/or as a part of Developer's compliance with the legal requirements imposed
in connection with any Section 8 PBV Program assistance pursuant to this Section 4., et seq.
4.2.3 FMR under Existing HAP Contract Second Extension; Affordable Rent
to be Charged after Expiration of Existing HAP Contract Second Extension. The parties
acknowledge that the Lender has underwritten the Primary Loan at the Closing of Acquisition for the
initial term thereof only based in part on the Authority providing the Existing HAP Contract Second
Extension for ninety (90) PBVs at the Project for a term commencing on the Closing of Acquisition
and ending on May 30, 2037 (together, "HAP Units"). The out-of-pocket monthly payment by each
tenant of the HAP Units is equal to 30% of each tenant household's actual gross income and the
Authority's monthly payment for each of the HAP Units is equal to the difference between 30% of
each tenant household's actual gross income and FMR, as FMR is set by the Authority in its sole
discretion under the Section 8 Laws and other applicable federal regulations (provided however, a
tenant payment may increase if their household has one or more members who do not have legal
documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of
household income toward rent; for example, a tenant household with two members, one of whom
does not have legal documentation status the voucher is prorated by 50%). On and after May 30,
2037, which is the end date for the term of the Existing HAP Contract Second Extension, and thereby
during the remaining term of the Affordability Period, Developer acknowledges and agrees that
under this Agreement that (a) Authority reserves sole discretion to provide (or not provide) a third
(3rd) extension to the Existing HAP Contract Second Extension, and in the event of a third extension
if granted that the term thereof is subject to HOTMA that as of the Date of Agreement does not allow
the cumulative number of years of a HAP contract to exceed forty (40) cumulative years, and
(b) Affordable Rent (not FMR) shall be charged by Developer for all Housing Units, including each
and all of the former HAP Units, and such Affordable Rent shall be stated in each rental and/or lease
agreement between the Developer and each tenant (or if a tenant has a Section 8 Portable Voucher,
the provisions of Section 4.2.4 below shall apply).
4.2.4 Monthly Rent for Non-PBV Housing Units; Acceptance of Section 8
Portable Vouchers. Developer shall set monthly rent at the applicable Affordable Rent as to each
and all Housing Units that are not designated as PBV HAP Units under the Existing HAP Second
Extension. Developer shall not refuse to lease a Housing Unit to a holder of a Section 8 Portable
Voucher who is otherwise qualified to be a tenant in accordance with the approved tenant selection
criteria.
(a) In the event Developer rents a Housing Unit to a household holding a
Section 8 Portable Voucher issued by the Authority, the rental agreement (or lease agreement, as
applicable) between Developer, as landlord, and the Senior Citizen tenant shall expressly provide that
monthly rent collected directly from such tenant holding a Portable Voucher shall be not more than
30% of tenant's actual gross income pursuant to the applicable voucher program regulations, and the
total monthly rent for such unit shall be set at "fair market rent" ("FMR") for the area based on the
payment standard applicable to the area in which the Property is located, with FMR set by the
Authority in its sole discretion (with respect to calculation of FMR) under Section 8 Laws and other
applicable federal regulations. For Section 8 Portable Vouchers issued by an entity other than the
Authority, the total monthly rent for such unit may in the Developer's discretion be set at either
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(i) Affordable Rent, or (ii) up to FMR for the area as set by the issuing public housing authority
under Section 8 Laws and other applicable federal regulations with respect to calculation of FMR.
(As noted above, the tenant payment may increase if their household has one or more members who
do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay
more than 30% of household income toward rent; for example, a tenant household with two
members, one of whom does not have legal documentation status the voucher is prorated by 50%.)
4.2.5 Most Restrictive Affordable Rent Covenants Govern. To the extent of an
inconsistency between or among the foregoing covenants relating to Affordable Rent and other
covenants or agreements applicable to the Project, the most restrictive covenants or agreement
regarding the Affordable Rent for the Housing Units in the Project shall prevail.
4.2.6 Property Management to Cause Occupancy of Housing Units in Accord
with Covenants. Developer shall, and shall cause its Property Manager to, operate and cause
occupancy of and charge Affordable Rent for the Housing Units in conformity with these covenants
and this Agreement.
4.3 Duration of Affordability Requirements; Affordability Period. The Project,
including without limitation all the Housing Units thereon, shall be subject to the requirements of this
Section 4., et seq. for the 99-year Affordability Period, which period commences on the date of the
Closing of Acquisition.
4.4 Selection of Tenants.
4.4.1 Marketing and Tenant Selection Plan. During the Affordability Period, the
rental of the Housing Units, as and when they are vacated by the existing tenants, shall be conducted
in accordance with the approved Marketing and Tenant Selection Plan and any affirmative marketing
requirements which have been adopted by the Authority prior to the date hereof. The availability of
Housing Units shall be marketed in accordance with the Marketing and Tenant Selection Plan as the
same may be amended from time to time with Authority's prior written approval, which approval
shall not unreasonably be withheld. Developer shall provide Authority with periodic reports with
respect to the marketing for lease of the Housing Units. Authority agrees to exercise reasonable
efforts to assist Developer in connection with the implementation of the Marketing and Tenant
Selection Plan; provided, however, Authority shall not be under any obligation to incur any out-of-
pocket expenses in connection therewith.
4.4.2 Waiting List. Developer shall be responsible for the selection of new Senior
Citizen tenants for the Housing Units, as and when vacated by the current tenants in occupancy as of
Closing of Acquisition, in compliance with all lawful criteria, and shall do so in accordance with the
Marketing and Tenant Selection Plan. Throughout the Affordability Period, Developer shall
establish and maintain the waiting list of eligible, prospective Senior Citizen tenants to facilitate
retenanting Housing Units in compliance with the approved Marketing and Tenant Selection Plan,
Property Management Plan, and Anaheim Municipal Code. Further, subject to applicable Fair
Housing Laws and in compliance with the Anaheim Municipal Code Authority shall be afforded a
priority marketing period for fifteen (15) days after receiving written notice from Developer that one
or more Housing Units have become vacant, during which time Authority and Developer shall work
cooperatively to select tenants for any vacant Housing Unit. Developer shall provide prompt written
notice to Authority when vacancies of Housing Units occur to facilitate timely retenanting of
Housing Units pursuant to the approved Marketing and Tenant Selection Plan, Property Management
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Plan and Anaheim Municipal Code. Subject to applicable Fair Housing Laws, Developer's waiting
list of prospective, eligible Senior Citizen tenants for Housing Units shall include and follow the
following order of priority for selection of tenants, and Authority will follow such order of priority:
(a) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who have been displaced from their residences due to programs
or projects implemented by the City of Anaheim or another governmental entity;
(b) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who have applied for and have received Portable Vouchers from
Authority;
(c) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who are listed on Authority's waiting lists for affordable housing
and who live and/or work in Anaheim; and
(d) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who live and/or work in Anaheim.
4.5 Household Income Requirements. Annually and on or before one hundred twenty
(120) days following the end of each calendar year, Developer shall prepare and submit to Authority,
at Developer's expense, a written summary of the income, household size, and rent payable by each
of the tenants of the Housing Units and, upon the written request of the Authority, copies of each and
all leases or rental agreements and the current rules and regulations for the Project. At Authority's
request, Developer shall also provide to Authority completed income computation and certification
forms, all in a form reasonably acceptable to Authority, for each and all tenants. Developer shall
obtain, or shall cause to be obtained by the Property Manager, a certification from each household
leasing a Housing Unit demonstrating that such household is a Very Low Income Household, or Low
Income Household, as applicable, and meets the eligibility and occupancy requirements established
for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property Manager,
the income and household size certification of the tenant household.
4.6 Relocation; Developer Responsible for Cost of Relocation. Developer
acknowledges that tenants at the Site may be eligible for advisory assistance, monetary payments,
and other benefits related to temporary or permanent displacement under the Relocation Laws and an
approved Relocation Plan for the Project. Developer shall be and remain fully responsible for
administering determinations of eligibility, extent of advisory assistance, and scope and amount of
benefits and monetary payments, if any, pursuant to the applicable Relocation Laws and the
Relocation Plan for the Project. Prior to the Date of Agreement, the Relocation Plan was reviewed
by the Executive Director and presented to the City Council for consideration and action.
Going forward, to the extent the Relocation Laws are otherwise applicable, Developer remains
responsible to administer and determine eligibility for, extent of advisory assistance, and scope and
amount of benefits and monetary payments, if any, to occupants, subject to review by Executive
Director. Developer shall cause to be provided and shall pay any and all Relocation assistance and
benefits in accordance with Relocation Laws. Developer is and shall remain solely responsible for,
and to pay, all out-of-pocket costs for direct payments to eligible persons for Relocation assistance
and benefits due and paid and for any other costs incurred related to Relocation, including a
Relocation consultant, and any and all costs or fees incurred.
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4.6.1 Indemnification by Developer Relating to Relocation. For the duration of
the Affordability Period, Developer hereby covenants and agrees to indemnify, save, protect, hold
harmless, pay for, and defend the Indemnitees from and against any and all liabilities, suits, actions,
claims, demands, penalties, damages (including without limitation penalties, fines, and monetary
sanctions), losses, costs, or expenses, including without limitation consultants' and attorneys' fees, or
relocation benefits claimed or payable under applicable Relocation Laws (for purposes hereof, the
foregoing shall be referred to as "Liabilities") which may now or in the future be incurred or suffered
by Indemnitees by reason of, or resulting, in full or in part, or in any respect whatsoever from the
Relocation of residents of the Site pursuant to or resulting from the implementation of this
Agreement or the Regulatory Agreement (but excluding Liabilities, if any, incurred as the result of an
Indemnitee's gross negligence or willful misconduct or a breach by Authority of any representation,
warranty or covenant contained in this Agreement or the Regulatory Agreement. At the request of
Developer, Authority shall cooperate with and assist Developer in its defense of any such claim,
action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense; provided that Authority shall not be obligated to incur any expense in connection with such
cooperation or assistance.
4.6.2 Release. Developer, on behalf of itself and its Affiliates, and any and all
successors and assigns hereby fully and finally releases the Indemnitees from any and all manner of
actions, causes of action, suits, obligations, liabilities, judgments, executions, debts, claims and
demands of every kind and nature whatsoever, known and unknown, which Developer and any of its
affiliates, successors or assigns may now have or hereafter obtain against the Indemnitees by reason
of, arising out of, relating to, or resulting from in full or in part, the election of Developer to proceed
with the Project pursuant to this Agreement or the Regulatory Agreement except to the extent arising
out of the gross negligence or willful misconduct of any of the Indemnitees or a breach by Authority
of any representation, warranty or covenant contained in this Agreement or the Regulatory
Agreement (collectively, "Claims"), which release shall include but not be limited to any Claims for
Relocation assistance or benefits under federal, state, local, or any other applicable laws or
Governmental Requirements, except to the extent arising out of the gross negligence or willful
misconduct of any of the Indemnitees or a breach by Authority of any representation, warranty or
covenant contained in this Agreement or any of the other Transaction Documents. The parties agree
that, with respect to the release of Claims as set forth above, all rights under Section 1542 of the
California Civil Code and any similar law of any state or territory of the United States are expressly
waived. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Developer Initials:
4.7 Leases; Rental Agreements for Housing Units. Developer shall submit a standard
lease form for use at the Project to Authority Executive Director for approval (which approval shall
not be unreasonably withheld, conditioned or delayed), which lease form shall comply with the
requirements of this Agreement and the Authority Regulatory Agreement, including all applicable
provisions of the HAL and the Section 8 Laws. Authority shall reasonably approve such lease form
upon finding that such lease form is consistent with this Agreement, including all applicable
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provisions of the HAL and the Section 8 Laws. Developer shall enter into a written lease, in the form
approved by Authority (which approval shall not be unreasonably withheld, conditioned or delayed),
with each tenant/tenant household of the Project. During the Affordability Period, any material
changes to the lease form are subject to the reasonable review and approval of the Executive
Director.
4.8 Supportive Services. Developer shall use its best efforts to implement the
Supportive Services Plan, and such other services as may be approved by the Authority Executive
Director, which approval shall not be unreasonably withheld. The Supportive Services Plan when
approved by the Executive Director shall be appended as Attachment No. 12. Any reduction of or
material change in the scope, amount, or type of social and supportive services to be provided at the
Site shall be subject to prior approval of Authority, which approval shall not be unreasonably
withheld, conditioned or delayed. Developer shall provide Supportive Services at the Project in
accordance with this Section 4.8 throughout the Affordability Period. The Supportive Services Plan
shall be implemented by Developer shall be included in its annual budget and may be paid for, in
whole or in part, with grants or loans from third parties. The nonprofit entity Jamboree Housing
Corporation (or its Affiliate) is hereby approved as the provider of Supportive Services under this
Agreement.
4.8.1 Alternative Supportive Services. In the event that, despite Developer's
reasonable best efforts, Developer is unable to provide all of the Supportive Services described in the
Authority -approved plan, Developer shall use reasonable best efforts to provide comparable social
and supportive services programming at the Project that are reasonably similar in scope and content
to the Supportive Services Plan during the entire Affordability Period. Such substitute services shall
be subject to the prior written approval of the Authority Executive Director, which approval shall not
be unreasonably withheld, conditioned or delayed. In the event the characteristics of the Senior
Citizen resident population at the Project change substantially, Authority Executive Director shall
have the authority to approve revisions to the Supportive Services Plan in her/his reasonable
discretion.
4.9 Intentionally omitted.
4.10 Maintenance.
4.10.1 General Maintenance. Developer shall maintain the Site and all
improvements thereon, including lighting and signage, in good condition, free of debris, waste and
graffiti, and in compliance with all applicable provisions of the Anaheim Municipal Code.
Developer shall maintain in accordance with the Maintenance Standards (as hereinafter defined) the
improvements and landscaping on the Site. Such Maintenance Standards shall apply to all buildings,
signage, common amenities, lighting, landscaping, irrigation of landscaping, architectural elements
identifying the Site and any and all other improvements on or about the Site. To accomplish the
maintenance, Developer shall either staff or contract with and hire licensed and qualified personnel to
perform the maintenance work, including the provision of labor, equipment, materials, support
facilities, and any and all other items necessary to comply with the requirements of this Agreement.
4.10.2 Maintenance Standards. Developer and its maintenance staff, contractors
or subcontractors shall comply with the following maintenance standards as to the Site and overall
Project (collectively, "Maintenance Standards"):
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(a) The Site shall be maintained in conformance and in compliance with
the final Development Plans and reasonable maintenance standards that comply with the industry
standard for comparable first quality senior affordable housing projects in the County, including but
not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all
private improvements and public improvements to the curbline.
(b) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy appearance and safe road conditions
and visibility, and irrigation coverage; replacement, as needed, of all irrigation components and plant
materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for support of trees, as necessary.
(c) Hardscape maintenance shall include, but not be limited to: driveway,
parking stalls, parking stops, walkways (whether concrete, pavers, flagstone or other non -concrete
material), must be kept free of trip/fall hazards greater than one -quarter inch (1/4 inch); planter
borders, retaining features, water features, fencing (metal, wood, vinyl), and outdoor furniture.
(d) Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed -free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to
mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
4.10.3 Notice of Non -Compliance with Maintenance Standards. Authority agrees
to notify Developer in writing if the condition of the Site does not meet with the Maintenance
Standards and to specify the deficiencies and the actions required to be taken by Developer to cure
the deficiencies. Upon notification of any maintenance deficiency, Developer shall have thirty
(30) days within which to correct, remedy or cure the deficiency (or commence to correct, remedy or
cure the deficiency and thereafter diligently pursue the same.) If the written notification states the
problem is urgent relating to the public health and safety, then Developer shall have forty-eight
(48) hours to rectify the problem, or at a minimum render the condition safe (and thereafter
commence and complete with due diligence a complete correction of the problem.) In the event
Developer does not maintain the Site in the manner set forth herein and in accordance with the
Maintenance Standards, Authority shall have, in addition to any other rights and remedies hereunder
after the notice and cure periods set forth herein, the right to maintain the Site, or to contract for the
correction of such deficiencies, after written notice to Developer, and Developer shall be responsible
for the payment of all such costs incurred by Authority.
4.10.4 Program Maintenance. In addition to the routine maintenance and repair
required pursuant to Section 4.10.1, Developer shall perform the following minimum programmed
maintenance of the Improvements to the Site with due consideration by the Executive Director of the
most recent PCNA as a primary factor:
(a) Interior painting and window covering replacement at least every
five (5) years;
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(b) Exterior painting at least every ten (10) years;
(c) Repair and resurfacing of parking areas and walkways at least every
five (5) years; and
(d) Replacement of all deteriorated or worn landscaping and outdoor
furnishings or related equipment at least every five (5) years.
(i) Upon the request of Developer, the Executive Director, at her
sole and absolute discretion, may grant a waiver or deferral of any program maintenance
requirement. Developer shall keep such records of maintenance and repair as are necessary to prove
performance of the program maintenance requirements.
4.10.5 Minimum and Maximum Occupancy Limits. The minimum occupancy of
the Housing Units shall not be less than one person per bedroom. The maximum occupancy of the
Housing Units shall not exceed more than such number of persons as is equal to two persons per
bedroom, plus one; thus: (1) for the studio 0-bedroom Housing Units the maximum occupancy is two
persons, and (ii) for the one -bedroom Housing Units the maximum occupancy shall not exceed three
(3) persons.
4.11 Management of the Project.
4.11.1 Property Manager. Developer shall manage the Project, or cause such
property management, including Site and Improvements in a prudent and business -like manner,
consistent with good property management standards for other comparable Senior Citizen high
quality, well -managed affordable rental housing projects in the County. Developer may contract
with a property management company or property manager, to operate and maintain the Project in
accordance with the terms of this Section 4.11 ("Property Manager"); provided, however, the
selection and hiring of the Property Manager (and each successor or assignee), including any
Affiliate, is and shall be subject to prior written approval of Authority's Executive Director (or
designee) in her or his sole and reasonable discretion, which approval shall not be unreasonably
withheld, conditioned or delayed. RCM is hereby approved to act as the Property Manager, subject
to Executive Director review of the scope of services, itemized fees, and fee contract for property
management between Developer and RCM. The property management contract shall include express
provisions referencing this Agreement, the Authority Regulatory Agreement, 2008 Bond Regulatory
Agreement, and 2008 Tax Credit Regulatory Agreement, with acknowledgement of receipt and
review of such agreements and that RCM (or successive Property Manager) shall manage the Project
in compliance therewith. In particular, the Property Manager shall manage the Project in accordance
with the definitions of Affordable Rent herein, the tenant selection requirements herein, and the
definitions of Very Low Income and Low Income herein. Any fee paid to the Property Manager for
Supportive Services provided to the tenants shall be exclusive of the fee paid to the Property
Manager relating to the management of the Project. Except for RCM, Developer shall conduct due
diligence and background evaluation of any potential third party property manager or property
management company to evaluate experience, references, credit worthiness, and related
qualifications as a property manager. Any proposed property manager shall have significant and
relevant prior experience with Senior Citizen affordable housing projects and properties comparable
to Bel'Age Senior Apartments and the references and credit record of such property
manager/company shall be investigated (or caused to be investigated) by Developer prior to
submitting the name and qualifications of such proposed property manager to the Executive Director
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for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.
A complete and true copy of the results of such background evaluation shall be provided to the
Executive Director. Approval of a Property Manager by Authority's Executive Director shall not be
unreasonably delayed but shall be in her/his sole reasonable discretion, and Authority Executive
Director shall use good faith efforts to respond as promptly as practicable in order to facilitate
effective and ongoing property management of the Project by one qualified Property Manager. The
replacement of RCM by Developer and/or the selection by Developer of any new or different
Property Manager during the Affordability Period shall also be subject to the foregoing requirements.
4.11.2 Property Management Plan. Prior to and as a Condition Precedent to the
commencement of Substantial Rehabilitation Phase 2 Rehab, Developer shall prepare and submit to
the Executive Director for review and approval, which approval shall not be unreasonably withheld,
conditioned or delayed, a management plan for the Project that includes a detailed plan and strategy'
("Property Management Plan"). Executive Director approval of the Property Management Plan shall
not be unreasonably withheld, conditioned, or delayed. Subsequent to approval of the Property
Management Plan by the Executive Director the ongoing management and operation of the Project
shall be in compliance with the approved Property Management Plan. During the Affordability
Period, Developer and its Property Manager may from time to time submit to the Executive Director
proposed amendments to the Property Management Plan, the implementation of which shall also be
subject to the prior written approval of the Executive Director, which approval shall not be
unreasonably withheld, conditioned or delayed.
4.11.3 Gross Mismanagement. During the Affordability Period, and in the event of
"Gross Mismanagement" (as defined below) of the Project, Executive Director and/or Authority shall
have and retain the authority to direct and require any condition(s), acts, or inactions of Gross
Mismanagement to cease and/or be corrected immediately, and further to direct and require the
immediate removal of the Property Manager and replacement with a new qualified and approved
Property Manager, if such condition(s) is/are not ceased and/or corrected (or such correction has not
commenced) after expiration of thirty (30) days from the date of written notice from Executive
Director. If Developer or Property Manager has commenced to cure such Gross Mismanagement
condition(s) on or before the 20th day from the date of written notice (with evidence of such
submitted to the Executive Director), but has failed to complete such cure by the 30th day (or such
longer period if the cure cannot reasonably be accomplished in thirty (30) days as reasonably
determined by the non -defaulting party), then Developer and its Property Manager shall have an
additional 10 days to complete the cure of Gross Mismanagement condition(s). In no event shall any
condition of Gross Mismanagement continue uncured for a period exceeding forty-five (45) days
from the date of the initial written notice of such condition(s), except that the condition described in
subdivision (d) below may exist for up to, but no longer than sixty (60) days (i.e., 45 plus up to
15 days), without triggering Authority's right to remove the Property Manager as described in the
immediately following sentence as long as Developer has commenced and is diligently and
continuously working to cure such conditions of Gross Mismanagement. If such condition(s) do
persist beyond such period, Executive Director shall have the sole and absolute right, subject to
Section 4.11.3(a) below, to remove the Property Manager and Developer shall contract with a
replacement Property Manager reasonably acceptable to Authority (in accordance with this
Section 4.11).
' In the Marketing and Tenant Selection Plan and Social Services Plan.
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(a) In the event the Gross Mismanagement is not cured and corrected by
Developer or its Property Manager within the applicable 45-day, or up to 60-day, cure and correction
period described in Section 4.11.3 above, Authority shall provide a second notice and additional
30-day cure period to Developer, with copies to its Lender, to inform Developer (and its Lender) that
the Authority intends to remove and replace the Property Manager.
(i) During that second notice 30-day period, Developer (and its
Lender) have the right, but not the obligation, to replace the Property Manager, and thereafter, if not
replaced by Developer (or any of the New Partners), the Authority has the sole and absolute right to
immediately and without further notice to replace the Property Manager, with all costs associated
therewith to be and remain the sole legal and financial obligation of Developer.
(b) For purposes of this Agreement, the term "Gross Mismanagement"
shall mean management of the Project in a manner that violates the terms and/or intention of this
Agreement to operate a first quality affordable senior housing complex, and shall include, but is not
limited to, any one or more of the following:
(i) Habitually leasing to tenants who exceed the prescribed
income levels;
(ii) Habitually allowing tenants to exceed the prescribed
occupancy levels without taking prompt action to stop such overcrowding;
(iii) Under -funding required reserve accounts after notice and cure
period;
(iv) Failing habitually to timely maintain the Project in accordance
with the Property Management Plan and Maintenance Standards;
(v) Fraud or embezzlement of Project funds, including without
limitation funds in the reserve accounts;
(vi) Failing to fully cooperate with the Anaheim Police
Department or other local law enforcement agency(ies) with jurisdiction over the Project in
maintaining a crime -free environment within the Project;
(vii) Failing to cooperate with the Anaheim Fire Department or
other local public safety agency(ies) with jurisdiction over the Project in all reasonable respects, in
maintaining a safe and accessible environment within the Project, in particular for public safety and
other first responders as to ingress, egress and accessibility to and from the Project;
(viii) Failing to cooperate with the Anaheim Planning & Building
Department, including the Code Enforcement Division, or other local health and safety enforcement
agency(ies) with jurisdiction over the Project in all reasonable respects, in maintaining a decent, safe
and sanitary environment within the Project;
(ix) Failing to conduct, or refer to appropriate third party(ies) to
conduct, health, safety and welfare checks as reasonable for residents who are reasonably known to
Developer, its Property Manager, onsite resident manager(s), social and supportive services
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providers, or other onsite workers be infirm, ill, incapacitated, or otherwise in need of close
supervision of their living arrangement and ability to conduct their basic activities of daily living; and
(x) Spending funds from the Capital Replacement Reserve
account for items that are not defined as eligible costs.
(c) Notwithstanding the requirements of the Property Manager to correct
any condition of Gross Mismanagement as described above, Developer is obligated and shall use its
best efforts to correct any defects in property management or operations at the earliest feasible time
and, if necessary, to replace the Property Manager as provided above. Developer shall include
reference to the foregoing requirements and requirements of this Agreement within any contract
between Developer and its Property Manager for the Project.
4.11.4 Code Enforcement. Developer acknowledges and agrees that Authority,
City, and their employees and authorized agents, shall have the right to conduct code compliance
and/or code enforcement inspections of the Project and the individual Housing Units, both exterior
and interior, at reasonable times and upon reasonable notice (not less than 48 hours prior notice,
except in an emergency) to Developer and/or an individual tenant. If such notice is provided by
Authority or City representative(s) to Developer, then Developer (or its Property Manager) shall
immediately and directly advise any affected tenant of such upcoming inspection and cause access to
the area(s) and/or Housing Units at the Project to be made available and open for inspection.
Developer shall include express advisement of such inspection rights within the lease/rental
agreements for each Housing Unit in order for each and every tenant and tenant household to be
aware of this inspection right and such inspection(s) shall not unreasonably interfere with use and
enjoyment of the premises and common areas or any applicable Housing Unit(s). In the event of
refusal of Authority or City representatives' access hereunder, Developer shall not object to an
application for and issuance of an administrative inspection warrant to be issued by a court of
competent jurisdiction that authorizes inspection, with the costs therefor to be and remain the sole
financial obligation of Developer as eligible Third Party Costs.
4.12 Capital Replacement Reserve. Upon the Closing of Acquisition, Developer shall
fund the Capital Replacement Reserve. The non -availability of funds in the Capital Replacement
Reserve does not in any manner relieve or lessen Developer's obligation to undertake any and all
necessary capital repairs, improvements, or replacements and to continue to maintain the Project in
the manner prescribed herein. Not less than once per year, Developer, at its expense, shall submit to
Authority Executive Director an accounting for the Capital Replacement Reserve for the Project.
Upon the expiration of the term of the Existing HAP Contract Second Extension, and for the
remaining years of the Affordability Period, upon request by the Executive Director Developer shall
provide evidence of the Capital Replacement Reserve account, amounts on deposit, amounts
withdrawn, and supporting documentation for amounts expended therefrom.
4.13 Operating Reserve. Upon the Closing of Acquisition, Developer shall deposit to the
Operating Reserve account One Hundred Eighty Thousand Dollars ($180,000).
4.14 Non -Discrimination Covenants.
4.14.1 Nondiscrimination and Equal Opportunity. Developer hereby covenants,
by and for itself, its successors and assigns, and all persons claiming under or through them, to
comply with the following laws relating to nondiscrimination and equal opportunity: (1) The Fair
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Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et seq.;
Executive Order 11063, as amended by Executive Order 12259 (3 CFR, 1959-1963 Comp., p. 652
and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing
regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4)
(Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1;
the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR
part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing
regulations at part 8 of this title; title II of the Americans with Disabilities Act, 42 U.S.C. 12101 et
seq.; 24 CFR part 8; Executive Order 11246, as amended by Executive Orders 11375, 11478, 12086,
and 12107 (3 CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-1970 Comp., p.684; 3 CFR, 1966-1970
Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978 Comp., p.264, respectively) (Equal
Employment Opportunity Programs) and implementing regulations at 41 CFR chapter 60; Executive
Order 11625, as amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3 CFR,
1977 Comp., p. 139) (Minority Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp.,
p. 198) (Minority Business Enterprise Development); and Executive Order 12138, as amended by
Executive Order 12608 (3 CFR, 1977 Comp., p.393 and 3 CFR, 1987 Comp., p. 245) (Women's
Business Enterprise).
4.14.2 Prohibition of Inquiries on Sexual Orientation or Gender Identity.
Developer further covenants, by and for itself, its successors and assigns, and all persons claiming
under or through them, not to inquire about the sexual orientation or gender identity of an applicant
for, or occupant of, the Project or any Housing Unit at the Site, for the purpose of determining
eligibility for occupancy of such Housing Units or otherwise making such Housing Units available.
This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any
individual from voluntarily self -identifying sexual orientation or gender identity. Further,
determinations of eligibility for occupancy of Housing Units at the Project shall be made in
accordance with the eligibility requirements provided for such program by HUD, and such Housing
Units shall be made available without regard to actual or perceived sexual orientation, gender
identity, or marital status.
4.14.3 Covenants Run With the Land. The covenants established in this Section
4.14, et seq., shall, without regard to technical classification and designation, be binding for the
benefit and in favor of Authority and its successors and assigns, and shall remain in effect in
perpetuity.
4.14.4 Clauses in Contracts and Leases. All contracts and leases relating to the
Site shall contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, her or his heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (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 premises herein conveyed, nor shall
the grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
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occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed."
The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself,
her or his heirs, executors, administrators, and assigns, and all persons claiming under or through him
or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (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 leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or
herself, or any person claiming under or through him or her, 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."
(c) In contracts: "There shall be no discrimination against or segregation
of, any person or group of persons on account of any basis listed in subdivision (a) or (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
premises which are the subject of this Agreement, nor shall the grantee or any person claiming under
or through him or her, 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,
sublessees, or vendees in the premises herein conveyed."
4.15 Monitoring and Recordkeeping. Throughout the Affordability Period, Developer
shall comply with all applicable recordkeeping and monitoring requirements of the HAL and shall
annually complete and submit to Authority a Certification of Continuing Program Compliance in a
form provided by Authority. Representatives of Authority (and City) shall be entitled to enter the
Site upon at least forty-eight (48) hours' notice, to monitor compliance with this Agreement, to
inspect the books and records of the Site, and to conduct an independent audit or inspection of such
books and records. Developer agrees to cooperate with Authority in making all of its records for the
Project and making the Site and all Housing Units thereon available for inspection or audit subject to
the privacy rights of tenants under applicable laws. Books and records shall be made available for
review and inspection and/or audit in Orange County, California. Developer agrees to maintain all
books and records relating to the Site and the Project in a businesslike manner.
4.15.1 Right to Audit. Developer shall keep full and accurate books of account,
records and other pertinent data with respect to operations of the Project. Such books of account,
records, and other pertinent data shall be kept for a period of three (3) years after the end of each
Developer's fiscal year, and shall be made available for review or audit by the Authority or its
designees with a three (3) day written notification to Developer.
4.15.2 Annual Monitoring Fee. Concurrently with the delivery of each annual
report and Certificate of Continuing Program Compliance to Authority, Developer shall pay an
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Annual Monitoring Fee to Authority in the amount of Sixty Dollars ($60) per Housing Unit
($60.00 x 178 = $10,680) increased annually by 3%, which shall compensate Authority for its costs
incurred to monitor Developer's compliance with this Agreement.
4.16 Authority Regulatory Agreement to be Recorded. The substantial form of the
Authority Regulatory Agreement is appended as Attachment No. 5. The execution and recordation
of the Authority Regulatory Agreement shall occur simultaneously with the Closing of Acquisition.
5. [Reserved].
6. DEFAULT AND REMEDIES
6.1 Events of Default. An "Event of Default" or "Default" shall occur under this
Agreement when there shall be a breach of any condition, covenant, warranty, promise or
representation contained in this Agreement and the breach shall continue for a period of
thirty (30) days after written notice thereof to the defaulting party without the defaulting parry curing
such breach, or if the breach cannot reasonably be cured within a thirty (30) day period, commencing
the cure of the breach within the thirty (30) day period and thereafter diligently proceeding to cure
the breach; provided, however, that if a different period or notice requirement is specified for any
particular breach under any other paragraph of this Agreement, the specific provision shall control.
6.2 Remedies. The occurrence of any Event of Default shall give the non -defaulting
party the right to proceed with any and all remedies set forth in this Agreement, including without
limitation (a) an action for damages, (b) an action or proceeding at law or in equity to require the
defaulting party to perform its obligations and covenants under the documents executed pursuant
hereto, (c) an action to enjoin acts or things which may be unlawful or in violation of the provisions
of such documents, and (d) the right to terminate this Agreement.
6.2.1 Expressly Reserved Right of Authority to Cancel and Terminate the
Existing HAP Contract Second Extension in the Event of an Uncured Event of Default by
Developer Prior to Completion of the Substantial Rehabilitation. In addition to the remedies
described in Section 6.2 above, Developer knowingly, voluntarily and intentionally agrees that until
the Substantial Rehabilitation is complete (excepting only minor punch -list items), Authority has and
shall retain all rights (but not the obligation) to cancel and terminate unilaterally the Existing HAP
Contract Second Extension in the Event of Default by Developer relating to the commencement,
construction, and completion of the Substantial Rehabilitation, after passage of the time periods set
forth herein for cure of the applicable Event of Default. This unilateral right of termination shall
exist independent and notwithstanding contrary provision(s) or any basis to terminate the Existing
HAP Contract Second Extension under the terms thereof. Developer acknowledges that Authority
would not have entered into this Agreement and thereby extended the Existing HAP Contract by the
Existing HAP Contract Second Extension but for the expectation that the Substantial Rehabilitation
would be undertaken and completed (excepting only minor punch -list items) by Developer in
compliance with this Agreement.
Developer Initials
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6.3 Force Majeure. Subject to the parry's compliance with the notice requirements as
set forth below, performance by a party hereunder shall not be deemed to be in default, and all
performance and other dates specified in this Agreement shall be extended, where delays or defaults
are due to causes beyond the control and without the fault of the parry claiming an extension of time
to perform, which may include, without limitation, the following: war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics,
quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or
priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools,
acts or omissions of the other party, or acts or failures to act of any public or governmental entity
(except that Authority's acts or failure to act shall not excuse performance of Authority hereunder).
Subject to the timing and provisions of Section 3.11.1, in no event shall Developer's difficulty or
inability to obtain and secure the Primary Loan or other financing become an event of force majeure.
An extension of the time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if notice by the parry claiming
such extension is sent to the other party within thirty (30) days after the parry becomes aware of the
commencement of the cause.
6.3.1 COVID-19 Acknowledgement; COVID-19 is Not an Event of Force
Majeure. Each of Developer and Authority acknowledge that as of the Date of Agreement, each
party is aware of the Coronavirus pandemic ("COVID-19"); neither party is required to provide a
specific notice to the other party of such event pursuant to this Section 6.3, provided however, such
acknowledgement shall not, expressly or impliedly, establish force majeure in Developer
commencing performance under this Agreement; provided, however unforeseen circumstances may
arise after commencement of performance of this Agreement related to COVID-19 that may
constitute force majeure so long as such unforeseen circumstances are due to causes beyond the
control and without the fault of the party claiming an extension of time to perform. In this regard,
too, the City of Anaheim, including the Anaheim Housing Authority, and related entities (together,
"Anaheim Entities"), inform Developer, and other stakeholders in this transaction, there can be no
assurances that the spread of COVID-19 will not materially impact the Anaheim Entities, and,
accordingly, materially adversely impact local funding and services, such that there may be delays,
interruptions, adjustments, even cessations, in the scope of staffing, services, and other functions
performed by local government, as well as federal, State, regional, County functions, provided that
nothing in the foregoing is or shall be construed as anticipatory repudiation by the Authority, or any
of the Anaheim Entities.
Similarly, Developer informs Authority there can be no assurances that the
spread of COVID-19 will not materially impact Developer and accordingly, materially adversely
impact Developer's performance hereunder, including, without limitation, as a result of the shortage
or unavailability of labor, materials and supplies, including as a result of various governmental orders
and business closures, such that there may be delays, interruptions, adjustments, even cessations, in
Developer's performance hereunder; provided however, in the event of shortage(s) and/or limited
availability of labor to Developer in performance of this Agreement, if any, Developer agrees to use
its commercially reasonable efforts to cause the procurement of materials and/or supplies, as
applicable, and/or cause hiring of labor, as reasonably necessary to cause the shortest feasible and
limited shortages, delays, and/or interruptions in performance under this Agreement.
(a) The parties expect this transaction will proceed to Closing of
Acquisition; nonetheless, the parties intend, and are reciprocally entitled to a continuing sense of
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security and reliance with regard to the other party's future and continued performance under this
Agreement, which both parties hereby acknowledge.
6.4 Termination by Developer. In the event that Developer is not in Default under this
Agreement and:
(a) Developer is unable to obtain sufficient financing for the development
and operation of the Project in accordance with the provisions of Section 3.11; or
(b) Developer disapproves of the environmental condition of the Site or
Improvements pursuant to Section 2.1.1(b)(v); or
(c) Developer disapproves the condition of title to the Site pursuant to
Section 2.1.1(b)(111); or
(d) One or more of the Conditions Precedent set forth in Section 2.1.1(b)
is/are not timely satisfied (or waived by Developer), and such Condition Precedent is not satisfied
after notice and an opportunity to satisfy as provided in Section 6.1 hereof, and such failure is not
caused by Developer; or
(e) Authority is otherwise in Default of this Agreement and fails to cure
such Default within the time set forth in Section 6.1 hereof,
then this Agreement and any rights of Authority or any assignee or transferee with respect to or
arising out of this Agreement may, at the option of Developer, be terminated by Developer by written
notice thereof to Authority. From the date of the written notice of termination of this Agreement by
Developer to Authority and thereafter this Agreement shall be deemed terminated, subject to the
rights of the Lender pursuant to the Primary Loan, except that if Authority is in default hereunder
Developer, after delivery of notice of default and expiration of the cure period provided in
Section 6.1 hereof, may pursue any remedies it has at law or equity.
6.5 Termination by Authority. In the event that Authority is not in Default under this
Agreement, and:
(a) One or more of the Conditions Precedent set forth in Section 2.1.1(a)
is/are not timely satisfied (or waived by Authority), and such Condition Precedent is not satisfied
after notice and an opportunity to satisfy as provided in Section 6.1 hereof, and such failure is not
caused by Authority; or
(b) Developer is otherwise in Default of this Agreement and fails to cure
such Default within the time set forth in Section 6.1 hereof,
then this Agreement and any rights of Developer or any assignee or transferee with respect to or
arising out of this Agreement may, at the option of Authority, be terminated by Authority by written
notice thereof to Developer. From the date of the written notice of termination of this Agreement by
Authority to Developer and thereafter this Agreement shall be deemed terminated, and there shall be
no further rights or obligations between the parties as to the Project, except that if Developer is in
default hereunder Authority, after delivery of notice of default and expiration of the cure period
provided in Section 6.1 hereof, may pursue any remedies it has at law or equity, including without
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limitation all rights and remedies of the Authority (and City of Anaheim) under, as applicable, the
Existing HAP Contract or the Existing HAP Contract Second Extension.
6.6 Attorneys' Fees. In addition to any other remedies provided hereunder or available
pursuant to law, if any party brings an action or proceeding to enforce, protect or establish any right
or remedy hereunder or under any of the documents executed pursuant hereto, the prevailing party
shall be entitled to recover from the other parry its costs of suit, including without limitation expert
witness fees, and reasonable attorneys' fees.
6.7 Remedies Cumulative. No right, power, or remedy given to either party by the
terms of this Agreement 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 such parry by the terms of any such instrument, or by any statute or
otherwise against the other parry and any other person.
6.8 Waiver of Terms and Conditions. Either party may, in its sole discretion, waive in
writing any of the terms and conditions of this Agreement benefiting such parry. Waivers of any
covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent
breach of the same covenant, term, or condition.
7. GENERAL PROVISIONS.
7.1 Time is of the Essence. Time is expressly made of the essence with respect to the
performance by Authority and Developer of each and every obligation and condition of this
Agreement.
7.2 Notices. Any approval, disapproval, demand, document or other notice ("Notice")
which any party may desire to give to another party under this Agreement must be in writing and
may be given either by (i) personal service, (ii) delivery by reputable document delivery service such
as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the
United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address
of the parry as set forth below, or at any other address as that party may later designate by Notice.
Service shall be deemed conclusively made at the time of service if personally served; the next
business day if sent by overnight courier and receipt is confirmed by the signature of an agent or
employee of the parry served; the next business day after deposit in the United States mail, properly
addressed and postage prepaid, return receipt requested, if served by express mail; and three (3) days
after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt
requested, if served by certified mail.
Developer: Belage Preservation Limited Partnership
c/o Jonathan Rose Companies
551 Fifth Avenue, 23rd Floor
New York, New York 10176
Attention: Brandon Kearse
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With a Copy to: Goulston & Storrs
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attention: Deborah S. Horwitz
With a Copy to: Jamboree Housing Corporation
17701 Cowan Avenue, Suite 200
Irvine, CA 92614
Attention: Michael Massie
Authority: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Theresa Bass, Secretary
With a Copy to: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Grace Ruiz-Stepter, Executive Director
City Attorney, City of Anaheim
200 South Anaheim Boulevard
Anaheim, California 92805
Attention: City Attorney
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attention: Celeste Stahl Brady
Such addresses may be changed by Notice to the other party(ies) given in the same manner as
provided above.
7.3 Representations and Warranties of Developer. Developer hereby represents and
warrants to Authority as follows:
(a) Organization. Developer is a California limited partnership duly
organized, validly existing, formed, and in good standing under the laws of the State of California
that has the power and authority to own property and carry on business as is now being conducted.
(b) Authority of Developer. Developer has full power and authority to
execute and deliver this Agreement, the Authority Regulatory Agreement, Existing HAP Contract
Second Extension, all other Transaction Documents, and to perform and observe the terms and
provisions of all thereof.
(c) Valid Binding Agreements. This Agreement, the Authority
Regulatory Agreement, other Transaction Documents, and all other documents or instruments which
have been executed and delivered pursuant to or in connection with this Agreement constitute or, if
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not yet executed or delivered, will when so executed and delivered constitute, legal, valid and
binding obligations of Developer enforceable against it in accordance with their respective terms.
(d) Pending Proceedings. To Developer's Best Knowledge, Developer
is not in default under any law or regulation or under any order of any federal, state, or local court,
board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings
pending or, to the knowledge of Developer, threatened against or affecting Developer or the Site, at
law or in equity, before or by any federal, state, or local court, board, commission or agency
whatsoever which might, if determined adversely to Developer, materially affect Developer's ability
to perform its obligations hereunder.
(e) Commercial Funding and Public Funding Review. Developer
agrees to notify Authority in the event that it applies for or proposes to use other or additional
sources of commercial funding and/or public funding for the Project (other than funds obtained by
the Developer to be used for "green" or sustainable improvements or for the provision of social
services) prior to the issuance of the Release of Construction Covenants as to the Phase 2 Rehab.
(f) No Material Adverse Change. Developer hereby represents and
warrants, as of the date of this Agreement, that all documents, materials and information provided by
Developer to Authority relating to Developer's qualifications, financial strength, and ability to
perform its obligations hereunder are true, correct and complete in all material respects as of their
respective dates and no Material Adverse Change has occurred or is reasonably likely to occur that
would make any such documents, materials or information incorrect, incomplete, or misleading in
any material respect.
(i) The representations and warranties set forth in this
Section 7.3, subject to such exception(s), shall survive the Closing. During the term of the Existing
HAP Contract Second Extension, within five (5) business days following a written request from
Authority or City, Developer shall either re -affirm in writing the material truth and accuracy of the
representations and warranties set forth in this Section 7.3, or identify any material inaccuracies of
such representations and warranties. The fact that a representation or warranty contained in this
Section 7.3 has become inaccurate or misleading shall not, in and of itself, constitute a breach under
this Agreement or the Authority Regulatory Agreement; however, (a) failure to notify Authority of
material inaccuracies in these representations and warranties of which it has knowledge within
ten (10) business days of Authority's request for such information, and (b) any overt material
misrepresentation by Developer relating to such representations and warranties shall each constitute
an Event of Default under this Agreement, subject to delivery of notice and expiration of the cure
rights hereunder.
7.4 Transfers; General Prohibition of Transfer without Authority Consent.
The qualifications and identity of Developer as an experienced and successful developer and
operator/manager of affordable housing, in particular Senior Citizen affordable housing, are of
particular concern to Authority. It is because of these identities and the qualifications of each of the
partners that comprise the Developer entity that Authority has entered into this Agreement with
Developer. Accordingly, commencing upon Date of Agreement and throughout the
Affordability Period no voluntary or involuntary successor -in -interest of Developer shall acquire any
rights or powers under this Agreement, nor shall Developer make any total or partial sale, transfer,
conveyance, assignment, subdivision, refinancing or lease of the Site, or any part thereof, or this
Agreement (collectively referred to herein as a "Transfer") without the prior written approval of
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Authority, except as expressly set forth herein, which approval shall not be unreasonably withheld,
conditioned, or delayed, except in the instance of the Syndication and/or Resyndication of the
Project, which request shall be approved or disapproved in accordance with the terms of the
definition of Syndication and/or Resyndication.
7.4.1 Permitted Transfers. Notwithstanding the provisions of this Agreement or
any other Transaction Documents prohibiting transfer of any interest in Developer, the Site, the
Project, and/or this Agreement, Authority's approval of a Transfer shall not be required in connection
with any of the following, provided however nothing in the following allows or shall be construed to
permit, preapprove, or otherwise consent to the Syndication and/or Resyndication of the Project in
any manner whatsoever during the Affordability Period, which Syndication and/or Resyndication
shall require the prior written consent of Authority that will be given or withheld in accordance with
the terms of the definition of Syndication and/or Resyndication:
(a) The conveyance or dedication of any portion of the Site to Authority
or other appropriate governmental agency, or the granting of easements or permits to facilitate the
Substantial Rehabilitation.
(b) An assignment for financing purposes to secure the funds necessary
for the interest purchase of the Site, the Substantial Rehabilitation, and continued operation of the
Project on the Site, or a refinancing thereof during the Permitted Refinancing Period, so long as such
refinancing constitutes a Permitted Refinancing and if the same occurs during the Permitted
Refinancing Period, all subject to the conditions and provisions of this Agreement.
(c) Leasing of individual Housing Units to qualified tenants in
accordance with Section 4., et seq. herein, and Section 2., et seq. of the Authority Regulatory
Agreement.
(d) The transfer of all or any part of the Site or the Project, or assignment
of this Agreement and the Authority Regulatory Agreement to a JRC Affiliate or a
Jamboree Affiliate pursuant to the Developer's Partnership Agreement, so long as not part of any
Syndication and/or Resyndication of the Project in default of this Agreement.
In the event of a Transfer by Developer not requiring Authority's prior approval
(other than a residential lease pursuant to clause (c) above), Developer nevertheless agrees that at
least fifteen (15) calendar days prior to such Transfer it shall give written notice to Authority of such
assignment and satisfactory evidence that the assignee will assume all of the obligations of this
Agreement in writing through an assignment and assumption agreement in a form reasonably
acceptable to Authority. The form of each assignment and assumption agreement shall be submitted
to Authority for review and reasonable approval by Authority's legal counsel not later than fifteen
(15) calendar days prior to the proposed date of the Transfer, which approval shall not be
unreasonably withheld, conditioned or delayed but such statement shall not dilute the Authority's
exercise of its sole discretion whenever this Agreement reserves to the Authority the exercise of its
sole discretion.
7.4.2 Authority Consideration of Requested Transfer. With the exception of the
Syndication and/or Resyndication of the Project, which request shall be approved or disapproved in
accordance with the terms of the definition of Syndication and/or Resyndication, Authority agrees
that it will not unreasonably withhold, condition, or delay approval of a request for approval of a
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Transfer made pursuant to this Section 7.4.2 provided Developer delivers written notice to Authority
requesting such approval and includes (a) the proposed assignment and assumption contract,
(b) all necessary and relevant background and experience information related to the proposed
transferee, in particular as to the proposed transferee's experience in owning and operating large
Senior Citizen affordable housing projects, (c) a current preliminary report of title with hyperlinks to
the title exceptions, and (d) if requested, a current rent roll and supporting documentation about then
current operation of the Project by Developer (as owner/transferor).
An assignment and assumption agreement in form reasonably satisfactory to
Authority's legal counsel shall be required for each proposed Transfer (other than the permitted
transfers under clause (a), (b) or (c) of Section 7.4.1 above), which approval shall not be
unreasonably withheld, conditioned, or delayed. Within fifteen (15) calendar days after the receipt of
Developer's written notice requesting Authority approval of a Transfer pursuant to this Section 7.4
(except in the instance of Syndication/Resyndication of the Project for which Developer shall provide
Authority not less than sixty (60) days' written notice with the supporting materials described
herein), Authority shall either approve or disapprove such proposed assignment or shall respond in
writing by stating what further information, if any, Authority reasonably requires in order to
determine the request complete and determine whether or not to grant the requested approval of the
proposed Transfer. Upon receipt of such a response, Developer shall promptly furnish to Authority
such further information as may be reasonably requested. Upon the effective date of the approved or
permitted Transfer, if an assignment and assumption agreement reasonably acceptable to Authority
has been executed and delivered to Authority (if applicable), the assignor and any related parry
guarantor shall be released by Authority from any and all obligations assumed by the approved or
permitted assignee, subject to certain reservation of rights to Authority (and City) set forth in such
assignment and assumption agreement.
7.4.3 Refinancing of Primary Loan. Subject to the conditions and limitations of a
Permitted Refinancing during the term of the Existing HAP Contract Second Extension, Authority
Executive Director shall have the right to review all documents related to and to approve or
disapprove the refinancing of the Primary Loan as set forth in the definition of
Permitted Refinancing above.
7.4.4 Payment of Authority Third Party Costs re Proposed Transfer. As more
fully set forth in Section 7.16, any and all Third Party Costs incurred by Authority in connection with
consideration and approval (or disapproval) of a proposed transferee for any Transfer shall be paid by
Developer, and payment thereof shall be and remain a condition precedent to Authority's obligation
to approve and execute any Transfer document, including without limitation any assignment and
assumption agreement.
7.5 Successors and Assigns. This Agreement shall run with the land, and all of the
terms, covenants and conditions of this Agreement shall be binding upon Developer and the
permitted successors and assigns of Developer, as owner of the Site and Improvements, and of the
Authority. Whenever the term "Developer" is used in this Agreement, such term shall include any of
Developer's Affiliate assignee(s) or Affiliate transferee(s), or any other permitted successors and
assigns as herein provided.
7.6 Non -Recourse; Non -Liability of Public Officials and Employees of Authority or
City. No member, elected or appointed official, or employee of Authority or City shall be personally
liable to Developer or any successor in interest in the Event of Default or other breach by Authority
At,
4893-1713-7678v9/022620-0095
or for any amount which may become due to Developer or its successors, or for performance of any
obligations under the terms of this Agreement. No partner of Developer or any of their members,
partners, employees, officers, or agents shall be personally liable for any obligation or breach by
Developer hereunder.
7.7 Relationship between Authority and Developer. It is hereby acknowledged and
agreed that the relationship between Authority and Developer is not that of a partnership or joint
venture or other investor partner and that Authority and Developer shall not be deemed or construed
for any purpose to be the agent of the other. Accordingly, except as expressly provided in this
Agreement, Authority shall have no rights, powers, duties or obligations with respect to the
development, operation, maintenance or management of the Site and/or the Project.
7.8 Executive Director; Authority Approvals and Actions. Authority shall maintain
authority to implement this Agreement through Authority's Executive Director (or her or his duly
authorized representative). The Executive Director and her/his duly authorized representative(s)
shall have the authority to make approvals, issue interpretations, waive provisions, make and execute
further agreements and/or enter into amendments of this Agreement on behalf of Authority so long as
such actions do not materially or substantially change or modify the uses or development permitted
on the Site, or materially or substantially add to the costs, responsibilities, or liabilities incurred or to
be incurred by Authority (or City) as specified herein, and such interpretations, waivers and/or
amendments may include extensions of time to perform as specified in the Schedule of Performance.
All material and/or substantive interpretations, waivers, or amendments shall require the
consideration, action and written consent of the Authority Board. Further, Executive Director shall
maintain the right to submit to the Authority Board for consideration and action any non -material or
non -substantive interpretation, waiver or amendment, if in her/his reasonable judgment he/she desires
to do so.
7.9 Counterparts. This Agreement may be signed in multiple counterparts all of which
together shall constitute an original binding agreement. This Agreement is executed in three
(3) originals, each of which is deemed to be an original.
7.10 Integration. This Agreement together with the Attachments here and the other
Transaction Documents contains the entire understanding between the parties relating to the
transaction contemplated by this Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement and
shall be of no further force or effect. Each party is entering this Agreement based solely upon the
representations set forth herein and upon each parry's own independent investigation of any and all
facts such parry deems material. This Agreement includes pages 1 through 69, S-1 through S-2, and
Attachments Nos. 1 through 16.
7.11 Real Estate Brokerage Commission. Authority is and shall not be responsible,
financially or legally, to any broker or finder or to pay any commission or finder's fee in connection
with this transaction. Developer does hereby indemnify and agrees to defend and hold harmless the
Indemnitees from any claim related to any commission or fee resulting from this transaction, and not
arising from any action of Authority.
7.12 Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
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References to Section and Paragraph numbers are to sections and paragraphs in this Agreement,
unless expressly stated otherwise.
7.13 Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words "without
limitation." This Agreement shall be interpreted as though prepared jointly by both parties.
7.14 No Waiver. A waiver by any party of a breach of any of the covenants, conditions or
agreements under this Agreement to be performed by the other parry shall not be construed as a
waiver of any succeeding breach of the same or other covenants, agreements, restrictions or
conditions of this Agreement or the Attachments hereto.
7.15 Covenant Not to Sue. The following covenant relating to Developer's obligation not
to sue regarding this Agreement, the Project, or the Site, or any issues ancillary thereto
(but excluding the specific performance of this Agreement) is a material incentive for and a part of
the consideration to Authority to enter into this Agreement with Developer. Therefore, the Authority
shall have the right to terminate the performance obligations of Authority under this Agreement, in
the event from and after the Date of Agreement until the issuance of the Release of Construction
Covenants, Developer, or any Affiliate of Developer or any of its partners, officers, directors,
employees, agents, representatives, consultants, attorneys, or any person acting at the direction of
Developer, undertakes any act to oppose, or to commence, participate in, prosecute, or otherwise
object to, or to litigate, directly or indirectly the determination of the Authority and the City for the
Authority's entering into this Agreement, the Existing HAP Contract Second Extension, and the
Authority Regulatory Agreement.
Notwithstanding the foregoing, nothing set forth in this Section 7.15 shall prevent
Developer from asserting its rights relating to the performance and enforcement of this Agreement
(or any other agreement with the City and/or the Authority) or due to the abuse of discretion by a
governmental entity considering and acting upon a future discretionary decision related to the
parameters of this covenant. Further, nothing in the foregoing covenant shall prevent Developer
from asserting Developer's rights with respect to prospective action or future conduct by any person
who interferes, opposes, or delays implementation and completion of the Project.
7.16 Developer's Payment and Reimbursement of Authority's Third Party Costs.
7.16.1 Third Party Costs Defined; Obligation. Developer shall be responsible to
pay, and shall pay and reimburse Authority for all Third Party Costs.
7.16.2 Payment of Third Party Costs. Within ten (10) days of the submittal by
Authority staff of copies of invoices or billings for Third Party Costs incurred, it is and shall be the
obligation of Developer to reimburse and pay to Authority one hundred percent (100%) of these
Third Party Costs, unless Developer reasonably contests such Third Parry Costs. The hourly and/or
fixed fee expenses incurred by the City and/or Authority will be based on the professional services
agreement, purchase order, or other written communication between the City and/or Authority and
such third party professional. As of the Date of Agreement, the hourly fees charged by outside
counsel and economic and housing consultants are less than the hourly design rates and fees charged
to private clients of such law firm or consultant.
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(a) This reimbursement obligation shall bear interest from the date
occurring ten (10) days after Authority gives written demand to Developer at the rate of six percent
(6%), or such lower rate that is the maximum rate then permitted by law.
(b) This reimbursement obligation shall survive the issuance of the final
Release of Construction Covenants and termination of this Agreement and continue through the term
of the Affordability Period.
7.16.3 Exception to Payment of Post -Effective Date Third Party Costs.
Notwithstanding Section 7.16, 7.16.1, and 7.16.2 above, Developer shall not be responsible to pay
and reimburse for Third Parry Costs if the costs incurred are attributable to one or more of the
following events:
(a) City Council, Authority Board, Successor Agency Board, Planning
Commission, Zoning Administrator, or other City official with discretionary approval and/or
disapproval rights over the Site and/or the Project or the implementation of this Agreement
disapproves, denies, or refuses to take action on an application for a permit or other discretionary
application necessary to commence and complete ; or
(b) Default by Authority under this Agreement.
7.17 Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed by a duly authorized
representative on behalf of each party.
7.18 Severability. If any term, provision, condition or covenant of this Agreement or its
application to any parry or circumstances shall be held, to any extent, invalid or unenforceable, the
remainder of this Agreement, or the application of the term, provision, condition or covenant to
persons or circumstances other than those as to whom or which it is held invalid or unenforceable,
shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
7.19 Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day and including the last day, unless the last day is a
holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all
holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to
be done by a particular time during a day, that time shall be Pacific Time Zone time.
7.20 Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of
any right which they may have; they have received independent legal advice from their respective
legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult
legal counsel as to the matters set forth in this Agreement; and, they have freely signed this
Agreement without any reliance upon any agreement, promise, statement or representation by or on
behalf of the other party, or their respective agents, employees or attorneys, except as specifically set
forth in this Agreement, and without duress or coercion, whether economic or otherwise.
7.21 Cooperation. Each party agrees to cooperate with the other in this transaction and,
in that regard, to sign any and all documents which may be reasonably necessary, helpful or
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4893-1713-7678v9/022620-0095
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
implementation agreements, releases or other agreements.
7.22 Conflicts of Interest. No member, elected or appointed public official or employee
of Authority (or City) shall have any personal interest, direct or indirect, in this Agreement, nor shall
any such member, elected or appointed public official or employee participate in any decision
relating to the Agreement which affects his personal interests, his economic interests, or the interests
of any corporation, partnership or association in which he is directly or indirectly interested.
[Signature pages follow]
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IN WITNESS WHEREOF, Authority and Developer have executed this Affordable
Housing Agreement (Bel'Age Senior Apartments) as of the date and year first set forth above.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
Name:
Title:
Authorized Signatory
[Signatures for Affordable Housing Agreement (Bel'Age Senior Apartments)
continue on following page]
Affordable Housing Agreement
(Bel'Age Senior Apartments)
S-1
4893-1713-7678v9/022620-0095
[Signatures for Affordable Housing Agreement (Bel'Age Senior Apartments)
continued from previous page]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leome Mulvihill
Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Authority Special Counsel
Affordable Housing Agreement
(Bel'Age Senior Apartments)
S-2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Attachment No. 1
Legal Description of Site
Page 1 of 2
4893-1713-7678v9/022620-0095
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Attachment No. 1
Legal Description of Site
Page 2 of 2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 2
SCHEDULE OF PERFORMANCE
1.
Submittal of Agreement
By May 12, 2022.
Developer shall submit the Agreement for the
agenda package.
2.
Management Plan. Developer shall submit its
As a Condition
proposed Management Plan to Authority for review
Precedent to Closing of
and approval.
Acquisition.
3.
Approval of Management Plan. Authority shall
As a Condition
review and approve, approve with conditions, or
Precedent to Closing of
disapprove the Management Plan.
Acquisition.
4.
Authority Board Consideration and Action on
By May 24, 2022.
Agreement. The Authority board shall consider
and take action in its sole discretion to approve or
disapprove the Agreement.
5.
Insurance.
As a Condition
Developer shall furnish or cause to be furnished
Precedent to Closing of
appropriate certificates of insurance and/or
Acquisition.
endorsements to Authority (and City) which meet
all requirements of the Agreement.
6.
Recording; Closing of Acquisition. The Authority
Concurrent with the
Regulatory Agreement, and other recordable
Closing of Acquisition
Transaction Documents shall be recorded against
and Developer's
the Site.
Primary Loan by
May 31, 2022.
B.
PROJECT FINANCING FOR CLOSING OF
ACQUISITION.
1.
Submission of Evidence of Financing
A Condition Precedent
Developer shall submit to Authority evidence of
to Closing of
financing for the Project as set forth in Section 3.11
Acquisition.
of the Agreement.
2.
Receipt of All Funding Commitments Necessary
A Condition Precedent
to Complete Transfer of the Site by Original
to Closing of
Developer to Developer.
Acquisition.
3.
Approval of Developer's Evidence of Financing
A Condition Precedent
Authority shall approve, conditionally approve or
to Closing of
disapprove Developer's evidence of financing as
Acquisition.
required by the Agreement.
Attachment No. 2
Schedule of Performance
Page 1 of 4
4893-1713-7678v9/022620-0095
C.
ESCROW FOR CLOSING OF ACQUISITION
1.
Open Escrow
Completed.
Developer shall open Escrow to acquire the Site.
2.
Deposit of Documents into Escrow
Prior to Closing of
Developer shall cause to be fully executed the final
Acquisition.
form of all Transaction Documents necessary for
the Closing of Acquisition.
3.
Conditions Precedent to Closing of Acquisition.
Prior to Closing of
Authority must notify Escrow that all Conditions
Acquisition.
Precedent to Developer's acquisition of the Site
have been satisfied by Developer or waived by
Authority prior to the Closing of Acquisition.
4.
Close of Escrow
By May 31, 2022.
Escrow shall close when all Conditions Precedent to
the Closing of Acquisition have been waived or
satisfied.
D.
IMMEDIATE REHABILITATION
PHASE 1 REHAB
1.
Commencement of Phase 1 Rehab Construction.
Within 3 weeks of
Developer shall cause the Construction of Phase 1
Closing of Acquisition.
Rehab to be implemented by Rose Community
Management.
2.
Completion of Phase 1 Rehab Construction.
Within 12 months from
Developer shall complete all work of the Immediate
the commencement of
Rehabilitation Phase 1 Rehab.
construction of the
Phase 1 Rehab.
E.
SUBSTANTIAL REHABILITATION
PHASE 2 REHAB
1.
Basic Concept Design Drawings.
By August 1, 2022.
2.
Construction Drawings.
By November 30,
2022.
3.
Building Permits.
By February 15, 2023.
4.
Submission of Basic Concept Design Drawings.
By August 1, 2022.
Developer shall prepare and submit to the Authority
Basic Concept Design Drawings for Phase 2 Rehab.
5.
Approval of Basic Concept Design Drawings.
Within two weeks after
Authority shall approve or disapprove Basic
Submission of Basic
Concept Design Drawings for Phase 2 Rehab.
Concept Design
Drawings.
Attachment No. 2
Schedule of Performance
Page 2 of 4
4893-1713-7678v9/022620-0095
6.
Submission of Final Budget and Construction
As a Condition
Schedule. Developer shall submit to Authority the
Precedent to the
Final Budget and updated construction schedule for
Closing of Substantial
the Construction pursuant to the Agreement.
Rehabilitation Phase 2
Rehab.
7.
Submission to Authority of the Construction
By November 30,
Drawings. Developer shall prepare and submit to
2022.
the Authority Construction Drawings for Phase 2
Rehab.
8.
Approval by Authority of the Construction
Within two weeks after
Drawings. Authority shall approve or disapprove
Submission of
Construction Drawings for Phase 2 Rehab.
Construction
Drawings.
9.
Submission to City of Anaheim for Building
By December 16,
Permits. Developer shall prepare and submit to
2022.
City of Anaheim permit set of construction
drawings for Phase 2 Rehab for review.
10
Approval — Building Permit. City of Anaheim
By February 15, 2023.
shall provide comments and approve permit set for
Phase 2 Rehab.
11.
Commencement of Phase 2 Rehab Construction.
Within one week of
Developer shall cause the Construction of Phase 2
building permit
Rehab to be commenced by Contractor.
approval.
12.
Completion of Substantial Rehabilitation Phase
Within 12-14 months
2 Rehab.
from the
Developer shall complete all work of the
commencement of
Substantial Rehabilitation Phase 2 Rehab.
construction of the
Phase 2 Rehab.
13.
Release of Construction Covenants for Phase 2
Within 30 days of
Rehab.
receipt of Developer
Authority to furnish Developer with a Release of
request and only after
Construction Covenants for the Phase 2 Rehab.
Developer's
satisfactory completion
of the Substantial
Rehabilitation Phase 2
Rehab.
[Schedule continues on next page]
Attachment No. 2
Schedule of Performance
Page 3 of 4
4893-1713-7678v9/022620-0095
For the purposes of this Schedule of Performance ("Schedule"), the commencement date is the
Date of Agreement. This Schedule is subject to revision periodically as agreed in writing between
Developer and Authority, with the Executive Director hereby authorized on behalf of Authority to
agree to make such revisions as she/he deems reasonably necessary; provided that Executive
Director, in her/his sole discretion, may elect to bring to the Authority Board for consideration and
action any modifications to this Schedule. The parties agree the Schedule is subject to all of the
terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in the Schedule is not intended to supersede or modify the more complete description in
the text; in the event of any inconsistency between the Schedule and the text of Agreement, the text
shall govern. In the event the Executive Director deems it necessary to bring to Authority Board for
consideration one or more modifications to this Schedule, the discretion to do so is expressly
reserved to the Executive Director. The time periods in the Schedule for Authority's approval of
plans, drawings and other submittals to Authority by Developer shall only apply and commence
upon Developer's complete submittal. In no event shall an incomplete submittal by Developer
trigger any of Authority's obligations of review and/or approval hereunder; provided, however, that
Authority shall notify Developer of an incomplete submittal as soon as is practicable and in no event
later than the applicable time set forth for Authority's action on the particular item in question.
Attachment No. 2
Schedule of Performance
Page 4 of 4
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 3
SCOPE OF SUBSTANTIAL REHABILITATION
Phase 1 Scope
Cost / Unit
Unit
Cost
Thermal and Moisture Protection
Roof Recast''Expandothane" and Silicone (w/ 20 year warranty)
159,500
1
159,500
Pest Management
83,450
1
83,450
Conveying Systems
Elevator Modernization
175,000
1
175,000
HVAC
HVAC- ENERGY STAR Certified Heat Pump, (16 SEERf131 9,5 HSPr), City 3, Common
Area
4,500
3
13,So0
HVAC- ENERGY STAR Certified Smart Thermostat (Common Area),City 3,Common Area
250
3
750
Miscellaneous Equipment (3 water storage tank replacements)
S'Do0
3
27,000
Clean &Tune Community Rooms HVACs
3,500
1
3,500
Clean and Tune Common Area Supply & Exhaust Fan Systems
3,500
3
10,500
Plumbing
Clean and repair site and building drainage lines
152,000
1
152,000
Electrical
Smokeand CO Detectors (Units)
175
180
31,500
Smokeand CO Detectors (Common Areas)
300
3
900
Greening
Lighting- ENERGYSTAR Certified Interior- High Efficacy, (LED), Common Area
10,910
1
10,910
Lighting- ENERGYSTAR Certified Interior- High Efficacy, (LED), Apartments
119
180
21,400
Lighting- ENERGYSTAR Certified Exterior- High Efficacy,(LED), Common Area
5,00c
1
5,000
Lighting- ENERGYSTAR Certified Exterior- High Efficacy, (LED), Apartments
24
180
4,360
Domestic Hot Water- DHW Tank Wrap (Large Storage), City 4, Apts and Comm area
500
1
Soo
Domestic Hot Water - Pipe Insulation (Central), Qty 4, Apts and comm area
480
1
480
Water Fixture - WaterSense Certified Bathroom Aerators (Including External Housing &
Aerator Insert), (1 gpm 100%Aerator Replacement), Qty 190, Apartments
30
180
5,400
Water Fixture - Kitchen Aerators (Including External Housing& Aerator Insert], (1 gpm 100%
Aerator Replacement), Qty 180, Apartments
30
180
5,400
Water Fixture - WaterSense Certified Showerheads, (1.25 gpm), Qty 190, Apartments
60
180
10,SGD
Water Fixture - WaterSense Certified Toilets, (1 gpf), Qty 18D, Apartments
see
180
144,000
Irrigation - WaterSense Certified Weather -Based Irrigation Controller, Qty4, Common Area
4,000
4
16,000
In -Unit Improvements
Energy Star Refrigerator
1'aco
180
180,000
Ranges+ Hood
800
Igo
144,000
Dishwasher
635
180
114,300
Cooktop Fire Protection
7C
180
12,600
Apt -HVAC tune/clean
225
180
4D,500
Common Area Upgrades _
CeilingtileandgridCommon- Corridors
4
35,294
141,176
Painting -Corridors
75,000
3
225,000
Total Trade Costs
Phase f Scope Trade Costs
Phase I Scope
Trade Costs
1,739,426
Attachment No. 3
Scope of Substantial Rehabilitation
Page 1 of 13
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Concrete
Concrete / Sidewalk Repairs
Parking Lot Repairs, Pedestrian and Vehicular Gate Repairs
Landscaping / Fencing / Entryway Beautification
site signage
Thermal and Molsture Protection
Exterior trim, facia, soffit replacement, waterproofing, and an-Hanous repairs
Caulk and paint complete building
Balcony Railing replacement like for like
Balcony oecks Re -frame including Cantilever Joists
Ooors a nd Windows
New Storefront windows
Plumbing
Com anon Area - Kitchen Faucets
Can mon Area - Kitchen Sink
Common Area- Bar broom Faucets
Common Area , Bathroom WC
Electrical
Site Lights
Corridor- Light Fixture Replacement
Outlet Covers in Kitchens
In Veit Impro.ements
ADA Unit Conversion (5% required mobilitiy + 2% light/sound)
Fire Suppression
Fire Extinguishers
Cookt.p Fire Protection
Common Area Upgrades
Common Corridors Flooring
Common Bathroom & Laundry rooms- Floor -Tile
Common - Office
Convert 3rd floor kitchen area into Library/Conference Room
Computer Room
Fitness Room
RSC office
Common- Lobby
Kitchen Cabinets (Commercial Kitchen)
Kitchen Counter tops (Commercial Kitchen)
TOBet Accessories
Interior Signage
Blinds for office, community rooms
Energy Star Refrigerator
Ranges
Range Hood
Total Trade Costs
Phase 2 Scope Trade Costs
Phase 2 Scope
Cost/Unit
Unit
Cost
18o,COO
1
18O,Occ
200,000
1
200,000
105,C00
1
105,ow
50,000
1
50,000
375,000
1
375,000
275,000
1
275,000
12,000
100
1,200,000
7,200
90
648,000
7,000 1 7,000
375
2
750
500
2
1,000
250
3
750
Soo
3
1,500
80,000
1
8O1
1O,00o
1
1C,O00
Soo
3
1,500
50,000 10 500,000
2,500 1 2,500
400 1 400
6
105,880
611,141
50,000
1
50,000
75,000
1
75,000
B0,000
1
30,000
20,000
1
20,000
2C,000
1
20,000
20,000
1
20,000
30,000
3
91
1O1
1
101
5,000
1
6,000
3,500
1
3,500
18,000
1
18,000
35,000
1
35,000
1'(m
2
2.,000
800
2
1,60C
200
2
400
Phase 25cope Trade Casts 4,631,041
Attachment No. 3
Scope of Substantial Rehabilitation
Page 2 of 13
4893-1713-7678v9/022620-0095
Total Trade Costs
Phase 1 Scope Trade Costs
Phase 2 Scope Ti-ode Costs
Total Trade Costs- Phase 1 and Phase 2 Combined
Hard Costs
Trade Costs
General Contractor Fees
Construction Proi. Mgmt Fee
Hard Cost Contingency
Hard Cost Sub -total
Soft Costs
Architect- Design
Architect -Supervision
Building Permits
Tenant Relocation
Soft Casts Contingency
Soft Cost Sub -total
Phase 3 Scope
1,739,426
4,631,041
6,370,467
6,370,467
17.0% 787,277
5.0% 357,897
10.0% 751,563
8,267,194
300,000
150,000
100,00o
1500 per unit 270,000
10.0% 81000
902,000
Total Construction Costs M 9,169,194
For the purposes of this Scope of Work ("Scope"), the commencement date is the Date of Agreement. This
Scope is subject to revision periodically as agreed in writing between Developer and Authority, with the
Executive Director hereby authorized on behalf of Authority to agree to make such revisions as she/he deems
reasonably necessary; provided that Executive Director, in her/his sole discretion, may elect to bring to the
Authority Board for consideration and action any modifications to this Scope. The parties agree the Scope is
subject to all of the terms and conditions set forth in the text of the Agreement. The summary of the items of
performance in the Scope is not intended to supersede or modify the more complete description in the text;
in the event of any inconsistency between the Scope and the text of Agreement, the text shall govern. In the
event the Executive Director deems it necessary to bring to Authority Board for consideration one or more
modifications to this Scope, the discretion to do so is expressly reserved to the Executive Director. The time
periods in the Scope for Authority's approval of plans, drawings and other submittals to Authority by
Developer shall only apply and commence upon Developer's complete submittal. In no event shall an
incomplete submittal by Developer trigger any of Authority's obligations of review and/or approval
hereunder; provided, however, that Authority shall notify Developer of an incomplete submittal as soon as is
practicable and in no event later than the applicable time set forth for Authority's action on the particular
item in question.
Attachment No. 3
Scope of Substantial Rehabilitation
Page 3 of 13
4893-1713-7678v9/022620-0095
Attachment No. 3
Scope of Substantial Rehabilitation
Page 4 of 13
DRAWING INDEX
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4893-1713-7678v9/022620-0095
Attachment No. 3
Scope of Substantial Rehabilitation
Page 10 of 13
4893-1713-7678v9/022620-0095
Attachment No. 3
Scope of Substantial Rehabilitation
Page 11 of 13
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Attachment No. 3
Scope of Substantial Rehabilitation
Page 12 of 13
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Attachment No. 3
Scope of Substantial Rehabilitation
Page 13 of 13
4893-1713-7678v9/022620-0095
Recording Requested By and
When Recorded Mail To:
Goulston and Storrs
400 Atlantic Avenue
Boston, MA 02110
Attention: Deborah Horwitz
ATTACHMENT NO.4
TERMINATION AGREEMENT
[Space above for recorder.]
TERMINATION AGREEMENT
This TERMINATION AGREEMENT ("Termination Agreement") is made and entered
into as of May 31, 2022, by and among BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership ("Developer"), and the ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic ("Authority").
RECITALS
WHEREAS, Developer and Authority are parties to that certain Affordable Housing
Agreement dated as of February 1, 2008 and recorded in the Official Records, County of Orange,
State of California as Instrument No. 2008-000071745 ("2008 Agreement").
WHEREAS, of even date herewith, Developer and Authority have entered into that certain
Amended and Restated Affordable Housing Agreement ("AHA"); the parties intend that the AHA
replaces and supersedes the 2008 Agreement.
WHEREAS, the Parties now wish to terminate or cancel the 2008 Agreement concurrent with
and effective as of the same date as the Closing of Acquisition as such term is defined in the new
AHA and as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the Parties agree as follows:
AGREEMENT
1. Termination of 2008 Agreement. Pursuant to the terms of the new AHA, Developer and
Authority the 2008 Agreement is terminated and of no further force or effect upon execution and
recordation of this Termination Agreement ("Effective Date of Termination").
2. Counterparts. This Termination Agreement may be executed on one or more
counterparts, each of which shall be deemed an original, and all of which, when taken together, shall
constitute one and the same instrument.
Attachment No. 4
Termination Agreement
Page 1 ot' 3
4893-1713-7678v9/022620-0095
3. Governing Law. This Termination Agreement shall be governed by, and construed under,
the laws of the State of California.
IN WITNESS WHEREOF, the Parties have executed this Termination Agreement as of the
day and year first written above.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
By:
Name:
Title: Authorized Signatory
[signatures continue on the following page]
Attachment No. 4
Termination Agreement
Page 2 of 3
4893-1713-7678v9/022620-0095
[Signatures for Termination Agreement continued from previous page]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
By:
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leome Mulvihill, Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Housing Authority Special Counsel
Attachment No. 12
Termination Agreement
Page 3 of 3
4893-1713-7678v9/022620-0095
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Attachment No. 4
Legal Description
Page 1 of 2
4893-1713-7678v9/022620-0095
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Attachment No. 4
Legal Description
Page 2 of 2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 5
AUTHORITY REGULATORY AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Executive Director
This document is exempt from the payment of a
recording fee pursuant to Government Code
§§ 6103 and 27383.
AUTHORITY REGULATORY AGREEMENT
This AUTHORITY REGULATORY AGREEMENT ("Regulatory Agreement" or
"Authority Regulatory Agreement") is dated as of May 31, 2022 and is entered into by and between
the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ("Authority"), and
BELAGE PRESERVATION LIMITED PARTNERSHIP, a California limited partnership
("Developer").
RECITALS
A. Authority is the underlying fee owner of an existing Senior Citizen affordable
housing apartment complex improved with 180 apartments and include accessways, common
areas/amenities, and all ancillary and appurtenant facilities (together, "Site"), which is located in the
City of Anaheim, California at the common address of 1660 — 1664 West Broadway, Anaheim,
California.
B. The Site is legally described in the Legal Description attached hereto as Exhibit A
and incorporated herein by reference and is the subject of this Authority Regulatory Agreement.
C. Developer and Authority have entered into that certain Affordable Housing
Agreement (Bel 'Age Senior Apartments) dated as of May 24, 2022 ("Affordable Housing
Agreement" or "AHA").
D. Capitalized terms used in this Authority Regulatory Agreement are as defined in the
AHA unless otherwise defined herein.
E. Developer owns the Site and pursuant to the AHA will cause the Substantial
Rehabilitation to be completed, and shall operate the Senior Citizen affordable rental housing project
(together, "Project" or "Project") with 178 of the apartments made available and leased to qualified
Very Low Income and Low Income Senior Citizen Households (each a "Housing Unit" and
Attachment No. 5
Authority Regulatory Agreement
Page 1 of 22
4893-1713-7678v9/022620-0095
collectively, "Housing Units") along with two (2) onsite Manager Units (total of 180 apartment
units.)
F. By way of background, the parties acknowledge that the Original Project commonly
referred to as "Bel'Age Senior Apartments" was developed on and has operated at the Site
continuously since 1988 as a Senior Citizen affordable housing project for eligible Very Low income
and Low Income tenant households.
G. The execution and recording of this Authority Regulatory Agreement is a Condition
Precedent to Authority's approval of the transfer of all ownership interests in the Site and entering
into the Existing HAP Contract Second Extension. Copies of this Regulatory Agreement (and the
AHA) may be obtained from the Authority through the City of Anaheim, Office of the City Clerk,
located at City Hall, 200 South Anaheim Boulevard, Anaheim, California 92805.
H. This Authority Regulatory Agreement supersedes and terminates that certain
agreement containing covenants between the Authority and the Original Partnership, dated as of
February 1, 2008 and recorded against the Original Project as Instrument No. 2008-000071745 in the
Official Records, County of Orange, State of California ("Official Records").
NOW, THEREFORE, in exchange for the mutual covenants, restrictions, and agreements
set forth herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Authority and Developer agree as follows:
1. Substantial Rehabilitation, Completion and Operation of Project. Developer agrees to
cause and complete the Substantial Rehabilitation of the Site and to operate the Project thereon in
accordance with this Authority Regulatory Agreement and subject to the HAL, Section 8 Laws,
Anaheim Municipal Code, Uniform Codes, and all other applicable federal, state, and local laws,
codes, regulations, and ordinances.
2. Project Covenants; Affordable Housing Covenants; Senior Citizen Very Low and Low
Income Households. In accordance with this Section 2, of the total 180 apartment units, Developer
covenants and agrees to make available, restrict occupancy to, and rent 178 Housing Units to tenants
who qualify as Senior Citizen Very Low Income Households and Low Income Households, and two
(2) apartments are designated as the Manager Units for occupancy by the resident managers. The
term Senior Citizen means a tenant household where at least one (1) person in residence in the
Housing Unit is fifty-five (55) years of age or older and who resides, or intends to reside, in the unit
as her or his primary residence on a permanent basis, and any other person residing in the unit is a
"qualified permanent resident" or a "permitted health care resident" as provided in California Civil
Code Section 51.3, et seq., or in the Federal Fair Housing Act, 42 U.S.C. Section 3607, and any other
applicable federal, state or local laws and regulations governing the use and occupancy of senior
housing developments. The term Low Income Household means a household whose income does
not exceed sixty percent (60%) of area median income for Orange County, adjusted for applicable
household size, as computed in accordance with HSC Section 50079 and the regulations promulgated
in the Code of Regs, including, without limitation, all regulations promulgated pursuant to HSC
Section 50093, or any successor statute. And, the term Very Low Income Household means a
household whose income does not exceed fifty percent (50%) of area median income for Orange
County, adjusted for applicable household size, as computed in accordance with HSC Section 50105
Attachment No. 5
Authority Regulatory Agreement
Page 2 of 22
4893-1713-7678v9/022620-0095
and the regulations promulgated in the Code of Regs, including, without limitation, all regulations
promulgated pursuant to HSC Section 50093, or any successor statute.
2.1 Number and Allocation of Housing Units; Unit Mix among Very Low Income
and Low Income Levels. Developer covenants and agrees to make available, restrict occupancy to,
and rent the 178 Housing Units to eligible and qualified Senior Citizen Very Low Income
Households and Senior Citizen Low Income Households, at the following unit size and income
restrictions, in accordance with this Section 2., et seq. The term "Housing Unit" and "Housing
Units" shall mean, individually and collectively, each and all of the 178 apartments that shall be used
and maintained by Developer as affordable Senior Citizen rental housing for occupancy by
Very Low Income and Low Income tenants at Affordable Rents for the Affordability Period. There
are 180 total apartment units in the Project, inclusive of the two (2) Manager Units; and all units on
the Site shall be and remain owned, operated, managed, and maintained by Developer. The 178
Housing Units shall be for tenancy by Senior Citizen Households as follows:
(a) fifty-nine (59) one -bedroom units for occupancy by qualified Senior
Citizen Very Low Income Households;
(b) three (3) studio units for occupancy by qualified Senior Citizen Low
Income Households;
(c) one hundred sixteen (116) one -bedroom units for occupancy by
qualified Senior Citizen Low Income Households; and
(d) there shall be two (2) Manager Units for occupancy by onsite
managers of the Project, both of which are one -bedroom units and are non -restricted as to rent,
provided however, Authority acknowledges that as of the Date of Closing of Acquisition, a third unit
is being occupied as a third manager unit, and Developer intends to request the consent of TCAC to
remove the third manager unit, upon which said unit, will be subject to the affordability restrictions
set forth herein.
2.1.2 Affordable Rent. Affordable Rent shall be charged for the Housing Units
(excepting the Manager Units) throughout the Affordability Period.
2.1.3 Affordable Rent for Very Low Income Households and Low Income
Households; Presumed Household Size. The maximum Affordable Rent chargeable for the
Housing Units shall be annually determined by Authority (and charged and implemented by
Developer.) The Manager Units shall not be restricted as to rent charged, if any.
2.1.4 Calculation of Affordable Rent. For purposes of this Regulatory
Agreement, "Affordable Rent" shall mean the total of monthly payments for (a) use and occupancy
of each Housing Unit and land and facilities associated therewith, (b) any separately charged fees or
service charges assessed by Developer that are required of all tenants, other than security deposits,
(c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b)
above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and
refrigeration fuels, but not including telephone service, cable or satellite or streaming TV, or internet
services, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and
facilities associated therewith by a public or private entity other than Developer. No additional
Attachment No. 5
Authority Regulatory Agreement
Page 3 of 22
4893-1713-7678v9/022620-0095
charge shall be assessed against tenant households of the Housing Units for any Supportive Services
provided at the Site and/or as a part of Developer's compliance with the legal requirements imposed
in connection with any Section 8 PBV Program assistance pursuant to this Section 2., et seq.
2.1.5 FMR under Existing HAP Contract Second Extension; Affordable Rent
to be Charged after Expiration of Existing HAP Contract Second Extension. The parties
acknowledge that the Lender has underwritten the Primary Loan at the Closing of Acquisition for the
initial term thereof only based in part on the Authority providing the Existing HAP Contract Second
Extension for ninety (90) PBVs at the Project for a term commencing on the Closing of Acquisition
and ending on May 30, 2037 (together, "HAP Units"). The out-of-pocket monthly payment by each
tenant of the HAP Units is equal to 30% of each tenant household's actual gross income and the
Authority's monthly payment for each of the HAP Units is equal to the difference between 30% of
each tenant household's actual gross income and FMR, as FMR is set by the Authority in its sole
discretion under Section 8 Law and other applicable federal regulations; (provided however, a tenant
payment may increase if their household has one or more members who do not have legal
documentation status, then, the voucher is prorated and the tenant may or will pay more than 30% of
household income toward rent; for example, a tenant household with two members, one of whom
does not have legal documentation status the voucher is prorated by 50%.)
(a) On and after May 30, 2037, which is the end date for the term of the
Existing HAP Contract Second Extension, and thereby during the remaining term of the
Affordability Period, Developer acknowledges and agrees that under this Authority Regulatory
Agreement that (i) Authority reserves sole discretion to provide (or not provide) a third (3ra)
extension to the Existing HAP Contract Second Extension, and in the event of a third extension if
granted that the term thereof is subject to HOTMA that as of the recording of this Regulatory
Agreement does not allow the cumulative number of years of a HAP contract to exceed forty (40)
cumulative years, and (ii) Affordable Rent (not FMR) shall be charged by Developer for all Housing
Units, including each and all of the former HAP Units, and such Affordable Rent shall be stated in
each rental and/or lease agreement between the Developer and each tenant (or if a tenant has a
Section 8 Portable Voucher, the provisions of Section 2.1.6 below shall apply)
2.1.6 Monthly Rent for Non-PBV Housing Units; Acceptance of Section 8
Portable Vouchers. Developer shall set monthly rent at the applicable Affordable Rent as to each
and all Housing Units that are not designated as PBV HAP Units under the Existing HAP Second
Extension. Developer shall not refuse to lease a Housing Unit to a holder of a Section 8 Portable
Voucher who is otherwise qualified to be a tenant in accordance with the tenant selection criteria.
(a) In the event Developer rents a Housing Unit to a household holding a
Section 8 Portable Voucher issued by the Authority, the rental agreement (or lease agreement, as
applicable) between Developer, as landlord, and the Senior Citizen tenant shall expressly provide that
monthly rent collected directly from such tenant holding a Portable Voucher shall be not more than
30% of tenant's actual gross income pursuant to the applicable voucher program regulations, and the
total monthly rent for such unit shall be set at "fair market rent" ("FMR") for the area based on the
payment standard applicable to the area in which the Property is located, with FMR set by the
Authority in its sole discretion (with respect to calculation of FMR) under the Section 8 Laws and
other applicable federal regulations. For Section 8 Portable Vouchers issued by an entity other than
the Authority, the total monthly rent for such unit may in the Developer's discretion be set at either
(i) Affordable Rent, or (ii) up to FMR for the area as set by the issuing public housing authority
Attachment No. 5
Authority Regulatory Agreement
Page 4 of 22
4893-1713-7678v9/022620-0095
under Section 8 Laws and other applicable federal regulations with respect to calculation of FMR.
(As noted above, the tenant payment may increase if their household has one or more members who
do not have legal documentation status, then, the voucher is prorated and the tenant may or will pay
more than 30% of household income toward rent; for example, a tenant household with two
members, one of whom does not have legal documentation status the voucher is prorated by 50%.)
2.1.7 Most Restrictive Affordable Rent Covenants Govern. To the extent of an
inconsistency between or among the foregoing covenants relating to Affordable Rent and other
covenants or agreements applicable to the Project, the most restrictive covenants or agreement
regarding the Affordable Rent for the Housing Units in the Project shall prevail.
2.1.8 Property Management to Cause Occupancy of Housing Units in Accord
with Covenants. Developer shall, and shall cause its Property Manager to, operate and cause
occupancy of and charge Affordable Rent for the Housing Units in conformity with these covenants
of this Regulatory Agreement.
2.2 Duration of Affordability Requirements; Affordability Period. The Project,
including without limitation all the Housing Units thereon, shall be subject to the requirements of this
Section 2., et seq. for the 99-year Affordability Period, which period commences on the date of the
Closing of Acquisition.
2.3 Selection of Tenants.
2.3.1 Marketing and Tenant Selection Plan. During the Affordability Period, the
marketing, availability, and rental of the Housing Units, as and when they are vacated by the existing
tenants, shall be conducted in accordance with the approved Marketing and Tenant Selection Plan, as
the same may be amended from time to time with Authority's prior written approval, which approval
shall not unreasonably be withheld. Developer shall provide Authority with periodic reports with
respect to the marketing for lease of the Housing Units. Authority agrees to exercise reasonable
efforts to assist Developer in connection with the implementation of the Marketing and Tenant
Selection Plan; provided, however, Authority shall not be under any obligation to incur any out-of-
pocket expenses in connection therewith.
2.3.2 Waiting List. Developer shall be responsible for the selection of new
Senior Citizen tenants for the Housing Units, as and when vacated by the current tenants in
occupancy as of Closing of Acquisition, in compliance with all lawful criteria, and shall do so in
accordance with the Marketing and Tenant Selection Plan. Throughout the Affordability Period,
Developer shall establish and maintain the waiting list of eligible, prospective Senior Citizen tenants
to facilitate retenanting Housing Units in compliance with the approved Marketing and Tenant
Selection Plan, Property Management Plan, and Anaheim Municipal Code. Further, subject to
applicable Fair Housing Laws and in compliance with the Anaheim Municipal Code Authority shall
be afforded a priority marketing period for fifteen (15) days after receiving written notice from
Developer that one or more Housing Units have become vacant, during which time Authority and
Developer shall work cooperatively to select tenants for any vacant Housing Unit. Developer shall
provide prompt written notice to Authority when vacancies of Housing Units occur to facilitate
timely retenanting of Housing Units pursuant to the approved Marketing and Tenant Selection Plan,
Property Management Plan and Anaheim Municipal Code. Subject to applicable Fair Housing Laws,
Developer's waiting list of prospective, eligible Senior Citizen tenants for Housing Units shall
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include and follow the following order of priority for selection of tenants, and Authority will follow
such order of priority:
(a) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who have been displaced from their residences due to programs
or projects implemented by the City of Anaheim or another governmental entity;
(b) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who have applied for and have received Portable Vouchers from
Authority;
(c) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who are listed on Authority's waiting lists for affordable housing
and who live and/or work in Anaheim; and
(d) Senior Citizen Very Low Income Households and Senior Citizen Low
Income Households, as applicable, who live and/or work in Anaheim.
2.4 Household Income Requirements. Annually and on or before one hundred twenty
(120) days following the end of each calendar year, Developer shall prepare and submit to Authority,
at Developer's expense, a written summary of the income, household size, and rent payable by each
of the tenants of the Housing Units and, upon the written request of the Authority, copies of each and
all leases or rental agreements and the current rules and regulations for the Project. At Authority's
request, Developer shall also provide to Authority completed income computation and certification
forms, all in a form reasonably acceptable to Authority, for each and all tenants. Developer shall
obtain, or shall cause to be obtained by the Property Manager, a certification from each household
leasing a Housing Unit demonstrating that such household is a Very Low Income Household, or
Low Income Household, as applicable, and meets the eligibility and occupancy requirements
established for the Housing Unit. Developer shall verify, or shall cause to be verified by the Property
Manager, the income and household size certification of the tenant household.
2.5 Relocation; Developer Responsible for Compliance with and Cost of Relocation,
if and when Applicable. Developer acknowledges that tenants at the Site may be eligible for
advisory assistance, monetary payments, and other benefits related to temporary or permanent
displacement under applicable Relocation Laws and an approved Relocation Plan for the Project.
Developer shall be and remain fully responsible for complying with all applicable Relocation Laws
and the Relocation Plan for the Project. Developer shall cause to be provided and shall pay any and
all Relocation assistance and benefits in accordance with applicable Relocation Laws. Developer is
and shall remain solely responsible for, and to pay, all out-of-pocket costs for direct payments to
eligible persons for Relocation assistance and benefits due and paid and for any other costs incurred
related to any Relocation, including a Relocation consultant, and any and all costs or fees incurred.
2.5.1 Indemnification by Developer Relating to Relocation. Developer
acknowledges that this Regulatory Agreement implements a public program or project and thereby
during the Affordability Period, Developer covenants and agrees to, and shall, indemnify, save,
protect, hold harmless, pay for, and defend the Indemnitees from and against any and all liabilities,
suits, actions, claims, demands, penalties, damages (including without limitation penalties, fines, and
monetary sanctions), losses, costs, or expenses, including without limitation consultants' and
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attorneys' fees, or relocation benefits claimed or payable under applicable Relocation Laws (for
purposes hereof, the foregoing shall be referred to as "Liabilities") which may now or in the future be
incurred or suffered by Indemnitees by reason of, or resulting, in full or in part, or in any respect
whatsoever from the Relocation of lawful residents of the Site pursuant to or resulting from the
implementation this Regulatory Agreement (but excluding Liabilities, if any, incurred as the result of
an Indemnitee's gross negligence or willful misconduct or a breach by Authority of any
representation, warranty or covenant contained in this Regulatory Agreement. At the request of
Developer, Authority shall cooperate with and assist Developer in its defense of any such claim,
action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense; provided that Authority shall not be obligated to incur any expense in connection with such
cooperation or assistance.
2.5.2 Release. Developer, on behalf of itself and its Affiliates, and any and all
successors and assigns hereby fully and finally releases the Indemnitees from any and all manner of
actions, causes of action, suits, obligations, liabilities, judgments, executions, debts, claims and
demands of every kind and nature whatsoever, known and unknown, which Developer and any of its
affiliates, successors or assigns may now have or hereafter obtain against the Indemnitees by reason
of, arising out of, relating to, or resulting from in full or in part, the election of Developer to proceed
with the Project pursuant to this Regulatory Agreement except to the extent arising out of the gross
negligence or willful misconduct of any of the Indemnitees or a breach by Authority of any
representation, warranty or covenant contained in this Regulatory (collectively, "Claims"), which
release shall include but not be limited to any Claims for Relocation assistance or benefits under
federal, state, local, or any other applicable laws or Governmental Requirements, except to the extent
arising out of the gross negligence or willful misconduct of any of the Indemnitees or a breach by
Authority of any representation, warranty or covenant contained in this Regulatory Agreement. The
parties agree that, with respect to the release of Claims as set forth above, all rights under Section
1542 of the California Civil Code and any similar law of any state or territory of the United States are
expressly waived. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Developer Initials:
2.6 Leases; Rental Agreements for Housing Units. Developer shall use a standard
lease form for use at the Project as approved by the Executive Director, which approval shall not be
unreasonably withheld, conditioned or delayed; the lease form shall comply with the requirements of
this Regulatory Agreement, including all applicable provisions of the HAL and the Section 8 Laws.
Developer shall enter into a written lease, in the form approved by Authority (which approval shall
not be unreasonably withheld, conditioned or delayed), with each tenant/tenant household of the
Project. During the Affordability Period, any material changes to the lease form are subject to the
reasonable review and approval of the Executive Director, which approval shall not be unreasonably
withheld, conditioned or delayed.
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2.6.1 Prohibited Lease Terms. The tenant lease may not contain any of the
following provisions:
(a) Agreement to be sued. Agreement by the tenant to be sued, to admit
guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease;
(b) Treatment of property. Agreement by the tenant that the owner may
take, hold, or sell personal property of household members without notice to the tenant and a court
decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the
tenant concerning disposition of personal property remaining in the housing unit after the tenant has
moved out of the Housing Unit. The owner may dispose of this personal property in accordance with
State law;
(c) Excusing owner from responsibility. Agreement by the tenant not to
hold Developer or Developer's agents legally responsible for any action or failure to act, whether
intentional or negligent;
(d) Waiver of notice. Agreement of the tenant that Developer may
institute a lawsuit without notice to the tenant;
(e) Waiver of legal proceedings. Agreement by the tenant that Developer
may evict the tenant or household members without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense, or before a court decision on the rights of the parties;
(f) Waiver of a jury trial. Agreement by the tenant to waive any right to a
trial by jury;
(g) Waiver of right to appeal court decision. Agreement by the tenant to
waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection
with the lease;
(h) Tenant chargeable with cost of legal actions regardless of outcome.
Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court
proceeding by Developer against the tenant. The tenant, however, may be obligated to pay costs if
the tenant loses; and
(1) Mandatory Social and/or Supportive Services. Agreement by the
tenant (other than a tenant in transitional housing) to accept social and/or supportive services that are
offered.
(j) Termination of Tenancy. Developer may not terminate the tenancy or
refuse to renew the lease of a tenant of a Housing Unit within the Project except for failure to pay
rent, serious or repeated violation of the terms and conditions of the lease; for violation of applicable
federal, state, or local law; or for other good cause. Any termination or refusal to renew must be
preceded by not less than thirty (30) calendar days (or such longer period as may be required by
applicable laws) by Developer's service upon the tenant of a written notice specifying the grounds
for the action unless the termination is pursuant to a legal action in unlawful detainer subject to
applicable federal and state laws and HUD regulations.
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2.7 Supportive Services. Developer shall use its best efforts to implement the
Supportive Services Plan, and such other services as may be approved by the Authority Executive
Director, which approval shall not be unreasonably withheld. Any reduction of or material change in
the scope, amount, or type of social and supportive services to be provided at the Site shall be subject
to prior approval of Authority, which approval shall not be unreasonably withheld, conditioned or
delayed. Developer shall provide Supportive Services at the Project in accordance with this Section
2.7 throughout the Affordability Period. The Supportive Services Plan shall be implemented by
Developer shall be included in its annual operating budget and may be paid for, in whole or in part,
with grants or loans from third parties.
2.7.1 Alternative Supportive Services. In the event that, despite Developer's best
efforts, Developer is unable to provide all of the Supportive Services described in the Authority -
approved plan, Developer shall use reasonable best efforts to provide comparable social and
supportive services programming at the Project that are reasonably similar in scope and content to the
Supportive Services Plan during the entire Affordability Period. Such substitute services shall be
subject to the prior written approval of the Authority Executive Director, which approval shall not be
unreasonably withheld, conditioned or delayed. In the event the characteristics of the Senior Citizen
resident population at the Project change substantially, Authority Executive Director shall have the
authority to approve revisions to the Supportive Services Plan in her/his reasonable discretion.
3. Maintenance.
3.1 General Maintenance. Developer shall maintain the Site and all improvements
thereon, including lighting and signage, in good condition, free of debris, waste and graffiti, and in
compliance with all applicable provisions of the Anaheim Municipal Code. Developer shall maintain
in accordance with the Maintenance Standards the improvements and landscaping on the Site. Such
Maintenance Standards shall apply to all buildings, signage, common amenities, lighting,
landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all
other improvements on or about the Site. To accomplish the maintenance, Developer shall either
staff or contract with and hire licensed and qualified personnel to perform the maintenance work,
including the provision of labor, equipment, materials, support facilities, and any and all other items
necessary to comply with the requirements of this Regulatory Agreement.
3.2 Maintenance Standards. Developer and its maintenance staff, contractors or
subcontractors shall comply with the following maintenance standards as to the Site and overall
Project (collectively, "Maintenance Standards"):
(a) The Site shall be maintained in conformance and in compliance with the
approved final as -built plans, and reasonable maintenance standards which comply with the industry
standard for comparable first quality senior affordable housing projects in the County, including but
not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all
private improvements and public improvements to the curbline.
(b) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy appearance and safe road conditions
and visibility, and irrigation coverage; replacement, as needed, of all irrigation components and plant
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materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and
staking for support of trees, as necessary.
(c) Hardscape maintenance shall include, but not be limited to: driveway, parking
stalls, parking stops, walkways (whether concrete, pavers, flagstone or other non -concrete material),
must be kept free of trip/fall hazards greater than one -quarter inch (1/4 inch); planter borders, retaining
features, water features, fencing (metal, wood, vinyl), and outdoor furniture.
(d) Clean-up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas in clean and weed -free condition; maintenance of all such
areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all
trash, litter and other debris from improvements and landscaping prior to mowing; clearance and
cleaning of all areas maintained prior to the end of the day on which the maintenance operations are
performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by
maintenance workers.
3.2.2 Notice of Non -Compliance with Maintenance Standards. Authority agrees
to notify Developer in writing if the condition of the Site does not meet with the Maintenance
Standards and to specify the deficiencies and the actions required to be taken by Developer to cure
the deficiencies. Upon notification of any maintenance deficiency, Developer shall have thirty (30)
days within which to correct, remedy or cure the deficiency (or commence to correct, remedy or cure
the deficiency and thereafter diligently pursue the same.) If the written notification states the
problem is urgent relating to the public health and safety, then Developer shall have forty-eight (48)
hours to rectify the problem, or at a minimum render the condition safe (and thereafter commence
and complete with due diligence a complete correction of the problem.) In the event Developer does
not maintain the Site in the manner set forth herein and in accordance with the Maintenance
Standards, Authority shall have, in addition to any other rights and remedies hereunder after the
notice and cure periods set forth herein, the right to maintain the Site, or to contract for the correction
of such deficiencies, after written notice to Developer, and Developer shall be responsible for the
payment of all such costs incurred by Authority.
3.2.3 Program Maintenance. In addition to the routine maintenance and repair
required pursuant to Section 4.10.1, Developer shall perform the following minimum programmed
maintenance of the Improvements to the Site with due consideration by the Executive Director of the
most recent PCNA as a primary factor:
(a) Interior painting and window covering replacement at least every five
(5) years;
(b) Exterior painting at least every ten (10) years;
(c) Repair and resurfacing of parking areas and walkways at least every
five (5) years; and
(d) Replacement of all deteriorated or worn landscaping and outdoor
furnishings or related equipment at least every five (5) years.
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(1) Upon the request of Developer, the Executive Director, at her
sole and absolute discretion, may grant a waiver or deferral of any program maintenance
requirement. Developer shall keep such records of maintenance and repair as are necessary to prove
performance of the program maintenance requirements.
3.3 Occupancy Limits. The minimum occupancy of the Housing Units shall not be less
than one person per studio and one -bedroom Housing Units. The maximum occupancy of the
Housing Units shall not exceed more than such number of persons as is equal to two persons per
bedroom, plus one; thus (a) for the studio 0-bedroom Housing Units the maximum occupancy is two
persons, and (b) for the one -bedroom Housing Units the maximum occupancy shall not exceed three
(3) persons.
3.4 Management of the Project.
3.4.1 Property Manager. Developer shall manage the Project, or cause such
property management, including Site and Improvements in a prudent and business -like manner,
consistent with good property management standards for other comparable Senior Citizen high
quality, well managed affordable rental housing projects in the County. Developer may contract with
a property management company or property manager, to operate and maintain the Project in
accordance with the terms of this Section 3.4 ("Property Manager"); provided, however, the selection
and hiring of the Property Manager (and each successor or assignee), including any Affiliate, is and
shall be subject to prior written approval of Authority's Executive Director (or designee) in her or his
sole and reasonable discretion, which approval shall not be unreasonably withheld, conditioned or
delayed. RCM is hereby approved to act as the Property Manager, subject to Executive Director
review of the scope of services, itemized fees, and fee contract for property management between
Developer and RCM. The property management contract shall include express provisions
referencing this Authority Regulatory Agreement with acknowledgement of receipt and review of
such agreements and that RCM (or successive Property Manager) shall manage the Project in
compliance therewith. In particular, the Property Manager shall manage the Project in accordance
with the definitions of Affordable Rent herein, the tenant selection requirements herein, and the
definitions of Very Low Income and Low Income herein. Any fee paid to the Property Manager for
Supportive Services provided to the tenants shall be exclusive of the fee paid to the Property
Manager relating to the management of the Project. Except for RCM, Developer shall conduct due
diligence and background evaluation of any potential third party property manager or property
management company to evaluate experience, references, credit worthiness, and related
qualifications as a property manager. Any proposed property manager shall have significant and
relevant prior experience with Senior Citizen affordable housing projects and properties comparable
to Bel'Age Senior Apartments and the references and credit record of such property
manager/company shall be investigated (or caused to be investigated) by Developer prior to
submitting the name and qualifications of such proposed property manager to the Executive Director
for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed.
A complete and true copy of the results of such background evaluation shall be provided to the
Executive Director, which approval shall not be unreasonably withheld, conditioned or delayed.
Approval of a Property Manager by Authority's Executive Director shall not be unreasonably
delayed but shall be in her/his sole reasonable discretion, and Authority Executive Director shall use
good faith efforts to respond as promptly as practicable in order to facilitate effective and ongoing
property management of the Project by one qualified Property Manager. The replacement of RCM
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by Developer and/or the selection by Developer of any new or different Property Manager during the
Affordability Period shall also be subject to the foregoing requirements.
3.4.2 Property Management Plan. Developer shall manage and cause
management of the Site and Project in compliance with the Authority -approved Property
Management Plan. During the Affordability Period, Developer and its Property Manager may from
time to time submit to the Executive Director proposed amendments to the Property Management
Plan, the implementation of which shall also be subject to the prior written approval of the Executive
Director, which approval shall not be unreasonably withheld, conditioned or delayed.
3.4.3 Gross Mismanagement. During the Affordability Period, and in the event of
"Gross Mismanagement" (as defined below) of the Project, Executive Director and/or Authority shall
have and retain the authority to direct and require any condition(s), acts, or inactions of Gross
Mismanagement to cease and/or be corrected immediately, and further to direct and require the
immediate removal of the Property Manager and replacement with a new qualified and approved
Property Manager, if such condition(s) is/are not ceased and/or corrected (or such correction has not
commenced) after expiration of thirty (30) days from the date of written notice from Executive
Director. If Developer or Property Manager has commenced to cure such Gross Mismanagement
condition(s) on or before the 20th day from the date of written notice (with evidence of such
submitted to the Executive Director), but has failed to complete such cure by the 30th day (or such
longer period if the cure cannot reasonably be accomplished in thirty (30) days as reasonably
determined by the non -defaulting party), then Developer and its Property Manager shall have an
additional 10 days to complete the cure of Gross Mismanagement condition(s). In no event shall any
condition of Gross Mismanagement continue uncured for a period exceeding forty-five (45) days
from the date of the initial written notice of such condition(s), except that the condition described in
subdivision (d) below may exist for up to, but no longer than sixty (60) days (i.e., 45 plus up to
15 days), without triggering Authority's right to remove the Property Manager as described in the
immediately following sentence as long as Developer has commenced and is diligently and
continuously working to cure such conditions of Gross Mismanagement. If such condition(s) do
persist beyond such period, Executive Director shall have the sole and absolute right, subject to
Section 3.4.3(a) below, to remove the Property Manager and Developer shall contract with a
replacement Property Manager reasonably acceptable to Authority (in accordance with this Section
3.4.3).
(a) In the event the Gross Mismanagement is not cured and corrected by
Developer or its Property Manager within the applicable 45-day, or up to 60-day, cure and correction
period described in Section 3.4.3 above, Authority shall provide a second notice and additional 30
day cure period to Developer, with copies to its Lender, to inform Developer (and its Lender) that the
Authority intends to remove and replace the Property Manager.
(i) During that second notice 30-day period, Developer (and its
Lender) have the right, but not the obligation, to replace the Property Manager, and thereafter, if not
replaced by Developer (or any of the New Partners), the Authority has the sole and absolute right to
immediately and without further notice to replace the Property Manager, with all costs associated
therewith to be and remain the sole legal and financial obligation of Developer.
(b) For purposes of this Regulatory Agreement, the term
"Gross Mismanagement" shall mean management of the Project in a manner that violates the terms
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and/or intention of this Regulatory Agreement to operate a first quality affordable senior housing
complex, and shall include, but is not limited to, any one or more of the following:
(1) Habitually leasing to tenants who exceed the prescribed
income levels;
(ii) Habitually allowing tenants to exceed the prescribed
occupancy levels without taking prompt action to stop such overcrowding;
(iii) Under -funding required reserve accounts after notice and cure
period;
(iv) Failing habitually to timely maintain the Project in accordance
with the Property Management Plan and Maintenance Standards;
(v) Fraud or embezzlement of Project funds, including without
limitation funds in the reserve accounts;
(vi) Failing to fully cooperate with the Anaheim Police
Department or other local law enforcement agency(ies) with jurisdiction over the Project in
maintaining a crime -free environment within the Project;
(vii) Failing to cooperate with the Anaheim Fire Department or
other local public safety agency(ies) with jurisdiction over the Project in all reasonable respects, in
maintaining a safe and accessible environment within the Project, in particular for public safety and
other first responders as to ingress, egress and accessibility to and from the Project;
(viii) Failing to cooperate with the Anaheim Planning & Building
Department, including the Code Enforcement Division, or other local health and safety enforcement
agency(ies) with jurisdiction over the Project in all reasonable respects, in maintaining a decent, safe
and sanitary environment within the Project;
(ix) Failing to conduct, or refer to appropriate third party(ies) to
conduct, health, safety and welfare checks as reasonable for residents who are reasonably known to
Developer, its Property Manager, onsite resident manager(s), social and supportive services
providers, or other onsite workers be infirm, ill, incapacitated, or otherwise in need of close
supervision of their living arrangement and ability to conduct their basic activities of daily living; and
(x) Spending funds from the Capital Replacement Reserve
account for items that are not defined as eligible costs.
(c) Notwithstanding the requirements of the Property Manager to correct
any condition of Gross Mismanagement as described above, Developer is obligated and shall use its
best efforts to correct any defects in property management or operations at the earliest feasible time
and, if necessary, to replace the Property Manager as provided above. Developer shall include
reference to the foregoing requirements and requirements of this Regulatory Agreement within any
contract between Developer and its Property Manager for the Project.
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3.5 Code Enforcement. Developer acknowledges and agrees that Authority, City, and
their employees and authorized agents, shall have the right to conduct code compliance and/or code
enforcement inspections of the Project and the individual Housing Units, both exterior and interior, at
reasonable times and upon reasonable notice (not less than 48 hours prior notice, except in an
emergency) to Developer and/or an individual tenant. If such notice is provided by Authority or City
representative(s) to Developer, then Developer (or its Property Manager) shall immediately and
directly advise any affected tenant of such upcoming inspection and cause access to the area(s)
and/or Housing Units at the Project to be made available and open for inspection. Developer shall
include express advisement of such inspection rights within the lease/rental agreements for each
Housing Unit in order for each and every tenant and tenant household to be aware of this inspection
right and such inspection(s) shall not unreasonably interfere with use and enjoyment of the premises
and common areas or any applicable Housing Unit(s). In the event of refusal of Authority or City
representatives' access hereunder, Developer shall not object to an application for and issuance of an
administrative inspection warrant to be issued by a court of competent jurisdiction that authorizes
inspection, with the costs therefor to be and remain the sole financial obligation of Developer as
eligible Third Party Costs.
3.6 Capital Replacement Reserve. Developer shall comply with all requirements to
fund, maintain and administer the Capital Replacement Reserve in accordance with the provisions of
Section 4.12 of the AHA.
3.7 Non -Discrimination Covenants.
3.7.1 Nondiscrimination and Equal Opportunity. Developer hereby covenants,
by and for itself, its successors and assigns, and all persons claiming under or through them, to
comply with the following laws relating to nondiscrimination and equal opportunity: (1) The Fair
Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et seq.;
Executive Order 11063, as amended by Executive Order 12259 (3 CFR, 1959-1963 Comp., p. 652
and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing
regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4)
(Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1;
the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR
part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing
regulations at part 8 of this title; title II of the Americans with Disabilities Act, 42 U.S.C. 12101 et
seq.; 24 CFR part 8; Executive Order 11246, as amended by Executive Orders 11375, 11478, 12086,
and 12107 (3 CFR, 1964-1965 Comp., p. 339; 3 CFR, 1966-1970 Comp., p.684; 3 CFR, 1966-1970
Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978 Comp., p264, respectively) (Equal
Employment Opportunity Programs) and implementing regulations at 41 CFR chapter 60; Executive
Order 11625, as amended by Executive Order 12007 (3 CFR, 1971-1975 Comp., p. 616 and 3 CFR,
1977 Comp., p. 139) (Minority Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp.,
p. 198) (Minority Business Enterprise Development); and Executive Order 12138, as amended by
Executive Order 12608 (3 CFR, 1977 Comp., p393 and 3 CFR, 1987 Comp., p. 245) (Women's
Business Enterprise).
3.7.2 Prohibition of Inquiries on Sexual Orientation or Gender Identity.
Developer further covenants, by and for itself, its successors and assigns, and all persons claiming
under or through them, not to inquire about the sexual orientation or gender identity of an applicant
for, or occupant of, the Project or any Housing Unit at the Site, for the purpose of determining
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eligibility for occupancy of such Housing Units or otherwise making such Housing Units available.
This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any
individual from voluntarily self -identifying sexual orientation or gender identity. Further,
determinations of eligibility for occupancy of Housing Units at the Project shall be made in
accordance with the eligibility requirements provided for such program by HUD, and such Housing
Units shall be made available without regard to actual or perceived sexual orientation, gender
identity, or marital status.
3.7.3 Covenants Run With the Land. The covenants established in this Section
3.7, et seq., shall, without regard to technical classification and designation, be binding for the benefit
and in favor of Authority and its successors and assigns, and shall remain in effect in perpetuity.
3.7.4 Clauses in Contracts and Leases. All contracts and leases relating to the
Site shall contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, her or his heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (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 premises herein conveyed, nor shall
the grantee or any person claiming under or through him or her, 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, sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, her or his heirs,
executors, administrators, and assigns, and all persons claiming under or through him or her, and this
lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of any basis listed in subdivision (a) or (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 leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, 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."
(c) In contracts: "There shall be no discrimination against or segregation
of, any person or group of persons on account of any basis listed in subdivision (a) or (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 premises
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which are the subject of this Regulatory Agreement, nor shall the grantee or any person claiming
under or through him or her, 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, sublessees, or vendees in the premises herein conveyed."
3.8 Monitoring and Recordkeeping. Throughout the Affordability Period, Developer
shall comply with all applicable recordkeeping and monitoring requirements of the HAL and shall
annually complete and submit to Authority a Certification of Continuing Program Compliance in a
form provided by Authority. Representatives of Authority (and City) shall be entitled to enter the
Site upon at least forty-eight (48) hours' notice, to monitor compliance with this
Regulatory Agreement, to inspect the books and records of the Site, and to conduct an independent
audit or inspection of such books and records. Developer agrees to cooperate with Authority in
making all of its records for the Project and making the Site and all Housing Units thereon available
for inspection or audit subject to the privacy rights of tenants under applicable laws. Books and
records shall be made available for review and inspection and/or audit in Orange County, California.
Developer agrees to maintain all books and records relating to the Project in a businesslike manner.
3.8.1 Right to Audit. Developer shall keep full and accurate books of account,
records and other pertinent data with respect to operations of the Project. Such books of account,
records, and other pertinent data shall be kept for a period of three (3) years after the end of each
Developer's fiscal year, and shall be made available for review or audit by the Authority or its
designees with a three (3) day written notification to Developer.
3.9 Annual Monitoring Fee. Concurrently with the delivery of each annual report and
Certificate of Continuing Program Compliance to Authority, Developer shall pay an Annual
Monitoring Fee to Authority in the amount of Sixty Dollars ($60) per Housing Unit
($60.00 x 178 = $10,680) increased annually by no more than 3%, which shall compensate Authority
for its costs incurred to monitor Developer's compliance with this Regulatory Agreement. There will
be only one monitoring fee under this Regulatory Agreement (and the AHA).
4. Duty to Prevent Hazardous Material Contamination. During operation the Project on the
Site, Developer shall take all necessary precautions to prevent the release of any Hazardous Materials
into the environment on or under the Site. Such precautions shall include compliance with all
Governmental Requirements with respect to Hazardous Materials. Developer shall notify Authority,
and provide to Authority a copy or copies, of any notices of violation, notices to comply, citations,
inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self -
reporting requirements and reports filed or applications made pursuant to any Governmental
Requirement relating to Hazardous Materials and underground tanks, and Developer shall report to
Authority, as soon as possible after each incident in the event of a release of any Hazardous Materials
into the environment.
4.1 Governmental Requirements. For purposes of this Section 4, the term
"Governmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations,
orders and decrees of the United States, the state, the county, the City, or any other political
subdivision in which the Site is located, and of any other political subdivision, agency or
instrumentality exercising jurisdiction over Authority, Developer or the Site.
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4.1.1 Hazardous Materials. For purposes of this Section 4, the term
"Hazardous Materials" means any substance, material, or waste which is or becomes regulated by
any local governmental authority, the County, including the Orange County Health Care Agency, the
Regional Water Quality Control Board, the State of California (including the Department of Toxic
Substances Control), other state, regional or local governmental authority, or the United States
Government, including, but not limited to, any material or substance which is (1) defined as a
"hazardous waste," ..extremely hazardous waste," or "restricted hazardous waste" under Section
25115, 25117 or 25122.7, or listed pursuant to HSC Section 25140, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under HSC Section 25316,
Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined
as a "hazardous material," "hazardous substance," or "hazardous waste" under HSC Section 25501,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined
as a "hazardous substance" under HSC Section 25281, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
biphenyls, (viii) designated as "hazardous substances" pursuant to Section 311 of the Clean Water
Act (33 U.S.C. § 1317), (ix) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (x) defined as
"hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601, et seq. Notwithstanding the foregoing,
"Hazardous Materials" shall not include such products in quantities as are customarily used in the
construction, maintenance, rehabilitation, management, operation and residence of residential
developments or associated buildings and grounds, or typically used in residential activities in a
manner typical of other comparable residential developments, or substances commonly ingested by a
significant population living within the Project, including without limitation alcohol, aspirin, tobacco
and saccharine.
5. Indemnification.
5.1 General. Developer shall defend, indemnify, pay for, assume all responsibility for,
and hold the Indemnitees, harmless from all claims, demands, damages, defense costs or liability of
any kind or nature relating to the subject matter of this Regulatory Agreement, or the validity,
applicability, interpretation or implementation hereof and for any damages to property or injuries to
persons, including accidental death (including attorneys' fees and costs), which may be caused by
any acts or omissions of Developer under this Regulatory Agreement, whether such activities or
performance thereof be by Developer or by anyone directly or indirectly employed or contracted with
by Developer and notwithstanding the time of discovery or when such damage occurred. Developer
shall not be liable for property damage or bodily injury to the extent occasioned by the gross
negligence or willful misconduct of Authority or City or their agents or employees. Developer shall
have the obligation to defend any such action; provided, however, that this obligation to defend shall
not be effective if and to the extent that Developer determines in its reasonable discretion that such
action is meritorious or that the interests of the parties justify a compromise or a settlement of such
action, in which case Developer shall compromise or settle such action in a way that fully protects
Indemnitees from any liability or obligation. In this regard, Developer's obligation and right to
defend shall include the right to hire (subject to written reasonable approval by Authority and City)
attorneys and experts necessary to defend, the right to process and settle reasonable claims, the right
to enter into reasonable settlement agreements and pay amounts as required by the terms of such
settlement, and the right to pay any judgments assessed against Indemnitees. If Developer defends
any such action, as set forth above, (i) Developer shall indemnify and hold harmless Indemnitees
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from and against any claims, losses, liabilities, or damages assessed or awarded against either of
them by way of judgment, settlement, or stipulation, and (ii) Authority shall be entitled to settle any
such claim only with the written consent of Developer and any settlement without Developer's
consent shall release Developer's obligations under this Section 5 with respect to such settled claim.
This Section notwithstanding, indemnification with respect to Hazardous Materials shall be governed
by Section 5.2.1 below.
5.1.1 Environmental Indemnity. Developer shall save, protect, pay for, defend
(with counsel acceptable to Authority and/or City, as applicable, approval of which shall not be
unreasonably withheld), indemnify and hold harmless the Indemnitees from and against any and all
Environmental Claims and any and all liabilities, suits, actions, claims, demands, penalties, damages
(including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses
(including, without limitation, consultants' fees, investigation and laboratory fees, attorneys' fees and
remedial and response costs and third -parry claims or costs) (the foregoing are hereinafter
collectively referred to as "Liabilities") that may now or in the future be incurred or suffered by
Indemnitees by reason of, resulting from, in connection with or arising in any manner whatsoever as
a direct or indirect result of: (i) the presence, use, release, escape, seepage, leakage, spillage,
emission, generation, discharge, storage, or disposal of any Hazardous Materials in, on, under, or
about, or the transportation of any such Hazardous Materials to or from, the Site; (ii) the violation, or
alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license
relating to the use, generation, release, leakage, spillage, emission, escape, discharge, storage,
disposal, or transportation of Hazardous Materials in, on, under, or about, or to or from, the Site; (iii)
the environmental condition of the Site, (iv) any Liabilities relating to any Environmental Laws and
other Governmental Requirements relating to Hazardous Materials and/or the environmental
condition of the Site, and (v) any Environmental Claims relating to the Project, the Site; provided,
however, that the foregoing indemnity shall not apply to any Liabilities arising or occurring as a
result of the gross negligence or intentional and wrongful acts or omissions of Authority or City. The
foregoing indemnification shall continue in full force and effect regardless of whether such
condition, liability, loss, damage, cost, penalty, fine, and/or expense shall accrue or be discovered
before or after the termination of this Regulatory Agreement. This indemnification supplements and
in no way limits the scope of the general indemnification above.
(a) Release of Authority and City by Developer. Developer hereby
waives, releases and discharges forever the Indemnitees from all present and future claims, demands,
suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities,
fees and expenses, including attorneys' fees, court and litigation costs and fees of expert witnesses,
present and future, arising out of or in any way connected with Developer's ownership and/or use of
the Site in accordance with this Regulatory Agreement and for the operation of the Project at the Site,
of any Hazardous Materials on the Site, or the existence of Hazardous Materials contamination in
any state on, under, or about the Site, however they came to be located there, except to the extent
evidenced to have been caused by the intentional action or grossly negligent action of an
Anaheim Indemnitee.
6. Compliance with Laws. Developer shall carry out this Regulatory Agreement and operation
of the Project in conformity with all applicable federal, state and local laws, including, without
limitation, all applicable state labor standards, City zoning and development standards, building,
plumbing, mechanical and electrical codes, and all other provisions of the Anaheim Municipal Code,
and all applicable disabled and handicapped access requirements, including without limitation the
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Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450,
et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section
51, et seq., Civil Code Section 51.3, et seq., HOTMA, and any other applicable Governmental
Requirements. Developer (and its Affiliates and successors and assigns) shall pay prior to
delinquency all ad valorem real estate taxes, possessory interest taxes, and assessments as to the Site
(and Improvements), subject to Developer's (and its Affiliates and successors and assigns) right to
contest in good faith any such taxes. Developer may apply for and receive any exemption from the
payment of property taxes or assessments on any interest in or as to the Project without the prior
approval of Authority.
7. Payment of Taxes. During the entire Affordability Period, Developer shall pay prior to
delinquency all ad valorem real estate taxes, personal property taxes, special taxes, assessments and
special assessments levied against the Site (and Improvements), subject to Developer's right to
contest any such tax in good faith and any property tax exemptions. All such payments shall be
made prior to the delinquency date of such payment. Developer shall promptly furnish Authority
with satisfactory evidence that such taxes have been paid or that an exemption from such taxes has
been obtained. If Developer shall fail to pay any such taxes, Authority shall have the right to pay the
same, in which case Developer shall repay such amount to Authority within ten (10) days after
demand from Authority together with interest at the rate of six percent (6%) per annum.
7.1 Personal Property. Developer shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other personal property of
Developer contained in the Site or elsewhere. When possible, Developer shall cause said trade
fixtures, furnishings, equipment and all other personal property to be assessed and billed separately
from the real property of Authority.
7.2 Permitted Contests. Developer, at no cost or expense to Authority, may contest
(after prior written notice to Authority), by appropriate legal proceedings conducted with due
diligence, the amount or validity or application, in whole or in part, of any Imposition or lien or any
Governmental Requirements or Insurance Requirements, provided that (a) in the case of liens of
mechanics, materialmen, suppliers or vendors, or Impositions or liens therefor, such proceedings
shall suspend the collection thereof from Authority, and shall suspend a foreclosure against the Site
and/or the Improvements, or any interest therein, (b) neither the Site nor the Improvements, nor any
part thereof or interest therein, nor any portion thereof, would be in any danger of being sold,
forfeited or lost by reason of such proceedings, (c) in the case of Governmental Requirements,
Authority would not be in any danger of any criminal liability or, unless Developer shall have
furnished a bond or other security therefor satisfactory to Authority, any additional civil liability for
failure to comply therewith and the Site and the Improvements would not be subject to the imposition
of any lien as a result of such failure, and (d) Developer shall have furnished to Authority, if
requested, a bond or other security, satisfactory to Authority. If Developer shall fail to contest any
such matters, or to give Authority security as hereinabove provided, Authority may, but shall not be
obligated to, contest the matter or settle or compromise the same without inquiring into the validity
or the reasonableness thereof. Authority, at the sole cost and expense of Developer, will cooperate
with Developer and execute any documents or pleadings legally required for any such contest.
7.3 Definitions. As used in this Section 7, the term "real property tax" shall include any
form of real estate tax or assessment (including, without limitation, on possessory interests), general,
special, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or
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bonds, levy or tax (other than inheritance, personal income, or estate taxes) imposed on the Site or
any interest (including, without limitation, possessory interests) therein by any authority having the
direct or indirect power to tax, including any city, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal
or equitable interest of Authority or Developer in the Site or in the real property of which the Site is a
part, as against Authority's right to rent or other income therefrom, and as against Authority's
business of leasing the Site.
8. Reimbursement to Authority for Costs of Enforcement. In the event the Authority pays
the cost of insurance premiums, impositions, or other charges due from Developer and required to be
paid by Developer pursuant to this Regulatory Agreement, Authority shall be entitled to prompt
reimbursement by Developer, and such failure to reimburse the Authority shall further constitute a
default under this Regulatory Agreement.
9. Defaults and Remedies. Each and any Event of Default due to the Developer's failure to
timely cure, its breach of any condition, covenant, warranty, promise or representation contained in
this Regulatory Agreement and the rights and remedies therefor shall be governed by the provisions
of Section 6, et seq., of the AHA.
10. Waiver of Terms and Conditions. Any party may, in its sole discretion, waive in writing
any of the terms and conditions of this Regulatory Agreement. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach of the same
covenant, term, or condition.
11. Non -Recourse; Non -Liability of Authority or City Public Officials and Employees.
No member, official, employee or agent of Authority or City shall be personally liable to Developer,
or any successor in interest, in the event of any default or breach by Authority o or for any amount
which may become due to Developer or its successors, or on any obligations under the terms of this
Regulatory Agreement. No partner of Developer or any of their members, partners, employees,
officers, or agents shall be personally liable for any obligation or breach by Developer hereunder.
12. Time. Time is of the essence in this Regulatory Agreement
13. Notices. Any approval, disapproval, demand, document or other notice ("Notice") which any
party may desire to give to another parry under this Regulatory Agreement must be in writing and
may be given either by (i) personal service, (ii) delivery by reputable document delivery service such
as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the
United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address
of the parry as set forth below, or at any other address as that party may later designate by Notice.
Service shall be deemed conclusively made at the time of service if personally served; the next
business day if sent by overnight courier and receipt is confirmed by the signature of an agent or
employee of the parry served; the next business day after deposit in the United States mail, properly
addressed and postage prepaid, return receipt requested, if served by express mail; and three (3) days
after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt
requested, if served by certified mail.
Attachment No. 5
Authority Regulatory Agreement
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Developer: Belage Preservation Limited Partnership
c/o Jonathan Rose Companies
551 Fifth Avenue, 23rd Floor
New York, New York 10176
Attention: Brandon Kearse
With a Copy to: Goulston & Storrs
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attention: Deborah S. Horwitz
With a Copy to: Jamboree Housing Corporation
17701 Cowan Avenue, Suite 200
Irvine, CA 92614
Attention: Michael Massie
Authority: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Theresa Bass, Secretary
With a Copy to: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Grace Ruiz-Stepter, Executive Director
City Attorney, City of Anaheim
200 South Anaheim Boulevard
Anaheim, California 92805
Attention: City Attorney
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attention: Celeste Stahl Brady
Such addresses may be changed by Notice to the other party(ies) given in the same manner as
provided above.
14. Successors and Assigns. This Regulatory Agreement shall run with the land, and all of the
terms, covenants and conditions of this Regulatory Agreement shall be binding upon Developer and
Authority and the permitted successors and assigns of Developer and Authority. Whenever the term
"Developer" or "Authority" is used in this Authority Regulatory Agreement, such term shall include
any other successors and assigns as herein provided.
15. Except City, No Third Parties Benefited. Except as to the City of Anaheim, who the
parties agree is an intended third party beneficiary hereof, this Regulatory Agreement is made and
entered into for the sole protection and benefit of Authority (and City) and their successors and
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assigns and Developer and its successors and assigns, and no other person or persons shall have any
right of action hereon.
16. Partial Invalidity. If any provision of this Regulatory Agreement shall be declared invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired.
17. Governing Law. This Regulatory Agreement and other instruments given pursuant hereto
shall be construed in accordance with and be governed by the laws of the State of California. Any
references herein to particular statutes or regulations shall be deemed to refer to successor statutes or
regulations, or amendments thereto.
18. Amendment. This Authority Regulatory Agreement may not be changed orally, but only by
agreement in writing signed by Developer and Authority.
[Signatures for Authority Regulatory Agreement begin on next page.]
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Authority Regulatory Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Authority Regulatory
Agreement as of the date and year first set forth below.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
Name:
Title:
Authorized Signatory
[Signatures continue on following page.]
Attachment No. 5
Authority Regulatory Agreement
Page S-1
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[Signatures for Authority Regulatory Agreement continued from previous page.]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
M.
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leome Mulvihill
Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Housing Authority Special Counsel
Attachment No. 5
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EXHIBIT A TO ATTACHMENT NO. 5
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
Exhibit A to Attachment No. 5
Legal Description
Page 1 of 2
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ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Exhibit A to Attachment No. 5
Legal Description
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ATTACHMENT NO. 6
COMPLETION GUARANTY
This COMPLETION GUARANTY ("Guaranty") is made as of May 31, 2022 by
ROSE AFFORDABLE HOUISNG PRESERVATION FUND V, L.P., a Delaware limited
partnership ("Guarantor") in favor of the CITY OF ANAHEIM, a California municipal corporation
and charter city ("City"), and ANAHEIM HOUSING AUTHORITY, a public body corporate and
politic ("Authority"). As used herein, the term "Anaheim Parties" means City and/or Authority, as
the context dictates.
RECITALS
A. Authority is the owner of certain real properties in the City of Anaheim more
particularly described on Exhibit "A" attached hereto and made a part hereof ("Site").
B. Authority and Belage Preservation Limited Partnership, a California limited
partnership ("Developer") entered into that certain Amended and Restated Affordable Housing
Agreement (Bel'Age Senior Apartments), dated as of May 24, 2022 ("AHA"), pursuant to which
Developer agrees to cause the Substantial Rehabilitation, improvement, and continued operation of a
senior affordable housing rental development thereon within the time and in accordance with the
terms and conditions of the AHA.
C. Capitalized terms used in this Guaranty are as defined in the AHA or as otherwise
defined herein.
D. Pursuant to the AHA, in consideration for Developer's agreement to cause the
Substantial Rehabilitation of the Improvements and operation of the Project for the 99-year
Affordability Period, the Authority is providing to Developer that certain Authority PBV Assistance
through the Existing HAP Contract Second Extension.
E. Guarantor is an Affiliate of Developer, has a substantial financial interest in the
business and affairs of Developer, and will receive substantial economic benefit should Developer be
permitted to acquire the Site and complete the Substantial Rehabilitation in accordance with the
terms of the AHA.
THEREFORE, to induce the Anaheim Parties to enter into the Existing HAP Contract
Second Amendment and the AHA, Guarantor unconditionally guarantees and agrees as follows:
1. AHA. Guarantor acknowledges receipt of a copy of the AHA, and all of the
instruments described therein and/or attached thereto. The AHA is incorporated herein by this
reference as though fully set forth herein. AHA as used herein shall mean, refer to and include the
AHA as well as any riders, exhibits, addenda, amendments and attachments thereto (which are
hereby incorporated herein by this reference) or other documents expressly incorporated by reference
in the AHA. Any capitalized term not otherwise defined herein shall have the meaning ascribed to it
in the AHA.
Attachment No. 6
Completion Guaranty
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2. Guaranty. Guarantor hereby guarantees the performance by Developer of its
obligation to complete the Substantial Rehabilitation and all associated on -site and off -site
improvements (collectively, the "Improvements") on the Site pursuant to and in compliance with the
terms and conditions set forth in the AHA and in accordance with the Schedule of Performance
attached thereto. Without limiting the generality of the foregoing, Guarantor guarantees: (a) such
construction shall be substantially completed within the time limits set forth in the AHA, subject to
force majeure delays, as provided in the AHA; (b) the Substantial Rehabilitation shall be constructed
and substantially completed in accordance with the Development Plans and all other plans,
specifications and the other provisions of the AHA (collectively, "Specifications") without
substantial deviation therefrom, as the same may be modified from time to time in accordance with
the AHA; (c) the Substantial Rehabilitation shall be constructed and completed free and clear of any
mechanic's liens, materialmen's liens and equitable liens; (d) the Substantial Rehabilitation shall be
constructed and completed in compliance with applicable federal, state, and local laws, and (e) all
costs of construction through completion thereof shall be paid prior to delinquency.
3. Lien Free Completion. Substantial completion of the Substantial Rehabilitation on
the Site free and clear of liens shall be deemed to have occurred upon ("Lien Free Completion"):
(a) (i) Authority's receipt of copies of each and all building permits, evidencing sign -off with final
inspection therefor, as issued by the City of Anaheim, and (ii) the expiration of the statutory period(s)
within which valid mechanic's liens, materialmen's liens and/or stop notices may be recorded and/or
served by reason of the construction of the Substantial Rehabilitation, or, alternatively, Authority's
receipt of valid, unconditional releases thereof from all persons entitled to record said liens or serve
said stop notices; or (b) Authority's receipt of such other evidence of lien free completion as
Authority deems satisfactory in its reasonable discretion.
4. Obligations of Guarantor upon Default by Developer. If the Substantial
Rehabilitation is not substantially completed in the manner and within the time required by the AHA,
Guarantor shall, within thirty (30) days of receipt of written demand of the Anaheim Parties subject
to force majeure delays: (a) diligently proceed to complete the Substantial Rehabilitation of the
Improvements at Guarantor's sole cost and expense; (b) fully pay and discharge all claims for labor
performed and material and services furnished in connection with the Substantial Rehabilitation of
the Improvements; and (c) release and discharge all claims of stop notices, mechanic's liens,
materialmen's liens and equitable liens that may arise in connection with the Substantial
Rehabilitation. Guarantor's obligations hereunder shall be subject to the Authority keeping in full
force and effect the Existing HAP Contract Second Extension, subject to the terms and conditions
thereof, provided, however, such obligation of Authority is expressly conditioned upon there being
no continuing default by Guarantor under this Guaranty.
5. Remedies. If Guarantor fails to promptly subject to force majeure delays perform its
obligations under this Guaranty, the Anaheim Parties shall have the following remedies:
5.1 At the Anaheim Parties' option with written notice to Guarantor, and without
any obligation to do so, to proceed to perform on behalf of Guarantor any or all of Guarantor's
obligations hereunder and Guarantor shall, upon demand and whether or not construction is actually
completed by the Anaheim Parties, pay to the Anaheim Parties all sums expended by the Anaheim
Parties in performing Guarantor's obligations hereunder together with interest thereon at the
COFI (I Ith District cost of funds index) interest rate.
Attachment No. 6
Completion Guaranty
Page 2 of 6
4893-1713-7678v9/022620-0095
5.2 From time -to -time and without first requiring performance by Developer to
bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder,
and to collect in any such action compensation for all loss, cost, damage, injury and expense
sustained or incurred by the Anaheim Parties as a direct or indirect consequence of the failure of
Guarantor to perform its obligations.
5.3 The absolute and unilateral right of Authority, without consent of Guarantor
(or Developer), to terminate and cancel the Existing HAP Contract Second Extension, and to seek
compensation and reimbursement from Guarantor of all costs and expenses, including in-house and
Third Party Costs, incurred arising from the Authority's issuance of Portable Vouchers to each, any
and all tenants at the Site who reside in Housing Units that were designated as PHV HAP Units.
6. Rights of the Anaheim Parties. Guarantor authorizes the Anaheim Parties, without
giving notice to Guarantor or obtaining Guarantor's consent and without affecting the liability of
Guarantor, from time to time to approve modifications to the Development Plans and Specifications
so long as such modifications do not materially increase the cost of construction thereof, nor
materially increase the time necessary to complete the Substantial Rehabilitation, nor assign this
Guaranty in whole or in part.
7. Guarantor's Waivers. Guarantor waives: (a) any defense based upon any legal
disability or other defense of Developer, any other guarantor or other person, or by reason of the
cessation or limitation of the liability of Developer from any cause other than full payment and
performance of those obligations of Developer which are guaranteed hereunder; (b) any defense
based upon any lack of authority of the officers, directors, partners or agents acting or purporting to
act on behalf of Developer or any principal of Developer or any defect in the formation of Developer
or any principal of Developer; (c) any and all rights and defenses arising out of an election of
remedies by the Anaheim Parties, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of
subrogation and reimbursement against the principal by the operation of Section 580d of the
California Code of Civil Procedure or otherwise; (e) any defense based upon any statute or rule of
law which provides that the obligation of a surety must be neither larger in amount nor in any other
respects more burdensome than that of a principal; (f) any defense based upon the Anaheim Parties'
election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of
Section I I I I(b)(2) of the Federal Bankruptcy Code or any successor statute; (g) any defense based
upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy
Code; (h) presentment, demand, protest and notice of any kind; and (i) the benefit of any statute of
limitations affecting the liability of Guarantor hereunder or the enforcement hereof.
8. Guarantor's Warranties. Guarantor warrants and acknowledges that: (a) Authority
would not enter into the Existing HAP Contract Second Extension and the AHA, but for this
Guaranty; (b) Guarantor has reviewed all of the terms and provisions of the AHA; (c) there are no
conditions precedent to the effectiveness of this Guaranty; (d) Guarantor has established adequate
means of obtaining from sources other than the Anaheim Parties, on a continuing basis, financial and
other information pertaining to Developer's financial condition, the Site, the progress of the
Substantial Rehabilitation of the Improvements, and the Anaheim Parties have made no
representation to Guarantor as to any such matters; (e) the most recent financial statements of
Guarantor previously delivered to lender are true and correct in all material respects, have been
prepared in accordance with generally accepted accounting principles consistently applied (or other
Attachment No. 6
Completion Guaranty
Page 3 of 6
4893-1713-7678v9/022620-0095
principles acceptable to the Anaheim Parties) and fairly present in all material respects the financial
condition of Guarantor as of the respective dates thereof, and no material adverse change has
occurred in the financial condition of Guarantor since the respective dates thereof and (f) Guarantor
has not and will not, without the prior written consent of the Anaheim Parties, sell, lease, assign,
encumber, hypothecate, transfer or otherwise dispose of all or substantially all of Guarantor's assets,
or any interest therein, other than in the ordinary course of Guarantor's business.
9. Bankruptcy of Developer. In any bankruptcy or other proceeding in which the filing
of claims is required by law, Guarantor shall file all claims which Guarantor may have against
Developer relating to any indebtedness of Developer to Guarantor and shall assign to the Anaheim
Parties all rights of Guarantor thereunder. If Guarantor does not file any such claim, the Anaheim
Parties, as attorney -in -fact for Guarantor, is hereby authorized to do so in the name of Guarantor or,
in the Anaheim Parties' discretion, to assign the claim to a nominee and to cause proof of claim to be
filed in the name of the Anaheim Parties' nominee. The foregoing power of attorney is coupled with
an interest and cannot be revoked. The Anaheim Parties or their nominee shall have the right, in its
reasonable discretion, to accept or reject any plan proposed in such proceeding and to take any other
action which a parry filing a claim is entitled to do. In all such cases, whether in administration,
bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to the
Anaheim Parties the amount payable on such claim and, to the full extent necessary for that purpose,
Guarantor hereby assigns to the Anaheim Parties all of Guarantor's rights to any such payments or
distributions; provided, however, Guarantor's obligations hereunder shall not be satisfied except to
the extent that the Anaheim Parties receive cash by reason of any such payment or distribution. If the
Anaheim Parties receive anything hereunder other than cash, the same shall be held as collateral for
amounts due under this Guaranty. If all or any portion of the obligations guaranteed hereunder are
paid or performed, the obligations of Guarantor hereunder shall continue and shall remain in full
force and effect in the event that all or any part of such payment or performance is avoided or
recovered directly or indirectly from the Anaheim Parties as a preference, fraudulent transfer or
otherwise under the Bankruptcy Code or other similar laws, irrespective of any notice of revocation
given by Guarantor prior to such avoidance or recovery.
10. Additional, Independent and Unsecured Obligations. This Guaranty is independent
of the obligations of Developer under the AHA to undertake and complete the Substantial
Rehabilitation. The Anaheim Parties may bring a separate action to enforce the provisions hereof
against Guarantor without taking action against Developer or any other party or joining Developer or
any other parry as a party to such action. Except as otherwise provided in this Guaranty, this
Guaranty is not secured and shall not be deemed to be secured by any security instrument unless such
security instrument expressly recites that it secures this Guaranty.
11. Attorneys' Fees, Enforcement. If any attorney is engaged by the Anaheim Parties to
enforce or defend any provision of this Guaranty, or the AHA relating to the Substantial
Rehabilitation, or as a consequence of any Default, breach or failure of condition under the AHA
relating to the Substantial Rehabilitation, with or without the filing of any legal action or proceeding,
Guarantor shall pay to the Anaheim Parties, immediately upon demand all reasonable attorneys' fees
and costs incurred by the Anaheim Parties in connection therewith, together with interest thereon
from the date of such demand until paid at the rate of six percent (6%) per annum interest.
12. Rules of Construction. The word "Developer" as used herein shall include both the
named Developer and any other person at any time assuming or otherwise becoming primarily liable
Attachment No. 6
Completion Guaranty
Page 4 of 6
4893-1713-7678v9/022620-0095
under the AHA. The term "person" as used herein shall include any individual, company, trust or
other legal entity of any kind whatsoever. If this Guaranty is executed by more than one person, the
term "Guarantor" shall include all such persons. When the context and construction so require, all
words used in the singular herein shall be deemed to have been used in the plural and vice versa. All
headings appearing in this Guaranty are for convenience only and shall be disregarded in construing
this Guaranty.
13. Credit Reports. Each legal entity and individual obligated on this Guaranty hereby
authorizes the Anaheim Parties to order and obtain, from a credit reporting agency of the Anaheim
Parties' choice, a third parry credit report on such legal entity and individual.
14. Governing Law. This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of California, except to the extent preempted by federal laws. Guarantor
and all persons and entities in any manner obligated to the Anaheim Parties under this Guaranty
consent to the jurisdiction of any federal or state court within the State of California having proper
venue and also consent to service of process by any means authorized by California or federal law.
15. Miscellaneous. The provisions of this Guaranty will bind and benefit the heirs,
executors, administrators, legal representatives, nominees, successors and assigns of Guarantor and
the Anaheim Parties. The liability of all persons and entities that are in any manner obligated
hereunder shall be joint and several. If any provision of this Guaranty shall be determined by a court
of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed
from this Guaranty and the remaining parts shall remain in full force as though the invalid, illegal or
unenforceable portion had never been part of this Guaranty.
16. Enforceability. Guarantor hereby acknowledges that: (a) the obligations undertaken
by Guarantor in this Guaranty are complex in nature, and (b) numerous possible defenses to the
enforceability of these obligations may presently exist and/or may arise hereafter, and (c) as part of
the Anaheim Parties' consideration for entering into this transaction, the Anaheim Parties have
specifically bargained for the waiver and relinquishment by Guarantor of all such defenses, and
(d) Guarantor has had the opportunity to seek and receive legal advice from skilled legal counsel in
the area of financial transactions of the type contemplated herein. Given all of the above, Guarantor
does hereby represent and confirm to the Anaheim Parties that Guarantor is fully informed regarding,
and that Guarantor does thoroughly understand: (1) the nature of all such possible defenses, and
(ii) the circumstances under which such defenses may arise, and (iii) the benefits which such
defenses might confer upon Guarantor, and (iv) the legal consequences to Guarantor of waiving such
defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the intent that this
Guaranty and all of the informed waivers herein shall each and all be fully enforceable by the
Anaheim Parties, and that the Anaheim Parties are induced to enter into this transaction in material
reliance upon the presumed full enforceability thereof. This Guaranty shall automatically terminate
upon the first to occur of the following Lien -Free Completion of the Substantial Rehabilitation as
such term is defined in Section 3.
Attachment No. 6
Completion Guaranty
Page 5 of 6
4893-1713-7678v9/022620-0095
IN WITNESS WHEREOF, Guarantor has executed this Completion Guaranty as of the date
appearing on the first page hereof.
"GUARANTOR"
ROSE AFFORDABLE HOUSING
PRESERVATION FUND V, L.P.,
a Delaware limited partnership
Name:
Title: Authorized Signatory
Attachment No. 6
Completion Guaranty
Page 6 of 6
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 7
REQUEST FOR NOTICE OF DEFAULT
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attn: Executive Director
This document is exempt from the payment of a
recording fee pursuant to Government Code §§ 6103
and 27383.
REQUEST FOR NOTICE UNDER CIVIL CODE SECTION 2924B
In accordance with California Civil Code Section 2924b request is hereby made that a copy
of any Notice of Default and a copy of any Notice of Sale under the Deeds of Trusts recorded as
Instrument No. on May [ 1, 2022 in the Official Records of Orange County,
California, and describing land therein as set forth in the legal description attached hereto as Exhibit
A and incorporated herein, executed by BELAGE PRESERVATION LIMITED
PARTNERSHIP, a California limited partnership, as Trustor/Borrower, in which Capital One,
a National Association is named as Beneficiary, and FIDELITY NATIONAL TITLE COMPANY
is named as Trustee, be mailed to: ANAHEIM HOUSING AUTHORITY, a California public
body, corporate and politic, 201 South Anaheim Boulevard, Suite 1003, Anaheim, California 92805,
Attn: Executive Director.
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED
REQUEST. IF ADDRESS CHANGES, A NEW REQUEST MUST BE
RECORDED.
[Signature blocks for Request for Notice begin on next page]
Attachment No. 7
Request for Notice of Default
Page 1 of 3
4893-1713-7678v9/022620-0095
IN WITNESS WHEREOF, this Request for Notice is executed by the parties:
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
Name:
Title:
Authorized Signatory
[Signatures for Request for Notice of Default continue on following page.]
Attachment No. 7
Request for Notice of Default
Page 2 of 3
4893-1713-7678v9/022620-0095
[Signatures for Request for Notice of Default continue from previous page.]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
By:
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leome Mulvihill, Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Housing Authority Special Counsel
Attachment No. 7
Request for Notice of Default
Page 3 of 3
4893-1713-7678v9/022620-0095
EXHIBIT A TO ATTACHMENT NO. 7
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Exhibit A to Attachment No. 7
Legal Description
Page 1 of 2
4893-1713-7678v9/022620-0095
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Exhibit A to Attachment No. 7
Legal Description
Page 2 of 2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 8
RELEASE OF CONSTRUCTION COVENANTS
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Attention:
This document is exempt from the payment of a
recording fee pursuant to Government Code §§ 6103
and 27383.
RELEASE OF CONSTRUCTION COVENANTS
This RELEASE OF CONSTRUCTION COVENANTS ("Release") is hereby made as of
, 202U, by the ANAHEIM HOUSING AUTHORITY, a public body,
corporate and politic ("Authority"), in favor of BELAGE PRESERVATION LIMITED
PARTNERSHIP, a California limited partnership ("Developer").
RECITALS
A. Authority and Developer have entered into that certain Amended and Restated
Affordable Housing Agreement (Bel'Age Senior Apartments), dated as of May 24, 2022
("Agreement"), which Agreement provides for the acquisition of all interests in the Site and the
undertaking and completing of the Substantial Rehabilitation related to a senior affordable housing
complex consisting of one hundred eighty (180) apartment units, in which 178 Housing Units are
made available to Senior Citizen Very Low Income and Low Income Households at an Affordable
Rent, on certain real property defined as the Site in the City of Anaheim, California, which is legally
described on Exhibit "A" attached hereto and made a part hereof by this reference ("Site").
B. The Project consists of the Substantial Rehabilitation of the Improvements on the Site
and the continued operation of the senior affordable housing Project. As required in the AHA,
Authority shall furnish Developer with a Release of Construction Covenants upon completion of the
Substantial Rehabilitation, which Release shall be in such form as to permit it to be recorded in the
Official Records of Orange County, California.
C. Authority has conclusively determined that the Substantial Rehabilitation as required
by the Agreement has been satisfactorily completed at the Site.
NOW, THEREFORE, Authority hereto certifies as follows:
Attachment No. 8
Release of Construction Covenants
Page 1 of 3
4893-1713-7678v9/022620-0095
1. As provided in the Agreement, Authority does hereby certify that the Substantial
Rehabilitation has been fully and satisfactorily performed and completed in accordance with the
Agreement.
2. After the recordation of this Release, any person or entity then owning or thereafter
purchasing, or otherwise acquiring any interest in the Site will not (because of such ownership,
purchase, or acquisition) incur any obligation or liability under the Agreement, except that such parry
shall be bound by any and all of the covenants, conditions, and restrictions which survive such
recordation, including, without limitation, the Authority Regulatory Agreement.
3. This Release is not a notice of completion as referred to in Section 3093 of the
California Civil Code.
4. The recitals above are incorporated in full as part of the substantive text of this
Release.
[Signatures appear on following pages.]
Attachment No. 8
Release of Construction Covenants
Page 2 of 3
4893-1713-7678v9/022620-0095
IN WITNESS WHEREOF, Authority has executed this Release of Construction Covenants
as of the date first set forth above.
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
Grace Ruiz-Stepter, Executive Director
or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leome Mulvihill, Assistant City Attorney
or Authorized Designee
STRADLING YOCCA CARLSON & RAUTH
Housing Authority Special Counsel
Attachment No. 8
Release of Construction Covenants
Page 3 of 3
4893-1713-7678v9/022620-0095
EXHIBIT A TO ATTACHMENT NO.8
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
Exhibit A To Attachment No. 8
Legal Description
Page 1 of 2
4893-1713-7678v9/022620-0095
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Exhibit A To Attachment No. 8
Legal Description
Page 2 of 2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 9
LIST OF ENVIRONMENTAL REPORTS
1. Phase I Environmental Site Assessment. Dated March 29, 2021; Prepared for RAHF V Belage,
LLC; Prepared by Partner Engineering and Science Inc.
2. Property Condition Report. Dated March 29, 2021; Prepared for Rose Affordable Housing
Preservation Fund V, LP; Prepared by Partner Engineering and Science Inc.
3. Seismic Risk Assessment. Dated March 29, 2021; Prepared for Rose Affordable Housing
Preservation Fund V, LP; Prepared by Partner Engineering and Science Inc.
4. ALTA/NSPS Land Title Survey for Belage Manor Anaheim, CA. Dated February 9, 2022;
Prepared for RAHF V Belage, LLC; Prepared by Bureau Veritas Technical Assessments, LLC.
5. Report of Phase I Environmental Site Assessment. Dated December 20, 2007; Prepared for
Preservation Partners Development; Prepared by Professional Services Industries, Inc.
6. Wood Destroying Pests and Organisms Inspection Report. Dated March 14, 2022; Prepared for
Rose Community Management; Prepared by Western Exterminator Company.
7. Wood Destroying Pests and Organisms Inspection Report. Dated May 17, 2021; Prepared for
Belage Manor Apartments; Prepared by Terminix International, Branch 92475.
8. Wood Destroying Pests and Organisms Inspection Report. Dated June 4, 2021; Prepared for
Belage Manor Apartments; Prepared by Terminix International, Branch #2475.
9. Bel'Age Manor Report Structural Framing at Patio Decks Patio Decks. Dated May 10, 2021;
Prepared for Rose Affordable Housing Preservation Fund V, LP; Prepared by Paragon
Construction.
10. Bel'Age Manor Non -Pressurized Pipe System Assessment Drain, Waste, Vent, Storm and Sewer
Piping Systems. Dated April 21, 2021; Prepared for Paragon Construction; Prepared by Rhino
Core.
Attachment No. 9
List of Environmental Reports
Page 1 of 1
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 10
PRELIMINARY FINANCING PLAN
AND FINANCING ASSUMPTIONS
The following Budget and Proforma describe the parties' assumptions and reasonable
expectations regarding the costs and sources of financing for the Project as of the Effective Date.
Further attached is true copy of Developer's final proforma for the Project as reviewed and approved
by Authority (and KMA).
Sources
Description
Amount
$ Per Unit
First Mortgage
$
27,775,000
$
154,306
Owner Equity
$
23,010,747
$
127,837
Jonathan Rose Companies (RAHPF V)
$
20,709,672
$
115,054
Jamboree Housing Corporation
$
2,301,075
$
12,784
Total Sources
$
50,785,747
$
282,143
Uses
Description
Amount
$ Per Unit
Purchase Price
$
41,250,000
$
229,167
Third -Party Costs
$
150,000
$
833
Anaheim Housing Authority Costs & Fees
$
150,000
$
833
Title Insurance
$
165,000
$
917
Financing Fees
$
208,313
$
1,157
Legal and Professional Fees
$
525,000
$
2,917
Tax Credit Recapture Bond
$
17,000
$
94
Credit for Transfer of Reserves
$
(1,272,760)
$
(7,071)
Operating Reserve
$
180,000
$
1,000
Replacement Reserve
$
180,000
$
1,000
Insurance Escrow
$
64,000
$
356
Renovation
$
9,169,194
$
50,940
Phase 1 Hard Costs
$
1,739,426
$
9,663
Phase 2 Hard Costs
$
4,631,041
$
25,728
General Contractor Fees
$
787,277
$
4,374
Construction Proj. Mgmt Fee
$
357,887
$
1,988
Hard Cost Contingency
$
751,563
$
4,175
Architect - Design
$
300,000
$
1,667
Architect -Supervision
$
150,000
$
833
Building Permits
$
100,000
$
556
Tenant Relocation
$
270,000
$
1,500
Soft Costs Contingency
$
82,000
$
456
Total Uses
$
50,785,747
1 $
282,143
Attachment No. 10
Preliminary Financing Plan and Financing Assumptions
Page 1 of 3
4893-1713-7678v9/022620-0095
DATE
5/31/2023
5/31/2024
5/31/2025
5/31/2026
5/31/2027
5/31/2028
5/31/2029
5/31/2030
5/31/2031
5/31/2032
Revenue
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10
Rental Income
PBV
1,851,120
1,915,909
1,982,966
2,052,370
2,124,203
2,198,550
2,275,499
2,355,142
2,437,572
2,522,887
U HTC
661,767
683,831
706,623
730,168
755,750
782,210
809,577
836,871
965,073
894,215
TBV
637,212
659,514
682,597
706,488
731,215
756,808
783,296
810,712
939,087
868,455
Manager
34,584
35,622
36,690
37,791
38,925
40,092
41,295
42,534
43,810
45,124
Total Rent Revenue
3,184,683
3,294,876
3,408,877
3,526,817
3,650,093
3,777,660
3,909,668
4,045,258
4,195,541
4,330,680
Rent Loss
Apartments Loss
31,847
32,949
34,089
35,268
36,501
37,777
39,097
40,453
41,855
43,307
Total Rent Loss
31,847
32,949
34,089
35,268
36,501
37,777
39,097
40,453
41,855
43,307
Other Revenue
Laundry and Vending
8,190
8,354
8,521
8,691
8,865
9,042
9,223
9,408
9,596
9,788
Tenant Charges
1,500
1,530
1,561
1,592
1,624
1,656
1,689
1,723
1,757
1,793
Miscellaneous Revenue
3,904
3,982
4,061
4,143
4,226
4,310
4,396
4,484
4,574
41665
Total Other Revenue
13,594
13,866
14,143
14,426
14,714
15,008
15,309
15,615
15,927
15,246
Total Revenue
3,166,430
3,275,793
3,386,931
3,505,975
3,628,306
3,754,892
3,885,880
4,020,420
4,159,613
4,303,619
Expense
Mgmt Fee
126,657
131,032
135,557
140,239
145,132
150,196
155,435
150,817
166,385
172,145
Admin Expenses
308,556
317,813
327,347
337,167
347,282
357,701
368,432
379,495
390,870
402,595
Utilities
83,450
85,953
88,532
91,188
93,923
96,741
99,643
102,633
105,712
108,883
Operating and Maintenance
237,961
245,100
252,453
260,027
267,827
275,862
284,138
292,662
301,442
310,485
Real Estate Taxes
500
515
530
546
563
580
597
615
633
652
Other Taxes and Insurance
211,212
217,549
224,075
230,798
237,721
244,853
252,199
259,765
267,558
275,584
Total Cost of Operations
968,336
997,961
1,026,495
1,059,965
1,092,450
1,125,933
1,160,444
1,195,976
1,232,599
1,270,345
Net Operating Income)Before Reserves)
2,198,093
2,277,831
2,360,436
2,446,010
2,535,856
2,628,959
2,725,435
2,824,444
2,927,015
3,033,274
Replacement Reserve Beginning Balance
180,000
180,000
180,000
180,000
180,000
180,000
180,000
180,000
180,000
1800000
Replacement Reserve Deposits
45,000
46,350
47,741
49,173
50,648
52,167
53,732
55,344
57,005
58,715
Capex from Reserves
45,000
46,350
47,741
49,173
50,648
52,167
53,732
55,344
57,005
59,715
Replacement Reserve Ending Balance
180,000
180,000
180,000
180,000
180,000
180,000
180,000
180,000
180,000
1800000
Net Operating Income
2,153,093
2,231,481
2,312,696
2,396,837
2,485,209
2,576,792
2,671,703
2,769,100
2,870,030
2,974,559
Attachment No. 10
Preliminary Financing Plan and Financing Assumptions
Page 2 of 3
4893-1713-7678v9/022620-0095
DATE
5/31/2023
5/31/2024
5/31/2025
5/31/2026
5/31/2027
5/31/2028
5/31/2029
5/31/2030
5/31/2031
5/31/2032
Debt Service
FNMA 10-vr Green ERS1 Prepay
Interest Payments
1,374,863
1,374,863
1,368,039
1,352,672
1,336,526
1,319,563
1,301,741
1,293,016
1,263,343
2,242,674
Principal Payments
—
—
303,472
318,839
334,985
351,948
369,770
388,495
408,167
428,836
Total Payment
1,374,863
1,374,863
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
Principal Balance (EOP):
27,775,000
27,775,000
27,471,528
27,152,689
26,817,705
26,465,757
26,095,987
25,707,492
25,299,325
24,870,488
Total Debt Payments
1,374,863
1,374,963
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
1,671,511
Principal Balance:
27,775,000
27,775,000
27,471,528
27,152,689
26,817,705
26,465,757
26,095,987
25,707,492
25,299,325
24,870,488
Total Outstanding Balance
27,775,000
27,775,000
27,471,528
27,152,689
26,817,705
26,465,757
26,095,987
25,707,492
25,299,325
24,870,488
Cash Flow Aker Debt Service
778,231
856,619
641,185
725,327
813,698
905,281
1,000,192
1,097,589
1,198,499
1,303,049
Attachment No. 10
Preliminary Financing Plan and Financing Assumptions
Page 3 of 3
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 11
[Reserved]
Attachment No. 11
[Reserved]
Page 1 of 1
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 12
SUPPORTIVE SERVICES PLAN
Jamboree Housing Corporation
Community Impact Services Plan
for Bel'Age Senior Apartments
This Supportive Services Plan (social services plan) reflects the expected needs of the residents who
will be living at Bel'Age Senior Apartments as the parties understand such needs presently, the
current partnerships that Jamboree Housing Corporation ("Jamboree") has with service partners, and
what is currently able to be resourced at this time.
Jamboree provides a comprehensive, multi -layered services program that is designed specifically to
respond to the identified needs of our residents. This plan will necessarily change through the years
as the resident population changes and as new service partnerships are developed. As this plan
updates, changes will be communicated to the Anaheim Housing Authority prior to implementation
of the change.
I. Description of Needs Assessment
The Community Needs Assessment will inform Resident Services on the impact existing
programming is having on residents. These assessments will include questions related to social
impact, food security, social connections, and stability. The results of these assessments will guide
the RSC's programming calendars. Jamboree Resident Services will distribute this survey at the
beginning of this partnership and at least once every 5 years to stay up to date with the needs of the
current residents.
As a result of the Needs Assessment Jamboree will create programs such as:
• A community garden
• Consistent food distributions
• ESL Classes
• Fitness programs
• Crafting Classes
• Community Engagement Events
As a result of our services Jamboree will see:
• A decrease in food insecurity
• An increase in social connection
• A reduction in depression and isolation
• Better access to medical and mental health resources and education
II. Description of AizinE Services to be Offered:
The following service plan is designed to describe a best -practices supportive service design that
addresses the critical needs of low-income seniors. Jamboree's Aging Services centers around our
model of providing social programming with intentional elements that encourage engagement and
address resident concerns. By doing so, leading research tells us there will be a decrease in social
Attachment No. 12
Supportive Services Plan
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4893-1713-7678v9/022620-0095
isolation and loneliness for seniors living at our properties, leading to better long-term physical and
mental health outcomes for our residents. These positive health and wellness outcomes will
ultimately allow residents to age in place longer. These services are provided at no cost to the
residents of the development.
In developing the Aging Services model, Jamboree focuses on five (5) program model pillars used to
design and execute our aging services activities:
1. Social Programs
Encouraging residents to come to the community center to participate in programming will increase
their physical health and overall emotional well-being. Programs should always boost camaraderie
and volunteerism, as well as serve to address other presenting needs that occur within the
communities. Social Programs will be facilitated by either Resident Services Coordinator or partners.
Results of the Needs Assessment will guide Resident Services in types of programs and consistency
of the programs.
Activities like bingo, holiday events and movie nights will be delivered to build
community and provide social connections. Minimum of 6 events a year.
Regular Coffee Chat will be held to connect residents both to each other and to service
and Property Management. Topics will include health and wellness, community needs,
safety, and others. Minimum of three (3) Coffee Chats a month.
2. Economic Programs
Economic stability is important in providing the basic needs safety net. Many of our seniors still
work and/or are on a limited income so programming can support residents where they are and range
from employment assistance to avoiding frauds and scams.
• Providing access to basic needs through food distribution and linkages to supportive services
and benefit programs will allow for increased independence.
o For example, Second Harvest will provide bi-weekly or monthly food distributions
including items such as shelf stable boxes, fresh produce, frozen meals, dairy, meat,
etc.
3. Health and Wellness Programs
Instrumental to the aging services programming are the many ways we can interact and support
residents on their own health and wellness journey, including programs, educational workshops, and
systems to engage and check -in on all residents. Health and Wellness Programs will be facilitated by
either Resident Services Coordinator or partners. Results of the Needs Assessment will guide
Resident Services in types of programs and consistency of the programs. Minimum of 5 hours a
month of Health and Wellness Programs.
Stabilizing or increasing physical, mental and emotional health through yoga, walking groups
and nutritional cooking classes.
Attachment No. 12
Supportive Services Plan
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• Empowering residents to improve their own health and wellbeing through chronic disease
management classes, fraud prevention workshops and other opportunities to continue to
learn.
• Resident Check Ins: Rose Companies Property Management and Resident Services will work
together to develop a plan for consistent check -ins and wellness calls for residents. They will
use a combination of working with partners, checking in during planned programming, and
directly calling and knocking on doors.
• SCAN Independence at Home's Friendly Visitor and Friendly Caller Programs: Volunteers
in this program get paired with seniors and consistently check in either in person or over the
phone depending on the preference of the participants. Participants can also request a
volunteer that speaks the same language as them.
• In partnership with Rose Companies, each building will have a "Building Captain" and a
protocol in place to execute safety plans should the need arise.
4. Educational Pro r ams
A robust calendar will be created in partnership with Community Impact and Property Management
that will reflect the interests of the residents as to what they may be interested in learning about.
Partners will be brought in to do either a series of classes or a workshop that will benefit residents.
Educational Programs will be facilitated by either Resident Services Coordinator or partners. Results
of the Needs Assessment will guide Resident Services in types of programs and consistency of the
programs. Minimum of 5 hours a month of Educational Programs. A copy of the monthly event
calendar will be provided to the Anaheim Housing Authority.
Educational workshops will include: fraud/scam prevention, budgeting, legacy planning as
well as resume writing, interviewing and computer classes. Educational workshops will be
facilitated by either Resident Services Coordinator or partners. Results of the Needs
Assessment will guide Resident Services in types of programs and consistency of the
programs.
5. Civic Engagement
Programs at the property will encourage resident participation and volunteerism. Some have already
been mentioned, such as participating in the Buddy System or volunteering to be a Building Captain.
In addition to utilizing our partnerships to run the programs, all programs offered will be
opportunities for residents to volunteer, lead and design on their own.
An effort will be made to develop a Resident Leadership group that will inform Resident
Service activities. Residents will receive flyers promoting the Resident Leadership group and
inviting them to participate. Every resident will have an equal chance to sign up and
participate.
• Connections to local law enforcement via annual National Night Out event and meetings
with the community liaison for Anaheim Police Department.
Attachment No. 12
Supportive Services Plan
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III. STAFFING PLAN
A. Onsite Staff
1. — One (1) Fulltime Resident Services Coordinator
The Resident Services Coordinator (RSC) will design and implement the service program listed
above. Primary duties of the RSC are to:
• Develop and implement a resident service plan designed to address the goals and results
identified in the Community Needs Assessment and resident surveys.
• Develop a calendar of monthly programmatic activities and distribute to residents in
cooperation with Property Management.
• -Maintain organized copies of all calendars, flyers, and sign in sheets for all events in one
file to submit as an annual report.
• Provide direct coordination of services, resource and connections to local services, public
benefit programs, and other community resources.
• Provided limited one-on-one support to individuals as needed.
• Compile data that demonstrates improvement in areas identified for each property in
Service Plan.
2. Community Impact Manager
The Community Impact Manager provides direct support to Resident Services Coordinators in a
region. They provide an extended network of partnerships, participate as volunteers at resident
events, and maintain compliance records for audits.
Utilizing Existing Partnerships
Jamboree has already secured many valuable partnerships at our senior, family and supporting
housing sites in Anaheim. We will extend these partnerships and services to Bel'Age including:
• OC Health Care Agency: Nutrition classes and chronic disease management classes
• Second Harvest Foodbank: Brown bag, grocery and/or other food distribution programs
• Silver Sneakers or other exercise groups
• OCAPICA, Korean Community Services, CAPOC: nonprofit leaders who provide culturally
relevant resources to residents of Anaheim like mental health services, language classes and
services, and benefits enrollment.
Once we begin services at Bel'Age, we will conduct an assessment to better understand what
providers may be a fit for this community. We will also fully partner with Rose Companies
Property Management and their onsite team to provide seamless support, programming and
communications for the residents. Once our Needs Assessment has been completed, we will
begin compiling MOUs with the partners that will be coming onsite.
Attachment No. 12
Supportive Services Plan
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Data Analysis and Reporting
Data that Jamboree collects will be analyzed and distributed back out to the community and
partners by the Community Impact Team from the various tools including:
• Annual Property survey — collected once a year
• Periodic Housing Impact Survey — collected every 3 — 5 years
• Community Needs Assessment — collected every 2 — 3 years (attached to Service Plan)
• Monthly Data Reports: Number of people attending programs, number of hours of
programming, pounds of food distributed, etc.
Attachment No. 12
Supportive Services Plan
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ATTACHMENT NO. 13
PROPERTY MANAGEMENT PLAN
1. Relationship between Owner and Management Agent
a. Explain the role and the responsibilities of the sponsor, and his relationship to and
delegation of authority to the managing agent;
Rose Community Management, LLC (RCM) is owned by Rose Companies Holdings,
LLC (RCH) and will act as the Agent for Owner. RCM and RCH will work
concurrently to ensure all responsibilities of the owner and managing agent are
discharged appropriately.
The Owners desire to achieve and maintain 100% rate of occupancy.
The Owners will maintain the building physically in conjunction with the aging of the
building and its facilities. Roof maintenance will be ongoing, appliances replaced,
boilers run efficiently and updated as required with ongoing repairs done as
necessary. Capital Needs Studies will be utilized to make sure the building is
maintained and in accordance to industry standards where applicable.
At all times the safety and security of the residents will be our number one priority. If
the services of a security guard are necessary, it will be provided through a third -
party contract.
RCM will represent ownership in all of these matters.
b. The relationship of the sponsor to the on -site project manager, with a clear division of
responsibilities for policy and administration;
Rose Community Management, LLC (RCM) is owned by Rose Companies Holdings,
LLC (RCH) and will act as the Agent for Owner. RCM and RCH will work
concurrently to ensure all responsibilities of the owner and managing agent are
discharged appropriately.
A Management Agreement between RCM and Ownership has been signed which
formalizes the relationship between RCM and Ownership and details RCM's
responsibilities related to the management and maintenance of the community.
C. Personnel policy and staffing arrangements for site personnel and supervisors;
Rose Community Management, LLC maintains detailed policies for the management
of communities that we are contracted to manage. These policies include detailed
personnel policies as well as standard operating procedures which direct our staff on
how to appropriately manage communities.
The staffing at Belage Manor will include 2 full-time administrative staff and 2
maintenance staff:
1 Community Manager / 1 Assistant Community Manager
1 Maintenance Supervisor / 1 Maintenance Technicians
1 Resident Service Coordinator staffed by Jamboree Housing
Attachment No. 13
Management Plan
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4893-1713-7678v9/022620-0095
These community level personnel will be supported by the corporate and
administrative staff of RCM.
d. Provisions for staff training and development: i.e. in sales/leasing, rental,
management and maintenance. (It should not include employee benefits,
compensation, or tenant procedures.)
i. All training progress and compliance are tracked through our Learning
Management System (LMS), Grace Hill Vision. This includes all
Instructor -led, online, in -person, and on -demand training.
1. A position -based training schedule is assigned to each staff member
upon hire to include,
a. Annual compliance (Fair Housing, Sexual Harassment,
etc.)
b. Recurring safety and emergency response procedures
C. Systems and software applications
d. Leasing and rental
e. Maintenance
f. Operations management
g. Other position -based training
2. Individual development goals are planned by the individual and their
manager and training may include,
a. Instructor -led
b. On -demand through our LMS
C. In -person and hands-on
d. Third -parry to receive certification
2. Procedures for Tenant Eligibility and Processing
a. Ensuring management personnel's familiarity with HUD and State Housing and
Community Development ("State HCD") program requirements, and the California
Health and Safety Code provisions for income and occupancy limits, and adherence
to additional compliance and regulatory requirements in the Authority Regulatory
Agreement:
Owner Responsibility to PHA (Anaheim Housing Authority)
Perform all management and rental functions for PBV, Portable Voucher and all
Housing Units pursuant to Authority Regulatory Agreement
i. Enforce tenant obligations under the lease
ii. Pay utilities and housing services (unless paid by the tenant under the lease)
iii. Collections from tenants:
iv. Security deposit
Attachment No. 13
Property Management Plan
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4893-1713-7678v9/022620-0095
V. Tenant rent.
vi. Charges for unit damage
Selection of tenants
1. During the term of the HAP contract, the owner must lease all contract units
to eligible families referred by the PHA/Authority from its waiting list.
2. The PHA/Authority must determine family eligibility in accordance with
HUD and Authority Regulatory Agreement requirements. The contract unit
leased to each family must be appropriate for the size of the family under the
PHA/Authority's subsidy standards.
3. The owner is responsible for screening and selecting tenants from the families
referred by the PHA/Authority from its waiting list.
Policy
i. The Community Manager will determine if an applicant may be admitted
after receipt of all required verifications and completion of the verification
process in compliance with HUD Handbook 4350.3, applicable federal
statutes and regulations and the Authority Regulatory Agreement.
ii. Prohibited selection criteria: The following factors may not be considered in
the decision to deny an applicant under federal and state Fair Housing laws:
o Race/color
o National origin/ancestry (including language and ethnicity)
o Religion
o Sex (including sexual orientation and gender identity)
o Familial status (The household has children under age 18 or a pregnant
person, or the household is pursuing custody of a minor)
o Status as person with disabilities
o Any other protected class under state or local law such as marital status,
political ideology, source of income, etc.
iii. The entire verification process must be complete before approving an
applicant. The Community Manager will initially decide if the applicant
should be admitted or denied; however, any questionable issues must be
reviewed with the Regional Manager as outlined below. The applicant's
misrepresentation of any information related to eligibility, allowances,
household composition, screening criteria, or rent may be cause for denial.
This provision will not be used to penalize an applicant who chooses not to
disclose their disability during the application process.
iv. If an applicant is eligible and meets all the criteria in the Tenant Selection
Plan ("TSP"), the applicant is approved for admission to the community. If an
applicant is ineligible, the applicant is denied.
Attachment No. 13
Property Management Plan
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4893-1713-7678v9/022620-0095
Admission Standards
V. HUD and Authority Regulatory Agreement admission standards consist of
three primary elements:
o Income and program eligibility for the housing program
o Eligibility for any applicable admission preferences under the housing
program
o Meeting the screening criteria set forth in the Resident Selection Plan
(RSP)
Eligibility
vi. Income eligibility. The household's annual income must not exceed the
income limits based on household size under the Authority Regulatory
Agreement and pursuant to the applicable federal housing program.
Eligibility is based on annual income, not adjusted income.
o Section 8 new construction (pre 10-1-81). Admission to Section 8 new
construction communities with HAP contract dates before October 1,
1981 is restricted to a limited number of applicants meeting the low-
income limit (income at 80% of an area's median income) and primarily
to applicants meeting the very low-income limit (income at or below 50%
of an area's median income).
o Section 8 new construction (post 10-1-81). Admission to Section 8 new
construction communities with HAP contract dates on or after October 1,
1981 is restricted to applicants meeting the very low-income limit, with
certain exceptions.
o Section 8 LMSA. Admission to Section 8 loan management set -aside
(LMSA) communities is generally restricted to applicants meeting the
very low-income limit except in certain circumstances.
o Section 236 program only. Admission is restricted to applicants meeting
the low-income limit. The applicant's income must be adequate to enable
the applicant to pay the basic rent. Economic criteria have been set up for
each community in its Resident Selection Plan (RSP). Housing Choice
Vouchers must be accepted. Other forms of rental assistance may be
considered (e.g. local programs).
o Section 236 with Rent Supplement or Rental Assistance Payments deep
subsidies. Admission is restricted to applicants meeting the very low-
income limit.
o The Quality Housing and Work Responsibility Act of 1998 (QHWRA)
also requires that not less than 40% of applicants admitted per fiscal year
to have incomes not exceeding HUD's extremely low-income limit (30%
of an area's median income). A few exceptions apply.
o The applicant shall complete and sign income, asset, and expense
verifications to determine income eligibility and to calculate adjusted
income and rent.
Attachment No. 13
Property Management Plan
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4893-1713-7678v9/022620-0095
Program eligibility.
vii. The applicant's household must meet the requirements of the federal housing
program. They include, but are not limited to:
o Occupancy Standards. The applicant's household size is appropriate for
the particular size apartment available under HUD requirements, state
laws, and local ordinances and pursuant to the Authority Regulatory
Agreement.
o Agreement to Pay Lease Obligations. The applicant agrees to pay the rent
amount and security deposit required under the federal housing program.
o Sole Residence. The apartment will be the applicant's only residence.
o Receipt of Housing Assistance. The applicant is not permitted to receive
assistance simultaneously for two federally assisted apartments. However,
an applicant currently receiving housing assistance is permitted to apply
for a federally assisted apartment at a different apartment community.
o U.S. Citizenship or Eligible Immigrant Status. Eligible immigrant status
includes but is not limited to status as a noncitizen lawfully admitted for
permanent residence. Noncitizens must meet the criteria under 24 Code of
Federal Regulations Part 5 subpart E for either full assistance or prorated
assistance.
o Social Security Information Disclosure. The applicant shall disclose
complete and accurate Social Security numbers of household members.
o HUD -Required Forms Submitted. The applicant and any household
members age 18 and over must sign HUD Forms 9887, 9887-A, and any
other HUD -required forms.
• The Authority Regulatory Agreement refers to certain required forms,
income certifications, and compliance forms, which are applicable to
operation and management of the Project.
o Persons subject to a lifetime registration requirement under a state sex -
offender program are prohibited from admission.
o Former residents of federally assisted housing evicted from housing due
to drug -related criminal activity are ineligible for HUD assistance for a
three-year period.
o Current illegal drug users and alcohol abusers are prohibited from
admission.
viii. The applicant may be entitled to admission preferences. Once housing
program eligibility has been determined, statutory, or regulatory preferences
may affect the order of applicant processing when there is an available
apartment.
o Section 8 new construction communities have elected an elderly
admission preference under federal law that determines how applicants
will be processed when there is an available apartment. Similarly, Section
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236 and Section 221 (d)(4) mortgage properties must provide applicants
with regulatory preferences (such as displacement by natural disaster) if
applicable to the applicants.
o For a complete explanation of preferences in admissions and applicant
processing, refer to the Resident Selection Plan (RSP) and the policies
Leasing Vacant Apartments (Section 8) and Leasing Vacant Apartments
(Section 236).
o The QHWRA at Section 513 also requires that no less than 40% of all
new admissions during the fiscal year be households with incomes not
exceeding 30% of an area's median income (HUD's extremely low-
income limit). HUD's income -targeting mandate must be met. See the
policy Income Targeting Section.
ix. The applicant meets the screening criteria in the Tenant Selection Plan (TSP).
All applicants are screened according to the Tenant Selection Plan (TSP),
either through the predictive scoring model or through manual verification
procedures.
In -Person Applications
1. Give the applicant the appropriate application to complete.
o If leasing to more than one adult household member, provide a separate
application to each adult applicant.
2. Review the Tenant Selection Plan (TSP) with the applicant to ensure they are
qualified. All of the below requirements must be verified for an applicant
before the application may be approved:
o Demonstrated ability to pay the rent on time and to meet the lease
requirements
o References from past landlords or other residency history which may
include housekeeping habits
o Credit screening
o Criminal background screening
o Whether the applicant has engaged in drug -related criminal activity
3. Review the application to ensure the applicant has completed all fields.
4. Complete all applicable information on the application regarding:
o Rent
o Specials
o Lease term
o Deposit
o Move -in date
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5. If you have not previously verified the applicant's identity by checking
government -issued photo identification, do so at this time.
o Note on the Leasing Checklist that ID was verified.
o Confirm the information on the photo ID, including the name, address,
birth date and driver's license number (if applicable), matches that on the
application.
o Do not photocopy IDs at this time.
• For communities or housing programs that require verification of age
for eligibility: If photo IDs are used to verify age, do not retain a
photocopy of the photo ID until lease signing.
6. Collect all applicable deposits and fees according to your community -specific
guidelines.
o Collect separate payments for deposits and fees.
o If leasing to more than one adult household member, collect o an
application fee from each individual.
o Document the apartment number on all payments.
o Deposit application fees immediately. Security deposits will be deposited
upon approval.
7. Have the applicant sign as you explain each of the following:
o The application
o Resident Selection Plan (RSP)
o Any applicable addenda and/or other required documents (Privacy Policy,
etc.)
8. Complete the Welcome Letter and explain that account numbers for
electricity and any other required utilities must be provided at the time of
move -in.
Online Applications
1. Direct prospects who wish to lease online to the prospect portal to:
o Set up an account with a valid email address.
o Check availability, select an apartment, complete an application, and pay
applicable fees.
2. Once the screening process is complete, the applicant is directed to the office
to obtain more information.
3. If the applicant is approved:
o The lease is automatically assigned to "Admin."
o Once the online application is opened, the employee who assists the
applicant with the next steps will be assigned the lease in OneSite.
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b. The system used to determine applicant's eligibility, including the procedures utilized
for accepting applications, the number of persons reviewing, processing, and
approving or rejecting applications. (It should not contain specific Tenant Selection,
as this is covered in the Tenant Selection Plan);
i. All applicants age 18 and over must be screened according to the TSP, either
through the predictive scoring model or through manual verification
procedures, unless preliminarily denied.
ii. Applicants will be screened through OneSite and through third -parry
verifications (if applicable) using the following criteria based on the
community's TSP:
o A credit screening must be obtained for all applicants to verify adequacy
of past performance in meeting financial obligations, especially timely
rent and utility payments.
o Verifications from current and previous landlords listed on the
Application for Assistance and a residency history screening must be
obtained for all applicants to verify rent payment history, prior
housekeeping and maintenance habits, the applicant's ability to live
peacefully with neighbors, and the applicant's ability to comply with
other lease obligations.
o A criminal background screening must be obtained for all applicants to
verify that the applicant has not engaged in criminal activity (including
drug -related) adversely affecting the health, safety, or welfare of other
residents, apartment community staff, or other persons.
• The counties of residence for the addresses listed on the
Application for Assistance, as well as other counties of
residence that are discovered during the application process,
will be subject to criminal background screening.
• The screening includes but is not limited to criminal records
maintained by city, county, state, and federal law
enforcement agencies. See TSP for additional requirements.
• Involvement in criminal activity by any applicant or other
household members that would adversely affect the health,
safety, or welfare of other residents or community staff is
cause for denial.
• Involvement in any drug -related criminal activity by any
applicant is cause for denial.
• Applicants who previously resided in counties or states with
limited instant, online criminal results are additionally
screened using out of network criminal searches (limited to
the three previous counties/states of residence).
■ The only exception: Employees and their adult
occupants, when occupying an employee suite as part of
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their compensation, are not screened for selection
criteria.
iii. Applicants who cannot provide a Social Security number or ITIN number are
screened for credit and residency history using manual verification
procedures and for criminal background using the No SSN/ITIN model in
OneSite.
o Note: An applicant with an ITIN but no SSN may not be eligible for HUD
assistance. See the Resident Selection Plan (RSP) for detailed
information.
iv. Live-in aides are screened for residency history using manual verification
procedures and for criminal background using the Live -In Aide model in
OneSite.
V. New applicants added to the household and the existing Lease Agreement or
added when an existing household transfers to a new apartment are screened
according to the Resident Selection Plan (RSP).
vi. The Community Manager or Assistant Community Manager approves or
denies applicants based on the recommendation of the predictive scoring
model. The Regional Manager reviews and may override the recommendation
of the predictive scoring model in OneSite.
vii. It is the Community Manager's responsibility to ensure that all recommended
out of network criminal searches have been processed and that Regional
Manager has reviewed and approved a household before performing a
screening override.
o When applicable, notes should be entered into the screening activity by
both the Community Manager and Regional Manager.
viii. RCM may consider extenuating circumstances in evaluating information
obtained during the screening process.
o If the applicant is a person with disabilities, RCM will consider
extenuating circumstances where this would be required as a matter of
reasonable accommodation.
ix. Applicant screening reports are valid for 120 days. Copies of all screening
documentation must be maintained in applicants' riles.
X. The federal Fair Credit Reporting Act (FCRA), the 2003 Fair and Accurate
Credit Transactions Act (FACT Act), and the Frank -Dodd Wall Street
Reform and Consumer Protection Act of 2010 require that specific
information be provided to applicants when they are subject to adverse action
(denied) based on an unacceptable credit history or any other report from a
consumer reporting agency.
o A credit report or any other report from a consumer reporting
agency is confidential information and may not be disclosed.
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3. Rent Collection Policies and Procedures
a. Procedures for rent collections, including accommodations for on -site collections.
Describe the system used to record rent payments;
b. Follow-up procedures for keeping delinquencies at a minimum (i.e. to collect
delinquent rent, serving notices for non-payment of rent and eviction procedures).
Rent is due on the first day of each month.
The Community Manager is responsible for the collection of all money owed.
o All payments received must be processed daily.
o All scanned batch deposits should have no more than 25 items per batch to
simplify auditing and research and to minimize errors.
Acceptable forms of payment include:
o Personal checks
o Cashier's checks
o Money orders
o Credit/debit cards (paid online through the resident portal)
• Unacceptable forms of payment include:
o Third -parry endorsement checks, money orders, and cashier's checks
o Checks, money orders, and cashier's checks from a party not listed on the
lease (unless from an agency authorized to help)
Partial rent payment must not be accepted without Regional Manager approval.
• In the rare situation that a manual deposit is required, deposits must be taken to
the bank the same day or next business day.
o For communities without a local Chase Bank, deposits must be mailed.
• Guaranteed funds are required for move -in monies, security deposits, and for
NSF check replacements.
o Guaranteed funds are defined as certified checks or money orders. Credit card
payments are an approved alternative to guaranteed funds for online
payments, move -in monies and security deposits only.
o Employees should request that payments of deposits be made with a separate
certified check, money order, or credit card payment.
• In general, postdated checks from residents should not be accepted unless there is
a nonrecurring, extenuating circumstance. Post-dated checks should not be
routinely accepted.
After two returned payments (NSFs), residents must pay in certified funds.
• If an eviction has been filed for nonpayment of rent, the full balance owed must
be collected in certified funds.
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o Employees must verify local, county, and state eviction statutes before
accepting payment from a resident who is under eviction proceedings.
o Payment must not be deposited if it is preferable that the resident be evicted
(if allowable).
4. Resident/Management Relations
a. Leasing and tenant orientation procedures including notifying tenants of house or
community rules, and conducting move -in inspections;
Resident Handbook/House Rules
• The Resident Handbook/House Rules is an addendum to the Lease Agreement
and is provided to every resident at the time of move -in and at the time of
revision.
• The Resident Handbook/House Rules addresses community and company
policies not covered in the Lease Agreement.
• If any portion of the Resident Handbook/House Rules is revised, current residents
must be given a 30-day review notice before any revised policies can be
implemented.
Move -In Inspections
Move -In Unit Inspection Report
o Accompany the resident to the apartment and walk through it together. Use
the Move -In Unit Inspection in the Mobile Facilities app to note any items
that might have been missed during the make-ready process.
■ Include a copy of the Move -In Unit Inspection Report in each new resident's
move -in package. (Section 8 communities -The signature and declaration page
should be printed along with this inspection and signed and dated by the
applicants and the Community Manager).
o If unable to accompany the resident for the inspection, explain to the resident
that it is important that the resident review the inspection, note any
deficiencies in the apartment and return it to the management office within
seven days after taking possession of the apartment.
■ Upon receipt of the completed Move -In Unit Inspection Report:
■ Review the report, enter service requests into OneSite, and schedule
the maintenance staff/vendor to repair any deficiencies within 30
days.
■ Sign and date the owner's certification on the declaration page.
■ Provide a copy of the Move -In Unit Inspection Report to the resident
(for affordable programs) or by request.
■ Upload the Move -In Unit Inspection Report to Document
Management in OneSite.
■ File the original report in the resident file.
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b. Marketing and lease -up policies;
The Community Manager will assist in creating, implementing, and monitoring a
marketing plan, upon the direction of the Regional Manager, on an as -needed
basis. The marketing plan must comply with the Affirmative Fair Housing
Marketing Plan (AFHMP) and fair housing regulations. If at any time, the
Community Manager feels that the results are not meeting the goal of the
marketing plan, the Community Manager must notify the Regional Manager.
• The Community Manager is responsible for implementing marketing efforts for
the apartment community to sustain maximum occupancy. When occupancy falls
below 95%, the Community Manager is responsible for working with the
Regional Manager, the Leasing Manager, and the Marketing Manager to develop
a marketing plan.
• The purpose of marketing is to generate qualified prospective applicants to the
apartment community who will sign and adhere to the terms of the Lease
Agreement. The effectiveness of a marketing and leasing program is measured by
occupancy.
• The marketing program is impacted by federal and local fair housing laws and
affirmative fair housing marketing guidelines.
• The objective of an effective marketing program is to generate sufficient and
qualified traffic to the apartment community and to contact prospective applicants
who will:
Meet established resident selection and program guide criteria as established
for the apartment community.
o Respect the property and adhere to the terms of the Lease Agreement.
o Enjoy their residency and remain as long-term residents.
C. Referral to social service agencies or services provided by onsite staff, and social
programming;
The community staff is aware of social services agencies as well as organizations
focused on providing support and social programming to our residents and will work
with these agencies to provide appropriate support to our residents as needed.
d. Method of handling tenant grievances, i.e. what is the on -site manager's role, and
who the tenant contacts in case of complaints or issues.
A grievance must be put in writing by the tenant and given to the Community
Manager. The Community Manager will provide a copy of the grievance to the
Regional Manager and the main office. The Community Manager will discuss with
the Regional Manager the best way to proceed. The Community Manager will then
contact the tenant regarding their grievance and do his/her best to resolve the
problem. If a solution cannot be resolved, the Director of Operations and/or the
President will be advised and consulted for final determination.
e. Procedures for handling tenant work order requests, including off hours emergency
notification procedures;
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Service Requests
• The Community Manager should develop an effective system of communication
between the office and maintenance staff to ensure timely completion of all
service requests.
• Employees must enter all service requests (resident requests for maintenance as
well as in-house requests for repairs or preventive maintenance) into OneSite or
the Mobile Facilities app.
o The OneSite recurring service request feature should be used for elevator
maintenance, fire alarm and extinguisher inspections, and other recurring
service items.
• The Community Manager and Maintenance Supervisor must monitor open
service requests on the Today page in OneSite to coordinate the day's work.
o All resident requests for maintenance must be handled within 24 hours.
• Residents may not be charged for service requests except under unusual
circumstances, such as a recurrent issue (e.g. three broken disposals within one
year), damage to carpeting or walls, or items not provided by management in the
lease (such as light bulb replacement).
o If charges apply, photos must be uploaded to the service request or to the
corresponding damage charge in the resident ledger.
• When responding to a resident request for maintenance, employees must use
good judgment and problem -solving skills. To ensure they are prepared to assist,
employees are expected to know basic community maintenance information as
follows:
■ Where water shutoff valves are located
■ Where the garbage disposal reset button is located
■ Where the electrical breakers are located and how to reset them
■ How to shut off the main water supply to an individual apartment
• The Community Manager and Maintenance Supervisor will periodically review
completed service requests to assess the performance of the maintenance staff and
address any chronic problems.
• All service requests should be responded to within 24 hours of receipt. This
includes contacting the resident to assess the situation and to schedule the work to
be completed. Most service requests should be completed the day received.
o If a service request reported in the morning is not completed by the end of the
working day, a staff member should notify the resident by phone of the repair
status.
• Employees will enter a service request into OneSite or the Mobile Facilities app
when residents request service requiring maintenance in their apartments.
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• When completing service requests, maintenance employees are expected to assess
service situations, make appropriate decisions to correct the problem, and satisfy
the resident while serving with excellence.
• Employees should understand that completing a service request is an opportunity
for us to:
o Remind residents they are entitled to excellent service.
o Demonstrate a caring attitude.
o Observe the interior condition of our apartments.
o Correct a defect before damage occurs.
• Maintenance employees must maintain a professional demeanor at all times while
on duty.
• The maintenance employee must make appropriate use of the RCM maintenance
door tag when performing a service request in an occupied apartment when the
resident is not home.
Off Hours Emergency Notification Procedures
• RCM will provide immediate attention to emergency service requests during or
after business hours.
• Employees who perform on -call responsibilities should be provided with a
current resident and emergency vendor list.
• Maintenance emergencies that RCM will address around the clock (24 hours a
day/seven days a week) include:
o Fire
o Sewage backup
o No electricity
o Water intrusion
o Door locks not secure
o Resident lockout
o Any unsecured entry
o Gas leaks
o Entry gate broken
o Clogged toilet (if only one toilet in apartment)
o No heat (if under 60 degrees)
o No air conditioning (if above 80 degrees)
o No hot water
o Refrigerator not cooling
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• Maintenance emergencies that RCM will address during daytime hours (seven
days a week) include:
o Malfunction of an essential appliance
o Kitchen sink stopped up
• The exterior HVAC unit will not be serviced or repaired during inclement
weather or after dark.
• The on -call employee must:
o Have reliable transportation, as well as current automobile insurance and a
valid driver's license (if a vehicle is used while on call).
o Be able to arrive at the community within 90 minutes of responding to a call.
o Be alert and ready for duty. No alcohol or performance -altering drugs can be
consumed while on call.
o Be in proper attire (including photo identification badge), keeping it visible at
all times when responding to a service request.
o Have access to keys. The employee must know the fire alarm and security
codes for the community.
o Have access to the maintenance shop and have required tools to complete the
service request.
o Know the location of all plumbing, electrical, and mechanical shut -offs at
each community.
o Submit any requests for changes in the on -call schedule to the Community
Manager at least 72 hours in advance of their scheduled on -call duty.
• Maintenance employees must maintain a professional demeanor at all times while
on duty. The on -call employee is expected to assess service situations, make
appropriate decisions to correct the problem, and satisfy the resident while
serving with excellence.
f. Provisions for on -site security.
General Safety and Security
• All employees must be familiar with every office and staff safety measure.
• Communities with security alarm systems will engage an approved service
provider to monitor the system.
• The Community Manager is responsible for maintaining an updated Emergency
Contact List.
• Personal items stored in the office must be appropriately secured.
• All documents containing private information must be kept secure at all times.
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Building Access
• In apartment communities with a self-locking main entry door, the Community
Manager must inform all residents of proper safety procedures.
• The main entry door must remain locked at all times to maintain safety and
privacy. A key, key fob, proximity card, or intercom must be used to gain entry
into the building.
o All exterior doors must be self -closing and self -latching to exclude
unauthorized persons. These exit doors must always be locked from the
outside but be easily opened from the inside for emergency exit.
• Some senior housing communities and apartment communities that cater to
elderly families or have an elderly admission preference use a locked door
system, but the residents cannot ring the visitors into the building. An intercom is
set up so the resident can identify the visitor. Residents must go to the entrance to
open the door.
• If a resident is too ill to come to the entrance, they can authorize the staff to open
the door for visitors. This is only done as a convenience based on specific
medical need.
o Extended or repeated requests for this service must be processed as a
reasonable accommodation request.
5. Maintenance and Repairs
a. Procedures for inventory control and servicing of equipment and appliances
Policy
• The parts inventory level is determined each year and will be adjusted according
to the community's needs as necessary.
A minimum of a 30-day inventory should be maintained if the budget allows.
Parts/Supplies Storage
1. Store all parts and supplies in easily accessible bins or on shelves.
a. Color -code all supplies and parts
2. Properly identify all bins and shelves with the contents' description, part
number, and minimum quantity desired.
Inventory
1. Inventory and order the current parts and supplies stock based upon
community budget spread.
2. Once the supply order is received, confirm receipt of all items and add them
to the shop inventory in corresponding location.
b. Plans for conducting periodic unit inspections (i.e. for housekeeping or Decent, Safe
and Sanitary Inspections) and maintenance of units for move out and re -rental
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Move -Out and Re -Rental Policy
• RCM will provide residents with a quality, rent -ready apartment at move -in, with
all make-ready specifications completed.
• Make-ready completions should be as follows:
o Fifty percent of all vacant apartments should be made ready to show, if
applicable.
o When available, at least one apartment in every floor plan should be ready to
show.
• When a resident moves out, the Community Manager or Maintenance Supervisor
should walk the apartment to determine damages and carpet/tile replacement
needs.
• After an apartment has been vacated, it should be made ready within five
business days or less.
• The Community Manager or Maintenance Supervisor should schedule the make-
ready to begin no more than two days after the move -out.
• All locks must be changed upon a resident's move -out.
Procedure
Plan and Complete the Make -Ready Process
1. Plan and complete the make-ready process for the vacant apartment.
a. Schedule for the maintenance team to have up to five working days
for completion.
• This may vary depending various factors (e.g. existing workload,
vendor scheduling, availability of parts or materials, or whether
renovations are needed).
b. Whenever possible, schedule maintenance employees, rather than
vendors, to perform the work. This optimizes the work quality.
C. Follow the OneSite make-ready service request guidelines or use
the Mobile Facilities app.
d. Use a vacancy lock for the vacant apartment.
• Remove any additional locks added at the former resident's
request.
2. Complete the make-ready tasks.
3. The Maintenance Supervisor "walks" (inspects) the apartment.
• If the make-ready process has been satisfactorily completed,
designate the apartment as "ready" in OneSite or the Mobile
Facilities app.
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Documentation and Reports
4. Maintain the Make -Ready Status Report or use a make-ready board; enter
reconditioning notes in OneSite or the Mobile Facilities app as needed.
5. Document the ready date in OneSite.
6. Weekly:
a. Update OneSite, ensuring the dates that vacant apartments will be
ready are identified.
b. Evaluate the Weekly Activity Report to ensure market -ready status
was achieved within five days of vacancy.
C. Procedures for routine and cycle maintenance and repair program, with special
attention to preventative maintenance, and interior and exterior decorating schedules.
Preventative Maintenance
RCM will establish the preventive maintenance schedule for the community.
Each month:
o The Community Manager or Maintenance Supervisor will schedule a
recurring monthly inspection of the community in OneSite.
■ Monthly inspections will be performed by the Maintenance Supervisor or
designee.
o The Community Manager will schedule semiannual apartment inspections in
OneSite when appropriate.
■ Affordable apartment inspections will be conducted in conjunction with
the annual recertification while market -rate apartment inspections will be
completed during renewal.
• The Maintenance Supervisor or designee will coordinate the service staff to
ensure that all work is completed.
• The Community Manager will send out a Notice of Intent to Enter to residents at
least 48 hours (or as otherwise require by state law) prior to the scheduled
inspection or maintenance date.
• The Regional Facilities Manager will visit each community once per year to
perform an inspection.
Procedure
Semiannual Inspections — Apartments
1. Inspect every apartment in the community according to the semiannual
inspection schedule.
2. Prior to the inspection, send an inspection notice to the residents via email or
a notice delivered to the apartment door.
3. During the unit inspection, the maintenance employee must:
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a. Test the smoke and/or CO2 detectors in each apartment.
• Any detectors found to be malfunctioning should be replaced or
repaired as needed.
b. Test all medical pull cords or call systems (where applicable).
C. Inspect all appliances, windows, doors, fixtures, and other items
listed on the inspection checklist.
4. Record the inspection in the Mobile Facilities app.
a. If the app is not available, use the RCM Monthly Physical
Inspection Form.
5. Leave an RCM maintenance door tag to advise the resident that someone has
been in the apartment.
Monthly Maintenance Supervisor Inspections — Community
6. Inspect the following areas, as applicable:
a.
Pool areas
b.
Fitness equipment
C.
Elevators
d.
Fire systems
e.
Building systems
f.
Exterior lighting
g.
Golf carts
h.
Stairs and stairwells
i.
Gutters
j.
Foundation cracks/problems
k.
Roofs
1.
Storm drains
7. Ensure personal protective equipment supplies are sufficiently stocked.
8. Record the inspection in the Mobile Facilities app.
a. If the app is not available, use the RCM Monthly Physical
Inspection Form.
9. Take photos and initiate a service request for any issues identified.
10. The completed checklist will be available for review in OneSite.
Annual Inspections
1. The Regional Facilities Manager will inspect the following:
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a. All items covered in the monthly Maintenance Supervisor
inspections
b. A predetermined number of occupied apartments
C. All vacant apartments
2. The inspection will be recorded using Mobile Facilities app and service
requests will be generated as needed.
3. The completed checklist and any photos taken will be available for review in
OneSite.
Interior and Exterior Decorating
• RCM prohibits unlawful discrimination based upon religion, creed, or sectional
origin, because they are federal, state, and/or local protected classes and because
we welcome all people to our housing. Applicants or residents may make
religion -related requests as to their homes or common/public areas. This policy is
intended to give you guidance. Contact the 504 Coordinator with any question as
to how to properly respond to a request that involves religion.
• Federal, state, and local Fair Housing laws all prohibit discrimination on the basis
of religion. While refusing to rent to someone because they follow a certain
religion is an obvious form of discrimination, Fair Housing laws also forbid
multifamily housing providers from making any notice, statement, or
advertisement that indicates a preference, limitation, or discrimination based on
religion. Placing or even allowing residents to put up their own religious
decorations in the common areas is one way in which housing providers may
violate these laws if the religious items or decorations suggest to a prospect that
the apartment community favors applicants who belong to one religion group
over another or even that it prefers residents who are religious over those who are
not. This is important to know, because atheists and agnostics are entitled to the
same Fair Housing rights as any other group.
• In the past, some residents have demanded their right to "religious expression"
under the U.S. Constitution. This concept is not appropriately applied to our
housing. Unlike public housing communities, which are government entities, our
privately owned housing communities do not engage in what is called "state
action." Government housing providers engage in "state actions" and therefore
have duties that private landlords do not have. The receipt of federal financial
assistance from HUD or any other government entities does not convert a
privately owned housing community into public housing or a government entity.
o The First Amendment requirement that the government be neutral with
respect to religion does not apply to impose similar neutrality requirements on
RCM. Consequently, housing communities have no legal duty to display
multiple and/or diverse religious symbols, such as nativity scenes or
menorahs, in community room areas, any other common areas, or on the
grounds, such as the front lawn. Except for Resident Association postings,
items to be posted in common and public areas must be reviewed and
approved by the Community Manager.
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Religion may also be combined with national origin or ethnicity (also protected
classes) when residents or applicants perceive different treatment. Residents may
perceive that their religion is tied to their country of birth or ethnicity (e.g.
Chaldeans from Iraq).
Residents may have questions regarding "religious expression," holiday
decorations, or other decorations for their homes, including front yards, hallways,
and other common/public areas. HUD issued guidance in 1995 stating that
housing communities could use as decorations secular symbols, such as Santa
Claus and the Easter Bunny. HUD subsequently urged communities to celebrate
their religious traditions in later public statements. Our communities are
multicultural and contain multiple religious denominations and traditions. As
such, to comply with Fair Housing laws, secular holiday observations and
decorations will not violate Fair Housing laws (secular means nonreligious and
nondenominational). Unless all households request that all their religious
traditions be represented as further discussed below in paragraph 10, housing
communities must observe holidays with secular decorations and secular
expressions such as "happy holidays."
Display of Religious Decorations
• Households in single-family homes only may display religious decorations in
their front yards. The restriction is that no decoration is allowed to contain
hateful, racist, sexist, profane, vulgar, or any other content that is hostile or
offensive. Also, seasonal, holiday, and/or any other decorations cannot present
safety hazards. Households are not allowed to post items with any libelous,
slanderous, or defamatory content in public or common areas.
Apartment community households and households living in duplexes and
"quadplexes" are not allowed to place religious symbols or religious decorations
in common or public areas, with the exception of on their apartment doors.
Residents may display religious items on their front doors such as a religious icon
with the restriction that no decoration is allowed to contain hateful, racist, sexist,
profane, vulgar, or any other content that is hostile or offensive. Also, seasonal,
holiday, and/or any other decorations cannot present safety hazards (such as
electrical cords as trip hazards). Households are not allowed to post items with
any libelous, slanderous, or defamatory content in public or common areas.
Housing communities are not permitted to display any one religion's or
denomination's holiday decorations to the exclusion of other religions' or other
denominations' holiday decorations in common and public areas. There are two
options: (1) secular holiday decorations (such as Santa Claus and the Easter
bunny) may be displayed in common or public areas or (2) holiday decorations
representing all religions of the residents may be displayed in common or public
areas provided that the residents themselves let you know their religions and
make requests on their own (e.g. a Christian display a Hanukkah wall or menorah
display, and a Kwanzaa display in the common and public areas). If your
community has a Resident Association and it wishes to display its own
decorations with religious content, the Resident Association may do so with
RCM employees displaying signs prominently stating the following:
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o "The Resident Association's display belongs to the Resident
Association and is not sponsored or endorsed by RCM and (your
community's name). RCM does not endorse or prefer one religion over
any other in its housing."
• If your community has a significant number of residents who do not celebrate
Christmas but observe other holidays during the Christmas season, also decorate
with menorahs or Hanukkah decorations or other Jewish holiday decorations or
for any other religions that do not celebrate Christmas. A Kwanzaa display is a
nonreligious and cultural display for the later part of December and early January
of each year.
• It is recommended that during the holidays, your community displays signage
stating, "We welcome people of all beliefs and Happy Holidays and Happy New
Year!"
Religious Services
• Members of churches or religious organizations are not permitted to solicit
residents by going door-to-door or otherwise. Residents may be offended or treat
the solicitation as unwelcome or unwanted.
• Housing communities may permit church or other religious services in
community rooms provided (1) all residents are allowed to attend by the church
or other sponsoring organization and (2) all churches or other religious
organizations are permitted to offer services inside your housing community.
6. Financial and Accounting Procedures and Reporting System:
a. Accounting System for maintaining adequate records and handling necessary forms,
vouchers and reports (general ledger system, comprehensive and current written
fiscal policies and procedures established) and records management and retention;
The accounting system utilized by RCM for general ledger purposes is Yardi
Voyager, while the Operating System for the community site is RealPage. Within
RealPage the following modules are utilized: OneSite Leasing and Rents (resident
and subsidy billings and collections; standard lease generation and maintenance
requests), OpsTechnology (vendor credentialing, procurement, and approval), and
Velocity (utility management and payment). All RealPage modules interface with the
Yardi general ledger.
b. Internal controls (i.e. dual control for bank deposits and cash receipts, disbursements,
handling petty cash, etc.)
To insure the safeguarding of the liquid assets, a description of procedures for
internal control is as follows:
Receipts
a. No cash is accepted at the site as payment for rent.
b. When checks are received, they are immediately stamped with "Deposit
Only" by the Community Manager. The property is supplied with a bank
scanner, verification of deposits will be produced by the scanner.
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C. If a bank validated deposit slip is necessary, it will be delivered to the
local Bank. The property is supplied with a bank scanner; verification of
deposits will be produced by the scanner.
d. Tenant receivables are reviewed by the Community Manager, Regional
Manager and Rose Community Management staff, Agent for Owner.
e. Posting to the tenant's accounts is interfaced with check scanner.
Disbursements
a. The Community Manager is responsible to review, approve or confirm
approval of all orders (onetime and recurring) daily. All orders must be
entered in the property management OpsTechnology system and approved
before the order is placed with the supplier.
b. All purchases with Online and Offline suppliers must be supported by an
approved purchase order to authorize and effectively control spending.
Any purchase that exceeds a user's authorized spend limit or a percentage
above budget limit, defined by the user role, routes in workflow approval.
C. Each line item of the OpsTechnology order must be coded to the correct
general ledger account.
d. The description will appear in the general ledger when the invoice is
merged into the RealPage software system.
e. Online orders are electronically sent to the supplier after the order is
approved in the property management system.
f. The Approvals section on the Dashboard are reviewed daily in the
RealPage software system for Orders requiring approval and
edit/approve/reject as appropriate.
g. The Community Manager is responsible for timely and accurate
processing and approval of supplier invoices and credit memos.
In most cases, the Community Manager is the final approver of an invoice or credit
memo before payment, so it is critical that the invoice is carefully reviewed for
accuracy as well as correct General Ledger unit coding.
All supplier invoices are received electronically in the OpsTechnology property
management system after an order has been fulfilled, with the status of Pending
Receipt of Goods (ROG). Once an invoice has final approval and appears with a
status of Approved, the invoice information in OpsTechnology will be interfaced into
the RealPage system at the end of the day for payment.
The Central Accounts Payable Department processes payments once a week for each
apartment community according to the published calendar.
Checks, ach, e-payables, etc. are paid directly to the supplier unless prior
arrangements are made.
C. Accounts payable and receivable procedures, including division of duties and
responsibilities between on -site and corporate personnel;
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Accounts receivable and accounts payable functions are performed by separate
individuals and responsibilities are segregated based on function.
Accounts Receivable
• Monthly resident billings are initiated by on -site employees.
• All cash collections are deposited and applied on a daily basis.
• Resident payments are applied to resident accounts in RealPage by on -site
employees
• Resident payments are deposited via remote check -scanner or deposited at a local
bank branch by on -site employees
• HAP payments are received via direct deposit and posted by Revenue &
Collection employees in the corporate office
• Neither on -site or Revenue & Collections employees in the corporate office have
check -signing authority or authority to initiate banking transactions.
• Monthly accounts receivable aging reports are reviewed by on -site employees,
corporate employees, and owners.
Accounts Pam
• Purchases are initiated and approved using a purchase order system via
OpsTechnology by on -site employees
• Approval limits are required, based on function (on -site, corporate employees and
owners)
• Invoices for approved purchases are reviewed, matched with approved purchase
orders, and approved by on -site employees, as well as corporate employees and
ultimately owners, depending on approval limits.
• Invoices approved in OpsTechnology are posted electronically to Yardi as
expenses and accounts payable.
• All invoices posted in Yardi as an account payable has been approved for
payment.
• One a weekly basis, outstanding accounts payable is reviewed and specific
invoices are selected for payment by a corporate accounts payable analyst, based
on due date and available cash balance.
• Vendor payments are batched and remitted either via check or EFT by the
accounts payable analyst.
o Vendor payment preferences (check vs EFT) are added by members of
the corporate procurement team, not accounts payable.
• Checks of $50,000 and greater require dual signature by authorized signers. The
CFO and Controller are authorized signers.
d. Familiarity with weekly, monthly, quarterly and annual report requirements;
Attachment No. 13
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Policy
• The Community Manager is responsible for completing the accounting month -
end close and the supporting reports by the prescribed due dates.
• The Month -End Accruals & Reclasses (MEAR) will ensure that income and
expenses are posted to the correct accounting period and code on the general
ledger.
• The Master Property Operating Report (MPOR) compares the budgeted income
and expense to the actual income or expense incurred. Variance explanations aid
in the preparation of projections and other financial analysis. All variances of 5%
or greater than $5,000 require an explanation unless otherwise directed by the
Regional Manager.
Procedure
1. The Community Manager will complete an accounting pre -close weekly per
the instructions on the RCM Affordable Pre -Close and AME Procedures.
2. The Community Manager will close the accounting month and complete the
required reporting according to the calendar set by RCM Accounting.
a. The Regional Manager will communicate specific timing and
expectations to the Community Manager.
3. The Community Manager will complete the AME close per the instructions
on the RCM Affordable Pre -Close and AME Procedures.
4. The Community Manager will complete the Month -End Accruals &
Reclasses (MEAR).
a. Open the RCM - Month -End Accounting Report
b. Save completed MEAR forms as follows: "Property Name —
Month Year MEAR" (i.e. JPT — February 2022 MEAR)
C. Select the community name from the drop -down.
d. General ledger accounts are selected by clicking on the dropdown
bar in the designated cells under the "General Ledger #" heading.
The account descriptions will automatically populate.
• "Property Name", "General Ledger #", "General Ledger
Description" cells are protected fields. Utilize the dropdown
feature. Data can be keyed into other fields on the form.
e. Two reference guides to the Chart of Accounts are included:
• Chart of Acct Ref — This tab provides a comprehensive list of all
general ledger accounts and explanations in numeric order.
• MPOR Account Descriptions — This tab provides the same
general ledger account information described above, but in the
MPOR report format.
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o The accounts in this tab are color -coded to indicate who
is responsible for providing month- end accruals &
reclass entries (i.e. Property vs Accounting).
o This tab should also be used as a guide to determine
who's responsible for providing MPOR explanations
(i.e. Property vs Accounting).
f. "JE Upload" — For Accounting use only. Do not edit or use this
tab.
5. The Community Manager will email the completed MEAR to the Regional
Manager.
6. The Regional Manager will review and email the approved MEAR to the
community's Accounting Analyst by the prescribed deadline.
7. The Community Manager will complete the Master Property Operating
Report (MPOR).
a. Follow the instructions for running this report on the Monthly
Financial Review of the MPOR Report.
b. Enter an explanation of all variances of 5% and/or greater than
$5,000.
8. The Community Manager will email the completed MPOR to the Regional
Manager.
9. The Regional Manager will review and email the approved MPOR to the
community's Accounting Analyst by the prescribed deadline.
10. The Accounting Analyst will complete the Replacement Reserve report.
Attachment No. 13
Property Management Plan
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ATTACHMENT NO. 14
INCOME VERIFICATION
Part I — General Information
1. Project Location:
2. Landlord's Name:
Part II — Unit Information
Unit 4. Number of 5. Monthly 6. Number of
Number Bedrooms Rent Occupants
Part III — Affidavit of Tenant
I, , and I, , as applicants for rental of an Apartment Unit at
the above -described location, do hereby represent and warrant as follows:
A. (My/Our) annual gross income (anticipated total annual income) does not exceed
[fifty percent (50%] of the Area Median Income defined by HUD which includes and
consists primarily of Orange County as such income levels are established and amended from
time to time pursuant to Section 8 of the United States Housing Act of 1937 and published by
the State Department of Housing and Community Development in the California Code of
Regulations. (I/We) understand that the applicable Area Median Income is $ . The
following computation includes all income (I/we) anticipate receiving for the 12-month
period beginning on the date (I/we) execute a rental agreement for an Housing Unit or the
date on which (I/we) will initially occupy such unit, whichever is earlier.
Tenant(s)' Initials
Onsite Manger's Initials
B. (My/Our) annual gross income (anticipated total annual income) does not exceed
[sixty percent (60%)] of the Area Median Income defined by HUD which includes and
consists primarily of Orange County as such income levels are established and amended from
time to time pursuant to Section 8 of the United States Housing Act of 1937 and published by
the State Department of Housing and Community Development in the California Code of
Regulations. (I/We) understand that the applicable Area Median Income is $ . The
following computation includes all income (I/we) anticipate receiving for the 12-month
period beginning on the date (I/we) execute a rental agreement for an Housing Unit or the
date on which (I/we) will initially occupy such unit, whichever is earlier.
Attachment No. 14
Income Verification
Page 1 of 5
Tenant(s)' Initials
Onsite Manger's Initials
4893-1713-7678v9/022620-0095
4. Tenants qualifying as A or B above must complete the following:
Monthly Gross Income
(All Sources of Income of All Adult Household Members Must be Listed)
Source
Head of
Co -Tenants
Total
Household
Gross amount, before payroll
deductions of wages, salaries, overtime
pay, commissions, fees, tips and
bonuses
Interest and/or dividends
Net income from business or from
rental property
Social security, annuities, insurance
policies, pension/retirement funds,
disability or death benefits received
periodically
Payment in lieu of earnings, such as
unemployment and disability
compensation, worker's compensation
and severance pay
Alimony, child support, other periodic
allowances
Public assistance, welfare payments
Regular pay, special pay and
allowances of members of Armed
Forces
Other
Attachment No. 14
Income Verification
Page 2 of 5
Total:
4893-1713-7678v9/022620-0095
Total x 12 = Gross Annual Household Income
Note: The following items are not considered income: casual or sporadic gifts; amounts specifically
for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance
payments (including payments under health and accident insurance and worker's compensation),
capital gains and settlement for personal or property losses; educational scholarships paid directly to
the student or educational institution; government benefits to a veteran for education; special pay to a
serviceman head of family away from home and under hostile fire; foster child care payments; value
of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of
amount actually charged the eligible household; relocation payments under Title II of Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970; payments received
pursuant to participation in the following programs: VISTA, Service Learning Programs, and
Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent
Program, Older American Community Services Program, and National Volunteer Program to Assist
Small Business Experience.
5. This affidavit is made with the knowledge that it will be relied upon by the Landlord to
determine maximum income for eligibility and (I/we) warrant that all information set forth in
this document is true, correct and complete and based upon information (I/we) deem reliable
and that the estimate contained in paragraph 1 of this Part III is reasonable and based upon
such investigation as the undersigned deemed necessary.
6. (I/We) will assist the Landlord in obtaining any information or documents required to verify
the statements made in this Part III and have attached hereto copies of federal income tax
return for most recent tax year in which a return was filed (past two years federal income tax
returns for self-employed persons).
7. (I/We) acknowledge that (I/we) have been advised that the making of any misrepresentation
or misstatement in this affidavit will constitute a material breach of (my/our) agreement with
the Landlord to rent a Housing Unit and will additionally enable the Landlord and/or the
Anaheim Housing Authority to initiate and pursue all applicable legal and equitable remedies
with respect to a Housing Unit and to me/us.
(I/We) do hereby swear under penalty of perjury that the foregoing statements are true and
correct.
Date Tenant
Date Tenant
Attachment No. 14
Income Verification
Page 3 of 5
4893-1713-7678v9/022620-0095
INCOME VERIFICATION
(for employed persons)
The undersigned employee has applied for a rental unit located in a project for occupancy by
qualified Senior Citizen tenants of very low or low income. Every income statement of a prospective
tenant must be stringently verified. Please indicate below the employee's current annual income
from wages, overtime, bonuses, commissions or any other form of compensation received on a
regular basis.
Annual wages
Overtime
Bonuses
Commissions
Total current income
I hereby certify that the statements above are true and complete to the best of my knowledge.
Signature Date Title
I hereby grant you permission to disclose my income to in order that they may
determine my income eligibility for rental of a senior apartment located in a project covenanted as
senior affordable housing by the Anaheim Housing Authority.
Signature
Please send to:
Attachment No. 14
Income Verification
Page 4 of 5
Date
4893-1713-7678v9/022620-0095
INCOME VERIFICATION
(for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such income tax
returns is true and complete to the best of my knowledge.
Signature
Attachment No. 14
Income Verification
Page 5 of 5
Date
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 15
MEMORANDUM OF AGREEMENT
Recording Requested By and
When Recorded Mail To:
Anaheim Housing Authority
201 South Anaheim Boulevard
Anaheim, California 92805
Attention: Authority Secretary
SPACE ABOVE THIS LINE FOR RECORDER'S USE
(This document is exempt from the payment of a recording fee
under Government Code §§Sections 27383 and 6103.)
MEMORANDUM OF AGREEMENT
This MEMORANDUM OF AGREEMENT ("Memorandum"), dated as of May 31, 2022,
is entered into by and between the ANAHEIM HOUSING AUTHORITY, a public body corporate
and politic ("Authority"), and BELAGE PRESERVATION LIMITED PARTNERSHIP, a
California limited partnership ("Developer").
1. Amended and Restated Affordable Housing Agreement. Authority, City and
Developer have executed an unrecorded Amended and Restated Affordable Housing Agreement
(Bel'Age Senior Apartments) ("Agreement") dated as of May 24, 2022, covering that certain real
property located in the City of Anaheim, County of Orange, State of California, more fully described
in Exhibit "A" attached hereto and incorporated herein by this reference. The Agreement is on rile as
a public record with the Authority at its offices at 201 South Anaheim Boulevard, Anaheim,
California 92805. All of the terms, conditions, provisions and covenants of the Agreement are
incorporated in this Memorandum by reference as though written out at length herein, and the
Agreement and this Memorandum shall be deemed to constitute a single instrument or document.
2. Purpose of Memorandum. This Memorandum is prepared for recordation purposes
only, and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In
the event of any inconsistency between the terms, conditions, provisions and covenants of this
Memorandum and the Agreement, the terms, conditions, provisions and covenants of the Agreement
shall prevail.
[Signatures begin on next page]
Attachment No. 15
Memorandum of Agreement
Page 1 of 3
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IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of
the date first set forth above.
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
Name:
Title:
Authorized Signatory
[Signatures continue on next page]
Attachment No. 15
Memorandum of Agreement
Page 2 of 3
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[Signatures for Memorandum of Agreement continued from previous page]
AUTHORITY:
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
Grace Ruiz-Stepter, Acting Director of
Community and Economic Development
Department or Authorized Designee
ATTEST:
THERESA BASS
AUTHORITY SECRETARY
Authority Secretary
or Authorized Designee
Attachment No. 15
Memorandum of Agreement
Page 3 of 3
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN
THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WEST 80.00 FEET OF THE NORTH 250.00 FEET OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10
WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP
RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 442, PAGE 158 OF
DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA.
PARCEL 2:
THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN
THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A MAP RECORDED IN
BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS , RECORDS OF ORANGE COUNTY,
CALIFORNIA , BEING THE WEST HALF OF LOT 11 OF HELEN AND LYNCH'S
SUBDIVISION OF THE SOUTH HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF THE ABOVE DESCRIBED LAND BEING THE SAME AS
THE WEST LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO
NETTIE EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF
DEEDS.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LAND; THENCE WEST 170.00 FEET
ALONG THE NORTH LINE OF SAID LAND; THENCE SOUTH 350.00 FEET; THENCE EAST
170.00 FEET TO THE EAST LINE OF SAID LAND; THENCE NORTH 350.00 FEET TO THE
POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THE REMAINDER OF SAID LAND THE MOST
NORTHERLY 250.00 FEET THEREOF.
PARCEL 3:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 10.00 FEET OF THE NORTH 350
FEET OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 4 SOUTH,
RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, AS SHOWN ON A
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF
Attachment No. 15
Legal Description
Page 1 of 2
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ORANGE COUNTY, CALIFORNIA, BEING THE WEST HALF OF HELEN AND LYNCH'S
SUBDIVISION OF THE WEST HALF OF SAID SECTION 16, AS SHOWN ON A MAP
RECORDED IN BOOK 442, PAGE 158 OF DEEDS, RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA, THE EAST LINE OF SAID EASEMENT BEING THE SAME AS THE WEST
LINE OF THE LAND CONVEYED BY CHARLES SCHINDLER AND WIFE, TO NETTIE
EYGABROAD, BY DEED RECORDED MARCH 15, 1909 IN BOOK 163, PAGE 387 OF DEEDS.
EXCEPT THAT PORTION OCCUPIED BY BROADWAY ON THE NORTH.
APN: 250-051-15
Attachment No. 15
Legal Description
Page 2 of 2
4893-1713-7678v9/022620-0095
ATTACHMENT NO. 16
DEVELOPER CERTIFICATE
OF CONTINUING PROGRAM COMPLIANCE
TO: Anaheim Housing Authority
201 South Anaheim Boulevard, Suite 1003
Anaheim, California 92805
Attention: Grace Ruiz-Stepter, Executive Director
The undersigned, , being duly authorized to execute this
Certificate of Continuing Program Compliance (this "Certificate") on behalf of
BELAGE PRESERVATION LIMITED PARTNERSHIP, a California limited partnership
("Developer"), hereby represents and warrants that:
1. She/He has read and is thoroughly familiar with the provisions of the Amended and
Restated Affordable Housing Agreement (Bel'Age Senior Apartments) ("AHA") by and among
Authority and Developer dated as of May 24, 2022, including without limitation the Authority
Regulatory Agreement, and other attachments thereto. Capitalized terms used herein shall have the
same meaning as that set forth in the AHA.
2. As of the date of this Certificate, the following number of senior residential units at
the Site: (i) Housing Unit are currently occupied by Senior Citizen Very Low Income
Households at Affordable Rent; (ii) Housing Units are currently occupied by Senior
Citizen Low Income Households at Affordable Rent and (ii) the two Manager Units are currently
occupied by onsite managers, which units are unrestricted as to income; and/or (iii) are
currently vacant and being held available for occupancy by an Very Low Income Household, and
have been so held continuously since the date an Extremely Low Income Household vacated such
unit and/or (iv) are currently vacant and being held available for occupancy by a
Low Income Household, and have been so held continuously since the date a Low Income
Household vacated such unit:
Occupied at an Affordable Rent by:
Very Low Income Household # of Units, Nos.:
Occupied at an Affordable Rent by:
ii. Low Income Household # of Units, Nos.:
Vacant:
a. Held for occupancy by:
Very Low Income Household # of Units, Nos.:
ii. Low Income Household # of Units, Nos.:
b. Last occupied by:
Attachment No. 16
Developer Certificate
Page 1 of 2
4893-1713-7678v9/022620-0095
Very Low Income Household # of Units, Nos.:
Low Income Household
# of Units, Nos.:
3. At no time since the date of filing of the last Certification of Continuing Program
Compliance have less than one hundred percent (100%) of the Housing Units in the Project been
occupied by, or been last occupied, or have been available for occupancy by Very Low and Low
Income Households at an Affordable Rent and the two Manager Units.
4. Developer is not in default under the terms of the Agreement, including without
limitation the attachments thereto, the Authority Regulatory Agreement, 2008 Tax Credit Regulatory
Agreement, and 2008 Bond Regulatory Agreement).
DEVELOPER:
BELAGE PRESERVATION LIMITED PARTNERSHIP,
a California limited partnership
By: RAHF V Belage, LLC,
a Delaware limited liability company,
its Administrative General Partner
Name:
Title:
Authorized Signatory
[or signature block for successor, then current owner/Developer]
Attachment No. 16
Developer Certificate
Page 2 of 2
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