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HomeMy WebLinkAboutRES HA-113RESOLUTION NO. HA-113 A RESOLUTION OF THE PALM DESERT HOUSING AUTHORITY APPROVING A LOAN AGREEMENT REGARDING VITALIA BETWEEN THE PALM DESERT HOUSING AUTHORITY AND PALM DESERT PACIFIC ASSOCIATES, L.P., AND TAKING RELATED ACTIONS RECITALS: A. Pursuant to AB X1 26 (enacted in June 2011) and the California Supreme Court’s decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., 53 Cal. 4th 231 (2011), the former Palm Desert Redevelopment Agency (the “Former Agency”) was dissolved as of February 1, 2012, the Successor Agency to the Palm Desert Redevelopment Agency (the “Successor Agency”), as the successor entity to the Former Agency, was constituted, and a board of the Successor Agency (the “Board”) was established. B. AB X1 26 added Part 1.8 (commencing with Section 34161) and Part 1.85 (commencing with Section 34170) to Division 24 of the California Health and Safety Code (“HSC”) (such Parts 1.8 and 1.85, including amendments and supplements enacted after AB X1 26, being referred to herein as the “Dissolution Act”). C. Pursuant to HSC Section 34176(b), the City Council of the City of Palm Desert (the “City”) adopted Resolution No. 2012-07, electing for the City to not retain the responsibility for performing housing functions previously performed by the Former Agency, and determining that all of the assets, as allowed by law, and all rights, powers, liabilities, duties, and obligations associated with the housing activities of the Former Agency be transferred to the Palm Desert Housing Authority (the “Authority”). D. The Successor Agency and Pacific West Communities, Inc. (”Pacific West”) entered into an Exclusive Negotiation Agreement, dated as of October 21, 2020 , for the purpose of negotiating the terms and conditions upon which the Successor Agency would sell to the Pacific West the approximately +/- 11.94-acre portion of real property owned by the Successor Agency located in the City along Gerald Ford Drive and identified as APN 694-310-006 (the “Property”) for the purpose of constructing thereon a 269 -unit multi-family residential apartment community for households with incomes between 30% and 80% of the area median income (the “Project”). The Property is described in Exhibit “A”, attached hereto and incorporated herein. E. Pacific West created Palm Desert Pacific Associates, a California limited partnership (“Developer”) to be the tax credit limited partnership that will be the borrower and the developer for the Project; Pacific West is its Administrative General Partner. F. An appraisal of the Property was ordered from Novogradac Consulting, LLP, received and dated March 25, 2021. The report places the current appraised value of the Property at $4,500,000. Resolution No. HA-113 Page 2 G. The Pacific West has submitted a funding request to the Authority to make a loan to the Pacific West in the amount of $6,030,000 (the “Loan”) to assist the Pacific West in the purchase of the Property from the Successor Agency and the development of the Project. The Project is intended to be funded by leveraging multiple funding sources including four percent tax exempt bonds, federal tax credits, state tax credits, and the Loan. H. At its meeting on August 26, 2021, the Board of the Successor Agency approved a purchase and sale agreement (the “PSA”) for the sale of the Property to the Pacific West for a purchase price equal to its appraised value, subsequently was approved on January 20, 2022, by the Countywide Oversight Board of the County of Riverside and, was deemed approved by the State Department of Finance. I. The Authority, as the housing successor to the Former Agency, on August 26, 2021, approved a Conditional Agreement Regarding Vitalia Apartments between the Authority and the Pacific West and incorporated herein by reference (the “Conditional Loan Agreement”) which provides for the Authority to make the Loan to the Pacific West subject to the terms and conditions therein. J. The Pacific West has submitted, an application, including the Conditional Loan Agreement, to the California Tax Credit Allocation Commi ttee (“TCAC”) for an allocation of tax-exempt bonds, federal tax credits and state tax credits as described in the Conditional Loan Agreement. K. The Pacific West has successfully received a Tax Allocation for the Project and has provided proof of financing commitments from all sources to fund the entire Project and the Project is in the process of obtaining a conditional Grading and Building and Safety permit ready approval. NOW, THEREFORE, THE PALM DESERT HOUSING AUTHORITY DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The above recitals, and each of them, are true and correct and are a substantive part of this Resolution. Section 2. The Agreement, in the form attached hereto as Exhibit “B”, is hereby approved. The Executive Director of the Authority is hereby authorized to execute and deliver, for and in the name of the Authority, the Agreement in substantially such form, with such changes thereto as the Executive Director, in consultation with the Authority legal counsel, may deem appropriate or necessary and consistent with the purposes of this Resolution (such approval to be conclusively evidenced by the execution and delivery thereof). Resolution No. HA-113 Page 3 Section 3. The members of this Board and the staff of the Authority are hereby authorized, jointly and severally, to do all things which they may deem necessary or proper to effectuate the purposes of this Resolution, including negotiating and preparing agreements and documents, and any such actions previously taken are hereby ratified and confirmed. ADOPTED ON NOVEMBER 17, 2022. JAN C. HARNIK CHAIR ATTEST: ANTHONY J. MEJIA SECRETARY PALM DESERT HOUSING AUTHORITY I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. HA-113 is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on November 17, 2022, by the following vote: AYES: JONATHAN, KELLY, NESTANDE, QUINTANILLA, AND HARNIK NOES: NONE ABSENT: NONE ABSTAIN: NONE RECUSED: NONE IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ____________________. ANTHONY J. MEJIA CITY CLERK Anthony Mejia (Nov 28, 2022 09:28 PST) Anthony Mejia (Nov 28, 2022 09:28 PST) Nov 28, 2022 [This page has intentionally been left blank.] Resolution No. HA-113 Page 5 EXHIBIT “A” The Land referred to herein below is situated in the City of Palm Desert, County of Riverside, State of California, and is described as follows: 1 of 2 Resolution No. HA-113 Page 6 2 of 2 Resolution No. HA-113 Page 7 EXHIBIT “B” LOAN AGREEMENT THIS LOAN AGREEMENT “Loan Agreement”) is dated as of ______________, 2022 and is entered into by and between the PALM DESERT HOUSING AUTHORITY (“Lender”), and PALM DESERT PACIFIC ASSOCIATES, a California limited partnership (“Borrower”). R E C I T A L S: A. Borrower has acquired or will acquire the land located in the City of Palm Desert, County of Riverside, State of California, more particularly described on Exhibit “A” attached hereto (together with any improvements thereon, the “Property”) from the Successor Agency to the Palm Desert Redevelopment Agency. (The sale of the Property was approved by the Countywide Oversight Board for the County of Riverside by its Resolution No. 2022-30, and the Property is exempt from the surplus land statutes under California Government Code 54234(b)(1)(A) because an Exclusive Negotiation Agreement for the Property was entered into prior to December 31, 2020, and the disposition of the Property is to occur prior to December 31, 2022.) B. Borrower intends to construct the improvements on the land that are described on Exhibit “B” (the “Improvements” or “Development”). C. Borrower has requested that Lender make a loan to Borrower from low income housing set aside funds in the principal amount of $6,030,000.00, consisting of a purchase money loan in the amount of $4,500,000.00 to be disbursed to the seller of the Property (which is the Successor Agency to the Palm Desert Redevelopment Agency) and a construction loan of $1,530,000.00 (collectively, the “Loan”), with the construction loan portion to be used after all available tax credit equity to pay for a portion of the costs of the Improvements, on the terms and conditions hereinafter set forth. NOW, THEREFORE, the Parties agree as follows: A G R E E M E N T: DEFINITIONS AND EXHIBITS. Definitions. The following initially capitalized words and terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided to the contrary: “Closing” shall mean the date on which the Deed of Trust is recorded in the Official Records of Riverside County, California. “Completion of Construction” shall mean the date that Borrower obtains a certificate of occupancy for the Improvements. “Construction Plans” means the construction plans, specifications and related documents consistent with the Scope of Development attached hereto as Exhibit “B” for the design and construction of the Improvements. “Deed of Trust” shall mean a Deed of Trust and Assignment of Rents in the form attached hereto as Exhibit “C”, executed by Borrower for the benefit of Lender and, Resolution No. HA-113 Page 8 acknowledged (which is to be recorded against the Property in the Official Records of Riverside County, California at the Closing). “Entitlements” shall mean all authorizations, approvals, rights, maps, licenses, permits, franchises, certificates, instruments, documents, agreements, variances and other land use approvals required for the Development. “Governmental Authority” shall mean any federal, state or local governments, and all subdivision thereof, including any City, authority, board, bureau, commission, department or other public body, including any court, administrative tribunal or public utility. “Improvements”, “Development” or “Project” shall mean the project/work described in the Scope of Development attached hereto as Exhibit “B”. “Loan” shall mean the loan contemplated by this Agreement as defined in the Recitals. “Loan Documents” shall mean this Agreement, the Note, the Deed of Trust, the Regulatory Agreements, the Notice and all other documents and instruments executed and delivered, or to be executed and delivered, in connection with the Loan (including the Acknowledgment referred to in Section 3.6.1 below). “Note” shall mean a Secured Promissory Note, in the form attached hereto as Exhibit “D”, executed by Borrower and payable to City. “Notice” shall mean a Notice of Affordability Restrictions in the form attached hereto as Exhibit “E”. “Operating Year” shall mean each calendar year or portion thereof during which the Project is operating. “Project Net Cash Flow” shall mean the revenues (without regard to the source) derived from the operation of the Development minus (i) all real estate and personal property taxes and assessments, insurance premiums, monitoring fees and reasonable costs of maintenance, operation and management incurred by the Borrower in connection with the operation and maintenance of the Development, (ii) base property management fees not to exceed the lesser of (a) Twenty-Eight Dollars and Forty-Four cents ($28.44) per unit per month (which amount shall increase annually by the lesser of three and a half percent (3.5%) or the rate of increase in the CPI (defined below) from the prior calendar year) or (b) three and a quarter percent (3.25%) of the effective gross income received by Borrower in connection with its applicable calendar year and other reasonable and customary management fees (iii) a minimum of $24,000 per year in tenant services provided on-site (which amount shall increase annually by the rate of increase in the CPI from the prior calendar year, (iv) the costs of servicing the senior construction loan/financing (and any approved refinancing thereof) or other sources of financing approved by Lender (other than the Loan); (v) amounts necessary to maintain a guaranty or other form of security or bond for an operation reserve account which shall be capitalized in the amount not to exceed Six Hundred Fifty Three Thousand Six Hundred Sixty Five Dollars ($653,665), including any replenishment of such reserve (vi) amounts deposited into a replacement initially capitalized reserve account in the sum of not to exceed $250/unit per annum, increasing 3% per annum and any ongoing deposits to such reserve (vi) the repayment of any amounts loaned by Resolution No. HA-113 Page 9 the Borrower or its partners to the Development for material Development costs which costs were not reasonably foreseeable, and which loan, and the items for which funds were expended pursuant to such loan, are approved in advance by the Lender’s Executive Director, (vii) deferred Borrower fees in the total maximum amount of $5,000,000, (viii) a Limited Partner monitoring fee in the annual amount of $7,500; and (ix) a managing general partner fee in the annual amount of $26,900, which may increase up to three percent (3.0%) annually; any unpaid tax credit adjuster payments due to the limited partner of Borrower. The amounts of the operation reserves and replacement reserves described above may increase in accordance with the annual percentage increases from the date hereof in the Consumer Price Index, U.S. City Average, All Urban Consumers as published by the U.S. Bureau of Labor Statistics (the “CPI”) or as required for the Borrower limited partner or any senior lender. Project Net Cash Flow shall be determined by Borrower and Lender on a cash basis without regard to any carry-over profit or loss from any prior calendar year, and shall be determined annually, on or before April 15 for the preceding Operating Year. “Parties” shall mean Lender and Borrower, collectively, and “Party” shall mean Lender or Borrower, individually. “Person” shall mean a natural person, a partnership, a joint venture, an unincorporated association, a limited liability company, a corporation, a trust, any other business association or any Governmental Authority. “Potential Default” shall mean any condition or event that could, with the lapse of time/expiration of applicable cure period under this Agreement after any written notice to Resolution No. HA-113 Page 10 Borrower thereof required by this Agreement is delivered, constitute a “Default” (as defined in Section 5.1 below). “Property” shall have the meaning provided in Recital A, but shall also mean portions thereof or interests therein as the context requires. “Preliminary Budget” shall mean the budget for the costs of the Project attached hereto as Exhibit “F”. “Regulatory Agreements” shall mean the Housing Agreements in the form attached hereto as Exhibit “G”. “Schedule of Performance” shall mean the schedule for the completion of the Improvements attached to this Agreement as Exhibit “H”. Exhibits. The following exhibits are attached to this Agreement and incorporated into, and made a part of, this Agreement by this reference: Exhibit “A”: Legal Description Exhibit “B”: Scope of Development Exhibit “C”: Form of Deed of Trust Exhibit “D”: Form of Promissory Note Exhibit “E”: Form of Notice of Affordability Restrictions Exhibit “F”: Preliminary Project Budget Exhibit “G”: Forms of Housing Agreement (LMIHF) or “Regulatory Agreement” and Housing Agreement (Density Bonus) Exhibit “H”: Schedule of Performance CONSTRUCTION OF IMPROVEMENTS. Construction Pursuant to Plans. The Improvements shall be constructed in accordance with final Construction Plans approved by the City of Palm Desert and the terms and conditions of the permits and approvals issued or to be issued by the City of Palm Desert. Commencement and Completion of Improvements; Schedule of Performance. Borrower shall commence construction of the Improvements no later than the applicable date set forth in the Schedule of Performance, diligently prosecute to completion the construction of the Improvements no later than the applicable date set forth in the Schedule of Performance, and Borrower shall otherwise comply with the Schedule of Performance, in each case subject to Section 6.11 below (Force Majeure). Compliance with Applicable Law. Borrower shall cause all construction to be performed in compliance with: (a) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter; (b) all directions, rules and regulations of any fire marshal, health officer, building inspector, or Resolution No. HA-113 Page 11 other officer of every governmental authority now having or hereafter acquiring jurisdiction; (c) all applicable permits and governmental approvals. Monthly Progress Reports. Until such time as Borrower has completed the Improvements, Borrower shall provide Lender with monthly progress reports (within 30 days of the end of each calendar month for the previous calendar month) regarding the status of the construction of the Improvements. Construction Responsibilities. Borrower shall be solely responsible for all aspects of Borrower’s conduct in connection with the Improvements, including (but not limited to) the quality and suitability of the plans and specifications, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by Lender with reference to the Improvements is solely for the purpose of determining whether Borrower is properly discharging its obligations, and should not be relied upon by Borrower or by any third parties as a warranty or representation as to the quality of the design or construction of the Improvements, or for any other purpose. Mechanics’ Liens, Stop Notices, and Notices of Completion. If any claim of lien is filed against the Property or a stop notice with respect to the Loan is served on Lender or any other lender or other third party in connection with the Improvements, then Borrower shall, subject to Borrower’s right to contest such lien in good faith and in accordance with applicable law, within ninety (90) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to Lender a surety bond from a surety acceptable to Lender in sufficient form and amount, or provide Lender with other assurance satisfactory to Lender that the claim of lien or stop notice will be paid or discharged. Budget Amendments. After the Closing, Borrower shall submit any changes to the Budget to Lender for approval within ten (10) days after Borrower receives information indicating that actual costs therein vary or will vary from those shown on the Budget, together with evidence that Borrower has funds available from sources other than Lender to pay any cost increases and overruns. LOAN PROVISIONS. Use. The Loan shall be used solely for costs of the Project (including the purchase price for the Property) as shown on the Project Budget that exceed the equity available for and invested in the Project. Interest; Payments. The outstanding principal balance of the Loan shall accrue interest as set forth in the Note and such principal and interest shall be payable as set forth in the Note. Acceleration. Upon a Default by Borrower under Section 5 below, Lender may elect by written notice to Borrower that all outstanding principal and accrued interest on the Loan shall become due and payable. Security. The Note shall be secured by the Deed of Trust. Project Net Income Reporting. On or before April 15 of each calendar year, Borrower shall provide the Lender with an annual report in form and substance reasonably Resolution No. HA-113 Page 12 acceptable to Lender that include annual financial statements with respect to the Project that have been reviewed by an independent certified public accountant (“Annual Financial Report”). In the event the Residual Receipts reported or paid deviate by a deficit of three percent (3%) or more from that amount determined to be owing upon review of Developer’s submittal and an audit (and the Lender shall have the right to audit Developer’s books and records for the Project, which shall be kept at _____________________ in the City of Palm Desert), Borrower shall reimburse Lender for its cost to review and shall pay the amounts owing within ten (10) days after notice from Lender describing such amounts and costs. Conditions Precedent to Closing. The obligation of Lender to close the Loan is expressly conditioned upon the satisfaction of the following on or before December 31, 2022: City’s receipt of originals of this Agreement and the Note, duly executed by Borrower, and City’s receipt of an Acknowledgement regarding the management of the Project, in the form previously delivered to Borrower, duly executed by Palm Communities; No Default or Potential Default by Borrower exists. Commonwealth Land Title Insurance Company has recorded, or is irrevocably and unconditionally committed to record, the Deed of Trust, the Housing Agreement (LMIHF) and the Housing Agreement (Density Bonus) and the Notice of Affordability Restrictions (and any deeds of trust or other documents required as a condition to any other construction financing for the Project). Commonwealth Land Title Insurance Company has unconditionally committed to issue a lender’s title insurance policy to Lender in the amount of the Loan insuring the Deed of Trust, with exceptions approved by Lender and otherwise in form and substance acceptable to Lender. Borrower shall have delivered to Lender copies of Borrower’s organizational documents to Lender (including the partnership agreement for any tax credit limited partnership formed by the Borrower) as well as any other reasonable evidence requested by Lender showing Lender that Borrower has duly authorized the Loan Documents. The City of Palm Desert shall have issued the building permit for the improvements and shall have completed its environmental (CEQA) review. Borrower shall have provided reasonable evidence to the Lender of: (i) the cost of the Improvements (including a GMAX or stip sum construction contract from a reputable bondable contractor) and (ii) that Borrower has debt and equity funds to pay for such costs (and any tax credit equity shall have been committed and available, as shown by reasonable evidence delivered to City). If Lender is requested to execute a subordination agreement with respect to the deed of trust securing senior construction financing, then Lender’s receipt and approval of the loan documents for such senior construction financing. Loan Disbursements. Disbursement of the purchase money portion of the Loan shall be made by Lender to escrow at closing for payment to the seller (the Successor Agency to Resolution No. HA-113 Page 13 the Palm Desert Redevelopment Agency), and disbursements of the construction loan portion of the Loan shall be conditioned upon the following additional conditions: Borrower shall have delivered to Lender a written disbursement request in form and substance reasonably satisfactory to Lender, together with copies of the applicable invoices or other appropriate documentation for the costs to be paid (consistent with the final Project budget) and appropriate mechanics lien waivers for the work performed prior to the date of disbursement (i.e., unconditional progress payment waivers for all costs paid with the previous disbursement, and conditional progress payment waivers for the costs to be paid with the current disbursement, provided that final waivers shall be provided as a condition to the final disbursement). No default shall have occurred under any Loan Document that remains uncured as of the date of the disbursement request or actual disbursement. All equity funds shall have been disbursed and applied to Project costs in the Project Budget as shown by reasonable evidence delivered to Lender, and the Loan funds not yet disbursed together with any other committed sources of funds are sufficient to pay all remaining Project costs. OTHER LOAN REQUIREMENTS. Information. Borrower shall provide any information requested by Lender in good faith in connection with the Improvements. Hazardous Materials. Borrower shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including any substances defined as or included in the definition of “hazardous substances,” hazardous wastes,” “hazardous materials,” or “toxic substances” under any applicable federal or state laws or regulations (collectively, “Hazardous Materials”), except such of the foregoing as may be customarily used in connection with the ownership, operation, occupancy, maintenance and construction of improvements similar to the Improvements. Borrower acknowledges and agrees that each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an “environmental provision” for purposes of California Code of Civil Procedure Section 736. Construction Responsibilities; Commencement and Completion. Borrower shall cause the construction of the Improvements to be prosecuted with diligence, in good faith, and in accordance with the Schedule of Performance, subject to Section 6.11 below. Borrower shall cause the construction of the Improvements to be performed in a good and workmanlike manner in accordance with the Construction Plans approved by the City, in compliance with all applicable laws, ordinances, rules, regulations, building restrictions, recorded covenants and restrictions and requirements of each Governmental Authority having jurisdiction over the Property and free and clear of any liens or claims for liens. Borrower shall be solely responsible for all aspects of Borrower’s business and conduct in connection with the Property, including the quality and suitability of the Construction Plans and their compliance with the requirements of each applicable Governmental Authority and the Loan Documents, and the supervision of the construction of the Improvements, the qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors, material suppliers, consultants and property managers, the accuracy Resolution No. HA-113 Page 14 of all applications for payment and loan draw requests and the proper application of all disbursements. Fees and Taxes. Borrower shall be solely responsible for payment of all fees, assessments, taxes, charges and levies imposed by any public authority or utility company with respect to the Property, and shall pay such charges prior to delinquency. However, Borrower shall not be required to pay and discharge any such charge so long as (a) the l egality thereof is being contested diligently and in good faith and by appropriate proceedings and (b) if requested by Lender, Borrower deposits with Lender such funds or other forms of assurance that Lender in good faith from time to time determines appropriate to protect Lender from the consequences of the contest being unsuccessful, provided, however, that if Borrower has deposited sufficient funds with a senior lender, Borrower shall not be required to deposit funds with Lender. Notice of Litigation. Borrower shall promptly notify Lender of any litigation materially affecting Borrower or the Property and of any claims or disputes that Borrower reasonably believes involve a material risk of any such litigation. Transfers. The qualifications and identity of the Borrower are of particular concern to the Lender and it is because of such qualifications and identity that the Lender has entered into this Agreement with the Borrower. No voluntary or involuntary successor in interest of the Borrower shall acquire any rights or powers under this Agreement except as expressly set forth herein. However, Borrower may assign this Loan Agreement to a single-asset limited partnership in which Borrower is the general partner, or which has a general partner that is directly or indirectly owned and controlled by Borrower, provided Lender approves the limited partnership agreement and evidence of such control or ownership, such approval not to be unreasonably withheld. The Loan may be accelerated by Lender if there is any conveyance by Borrower of the Property or any portion thereof or interest therein, or Borrower ceases to be (or ceases to own and control, as applicable) the general partner of such limited partnership prior to the completion of the Improvements without the City’s prior written consent. Notwithstanding the foregoing, provided prior written notice to Lender of such transfer (with reasonable evidence of the nature of the transfer) is provided to Lender with respect to items (ii) and (ii) below as applicable, the Lender's consent shall not be required for (i) any direct or indirect transfer of the investor limited partner's interest in the Borrower if such transfer is to an entity controlled by, or under common control with Boston Financial Investment Management, LP or an affiliate thereof, (ii) the removal or replacement of a general partner of Borrower by the investor limited partner in accordance with the provisions of the Borrower's limited partnership agreement, (iii) the transfer of the Property or of a limited partner interest in Borrower to an entity affiliated with Pacific West Communities, Inc., an Idaho corporation made pursuant to an option agreement set forth in Borrower’s limited partnership agreement (collectively, a “Permitted Transfer”). Insurance; Indemnity. Insurance. Borrower shall obtain and maintain at no cost or expense to the Lender, with a reputable and financially responsible insurance company reasonably acceptable to the Lender, (i) after the opening of the Project for business, commercially reasonable casualty insurance for the Improvements in an amount not less than the replacement cost of the Improvements (subject to commercially reasonable deductibles) with a reasonable inflation rider; (ii) commercial broad form general liability insurance, insuring against claims and liability for bodily injury, death, or property damage arising from the construction, use, occupancy, condition, or Resolution No. HA-113 Page 15 operation of the Property, which liability insurance shall provide combined single limit protect ion of at least $2,000,000 and shall include a reasonable inflation rider, contractual liability coverage and products and completed operations coverage, and (iii) commercial automobile liability insurance of at least $1,000,000 combined single limit. Such liability insurance policies shall name the Lender and its board members, officers, agents and employees as additional insureds. Before commencement of any demolition or construction work by Developer, Borrower shall obtain and maintain in force until completion of such work (i) “all risk” builder’s risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to the Lender, and (ii) workers’ compensation insurance covering all persons employed by Borrower in connection with work on the Project, or any portion thereof. During the construction of Improvements on any portion of the Property by Developer, such builder’s risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors’, subcontractors’, and construction managers’ tools and equipment and property owned by contractors’ and subcontractors’ employees. Each architect and each engineer engaged by Borrower shall provide professional liability insurance with a limit of liability of at least One Million Dollars ($1,000,000.00). Borrower shall also furnish or cause to be furnished to the Lender evidence satisfactory to the Lender that any contractor with whom it has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers’ compensation insurance as required by law. With respect to each policy of insurance required above, Borrower and each of Developer’s general contractors, engineers and architects shall furnish to the Lender a certificate on the insurance carrier’s form setting forth the general provisions of the insurance coverage promptly after written request by Lender showing the additional insureds. The certificate shall also be furnished by Borrower prior to commencement of construction of any Improvements. All such policies required by this Section shall contain (i) language to the effect that the policies cannot be cancelled or materially changed except after thirty (30) days’ written notice by the insurer to the City, and (ii) a waiver of the insurer of all rights of subrogation against the Lender and the other additional insureds. All such insurance shall have deductibility limits which shall be commercially reasonable. Procuring the insurance required under this Section shall not be construed to limit Borrower’s liability under the Loan Documents, or to fulfill its indemnity obligations under the Loan Documents. Notwithstanding such insurance policies, Borrower shall be responsible for the total amount of any damage, injury or loss caused by negligence or neglect connected with the ownership, operation or occupancy of the improvements on the land. The insurance requirements set forth in this Section are for the sole purpose of protecting Lender’s security for the Loan and are not to be construed as a representation by Lender that the insurance required under this Section is sufficient to cover Borrower from or against all uninsur ed losses and Borrower releases Lender from any liability and forever waives any claims against Lender in connection therewith. All insurance policies shall (a) be issued by an insurance company having a rating of “A:VII” or better by A.M. Best Co., in Best’s Rating Guide; (b) name Lender as Resolution No. HA-113 Page 16 an additional insured on all liability insurance and the senior lender as mortgagee and loss payee on all casualty insurance, (c) contain the “standard non-contributory mortgagee clause” and the “standard lenders’ loss payable clause,” or their equivalents, (d) be evidenced by a certificate of insurance (or, if required by City, copy of insurance policy) to be delivered to City. Indemnity. In addition to Developer’s obligations under Section 6.4 below, Borrower hereby agrees to indemnify, defend, protect, and hold harmless the Lender and any and all agents, employees, representatives, board members, consultants, and officers of the Lender, from and against all losses, liabilities, claims, damages (including foreseeable o r unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out of pocket litigation costs and reasonable attorneys’ fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with: the validity of this Agreement; the development and construction by Borrower of the Improvements on the Property or the use, ownership, management, occupancy, or possession of the Property during Developer’s period of ownership or control thereof; any breach or Default by Borrower hereunder; and any of Developer’s activities on the land (or the activities of Developer’s agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on the land). The Lender may in its discretion, and at their own cost, participate in the defense of any legal action naming the Lender. The provisions of this Section shall survive the Closing or the termination of this Agreement. DEFAULT AND REMEDIES. Events of Default. Each of the following shall constitute a “Default” by Borrower under this Agreement: The failure by Borrower to make a payment of money to Lender within ten (10) business days from the date such payment was due under any of the Loan Documents. The failure by Borrower to perform any obligation under the Loan Documents not involving the payment of money, and, if such failure is curable within thirty (30) days, the expiration of thirty (30) days after written notice of such failure from Lender to Borrower. If such failure is not curable within 30 days, Borrower may have such longer period of time as is reasonably necessary to complete the cure, provided that Borrower has commenced to cure within the initial 30-day period and diligently prosecutes such cure to completion. Borrower (a) is unable, or admits in writing its inability, to pay its monetary obligations as they become due, (b) makes a general assignment for the benefit of creditors, or (c) applies for, consents to or acquiesces in the appointment of a trustee, receiver or other custodian for itself or its property, or, in the absence of such application, consent or acquiescence, Resolution No. HA-113 Page 17 a trustee, receiver or other custodian is appointed for Borrower or the property of Borrower (including the Development), and such appointment is not discharged within sixty (60) days. The commencement of any case under the Bankruptcy Code or commencement of any other bankruptcy, arrangement, receivership, custodianship or similar proceeding under any federal, state or foreign law by or against Borrower, provided that if any such case or other bankruptcy, arrangement, reorganization, receivership, custodianship or similar proceeding is commenced against Borrower, such case or other bankruptcy, arrangement, receivership, custodianship or similar proceeding is not dismissed within sixty (60) days after its commencement. A final judgment or decree for monetary damages or a monetary fine or penalty (not subject to appeal or as to which the time for appeal has expired) is entered against Borrower by any Governmental Authority, and such judgment, decree, fine or penalty is not paid and discharged or stayed within sixty (60) days after the entry thereof. The assets of Borrower are attached, levied on or otherwise seized by legal process, and such attachment, levy or seizure is not quashed, stayed or released within sixty (60) days of the date thereof. There shall be filed any claim of lien against the Property or the service of any notice to withhold proceeds of the Loan and the continued maintenance of such claim of lien or notice to withhold for a period of sixty (60) days without discharge or satisfaction thereof or provision therefor (including the posting of bonds) satisfactory to City. The occurrence of any conveyance that is prohibited under Section 4.6. A failure to comply in any respect with the Schedule of Performance (subject to force majeure delays under Section 6.11 below). Borrower’s violation of any law or permit applicable to the Property or Improvements (or other improvements on the Property) that is not cured within thirty (30) days after written notice from City. If such failure is not curable within 30 days, Borrower may have such longer period of time as is reasonably necessary to complete the cure, provided that Borrower has commenced to cure within the initial 30-day period and diligently prosecutes such cure to completion. Borrower’s default under any other loans secured by the Property which is not cured within any applicable cure period in the loan documents for such loan or such longer cure period consented to in writing by the applicable lender. 5.1.12. Borrower fails to comply with the CTCAC Reservation Letter dated June 15, 2022 addressed to Christina Alley (which requires, among other things, executing and recording a CTCAC regulatory agreement), or fails to comply with the recorded CTCAC regulatory agreement. Resolution No. HA-113 Page 18 Remedies. The occurrence of any Default by Borrower will relieve Lender of any obligation to make further disbursement of the Loan and shall give Lender the right to proceed with any and all remedies set forth in the Loan Documents, including the following: Lender shall have the right to declare, by written notice to Borrower, the outstanding principal balance of the Loan, together with any accrued and unpaid interest thereon, due and payable as of the date stated in such notice as determined by Lender in its sole and absolute discretion. Lender may proceed to enforce payment thereof and to exercise any or all rights afforded to Lender as a creditor and secured party under law, including the California, including foreclosure of the Deed of Trust. Borrower shall be obligated to pay City, on demand, all reasonable expenses, costs and fees (including reasonable attorney’s fees and expenses) paid or incurred by Lender in connection with the collection of the Loan and the preservation, maintenance, protection, sale or other disposition of the security for the Loan, and such obligation shall be secured by the Deed of Trust. Lender shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Borrower to perform its obligations under the Loan Documents or to enjoin acts or things that may be unlawful or in violation of the provisions of the Loan Documents. Lender may cure any default by Borrower under the Loan Documents. Borrower shall be liable to reimburse City, on demand, for any funds advanced by Lender to cure any such monetary default, together with interest thereon at the lesser of the maximum rate permitted by law or eight percent (8%) per annum from the date of expenditure until the date of reimbursement, and the Deed of Trust shall secure such sums owed. Lender shall have the right to file for record, as Borrower’s attorney-in-fact (which appointment is a power coupled with an interest and is irrevocable), any notices of completion, notices of cessation of labor, notices of non-responsibility or any other notices that Lender considers necessary to protect its security for the Loan. Lender shall also be entitled to all other remedies available at law, in equity or otherwise. Prior to exercising any remedies hereunder, Lender will give Borrower’s investor limited partner notice of default at the same time such notice is given to Borrower provided Lender shall have been given such investor limited partner’s name and address by Borrower in writing. The investor limited partner shall have the cure periods set forth above within which to cure the default and Lender will accept or reject such cure on the same basis as if such cure had been tendered by Borrower. Remedies Cumulative. Except as may be provided by law, no right, power or remedy given to Lender by the terms of the Loan Documents is intended to be exclusive of an y 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 Lender by the terms of the Loan Documents, by law or otherwise. Neither the failure nor any delay on the part of Lender to exercise any such right, power or remedy shall operate as a waiver thereof, nor shall any single Resolution No. HA-113 Page 19 or partial exercise by Lender of any such right, power or remedy preclude any other or further exercise of such right, power or remedy, or any other right, power or remedy. GENERAL PROVISIONS. Relationship of Parties. Nothing contained in this Agreement shall be interpreted by the Parties, or any other party, as creating the relationship of employer and employee, principal and agent, partnership or any other form of joint venture between Lender and Borrower, and Borrower shall at all times be deemed an independent contractor and shall be completely responsible for the manner in which it performs its obligations under this Agreement. No Claims. Nothing contained in this Agreement shall create or authorize any claim against Lender by any Person that Borrower may have employed or with whom Borrower may have contracted related to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the construction or operation of the Property, and Borrower shall include similar requirements in any contracts entered into for the construction or operation of the Property. Amendments. No modification of the terms of this Agreement shall be valid unless made in writing and signed by the Parties. Indemnification for Prevailing Wages Claims. Borrower shall indemnify, defend, protect and hold harmless Lender and its board members, officers, employees, agents, successors and assigns (collectively, “Indemnified Parties”) from and against any and all claims (including, without limitation, any claim under Labor Code Section 1781), losses, proceedings, damages, causes of action, liabilities, costs and expenses, (including attorneys’ fees) (collectively, “Claim”) arising from or in connection with, or caused by any violations of law by Borrower or any contractor with respect to the Property, including, without limitation, any failure to comply with Labor Code Sections 1720 et. seq. If any action or proceeding be brought against Lender by reason of any such claim, Borrower, upon notice from Lender, shall defend the same at Borrower’s expense with counsel satisfactory to Lender (which consent shall not be unreasonably withheld) unless such Claim arose from the willful misconduct or gross negligence of an Indemnified Party. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD LENDER HARMLESS LENDER SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RECONVEYANCE OF THE DEED OF TRUST WITH RESPECT TO EVENTS OCCURRING PRIOR TO THE CANCELLATION OF THE NOTE AND RECONVEYANCE OF THE DEED OF TRUST. Non-Liability of Lender and Lender Officials, Employees and Agents. No member, official, employee or agent of Lender shall be personally liable to Borrower in the event of any default or breach by Lender, or for any amount that may become due to Borrower, under the terms of this Agreement. No Third Party Beneficiaries. There shall be no third party beneficiaries of this Agreement. Notices, Demands and Communications. Except as otherwise required by law, any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) by certified mail, postage prepaid, return receipt requested, or (b) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and Resolution No. HA-113 Page 20 addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforementioned: Lender: Palm Desert Housing Authority 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: Executive Director Borrower: Palm Desert Pacific Associates c/o Pacific West Communities, Inc. 430 E. State Street, Suite 100 Eagle, ID Attn: Caleb Roope With a copies to: McReynolds & McCormack, PLLC 430 E. State Street, Ste.140 Eagle, ID 83616 Attention: Clay McReynolds And: BF Vitalia LLLP 101 Arch Street, 13th Floor Boston, MA 02110 Attn: Asset Management - Vitalia Apartments Service of any such notice or other communications so made shall be deemed effective on the day of actual delivery or refusal to accept/inability to deliver, as shown by the addressee’s return receipt if by certified mail, and as confirmed by the courier service if by courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non-business day, then such notice or demand so made shall be deemed effective on the first business day following the day of actual delivery. No communications via electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflict of laws principles. Attorneys’ Fees. Should any action be brought to enforce any provision hereof, the prevailing party in such action shall be entitled to reasonable attorneys’ fees, court costs and other litigation expenses, including expenses incurred for preparation and discovery. The right to recover such fees, costs and expenses shall accrue upon the commencement of the action regardless of whether the action is prosecuted to final judgment. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force Resolution No. HA-113 Page 21 and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. Force Majeure. A Party shall not be deemed to be in default as to any construction obligation where delays are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; quarantine restrictions; freight embargoes; lack of transportation; or court order; or any other similar causes (other than lack of funds of Borrower or Borrower’s inability to finance the construction of the Development) beyond the control or without the fault of the Party claiming an extension of time to perform. However, no extension of time for any cause will be deemed granted if notice by the Party claiming such extension is not sent to the other Party within ten (10) business days from the commencement of the cause. Approvals/Amendments/Subordination Agreements. Whenever this Agreement calls for or contemplates Lender approval or consent (including approval of the form and substance of other documents), the written approval or consent or waiver of the Executive Director of Lender shall constitute the approval or consent of Lender. The Lender also authorizes the Executive Director to make non-substantial changes to this Agreement, including, reasonable extensions of time deadlines set forth in this Agreement, provided they are in writing, and to send notices and demands, initiate and administer remedies and otherwise administer the Loan Documents, and to execute reasonable subordination agreements required by senior construction lenders as a condition to making their loans for the Project. The Executive Director shall have the authority to review and approve all documents listed in Section 3.5 hereof and may prohibit disbursement of Loan funds if the documents are not reasonably satisfactory to the Executive Director. Warranty Against Payment of Consideration for Agreement. Borrower warrants that it has not paid or given, and will not pay or give, any Person, including the Lender or the City of Palm Desert, or any councilmember, board member, official or employee thereof, any money or other consideration for obtaining this Agreement. Refinance. Borrower shall be permitted to refinance any senior construction or permanent loan on commercially reasonable terms in an amount equal to the then-outstanding principal balance of such senior loan(s) (the "Refinanced Loan"), and Lender agrees that Lender’s Executive Director shall have the authority to execute reasonable subordination agreements to confirm such subordination such that the deed of trust securing the Loan shall remain subordinate to any such Refinanced Loan. Time. Time is of the essence with respect to this Agreement and the performance of each obligation contained herein. Multiple Originals; Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. Resolution No. HA-113 Page 22 WHEREAS, this Agreement has been entered into by the undersigned as of the date first above written. LENDER: PALM DESERT HOUSING AUTHORITY By: Name: Title: ATTEST: Anthony J. Mejia, Secretary APPROVED AS TO FORM: Robert W. Hargreaves, City Attorney BORROWER: PALM DESERT PACIFIC ASSOCIATES, a California limited partnership By: TPC HOLDINGS IX, LLC, an Idaho limited liability company Its: Administrative General Partner By: Pacific West Communities, Inc., an Idaho corporation Its: Manager By: ___________________ Name: Caleb Roope Its: President and CEO By: CENTRAL VALLEY COALITION FOR AFFORDABLE HOUSING, a California Nonprofit Public Benefit Corporation Its: Managing General Partner By: ___________________ Name: Christina Alley Its: Chief Executive Officer Resolution No. HA-113 Page 23