Ordinance 24-11RECORD OF ORDINANCES
Ordinance No
24 -11
Passed 20
AN ORDINANCE AUTHORIZING THE PROVISION OF
FINANCIAL ASSISTANCE TO AVONDALE WOODS SENIOR
HOUSING LIMMD PARTNERSHIP FOR THE
CONSTRUCTION OF AVONDALE SENIOR VILLAGE, AN
AFFORDABLE HOUSING PROJECT FOR SENIORS IN THE
CITY, AND AUTHORIZING THE EXECUTION OF CERTAIN
LOAN DOCUMENTS EVIDENCING SUCH FINANCIAL
ASSISTANCE, AND DECLARING AN EMERGENCY
WHEREAS, Avondale Woods Senior Housing Limited Partnership ("Borrower") has
requested that the City provide financial assistance for the construction of Avondale
Senior Village, a 100 unit affordable housing project for seniors ("Senior Housing
Facility') to be located within the City; and
WHEREAS, this Council has determined that it is necessary and appropriate and in
the best interests of the City to provide financial assistance to the Borrower for
construction of the Senior Housing Facility, as described in the proposed loan
documents to be entered into between the Borrower and the City ( "Loan
Documents'); and
WHEREAS, this Council has determined to offer financial assistance, the terms of
which are set forth in a substantially final form in the Loan Documents presently on file
in the office of the Clerk of Council, to induce the Borrower to construct the Senior
Housing Facility within the City to enhance the availability of adequate housing and
improve the economic and general well -being of the people of the State and the City, all
as authorized in Article VIII, Section 16 of the Ohio Constitution.
NOW, THEREF , BE IT ORDAINED by the Council of the City of Dublin,
State of Ohio, of the elected members concurring, that:
Section 1 . The Loan Documents by and between the City and the Borrower, in the
form presently on file with the Clerk of Council, providing for, among other things, a
loan in the amount of $800,000 in consideration for the Borrower's agreement to
construct the Senior Housing Facility within the City, which will enhance the
availability of adequate housing and improve the economic and general well -being of
the people of the State and the City, all as authorized in Article VIII, Section 16 of the
Ohio Constitution, are hereby approved and authorized with changes therein not
inconsistent with this Ordinance and not substantially adverse to this City and which
shall be approved by the City Manager. The City Manager, for and in the name of this
City, is hereby authorized to execute the Loan Documents, provided further that the
approval of changes thereto by that official, and their character as not being
substantially adverse to the City, shall be evidenced conclusively by the execution
thereof. This Council further authorizes the City Manager, for and in the name of the
City, to execute any amendments to the Loan Documents, which amendments are not
inconsistent with this Ordinance and not substantially adverse to this City.
Section 2 . This Council further hereby authorizes and directs the City Manager, the
Director of Law, the Director of Finance, the Clerk of Council, or other appropriate
officers of the City to prepare and sign all agreements and instruments and to take any
other actions as may be appropriate to implement this Ordinance.
Section 3 . This Council finds and determines that all formal actions of this Council and
any of its committees concerning and relating to the passage of this Ordinance were
taken in open meetings of this Council or committees, and that all deliberations of this
Council and any of its committees that resulted in those formal actions were in meetings
open to the public, all in compliance with the law, including Section 121.22 of the
Revised Code.
RECORD OF ORDINANCES
Ordinance No.
EoxmL7o 3Q94�
Page 2 of 2
Passed . 20_
24 -11
Section 4 . This Ordinance is declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, safety or welfare and for the
further reason that the closing on the loan documents must proceed in June of 2011 in
accordance with the loan agreements. Therefore, the ordinance shall be effective
immediately upon passage.
Signed:
Mayor - Pr si ing Officer
Attest:
(..,Pic -� 0 ��-
Clerk of Council
Passed: oZ�3 2011
Effective: 2011
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490
To: Members of Dublin City Council
From: Marsha 1. Grigsby, City Manager WM ,
Date: May 19, 2011
Initiated By: Bryan Thurman, Deputy Director of Finance
Sara Ott, Senior Project Manager
Memo
Re: Ordinance 24 -11 - Authorizing the Provision of Financial Assistance to
Avondale Woods Senior Housing Limited Partnership for the Construction of
Avondale Senior Village, an Affordable Housing Project for Seniors in the
City, and Authorizing the Execution of Certain Loan Documents Evidencing
Such Financial Assistance.
Summary
During the first reading of Ordinance 24 -11, City Council Members inquired about the leasing rates
and the leasing up period for Avondale Woods. A representative from National Church Residences
has provided the attached letter with details on this matter.
Recommendation
Staff recommends passage of Ordinance 24 -11 by emergency at the second reading/public hearing
on May 23, 2011. Passage by emergency is necessary to allow closing on the loan documents to
proceed in early June of 2011.
NATIONAL CHURCH RESIDENCES
2335 NORTH BANK DRIVE, COLUMBUS, OHIO 43220 -5499
PHONE (614)451 -2151 FAX (614) 451 -0351
May 17, 2011
Sara Ott
Senior Project Manager
Office of the City Manager
City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
RE: Avondale Senior Village
Dear Ms. Ott:
I am writing to respond to questions raised by City Council regarding the Avondale Senior
Village Project. Council asked about resident eligibility, income restrictions, rents and a
timeline for lease -up.
All units are designated Senior, some are reserved for residents 62 and over and some are 55
and over. Of the 100 units, there are SO low- income (tax credit) units, 56 of which have
Rental Subsidy. There are 19 Market rate (unrestricted) units and 1 employee unit. Of the SO
tax credits units, 7 are restricted to residents making no more than 35% of the Area Median
Income (AMI), 40 units restricted at 50 %AMI, and 33 units restricted to residents making no
more than 60% of AMI. The 19 Market units are restricted to Seniors 55 and over, but have
no income or rent restriction. Per a third party Market Study, the achievable market rents for
the 19 market rate units is $925. Below is a unit mix of proposed rents (this may change
prior to the opening of the building):
With regard to time line, we expect to begin construction next month and be 100% complete
by the end of 2012. The first cottage units should be available for occupancy in next summer.
I would expect we would start advertising and taking early applications forth ose units next
April or May.
Please let me know if you have any questions, and again, we are greatly appreciative of the
City's support for this project.
Sincerely,.
Matt McClure
Project Manager, Development
7 Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
CITY OF DUBLIN_ Phone: 614 - 410 -4400 • Fax: 614 -410 -4490 M
To: Members of Dublin City Council
From: Marsha I. Grigsby, City Manager ��
Date: May 5, 2011
Initiated By: Bryan K. Thurman, Deputy Director of Finance
Sara G. Ott, Sr. Project Manager
Re: Ordinance 24 -11 - Authorizing the Provision of Financial Assistance to
Avondale Woods Senior Housing Limited Partnership for the Construction of
Avondale Senior Village, an Affordable Housing Project for Seniors in the
City, and Authorizing the Execution of Certain Loan Documents Evidencing
Such Financial Assistance.
Summary
Ordinance 24 -11 authorizes the City Manager to enter into a loan agreement with Avondale Woods
Senior Housing Limited Partnership, "Avondale Woods, " for the purpose of inducing the
construction of a 100 -unit affordable senior adult housing project within the City of Dublin at 5215
Avery Road. The City's financial contribution to the construction is coupled with funding from the
U.S. Department of Housing and Urban Development, Ohio Housing Finance Agency, Franklin
County, and the Columbus Metropolitan Housing Authority. Attached to the Ordinance is a copy of
the loan agreement and accompanying documents for your review. Upon completion, Avondale
Woods will have an estimated building value of $11,369,300.
National Church Residences and City representatives have been in discussions regarding the City's
financial assistance with construction of the Avondale Woods project. Initially, the City had
committed to offer financial support to the project in the form of a $650,000 loan based on
preliminary cost estimates. Based on current project costs, the staff recommends increasing the
amount to $800,000. Attached is a copy of a support letter and previous Council meeting discussion
regarding financial support to the project.
The key terms of the City's agreement include providing an $800,000 loan at three percent interest
per annum, with a balloon payment for any remaining principal and interest at the end of 40 years.
The City's initial disbursement to Avondale Woods will be issued at the time of closing with
subsequent disbursements issued in multiple draws over the construction period, as outlined in the
loan agreement. Repayment of the loan by Avondale Woods will be made based on available "cash
flows" and in accordance with the loan agreement.
Avondale Woods will provide a construction completion guaranty, as pledged by the assets of
National Church Residences as the General Partner, for the funds disbursed by the City during the
construction period. Additionally, the City will retain a leasehold- interest in the real estate for the
duration of the loan period.
Memo re. Ordinance 24 -11 — NCR Agreement - Avondale Woods Senior Housing
May 5, 2011
Page 2 of 2
In compliance with restrictions specified in the Ohio Revised Code, the City will provide the loan
proceeds from non -tax revenues. This legislation is accompanied by a corresponding appropriation
ordinance to document the source of the loan proceeds.
Avondale Woods is scheduled to close on the real estate transaction and execute construction
agreements on June 7, 2011. Per the loan agreement, construction must commence within thirty (30)
days of closing, and the project is required to be completed within eighteen (18) months after the date
of commencement.
Staff will request emergency passage of Ordinance 24 -11 at the second reading/public hearing to
ensure the loan is closed in conjunction with the real estate transaction and loan agreements between
several other partners in the project.
Recommendation
Staff recommends that Council adopt Ordinance 24 -11 by emergency at the second reading/public
hearing on May 23, 2011.
LOAN AGREEMENT
This LOAN AGREEMENT (this "Loan Agreement') made and entered into as of the day
of June, 2011, by and between the CITY OF DUBLIN, OHIO (the "City") a municipal corporation duly
organized and validly existing under the Constitution and the laws of the State of Ohio (the "State ")
and its Charter and AVONDALE WOODS SENIOR HOUSING LIMITED PARTNERSHIP (the `Borrower'
and together with the City, the Parties "), an Ohio limited partnership, under the circumstances
summarized in the following recitals (the capitalized terms not defined in the recitals are being used
therein as defined in Article I hereof):
WHEREAS, the Borrower has requested that the City provide financial assistance for the
construction of Avondale Senior Village, a 100 unit affordable housing project for seniors in the
City at the Project Site hereinafter described; and
WHEREAS, pursuant to Ordinance No. -11 passed on May , 2011, the City has
determined to offer the financial assistance described herein to the Borrower to construct an
affordable housing project for seniors in the City, and to provide for the creation of employment
opportunities and improve the economic welfare of the people of the State and the City, all as
authorized in Article VIII, Sections 13 and 16 of the Ohio Constitution; and
WHEREAS, in furtherance of the purposes of expanding the supply of affordable housing in
the City and to create employment opportunities within the City, the City proposes to provide
financial assistance pursuant to this Loan Agreement;
Now, THEREFORE, in consideration of the premises and the representations and agreements
hereinafter contained, the City and the Borrower agree as follows:
ARTICLE I
Section 1.1. Use of Defined Terms In addition to the words and terms elsewhere defined
in this Loan Agreement or by reference to other instruments, the words and terms set forth in
Section 1.2 hereof shall have the meanings therein set forth unless the context or use expressly
indicates a different meaning or intent. Such definitions shall be equally applicable to both the
singular and plural forms of any of the words and terms therein defined.
Section 1.2. Definitions As used herein:
"Allowable Costs" means all costs incurred in connection with construction of the Project
including, without limitation, construction and redevelopment costs.
COLUMBUS /788384.7
"COnstruction/PermanentLoan" means a loan in the amount of approximately three million,
two hundred and eighty -nine thousand dollars ($3,289,000) from Red Mortgage Capital LLC, the
proceeds of which was/will be used by Borrower to finance construction of the Project.
"Borrower" means Avondale Woods Senior Housing Limited Partnership, an Ohio limited
partnership.
"Closing Date" means the date on which the City delivers the Initial Disbursement to the
Borrower.
"Collateral" means the property described in the Mortgage as security for the Loan.
"Completion Date" means the date, which shall occur no later than eighteen (18) months
after the date of commencement of construction, as of which construction of the Project shall have
been completed and a certificate of substantial completion and occupancy issued in connection
therewith.
"Construction Completion Guaranty" means the construction completion guaranty given of
even date herewith by National Church Residences, an Ohio nonprofit corporation, for the benefit of
the City.
"City" means City of Dublin, Ohio.
"Default Rate" means an interest rate equal to the Wall Street Journal's prime rate at the
time a default occurs necessitating determination of the Default Rate, plus 5% per annum.
"Disbursement Date" means, with respect to each disbursement to the Borrower, the date
when all conditions to that disbursement have been satisfied pursuant to Section 3.6 of this Loan
Agreement, and all or a portion of the Loan is disbursed pursuant to the terms of Section 3.7 of this
Loan Agreement.
"Environmental Law" means any federal, state or local law, regulation, ordinance, order or
directive pertaining to the protection of the environment.
"Event of Default" means any of the events described as an event of default in Article 5
hereof.
"Force Majeure" means:
(a) acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies;
orders or restraints of any kind of the government of the United States or of the State or any of their
departments, agencies, political subdivisions or officials, or any civil or military authority; terrorism,
insurrections; civil disturbances; riots; epidemics; landslides; nuclear accidents; lightning;
earthquakes; fires; hurricanes; tornadoes; storms, droughts; floods; arrests; restraint of government
and people; explosions, breakage, malfunction or accident to facilities, machinery, transmission
pipes or canals; partial or entire failure of utilities; shortages of labor, materials, supplies or
transportation; or
COLUMBUS /88384.7 2
(b) any cause, circumstances or event not reasonably within the control of the Borrower.
"Governing Instruments" means the Certificate of Limited Partnership of the Borrower and
the First Amended and Restated Agreement of Limited Partnership of Borrower (the "Limited
Partnership Agreement'.
"Governmental Authority" means, collectively, Federal, State, any political subdivision
thereof, any municipality, and any agency, department, commission, board or bureau of any of the
foregoing having jurisdiction over the Project.
Hazardous Substance" means a hazardous substance as defined under the Comprehensive
Emergency Response Compensation and Liability Act of 1980, 42 U.S.C. 6901, as amended from
time to time.
Hazardous Waste" means a hazardous waste as defined under the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. §6901, as amended from time to time.
"Initial Disbursement' ' means an amount equal to $350,000 to be disbursed to the Borrower
after the conditions to that disbursement as set forth in Section 3.6 herein have been met, and
Borrower has delivered all originals (or copies of all originals, in the event a document does not
have more than one original) of all Loan Documents and other instruments and documents
reasonably deemed by the City to be necessary or desirable to evidence or secure the Loan fully
executed by Borrower.
"Interest Rate "means an interest rate equal to three percent (3 %) per annum.
"Legislation" means the Ordinance No. 2011- passed by the City Council of the City on
May , 2011, authorizing the Loan and execution of the Loan Agreement and related documents.
"Loan" means a loan in the aggregate amount of the Loan Amount from the City to the
Borrower, the proceeds of which will be used by Borrower to finance a portion of the costs of
constructing the Project.
"Loan Agreement'' means this Loan Agreement, as may be amended or supplemented from
time to time.
"Loan Amount'' means Eight Hundred Thousand Dollars ($800,000.00), subject to the
provisions of Article III.
"Loan Documents" means this Loan Agreement and the Security Documents delivered to or
required by the City to evidence or secure the Loan as required by this Loan Agreement.
"Mortgage" means the Open -End Leasehold Mortgage on the Project Site in the form of
EXHIBIT A granted by the Borrower to the City as security for the Loan.
COLUMBUS /788384.7 3
"Non -Tax Revenues" means all moneys of the City which are not moneys raised by taxation,
to the extent available for such purposes, including, but not limited to the following: (a) grants from
the United States of America and the State, (b) payments in lieu of taxes now or hereafter
authorized to be used for the purposes by State statute, (c) fines and forfeitures which are deposited
in the City's General Fund, (d) fees deposited in the City's General Fund from properly imposed
licenses and permits, (e) investment earnings on the City's General Fund and which are credited to
the City's General Fund, (f) investment earnings of other funds of the City that are credited to the
City's General Fund, (g) proceeds from the sale of assets which are deposited in the City's General
Fund, (h) rental income which is deposited in the City's General Fund, and (i) gifts and donations.
"Note" means the promissory note, in the form attached hereto as EXHIBIT B , evidencing the
obligations of the Borrower with respect to repayment of the Loan.
"Notice Address" means:
(a) As to the City:
Attention:
(b) As to the Borrower:
(c) As to the Limited Partner:
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
City Manager
Avondale Woods Senior Housing
Limited Partnership
2335 North Bank Drive
Columbus, Ohio 43220
Attention: General Partner
NHT 29 Tax Credit Fund, LLC
2335 North Bank Drive
Columbus, Ohio 43220
Attention: Limited Partner
or such additional or different addresses, notice of which shall be given under Section 6.10
hereof.
"Plans and Specifications" means the plans and specifications or other appropriate
documents, including engineering specifications, utility plans and access to and from public rights
of way describing the Project and its location and orientation on the Project Site prepared by or at
the direction of the Borrower and approved by the City and the Governmental Authorities having
jurisdiction over the review and approval, all in accordance with laws and regulations applicable to
the preparation, review and approval of such plans and specifications.
Project' means the construction of the Avondale Senior Village, consisting of 18
buildings, equaling one hundred (100) units located at 5215 Avery Road, Dublin, Ohio 43016.
The Project will contain a two -tower mid -rise apartment building containing 25 1- bedroom and 25
2- bedroom units, and 25 1- bedroom cottages and 25 2- bedroom cottages. All units will serve
seniors age 55 and older. Eighty (80) of the units will serve low income family households while
the remaining nineteen (19) units will be market rate and one (1) unit will be a manager's unit.
COLUMBUS /788384.7
Project Architect" means an architect chosen by the Borrower and acceptable to the City.
`Project Funds" means those Non -Tax Revenues appropriated by the Legislation in an
amount sufficient and for the purpose of making the Loan to the Borrower.
"Project Site" means the real property described on EXHIBIT A to the Mortgage, which real
property is leased by the Borrower pursuant to the lease dated , 2011 with the
Columbus Metropolitan Housing Authority (the "Lease ") and located at 5215 Avery Road, Dublin,
Ohio 43016.
"Security Documents" means, collectively, the Note, the Mortgage, and the Construction
Completion Guaranty.
"State" means the State of Ohio.
"Title Insurance Policy" means an ALTA Loan Policy of Title Insurance (ALTA form
adopted 06/17/06) issued as of the Closing Date by a title company to the City, in the Loan
Amount, insuring the Mortgage to be a valid lien upon the leasehold interest of the Borrower in
the Project Site, subject only to the rights of the lessor under the Lease, the mortgage of the
Construction/Permanent Loan and those permitted exceptions as shall be approved by the City
and to customary exceptions for pending disbursements of the Loan. The Title Insurance Policy
shall specifically insure against claims and questions related to: (a) mechanic's or materialmen's
liens; (b) the location of improvements being constructed on the Project Site; and (c)
endorsements for such other matters as City may require. In addition, the Title Insurance Policy
must contain the following endorsements: (i) comprehensive, (ii) survey, (iii) access, (iv) survey,
(v) if the Project Site consists of more than one parcel, contiguity and (vi) such other
endorsements as the City reasonably may deem necessary based on the condition of title to the
Property.
1.3. Certain Words and References Any reference herein to the City shall include
those succeeding to the City's functions, duties or responsibilities and the City as a body politic,
pursuant to or by operation of law or lawfully performing such functions. Any reference to a
section or provision of the Constitution of the State, to a section, provision, chapter or title of the
Ohio Revised Code or to a section or provision of federal law shall include any amendments or
successor provisions to such section, provision, chapter or title.
The terms "hereof," "hereby," "herein," "hereto," "hereunder" and similar terms refer to
this Loan Agreement; and the term "heretofore" means before, and the term "hereafter" means
after, the Closing Date. Words of the masculine gender include the feminine and the neuter, and
when the sense so indicates, words of the neuter gender may refer to any gender.
ARTICLE II
DETERMINATIONS AND REPRESENTATIONS
COLUMBUS /788384.7 5
2.1. Determinations of the Citv On the basis of the representations and other
information provided to the City by the Borrower, the City has heretofore made certain
determinations, as set forth in the Legislation, which are hereby confirmed, and the City hereby
determines that the financial assistance to be provided pursuant to this Loan Agreement will
increase the supply of affordable housing in the City and create employment opportunities within
the City, and thereby improve the health, safety and general welfare of the people of the City.
2.2. Representations, Warranties and Covenants of the Borrower The Borrower hereby
represents, warrants and covenants that:
(a) The Borrower is a limited partnership duly organized, validly existing and in
full force and effect under the laws of the State of Ohio, and has all requisite power, limited
partnership or otherwise, to conduct the Borrower's business, as presently conducted, to
own, or hold under lease, the Borrower's assets and properties and is duly qualified to do
business in all other jurisdictions in which the Borrower owns property and will remain so
qualified and in good standing during the term of this Loan Agreement.
(b) The Borrower has full power and authority to execute, deliver and perform
its obligations under the Loan Documents and to enter into and carry out the transactions
contemplated thereby. Such execution, delivery and performance do not, and will not,
violate any provision of law applicable to the Borrower or the Governing Instruments of the
Borrower and do not, and will not, conflict with or result in a default under any agreement
or instrument to which the Borrower is a party or by which the Borrower or any property or
assets of the Borrower is or may be bound. The Loan Documents have, by proper action,
been duly authorized, executed and delivered and all necessary actions have been taken in
order for the Loan Documents, to constitute legal, valid and binding obligations of the
Borrower.
(c) The provision of financial assistance pursuant to the Legislation and this
Loan Agreement induced the Borrower to undertake and/or complete the Project, thereby
creating the opportunity for expansion of the supply of affordable housing in the City and
the improvement of the health, safety and general welfare of the people of the City.
(d) The Project will be completed by the Borrower, and the Project will be
operated and maintained by the Borrower in the City of Dublin, Ohio in such manner as to
conform with all applicable Environmental Laws and zoning, planning, building and other
governmental regulations imposed by any Governmental Authority and as to be consistent
with the purposes of the Act.
(e) The Borrower presently intends that the Project will be used and operated in
a manner consistent with the Legislation, and Borrower does not know of any reason why
the Project will not be so used and operated, at least until the date on which the Loan has
been repaid in full to the City.
COLUMBUS /788384.7 6
(f) There are no actions, suits or proceedings pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or the Project, which, if
adversely determined, would materially impair the ability of the Borrower to perform any
of its obligations under the Loan Documents or adversely affect in any material manner
the financial condition of the Borrower.
(g) The Borrower is not in default under any of the Loan Documents or in the
payment of any indebtedness for borrowed money or under any agreement or instrument
evidencing any such indebtedness, and to the knowledge of the Borrower no event has
occurred which by notice, the passage of time or otherwise would constitute any such event
of default.
(h) The Project will be constructed in accordance with the Plans and
Specifications.
(i) Except for the Lease, the documents relating to the
Construction/Permanent Loan, and the Permitted Encumbrances described on Exhibit B
to the Mortgage, the Borrower has not made any contract or arrangement of any kind
which has given rise to, or the performance of which by the other party thereto would
give rise to (with the exception of possible non - payment of construction costs), a lien or
claim of lien on the Project or other collateral covered by the Loan Documents.
0) To the best of Borrower's knowledge, no representation or warranty made by
the Borrower and contained in the Legislation or any of the Loan Documents, and no
statement contained in any certificate, schedule, list, financial statement or other instrument
furnished to the City, by or on behalf of the Borrower, contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the statements contained
herein or therein not misleading.
(k) All proceeds of the Loan shall be used for the payment of Allowable Costs
relating to the Project. No part of any such proceeds shall be knowingly paid to or retained
by the Borrower or any partner, officer, manager, member, director or employee of the
Borrower as a fee, kickback, or consideration of any type.
ARTICLE HI
LOAN, CONSTRUCTION OF THE PROJECT AND CONDITIONS TO
3.1. Loan and Repayment On the terms and conditions of this Loan Agreement and the
Legislation, the City shall lend to the Borrower Eight Hundred Thousand Dollars ($800,000.00) to
assist in the financing of the Project on the Project Site. The Loan shall be evidenced by this Loan
Agreement and secured by the Loan Documents. Those instruments and documents shall be
executed by the Borrower, and in respect of this Loan Agreement and the Mortgage, by all other
parties, as applicable and delivered by the Borrower to the City on the Closing Date, concurrently
with the execution and delivery of this Loan Agreement and the delivery of all other documents and
the satisfaction of all other closing conditions required by this Loan Agreement. The Loan shall be
COLUMBUS /788384.7 7
disbursed pursuant to the terms of Sections 3.6, 3.7 and 3.8 hereof. The Loan shall be disbursed
only from and only to the extent that on each Disbursement Date funds not heretofore committed
are available to make the Loan from the Project Funds.
The Loan Amount, or such lesser amount as provided in this Agreement or in the Note, is
subject to repayment in accordance with the terms set forth in the Note and upon the occurrence
of any or all of the Events of Default as established in this Agreement. The Borrower agrees to
make all payments required to be made in accordance with this Agreement and under the terms
of the Note if, as and when due.
3.2. Collateral The Borrower's leasehold interest in the premises located at the Project
Site, including all improvements and personal property located therein, shall constitute the
Collateral for the Loan as set forth on EXHIBIT A to the Mortgage.
3.3. Completion of the Project The Borrower (a) has commenced or shall promptly
hereafter commence the Project within 30 days of execution of the Loan Agreement and shall
proceed with due diligence to complete construction of the Project, and (b) shall pay all expenses
incurred in connection with the Project from funds made available therefor in accordance with the
Loan Documents or otherwise, and (c) shall demand, sue for, levy and recover all sums of money
and debts which may be due and payable under the terms of any contract, order, receipt, guaranty,
warranty, writing or instruction in connection with the completion of the Project and will enforce
the terms of any contract agreement, obligation, bond or other performance security with respect
thereto.
The Borrower covenants and agrees to comply, and to cause and require compliance, with
the requirements of Ohio Revised Code 4115, or alternatively, the Davis -Bacon Act of 1931 as
amended, as applicable, relative to prevailing wages with respect to the construction of the Project.
The Borrower shall ensure that all laborers and mechanics employed by the Borrower (or by any
contractors or subcontractors) in the performance of the construction of the Project are paid at the
prevailing rates of wages of laborers and mechanics for the class of work called for with respect to
that work, which wages shall be determined in accordance with the requirements of such act for
determination of prevailing wage rates. Upon request from time to time by the City, the Borrower
shall promptly deliver to the City evidence satisfactory to the City that the Borrower and all
subcontractors have complied with the foregoing requirements.
3.4. Plans and Specifications: Inspections At the City's option and upon written notice
to the Borrower, the City may designate an employee or officer of the City or may retain, at the
City's expense, an architect engineer, appraiser or other consultant for the purpose of approving the
Plans and Specifications (in addition to the approval of the Governmental Authorities with
jurisdiction over the Plans and Specifications), verifying costs and performing inspections of the
Project as the Project progresses or by reviewing any construction contracts and payment or
performance bonds or other forms of assurance of completion of the Project. Such inspections,
reviews or approvals shall not impose any responsibility or liability of any nature upon the City, or
any officers, employees, agents, representatives or designees of the City, without limitation, make or
cause to be made any warranty or representation as to the adequacy or safety of the structures or any
of their component parts or any other physical condition or feature pertaining to the Project
COLUMBUS /788384.7 8
The Borrower may revise the Plans and Specifications from time to time; provided, that no
revision shall be made (a) which would change the purposes of the Project to purposes other than
those approved by the Legislation; and (b) without obtaining, to the extent required by law, the
approval of any applicable Governmental Authority with reviewing authority over such proposed
revisions or amendments. In any event, all revisions to the Plans and Specifications shall be
promptly filed with the City, upon request.
3.5. Borrower Required to Pav Costs of the Project The Borrower shall, irrespective of
the cause of any deficiency (with the exception of a deficiency resulting from the City's wrongful
failure to make a disbursement from the Project Funds on the relevant Disbursement Date),
complete the Project in accordance with the Plans and Specifications and pay all costs of such
completion in full.
3.6. Conditions to Initial Disbursement The Initial Disbursement of the Loan shall be
made on the Closing Date, provided that the City shall have adopted the Legislation and received
and approved the following on or before the Closing Date:
(a) duly executed copies of this Loan Agreement, the Note, the Mortgage, the
Construction Completion Guaranty, and any other documents reasonably requested by the
City;
(b) such certifications or reports, including but not limited to Phase I and
Phase II Environmental Assessments certified by an environmental consultant,
concerning the Project Site, all in such form as may be requested by, and in all respects
acceptable to, the City and upon which the City shall be entitled to rely;
(c) the prevailing wage rates for all laborers and mechanics, the name and
identity of the prevailing wage coordinator and a list of all contractors and subcontractors,
including their names and addresses, certified as true, correct and complete by the contractor
and subcontractors certifying full compliance with the applicable prevailing wage
requirements set forth in Section 3.3 herein;
(d) evidence of the builder's risk, liability, casualty, and such other hazard
insurance required by the Loan Documents, each naming the City as an additional insured or
insured mortgagee;
(e) copies of the Plans and Specifications;
(f) copies of any construction contracts, including general contractor
construction contracts and major subcontractor contracts, for the Project;
(g) certification by the Borrower that any payment and performance bonds or
other forms of assurance of completion of the Project and construction contracts for the
Project are available for review by the City;
COLUMBUS /788384.7
(h) a certified copy of the Borrower's Certificate of Limited Partnership from
the Ohio Secretary of State dated within one hundred twenty (120) days prior to the
initial Disbursement Date, together with a true, correct and complete copy of the Limited
Partnership Agreement;
(i) certified copies of the resolutions of the Borrower or other appropriate
evidence of formal action, duly authorizing execution and delivery of all documents with
respect to the Loan and performance thereunder;
0) copies of all documents related to any loans or grants from other public or
private lenders or agencies that have been made or are being made in connection with the
Project, all certified by the Borrower as being true, correct and complete;
(k) evidence of issuance of the Title Insurance Policy;
(1) evidence of availability and adequacy of utilities to serve the completed
Project;
(m) all licenses and permits required by any Governmental Authority as to work
then underway; and
(n) an opinion of the Borrower's counsel which sets forth substantially the
following:
(i) the Borrower has been duly organized and is validly existing and
in full force and effect as an Ohio limited partnership and has all requisite power
to conduct the Borrower's business and to own, or hold under lease, the
Borrower's property;
(ii) the Borrower has full power and authority to execute and deliver
the Loan Documents;
(iii) the Borrower has duly authorized the taking of any and all actions
necessary to carry out and give effect to the transactions contemplated to be
performed on the part of the Borrower under the Loan Documents;
(iv) to counsel's knowledge after due inquiry of Borrower, there is no
action, temporary restraining order, injunction, suit, proceeding or inquiry before
or by any judicial or administrative court or agency, pending or threatened against
or affecting, or involving the properties, securities or businesses of the Borrower;
and
(vi) the Borrower has obtained any and all requisite governmental
consents, permits, licenses and approvals necessary for it to enter into, execute
and deliver the Loan Documents, and to perform its obligations thereunder.
COLUMBUS /788384.7 10
3.7. Subsequent Disbursements of Loan After the Initial Disbursement, any remaining
portion of the Loan Amount shall be disbursed within ten (10) business days following receipt by
the City of the following items, provided that Borrower is not then in default under the provisions of
any of the Loan Documents:
(a) a completed and executed Form of Disbursement Request in the form of EXHIBIT C
attached hereto;
(b) an updated list of contractors and subcontractors performing work on the Project;
(c) lien waivers covering all work performed and materials incorporated in the Project,
each dated within 45 days of the date of request for disbursement of the Loan;
(d) a copy of the most-recent HUD Application for Insurance of Advance of Mortgage
Proceeds and HUD Construction Progress Schedule, including all attachments; and
(f) such other information as the City reasonably may request with regard to the
construction of the Project
3.8. Completion Date The Project shall be completed by the Completion Date, subject
to Force Majeure, and evidence of completion shall be furnished to the City by a certificate of the
Borrower certifying (a) the date of completion, and (b) that all licenses, permits and approvals,
including a certificate of substantial completion and occupancy, as required by any Governmental
Authority have been procured or obtained in connection with the Project.
3.9. Provision of Security for Mechanic's Liens To the extent any materialman,
contractor, or subcontractor files and records a mechanic's lien against the Project, Borrower
shall, or shall require the appropriate contractor to, provide any security required by Ohio
Revised Code Section 1311.311 to cause that mechanic's lien to be released of record with
respect to the Project within thirty (30) days following the filing thereof subject to the right to
contest as set forth in the Mortgage.
3.10. Indemnification The Borrower shall defend, indemnify and hold the City and any
officials, employees, agents or representatives of the City harmless against any and all liability, loss,
cost, expense, damage, claims, suits, demands or actions arising out of or connected with this Loan
Agreement or any of the other Loan Documents and the documents relating to the disbursement of
the Loan, including all aforementioned costs and expenses, regardless of whether or not the
disbursement of the Loan shall actually occur. This provision shall survive the termination of this
Loan Agreement.
3.11. Environmental hidemnity The Borrower shall be solely responsible for and
hereby indemnifies and agrees to defend and hold harmless the City, its officers, employees, agents
or representatives from and against any loss, damage, cost, expense or liability (other than
consequential damages incurred by the City solely in its capacity as lender, but not otherwise)
directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened
release, discharge, disposal, or presence (whether prior to, during or after the term of the Loan) of
COLUMBUS /788384.7 11
any Hazardous Substance, Hazardous Waste or other material regulated under any Environmental
Law, on, under or about the Project Site (whether by the Borrower or a predecessor in title or any
employees, agents, contractors or subcontractors of the Borrower or any predecessor in title or any
third persons at any time occupying or present on the Project Site), including, without limitation: (a)
consequential damages (except as specifically excluded above); (b) the cost of any required or
necessary repair, cleanup or detoxification of the Project Site, including the soil and ground water
thereof, and the preparation and implementation of any closure, remedial or other required plans; (c)
damage to any wetlands or natural resources; and (d) all reasonable costs and expenses incurred by
the City in connection with clauses (a), (b) and (c) including but not limited to reasonable attorneys'
and consultants' fees. This provision shall survive the termination of this Loan Agreement.
3.12 General Indemnity Borrower shall protect, indemnify and save harmless the City
from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses except as may be
limited by law or judicial order or decision entered in any action brought to recover moneys under
this Section) imposed upon, incurred by or asserted against the City by reason of (a) ownership of
any interest in the Project Site; (b) any accident or injury to or death of persons, or loss of or damage
to property occurring on or about the Project Site or any part thereof or adjacent real property,
sidewalks, curbs, vaults and vault space, if any, streets or ways or with respect to the operation of
Borrower's business including but not limited to Borrower's ownership of or interest in any of the
Project Site or any part thereof, (c) any use, disuse, non -use or condition of the Project Site or any
part thereof or adjacent real property sidewalks, curbs, vaults and vault space, if any, streets or
ways; (d) any failure on the part of Borrower to perform or comply with any of the terms hereof or
of any of the Loan Documents or any other instrument or document executed in connection with the
transactions contemplated herein and therein; (e) any necessity to defend any right, title or interest
conveyed by the Mortgage or to defend any action arising from the creation or perfection of any
such right, title or interest; (f) the performance of any labor or services or the furnishing of any
materials or other property in respect to the Project or any part thereof; (g) any loss of or damage to
property, or injury to or death of any person, that may be occasioned by any cause pertaining to the
provision of any part of the Project; (h) any breach or default arising from any act or failure to act
by Borrower or any of its agents, lessees, contractors, servants, employees or licensees or arising
from any accident, injury or damage caused to any person and occurring with respect to the
operation of Borrower's businesses; or (i) any such claim, action, or proceeding brought thereon. If
any action or proceeding is made or brought against the City in respect of which indemnity may be
sought hereunder, the City shall give notice to Borrower of the action or proceeding and upon such
notice, at the option of City, (1) Borrower shall assume the defense of the action or proceeding with
legal counsel satisfactory to City, (2) Borrower shall assume the defense of the action or proceeding
with the participation of City, at Borrower's expense, or (3) the City shall assume the defense of the
action or proceeding with legal counsel of their choice at Borrower's expense; provided that failure
of City to give such notice shall not relieve Borrower from any of Borrower's obligations under this
Section unless the failure materially prejudices the defense by Borrower of the action or proceeding.
Any amounts payable to City under this Section shall be paid by Mortgagor on demand together
with interest thereon at the per annum rate equal to the Wall Street Journal's prime rate of interest
plus 5% from the date thereof in addition to all other payments to be made by the Mortgagor
pursuant to the Loan Documents and shall be subject to and secured by the Mortgage as additional
COLUMBUS /788384.7 12
indebtedness under the Mortgage. The provisions of this Section shall survive the termination of
this Loan Agreement.
ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS
4.1. Affirmative Covenants of the Borrower Throughout the term of this Loan
Agreement, the Borrower shall:
(a) Taxes and Assessments Pay and discharge promptly, or cause to be paid
and discharged promptly, when due and payable, all taxes, assessments and governmental
charges or levies imposed upon the Borrower, the Borrower's income or any of the
Borrower's property, or upon any part thereof, and pay or otherwise bond off all other
claims of any kind (including claims for labor, materials and supplies) which, if unpaid,
might by law become a lien or charge upon the Project or the Project Site.
(b) Maintain Existence Do or cause to be done all things necessary to
preserve and keep in full force and effect the Borrower's limited partnership existence
and current organization.
(c) Maintain Project Operate the Project as housing for senior citizens age
55 and older with a majority of the Project units available specifically for low income
residents along with providing an adult day care facility and appropriate services, and
maintain and keep the Project facilities in good repair, working order and condition and
from time to time make all repairs, renewals and replacements which, in the opinion of
the Borrower, are necessary and proper so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that nothing in this
subsection shall prevent the Borrower from selling or otherwise disposing of any property
whenever, in the good faith judgment of the Borrower, such property is obsolete, worn
out, without economic value or unnecessary for the conduct of the business of the
Borrower; provided the Borrower shall comply with the Loan Documents, including, but
not limited to, repaying the Loan in full to the City.
(d) Maintain Insurance Keep all of the Borrower's insurable property insured
against loss or damage by fire and other risks, maintain public liability insurance against
claims for personal injury, death, or property damage suffered by others upon, in or about
any premises occupied by the Borrower; and maintain all such worker's compensation or
similar insurance as may be required under the laws of any state or jurisdiction in which the
Borrower may be engaged in business.
(e) Furnish Information To the extent requested, furnish or cause to be
furnished to the City:
(i) Audited Annual Financial Statements Within one hundred eighty
(180) days after the last day of each fiscal year, the Borrower shall submit to the
City, setting forth in comparative form, the corresponding figures for the previous
COLUMBUS /788384.7 13
fiscal year, its annual financial statements including balance sheets and /or changes in
financial position, profit and loss statements, and schedules indicating
sales /revenues, costs of goods, administrative, operating and overhead expenses.
Such financial statements shall be audited or compiled by an independent certified
public accountant, which shall attest to the fact the financial statements were
prepared in accordance with generally accepted accounting principles consistently
applied, and present fairly the Borrower's financial position at the close of such
period and the results of the Borrower's operations for such periods. Not later than
April 1 of each year, the Borrower shall also provide annual cash flow analysis
statements, in form reasonably satisfactory to the Borrower and the City, that
indicate income and expenses in sufficient detail to allow the City to track and audit
the determination of repayment amounts.
(ii) Certificate of Insurance Furnish within five (5) business days after
request by the City, a current certificate of insurance as to all of the Borrower's
insurable property insured against loss or damage by fire and other risks, public
liability insurance against claims for personal injury, death, or property damage
suffered by others upon, in or about any premises occupied by the Borrower, each
naming the City as an additional insured or insured mortgagee. In the event the
Borrower's insurance is to be changed or terminated, the Borrower shall notify the
City thirty (30) days in advance of the change in coverage. The Borrower shall
furnish the City with a new certificate of insurance within thirty (30) days of the
effective date of such coverage.
(iii) Other Information Such other information respecting the business,
properties or the condition or operations, financial or otherwise, of the Borrower as
the City may reasonably request
(f) Deliver Notice Upon learning of any of the following, the Borrower shall
within ten (10) days of such discovery deliver written notice thereof to the City, describing
the same and the steps being taken by the Borrower with respect thereto:
(i) the occurrence of an Event of Default or an event or circumstance
which would constitute an Event of Default, but for the requirement that notice be
given or time elapse or both;
(ii) the occurrence of a default or event of default under the
Construction/Permanent Loan or any other loan the proceeds of which was/will be
used by Borrower to finance construction of the Project; or
(iii) any action, suit or proceeding by or against the Borrower at law or in
equity, or before any governmental instrumentality or agency, instituted or
threatened which, if adversely determined, would materially impair the right or
ability of the Borrower to carry on the business which is contemplated in connection
with the Project or would materially impair the right or ability of the Borrower to
perform the transactions contemplated by the Loan Documents, or would materially
COLUMBUS /788384.7 14
and adversely affect the Borrower's business, operations, properties, assets or
condition.
(g) Inspection Rights Upon reasonable prior written notice, permit any duly
authorized representative of the City, or any other appropriate governmental official, to
examine and make copies of and abstract from the records and books of account and payroll
of the Borrower, visit the Project Site, and discuss the general business affairs of the
Borrower with any of the Borrower's members, managers or officers.
4.2. Negative Covenants of the Borrower Throughout the term of this Loan Agreement,
the Borrower shall not:
(a) Existence Transfer or otherwise dispose of all, or substantially all, of its
assets, consolidate with or merge into any other entity, or permit one or more entities to
consolidate with or merge into the Borrower; provided, however, that the Borrower may,
without violating the agreement contained in this subsection, consolidate with or merge
into another entity, or permit one or more other entities to consolidate with or merge into
the Borrower, or transfer, or otherwise dispose of all, or substantially all, of the assets of
the Borrower and thereafter dissolve, if: (i) the written consent of the City is obtained,
which consent shall not be unreasonably withheld, (ii) the surviving, resulting or
transferee entity, as the case may be, assumes in writing all of the respective obligations
of the Borrower; and (iii) the surviving, resulting or transferee entity, as the case may be,
is duly organized and validly existing as a non - profit entity under the laws of the State
qualified to do business therein, as applicable immediately prior to such disposition,
consolidation or merger, transfer or change of form.
(b) Dissolution Permit or cause any transfer, issuance, retirement or other
transaction, of any interest in the Borrower, including any change in the general partner or
the terms and conditions of the Borrower's Limited Partnership Agreement; provided,
however, that the limited partners of the Borrower shall be permitted to (i) remove the
general partner of the Borrower for cause pursuant to the terms and conditions of the
Limited Partnership Agreement and substitute another general partner in its place, and (ii)
transfer, issue, or retire other interests in the Borrower, all without the City's consent but
with prompt notice to the City following such event. Any such actions shall not be
considered an Event of Default under this Loan Agreement or any other Loan Document.
(c) Agreements Enter into any agreement containing any provision, which
would be violated or breached by the performance of its obligations hereunder or under any
instrument or document delivered or to be delivered or to be delivered by it hereunder or in
connection herewith.
ARTICLE V
EVENTS OF DEFAULT, REMEDIES AND TERMINATION
5.1. Events of Default Each of the following shall be an `Event ofDefaulf':
COLUMBUS /788384.7 15
(a) Failure by the Borrower to construct the Project on the Project Site before
or by the Completion Date.
(b) Failure by the Borrower to make due and punctual payment on the Note
when and as the same becomes due.
(c) The occurrence and continuation of an Event of Default under any of the
other Loan Documents related to a failure in the payment of money or the occurrence and
continuance of an Event of Default under the Loan Documents.
(d) Failure by the Borrower to observe or perform any term, covenant to be
observed or performed by the Borrower under this Loan Agreement (other than as
referred to in paragraphs (a) or (b) of this Section) or any of the other Loan Documents,
and continuation of such failure for thirty (30) days after written notice thereof shall have
been given to the Borrower by the City, or for such longer period as the City may agree
to in writing.
(e) The Borrower shall: (i) admit in writing its inability to pay its debts
generally as such debts become due; (ii) (a) commence a voluntary bankruptcy case
concerning the Borrower or (b) have an involuntary bankruptcy case commenced against
the Borrower and have an order for relief entered in any such case or have the case
remain undismissed and unstayed for ninety (90) days; (iii) commence a proceeding
under any reorganization or other similar law, or have such a proceeding commenced
against the Borrower and an order of insolvency or reorganization entered against the
Borrower or have the proceeding remain undismissed and unstayed for ninety (90) days;
(iv) make an assignment for the benefit of creditors; (v) have a receiver, trustee or
custodian appointed for the Borrower or for the whole or any substantial part of the
property of the Borrower or a receiver, trustee, custodian or any other officer or
representative of the court or creditors, or any court government officer or agency shall
take and hold possession of any substantial part of the property of the Borrower, or (vi) or
any other action for the purpose of effecting any of the foregoing.
(f) Any representation or warranty made by the Borrower, or any of the
officers of the Borrower, herein or in any of the other Loan Documents shall prove to
have been incorrect in any material respect when made.
(g) The initiation of any foreclosure proceedings pursuant to the
Construction/Permanent Loan or any other loan the proceeds of which was/will be used by
Borrower to finance construction of the Project.
(h) If, at any time, it shall be discovered that any material representation,
statement, report or certificate made now or hereafter by the Borrower was when made
intentionally untrue in any material respect.
COLUMBUS /788384.7 16
The City shall provide Borrower's limited partner (the "Limited Partner ") with a copy of
any written notice provided to the Borrower under the terms of the Loan Documents.
Notwithstanding anything in this Loan Agreement or any other Loan Document to the contrary,
in the event of a monetary Event of Default under the Loan Documents, the Limited Partner shall
have a period of 10 days after receipt of written notice from the City, or such longer period of
time as may be set forth in the Loan Documents, to cure the default prior to exercise of remedies
by the City under the Loan Documents. In the event of non - monetary Event of Default occurs
under any Loan Document, the Limited Partner shall have a period of 30 days after receipt of
written notice from the City, or such longer period of time as may be set forth in the Loan
Documents, to cure the default prior to exercise of remedies by the City under the Loan
Documents. Notwithstanding anything to contrary contained in the Loan Documents, the City
hereby agrees that any cure of any Event of Default made or tendered by the Limited Partner
shall be deemed to be a cure by the Borrower and shall be accepted or rejected on the same basis
as if such cure were made or tendered by the Borrower.
The Borrower shall promptly give notice to the City of the existence of an event of Force
Majeure and shall use its best efforts to mitigate or remove the effect thereof, provided, that the
settlement of strikes or other industrial disturbances shall be entirely within the reasonable business
discretion of the Borrower.
5.2. Remedies on Default If an Event of Default shall have occurred and be continuing
beyond the applicable prescribed time periods established in this Loan Agreement, the City, at any
time, may exercise against the Borrower any or all or any combination of the remedies conferred
upon or reserved to the City under this Loan Agreement, the Note, any of the other Loan
Documents or any instrument or document executed in connection therewith, or now or hereafter
existing at law, or in equity or by statute. Subject to the foregoing, any or all of the following
remedies may be exercised:
(a) If the Loan has not been disbursed, termination of any and all of the City's
obligations under this Loan Agreement;
(b) If the Loan has been partially disbursed, termination of any and all of the
City's obligations to make further disbursements under this Loan Agreement;
(c) Declaration that the entire unpaid balance of all indebtedness owed to the
City is immediately due and payable, without notice or demand, such notice or demand
being expressly waived by the Borrower. Interest on the outstanding balance shall accrue at
a rate equal to the Wall Street Journal's prime rate plus 5% starting from the date of the
Event of Default as set forth herein until the lump sum repayment is made to the City.
(b) Exercise all or any rights and remedies as the City may have under this Loan
Agreement, the Note, any of the other Loan Documents, the other Security Documents or
any instrument or document executed in connection therewith;
(d) Inspect, examine and copy the books, records, accounts and financial data of
the Borrower;
COLUMBUS /788384.7 17
(e) Exercise any rights, remedies and powers that the City may have at law or in
equity to collect all amounts then due and thereafter to become due under this Loan
Agreement, the Note, the other Loan Documents, the other Security Documents or any
instrument or document collateral thereto or to enforce the performance and observance of
any other obligation or agreement of the Borrower under the Loan Documents; and
(f) With or without entry upon the Project Site, cause the Project to be
completed and the City for such purpose may use all available materials and equipment
located upon the Project Site and purchase all other necessary materials and employ
contractors and other employees. All sums expended by the City for such purpose shall
constitute disbursements and shall be secured by the Note and any other Loan Documents
and shall forthwith be due and payable by Borrower to the City with interest thereon at the
Default Rate.
5.3. No Remedv Exclusive No remedy conferred upon or reserved to the City by this
Loan Agreement is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Loan Agreement or under each other Loan Document, now or hereafter existing at law, in
equity or by statute. No delay or omission to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient. In order
to entitle the City to exercise any remedy reserved to the City in this Article, it shall not be
necessary to give any notice, other than such notice as may be expressly provided for herein or
required by law.
5.4. Agreement to Pav Expenses and Attomevs' Fees If an Event of Default shall occur
and the City shall incur expenses, including reasonable attorney's fees, in connection with the
enforcement of this Loan Agreement, the Note, any of the other Loan Documents, or the collection
of sums due thereunder, the Borrower shall reimburse the City for the reasonable expenses so
incurred upon demand. If any such reasonable expenses are not so reimbursed, the amount thereof,
together with interest thereon from the date of demand for payment at the rate specified in the Note
for any default under the Note, shall constitute additional indebtedness secured by the Security
Documents, and in any action brought to collect such indebtedness or to enforce the Security
Documents, the City shall be entitled to seek the recovery of such expenses in such action, to the
fullest extent permitted by law.
5.5. No Waiver No failure by the City to insist upon the strict performance by the
Borrower of any provision hereof shall constitute a waiver of the City's right to strict performance,
and no express waiver shall be deemed to apply to any other existing or subsequent right to remedy
the failure by the Borrower to observe or comply with any provision hereof.
ARTICLE VI
COLUMBUS /788384.7 18
MISCELLANEOUS PROVISIONS
6.1. Absence of Relationships The execution and delivery of the Loan Documents, the
receipt by the Borrower of the Loan and the performance by the of its obligations under the Loan
Documents shall not be deemed to create any relationship between the Borrower and the City as a
third party beneficiary, partner, joint venturer, shareholder, agent, principal or otherwise. The City
is in no way lending its aid and credit to the Borrower. The Borrower shall not make any
representation or statement to any party to such effect.
6.2. Amendments and Supplements This Loan Agreement may not be amended or
supplemented except by an instrument in writing executed by the City and the Borrower.
6.3. Binding Effect This Loan Agreement shall inure to the benefit of and shall be
binding in accordance with its terms upon the City, the Borrower and their respective successors
and assigns. The Borrower shall not assign any of its rights or obligations under this Loan
Agreement without the prior written consent of the City.
6.4. Captions The captions and headings in this Loan Agreement shall be solely for
convenience of reference and shall in no way define, limit or describe the scope or intent of any
provisions or Sections of this Loan Agreement.
6.5. Choice of Law This Loan Agreement shall be deemed to be a contract made under
the laws of the State and for all purposes shall be governed by and construed in accordance with the
laws of the State.
6.6. Compliance with Federal, State and Local Laws and Regulations The Borrower
shall comply with all applicable federal laws and regulations thereunder, executive orders and
circulars governing the receipt, expenditure and use of the funds ("Applicable Law') to the extent
required by Applicable Law.
6.7. Extent of Covenants of the City: No Personal Liability All covenants, obligations
and agreements of the City contained in this Loan Agreement shall be effective to the extent
authorized and permitted by applicable law. No such covenant, obligation or agreement shall be
deemed to be a covenant, obligation or agreement of any present or future City official or employee,
in other than such City official's or employee's official capacity.
6.8. Execution Counterparts This Loan Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which shall constitute but one
and the same instrument.
6.9. Incorporation of Exhibits Each Exhibit and Schedule (and all replacements,
amendments and modifications thereto as are mutually agreed to by the Parties) attached to this
Agreement are incorporated by reference as if fully stated herein.
6.10. Notices All notices, certificates, requests or other communications hereunder shall
be in writing and shall be deemed to be sufficiently given when mailed by registered or certified
COLUMBUS /788384.7 19
mail, postage prepaid, and addressed to the appropriate Notice Addresses. The Borrower, the
Limited Partner, or the City may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates, requests or communications shall be sent.
6.11. Severability If any provision of this Loan Agreement, or any covenant, obligation
or agreement contained herein is determined by a court of competent jurisdiction to be invalid or
unenforceable, such determination shall not affect any other provision, covenant, obligation or
agreement, each of which shall be construed and enforced as if such invalid or unenforceable
provision were not contained herein. Such invalidity or unenforceability shall not affect any valid
and enforceable application thereof, and each such provision, covenant, obligation or agreement
shall be deemed to be effective, operative made, entered into or taken in the manner and to the full
extent permitted by law.
6.12. Prohibition of Conflict of Interest
(a) The Borrower does not have an identity of interest with any supplier,
contractor, architect, subcontractor, laborer, or materialman performing work or services or
supplying materials in connection with the Project.
(b) No individual, who is an employee, officer, agent, consultant of the City, an
elected public official or appointed City public official, who exercises or has exercised any
functions or responsibilities with respect to any activities that are connected with this Project
or who is in a position to participate in a decision - making process or to gain inside
information with regard to the Project, may obtain a personal or financial interest or benefit
from the Project.
(c) Also, the aforementioned individuals shall not have an interest in any
contract, subcontract, or agreement with respect thereto, or in the proceeds thereunder, either
for themselves or those with whom they have family or business ties. The above restrictions
shall apply to all activities comprising the Project, and shall cover any such interest or
benefit during such person's tenure or at any time during the twelve months following the
termination of such person's tenure.
6.13. Term of Loan Agreement This Loan Agreement shall be and shall remain in full
force and effect from the date of its delivery until the earliest of (a) the termination of this Loan
Agreement pursuant to Section 5.2(a) hereof or (b) such time as the Loan Amount shall have been
fully repaid and all other sums payable by the Borrower under this Loan Agreement, the Security
Documents, the Note and the other Loan Documents shall have been paid.
6.14. Compliance with HUD Requirements In the event of any conflict between (i) the
Loan Documents (collectively, the "City Loan Documents ") and (ii) any of the documents
evidencing the Construction/Permanent Loan documents, Section 231 of the National Housing Act
and/or any applicable HUD rule, regulation or requirement (collectively the "HUD Documents and
Requirements "), then the HUD Documents and Requirements shall be controlling in all respects;
provided, however, that in no event shall the HUD Documents and Requirements impose or be
COLUMBUS /788384.7 20
deemed to impose any obligation upon the City other than as explicitly set forth in the City Loan
Documents.
6.15. Limitation of Liability. The liability of Borrower, and any persons, entities or
partners comprising Borrower or its partners under the Note and hereunder is and shall be limited
to the interest of Borrower and all of its partners in the Project and in any additional property
conveyed by Borrower to the City as additional security for the Note, it being specifically
understood and agreed that Borrower, and the person, entities, or partners comprising Borrower
and its partners or officers shall have no personal liability with respect to the Note, and that the
City shall in no event seek to enforce personal liability against Borrower or any of the persons,
entities or partners comprising Borrower or its partners or officers, nor shall the City look to any
capital account of any partner of Borrower. The City shall look only to the Project for the
payment of such indebtedness; provided, however, that nothing herein contained shall be deemed
to be a release or impairment of the indebtedness evidenced by the Note or of the security
therefor intended by the Mortgage, or shall preclude the City from selling the Project as provided
in the Mortgage, by judicial foreclosure or by any other proceedings which the City is lawfully
entitled to use, in the event of a default hereunder. Notwithstanding the foregoing, the sponsor
of the Borrower, National Church Residences, an Ohio nonprofit corporation, shall guarantee to
the City the construction and completion of the Project pursuant to the Construction Completion
Guaranty.
(Balance of this page intentionally left blank - signatures on following page)
COLUMBUS /788384.7 21
IN WITNESS WHEREOF, this Loan Agreement has been executed and delivered all as of the date first
hereinabove written.
CITY OF DUBLIN, OHIO
C
Name: Marsha I. Grigsbv
Title: City Manager
Approved as to Form:
C
Name: Stephen J. Smith
Title: Director of Law
BORROWER:
AVONDALE WOODS SENIOR HOUSING
LIMITED PARTNERSHIP
By: National Church Residences of Avondale
Woods Senior Housing Inc.,
its General Partner
C
Joseph R. Kasberg, Vice President -
Secretary /Treasurer
COLUMBUS /788384.7 22
LIST OF EXHIBITS
EXHIBIT A Open -End Mortgage
EXHIBIT B Promissory Note
EXHIBIT C Form of Disbursement Request
COLUMBUS /788384.7 -23-
EXHIBIT A
OPEN -END MORTGAGE
[see attached]
COLUMBUS /788384.7 A -1
EXHIBIT B
PROMISSORY NOTE
[see attached]
COLUMBUS /788384.7 B -1
EXHIBIT C
FORM OF DISBURSEMENT REQUEST
STATEMENT NO. REQUESTING DISBURSEMENT OF PROJECT FUNDS
PURSUANT TO SECTION 3.7 OF THE LOAN AGREEMENT DATED AS OF JUNE
2011 BETWEEN THE CITY OF DUBLIN, OHIO AND AVONDALE WOODS SENIOR
HOUSING LIMITED PARTNERSHIP
Pursuant to Section 3.7 of the Loan Agreement (the Agreement') between the City of
Dublin, Ohio (the "City ") and Avondale Woods Senior Housing Limited Partnership (the
"Borrower "), the undersigned hereby requests and authorizes the City, as depository of the
Project Funds appropriated by the City's Ordinance No. 2011- passed May , 2011 and
defined in the Agreement, to pay to the Borrower out of the Project Funds the sum requested by
this Disbursement Request.
In connection with the foregoing request and authorization, the undersigned hereby
certifies that:
1. I have read the Agreement and definitions relating thereto and have reviewed
appropriate records and documents of the Borrower relating to the matters covered by this
Disbursement Request.
2. The Project has not been materially injured or damaged by fire or other casualty
in a manner which, if not repaired or replaced, would materially impair the ability of the
Borrower to meet its obligations under the Agreement.
3. The Borrower is in material compliance with all provisions and requirements of
the Agreement.
4. No Event of Default set forth in Article V of the Agreement, and no event which
but for the lapse of time or the giving of notice or both would be such an Event of Default, has
occurred and is continuing.
5. Attached hereto as Schedule A are conditional lien waivers from all material
suppliers, contractors and subcontractors who have provided services or materials to the Project
in excess of Five Hundred Dollars ($500) to be paid from the payment resulting from the current
Disbursement Request and unconditional lien waivers from any material suppliers, contractors
and subcontractors who have provided services or materials to the Project in excess of Five
Hundred Dollars ($500) and who were paid pursuant to any previous Disbursement Request and
the Borrower acknowledges its obligation to require, or require provision of, certain security
pursuant to Section 3.9 of the Agreement in the event any mechanic's liens are filed in
connection with the Project.
COLUMBUS /788384.7 C -1
In connection with the foregoing request and authorization, the undersigned hereby
further certifies that (check one as applicable):
[ ] the Borrower has completed twenty -five (25 %) percent of the Project, as certified
by the Project Architect, and hereby requests disbursement of the "Second Draw"
in the amount of $200,000.
[ ] having already satisfied the qualifications and received the amount associated
with the Second Draw, the Borrower has completed fifty (50 %) percent of the
Project, as certified by the Project Architect, and hereby requests disbursement of
the "Third Draw" in the amount of $150,000.
[ ] having already satisfied the qualifications and received the amount associated
with the Third Draw, the Borrower has completed one hundred (100 %) percent of
the Project, as certified by the Certificate of Substantial Completion and
Occupancy, and hereby requests disbursement of the "Final Draw" in the amount
of $100,000.
This statement constitutes the approval of the Borrower of each disbursement hereby
requested and authorized.
This day of 1 201
AVONDALE WOODS SENIOR HOUSING
LIMITED PARTNERSHIP
By:
Name:
Title:
COLUMBUS /788384.7 C -2
OPEN -END LEASEHOLD MORTGAGE
This Open -End Leasehold Mortgage ( "Mortgage ") is made this day of June, 2011,
between AVONDALE WOODS SENIOR HOUSING LIMITED PARTNERSHIP (the `Mortgagor ") whose
address is 2335 North Bank Drive, Columbus, Ohio 43220, in favor of the CITY OF DUBLIN,
OHIO, whose address is 5200 Emerald Parkway, Dublin, Ohio 43017 (hereinafter called
"Lender ").
WHEREAS, Mortgagor is indebted to Lender in the principal sum of Eight Hundred
Thousand Dollars ($800,000.00) pursuant to a Loan Agreement entered into between the
Mortgagor and the Lender of even date herewith (the "Loan Agreement"), which indebtedness is
evidenced by a Promissory Note dated June 2011 (the "Note" together with the Loan
Agreement and the other documents entered into in connection therewith, the "Loan
Documents ");
WHEREAS, Mortgagor is obligated to comply with certain performance obligations
pursuant to the Loan Agreement.
To secure to Lender (a) the repayment of the indebtedness evidenced by the Note, the
payment of all other sums, with interest thereon, advanced in accordance herewith to protect the
security of this Mortgage, and the performance of the covenants and agreements of Mortgagor
herein contained, and (b) the repayment of any future advances, with interest thereon, made to
Mortgagor which Lender is obligated to make, and (c) Mortgagor's performance obligations
under the Loan Agreement, Mortgagor does hereby mortgage, grant and convey its leasehold
interest to Lender in the property located in the City of Dublin, County of Franklin and State of
Ohio as described on EXHIBIT A attached hereto and made a part hereof. Said leasehold interest
and all improvements on the premises more commonly known as 5215 Avery Road, Dublin,
Ohio are hereinafter referred to from time to time as the "Property ").
The Mortgagor represents and covenants:
1. That at the execution and delivery of this Mortgage, Mortgagor has a leasehold
interest in the Property pursuant to a lease dated , 2011 with the Columbus
Metropolitan Housing Authority (the "Lease "), has good and marketable title and right to
encumber the same in manner and form as above written, that the same is free from all
encumbrances whatsoever except for easements, covenants, conditions, restrictions, limitations
and liens of record on the date hereof, and that Mortgagor will warrant and defend said Property,
as above conveyed, with the above- mentioned appurtenances to the said Lender, its successors
and assigns, forever, against all lawful claims or demands whatsoever.
2. That the lien, pledge and security interest of this Mortgage is a good and valid
lien, pledge and security interest on all of the Property.
COLUMBUS /788378.6
3. To promptly pay when due the principal of and interest on the indebtedness
evidenced by the Note, and the principal of and interest on any future advances secured by this
Mortgage. Privilege is reserved to prepay at any time, without premium or fee, the entire
indebtedness or any amount thereof.
4. To pay when due all ground rents (if any), taxes, water rates, public or private
utility charges, and other governmental or municipal charges, fines, impositions, assessments, of
any kind levied or imposed against the Property, and, upon request therefor, to promptly deliver
the official receipts thereof to Lender or its designated agent.
5. To keep the Property fully insured for the benefit of Lender by insurance
companies acceptable to Lender or its designated agent, to deposit copies of the policies of
insurance with Lender or its designated agent, and to name Lender as an additional insured on
the face of said insurance policy. Receipts for payment of such insurance premiums are to be
delivered not less than annually upon request by Lender.
6. Subject to the rights of the lessor under the Lease and all lenders with prior
interests in the Property, to assign to Lender rights and proceeds of any award or claim for
damages, direct or consequential, in connection with any condemnation or other taking of the
Property, or any part thereof, or for conveyance in lieu of condemnation. Any available proceeds
shall be applied to the sums secured by this Mortgage, with the excess, if any, paid to Mortgagor.
In the event of a partial taking of the Property, subject to the rights of such lessor and any senior
lenders, there shall be applied to the sums secured by this Mortgage such proportions of the
proceeds as are equal to that proportion which the amount of the sums secured by this Mortgage
immediately prior to the date of the taking bears to the fair market value of the Property
immediately before taking, with the balance of the proceeds paid to Mortgagor.
Unless Lender and Mortgagor otherwise agree in writing, any such applications of
proceeds to principal shall not extend or postpone the due date of the monthly installments
referred to in the recitals above, or change the amount of such installments.
7. To keep the Property in as good order and condition as they are now, together
with any improvements thereon, reasonable wear and tear excepted. Mortgagor will not commit
or permit waste and shall make all necessary or appropriate repairs, replacements and renewals
thereof, interior, exterior, structural and non - structural, ordinary and extraordinary, foreseen and
unforeseen. Subject to the rights of all lenders with prior interests in the Property, the Mortgagor
shall not do, or permit to be done, any act or thing which might materially impair the value or
usefulness of the Property or any part thereof and shall not permit any unlawful occupation,
business or trade involving the Property to be conducted. Lender may make or cause to be made
reasonable entries upon and inspections of the Property, provided that Lender shall give
Mortgagor notice prior to any such inspections.
8. Mortgagor shall, at Mortgagor's own expense, from time to time as requested by
Lender, take such actions and execute and deliver to Lender all such instruments, supplements,
-2-
COLUMBUS /788378.6
further assurances and security or other agreements as may be required or requested by Lender in
order to perfect and continue Lender's lien, pledge and security interest in the Property hereunder.
Mortgagor hereby irrevocably appoints Lender as Mortgagor's agent and attomey -in -fact to sign all
such instruments, supplements, further assurances and security and other agreements in the event
that Mortgagor shall fail to do so upon request by Lender.
9. Except as otherwise expressly permitted by the Loan Agreement and this Mortgage,
Mortgagor shall not directly or indirectly sell, convey, assign, transfer or otherwise dispose of its
leasehold interest in the Project facilities or any part thereof or interest therein without the prior
written consent of Lender, which consent shall not be unreasonably withheld (provided that the
withholding of Lender's consent in the event the transferee does not intend to operate the Project as
affordable senior housing shall not be deemed to be unreasonable). Other than the Permitted
Encumbrances set forth in Exhibit B hereto, Mortgagor shall not directly or indirectly create or
permit to remain, and will promptly discharge, any mortgage, lien, encumbrance or charge on,
pledge of, security interest in or conditional sale or other title retention agreement with respect to the
Property or any part thereof or the interest of Lender therein or any revenues, income or profit or
other sums arising from the Property or any part thereof. Notwithstanding the foregoing, no consent
by Lender shall be necessary in connection with the transfer of limited partnership interests in the
Mortgagor. Moreover, notwithstanding anything to the contrary in this Mortgage or the other Loan
Documents, the Mortgagor's limited partner (the "Limited Partner ") may remove the general partner
of the Mortgagor for cause pursuant to the terms and conditions of the First Amended and Restated
Agreement of Limited Partnership of the Mortgagor (as may be amended and restated) and
substitute another general partner in its place (and the exercise of such remedies shall not constitute
a default hereunder).
10. Mortgagor shall not suffer or permit any mechanics' or other liens to be filed or to
exist against the Property or any payments paid or payable under the Loan Documents, by reason of
work, labor, services or materials supplied or claimed to have been supplied to, for or in connection
with the Property or to Mortgagor, or anyone holding the Property or any part thereof through or
under Mortgagor. If any such lien shall at any time be filed, Mortgagor shall, within thirty (30) days
after notice of the filing thereof but subject to the right to contest as herein set forth, cause the same
to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or
otherwise. Notwithstanding the foregoing, Mortgagor shall have the right, at Mortgagor's expense
and after written notice to Lender, by appropriate proceeding timely instituted and diligently
prosecuted, to contest in good faith the validity or the amount of any such lien. If, however, Lender
shall notify Mortgagor that, in the opinion of independent counsel, by nonpayment of any such
items the lien, pledge or security interest created by this Mortgage as to any part of the Property will
be materially affected or the Property or any part thereof will be subject to imminent loss or
forfeiture, Mortgagor shall promptly cause such lien to be bonded off or discharged of record, as
herein provided.
11. Upon any Event of Default (as defined in the Loan Agreement), Lender has the
following remedies:
-3-
COLUMBUS /788378.6
a. Foreclosure proceedings may be instituted at the option of Lender, and the
fees and charges of Lender's attorneys shall be a further lien and charge upon the
Property under this Mortgage, and all such expenses shall become additional
indebtedness secured by this Mortgage and shall be allowed in any decree foreclosing
this Mortgage.
b. Exercise of all or any rights and remedies as Lender may have under the
Loan Documents; and of any rights, remedies and powers Lender may have at law or in
equity.
The City shall provide Mortgagor's limited partner (the "Limited Partner ") with a copy of
any written notice provided to the Mortgagor under the terms of the Loan Documents. In the
event of a monetary event of default under the Loan Documents, the Limited Partner shall have a
period of 10 days after receipt of such notice, or such longer period of time as may be set forth in
the Loan Documents, to cure the default prior to exercise of remedies by the Lender under the
Loan Documents. In the event of non - monetary event of default occurs under any Loan
Document, the Limited Partner shall have a period of 30 days after receipt of such notice, or such
longer period of time as may be set forth in the Loan Documents, to cure the default prior to
exercise of remedies by the Lender under the Loan Documents. Notwithstanding anything to
contrary contained in the Loan Documents, the Lender hereby agrees that any cure of any default
made or tendered by the Limited Partner shall be deemed to be a cure by the Mortgagor and shall
be accepted or rejected on the same basis as if such cure were made or tendered by the
Mortgagor.
12. Upon failure of Mortgagor to pay any ground rents, taxes, water rates, public or
private utilities, other governmental charges, insurances policy premiums, prior liens, and
charges thereon, which Mortgagor has agreed to pay under paragraphs 4 and 5 above, Lender
may, at its option, pay the same, and any amount so paid by Lender shall, at Lender's option, be
either immediately payable by Mortgagor to Lender or be added to the principal debt named
herein and bear interest at the rate charged by the prior lienholder, payable monthly, from the
date of such payment, and shall be secured by this Mortgage; provided, however, that such
actions shall not alter or diminish Mortgagor's rights of notice and opportunity to cure prior to an
Event of Default as described in Section 11 herein.
13. Subject to the rights of the lessor under the Lease and all lenders with prior
interests in the Property, Lender shall have the right, at its option, to collect the rental income
and proceeds of the Property, or to appoint a receiver to take possession of and manage and
control the premises.
14. Any forbearance by the Lender in exercising any right or remedy hereunder, or
otherwise provided by applicable law, shall not be a waiver of or preclude the exercise of any
such right or remedy. All remedies provided in this Mortgage are distinct and cumulative to any
other right or remedy under this Mortgage or afforded by law or equity, and may be exercised
cumulatively, concurrently, independently or successively.
-4-
COLUMBUS /788378.6
15. Except to the extent caused by any willful misconduct of the Lender, Mortgagor
shall protect, indemnify and save harmless Lender from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses except as may be limited by law or judicial order or
decision entered in any action brought to recover moneys under this Section) imposed upon,
incurred by or asserted against Lender by reason of (a) ownership of any interest in the Property; (b)
any accident or injury to or death of persons, or loss of or damage to property occurring on or about
the Property or any part thereof or adjacent real property, sidewalks, curbs, vaults and vault space, if
any, streets or ways or with respect to the operation of Mortgagor's business including but not
limited to Mortgagor's leasehold interest in any of the Property or any part thereof; (c) any use,
disuse, non -use or condition of the Property or any part thereof or adjacent real property sidewalks,
curbs, vaults and vault space, if any, streets or ways; (d) any failure on the part of Mortgagor to
perform or comply with any of the terms hereof or of any of the Loan Documents or any other
instrument or document executed in connection with the transactions contemplated herein and
therein; (e) any necessity to defend any right, title or interest conveyed by this Mortgage or to
defend any action arising from the creation or perfection of any such right, title or interest; (f) the
performance of any labor or services or the furnishing of any materials or other property in respect
to the Property or any part thereof, (g) any loss of or damage to property, or injury to or death of any
person, that may be occasioned by any negligent act or omission by Mortgagor in connection with
its leasing of the Property; (h) any breach or default arising from any negligent act or failure to act
by Mortgagor or any of its agents, lessees, contractors, servants, employees or licensees or arising
from any accident, injury or damage caused to any person and occurring with respect to the
operation of Mortgagor's business including Mortgagor's leasehold interest in any of the Property;
or (i) any such claim, action, or proceeding brought thereon. If any action or proceeding is made or
brought against the Lender in respect of which indemnity may be sought hereunder, Lender shall
give notice to Mortgagor of the action or proceeding and upon such notice, at the option of Lender,
(1) Mortgagor shall assume the defense of the action or proceeding with legal counsel satisfactory to
Lender, (2) Mortgagor shall assume the defense of the action or proceeding with the participation of
Lender, at Mortgagor's expense, or (3) Lender shall assume the defense of the action or proceeding
with legal counsel satisfactory to Lender, at Mortgagor's expense; provided that failure of Lender to
give such notice shall not relieve Mortgagor from any of Mortgagor's obligations under this Section
unless the failure prejudices the defense by Mortgagor of the action or proceeding. Any amounts
payable to Lender under this Section shall be paid by Mortgagor on demand together with interest
thereon at the per annum rate equal to the Wall Street Journal's prime rate of interest plus 5% from
the date thereof in addition to all other payments to be made by the Mortgagor pursuant to the Loan
Documents and shall be subject to and secured by this Mortgage as additional indebtedness under
this Mortgage. The obligations of Mortgagor under this Section shall survive any defeasance of this
Mortgage. The indemnification provided by this Section to Lender includes officers, employees,
agents and representatives of the Lender.
16. In case of any damage to or destruction of the Property or any part thereof, there
shall be no abatement or reduction of any payment payable by the Mortgagor under the Note and
-5-
COLUMBUS /788378.6
Mortgagor shall promptly give written notice thereof to the Lender generally describing the nature
and extent of such damage or destruction.
17. The covenants contained herein shall bind, and the benefits and advantages shall
inure to, the respective heirs, executors, successors, assigns and agents of the parties hereto.
Whenever used, the singular number shall include the plural, and the use of any gender shall
include all genders.
18. Upon payment of all sums secured by this Mortgage, Lender shall discharge this
Mortgage, without charge to Mortgagor. Mortgagor shall pay all costs of recordation, if any.
19. This Mortgage is an open -end mortgage made pursuant to Section 5301.232 of the
Ohio Revised Code, and shall secure the payment of all loan advances made pursuant to the
Loan Documents, regardless of the time such advances are made. The maximum amount of
unpaid loan indebtedness, exclusive of interest thereon, which may be outstanding at any time
and secured hereby shall be the maximum principal amount stated on the first page of this
Mortgage.
20. As permitted and provided in Section 5301.233 of the Ohio Revised Code, this
Mortgage shall also secure unpaid balances of advances made with respect to the Property for the
payment of taxes, assessments, insurance premiums, or costs incurred for the protection of the
Property and other costs which Lender is authorized by this Mortgage to pay on Mortgagor's
behalf, plus interest thereon, regardless of the time when such advances are made.
21. Without limitation to the other terms and provisions of this Mortgage, Lender
may, at its option, do all things provided or permitted to be done by a mortgagee under Section
1311.14 of the Ohio Revised Code and any amendment thereto, for the protection of Lender's
interest in the Property.
22. Any notices required by this Mortgage shall be in writing and shall be transmitted
by hand - delivery, overnight carrier or certified mail, return receipt requested, at the party's
address first set forth above, as modified from time to time. In the event of any default under the
Loan Agreement, the Mortgage, or the Note, copies of any default notice shall be sent to the
Limited Partner, as follows:
Avondale Woods Senior Housing Limited Partnership
2335 North Bank Drive
Columbus, Ohio 43220
Attention: General Partner
With a copy to:
NHT 29 Tax Credit Fund, LLC
2335 North Bank Drive
-6-
COLUMBUS /788378.6
Columbus, Ohio 43220
Attention: Limited Partner
With a copy to:
John C. Beeler, Esq.
Porter Wright Morris & Arthur LLP
41 South High Street
Columbus, Ohio 43215
To the extent cure is permitted under the Loan Agreement, the Mortgage, the Note, or
any other Loan Documents evidencing loans to the Mortgagor, the Lender agrees that, by
acceptance of this instrument, it shall accept a cure of any breach or default tendered by the
Limited Partner provided such cure is otherwise timely and complete.
23. The Loan Agreement ,Note and other Loan Documents hereby incorporated into
this Mortgage by reference as if fully restated herein and made a part hereof, shall constitute the
entire agreement among the parties and supersedes any prior discussions, negotiations, or
agreements among the parties respective to the subject matter. No additions or other changes to
this Mortgage shall be made or binding unless in writing and signed by each party to this
Mortgage, and attached hereto.
24. This document shall be governed by and interpreted in accordance with all
applicable federal laws and all applicable laws of the State of Ohio. Any action, controversy, or
claim arising out of or relating to this Mortgage or breach thereof shall be settled in a court of
competent jurisdiction in Franklin County, Ohio.
25. The indebtedness secured by this Mortgage is a non - recourse obligation. In the
event of a default hereunder or under the Note or any other Loan Documents, the sole remedy of
the Lender hereunder shall be foreclosure of this Mortgage, and the Lender hereunder shall not
be entitled to a deficiency judgment hereunder. The liability of Mortgagor, and any persons,
entities or partners comprising Mortgagor or its partners under the Note, the other Loan
Documents and hereunder is and shall be limited to the interest of Mortgagor and all of its
partners in the Property and in any additional property conveyed by Mortgagor to Lender as
additional security for the Note, it being specifically understood and agreed that Mortgagor, and
the person, entities, or partners comprising Mortgagor and its partners or officers shall have no
personal liability with respect to the Note or any other Loan Documents, and that Lender shall in
no event seek to enforce personal liability against Mortgagor or any of the persons, entities or
partners comprising Mortgagor or its partners or officers, nor shall the Lender look to any capital
account of any partner of Mortgagor. Lender shall look only to said Property for the payment of
such indebtedness; provided, however, that nothing herein contained shall be deemed to be a
release or impairment of the indebtedness evidenced by the Note or any other Loan Documents
or of the security therefor intended by the Mortgage, or shall preclude Lender from selling the
COLUMBUS /788378.6
Property as provided in this Mortgage, by judicial foreclosure or by any other proceedings which
Lender is lawfully entitled to use, in the Event of a Default hereunder. Notwithstanding the
foregoing, the sponsor of the Mortgagor, National Church Residences, an Ohio nonprofit
corporation, shall guarantee to the Lender the construction and completion of the Project
pursuant to a Construction Completion Guaranty.
26. Compliance with HUD Requirements. In the event of any conflict between (i) the
Loan Documents (collectively, the "City Loan Documents ") and (ii) any of the documents
evidencing the Construction/Permanent Loan (as defined in the Loan Agreement) documents,
Section 231 of the National Housing Act and/or any applicable HUD rule, regulation or requirement
(collectively the "HUD Documents and Requirements "), then the HUD Documents and
Requirements shall be controlling in all respects; provided, however, that in no event shall the HUD
Documents and Requirements impose or be deemed to impose any obligation upon the City other
than as explicitly set forth in the City Loan Documents.
COLUMBUS /788378.6
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date set forth
hereinabove.
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
Mortgagor:
AVONDALE WOODS SENIOR
HOUSING LIMITED PARTNERSHIP,
an Ohio limited partnership
By: National Church Residences of
Avondale Woods Senior Housing Inc.,
its General Partner
By:
Joseph R. Kasberg, Vice President -
Secretary /Treasurer
On this day of , 2011, before me, a Notary Public in and for said County
and State, personally appeared Joseph R. Kasberg, Vice President- Secretary /Treasurer of
National Church Residences of Avondale Woods Senior Housing Inc., an Ohio non - profit
corporation, the general partner of Avondale Woods Senior Housing Limited Partnership, an
Ohio limited partnership, who executed the foregoing instrument and acknowledged that the
aforesaid did examine and read the same and did sign the foregoing instrument, and that the
same is the free act and deed of the foregoing individual and the free and authorized act and deed
of the partnership, as the case may be.
In witness whereof, I have hereunto set my hand and official seal.
(Notarial Seal)
Notary Public
This instrument was prepared by: Christopher J. Franzmann, Esq.
Squire, Sanders & Dempsey (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
COLUMBUS /788378.6
9-
PROMISSORY NOTE
INTEREST RATE MATURITY DATE DATED:
3.00% per year April 1 of the Year Described Herein June 2011
LENDER: City of Dublin, Ohio, c/o Director of Finance
PRINCIPAL AMOUNT: EIGHT HUNDRED THOUSAND DOLLARS ($800,000)
Avondale Woods Senior Housing Limited Partnership (the `Borrower "), a limited
partnership duly organized and in good standing under the laws of the State of Ohio,
promises to pay to the Lender named above, or assigns, the Principal Amount stated above
and accrued interest in forty (40) annual installments on April 1 of each year (the "Loan
Payment Dates "), commencing on April 1st of the first calendar year following the
calendar year in which the Project (as defined in the Agreement described below) is
placed into service (as evidenced by issuance of the Project certificate of occupancy) and
on each April 1 thereafter (each date a "Repayment Date ") until the Maturity Date which
shall be the date which is forty (40) years following the initial Repayment Date. On each
Repayment Date, the Borrower shall pay an amount equal to twenty -five percent (25 %)
of the annual cash flow (as defined in the Borrower's First Amended and Restated
Agreement of Limited Partnership, which definition shall not be modified without the
consent of Lender) of the Project for the preceding fiscal year remaining following
payment of certain cash flow priority items as set forth on Exhibit A attached hereto (the
"Cash Flow "), provided that the entire outstanding principal balance, together with all
accrued interest and other costs and expenses payable pursuant to the Loan Documents,
shall be due and payable in full on the Maturity Date.
Each payment shall be applied first to any accrued interest on the Note and then to
the principal balance of the Note. This Note bears interest on the unpaid Principal Amount
at the Interest Rate (computed on the basis of twelve 30 -day months and 360 -day years)
from the initial Repayment Date and shall continue to accrue until the date of payment in
full. All accrued but unpaid interest, charges, and fees due under this Note shall be deemed
converted and added to the outstanding principal hereunder. The Borrower may make
complete or partial prepayment of principal or accrued interest without charge or penalty.
This Note has been executed and delivered by the Borrower to the Lender
pursuant to the Loan Agreement (the Agreement") of even date herewith, between the City
of Dublin, Ohio (the "Lender ") and the Borrower. Under the Agreement, the Lender has
loaned the Borrower $800,000 to assist in the financing of the Project (as defined in the
Agreement), and the Borrower has agreed to repay such loan by making payments (the
"Loan Payments ") at the times and in the amounts set forth in this Note.
All Loan Payments shall be payable in lawful money of the United States of
America and shall be made to the Lender at the office of the Director of Finance of the
Lender, 5200 Emerald Parkway, Dublin, OH 43017.
B -1
COLUMBUS/788393.6
The obligation of the Borrower to make the payments required hereunder shall
be absolute and unconditional and the Borrower shall make such payments without
abatement, diminution or deduction regardless of any cause or circumstances whatsoever
including, without limitation, any defense, set -off, recoupment or counterclaim which the
Borrower may have or assert against the Lender or any other person.
This Note and the Borrower's obligations under the Agreement are secured by
the Loan Documents, as defined in the Agreement, from the Borrower to the Lender.
Whenever an Event of Default (as defined in the Agreement) under the Loan
Documents shall have occurred and, as a result thereof, the Loan Payments shall have been
declared to be immediately due and payable pursuant to the Agreement, the unpaid principal
amount of and accrued interest on this Note shall also be due and payable on the date on
which the Loan Payments have been declared due and payable. Upon the occurrence of an
Event of Default, interest on the outstanding balance due under this Note shall accrue at the
Default Rate (as defined in the Agreement) starting from the date of the Event of Default as
set forth herein until the lump sum repayment is made to the City.
The limited partner of the Borrower (the "Limited Partner ") shall be permitted to
remove the general partner of the Borrower for cause pursuant to the terms and conditions of
the First Amended and Restated Agreement of Limited Partnership of the Borrower (as may
be amended and restated) and substitute another general partner in its place (and the exercise
of such remedies shall not constitute an Event of Default).
The liability of Borrower, and any persons, entities or partners comprising
Borrower or its partners under the Note is and shall be limited to the interest of Borrower
and all of its partners in the Project and in any additional property conveyed by Borrower
to Lender as additional security for this Note, it being specifically understood and agreed
that Borrower, and the person, entities, or partners comprising Borrower and its partners
or officers shall have no personal liability with respect to the Note, and that Lender shall
in no event seek to enforce personal liability against Borrower or any of the persons,
entities or partners comprising Borrower or its partners or officers, nor shall the Lender
look to any capital account of any partner of Borrower. Lender shall look only to the
Project for the payment of such indebtedness; provided, however, that nothing herein
contained shall be deemed to be a release or impairment of the indebtedness evidenced by
the Note or of the security therefor intended by the Mortgage, or shall preclude Lender
from selling the Project as provided in the Mortgage, by judicial foreclosure or by any
other proceedings which Lender is lawfully entitled to use, in the event of a default
hereunder. Notwithstanding the foregoing, the sponsor of the Borrower, National Church
Residences, an Ohio nonprofit corporation, shall guarantee to the Lender the construction
and completion of the Project pursuant to a Construction Completion Guaranty.
The Lender shall provide the Limited Partner with a copy of any written
notice provided to the Borrower under the terms of the Loan Documents.
Notwithstanding anything in this Note or any other Loan Document (as defined in the
Agreement) to the contrary, in the event of a monetary Event of Default under the Loan
B -2
COLUMBUS/788393.6
Documents, the Limited Partner shall have a period of 10 days after receipt of written
notice from Lender, or such longer period of time as may be set forth in the Loan
Documents, to cure the default prior to exercise of remedies by the Lender under the
Loan Documents. In the event of non - monetary Event of Default occurs under any Loan
Document, the Limited Partner shall have a period of 30 days after receipt of written
notice from Lender, or such longer period of time as may be set forth in the Loan
Documents, to cure the default prior to exercise of remedies by the Lender under the
Loan Documents. Notwithstanding anything to contrary contained in the Loan
Documents, the Lender hereby agrees that any cure of any Event of Default made or
tendered by the Limited Partner shall be deemed to be a cure by the Borrower and shall
be accepted or rejected on the same basis as if such cure were made or tendered by the
Borrower.
This Note shall be construed and enforceable in accordance with the laws of
the State of Ohio.
In the event of any conflict between (i) the Loan Documents (collectively, the
"City Loan Documents ") and (ii) any of the documents evidencing the
Construction/Permanent Loan (as defined in the Agreement) documents, Section 231 of the
National Housing Act and/or any applicable HUD rule, regulation or requirement
(collectively the "HUD Documents and Requirements "), then the HUD Documents and
Requirements shall be controlling in all respects; provided, however, that in no event shall
the HUD Documents and Requirements impose or be deemed to impose any obligation
upon the City other than as explicitly set forth in the City Loan Documents. The Loan shall
be subordinate in all respects to the Construction/Permanent Loan.
BORROWER HEREBY AUTHORIZES ANY ATTORNEY -AT -LAW TO APPEAR IN
ANY COURT OF RECORD IN THE STATE OF OHIO OR IN ANY OTHER STATE
OR TERRITORY OF THE UNITED STATES AT ANY TIME AFTER THIS NOTE
BECOMES DUE, WHETHER BY ACCELERATION OR OTHERWISE, TO WAIVE
THE ISSUING AND SERVICE OF PROCESS, AND TO CONFESS JUDGMENT
AGAINST BORROWER IN FAVOR OF LENDER FOR THE AMOUNT DUE
TOGETHER WITH INTEREST, EXPENSES, THE COSTS OF SUIT AND COUNSEL
FEES, AND THEREUPON TO RELEASE AND WAIVE ALL ERRORS, RIGHTS OF
APPEAL AND STAYS OF EXECUTION. SUCH AUTHORITY SHALL NOT BE
EXHAUSTED BY ONE EXERCISE, BUT JUDGMENT MAY BE CONFESSED
FROM TIME TO TIME AS ANY SUMS AND /OR COSTS, EXPENSES OR
COUNSEL FEES SHALL BE DUE, BY FILING AN ORIGINAL OR A
PHOTOSTATIC COPY OF THIS NOTE. BORROWER WAIVES ANY RIGHT TO
MOVE ANY COURT FOR AN ORDER HAVING ANY ATTORNEY OR FIRM
REPRESENTING LENDER REMOVED OR DISQUALIFIED AS COUNSEL FOR
LENDER AS A RESULT OF SUCH ATTORNEY OR FIRM CONFESSING
JUDGMENT AGAINST BORROWER. BORROWER HEREBY EXPRESSLY
WAIVES ANY CONFLICTS OF INTEREST THAT MAY NOW OR HEREAFTER
EXIST AS A RESULT OF ANY ATTORNEY REPRESENTING LENDER
CONFESSING JUDGMENT AGAINST BORROWER AND EXPRESSLY
B -3
COLUMBUS/788393.6
CONSENTS TO ANY ATTORNEY REPRESENTING LENDER OR TO ANY OTHER
ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER IN
ACCORDANCE WITH THIS SECTION. BORROWER HEREBY FURTHER
CONSENTS AND AGREES THAT LENDER MAY PAY ANY ATTORNEY
CONFESSING JUDGMENT AGAINST BORROWER IN ACCORDANCE WITH
THIS SECTION, A REASONABLE FEE FOR CONFESSING JUDGMENT AND
THAT ANY FEES SO PAID MAY BE INCLUDED IN THE AMOUNT OF SUCH
JUDGMENT.
[No further text on this page; signature page follows.]
B -4
COLUMBUS/788393.6
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its
name by its duly authorized officers as of June , 2011.
AVONDALE WOODS SENIOR
HOUSING LIMITED
PARTNERSHIP,
an Ohio limited partnership
By: National Church Residences of
Avondale Woods Senior Housing Inc.,
its General Partner
C
Joseph R. Kasberg,
Vice President - Secretary /Treasurer
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR
RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY
ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A
COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE
ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
B -5
COLUMBUS/788393.6
EXHIBIT A
Cash Flow Pavments
First, to the Limited Partner, an amount equal to the Credit Deficiency;
Second, to the Limited Partner, an amount sufficient to pay federal income taxes on
taxable income allocated to the Limited Partner for such Fiscal Year by the Partnership,
assuming the highest marginal tax rates applicable to corporations;
Third, to fund the Operating Reserve should the balance remaining in that reserve be less
than the amount listed in Exhibit A -2 of the Partnership Agreement as the Operating Reserve
Amount;
Fourth, to pay the OHFA HDAP loan in accordance with its loan documents;
Fifth, to pay Deferred Development Fee, if any;
Sixth, to pay the Investor Services Fee Loan, as set forth in Exhibit E to the Partnership
Agreement until paid in full;
Seventh, to pay the Partnership Administration Fee in accordance with Partnership
Administration Fee Agreement attached as Exhibit E to the Partnership Agreement;
Eighth, to pay the deferred property management fee, if any, resulting from a deferment
of such fee pursuant to section 5.16(c)(2) of the Partnership Agreement;
Ninth, to pay the Franklin County HOME loan.
Capitalized terms not otherwise defined in this Exhibit shall have the same meanings as set forth
in the Partnership Agreement.
COLUMBUS/788393.6
GUARANTY OF CONSTRUCTION COMPLETION
June ,2011
1. The undersigned, NATIONAL CHURCH RESIDENCES, an Ohio nonprofit
corporation (the "Guarantor "), hereby executes this Guaranty of Construction Completion (the
"Guaranty ") for the benefit of the City of Dublin, Ohio (the "Lender ") to induce the Lender to
grant a loan to, extend credit to, or forbear from demanding immediate payment of a loan to
Avondale Woods Senior Housing Limited Partnership (the "Borrower "), in the principal
amount of $800,000.00 (the "Loan ") in accordance with the terms of that certain loan agreement
entered into by and between the Lender and Borrower of even date herewith (the "Loan
Agreement "). Capitalized terms used herein but not otherwise defined shall have the same
meanings as set forth in the Loan Agreement. The Loan is evidenced by a promissory note of even
date herewith executed and delivered by Borrower to Lender (the "Note ") and secured by an Open -
End Mortgage of even date herewith (the "Mortgage ") with respect to certain real and personal
property owned by Borrower and described in the Mortgage (the "Property ").
2. In order to induce Lender to make the Loan to Borrower, Guarantor hereby
guarantees to Lender the prompt and complete performance of Borrower's obligations in the Loan
Agreement to:
(a) complete, and pay the cost of completing, the due and punctual construction of the
Project in accordance with the Loan Agreement and the Plans and Specifications for the Project
(including any changes in those Plans and Specifications that may be made from time to time in
accordance with the terms of the Loan Agreement), free and clear of all defects and liens and in
compliance with all applicable governmental requirements; and
(b) pay all expenses, charges, costs, and fees of or relating to the Work, including all
permitting fees, licensing fees, amounts payable under all construction contracts and all
subcontracts, and amounts payable to all architects, engineers, and other consultants engaged in
connection with the Work.
The foregoing obligations of Borrower are hereinafter referred to as the "Guarantied Obligations."
For purposes herein, completion of the Work and satisfaction of the Guarantied Obligations shall
be deemed to occur when Lender has approved the Work as fully and finally completed in
accordance with the Plans and Specifications and received a copy of the final certificate of
occupancy for all Improvements issued by the appropriate governmental authority and full and
final lien waivers from all contractors, subcontractors and materialmen involved in the constructing
and equipping of the Project.
3. Guarantor's obligations hereunder shall continue in full force and effect
notwithstanding any foreclosure action prosecuted by Lender against the Property or any deed in
lieu of foreclosure with respect thereto accepted by Lender from Borrower. No set -off or
counterclaim which Guarantor may have against Lender shall limit or in any manner affect the
obligations of the Guarantor hereunder. So long as this Guaranty remains in effect, the Guarantor
i-
COLUMBUS /788590.9
agrees that it shall have no right of subrogation, reimbursement or indemnity whatsoever with
respect to the debts, liabilities and obligations of Borrower covered by the Loan Documents or this
Guaranty, or to any monies due and unpaid thereon or any collateral security for the same. The
Guarantor further waives all present and future debts and obligations owed by Borrower to
Guarantor in favor of Lender, all such debts and obligations being subordinate as to lien, time of
payment, and in all other respects to the debts and obligations of Borrower to Lender in connection
with the Loan.
4. Guarantor waives notice of the acceptance of this Guaranty. Guarantor further
waives presentment, demand, protest, notice of protest, notice of dishonor, notice of the occurrence
of default under the Note, the Mortgage, or any of the other Loan Documents, or of any change in
Borrower's financial condition. Guarantor agrees that no extension of time, whether one or more,
nor any other indulgence granted by Lender to Borrower or to the Guarantor, and no omission or
delay on Lender's part in exercising any right against, or in taking any action to collect from or
pursue Lender's remedies against Borrower or Guarantor will release, discharge, or modify the
duties of Guarantor, and Guarantor hereby waives all suretyship defenses. Guarantor agrees that
Lender may, without notice to or further consent from Guarantor, release any collateral, security or
other guarantees, now held or hereafter acquired, or substitute other collateral, security or other
guarantees, and no such action will release, discharge, or modify the duties of the Guarantor
hereunder. Guarantor further agrees that Lender will not be required to pursue or exhaust any of its
rights or remedies against Borrower with respect to payment of the Loan, or to pursue or exhaust
any of its rights or remedies with respect to any collateral, security or other guarantees given to
secure the Loan, or to take any action of any sort, prior to demanding payment from or pursuing its
remedies against Guarantor. Guarantor further agrees to deliver to Lender, within one hundred
twenty (120) days after the end of each fiscal year of Guarantor, detailed financial statements in
form and content reasonably acceptable to Lender.
5. If the Note is assigned by Lender, this Guaranty will inure to the benefit of such
assignee, and to the benefit of any subsequent assignee, to the extent of the assignment(s), provided
that no assignment will operate to relieve Guarantor from any duty to Lender hereunder with
respect to any unassigned portion thereof.
6. Time is of the essence in all respects hereunder. This Guaranty shall remain in full
force and effect until such time as the Guarantied Obligations have been satisfied. This Guaranty
constitutes the entire agreement and understanding and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect hereto. If any clause or
provision of this Guaranty is held illegal, invalid or unenforceable by any court, such holding shall
not invalidate the entire Guaranty; rather, the Guaranty shall be construed and enforced as if such
illegal, invalid or unenforceable clause or provision had not been contained herein. As used herein,
the singular shall include the plural and the use of any gender shall include all genders, as the
context requires. This Guaranty shall continue in full force and effect until the completion of the
Work or, if there is an Event of Default before the completion of the Work and Lender elects to
complete the Work or cause a third party to complete the Work, this Guaranty shall not terminate
until completion of the Work and payment in full of all amounts, if any, owed under this Guaranty;
or, if there is an Event of Default before completion of the Work and Lender elects to demand
z-
COLUMBUS/788540.4
payment in full of all amounts owed under the Note and other Loan Documents, this Guaranty shall
not terminate until such payment is received by Lender.
Guarantor warrants and represents to Lender that:
(a) Guarantor is an affiliate of the general partner of Borrower;
(b) Guarantor will directly and materially benefit from Lender's making of
the Loan to Borrower;
(c) no consent of any other Person, including any creditors of Guarantor,
and no license, permit, approval, or authorization of, exemption by, notice or report to, or
registration, filing, or declaration with any governmental authority is required by Guarantor
in connection with this Guaranty or its execution, delivery, performance, validity, or
enforceability and all obligations required under it;
(d) this Guaranty has been duly executed and delivered by Guarantor and
constitutes the legally valid and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms;
(e) the execution and delivery of this Guaranty do not violate or constitute a
breach of any agreement or instrument to which Guarantor is a party, any order, judgment,
award, or decree of any court, arbitrator, or governmental authority binding on Guarantor,
or any applicable laws;
(f) there is no litigation, claim, action, or proceeding pending or, to the best
knowledge of Guarantor, threatened against Guarantor that would materially adversely
affect the financial condition of Guarantor or Guarantor's ability to fulfill the Guarantied
Obligations;
(g) Guarantor has and will continue to have access to all information
concerning the Loan and the transactions contemplated by the Loan Agreement, the value,
nature, and status of Borrower's assets, Borrower's financial status, and its ability to pay
the Indebtedness and perform its other obligations to Lender;
(h) Guarantor has reviewed and approved copies of the Loan Documents
and Plans and Specifications and knows and understands the remedies that Lender may
exercise if there is a default or Event of Default under the Loan Documents and understands
all of the items and conditions of those Loan Documents, including the terms of payment
and the conditions under which the maturity of the Loan may be accelerated. In executing
and delivering this Guaranty, Guarantor has relied on its own review of the Loan
Documents and not on any representation or statement of Lender or any other person;
(i) as long as this Guaranty is in force, Guarantor shall keep informed about
Borrower's financial condition and its performance of its obligations under the Loan
3-
COLUMBUS /788590.9
Documents; and
0) as of the date of execution and delivery of this Guaranty: the fair
saleable value of Guarantor's assets exceeds the amount of its liabilities; Guarantor is
meeting its current liabilities as they mature; no court or administrative proceedings or
undischarged judgments are pending against Guarantor; no federal or state tax liens have
been filed or threatened against Guarantor; and Guarantor is not in default or claimed
default under any agreement for borrowed money; no bankruptcy, receivership, or
insolvency proceedings are pending or contemplated by Guarantor or, to Guarantor's
knowledge, threatened against Guarantor; and Guarantor shall immediately give Lender
written notice of any material adverse changes in Guarantor's financial condition (including
any litigation commenced, tax liens filed, defaults claimed under any of Guarantor's debts
for borrowed money or bankruptcy proceedings relating to Guarantor commenced by
Guarantor or any third party).
8. If any dispute or litigation regarding the enforcement or validity of this Guaranty
occurs, Guarantor shall be obligated to pay all charges, costs, and expenses (including reasonable
attorneys' fees) actually incurred by Lender, whether or not any action or proceeding is
commenced concerning that dispute and whether or not that litigation is prosecuted to judgment.
Such amounts shall be in addition to any other amounts that Guarantor may owe and shall be
payable on demand. If Lender has paid any such amounts and is seeking reimbursement, the
amount paid by Lender shall bear interest at the Default Rate (as set forth in the Note) from the date
of default. Upon the occurrence of an Event of Default, subject to the rights of the holders of
senior indebtedness on the Project (collectively, "Senior Lender "), Lender may exercise any
remedy it has under the Loan Documents, this Guaranty, or law. In addition to all of Lender's
other rights under this Guaranty and under the Loan Documents, subject to the rights of Senior
Lender, Lender shall have the right, exercisable in its sole discretion, either to (i) require Guarantor
to complete the Work, (ii) complete the Work itself, or (iii) cause the Work to be completed by a
third party.
9. If Lender elects to complete the Work itself or to cause athird party to complete the
Work, Guarantor shall pay Lender immediately upon demand an amount equal to the difference
between the actual costs incurred by Lender in completing the Work (collectively, the "Project
Costs "), including all licensing fees, permitting fees, amounts payable under the Construction
Contract or other general construction contract and all subcontracts, and amounts payable to any
architect, engineer, or other consultant engaged in connection with the completion of the Work,
minus the amount of the Loan proceeds that is undisbursed as of the date of the Event of Default
that are not subject to a set -aside obligation, stop notice, or other legal impediment to disbursement
(the "Undisbursed Loan ") and amounts (if any) disbursed by Senior Lender to Lender for Project
Costs after the Event of Default or applied by Senior Lender to Project Costs incurred after the
Event of Default.
10. For purposes herein, the term "Project Costs" shall not include any amounts
allocated in Borrower's construction budget for interest, operating deficits, leasing commissions,
marketing expenses, tenant concessions, real estate taxes and insurance, finders' fees, legal fees not
4-
COLUMBUS /788590.9
directly related to completion of the Work, or indirect cost contingencies not directly related to
completion of the Work.
11. If Lender elects to require Guarantor to complete the Work, upon the full
performance of all of the Guarantied Obligations, Lender shall pay Guarantor an amount equal to
the cost actually and reasonably incurred by Guarantor in completing construction in accordance
with the terms of this Guaranty, but in no event shall that payment exceed the Undisbursed Loan.
12. Guarantor grants Lender a security interest in any personal property of Borrower in
which Guarantor hereafter acquires any right, title, or interest. Guarantor agrees that such security
interest shall be additional security for the Guarantied Obligations and shall be superior to any right
of Guarantor in that personal property until all Guarantied Obligations have been fully satisfied. If
an Event of Default occurs, in addition to whatever other remedies Lender may have as a secured
party, Lender may (without notice to Guarantor) liquidate any such asset and apply the proceeds
plus any cash it may have been holding to the damages incurred by Lender due to the default,
including any costs of completing the Work. For purposes of further securing this Guaranty,
Guarantor also grants Lender a security interest in any collateral or security that Guarantor has
given Lender in connection with any other obligation owed to Lender.
(Intentionally Left Blank)
5-
COLUMBUS /788590.9
GUARANTOR ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT
MAY ARISE WITH RESPECT TO THE COVENANTS AND CONDITIONS OF THIS
GUARANTY, THE COMMERCIAL NATURE OF THE LOAN WOULD MAKE ANY SUCH
DISPUTE UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, GUARANTOR HEREBY
WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY
ARISE RELATING TO THIS GUARANTY, THE LOAN, OR THE LOAN DOCUMENTS.
This Guaranty was executed in Franklin County, Ohio.
NATIONAL CHURCH RE'
an Ohio nonprofit corporation
C
Joseph R. Kasberg
Senior Vice President/ CFO
Error! Unknown document propertyname.Error! Unknown do cum ant propertyn am e.Error! Unknown document property name.
6-
COLUMBUS /788590.9
DUBLIN CITY COUNCIL STUDY SESSION
Monday, June 9, 2008
Council Chambers
Minutes of Meeting
Mayor Chinnici - Zuercher called the meeting to order at 7:00 p.m.
Present Mayor Chinnici - Zuercher, Vice Mayor Boring, Mr. Reiner, Mr. Gerber, Mr. Keenan,
Ms. Salay and Mr. Lecklider.
Staff members: Ms. Brautigam, Ms. Grigsby, Mr. Thurman, Ms. Ott, Ms. Puskarcik, Mr.
Langworthy, Ms. Husak, Mr. Phillabaum and Ms. Swisher.
Guests Tom Slemmer, President /CEO, National Church Residences
Michelle Norris, Senior VP /Chief Development Officer, National Church Residences
Dennis Guest, Executive Director, Columbus Metropolitan Housing Authority
National Church Residences - Presentation re Senior Housing
Mayor Chinnici - Zuercher noted that representatives from National Church Residences were
present to educate Council about their organization and its function, and about its interest in
another facility for Dublin.
Tom Slemmer, President /CEO, noted that he is accompanied tonight by Michelle Norris,
Senior VP /Chief Development Officer of National Church Residences. He and Dennis Guest,
Executive Director, Columbus Metropolitan Housing Authority, met recently to discuss the
need for affordable housing in the growing sections of Franklin county, including Dublin.
They then met with Ms. Brautigam about this matter. Ms. Norris oversees acquisitions and
new development and has a technical staff who works on the financing end. They will
provide information tonight about how affordable housing works, how it can be accomplished,
why it is complicated, and the role City government would play if they desire affordable
housing in their community.
Mr. Slemmer provided background on National Church Residences. They were founded in
1961 by four Presbyterian churches. Boulevard Presbyterian Church in Columbus was a
prime sponsor and Rev. John Glen, a Presbyterian minister, founded the organization around
senior housing and affordable senior housing. The first development in 1961 was Bristol
Village in Waverly, Ohio. It includes 400 houses, an 82 -unit senior housing apartment
building, assisted living, home health care, hospice, nursing, and therapy programs. From
that time, they have branched into affordable housing for seniors, and they now operate
assisted living, nursing homes, and a health care division in Ohio. They have 1,700 units of
housing in Franklin County, and also have housing for the homeless. He showed slides of
the Traditions at Mill Run — a 75 -unit, free standing assisted living facility. They have both the
knowledge of senior health care as well as affordable housing development. They believe
there is a real need in Dublin and the growing part of Franklin County for affordable housing
with senior services.
They have a 24- member Board of Trustees with membership from business leaders in
Franklin County. They are long -term owners and operators of housing and plan to stay in the
community for many years. They are in 28 states, with approximately 22,000 units of
housing, much of which they have developed.
Dublin City Council Study Session
Monday, June 9, 2008
Page 2
Michelle Norris, Senior VP, Chief Development Officer stated that National Church
Residences is already in Dublin. They have the Abbey Church Village property of 160 units
of family housing, which was financed with the Low Income Housing Tax Credit program and
is located across from Don Scott Field on Sawmill Road. It is 10 years old and has been a
great project for the families who reside there.
Mr. Slemmer pointed out it is located in the City of Columbus, Dublin School District
Ms. Norris noted that they also developed Stoneridge Court, which is financed with a HUD
grant program —the HUD 202 program. HUD provides the funds to construct the building
and a rent subsidy for the residents. This program is restricted to ages 62 and over, and is
income restricted to $30,000 per person to live there. It has been open for three years and
has 100 percent occupancy. Abbey Church has a 98 percent occupancy rate. They are
looking at the possibility of a site adjacent to Stoneridge Court for expansion and talking to
the Planning & Zoning Commission about it.
Ms. Norris noted that senior staff and the Dublin leadership team have also been looking at
the concerning trend of a growing number of seniors coming into the Dublin and the
Columbus market in the years ahead. She shared projections for growth in Dublin reflecting
a significant increase in the 55 plus population. One of the rules of their financing programs
is that a senior only property can be created for people 55 and over. Within Dublin, the
projection shows growth in the age 55 and older households to 4,964 households by 2012.
Their program looks at people with incomes of less than $40,000 per year; therefore, this
would be 1,800 of the 4,964 households or 12.7 percent. Thus, there will be a significant
need in Dublin for senior housing that is affordable.
Mr. Gerber asked if the income includes social security income.
Ms. Norris responded affirmatively.
Ms. Norris noted that the primary market area (PMA) of the Dublin area was also considered
— not just Dublin residents, but those who touch the contiguous area to Dublin. Within the
PMA, significant growth is projected for the senior population. Projections are that 8,700 age
55 and over households will have incomes less than $40,000 by 2012. Therefore, within the
Dublin PMA, there will be significant increase in the number of people eligible for this type of
housing.
Mr. Lecklider asked if these numbers are based upon zip code or corporate boundaries of
Dublin.
Ms. Norris responded that these numbers are provided by a market group that uses census
information.
Mr. Slemmer added that the Danter group put together these numbers, but he believes they
are more restrictive than zip codes and are related to census tract areas within Dublin city
limits. He has the source document from the Danter Company.
Mayor Chinnici - Zuercher noted that the PMA information does include areas outside of
Dublin, as she has indicated.
Dublin City Council Study Session
Monday, June 9, 2008
Page 3
Mr. Slemmer stated that they were surprised with the number of low to moderate income
seniors within the census tracts within the City of Dublin. They identified 1,800 such
households.
Ms. Norris described properties in the area where low income housing tax credits were used
for funding. They highlighted the Ravines at Central College on Sunbury Road. This project
was built over two phases — one with 75 units and one with 30 units. It is a beautiful area on
a ravine overlooking Hoover Dam for age 55 and older residents. They were also able to
serve another lower income group in cooperation with Columbus Metropolitan Housing
Authority and included project based Section 8. Therefore, there is rent subsidy on some of
the units. There are one and two - bedroom units, and they are for people of low income — 30
percent of the area median Income — all the way up to market. Some of the units have no
income restrictions, only age qualification. They are able to serve all levels of income of
seniors at this property. CMHA actually bought some of the land, which helped with the
financing structure.
Mr. Keenan asked what the full market rent is for these units.
Ms. Norris responded that a two - bedroom unit rents for $900 full market; a one - bedroom unit
rents for $750 full market.
Mr. Keenan asked what the largest subsidy would be under this scenario.
Mr. Slemmer noted that people pay 30 percent of their income, so the largest subsidy for a
one - bedroom unit would be about $200.
Ms. Norris stated that when they design their buildings, they include a lot of community space
to increase the socialization for seniors. They do not have common dining, but do have
common areas for gatherings.
Ms. Norris noted that the second property on the tour was the Hilltop Senior Village in the City
of Columbus. This was developed in collaboration with the City of Columbus. Columbus
owns the land and leases it back to National Church Residences. They built this project in
two phases. Both phases used the tax credit program and both properties have a range of
incomes from 35 percent of area median income up to the market. This creates a great
diversity of residents. This property has mid -rise apartments and townhouses as well. They
were able to work with the civic association in the Hilltop Area. They helped with private
fundraising to build a congregate center where Meals on Wheels serves the community at
large. There is a visiting nurse through Life Alliance. This serves seniors in the building as
well as those in the Hilltop area. There are always activities at lunchtime in the center,
including entertainment.
Mr. Reiner asked how much land is required for the types of high rise and single detached
units shown.
Ms. Norris responded that this property includes 15 acres for 200 units.
Mr. Slemmer commented that the Abbey Church development, which is family townhouses, is
multi - family zoning of 12 units per acre.
Ms. Norris added that Stoneridge has 47 units on 2.5 acres.
Dublin City Council Study Session
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Mr. Slemmer noted that parking requirements are much less for seniors, averaging .5 cars
per person. As seniors age in place, they have fewer cars.
Mr. Reiner inquired if this is affiliated with a particular church.
Mr. Slemmer responded that the organization was founded by four Presbyterian churches
that continue to be involved in the membership and board structure. There is no official
affiliation with the Presbyterian Church, however.
Mr. Keenan inquired if this is a not - for - profit organization.
Mr. Slemmer responded that it is a 501C3 not - for - profit organization. Due to the recent
changes in laws, most of the federal housing being developed today is in a limited
partnership or with National Church Residences as a general partner. The limited
partnership is the investors, and the investors typically are large financial institutions. The
waiting list for the Stoneridge Court properties is 10 individuals. Typically, the demand far
exceeds the availability. There is virtually no competition with the private sector, as the
supply of subsidies is limited. 99% of the residents are women. The reason is that when
their spouse dies, they lose half their pension. They conducted a demographic study of 1800
people who worked all their lives and retired at 65. By age 80, 15 years into their pension
program, many of the residents have lost their spouses and they are below the poverty rate.
The programs under which National Church Residences operates have both rent and income
restrictions. The Stoneridge Court facility is restricted to individuals below 50% of the median
income, around $25,000 /year. The tax credit program restricts the federal tax credits to
people below 60% of the poverty level. Each state has come up with a separate set of
application standards. Although meeting the restrictions is not easy, the tax credits will pay
for about half of the development cost.
Mr. Keenan inquired how the status is monitored annually — through the tax return?
Mr. Slemmer responded that these programs are administered by the IRS. If compliance with
the income requirements does not occur, the investor will not receive the tax credits they paid
for. National Church Residences has a compliance office to ensure compliance occurs.
Achieving Affordable Housing
There are three ways to make housing affordable: (1) the old way -- subsidize the rent; (2)
reduce operating costs, such as through utility subsidies or tax abatement; (3) reduce the
capital costs — which is used by the tax credit program. An explanation of those options
follows.
(1) Subsidize the rent. This can occur through two sources. With Section 8, the resident
only has to pay 1/3 of their income. With the NCR 2,500 units of senior housing, the
average resident income is approximately $10,000 /annual, so their rent is not much
more than $200 /month. Housing authorities also provide subsidized rent. They have
a project in West Virginia that is subsidized by a foundation.
(2) Reduce operating costs. In some states, such as California, special programs keep
the taxes out of the operating costs for affordable housing.
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(3) Reduce the capital costs. Some techniques are: tax credits; grants; low interest loans
from the city, county, state, or housing authority; TIFs; land lease, where the entity
purchases the land and NCR leases the land; and special fundraising.
Mr. Keenan inquired if the land leases are at market rate.
Mr. Slemmer responded that sometimes they are; sometimes the amount is reduced. It
depends on the community. At the Hilltop facility, resident incomes are very low. To make
the rents low enough for the residents, the City of Columbus leases the land much below the
market rate. In Westerville, however, the appraised value is used in determining the rate.
With most affordable housing communities today, a combination of the above three methods
is used. That is the reason having partners is essential. To determine the rents that will be
charged, the operating costs and taxes must be evaluated along with the incomes.
Mr. Keenan inquired if these are straight tax credits — dollar for dollar.
Mr. Slemmer responded that it is dollar for dollar. Right now, tax credits are in turmoil
because they are priced on the financial markets. Financial institutes buy these to protect
themselves against loss, and they are buying them at about 85 cents on the dollar. The pro
forma on this potential project is 82 cents, although last year it was 90 cents.
Ms. Norris noted that last year, two of the biggest investors were Fannie Mae and Freddy
Mac, but this year they have completely pulled out of the market because they don't have any
income that they need tax credits against.
Mr. Slemmer stated that tax credits are also competitive. It is necessary to apply for them
with the Ohio Housing Finance Agency, but this year, less competition is anticipated. For
agencies with a long track record, such as NCR, it will be easier to obtain credits.
Capital Budgeting
On a $10M construction project with 100 units; land cost at $10,000 /unit; $50,000 for
professional fees and construction financing, syndication and start -up (investors require
reserves). Therefore, a large financial institution must evaluate the stability of the financing.
This is a $14M development. Doing this project with conventional financing, rents would be
high. To bring the rent down to $849, the Columbus Metropolitan Housing Authority is used,
and NCR must come up with a lot of free capital, or artificial capital, which must be in place to
make the financing work. Tax credits on a $14M development would be approximately $8M.
There would be a conventional loan of $8.5M, two "soft loans" from the Ohio Finance Agency,
and a local match from the County Commissioners. Those are stable funding sources.
Then, the Columbus Metropolitan Authority will be asked to make a special contribution,
structured as an investment in this project. This totals $13M, leaving a gap of $1 M. To make
the project work, that gap must be filled. There are different ways to do so — better land
costs, better construction costs, additional grant money, and a better tax credit investment. It
is typical to have a gap, and their development team is working on ways to fill it. They believe
a project in Dublin is feasible. The City staff who visited the Hilltop facility did state that it
would be necessary to have a more attractive building fagade and landscaping in Dublin.
The Woodlands, Texas project is one of the nicest tax credit projects he has seen. The
Dublin City Council Study Session
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municipality came up with the money to make that happen. The difficulty is that each
$10,000 cost added per unit becomes an additional $75 added to the monthly rent.
In summary, what makes affordable housing work is the money — applying for tax credits; soft
funds from stable sources, primarily local and state government; large contributions to make
a project work in Dublin; and a gap solution. The big issue for Dublin is that of "political will."
Affordable housing does not come without controversy. Obtaining zoning for land is always
problematic. There is not one piece of undeveloped, zoned multi - family land in Dublin or
Columbus. The one way cities control development is by not zoning multifamily, so that every
piece of multifamily development requires a rezoning. Adequate density is necessary to
make the project work. Tax abatement is also necessary. All the states are abating
affordable housing, as it is a good way to get dollars out of the capital structure for the
residents. That is pretty easy, as senior residents have no impact on police or school needs.
In Ohio, it is necessary to have a special abatement.
Mr. Keenan inquired about the Traditions at Mill Run facility.
Mr. Slemmer responded that the Traditions at Mill Run is a health care facility. In Ohio, health
care facilities that are not for profit are tax exempt.
Ms. Norris noted that the Stoneridge property is currently taxed at the full value. The
difference is HUD is the lender and they set the rent subsidies. They will set the rents at
whatever level it takes to pay the taxes. With a tax credit program, where financing occurs
on real debt, it doesn't equate. On the other project, HUD can be asked to pay the
differential.
Dennis Guest, Columbus Metropolitan Authority stated that they have partnered with NCR
on 4 -5 other developments of different types. They are technically a state agency, but they
receive all their funds from the federal government or resident rent. They do not receive any
state or local funds. They own 3,400 apartment units, predominantly in Columbus, but
throughout Franklin County. They have another 200 units that are not subsidized units.
They subsidize about 11,500 privately owned units in Franklin County. If this project is
approved, NCR will be responsible for running the project. Columbus Metropolitan will be the
financiers but remain in the background. Results of a recent market study indicate that the
need for senior housing throughout Franklin County will increase in the future. Their board
has determined that for the next five years, any housing developments they will be involved
with will relate to senior citizens or supportive housing.
Mr. Reiner inquired how politically secure is their funding from the federal government.
Mr. Guest responded that they have the equity contribution — hard dollars, already. Section 8
funding is more secure than other types of public housing funding because the private sector
is involved. Where there are private owners of property and private investors involved, there
will continue to be support for the program.
Mr. Reiner stated that Council realizes there is a need for senior housing. The question is,
when tax credits are involved, can the City add specific restrictions, such as preferences for
veterans or those in a certain area?
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Mr. Slemmer responded that restrictions are permitted based on age — this is a federal safe
harbor. It is necessary to comply with all fair housing laws. Local preferences are typically
not permitted. For the most part, all senior residents are local.
Mr. Reiner stated that if Dublin would be providing some funding, the City's focus is on the
needs of the local residents. Dublin is primarily interested in providing housing for its own
first.
Mr. Slemmer responded that other than the restriction to senior citizens only, no other
restrictions may be made. He asked Ms. Norris to comment on whether any exceptions are
made to that within the tax credit program.
Ms. Norris stated that she is not aware of any permitted. However, from the moment they
break ground, "For Lease" signs are posted. Everyone who contacts them is forwarded an
application as soon as the application period begins; however, the applications are released
primarily within the immediate geographical area. The potential residents are also influenced
primarily by the nearness of their families, physicians, pharmacies and churches.
Mr. Guest stated that senior housing tends to be restricted primarily to the immediate
neighborhood or city where it is being developed. Where Section 8 is involved, preference
for veterans is permitted and they currently do so.
Ms. Salay inquired what they find with a mix of residents of low to average income. Are there
any difficulties that result with the mix?
Mr. Slemmer responded that there have been no problems. The Westerville facility is a gooc
example of this.
Ms. Salay stated that when she viewed the Westerville facility, she noticed that the back of
the facility looks out on the stream and Hoover dam. The director stated that the seniors
want to live next to the activity center. They are more interested in the social area, not the
view. She was also impressed by the architecture of the building. There can be
preconceived perceptions of public housing, but the Westerville project could have fit very
well within Dublin. Some of the interior finishes were similar to what might be found in higher -
end housing in Dublin. She was pleasantly surprised.
Ms. Norris noted that often their task is to educate policy makers and legislators. Because
they are familiar with HUD programs, they are surprised with the NCR projects. NCR
believes these homes should provide the residents with as much dignity in their homes as
any others within the community have for their homes.
Vice Mayor Boring stated that the income level they must live at now may be quite different
from what they were previously accustomed to, and not by their choice.
Mr. Slemmer stated that is often the case. Sometimes it is due to health care costs, but
pension reduction and loss of spouse are the primary causes.
Dublin City Council Study Session
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Page 8
Mr. Gerber inquired what the forecast is over the next 10 -15 years. Will seniors be
challenged to afford housing regardless of their income?
Mr. Slemmer responded that the big issue facing state governments is not only housing, but
health care costs for senior citizens. The number of disabled seniors will double by mid
century, which will impact most of Medicaid and Medicare. There has been much discussion
about the platform of stable senior housing as a place to deliver service at much less cost
than found at the traditional assisted living and nursing care facilities. At the Hilltop facility,
there is every service available, including a physician's office.
Mr. Keenan stated that due to Ohio's tax structure, the more affluent senior citizens are
leaving the area.
Mr. Slemmer concurred. Changes are needed, and affordable housing will be a benefit. In
addition to other services, there are on -site service coordinators at their facilities to help the
seniors. There would be one at this facility.
Mr. Gerber stated that there are many seniors who do not fit in this particular income
structure who will also struggle, and the tax structure, including real estate taxes, is part of
the reason.
Mr. Slemmer agreed. The income bracket above this category, $35,000 - $55,000, has great
financial need.
Mr. Guest stated that many of these move to Florida until they reach their mid 70's, and then
they want to move back to this area to be near family. It is at this time that the seniors begin
to have higher medical costs.
Ms. Norris stated that this is called "reverse migration" or "half backs," as they may have a
problem with the heat in Florida and move halfway back — to Atlanta or Raleigh.
Mayor Chinnici - Zuercher inquired where this project is in the planning process.
Mr. Phillabaum responded that they have begun to look at the expansion area adjacent to
their Stoneridge facility. This is very preliminary. This property is just to the southeast of that
existing facility, north of Braelinn Green. They are looking at what it would take to rezone that
parcel and do more of a cottage -style development. This may be ready for review during an
informal work session in July. They have only begun the site analysis.
Mr. Slemmer stated that the Danter report indicates the need for senior affordable housing.
The question is where to put it and how to make it work.
Ms. Salay stated that NCR has expressed a desire to determine if Council is interested in
more affordable senior housing in Dublin. If so, they will begin looking at potential sites. After
her tour and reviewing various photographs, she is much more confident that an NCR project
could fit into Dublin very well. Density is not the only driver.
Mr. Keenan inquired the number of acres involved with this project.
Mr. Phillabaum responded that there are only two acres. An overhead power line bisects the
site, and the cell tower is just north of it.
Dublin City Council Study Session
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Page 9
Mr. Slemmer stated that this site was not viewed as anything more than a modest expansion
of the Stoneridge facility. What is being considered is doing some long -term planning on a
10 -15 acre site for a facility the size of the Hilltop facility.
Ms. Salay inquired if they are considering a cottage -style facility
Mr. Slemmer responded that they are open to any type. Mid -rise development can also be
mixed with single story.
Mr. Gerber inquired if they have ever considered converting an existing facility.
Mr. Slemmer responded that they do a lot of acquisitions around existing senior housing and
renovate them. They have a school property in Laguna Beach, which is being converted to
senior housing. Typically, the cost of renovating an existing facility that is not multifamily is
higher than the cost of new construction.
Mayor Chinnici - Zuercher thanked the NCR team for the presentation and education. Council
needs more time to discuss this. She noted that both Mr. Slemmer and Mr. Guest have
strong reputations locally and across the country. Everyone has the right to have a good
quality of life. Dublin has experienced recognition of the aging community in the past couple
of years. There is a great diversity of incomes in Dublin, so Council does want to consider
providing affordable housing. The proposed expansion of the Stoneridge facility would
appear to be a great use of that space.
2010 Bicentennial
Ms. Puskarcik stated that Council packet materials contained an update on the research
conducted for the 2010 Bicentennial plan. In April, she had indicated that a plan would be
provided at this study session. During the last two months, she has realized that was an
ambitious statement. There is a great deal of work to be done first, so tonight she will provide
an update and will do so on a monthly basis. Before the internal budget process, she will
provide all the information to ensure Council's concurrence. They looked at the 200 -day
celebration as suggested by Council. It would work very nicely with bookend events, one at
St. Patrick's Day and the other with a September weekend event. A closing ceremony at the
Field of Corn is suggested due to its significance in Dublin's history. The Independence Day
celebration that year would be a three -day event. A plan for a committee of 200 was
provided in Council's packet. One of the things considered was having neither a working
committee nor an interview process, but rather, making the selections. If there are elements
of the proposal Council approves of, staff will proceed. The seven members of City Council,
possibly the City Manager, and possibly the Deputy City Manager would each choose 10 -15
committee members. Staff would coordinate the efforts to ensure all areas of the community
are represented. The proposed National Public Radio (NPR) StoryCorps would cost
approximately $175,000. Regarding staffing, internal staffing is proposed initially with
outsourcing to occur at the point assistance is needed.
Mayor Chinnici - Zuercher stated that regarding the committee of 200, because this is a public
document, she would suggest a more inclusive list. For instance, Kiwanis is not included on
Dublin City Council Study Session
Monday, June 9, 2008
Page 10
this initial list of possible committee members. Is the intent that the committee be ceremonial
in nature, a promotional tool?
Ms. Puskarcik responded that is true, but they would tell their story, as well. The thought is
that each day of the 200 -day celebration, one person would be recognized, perhaps via TV
cable or the web with mayoral proclamations. This would make it more of a community
celebration than a City celebration.
Mayor Chinnici - Zuercher stated that would include a great, critical mass of people.
Ms. Puskarcik stated that this would be one of the first items to work on, to have 9 -12 months
in advance. Council may recommend specific people or areas of residents.
Mayor Chinnici - Zuercher inquired if the cost of the committee of 200 would be provided.
Ms. Puskarcik responded that it would be provided. A recognition ceremony during the kick-
off could include costs of a reception or dinner. Other costs, such as for communication,
could be included with the existing tools. The cost would really be the staff time to do the
interviews and write the stories.
Mr. Keenan inquired if a complete proposed Bicentennial Project budget would be ready for
the budget hearings.
Ms. Puskarcik responded that it would. Proposed elements would be presented to Council
before that time so that staff has good input to develop the proposed budget.
Vice Mayor Boring stated she does not like to operate this way, which essentially is obtaining
Council's buy -in beforehand. She would prefer to see the entire budget at an earlier date.
Ms. Puskarcik responded that would be provided. This is about components that Council
expressed an interest in. She is presenting pieces of information at this point.
Vice Mayor Boring stated that is what she objects to — sharing only pieces of information until
the discussion is too far down the road to turn back.
Mayor Chinnici - Zuercher inquired when more realistic costs about these three components
would be available.
Ms. Puskarcik responded that the N PR costs ($175,000) have been provided. If Council
believes that cost is too high, staff can look at other options. Because the StoryCorps was
talked about at the last meeting, the additional information was provided.
Ms. Salay inquired if a "ballpark" estimate based on discussion to date would be available.
Ms. Puskarcik responded that it would not be possible at this point. A projected cost should
be available in August. First, it is necessary to look at the existing budget to see where some
changes could be made. For example, when they looked at the fees for outside agencies,
that did not appear to be the best use of money. So internal staffing is now being
considered. Other adjustments may also be considered.
Mayor Chinnici - Zuercher stated that if the Bicentennial will be the focus in 2010, using the
existing timeframes that the community is accustomed to, such as St. Patrick's Day and
Independence Day, would be good. The existing budget for those activities could be used
along with some additional monies that particular year. It would not be a 100% increase.
Dublin City Council Study Session
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Page 11
Ms. Puskarcik noted that it would be important to separate what events are related to the
Bicentennial celebration so that the community does not expect them the following year.
Mayor Chinnici - Zuercher stated that, personally, she does not favor spending $175,000 on a
NPR StoryCorps component. She does like the Committee of 200 concept and the
suggestion for each member to have a day and provide their story about their life in Dublin.
This would seem similar to what other communities have done that is very personal to their
communities.
Ms. Puskarcik noted that would include a video as well as audio component.
Vice Mayor Boring stated that she does not see suggestions for helping other organizations
to plan something of their own to complement the Bicentennial focus that year.
Ms. Puskarcik stated that sanctioned or affiliate events during the 200 day period was
covered in the first proposal. That would not incur any cost for the City. Those groups would
apply for that opportunity, so that they could also use the Bicentennial logo or theme.
Mr. Lecklider asked for more information about the Committee of 200. What is the underlying
rationale? Are there examples of that concept being used by other communities for their
celebrations?
Ms. Puskarcik responded that research of other communities revealed the use of a
Bicentennial Commission that was appointed by the governing group. In some cities, that
created other layers, more expenses, and a longer time period. There is also the need to
recognize some individuals, but not necessarily in a working capacity. If there is another
organization that wants to plan something during the Bicentennial celebration, they could do
so in an affiliate capacity. The Committee of 200 provides Council a way in which to
recognize all the people who helped build this community. It could be someone who lives
here today or someone who has relocated or passed away. It would be a chance for the
community story to be told.
Mr. Leckider stated that it is an interesting concept, however, the 200 number would be
reached very quickly. He is concerned that the restriction of numbers could result in some
being omitted and feelings would be hurt.
Ms. Puskarcik stated that the community groups could select their representative.
Mr. Lecklider stated that he did not have an opportunity to research the StoryCorps
component, but the price tag did give him concern. The Bicentennial is a significant and
worthwhile celebration. However, given the economic times, Council needs to be wary of the
public's reaction to a $ .5 million price tag on the event.
Ms. Puskarcik stated that this event will involve a two -year budget (2009 and 2010). It will be
important to separate from the Bicentennial budget the costs for the existing annual events
and for a new item, such as an art piece, that would endure after the Bicentennial celebration.
Vice Mayor Boring inquired when notices of the Bicentennial celebration and the
corresponding opportunities for other community organizations would be sent out.
Dublin City Council Study Session
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Page 12
Ms. Puskarcik responded that is anticipated to occur the first quarter of 2009. At that point,
the budget will have been approved and everyone would be working from the same
document. Early 2009 would allow organizations a year in which to plan their activities.
Mayor Chinnici - Zuercher stated that she would like to reiterate Mr. Lecklider's comment.
Dublin has a reputation for quality community events, but concerns have been expressed
about the amount of money the City spends on those events. With today's economic
situation, that issue will be looked at even more seriously. In Dublin, there is a higher home
foreclosure rate than ever seen before, and more of its citizens have had to utilize a food
pantry. Even if economic conditions begin to improve before 2010, people will not be fully
recovered from this situation two years from now. It is important to think through the process.
One strategy that helps with that is to offer the other groups the opportunity to participate. A
calendar of Bicentennial events for the year could be compiled. The various organizations
would be using primarily their own money, although the City could offer a small grant
opportunity. This would be a manageable method of participation for the various
organizations. That has been the issue with the City's events, which are wonderful, but
government driven. That is the reason that some cities have created a non profit entity that
operates the special events function, rather than the government. It should be clear that it is
not a separate event but incorporated into the existing events.
Mr. Keenan stated that he believes it is important somewhere within the celebration to
capture the history and the stories. It is not about today; it is for posterity's sake. Daily,
Dublin is losing a lot of the people who know the early stories, and this is a way of capturing
those stories for future generations. This element is important, although it may not need to
be a $175,000 video presentation.
Ms. Puskarcik responded that the tools are available for the City to do this internally. That
goal can be accomplished without necessarily using the StoryCorps method.
Mayor Chinnici - Zuercher agreed that the historical aspect of the celebration is vital. A Dublin
history Volume 2 might be a good way of recording those stories for future generations.
Ms. Puskarcik noted that at some point selections of who will be interviewed and what will be
identified as a hallmark to be used for this purpose must be made. The first history book did
not include all the material provided at that time — selections had to be made. The City can
do this either administratively or through Council.
Ms. Puskarcik stated that she understands the desire to have all the budget components
presented up front, but it is difficult to present all the options in one meeting, as it could entail
hours of discussion.
Vice Mayor Boring expressed concerns about discussion of any of the ideas without ballpark
costs provided and without identifying the need for staff. She would like to avoid the issues
that occurred with the history book project.
Ms. Brautigam responded that a ballpark budget amount would be presented in September.
Ms. Puskarcik inquired if it is also Council's preference not to have regular updates in the
interim, but review all the components at that time.
Dublin City Council Study Session
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Page 13
Ms. Brautigam stated that would probably be best. Council does not meet after July 1, and
the CIP budget discussions are scheduled in August.
The next Bicentennial report, including budget will be scheduled in September.
"My Neighborhood" Project
Mr. Langworthy stated that this project proposal began with ideas presented in Council's goal -
setting discussion about potential projects to enhance the neighborhoods. During that
discussion, staff mentioned that they had some conceptual ideas to enhance the
neighborhoods. After Council expressed an interest, staff decided to pursue the ideas more
ambitiously. The scope of the project was expanded after Council established a goal based
upon this. Tonight, they would like to outline the framework of that project. Because this will be
a resident -based project, they seek Council's guidance regarding preferred ways to involve the
community.
Ms. Swisher presented the framework of the project, which is based upon Council's goal
established at the 2008 Council retreat to "create a high quality of life by emphasizing
neighborhoods and fostering a sense of community."
Project Goals:
1. Promote a high quality of life in Dublin by emphasizing neighborhoods and fostering a
sense of community;
2. Create and promote unique neighborhoods through the recommendation of design
standards that encourage diverse, innovative, desirable neighborhood elements and
neighbor -to- neighbor connections;
3. Implement the Adopted Land Use Principles (Resolution 64 -06);
4. Support the implementation of the Dublin Community Plan;
5. Emphasize neighborhood involvement in creating and maintaining great
neighborhoods;
6. Encourage Dublin residents and community leaders to maintain pride in their
neighborhoods and take ownership of their futures.
Ms. Swisher requested feedback regarding the project goals.
Ms. Salay responded that she likes this project. It is where her interests lie — with the
neighborhoods. They are a major source of strength to this community. Residents are very
vested in their neighborhoods, and through that become vested in the larger community. She
likes the idea of encouraging continued involvement.
Vice Mayor Boring inquired if staff researched for models utilized by other communities, and if
so, were any of those incorporated into this document.
Ms. Swisher responded that some preliminary exploration was conducted.
Mr. Langworthy stated that this project is unique. They would like to create a document
reflecting the input of the community's neighborhoods, not that of Planning staff or
professionals. The process will be conducted similar to the Community Plan process — resident
based. There is no model for this process.
Dublin City Council Study Session
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Page 14
Vice Mayor Boring stated that she is not interested in modeling another community, but looking
at the models or examples of other communities would help ensure that everything is covered
in Dublin's process. Vice Mayor Boring added that when the citizens come to Council, Council
tends to want to immediately respond. Instead, Council should be asking the citizen what they
think about the issue and what could the homeowners association (HOA) do to address it.
Hopefully, this project incorporates the idea of the neighborhoods themselves taking
responsibility.
Ms. Swisher continued:
Project Strategies:
• Conduct one -on -one interviews with Council members to achieve a focused information
collection, requesting Council's ideas for their individual ward and suggestions for
interview candidates
Mr. Langworthy noted that staff's suggestion for interviewees would be civic association
presidents.
Ms. Salay responded that they should be given the opportunity to provide input. A civic
association president cares very much about their neighborhood.
Vice Mayor Boring suggested interviewing some of the people who apply for positions on
Council's boards and commissions.
Ms. Salay concurred — perhaps a member or two from each board and commission. How
many interviews does staff want to conduct?
Mr. Langworthy responded that they do not want to leave anyone out, as they might have
something significant to share.
Mr. Lecklider suggested "grass roots" interviews with homeowners. Perhaps the civic
association president could appoint a committee to provide this input.
Mr. Langworthy agreed that a committee of 2 or 3 members could be the interviewees for that
civic association.
Vice Mayor Boring suggested that the HOA president could call a HOA meeting and direct the
questions to everyone.
Mr. Reiner noted that some HOAs have newsletters. A questionnaire could be included with
the newsletter. Some HOAs have various committees already in place whose members could
be interviewed.
• Community meetings
Mayor Chinnici - Zuercher stated she is trying to distinguish the community meeting from the
interview process. She assumes the interview numbers would be limited and that would
generate the agenda for the community meetings.
Ms. Swisher confirmed that the purpose would be to provide preliminary information about
overall visions or issues that would help form the discussion topics for the community
meetings, where a broader audience could be involved — perhaps with small group
discussions.
Dublin City Council Study Session
Monday, June 9, 2008
Page 15
Ms. Husak added that the major differences between interviews and community meetings is
that members from different neighborhoods can interact in small group discussions, or stations
could be set up to allow for more interaction with folks that would normally not meet.
Mayor Chinnici - Zuercher noted that the success of a community meeting can depend upon
how it is marketed to the community. The neighborhoods will want to know the anticipated
result of the information they share. There are some aging neighborhoods, and they will be
interested in knowing the potential financial involvement of the City in the enhancement of their
neighborhoods. Beyond design and implementation of the projects, will the City contribute to
the costs?
Mr. Langworthy noted that this is a critical point and will be discussed as part of the product.
Mr. Reiner stated that this is of interest to him. It is important not to initiate false expectations.
This should be a program that identifies ideas and encourages community pride to be the
motivation to proceed with them. The civic associations should want to involve their own
people, and they would identify ways to pay for their projects. It should be clarified from the
outset that the City will not finance their enhancement projects. This focus and development of
ideas should increase civic action, not involve the use of taxpayer monies.
Mayor Chinnici - Zuercher stated that in addition to physical enhancements, the project should
focus on ways to generate neighborhood fellowship and pride in their housing area.
Mr. Langworthy responded that this is an intangible element of the project.
Mr. Reiner concurred. Some associations have welcoming committees that plan social events,
but others do not. Neighborhoods could benefit from learning the ideas and practices of other
neighborhoods.
Ms Salay stated that this would be a way to identify the best practices of the neighborhoods. In
regard to the involvement of City finances for HOA projects, she did not perceive that any
financial involvement on the part of the City was envisioned. The involvement of the City was
to be supportive of neighborhood initiatives.
Mr. Reiner responded that he agreed with the need to clarify that, particularly in view of the
statement on the last page about enhancement projects: "The emphasis of this list is to
identify those actions that the neighborhood could undertake, with reliance on the City." He
does agree with providing other types of support.
Mr. Lecklider stated that he looks at it differently. He does envision the potential for some
financial subsidies. There may be a potential for City involvement in certain projects, such as
enhancement of open space areas -- a tree, path or gazebo. Also, some of the neighborhoods
are aging, and it is in the overall community's best interests to see that these neighborhoods
"age gracefully." The City budget for neighborhood parks, which is around $600,000 to
$800,000, is a subsidy of sorts. What is being discussed tonight would not be nearly to that
scale.
• Neighborhood walk -about program
Dublin City Council Study Session
Monday, June 9, 2008
Page 16
Ms. Swisher stated that this would provide residents of aging neighborhoods the opportunity to
take a walk with City team members, point out and discuss their neighborhood's aging issues.
Mr. Langworthy stated that driving by a neighborhood does not identify issues that this type of
discussion can reveal.
Vice Mayor Boring suggested that the discussion should focus heavily on the "intangibles,"
such as the welcoming committees. Neighbors knowing neighbors creates safer
neighborhoods. This is a concern in aging neighborhoods — how they can meet each other
and interact when they don't interact through their children's school.
Ms. Swisher responded that Community Relations could be involved in this aspect.
Mr. Reiner noted that the City has a program that sponsors neighborhood parties, which are
beneficial for this purpose. Some neighborhoods hold gatherings during the year, such as on
certain holidays, but others do not.
Mr. Langworthy noted that the technical term is "capacity building."
Ms. Salay stated that neighborhood block parties are a great example of community building.
• Interactive website
Ms. Swisher stated that there are many features that could be used at the website — surveys,
discussion boards, and educational links.
Ms. Salay said that the residents have become accustomed to using the City website, so this
would be a natural extension for this project. It could involve people who might not otherwise
interact.
Mayor Chinnici - Zuercher stated that the City hosts a fall civic association meeting, which this
year could be used in a "centerpiece" manner for this project. The residents would likely be
more interested in a "best practices" discussion than in staff presentations.
Vice Mayor Boring stated that this is a very challenging goal. Efforts along this line have been
attempted previously.
Mr. Reiner stated that the educational component of the website should provide some
guidelines regarding responsibilities and expectations for the civic association leaders.
Through education, the neighborhoods will begin to elect community leaders that take an
active role within the community. The people can be taught how to run a civic association.
Enhancement Projects
Mr. Langworthy stated that Council has suggested a list of enhancement projects. This would
consist of a list of projects that the City would help them to accomplish, not projects that the
City would fund. However, there may be some maintenance - oriented projects that the City
would have to take on.
Final Product
Two principal outcomes are proposed:
• Maintain the neighborhoods
Dublin City Council Study Session
Monday, June 9, 2008
Page 17
• Transfer existing neighborhood knowledge to new neighborhoods
Mr. Reiner stated that, for the record, he does not believe the City should fund any of these
projects. The goal should be to increase neighborhood involvement and pride.
Mr. Langworthy concurred. Funding the projects is not their intent.
Mr. Gerber asked what is meant by "design standards" in this context.
Mr. Langworthy responded that is not yet known. The neighborhoods will identify those.
Mr. Gerber stated that approximately four years ago, when the Planning and Zoning
Commission was discussing conservation design, an attempt was made to identify some
standards. Is that what is envisioned?
Mr. Langworthy responded that it may be. He is not certain.
Ms. Salay noted that some great ideas have come from the residents themselves, such as a
walking path encircling the children's play area in a park to enable the adults to exercise while
watching over their children. She believes this entire "My Neighborhood" project is a great
concept. She anticipates that in a few years, Dublin staff will be presenting this to the American
Planning Association (APA).
Mr. Gerber stated in regard to the topic of neighborhoods that he has received a few
complaints recently about home occupations with offices. Working out of the home is fine as
long as it does not create a traffic issue within the neighborhood. There may be a need to
review the City Code in this regard.
Mr. Langworthy responded that is a legitimate concern, and offenders are difficult to identify.
Mr. Gerber suggested that staff look into things the City could do to get ahead of that curve.
Mayor Chinnici - Zuercher suggested caution when discussing neighborhood design
standards. It is important to be aware of cost increases that would be passed on to future
home buyers. It is important to emphasize that these new standards are not being
suggested, but are ones already in existence in Dublin.
Mr. Langworthy responded that there are some standards that should be codified while
others should be encouraged.
Mayor Chinnici - Zuercher thanked staff for the presentation.
The meeting was adjourned at 9:20 p.m.
Clerk of Council