2006/06/27 City Council Resolution (10)RESOLUTION NO. 2006 - 177
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN ASSIGNMENT, ASSUMPTION AND TERM
CONFIRMATION AGREEMENT REGARDING REDWOOD CREEK APARTMENTS
WITH THE SPANOS CORPORATION AND COLUMBIA REDWOOD CREEK LLC
WHEREAS, On September 27, 2005, the City Council approved Resolution No. 2005 -293
approving an Affordable Housing Covenant (the "Covenant") with the Spanos Corporation (the
"Developer') which provides for thirty-five (35) units in the Redwood Creek Apartments to be available
and affordable to low- income households; and
WHEREAS, The Covenant contains a certain Successors and Assigns section which allows for
the Developer to assign all the Developer's rights, title, interest, and obligations in and under the Covenant
to an Assignee provided the Assignee meets certain conditions; and
WHEREAS, the Developer desires to assign all the rights, title, interest, and obligations in and
under the Covenant to Columbia Redwood Creek LLC, a Delaware limited liability company which meets
the conditions required by the Covenants.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve an Assignment, Assumption and Term
Confirmation Agreement, attached as Exhibit A to this Resolution, by and among the City of
Rohnert Park, a municipal corporation, the Spanos Corporation, a California corporation and
Columbia Redwood Creek LLC, a Delaware limited liability company.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Assignment, Assumption and Term Confirmation Agreement, negotiate future
changes to the Agreement, and execute any future Amendments necessitated by those changes for
and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED this 27 thday of .Tune , , 2006.
ATTEST:
Deputy City Clerk
CITY OF ROHNERT PARK
im Smith
BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIiDAK- MARTINEZ: AYE SMITH: AYE
AYES: (5) NOES: (o) ABSENT: (o) ABSTAIN: (0)
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Rohnert Park
Planning Department
6750 Commerce Boulevard
Rohnert Park, CA 94928 -2486
(Space Above This Line for Recordei's Use Only)
[Exempt from recording fee per Gov. Code 27383]
APN(s):
ASSIGNMENT, ASSUMPTION AND TERM CONFIRMATION AGREEMENT
"This Assignment, Assumption, and Term Confirmation Agreement ( "Agreement ") is
entered into as of this day of , 2006 ( "Agreement Date ") by and among
the CITY OF ROHNERT PARK, a municipal corporation ( "City "), THE SPANOS
CORPORATION, a California corporation ( "Assignor "), and COLUMBIA REDWOOD CREEK
LLC, a Delaware limited liability company ("Assignee")-
A. Assignor (as "Developer" under the Covenant [defined below]) and City have
entered into that certain Affordable Housing Covenant including Deed and Pre - Completion
Transfer Restrictions dated September 12, 2005 and recorded as with the Sonoma County
Recorder's Office as Document Number ( "Covenant "). Capitalized words not
otherwise defined herein shall have the meanings as defined in the Covenant.
B. Pursuant to Section 6 of the Covenant, the parties wish to confirm the
commencement and expiration date of the Term.
C. Assignor currently owns the Property (as described in the Covenant, and further
described in Exhibit A, attached hereto and incorporated by reference), and desires to transfer
title of the Property to Assignee on or about July 6, 2006. In connection with such transfer,
Assignor desires to assign to Assignee, and Assignee desires to accept from Assignor, all of
Assignor's all right, title, interest, and obligations in and under the Covenant.
Terms
1. Incorporation. The foregoing recitals are true and correct and are incorporated
herein by this reference.
2. Term. Pursuant to Section 6 of the Covenant, the parties hereby confirm that the
Commencement Date of the Term was January 1, 2006 and that the Expiration Date of the Term
will be December 31, 2035.
3. Assignment and Assumption. Assignor hereby assigns to Assignee all of
Assignor's right, title, and interest in, and obligations and duties under, the Covenant
928185v2 80078/0022
( "Assignment ".). Assignee hereby accepts the foregoing Assignment and expressly assumes and
agrees to be bound by all covenants and conditions of the Covenant and timely perform all of
Assignor's obligations and duties under the Covenant, as direct obligations to City, including
payment of any sums due thereunder ( "Assumption ").
4 �itv Con —lit Accionnr and AQ6oneP eaeh ienrecPnt and .' ",-rant to City tr, t
,� lo i�_ Y ✓Gf to -11 -1.11 as
required under Covenant section 2.1(a)(3): (1) Assignee or its site manager has at least three (3)
years of experience in the ownership, operation and management of similar size rental housing
projects, and at least one (1) year of experience in the ownership, operation and management of
rental housing projects containing below- market -rate units, without any record of material
violations of discrimination restrictions or other state or federal laws or regulations or local
governmental requirements applicable to such projects, or (ii) Assignee agrees to retain a site
management firm with the experience and record described in subelause (1) above, or
(iii) Developer or its management company will continue to manage the Project for at least one
(1) year following such transfer and during such period will provide training to Assignee and its
site manager in the responsibilities relating to the Affordable Units. In reliance thereon (without
which representation and warranty City would not have consented to the Assignment, the
Assumption, or the release of Assignor as set forth in Section 6, below) City hereby consents to
the Assignment and Assumption. Nothing contained in this Agreement is intended or shall be
construed to be or constitute a waiver or modification of the restrictions concerning assignment
or transfer set forth in the Covenant or constitute City's approval of or agreement to any
assignment or transfer other than as expressly provided in.this Agreement.
5_ Effective Date. This Agreement shall become effective upon its recordation in
the Official Records of Contra Costa County ( "Effective Date "); provided that neither the
recordation of this Agreement nor anything contained in this Agreement or the Covenant shall
affect or be construed to affect the priority or validity of the Covenant or any lien or obligation
created by the Covenant. In the event that the proposed Property transfer from Assignor to
Assignee does not take effect within ninety (90) days after the Agreement Date, this Agreement
shall immediately becorne null and void ab initio, regardless of recordation hereof, City shall
have the right (but not the obligation) to take necessary steps to reflect such status (including
recordation of documents against the Property), and each Assignor and Assignee shall cooperate
with City in connection therewith.
6. Release of Assignor. Subject to Sections 4 and 5, upon the Effective Date,
Assignor shall be released from all obligations under the Covenant.
7. Knowledge of Documents. Assignee warrants that Assignee has personal
knowledge of all the terms and conditions of the Covenant, and further agrees that the City has
no obligation or duty to provide any information to Assignee regarding the terms and conditions
of the Covenant.
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928185v2 80078/0022
8. Notices. Developer's notice address as set forth in Section 9 of the Covenant is
hereby replaced with the following:
Columbia Redwood Creek LLC
c /oGID Investment Advisers, LLC
700 Larkspur Landing Circle, Suite 155
Larkspur, CA 94939
Attn.: Matthew Stuart
Telephone: (415) 464 -1356
9. No Waiver. Assignor warrants and Assignee acknowledges that the City has not
waived any of City's rights or Assignor's obligations under the Covenant.
10. Attorneys' Fees; Enforcement. If any attorney is engaged by any party hereto to
enforce or defend any provision of this Agreement, the prevailing party shall be entitled to costs
and reasonable attorneys' fees.
11. Miscellaneous. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California. Any provision of this Agreement which is
determined by a court to be invalid or unenforceable shall be deemed severed herefrom, and the
remaining provisions shall remain in full force and effect as if the invalid or unenforceable
provision had not been a part hereof. The headings used in this Agreement are for convenience
only and shall be disregarded in interpreting the substantive provisions of this Agreement. This
Agreement may be signed in counterparts. This Agreement and the Covenant (including all
exhibits to this Agreement and the Covenant) constitute the entire agreement between the parties.
No modification of this Agreement shall be binding unless reduced to writing and signed by
City.
IN WITNESS WHEREOF, parties have caused this Agreement to be executed on their
behalf by their respective officers thereunto duly authorized.
[Signatures follow on next page]
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92818562 80078/0022
DEVELOPER:
THE SPANOS CORPORATION, a
California corporation
By:
[Signature must be notarized]
Name:
Title:
Dated:
ATTEST:
City Clerk
.. �� •
..
r� U 1, &
928185v2 80078/0022
ASSIGNEE:
COLUMBIA REDWOOD CREEK LLC, a
Delaware limited liability company
[Signature must be notarized]
Name:
Title:
Dated:
CITY:
THE CITY OF ROHNERT PARK, a California
municipal corporation
By:_
[Signature must be notarized]
Name: Stephen R. Donley
Title: City Manager
Dated:
Per Reso. No. 2006 -177 adopted by the
City Council on 6/27/06
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State of California
County of
On - ..__ before me,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his /her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
State of California
County of
(Seal)
On before me,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Acknowledgment
928185v2 80078/0022
(Seal)
State of California
County of
On
before me,
Notary Public, personally appeared
personally known to ma (nr nrnx ed to me n„ fl— }, f t;� ,.�n 7.. Ito
t _ t
� o1 sa1a�lacto y ev;UG„�G� LJG tilt
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
State of California
County of
On
before me,
(Seal)
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Acknowledgment
928185v2 80078/0022 -2-
(Seal)
EXHIBIT A
Lep_al Description of the Property
[To be inserted]
Exhibit A
928185v2 80078/0022