2006/05/23 City Council Resolution (2)RESOLUTION NO. 2006-130
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING AN AFFORDABLE HOUSING AND LOAN AGREEMENT WITH VIDA
NUEVA PARTNERS L.P. AND MAKING FINDINGS
REQUIRED BY HEALTH AND SAFETY CODE §33433
WHEREAS, the Community Development Commission of the City of Rohnert Park (the
"CDCRP ") wishes to enter into an Affordable Housing and Loan Agreement (the "Agreement ")
with Vida Nueva Partners L.P (the "Developer ") for the disposition and development of real
property located at 705 Rohnert Park Expressway (Assessor's Parcel Numbers 143 - 391 -53 and -
054) (the "Site ") for the development, maintenance and operation thereon of a twenty -four (24)
unit permanent affordable housing rental complex, referred to as the Vida Nueva Affordable
Housing Project (the "Vida Nueva Project "); and
WHEREAS, Health and Safety Code Section 33433 requires that a sale or lease of
agency -owned property which was acquired, in whole or in part, with tax increment moneys must
first be approved by the Redevelopment Agency's Legislative Body (the City Council) by
resolution after a public hearing; and
WHEREAS, in addition to the sale of the Site to the Developer; the Agreement further
provides for the Agency to loan to the Developer funds from the CDC's Low and Moderate
Income Housing Fund, to assist Developer in paying for a portion of the costs to acquire the Site,
certain pedevelopment costs and costs related to the development and construction of the Vida
Nueva Project (the "Commission Assistance ");
WHEREAS, the City of Rohnert Park City Council and the CDCRP held a joint public
hearing on May 23, 2006 to consider the sale of the Site and the Summary Report made available
by the CDCRP as required by Health and Safety Code Section 33433(A)(2);
NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Rohnert
Park does hereby make the following findings and determinations, which findings and
determinations are based on the information contained in the Section 33433 Summary Report
prepared by the CDC:
a) the sale of the Site to Vida Nueva Partners will assist in the elimination of blight
and increase the supply of very low - income housing in the Project Area, and is
consistent with the Implementation Plan adopted by the CDC pursuant to Health
and Safety Code Section 33490;
b) the consideration to be paid by the Developer for the Site is not less than the fair
reuse value at the use and with the covenants and conditions and development
costs authorized by the Agreement.
BE YT FURTHER RESOLVED that the City Council of the City of Rohnert Park
approves the Agreement between the CDC and the Developer, including without limitation the
sale of the Site by the CDC to the Developer and the Commission Assistance, all as provided for
under the Agreement, for the development of the Vida Nueva Project.
DULY AND REGULARLY ADOPTED this 23rd day of May, 2006.
CITY COUNCIL OF TBECI-Y"F ROHNERT PARK
Mayor
ATTEST:
City Clerk
ag
�011NEIdT Pq k
1,1 F0 RNI�!'.
BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK— MARTINEZ: AYE SMITH: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
(2)
SUMMARY REPORT PURSUANT TO
SECTION 33433 OF THE
CALIFORNIA COMMU ITY REDEVELOPMENT LAW
ON
THE AFFORDABLE HOUSING AND LOAN AGREEMENT BY
THE COMMUNITY DEVELOPMENT COMMISSION
BETWEEN
OF THE CITY OF ROHNERT PARK
AND
VIDA NUEVA PARTNERS, L.P.
I. INTRODUCTION
The California Community Redevelopment Law (Health and Safety Code Section
requires that if a redevelopment Commission wishes to sell or lease roe 33433)
title and if that property was acquired in whole or in part with property tax increm
P property to which it holds
Commission must first secure approval of the proposed sale or lease agreement from funds, the
legislative body after a public hearing. A co p p m its local
summary report that describes and contains specific financing delementsloft agreement and a
transaction shall be available for public inspection prior to the public hearing. The Cod
Redevelopment Law requires that the following information be included in the summary repo t
report.
l . The cost of the agreement to the redevelopment Commission, including land
acquisition costs, clearance costs, relocation costs, the costs of any improvements to
be provided by the Commission, plus the expected interest on any loans or bond
finance the agreement; s to
2. The estimated value of the interest to be conveyed or ]eased, determined at th
highest and best use permitted under the redevelopment plan; e
3. The estimated value of the interest to be conveyed in accordance with the uses,
covenants, and development costs required under the proposed agreement with the
Commission, i.e., the reuse value of the site;
4. If low and moderate income housing funds have or are being used to fund the
Proposed project, an explanation of how the sale or lease of the property will provide
housing for very low -, low_, or moderate- income persons; and
5. The purchase price or sum of the lease payments that the lessor will be required
make during the term of the lease. If the sale price or total rental amount its less than
33433 Vida Nueva May 16, 2006
Keyser Marston Associates, Inc.
Page 1
the fair market value of the interest to be conveyed or leased, determined at the
highest and best use consistent with the redevelopment plan, then the Commission
shall provide as part of the summary an explanation ofthe reasons for the difference.
6. An explanation of why the sale or lease of the property
will assist in the elimination
of blight (applicable to non - affordable housing projects).
This report outlines the salient parts of the Affordable Housing
ing an La Agreement
Commission nt (the
of the
Agreement) to be entered into by and between the community Development
City of Rohnert Park, and Vida Nueva Partners, L.P. (the Developer) for the Vida Nueva Project.
The Affordable Housing and Loan Agreement serves as
being disposition
d due to development
fact tax
agreement for the Vida Nueva Project. This report g p
increment funds from the Community Development Commission of the City f Rohnert obligations under the Park
(the Commission) will be used to fund the Commissions fin
Agreement.
Ui,der this Agreement, the Developer will develop the Vida Nueva Project (the Project),
consisting of twenty four (24) rental units, a community building housing ti laundry
The site area is
management office, and activity and All but one of the twenty four (24) units will carry 55 -year
approximately 81,600 square feet.
affordability covenants restricting occupancy to households xt with inch omes at units or bolo 500% of
area median income (AMI). Of these units, no fewer than si ( )
Units ") are to be rented to households in which at least one person is a member of a "Special
Needs Population" as defined in 25 California Code of Regulations Section 7301(r).i The
manager unit will not be income restricted if occupied by a resident manager.
This report is based upon information in the proposed Agreement and is organized into the
following six sections:
1, Summary of the Proposed Agreement This section includes a description of the
property, the proposed development and the major responsibilities of t
Commission and the Developer.
2. Cost of the Agreement to the Community Development Commission of the City
of Rohnert Park - This section outlines the cost of the Agreement to the
Commission for costs to be funded with Community Development Commission tax
' However, if despite its best efforts, the Developer is unable to locate a household with a
member of the "Special Needs Population" after ortivpepUnit(s) toithe next Very Low Incot has been vacant for
days, the developer may rent the applicable Supp
Household on the waiting list.
Keyser Marston Associates, Inc.
33433 Vida Nueva May 16, 2006
Page 2 -
increment funds. It presents the terms of the property conveyance; and sets forth the
net cost of the Agreement to the Commission.
3. Estimated Value of the Interest to be Conveyed - This section summarizes the
value of the property to be sold to the Developer.
4. Consideration Received and Reasons Therefor - This section describes the value
of the payments, if any, to be made by the Developer to the Commission. It also
contains a comparison of the purchase price and the fair market value at the highest
and best use consistent with the redevelopment plan for the interests conveyed.
5. Provision of Very Low -, Low -, or Moderate - Income Housing - This section
demonstrates how the sale of the property will provide housing for very low -, low -,
or moderate - income persons.
6. Conformance with Five -Year Implementation Plan - This section describes how
the Agreement is in conformance with the Commission's Five -Year Implementation
Plan for the City of Rohnert Park Redevelopment Project Area.
H. SUMMARY OF THE PROPOSED AGREEMENT
A. Description of the Property and the Proposed Project
Property
The development site is a 1.83 acre triangular shaped property located at 705 Rohnert Park
Expressway in Rohnert Park, CA (APNs 143 - 391 -053, -054). The site is within the City of Rohnert
Park Redevelopment Project Area. The site will be sold from the City to the Commission prior to
the Agreement being executed. The site consists of vacant unimproved land, a portion of which is a
former well site for the City of Rohnert Park. The development proposed for the site consists of 24
rental units to be developed by Vida Nueva Partners, L.P.
Subject to the terms of the Agreement, the Commission will provide the Project with a loan
(Commission Assistance) of up to $1,675,000 (including $810,000 for the value of the development
site, and $865,000 for predevelopment, development, and construction).
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
Page 3
Developer
The Developer is Vida Nueva Partners, L.P., a limited partnership consisting of Burbank
Housing Development Corporation (BHDC), the Community Housing Redevelopment
Corporation of Santa Rosa (CHDCSR), and Burbank Housing Management Corporation
(BHMC). Vida Nueva and its constituent entities are California nonprofit corporations with
extensive experience developing affordable housing in the Bay Area.
Project Description
The Project subject to this Agreement is known as the Vida Nueva Project and will consist of
twenty four (24) apartments, a community building with activity and counseling rooms, laundry
facilities, and a management office. Four (4) of the units will be one - bedroom units, ten (10)
will be two bedroom units, and ten (10) will be three bedroom units. Twenty three (23) of the
units will be affordable units with incomes restricted to 50% of AMI or below. Of these, a
minimum of sixteen (16) units will be Supportive Units restricted to occupancy by Special Needs
ho Beholds (as defined in 25 California Code of Regulations Section 7301(r)). The manager unit
will be a three bedroom unit and will not be income restricted if occupied by a resident manager.
There will be an affordability covenant recorded against the entire property consistent with these
income restrictions.
B. Commission Responsibilities
The Commission's responsibilities under the Agreement by and between the Commission and the
Developer are as follows:
The Commission will provide the Project with a loan (Commission Assistance) of up to
$1,675,000 to be used as follows:
• $810,000 for the purchase price of the property;
0 $493,405 for predevelopment expenses; and
0 $371,595 for construction costs.
The Agreement allows for the cash portion of the loan ($865,000) to be reallocated between
the uses upon written request by the Developer and written consent of the Commission,
provided that the maximum amount of assistance does not exceed $1,675,000. The loan
will be reduced by any amount by which pro forma development costs exceed actual
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
Page 4
development costs. The reduction in the loan amount will occur via a Developer
reimbursement payment to the Commission upon completion of the Project.
The loan will have a term of 55 years from the date of first disbursement with an annual
interest rate of I%. Payment of principal and accrued interest on the loan will be deferred
until the end of the 55 -year term. The loan will be evidenced by a promissory note and will
be secured by a deed of trust recorded on the property. As a condition to the loan, the
Developer must enter into an Affordable Housing and Maintenance Covenant with the
Commission to restrict the rents and occupancy of the Project for at least 55 years.
The Commission's Assistance is conditioned upon the Developer securing MHP funds and
the MHP funds requiring that at least 12 of the units be restricted at rents affordable to
households earning no more than 30% of the Area Median Income (AMI), 6 units restricted
to households earning no more than 40% of the AMI, and 5 units restricted to households
earning no more than 50% of the AMI. The affordability restrictions of the MHP funds will
have a 55 -year term.
C. Developer Responsibilities
The Developer is responsible for developing the Project in accordance with the terms of the
Agreement, as follows:
Fund all Project development costs including site preparation, planning, design,
and construction.
Begin construction no later than August 2007 and complete construction no later
than June 2008.
Obtain financing commitments for debt and equity financing including MHP
funds, tax credit equity, HOME and other sources sufficient to fund the Project's
development costs. Financing commitments are a condition precedent to
provision of Commission Assistance for land acquisition and construction cost
uses. Construction financing must close prior to or simultaneously with
conveyance of the property. If the Developer is unable to secure sufficient
financing, then the Agreement will terminate.
Lease the units at rental rates that comply with both the Commission's
affordability covenants and the deeper affordability requirements of the MHP
funding. MHP requires the rental rates and occupancy of the units to be restricted
for 55 -years as follows:
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
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• At least 12 units affordable to households earning no more than 30% of
AMI
• 6 units affordable to households earning no more than 40% of AMI
• 5 units affordable to households earning no more than 50% of AMI
• 1 unrestricted manger unit
■ Secure all necessary permits, entitlements, and approvals for the Project including
a General Plan amendment, rezoning of the property, and compliance with the
requirements of the National Environmental Policy Act (NEPA) and the
California Environmental Quality Act (CEQA).
■ Indemnify the Commission with regard to hazardous physical and environmental
conditions, take all actions necessary to restore the site to an environmentally
sound condition for uses contemplated by the Agreement, and prevent release of
any hazardous materials into the environment.
■ Accomplish a required lot line adjustment and prepare a final parcel map to merge
and reparcelize the site into a single parcel prior to closing.
■ Provide proof of insurance; maintain insurance coverage as specified in the
Agreement.
■ Enter into an Affordable Housing and Maintenance Covenant which restrict rents
and occupancy to affordability levels consistent with the description in Section I
for 55- years.
■ Execute Agreements including the Memorandum of Agreement, the Covenant,
the Note, the Deed of Trust, and other documents required per the Agreement.
■ Provide the Commission with conceptual drawings, design development
drawings, construction drawings, and evidence of financing commitments,
financial statements, and Developer's by -laws for review and approval by the
Commission within the timeline set forth in the Agreement.
■ Construct all improvements to a high architectural quality with effective and
aesthetical design and in accordance with the Uniform Building Code and City
Municipal Code as specified in the Agreement.
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■ Comply with all applicable state, federal, and local laws including the Americans
with Disabilities Act, the Unruh Civil Rights Act and agree not to discriminate in
hiring or employment practices.
■ Indemnify the City and Commission with respect to any violations of the law
arising out of the completion of Developer's obligations.
■ Pay all real estate taxes and assessments prior to delinquency.
■ Repay the Commission Assistance of $1,675,000 and all accrued interest at the
end of the 55 -year term as required by the Agreement.
In the event the Developer defaults on its obligations under the Agreement the Developer will
not receive any further Commission Assistance for acquisition, predevelopment, development, or
construction and any loan amounts then outstanding will, at the Commission's option, become
immediately due and payable. Prior to transfer of the property to the Developer, the Commission
Assistance will be unsecured, after transfer of the property the outstanding Assistance will be
secured by a Deed of trust on the property.
HI. COST OF THE AGREEMENT TO THE COMMISSION
This section presents the total potential cost of the Agreement to the Commission. The net cost of
the Project after consideration of the revenues that will accrue to redevelopment funds, if any, is
.also evaluated.
A. Estimated Cost to the Commission
The total cost to the Commission is estimated at $2.58 million in nominal dollars, including $1.71
million to acquire the site and $865,000 of cash assistance to the Project (Commission Assistance
for predevelopment and construction costs)
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
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Estimated Total Commission Cost
Project Site Acquisition
Commission Assistance for Predevelopment and
Construction Costs
Est. Total Commission Cost
Nominal NPV 5%
$1,712,000 $1,630,000
$865,000 $837,000
$2,577,000 $2,467,000
In present value terms the total cost to the Commission is estimated at approximately $2.47
million. The cost of the land is approximately $1.63 million net present value (NPV). The
Commission Assistance is assumed to be funded in 2006 and 2007 and total $837,000 in NPV
terms.
B. Revenues to the Commission
Revenues to the Commission are estimated to total $2.89 million in nominal dollars, reflecting
repayment of the $1,675,000 Commission Assistance loan and accrued interest (1% annual) at
the end of the 55 -year term of the loan.
Nominal NPV@ 5%
Repayment of Commission Assistance $2,885,000 $197,000
The net present value of the $2,885,000 projected payment is approximately $197,000, reflecting
a 5% discount rate.
The Commission will not receive any property tax increment from the Vida Nueva Project as the
Project will be exempt from taxes.
C. Net Cost to the Commission
The net cost to the Commission resulting from this transaction is the difference between the
Commission's costs and revenues. As shown below, it is estimated that in nominal dollar terms,
the transaction will result in net revenue to the Commission of $308,000. However, in terms of
2 Commission cost to acquire the site from the City of Rohnert Park. A $1.63 million purchase price was set based
on the November 1, 2005 appraised value per the Ronald J. Crocker Appraisal. The purchase price is to be paid
over three years with 5 % annual interest. Pursuant to the promissory note between the commission and the City,
payment of the purchase price and accrued interest will be paid over 3 years with annual installments equal to 1/3 of
the original principal balance and all accrued interest.
3 The Commission Assistance totals $1,675,000 but only $865,000 of the loan represents an additional cost to the
Commission as $810,000 is a note for the purchase price of the site. Net Present Value calculation assumes that the
pre - development and development cost disbursements are made by the Commission during 2006 and 2007.
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
Page 8
net present value, the transaction results in a net cost to the Commission of approximately $2.27
million.
Nominal NPV 5%
Commission Costs $2,577,000 $2,467,000
(Less) Commission Revenues $2,885,000 $197,000
Total Net Commission Cost (Revenue) ($308,000) $2,270,000
IV. VALUE OF THE INTEREST TO BE CONVEYED
Reuse Value
The reuse value of the property is a direct function of the development economics of the specific
Project required in the Agreement. The Project will consist of a total of twenty four (24) rental
apartments. Under the affordability covenants to be recorded on behalf of the Commission,
twenty three (23) of the units must be occupied by and rented at rates affordable to households
earning no more than 50% of AMI. The Project may have one unrestricted manager's unit. The
income and rent restrictions will extend for 55 years in accordance with Section 50052.5 of the
California Health and Safety Code.
Additionally the Project will need to comply with the 55 -year rent and income restrictions
required by the MHP funding source. The MHP program has deeper affordability requirements
than the Commission, requiring that at least 50% of the units be rented at rates affordable to
households earning no more than 30% of AMI, 25% be rented at rates affordable to households
earning no more than 40% of AMI, and 21 % of the units be rented at rates affordable to
households earning no more than 50% of AMI.
Keyser Marston Associates, Inc. (KMA) evaluated the development economics of this Project.
KMA's analysis indicated that because of the deep MHP affordability restrictions, the Project's
economics support only $150,000 of debt. In order to finance the Project's estimated $6.4
million of development costs (excluding land), the Developer will be securing a number of
subsidy sources, including $2.8 million of tax credit equity, $2.1 million of Proposition 46 bond
funds (MHP funds) and $387,000 of funds from Sonoma County. In addition, the Developer will
be deferring approximately $140,000 of the Developer fee, which will be funded over time to the
extent that there is available net cash flow.
By securing approximately $5.3 million of subsidy sources beyond the assistance from the
Commission, the Developer is using all commercially reasonable outside subsidy and private
33433 Vida Nueva May 16, 2006 Keyser Marston Associates, Inc.
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resources for the project's development. The Commission's Assistance will cover approximately
23% of the Project's entire development cost (including land). Given that the Project's rental
income (with 23 affordable units) is estimated to support only approximately 2.4% of the
Project's development costs (excluding land costs) and the consideration that the Developer will
be securing all other reasonable subsidy sources for the Project, KMA found that:
• the fair reuse value of the site is nominal; and
• the Commission's Assistance is necessary for the Project's feasibility and meets the
requirement of Section 33334.30), which states that agencies may not use Housing Fund
monies to the extent that "other reasonable means of private or commercial financing"
are available to the agency or the developer to produce ne housing units in the same
quantity and at the same affordability levels as the proposed agency financing would
allow.
Estimated Value at Highest and Best Use
In November 2005 the 81,600 square foot subject site was appraised for $1.63 million for market
rate high - density residential use, which is the estimated fair market value of the site at its highest
and best use.
V. CONSIDERATION RECEIVED AND REASONS THEREFOR
Under the terms of the Agreement, the Developer will purchase the property from the
Commission .for the stated value of $810,000. Payment of the purchase price along with accrued
interest at the rate of I % will be due at the end of a 55 -year term. The net present value of the
land payment assuming a 5% discount rate is approximately $96,000. This amount is less than
the estimated fair market value at highest and best use. The Project's economics are not strong
enough to support a purchase price based on the value at the highest and best use, as discussed in
Section IV of this report. This is due to the affordability restrictions to be placed on the property,
which greatly reduce the income - generating capability and value of the Project. Consequently,
the Commission will receive only $96,000 for the land, which is greater than the property's up-
front nominal fair reuse value, but can be supported by the Project's projected cash flow after
year 55 as the affordability covenants will be removed at that time.
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VI. PROVISION OF VERY LOW -, LOW -, AND MODERATE - INCOME HOUSING
This Project will provide twenty four (24) rental units, with twenty three (23) affordable units
restricted by the Commission to households with incomes that are 50% of AMI or less, and one
(1) manager unit that will not be income restricted. All 23 affordable units will carry 55 -year
deed restrictions to maintain affordability. Redevelopment law defines a "low- income" unit as a
unit affordable to households at or below 80% of AMI, and a "very low- income" unit as a unit
affordable to households at or below 50% of AMI. Therefore, the Project will increase the
supply of very low- income housing in the Project Area by 23 units.
VII. CONFORMANCE WITH FIVE -YEAR IMPLEMENTATION PLAN
Development of the subject Project as affordable housing is consistent with the goals and
affordable housing requirements described in the Commission's Implementation Plan for Fiscal
Years 2004 -05 through 2008 -09. The Project accomplishes a number of objectives, as follows:
■ The project adds 23 very low- income rental units to the City's supply of deed - restricted
units;
■ By requiring a high architectural quality, the Project is consistent with the
Implementation Plan goal of improving the visual image of the City;
■ By creating jobs in maintenance and operation of the rental units, the Project contributes
to the Implementation Plan objective of improving employment opportunities; and
■ With 100 % of the units restricted to very low- income households, the Project is
consistent with the Association of Bay Area Government's affordability targets for the
City of Rohnert Park, which state that at least 31.5% of the City's total housing need is
for very low- income units.
The Project is specifically identified in the Implementation Plan as one of the affordable housing
developments that will be used to fulfill the Commission's affordable housing production
requirements. In reference to the Vida Nueva Project, the Implementation Plan provides:
"Vida Nueva — Provided the site is developed, the CDC anticipates the
development of 25 very low income units at this location."
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m
910757v4 80078/0022
AFFORDABLE HOUSING AND LOAN AGREEMENT
by and between the
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK,
a public body corporate and politic
and
BURBANK HOUSING DEVELOPMENT CORPORATION,
a California nonprofit public benefit corporation
Vida Nueva Affordable Housing Project
TABLE OF CONTENTS
Page
100.
DEFINITIONS; REPRESENTATIONS AND WARRANTIES ....................... ..............................2
I I
101.
Definitions .......................................................................................................... ..............................2
x
102.
Representations and Warranties ......................................................................... ..............................3
11
302.
102.1 Commission Representations ................................................................ ..............................3
303.
102.2 Prevailing Wages .................................................................................. ..............................4
11
304.
102.3 Developer's Representations ................................................................ ...............................
5
103.
Title Insurance ................................................................................................... ...............................
6
104.
Review of Title ................................................................................................... ..............................6
105.
Access to Site Prior to Closing ......................................................................... ...............................
6
106.
Condition of the Site ......................................................................................... ...............................
6
106.1 Investigation of the Site ....................................................................... ...............................
6
106.2 No Further Warranties As To Site; Release of Commission ............... ...............................
7
107.
Developer's Obligations with Respect to Hazardous Materials After Closing . ...............................
7
107.1 Duty to Prevent Hazardous Materials Contamination ......................... ......................:........
7
305.
107.2 Environmental Inquiries ........................................................................ ..............................8
107.3 Environmental Indemnification ........................................................... ...............................
8
107.4 Materiality. ................................ .........................................................................................
8
108.
Lot Line Adjustment ......................................................................................... ...............................
8
200. COMMISSION DISPOSITION OF THE SITE TO DEVELOPER ................. ............................... 9
201.1 Purchase and Sale of the Site ................................................................ ..............................9
202. Escrow and Closing .......................................................................................... ............................... 9
202.1 Escrow ................................................................................................... ..............................9
202.2 Escrow Instructions ............................................................................... ..............................9
202.3 Conditions Precedent to Closing ........................................................... ..............................9
300.
DEVELOPMENT_ ............................................................................................................ ..........
I I
301.
Scope of Development .................................................................................... ...............................
x
301.1 Site Improvements .............................. . ... ......... ...... .... .................................................. I....
11
302.
Permits and Approvals ...................................................................................... .............................11
303.
Schedule of Performance... ............................................. ..............................................................
11
304.
Design Review ................................................................................................ ...............................
12
304.1 Basic Concept Drawings ...................................................................... .............................12
304.2 Design Development Drawings ........................................................... .............................12
304.3 • Construction Drawings and Related Documents ................................. .............................12
304.4 Revisions .............................................................................................. .............................13
304.5 Consultation and Coordination ............................................................ .............................13
304.6 Defects in Plans... ..............................................................................................................
13
304.7 Architecture and Design; Applicable Codes ...................................... ...............................
13
304.8 Cost of Construction ............................................................................ .............................14
305.
Insurance Requirements .................................................................................... .............................14
305.1 Comprehensive or Commercial General Liability Insurance... .........................................
14
305.2 Comprehensive Automobile Liability Insurance ............................... ...............................
14
305.3 Combined Single - Limit, Building's All -Risk Insurance ...................... .............................14
305.4 Worker's Compensation tnsurance ....................................................... .............................15
305.5 Certificate of Insurance ........................................................................ .............................15
306.
Rights of Access ................................................................................................ .............................15
307.
Compliance With Laws; Indemnity; Waiver .................................................... .............................15
308.
Taxes and Assessments ..................................................................................... .............................16
309.
Project Sign ........ ............................................. ....... ....... ....... .............................................. ............
16
910757A 80078/0022
1
310.
Liens and Stop Notices ..................... ...............................
311.
- - -.16
Right of Commission to Satisfy Other Liens After
Title Passes ....................... .............................16
312.
Certificate of Completion ..................................................................................
313.
.............................17
Mortgage, Deed of Trust, Sale Lease Financing
and -Back ............................... .............................17
313.1 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and Lease -Back for
Development........................................................................................
....................... ......17
313.2 Holder Not Obligated to Construct Improvements
.............................. .............................17
313.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure .......................17
313.4 Right of Commission to Cure Mortgage or Deed of Trust Default ..... .............................18
314.
Records and Reporting Obligations .................................................................. .............................18
400.
COVENANTS, RESTRICTIONS AND AGREEMENTS ............................... .............................18
401.
Use Covenants ..................................................................................................
402.
.............................18
Subordination of Covenant
............................................................................... ........:....................19
402.1 To MHP Affordability Restrictions
..................................................... .............................19
402.2 To Construction Financing
................................................................... .............................19
402.3 To Permanent Financing
...................................................................... .............................19
500.
FINANCIAL PROVISIONS .............................................................................
501.
.............................19
Evidence of Financing and Loan Closings
........................................................ .............................19
502.
Commission Assistance ....................................................................................
.............. ...............20
502.1
........................................................................................................... ...............................
20
502.2 Conditions Precedent to Predevelopment Commission Assistance ..... .............................21
502.3 Conditions Precedent to Purchase Assistance .................................... ...............................
21
502.4 Conditions Precedent to Development Commission Assistance .......... .............................22
502.5 Reimbursement of Surplus Funds ......................................................
23
503,
...............................
Developer's Financing
504.
...................................................................................... .............................24
Subordination of Deed of Trust
...................................................................... ...............................
504.1 MHP Financing
24
...............................................................................:.... ......................... . ...24
504.2 To Construction Financing
................................................................... ............. ................24
504.3 To Permanent Financing
..................................... ............................... ...................24
600.
DEFAULTS AND REMEDIES ........................................................................
601.
.............................25
Default
............................................................................................................... .............................25
601.1 General Remedies
.............................................................................. ...............................
601.2 Specific Performance; Disbursement Cessation
25
.................................. .............................25
602.
Institution of Legal Actions ............................................................................
25
603.
............. ..................
Termination
604.
....................................................................................................... .............................25
Acceptance of Service of Process
605.
................................................................... .........................:.....
Rights and Remedies Are Cumulative
25
606.
............................................................ ...............................
Inaction Not a Waiver of Default
25
...................................................................... .............................26
700.
GENERAL PROVISIONS ...............................................................................
701.
.............................26
Notices, Demands and Communications Between the Parties
........................ ...............................
26
702.
Term of Agreement; Enforced Delay; Extension of Times of Performance ... ...............................
27
703.
Successors and Assigns .....................................................................................
704.
.............................27
Memorandum of Agreement
705.
............................................................................. .............................27
Relationship Between Commission and Developer, City and Developer
28
706.
....... ...............................
Commission Approvals and Actions .................................................................
707.
.............................28
Counterparts
708.
...................................................................................................... .............................28
Integration
709.
....................................................................................................... ...............................
Titles and Captions
28
710.
............................................................................................ .............................28
Interpretation
711.
................................................................................................... .................. .............
No Waiver
28
712.
......................................................................................................... .............................28
Modifications
.................................................................................................. ...............................
28
910757v4 80078/0022 ii
El
713.
Severability ..................................................................................................... ...................... .........
28
714.
Computation of Time .............................................................-........................ ...............................
29
715.
Legal Advice ..................................................................................................... .............................29
716.
Time of Essence .............................................................................................. ...............................
29
717.
Cooperation ......................................................................... ............................... .. .........................29
718.
Conflicts of Interest ......................................................................................... ...............................
29
719.
Time for Acceptance of Agreement by Commission ...................................... ...............................
29
720.
Developer's Indemnity .......................................................... ............................... .
29
721.
Non - liability of Officials and Employees of Commission and Developer ..... ....:..........................
29
722.
Assignment ....................................................................................:................ ...............................
30
722.1 By Commission .................................................................................. ...............................
30
722.2 By Developer ....................................................................................... .............................30
721
Applicable Law ..............:.................................................................................................. .............30
724.
Authorization .................................................................................................. ................:..............
30
725.
Attorneys' Fees .................................................................................................. .............................30
726.
City as Third Party Beneficiary ....................................._------..........-----........... ...............................
30
727.
Discretionary Approvals ................................................................................. ...............................
30
Attachment No. 1
Attachment No. 2
Attachment No. 3
Attachment No. 4
Attachment No. 5
Attachment No. 6
Attachment No_ 7
Attachment No. 8
Attachment No. 9
Attachment No. 10
Attachment No. 11
Attachment No. 12
Attachment No. 13
Site Map
Site Legal Description
Schedule of Performance
Joint Escrow Instructions
Grant Deed
Form of Certificate of Completion
Affordable Housing and Maintenance Covenant
Performance Deed of Trust
Memorandum of Agreement
Pronussory Note
Deed of Trust
Pre - Development Agreement
Proforma
910757v4 80078/0022 iii
AFFORDABLE HOUSING AND LOAN AGREEMENT
THIS AFFORDABLE HOUSING AND LOAN AGREEMENT ( "Agreement ") is entered into by
and between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK, a public body corporate and politic ( "Commission "), and VIDA NUEVA PARTNERS, L.P., a
California limited partnership ( "Developer "), dated as of this , day of , 2006, the date of
execution of this Agreement by Commission indicated on the signature page hereof ( "Date of Agreement ").
RECITALS
The following recitals are a substantive part of this Agreement:
A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the
Redevelopment Project by providing for the disposition of the Site by Commission to Developer for
development, maintenance, and operation thereon of a Project including a twenty -four (24) unit permanent
affordable housing rental complex as set forth in Section 401 hereof and in the Covenant (defined below).
B. Commission desires to enter into this Agreement because, pursuant to the Community
Redevelopment Law and the Redevelopment Plan, it will provide affordable housing in the community, help
to eliminate blight in the Redevelopment Project area, increase the employment opportunities within the
Redevelopment Project area, and assist in providing an environment for the social, psychological and
economic growth and well -being of the citizens of the City.
C. Commission is authorized and empowered under Community Redevelopment Law and the
Redevelopment Plan to enter into agreements for the acquisition, disposition and development of real
property and otherwise to assist in the redevelopment of real property within the Redevelopment Project area
in conformity with the Redevelopment Plan; to acquire real and personal property in the Redevelopment
Project area; to receive consideration for the provision by Commission of redevelopment assistance; to make
and execute contracts and other instruments necessary or convenient to the exercise of its powers; and to
incur indebtedness to finance or refinance the Redevelopment Project.
D. Commission and Burbank Housing Development Corporation, a California nonprofit public
benefit corporation ( "BHDC "), have entered into a Pre - Development Agreement dated December 19, 2002
(as modified by an Amendment dated August 26, 2003 and an Amendment No. 2 dated September 27, 2005)
(collectively, "Pre- Development Agreement ") through which BHDC has received an advance of $266,667
for pre - development activities to date. Further disbursements of predevelopment monies shall be governed
by this Agreement. The Pre - Development Agreement is attached hereto and incorporated herein as
Attachment No. 12.
E. The Community Housing Redevelopment Corporation of Santa Rosa ( "CHDSR "), BHDC,
and the Committee on the Shelterless ( "COTS ") will execute a "Joint Development and Operating
Agreement" that will assign financing, development, management and service responsibilities of the Project
to each organization. Developer will contract with Burbank Housing Management Corporation ( "BHMC ")
to provide property management services for the Project ( "Management Agreement ")
F. Commission plans to enter into a separate professional services agreement with COTS or
such other organization as acceptable to Commission in order to provide financial assistance for social
services for members of a Special Needs Population ( "Professional Services Agreement ").
G. Pursuant to section 33334.2 of the California Health and Safety Code, Commission has set
aside twenty percent (20 %) of tax increment revenues allocated to it to improve and increase the supply of
affordable housing in the City of Rolinert Park. Commission desires to use a portion of these monies to
make a loan to Developer for acquisition of the Site and development of the Project.
H. Commission and Developer desire to enter into this Agreement in order to set forth the terms
and conditions relating to: (i)_the development and maintenance of the Project by Developer; (ii) the
provision of Commission Assistance to Developer; and (iii) the provision of covenants to ensure the
910757x4 80078/0022
la
Affordable Units on the Site shall remain affordable (at the levels set forth in the Covenant, or such other
more restrictive terms as may apply) for the longest feasible time.
I. The fulfillment of this Agreement is in the vital and best interests of the City and the health,
safety and welfare of its residents and in accord with the provisions of applicable federal, state and local law.
AGREEMENT
NOW, THEREFORE, Commission and Developer hereby agree that the Recitals above are
incorporated by reference and further agree as follows:
100. DEFINITIONS; REPRESENTATIONS AND WARRANTIES
101. Definitions.
"Affiliate of Developer" means an entity or entities in which Developer retains more than fifty
percent (50 %) in the aggregate, directly or indirectly, of the ownership or beneficial interest and retains full
management and control of the transferee entity or entities, either directly or indirectly through another
entity, subject only to certain major events requiring the consent or approval of the other owners of such
entity.
"Affordable Housing Fund" means the low and moderate income housing fund established by
Commission pursuant to section 33334.3 of the Community Redevelopment Law.
"Agreement" means this Affordable Housing and Loan Agreement between Commission and
Developer.
"Certificate of Completion" means the document which evidences Developer's satisfactory
completion of construction and installation of the Improvements, as set forth in Section 312 hereof, in the
form attached hereto as Attachment No. 6 and incorporated herein.
"City" means the City of Rohnert Park, a California municipal corporation.
"Commission " means the Community Development Commission of the City of Rohnert Park, a
public body, corporate and politic, exercising governmental functions and powers and organized and existing
under Chapter 2 of the Community Redevelopment Law of the State of California, and any assignee of or
successor to its rights, powers and responsibilities.
"Commission Assistance" means the funds lent to Developer for purposes of Site acquisition, and
Project predevelopment and development.
"Community Redevelopment Law" means the Community Redevelopment Law of the State of
California (Health and Safety Code section 33000, et seq.).
"Covenant" means the Affordable Housing and Maintenance Covenant to be recorded against the
Site as provided in Section 401 in the form attached hereto as Attachment No. 7.
"Date of Agreement" means the date first set forth above.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations,
orders and decrees, of the United States, the State of California, the County of Sonoma, the City, or any other
political subdivision in which the Site is located, and of any other political subdivision, Commission or
instrumentality exercising jurisdiction over Commission, Developer or the Site.
"Grant Deed" means the Grant Deed for the conveyance of the Site from Commission to Developer
in the form attached hereto as Attachment No. 5 and incorporated herein.
"Hazardous Materials" means any substance, material, or waste which is or becomes regulated by
any local governmental authority, the State of California, or the United States Government, including any
material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste," or
"restricted hazardous waste" under sections 25117, 25115 or 25122.7, or listed pursuant to section 25140 of
the California Health and Safety Code, Division 20, Chapter 6.5 ( "Hazardous Waste Control Law ");
910757A 80078/0022
.x
(ii) defined as a "hazardous substance" under section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter- Presley- Tanner Hazardous Substance Account Act); (iii) defined as a
"hazardous material," "hazardous substance," or "hazardous waste" under section 25501 of the California
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory); (iv) defined as a "hazardous substance" under section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable
asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20;
(ix) designated as "toxic pollutants" pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1317);
(x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery
Act, 42 U.S.C. section 6901, et seq. (42 U.S.C. §6903); or (xi) defined as "hazardous substances" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S -C.
section 9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
"Loan Documents" means Section 500 of this Agreement, the Promissory Note, and the Deed of
Trust (including the addendum thereto) only.
"Low and Moderate Income Housing Fund" means Commission's low and moderate income
housing fund, as established pursuant to Health and Safety Code section 33334.3.
"Project" means the Site and the Improvements to be constructed by Developer as set forth herein.
"Redevelopment Plan" means the Redevelopment Plan for the Redevelopment Project, adopted by
Ordinance No. 479 of the City Council of the City on July 14, 1987, as amended, and incorporated herein by
reference.
"Redevelopment Project" means the Rohnert Park Community Development Project, adopted by the
City pursuant to the Redevelopment Plan.
"Schedule of Performance" means the Schedule of Performance attached hereto as Attachment
No. 3 and incorporated herein, setting out the dates and/or time periods by which certain obligations set forth
in this Agreement must be accomplished. The Schedule of Performance is subject to revision from time to
time as mutually agreed upon in writing between Developer and Commission's Executive Director, and
Commission's Executive Director is authorized to make such revisions as he or she deems reasonabl}
necessary.
"Site" means that certain real property as described in Attachment No. 2 which Commission intends
to transfer to Developer and on which Developer will construct the Improvements. The Site is comprised
approximately 1.87 acres on two contiguous vacant parcels (which are subject to a lot line adjustment as
provided herein) and is located within the Redevelopment Project area at 705 Rohnert Park Expressway,
Rohnert Park, CA as depicted on the Site Map, attached hereto as Attachment No. 1 and more particularly
described in the Site Legal Description attached hereto as Attachment No. 2.
"Site Legal Description" means the description of the Site attached hereto as Attachment No. 2 and
incorporated herein. The Site is presently comprised of two parcels which, prior to Closing, shall be merged
into one legal parcel as provided in this Agreement.
"Site Map" means the map of the Site attached hereto as Attachment No. 1 and incorporated herein.
"Very Low Income Person" or "Very Low Income Household" means a person or household
whose gross income is 50% or less of area median income or such other standard as set from time to time
pursuant to California Health and Safety Code section 50105, as amended, or any successor statute thereto.
102. Representations and Warranties.
102.1 Commission Representations. Cormnission represents and warrants to
Developer as follows:
910757A 80078/0022
a. Authority. Commission is a public body, corporate and politic, existing pursuant to
the California Community Redevelopment Law (California Health & Safety Code section 33000, et seq.),
which has been authorized to transact business pursuant to action of the City. Commission has full right,
power and lawful authority to perform its obligations hereunder and the execution, performance and delivery
of this Agreement by Commission has been fully authorized by all requisite actions on the part of
Commission.
b. No Conflict. To the best of Commission's knowledge, Commission's execution,
delivery and performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which Commission is a party or by which it is bound.
102.2 Prevailing Wages.
a. Developer acknowledges and agrees that the work of the Improvements (as defined
in Section 301) will constitute construction, alteration, demolition, installation, or repair work done under
contract and paid for in whole or in part out of public funds under California Labor Code Section 1720 et
seq. ( "State Prevailing Wage Law "). Accordingly, unless Developer receives a ruling from the Department
of Industrial Relations that State Prevailing Wage Law does not apply to the Improvements, Developer shall
comply with the State Prevailing Wage Law, State Labor Code requirements pertaining to "public works,"
including the payment of prevailing wages in connection with development of the Project, and such
prevailing wage policies as set forth in the Rohnert Park Municipal Code (collectively, "Prevailing Wage
Policies "). Except to the extent Developer obtains a ruling to the contrary from the Department of Industrial
Relations, Developer shall comply with Prevailing Wage Policies, shall require shall require the general
contractor for the Project to comply with Prevailing Wage Policies, and, upon written request by
Commission, submit certified copies of payroll records to Commission and to maintain and make records
available to Commission and its designees for inspection and copying to ensure compliance with Prevailing
Wage Policies. Developer shall also include in its general contractor agreement and in all. of its leases and
other contracts a provision, in form acceptable to Commission, obligating the general contractor lessee, or
others as applicable, to require their respective contractors and/or subcontractors to comply with Prevailing
Wage Policies, and to submit, upon request by Commission, certified copies of payroll records to
Commission and to maintain and make such payroll records available to Commission and its designees for
inspection and copying during regular business hours at the Site or at another location within the City of
Rohnert Park.
b. Developer shall defend, indemnify and hold harmless Commission and City and its
and their officers, officials, employees, volunteers, agents and representatives (collectively, "Indemnitees ")
from and against any and all present and future liabilities, obligations, orders, claims, damages, fines,
penalties and expenses (including attorneys' fees and costs) (collectively, "Claims "), arising out of or in any
way connected with Developer's obligation to comply with all laws with respect to the work of
Improvements or Prevailing Wage Policies, including all Claims that may be made by contractors,
subcontractors or other third party claimants pursuant to Labor Code sections 1726 and 1781, as amended
and added by Senate Bill 966.
C. Developer hereby waives, releases and discharges forever the Indemnitees from any
and all present and future Claims arising out of or in any way connected with Developer's obligation to
comply with all laws with respect to the work of Improvements and Prevailing Wage Policies. Developer is
aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as
follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the debtor."
910757v4 80078/0022
As such relates to this Section 102.2, Developer hereby waives and relinquishes all rights
and benefits which it may have under Section 1542 of the California Civil Code. The obligations of
Developer under this Section 102.2 shall survive the termination of this Agreement.
as follows:
102.3 Developer's Representations. Developer represents and warrants to Commission
a. Authority.
i. Developer is a duly organized limited partnership organized within
and in good standing under the laws of the State of California. The copies of the documents evidencing the
organization of Developer that have been delivered to Commission are true and complete copies of the
originals, as amended to the Date of Agreement. Developer has full right, power and lawful authority to
undertake all obligations as provided herein and the execution, performance and delivery of this Agreement
by Developer has been fully authorized by all requisite actions on the part of Developer.
ii. Developer represents and warrants the following items. Vida Nueva
Partners, L.P. is a duly organized limited partnership organized within and in good standing under the laws
of the State of California. Vida Nueva Partners, L.P. consists of BHDC as the managing general partner with
a five hundredth of a percent (.05 %) interest, CHDSR as the co- general partner with a five hundredth of a
percent (.05 %) interest, and BHMC as the initial limited partner with a ninety -nine and nine- tenths of a
percent (99.9 %) interest. BHDC, CIIDSR, and BHMC are each non -profit organizations pursuant to Internal
Revenue Code Section 501(c)(3). True and complete copies of the originals of the documents evidencing the
organization of Vida Nueva Partners, L.P. shall be delivered to Commission the date of this Agreement.
Vida Nueva Partners, L.P. has full right, power and lawful authority to undertake all obligations as provided
herein and the execution, performance and delivery of this Agreement by Vida Nueva Partner, L.P. has been
fully authorized by all requisite actions on the part of Vida Nueva Partners, L.P.
b. No Conflict. To the best of Developer's knowledge, Developer's execution,
delivery and performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which Developer is a party or by which it is bound.
C. No Developer Bankruptcy. Developer is not the subject of a bankruptcy
proceeding.
d. No Litigation. There are no Claims, causes of action or other litigation or
proceedings pending or threatened against Developer, or any affiliate thereof, that would affect Developer's
ability to undertake and satisfy all of its obligations pursuant to this Agreement.
e. Developer Sophistication. Developer's managing general partner is a
sophisticated owner, builder, and developer of real property (including affordable housing), familiar and
experienced with requirements for such development of real property, the Site, and the Project. Developer is
familiar with the Site and has made, or will make prior to Closing such independent investigation as it deems
necessary or appropriate concerning the Site, including the following: the size and dimensions of the Site, the
availability and adequacy of water, sewage, fire protection, and any utilities serving the Site; any physical
conditions of or affecting the Site, such as climate, geological (including slope stability), drainage, air, water
or mineral conditions; the extent and conditions of title to the Site; the existence of flora and fauna on the
Site or adjacent to the Site that may be entitled to protection or considered candidates for protection under
local, state or federal law; governmental laws, statutes, rules, regulations, ordinances, limitations on title,
restrictions or requirements concerning the use of the Site; and all other matters concerning the conditions,
use or sale of the Site, including any existing permits, licenses, agreements, and liens, zoning reports,
engineers' reports and studies and similar information relating to the Site.
Until Closing, Developer shall, upon learning of any fact or condition which would cause
any of the warranties and representations in this Section 102.3 not to be true, immediately give written notice
of such fact or condition to Commission. Such exception(s) to a representation shall not be deemed a breach
910757A 80078/0022
of this Agreement by Developer, but shall constitute an exception that Commission shall have a right to
approve or disapprove. If Commission elects to close Escrow following disclosure of such information,
Developer's representations and warranties shall be deemed to have been made as of Closing, subject to such
exception(s). If, following the disclosure of such information, Commission elects to not close Escrow, then
this Agreement and Escrow shall automatically terminate, and neither party shall have any further rights,
obligations or liabilities pursuant hereunder. The representations and warranties set forth in this section shall
survive Closing.
103. Title Insurance. Concurrently with recordation of the Grant Deed conveying title to the
Site, there shall be issued to Developer a CLTA owner's policy of title insurance ( "Title Policy "), together
with such endorsements as are reasonably requested by Developer, issued by Title Company insuring that the
title to the Site is vested in Developer in the condition required by Section 104 of this Agreement. Title
Company shall provide Comrission with a copy of the Title Policy. The Title Policy shall be in the amount
of Commission Assistance. The premium for the Title Policy plus any additional costs, including the cost of
an ALTA policy, surveys, and any endorsements requested by Developer shall be borne by Developer.
Commission may request an ALTA Lender's policy of Title Insurance together with such endorsements as
Commission may reasonably require ( "Lender's Policy ") in conjunction with the Title Policy. Developer
shall bear all costs associated with the Lender's Policy.
104. Review of Title. Developer has caused North American Title ( "Title Company "), to deliver
to Developer and to Commission a standard preliminary title report (update no. 1) dated March 13, 2006
( "Report") with respect to the title to the Site, together with legible copies of the documents underlying the
exceptions ( "Exceptions ") set forth in the Report and hereby approves the Report and the Exceptions.
Developer shall have the right to approve or disapprove any other material title exceptions reported by Title
Company after Developer has approved the Report and the Exceptions (which are not created by Developer).
105. Access to Site Prior to Closing. Prior to Closing, Commission shall allow representatives
of Developer to have access to the Site at all reasonable times for the purpose of obtain' ing data and making
surveys and tests necessary to carry out this Agreement, including the investigation of the environmental
condition of the Site. Commission may require Developer to execute a right of entry agreement(s)
satisfactory to Comrnission's legal counsel prior to commencing such studies or work. Any preliminary work
by Developer shall be undertaken only after securing all required insurance and any and all necessary permits
from the appropriate governmental agencies. Developer shall indemnify, defend and hold the Indemnitees
harmless from any and all present and future Claims arising from the acts or activities of Developer and its
officers, agents, employees, independent contractors, invitees, licensees, affiliates, and subsidiaries as set
forth in this Section 105. In addition, in the event that Developer causes any damage to any portion of the
Site, Developer shall promptly restore the Site as nearly as possible to the physical condition existing
immediately prior to Developer's entry onto the Site.
106. Condition of the Site.
106.1 Investigation of the Site. Commission has provided Developer with all
information of which it has actual knowledge concerning the physical condition of the Site, including
information about any Hazardous Materials. Developer has inspected the site and has satisfied itself as to the
physical and environmental conditions thereof. Subject to the termination rights set forth in this
Section 106. 1, Developer, at Developer's sole cost and expense, shall be responsible for all remediation
work, together with Environmental Compliance as set forth in Section 202.31. Developer shall notify
Commission in writing of any environmental condition of the Site requiring remediation. Upon such
notification, Commission and Developer shall have the following options with respect to the Site: (1) either
Commission or Developer may terminate this Agreement by providing the other with written notice of such
termination; or (ii) within twenty (20) days of Developer's notice to Commission that remediation of the Site
is required, Developer may elect to pay the costs of conducting the remedial work on the Site in accordance
with all Governmental Requirements. In the event that remedial work is required and neither Commission
nor Developer has elected to terminate this Agreement as provided in this Section 106. 1, then, within the
time set forth in the Schedule of Performance, Developer shall obtain the issuance of closure letters without
910757A 80078/0022
any requirement of further remedial work from all governmental agencies which have asserted jurisdiction
over the remediation of the Site and provide copies of such closure letters to Commission. The remedial
work shall be performed in accordance with all applicable Governmental Requirements.
106.2 No Further Warranties As To Site; Release of Commission.
a. Developer is purchasing the Site on the basis of Developer's own
investigation of the physical and environmental conditions of the Site, including subsurface conditions, and
except as specifically set forth in Section 106. 1, Developer assumes the risk that adverse physical and
environmental conditions may not have been revealed by its own investigation. Notwithstanding any
provision of this Agreement to the contrary, the Site shall be conveyed by Commission to Developer in its
"AS -IS" condition, "WITH ALL FAULTS," with no warranty expressed or implied by Commission
regarding the presence of Hazardous Materials or the condition of the soil, its geology, the presence of
known or unknown seismic faults, title to the Site or the suitability of the Site for the development purposes
intended hereunder. To the extent authorized by contract or law, Commission shall assign to Developer all
warranties and guaranties with respect to the Site, if any, that Commission may receive from prior owners of
the Site.
b. Developer hereby waives, releases and discharges forever Commission and
the City, and its and their employees, officers, volunteers, agents and representatives, from any and all
present and future Claims arising out of or in any way connected with the condition of the Site, any
Hazardous Materials on, under or about the Site, or the existence of Hazardous Materials contamination due
to the generation of Hazardous Materials from the Site, however they came to be placed there, except those
arising out of the active negligence or willful misconduct of Commission or City or its or their employees,
officers, volunteers, agents or representatives. Developer is aware of and familiar with the provisions of
section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
As such relates to this Section 106.2, Developer hereby waives and relinquishes all rights and
benefits that it may have under section 1542 of the California Civil Code. The obligations of Developer
under this Section 106.2 shall survive the termination of this Agreement.
107. Developer's Obligations with Respect to Hazardous Materials After Closing. After
Closing, Developer shall, at its sole cost and expense, promptly take (i) all actions required by any federal,
state or local governmental agency or political subdivision or any Governmental Requirements with respect
to the Site pursuant to this Agreement; (ii) all actions necessary to prepare the soil for the development
required hereunder; and (iii) all actions necessary to make full economic use of the Site pursuant to this
Agreement for the purposes described in this Agreement, which actions, requirements or necessities arise
from the presence upon, about or beneath the Site of any Hazardous Materials regardless of when such
Hazardous Materials were introduced to the Site and regardless of who is responsible for introducing such
Hazardous Materials to the Site. Developer shall take all actions necessary to promptly restore the Site to an
environmentally sound condition for uses contemplated by this Agreement, notwithstanding any lesser
standard of remediation allowable under applicable Governmental Requirements. The obligations under this
Section 107 shall survive the issuance of the Certificate of Completion.
107.1 Duty to Prevent Hazardous Materials Contamination. After Closing,
Developer shall take all reasonably necessary precautions to prevent the release of any Hazardous. Materials
into the environment. Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and
implement and adhere to such procedures as are consistent with Governmental Requirements in respect of
the disclosure, storage, use, removal and disposal of Hazardous Materials.
910757v4 80078/0022
107.2 Environmental Inquiries. Both before and after Closing, Developer shall notify
Commission, and provide to Commission a copy or copies, of the following environmental permits,
disclosures, applications, entitlements or inquiries relating to the Site: notices of violation, notices to comply,
citations, inquiries, clean -up or abatement orders, cease and desist orders, reports filed pursuant to
self - reporting requirements and reports filed or applications made pursuant to any Governmental
Requirements relating to Hazardous Materials or underground tanks, and Developer shall report to
Commission, as soon as possible after each incident, any unusual, potentially important incidents, including
the following:
a. All required reports of releases of Hazardous Materials, including notices of
any release of Hazardous Materials as required by any Governmental Requirements;
b. All notices of suspension of any permits;
C. All notices of violation from Federal, State or local environmental
authorities;
d. All orders under the State Hazardous Waste Control Law and the State
Hazardous Substance Account Act and corresponding federal statutes, concerning investigation, compliance
schedules, clean up, or other remedial actions;
e. All orders under the Porter - Cologne Act, including corrective action orders,
cease and desist orders, and clean -up and abatement orders;
f. Any notices of violation from OSHA or Cal -OSHA concerning employees'
exposure to Hazardous Materials;
g. All complaints and other pleadings filed against Developer relating to
Developer's storage, use, transportation, handling or disposal of Hazardous Materials on or about the Site.
In the event of a release of any Hazardous Materials onto or from the Site, Developer shall,
as soon as possible after the release, furnish to Commission a copy of any and all reports relating thereto and
copies of all correspondence with governmental agencies relating to the release. Upon request of
Commission, Developer shall furnish to Commission a copy or copies of any and all other environmental
entitlements or inquiries relating to or affecting the Site including all permit applications, permits ,Pud ivo} rt'.
including those reports and other matters which may be characterized as confidential.
107.3 Environmental Indemnification. From and after Closing, Developer shall
indemnify, defend and hold the Indemnitees harmless from and against any claim, action, suit, proceeding,
loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including attorneys'
fees), resulting from, arismg out of, or based upon the release, use, generation, discharge, storage or disposal
of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to
or from, the Site in violation, or alleged violation, of any Governmental Requirements, no matter when
occurred, except to the extent caused by City or Commission. This indemnity shall include any damage,
liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or
proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the natural resource
or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the
environment.
107.4 Materiality. The parties each acknowledge and agree that the defense,
indemnification, protection and hold harmless obligations of the parties under this Section 107.4 are material
elements of the consideration to the respective parties for the performance of their obligations under this
Agreement, and that the parties would not have entered this Agreement unless such obligations were as
provided for herein.
108. Lot Line Adjustment. Prior to Closing, Developer shall accomplish the lot line adjustment
depicted on Exhibit I to the City's and Commission's satisfaction, and prepare or cause to be prepared, at
910757v4 80078/0022 R
Developer's expense, a final parcel map(s) ( "Parcel Map(s) ") (collectively, "Lot Line Adjustment ").
Developer acknowledges that City's approval is subject to City's sole discretion.
200. COMMISSION DISPOSITION OF THE SITE TO DEVELOPER
201.1 Purchase and Sale of the Site. Commission agrees to sell the Site and Developer
agrees to purchase the Site for development upon the terms and conditions contained in this Agreement. The
purchase price for the Site shall be Eight Hundred Ten Thousand dollars ($810,000) (the "Purchase Price "),
which amount represents the fair market value thereof taking into account the restrictions and obligations
imposed by the Covenant. Such Purchase Price shall be evidenced by the Note and secured by the Deed of
Trust, as those terms are defined in Section 502.
202. Escrow and Closing.
202.1 Escrow. Escrow number 56201- 62242410 (the "Escrow ") has been opened with
Escrow Agent for Closing.
202.2 Escrow Instructions. The parties will execute Joint Escrow Instructions in
substantially the form attached hereto as Attachment No. 4 and incorporated by reference. The parties may
execute supplemental escrow instructions as set forth therein.
202.3 Conditions Precedent to Closing. Commission's obligation to convey the Site is
conditioned upon the satisfaction or waiver by Commission of each and all of the conditions precedent
described below ( "Closing Conditions Precedent "), which are solely for the benefit of Commission, and
which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Subject to the expiration of any applicable cure period,
Developer shall not (a) be in Default of any of its obligations under the terms of this Agreement, nor (b) be in
default under any of the Loan Documents, and (c) all representations and warranties of Developer contained
in each of this Agreement and the Loan Documents shall be true and correct.
b. Execution of Documents. Developer shall have executed and
acknowledged in recordable form the Memorandum of Agreement, the Covenant, the Note, the Deed of
Trust and any other documents required hereunder and delivered such documents into Escrow.
C. Insurance. Developer shall have provided proof of insurance to the extent
as required by Section 305 of this Agreement.
d. Financial Statements and Reports. With respect to the'rental of the
Affordable Units, upon Commission's request Developer shall have delivered to Commission the financial
statements and written annual statements required under Section 314 hereof, and Commission shall have
approved the same.
e. By -Laws. Developer shall have delivered to Commission, and Commission
shall have approved, Developer's Partnership Agreement, together with all amendments thereto, as provided
in the Grant Deed.
L Title Policy. Title Company shall, upon payment of Title Company's
regularly scheduled premium, be ready to issue the Title Policy upon recordation of the Grant Deed in
accordance with Section 103 hereof.
g. Lot Line Adjustment. Developer shall have accomplished the Lot Line
Adjustment.
910757v4 80078/0022
h. General Plan Amendment and Rezoning. Developer shall have obtained
a general plan amendment and obtained rezoning of the Property to permit high density residential uses
necessary to the Project.
i. Agreements. The Professional Services Agreement and other such
agreements City or Commission may require in connection with the Project shall have been approved by the
necessary authorities and fully executed.
j. Predevelopmenf Commission Assistance. All the Predevelopment
Conditions Precedent shall have been satisfied by Developer or waived by Commission.
k. Purchase Assistance. All the Purchase Assistance Conditions Precednet
shall have been satisfied by Developer or waived by Commission.
1. Environmental Compliance. The following provisions are referred to
herein as "Environmental Compliance" and the applicable federal, state, and local laws, regulations,
ordinances and other authority related thereto are referred to herein as "Environmental Laws."
i. NEPA Compliance. Developer shall have complied with (a) all
applicable requirements of the National Environmental Protection Act of 1969, 42 U.S.C. section 4321,
et seq., NEPA guidelines, and implementing regulations (all as amended from time to time), (b) any
necessary properly noticed public hearings shall have taken place, (c) all necessary documents have been
approved or certified by responsible agencies, whether by resolution or as otherwise allowed; and (d) any
applicable challenge statute of limitations has expired. Such compliance shall include full and final
satisfaction of applicable requirements relating to the California Tiger Salamander ( "CTS ") of (a), the U.S.
Fish and Wildlife Service, (b) the Federal Endangered Species Act, 16 U.S.C. section 1531, et seq.
( "FESA "), FESA guidelines, and implementing regulations (all as amended from time to time), together with
securing a together with securing a final finding of no significant impact letter from appropriate authorities
( "FONSI ") and providing a copy thereof to Commission.
ii. CEQA Compliance. Developer shall have complied with (a) all
applicable requirements of the California Environmental Quality Act, California Public Resources Code
sections 21000 et. seq. ( "CEQA "), CEQA guidelines, and implementing regulations (all as amended fionf
time to time) including circulation of the FONSI in accordance with CEQA requirements in lieu of a negative
declaration (b) any necessary properly noticed public. hearings shall have taken place, (c) the City Council
and Planning Commission shall have adopted resolutions certifying the FONSI and any CEQA documents,
and (d) applicable statutes of limitations have expired. Such compliance shall include full and final
satisfaction of applicable requirements relating to the CTS of the California Fish and Game Commission, the
California Endangered Species Act, Fish and Game Code section 2050, et seq. ( "CESA "), CESA guidelines,
and implementing regulations (all as amended from time to time). In the event that CTS are found on the
Site, the parties shall negotiate in good faith as to payment of costs for necessary mitigation measures. In the
event the parties do not come to a mutually acceptable agreement, either party may terminate this Agreement
upon fifteen (15) days written notice to the other party ( "CTS Termination Notice ") in accordance with the
notice provisions set forth in Section 701, except that the terminating party shall also send a facsimile copy
of the CTS Termination Notice as of the date of such notice, and Developer shall not incur an expenses, and
Commission shall not be required to expend or distribute and Commission Assistance or other monies,
related to this Agreement. If Commission so terminates this Agreement, Developer shall not be required to
repay Commission Assistance expended as of the date of the CTS Termination Notice, but shall be required,
and hereby agrees to (a) return to Commission any real or personal property, or any interests therein,
provided to Developer by Commission or City in connection with this Agreement, and (b) upon
Commission's request provide Commission with copies of any and all reports (whether or not final) and
correspondence related to the Project, including the environmental and physical condition of the Site
( "Reports "), and assign to Commission Developer's interests in (but not obligations under) the Reports, the
Basic Concept Drawings, the Design Development Drawings, and the Construction Drawings.
910757x480078/0022 10
iii. Federal Emergency Management Agency ( "FEMA ")
Compliance. To the extent not addressed by or included in CEQA compliance as set forth above, Developer
shall comply with all applicable local, county, state and federal (including FEMA) flood control and flood
plain requirements, including but not limited to preservation of the hydrolic capacity of any creek or other
permanent or temporary waterway on or near the Site and protection of real property adjacent of and near the
Site (including and improvements or personal property thereon) as determined by Commission and City.
IV. Indemnity. Developer shall defend, indemnify and hold harmless
the Indemnitees from and against any and all present and future Claims arising out of or in any way
connected with Environmental Compliance or Commission's termination of this Agreement for any reason,
including those related to this Section 202.31.
m. Agreement Public Review and Approval. A properly- noticed public
hearing on this Agreement shall have taken place and the Commission and City Council shall have adopted
resolutions approving this Agreement, subject to non - substantive modifications and amendments hereof.
Commission is not, and shall not be considered to be, obligated by this Agreement, or otherwise, to approve
this Agreement or any other agreement.
n. 33433 Report Approval. Keyser Marston Associates, Inc. shall have
prepared the report required under California Health and Safety Code section 33433 ( "33433 Report"), and a
properly- noticed public hearing on the 33433 Report shall have taken place and the Commission and City
Council shall have adopted resolutions approving the 33433 Report, subject to non - substantive modifications
and amendments hereof.
300. DEVELOPMENT
301. Scope of Development.
301.1 Site Improvements. Developer shall develop the Project and construct and install
the Improvements (as described in Section 401 and the Covenant) in accordance with the Scope of
Development; the schematic drawings, plans and documents submitted to and approved by the Planning
Commission of Rohnert Park ( "Planning Commission "), any conditions of approval required by the City, and
those plans, drawings and documents (including but not limited to Basic Concept Drawings, Design
Development Drawings or Construction Drawings) submitted by Developer to Commission as provided
herein, and satisfaction of Environmental Compliance. All such work shall be performed by a licensed
contractor(s).
302. Permits and Approvals. Before commencement of construction of the Improvements,
other works of improvement, Developer shall, at its expense, secure or cause to be secured any and all land
use and other entitlements, permits and approvals which may be required by the City (including all approvals
required by the Planning Commission and Commission, and any other governmental agency affected by such
construction or work. Commission staff will work cooperatively with Developer to assist in coordinating the
expeditious processing and consideration of all necessary permits, entitlements and approvals. however, the
execution of this Agreement does not constitute the granting of, or a commitment to obtain, any required land
use permits, entitlements or approvals required by Commission or the City. Developer shall not be permitted
to obtain a certificate of occupancy for the Project, or any portion thereof, prior to completion of all
Improvements and execution of the Joint Development and Operating Agreement, Management Agreement
and Professional Services Agreement.
303. Schedule of Performance. Developer shall commence and complete construction of the
Improvements and satisfy all other obligations and conditions of this Agreement within the times established
therefor in the Schedule of Performance, subject to the provisions of Section 702 hereof. Construction shall
begin no later than August 30, 2007, and initial occupancy shall begin in September 30, 2008. Construction
shall be deemed commenced when Developer has commenced excavating and grading of the Site.
910757v4 80078/0022 11
304. Design Review.
304.1 Basic Concept Drawings. Within the time set forth in the Schedule of
Performance, Developer shall submit to Commission conceptual drawings for the Improvements, including
materials, color board, elevations of all four sides of the Improvements, preliminary landscape plans (as
shown on a site plan), a traffic and circulation plan as applicable or as may be required, and a rendered
perspective of the buildings on the Site (collectively, the "Basic Concept Drawings ").
304.2 Design Development Drawings. After the approval of the Basic Concept
Drawings by Commission, and within the time set forth in the Schedule of Performance, Developer shall
submit to Commission, detailed drawings and specifications with respect to the Improvements (the "Design
Development Drawings "), which must include, among other requirements of filing, the following:
a. A fully dimensioned and detailed Site plan, which includes a landscape plan,
with hardscape plans, sections and elevations, including lighting, equipment, furnishings and planting
schedules.
b. Floor plans.
C. Roof plans.
d. Elevations and project sections.
e. Tabulation of areas /uses.
L Elevations of major public spaces.
g. Graphics and signage plans, together with schedules and samples or
manufacturer's literature.
h. Lighting schedules with samples or manufacturer's literature for exterior
lighting and lighting on building exteriors. Lighting locations are to be shown on landscape pkaiis an_.
elevations.
304.3 Construction Drawings and Related Documents. After Commission's approval
of the Design Development Drawings and within the time set forth in the Schedule of Performance,
Developer shall prepare and submit to Commission detailed construction plans with respect to the
Improvements, including a grading plan, which shall have been prepared by a registered civil engineer (the
"Construction Drawings "). I
a. Commission Review and Approval. Commission shall have the right to review
and approve or disapprove the Basic Concept Drawings in its sole and absolute discretion. Commission shall
have the right to review and reasonably approve or disapprove the Design Development Drawings and
Construction Drawings. In reviewing the Basic Concept Drawings, Design Development Drawings and
Construction Drawings, Commission shall consider the recommendations of the Planning Corunussion of the
City of Rohnert Park ( "Planning Commission ") and,the City Council of the City of Rohnert Park ( "City
Council "). Developer acknowledges and agrees that Commission is entitled to approve or disapprove the
Basic Concept Drawings, Design Development Drawings and Construction Drawings in order to satisfy
Commission's obligation to promote the sound development and redevelopment of land within the
Redevelopment Project, to promote a high level of design which will enhance the surrounding development,
and to provide an environment for the social, economic and psychological growth and well -being of the
citizens of the City. Developer shall not be entitled to any monetary damages or compensation as a result of
Commission's disapproval of or failure to approve or disapprove the Basic Concept Drawings, Design
Development Drawings or the Construction Drawings. Commission's right to review and approve the Basic
910757A 80078/0022 12
Concept Drawings, the Design Development Drawings and the Construction Drawings is in addition to
Planning Commission review of schematic drawings and plans and nothing herein relieves Developer of its
obligation to submit schematic drawings and plans to the Planning Commission in order to obtain the
approvals required for the construction of the Improvements on the Site.
304.4 Revisions. If Developer desires to propose any material revisions to Commission
approved Basic Concept Drawings, Design Development Drawings or Construction Drawings, it shall submit
such proposed changes to Commission, and shall also proceed in accordance with any and all federal, state
and local laws and regulations regarding such revisions, within the time frame set forth in the Schedule of
Performance. If any material change in the basic concept of the development of the Site is proposed in the
Basic Concept Drawings, Design Development Drawings or Construction Drawings from the basic concept
set forth in the Basic Concept Drawings as originally approved by Commission, then Commission's approval
of any revisions to the Basic Concept Drawings, Design Development Drawings or Construction Drawings
may be conditioned upon the renegotiation of all terms and conditions of this Agreement, including the
economic terms of the Agreement. If the Basic Concept Drawings, Design Development Drawings or
Construction Drawings, as modified by the proposed change, generally and substantially conform to the
requirements of this Section 304 and the Scope of Development, Commission's Executive Director shall
review the proposed change and notify Developer in writing within fifteen (15) days after submission to
Commission as to whether the proposed change is approved or disapproved. Commission's Executive
Director is authorized to approve changes to Commission approved Basic Concept Drawings, Design
Development Drawings and Construction Drawings provided such changes (a) do not significantly reduce
the cost of the proposed development; (b) do not reduce the quality of materials to be used; and (c) do not
reduce the imaginative and unique qualities of the Project design. Any and all change orders or revisions
required by the City and its inspectors which are required under the Municipal Code and all other applicable
Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and
regulations shall be included by Developer in its Basic Concept Drawings, Design Development Drawings
and Construction Drawings and completed during the construction of the Improvements.
304.5 Consultation and Coordination. During the preparation of the Basic Concept
Drawings, Design Development Drawings and Construction Drawings, staff of Commission and Developer
shall hold progress meetings on an as needed basis to coordinate the preparation, submission, and review of
the Basic Concept Drawings, Design Development Drawings and Construction Drawings. The staff of
Commission and Developer shall communicate and consult informally as frequently as is necessary to ensure
that the formal submittal of any documents to Commission can receive timely and thorough consideration.
304.6 Defects in Plans. Commission shall not be responsible either to Developer or to
any third parties in any way for any defects in the Basic Concept Drawings, the Design Development
Drawings or the Construction Drawings, nor for any structural or other defects in any work done according
to the approved Basic Concept Drawings, Design Development Drawings or Construction Drawings, nor for
any delays caused by review and approval processes. Developer shall hold harmless, indemnify, pay for and
defend Commission, the City and its and their officers, employees, volunteers, agents and representatives
from and against any and all present and future Claims together with any damage to property or injury to or
death of any persons, arising out of or in any way relating to defects in the Basic Concept Drawings, Design
Development Drawings or the Construction Drawings, including the violation of any Governmental
Requirements, or for defects in any work done according to the approved Basic Concept Drawings, Design
Development Drawings and Construction Drawings.
304.7 Architecture and Design; Applicable Codes. The Improvements shall be of
high architectural quality, shall be well landscaped and shall be effectively and aesthetically designed as set
forth in the Agreement, and shall be constructed in accordance with the Uniform Building Code (with City
modifications) and the City Municipal Code and any other applicable law, statute, rule, regulation, or
ordinance.
910757v4 80078/0022 13
304.8 Cost of Construction. All the costs of Site preparation, planning, designing and
constructing the Improvements and developing the Project shall be borne solely by Developer, except as
otherwise expressly set forth herein.
305. Insurance Requirements. Developer shall take out and maintain or shall cause its
contractor to take out and maintain throughout the term of this Agreement, insurance coverage as follows:
305.1 Comprehensive or Commercial General Liability Insurance. Comprehensive
or Commercial General Liability Insurance, at least as broad as Insurance Services Office Commercial
General Liability coverage (occurrence form CG 0001), in an amount of One Million Dollars
($1,000,000.00) per occurrence, or such other policy Iimit as Commission may approve at its discretion,
including contractual liability, as shall protect Developer, City and Commission from claims for such
damages. Such policy or policies shall be written on an occurrence form, and shall include a vandalism and
malicious mischief endorsement and such other endorsements as Commission may reasonably require. If
work involves explosive, underground or collapse risks, XCU must be included. If a general aggregate limit
is used, either the general aggregate limit shall apply separately to this project or the general aggregate shall
be twice the required occurrence limit. Said policy shall contain, or be endorsed with, the following
provisions:
a. The City, Commission, and their respective officers, agents, employees,
volunteers, and representatives, are covered as additional insured, to the extent of Developer's negligence,
for liability arising out of the operations performed by or on behalf of Developer. The coverage shall contain
no special limitations on the scope of protection afforded to the City, Commission, and their respective
officers, agents, employees, volunteers, and representatives.
b. The policy shall not be canceled or materially reduced in coverage without
thirty (30) days prior written notice (10 days for non - payment of premium) to Commission and the City by
certified mail.
C. The inclusion of more than one insured shall not operate to impair the rights
of one insured against another insured, and the coverage afforded shall apply as though separate policies had
been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits
of the insurer's liability.
d. For claims related to the Project, Developer's insurance is primary coverage
to Commission and the City, and any insurance or self - insurance programs maintained by Commission or the
City is excess to Developer's insurance and will not be called upon to contribute with it.
e. Any failure to comply with reporting or other provisions of the parties,
including breach of warranties, shall not affect coverage provided to the City, Commission, and their
respective officers, agents, employees, volunteers, and representatives.
305.2 Comprehensive Automobile Liability Insurance. Developer shall also obtain
and maintain throughout the term of this Agreement comprehensive automobile liability insurance with .
coverage at least as broad as ISO Form numbers CA 0001 06 92, Code 1 (any auto), for vehicles used in the
performance of this Agreement with minimum coverage of not less than One Million Dollars
($1,000,000.00) per accident combined single Iimit (CSL). Such policy shall contain or be endorsed with the
provision that coverage shall not be canceled or materially reduced in coverage without thirty (30) days prior
written notice (10 days for non - payment of premium) to Commission and the City by certified mail.
305.3 Combined Single- Limit, Building's All -Risk Insurance. After the date of this
Agreement, but in all events prior to the start of construction, Developer shall also obtain and maintain until
the expiration or other termination of this Agreement combined single limit, and builder's all -risk insurance
in an amount not less than the full insurable value of the Improvements on a replacement cost basis together
with vandalism and malicious mischief endorsement and such other endorsements as Commission may
910757v4 80078/0022 14
reasonably require, and shall furnish or cause to be furnished to Commission evidence satisfactory to
Commission that Developer and any contractor with whom it has contracted for the performance of work
contemplated under this Agreement, whether on or off the Site, the Public Improvements, or otherwise
pursuant to this Agreement, carries workers' compensation insurance as required by law.
305.4 Worker's Compensation Insurance. Worker's Compensation insurance meeting
statutory limits of applicable Labor Code provisions, which policy shall contain or be endorsed to contain a
waiver of subrogation against the City, Commission, and their respective officers, agents, employees,
volunteers, and representatives, and provide for thirty (30) days prior written notice to Commission and the
City by certified mail in the event of cancellation. If Developer has no employees, Developer may sign and
file the following certification in lieu of insurance:
"1 am aware of the provisions of California. Labor Code Section 3700 which requires every employer to be
insured against liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and 1 will comply with the provisions of that code before commencing with and
during the performance of the work of this contract. "
305.5 Certificate of Insurance. Companies writing the insurance required hereunder
shall be licensed to do business in the State of California. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A -. Developer shall furnish a notarized certificate of insurance
countersigned by an authorized agent of the insurance carrier on a form reasonably approved by Commission
setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the
City, Commission, and their respective officers, agents, employees, volunteers, and representatives as
additionally insured parties under the policies required hereunder, and any certificates shall be accompanied
by a duly executed endorsement evidencing such additional insured status. The certificate and endorsements
by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and
Commission of any material change, cancellation or termination of the coverage at least thirty (30) days in
advance of the effective date of any such material change, cancellation or termination (10 days for non-
payment of premium). Coverage provided hereunder by Developer shall be primary insurance and shall not
be contributing with any insurance, self - insurance or joint self - insurance maintained by Commission or Cii /.
and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain w.
waiver of subrogation for the benefit of the City and Commission. The required certificate shall be Pinuslled
by Developer to Commission within the time provided in the Schedule of Performance.
306. Rights of Access. Prior to the issuance of a Certificate of Completion, for purposes of
assuring compliance with this Agreement, representatives of Commission and the City shall have the right of
access to the Site, without charges or fees, at normal construction hours during the period of construction for
the purposes of this Agreement, including the inspection of the Project and the work of Improvements, so
long as Commission, City or their representatives comply with all safety rules. Commission and City (or
their representatives) shall, except in emergency situations, notify Developer prior to exercising their rights
pursuant to this Section 306. Nothing herein shall.be deemed to limit the ability of the City to conduct code
enforcement and other administrative inspections of the Site in accordance with applicable law.
307. Compliance With Laws; Indemnity; Waiver.
a. Developer shall carry out the work of Improvements in conformity with all
applicable laws, including all applicable state labor laws and standards (including prevailing wage
requirements pursuant to Labor Code section 1720, et seq.) and corresponding federal laws and standards; all
applicable Public Contracts Code requirements; the City zoning and development standards; building,
plumbing, mechanical and electrical codes; all other provisions of the City of Rohnert Park Municipal Code;
and all applicable disabled and handicapped access requirements, including the Americans With Disabilities
Act, 42 U.S.C. section 12101, et seq., Government Code section 4450, et seq., Government Code section
11135, et seq., and the Unruh Civil Rights Act, Civil Code section 51, et seq. Developer, for itself and its
successors and assigns, agrees that in the construction of the Improvements, Developer will not discriminate
910757A 80078/0022 15
against any employee or applicant for employment because of race, color, creed, religion, sex, marital status,
ancestry or national origin.
b. Developer shall defend, indemnify and hold harmless the Indemritees from
and against any and all present and future Claims arising out of or in any way connected with Developer's
obligation to comply with all laws with respect to the work of Improvements including all applicable federal
and state labor laws and standards and Public Contracts Code requirements.
C. Developer hereby waives, releases and discharges forever Commission and
the City, and its and their employees, officers, volunteers, agents and representatives, from any and all
present and future Claims arising out of or in any way connected with Developer's obligation to comply with
all laws with respect to the work of Improvements including all applicable federal and state labor laws and
standards and Public Contracts Code requirements. Developer is aware of and familiar with the provisions of
section 1,542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
As such relates to this Section 307, Developer hereby waives and relinquishes all rights and benefits
that it may have under section 1542 of the California Civil Code. The obligations of Developer under this
Section 307 shall survive the termination of this Agreement.
308. Taxes and Assessments. Following Closing and during its period of ownership of the Site,
Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Site, subject
to Developer's right to contest in good faith any such taxes. Developer shall remove or have removed any
such levy or attachment, or assure the satisfaction thereof within thirty (30) days following the date of
attachment or levy.
309. Project Sign. At Commission's sole discretion, Commission may require Developer to
place and maintain on the Site, during construction, a sign indicating the respective roles of Dev¢1 «per arv!
Commission in the Project.
310. Liens and Stop Notices. Developer shall not allow to be placed on the Site, or any City or
Commission property, or any part thereof, any lien or stop notice. If a claim of a lien or stop notice is given
or recorded affecting the Project, Developer shall within thirty (30) days of such recording or service:
a. pay and discharge the same; or
b. affect the release thereof by recording and delivering to Commission or
City, as applicable, a surety bond in sufficient form and amount; or
C. provide Commission or City, as applicable, with other assurance which such
entity deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and
for full and continuous protection from the effect of such lien or bonded stop notice.
311. Right of Commission to Satisfy Other Liens After Title Passes. After Closing and prior
to the completion of construction of the Improvements, and after Developer has had written notice and has
failed after a reasonable time, but in any event not more than sixty (60) days, to challenge, cure, adequately
bond against, or satisfy any liens or encumbrances which are not otherwise permitted under this Agreement,
Commission shall have the right, but not the obligation, to satisfy any such liens or encumbrances without
further notice to Developer. In such event Developer shall be liable for and Commission shall be entitled to
reimbursement by Developer for such paid lien or encumbrance.
910757A 80078/0022 16
312. Certificate of Completion.
a. Following Developer's completion of the work of construction and
installation of the Improvements in conformity with this Agreement, and within the time set forth in the
Schedule of Performance, Commission shall furnish Developer with a "Certificate of Completion"
substantially in the form of Attachment No. 6 attached hereto. Commission shall not unreasonably withhold
such Certificate of Completion. The Certificate of Completion shall be conclusive determination of
satisfactory completion of the work of construction and installation of the Improvements and the Certificate
of Completion shall so state. Any party then owning or thereafter purchasing, leasing or otherwise acquiring
any interest in the Site shall not (because of such ownership, purchase, lease or acquisition) incur any
obligation or liability under this Agreement except for those continuing covenants as set forth in Section 400
of this Agreement, in the Grant Deed, and in the Covenant.
b. If Commission refuses or fails to furnish the Certificate of Completion,
Commission shall, within thirty (30) days after Developer's written request therefor, provide Developer with
a written statement of the reasons Commission refused or failed to furnish the Certificate of Completion.
The statement shall also contain Commission's opinion of the actions Developer must take to obtain the
Certificate of Completion. Commission's failure to provide such a written statement within such thirty (30)
day period shall be deemed Commission's disapproval of Developer's request for issuance of the Certificate
of Completion. The Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any holder of any mortgage, or any insurer of a mortgage
securing money loaned to finance the work of Improvements, or any part thereof. The Certificate of
Completion is not a notice of completion as referred to in California Civil Code section 3093.
313. Mortgage, Deed of Trust, Sale and Lease -Back Financing.
313.1 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and Lease -Back
for Development. Mortgages and deeds of trust are permitted before completion of the construction of the
Improvements, but only for the purpose of securing the Construction Financing. Mortgages and deeds of
trust are permitted after completion of the construction of the Improvements, but only for the purpose of
securing the MI1P Financing (as defined in Section 402.1) and such other Permanent Financing (as defined in
Section 402.3) if and as approved by Commission (collectively, "Long Term Financing "). Developer
covenants and agrees, on behalf of itself and its successors and assigns, that it shall not enter into any
conveyance for such financing without the prior written approval of Commission's Executive Director, which
approval shall not be unreasonably withheld, conditioned or delayed. The requirements of this Section 313.1
shall terminate effective upon the recordation of the Certificate of Completion. Developer shall notify
Commission in advance of any proposed mortgage or deed of trust. The words "mortgage" and "deed of
trust" as used hereinafter shall include sale and lease -back financing.
313.2 Holder Not Obligated to Construct Improvements. The holder of any
mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this
Agreement to construct or complete the Improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed to or be construed to permit or authorize any such holder to
devote the Site to any uses or to construct any improvements thereon other than those uses or Improvements
provided for or authorized by this Agreement.
313.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure.
With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever
Commission shall deliver any notice or demand to Developer with respect to any breach or default by
Developer hereunder, Commission shall at the same time deliver to each holder of record of any mortgage or
deed of trust authorized by this Agreement and superior to the Deed of Trust or the Covenant ( "Mortgagee "),
a copy of such notice or demand, provided that Developer has given Commission prior written notice of the
name and notice address of such holders of record. No notice of default shall be effective as to the holder
unless such notice is given. Each such holder shall (insofar as the rights of Commission are concerned) have
the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence
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to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its
mortgage. Nothing in this Agreement shall be deemed to permit or authorize such holder to undertake or
continue the construction or completion of the Improvements (beyond the extent necessary to conserve or
protect the Improvements or construction already made) without first having expressly assumed Developer's
obligations to Commission by written agreement satisfactory to Commission. Any such holder properly
completing the Improvements shall be entitled, upon compliance with the requirements of Section 312 of this
Agreement, to a Certificate of Completion.
313.4 Right of Commission to Cure Mortgage or Deed of Trust Default.
Commission shall have the right to record a request for notice of default in a form satisfactory to
Commission in its sole discretion. If a mortgage or deed of trust default or breach by Developer prior to the
completion of the construction of the Improvements occurs, and the holder of any mortgage or deed of trust
has not exercised its option to cure the default, Commission may cure the default, without acceleration of the
subject loan, following prior notice thereof to Developer. In such event, Developer shall be liable for, and
Commission shall be entitled to reimbursement from Developer of, all costs and expenses associated with
and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by
Developer and incurred by Commission in curing such default. Commission shall also be entitled to record a
lien upon the Site to the extent of such incurred costs and disbursements. Any such lien shall be subject to
prior encumbrances and deeds of trust. If the ownership of the Site has vested in the holder, Commission, if
it so desires, may elect to purchase the Site from the holder upon such terms as are mutually acceptable to
Commission and the holder. Developer shall ensure that any mortgage or deed of trust granted by Developer
contains provisions reflecting the terms and conditions of this Section 313.4.
314. Records and Reporting Obligations. Developer covenants and agrees, on behalf of itself
and its successors and assigns, that, in connection with the construction, ownership and operation of the
Project, it shall keep full and accurate books of account and records, and comply with reporting
requirements, as required by and described in the Covenant.
400. COVENANTS, RESTRICTIONS AND AGREEMENTS
401. Use Covenants. Developer covenants and agrees for itself, its successors, its assigns and
every successor in interest that the Site shall be used for development, maintenance, and operation thereof of
a twenty -four (24) unit permanent affordable housing rental complex comprised of four (4) one - bedroom
units, ten (10) two - bedroom units, and nine (9) three- bedroom units affordable to households with incomes
up to 50% of median area income, one (1) unrestricted three- bedroom unit reserved for the resident manager,
together with parking, a community building housing laundry facilities, management office, and activity and
counseling rooms (collectively, "Improvements "). The twenty -three (23) income- restricted residential units
(excluding the Manager's Unit) are collectively referred to herein as the "Affordable Units'; provided,
however, that if provided that if Developer does not have a property manager residing on the Site, the
unrestricted Manager's Unit shall be treated as an "Affordable Unit" under this Agreement and be made
available to Very Low Income Persons or Households at an affordable rent level pursuant to California
Health and Safety Code section 50053, as amended, or any successor statute thereto ( "Affordable Rent "). No
fewer than sixteen (16) of the Affordable Units will be rented to Very Low Income Households in which at
Ieast one person is a member of a "Special Needs Population" as defined in 25 California Code of
Regulations section 7301(r) (individually and collectively, "Supportive Unit(s) "); provided however, that if
despite its best efforts Developer is unable to Iocate a Very Low Income Household with a member of a
Special Needs Population after a Supportive Unit has been vacant for sixty (60) days, then Developer may
rent the applicable Supportive Unit(s) to the next Very Low Income Household or Person on the waiting list.
In addition, Commission acknowledges that Developer shall be allowed to rent all Affordable Units to
members of a Special Needs Population. The use, maintenance, and operation of the Site and Project shall
all be in accordance with the terms and in substantially the form of the Covenant, attached hereto as
Attachment No. 7, the uses specified in the Redevelopment Plan, the Grant Deed, and this Agreement for the
periods of time specified therein, which Covenant shall run with the land. The Covenant together with a
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"Performance Deed of Trust" in substantially the form of Attachment No. 8 shall be recorded against the Site
upon transfer of title of the Site to Developer.
402. Subordination of Covenant.
402.1 To MHP Affordability Restrictions. As set forth in the Covenant and Grant
Deed, upon written request by Developer, and upon terms and conditions reasonably approved by
Commission, Commission will agree to subordinate the affordability restrictions in the Covenant and
Section 3 of the Grant Deed ( "Affordability Restrictions ") to those regulatory agreements or other covenants
and restrictions required by the Multi- Family Housing Association at affordability levels equal to or below
those affordable to Very Low Income Households or Very Low Income Persons ( "MHP Affordability
Restrictions ") in connection with that certain loan from MHP is an amount not to exceed Two Million
Eighty -Four Thousand One Hundred Thirty -Two Dollars ($2,084,132) ( "MHP Financing "), providing that
the Affordable Units must be maintained as affordable housing as set forth in Section 401, the covenants or
substantially similar requirements.
402.2 To Construction Financing. If required by the Construction Lender,
Commission shall subordinate the terms and conditions under Section 3 of the Grant Deed relating to the
affordability requirements for the Affordable Unit to such construction financing extended by one or more
reputable financial institution(s) approved by Commission (individually and collectively "Construction
Lender ") in an amount not to exceed Four Million, Five Hundred Thousand Dollars ($4,500,000)
( "Construction Financing ") in accordance with the Community Redevelopment Law of the State of
California (Health and Safety Code section 33000, et seq.). Commission shall have the right to review and
approve the terms and conditions of any related subordination agreements, which approval shall not be
unreasonably withheld.
402.3 To Permanent Financing. If required by the Permanent Lender, then as set forth
in the Covenant and Grant Deed, upon written request by Developer, and upon terms and conditions
reasonably approved by Commission, Commission shall consider subordinating the terms and conditions
under Section 3 of the Grant Deed relating to the affordability requirements for the Affordable Unit to such
Permanent Financing extended by one or more reputable financial institution(s) approved by Cornmi,,sion
(individually and collectively "Permanent Lender ") in an amount not to exceed Two Hundred 'f
Dollars ($200,000) ( "Permanent Financing ") in accordance with the Community Redevelopment Law of the
State of California (Health and Safety Code section 33000, et seq.). Commission shall have the right to
review and approve the terms and conditions of any related subordination agreements, which approval shall
not be unreasonably withheld.
500. FINANCIAL PROVISIONS
501. Evidence of Financing and Loan Closings. Within the time established in the Schedule of
Performance, Developer shall obtain and submit to Commission evidence, in a form acceptable to
Commission, that it has obtained firm commitments for debt and equity financing necessary to undertake the
development of the Project and the design and construction of the Improvements in accordance with this
Agreement. Commission's Executive Director shall approve or disapprove such evidence of financing
commitments within the time established in the Schedule of Performance. Approval shall not be
unreasonably withheld. If Commission's Executive Director shall reasonably disapprove any such evidence
of financing, the Executive Director shall do so by written notice to Developer stating the reasons for such
disapproval and, thereafter, Developer shall utilize good faith, diligent efforts to promptly obtain and submit
to Commission new evidence of financing. Commission's Executive Director shall approve or disapprove
such new evidence of financing in the same manner and within the same times established in the Schedule of
Performance for the approval or disapproval of the evidence of financing as initially submitted to
Commission. In the event Commission disapproves Developer's evidence of financing commitments or
Developer fails to obtain and deliver the evidence of financing commitments to Commission as provided
above, then either party may terminate this Agreement as provided herein by notice to the other party and,
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thereafter, neither party shall have any rights or obligations hereunder. Prior to or simultaneous with
Closing, Developer's construction loan(s) shall have closed.
502. Commission Assistance. Subject to the conditions set forth herein, Comnssion agrees to
loan to Developer such "Commission Assistance" in the maximum amount of $1,675,000; $810,000 thereof
is intended to assist Developer in paying for a portion of the costs to acquire real property ( "Purchase
Assistance "), $493,405 thereof (of which $266,667 has been disbursed pursuant to the Pre - Development
Agreement) is intended to assist Developer in paying for portion of those costs related to predevelopment of
the Project ( "Predevelopment Commission Assistance "), and $371,595 thereof is intended to assist
Developer in paying for a portion of those costs related to the development and construction of the Project
( "Development Commission Assistance "). Upon written request by Developer and written consent of
Executive Director of the Commission, Commission Assistance may be reallocated among the Purchase
Assistance, Predevelopment Commission Assistance and Development Commission Assistance so long as
Commission Assistance does not exceed the maximum amount of $1,675,000. No portion of Commission
Assistance shall be utilized for ineligible costs as set forth in California Health & Safety Code section
33334.2(e). All disbursements shall be held by Developer in trust and applied by Developer solely for the
purposes for which the funds have been disbursed. Commission is not obligated to monitor or determine
Developer's use or application of the disbursements. Commission Assistance shall be evidenced by a non -
recourse promissory note reflecting the amount of Commission Assistance ( "Note "). The Note shall be
executed and delivered by Developer to Commission in substantially the form attached hereto as Attachment
No. 10. As security for the Note, Developer shall grant to Commission a deed of trust (including an
addendum thereto) creating a valid lien upon the Site ( "Deed of Trust ") in substantially the form attached
hereto as Attachment No. 11. In consideration of Developer's obligations hereunder, including Developer's
obligation to develop the Site and Project, construct the Improvements, and provide Affordable Units on the
Site, Commission agrees to disburse to Developer Commission Assistance subject to the terms and
conditions of the Promissory Note and this Agreement, including Developer's fulfillment of the
Predevelopment Conditions Precedent, the Purchase Assistance Conditions Precedent, the Closing
Conditions Precedent, and the Development Conditions Precedent (collectively, "Conditions Precedent ") as
set forth below. Subject to Commission Assistance provided for hereunder, the cost of acquiring the Site and
constructing the Improvements thereon shall be borne by Developer. If the Conditions Precedent or
applicable Governmental Requirements (whether applicable to Developer, Commission, or City) are not
satisfied or expressly waived by August 30, 2007 ( "Outside Date ") this Agreement shall automatically
terminate with no liability to or remaining obligations of either Commission or City.
502.1 Notwithstanding the foregoing, satisfaction of the Conditions Precedent, or any
prior disbursements of any Commission Assistance, Commission shall not be required to make any or further
disbursements of Development Commission Assistance, or close the transaction contemplated by this
Agreement, if Developer:
a. Without the prior written consent of Commission except as expressly
permitted by the Covenant, directly or indirectly, voluntarily or involuntarily sells, assigns, transfers,
disposes of or further encumbers or agrees to sell, assign, transfer, dispose of or further encumber or suffers
to exist any other lien against all or any portion of or any interest in the Site, except for any sale or transfer
which is expressly permitted by the terms of the Agreement. For the purpose of this Section, the terms "sell"
and "transfer" shall include, in addition to the common and ordinary meaning of those terms and without
limiting their generality, transfers made to subsidiary or affiliated entities, and any "change in ownership" as
that term is used from time to time in California real property taxation law, irrespective of the fact that the
Site may be exempt from such transaction during the period when owned by Commission.
b. Subject to extensions pursuant to Section 702 of this Agreement, fails to
commence or complete Construction of the Improvements or portion thereof within the time set forth in the
Schedule of Performance; or
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C. Once construction has been commenced, fails to diligently prosecute
construction of the Improvements through completion, where such failure has not been cured within three (3)
months after Developer's receipt of written notice thereof from Commission; or
d. Abandons or substantially suspends construction of the Improvements for a
period of three (3) months after Developer's receipt of written notice of such abandonment or suspension
from Commission.
502.2 Conditions Precedent to Predevelopment Commission Assistance.
Commission's obligation to provide any component of the undisbursed Predevelopment Commission
Assistance is conditioned upon the satisfaction or waiver by Commission of each and all of the conditions
precedent described below ( "Predevelopment Conditions Precedent "), which are solely for the benefit of
Commission, and which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Subject to the expiration of any applicable cure period,
Developer shall not (a) be in Default of any of its obligations under the terms of this Agreement , nor (b) be
in default under any of the Loan Documents, and (c) all representations and warranties of Developer
contained in each of this Agreement and the Loan Documents shall be true and correct.
b. Execution of Documents. Developer shall have executed and
acknowledged in recordable form the Memorandum of Agreement, the Covenant, the Note, the Deed of
Trust and any other documents required hereunder and delivered such documents to Commission, provided,
however, that the parties acknowledge that the recordable documents shall not be recorded until the Site has
been conveyed to Developer.
c. . Insurance. Developer shall have provided proof of insurance as required
by Section 305 of this Agreement, and only as appropriate taking into account ownership of the Site by
Commission.
d. Financial Statements and Reports. With respect to the rental of the
Affordable Units, upon Commission's request Developer shall have delivered to Commission the financial
statements and written annual statements required under Section 314 hereof, and Commission shall liiv,a
approved the same.
e. Disbursement Requests, Documentation. Disbursements of
Predevelopment Commission Assistance shall only be made upon prior written request by Developer to
Commission specifying the amount of the requested disbursement and the eligible use therefor, together with
supporting invoices and other documentation as Commission may require. Commission shall have a period
of fifteen (15) business days in which to either request additional documentation or release the requested
disbursement as an advance of Predevelopment Commission Assistance. Disbursement of Predevelopment
Commission Assistance shall be added to the principal balance of indebtedness and shall accrue interest as
provided under the Note.
f. Application to Development Commission Assistance. Undisbursed
amounts of Predevelopment Commission Assistance shall be made available as Development Commission
Assistance. Disbursement of such funds shall be subject to satisfaction of the Conditions Precedent to
Development Commission Assistance set forth in Section 502.4.
g. Agreements. The Joint Development and Operating Agreement,
Management Agreement, and Professional Services Agreement shall have been approved by the necessary
authorities and fully executed.
h. Agreement Conditions Precedent. The Agreement Conditions Precedent
have been satisfied.
502.3 Conditions Precedent to Purchase Assistance. Commission's obligation to to
provide the Purchase Assistance component of Commission Assistance is conditioned upon the satisfaction
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or waiver by Commission of each and all of the Predevelopment Conditions Precedent and the Closing
Conditions Precedent.
502.4 Conditions Precedent to Development Commission Assistance. Commission's
obligation to provide any component of the Development Commission Assistance in excess of the
undisbursed balance of the Pre - Development Assistance is conditioned upon the satisfaction or waiver by
Commission of each and all of the conditions precedent described below ( "Development Conditions
Precedent "), which are solely for the benefit of Commission, and which shall be fulfilled or waived by the
time periods provided for herein:
a. No Default. Subject to the expiration of any applicable cure period,
Developer shall not (a) be in Default of any of its obligations under the terms of this Agreement, nor (b) be in
default under any of the Loan Documents, and (c) all representations and warranties of Developer contained
in each of this Agreement and the Loan Documents shall be true and correct.
b. Closing. Closing shall have occurred and all Closing Conditions Precedent
shall have been satisfied by Developer or waived by Commission.
C. Predevelopment Commission Assistance. All the Predevelopment
Conditions Precedent shall have been satisfied by Developer or waived by Commission.
d. Purchase Assistance. All the Conditions Precedent to Purchase Assistance
shall have been satisfied by Developer or waived by Commission.
e. Payment of Property Taxes. No ad valorem property taxes or assessments
assessed with respect to the Project shall be delinquent.
L Execution of Documents. Developer shall have executed and
acknowledged in recordable form the Memorandum of Agreement, the Covenant, the Note, the Deed of
Trust and any other documents required hereunder and delivered such documents into Escrow.
g. Insurance. Developer shall have provided proof of insurance as required
by Section 305 of this Agreement.
h. Evidence of Financing and Loan Closings. To the extent not previously
delivered, Developer shall deliver to Commission evidence that Developer has obtained all approvals
necessary for land acquisition and construction financing and commitments for Long Term Financing for Cite
Project, and the land acquisition and construction loan(s) shall have closed or be ready to close concurrent
with Closing and Commission shall have approved the same.
i. Financial Statements and Reports. With respect to the rental of the
Affordable Units, upon Commission's request Developer shall have delivered to Commission the financial
statements and written annual statements required under Section 314 hereof, and Commission shall have
approved the same.
j. Permits and Land Use Approvals. Developer shall have obtained all City
and governmental Commission permits and land use approvals required pursuant to Section 302 hereof and
all other Project entitlements, and the period for administrative and legal challenge to such land use
approvals and entitlements shall have expired and the City shall be ready to issue building permits for the
constriction of the Improvements upon the payment of the applicable fees by Developer.
k. Payment of Development Fees. Developer shall have paid to the City,
when due, all development fees required to enable Developer to commence development of the Project and
construction and installation of the Improvements, including all traffic mitigation and development impact
fees.
1. By -Laws. Developer shall have delivered to Commission, and Commission
shall have approved, Developer's Partnership Agreement, together with all amendments thereto, as provided
in the Grant Deed.
910757A 80078/0022 22
m. Design Review. Drawings for the Project shall have been reviewed and
approved as provided in Section 304 hereof.
H. Construction Contract. Developer shall have secured a guaranteed
maximum price contract for the construction of the Improvements in a form reasonably satisfactory to
Commission.
o. Disbursement Requests, Documentation. Disbursements of Development
Commission Assistance shall only be made upon prior written request by Developer to Commission
specifying the amount of the requested disbursement and the eligible use therefor, together with supporting
invoices and other documentation as Commission may require. Commission shall have a period of fifteen
(15) business days in which to either request additional documentation or release the requested disbursement
as an advance of Development Commission Assistance. Disbursement of Development Commission
Assistance shall be added to the principal balance of indebtedness and shall accrue interest as provided under
the Note.
502.5 Reimbursement of Surplus Funds.
a. The purpose of Commission Assistance under this Agreement is to provide
financial assistance to Developer in an amount equal to the difference between the amount of third -party
financing that Developer is able to secure and the actual Project costs ( "Feasibility Gap "), with such
Commission Assistance not to exceed a maximum amount of One Million Six Hundred Seventy -Five
Thousand Dollars ($1,675,000). Such figure is based on the estimate of Seven Million, One Hundred
Seventy -One Thousand and Thirty -Six Dollars ($7,171,036) for "Total Developer Costs" ( "Cost Estimate ")
as set forth in Developer's proforma dated April 18, 2006 attached hereto and incorporated by reference as
Attachment No. 13. If the actual Project costs ( "Actual Costs ") are less than the Cost Estimate, the
Feasibility Gap and thus Commission Assistance will be reduced by an amount equal to the difference
between the Cost Estimate and Actual Costs ( "Cost Underruns "), on a dollar for dollar basis as set forth in
subsection (b) below.
b. Upon completion of the Project and issuance of the Certificate of
Completion, Developer shall provide Commission with a cost certification in the format used by ±1?,_:
California Tax Credit Allocation Committee ( "Cost Certification ") showing a detailed itemization of Project
costs and expenses, including external and internal payments, allocations, disbursements, and any and all
sums received or expended by Developer in connection with the Project, and supporting Documentation (as
defined below). Commission will review the Cost Certification and Documentation within thirty (30) days
of receipt and either (i) issue written approval thereof or (ii) identify with reasonable specificity any portions
or items which are insufficient to support Developer's request for payment, and shall request such and other
Documentation as Commission deems necessary. If Commission proceeds pursuant to (ii) of the preceding
sentence, Commission shall provide Developer with written approval of the Cost Certification when
Commission is satisfied as to the sufficiency of the additional Documentation received. In the event there
are Cost Underruns, Developer shall pay such sums to Commission upon the first to occur of (a) the tax
credit investor's final capital contribution, or (b) one hundred eighty (180) days from the date the Cost
Certification is executed.
C. "Documentation" as used in this Agreement, collectively, change orders,
requests for clarifications, contracts with contractors, subcontractors and suppliers, inspector notes, testing,
correspondence, submittals, samples, shop drawings, materials lists, invoices, receipts, reimbursable
expenses, vouchers, purchase orders, books of account, records, financial information notes, daily logs,
detailed list of daily labor, equipment used and related costs including rental costs, time cards and payrolls,
and memoranda, pledges, hypothecations, promissory notes or similar agreements, and any and all other data
or financial information used by Developer in the preparation or support of the Cost Certification.
d. Commission shall have the right, upon written notice to Developer, and
during normal business hours, to inspect and examine Developer's books and records related to the Total
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Developer Costs, Project costs, and Documentation. Developer shall pay all costs associated with such audit
if Commission determines that the Cost Certification, Total Developer Costs and/or Project costs were
overstated and/or the Documentation provided to Commission in connection the Cost Certification was
materially incomplete, false, or misleading.
503. Developer's Financing. In addition to Commission Assistance provided for in Section 502,
Developer shall seek approval of one or more loans from the Multi- Family Housing Agency (WHY"), for
Construction Financing, and for Permanent Financing (collectively "Developer's Financing ") necessary for
construction and long term financing of the Project. Developer shall complete all actions necessary to secure
all approvals and commitments necessary to effectuate Developer's Financing, or other alternative funding,
as the case may be, in an amount satisfactory to undertake and complete the acquisition and rehabilitation of
the Project. Commission shall have the right to record a request that Commission receive notice of any
default by Developer under Developer's Financing or other financing obtained by Developer with respect to
the Project.
504. Subordination of Deed of Trust.
504.1 MHP Financing. As set forth in the Deed of Trust Addendum, upon written
request by Developer, and upon terms and conditions reasonably approved by Commission, Commission will
agree to subordinate the Deed of Trust to the deed of trust securing the MHP Financing.
504.2 To Construction Financing. As more specifically set forth in the Deed of Trust
Addendum, upon written request by Developer, and upon terms and conditions reasonably approved by
Commission, Commission will agree to subordinate the Deed of Trust to the Construction Financing,
provided the total aggregate amount of such Construction Financing which is secured by the Property or is
recourse together with Commission Loan, shall not exceed the appraised value of the completed Project; and
further provided that any such subordination shall be subject to the provisions set forth in this Section 504
and Section 4(b) of the Addendum to Deed of Trust. Commission shall have the right to review and approve
the terms and conditions of any Construction Financing and related subordination agreements, which
approval shall not be unreasonably withheld. To implement any such subordination, Commission agrees to
cooperate with Developer and execute such subordination agreements and/or intercreditor agreements that
may be reasonably required, in form and content approved by Commission counsel.
504.3 To Permanent Financing. As more specifically set forth in the Deed of Trust
Addendum, upon written request by Developer, and upon terms and conditions reasonably approved by
Commission, Commission will agree to subordinate the Deed of Trust to the Permanent Financing, provided
the total aggregate amount of the Long Term Financing which is secured by the Property or is recourse
together with Commission Loan, shall not exceed the appraised value of the completed Project; and further
provided that any such subordination shall be subject to the provisions set forth in this Section 504 and
Section 4(b) of the Addendum to Deed of Trust. Commission shall have the right to review and approve the
terms and conditions of any Permanent Financing and related subordination agreements, which approval
shall not be unreasonably withheld. To implement any such subordination, Commission agrees to cooperate
with Developer and execute such subordination agreements and /or intercreditor agreements that may
reasonably required, in form and content approved by Commission counsel.
910757A 80078/0022 24
600. DEFAULTS AND REMEDIES
601. Default. Subject to the permitted extensions of time as provided in Section 702 of this
Agreement, failure by either party to perform any action or covenant required by this Agreement (other than
under Section 500 of this Agreement) or the Covenant within the time periods provided herein following
notice and expiration of any applicable cure period, shall constitute a "Default" under this Agreement. Any
and all rights and remedies of Commission in respect of a breach under Section 500 of this Agreement shall
be governed by the terms and conditions of the Note and the Deed of Trust. Notwithstanding anything in this
Agreement, the Covenant, Note, Grant Deed, Deed of Trust, or Purchase and Sale Agreement to the contrary,
a breach of Developer's obligations under the Loan Documents shall not be considered a "Default" under this
Agreement, and is not included in that defined term as used herein. A party claiming a Default under this
Agreement shall give written notice of default to the other party specifying the Default complained of
( "Notice of Default "). A party claiming a Default under the Loan Documents shall give notice as provided
therein.
601.1 General Remedies. Except as otherwise expressly provided in this Agreement,
the claimant shall not institute any proceeding against any other party, and the other party shall not be in
Default if such party within thirty (30) days following receipt of such Notice of Default immediately, with
due diligence, commences to cure, correct or remedy such failure or delay and completes such cure,
correction or remedy with diligence. If a Default occurs under this Agreement, the Covenant, or the Grant
Deed, then Commission may exercise any right or remedy which it has under this Agreement, the Covenant,
or the Grant Deed, or which is otherwise available at law or in equity or by statute, and all of Commission's
rights and remedies shall be cumulative.
601.2 Specific Performance; Disbursement Cessation. Upon the occurrence of a
Default specified in this Agreement, Commission may, at its option, require specific performance of
Developer's obligations and/or cease disbursement of Commission Assistance.
602. Institution of Legal Actions. Except as otherwise specifically provided herein, upon the
occurrence of a Default, the non - defaulting party shall have the right, in addition to any other rights or
remedies, to institute any action at law or in equity to cure, correct, prevent or remedy any Default, or to
recover damages for any Default, or to obtain any other remedy consistent with the purpose of this
Agreement. Such legal actions must be instituted in the Superior Court of the County of Sonoma, State of
California, in an appropriate municipal court in that County or in the Federal District Court for the First
District of the State of California. Notwithstanding anything herein to the contrary, Developer's right to
recover damages in the event of a Default by Commission shall be limited to recovery of actual damages and
shall exclude consequential damages.
603. Termination. This Agreement may be terminated (i) if there is an uncured Default, by
written notice from the party not in Default, (ii) if there is a failure of a condition (which is not waived by the
party whom the condition benefits) by notice from the party whom the condition benefits, or (iii) in
accordance with the provisions of Sections 102.3, 106.1, 303, or 501 hereof. In the event of termination due
to a failure by Developer under such sections, neither Commission nor Developer shall have any further
rights against or liability to the other under this Agreement and, specifically, Commission shall have no
obligation to make any further disbursements of Commission Assistance.
604. Acceptance of Service of Process. In the event that any legal action is commenced by
Developer against Commission, service of process on Commission shall be made by personal service upon
the Executive Director of Commission or in such other manner as may be provided bylaw. In the event that
any legal action is commenced by Commission against Developer, service of process on Developer shall be
made by personal service upon John Morgan or in such other manner as may be provided by law.
605. Rights and Remedies Are Cumulative. The rights and remedies of the parties are
cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the
910757v4 80078/0022 25
exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other
Default by the other party, except as otherwise expressly provided herein.
606. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any
of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights
or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or remedies.
700. GENERAL PROVISIONS
701. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice to be provided under this Agreement shall be given in writing
and shall be sent (a) for personal delivery by a delivery service that provides .a record of the date of delivery,
the individual to whom delivery was made, and the address where delivery was made; (b) by first -class
certified United States mail, postage prepaid, return receipt requested; (c) by a nationally recognized
overnight courier service, marked for next day business delivery; or (d) sent by facsimile (immediately
followed by one of the preceding methods). All notices shall be addressed to the-party to whom such notice
is to be given at the property address stated in this Note or to such other address as a party may designate by
written notice to the other. All notices shall be deemed effective on the earliest of (a) actual receipt; (b)
rejection of delivery; (c) if sent by certified mail, the third day on which regular United States mail delivery
service is provided after the day of mailing or, if sent by overnight delivery service, on the next day on which
such service makes next - business -day deliveries after the day of sending.
To Commission: Community Development Commission of the City of
Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
Telephone. (707) 588 -2227
Facsimile: (707) 588 -2274
With a copy to: McDonough Holland & Allen, PC
1901 Harrison Street, 9th floor
Oakland, California 94612 -3501
Attention: Susanne M. Brown, Esq
Telephone: (510) 273 -8780
Facsimile: (510) 839 -9104
and: City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: City Attorney
Telephone: (707) 588 -2227
Facsimile: (707) 588 -2274
To Developer: Vida Nueva Partners, L.P.
3432 -A Mendocino Avenue
Santa Rosa, California 95403 -2274
Attention: Jeanne Blake
Telephone: (707) 526 -9782
Facsimile: (707) 526 -9811
910757A 80078/0022 26
With a copy to: Gubb & Barshay, LLP
50 California Street, Suite 3155
San Francisco, California 94111
Attention: Scott R. Barshay, Esq_
Telephone: (415) 781 -6600
Facsimile: (415) 781 -6967
and: Community Housing Redevelopment Corporation
of Santa Rosa
13412 Chalk Hill Road
Healdsburg, CA 95448
Attention: Margo Merck
Telephone: (707) 433 -5533
Facsimile: (707) 433 -6622
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand, on the third day from the date it is postmarked if delivered by first -class mail, postage
prepaid, upon receipt of verification of transmission if sent via facsimile provided a copy is sent the same day
via first -class mail, and on the next business day if sent via nationally recognized overnight courier. Notices
sent by a party's attorney on behalf of such party shall be deemed delivered by such party.
702. Term of Agreement; Enforced Delay; Extension of Times of Performance. Subject to
the limitations set forth below, performance by either party hereunder shall not be deemed to be in Default,
and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults
are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts
of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or
priority; litigation; unusually severe weather; acts or omissions of the other party; or acts or failures to act of
the City or any other public or governmental agency or entity (other than the acts or failures to act of
Commission which shall not excuse performance by Commission). An extension of time for any such cause
shall be for the period of the enforced delay and shall commence to run from the time of the commencement
of the cause (but in any event shall not exceed a cumulative total of one hundred twenty (120) days, if not:
by the party claiming such extension is sent to the other party within thirty (30) days of the commencement
of the cause. 'Times of performance under this Agreement may also be extended in writing by the mutual
agreement of the Executive Director of Commission and Developer. Developer expressly agrees that adverse
changes in economic conditions, either of Developer specifically or the economy generally, changes in
market conditions or demand, and/or Developer's inability to obtain financing or other lack of funding to
complete the work of Improvements shall not constitute grounds of enforced delay pursuant to this
Section 702. Developer expressly assumes the risk of such adverse economic or market changes and/or
inability to obtain financing, whether or not foreseeable as of the Date of Agreement.
703. Successors and Assigns. Subject to the prohibitions against changes in the ownership,
management and control of Developer set forth in the Covenant, all of the terms, covenants and conditions of
this Agreement shall be binding upon Developer and its permitted successors and assigns. Whenever the
term "Developer" is used in this Agreement, such term shall include any other permitted successors and
assigns as herein provided. Any assignee pursuant to an assignment consented to by Commission shall
deliver to Commission, before the assignment shall be effective, a written original of the assignment of this
Agreement and the party's agreement to be bound by and to perform and observe all terms, covenants and
conditions of Developer under this Agreement (including all attachments hereto) and to assume all
obligations of Developer thereunder, which instrument must be satisfactory in form and content to
Commission.
704. Memorandum of Agreement. A "Memorandum of Affordable Housing and Loan
Agreement" in the form of Attachment No. 9 attached hereto shall be recorded against the Site immediately
following execution of the Agreement by Commission.
910757v4 80078/0022 27
705. Relationship Between Commission and Developer, City and Developer. It is hereby
acknowledged that the relationship between Commission and Developer or the City and Developer is not that
of a partnership or joint venture and that Commission and Developer, or the City and Developer, shall not be
deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided
herein or in the attachments hereto, neither Commission nor the City shall have any rights, powers, duties or
obligations with respect to the development, operation, maintenance or management of the Site or the
Project. Developer agrees to indemnify, hold harmless and defend the Indemnitees from any claim made
against the Indemnitees arising from a claimed relationship of partnership or joint venture between
Commission and Developer, or the City and Developer, with respect to the development, operation,
maintenance or management of the Site or the Project.
706. Commission Approvals and Actions. Whenever a reference is made herein to an action or
approval to be undertaken by Commission, the Executive Director of Commission or his or her designee is
authorized to act on behalf of Commission unless specifically provided otherwise or the context should
require otherwise.
707. Counterparts. This Agreement may be signed in multiple counterparts which, when signed
by all parties, shall constitute a binding agreement. This Agreement is executed in three (3) originals, each
of which is deemed to be an original.
708. Integration. This Agreement plus Attachment Nos. 1 through 13, and such conditions of
approval as requested by City, constitute the entire understanding and agreement of the parties,
notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest
with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement and shall be of
no further force or effect. Each party is entering this Agreement based solely upon the representations set
forth herein and upon each party's own independent investigation of any and all facts such party deems
material.
709. Titles and Captions. Titles and captions are for convenience of reference only and do not
define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section
numbers are to sections in this Agreement, unless expressly stated otherwise.
710. Interpretation. As used in this Agreement, masculine, feminine or neuter gen6t and the
singular or plural number shall each be deemed to include the others where and when the context so dictates.
The word "including" shall be construed as if followed by the words "without limitation." All exhibits and
attachments to this Agreement are incorporated by reference as though fully restated herein. This Agreement
shall be interpreted as though prepared jointly by both parties. In the event of any conflict between the terms
and conditions of this Agreement and the Purchase and Sale Agreement, this Agreement shall control.
711. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or
agreements under this Agreement to be performed by the other party shall not be construed as a waiver of
any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this
Agreement. No waiver by City or Commission of any of the Conditions Precedent or Governmental
Requirements shall be effective unless in a writing expressly identifying the scope of the waiver and signed
by the waiving entity.
712. Modifications. Any alteration, change or modification of or to this Agreement, in order to
become effective, shall be made in writing and in each instance signed on behalf of each party.
713. Severability. If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder
of this Agreement, or the application of the term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected,
and shall be valid and enforceable to the fullest extent permitted by law.
910757x480078/0022 28
714. Computation of Time. The time in which any act is to be done under this Agreement is
computed by excluding the first day (such as the day escrow opens), and including the last day, unless the
last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall
mean all holidays as specified in California Government Code sections 6700 and 6701. If any act is to be
done by a particular time during a day, that time shall be Pacific Time Zone time.
715. Legal Advice. Each party represents and warrants to the other the following: they have
carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right
which they may have; they have received independent legal advice from their respective legal counsel as to
the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon
any agreement, promise, statement or representation by or on behalf of the other party, or their respective
officers, agents, employees, volunteers, and representatives, or attorneys, except as specifically set forth in
this Agreement, and without duress or coercion, whether economic or otherwise.
716. Time of Essence. Time is of the essence with respect to the performance by Commission
and Developer of each and every obligation and condition of this Agreement.
717. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that
regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to
carry out the purposes and intent of this Agreement including releases or additional agreements.
718. Conflicts of Interest. No member, official or employee of Commission or City shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee
participate in any decision relating to the Agreement which affects his personal interests or the interests of
any corporation, partnership or association in which he is directly or indirectly interested.
719. Time for Acceptance of Agreement by Commission. This Agreement, when executed by
Developer and delivered to Commission, must be authorized, executed and delivered by Commission on or
before forty -five (45) days after signing and delivery of this Agreement by Developer or this Agreement
shall be void, except to the extent that Developer shall consent in writing to a further extension of time for
the authorization, execution and delivery of this Agreement.
720. Developer's Indemnity. Developer shall defend (with counsel reasonably acceptaule to
Commission and the City, as applicable), indemnify, assume all responsibility for, and hold the Indenmwes
harmless from and against any and all present and future Claims arising out of or in any way connected with
subject matter of this Agreement or the implementation hereof and for any damages to property or injuries to
persons, including accidental death (including attorneys fees and costs), which may be caused by any of
Developer's activities under this Agreement, whether such activities or performance thereof be by Developer
or by anyone directly or indirectly employed or contracted with by Developer and whether such damage shall
accrue or be discovered before or after termination of this Agreement. Developer's indemnity obligations
under this Section 720 shall not extend to Claims caused by the sole negligence or willful misconduct of
Commission or the City, or its or their designated agents or employees.
721. Non - liability of Officials and Employees of Commission and Developer. No member,
official or employee of Commission or the City shall be personally liable to Developer, or any successor in
interest, in the event of any Default or breach by Commission (or the City) or for any amount which may
become due to Developer or its successors, or on any obligations under the terms of this Agreement.
Developer hereby waives and releases any claim it may have against the members, officials or employees of
Commission and the City with respect to any Default or breach by Commission (or the City) or for any
amount which may become due to Developer or its successors, or on any obligations under the terms of this
Agreement. Developer makes such release with full knowledge of Civil Code section 1542 and hereby
waives any and all rights thereunder to the extent of this release, if such section 1542 is applicable. Section
1542 of the Civil Code provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
9107570 80078/0022 29
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor."
As such relates to this Section 721, Developer hereby waives and relinquishes all rights and benefits
that it may have under section 1542 of the California Civil Code.
722. Assignment
722.1 By Commission. Commission may assign or transfer any of its rights or
obligations under this Agreement with the approval of Developer, which approval shall not be unreasonably
withheld; provided, however, that Commission may assign or transfer any of its interests hereunder to the
City or any public or private entity controlled by the City at any time without the consent of Developer.
722.2 By Developer. The expertise and experience of Developer and its partners, are of
extreme importance to Commission, and are a material inducement for Commission to enter into this
Agreement. As such, Developer may not assign or transfer any of its rights or obligations under this
Agreement with the express written approval of Commission, which approval may be withheld in
Commission's sole discretion; provided, however, that Developer may make those transfers as permitted
under the Covenant.
723. Applicable Law. The laws of the State of California, without regard to conflict of laws
principles, shall govern the interpretation and enforcement of this Agreement.
724. Authorization. Each individual or entity executing this Agreement on behalf of Developer
represents and warrants that he or she or it is duly authorized to execute and deliver this Agreement on behalf
of Developer and that such execution is binding upon Developer.
725. Attorneys' Fees. In any action or proceeding which either party brings against the other to
enforce its rights hereunder, the unsuccessful party shall pay all costs incurred by the prevailing party,
including reasonable attorneys' fees, which amounts shall be a part of the judgment in said action or
proceeding.
726. City as Third Party Beneficiary. Developer agrees and acknowledges that the City and its
officers, officials, employees, volunteers, agents, and representatives is a third -party beneficiary of the
releases and indemnities contained in this Agreement which expressly refer to City such entities or persons,
and as to the Public Improvements.
727. Discretionary Approvals. Each City and Commission shall act independently, reserving
full and complete discretion with respect to any approvals without reference to this Agreement_ As such,
Developer acknowledges that (a) the execution of this Agreement does not constitute a commitment of
either Commission or City to approve this Agreement, the 33433 Report, any general plan amendment,
Property rezoning, or any other agreement, satisfy Governmental Requirements, or make any findings,
recommendations or issue approvals in favor of Developer, (b) no such action shall be effective unless and
until approved by Commission, the Planning Commission, and the City Council in each of their sole
discretion, as applicable, and (c) neither Commission nor City will consider approval of the Project unless
and until Commission or City (as applicable) has fully reviewed and considered the environmental impacts of
the proposed Project in accordance with Environmental Laws as defined above, and (d) regardless of
Environmental Compliance review, neither Commission nor City is obligated, by this Agreement or
otherwise, fulfill any Environmental Compliance obligations or to adopt findings of overriding
considerations for the, approval of the Project or take any other action in support of the proposed Project, nor
are they precluded, by this Agreement or otherwise, from rejecting the Project or from imposing mitigation
measures as a condition of Project approval, which measures mitigate or avoid direct or indirect
environmental effects of the Project. Developer further acknowledges that nothing in this Agreement is
intended to or shall prejudge or commit to City or Commission regarding the findings and determinations to
be made with respect to the subject matter of this Agreement, nor shall either Commission or City shall be
910757A 80078/0022 30
liable, in any respect, to Developer or any third party beneficiary of this Agreement for their action or
inaction in approving this Agreement, granting or denying any discretionary approvals.
IN WITNESS WHEREOF, Commission and Developer have executed this Agreement on the
respective dates set forth below.
Dated:
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By:
Its:
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its` Managing General Partner
By:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California
nonprofit corporation
Its: Co- General Partner
Dated:
By: -- —
Its:
"DEVELOPER"
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
Dated: By:
"Date of Agreement"
Its:
"COMMISSION"
ATTEST:
Cormmission Secretary
APPROVED AS TO FORM:
General Counsel
910757A 80078/0022 31
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PROM= 73;544 SF.* X
,NOTES
1, TOPOORAPHIC HI INFORMATION
A"OCI SHOWN 1O IS BASLD UPON A FIELD 9t1RVEY PFRFORMFA BY •``
s1EVE7N a LAFTFANCM t Al9DCIA7R INC. ON PEERUARY 23 2004 LEGEND
. L SENCHMARK: TOP OF CURB AT CATCH SAM Nw 3 LOCATED ON THE SOUTH WEST CURS
RETURN AT ROHNERT PARK C AY AND GOODYEAR DRIVE PER ROHNERT PARK 00•AE9S WAY . ............. ......__..... V ME FENCE ) >'.
RRDERHNO IMPROVEMENT PLANS PREPARED BY M. HUDtS AND ASSOCIATES DATED JUNE 1091 +
ELRVATION --,l' MS0.3. DARIM MINUS 1.n ELEVATION V00= 4 -t3-04 BY WS METHODS, ,._....... ,� .._.._.._.. .:� - _.__...._.. pfAN1 LINK ENTICE
ELEVATION tt NOVp 19� D AA, PU ED ELEVTATION HE 0.1 THIS ��M��''Y1NVST
ADJUSTED +i.ts ro HATCH NOW 1S3Y DiLTUM.
& HCRZONTA4 DATLM4 ROHNERT PARK PARCEL MAP NCO 142 (406 MAPS 7j, SONOMA COUNTY
4. THE FLOOD ZONE Of90NATRON FOR PC SITE IS SHOWN AS ZONE 'C' PER FLOOD INSURANCE
RATE MAP COMMUNITY PANEL NUMBER 040340 0001 B DATED JUNE 1. ISM.
VICINITY MAP
NOT ro SCALE
A TAB DOCUMENT AND THE WO RMATIOM CONTAINED HEREIN ARE THE PROPERTY OF S79VEN IL
LAFRANCNR AND ASSOCIATES, INC. UNAUTMORlZED USE, COPYNC, 013OLOSIM OR PUBLICA71ON BY
ANY METHOD IS PROHWTW WITHOUT THE WRITTEN APPROVAL OF STEVEN L LAFRMICM AND
ASSOCIATES, INC. STEVEN A R.AF'RANCYI AND ASSOCIATES. TIC. A99JIMES NO RESPONSIBILITY FOR
ANY VNAUDWPo2ED DUPLICA7WN OF IFOIalAT10F1 iHAT WY APPEAR ON ANOTHER PLAN OR MAP.
0. BOUNDARY AND EASEMENT INFORMATION SNOW IS BASED UPON I= TIES AND RECORD DATA
AS SHOW ON OfTY OF ROFNERT PARK PARCEL MAP NQ 142 AND FROM NF'ORMATiON AS SHORN
ON A PRELIMINARY ITILE REPORT PREPARED BY NORTH BAY TREE COMPANY (ORDER N0.
00202928-405-PAD) OATED DES 0. 2004.
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SURVEY CONTROL PONT
Aft ASSESSOR'S PARCEL NUMBER
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TO BE COMBIIED WITH
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ATTACHMENT NO. 2
SITE LEGAL DESCRIPTION
CITY OF ROHNERT PARK
VIDA NUEVA REVISED LOT 1 COMBINED WITH PORTION OF PARCEL A
DRAFT LEGAL DESCRIPTION
SITUATE IN THE CITY OF ROHNERT PARK, COUNTY OF SONOMA AND STATE OF CALIFORNIA.
LOT 1 AS SHOWN ON THE CITY OF ROHERT PARK PARCEL MAP NO: 142 RECORDED DECEMBER 20,
1991 AND FILED IN BOOK 486 OF MAPS AT PAGES 7 -9, SONOMA COUNTY RECORDS.
TOGETHER WITH A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, A MUNICIPAL
CORPORATION AS DESCRIBED IN DEED RECORDED UNDER DOCUMENT NO. 1992 - 0006439,
SONOMA COUNTY RECORDS, ALSO BEING A PORTION.OF PARCEL "A° AS SHOWN ON CITY.OF
ROHNERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER 20, 1991 AND FILED IN BOOK 486 OF
MAPS AT PAGES 7 THROUGH 9, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL °A" , SAID CORNER BEING THE
BEING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1568.00 FEET; THENCE. ALONG SAID
CURVE AND THE NORTHERLY LINE OF PARCEL 220.00 FEET THROUGH A CENTRAL ANGLE OF
08 105'26 "; THENCE RADIALLY FROM SAID CURVE SOUTH 08°24'02" EAST, 23.23 FEET TO THE
SOUTHERLY LINE OF SAID PARCEL; THENCE ALONG.SAID LINE SOUTH 71 °56'15" EAST, 150.54 FEET
TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1072.05 FEET; THENCE
ALONG SAID CURVE AND THE SOUTHERLY LINE OF SAID PARCEL 84.78 FEET THROUGH A
CENTRAL ANGLE OF 04 °31'52° TO THE SOUTHEASTERLY CORNER OF SAID PARCEL; THENCE
ALONG THE EASTERLY LINE OF SAID PARCEL NORTH 00. 00'00" WEST, 83.08 FEET TO THE POINT OF
BEGINNING.
CONTAINING 1.825 ACRES (79,497 SQUARE FEET) MORE OR LESS.
BASIS OF BEARING OF THIS DESCRIPTION IS THE ABOVE MENTIONED PARCEL MAP.
PREPARED W THE OFFICE OF STEVEN J. LAFRANCHI & ASSOCIATES, INC.
DRAFT
STEVEN J LAFRANCHI, P.L.S. 6368 DATE
EXPIRATION DATE: 12 -31-06
STEVEN J. LAFRANCHI & ASSOCIATES, INC,
CIVIL ENGINEERS - LAND SURVEYORS LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954
TEL 707 -762 -3122 FAX 707 -762 -3239
061081 DRAFT Legal Description for VOa Nueva
DRAFT EXHIBIT SHOWING COMBINATION OF LOT I & PORTION OF PARCEL A
SEE EXHIBIT "A" FOR LEGAL DESCRIPTION
FOR GRAPHIC ILLUSTRATION AND INFORMATIVE PURPOSES ONLY
PARCEL A -`
CITY OF ROHNERT PARK
DN 1992 0006439
APN 14,3 - 391 -054
H �
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Z
— — —
FORMER LOT LNG
Z
TO BE COMBINED
W
FOUND 3/4' IP
TAGGED PIS 10578
FOUND PK
TAGGED PLS 10578
RI
MAP REFERENCE Na 142
486 MAPS 7 -9, SCR
P.O.B.
POINT OF BEGINNING
POINT OF BEGINNING
PAFK EXPFESSWAY
4
I�
V
OF ROHNERT
V 1997 01191
'N 143 - 391 -lJ,
APN 143-- 391 -052
LOT 2
RA0CM MAP Na 142
499 WPS 7-9
APN 143- 391 -050
/ R- 1558.00' D- 08'05'26" L- 220.00'
2 S 08-24'02' W 23.23' (RADIAL)
3 S 71'36'15" E 150.54'
4 R- 1072.05' 004'31'52` L- 84.78'
5 N 00'00'00' W 83.08' R1
e
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
PETALUMA. CALIFORNIA 94954
T75 BAYWOOD DRIVE, SUITE 312
707-T62-3122 FAX 707-762-3239
.�aeur warn nhrom7j6Wl &LL4&hb1fdWy
ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE
910765v4 80078 /0022 Attachment No. 3 Page 1
Action
Date
1.
Execution and Delivery of Agreement by
Within thirty (30) days after delivery to Commission
of three (3) executed originals..
(NOTE: This is the Date of Agreement)
Commission and Recordation of Memorandum of
Agreement.
Commission shall consider approval of this
Agreement, and if approved, shall deliver one
executed original to Developer and shall record.the
Memorandum of Agreement immediately thereafter.
( §719 and §704)
2.
Developer Submission of Evidence of Financing.
On or before sixty (60) days before start of
Developer shall submit its evidence of financing for
construction
development of the Site. §501
3.
Commission Approval/Disapproval of Developer
Within twenty (20) days after submission by
Developer.
Evidence of Financing.
Commission shall approve or disapprove
Developer's evidence of financing. §501
4.
Environmental Investigation.
Within one hundred fifty (150) days following Date of
Developer shall have completed its investigation of
Agreement, but in any event, prior to Commission
the environmental condition of the Site and
opening Escrow.
provided the required notice to Commission.
( §106.1)
5.
Insurance.
Not later than fifteen (15) days prior to the Closing.
Developer shall furnish evidence of the insurance
required under the Agreement to Commission.
( §305)
6.
Developer to Deposit in Escrow.
Not later than five (5) days prior to the Closing.
Developer shall deposit Note, Commission Deed of
Trust, and Performance Deed of Trust in Escrow.
§201
7.
City and Other Government Permits.
_
Prior to the commencement of construction.
Developer shall secure all permits, other than
building permits, for the development of the Site.
§302
8.
Lot Line Adjustment.
On or before the Closing.
Developer shall have completed the Lot Line
Adjustment. (§108)
9.
Conditions Precedent.
On or before the Outside Date.
All of the Conditions Precedent to Closing and the
Conditions Precedent shall be satisfied (or expressly
waived in writing by the appropriate party).
( §201.3, §502)
10.
Closing.
Within forty five (45) days following satisfaction of
Commission shall close escrow and convey the Site
all of Commission's and Developer's Conditions
to Developer. (Agreement; Joint Escrow
Precedent, but in no event Iaer than August 30, 2007
Instructions, Attachment 4)
(the "Outside Date ").
910765v4 80078 /0022 Attachment No. 3 Page 1
Action
Date
11. Issuance of Closure Letters.
Within ninety (90) days following the Closing.
If remedial work is required, Developer shall have
obtained closure letters and provided copies of such
closure letters to Commission. (§ 106.1)
12. Completion of Construction of Developer's
On or before twenty -four (24) months following the
Improvements.
Closing.
Developer shall complete construction of the
Improvements.
13. Certificate of Completion.
Within thirty (30) days following satisfactory
Commission shall provide the Certificate of
completion of all Improvements and Developer's
Completion to Develo er. ( §312)
written re uest therefor.
The provisions of this Schedule of Performance are intended as a convenient guideline for the parties: In the
event of any conflict between this Schedule of Performance and the Agreement, the Agreement shall prevail.
910765v4 80078/0022 Attachment No. 3 Page 2
ATTACHMENT NO. 4
JOINT ESCROW INSTRUCTIONS
. These escrow instructions issued by THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body corporate and politic ( "Commission "), and VIDA NUEVA
PARTNERS, L.P., a California limited partnership ( "Developer "), shall constitute joint escrow instructions
of Developer and Commission for the transaction contemplated under the Affordable Housing and Loan
Agreement by and between the parties dated ( "Agreement "). All capitalized terms
not defined herein shall have the meaning as defined in the Agreement.
Escrow Instructions.
a. This document and the Agreement constitute joint escrow instructions of Developer
and Commission, and Escrow Agent to whom these instructions are delivered is hereby empowered to act
thereunder. The parties hereto agree to do all acts reasonably necessary to close Escrow in the shortest
possible time. Insurance policies for fire or casualty are not to be transferred, and Commission will cancel its
own policies, if any, after the Closing. All funds received in Escrow shall be deposited with other escrow
funds in a general escrow account and may be transferred to any other such escrow trust account in any state
or national bank doing business in the State of California. All disbursements shall be made by check or wire
transfer from such account.
b. If, in the opinion of either party, it is necessary or convenient in order to accomplish
the Closing of this transaction, such party may execute supplemental escrow instructions and/or require that
the parties sign supplemental joint escrow instructions; provided that if there is any inconsistency between
this document, the Agreement, and the supplemental escrow instructions, then the provisions of the
Agreement shall control. The parties agree to execute such other and further documents as may be
reasonably necessary, helpful or appropriate to effectuate the provisions of the Agreement. Escrow Agent is
instructed to release Commission's escrow closing and Developer's escrow closing statements to the
respective parties.
Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
a. Pay and charge Developer for the premium of the Title Policy and the Lender's
Policy as set forth in Section 103 of the Agreement and any amount necessary to place title in the condition
necessary to satisfy Section 104 of the Agreement.
b. Pay and charge Developer for any endorsements to the Title Policy and the Lender's
Policy which are requested by Developer or Commission, respectively, as set forth in Section 103 of the
Agreement.
C. Pay and charge Developer for any escrow fees, charges, and costs payable under the
Agreement.
d. Record the Affordable Housing and Maintenance Covenant and the Performance
Deed of Trust against the Site at the time of Closing.
e. Deliver the Note to Commission.
f Deliver and record the Grant Deed, when both Developer's and Commission's
Conditions Precedent to Closing have been fulfilled or waived in writing by Developer and/or Commission
as applicable.
910765v4 80078/0022 Attachment No. 4 Page t
g. Record the Commission Deed of Trust (including the Addendum thereto).
h. Record the Memorandum of Agreement against the Site.
i. Disburse the Purchase Assistance as set forth in the Agreement.
j. Do such other actions as necessary, including obtaining the Title Policy and the
Lender's Policy, to fulfill its obligations under the Agreement.
k. Within the discretion of Escrow Agent, direct Commission and Developer to execute
and deliver any instrument, affidavit, and statement, and to perform any act reasonably necessary to comply
with the provisions of FIRPTA and any similar state act and regulations promulgated thereunder.
Commission agrees to execute a Certificate of Non - Foreign Status by individual transferor and/or a
Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be
required by Escrow Agent, on the form to be supplied by Escrow Agent.
1. Prepare and file with all appropriate governmental or taxing authorities a uniform
settlement statement, closing statement, tax withholding forms including an IRS 1099 -S form, and be
responsible for withholding taxes, if any such forms are provided for or required by law.
m. Verify that all Documents (as herein defined) were properly dated and executed,
personally, not under power of attorney, by the party named as the signator as set forth therein, initialed, and
where applicable, witnessed and acknowledged, and that all exhibits (including correct property descriptions)
were appended.
3. Closin . Except as otherwise agreed by the parties in writing, the Conveyance of the Site by
Commission to Developer shall take place after the parties' satisfaction of all of the Conditions Precedent to
Closing as set forth in Agreement, but in no event later than the date set forth in the Schedule of Performance
(the "Outside Date "). Commission and Developer shall cooperate to identify a mutually acceptable Closing
Date, which shall be on or before the Outside Date. The "Closing" shall mean the time and day the Grant
Deed is filed for recordation with the Sonoma County Recorder. The "Closing Date" shall mean the day ors
which the Closing occurs.
4. Closing Procedure. Escrow Agent shall close Escrow for the Site as follows:
a. Record the Grant Deed with instructions for the Recorder of Sonoma County,
California to deliver the Grant Deed to Developer;
b. Record the Memorandum of Agreement with instructions for the Recorder of
Sonoma County, California to deliver the Grant Deed to Developer;
C. Record the Covenant with instructions for the Recorder of Sonoma County,
California to deliver the Covenant to Commission;
d. Record the Performance Deed of Trust with instructions for the Recorder of Sonoma
County, California to deliver the recorded Performance Deed of Trust to Commission;
e. Record the Commission Deed of Trust with instructions for the Recorder of Sonoma
County, California to deliver the recorded Commission Deed of Trust to Commission.
f. Deliver the Note to Commission.
g. Instruct the Title Company to deliver the Title Policy to Developer;
910765v4 80078 /0022 Attachment No. 4 Page 2
h. File any informational reports required by Internal Revenue Code section 6045(e),
as amended, and any other applicable requirements;
Deliver the FIRPTA Certificate, if any, to Developer; and
j. Forward to both Developer and Commission a separate accounting of all funds
received from and disbursed.to each party and conformed copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
5. Miscellaneous. These Joint Escrow Instructions shall be construed in accordance with and
be governed by the laws of the State of California. If any provision of these Joint Escrow Instructions shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions .
hereof shall not in any way be affected or impaired thereby. Capitalized terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Agreement.
IN WITNESS WHEREOF, Commission and Developer have executed these Joint Escrow
Instructions on the respective dates set forth below.
Dated:
Dated:
Dated:
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By:
Its:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a Californiaz
nonprofit corporation
Its: Co- General Partner
By:
Its:
"DEVELOPER"
910765v4 80078/0022 Attachment No. 4 Page 3
Dated:
"Date of Agreement"
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
IC
Its:
"COMMISSION"
910765v4 80078/0022 Attaclunent No. 4 Page 4
ACKNOWLEDGEMENT AND CONSENT
Receipt of the foregoing instructions and original documents is hereby acknowledged. We agree, for
ourselves and on behalf of North American Title, to proceed in strict accordance with these Instructions, and
represent and warrant to the Agency that we, and each of us, is and are authorized to execute this
Acknowledgement and Consent for ourselves, and each of us, and on behalf of North American Title.
Date:
Date:
NORTH AMERICAN TITLE
By
Name
Title: Escrow Officer
By:
Name
Title: Title Officer
910765v4 80078/0022 Attachment No. 4 Page 5
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Development Commission
of the City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
ATTACHMENT NO. 5
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code § 27383]
GRANT DEED INCLUDING COVENANTS
For valuable consideration, the receipt of which is hereby acknowledged:
THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK
(herein "Commission "), a public body, corporate and politic, of the State of California (herein called
"Grantor "), acting to carry out the Redevelopment Plan (herein called "Redevelopment Plan ") for the
Redevelopment Project, under the Community Redevelopment Law of the State of California, hereby grants
to VIDA NUEVA PARTNERS, L.P, a California limited partnership (herein called "Grantee "), the real
property ( "Site ") legally described in the document attached hereto, labeled Exhibit A, and incorporated
herein by this reference.
1. The Site is conveyed subject to the Redevelopment Plan and pursuant to an Affordable
Housing and Loan Agreement ( "Agreement ") entered into by and between the Grantor and Grantee dated
2006. The Site is also conveyed subject to all matters of record. The Grantor
and Grantee have executed 'a Memorandum of Affordable Housing and Loan Agreement ("Memorandum"')
dated concurrently herewith and recorded against the Site. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Agreement.
2. Grantee hereby covenants and agrees, for itself and its successors and assigns, that during
construction and thereafter, Grantee shall not use the Site for uses other than the uses specified in the
Redevelopment Plan.
3. Developer covenants and agrees for itself, its successors, its assigns and every successor in
interest that the Site shall be used for twenty -four (24) residential units (each a "Unit "), that all of the
residential units with the exception of the Manager's Unit (so long as utilized for such purposes), shall only
be rented to Very Low Income Households ( "Affordable Units ") for Affordable Rent, and that a majority of
the Affordable Units will be "supportive housing" units housing at least one (1) adult resident who is a
member of a "Special Needs Population" as defined in 25 California Code of Regulations section 7301(r), all
in accordance with the terms of the Affordable Housing and Maintenance Covenant dated concurrently
herewith and recorded against the Site ( "Covenant "). Grantee hereby covenants and agrees, for itself and its
successors and assigns, that during construction and thereafter, for a period of not less than fifty -five (55)
years from the date of recording. of the Covenant or the Certificate of Completion, whichever occurs later, the
Affordable Units shall be and remain affordable to Very Low Income Households in accordance with the
Covenant.
4. Grantee shall maintain any private improvements, public improvements, and landscaping to
the curbline(s) on and abutting the Site in accordance with the Maintenance Standards, as defined in the
Covenant.
910765v4 80078/0022 Attachment No. 5 Page 1
5. Prior to the issuance of a Certificate of Completion by the Grantor as provided in the
Covenant, Grantee shall not, except as permitted by the Covenant, sell, transfer, convey, assign or lease the
whole or any part of the Site without the prior written approval of the Grantor. This prohibition shall not be
deemed to prevent the granting of easements or permits to facilitate the development of the Site, or any
portion thereof, or to prohibit or restrict the lease or rental of an Affordable Unit to Very Low Income
Households when said improvements are completed. Subsequent to the issuance of the Certificate of
Completion, Developer shall not sell, transfer, convey, assign or lease the whole or any part of the Site,
except as permitted in accordance with the terms and provisions set forth in the Covenant.
6. Option to Repurchase.
a. Grantee hereby grants to Grantor the option to repurchase the Site hereby conveyed
and all improvements subsequently constructed thereon if after conveyance of title to the Site or portion
thereof and prior to the issuance of the Certificate of Completion therefor, Developer shall:
i. Subject to extensions pursuant to Section 702 of the Agreement, fail to
commence or complete Construction of the Improvements within the time set forth in the Schedule of
Performance; or
Ii. Once construction has been commenced, fail to diligently prosecute
construction of the Improvements through completion, where such failure has not been cured within three (3)
months after Developer's receipt of written notice thereof from Commission; or
iii. Abandon or substantially suspend construction of the Improvements for a
period of three (3) months after Developer's receipt of written notice of such abandonment or suspension
from Commission; or
iv. Without the prior written consent of Commission, directly or indirectly,
voluntarily or involuntarily sell, assign, transfer, dispose of or further encumber or agree to sell, assign,
transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any
interest in the Site, except for any sale or transfer which is expressly permitted by the terms of the
Agreement. For the purpose of this Section, the terms "sell" and "transfer" shall include, in addition to the
common and ordinary meaning of those terms and without limiting their generality, transfers made to
subsidiary or affiliated entities, and any "change in ownership" as that term is used from time to time in
California real property taxation law, irrespective of the fact that the Site may be exempt from such
transaction during the period when owned by Commission.
C. To exercise its right to repurchase, reenter and take possession with respect to the
Site or any portion thereof, Commission shall pay to Developer in cash an amount equal to:
i. The amount of the Purchase Price paid by Developer to Commission; plus
ii. The out -of- pocket costs actually incurred by Developer for on -site labor and
materials for the construction of the Improvements existing on the Site (but specifically excluding the Public
Improvements or any costs incurred by Developer pursuant to the Parking Agreement) at the time of the
repurchase, reentry and repossession (exclusive of amounts financed, if any, to the extent such financing
obligations are assumed by Commission); less
iii. Any net gains or net income withdrawn or made by Developer from the Site
or such portion thereof or the improvements thereon; and less
iv. Any outstanding unpaid amount of the Promissory Note, plus accrued
interest; and less
9107650 80078/0022 Attachment No_ 5 Page 2
V. The amount of unpaid liens on the Site, the City's, or Commission's
property, or such portion thereof which Commission agrees to pay, and any unpaid current or past -due
installments of assessments against the Site or such portion thereof which Commission agrees to pay; and
less
vi. Any other amounts outstanding from Developer to Commission or City.
d. In order to exercise such repurchase option, Commission shall give Developer notice
of such exercise and Developer shall, within thirty (30) days after Developer's receipt_ of such notice, provide
Commission with a summary of all of Developer's costs incurred as provided above. Commission, within
thirty (30) days thereafter, shall pay to Developer in cash all sums owing pursuant to this Subsection 6.d, and
Developer shall thereupon execute and deliver to Commission a grant deed transferring to Commission all of
Developer's interest in the Site.
7. Grantee covenants by and for itself and any successors in interest that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical
condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall Grantee itself or any person claiming under or through it establish or permit
any such practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Site.
All deeds, leases or contracts made relative to the Site, the improvements thereon or any part
thereof shall contain or be subject to substantially the following nondiscrimination clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap,
medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises herein conveyed, nor shall the grantee, or any person claiming under or through
him or her, establish or pen-nit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in
the premises herein conveyed. The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this
lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group
of persons on account of race, color, creed, religion, sex, marital status, sexual orientation, source of income,
age, physical or mental handicap, medical condition, national origin or ancestry in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the premises herein leased, nor shall the lessee himself
or herself, or any person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased."
C. In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation,
source of income, age, physical or mental handicap, medical condition, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself
or herself, or any person claiming under or through him or her, establish or permit any such practice or
910765v4'80078/0022 Attachment No. 5 Page 3
practices of discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the premises.
The provisions of this Section 7 shall run with the land and shall be contained in each
subsequent grant deed conveying title to the Site to any subsequent owner.
8. Upon written request by Developer, Commission shall agree that the terms and conditions
under Section 3 of this Grant Deed relating to the affordability requirements for the Affordable Units
( "Affordability Restrictions ") shall be subject to and subordinate only to the terms and conditions of the
MHP Affordability Restrictions. Commission shall consider subordination of the Affordability Restrictions
to the Construction Financing in accordance with the Community Redevelopment Law of the State of
California (Health and Safety Code section 33000, et seg.).
9. No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any
mortgage, deed of trust or other financing or security instrument permitted by the Agreement, provided,
however, that any successor of Grantee to the Site shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in
lieu of foreclosure, trustee's sale or otherwise.
10. Except as otherwise provided, the covenants contained in Sections 3, 4 and 5 of this Grant
Deed shall remain in effect for fifty -five (55) years from the date of recordation of the Covenant or the
Certificate of Completion, whichever occurs later. The covenant contained in Section 2 shall remain in
effect until the date of termination of the Redevelopment Plan. The covenants against discrimination
contained in Section 7 of this Grant Deed shall remain in perpetuity. The covenant contained in Section 6
shall remain in effect until issuance of a Certificate of Completion pursuant to Section 312 of the Agreement.
11. The covenants contained in Sections 2, 3, 4, 5, 6 and 7 of this Grant Deed shall be binding
for the benefit of the Grantor, its successors and assigns, the City of Rohnert Park, and any successor in
interest to the Site or any part thereof, and such covenants shall run in favor of the Grantor and such
aforementioned parties for the entire period during which such covenants shall be in force and effect, withoui
regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants
relate. The Grantor and such aforementioned parties, in the event of any breach of any such covenants, shall
have the right to exercise all of the rights and remedies and to maintain any actions at law or suits in equity
or other proper proceedings to enforce the curing of such breach. The covenants contained in this Grant
Deed shall be for the benefit of and shall be enforceable only by the Grantor, its successors and such
aforementioned parties.
12. This Grant Deed shall be construed in accordance with and be governed by the laws of the
State of California. If any provision of this Grant Deed shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired
thereby. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the
Agreement.
910765v4 80078/0022 Attaclunent No. 5 Page 4
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on
their behalf by their respective officers thereunto duly authorized this i u ' day of
s
429 �
Dated:
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
By:
Name:
Its:
[Signature must be notarized]
[Developer acceptance follows on next page]
"GRANTOR"
910765v4 80078/0022 Attachment No. 5 Page 5
Dated:
Dated:
Dated:
The provisions of this Grant Deed are hereby approved and accepted.
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By:
Its:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California nonprofit
corporation
Its: Co- General Partner
By:
Its:
/Signature must he notarized]
"GRANTEE"
910765v4 80078/0022 Attachment No. 5 Page 6
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On , 20_, before me, (here insert
name and title of the officer), 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 )
ss.
COUNTY OF 1
On , 20 , before me, (here insert
name and title of the officer), 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
910765v4 80078/0022
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
CITY OF ROHNERT PARK
VIDA NUEVA REVISED LOT 1 COMBINED WITH PORTION OF PARCEL A
DRAFT` LEGAL DESCRIPTION
SITUATE IN THE CITY OF ROHNERT PARK, COUNTY OF SONOMA AND STATE OF CALIFORNIA.
LOT I AS SHOWN ON THE CITY OF ROHERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER20,
1991 AND FILED IN BOOK 486 OF MAPS AT PAGES 7 -9, SONOMA COUNTY RECORDS-
TOGETHER WITH A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, A MUNICIPAL
CORPORATION AS DESCRIBED IN DEED RECORDED UNDER DOCUMENT NO. 1992 - 0006439,
SONOMA COUNTY RECORDS, ALSO BEING A PORTION OF PARCEL "A- AS SHOWN ON CITY OF
ROHNERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER 20,199 1 AND FILED IN BOOK 486 OF
MAPS AT PAGES 7 THROUGH 9, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY
.DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL "A' , SAID CORNER BEING THE
BEING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1558.00 FEET; THENCE ALONG SAID
CURVE AND THE NORTHERLY LINE OF PARCEL 220.00 FEET THROUGH A CENTRAL ANGLE OF
08 °05'26 '; THENCE RADIALLY FROM SAID CURVE SOUTH 08°24'02' EAST, 23.23 FEET TO THE
SOUTHERLY LINE OF SAID PARCEL; THENCE ALONG SAID LINE SOUTH 71 °56'15' EAST, 150.54. FEET
TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1072.05 FEET; THENCE
ALONG SAID CURVE AND THE SOUTHERLY LINE OF SAID PARCEL 84.78 FEET THROUGH A
CENTRAL ANGLE OF 04 °31'52' TO THE SOUTHEASTERLY CORNER OF SAID PARCEL; THENCE
ALONG THE EASTERLY LINE OF SAID PARCEL NORTH 00°00'00' WEST, 83.08 FEET TO THE POINT OF
BEGINNING.
CONTAINING 1.825 ACRES (79,497 SQUARE FEET) MORE OR LESS.
BASIS OF BEARING OF THIS DESCRIPTION IS THE ABOVE MENTIONED PARCEL MAP.
PREPARED IN THE OFFICE OF STEVEN J. LAFRANCHI & ASSOCIATES. INC-
DRAFT
STEVEN J LAFRANCHI, P.L.S. 6368
EXPIRATION DATE: 12 -31-06
DRAFT
DATE
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS -- LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954
TEL 707 - 762 -3122 FAX 707- 762 -3239
061081 DRAFT Legal Dascripto for Vida NU va
fw°
Z
DRAFT EXHIBIT SHOWING COMBINATION OF LOT 1 & PORTION OF PARCEL A
SEE EXHIBIT "A" FOR LEGAL DESCRIPTION
FOR GRAPHIC ILLUSTRATION AND INFORMATIVE PURPOSES ONLY
3
PARCEL A J
C/TY Of ROHNERT PARK
DN 1992 0006439
APN 143- 391 -054
LEGEND
— — FORMER LOT LINE
Z TO BE COMBINED
• FOUND 3/4" IP
TAGGED PLS 10578
e FOUND PK
TAGGED PLS 10578
RI MAP REFERENCE Na 142
486 MAPS 7 -9, SCR
P.0.8. POINT OF BEGINNING
POINT OF BEGINNING
MfEAT PAFK EXPFESSWAY
4
PARCEL Na W
488 &1" 7-9
`-
Q�
1-99701191
c
APN 14.T -391 -052
LOT 2
PAS MAP t4m M
MAPS 7.0
APN 74J- 391 -050
R =1558.00' D- OM'26" L -220.W
1 S 08'2402" W 23.23' (RADIAL)
3 S 7136'15' E 150.54'
4 R- 1072.05' 0- 04'31'52' L- 84.78'
5 N OO*WOO' W 8108' R1
Q
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MNA BUSINESS CENTER
PETALUMA, CALIFORNIA 94954
775 RAYWOOD DRIVE, SUITE 312
707-762-3122 FAX 707-762-3239
.was ( Wdo Atww 1 XIO91tt f£xWt d6y
ATTACHMENT NO. 6
FORM OF CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL To:
Community Development Commission
of the City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
This document is exempt from the payment of a recording fee
pursuant to Government Code § 27383.
CERTIFICATE OF COMPLETION
OF CONSTRUCTION AND IMPROVEMENTS
THIS CERTIFICATE OF COMPLETION OF CONSTRUCTION AND IMPROVEMENTS
( "Certificate of Completion ") is made by the COMMUNITY DEVELOPMENT COMMISSION OF THE
CJTY OF ROHNERT PARK, a public body corporate and politic (the "Commission "), in favor of VIDA
NUEVA PARTNERS, L.P., a California limited partnership (the "Developer "), as of the date set forth below.
RECITALS
A. Commission and Developer have entered into that certain Affordable Housing and Loan
Agreement ( "Agreement ") dated 2006, concerning the redevelopment of
certain real property situated in the City of Rohnert Park, California, as more fully described in Exhibit "A"
attached hereto and made a part hereof.
B. As referenced in Section 312 of the Agreement, Commission is required to furnish
Developer or its successors with a Certificate of Completion upon completion of construction of the
Improvements (as defined in the Agreement), which Certificate of Completion is required to be in such form
as to permit it to be recorded in the Recorder's Office of Sonoma County. This Certificate of Completion is
conclusive determination of satisfactory completion of the construction and development required by the
Agreement.
C. Commission has conclusively determined that such construction and development has been
satisfactorily completed.
NOW, THEREFORE, Commission hereby certifies as follows:
1. The work of Improvements to be constructed by Developer has been fully and satisfactorily
completed in conformance with the Agreement.
2. All use, maintenance, operation, nondiscrimination and other covenants contained in the
Agreement, Grant Deed, and Covenant shall remain in effect and enforceable according to their terms.
910765v4 80078/0022 Attaclunent No. 6 Page 1
3. This Certificate of Completion shall not be deemed or construed to constitute evidence of
compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of
a mortgage, securing money loaned to finance the construction of the Improvements on the Site, or portion
thereof. This Certificate of Completion is not a notice of completion as referred to in section 3093 of the
California Civil Code.
IN WITNESS WHEREOF, Commission has executed this Certificate of Completion this Ma day
of , 200
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK,
a public body corporate and politic
By:
Name:
Its:
ATTEST:
Commission-Secretary
APPROVED AS TO FORM:
General Counsel
[Signature must be notarized]
9107650 80078/0022 Attachment No. 6 Page 2
EXHIBIT A
Sl . DESCRIPTION
CITY OF'ROHNERT PARK
VIDA NUEVA REVISED LOT 1 COMBINED WITH PORTION OF PARCEL A
DRAFT LEGAL DESCRIPTION
SITUATE IN THE CITY OF ROHNERT PARK, COUNTY OF SONOMA AND STATE OF CALIFORNIA.
LOT 1 AS SHOWN ON THE CITY OF ROHERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER 20,
1991 AND FILED IN BOOK 486 OF: MAPS AT PAGES 7 -9, SONOMA COUNTY RECORDS.
TOGETHER WITH A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, A MUNICIPAL
CORPORATION AS DESCRIBED INDEED RECORDED UNDER DOCUMENT NO. 1992 - 0000439,
SONOMA COUNTY RECORDS, ALSO BEING A PORTION OF PARCEL 'A' AS SHOWN ON CITY OF
ROHNERT PARK PARCEL. MAP NO- 142 RECORDED DECEMBER 20, 1991 AND FILED IN BOOK 486 OF
MAPS AT PAGES 7 THROUGH 9, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS`
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 'A' , SAID CORNER BEING THE
BEING O A CURVE TO THE RIGHT HAVING A RADIUS OF 1558.00 FEET; THENCE ALONG SAID
CURVE AND THE NORTHERLY LINE OF PARCEL 220.00 FEET THROUGH A CENTRAL ANGLE OF
08T5'26'; THENCE RADIALLY FROM SAID CURVE SOUTH 08°24'02" EAST, 23.23 FEET TO THE
SOUTHERLY LINE OF SAID PARCEL; THENCE ALONG SAID LINE SOUTH 71'56'15' EAST, 150,54 FEET
TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1072.05 FEET; THENCE
ALONG SAID CURVE AND THE SOUTHERLY LINE OF SAID PARCEL 84.78 FEET THROUGH A
CENTRAL ANGLE OF 04 °31'52' TO THE SOUTHEASTERLY CORNER OF SAID PARCEL; THENCE
ALONG THE EASTERLY LINE OF SAID PARCEL NORTH 00°00'00" WEST, 83 -08 FEET TO THE POINT OF
BEGINNING.
CONTAINING 1 -825 ACRES (79,497 SQUARE FEET) MORE OR LESS.
BASIS OF BEARING OF THIS DESCRIPTION IS THE ABOVE MENTIONED PARCEL MAP.
PREPARED IN THE OFFICE OF STEVEN J. LAFRANCHI & ASSOCIATES, INC-
DRAFT DRAFT
STEVEN JIAFRANCHI, P.L -S. 6368 DATE
EXPIRATION DATE: 12 -31 -06
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS -- LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954
TEL 707- 762 -3122 FAX 707 - 762 -3239
061081 ORAFT Legal 0a npfi n for %Ida Nueva
DRAFT EXHIBIT SHOWWNG COMBINATION OF LOT 1 & PORTION OF PARCEL A
SEE EXHIBIT "A" FOR LEGAL. DESCRIPTION
FOR GRAPHIC ILLUSTRATION AND INFORMATIVE PURPOSES ONLY
POINT OF BEGINNING
P AY
Q5
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
PETALUMA. CALIFORNIA 94954
775 BAYWOOD DRIVE, SUITE 312
70T 762.3122 FAX 707-762-3239
.leads 1 W7 Nuew I0Sf081LL4£x4Ab& a'"9
3
`!�' �`r , ' ' � � i_DT; ; � -•
PAS A'
� f�-
CITY OF RONN£RT PARK
;' CITY of ROHNERT
DN 1992 0006439
;, , j L >N 1997 0119158:',
APN 143- 391 -054
APN_ 14J -J91 -033; `,i':`,i
APN 14.x- 391 -052
P &L" 7.0 °4
LOT
PAID MAP Na M
486 MAPS 7-0
Z �
q
AON 143 -391 -050
LEGEND
—
—
— FORMER LOT UNE
Z
TO BE COMBINED
COURSE DATA
•
FOUND 3/4- P
/ R- 1558.00' D- 080626" L- 220.00'
TAGGED PLS 10578
2 S 08'24'02' W
23.23- (RADIAL)
•
ROUND PK
TAGGED PLS 10578
.T S 71-36'15" E
150 54'
R1
.
MAP REFERENCE No. 142
4 R- 1072.05' 0 -04 *31'52- L- 84.78'
486 MAPS 7 -9, SCR
5 N 00'00'00' W
83.08' R1
P.O.B.
POINT OF BEGINNING
Q5
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
PETALUMA. CALIFORNIA 94954
775 BAYWOOD DRIVE, SUITE 312
70T 762.3122 FAX 707-762-3239
.leads 1 W7 Nuew I0Sf081LL4£x4Ab& a'"9
STATE OF CALIFORNIA )
} ss.
COUNTY OF )
On , 20___, before me, (here insert
name and title of the officer), 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
910765v4 80078/0022
ATTACHMENT NO. 7
AFFORDABLE HOUSING AND MAINTENANCE COVENANT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
}
}
Community Development Commission )
of the City of Rohnert Park )
6750 Commerce Boulevard )
Rohnert Park, California 94928 )
Attention: Executive Director )
This document is exempt from the payment of a recording fee
pursuant to Government Code § 27383.
AFFORDABLE HOUSING AND MAINTENANCE COVENANT
For valuable consideration, the receipt of which is hereby acknowledged, VIDA NUEVA
PARTNERS, L.P., a California limited partnership ( "Developer "), and the COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF ROHNERT PARK ( "Commission ") agree as follows with reference to
the following facts:
A. Developer owns that certain real property legally described on Exhibit A ( "Site ").
B. Commission in acting to carry out the obligations under the Community Redevelopment
Law of the State of California (Health and Safety Code section 33000, et seq.) with respect to affordable
housing has entered into that certain Affordable Housing and Loan Agreement dated
2006, between Developer and Commission ( "Agreement ") with respect to the Site.
C. Developer and Commission agree that the Site shall be subject to the conditions and
restrictions, and the rights of Commission under this Affordable Housing and Maintenance Covenant
( "Covenant ") as specified below. Developer further agrees that it shall require Operators to comply with this
Covenant.
1. USE OF THE SITE. Developer hereby covenants and agrees that during the term of this Covenant,
Developer shall use the Site in compliance with all of the following:
A. Development. Developer has constructed certain Improvements (as defined in the
Agreement) including a twenty -four (24) unit permanent housing rental complex together with common
facilities on the Site. "Project" means the Site and the Improvements constructed by Developer as set forth in
the Agreement. As described below in Subsection l.B(1), all of the units (other than the Manager's Unit, if
any) within the Project shall be restricted to households of very low income.
B. Rent and Income Restrictions.
(1) All of the residential units (other than the Manager's Unit, if any) of the Project shall
be rent - restricted (the "Affordable Units "); provided, however, that if Developer does not have a property
manager residing on the Site, then the unrestricted Manager's Unit shall also be treated as an "Affordable
Unit" under the Agreement. The Affordable Units shall be occupied by Very Low Income Persons or
Households whose gross income is fifty percent (50 %) or Iess of Area.Median Income as adjusted by
household size for Sonoma County, or such other percentage as set from time to time pursuant to California
Health and Safety Code section 50105, as amended, or any successor statute thereto ( "Very Low Income
910765v4 80078/0022 Attachment No. 7 Page 1
Households ") at an affordable rent level pursuant to California Health and Safety Code section 50053, as
amended, or any successor statute thereto ( "Affordable Rent "). No fewer than sixteen (16) of the Affordable
Units will be rented to Very Low Income Households in which at least one person is a member of a "Special
Needs Population" as defined in 25 California Code of Regulations section 7301(r) (individually and
collectively, "Supportive Unit(s)"); provided however, that if despite its best efforts Developer is unable to
locate a Very Low Income Household with a member of a Special Needs Population after a Supportive Unit
has been vacant for sixty (60) days, then Developer may rent the applicable Supportive Unit(s) to the next
Very Low Income Household or Person on the waiting list. In addition, Commission acknowledges that the
Developer shall be allowed to rent all Affordable Units to members of a Special Needs Population. Rent
shall be no greater than that considered as "affordable rent" for very low income households adjusted for
family size appropriate to the unit, pursuant to section 50053 of the California Health and Safety Code, as
amended, or any successor statute thereto ( "Affordable Rent "). "Area Median Income" means the median
household income (adjusted for household size) of the Metropolitan Statistical Area in which Sonoma
County is located, as established in accordance with section 50093 of the California Health and Safety Code,
as amended, or any successor statute thereto. "Adjusted for family size appropriate to the unit" shall mean a
household of two persons in the case of a one - bedroom unit and three persons in the case of a two - bedroom
unit. The determination of an occupant's status as a Very Low Income Household shall be made by
Developer prior to initial occupancy of the applicable category of an Affordable Unit in the Project by such
occupant.
(2) If a household occupying an Affordable Unit no longer qualifies for the income
category designated for that Affordable Unit, the occupant may continue to occupy the Affordable Unit,
household income exceeds applicable limitations on Area Median Income, such Affordable Unit may be
rented at market rents to such household. The former Very Low Income Household who has ceased to
qualify as such shall be deemed to continue to be a Very Low Income household for the purposes of the
income requirements of Subsection 1.13(1), until the rental of the next available Affordable Unit of
comparable size to a new Very Low Income Household at an Affordable Rent.
(3) The income of all persons residing in the Affordable Unit (other than approved care
providers) shall be considered for purposes of calculating the applicable income. No less than one (1) person
per bedroom shall be allowed. No more than three (3) persons shall be permitted to occupy a one (1)
bedroom Affordable Unit, and no more than four (4) persons shall be permitted to occupy a two (2) bedroom
Affordable Unit. To the extent permitted by Community Redevelopment Law, the income and rent
requirements shall confirm with California Tax Credit Allocation Committee procedures.
C. Marketing and Leasing Program; Management Plan. The Community Housing
Redevelopment Corporation of Santa Rosa ( "CHDSR ") and BHDC (collectively, "Operators ") will execute a
Joint Development and Operating Agreement that will assign financing, development, management and
service responsibilities of the Project to each organization. Developer will enter into a property management
agreement with BHMC and COTS. Commission plans to enter into a separate professional services
agreement with COTS in order to in order to provide financial assistance for social services for members of a
Special Needs Population ( "Professional Services Agreement "). Developer shall, and shall ensure that
CHDSR and BHMC shall, work with Commission and Operators to design a marketing and leasing program,
which program shall be subject to the approval of Commission prior to lease -up and related activities,
including but not limited to advertising. To the extent permitted by law, such program shall give preference
in renting the Affordable Units to eligible persons and eligible households who live or work in Rohnert
Park;. Developer shall require that Operators comply with the provisions of such management plan in
leasing the Affordable Units, including but not limited to refusing to place a household on the list or remove
such household from such list if the agent determines that'such household has provided false information in
its application and compliance with the Burbank Housing Resident Selection and Protocol Criteria as set
forth on Exhibit B, attached hereto and incorporated by reference. Operators or their respective agents may
not use marital status in determining eligibility. A potential tenant refused a rental unit or a place on a
9107650 80078/0022 Attachment No. 7 Page 2
waiting list shall be notified in writing stating the reasons for such determination and the procedure for
appeal of this decision.
D. Reporting Requirements. At Commission's request, annual reports and annual income
certifications or recertifications must be submitted to Commission. The reports, at a minimum, shall include:
(1) The number of persons per unit;
(2) Tenants name(s);
(3) Initial occupancy date;
(4) Rent paid per month;
(5) Gross income per year;
(6) Percent of rent paid in relation to income; and
(7) Summary of those documents used to certify the tenant as a Very Low Income
Households with copies available on request.
The first annual report and annual income certification ( "Initial Report") shall be submitted
to Commission within thirty (30) days of the date of the initial rental of all the Affordable Units on the Site.
Subsequent annual reports and annual income certifications or recertification shall be submitted to
Commission on the anniversary date of submittal of the Initial Report. Commission may, from time to time
during the term of this Covenant, request additional or different information and Developer shall promptly
supply such information in the reports required hereunder. Developer shall maintain all necessary books and
records, including property, personal and financial records, in accordance with requirements prescribed by
Commission with respect to all matters covered by this Covenant. Developer, at such time and in such forms
as Commission may require, shall furnish to Commission statements, records, reports, data and information
pertaining to matters covered by this Covenant. Upon request for examination by Commission, Developer,
at any time during normal business hours, shall make available all of its records with respect to all matters
covered by this Covenant. Developer shall permit Commission to audit, examine and make.ekeerpts or
transcripts from these records.
E. Marketing Reports. Within ten (10) days of Commission's request, Developer shall deliver
to Commission marketing and leasing information, schedules and reports for the Affordable Units in form
and substance reasonably acceptable to Commission.
LIMITATIONS ON TRANSFER.
A. No voluntary or involuntary successor in interest of Developer shall acquire any interest in
the Site or the Project except as expressly set forth herein. It is hereby expressly stipulated and agreed that
any assignment, sale, transfer or other disposition of the Project or the Site, or any portion(s) thereof or
interest(s) therein in violation of this Section 2 shall be null, void and without effect, shall cause a reversion
of title to Developer if it occurs prior to the Certificate of Completion, and shall be ineffective to relieve
Developer of its obligations under this Covenant. For purposes of this Section 2, a change in the identity of
the initial managing member of Developer (including, but not limited to, the sale or transfer, in the aggregate,
of the controlling stock or interest in said managing member) shall be deemed a transfer subject to the
provisions of this Section. Upon any assignment, sale, transfer or other disposition of the Project or the Site
that complies with the requirements of this Section 2, Developer shall be fully released from its obligations
hereunder to the extent such obligations have been fully assumed in writing by the transferee of the Project
or the Site pursuant to an assignment and assumption agreement in a form reasonably acceptable to
Commission's legal counsel. No later than the date the assignment becomes effective, Developer shall
910765v4 80078/0022 Attachment No. 7 Page 3
deliver to Commission a fully executed counterpart of the assignment and assumption agreement. Developer
shall request approval by written notice at least sixty (60) days prior to any proposed assignment, sale,
transfer or other disposition of the Project or the Site, or any portion(s) thereof or interest(s) therein.
B. The qualifications and identity of Developer and its managing member or partner is of
particular concern to Commission. It is because of the demonstrated qualifications and identity that
Commission has entered into the Agreement with Developer. No voluntary or involuntary successor in
interest of Developer shall acquire any interest in the Site or the Project nor any rights or powers under the
Agreement, except as expressly set forth herein. It is expressly stipulated and agreed that any assignment,
sale, transfer or other disposition of the Project or the Site, or any portion(s) thereof or interest(s) therein or
of any rights or powers under the Agreement in violation of this Section 2 shall be null, void and without
effect, and shall be ineffective to relieve Developer of its obligations under the Agreement and the Covenant.
Developer shall notify Commission of any proposed transfer, assignment or refinancing
promptly upon commencement of negotiations in connection with such event. Commission's Executive
Director shall approve or disapprove any requested transfer, assignment or refinancing within thirty (30) days
after receipt of a written request for approval from Developer, together with such documentation as may be
reasonably required by Commission's Executive Director. The documentation to be provided by Developer
to Commission's Executive Director shall include, without limitation, all loan documents in connection with
any proposed refinancing and all documentation which Commission's Executive Director determines is
reasonably necessary to evaluate the proposed transaction and the proposed assignee's /transferee's
experience and qualifications. Commission's Executive Director shall not unreasonably withhold its
approval of a transfer or assignment to a proposed transferee /assignee who in the reasonable opinion of
Commission's Executive Director is financially capable and has the development qualifications and
experience to perform the duties and obligations of Developer hereunder.
Prior to any proposed assignment being considered for approval by Commission's Executive
Director, Developer shall deliver to Commission's Executive Director the form of a proposed written
assignment and assumption agreement in which the assignee would expressly agree to assume all rights and
obligations of Developer under the Agreement which arise after the effective date of the assignment, and in
which the assignee would agree to assume, or Developer would expressly remain responsible for, all
performance of Developer which arose prior to the effective date of the assignment. The assignment and
assumption agreement shall be in a form reasonably acceptable to Commission's legal counsel. No later than
the date the assignment becomes effective, Developer shall deliver to Commission a fully executed
counterpart of the assignment and assumption agreement.
C. Prior to Issuance of Certificate of Completion. Prior to issuance of the Certificate of
Completion, Developer shall not assign or transfer the Agreement, the Project or the Site, or any portion(s)
thereof, or interest(s) therein, or any right(s) hereunder without the prior written approval of Commission's
Executive Director. Assignments for financing purposes shall be subject to review and approval by
Commission's Executive Director in accordance with this Section 2 and with the requirements of Section
313.1 of the Agreement. Commission's Executive Director shall have the right to disapprove any transfer,
assignment or refinancing, which would diminish or otherwise impair the ability of Developer to fulfill all its
duties and obligations under the Agreement.
D. Following Issuance of Certificate of Completion. Following issuance of the Certificate of
Completion, Developer shall not assign or transfer the Agreement, the Project or the Site, or any portion(s)
thereof, or interest(s) therein, or any night(s) hereunder without the prior written approval of Commission's
Executive Director, which approval shall not be unreasonably withheld or delayed, and shall be granted upon
Commission's receipt of evidence acceptable to Commission that the following conditions have been
satisfied:
9107650 80078/0022 Attachment No. 7 Page 4
(1) Developer is not in Default hereunder or in violation of the Covenant, or the
purchaser or assignee agrees to undertake to cure any Defaults or violations of Developer to the reasonable
satisfaction of Commission;
(2) The continued operation of the Project shall comply with the provisions of the
Agreement and the Covenant;
(3) Either (i) the purchaser or assignee or its property manager has at least three (3)
year's experience in the ownership, operation and management of similar size rental housing projects, and at
least one year's 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) the purchaser or assignee agrees to retain a property management firm with the experience and record
described in subclause (i) above, or (iii) Developer or its management company will continue to manage the
Project for at least one year following such transfer and during such period will provide training to the
transferee and its manager in the responsibilities relating to the Affordable Units;
(4) The person or entity which is to acquire the Project does not have pending against it,
and does not have a 'history of significant and material building code violations or complaints concerning the
maintenance, upkeep, operation and regulatory agreement compliance of any of its projects as identified by
any local, state or federal regulatory agencies; and
(5) The proposed purchaser or assignee enters into a written assignment and assumption
agreement in form and content reasonably satisfactory to Commission's legal counsel, and, if requested by
Commission, an opinion of such purchaser or assignee's counsel to the effect that the Agreement and the .
Covenant are valid, binding and enforceable obligations of such purchaser or assignee, subject to bankruptcy
and other standard limitations affecting creditor's rights.
E. Pre - Approved Transfers.
(1) Notwithstanding any other provision of the Agreement to the contrary, Commis 1011
approval of a transfer or assignment of the Agreement, the Project, or the Site or any interest therein shall not
be required in connection with any of the following:
(2) Subject to Developer submitting the assignment and assumption agreement referred
to above and the approval of such agreement by Commission, which approval shall not be unreasonably
withheld, any transfer or assignment of the Project or any interest therein to an entity or entities in which
Developer, retains more than fifty percent (50 %) in the aggregate, directly or indirectly, of the ownership or
beneficial interest and retains full management and control of the transferee entity or entities, either directly
or indirectly through another entity, subject only to certain major events requiring the consent or approval of
the other owners of such entity ( "Affiliate of Developer "). (The term "control" as used herein shall mean the
ability to direct the operation and management of such corporation, partnership, limited liability or other
entity.)
(3) Transfers resulting from the death or mental or physical incapacity of any member
or partner of Developer;
(4) The granting of temporary or permanent easements or permits to facilitate
development of the Project;
(5) Any assignment for financing purposes (subject to such financing being considered
and approved by Commission pursuant to Section 313.1 of the Agreement), including the grant of a deed of
trust, assignment of rents and security agreement to secure the Construction Financing and MHP Financing;
910765v4 80078/0022 Attaclunent No. 7 Page 5
(6) Any transfer by foreclosure or deed in lieu of foreclosure under approved financing
or transfers by a lender as described in Subsection 2.E(4) above subsequent to foreclosure or deed in lieu of
foreclosure (subject to the requirements of this Section 2 and Section 313 of the Agreement);
(7) The transfer of any stock, partnership interest, membership or other beneficial
interest of Developer provided such transfer does not cause a material change in the rights to manage and
control Developer;
(8) The transfer of any stock, partnership interest, membership or other beneficial
interest in any non - managing member or limited partner of Developer or any direct or indirect beneficial
owner of any non - managing member or Iimited partner of Developer;
(9) The admission of any new non - managing member or limited partner to Developer;
(10) The admission of any new co- managing member or limited partner to Developer, so -
long as the initial managing member limited partner or an Affiliate of Developer remains a co- managing
member of Developer and maintains control over the operation and management of Developer;
(11) The transfer of any managing member interest, non - managing member interest,
general partner or limited partner interest in Developer to an Affiliate of Developer so long as the initial
managing member or general partner (as applicable) or Affiliate; of Developer remains a managing or co-
managing member or general partner (as applicable) of Developer and maintains control over the operation
and management of Developer;
(12) The rental, in the ordinary course of business, of the apartment units within the
Project provided, with respect to the Affordable Units, such rental shall be in accordance with the terms of
this Covenant;
(13) The transfer of the Project to a limited partnership in which Developer or its wholly -
controlled affiliate is the sole general partner, and any transfer of the Project back to Developer or its affiliate
at the end of the 15 -year tax credit compliance period;
(14) The transfer of any limited partnership interests in Developer;
(15) The removal of the general partner of Developer, provided that any successor
general partner has been approved by Commission in its reasonable discretion, unless such successor general
partner is the Limited Partner (as defined in Section 313.3 of the Agreement); and
(16) In the event of an assignment or transfer by Developer under the above Subsections
(1) through (15), inclusive, not requiring Commission's prior approval, Developer nevertheless agrees that it
shall give at least fifteen (15) days prior written notice to Commission of such assignment or transfer. In
addition, Commission shall be entitled to review such documentation as may be reasonably required by
Commission's Executive Director for the purpose of determining compliance of such assignment or transfer
with the requirements of Subsections (1) through (15) inclusive.
(17) Nothing in this Covenant shall prohibit (i) sale or transfer of all or any portion of the
Site through foreclosure of a mortgage or deed of trust permitted pursuant to Section 313 of the Agreement,
(ii) transfer to the holder of such permitted mortgage or deed of trust by deed in lieu of foreclosure or (iii)
transfer of the Site by any such holder subsequent to acquisition by foreclosure or deed in lieu, so long as
such transfer complies with Section 313 of the Agreement. Commission shall not be obligated to pay
Commission Assistance (defined in the Agreement) to any transferee of the Site after foreclosure or transfer
in lieu of foreclosure unless such transferee assumes all of Developer's obligations under the Agreement and
9I0765v4 80078/0022 Attachment No. 7 Page 6
the Covenant (excluding repayment of any portion of Commission Assistance not actually disbursed to such
transferee).
F. Amendments to By-Laws. Before entering into any amendment to the By -Laws (as that
term is defined in the Agreement) approved by Commission, Developer shall first submit the proposed
amendment to Commission's Executive Director who shall have the right to reasonably disapprove any such
amendment which would materially diminish or otherwise impair the ability of Developer to fulfill its duties
and obligations under the Agreement and the Covenant. Within thirty (30) days following receipt of the
proposed amendment, Commission shall either approve or disapprove the requested amendment. Developer
shall not enter into any amendment to the By -Laws that is reasonably disapproved by Commission pursuant
to this Section 2.
3. NO DISCRIMINATION. Developer covenants by and for itself and any successors in interest that
there shall be no discrimination against or segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Site, nor shall Developer itself or any person claiming under or
through it establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees or vendees in the Site. All deeds, leases
or contracts made relative to the Site, the improvements thereon or any part thereof, shall contain or be
subject to substantially the nondiscrimination clauses as set forth in the Grant Deed, provided, however, this
provision shall not prevent Developer from establishing preferences in accordance with all applicable fair
housing laws.
4. MAINTENANCE AND MANAGEMENT. Developer shall maintain in accordance with the
Maintenance Standards (as hereinafter defined) the Improvements and landscaping to the curbline(s) on and
abutting the Site. The Improvements shall include, but not be limited to, buildings, sidewalks, pedestrian
lighting, landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all
other improvements on the Site and in the public right -of -way to the nearest curbline(s) abutting the Site. To
accomplish the maintenance, Developer shall either staff or contract with and hire licensed and qualified
personnel to perform the maintenance work, including the provision of labor, equipment, materials, support
facilities, and any and all other items necessary to comply with the requirements of this Covenant. Thc
maintenance covenants and obligations set forth in this Section 4 shall remain in effect for the period of time
specified in Section 8, below.
A. The following standards (collectively, "Maintenance Standards ") shall be complied with by
Developer and its maintenance staff, contractors and subcontractors but do not require extraordinary
expenditures or reconstruction after condemnation or the occurrence of a substantial casualty event:
(1) Landscape maintenance shall include: watering/irrigation; fertilization; mowing;
edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a
healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; replacement, as
needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted
areas; and staking for support of trees.
(2) Clean -up maintenance shall include: maintenance of all sidewalks, paths and other
paved areas in clean and weed -free condition; maintenance of all such areas clear of dirt, mud, trash, debris
or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements
and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day
on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris
are properly disposed of by maintenance workers.
(3) All maintenance work shall conform to all applicable federal and state Occupation
Safety and Health Act standards and regulations for the performance of maintenance.
910765v4 80078/0022 Attachment No. 7 Page 7
(4) Any and all chemicals, unhealthful substances, and pesticides used in and during
maintenance shall be applied in strict accordance with all governmental requirements. Precautionary
measures shall be employed recognizing that all areas are open to public access.
(5) The Improvements shall be maintained in conformance with the Agreement and in
accordance with the custom and practice generally applicable to comparable multi - family residential projects
located within Sonoma County, California. Public right -of -way improvements to the curbline(s) on and
abutting the Site shall be maintained as required by this Subsection 4.A in good condition and in accordance
with the custom and practice generally applicable to public rights -of -way within the City of Rohnert Park.
B. If Developer does not maintain the private and public improvements on the Site to the
curbline(s) on and abutting the Site in the manner set forth herein and in accordance with the Maintenance
Standards, Commission and/or the City shall have the right to maintain such private and/or public
improvements, or to contract for the correction of such deficiencies, after written notice to Developer.
However, prior to taking any such action, Commission agrees to notify Developer in writing if the condition
of said improvements does not conform to the Maintenance Standards and to specify the deficiencies and the
actions required to be taken by Developer to cure the deficiencies. Upon notification of any maintenance
deficiency, Developer shall have thirty (30) days within which to correct, remedy or cure the deficiency. If
the written notification states that the problem is urgent and relates to the public health and safety, then
Developer shall have twenty-four (24) hours to rectify the problem.
In the event Developer fails to correct, remedy, or cure or has not commenced correcting,
remedying or curing such maintenance deficiency after notification and after expiration of any applicable
cure period, including the notice and cure provisions for any holder of record of any mortgage or deed of
trust pursuant to Section 313.3 of the Agreement, then City and/or Commission shall have the right to
maintain such improvements. Developer agrees to pay Commission upon demand all charges and costs
incurred by Commission or City for such maintenance. Until so paid, Commission shall have a lien on the
Site for the amount of such charges or costs, which lien shall be perfected by the recordation of a "Notice of
Claim of Lien" against the Site. Any lien in favor of Commission created or claimed under this Section 4.13
is expressly made subject and subordinate to any mortgage or deed of trust made in good faith and for value,
recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien shall in any u v
defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the
mortgagee or beneficiary thereunder expressly subordinates his interest, of record, to such lien. Developer
acknowledges and agrees that the City and Commission may also pursue any and all other remedies available
in law or equity in the event of a breach of the maintenance obligations and covenants set forth herein,
subject to the limitations set forth in Section 602 of the Agreement and Section 9, below.
5. REPLACEMENT RESERVE REQUIREMENT. Developer covenants and agrees that in each
Operating Year Developer shall deposit not less than Six Hundred Dollars ($600) per residential unit into a
special capital replacement and repair reserve account required by MHP or such other permanent financing
lender as expressly approved by Commission ( "Approved Lender "). The capital replacement and repair
reserve account shall be used exclusively for payment of Project capital replacement expenses to the extent
provided in the agreement(s) governing such reserves.
6. NO IMPAIRMENT OF LIEN. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Covenant shall defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however,
that any successor of Developer to the Site shall be bound by such covenants, conditions, restrictions,
limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
7. DURATION. The covenants set forth at Sections 1, 2, 4 and 5 shall remain in effect until the date
which is fifty -five (55) years following the date of recording of the Covenantor the Certificate of
Completion, whichever occurs later. The covenants set forth at Section 3 shall remain in effect in perpetuity.
910765v4 80078/0022 Attachment No. 7 Page 8
8. SUCCESSORS AND ASSIGNS. The covenants contained in this Covenant shall inure to the benefit
of Commission and its successors and assigns and shall be binding upon Developer and any successor in
interest to the Site and the Project or any part thereof. The covenants shall run in favor of Commission and
its successors and assigns for the entire period during which such covenants shall be in force and effect,
without regard to whether Commission is or remains an owner of any land or interest therein to which such
covenants relate. Commission, and its successors and assigns, in the event of any breach of any such
covenants, shall have the right to exercise all of the rights and remedies and to maintain any actions at law or
suits in equity or other proper proceedings to enforce the curing of such breach.
9. DEFAULT.
A. Any failure by Developer to perform any term or provision of this Covenant, the Grant
Deed, or the Agreement (other than under Section 500 of the Agreement) shall constitute a 'Default" under
this Covenant (1) if Developer does not cure such failure within thirty (30) days following written notice of
default from Commission, including notice and opportunity to cure pursuant to Section 313 of the Agreement
or (2) if such failure is not of a nature which can be cured within such thirty (30) day period, Developer does
not within such thirty (30) day period commence substantial efforts to cure such failure, or thereafter does
not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure.
Commission shall not enforce any of its rights and remedies for breach by Developer except upon the
occurrence of a Default. The institution of legal actions in the Default shall be brought only in accordance
with Section 602 of the Agreement. Developer's limited partners shall have notice and cure rights set forth
in Section 313.3 of the Agreement so long as (a) the Limited Partner (or its successors or assigns) remains a
limited partner of Developer and (b) Commission is duly informed in writing of the name and notice address
of the Limited Partner pursuant to Section 701 of the Agreement.
B. Any notice of default given hereunder shall specify in detail the nature of the failure in
performance which Commission claims constitutes the Default and the manner in which such Default may be
satisfactorily cured in accordance with the terms and conditions of this Covenant. During the time periods
herein specified for cure of a failure to perform, including the opportunities to cure for Approved Lenders,
Developer shall not be considered to be in Default of this Covenant for any purposes.
C. Any failure or delay by Commission in asserting any of its rights or remedies, including but
not limited to specific performance, as to any Default shall not operate as a waiver of any Default or of any
such rights or remedies or deprive Commission of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
D. To protect the rights of Approved Lenders, Commission shall not have the right to file any
involuntary petition seeking reorganization, arrangement, adjustment, or composition of or in respect of
Developer, respectively, under any liquidation, insolvency, bankruptcy, rehabilitation, reorganization,
conservation or other similar law in effect now or in the future.
E. The obligations of Developer under this Covenant shall be personal to the entity or person,
defined as Developer, which owned the Site at the time that an event, including without limitation, any
Default under this Covenant, occurred or was alleged to have occurred and such entity or person shall remain
liable for any and all obligations including damages occasioned by a Default, even after such person or entity
ceases to be the owner of the Site. Accordingly, no subsequent owner of the Site shall be liable or obligated
for the obligation of any prior owner, including, but not limited to, any obligation for payment,
indemnification or damages, for Default or breach of this Covenant or otherwise. The owner of the Site at
the time the obligation was incurred, including any obligation arising out of a Default or breach of this
Covenant, shall remain liable for any and all payments and damages occasioned by the owner even after such
person or entity ceases to be the owner of the Site. Under no circumstances shall Commission:
910765v4 80078/0022 Attachment No. 7 Page 9
(a) interfere with or attempt to influence the exercise by any Approved Lender of any of its
rights under the terms of the mortgage or deed of trust, including, without limitation, the respective remedial
rights of the Approved Lenders upon the occurrence of any default by Developer under such mortgage or
deed of trust; or
(b) upon the occurrence of a default under the terms of a mortgage or deed of trust of an
Approved Lender, take any action to accelerate or otherwise enforce payment or seek other remedies with
respect thereto.
10. ESTOPPEL CERTIFICATE. Either party may, at any time, and from time to time, deliver written
notice to the other party requesting such party to certify in writing that, to the current, actual knowledge of
the certifying party, (a) this Covenant is in full force and effect and a binding obligation of the parties,
(b) this Covenant has not been amended or modified or, if so amended or modified, identifying the
amendments or modifications, and (c) the requesting party is not in default in the performance of its
obligations under this Covenant, or if in default, to describe therein the nature and extent of any such
defaults. The requesting party may designate a reasonable form of certificate (including a lender's form) and
the party receiving 'a request hereunder shall execute and return such certificate or give a written, detailed
response explaining why it will not do so within thirty (30) days following the receipt thereof. The
Executive Director shall be authorized to execute any certificate requested by Developer hereunder.
Developer and Commission acknowledge that a certificate hereunder may be relied upon by tenants,
transferees, investors, partners, bond counsel, underwriters, bond holders and "Mortgagees" (defined in
Section 313 of the Agreement). The request shall clearly indicate that failure of the receiving party to
respond within the thirty (30) day period will lead to a second and final request and failure to respond to the
second and final request within fifteen (15) days of receipt thereof shall be deemed approval of the estoppel
certificate. Failure of Developer to execute an estoppel certificate shall not be deemed a default, provided
that in the event Developer does not respond within the required thirty (30) day period, Commission may
send a second and final request to Developer and failure of Developer to respond within fifteen (15) days
from receipt thereof (but only if Commission's request contains a clear statement that failure of Developer to
respond within this fifteen (15) day period shall constitute an approval) shall be deemed approval by
Developer of the estoppel certificate and may be relied upon as such by Commission, tenants, transferees,
investors, bond counsel, underwriters and bond holders. Failure of Commission to execute an estoppel
certificate shall not be deemed a default, provided that in the event Commission fails to respond within the
required thirty (30) day period, Developer may send a second and final request to Commission, with a copy
to the Executive Director and City Attorney, and failure of Commission to respond within fifteen (15) days
from receipt thereof (but only if Developer's request contains a clear statement that failure of Commission to
respond within this fifteen (15) day period shall constitute an approval) shall be deemed approval by
Commission of the estoppel certificate and may be relied upon as such by Developer, tenants, transferees,
investors, partners, bond counsel, underwriters, bond holders and Mortgagees.
11. THIRD -PARTY BENEFICIARIES. Developer and Commission recognize and agree that the terms
of this Covenant and the enforcement of those terms are essential to the security of any Approved Lender
pursuant to Section 313.1 of the Agreement and are entered into for the benefit of various parties, including
such Approved Lenders. Accordingly, such Approved Lenders may provide written notice to Commission
requesting that Commission cure any failure to enforce the terms of this Covenant and the Agreement. If
Commission fails to commence to cure the failure within thirty (30) days following such written notice and
to thereafter diligently pursue such cure to completion, then the Approved Lenders shall be entitled (but not
obligated) to enforce, separately or jointly with Commission, or to cause Commission to enforce the terms of
this Covenant. In addition, the Approved Lenders are each intended to be and shall be third -party
beneficiaries of this Covenant.
12. INDEMNIFICATION LIMITATION FOR APPROVED LENDERS. Inasmuch as the covenants,
reservations and restrictions of the Agreement and this Covenant run with the land, the indemnification
obligations of Developer contained in the Agreement and this Covenant will be deemed applicable to any
9107650 80078/0022 Attachment No. 7 Page 10
successor in interest to Developer, but, it is acknowledged and agreed, notwithstanding any other provision
of the Agreement and this Covenant to the contrary, that neither an Approved Lender nor its successors in
interest will assume or take subject to any liability for the indemnification obligations of Developer for acts
or omissions of Developer occurring prior to transfer of title to any Approved Lender whether by foreclosure,
deed in lieu of foreclosure or comparable conversion; Developer at the time of the act or omission shall
remain liable under the indemnification provisions for its acts or omissions occurring prior to any transfer of
title to an Approved Lender whether by foreclosure, deed in lieu of foreclosure or comparable conversion.
An Approved Lender shall indemnify Commission following its acquisition of the Project or Site or any
portion thereof by foreclosure, deed in lieu of foreclosure or comparable conversion during, and only during,
any ensuing period that such Approved Lender owns and operates the Project, provided that the liability of
any Approved Lender shall be strictly limited to its acts and omissions occurring during the period of its
ownership and operation of the Site.
13. SUCCESSORS AND ASSIGNS. The covenants contained in this Covenant shall be binding for the
benefit of Commission and its respective successors and assigns and any successor in interest to the Site or
any part thereof, and such covenants shall run in favor of Commission and such aforementioned parties for
the entire period during which such covenants shall be in force and effect, without regard to whether
Commission is or remains an owner of any land or interest therein to which such covenants relate.
Commission, and such aforementioned parties, in the event of any breach of any such covenants, shall have
the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or
other proper proceedings to enforce the curing of such breach. The covenants contained in this Covenant
shall be for the benefit of and shall be enforceable only by Commission, and its respective successors and
such aforementioned parties.
14. CONVERSION TO FOR SALE PROJECT. If, following the date of this Covenant, Developer
desires to operate the Project, or any part thereof, as a "for- sale" rather than a "rental" project, Developer
may request that Commission consider amending this Covenant to address the requirements applicable to
for -sale affordable units. Commission may consider such request only if the parties acknowledge and agree
that Commission is under no obligation to modify or amend this Covenant to accommodate any conversion
of the Project to a for -sale project, and should Commission opt to do so, it will require such amendment and
modification to comply with all applicable laws and regulations, as determined by Commission in it sole
and absolute discretion. Commission and Developer acknowledge that no modifications that may affect the
rights or interests of any Approved Lender may be made without prior approval by the holder of record of the
mortgage or deed of trust approved pursuant to Section 313.1 of the Agreement.
15.. SUBORDINATION. Upon written request by Developer, Commission shall agree that the
Affordability. Restrictions shall be subject to and subordinate to the terms and conditions of only the MHP
Affordability Restrictions.
16. NOTICE. Any notice required to be provided in this Covenant shall be given in writing and shall be
sent (a) for personal delivery by a delivery service that provides a record of the date of delivery, the
individual to whom delivery was made, and the address where delivery was made; (b) by first- class certified
United States mail, postage prepaid, return receipt requested; (c) by a nationally recognized overnight courier
service, marked for next day business delivery; or (d) sent by facsimile (immediately followed by one of the
preceding methods). All notices shall be addressed to the party to whom such notice is to be given at the
property address stated in this Covenant or to such other address as a party may designate by written notice
to the other. All notices shall be deemed effective on the earliest of (a) actual receipt; (b) rejection of
delivery; (c) if sent by certified mail, the third day on which regular United States mail delivery service is
provided after the day of mailing or, if sent by overnight delivery service, on the next day on which such
service makes next - business -day deliveries after the day of sending.
910765A 80078/0022 Attachment No. 7 Page 11
To Commission: Community Development Commission of the City of
Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
Telephone: (707) 588 -2227
Facsimile: (707) 588 -2274
With a copy to: McDonough, Holland & Allen
1901 Harrison Street, 9th floor
Oakland, California 94612 -3501
Attention: Susanne M. Brown, Esq.
Telephone: (510) 273 -8780
Facsimile: (510) 839 -9104
and: City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: City Attorney
Telephone: (707) 588 -2227
Facsimile: (707) 588 -2274
To Developer: Vida Nueva Partners, L.P.
3432 -A Mendocino Avenue
Santa Rosa, California 95403 -2274
Attention: President
Telephone: (707) 526 -9782
Facsimile: (707) 526 -9811
With a copy to: Gubb & Barshay, LLP
50 California Street, Suite 3155
San Francisco, California 94111
Attention: Scott R. Barshay, Esq.
Telephone: (415) 781 -6600
Facsimile: (415) 781 -6967
and: Community Housing Redevelopment Corporation
of Santa Rosa
13412 Chalk Hill Road
Healdsburg, CA 95448
Attention: Margo Merck
Telephone: (707) 433 -5533
Facsimile: (707) 433 -6622
17. MISCELLANEOUS. This Covenant may be signed in multiple counterparts which, when signed by
all parties, shall constitute a binding agreement. This Covenant shall be construed in accordance with and be
governed by the laws of the State of California. If any provision of this Covenant shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby. Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in the Agreement.
910765v4 80078/0022 Attachment No. 7 Page 12
IN WITNESS WHEREOF, Commission and Developer have caused this Covenant to be executed on
their behalf by their respective officers thereunto duly authorized.
Dated for reference purposes only as 200;.;.
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California
nonprofit corporation
Its: Co- General Partner
By:
Its:
"DEVELOPER"
(Signature must be notarized)
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
Dated: By.
"COMMISSION"
(Signature must be notarized)
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
910765A 80078/0022 Attachment No. 7 Page 13
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
C" OF ROHNERT PARK
VIDA NUEVA. REVISED LOT 1 COMBINED WITH PORTION OF PARCEL A
DRAFT LEGAL DESCRIPTION
SITUATE IN THE CITY OF ROHNERT PARK, COUNTY OF SONOMA AND STATE OF CALIFORNIA.
LOT 1 AS SHOWN ON THE CITY OF ROHERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER 20,
1991 AND FILED IN BOOK 486 OF MAPS AT PAGES 7 -9, SONOMA COUNTY RECORDS.
TOGETHER WITH A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, A MUNICIPAL
CORPORATION AS DESCRIBED IN DEED RECORDED UNDER DOCUMENT NO. 1992 -00064391
SONOMA GOUNTY RECORDS SHOWN
, ALSO BEING A PORTION OF PARCEL "W AS N ON CITY.OF
_ _..
ROHNERT PARK PARCEL MAP NO. 142 RECORDED DECEMBER 20, 1991 AND FILED IN BOOK 486 OF
MAPS AT PAGES 7 THROUGH ,9, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL °A° , SAID CORNER BEING THE
BEING OF A CURVE TO THE RIGHT HAVING ,A RADIUS OF 1558.00 FEET; THENCE ALONG SAID
CURVE AND THE NORTHERLY LINE OF PARCEL .220-00 FEET THROUGH A CENTRAL ANGLE OF
08 °05'26 "; THENCE RADIALLY FROM SAID CURVE SOUTH 08°24'02' EAST, 23.23 FEET TO THE
SOUTHERLY LINE OF SAID PARCEL; THENCE ALONG SAID LINE SOUTH 71 °56'15` EAST, 150.54 FEET
TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1072.05 FEET; THENCE
ALONG SAID CURVE AND THE SOUTHERLY LINE OF SAID PARCEL 84.78 FEET THROUGH A
CENTRAL ANGLE OF 04 °31'52' TO THE SOUTHEASTERLY CORNER OF SAID PARCEL; THENCE
ALONG THE EASTERLY LINE OF SAID PARCEL NORTH 00°00'00" WEST, 83.08 FEET TO THE POINT OF
BEGINNING,
CONTAINING 1.825 ACRES (79,497 SQUARE FEET) MORE OR LESS.
BASIS OF BEARING OF THIS DESCRIPTION IS THE ABOVE MENTIONED PARCEL MAP,
PREPARED IN THE OFFICE OF STEVEN J. LAFRANCHI & ASSOCIATES, INC.
DRAFT
DRAFT
STEVEN J LAFRANCHI, P.L.S_ 6368 DATE
EXPIRATION DATE: 12 -31 -06
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS -- LAND SURVEYORS -- LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954
TEL 707 - 762 -3122 FAX 707- 762 -3239
061081 DRAFT legal Dusrripdw for Vida Nueva
Z
DRAFT EXHIBIT SHOWING; COMBINATION OF LOT 1 & PORTION OF PARCEL A
SEE EXHIBIT "A" FOR LEGAL DESCRIPTION
FOR GRAPHIC ILLUSTRATION AND INFORMATIVE PURPOSES ONLY
1
PAWL A 4
C17Y OF ROHNERT PARK
DN 1992 00064J9
APN 143 -391 -054
T OF BEGINNING
F0*4MT PARK AY
PARCEL MAP No. 142
498 MAPS 7°9
n�
�Qr
Qs
— — FORMER LOT LINE
Z TO BE COMBINED
• FOUND 3/4- tF'
TAGGED PLS 10578
• FOUND PK
TAGGED PLS 10578
Rt MAP ilEFT72E4CE No. 142
486 MAPS 7 -9. SCR
P.O.B. POW OF BEGINNING
APN 143 -391 -052
LOT 2
PAM. MAP Na 142
486 DAPS 7-9
APN 143- 391 -050
R- 1558.00" D- OBW'28' L- 220.00'
2 S 08'24'02- W 23.23' (RADIAL)
3 S 7136'15' E 150.54'
4 R- 1072.05 0- 04.31'52' L- 84.78'
5 N 00''OD'OO" W 83.08' RI
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
PETALUMA, CALIFORNIA 94854
775 BAYWOOO DRIVE, SUITE 312
707-762-3122 FAX 707-762-3239
A265 Kdo AWW IOs1O LA£Ah&t. dwq
EXHIBIT B
BURBANK HOUSING RESIDENT SELECTION AND PROTOCOL CRITERIA
GENERAL
Potential resident(s) may not qualify to rent a Burbank Housing Management Corporation affordable rental
unit if they do not meet the criteria listed below. Lack of supporting documentation or cooperation during
the screening process is also grounds for disqualification. All of the following criteria, including
circumstances that occur outside of the applicant's control, will be considered:
1. Total Household Income must be at or below the Area Median Income of the unit for which they are
applying for.
2. Credit Report: If the credit report reflects more than five negative accounts, the potential resident
may be disqualified. All collection accounts must be addressed by the applicant with proof of
payment or payment schedule. Proof of payment of outstanding utility accounts must be submitted
prior to approval of applicant. Outstanding collection accounts for medical treatment may be
excluded.
3. Eviction: If the resident has been lawfully evicted within the last five years.
4. Felony: A conviction for drug related activities excluding past drug addictions, criminal gang related
activities, physical assault and/or harm to person(s), property destruction, ANY sexual related
offense to another person(s). Misdemeanor: We may also consider misdemeanor convictions that
show a pattern of repeated, unlawful behavior that may have a detrimental effect on the property or
disturb the peace and quiet enjoyment of the other tenants. See Criminal Background Policy,
below.
5. Rental History: Negative rental history verifications received from previous landlord(s) within the
last five years that indicate non - payment of rent, property damage including creating fire hazards,
moving in persons that are not on the lease agreement, tenant eviction, vandalism/or damage to unit
and/or common areas, interference with the rights and quiet enjoyment of others.
6. Comply: Failure to provide the appropriate information to qualify individual/family for an
affordable housing unit, failure to cooperate with the property manager.
7. Behavior: Any applicant that acts aggressively towards Burbank Housing staff, is obviously impaired
by alcohol or drugs, uses obscene or otherwise offensive language or makes derogatory remarks
toward staff, may be disqualified.
CRIMINAL BACKGROUND POLICY
As a part of the final eligibility determination, BHMC will screen each adult applicant to assess suitability
for housing. It is the policy of BI IMC to deny admission to applicants whose habits and practices may
reasonably be expected to have a detrimental effect on the operations of the project or on the quality of life
for its residents or the community. However, no application will be denied without prior review of either the
Regional Property Manager or Director of Property Management. Factors to be considered in the screening
process include a history of violent or criminal behavior towards people or property and drug related
activities. We may also take into consideration misdemeanor offenses that show a pattern of repeated,
unlawful behavior that may have a detrimental effect on the property, as previously stated.
EQUAL OPPORTUNITY REQUIREMENTS
All staff members working on renting residential units will follow Affirmative Fair Housing Marketing
procedures and Fair Housing laws.
APPLICANTS REJECTED
Applicants may be rejected at any time during the screening process if the criteria listed in the Resident
Selection Plan are not met.
910765A 80078/0022 Attachment No. 7
Exhibit B
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On , 20_, before me, (here insert
name and title of the officer), personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) 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 )
) ss.
COUNTY OF 1
On , 20 , before me, (here insert
name and title of the officer), 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
910765A 80078/0022
ATTACHMENT NO.8
PERFORMANCE DEED OF TRUST
[STANDARD FORM OF DEED OF TRUST FROM A
TITLE COMPANY APPROVED BY COMMISSION TO BE USED
WITH THE "ADDENDUM TO PERFORMANCE DEED OF TRUST" ATTACHED HERETO.]
ADDENDUM TO PERFORMANCE DEED. OF TRUST
This Addendum to Performance Deed of Trust is part of the Performance (collectively, "Commission Deed
of Trust ") dated 200ER to which it is attached between VIDA NUEVA PARTNERS, L.P., a
California limited partnership, as Trustor, and the COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body, corporate and politic, as Beneficiary. All capitalized
terms not defined herein shall have the meaning as defined in the Agreement. The following provisions are
made a part of the Performance Deed of Trust:
1. No Discrimination. The Trustor covenants by and for itself and any successors in interest
that there shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, sexual preference, age, marital status, physical handicap, medical condition,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property, nor shall the Trustor itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the property.
2. Nondiscrimination Clauses. All deeds, leases or contracts made relative to the property, the
improvements thereon or any part thereof, shall contain or be subject to the nondiscrimination clauses set
forth in California Health and Safety Code section 33436.
3. Default. Notwithstanding any other provisions in the Loan Documents or the Secured
Documents (as those terms are defined below) to the contrary, the occurrence of any of the following s' <u'
constitute an "Default" under this Performance Deed of Trust, and a Default may be declared under this
Performance Deed of Trust solely upon the occurrence of any of the following: (i) any default by Borrower
under the Agreement other than under Section 500 of the Affordable Housing and Loan Agreement by and
between Trustor as Developer and Beneficiary as Commission dated 2006
( "Agreement "), under this Performance Deed of Trust, the Agreement (except for Section 500 thereof), the
Covenant, and the Grant Deed subject to any applicable cure periods provided therein subject to any
applicable cure periods provided therein; (iii) or if Borrower assigns or assigns or delegates any of
Borrower's rights or obligations under the Secured Documents (defined below) except as expressly permitted
therein. Notwithstanding anything in the Loan Documents or the Secured Documents to the contrary, no
default under any of the Secured Documents shall constitute a "Default" under the Note, the Commission
Deed of Trust, the Pre - Development Agreement, or Section 500 of the Agreement (collectively, "Loan
Documents "). Upon a Default hereunder, Beneficiary may, at its option, declare that all obligations (other
than those of Commission and/or City) under the Secured Documents are to be immediately performed.
4. Subordination. Upon written request by Developer, and upon terms and conditions
reasonably approved by Commission, Commission will agree to subordinate this Performance Deed of Trust
provided to Developer's Construction Financing or the Permanent Financing, provided the total aggregate
amount of financing secured by Trustor, whether secured through Developer's Financing or other sources, for
the acquisition and construction of the Project, together with Commission Assistance shall not exceed the
lesser of the appraised value of the Project as restricted by the Covenant or Four Million Five Hundred
Thousand Dollars ($4,500,000); and further provided that any Lender shall agree to include in its
subordination agreement and its deed of trust conditions substantially similar to the following conditions:
910765v4 80078/0022 Attachment No. 8 Page I
(i) Beneficiary shall receive any notices of default issued by such lender to Trustor; (ii) Beneficiary shall
have the right to cure any default by Trustor within forty -five (45) days after a notice of default; (iii)
Beneficiary shall have the right to foreclose under its Performance Deed of Trust without the lender
accelerating its debt, provided Beneficiary has cured or is attempting to cure any defaults under such lender's
deed of trust; and (iv) Beneficiary shall have the right to transfer the Project to a nonprofit corporation who
shall own and operate the Project as an affordable rental housing project with the consent of such lender,
which consent shall not be unreasonably withheld. Commission shall have the right to review and approve
the terms and conditions of any such senior financing and subordination agreements, which approval shall
not be unreasonably withheld. Commission shall have the right to record a request that Commission receive
notice of any default by Developer under Developer's Financing or other financing obtained by Developer
with respect to the Project. To implement any such subordination, Commission agrees to cooperate with
Developer and execute such subordination agreements and/or intercreditor agreements that may be
reasonably required, in form and content approved by Commission counsel.
5. Secured Documents. The term "Secured Documents" as used in this Performance Deed of
Trust means all of Developer's obligations under this Performance Deed of Trust, the Agreement (except for
Section 500 thereof), the Covenant, and the Grant Deed. Trustor's payment and performance of its
obligations under any of the Loan Documents are not secured by this Performance Deed of Trust, but are
separately secured by the Performance Deed of Trust.
6. Extended Use Agreement. Beneficiary acknowledges that Developer intends to enter into an
extended use agreement, which constitutes the extended low - income housing commitment described in
section 42(h)(6)(B) of the Internal Revenue Code, as amended ( "Code "). As of the date hereof Code section
42(h)(6)(E)(11) does not permit the eviction or termination of tenancy (other than for good cause) of an
existing tenant of any low - income unit or any increase in the gross rent with respect to such unit not
otherwise permitted under Code section 42 for a period of three (3) years after the date the building is
acquired by foreclosure or by instrument in lieu of foreclosure. In the event the extended use agreement is
recorded against the property, Beneficiary agrees to comply with the provisions set forth in Code section
42(h)(6)(E)(ii) subject to the provisions of Code section 42(h)(6)(E)(i).
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By:
Its:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California nonprofit
corporation
Its: Co- General Partner
By:
Its:
[Signature must be notarized)
"TRUSTOR"
910765v4 80078/0022 Attachment No_ I I Page 2
STATE OF CALIFORNIA )
) ss.
COUNTY OF
On 20 , before me, (here insert
name and title of the officer), 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 capaeity(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
910765v4 80078/0022 Attachment No. 8
ATTACHMENT NO. 9
MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
}
}
Community Development Commission )
of the City of Rohnert Park )
6750 Commerce Boulevard )
Rohnert Park, California 94928 )
Attention: Executive Director )
This document is exempt from the payment of a recording fee
pursuant to Government Code §27383.
MEMORANDUM OF AFFORDABLE HOUSING AND LOAN AGREEMENT
THIS MEMORANDUM OF AFFORDABLE HOUSING AND LOAN AGREEMENT
( "Memorandum "), dated for identification purposes as of =, 2002ffi, is entered into
by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK, a public body, corporate and politic ( "Commission "), and VIDA NUEVA PARTNERS, L.P., a
California limited partnership ( "Developer).
1. Affordable Housing and Loan Agreement. Commission and Developer have executed an
Affordable Housing and Loan Agreement ( "Agreement ") dated for identification purposes as of
2006, which provides, among other things, for (i) Commission's disposition to
Developer of that certain real property ( "Site ") located in the City of Rohnert Park, County of Sonoma, State
of California, legally described in Exhibit "A" attached hereto and incorporated herein by this reference
(ii) Developer to construct, maintain and operate on the Site a twenty -four (24) unit permanent affordable
housing rental complex comprised of four (4) one - bedroom units, ten (10) two - bedroom units, and nine (9)
three- bedroom units affordable to households with incomes up to fifty percent (50 %) of median area income,
one (1) unrestricted three- bedroom unit reserved for the resident manager,(b) parking facilities, community
building housing laundry facilities, management office, and activity and counseling rooms and
(d) appurtenant on -site and off -site improvements to be constructed and installed by Developer as set forth
herein and in the Scope of Development (the "Project "); (iii) Developer to use, operate and maintain the
Project, including the Affordable Units, in accordance with the terms of the Agreement and the Affordable
Housing and Maintenance Covenant dated for identification purposes as of 200
which provides, among other things, for affordable housing and maintenance requirements and transfer
restrictions; and (iv) Commission to provide certain Commission Assistance to Developer. The Agreement
is available for public inspection and copying at the office of the City Clerk, City of Rohnert Park City Hall,
6750 Commerce Boulevard, Rohnert Park, California 94928. All of the terms, conditions, provisions and
covenants of the Agreement are incorporated in this Memorandum by reference as though written out at
length herein, and the Agreement and this Memorandum shall be deemed to constitute a single instrument or
document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in
the Agreement.
2. Option to Repurchase. Both the Agreement and the contemplated Grant Deed Including
Covenants provide Commission with the option (under certain circumstances) to repurchase the Site
conveyed and all improvements subsequently constructed thereon if after conveyance of title to the Site or
portion thereof and prior to the issuance of the Certificate of Completion.
9107650 80078/0022 Attachment No. 9 Page I
3. Purpose of Memorandum. This Memorandum is prepared for recordation purposes only,
and in no way modifies the terms, conditions, provisions and covenants of the Affordable Housing and Loan
Agreement. In the event of any inconsistency between.the terms, conditions, provisions and covenants of
this Memorandum and the Affordable Housing and Loan Agreement, the terms, conditions, provisions and
covenants of the Affordable Housing and Loan Agreement shall prevail.
The parties have executed this Memorandum on the dates specified immediately adjacent to their
respective signatures.
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit. public benefit corporation
Its: Managing General Partner
By:
Its:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California
nonprofit corporation
Its: Co- General Partner
By:
Its:
"DEVELOPER"
[Signature must be notarized]
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
Dated: By:
Its:
"COMMISSION"
[Signature must be notarized]
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
910765v4 80078/0022 Attachment No. 9 Page 2
EXHIBIT A
LEGAL DESCRIPTION OF SITE
CITY OF ROHNERT PARK
VIDA NUEVA REVISED LOT 1 COMBINED WITH PORTION OF PARCEL A
DRAFT LEGAL DESCRIPTION
SITUATE IN THE CITY OF ROHNERT PARK, COUNTY OF SONOMA AND STATE OF CALIFORNIA.
LOT 1 AS SHOWN ON THE CITY OF ROHERT PARK PARCEL MAP NO. 142 RECORDED. DEC EMBER 20,
1991 AND FILED IN BOOK 486 OF MAPS AT PAGES 7 -9, SONOMA COUNTY RECORDS.
TOGETHER WITH A PORTION OF THE LANDS OF THE CITY OF ROHNERT PARK, ;A MUNICIPAL
CORPORATION AS DESCRIBED IN DEED RECORDED UNDER DOCUMENT N 0.1 992 - 0006439,
SONOMA COUNTY RECORDS, ALSO BEING A PORTION OF PARCEL'A`AS SHOWN pN:4( Y OF
ROHNERT PARK PARCEL MAP NO- 142 RECORDED DECEMBER 20, 1991 AND FILED IN BOOK 486 OF
MAPS AT PAGES 7 THROUGH 9, SONOMA COUNTY RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING.AT THE NORTHEASTERLY CORNER OF SAID PARCEL 'A' ,SAID CORNER BEING THE
BEING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1558.00 FEET; THEN: CE ALONG SAID.
CURVE AND THE NORTHERLY LINE OF PARCEL 220 -00 FEET THROUGH A CENTRAL ANGLE OF
08 °05'26'; THENCE RADIALLY FROM SAID CURVE SOUTH 08°24'02" EAST, 23.23 FEET TO THE
SOUTHERLY LINE OF SAID PARCEL; THENCE ALONG SAID LINE SOUTH 71 °56'W EAST, 150.54 FEET
TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1072.05 FEET; THENCE
ALONG SAID CURVE AND THE SOUTHERLY LINE OF SAID PARCEL 84.78 FEETTHROUGH A
CENTRAL ANGLE OF 04 °31'52' TO THE SOUTHEASTERLY CORNER OF. SAID PARCEL; THENCE
ALONG THE EASTERLY LINE OF SAID PARCEL NORTH 00°00'00' WEST, 83.08 FEET TO THE POINT OF
BEGINNING.
CONTAINING 1.825 ACRES (79,497 SQUARE FEET) MORE OR LESS.
BASIS OF BEARING OF THIS DESCRIPTION IS THE ABOVE MENTIONED PARCEL MAP-
PREPARED IN THE OFFICE OF STEVEN J- LAFRANCHI & ASSOCIATES, INC.
DRAFT DRAFT
STEVEN J LAFRANCHI, P.L-S. 6368 DATE
EXPIRATION DATE: 12 -31 -06
STEVEN J. LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS -- LAND SURVEYORS -- LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
775 BAYWOOD DRIVE, SUITE 312, PETALUMA, CA 94954
TEL 707 -762 -3122 FAX 707- 762 -3239
061081 DRAFT Legg Dosaipfiw for Vida Nueva
` DRAFT EXHIBIT SHOWING COMBINATION OF LOT 1 & PORTION OF PARCEL A
SEE EXHIBIT "A" FOR LEGAL DESCRIPTION
FOR GRAPHIC ILLUSTRATION ANO INFORMATIVE PURPOSES ONLY
1
i
PARCEL A -j
CITY Of ROHAIERT PARK
DM 1992 0006439
AM 143 -391 -054
— — —
LEGEND
FORMER LOT LINE
z
TO BE COMBINED
FOUND 3/4- P
TAGGED PLS 10578
FOUND PK
TAGGED PLS 10578
RI
MAP R£ UW14M Na 142
486 MAPS 7 -9• SCR
P.O.B.
POINT OF BEGINNING
4
•. -� � :ter
•qy yr" .7.i':.:_s.5.
1997 01191
FAFKA3L W Na M �'
7-0
Q
APN 143 - 391 -052
LOT 2
PAS MAP Na 142
496 UW6 7-0
APN 14.J- 391 -050
COURE DATA
R =1558.00' 0- 08`05'28" L- 220.00'
2 S 08'2402' W 2123' (RADIAL)
3 S 71*36'15".E 150.54
4 R- 1072.05' 0- 04'31'52' L- 84.78'
5 N 00'00.00' W 8308' RI
e
STEVEN J_ LAFRANCHI & ASSOCIATES, INC.
CIVIL ENGINEERS - LAND SURVEYORS - LAND PLANNERS
PETALUMA MARINA BUSINESS CENTER
PETALUMA, CALIFORNIA 94954
775 BAYWOOD ORWE, SUITE 312
T07-762-3122 FAX 707 7623239
A-hsI K* AWwI661091LLA&hAltoy
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On , 20_, before me, (here insert
name and title of the officer), 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 capaeity(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 )
ss.
COUNTY OF 1
On , 20 , before me, (here insert
name and title of the officer), 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
910765A 80078/0022
ATTACHMENT NO. 10
FORM PROMISSORY NOTE
(COMMISSION ASSISTANCE)
Not to Exceed
$1,675,000
20
Rohnert Park, California
FOR VALUE RECEIVED; VIDA NUEVA PARTNERS, L.Y., a California limited partnership
( "Borrower "), having an address of 3432 -A Mendocino Avenue, Santa Rosa, California 95403 -2274, hereby
promises to pay COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK
( "Lender "), the principal sum of One Million, Six Hundred Thirty Thousand Dollars ($1,630,000), pursuant
to the terms and conditions set forth below.
1. Promise to Pay. This promissory note ( "Note ") is made pursuant to that certain Affordable
Housing and Loan Agreement ( "Agreement ") between Borrower and Lender dated 2006.
This is a promissory note for the repayment to Lender of the value of the property conveyed to Borrower
together with other financial assistance provided to Developer in order to enable Developer to provide
develop the Project and the Affordable Units, as defined below, on that certain real property as described in
the Agreement ( "Site ").
2. Secured by Commission Deed of Trust. Payment of this Note is secured by a deed of trust,
assignment of rents, security agreement and fixture filing and addendum thereto (collectively "Commission
Deed of Trust ") from Borrower to Lender upon the Site. This Note is non - recourse except as set forth in
Sections 502.4 and 504 of the Agreement. As such, notwithstanding the foregoing, neither Borrower nor any
of its partners shall have any personal liability for repayment of the Loan, except in connection with
Reimbursement of Surplus Funds and the A14P offsets as set forth in Sections 502.4 and 504 of the
Agreement.
3. Purpose. Pursuant to the Agreement, the Site will be developed with twenty -four (24)
residential units. Such residential units (excluding the Manager's Unit) are collectively referred to herein as
the "Affordable Units "; provided, however, that if Developer does not have a property manager residing on
the Site, then the unrestricted Manager's Unit shall also be treated as an "Affordable Unit" under the
Agreement and be made available to Very Low Income Persons or Households. Each Affordable Unit will
be conveyed to a qualified Eligible Buyer (as defined in the Agreement), at an Affordable Housing Cost as
set forth in the Agreement and the Covenant. Commission Assistance shall be used only for those purposes
and subject to the terms and conditions set forth in the Agreement.
4. Conditions. Subject to the Conditions Precedent set forth in the Agreement, Commission
agrees to loan to Developer an amount maximum loan of $1,675,000 ( "Commission Assistance "). As set
forth in the Agreement, such Commission Assistance is comprised $810,000 for the Purchase Price and a
total of $865,000 for both Predevelopment Assistance and for Development Assistance. Upon written
request by Developer and written consent of Commission, Commission Assistance may be reallocated
among the Purchase Assistance, Predevelopment Commission Assistance and Development Commission
Assistance so long as Commission Assistance does not exceed the maximum amount of $1,675,000. No
portion of Commission Assistance shall be utilized for ineligible costs as set forth in California Health &
Safety Code section 33334.2(e). All disbursements shall be held by Developer in trust and applied by
Developer solely for the purposes for which the funds have been disbursed. Commission is not obligated to
monitor or determine Developer's use or application of the disbursements. All disbursements of
Commission Assistance or any portion or component thereof shall be subject to Reimbursement of Surplus
Funds as set forth in Sections 502.4 of the Agreement.
910765v4 80078 /0022 Attachment No. 10 Page I
5. Interest. Simple interest on the unpaid principal balance will accrue from the date of
advance at an annual rate equal to one percent (1 %). Lender's conditions precedent to disbursement are as
set forth in the Agreement.
6. Method of CalculatinP Interest. Interest shall be computed based on a 360 -day year and the
actual number of days elapsed. Interest computed based on a 360 -day year is greater than interest computed
based on a 365 -day year.
7. Payment of Principal and Interest; Maturity Date. So long as Borrower is not in Default with
respect to the covenants and conditions set forth in this Note, the Agreement, or the Covenant, then such
payments shall be deferred until fifty -five (55) years from the date of the first disbursement hereunder (the
"Maturity Date "). The parties shall mutually acknowledge the Maturity Date in writing. Notwithstanding
anything in the Agreement to the contrary , the entire indebtedness evidenced by this Note including but not
limited to, all accrued but unpaid interest hereunder, shall be due and payable in full on the Maturity Date In
no event or contingency, whether because of the advancement of the proceeds of this Note, acceleration of
maturity of the unpaid principal balance, or otherwise, shall the amount paid or agreed to be paid to Lender
for the use, forbearance, or retention of the money to be advanced under this Note exceed the highest lawful
rate permissible under applicable usury laws
8. Payment Method and Application. Payment shall be made in lawful money of the United
States to Lender c/o Community Development Commission of the City of Rohnert Park, Attention: Finance
Director, 6750 Commerce Boulevard, Rohnert Park, California 94928. The place of payment may be
changed from time to time as the Lender may from time to time designate in writing. Checks constitute
payment only when collected. Each payment under this Note shall be credited in the following order: (a)
costs, fees, charges, and advances paid or incurred by Lender or payable to Lender and interest under any
provision of this Note or the Commission Deed of Trust, in such order as Lender, in its sole and absolute
discretion, elects, (b) interest payable under the Note, and (c) principal under the Note. All prepayments of
principal under this Note shall be applied to the most remote principal installment then unpaid.
9. Default. The occurrence of any of the following shall at Lender's option constitute a
"Default" under this Note: (1) Borrower fails to pay any amount due hereunder within fifteen (15) day-of its
due date; (ii) any default by Borrower under Section 500 of the Agreement, under the Promissory Note, or
under the Commission Deed of Trust, subject to any applicable cure periods provided therein; (iii) any
default by Borrower as to any other loan or loans by Lender to Borrower, or (iv) if Borrower assigns this
Note or any proceeds of it, or assigns or delegates any of Borrower's rights or obligations under this Note.
Notwithstanding anything in this Agreement, the Covenant, Note, Grant Deed, Commission Deed of Trust,
Performance Deed of Trust, or the Pre - Development Agreement to the contrary, no default under those
instruments except as specified in clause 9(11) of this Note shall constitute a "Default" under this Note, as that
defined term is used herein. If a Default occurs, Lender may exercise any right or remedy which it has under
the Commission Deed of Trust, or which is otherwise available at law or in equity or by statute, and all of
Lender's rights and remedies shall be cumulative.
10. Acceleration. At the option of Lender and without notice, the entire unpaid principal and
interest owing on this Note shall become immediately due and payable at or any time after the following
events: (i) if all or any part of the Property, or any interest therein, or any beneficial interest in Borrower is
sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly,
whether voluntarily or involuntarily or by operational law (collectively, "Transfer "); or (ii) if a Default
occurs. The acceptance of one or more installments after any such event shall not constitute a waiver of
Lender's option. Lender's failure to exercise such option shall not constitute a waiver of such option with
respect to any subsequent event. Lender's failure in the exercise of any other right or remedy hereunder or
under any agreement which secures the indebtedness or is related thereto shall not affect any right or remedy
and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof. If
any payment for or proceeds of the Transfer are paid to or held by a title company or other third party,
910765v4 80078/0022 Attachment No. 10 Page 2
Borrower shall instruct such title company or third party to pay Lender directly. Notwithstanding the
foregoing, at any particular time the Property may be encumbered by: (a) liens for taxes, assessments, or
governmental charges not then due and payable or not then delinquent; and (b) liens in favor of or consented
to in writing by Lender.
11. Default Interest. From and after the Maturity Date (either according to the terms of this Note
or as the result of an acceleration of the then unpaid principal balance under the terms of this Note), the entire
unpaid principal balance shall automatically bear an annual interest rate (instead of the rate specified in
Section 5 equal to the lesser of (a) five percent over the prime interest rate announced by Wells Fargo Bank,
NA or (b) the maximum interest rate allowed by law ( "Default Rate "). If any interest payment under this
Note is not paid when due, the unpaid interest shall be added to the principal of this Note, shall become and
be treated as principal, and shall thereafter bear like interest.
12. Attorneys Fees. Borrower agrees to pay immediately upon demand all costs and expenses of
Lender including reasonable attorneys' fees, (1) if after default this Note be placed in the hands of an attorney
or attorneys for collection, (ii) if after a Default under this Note, the Commission Deed of Trust, Section 500
of the Agreement, or the Pre - Development Agreement ( "Loan Documents "), Lender finds it necessary or
desirable to secure the services or advice of one or more attorneys with regard to collection of this Note
against Borrower, any guarantor or any other party liable therefor or to the protection of its rights under the
Loan Documents, or (iii) if Lender seeks to have the Site abandoned by or reclaimed from any estate in
bankruptcy, or attempts to have any stay or injunction prohibiting the enforcement or collection of the Note
or prohibiting the enforcement of the Commission Deed of Trust or any other agreement evidencing or
securing this Note lifted by any bankruptcy or other court.
13. Defense of Title. If Lender shall be made a party to or shall reasonably intervene in any
action or proceeding, whether in court or before any governmental agency, affecting the property or the title
thereto or the interest of the Lender under the Commission Deed of Trust, including, without limitation, any
form of condemnation or eminent domain proceeding, Lender shall be reimbursed by Borrower immediately
upon demand for all costs, charges and attorneys' fees incurred by Lender in any such case, and the same
shall be secured by the Commission Deed of Trust as a further charge and lien upon the Site.
14. Waivers; Forbearance. Borrower and any endorsers hereof and all others who may become
liable for all or any part of this obligation, severally waive presentment for payment, demand and protest and
notice of protest, and of dishonor and nonpayment of this Note, and expressly consent to any extension of the
time of payment hereof or of any installment hereof, to the release of any party liable for this obligation, and
any such extension or release may be made without notice to any of said parties and without any way
affecting or discharging this liability. Borrower, endorsers, and all other persons liable or to become liable
on this Note waive presentment, protest, and demand; notice of protest, demand, and dishonor; and all other
notices or matters of a like nature. The pleading of any statute of limitations as a defense to the obligations
evidenced by this Note is waived to the fullest extent permissible by law. If Lender delays in exercising or
fails to exercise any of its rights under this Note, that delay or failure shall not constitute a waiver of any
Lender rights or of any breach, default, or failure of condition under this Note. No waiver by Lender of any
of its rights or of any such breach, default, or failure of condition shall be effective, unless the waiver is
expressly stated in a writing signed by Lender.
15. Notice. Any notice required to be provided in this Note shall be given in writing and shall
be sent (a) for personal delivery by a delivery service that provides a record of the date of delivery, the
individual to whom delivery was made, and the address where delivery was made; (b) by first -class certified
United States mail, postage prepaid, return receipt requested; (c) by a nationally recognized overnight courier
service, marked for next day business delivery; or (d) sent by facsimile (immediately followed by one of the
preceding methods). All notices shall be addressed to the party to whom such notice is to be given at the
property address stated in this Note or to such other address as a party may designate by written notice to the
other. All notices shall be deemed effective on the earliest of (a) actual receipt; (b) rejection of delivery; (c) if
910765v4 80078 /0022 Attachment No. 10 Page 3
sent by certified mail, the third day on which regular United States mail delivery service is provided after the
day of mailing or, if sent by overnight delivery service, on the next day on which such service makes next -
business -day deliveries after the day of sending.
To Commission: Community Development Commission of the City of
Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
Telephone: (707) 588 -2227
Facsimile: (707) 588 -2274
With a copy to: McDonough, Holland & Allen
1901 Harrison Street, 9th floor
Oakland, California 94612 -3501
Attention: Susanne M. Brown, Esq.
Telephone: (510) 273 -8780
Facsimile: (510) 839 -9104
and: City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: City Attorney
Telephone: (707) 588 -2227
Facsimile: (707) 588 -2274
To Developer: Burbank Housing Development Corporation
3432 -A Mendocino Avenue
Santa Rosa, California 95403 -2274
Attention: John Morgan
Telephone: (707) 526 -9782
Facsimile: (707) 526 -9811
With a copy to: Gubb & Barshay, LLP
50 California Street, Suite 3155
San Francisco, California 94111
Attention: Scott R. Barshay, Esq.
Telephone: (415) 781 -6600
Facsimile: (415) 781 -6967
and: Community Housing Redevelopment Corporation
of Santa Rosa
13412 Chalk Hill Road
Healdsburg, CA 95448
Attention: Margo Merck
Telephone: (707) 433 -5533
Facsimile: (707) 433 -6622
16. Assignment. This Note inures to and binds the heirs, legal representatives, successors, and
assigns of Borrower and Lender; provided, however, that THIS NOTE IS PERSONAL TO BORROWER
AND IS NOT ASSUMABLE OR ASSIGNABLE, and Borrower may not assign this Note or any proceeds
of it, or assign or delegate any of its rights or obligations. Any such action on Borrower's part shall
constitute a Default under this Note and the Commission Deed of Trust. Lender in its sole discretion may
9107650 80078/0022 Attachment No. 10 Page 4
transfer this Note, and may sell or assign participations or other interests in all or any part of this Note, all
without notice to or the consent of Borrower.
17. Miscellaneous. This Note shall be binding upon Borrower, its successors and assigns. This
Note shall be construed in accordance with and be governed by the laws of the State of California. If any
provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired thereby. Time is of the essence in
this Note. In the event of any conflict between this Note and the Agreement, or the Covenant, the provisions
of this Note shall control. Capitalized terms not otherwise defined herein shall have the meaning ascribed to
such terms in the Agreement.
Dated:
VIDA NUEVA PARTNERS, L.P., a California limited
partnership
By: Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By:
Its:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California nonprofit
corporation
Its: Co- General Partner
By:
Its:
910765v4 80078/0022 Attachment No. 10 Page 5
ATTACHMENT NO. 11
COMMISSION DEED OF TRUST
[STANDARD FORM OF DEED OF TRUST FROM A
TITLE COMPANY APPROVED BY COMMISSION TO BE USED
WITH THE "ADDENDUM TO COMMISSION DEED OF TRUST" ATTACHED HERETO.]
ADDENDUM TO COMMISSION DEED OF TRUST
. (COMMISSION ASSISTANCE)
This Addendum to Commission Deed of Trust is part of the Commission Deed of Trust dated ,
20020 to which it is attached between VIDA NUEVA PARTNERS, L.P., a California limited partnership,
as Trustor, and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK, a public body, corporate and politic, as Beneficiary. All capitalized terms not defined herein shall
have the meaning as defined in the Agreement. The following provisions are made a part of the Commission
Deed of Trust:
1. No Discrimination. The Trustor covenants by and for itself and any successors in interest
that there shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, sexual preference, age, marital status, physical handicap, medical condition,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
property, nor shall the Trustor itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the property.
2. Nondiscrimination Clauses. All deeds, leases or contracts made relative to the property, the
improvements thereon or any part thereof, shall contain or be subject to the nondiscrimination clauses set
forth in California Health and Safety Code section 33436.
3. Default. Notwithstanding any other provisions in Loan Documents or the Secured
Documents (as those terms are defined below), the occurrence of any of the following shall constitute an
"Default" under the Note and this Commission Deed of Trust, and a Default may be declared under this
Commission Deed of Trust solely upon the occurrence of any of the following: (i) Any failure by Trustor to
pay any amount due under the Note within fifteen (15) days of its due date; or (ii) any default by Borrower
under Section 500 of the Affordable Housing and Loan Agreement by and between Trustor as Developer and
Beneficiary as Commission dated , 2006 ( "Agreement "), under the Promissory Note, or
under the Commission Deed of Trust (including the addendum thereto), subject to any applicable cure
periods provided therein subject to any applicable cure periods provided therein; (iii) any default by
Borrower as to any other loan or loans by Lender to Borrower, or (iv) if Borrower assigns this Note or any
proceeds of it, or assigns or delegates any of Borrower's rights or obligations under this Note.
Notwithstanding anything in the Loan Documents or the Secured Documents to the contrary, no default
under those instruments except as specified in clause 3(11) of this Commission Deed of Trust and clause 9(ii)
of the Note shall constitute a "Default" under this Commission Deed of Trust, as that defined term is used
herein. Upon a Default hereunder, Beneficiary may, at its option, declare all sums owing under the Note
immediately due and payable.
4. Subordination.
a. Permanent Financing. Beneficiary agrees that the terms and conditions of the Note
and this Commission Deed of Trust shall be subject to and subordinate to the terms and conditions of the
Permanent Financing (as defined in the Agreement) only.
b. Construction Financing. Upon terms and conditions reasonably approved by
Commission, Commission will agree to subordinate this Commission Deed of Trust to the Construction
Financing, provided the total aggregate amount of financing secured by Trustor, whether secured through
910765v4 80078 /0022 Attachment No. I 1 Page 1
Developer's Financing (as defined in the Agreement) or other sources, for the acquisition and construction of
the Project, together with Commission Assistance (as defined in the Agreement) shall not exceed the
appraised value of the Project as restricted by the Covenant; and further provided that any Lender shall agree
to include in its subordination agreement and deed of trust conditions substantially similar to the following
conditions: (i) Beneficiary shall receive any notices of default issued by such lender to Trustor; (ii)
Beneficiary shall have the right to cure any default by Trustor within forty -five (45) days after a notice of
default; (iii) Beneficiary shall have the right to foreclose under its Commission Deed of Trust without the
lender accelerating its debt, provided Beneficiary has cured or is attempting to cure any defaults under such
lender's deed of trust; and (iv) Beneficiary shall have the right to transfer the Project to a nonprofit
corporation who shall own and operate the Project as an affordable rental housing project with the consent of
such lender, which consent shall not be unreasonably withheld. Commission shall have the right to review
and approve the terms and conditions of any such senior financing and subordination agreements, which
approval shall not be unreasonably withheld. Commission shall have the right to record a request that
Commission receive notice of any default by Developer under Developer's Financing or other financing
obtained by Developer with respect to the Project. To implement any such subordination, Commission
agrees to cooperate with Developer and execute such subordination agreements and/or interereditor
agreements that may be reasonably required, in form and content approved by Commission counsel.
5. Loan Documents. The term "Loan Documents" as used in this Commission Deed of Trust
means only the Commission Deed of Trust, the Note, the Pre- Development Agreement, and Section 500 of
the Agreement. Trustor's performance of its obligations under the Performance Deed of Trust, the
Agreement (except for Section 500 thereof), the Covenant, and the Grant Deed ( "Secured Documents)are not
secured by this Commission Deed of Trust, but are separately secured by the Performance Deed of Trust
recorded against the Property.
6. Extended Use Agreement. Beneficiary acknowledges that Developer intends to enter into an
extended use agreement, which constitutes the extended low- income housing commitment described in
section 42(h)(6)(B) of the Internal Revenue Code, as amended ( "Code "). As of the date hereof Code section
42(h)(6)(E)(ii) does not permit the eviction or termination of tenancy (other than for good cause) of an
existing tenant of any low- income unit or any increase in the gross rent with respect to such unit not
otherwise permitted under Code section 42 for a period of three (3) years after the date the building is
acquired by foreclosure or by instrument in lieu of foreclosure. In the event the extended use agreement is
recorded against the property, Beneficiary agrees to comply with the provisions set forth in Code section
42(h)(6)(E)(ii) subject to the provisions of Code section 42(h)(6)(E)(i).
Dated:
VEDA NUEVA PARTNERS, L.P., a California limited
partnership
By Burbank Housing Development Corporation, a
California nonprofit public benefit corporation
Its: Managing General Partner
By:
By: The Community Housing Redevelopment
Corporation of Santa Rosa, a California nonprofit
corporation
Its: Co- General Partner
By:
Its:
(Signature must be notarized)
"TRUSTOR"
9107650 80078/0022 Attachment No. t i Page 2
STATE OF CALIFORNIA )
) ss.
COUNTY OF
On 20_, before me, (here insert
name and title of the officer), 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
910765A 80078/0022
ATTACHMENT NO. 12 Community evelopment Commission
PRE DEVELOPMENT AGREEMENT Amendment No. 2 to Pre - Development Agreement
September 27, 2005
Page I of 2
PRE - DEVELOPMENT AGREEMENT
AMENDMENT NO. 2
THIS PRE - DEVELOPMENT AGREEMENT AMENDMENT No_ 2 is entered into as of
the 27th day of september 2005, by and between the COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF ROHNERT PARK (the "Commission ") and BURBANK
HOUSING DEVELOPMENT CORPORATION ( "Burbank Housing ").
WHEREAS, On December 19, 2002, the Commission entered into a Pre - Development
Agreement with Burbank Housing to develop affordable housing units on three sites: the City
Hall Site (6750) Commerce Blvd.); the Southwest Station Site (435 Southwest Blvd.,); and City -
owned vacant lot west of Food 4 Less (705 Rohnert Park Expressway), and
WHEREAS, on August 26, 2003, the Commission removed the Southwest Station Site
from the Agreement in order to retain the Southwest Station Site for emergency services for the
City of Rohnert Park and reduced the amount committed for Pre - Development of the remaining
Sites to $266,667 but retaining all remaining provisions of the Pre - Development Agreement; and
WHEREAS, Burbank Housing is proceeding with the development of a 25 -unit low -
income, permanent housing facility, the Vida Nueva, for families and individuals who have had a
history of homelessness and desire to utilize the City -Owned lot west of Food 4 Less (City -
Owned Lot) for this purpose; and
WHEREAS, the development of the City Hall Site for a low- income housing facility will
not occur until 2006 or later.
WHEREAS, Burbank Housing has already expended funds associated with the pre -
development of the City -Owned Site for the development of the Vida Nueva and it would
therefore be expeditious to allocate the funds set -aside under the Pre- Development Agreement
totally to the Vida Nueva Project_
:THEREFORE, the Pre- Development Agreement by and between the Community
Development Commission of the City of Rohnert Park and Burbank Housing Development
Corporation is amended as follows:
Section A of the Recitals is amended to read as follows:
A. The Commission and Burbank Housing desire to enter into this Agreement for the
following purpose_
(1) To set forth activities, services and facilities that Burbank Housing will render for
and make available to the Commission in furtherance of the activities and functions of the
Commission under the Community Redevelopment Law; and
Commum., Development Commission
Amendment No. 2 to Pre - Development Agreement
September 27, 2005
Page 2 of 2
(2) To provide that the Commission will allocate the remaining funds from
Amendment No. I to the Pre- Development Agreement, in the amount of Two- Hundred - Sixty -Six-
Thousand, Six - Hundred -Sixty-Seven dollars, ($266,667)solely to the Vida Nueva Project
(formally referred to as the, City-Owned Lot west of Food 4 Less - 705 Rohnert Park
Expressway) and will reimburse Burbank Housing for actions undertaken and costs and
expenses incurred by it for.and on behalf of the Commission. The source of Commission's Two -
Hundred -Sixty-Six Thousand, Six- Hundred -Sixty -Seven dollars ($266;667) will come from the
Low and Moderate Income Housing Fund.
All remaining provisions of the December 19, 2002 Pre- Development Agreement and all other
provisions of the August 26, 2003 Pre - Development Agreement Amendment stand and remain in
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to the Pre -
Development Agreement as of the date first written above.
BURBANK HOUSIDM D
M.
Director
ENT CORPORATION
COMMUNITY DEVELOPMENT COMMISSION
OF
THE C Y OF ROtNER AR
By: irector Executiv D
Per CDC Reso. No. 2005 -18 adopted by the Community Development
Commission of the City of Rohnert Park on 9/27/05.
ATTEST:
�pMMlssto,L
`•• Q <
Qom``' -• �GAN /�� . �y
Secretary
LU
O O
A�. 1986
APPROVED AS TO FORM:
i
' t
ever t Counsel -
d
PRE - DEVELOPMENT AGREEMENT
AMENDMENT
THIS PRE - DEVELOPMENT AGREEMENT AMENDMENT is entered into as
of the 26th day of August 2003, by and between the COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK (the
"Commission ") and BURBANK HOUSING DEVELOPMENT CORPORATION ( "Burbank
Housing ").
AMENDMENT:
On December 19, 2002, the Commission entered into a Pre -
Development Agreement with Burbank Housing Development to develop
affordable housing units on three sites: the City Hall Site (67,50
Commerce Blvd.), the Southwest Station Site (435 Southwest .Blvd.),
and city -owned vacant lot west of Food - 4 Less (705 Rohnert Park
Expressway). The Commission committed $400,000 from its Low and
Moderate Income Housing Fund for the three sites.
During the Commission's August 12, 2003 meeting, the
Commission elected to retain the Southwest Station Site (435
Southwest Blvd.) to provide emergency services for the City of
Rohnert Park and, therefore, remove the Site from the original Pre-
Development Agreement. The amount committed to this project will be
reduced by one -third ($133,333) equally a remaining amount of
$266,667. All remaining provisions of the December 19, 2002 Pre -
development Agreement stand and remain in affect.
IN WITNESS WHEREOF, the parties have executed this
Agreement Amendment as of the date first above written.
ATTEST:
Dep Cy $ cretar2f/,gudy Hauff
rPROVED AS TO FORM:
Ci y Attor�eV Betsy Strauss
2003 P -level Agnut Amendment.doc
BURBANK HOUSING DE LOPMENT
CORPORATION
By: WA
Rkecutive Director
"BURBANK HOUSING"
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNERT PARK
�
4
By: z"" f
„Otpoattetetetq,4ecutive Director Carl Eric Leivo
�pMMISStpy %
2�• try
'yam
W,*,*- 00 d ��a`�•
b
PRE - DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the 19th day of December 2002,
by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
ROHNERT PARK (the "Commission ") and BURBANK HOUSING DEVELOPMENT
CORPORATION ( "Burbank Housing ").
RPr lf;lk
A. The Commission and Burbank Housing desire to enter into this
Agreement for the following purposes: Develop affordable housing units on
three sites: the City Hall Site (6750 Commerce Blvd.), the Southwest Station Site (435
Southwest Blvd.), and city -owned vacant lot west of Food 4 Less (705 Rohnert Park
Expressway West)
(1) To set forth activities, services and facilities that Burbank Housing
will render for and make available to the Commission in furtherance of the activities
and functions of the Commission under the Community Redevelopment Law; any#
(2) To provide that the Commission will reimburse Burbank Housing
for actions undertaken and costs and expenses incurred by it for and on behalf of the
Commission. The source of the Commission's $400,000 commitment will came from the
Low and Moderate Income Housing Fund as appropriated in the Commission's FY 02-
03 budget.
Agreements
1. Burbank Housing agrees to provide for the Commission such staff
assistance, supplies, technical services and other services and facilities of Burbank
PredevAgreement -E31 i2 1
Housing as the Commission may require in developing the affordable housing units.
Such assistance and services may include the services of officers, employees and special
consultants.
2. The Commission may advance necessary funds to the Commission or
expend funds on behalf of the Comnssion I for the pre - development of the affordable
housing project located on three sites: the City Hall Site (6750 Commerce Blvd.), the
Southwest Station Site (435 Southwest Blvd.), and city -owned vacant lot west of Food 4
Less (705 Rohnert Park Expressway West). The pre - development tasks include, but not
limited to, site environmental studies, site engineering reports, architectural plans,
engineering plans and specifications, environmental mitigation and public
infrastructure improvements. The Commissions obligation for these improvements
shall not exceed $400,000 withgt approval of the Commission. Burbank must receive
authorization from thelprior to initiating any of the work described above_ In addition,
the scope and direction of work performed by Burbank Housing on behalf of the
Commission shall require prior approval of the Commission. All work performed on
behalf of the Commission shall be the property of the Commission.
3. Burbank Housing will keep records of activities and services undertaken
pursuant to this Agreement and the costs thereof so that an accurate determination of
the Commission's liability to Burbank Housing can be made. Burbank Housing shall
periodically, but not less than annually, submit to the Commission a statement of the
costs incurred by Burbank Housing in rendering activities and services of Burbank
Housing to the Corrunission pursuant to this Agreement. Such statement of costs may
include a proration of Burbank Housing's administrative and salary expense
attributable to services of Burbank Housing's officials, employees and departments
rendered for the Commission.
PredevAgreement -Bi r2 Page 2 of 7
4. ' The Commission agrees to reimburse Burbank Housing for all costs
incurred for services by Burbank Housing pursuant to this Agreement from and to the
extent that funds are available to the Commission for such purpose pursuant to Section
33670 of the Community Redevelopment Law or from other sources provided.
5. INDEMNIFICATION. To the full extent permitted by law, Burbank
Housing shall indemnify, hold harmless, release and defend the Commission, its officers,
employees and agents from and against any and all actions, claims, demands, damages,
disability, losses, expenses including attorney's fees and other defense costs and liabilities
of any nature that maybe asserted by any person or entity including Burbank Housing, in
whole or in part, arising out of Burbank Housing's activities hereunder, including the
activities of other persons employed or utilized by Burbank Housing in the performance
of this Agreement (including design defects and regardless of Commission's approval, use
or acceptance of the work or work product hereunder). excepting liabilities due to the sole
negligence or willful misconduct of Commission. This indemnification obligation is not
limited in any way by any limitation on the amount or type of damages or compensation
payable by or for Burbank Housing under Worker's Compensation, disability or other
employee benefit acts or the terms, applicability or limitations of any insurance meld or
provided by Burbank Housing and shall continue to bind the parties after
termination/ completion of this < Agreement.
6. INSURANCE. Without limiting Burbank Housing's indemnification
provided herein, Burbank Housing shall take out and maintain, throughout the period of
this Agreement, the following policies of insurance placed with insurers with a current
A.M. Bests rating of no less than A:VII or its equivalent against injury /death to persons or
damage to property which may arise from or in connection with the activities hereunder
of Burbank Housing, its agents, employees or subcontractors. The cost of maintaining this
coverage shall be deemed a reimburseable expense in performance of the agreement.
PredevAgreement -BF12 Page 3 of 7
0
h
a
A. Comprehensive or Commercial General Liability Insurance at least as
broad as Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001), in an amount of $1,000,000.00 per occurrence. If work involves explosive,
underground or collapse risks, XCU must be included. If a general aggregate limit is used,
either the general aggregate limit shall apply separately to this project or the general
aggregate shall be twice the required occurrence limit. Said policy shall contain, or be
endorsed with, the following provisions:
(1) The Commission, its officers, employees and agents, are covered as
insureds for liability arising out of the operations performed by or on behalf of Burbank
Housing. The coverage shall contain no special limitations on the scope of protection
afforded to the Commission, its officers, agents and employees.
(2) The policy shall not be canceled or materially reduced in coverage
without thirty (30) days prior written notice (10 days for non- payment of premium) to
Commission by certified mail.
(3) The inclusion of more than one insured shall not operate to impair the
rights of one insured against another insured, and the coverage afforded shall apply as
though separate policies had been issued to each insured, but the inclusion of more than
one insured shall not operate to increase the limits of the insurer's liability.
(4) For claims related to this project, the Burbank Housing's insurance is
primary coverage to the Commission, and any insurance or self - insurance programs
maintained by the Commission is excess to Burbank Housing's insurance and will not be
called upon to contribute with it.
PredevAgreement -13112
Page 4 of 7
(5) Any failure to comply with reporting or other provisions of the parties,
including breach of warranties, shall not affect coverage provided to the Commission, its
officers, employees and agents.
B. Automobile liability insurance with coverage at least as broad as ISO,
Form numbers CA 000106 92, Code 1 (any auto), for vehicles used in the performance of
this Agreement with minimum coverage of not less than $1,000,000 per accident combined
single limit (CSL). Such policy shall contain or be endorsed with the provision that
coverage shall not be canceled or materially reduced in coverage without thirty (30) days
prior written notice (10 days for non-- payment of premium) to the Commission by certified
MA.
C. Worker's Compensation insurance meeting statutory limits of Labor
Code which policy shall contain or be endorsed to contain a waiver of subrogation against
the Commission, its officers, agents, and employees and provide for thirty (30) days prior
written notice to the Commission in the event of cancellation. If Burbank Housing has no
employees, Burbank Housing may sign and file the following certification in lieu of
insurance:
"I am aware of the provisions of California Labor Code Section 3700
which requires every employer to be insured against liability for
workers' compensation or to undertake self - insurance in accordance
with the provisions of that code, and I will comply with the
Provisions of that code before commencing with and during the
performance of the work of this contract."
D. Professional liability insurance/ errors and omission coverage in an
amount no less than $1,000,000.00 combined single limit (CSL). If insurance is written on a
PredevAgreement -BI{2 Page 5 of 7
13
claim -made basis, Burbank Housing agrees to maintain such insurance in effect for at least
three (3) years following completion of performance under this Agreement.
E. Burbank Housing shall furnish the Commission with certificates and
original endorsements effecting the required coverage prior to execution of this
Agreement by the Commission. The endorsements shall be on forms provided by the
Commission or as approved by the City Attorney. Any deductible or self- insured
retention over $100,000.00 shall be disclosed to and approved by the Commission. If
Burbank Housing does not keep all required insurance policies in full force and effect, the
Commission may, - -in addition to other remedies under this Agreement, take out the
necessary insurance.
7. Termination or modification of Agreement by the Commission. The
Commission may terminate or modify this agreement at anytime without cause by
written notice to Burbank Housing provided Commission would still reimburse
Burbank Housing for any eligible predevelopment activities it had authorized and
which had been performed up to the date of notice of termination_ Termination or
modification shall become effective ten (10) days after the date of the letter-
8. Termination or modification of Agreement by Burbank Housing.
Burbank Housing may terminate this agreement at anytime without cause by written
notice to the Commission. Termination or modification shall become effective ten (10)
days after the date of the letter.
Predev Agree ment-BH2 Page 6 of 7
, L
j
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST:
BURBANK HOUSING DEVELOPMENT
CORPORATION
By:
"BURBANK HOUSING"
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNERT PARK
By:
De y Se etary J Hauff E cut
�anuwuiu,,,���
Director Joseph D. Nette --
tOy0,�''� `COMMISSION„
oil Oe'G �2�o':�Fti Per CDC Resolution No. 2002 -15 adopted by
zd. = the Community Development Commission at its
LU :o = meeting of December 19, 2002.
O T
hy� .,1986 .. �x%
PredevAgreement -BH2 Page 7 of 7
t
Sources and Uses
Yid. Nava, (-ty COTS Comm...
Revised
4/18/2006
Rohner Park, CA
CDLAC
SOURCES
!17
Amours
Percent
Yeazs
Periods
Future
PMT/yr
2008 Palms
App-imam Building Area
par Unit
Totals
Furst Mortgage
150,000
6.5D
30.0
12
6.50
11,377
12
0 Studio
9
0.0
0
Sonoma Cc CHDO HOME 2005 -06
210,386
3.00
30.0
1
n
deferred
12
3.18
4 One Bedroom.
9
704
2,816
So Co CI-MO HOME 2006 -07
176,500
3.00
3U.0
1
ne
a aced
12
2.67
10 Two Badroom
®
884.0
8,840
AHP
0
0.00
30.0
1
na
'deferred
12
0.00
10 Three Bedroom
@
1,174
11,740
t1W,
14.00
2,053,013
3.00
55.0
1
na
deferred
12
0 Four Bedroom
®
0
0
C;tyofRohnan Park
69,792
1,408,333
3.00
30.0
1
oa
deferred
12
21.30
24
Total
23,396
R.h- Park L,9 Housing Fund
266,667
3.00
30.0
1
-
deferred
13
4.0
Deferred Developer Fee
140,000
0.00%
260,000 (required per MHP)
I Community Building,
2,306
Lander Grant
0
GP Equity 0.01%
120,000
LP Equity
99.99%
2646,136
yses.ue
NET Development
Fear
300,000
Total Sources
7,171,036
28.006
2,42
Gap
0
Local subsidy per unit
85,912
const loan
50 % test -
61.3%
-
Bridge Lam C
0
6.50%
1,0
1
2.2%
Bridge Loan #2
0
8.00%
5,0
12
Res
Equip &
Non-
Credit
CONSTRUCTION LOAN CALC.
Amount
b
USES & TAX TREATMENT
assump
Total
Deerec
Furnish
Arnett
Expensed
Deprec
Basis
Total Uses
7,171,036
Land Cost
810,000
0
810,000
0
TCAC Performance Deposit
0
Of -Site Improvements
0
0
0
0
Utility Reimburseable
10,000
(�
Demolition
0
0
0
0
CalHFA Bond OrigInatlon Guarantee
0
0
Site Impreve., Utilities
0°/
510,000
510,000
0
510,000
Mortgage Loan Fees
0
3
Unit Construction 156
136.3
3,503,810
3,416,810.
87,D00
3,503,810
Syndication Legal
Contingency
6.83%
245,497
245,497
245,497
Syndication Consultant
'`11~!J_�•jl
Processing & Plan Check Fees
25,800
25,800
25,800
TCAC Monitoring Fee
(9,840)
Local Impact Fees
379,176
379,176
379,176
Local Impact Fee Deferral
(321,603)
Architacture & Engineering
145,000
145,000
145,000
Sonoma Cc CHDO HOME 2005.06
(210,386)
0
Construction Management
50,000
50,000
50,000
Defer halfofrent -up fee to 100% occupancy
(12,000)
a
E¢vironmentai Asscssments
82,000
82,000
82,000
Title & Eswaw Fees
(8.000)
.
Soils ?zoom &Testing
19,800
19,800
19,800
RoMert Park L,Ml Housing Fund
(266,667)
N
Construction Lam Fees
1.00%
58,402
58,402
58,402
Inital Operating Reserves
(38,649)
W
Construction Interest
5.25%
203,287
101,644
101,644.
101,644
Dv Fee
100,000
(460,000)
Predevelopment Interest
0
0
0
0
Initial Capital Contribution
(396,920)
Real Eatate Texas & Assessments
11,250
6,750
-
4,500
6,750
AHP
0
It turmee
64,633
64,633
64,633
So Cc CHDO HOME 2006-07
(176,500)
Mortgage Lam Fees, Inc, Bond Fees
81,000
0
81,000
0
City of RoMert Park
(1,408,333)
Appraisals
20,000
16,000
0
4,000
16,000
Lender Gant
0
Legal
20,000
10,000
$,000
5,000
10,000
Net
3,872,136
-
Organiaaticnlmisc.Bonds
15,000
10,000
5,000
0
10,000
Coasultant Fees
30,000
30,000
30,000
Conswction Loan
3,972,136
Title &Escrow Fees
26,000
10,000
8,000
8,000
10,000
Residual
0
R.wpf Marketing /Startup
24,000
0
24,000
0
Post- Coiwwcdon Audit & Set -up
10,000
0
10,000
0
Predevelopment Loan
0
Soft Cost Contingencies
5.00%
63,267
50,460
4,950
6,782
1,075
50,460
Initial Operating R..,.
1.15%
38,649
0
38,649
0
100,00%
Eligible
Total DevelopmentCost
6,436,571
5,231,91
87,000
103,950
142,426
871.224
5,318,971
of Basie/
Basis
Basis Unit
Lima/Umt
Tax Credit Allocation & Appl. Fees
4,624
0
4,624
0
5,980,971 249,207
245,926
Tax Credit Monitoring Fee
9,840
0
9,840
0
Syndication Legal
30,000
30,000
Syndication Consultant
30.000
30,000
BHDC Administration
100,000
100,000
100,000
3.42%
0.00%
Da, Fee
605,846
560,000
560,000
560,000
Annual
Total
Total Uses
298,793
7,171,036
5,891,971
87,000
178,414
142,426
871,224
5,978,971
100.00% TCAC
Federal
State
Deferred Interest
2,000
0
0
0
0
2,000
of Limited
Credin
Credits
Total Basis
5,893,971
87,000
178,414
142,426
871,224
5,980,971
3.6 Basis
Allowed
Allowed
Vlda Nueva update w 40% unlls 418 -06
412712006
Operating Statement
Vida Nueva, formerly COTS Commons
(page 2)
RR MUltlpller
5%
Year
OPERATING STATEMENT
1
2008
2
2009
3
2010
4
2011
5
2012
6
2013
7
2014
8
2015
9
2016
10
2017
11
2018
12
2019
13
2020
14
2021
15
16
17
Grosalncome
Tess Vacancy
2.50%
5.00%
173,822
178,768
182,622
187,168
191,887
96,664
201, 81
206,620
211,788
217,080
222,507
225,070
233,772
239,616
2022
245,607
2023
251,747
2024
258,040
plus Laundry
2,50%
(8,841)
3,000
(9,062)
3,075
(0,289)
(9,521)
(9,759)
(10,003)
(10,253)
(10,509)
(10,772)
(11,041)
(11,317)
(11,600)
(11,880)
(12,168)
(12,492)
(12,806)
(13,125)
Gross Eff.a,. Income
167,981
172,181
3,152
170,485
3,231
180,897
3,311
185,420
3,394
190,055
3,479
194,807
3,566
199V7
3,655
204,68
3,747
3,840
3,936
4,035
4,136
4,239
4,346
4,454
2D9,786
215,030
220,406
225,915
231,564
237,353
243,287
249,369
Operating Expenses
Operating Reaervas
3.50%
(120,198)
(10,000)
(124,405)
(10,000)
(126,759)
(10,000)
(133,266)
(10,000)
(137,030)
(142.757)
(147,764)
(162,926)
(158,278)
(183,817)
(169,551)
(175,465)
(181,627)
(167,984)
(194,584)
(201,374)
(208,422)
Replacement Reserves
Net income
0.8%
- (14,400)
(14,400)
(14,400)
(14,400)
(10,000)
(14,400)
(14,A00)
(14,400
(14,400)
(14,400
(74,400)
14,400)
14,400
14,400
74,400 -
14,400)
(14,400)
(14,400)
pereUng
from Reserves
23, 83
0
2 ,3' 8
23,32
23,232
23,080
32,888
32.653
32,352
31,8 t
31,568
3 ,078
30, 2
28,888
28,780
28,38
27,613
25,548
0
0
- 0
0
0
0
0
0
0
0
0
0
0
D
0
0
Debt Sarvlce Coverage
1.189
1.169
1.188
1.162
1.155
1.645
1.833
1.818
1.600
1.578
1.564
1.526
1.494
1.458
1.419
1.376
1.327
MHP Debt Service
Debt S.M.
0.42%
(8,623)
(8,623)
(8,823)
(8,623)
(8,823)
(8,623)
(8,823)
(8,823)
(8,823)
(8.823)
(8,623)
(8,623)
(8,823)
(8,823)
(8,823)
(8,623)
(8,623)
NE CASH FLOW
(11,377)
3,383
11,377)
3,378
11,377
3,326
(1 t,3
3,232
11,37
- (1 t,3
11,377
11,377)
(11,377)
(71,377)
(71,377)
(11,377)
(17,377)
(11,377)
(71,377)
(11,377)
(19,377)
3,080
72,098
12,853
12;352
11,881
1 ,566
11,0 9
10,52
9,889
0
,39
14
0;
TCAC Cash Flow Test
13,906
14,253
14,610
Maximum MHPNNt Olstnoudon
2%
544
555
566
577
569
601
613
625
637
650
663
676
690
70d
718
732
Per Unit Dlsmbutlon
Net as flow Avails refer D�stnbuUon
12,512
3,383
12,762
3,3 8
13,017
13,278
13,543
13,814
14,091
14,372
14,660
14,963
15252
1b,b57
15,868
18,186
16,508
16,840
747
77,176
30% of eddlllonal GabR6pW
D
0
3,326
0
3232
3,090
12,898
12,653
12,352
11,001
1,568
11,079
10, 21
9,889
9,180
6,390
7,514
6,548
Tatar Amount AVeueble for OlsUtbueon If no defamed fee
3,383
3,378
3,326
0
3,232
0
3,090
0
12,898
0
12,653
0
12,352
0
11,991
D
11,568
0
11,079
0
-
0
0
0
0
D
10,521
9,889
9,180
8,390
7,514
6,548
Total Amount Available for Dlstributlon If deferred fee
3,383
3,378
3,326
3,232
3,090
12,898
12,663
12.352
11,991
11,688
11,079
10,521
9,869
9,180
8,390
7,514
6,546
Defamed Development Fee -
Partnership Management Fee
140,000
(3,383)
(3,376)
(3,326)
(3,232)
(3,090)
(12,898)
(12,853)
(12,352)
(11,991)
(11.688)
(11,07 &)
(10,521)
(8,988)
0
0
0
0
Reeervea
3.00%
0
0
0
0
0
0
0
0
0
0
0
0
0
0
- 0
0,
0
(9,160)
(8,380)
(7,514)
Residual
Reaitlual ash Flow
0
0
0
0
0
0
0
D
0
0
0
0
0
0
0
0
0
0
0
0
'0
D
0
0-
0
0
0
0
0
6,548
Dlspersad to City Loans
44%
0
0
0
0
0
0
0
0
0
-
Dlspersad to MHP
56%
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
2,853
.
0
0
0
0
0
0
0
3,695
interest on Reserves
Initial Operating Reserves
2008
36,648
2009
0
2010
2011
2012
2013
2014
2015
2016
2017
'2018
2019 -
2020
2021
2022
2023
2024
Replacement Reeervea
nfl Reserves
14,400
10,000
14,400
10,000
0
14,400
0
14,400
0
14,400
0
14,400
0
14,400
0
14,400
0
14,400
0
14,400
i 0
74,400
14,400
0
14,400
0
14,400
0
14,400
0
14,400
0
14,400
Cab,
petit Service Coverage
0
0
10,000
10,000
10,000
0
0
0
0
0
0
0
0
0
0
0
0
Replacement
0
0'
0
0❑
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Total Reserves
83,049
24,400
24,400
24,400
(57,600.
(33200)
0
14,400
0
1
0
4,4 0
0
14,400
2,000)
7,600..........
0
14,400
0
0
D
2,000
0
0
,400
-
14,400.
..14,400
- 14; 00
( ,600)
14,400
14,400
Interest
Cumulative Reserves
4.00%
2,522
65,571
3,599
83,570
4,719
122,689
5,884
152,8 3
4,781
124,564
5,559
144,522
6,357
7,187
8,051
6,069
0,887
7,739
8,624
9,545
7,623
6,504
9,420
165,279
86,866
209,31
1b7, 85
1 9,073
i
201,212
224,236
248,182
1882 5
22 ,1 9
244,930
Vida Nueva update 140% urns 4 -18.06
4/27/2006
Operating Statement
Vida Nueva, formerly COTS Commons
(Page 2)
RR Mullipller
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036'
2037
fi-Wisf Operating Reserves
• Year
0
18
19
20
21
22
23
24
25
26
27
28
29
30
OPERATING STATEMENT
15,120
2025
2026
2027
2028
2029
2030
2031
2032
'2033
2034
2035
2038
2037
rocs inoome
2.60V
264,491
271,104
277,sei
21
291,949
299,24a
308.729
214,397
3ZZ257
330,3
338,VI
347,OM
356.711
leas Vacancy
6.00%
(13,453)
(13,789)
(14,134)
(14,467)
(14,849)
(16,221)
(16,801)
(16,981)
(16,391)
(18,801)
(17,221)
(17,851)
(18,093)
plus Laundry
.2.50%
4,585
4,679
4,796
4,916
5.039
6,165
6,294
6,428
5,562
5,701
5,843
6.989
8.139
Gross Eff -iJve Income
11,251
255,803
261,993
268,543
275,257
2B2,138
289,192
296,422
303,832
311,428
319,214
327,194
335,374
343.7 8
Opemfln9 EXPenses
3.50%
(216,716)
(223,266)
(231,081)
(239,169)
(247,539)
(268203)
.(286,170)
(274,461)
(284,057)
(293,999)
(304,289)
(314,939)
(325,982)'
OpersBng Reserves
314,751
332,765
349,086
363,512
293,205
-.
Replacement Reserves
0.6%
(14,400)
(14400)
(15,120)
(15,120)
(15,120)
(15,120)
(15,120
(� 15'878)
(15,878)
18 182
(15,876)
X6;876)
16,670)
Net Operating income
26,487
2,327
22,343
20,988
19,479
17,868
8,13
13,505
11,495
9,338
7,029
4,558
1,126
from Reserves
0
0
0
0
521
2,131
3,889
6,495
8,505
10,661
12,971
15,441
18,874
Debt S-I a Coverage
1.274
1.216
1.117
1.048
0.974
0.693
0.607
0.675
0.576
0.467
0.351
0.228
0.056
MHP Debt Servlca
0.42%
(8,623)
(8,623)
(8,623)
(8,623)
(8,623)
(8,823)
(8,623)
(8,623)
(8,623)
(8,623)
(8,623)
(8,623)
(8,623)
Debt Service
(11,37-7)
(11,377)
(11,377)
(11,377)
(11,377)
(11,377)
(11,377)
,377)
(11,377)
(11,377)
(11,377)
(11,377)
(11,377)
NET CASH FLOW
5,487
4,327
2,343
968
0
0
0
0
0
0
0
0
0
TCAC Cash Flow Test
Masimum MHPIUnit DlstilDLAon
2%
762
777
793
808
825
841
858
875
892
910
929
947
966
Per Unit D151:10u8an
17,520
17,870
18,228
18,592
18,964
19,343
19,730
20,125
20,627
20,938
21.357
21,784
22,219
Not CashfioW Available for Dissibution
6,487
4,327
2,343
968
0
0
0
-00
0
0
0
0
30% of additional Cashllow
0
0
0
0
0
0
0
0-
0
0
0
0
0
Total Amount Available for DlsotbWon 9 no defamed fee
5,487
4,327
2,343
968
0
0
0
0
0
0
0
0
0
Total Amount Available for Distribution if defered fee
5,487
4,327
2,343
968
0
0
0
0
0
0
0
0
0
Deferred Development Fee 140,000 0 0 0 0 0 0 0 0 0 0 0 0 0
Partnership Management Fee
Operating fteaerves 3.00% 0 0 0 0 (521) 2,131 3,869) (8,485) _(12,871) (15,441) (16,879)
Resi uel ash Flow 5,487 4,327 2,3d3 888 (521 (2,131) (3,888) (,496) - (8,505) (10,881) (12,971) (16,441) (18,874)
Dispersed to City Loans 44% 2,390 1,865 1,021 422 0 0 0 0 0 0 0 0 0
Dispersed to MHP 56% 3,097 2,442 1,322 - 547 0 0 0 0 0 0 0 0 0
Interest on Reserves
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036'
2037
fi-Wisf Operating Reserves
0
0
0
0
0
0
0
0
- 0
0
0
0
0
Replacement Reserves
14,400
14,400
15,120
15,120
15,120
16,120
16,120
15,878
15,876
15,876
15,878
15,876
18,670
OPera9ng Reserves
0
0
0
0
0
0
0
0
0
0
0
0
0
Debt S- 1- Coverage
0
0
0
0
(521)
(2,131)
(3,869)
(6,495)
(8,505)
(10,861)
(12,971)
(15,441)
(16,874)
Replacement
0
0
(72,000)
0
0
0
0
(75,800)
0
0
0
- 0
(78,380
ore Reserves
14,400
14,400
(56,860)
15,120
4,599
12.089
11,251
66,21)
7,371
,2
2,
(81,584)
Intereac
4.00% 10,373
11,364
9,M3
10,530
11,535
12,516
13,467
11,357
12,108-
12.799
13,427
13,981
11,277
Cumulative Reserves
269,703
295,457
248,130
273,780
299,915
325,419
350,137
2B ,275
314,751
332,765
349,086
363,512
293,205
Vida Nueva update w40% units 4 -18.06 4/2712006
Operating Income
Vida Nueva, formerly COTS Commons
Gross/
Utility/
Rent/
Months
vacancy
Vacancy
Low income
(page 4)
Total
Uniumc
Unit/mo
Unl!/mo
Baselmo
Year
Yearl
%Incr /yr
% Year 1
a -
9 p-
o
u io
rant
decrease under
2004
0.00
0
Ona Bedroom
0
OPERATING INCOME ASSUMPTIONS
41
798
0
12.0
0
2.5%
5.0%
6.0%
0
TV.droom
0
1006
51
965
Gross/
Utility/
RenV
2.5%
Months
5.0%
- o
Vacancy
Vacancy
0
1184
VERY LOW INCOME
30%
Total
Unumo
UnlVmo
Un1Umo
Baselmo
Year
Year
%Incr /yr
%Yeer1
A fter
1297
Oauere reel
0
One Bedroom
0
2
419
41
378
756
12.0
9,072
2.5%
6.0%
6.0%
0
1.40
Two Bedroom
14u
5
503
51
462
2260
12.0
27,120
2.5%
6.0%
50%
-
4,428
Throe Bedroom
5
582
69
523
2615
12.0
31,380
2.5%
'5.0%
ioA
838
3,6710
Four Bedroom
3%
0
648
57
5131
0
12.0
0
2.5%
5.0%
5.0%
q
Totaf.rAvaraq.
o
Total SF =
22,512
unit fraction
100.000%
11,698
SF Fraction
100.000%
Grose/
Utility/
Rant/
Months
Vacancy
Vacancy
Very Low Income
40.0%
Total
Unit/mo
Unit/mo
Unit/mo
Base /mo
655,600
Year
%Incdyr
% Year I
%After
Su o
One Bedroom
2
522--
559
3Q-
41
518
1038
fS1-
12.0
12,437
Sdy.
2.6%
b.Q%
5.0%
5.0%
8.0%
6
1,408,
Two Bedroom
2
670
51
819
1239
12.0
14,866
25%
6.0%
610%
1,786
Three Bedroom
2
776
59
717
1434
1210
17,206
2.6%
6.0%
6.0%
21348
1- Bedroom
0
865
67
798
0
12.0
0
2.6%
5.0%
5.0%
q
Total or Average
5,524
Grose/
U811tyl
RenV
Months
- Vacancy
Vacancy
2605
Ve Low lncom
50.0%
Total
Unit/mo
Uniumo
UnlUmo
Baee /mo
Yawl
Yeert
% In<r r
%Year1
%Attar
too ron_�s
tU 0
500%
0
1.60{
0
One Bedroom
50.0%
0
698
4/
658
0
12.0
0
2.5%
5.0%
6.0%
1,698'
0
Two Bedroom
50.0%
2
838
51
Y87
1574
12.0
16,688
2.6%
5.0%
6.0%
1,876
1,766
Three Bedroom
50.0%
3
970
59
911
2733
12.0
32,796
2.5%
S.0%
6.0%
1,940
91622
Four Bad-
50.0%
0
1081
67
1014
0
12.0
0
2.5%
5.0%
5.0%
2,182
2
ota or vera9e
5,290 -
Vida Nueva update 140% units 4 -18-06
4/27/2006
Gross/
Utility/
Rent/
Months
vacancy
Vacancy
Low income
60.0%
Total
Uniumc
Unit/mo
Unl!/mo
Baselmo
Year
Yearl
%Incr /yr
% Year 1
%After
u io
0
Ona Bedroom
0
839
41
798
0
12.0
0
2.5%
5.0%
6.0%
0
TV.droom
0
1006
51
965
0
12.0
0
2.5%
5.0%
5.0%
- o
Three Bedroom
0
1184
59
1105
0
12.0
0
2.5%
b.0%
5.0%
0
Four Bedroom
0
1297
87
1230
0
12.0
0
2.5%
5.0%
5.0%
q
total or Y-9e
0.000%
0
0
14u
U
2,5%
5.0%
5.0%
0
Managers Unit
wo a room
1
838
0
838
838
12,0
10,056
3%
5%
5%
68,4
Total SF =
22,512
unit fraction
100.000%
SF Fraction
100.000%
Average AMI
35.4%
Vida Nueva update 140% units 4 -18-06
4/27/2006
Operating Expenses
Vida Nueva, formerly COTS Commons
(page 5)
OPERATING EXPENSES
2008
Average/
2008
2008
Incrtyr
2013
OPERATING ASSUMPTIONS
base
Uniumo
Months
Total
Peroent
2020.
20,889
Management Fee
13,824
48.00
12
13,824
3,50
15,327
Marketing
375
1.30
12
375
3.50
-
A -untin9 Fee
2,304
8.00
12
2,304
3,50
388
Annual Audit
6,000
20.83
12
6,000
3.50
3,034
Legal
750
2.60
12
750
3.50
Accounting Fee
On -site Manager
22,500
78.12
12
22,500
3.50
7,376
Asst Manager(.)
0
0.00
12
0
3.50
9,384
Managers Rent Allowance
10,058
34.92
12
10,056
3.50
861
Other Payroll
2,880
10.00
12
2.880
3.50
I m
Payroit Taxes
5,000
17.36
12
5,000
3.50
803
24,103
Supplies
1,350
4.69
12
1,350
3.50
30j665
Pest Control
1,152
4.00
12
1,152
3.50
Grounds
4,320
15,00
12
4,320
3.50
0
Interior Painting & Decorating
1,125
3.91
12
1,125
3.50
0
General M.hc & Repairs
9,643
33.48
12
9,643
3.50
11,943
Trash Removal
7,200
25.00
12
7,200
3,50
15,195
Electridty
4,500
15.62
12
4,500
3.50
3,193
Water &Sewer
14,760
51,25
12
14,760
3,60
4,083
Gas
3,000
10.42
12
3,000
3,50
Annual
Property /Liability /earthquake Insurance
5,184
.18.00
12
5,184
3.50
Operating
Miscellaneous
2,475
8,59
12
2,475
3.50
ExoensesNnit
1,350
1,800
6.25
12
1,800
3.50
5,008
Fees & Assessments
Total or Average
120,198
417.35
na
120,198
3.50
2,111
OPERATING EXPENSES
2008
2009
2010
2011
2012
2013
2014
16,993
2015
17,588
2016
18,204
2017:
18j841
2013
19,500
2019
20,183
2020.
20,889
2021
21,620
2022
22,377
Management Fee
13,824
14.308
14,809
15,327
15,863
16,419
'494
'511
529
547
567
'586
607
Marketing
375.
388
402
416
2,554
430
2,644
445
2;736
461
2,832
477
2,931
3,034
3;140
3,250
3,364
3,482
3,603
3,729
Accounting Fee
2,304
2,385
2,468
6,427
6,652
6,885
7,126
7,376
7,634
7,901
8;177
8,464
8,760
9,066
9,384
9,712
Annual Audft
6,000
6,210
832
861
891
922
954
988.
1i022
1,058
I m
1,133
1,173
1,214
Legal
750
22,500
776
23,288
803
24,103
24,946
25.819
26,723
27,658
28,626
29,628
30j665
31,738
32,849
33,999
35,189
38,421
On -site Manager
0
0
0
0
0
0
0
0
0
0
0
0
0
Asst Managers)
0
10,058
0
10,408
10,772
11,149
11,539
11,943
12,361
12,794
13,242
13,705
14,185
14,681
15,195
15,727
16,278
Mana9afs Rant Allowance
2,880
2,981
3.085
3,193
3,305
3,421
3,540
3,664
3,792
3;925
4,083
4,205
4,352
4,504
4,662
Other Payroll
5,000
5,175
6,356
5,544
6,738
5,938
6,146
6,361
6,584
81814
7,053
7,300
7,555
7,820
8,093
Payrolt Taxes
1,350
1,397
1,446
1,497
1,549
1,603
1,859
1,718
1,778
1!640
1,904
1,971
2,040
2,111
2,185
Supplies
1,152
1,192
1,234
1,277
1,322
1,368
1,416
1,460
1,517
11570
11625
1,882
1,741
7,802
1,885
Pest Control
4,320
4,471
4,628
4,790
4.957
6,131
5,310
5,496
5,689
5888
6,094
6,307
6,528
6,756
6,993
Grounds
1,125
1,164
1,205
1,247
1,291
1,336
.7,383
7,431
1,481
1',533
1,587
1,642
1,700
1,759
1,821
Intenor Painting &Decorating
9,643
9,980
10,330
10,691
1 ;,066
11,453
11,854
12,269
12,698
131142
13,602
14,078
14,571
15,081
15,609
General Malnt. & Repairs
7,200
7,452
7,713
7,983
6,262
8,551
8,851
9,160
9,481
91813
10,156
10,512
10.880
11,260
11,855
Trash Removal
4,500
4,658
4,821
4,989
5,164 -
5,345
5,532
5,725
5,926
64133
6,348
6,570
6,800
7,038
7,284
Eledncity
14,760
15,277
15,811
18,365
16,937
17,530
16,144
18,779
79,438
20'116
20,620
21,549
22,303
23,084
23,892
Water &Sewer
3.000
3,105
3,214
3,326
3,443
3,583
3,688
3,817
3,950
4089
4,232
4,380
4,533
4,692
4,656
Gas
Property /Llability /earthquake insurance
5,184
5,365
5 -,553
5,748
5,949
6,167
8,372
6,595
8,826
7085
7,313
3,491
7,568
3,613
7,833
3,740
8,108
3,871
8,391
4,006
Miscellaneous
2,475
2,582
2,651
2,744
2,340
2,940
3,042
3,149
3,259
2,370
31,373
21,453
2,539
2,628
2,720
2,815
2,914
Fees & Assessments
1,800
1,863
1,928
.1,996
2,066
2,138
2,213
147,754
2,290
152,925
758,278
183,817
169,551
175,485
181,627
187,984
194,564
Total
120,198
124,405
128,759
133,266
131,930
142,757
4/27/2006
Vida Nueva update W 40%. units 4 -18 -06