2007/03/13 City Council Resolution 2007-37RESOLUTION NO. 2007 -37
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING DEFERRAL OF CERTAIN DEVELOPMENT
RELATED FEES IN CONNECTION WITH THE "VIDA NUEVA" AFFORDABLE
HOUSING PROJECT PROPOSED BY BURBANK HOUSING DEVELOPMENT
CORPORATION
WHEREAS, Burbank Housing Development Corporation or its assignee ( "Developer ")
is developing certain real property located at 705 Rohnert Park Expressway ( "Property "); and
WHEREAS, Developer is developing the Property as an affordable housing project
known as the Vida Nueva ( "Project ");
WHEREAS, Developer has requested that the City defer collection of the fees defined in
that certain Agreement for Deferral of Payment of Certain Development Related Fees ( "Deferred
Fees "), attached and incorporated herein as Exhibit A ( "Deferral Agreement ") which would
normally be paid when the building permit(s) are issued for the Project, together with a "Deed of
Trust" securing Developer's obligations under the Deferral Agreement, including repayment of
the Deferred Fees attached and incorporated herein as Exhibit B; and
WHEREAS, the City's Housing Element authorizes the City Council to defer the
payment of permit, inspection, and development impact fees for affordable housing projects; and
WHEREAS, in furtherance of the City's Housing Element goals for affordable housing,
the City desires to defer payment of the Deferred Fees by Developer for the Project until the time
it closes permanent financing for the project or thirty (30) months from the commencement of the
project construction, whichever date comes first; and
WHEREAS, the Deferral Agreement contemplates assignment of the Deferral
Agreement and the Deed of Trust to the CDC, and further contemplates subordination thereof to
Project construction financing.
BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby
authorize and approve the Deferral Agreement, the Deed of Trust, and deferral of the Deferred
Fees by Developer for the Project until the time Developer closes permanent financing for the
Project or thirty (30) months from the commencement of Project construction, whichever date
comes first.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the Deferral Agreement for and on behalf of the City of Rohnert Park, make minor
non- substantive changes thereto, to execute the assignment and subordination documents
contemplated therein, and to execute such other documents, and to take such other steps that are
necessary to effect such assignment and such subordination.
DULY AND REGULARLY ADOPTED this 13th day of March, 2007.
CITY OF ROHNERT PARK
o",_ U
Ma or Pro empore
ATTEST:
City Clerk
BREEZE: AYE MACKENZIE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: ABSENT
F AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
(2)
Exhibit A
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, CA 94928
Attn: City Manager
Space above this line for recorder's use only. Exempt
from recording fees per Gov. Code Section 27383.
AGREEMENT FOR DEFERRAL OF PAYMENT OF CERTAIN
DEVELOPMENT RELATED FEES
CITY OF ROHNERT PARK
AND
BURBANK HOUSING DEVELOPMENT CORPORATION
THIS AGREEMENT FOR DEFERRAL OF PAYMENT OF CERTAIN DEVELOPMENT
RELATED FEES ( "Agreement ") is dated as of March , 2007 and entered into between the City of
Rohnert Park, a California municipal corporation ( "City ") and Burbank Housing Development Corporation,
a California nonprofit public benefit corporation ( "Developer ").
RECITAL
A. Developer is developing certain real property located in the City of Rohnert Park, California
( "Property "), as more particularly described on Exhibit "A" attached and incorporated by reference
into this Agreement.
B. Developer is developing the Property as an affordable housing project known as Vida Nueva
( "Project "). Developer intends to transfer the Project to Vida Nueva Partners, L.P., a California
limited partnership ( "Partnership "), a limited partnership in which Developer is the managing
general partner.
C. Developer has requested that the City defer collection of Deferred Fees, as defined below, which
would normally be paid when the building permit(s) are issued for the project. The City has
agreed to defer payments of said fees, provided the conditions set forth in this Agreement are met.
AGREEMENT
Now therefore, for good and valuable consideration, receipt of which is hereby acknowledged, the
parties agree as set forth below. The foregoing recitals are incorporated by reference into this Agreement,
as though full restated herein.
1. Deferred Fees:
"Deferred Fees" means the following fees imposed by the City of Rohnert Park:
Building Permit Fee:
$14,682.65
Plan Review Fee:
12,263.79
Electrical Fees:
641.95
Mechanical Fees:
514.16
Plumbing Fees:
769.74
State Strong Motion Fee:
348.60
Sewer Service Connection Fee:
197,352.00
9905l2vIB 80078/0022
Public Facility Fee:
215,424.00
Special Water Connection Fee /per acre dev:
32,329.88
Water/Wastewater Conservation Fee:
7,800.00
Technology Fee:
1,101.20
General Plan Maintenance:
17,430.00
Fire Service Plan Check:
954.37
Fire Service Inspection:
468.27
$503,080.60
The total amount of these fees for the project will be five hundred three thousand, eighty dollars
and sixty cents. ($503,080.60)
2. Payment of Development and Impact Fees
(A) Basic Obligation. ,
This Agreement does not modify in any way the amount of Deferred Fees and other development
and impact fees due for the improvements constructed on the real property. Accordingly, Developer, on
behalf of itself, and its successors and assigns, hereby unconditionally promises and agrees to pay when
due all development and impact fees on improvements constructed on the property as part of the Project,
except for the Deferred Fees identified herein, which shall be paid by Developer in the amounts and at the
times as provided in this Agreement. The provisions of the first sentence of this Section 2 shall run to both
the City and the Commission in the event of an assignment to Commission as set forth in Section 3, below.
(B) Timing of Payments
Developer shall pay the specified Deferred Fees at the time it closes permanent financing for the
Project or thirty (30) months from the commencement of Project construction, whichever date occurs first
3. Security
The performance and payment obligations of Developer to City under this Agreement shall be
secured by a deed of trust recorded against the Property ( "Deed of Trust ") in the standard form, as in
customarily used in Sonoma County commercial real estate transactions by North American Title
Company, at the time this Agreement is executed. In connection with this transaction and obtaining the
Deed of Trust on the property to secure this Agreement, Developer shall pay for all recording costs, escrow
fees and an ALTA lender's policy of title insurance in favor of the City in an amount equal to the full
amount of the deferred fees and all interest which will be due thereon under this Agreement. In the event
of an assignment to the Community Development Commission of the City of Rohnert Park
( "Commission ") Developer shall pay for such in favor of Commission.
4. Assignment and Subordination
(A) Assi nment:
City agrees to assignment of this Agreement and the Deed of Trust to the Partnership. Such
assignment shall not require additional approval by the City Council. Developer agrees to assignment of
this Agreement and the Deed of Trust to the Commission. The parties acknowledge and agree that no such
assignment shall affect priority of this Agreement or the Deed of Trust. Upon such assignment, City shall
be fully released from any and all obligations to Developer hereunder, except as expressly provided herein.
(B) Subordination:
990512v1B 80078 %0022
City agrees to subordination of this Agreement and the Deed of Trust to any construction
financing obtained in connection with the development of Vida Nueva affordable housing project and the
execution of any such subordination agreement. In the event that construction financing is converted to
permanent financing this subordination shall no longer be in effect.
(C) Authority:
The City Council shall authorize City Manager and the Commission's Executive Director to
execute any documents or agreements necessary to carry out the assignment or subordination described
herein. Execution of such agreements shall not require additional approval by the City Council.
Further Conditions
Notwithstanding any other provision of this Agreement to the contrary, the City shall not be
obligated in any way to do the final building inspection and /or give final approval(s) for any structure
constructed on the property if the Deed of Trust securing this Agreement, is rendered worthless by
foreclosure, a deed in lieu of foreclosure or by any other means, including foreclosure of a superior lien, or
in the event the Project fails in any manner or is likely to fail its intended purposes because of events which
now or hereafter occur, unless all sums (including Deferred Fees) due under this Agreement are timely paid
in full. The provisions of this Section 4 shall run to both the City and the Commission in the event of an
assignment to Commission as set forth in Section 3, above.
6. No Joint Venture Relationship
The relationship between City and Developer is that of a lender /borrower and not that of a joint
venture. Developer is not the agent of the City for any purposes in connection with this Agreement.
7. Entire Agreement
This Agreement constitutes the entire Agreement between the parties.
8. Severability
If any term, provision, covenant or condition of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
9. Notices
Any notices and payments called for by this Agreement shall be personally served or served by
first -class mail on the parties at the following addresses:
To City: City of Rohnert Park
6750 Commerce Blvd.
Rohnert Park, CA 94928
Attn: City Manager
To Developer: Vida Nueva Partners, L.P.
790 Sonoma Avenue
Santa Rosa, CA 95404
Attn: Managing General Partner
To Commission
after assignment: Community Development Commission
of the City of Rohnert Park
990512013 80078/0022
6750 Commerce Blvd.
Rohnert Park, CA 94928
Attn: Executive Director
10. Conditions to Assignment
The rights and obligations under the Agreement are based upon the special skills and abilities of
the parties and there shall be not any assignment of such rights or obligations by either party without the
written consent of the other party except as expressly set forth in Section 3.
11. Remedies
In addition to any other remedy provided by law or granted elsewhere under this Agreement, the
City may elect to seek in a court of appropriate jurisdiction such injunctive orders as are necessary to
secure performance by Developer, its successors and assigns, of its commitments and obligations under this
Agreement. In any such action, the City shall, in addition to injunctive relief, be entitled to the full scope
of remedies afforded by law, including such damages as are allowed for breach of this Agreement.
Developer agrees to pay the following costs, expenses and attorneys' fees paid or incurred by the
City or adjudged by a Court: (a) all out -of- pocket costs and expenses, and attorneys' fees paid or incurred in
the drafting and negotiation of this Agreement; (b) all out -of- pocket costs and expenses, and attorneys' fees
paid or incurred in connection with the collection, enforcement or foreclosure sale of any security for this
Agreement, or of any covenant of this Agreement, whether or not suit is filed; (c) costs of suit and such
sums the Court may adjudge as attorneys' fees in any action to enforce payment of all or any amounts due
under this Agreement; and (d) costs of suit and such sum as the Court may adjudge as reasonable attorneys'
fees in any other litigation or controversy connected with the enforcement of this Agreement.
12. Headings Not Part of Agreement; Interpretation
The headings used in this Agreement are not part of the Agreement and will not be considered in
this interpretation. The words "include" and "including" shall in all instances be interpreted as though
followed by the words "without limitation." This agreement shall be construed and enforced in accordance
with the laws of the State of California.
13. Modifications to Agreement
This Agreement may be modified or amended only by subsequent written agreement signed by
each of the parties to this Agreement. Minor modifications of this Agreement may be signed by the City
Manager (or, after assignment by the Commission's Executive Director), so long as the basic intent, scope
and intent are not materially altered. Such changes include, but are not limited to subordination
agreements, assignments, and changes in fees specifically deferred through this Agreement.
Failure by City to insist upon the strict performance of any of the provisions of this Agreement by
Developer, or the failure by City to exercise its rights upon the default of Developer, shall not constitute a
waiver of City's right to insist upon and demand strict compliance by Developer with the terms of this
Agreement thereafter.
14. Default
Developer agrees to comply with all of the terms, conditions and requirements of any note, or
other obligation, secured by a Deed of Trust or otherwise constituting a lien on the property, which is
superior in priority to the Deed of Trust securing the performance and payment obligations of Developer
under this Agreement. In the event that Developer shall fail to comply with all of the terms, conditions and
requirements of any such Deed of Trust or other obligation secured by, or constituting such a superior lien
on the property so as to result in a default thereunder, such a failure on the part of the Developer shall
990512v1B 80078/0022 4
constitute a substantial and material default by Developer under this Agreement and shall entitle City, at its
option, to exercise any and all remedies available to it in the event of a default by Developer hereunder.
15. Binding on Successors
Developer and each person executing this Agreement on behalf of Developer does hereby
covenant and warrant that (a) Developer is duly organized and validly existing under the laws of the State
of California; (b) Developer has and is duly qualified to do business in California; (c) Developer has full
power and authority to enter into this Agreement and to perform all of its obligations hereunder; and
(d) each person (and all of the persons if more than one signs) signing this Agreement on behalf of
Developer is duly and validly authorized to do so. This Agreement is binding on the successors and assign
of the parties and constitutes a covenant which runs with the property.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
BURBANK HOUSING DEVELOPMENT CITY OF ROHNERT PARK
CORPORATION
By:_
Title:
Its:
By:_
Title:
Its:
9905120 B 80078/0022
C
APPROVED AS TO FORM:
City Attorney
Exhibit B
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Community Development Commission
6750 Commerce Boulevard
Rohnert Park, CA 94928
Attn: Executive Director
Space above this line for recorder's use only. Exempt from
recordingfees per Gov. Code Section 27383.
ASSIGNMENT OF DEED OF TRUST AND
AGREEMENT FOR DEFERRAL OF PAYMENT
OF CERTAIN DEVELOPMENT RELATED FEES
FOR VALUE RECEIVED, the undersigned, City of Rohnert Park, a California municipal
corporation ( "Assignor "), hereby assigns and transfers to the Community Development
Commission of the City of Rohnert Park, a public body, corporate and politic ( "Assignee ") its
entire right, title and interest in, to and under that certain Deed of Trust executed by Burbank
Housing Development Corporation, a California public benefit nonprofit corporation
( "Developer "), as Trustor, for the benefit of Assignor, as beneficiary, dated March , 2007,
and recorded in the Official Records of in
County, California on , 2007, as Instrument No. and
that certain Agreement for Deferral of Payment of Certain Development Related Fees entered
into between Assignor and Developer, dated March , 2007 and recorded in the Official
Records of in County, California on ,
2007, as Instrument No. , and Assignee accepts such assignment.
Dated: 2007
ASSIGNOR:
City of Rohnert Park
By:
Title:
Attest:
ASSIGNEE:
Community Development Commission
of the City of Rohnert Park
By:_
Title:
Attest:
992661 v I A 80078/0042
State of California
County of
On , 2007, before me, 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 /their authorized capacity(ies), and they by his/her /their
signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
(Signature of Notary)
(Seal of Notary)
992661 v1 A 80078/0042