2005/06/07 City Council Agenda PacketJudy Hauff
City Clerk
City of Rohnert Park06750 Commerce Boulevard* Rohnert Park, Cal City Hall
Phone: (707)588-2227 ♦ FAX: (707)588-2274 o WEB: www.rpcity.o
CONCURRENT MEETINGS
ROHNERT PARK CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION.
SPECIAL MEETING
AGENDA
Tuesday, June 7, 2005
MEETING LOCATION: CITY HALL - COUNCIL. CHAMBERS
6750 Commerce Boulevard, Rohnert Park, California
8:30 a.m.
CITY COUNCIL/CDC SPECIAL MEETING - Call to Order
Roll Call (Flores_ Smith Spradlin _Vidak-Martinez_ Mackenzie
Unscheduled public appearances: For public comment on agenda items (limited to 3-5 minutes
per person, or allocation of time, based on number of speaker cards submitted, not to exceed a 30 minute
total time limit) [G.C.54954.3(a)]
ITEMS FOR DISCUSSION &/OR ACTION:
I. Public Hearings of the City Council of the City of Rohnert Park and Community
Development Commission of the City of Rohnert Park on the sale and development of certain
real property located at. 430 & 450 City Hall Drive (APN 143-051-063 & 064) and a 15,135
sq. ft. portion of 500 City Hall Drive (APN 143-051-079) pursuant to a Proposed Affordable
Housing Agreement between the Commission and Burbank Housing Development
Corporation, a California non-profit public benefit .corporation, and referencing a CEQA
Categorical Exemption pursuant to California Code of Regulations, Title 14, Section 15332.
1. Staff Report '
2. CITY COUNCIL PUBLIC HEARING
City Council Resolutions (consecutively and'separately) for Adoption:
a. 2005-163 Authorizing City Manager to accept deed from Community Development
Commission for Public Utility Easement at 430 and 450 City Hall Drive.
■ Council motion
■ Council discussion
■ Council vote'
b. 2005-164 Authorizing deferral of permit, inspection, and development impact fees..
■ Council motion.
■ 'Council discussion
■ Council vote
831673v180078/0012
City of Rohnert Park Concurrent Meetings Agenda (2) June 7 2005
for City CouncitlCommunity Development Commission
3. COMMUNI'T'Y DEVELOPMENT COMMISSION PUBLIC HEARING
Community Development Commission Resolutions (consecutively & separately) for
adoption:-
a.
doption:
a. 2005-03 Approving grant of public utility easement at 430 and 450 City Hall Drive and
authorizing Executive Director to execute deed to the City of Rohnert Park.
■ Council motion
■ Council discussion
■ . Council vote
b. 2005-04 Approving Affordable Housing and Loan Agreement between the Community
Development Commission of the City of Rohnert Park and Burbank Housing
Development Corporation, a California, non-profit public benefit corporation.
■ CDC motion
■ CDC discussion
■ CDC vote
c. 2005-05 Approving sale of certain real property pursuant to Affordable Housing
and Loan Agreement at 430 & 450 City Hall Drive (APN 143=051-063 and
064) and accepting the report prepared in accordance with ' Health and
Safety Code § 33433.
■ CDC motion
- ■ CDC discussion
■ CDC vote
ADJOURN TO CLOSED SESSION TO CONSIDER PUBLIC EMPLOYMENT. City
Manager. Government Code Section 54957(b)(1).
RECONVENE. Mayor's Report on Closed Session (G.C. 54957.1).
ADJOURNMENT no later than 9:30 a.m.
DISABLED ACCOMMODATION: If you have a disability which requires an interpreter or other
person to assist you while attending this City Council meeting, please contact the City Offices at (707)
588-2227 at least 72.hours prior to the meeting to ensure arrangements for accommodation by the City.
Please make sure the City Manager's office is notified as soon as possible if you have a visual
impairment requiring meeting materials to be produced in another format (i.e. audio -tape)
This agenda has been posted in accordance with State Law, The Brown Act
BL -h:060705 AGENDA -SPECIAL -6.7.05
-b1-H:Agenda:Agenda for:special-meeting 6:7=
DATE:
TO:
FROM:
MEMORANDUM
Office of the City Manager
June 3, 2005
X
L Communications I!__7
copy to.
Copy to:
Honorable Mayor Mackenzie and Members of the City Council
Steve' Donley, Interim City Manager
SUBJECT: SUMMARY OF ACTION ITEMS ON THE JUNE 7, 2005 SPECIAL
MEETING AGENDA
PURPOSE:
The purpose of the June 7, 2005 special meeting is to adopt the required land
sale, loan documents, and affordable housing agreements to implement the
mixed-use affordable housing project, "The Arbors," located at 430 & 450 City Hall
Drive.
PROJECT DESCRIPTION:
The Arbors will provide 56 affordable units and approximately 7,500 square of
commercial/retail/restaurant space. Burbank Housing Development Corporation
is the developer chosen by the CDC. The project is located on approximately 1.9
acres owned by the CDC and approximately 15,135 of land owned by the City.
The CDC intends on selling this property to Burbank Housing Development
Corporation at fair market value ($1,335,000 per appraisal dated 12/3/2004).
RESOLUTIONS FOR ADOPTION:
City Council Resolutions
City Council Resolution 2005-163: Authorizing City Manager to accept deed from
Community Development Commission for Public Utility Easement at 430 and 450
City Hall Drive
Adopting Resolution 2005-163 reserves a utility easement along the street
frontage of 430 and 450 City Hall Drive.
3 057
City Council Resolution 2005-164: Authorizing deferral of permit, inspection, and
development impact fees
The Housing Element portion of the City's General Plan has the following policy:
"Minimize governmental constraints on the provisions of housing that is affordable
to lower-income households. To implement this policy, the Housing Element
established the following program: "Consider deferring development fees for
housing projects targeted to lower-income households to ensure project
feasibility." The financing to construct The Arbors requires the deferral of
$750,408 in development fees during the construction phase of the project.
Paying these fees upfront would require the project to obtain additional financing
during the project's construction phase, which is difficult to obtain for non -market
rate, low-income developments. The fees will be paid in full once the project is
completed and long-term, lower interest financing is secured.
Community Development Commission Resolutions
Community Development Commission Resolution 2005-03: Approving grant of
public utility easement at 430 and 450 City Hall Drive and authorizing Executive
Director to execute deed to the City of Rohnert Park
Adopting Resolution 2005-03 reserves a utility easement along the street frontage
of 430 and 450 City Hall Drive. This resolution completes the required Community
Development Commission's portion of City Council Resolution 2005-163.
Community Development Commission Resolution 2005-04: Approving Affordable
Housing and Loan Agreement between the Community Development Commission
of the City of Rohnert Park and Burbank Housing Development Corporation, a
Califomia non-profit public benefit corporation
The primary components of the Affordable Housing and Loan Agreement are the
following:
• Sale of 1.89 acres of Community Development Commission property
located at 430 and 450 City Hall Drive for $1,335,000 (appraised value per
appraisal dated 12/3/2004) to Burbank Housing Development Corp.
• Development of 12 buildings with a total of 56 apartment units and 7,500
square feet of commercial/retail/restaurant space.
• Commission providing a $3,925,000 loan to Burbank Housing. The loan will
accrue at a rate of 2.00% due and payable in 50 years.
• The units will be leased to qualifying tenants at affordable rents for a
minimum period of 55 years.
Funding for The Arbors has been previously approved in the Community
Development Commission's FY 04-05 budget. Approximately $500,000 of the
Commission's loan has already been expended under the approved pre-
development agreement for the project to accomplish the following: demolition of
former PAL building and site clearance, development of architectural plans, and
engineering design. Development of the project not only meets critical affordable
housing needs, but it is entirely consistent with the City Center plan.
Community Development Commission Resolution 2005-05: Approving sale of
certain real property pursuant to Affordable Housing and Loan Agreement;at 430
and 450 City Hall Drive (APN 143-051-063 and 064) and accepting the report
prepared in accordance with Health and Safety Code Section 33433.
State Law (Health and Safety Code Section 33433) requires the Community
Development Commission to analyze the sale of property in terms of:
• Whether the consideration is not less than the fair reuse value of the
property at the use with the covenants, and criteria authorized by the sale
or lease, and
• How the consideration compares to the fair market value at its highest and
best use in accordance with the redevelopment plan.
At the November 14, 2004, Community Development Commission meeting, the
Commission authorized the services of Goldsmith, Mancini LLC to prepare the
analysis required under State Law; this report is attached to the agenda packet.
The report concluded that sale of 430 & 450 City Hall Drive is consistent with State
law.
FUTURE ACTIONS:
The development of The Arbors requires the access and use of an approximately
15,135 square foot parking lot currently used as parking for the Public Safety
building. The Affordable Housing and Loan agreement calls for the replacement of
this lot under the "Parking Lot Improvement Agreement" (Attachment 12). The
development of the additional parking lot in .the City Center area will ensure
adequate parking for the combined public, housing, and commercial/retail uses.
The action to approve the development of the parking lot will be presented to the
City Council at a later meeting.
P
uncil:
Miscellaneous
Communications
Agenda to7 0
NOTICE OF JOINT PUBLIC HEARING OF THE Copy to:
CITY COUNCIL OF THE CITY OF ROHNERT PARK Copy to:
AND THE COMMUNITY DEVELOPMENT COMMISSION OF
CITY OF ROHNERT PARK ON THE SALE AND DEVELOPMENT OF
CERTAIN REAL PROPERTY PURSUANT TO A PROPOSED
AFFORDABLE HOUSING AGREEMENT BETWEEN THE
COMMUNITY DEVELOPMENT COMMISSION AND ARBORS
ROHNERT PARK APARTMENTS, L.P.
AND REFERENCING A CEQA CATEGORICAL EXEMPTION
PURSUANT TO CALIFORNIA CODE.OF REGULATIONS, TITLE 14,
SECTION 15332
NOTICE IS HEREBY GIVEN that the City Council of the City of Rohnert Park
("City Council") and the Community Development Commission of the City of Rohnert
Park ("Commission") will hold a joint public hearing on June 7, 2005, at.8:30 a.m. in the
Administrative Offices located at 6750 Commerce Blvd., California, to consider and act
upon the sale and development of certain real property located at 430 & 450 City Hall
Drive (APN 143-051-063 & 064) and a 15,135 sq. ft. portion of 500 City Hall Drive (APN
143-051-079), pursuant to a proposed Affordable Housing Agreement ("Agreement")
between the Commission and Arbors Rohnert Park Apartments, L.P., a California
limited partnership ("Developer").
In addition, the City Council and Commission will, at the same time and place,
consider the adequacy of the Summary Report pursuant to Section 33433 of the
California Health and Safety Code on the Affordable Housing Loan Agreement by and
between the Community Development Commission of the City of Rohnert Park and
Arbors Rohnert Park Apartments, L.P. ("Summary Report"), and consider all evidence
and testimony on the adequacy thereof.
The proposed Agreement between the Commission and the Developer provides
for the sale and development of certain improved real property located within the
boundaries of the Redevelopment Project area, as depicted on the Site Map, attached to
the Agreement. The proposed project includes development of twelve (12) buildings
829233v1 80078/0022
containing fifty-six (56) residential units with accessory ground floor commercial tenant
spaces along the City Hall Drive frontage, comprised of (a) eight (8) residential
buildings featuring 16 one-bedroom/one-bath flats, twelve (12) two-bedroom/two-
bath townhouses, and twenty (20) three-bedroom/two-bath townhouses, (b) four (4)
mixed-use buildings containing eight (8) two-bedroom/one-bath flats and
approximately 7,500 square feet of commercial space within which the project's
manager's office and community rooms would be housed, (c) ancillary recreational,
open space and parking uses, and (d) appurtenant on-site and off-site improvements to
be constructed.and installed by Developer. Twenty-two (22) of the residential units
shall be affordable to Very Low Income Persons or Households, and thirty-three (33) to
thirty-four (34) of the residential units shall be affordable to Lower Income Persons or
Households and the remaining units shall be available to Lower Income Persons or
Households. The project site is approximately 1.89 acres in size and includes 430 & 450
City Hall Drive (APN 143-051-063 & 064) and a 15,135 sq. ft. portion of 500 City Hall
Drive (APN 143-051-079). A more detailed description of the site is contained in the
proposed Agreement. Pursuant to Health and Safety Code Section 33433, the
Commission has prepared a report in connection with the project containing a copy of
the Agreement and a summary describing the cost of the Agreement to the
Commission, the value of the property interest to be conveyed and other information
required by Section 33433.
Copies of the proposed Agreement and the Commission's report are on file for
public inspection and copying for the cost of duplication at the office of the City Clerk,
City Hall, California, between the hours of 8:00 a.m. and 5:00 p.m., on Monday through
Friday, exclusive of holidays and lunch break of 12:00 p.m. — 1:00 p.m.
r
Interested persons may submit written comments addressed to the Commission
no later than June 6, 2005 at 5:00 p.m.
829233v] 80078/0022
At the time and place noted above, all persons interested in the above matters
may appear and be heard.
DATED: May 25, 2005.
RQHNERi;�a.-r
-CITY OF ROHNERT PARK
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Publish: May 27, 2005 "'�0
00
June 3, 2005
1N-1 060705 PHnotice Arbors Rohnert Park Apartments, L.P.
829233v1 80078/0022
COMMUNITY DEVELOPMENT
CO MISSION OF THE CITY OF
R H RT PA
Executive Viirector Stephen R. Donley
EOR RESO. NO. 0,005Lo3 Council:
CITY OF ROHNERT PARD, I ommunicanons 1 cl;o5
AGENDA ITEM TRANSMITTAL REPORT A end 5
Copy to: GYy�
Meeting Date: June 7, 2005 Copyto:
Department: Engineering
Submitted By: Richard F. Pedroncelli, Senior Engineering Technician
Submittal Date: June 2, 2005
Agenda Title:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING THE CITY MANAGER TO ACCEPT DEED FROM THE
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK,
FOR PUBLIC UTILITY EASEMENT, 430 & 450 CITY HALL DRIVE (APN 143-051-063
& -064)
Requested Council Action: Approve
Summary:
The Community Development Commission of The City of Rohnert Park is granting a public
utility easement across the City Hall Drive frontage of its' property located at 430 & 450 City
Hall Dr., on the date of this meeting. Staff recommends the city council accept the deed.
A portion of City Hall Dr. was vacated on May 24, 2005 by the City Council by Resolution No.
2005-148, with the intent to reserve this Public Utility Easement. This deed is necessary in order
to reserve the easement.
This is consistent with the plans for the development of the The Arbors Apartments, which is
being proposed by Burbank Housing Development Corporation.
CITY MANAGER'S RECOMMENDATION: ( ) Consent Item Regular Time
(�Y) Approval () Public Hearing Required
( ).Not Recommended () Submitted with Comment
( ) Policy Determination by Council
( ) City Comments:
ZvL-i'FX i n...
City Manager's Signature: Date:
RESOLUTION NO. 2005-163
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING THE CITY MANAGER TO ACCEPT DEED FROM THE
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK,
FOR PUBLIC UTILITY EASEMENT, 430 & 450 CITY HALL DRIVE
(APN 143-051-063 & -064)
BE IT RESOLVED by the City Council of the City of Rohnert Park that it does hereby
accept the Deed for a Public Utility Easement.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute the certificate of acceptance for and on behalf of the City Council.
DULY AND REGULARLY ADOPTED this 7`h day of June, 2005.
CITY OF ROHNERT PARK
Mayor
ATTEST:
City Clerk
JH-h:she11s\rsshe11
Recording Requested By
North American Title Company
Order No. 62239579
Escrow No. 56201-62239579-LQH
AND WHEN RECORDED MAIL TO:
Name City of Rohnert Park
Street 6750 Commerce Blvd
Address
City. & Rohnert. Park, CA 94928
State
SPACE ABOVE THIS UNE FOR RECORDER'S USE
PUBLIC UTILITY EASEMENT REED
A.Y.N.
The undersigned granter (s) declare (a): R&T 11911— casement no consideration
Documentary transfer tax is $ NONE City transfer tax is $ NON$
( X ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at time of sale.
( ) Unincorporated area: ( X ) City of Rohnert Park, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Community Development Commission of the City of Rohnert Park, a public body corporate and politic organized under
the laws of the State of California
hereby GRANT(s) to The City of Rohnert Park, a Municipal Corporation
the following described real property in the City of Rohnert Parr County of Sonoma, State of California:
LEGAL Dl1:SCRYPT oN ATTACHED HERETO A3 zxmBrr A AND MADE A PART H REOF.
In Witness Whereof; said corporation has caused its corporate nano; and seal to be affixed hereto and this instrument to be
executed by its thereunto duly authorized.
Dated May 19, 2005
STATE OF CALIFORNIA, Community Development Commission of the City of
)SS. R-ohnert Park
COUNTY OF SONOMA 1
On .2005 before me,
The undersi ngi Notan+Public personally appeared
personally (mown to me (or proved W me on the basis of satisfactory
evidence) to be the person(s) whose names) islare subscribed to the
within instnmwvt and acknowledged to me that helshelthey executed
the sanm in his/he djdr authorized capecity(ies), and that by
hivlmlheir signature(s) on the instrument the person(sl or the entity
upon behalf of which the pe (s) acted, executed the atsawnent.
WITNESS my hand and official seal.
Signature
By: _
Name:
Title:
(This area for offWW notarial MW)
MAIL TAX SAME AS ABOVE
STAMO M'S TO:
NAME ADDR&MS MY. STATE, ZIP
PUBLIC UTILITY EASEMENT
Lying within the City of Rohnert Park, County of Sonoma, State of California, and being a
portion of the lands of the Community Development Commission of the City of Rohnert Park as
described by deed recorded under Document Number 2005- . Sonoma County
Records, said portion being more particularly described as follows:
All that portion of the lands of the Community Development Commission of the City of Rohnert
Park as described by deedrecorded under Document Number 2005- , Sonoma
County Records, lying southerly of the following described lime:
Beginning at a point on the westerly line of said lands, from which the southwest comer of said
_ - - - - lands burs South 00017'00" West, 5.00 f thence leaving saidwesterly line, South 89°43'00" _
East, 13.10 feet; thence on a curve to the right, radius of 113.00 feet, central angle of 13023'00",
length of 2639 feet; thence on a reverse curve, radius of 200.00 feet, central angle of 13 °23'00",
length of 46.72 feet; thence South 89°43'00" East, 304.30 feet; thence on a curve to the left,
radius of 82.00 feet, central angle of 07°04'25", length of 10.12 feet to the easterly line of said.
lands.
Containing 3,712 sq. ft more or less.
See Exhibit "B" for graphic depiction.
This description prepared by Carlile *Macy -
PLS 5143 �
Exp. 6130/07
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RESOLUTION NO. 2005-164
Council• x
Miscellaneous
Communications
- A end p `�
Copy to:
Co y to:
RESOLUTION OF THE CITY OF ROHNERT PARK APPROVING DEFERRAL OF
PERMIT, INSPECTION, AND DEVELOPMENT IMPACT FEES IN CONNECTION
WITH THE "ARBORS" AFFORDABLE HOUSING PROJECT PROPOSED BY
BURBANK HOUSING DEVELOPMENT CORPORATION
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, staff recommends that the payment of permit, inspection, and
development impact fees by Burbank Housing Development corporation for the
"Arbors" Affordable Housing Project be deferred 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.
NOW, THEREFORE, the City Council of the City of Rohnert Park resolves that the
payment of permit, inspection, and development impact fees by Burbank Housing Development
Corporation be deferred 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.
The foregoing Resolution was duly and regularly adopted by the City Council of the City
of Rohnert Park at a meeting thereof, held on the 7th day ofJune 2005, by at least a majority
vote, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
8315420 80078/0012
;Cityof Ro Park
Mayor
Approved
Attorney
form:
RESOLUTION NO. 2005-164
RESOLUTION OF TILE CITY OF ROHNERT PARK APPROVING DEFERRAL OF
PERMIT, INSPECTION, AND DEVELOPMENT IMPACT FEES IN CONNECTION
WITH THE "ARBORS" AFFORDABLE HOUSING PROJECT PROPOSED BY
BURBANK HOUSING DEVELOPMENT CORPORATION
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, staff recommends that the payment of permit, inspection, and
development impact fees by Burbank Housing Development corporation for the
"Arbors" Affordable Housing Project be deferred 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.
NOW, THEREFORE, the City Council of the City of Rohnert Park resolves that the
payment of permit, inspection, and development impact fees by Burbank Housing Development
Corporation be deferred 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.
The foregoing Resolution was duly and regularly adopted by the City Council of the City
of Rohnert Park at a meeting thereof, held on the 7th day ofJune 2005, by at least a majority
vote, to wit:
AYES:
NOES:
ABSTAIN:
City of Rohnert Park
ABSENT: Mayor
Attest: Approved as to form:
City Clerk
8315420 80078/0012
City Attorney
RECORDING REQUESTED BY AND
W11EN RECORDED MAIL TO:
City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, CA 94928
Attn:
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 is dated as of June _, 2005 and entered into between the
City of Rohnert Park_ ("City") and Burbank Housing Development Corporation, a California
nonprofit public benefit corporation ("Developer").
RECITALS
A. Developer is developing certain real property located in the City of Rohnert Park,
California (the "Property"), as more particularly described on Exhibit "A" attached to this
Agreement.
B. Developer is developing the Property as an affordable housing project known as The
Arbors Apartments (the "Project"). Developer intends to transfer the Project to Arbors Rohnert
Park Apartments, L.P., a California limited partnership (the "Partnership"), a limited partnership
in which Developer is the general partner.
C. Developer has requested that the City defer collection of the 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 payment of said fees, provided the conditions set forth in this
Agreement are met.
AGREEMENT
The parties agree that:
Definitions.
(A) Deferred Fees.
"Deferred Fees" means the City of Rohnert Park's:
The total amount of these fees for the project will be
(B) Project.
"Project" means the entirety of The Arbors Apartments.
2. Payment of Development and Impact Fees
(A) Basic Obligation.
This Agreement does not modify in any way the amount of the 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.
(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 on the property in the standard form, as is customarily used
in Sonoma County commercial real estate transactions by North American Title Company, at the
time this Agreement is executed. The Deed of Trust securing Developer's payment obligations
to City under this Agreement may be junior in priority only to existing liens and encumbrances
against the property except as otherwise agreed in writing by City. In connection with this
transaction and the obtaining of 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.
4. 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 oris likely to fail its
intended purposes because of events which not or hereafter occur, unless the Lender pays all fees
due under this Agreement.
5. 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.
6. Entire Agreement
This Agreement constitutes the entire Agreement between the parties.
7. 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.
8. 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 Boulevard
Rohnert Park, CA 94928
To Developer: Arbors Rohnert Park, L.P.
790 Sonoma Avenue
Santa Rosa, CA 95404
Attn: General Partner
9. Conditions to Assignment
The rights and obligations under. this Agreement are based.upon the special skills and
abilities of the parties and there shall not be any assignment of such rights or obligations by
either party without the written consent of the other party. Notwithstanding the previous
sentence, the transfer of the Project from Developer to the Partnership is hereby approved by
City.
10. Remedies
In addition to any other remedy provided bylaw 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 provable and allowed for breach of this Agreement.
11. Headings Not Part of Agreement
The headings used in this Agreement are not part of the Agreement and will not be
considered in its interpretation.
12. 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 Director ofCommunity Development of the City of Rohnert Park, on behalf of the
City, so long as the basic intent, scope and obligations under this Agreement are not materially
altered. Such changes include, but are not limited to, changes in the fees specifically deferred
through this Agreement.
13. 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 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.
14. Binding on Successors
This Agreement is binding on the successors and assigns 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 CITY OF ROHNERT PARK
DEVELOPMENT CORPORATION
Title:
Its:
m.
Title:
ATTEST:
APPROVED AS TO FORM:
City Attorney
Recording Requested By
North American Title Company
Escrow No. 56201-6223941 l -LQI-I
AND WHEN RECORDED MAIL TO:
Name
City of Rohnert Park
6750 Commerce Boulevard
Street
Rohnert Park, CA 94928
Address
Attn:
City
State
KINK
DRAFT FORM
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SMORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS
(CORPORATION)
AY.N.
This Deed of Trust, made this day of 2005, between Burbank Housing Development Corporation,
a California nonprofit public benefit corporation, herein called Trustor,
whose address is 790 Sonoma Avenue, Santa Rosa, CA 95404,
(number and street) (city) (state) (zip)
North American Title Company, a California corporation, herein called Trustee, and City of Rohnert Park, a California
charter city, herein called Beneficiary,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE INTRUST,
NVITH POWER OF SALE, That property in the City of Rohnert Park, County of Sonoma, California, described as
follows:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority
given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by reference to collect
and apply such rents, issues and profits.
For the Purpose of Securing:
1. Performance of each agreement of Trustor incorporated by reference or contained herein: 2. Payment of the
indebtedness evidenced by a fee deferral agreement of even date herewith, and any extension or renewal thereof, for
that certain Agreement for Deferral of Certain Development Related Fees, recorded concurrently herewith, in the
principal sum of executed by Trustor in favor of Beneficiary or order. 3. Payment of such further suns
as the then record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or
notes) reciting it is so secured.
(Page I of 3)
To Protect the Security of This Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the note secured
hereby, that provisions (1) to (14), inclusive, of the fictitious deed of trust recorded in Santa Barbara Countv and Sonoma County October
I S. 1961, and in all other counties October 23, 1961, in the book and at the page of Official Records in the off -ice of the county recorder of
the county where said property is located, noted below opposite the name of the.county, viz.:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNT BOOK PAGE COUNTY BOOK PAGE
Alameda 435 684 Kings 792 833 Placer 895 301 Sierra 29
335
Alpine 1 250 Lake 362 39 Plumas 151 5 Siskiyou 468
181
Amador 104 348 Lassen 171 471 Riverside 3005 523 Solano 1105
182
Butte 1145 1 Los Angeles T2055 899 Sacramento 4331 62 Sonoma 1851
689
Calaveras 145 152 Madera 810 170 San Benito 271 383 Stanislaus 1715
456
Colusa 296 617 Marin 1508 339 San Bernardino 5567 61 Sutter 572
297
Contra Costa 3978 47 Mariposa 77 292 San Francisco A332 905 "Tehama 401
289
Del Norte 78 414 Mendocino 579 530 San Joaquin 2470 311 Trinity 93
366
EI Dorado 568 456 Merced 1547 538 San Luis Obispo 1151 12 Tulare 2294
275
Fresno 4626 572 Modoc 184 851 San Mateo 4078 420 Tuolumne 135
47
Glenn 422 184 Mono 52 429 Santa Barbara 1878 860 Ventura 2062
386
Ilumboldt 657 527 Monterey . 2194 538 Santa Clara 5336 341 Yolo 653
245
Imperial 1091 501 Napa 639 86 Santa Cruz 1431 494 Yuba 334
486
Inyo 147 598 Nevada 305 320 Shasta 684 528
Kern 3427 60 Orange 5889 611 San Diego Series2 Book 1961. Page 183887
(which provisions, identical in all counties, are printed on attached herewith) hereby are adopted and incorporated herein and made a part
hereof as fully as though set forth herein at length; that he will observe and perform said provisions; and that the references to property;
obligations and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth in this Deed of "frust.
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to him at his
address hereinbefore set forth.
STATE OF CALIFORNIA }SS.
COUNTY OF SONOMA i Signature of Trustor
On 2005 before me, Burbank Housing Development Corporation
a California nonprofit public benefit corporation
The undersigned, Notary Public personally appeared
its general partner
By:
personally known to me (or proved to me on the basis of Its:
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 (This area for official notarial seal)
(Page 2 of 3)
FOR RECONVEYANCE SEND 1-0 THE NEAREST OFFICE OF NORTH AMERICAN TITLE COMPANY
REQUEST FOR FULL RECONVEYANCE
Tobe used only when note has been paid in full.
Dated
TO NORT1-1 AMERICAN TITLE COMPANY, Trustee:
The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured by said Deed of
Trust have been fully paid and satisfied; and you are hereby requested and directed; on payment to you of any sums owing to you under the
teens of said Deed of Trust; to cancel all evidences of indebtedness, secured by said Deed of Trust; delivered to you herewith together with
said Deed of Trust, and to reconvey. without warranty, to the parties designated by the terns of said Deed of Trust, the estate now held by you
under the same.
MAIL RECONVEYANCE TO:
(By)
(By)
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures.
Both must be delivered to the Trustee for cancellation before reconveyance will be made.
STATE OF CALIFORNIA }SS.
COUNTY OF
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/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.
Signatu
(Page 3 of 3)
(This area for official notarial seal)
DO NOT RECORD/FOR INFORMATION PURPOSES
SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS (CORPORATION)
The following is a copy of provisions (1) to (14), inclusive. of the fictitious deed of trust. recorded in each county in California, as stated in ilie
foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a pari thereof as if -set forth at length therein.
To Protect the Security of This Deed of Trust. Trustor Agrees:
(1) To keep said property in good condition and repair: not to remove or demolish any building thereon: to complete or restore promptly in good and
workmanlike manner any building which may be constructed. damaged or destuyed thereon and to pay when due all claims for labor performed and
materials furnished therefor; to comply with all laws affecting said properly or requiring any alterations or improvements to be made thereon: not to
commit or peril waste thereof, not to commit, suffer or permit any act upon said property in violation of law: to cultivate, irrigate, fertilize, prune and do
all other acts which from the character or use of said property may be reasonably necessary. the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under
any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Bent tieiary may determine, or
at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive
any default hereunder or invalidated any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the secu ity hereof or the rights or powers of Beneficiary or Trustee: and to
pay all costs and expenses, including cost of evidence of title and anornev's fees in a reasonable sum, in any such actions or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
(4) To pay: at least len days before delinquency all taxes and assessments affecting said property. including assessments on appurtenant water stock;
when due, all encumbrances, charges and liens with interest, on said property or an}, part thereof. which appear to be prior or superior hereto: all costs, fees
and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided. the Beneficiary or Trustee, but without obligation so to do and without notice
to or demand upon Trustor and without releasing Trustor from any obligation hereof. mav: make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof. Beneficiary or Trustee being authorized to enter upon said property for such purposes: appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any incumbrance, charge or lien which in the judgement of either appears to be prior to or superior hereto. and, in exercising any such powers,
pay necessary expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all suns so expended by Beneficiary or Trustee, with interest from date of expenditure at amount
allowed by law in effect at the date hereof; and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured
hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
That any award of damages in connection with any condemnation for public use or injury to said property or any part thereof is hereby assigned and shall
be paid to Beneficiary who may apply or release such moneys received by him/her/them in the same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
(6) That any award of damages in connection with any condemnation for public use or injury to said property or any part thereof is hereby assigned
and shall be paid to Beneficiary who may apply or release such moneys received by him/her them in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sun secured hereby alter its due date, beneficiary does not waive his right either to require prompt payment
when due all other sums so secured or to declare default for failure so to pay.
(8) That at any time or from time to time, without liability therefor and without notice. upon written request of Beneficiary and presentation of this
Deed and said Note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may: reconvey any part of said property, consent to the making of any map or plat thereof; join in granting any easement thereon, or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that all sums secured hereby have been paid. and upon surrender of this Deed and said Note to
Trustee for cancellation and retention and upon payment of its fees. Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof of the tuthfulness thereof: The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto." Five years atter issuance of such full reconveyance. Trustee may destroy this document
(unless directed in such request to retain it).
(10) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property. reserving unto Trustor the right, prior to any default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time without notice. either in person. by agent. or by a receiver to be appointed by a court, and
without regard to adequacy of any security for the indebledness hereby secured enter upon and take possession of said property or any part thereof, in
his/her/their own name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may
determine. The entering upon and taking possession of said property, the collection o1 such rents issues and profits and the application thereof as aforesaid,
shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(1 I) That upon default by trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may
declare all sums secured hereby immediately due and payable by delivery to Trustee o1 written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit
with Trustee this Deed, said Note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and -notice of sale having been given as
then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice o1 sale, either as a whole or
in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at
time of sale. Trustee may postpone sale of all or any portion of said property by public amhouncement at such time and place of sale and from time to time
thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its
deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters of facts shall be
conclusive proof of the truthfulness thereof. Any person, including,Trustor. Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs; fees and expenses of Trustee and of Ibis Trust, including cost, of evidence of title in connection with sale, Trustee shall apply
the proceeds of sale to payment of: all suns expended under the leans hereof. not the repaid, with accrued interest at the amount allowed by law in effect
at the date hereof; all other suns then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secued hereby, may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said
instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name
and address of the new Trustee.
(13) That this Deed applies to inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors
and assigns. The tern Beneficiary shall mean the owner and holder, including pledgees, of the Note secured hereby, whether or not named as Beneficiary
herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the
plural.
(14) That trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor , Beneficiary or Trustee
shall be a party unless brought by Trustee.
"EXHIBIT A"
LEGAL DESCRIPTION
FOR CDC RESO. NO. �2 OC6 03
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT P.
AGENDA ITEM TRANSMITTAL REPORT Council:
Meeting Date: June 7, 2005 4 omm
P►gend
Department: Engineering C py to:
Com to:
Submitted By: Richard F. Pedroncelli, Senior Engineering Technician
Submittal Date: June 2, 2005
Agenda Title:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF ROHNERT PARD, APPROVING GRANT OF PUBLIC UTILITY EASEMENT
AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE DEED TO THE
CITY OF ROHNERT PARK, 430 & 450 CITY HALL DRIVE, (143-051-063 & -064)
Requested Commission Action: Approve
Summary:
The Community Development Commission of Rohnert Park is the owner of the subject
properties, located at 430 & 450 City Hall Drive. Staff is working on the sale of the subject
property to Burbank Housing Development Corporation. Burbank's proposed development, as
approved by the Rohnert Park Planning Commission on June 24, 2004 by PC Resolution No.
2004-28, requires the vacation of a portion of City Hall Drive. The portion of City Hall Dr. was
vacated by the city council at its' regular meeting on May 24, 2005 by Resolution No. 2005-148
with the reservation of this Public Utility Easement. This deed is necessary in order to reserve
the easement.
Staff recommends the Commission approve the grant of the Public Utility Easement at this time.
Attached is a draft deed with legal description & Plat.
CITY MANAGER'S RECOMMENDATION: () Consent Item Regular Time
)�t) Approval () Public Hearing Required
( ) Not Recommended O Submitted with Comment
( ) Policy Determination by Council
( ) City Comments:
v►1
City Manager's Signature:2CVeDate: 6 �I
Ka
RESOLUTION NO. 2005-03
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF ROHNERT PARK, APPROVING GRANT OF PUBLIC UTILITY EASEMENT
AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE DEED TO THE
CITY OF ROHNERT PARK, 430 & 450 CITY HALL DRIVE, (143-051-063 & -064)
BE .IT. RESOLVED by the Community Development Commission of the City of
Rohnert Park that it does hereby approve the granting of a Public Utility Easement to the City of
Rohnert Park.
BE IT FURTHER RESOLVED that the Executive Director is hereby authorized and
directed to execute the deed for and on behalf of the Commission.
DULY AND REGULARLY ADOPTED this 7th day of .Tune , 2005.
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNERT PARK
Chairperson
ATTEST:
Secretary
IH-h:shel Is\rsshell
Recording Requested By
North American Title Company
Order No. 62239579
Escrow No. 56201-62239579-LQH
AND WHEN RECORDED MAIL TO:
Name City of Rohnert Park
Street 6750 Commerce Blvd.
Address
City & Robnert Park, CA 94928
State
SPACE ABOVE THIS UNE FOR RECORDER'S USE
PUBLIC UTH Tx EASENdEI1TT DEED
A.Y.N.
The undersigned grantor (s) declare (s): R&T 11911— easement no camsideration
Documentary transfer tax is Qty tranafer tax is $ NONE
( X ) computed on full value of property conveyed, or
( ) computed on full value las value of liens and encumbrances remaining at time of sale.
( ) Ud=rporated area: ( X ) Qty of Robrert Park, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby aclmowledged,
Community Development Commission of the City of Rohnert Park, a public body corporate and politic organized under
the laws of the State of California
hereby GRANT(s) to The Qty of Rob wrt Park, a Municipal Corporation
the following described real property in the City of Rohnert Park, County of Sonoma, State of California:
LEGAL DBSCRI MON ATTACHED HERETO AS EXHIBIT A AND MADE A PART HEREOF.
In Witness Whereat; said corporation has caused its corporate and seal to be affixed hereto and this instrument to be
executed by its thereunto duly authorized.
Dated May 19. 2005
STATS OF CALIFORNIA,
AS.
COUNTY OF SONOMA
On .2005 betbre me,
011=-T-7 =71170140-1-734TMIM
personally knowm to ire (or proved to me on the basis of satisfaaory
evidence) to be the person(s) whose names) idere subscribed to the
within inst vnwnt and ad=wWgW to me chit heisheldW executed
the same in hial mlibeir authorized cmmciWesl and dud by
hisihea%%eir signatwr(c) on the ins nunent the pia), or the entity
neon behalf cf which the pers*s) acted, executed the MOUMCM
WITNESS my bond and official seal.
Signature
Community Development Commission of the Qty of
RW=ert Park
By. —
Name:
Title:
cnds mea for omew nonrisl seal}
MAIL TAX SAME AS ABOVE
STATEMENTS TO:
NAME ADDRESS CITY, STAT$ ZIP
PUBLIC UTILITY EASEMENT
Lying within the City of Robnert Park, County of Sonoma, State of California, and being a
portion of the lands of the Community Development Commission of the City of Rohnert Park as
described by deed recorded under Document Number 2005- , Sonoma County
Records, said portion being more particularly described as follows:
All that portion of the lands of the Community Development Commission of the City of Rohnert
Park as described by deed! recorded under Document Number .2005- Sonoma
County Records, lying southerly of the following described line:
Beginning at a point on the westerly line of said lands, from which the southwest comer of said
- - - - - - lands bears South 00°17'00" Wesi 5_00 feet thence leaving said westerly_line. South 89043'00"
East, 13.10 feet; thence on a curve to the right, radius of 113.00 feet, central angle of 13 °23'00",
length of 26.39 feet; thence on a reverse curve, radius of 200.00 feet, central angle of 13023'W',
length of 46.72 few thence South 8943'00" East, 304.30 feet; thence on,a curve to the left,
radius of 82.00 feet, central angle of 07004'25", length of 10.12 feet to the easterly line of said
lands.
Containing 3,712 sq. ft more or less.
See Exlu'bit `B" for graphic depiction.
This description prepared by Carlile -Macy.
PLS 5143 �
Exp. 6/30/07
JARVIS
No., 5143
OF DESCRIPTION
e r- a, t Izz, W -1 r
Date
ILS 2MO74XQ&DdNew PUB
Zv O^
M Z
n. 0.
COMMUNITY DEVELOPMENT COMMSSION
CITY Of ROHNERT PARK
POINT OF R�82.� 4 x
BwNNm PUS U uW
110.12 �. op a; to
S89'93'00" E 304.30 r
S89' W*E 304,81 µ x
� 0
o O
�cb tv ��W m a co
L-10.12.
C17Y HALL ®R/W
iY OF R®HNERT PARK
PUBLIC UTILITY EASEMENT
COMMUNITY DEVELOPMENT TO
THE CITY OF ROHNERT PARK
ale: 1 m=80' Date: 4/11/05
.S
SwI Communications
r"C.�_ 1-: U >�� ..e
/ -7/—C -
(,RESOLUTION NO. 2005-04 opy to:
coy to:
RESOLUTION OF THE CITY OF ROHNERT PARK COMMUNITY DEVELOPMENT
COMMISSION APPROVING AFFORDABLE HOUSING AGREEMENT WITH
BURBANK HOUSING DEVELOPMENT CORPORATION
WHEREAS, the Rohnert Park Redevelopment Commission wishes to enter into
an Affordable Housing Agreement with Burbank Housing Development Corporation
for the disposition and development of real property located at 430 and 450 City Hall
Drive for the development of the "Arbors" Affordable Housing Project; and
WHEREAS, the "Arbors" project requires additional real property located at 500
City Hall Drive for parking; and
WHEREAS, the Rohnert Park Community Development Commission must first
obtain approval to release real property located at 500 City Hall Drive from current
leaseholders and holders of security interest; and
WHEREAS, the Affordable Housing Agreement will take effect after the City has
obtained all necessary approvals regarding its intended disposition of the parking lot
property; and
WHEREAS, the Affordable Housing Agreement is exempt from the California
Environmental quality ac t in accordance with Public Resources Code Section 21159.23;
NOW, THEREFORE, the Rohnert Park Community Development Commission resolves
as follows:
1.. That the Affordable Housing Agreement is approved and authorizes its execution
by the Interim City Manager contingent upon obtaining all required approvals from leaseholders
and holders of security interests at 500 City Hall Drive.
The foregoing Resolution was duly and regularly adopted by the Rohnert Park
Community Development Commission at a meeting thereof, held on the 7th day of
June 2005, by a majority vote, to wit: /
AYES: Community Development Co ion of the City of Rohnert Park
NOES:
ABSTAIN:
ABSENT: (`hairperson
Attest: Approved a ®rm-
bramission
Clerk Assistant General Counsel
8315360 80078/0012
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
Redevelopment Project
DatedL' y
749838v7C 80078/0022
TABLE, OF CONTENTS
300.
DEVELOPMENT..........................................................................................................................11
Page
100.
DEFINITIONS; REPRESENTATIONS AND WARRANTIES.....................................................
2
101.
Definitions..................................................................................................................................:....
2
102.
Representations and Warranties.......................................................................................................
4
302.
102.1 Commission Representations..............................................................................................
4
303.
102.2 Prevailing Wages.................................................................................................................
4
304.
102.3 Developer's Representations...............................................................................................
5
103.
Title Insurance..........................................................................................................:......................
6
104.
Review of Title................................................................................................................................ 7
105.
Access to Site Prior to Conveyance of Site..................................................................................... 7
106.
Condition of the Site........................................................................................................................ 7
106.1 Investigation of the Site...................................................................................................... 7
106.2 No Further Warranties As To Site; Release of Commission .............................................. 7
t 107.
Developer's Obligations with Respect to Hazardous Materials After Conveyance......................... 8
107.1 Duty to Prevent Hazardous Materials Contamination........................................................ 8
13
107.2 Environmental Inquiries..................................................................................................... 8
304.7 Architecture and Design; Applicable Codes ......................................................
107.3 Environmental Indemnification.......................................................................................... 9
107.4 Materiality ...........................................................................................................................9
108.
Site Reparcelization......................................................................................................................... 9
200.
COMMISSION DISPOSITION OF THE SITE TO THE DEVELOPER .....................................
10
201.
Purchase and Sale of the Site.........................................................................................................
10
Compliance With Laws; Indemnity; Waiver.................................................................................
201.1 Closing Date.....................................................................................................................
10
Taxes and Assessments..................................................................................................................
201.2 Purchase Price; Security ...................................................................................................
10
Project Sign...........................:....................................................................................:...................
201.3 Conditions Precedent to Closing.......................................................................................
10
202.
Escrow...........................................................................................................................................
11
203.
Escrow Instructions........................................................................................................................
11
300.
DEVELOPMENT..........................................................................................................................11
301.
Scope of Development...................................................................................................................
11
301.1 Site Improvements............................................................................................................
11
301.2 Public Improvements........................................................................................................
11
302.
Permits and Approvals...................................................................................................................
12
303.
Schedule of Performance...............................................................................................................12
304.
Design Review...............................................................................................................................
12
304.1 Design Development Drawings........................................................................................
12
304.2 Construction Drawings and Related Documents..............................................................
12
304.3 Commission Review and Approval..................................................................................
12
304.4 Revisions...........................................................................................................................12
304.5 Consultation and Coordination.........................................................................................
13
304.6 Defects in Plans................................................................................................................
13
304.7 Architecture and Design; Applicable Codes ......................................................
304.8 Cost of Construction.........................................................................................................
13
305.
Insurance Requirements.................................................................................................................
13
306.
Rights of Access............................................................................................................................
15
307.
Compliance With Laws; Indemnity; Waiver.................................................................................
15
308.
Taxes and Assessments..................................................................................................................
16
309.
Project Sign...........................:....................................................................................:...................
16
310.
Liens and Stop Notices..................................................................................................................
16
311.
Right of the Commission to Satisfy Other Liens After Title Passes ..............................................
16
312.
Certificate of Completion..............................................................................................................
16.
749838v7C 80078/0022 1
091
400.
401.
402.
500.
501.
502.
503
504
505
600.
601.
602.
603.
604.
605.
606.
700.
701.
702.
703.
704.
705.
706.
707.
708.
709.
710.
711.
712.
713.
714.
715.
716.
717.
718.
719.
720.
721.
Mortgage, Deed of Trust, Sale and Lease -Back Financing........................................................... 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 the Commission to Cure Mortgage or Deed of Trust.Default ............................
18
COVENANTS, RESTRICTIONS AND AGREEMENTS...........................:................................
18
UseCovenants...............................................................................................................................
18
Subordinationof Covenant............................................................................................................
18
FINANCIAL PROVISIONS.........................................................................................................
18
Evidence of Financing and Loan Closings....................................................................................
18
Commission Assistance.................................................................................................................
19
502.1 Conditions Precedent to Purchase Price...........................................................................
20
502.2 Conditions Precedent. to Predevelopment Commission Assistance .................................
20
502.3 Conditions Precedent to Development Commission Assistance .....................................
21
Financial Records and Reporting Obligations...............................................................................
23
Developer's Financing; AHP Financing........................................................................................
23
504.1 Developer's Financing......................................................................................................
23
504.2 AHP Financing.................................................................................................................
23
Subordination of Deed of Trust.....................................................................................................
24
DEFAULTS AND REMEDIES..............................................................
Default.....................................................................................................
601.1 General Remedies......................................................................
601.2 Specific Performance; Disbursement Cessation ..............
Institution of Legal Actions..........................................................
Termination...................................................................................
Acceptance of Service of Process .................................................
Rights and Remedies Are Cumulative ..........................................
Inaction Not a Waiver of Default ..................................................
GENERAL PROVISIONS................................................................................
Notices, Demands and Communications Between the Parties .....................:....
Enforced Delay; Extension of Times of Performance .......................................
Successorsand Assigns .............. ................................................I.......................
Memorandum of Agreement..............................................................................
Relationship Between Commission and Developer ...........................................
Commission Approvals and Actions.................................................................
Counterparts........................................................................:..............................
Integration..........................................................................................................
Titlesand Captions............................................................................................
Interpretation......................................................................................................
NoWaiver..........................................................................................................
Modifications
...... 24
...... 24
...... 24
...... 24
...... 24
...... 25
...... 25
...... 25
...... 25
........................... 25
... 25
........................... 26
........................... 27
........................... 27
........................... 27
........................... 27
........................... 27
........................... 27
........................... 28
........................... 28
........................... 28
............................................................................................................................. 28
Severability.................................................................................................................................... 28
Computationof Time..................................................................................................................... 28
LegalAdvice ....................................................... :............ .............................................................. 28
Timeof Essence...................................................................................:...:..................................... 28
Cooperation.................................................................................................................................... 28
Conflictsof Interest....................................................................................................................... 28
Time for Acceptance of Agreement by Commission..................................................................... 28
Developer's Indemnity ................................................................................................................... 29
Dateof Agreement......................................................................................................................... 29
749838v7C 80078/0022 ii
722. Non -liability of Officials and Employees of the Commission and the Developer ......................... 29
723. Assignment by Commission......................................................................... ............................... 29
724. Applicable Law.............................................................................................................................. 29
725. Authorization.................................................................................................................................. 29
726. Attorneys' Fees............................................................................................................................... 29
ATTACHMENTS
Attachment No. 1
Site Map
Attachment No. 2
Site Legal Description
Attachment No. 3
Schedule of Performance
Attachment No. 4
Joint Escrow Instructions
Attachment No. 5
Grant Deed
Attachment No. 6
Form.of Certificate of Completion
Attachment No. 7
Affordable Housing and Maintenance Covenant
Attachment No. 8
Memorandum of Agreement
Attachment No. 9
Promissory Note
Attachment No. 10
Deed of Trust
Attachment No. 1 I
Purchase and Sale Agreement
Attachment No. 12
Parking Lot Improvement Agreement
749838v7C 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 (the "Commission"), and BURBANK HOUSING
DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation (the "Developer"),
dated as of this t . day of 200 ', the date of execution of this Agreement by the
Commission indicated on the signature page hereof.
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 by the Commission to the Developer for the
development of twelve (12) buildings containing fifty-six (56) residential units with accessory ground floor
commercial tenant spaces along the City Hall Drive frontage, comprised of (a) eight (8) residential buildings
featuring 16 one-bedroom/one-bath flats, twelve (12) two-bedroom/two-bath townhouses, and twenty (20)
three-bedroom/two-bath townhouses, (b) four (4) mixed-use buildings containing eight (8) two-
bedroom/one-bath flats and approximately 7,500 square feet of commercial space within which the project's
manager's office and community rooms would be housed, (c) ancillary recreational; open space and parking
uses, and (d) appurtenant on-site and off-site improvements (including the Public Improvements, as defined
in Section 301.2 below) to be constructed and installed by Developer as set forth herein and in the Scope of
Development (collectively, the "Improvements"). As set forth in the Affordable Housing and Maintenance
Covenant, twenty-two (22) of the residential units shall be affordable to Very Low Income Persons or
Households, and thirty-four (34) of the residential units shall be affordable to Lower Income Persons or
Households (provided that the Developer may, in its sole reasonable judgment, elect to have a property
manager residing on the Site, in which event one (1) of the Lower Income units may be used as a resident
"Manager's Unit," and the remaining thirty-three (33) units shall be available to Lower Income Persons or
Households). The fifty-six (56) residential units (excluding the Manager's Unit) are collectively referred to
herein as the "Affordable Units". The Site is comprised of approximately 1.89 acres on two parcels (which
are subject to merger as provided herein), a 15,135 sq. ft. portion of 500 City Hall Drive (APN 143-051-062),
and is located within the Redevelopment Project area, 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. [stat lwclarify whether thea'1.89 acres_includes-the Burbank;Lot. �4PNthereo/1. If the
Burbank Lot has not been transferred to Developer before the date of execution of this Agreement by the
Commission, the Burbank Lot shall comprise a portion of the Site and shall be subject to all terms and
conditions of this Agreement applicable to the Site immediately upon the contemplated transfer thereof to
Developer as set forth in Section 301.2.
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. The 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 the 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. The Commission and the Developer have entered into a Purchase and Sale Agreement dated
749838v7C 80078/0022
March 24, 2004 ("Purchase and Sale Agreement") attached hereto and incorporated herein as Attachment
No. 11 evidencing Developer's desire to purchase the Site from Commission. The Commission and the
Developer desire to enter into this Agreement in order to clarify and amend that Purchase and Sale
Agreement and comply with applicable Community Redevelopment Law by setting forth additional terms
and conditions relating to the disposition of the Site to Developer.
E. As more specifically set forth in Section 301.2, upon receipt of necessary approvals, City,
Commission, and the Developer intend to enter into a Parking Lot Improvement Agreement ("Parking
Agreement") in a form substantially similar to that attached hereto and incorporated herein as Attachment
No. 12. The Parking Agreement will evidence the parking lot component of certain Public Improvements (as
defined in Section 301.2) to be made by Developer to the City Lot (as defined in the Parking Agreement) in
exchange for the contemplated inclusion of the Burbank Lot (as defined in the Parking Agreement) in the
Site.
F. Pursuant to section 33334.2 of the California Health and Safety Code, the Commission has
set aside 20% of tax increment revenues allocated to it to improve and increase the supply of affordable
housing in the City of Rohnert Park. The Commission desires to use a portion of these monies to make a
loan to the Developer for acquisition of the Site and development of the Project.
G. The Commission and the Developer further 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 the
Developer; (ii) the provision of the Commission Assistance to the Developer; and (iii) the provision of
covenants to ensure the Affordable Units on the Site shall remain affordable for the longest feasible.time.
H. 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, the Commission and the 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 the
Commission pursuant to section 33334.3 of the Community Redevelopment Law.
"Agreement" means this Affordable Housing and Loan Agreement between the Commission and
the Developer.
"Bylaws" means the corporate bylaws of Developer to be approved by Commission as provided in
Section 502.1f, as the same maybe amended from time to time. In the event of an approved transfer or
assignment pursuant to the Grant Deed, the term "By -Laws" shall be deemed to refer to the bylaws, operating
agreement, partnership agreement or other organizational documents, as applicable, of the approved
successor in interest.
"Certificate of Completion" means the document which evidences the Developer's satisfactory
completion of construction and installation of the Improvements, as set forth in Section 31.2 hereof, in the
form attached hereto as Attachment No. 6 and incorporated herein.
"City" means the City of Rohnert Park, a California municipal corporation.
749838v7C 80078/0022
"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.).
"Conveyance" means the conveyance of fee title to the Site by the Commission to the Developer.
"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.
"Developer" means Burbank Housing Development Corporation, a California nonprofit public
benefit corporation, or its permitted assignee or transferee.
"Eligible Household(s)" is defined in section 1.B.(1) of the Covenant.
"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 the Commission, the Developer or the Site.
"Grant Deed" means the Grant Deed, for the conveyance of the Site from the Commission to the
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, but not
limited to, any material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous
waste," or "restricted hazardous waste" under sections 25115, 25117 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"); (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 "hazardous substances" pursuant to Section 311 of the Clean Water Act
(33 U.S.C. § 1317); (k) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §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. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter
be amended.
"Loan Documents" means, collectively, Section 500 of this Agreement, the Promissory Note, and
the Deed of Trust. For purposes of this Agreement, the Promissory Note, the Deed of Trust, the Covenant,
and the Purchase and Sale Agreement, and the Grant Deed specifically excludes all portions of the
Agreement other than Section 500 thereof, and the Covenant, the Purchase and Sale Agreement, and the
Grant Deed in their entirety.
"Low and Moderate Income Housing Fund" means the Commission's low and moderate income
housing fund, as established pursuant to Health and Safety Code section 33334.3.
749838v7C 80078/0022
"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.
"Lower Income Person" or "Lower Income Household" means a person or household whose gross
income is 80% or less of area median income or such other standard as set from time to time pursuant to
California Health and Safety Code section 50079.5, as amended, or any successor statute thereto.
"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.
"Remaining Commission Assistance" means the difference between the Purchase Price and the
Commission Assistance.
"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 the Developer and the Commission's Executive Director, and the
Commission's Executive Director is authorized to make such revisions as he or she deems reasonably
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 Burbank Lot shall
comprise a portion of the Site and shall be subject to all terms and conditions of this Agreement immediately
upon contemplated transfer thereof to Developer as set forth in Section 301.2.
"Site Legal Description" means the description of the Site attached hereto as Attachment No. 2 and
incorporated herein. The Site is presently comprised of various parcels which shall be merged into one legal
parcel prior to Closing, as provided in this Agreement.
"Site Map" means the map of the Site attached hereto as Attachment No. 1 and incorporated herein.
102. Representations and Warranties.
102.1 Commission Representations. Commission represents and warrants to
Developer as follows:
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. Developer acknowledges and agrees that the work of the
Improvements 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 Labor Code Section 1720. Accordingly,
Developer shall comply with prevailing wage policies as set forth in the Rohnert Park Municipal Code, if
applicable, and well as all State Labor Code requirements pertaining to "public works," including the
749838v7C 80078/0022
payment of prevailing wages in connection with development of the Project (collectively, "Prevailing Wage
Policies"). Developer shall require the general contractor for the Project to submit, upon request by the
Commission, 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 with its lessees a provision, in form acceptable to Commission, obligating the general contractor or
lessee; as applicable, to require its contractors and/or subcontractors to comply with Prevailing Wage
Policies, and to submit, upon request by the 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.
Developer shall defend, indemnify and hold harmless Commission and City and its and their
officers, employees, volunteers, agents and representatives 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.
Developer hereby waives, releases and discharges forever Commission and 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 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 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 102.2, Developer hereby waives and relinquishes all rights
and benefits which it may have under Section 1542 of the California Civil Code.
J ,
Developer Initials
The obligations of Developer under this Section. 102.2 shall survive the termination of this Agreement.
102.3 Developer's Representations. Developer represents and warrants to Commission
as follows:
a. Authority.
i. Developer is a duly organized nonprofit public benefit corporation
organized within and in good standing under the laws of the State of California. The copies
of the. documents evidencing the organization of the Developer that have been delivered to
the 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 the Developer.
ii. Developer represents and warrants the following, which shall also
become a representation and warrant of Arbors Rohnert Park Apartments, L.P. upon the
749838v7C 80078/0022
assignment of this Agreement to Arbors Rohnert Park Apartments, L.P. Arbors Rohnert
Park Apartments, L.P. is a duly organized limited partnership organized within and in good
standing under the laws of the State of California. True and complete copies of the originals,
as amended .to the date of the assignment of the Agreement to Arbors Rohnert Park
Apartments, L.P. of the documents evidencing the organization of Arbors Rohnert Park
Apartments, L.P. shall be delivered to the Commission before any such assignment. Arbors
Rohnert Park Apartments, 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 Arbors Rohnert Park Apartments, L.P. has been fully authorized by all
requisite actions on the part of the Arbors Rohnert Park Apartments, 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 the 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 the 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 is a sophisticated owner, builder, and
developer of real property (including but not limited to affordable housing purposes), 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 without limitation,
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 without limitation any existing permits, licenses,
agreements, and liens, zoning reports, engineers' reports and studies and similar information relating
to the Site.
Until the Closing, the 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 of this Agreement by the Developer, but shall constitute an exception that Commission shall have a
right to approve or disapprove. If the Commission elects to close Escrow following disclosure of such
information, Developer's representations and warranties shall be deemed to have been made as of the
Closing, subject to such exception(s). If, following the disclosure of such information, the Commission
elects to not close Escrow, then this Agreement and the 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 the 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 (the "Title Policy"), together
with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring
that the title to the Site is vested in Developer in the condition required by Section 104 of this Agreement.
The Title Company shall provide the Commission with a copy of the Title Policy. The Title Policy shall be
749838v7C 80078/0022
in the amount of the Purchase Price and any Remaining Commission Assistance. The premium for the Title
Policy plus any additional costs, including without limitation, the cost of an ALTA policy, surveys, and any
endorsements requested by the Developer shall be borne by the 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. The Developer has caused North American Title (the "Title Company"), to
deliver to Developer and to Commission a standard preliminary title report dated
(the "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 the
Title Company after Developer has approved the Report and the Exceptions (which are not created by
Developer).
105. Access to Site Prior to Conveyance of Site. Prior to Conveyance of the Site, the
Commission shall allow representatives of the Developer to have access to the. Site at all reasonable times for
the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including
without limitation the investigation of the environmental condition of the Site. The Commission may require
the Developer to execute a right of entry agreement(s) satisfactory to the Commission's legal counsel prior to
commencing such studies or work. Any preliminary work by the Developer shall be undertaken only after
securing all required insurance and any and all necessary permits from the appropriate governmental
agencies. The Developer shall indemnify, defend and hold the Commission and the City harmless from any
claims (including claims of lien for work or labor performed or materials or supplies furnished), demands,
liabilities, losses, damages, costs, fees, and expenses, including Seller's reasonable attorney fees, costs, and
expenses, arising from the acts or activities of the 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 the 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 the Developer's entry onto
the Site.
106. Condition of the Site.
106.1 Investigation of the Site. The Commission has provided the Developer with all
information of which it has actual knowledge concerning the physical condition of the Site, including,
without limitation, information about any Hazardous Materials. The Developer has inspected the site and
satisfied itself that the Project is categorically exempt from the California Environmental Quality Act
pursuant to California Code of Regulations, Title 14, section 15332 (Class 32 — In Fill Development
Projects), and has determined that no remediation of the environmental condition of the Site is required. If,
prior to Conveyance of the Site, the Developer learns of an environmental condition of the Site requiring
remediation, then the Developer shall notify the Commission of such fact in writing. Upon such notification,
the Commission and the Developer shall have the following options with respect to the Site: (i) either the
Commission or the Developer may terminate this Agreement by providing the other with written Notice of
such termination; or (ii) within twenty (20) days of the Developer's Notice to the Commission that
remediation of the Site is required, the 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 the Commission nor the 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 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
the 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. Developer is
purchasing the Site on the basis of Developer's own investigation. of the physical and environmental
749838v7C 80078/0022 7
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 orunknown 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, the
Commission shall assign to the Developer all warranties and guaranties with respect to the Site, if any, that
the Commission may receive from prior owners of the Site.
The Developer hereby waives, releases and discharges forever the Commission and the City,
and its and their employees, officers, volunteers, agents and representatives, from all present and future
claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs,
liabilities, fees and expenses, present and future, 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 that arising out of the active negligence or willful misconduct of the Commission or City or its
or their employees, officers, volunteers, agents or representatives.
The 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, the Developer hereby waives and relinquishes all rights and
benefits that it may have under section 1542 of the California Civil Code.
Developer Initials
107. Developer's Obligations with Respect to Hazardous Materials After Conveyance. After
the Conveyance, the 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. The 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 the Conveyance,
the 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, the 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.
107.2 Environmental Inquiries. After the Conveyance, the Developer shall notify the
Commission, and provide to the 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,
749838v7C 80078/0022
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 the Developer shall report to the
Commission, as soon as possible after each incident, any unusual, potentially important incidents, including
but not limited to, 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;
L Any notices of violation from OSHA or Cal -OSHA concerning employees'
exposure to Hazardous Materials;
g. All complaints and other pleadings filed against the Developer relating to
the 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, the Developer
shall, as soon as possible after the release, furnish to the 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
the Commission, the Developer shall furnish to the Commission a copy or copies of any and all other
environmental entitlements or inquiries relating to or affecting the Site including, but not limited to, all
permit applications, permits and reports including, without limitation, those reports and other matters which
may be characterized as confidential.
107.3 Environmental Indemnification. From and after the Conveyance, the Developer
shall indemnify, defend and hold the Commission and the City harmless from and against any claim, action,
suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorneys' fees), resulting from, arising 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. 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. Site Reparcelization. If Commission, in its sole discretion pursuant to Section 201.3h has
elected not to merge and reparcelize the various parcels comprising the Site into a single legal parcel
("Reparcelization"), then within the time set forth in the Schedule of Performance, the Developer shall
prepare or cause to be prepared, at the Developer's expense, a final parcel map(s) (the "Parcel Map(s)") to
749838v7C 80078/0022 9
merge and reparcelize the various parcels comprising the Site into a single legal parcel. The Developer
acknowledges that City's approval of the Parcel Map(s) is by no means guaranteed. Developer may, in its
discretion, accomplish the Reparcelization of the Site by means of a lot line adjustment, in which case all
references herein to Parcel Map(s) shall be deemed to refer to a certificate of lot line adjustment.
200. COMMISSION DISPOSITION OF THE SITE TO THE DEVELOPER
201. Purchase and Sale of the Site. In accordance with and subject to all of the terms, covenants
and conditions of the Purchase and Sale Agreement and this Agreement, except as modified herein, the
Commission agrees to sell the Site and the Developer agrees to purchase the Site for development. In the
event of a conflict between the provision of the Purchase and Sale Agreement and this Agreement, this
Agreement shall control.
201.1 Closing Date. The second sentence of Section 1 of the Purchase and Sale
Agreement is hereby deleted and replaced with the following: "The closing shall occur on the date mutually
agreed to by the parties, provided, however that the if the close of escrow has not occurred by December 29,
2006, this Agreement shall terminate."
201.2 Purchase Price; Security. The purchase price for the Site shall be One Million,
Three Hundred Thirty -Five Thousand Dollars ($1,335,000) as set forth in the Purchase and Sale Agreement
(the "Purchase Price"), which amount represents the fair market value of the Site. The amount of the
purchase price for the Site shall be included under the Commission Assistance, which shall be evidence by
the Note and secured by the Deed of Trust, as those terms are defined in Section 502.
201.3 Conditions Precedent to Closing. The Commission's obligation to convey the
Site is conditioned upon the satisfaction or waiver by the Commission of each and all of the conditions
precedent described below. (the "Closing Conditions Precedent"), which are solely for the benefit of the
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 be in default of any of its obligations under the terms of this Agreement, and all
representations and warranties of Developer contained herein shall be true and correct.
b. Execution of Documents. The 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 the Commission's request Developer shall have delivered to the Commission
the financial statements and written annual statements required under Section 503 hereof, and
Commission shall have approved the same.
e. By -Laws. Developer shall have delivered to Commission, and Commission
shall have approved, Developer's By -Laws , together with all amendments thereto, as provided in the
Grant Deed.
f. Title Policy. The 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. City Lot Transfer, Agreement. The conditions set forth in Section 301.2a
shall have been satisfied and City shall have. transferred the Burbank Lot to Commission, and the
Commission, City and Developer shall have executed the Parking Agreement.
749838v7C 80078/0022 10
h. Site Reparcelization. Commission, it its sole discretion, may, at
Developer's sole cost expense, pursue Reparcelization. The Developer acknowledges that City's
approval of the Reparcelization by no means guaranteed, nothing in this Agreement is intended to or
shall abrogate or delegate City's or Commission's discretionary powers, and neither Commission nor
City undertake any obligation to Developer to satisfy this Closing Condition Precedent. If
Commission elects not to pursue such Reparcelization, then Developer do so pursuant to Section
108.
202. Escrow. { ' `y ' has opened escrow number,, .`: ' '" 3: (the
"Escrow") with North American Title (the "Escrow Agent"), for the Conveyance of the Site to the
Developer.
203. 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.
300. DEVELOPMENT
301. Scope of Development.
301.1 Site Improvements. The Developer shall construct and install the Improvements
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"), and the plans,
drawings and documents submitted by the Developer to the Commission as provided in Section 304, below.
All such work shall be performed by a licensed contractor(s).
301.2 Public Improvements. Developer shall construct a public safety parking lot,
demolish and reconstruct a street median, and construct a bike path segment on City and/or Commission
property (collectively, "Public Improvements"). It is expected that the demolition and reconstruction of the
street median, and construction of the bike path segment, will be required as conditions of approval.
Notwithstanding the foregoing, such Public Improvements are in addition to any other improvements,
whether required through conditions of approval or otherwise, imposed by City or other agencies.or
authorities having jurisdiction over the Site and/or Project.
a. City, per Commission's request, intends to transfer the Burbank Lot (as
defined below) to Commission. Commission in turn intends transfer the Burbank Lot to Developer
subject to the terms and conditions contained in this Agreement. Upon receipt of necessary
approvals, City, Commission, and. Developer intend to enter into the separate tri -party Parking
Agreement addressing construction of a public safety parking lot ("City Lot") and transfer of a City -
owned lot to Commission and -then to Developer as part of the Site. ("Burbank Lot"), as those terms
are more specifically defined in the Parking Agreement.. However, the parties acknowledge and
agree that any transfer of the Burbank Lot is contingent upon the express, written approval of any and
all persons or entities holding an interest in the Burbank Lot, including the leasehold interest held by
and the security interest held by in connection with the bonds ' insei7
specific bond informationl, an opinion from bond counsel that the tax-exempt status of affected
bonds will remain in effect, necessary governmental approvals, and execution of the Parking
Agreement. The parties agree to act promptly and in good faith in that regard. Notwithstanding the
foregoing, it is expressly acknowledged, understood and agreed by the parties . that (a) City and
Commission. shall act independently of Developer and -"each other, reserving full and complete
discretion with respect to pursuing any. approvals (including but not limited to City Council and
Planning Commission actions and CEQA approvals), (b) nothing in this Agreement is intended to or
shall abrogate or delegate Commission's or City's discretionary powers, (c) nothing in this
Agreement is intended to or shall prejudge or commit to Commission or City regarding the findings
and determinations to be made with respect thereto, and (d) neither Commission nor City shall bear
any liability toward Developer in connection therewith. The Burbank Lot shall comprise a portion of
749838v7C 80078/0022 11
the Site and shall be subject to all terms and conditions of this Agreement immediately upon transfer
thereof to Developer, except as to Developer due diligence, inspection, approvals and like matters,
all of which Developer hereby expressly waives.
b. Commission may agree but is not obligated to reimburse Developer up to
$15,000 for construction of the bike path segment out of Commission general (not housing) funds.
302. Permits and Approvals. Before commencement of construction of the Improvements,
other works of improvement, the 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, without
limitation, all approvals required by the Planning Commission and the Commission, and any other
governmental agency affected by such construction or work. The Commission staff will work cooperatively
with the 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
the Commission or the City.
303. Schedule of Performance. The 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 be deemed commenced when the Developer has commenced excavating and grading of
the Site.
304. Design Review.
304.1 Design Development Drawings. Developer has submitted to Commission,
pursuant to and in connection with Application No. PL2004-016SRN, and Commission has approved
pursuant to Planning commission Resolution No. 2004-28 dated June 24, 2004, on the conditions expressed
and implied thereby, detailed drawings and specifications with respect to the Improvements (the "Design
Development Drawings").
304.2 Construction Drawings and Related Documents. Upon the request of the
Commission, the Developer shall prepare and submit to the Commission detailed construction plans with
respect to the Improvements, including without limitation a grading plan, which shall have been prepared by
a registered civil engineer (the "Construction Drawings").
304.3 Commission Review and Approval. If the Commission requests the
Construction Drawings from Developer, the Commission shall have the right to review and reasonably
approve or disapprove the Construction Drawings. In reviewing the Construction Drawings, the Commission
shall consider the recommendations of the Planning Commission. The Developer acknowledges and agrees
that the Commission is entitled to approve or disapprove the Construction Drawings in order to satisfy the
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. The Developer shall not be entitled to any monetary damages or compensation as a
result of the Commission's disapproval of or failure to approve or disapprove the Construction Drawings.
The Commission's right to review and approve the Construction Drawings is in addition to the Planning
Commission review of schematic drawings and plans and nothing herein relieves the 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.
304.4 Revisions. If the Developer desires to propose any material revisions to the
Commission -approved Design Development Drawings or Construction Drawings (collectively, the
"Drawings"), and if requested by the Commission, it shall submit such proposed changes to the Commission,
and shall also proceed in accordance with any and all 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
749838v7C 80078/0022 12
concept of the development of the Site is proposed in the Drawings from the basic concept set forth in the
Basic Concept Drawings as originally approved by the Commission, then the Commission's approval of any
revisions to the Drawings may be conditioned upon the renegotiation of all terms and conditions of this
Agreement, including without limitation, the economic terms of the Agreement. If the Drawings, as
modified by the proposed change, generally and substantially conform to the requirements of this
Section 304 and the Scope of Development, the Commission's Executive Director shall review the proposed
change and notify the Developer in writing within fifteen (15) days after submission to the Commission as to
whether the proposed change is approved or disapproved. The Commission's Executive Director is
authorized to approve changes to the Commission -approved 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 the Developer in its Drawings and completed during the
construction of the Improvements.
304.5 Consultation and Coordination. During the preparation of the Construction
Drawings, staff of the Commission and the Developer shall hold progress meetings on an as -needed basis to
coordinate the preparation, submission, and review of the Construction Drawings. The staff of the.
Commission and the Developer shall communicate and consult informally as frequently as is necessary to
ensure that the formal submittal of any documents to the Commission can receive timely and thorough
consideration.
304.6 Defects in Plans. The Commission shall not be responsible either to the
Developer or to any third parties in any way for any defects in the Drawings, nor for any structural or other
defects in any work done according to the approved Drawings, nor for any delays caused by the review and
approval processes established by this Section 304. The Developer shall hold harmless; indemnify, pay for
and defend the Commission, the City and its and their officers, employees, volunteers, agents and
representatives from and against any claims or suits for damage to property or injury to or death of any
persons arising out of or in any way relating to defects in the Drawings, includingwithout limitation the
violation of any Governmental Requirements, or for defects in any work done according to the approved
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.
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 the Developer, except as
otherwise expressly set forth herein. Costs for the Public Improvements shall be borne by Developer except
as otherwise set forth in this Agreement or in the Parking Agreement.
305. Insurance Requirements. The 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 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, or such other policy limit as the Commission may approve at its discretion,
including contractual liability, as shall protect the 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
749838v7C 80078/0022 13
provisions:
a. The City, the 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, the
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 the 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, the Developer's insurance is primary
coverage to the Commission and the City, and any insurance or self-insurance programs maintained
by the 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, the Commission, and
their respective officers, agents, employees, volunteers, and representatives.
305.2 The 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 I (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 and the City by certified mail.
305.3 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 reasonably require, and shall furnish or cause to be
furnished to the Commission evidence satisfactory to the 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 meeting statutory limits of applicable Labor
Code provisions, which policy shall contain or be endorsed to contain a waiver of subrogation against the
City, the Commission, and their respective officers, agents, employees, volunteers, and representatives, and
provide for thirty (30) days prior written notice to the Commission and the City in the event of cancellation.
If Developer has no employees, Developer 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 liabilityfor 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. "
749838v7C 80078/0022 14
305.5 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-. The Developer shall furnish a notarized certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form_ reasonably approved by the Commission setting forth the
general provisions of the insurance coverage. This countersigned certificate shall name the City, the
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 the
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 the Developer shall be primary insurance and shall
not be contributing with any insurance, self-insurance or joint self-insurance maintained by the Commission
or City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall
contain a waiver of subrogation for the benefit of the City and the Commission. The required certificate shall
be furnished by the 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 the 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 but not limited to, the inspection of the Project
and the work of Improvements, so long as the Commission, City or their representatives comply with all
safety rules. The Commission and City (or their representatives) shall, except in emergency situations, notify
the Developer prior to exercising its 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. The Developer shall carryout the work of
Improvements in conformity with all applicable laws, including without limitation all applicable state labor
laws and standards (including but not limited to prevailing wage requirements pursuant to Labor Code
sections 1720 et seq.); 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 without
limitation the Americans With Disabilities Act, 42 U.S.C. section 121,01, 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, the Developer will not discriminate against any employee or applicant for employment
because of race, color, creed, religion, sex, marital status, ancestry or national origin.
Developer shall defend, indemnify and hold harmless the Commission and the City and its and their
officers, employees, volunteers, agents and representatives 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 including, without limitation, all applicable state
labor laws and standards and Public Contracts Code requirements.
The Developer hereby waives, releases and discharges forever the 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, without limitation, all applicable state labor laws and
standards and Public Contracts Code requirements.
The Developer is aware of and familiar with the provisions of section 1542 of the California Civil
749838v7C 80078/0022 15
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 307, the Developer hereby waives and relinquishes all rights and
benefits that it may have under section 1542 of the California Civil Code.
Y;
Developer Initials
308. Taxes and Assessments. Following the Close of Escrow and during its period of ownership
of the Site, the Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on
the Site, subject to the Developer's right to contest in good faith any such taxes. The 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, one sign indicating the respective roles of the Developer
and the Commission in the Project.
310. Liens and Stop Notices. The Developer shall not allow to be placed on the Site, City's or
Commission's 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, the 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 the Commission a
surety bond in sufficient form and amount; or
C. provide the Commission with other assurance which the Commission
deems, in its sole discretion, to be satisfactory for the payment. of such lien or bonded stop notice and
for the full and continuous protection of Commission from the effect of such lien or bonded stop
notice.
311. Right of the Commission to Satisfy Other Liens After Title Passes. After the
Conveyance of the Site and prior to the completion of construction of the Improvements, and after the
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, the Commission shall have the right, but not the obligation, to
satisfy any such liens or. encumbrances without further notice to the Developer. In such event Developer
shall be liable for and the Commission shall be entitled to reimbursement by the Developer for such paid lien
or encumbrance.
312. Certificate of Completion. 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, the Commission shall furnish the Developer with a "Certificate of Completion"
substantially in the form of Attachment No. 6 attached hereto. The 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, the Grant Deed, and the Covenant.
If the Commission refuses or fails to furnish the Certificate of Completion, the Commission
shall, within thirty (30) days after Developer's written request therefor, provide the Developer with a written
749838v7C 80078/0022 16
statement of the reasons the Commission refused or failed to furnish the Certificate of Completion. The
statement shall also contain the Commission's opinion of the actions the 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 the 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 section 3093 of the California -Civil Code.
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. Subject to Section 505 of this Agreement, Mortgages and deeds of trust are permitted
before completion of the construction of the Improvements, but only.for the purpose of securing loans of
funds to be used for financing the costs of constructing the Improvements. Mortgages and deeds of trust are
permitted after completion of the construction of. the Improvements, but only for the purpose of securing
loans of funds to be used for permanent financing of the Improvements. The 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 the ,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. The Developer shall notify the 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 Folder 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 the
Commission shall deliver any notice or demand to Developer with respect to any breach or default by the
Developer hereunder, the Commission shall at the same time deliver to each holder of record of any
mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. 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 the 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 to cure or remedy any such default and to add the cost thereof
to the mortgage debt and the lien of its mortgage. In the event possession of the Site (or portion thereof) is
required to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied if it
commences the proceedings necessary to obtain possession thereof within sixty (60) days, diligently pursues
such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.
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 the Developer's
obligations to the Commission by written agreement satisfactory to the 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. For purposes of this Section 313.3 only; the
term "holder" shall include Developer's investor limited partner Apollo Housing Capital, L.L.C. ("Limited
Partner") and its successors and assigns, 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.
749838v7C 80078/0022 17
313.4 Right of the Commission to Cure Mortgage or Deed of Trust Default. If.a
mortgage or deed of trust default or breach by the 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, the Commission may cure the default, without acceleration of the subject loan, following prior
Notice thereof to the Developer, In such event, the Developer shall be liable for and the Commission shall
be entitled to reimbursement from the 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 the Developer.and incurred
by the Commission in curing such default. The 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, the Commission, if it
so desires, may elect to purchase the Site from the holder upon such terms as are mutually acceptable to the
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.
400. COVENANTS, RESTRICTIONS AND AGREEMENTS
401. Use Covenants. The Developer covenants and agrees for itself, its successors, its assigns
and every successor in interest that the Site shall be used for approximately fifty-six (56) residential units
(each a "Unit") and 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 Eligible Households, all 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. The
foregoing covenant shall run with the land. The Covenant shall be recorded against the Site upon transfer of
title of the Site to Developer.
402. Subordination of Covenant. As set forth in the Covenant and Grant Deed, upon written
request by Developer, and upon terms and conditions reasonably approved by the Commission, the
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
relating affordable housing (collectively, the "Affordability Regulations") as required by the Developer's
Financing, as defined in Section 504 of this Agreement. Commission shall consider subordination of the
terms and conditions under Section 3 of this Grant Deed relating to the affordability requirements for the
Affordable Unit to Developer's construction or permanent financing in accordance with the Community
Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.). The
Commission shall have the right to review and approve the terms and conditions of any such Affordability
Regulations and related subordination. agreements, which approval shall not be. unreasonably withheld. In
the event of a conflict among any of the Affordability Regulations, the more stringent shall control.
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 the
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 ordisapprove 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 the
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,
749838v7C 80078/0022 18
thereafter, neither party shall any rights or obligations hereunder. Prior to or simultaneous with the Closing,
Developer's construction loan(§) shallhave closed.
502. Commission Assistance. Subject to the conditions set forth herein, the Commission agrees
to loan to Developer such "Commission Assistance" in the maximum amount of $3,925,000; $1,335,000
thereof is intended to pay a portion of the costs to acquire the Project (the "Purchase Price"), $500,000
thereof is intended to pay a portion of those costs related to predevelopment of the Project (the
"Predevelopment Commission Assistance"), and $2,090,000 thereof is.intended to pay a portion of those
costs related to the development and construction of the Project (the "Development Commission
Assistance").. Upon written request by Developer and written consent of Commission, the Commission
Assistance may be reallocated among the Purchase Price, Predevelopment Commission Assistance and
Development Commission Assistance so long as the Commission Assistance does not exceed the maximum
amount of $3,925,000. No portion of the 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.
The Commission Assistance shall be evidenced by a non-recourse promissory note reflecting the amount of
the Commission Assistance (the "Note"). The Note shall be executed and delivered by the Developer to the
Commission in substantially the form attached hereto as Attachment No. 9. As security for the Note, the
Developer shall grant to the Commission a deed of trust creating a valid lien upon the Site (the "Deed of
Trust") in substantially the form attached hereto as Attachment No. 10. Inconsideration of the Developer's
obligations hereunder, including, without limitation, Developer's obligation to develop the Site and Project,
construct the Improvements, and provide Affordable Units on the Site, the Commission agrees to disburse to
Developer the Commission Assistance subject to .the terms and conditions of the Promissory Note and this
Agreement, including, without limitation, Developer's fulfillment of the Purchase Price Conditions
Precedent, the Predevelopment Conditions Precedent, and the Development Conditions Precedent
(collectively, the "Conditions Precedent") as set forth in Sections 502.1 through 502.3 below. Subject to the
Commission Assistance provided for hereunder, the cost of acquiring the Site and constructing the
Improvements thereon shall be borne by Developer.
Notwithstanding the foregoing, or the satisfaction of the Conditions Precedent set forth in Sections 502.1
through 502.3 and notwithstanding any prior disbursements of any Commission Assistance, Commission
shall not be required to make any or further disbursements of Development Commission Assistance 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 the Commission.
b. Subject to extensions pursuant to Section 702 of the Agreement, fails to commence
or complete Construction of the Improvements or portion thereof within the time set forth in the Schedule of
Performance; or
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 the Commission; or
749838v7C 80078/0022 19
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 the
Commission.
502.1 Conditions Precedent to Purchase Price. The Commission's obligation to to
provide the Purchase Price component of the Commission Assistance is conditioned upon the satisfaction or
waiver by the Commission of each and all of the conditions precedent described below (the "Purchase Price
Conditions Precedent"), which are solely for the benefit of the 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 be in Default (as that term is defined in the Note and Deed of Trust) of any of its
obligations under the terms of Section 500 this Agreement, the Note or the Deed of Trust, and all
representations and warranties of Developer contained therein shall be true and correct.
b. Payment of Property Taxes. No ad valorem property taxes or assessments
assessed with respect to the Project shall be delinquent.
C. Execution of Documents. The 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.
d. Insurance. Developer shall have provided proof of insurance as required
by Section 305 of this Agreement.
e. Financial Statements and Reports. With respect to the rental of the
Affordable Units, upon the Commission's request Developer shall have delivered to the Commission
the financial statements and written annual statements required under Section 503 hereof, and
Commission shall have approved the same.
f. By -Laws.- Developer shall have delivered to Commission, and Commission
shall have approved, Developer's By -Laws , together with all amendments thereto, as provided in the
Grant Deed.
g. Title Policy. The 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.
h. Retention; AHP Offset. All disbursements of Commission Assistance or
any portion or component thereof shall be subject to Commission's Retention Policy and the AHP
Offset as set forth in Sections 502.4 and 504.2, respectively.
502.2 Conditions Precedent to Predevelopment Commission Assistance. The
Commission's obligation to provide any component of the Remaining Commission Assistance is conditioned
upon the satisfaction or waiver by the Commission of each and all of the conditions precedent described
below (the "Predevelopment Conditions Precedent"), which are solely for the benefit of the 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 be in Default (as that term is defined in the Note and Deed of Trust) of any of its
obligations under the terms of Section 500 of this Agreement, the Note or the Deed of Trust, and all
representations and warranties of Developer contained therein shall be true and correct.
b. Execution of Documents. The 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.
749838v7C 80078/0022 20
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 the Commission.
d. Financial Statements and Reports. With respect to the rental of the
Affordable Units, upon the Commission's request Developer shall have delivered to the Commission
the financial statements and written annual statements required under Section 503 hereof, and
Commission shall have 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.
L 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 Development Commission Assistance set forth in Section 502.3.
g. Retention; AHP Offset. All disbursements of Commission Assistance or
any portion or component thereof shall be subject to Commission's Retention Policy and the AHP
Offset as set forth in Sections 502.4 and 504.2, respectively.
502.3 Conditions Precedent to Development Commission Assistance. The
Commission's obligation to provide any component of the Development Commission Assistance is
conditioned upon the satisfaction or waiver by the Commission of each and all of the conditions precedent
described below (the "Development Conditions Precedent"), which are solely for the benefit of the
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 be in Default (as that term is defined in the Note and Deed of Trust) of any of its
obligations under the terms of Section 500 this. Agreement, the Note or the Deed of Trust, and all
representations and warranties of Developer contained therein shall be true and correct.
b. Closing. Closing shall have occurred and all the Closing Conditions
Precedent shall have been satisfied by Developer or waived by Commission.
C. Purchase Price Commission Assistance. All the Purchase Price
Conditions Precedent shall have been satisfied by Developer or waived by Commission.
d. Predevelopment Commssion Assistance. All the Predevelopment
Conditions Precedent 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.
f. Execution of Documents. The 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
749838v7C 80078/0022 21
necessary for land acquisition and construction financing and commitments for permanent financing
for the 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 the Commission's request Developer shall have delivered to the Commission
the financial statements and written annual statements required under Section 503 hereof, and
Commission shall have approved the same.
j. Permits and Land Use Approvals. The 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 construction of the Improvements upon the payment of the applicable fees
by the Developer.
IL Payment of Development Fees. The 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 but not limited to, all traffic
mitigation and development impact fees.
1. By -Laws. Developer shall have delivered to Commission, and Commission
shall have approved, Developer's By -Laws, together with all amendments thereto, as provided in the
Grant Deed.
m. Design Review. Commission shall have reviewed and approved the
Drawings for the Project as provided in Section 304.3 hereof.
n. 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.
p. Retention; AfIP Offset. All disbursements of Commission Assistance or
any portion or component thereof shall be subject to Commission's Retention Policy and the AHP
Offset as set forth in Sections 502.4 and 504.2, respectively.
502.4 Retention Policy.
a. The purpose of the 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 $3,925,000. The
$3,925,000 figure is based on the $16,775,606 estimate for "Total Developer Costs" ("Cost
Estimate") as set forth in Developer's proforma dated April 19, 2005, attached hereto and
incorporated by reference as Attachment 13. If the actual Project costs ("Actual Costs") are less
than the Cost Estimate, the Feasibility Gap and thus the 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.
749838v7C 80078/0022 22
b. Commission shall withhold from the sum of $800,000 as the "Retention".
Upon completion of the Project and issuance of the Certificate of Completion, Developer shall
provide Commission with a "Project Statement" 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 Project Statement 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 Project Statement when Commission is satisfied as to the sufficiency of the
additional Documentation received. No less than thirty (30) days after Commission's approval of the
Project Statement, Commission shall release the Retention less any offset for Cost Underruns. In the
event that the Retention is insufficient to compensate Commission for Cost Underruns, Developer
shall pay such sums to Commission within ninety (90) days of Commission's 'written request
therefor. Commission's determination of the Cost Underruns and Feasibility Gap shall be
conclusive. In addition, Commission, in Commission's sole discretion, may elect to deduct the AHP
Offset.(as set forth in Section 504.2) from the Retention.
C. "Documentation" as used in this Section 502.4 means, 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 all other data or financial information used by Developer in the preparation or
support of the Project Statement.
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 Developer Costs, Project costs, and Documentation. Developer shall pay all costs associated
with such audit it Commission determines that the Project Statement, Total Developer Costs and/or
Project costs were overstated and/or the Documentation provided to Commission in connection the
Project Statement was materially incomplete, false, or misleading.
503. Financial 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.
504. Developer's Financing; AHP Financing.
504.1 Developer's Financing. In addition to the Commission. Assistance provided for
in Section 502, the Developer may seek approval of one or more loans from.The California Housing Finance
.Commission and/or federal and/or state Low Income Housing Tax Credits (the "Developer's Financing") for
construction of the Project. Entities or persons extending Developer's Financing are referred to herein as
"Developer's Financing Lenders." The Developer shall complete all actions necessary to secure all approvals
and commitments necessary to effectuate the Developer's Financing, or other alternativefunding, as the case
may be, in an amount satisfactory to undertake and complete the acquisition and rehabilitation of the Project.
504.2 AHP Financing. Developer and Commission acknowledge that Developer will
be submitting an application to the Federal Home Loan Bank of San Francisco pursuant to its Affordable
Housing Program (AHP), and further acknowledge that a portion of the assistance to be provided by
Commission hereunder has been provided with the specific understanding that if Developer obtains an award
749838v7C 80078/0022 23
of AHP funds, the Commission Assistance will be reduced by the amount of excess funding for the project.
Accordingly, if Developer does receive an award of AHP funding, Developer shall repay to the Commission
the amount of such funding, less any increased costs, at the time the AHP funds are received, or in the event
the Commission Assistance has not been fully disbursed at that time, the amount of Commission Assistance
remaining to be disbursed shall be reduced by, such excess amount ("AUP Offset"). Commission, in
Commission's sole discretion, may elect to deduct the AHP Offset from the Retention. Commission and
Developer agree to execute any commercially reasonable documents reasonably necessary to carry out the
intent of these provisions.
505. Subordination of Deed of Trust. As set forth in the Deed of Trust Addendum, upon
written request by Developer, and upon terms and conditions reasonably approved by the Commission, the
Commission will agree to subordinate the Deed of Trust provided for in Section 402, above, to financing
obtained by Developer through the Developer's Financing, or alternative financing obtained by Developer;
provided the total aggregate amount of permanent, long-term financing secured by the Developer together
with the 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 505 and
Section 4 of the Addendum to Deed of Trust. The 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. The Commission shall have the right to record a request that the Commission
receive notice of any default by the Developer under the Developer's Financing or other financing obtained
by the Developer with respect to the Project. To implement any such subordination, the Commission agrees
to cooperate with the Developer and execute such subordination agreements and/or intercreditor agreements
that may be reasonably required, in form and content approved by Commission counsel.
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 the 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 the 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 Section 500 of this Agreement 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 shall give written Notice of Default to the other party specifying the Default complained of.
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, 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, Lender may, at its option, require specific performance of the
Developer's obligations and 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
749838v7C 80078/0022 24
Agreement. Such legal.actions must be instituted .in the Superior Court of the County of Sonoma, State'
f
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, the Developer's right to
recover damages in the event of a Default by the 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 the Commission nor the 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 the Commission Assistance.
604. Acceptance of Service of Process. In the event that any legal action is commenced, by the
Developer against the Commission, service of process on the Commission shall be made by personal service
upon the Executive Director of the Commission or in such other manner as may be provided by law. In the
event that any legal action is commenced by the Commission against the Developer, service of process on
the Developer shall be made by personal service upon _:' 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
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, Demand&and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("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
749838v7C 80078/0022 25
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
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, with respect to
any breach or default
by the Developer
hereunder, to:
Apollo Housing Capital, L.L.0
600 Superior Avenue
Suite 2300
Cleveland, Ohio 44114
Attention General Counsel
Telephone (216) 875-2626
Facsimile: (216) 875-2612
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. 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 the Commission
which shall not excuse performance by the 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 Notice by the
party claiming such extension is sent to the other party within thirty (30) days of the commencement of.the
749838v7C 80078/0022 26
cause. Times of performance under this Agreement may also be extended in writing by the mutual
agreement of the Executive Director of.the 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 the 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. Commission hereby acknowledges that Developer intends to assign this
Agreement to a newly -formed California limited partnership entitled Arbors Rohnert Park Apartments L.P.
of which Burbank Housing Development Corporation will be managing member. Notwithstanding the
foregoing and regardless of Commission's consent, no assignment or sublease shall release Developer or
Burbank Housing Development Corporation under this Agreement or alter the primary liability of Developer
or Burbank Housing Development Corporation to pay the sums due and to perform and to comply with all
other obligations of Developer hereunder. Any assignee pursuant to an assignment consented to by
Commission, including Arbors Rohnert Park Apartments LY., 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 and to City as to the
Parking Agreement.
704. Memorandum of Agreement. A "Memorandum of Affordable Housing and Loan
Agreement" in the form of. Attachment No. 8 attached hereto shall be recorded against the Site immediately
followingexecution of the Agreement by the Commission.
705. Relationship Between Commission and Developer. It is hereby acknowledged that the
relationship between the Commission and the Developer is not that of a partnership or joint venture and that
the Commission and the 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, the Commission shall
have no rights, powers, duties or obligations with respect to the development, operation, maintenance or
management of the Site or the Project. The Developer agrees to indemnify, hold harmless and defend the
Commission from any claim made against the Commission arising from a claimed relationship of partnership'
or joint venture between the Commission and the 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 the Commission, the Executive Director of the Commission or his or her
designee is authorized to act on behalf of the 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 contains the entire understanding between the parties relating
to the transaction contemplated by this Agreement. 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. This Agreement plus Attachment Nos. 1 through 12 constitute the entire understanding and
agreement of the parties, notwithstanding any previous negotiations or agreements between the parties or
749838v7C 80078/0022 27
their predecessors in interest with respect to all or any part of the subject matter hereof.
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 gender 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." 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.
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.
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 sections 6700 and 6701 of the California Government Code. 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 the
Commission and the 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, but not limited to, releases or additional
agreements.
718. Conflicts of Interest. No member, official or employee of the Commission 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
the Developer and delivered to the Commission, must be authorized, executed and delivered by the
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 the Developer shall consent in writing to a further
extension of time for the authorization, execution and delivery of this Agreement.
749838v7C 80078/0022 28
720. Developer's Indemnity. The Developer shall defend (with counsel reasonably acceptable to .
the Commission), indemnify, assume all responsibility for, and hold the Commission and the City, and its
and their officers, employees, volunteers, agents and representatives, harmless from, all claims, demands,
damages, defense costs or liability of any kind or nature relating to the 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 the Developer's activities under this
Agreement, whether such activities or performance thereof be by the Developer or by anyone directly or
indirectly employed or contracted with by the Developer and whether such damage shall accrue or be
discovered before or after termination of this Agreement. The Developer's indemnity obligations under this
Section 720 shall not extend to claims, demands, damages, defense costs or liabilities occasioned by the sole
negligence or willful misconduct of the Commission or the City, or its or their designated agents or
employees.
721. Date of Agreement. The date of this Agreement ("Date of Agreement") shall be the date
first set forth above.
722. Non -liability of Officials and Employees of the Commission and the Developer. No
member, official or employee of the Commission or the City shall be personally liable to the Developer, or
any successor in interest, in the event of any Default or breach by the Commission (or the City) or for any
amount which may become due to the 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 the Commission and the City with respect to any Default or breach by the Commission (or
the City) or for any amount which may become due to the Developer or its successors, or on any obligations
under the terms of this Agreement. The 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 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 722, the Developer hereby waives and relinquishes all rights and
benefits that it may have under section 1542 of the California Civil Code.
Developer Initials
`723. Assignment by Commission. The Commission may assign or transfer any of its rights or
obligations under this Agreement with the approval of the Developer, which approval shall not be.
unreasonably withheld; provided, however, that the 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
the Developer.
724. 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.
725. 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.
726. 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.
749838v7C 80078/0022 29
ATTACHMENT NO. 1
SITE MAP
jInsert,map of Site]
749836v7C 80078/0022 Attachment No. 1
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THE ARBORS AT
ROHNERT
PARK
A NEW PROJECT BY
BURBANK HOUSING CORPORATION
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DESIGNED BY HEDGPETH ARCHITECTS
VICINITY MAP
PROJECT PARTICIPANTS
PROJECT CALCULATIONS
SHEET INDEX
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Developer.
A 56 Unit Subsidized Apartment Project Malo Commencal Renal Space
Sheets prepared by HEDGPETH ARCHITECTS:
�.
BURBANK HOUSINGCORPORATION
3432 Mendocino Avenue
8 Apartment Buildings with etotal of
(16) 635 sq ft, 1 Bedroom, 1 Bath Flats, ADA Adaptable = 10160 st
-
TITLE TIBIe Sheet, Sheet Index, Project Information
Santa Rasa, California 95403
(4)1077 sq ft 2 Bedroom, 2 Bath Townhouses = 8616 st
SITE1 Architectural Site Plan
707-526-1020
(8) 1147 sq A, 2 Bedroom, 2 Batu Townhouses 9176 sf
ft, 3 Bedroom, 2 Bath Townhouses 20480
SITE2 Architectural Site Plan - Parking Study
SITE3 Architectural Site Plan Fire Amass Fire hose length diagram
(16)1280 sq - st
ft, 3 Bedroom, 2 Bath Townhouses - 4920
• and
A2.01 Apartment Buildings Architectural First Floor Plan
It
t
Architect:
HEDGPETH ARCHITECTS
(4)1230 sq sf
4 Mixed -Use Buildings with a total oil
•
A2.02 Apartment Buildings - Architectural Second Floor plan
2321 Bethards Drive
(8) 928 sq ft, 2 Bedroom, I Bath Fiats on Second Floor = 7428 51
A2.03 Apartment Buildings - Architectural Third Floor Plan
Santa Rosa, California 95405
(4)1857 st Commercial Spaces on First Floor= 7428 st
A3.01 Apartment Buildings -Architectural Roof Plan
7075237010
Management Office, Community Room, Kitchen, Meeting Rooms 8 Laundry
A4.01 Apartments Buildings • Exterior Elevations
Coverage
A4.02 Apartment Buildings -Connecting Pergola Arbors, Trash Enclosures
Plans
Civil Engineer
CARLILE • MACY
Building Area and Lot Calculations:
Lot Coverage -
M2.01 Mixed Use Building - Architectural Floor
M4.01 Mixed Use Building - Exterior Elevations
15 Third Street
Apartment Building Footprints - total 25.016 sq ft
r3 u
Santa Rosa, Caiitomia 95401
Mixed Use Building Footprint - to al 7424 sq ft
ar(� wi
707.542.6451
Maintenance Workshop Foobdnt - 204 sq A
TOTAL FOOTPRINTAREA. 32,644 sq ft
Sheets prepared by CARLILE MACY CIVIL ENGINEERS:
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Landscape ArchilecL
Lot Area - 87,484 sq 0 = 2 007 acres
C-1 Preliminary Grading Plan
1
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OUADRGA LANDSCAPE ARCHITECTURAL B PLANNING, INC.
536 8 Street, 2nd Floor
32,6441 87,484= 37.3%LOTCOVERAGE
Floor Area Ratio (FAR)
C-2 Preliminary Utility Plan
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Santa Rosa. California 95401
707.546-3561
Apartment Buildings Total Floor Area - 49,044 sq ft
Apartment Buildings Garages Total Floor Area - 11 ,568 sq ft
Mixed UseBuiding Total Floor Area -total 14,848s ft
Maintenance Workshop Area • 204 sq A
Sheets prepared by OUADRIGA LANDSCAPE ARCHITECTS:
L-1 Schematic Landscape Plan
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TOTAL FLOOR AREA -75,664sgft
Lot Area -87,484 sgftx2= 174,968 ALLOWABLE FLOOR AREA
75.664 J 174,968 = 43.24% of Allowable Floor Area Ratio
L-2 Schematic landscape Elevations
PROJECT INFORMATION
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Assessors Parcel Numbers. 143-051063 8 143051.064
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Zoning: Mixed -Use
-
Parking Calculations (total 109),
(97) On Site Spaces (1.73 per unit)
y'�w'sr'.va��,,�'� 4*,.
Current Sita Use: Civic Community Activity Building, and open space
(4B) in garages
(i611nwest parking lot
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(33) In east parking lot
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(12) On Street Spaces for. Commercial Visitors
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(2) 928 SO FT SECOND STORY FLATS- EACH 2 BEDROOM, I BATH pQ,t �naora0a '(2(928 SO FT SECOND STORY FLATS- EACH 2 BEDROOM, I BATH
FIRST FLOOR
Mixed -Use Building
THE ARBORS at Rohnert Park
Burbank Housing Corporation
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Burbank Housing Corporation
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ATTACHMENT NO.2
SITE LEGAL DESCRIPTION
[Insert legal description of Stte]
749836v7C 80078/0022 Attachment No. 2
Description:
The land referred to herein is situated in the State of California, County of Sonoma, City of
Rohnert Park, and is described as follows:
PARCEL ONE:
PARCEL 2, AS SHOWN ON THE MAP ENTITLED ROHNERT PARK, PARCEL MAP NO. 107, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SONOMA COUNTY ON JUNE 18, 1986, IN BOOK 385
OF MAPS, AT PAGES 17 AND 18, SONOMA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3, AS SHOWN ON THE MAP ENTITLED ROHNERT PARK, PARCEL MAP NO. 107, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SONOMA COUNTY ON JUNE 18, 1986, IN BOOK 385
OF MAPS, AT PAGES 17 AND 18, SONOMA COUNTY RECORDS.
APN: 143-051-063 and 143-051-064
Page 3
Order No.: 56201-62239411-LOH
At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions
contained in said policy form would be as follows:
1. General/Special Property Taxes for fiscal year 2004 - 2005 and possible prior years were not
assessed.
2_ The Lien of Supplemental Taxes, if any, assessed pursuant to the provisions of Chapter 3.5
(commencing with Section 75) of the Revenue and Taxation Code of the State of California.
3. A Building Setback Line as shown on the map of said tract.
Subdivision: Rohnert Park, Parcel Map No. 107
Book: 385
Page: 17 through 18
Affects: Southerly 30 feet
4. An easement affecting the portion of said land and for the purposes stated herein, and incidental
purposes, shown or dedicated by the map of:
Subdivision: Rohner( Park, Parcel Map No. 107
Book: 385
Page: 17 through 18
Purpose: Public utility
Affects: Southerly 5 feet
Purpose: Bicycle and Landscape
Affects: Northerly 20 feet
5. The fact that said land is included within a project area of the Redevelopment Agency shown
below, and that proceedings for the redevelopment of said project have been instituted under the
Redevelopment Law (such redevelopment to proceed only after the adoption of the
redevelopment plan) as disclosed by a document.
Redevelopment Agency: The Rohnert Park Community Development Project Area
Recorded: July 16, 1987
Instrument No.: 87-067645
Page 4
Order No.: 56201-62239411-LOH
ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE
749836v7C 80078/0022 Attachment No. 3 Page 1
Action
Date
1.
Execution and Delivery f Agreement by
Within thirty (30) days after delivery to the
Commission of three (3) executed originals.
(NOTE: This is the Date of Agreement)
Commission and Recordation of Memorandum of
Agreement.
The 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
construction
The Developer shall submit its evidence of
financing for development of the Site. (§501)
3.
Commission Approval/Disapproval of Developer
Within twenty (20) days after submission by the
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
The Developer shall have completed its
Agreement, but in any event, prior to Conunission
investigation of the environmental condition of the.
opening Escrow.
Site and provided the required notice to the
Commission. (§ 106.1)
5.
Insurance.
Not later than fifteen (15) days prior to the Closing.
The Developer shall furnish evidence of the
insurance required under the Agreement to the
Commission. (§305)
6.
Developer to Deposit in Escrow.
Not later than five (5) days prior to the Closing.
Developer shall deposit Note and Deed of Trust in
Escrow. (§201)
7.
City and Other Government Permits.
Prior to the commencement of construction.
The Developer shall secure all permits, other than
building permits, for the development of the Site.
(§302)
8.
Reparcelization of the Site.
On or before the Closing.
The Developer shall have completed the
re arcelization of the Site. (§ 1.08
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.
Closin .
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 the Developer.. (Purchase and Sale Agreement§
Precedent, but in no event later than December
A; Joint Escrow Instructions, §Attachment 4, §3)
20Q6 (the "Outside Date") �staffto:c" nfri r date]
1 1 .
Issuance of Closure Letters.
Within ninety (90) days following the Closing.
If remedial work is required, the Developer shall
have obtained closure letters and provided copies of
such closure letters to the Commission. (§ 106.1)
749836v7C 80078/0022 Attachment No. 3 Page 1
Action
Date
12. Completion of Construction of Developer's
On or before twenty-four (24) months following the
Closing.
Improvements.
The Developer shall complete construction of the
Improvements.
13. Certificate of Completion.
Within thirty (30) days following satisfactory
The Commission shall provide the Certificate of
completion of all Improvements and the Developer's
Completion to the Developer. (§312)
written request 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.
749836v7C 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 ROI -INERT PARK, a public body corporate and politic (the "Commission"), and BURBANK
HOUSING DEVELOPMENT, a California nonprofit public benefit corporation (the "Developer"), shall
constitute joint escrow instructions of Developer and Commission for the purchase and sale transaction
contemplated under the Purchase and Sale Agreement by and between the parties dated March 24, 2004
("Purchase and Sale Agreement") and the Affordable Housing and Loan Agreement by and between the
parties dated 3 „ ("Agreement").
1. Escrow Instructions. This Attachment No_ 4, the Agreement, and the Purchase and Sale
Agreement constitute joint escrow instructions of the Developer and the Commission, and the 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 this Escrow in the shortest possible time. Insurance policies for fire
or casualty are not to be transferred, and Conunission will cancel its own policies, if any, after the Closing.
All funds received in the 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.
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
Attachment No. 4, the Agreement, the Purchase and Sale 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 the 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
Purchase and Sale Agreement.
time of Closing.
d. Record the Affordable Housing and Maintenance Covenant against the Site at the
e. Deliver the Note to Commission.
f. Deliver and record the Grant Deed, when both the Developer's and the
Conunission's Conditions Precedent to Closing have been fulfilled or waived in writing by Developer and/or
Commission as applicable.
Record the Deed of Trust (including the Addendum thereto).
749836v7C 80078/0022 Attachment No. 4 Page 1
h. Disburse the Purchase Price to Commission.
i. Do such other actions as necessary, including obtaining the Title Policy and the
Lender's Policy, to fulfill its obligations under the Agreement.
j. 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.
k. Prepare and file with all appropriate governmental or taxing authorities a uniform
settlement statement, closing statement, tax withholding forms including an IRS 1099-5 form, and be
responsible for withholding taxes, if any such forms are provided for or required by law.
I_ 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. Closing. Except as otherwise agreed by the parties in writing, the Conveyance of the Site by
m
Comission to the 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 on 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 Covenant with instructions for the Recorder of Sonoma County,
California to deliver the Covenant to Commission;
C. Deliver the Note and record the Deed of Trust with instructions for the Recorder of
Sonoma County, California to deliver the Deed of Trust to Commission.
d. Instruct the Title Company to deliver the Title Policy to Developer;
e_ 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
g. Forward to both Developer and Cormnission a separate accounting of all funds
received lrom 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
749836v7C 80078/0022 Attachment No. 4 Page 2
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, the Commission and the Developer have executed these Joint
Escrow Instructions on the respective dates set forth below.
Dated:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:
Name:
Its:
By:
Name:
Its:
"DEVELOPER"
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROI -INERT PARK, a public body
corporate and politic
Dated: By:
Its:
"COMMISSION"
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
749836v7C 80078/0022 Attachment No. 4 Page 3
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
749836v7C 80078/0022 Attachinent No. 4 Page 4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Community Development Commission
of the City of Rohnert Park
6750 Corrunerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
ATTACHMENT NO. 5
(Space .4 bo re This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code § 273831
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 Connnunity Redevelopment Law of the State of California, hereby grants
to Burbank Housing Development, a California nonprofit public benefit corporation (herein called
"Grantee"), the real property (the "Site") legally described in the document attached hereto, labeled
Exhibit A, and incorporatedherein by this reference.
1. The Site is conveyed subject to the Redevelopment Plan and pursuant to an Affordable
Housing and Loan Agreement (the "Agreement") entered into by and between the Grantor and the Grantee
dated ti ��� n 2005. 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 (the
"Memorandum") dated concurrently herewith and recorded against the Site. Capitalized terns not otherwise
defined herein shall have the meanings ascribed to such terms in the Agreement.
2. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that
during construction and thereafter, the Grantee shall not use the Site for uses other than the uses specified in
the Redevelopment Plan.
3. Pursuant to the Agreement, Grantee shall develop twelve (12) buildings containing fifty-six
(56) residential units with accessory ground floor commercial tenant spaces along the City Hall Drive
frontage, comprised of (a) eight (8) residential buildings featuring sixteen (16) one-bedroom/one-bath flats,
twelve (12) two-bedrooin/two-bath townhouses, twenty (20) three-bedroom/two-bath townhouses, (b) four
(4) mixed-use buildings containing eight (8) two-bedroom/one-bath flats and approximately 7,500 square
feet of commercial space within which the project's manager's office and community rooms would be
housed, (c) ancillary recreational, open space and parking uses, and (d) appurtenant on-site and off-site
improvements (including the Public Improvements, as defined in Section 301.2 of the Agreement) to be
constructed and installed by Developer as set forth in the Agreement and in the Scope of Development
(collectively, the "Improvements"). As set forth in the Affordable Housing and Maintenance Covenant,
twenty-two (22) of the residential units shall be affordable to Very Low hlcome Persons or Households, and
thirty-four (34) of the residential units shall be affordable to Lower Income Persons or Households (provided
that the Participant may, in its sole reasonable judgment, elect to have a property manager residing on the
Site, in which event one (1) of the Lower Income units may be used as a resident "Manager's Unit," and the
remaining thirty-three (33) units shall be available to Lower Income Persons or Households). The fifty-six
(56) residential units (excluding the Manager's Unit) are collectively referred to herein as the "Affordable
749836v7C 80078/0022 Attachment No, 5 Page 1
Units". The Affordable Units shall only be rented to Eligible Households, all in accordance with the terms of
the Affordable Housing and Maintenance Covenant dated concurrently herewith and recorded against the
Site (the "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 Eligible Households in accordance with the Covenant.
4. Grantee shall maintain the private improvements and public improvements and landscaping
to the curbline(s) on and abutting the Site in accordance with the Maintenance Standards, as defined in the
Covenant.
5. Prior to the issuance of a Certificate of Completion by the Grantor as provided in the.
Covenant, the 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 an Eligible Household
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, the 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 the Cormnission; 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 the 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 pem-utted 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 the Commission.
749836v7C 80078/0022 Attachment No. 5 Page 2
b. This option shall be subordinate and subject to and be limited by and shall not
defeat, render invalid or limit:
Any mortgage, deed of trust or other security instrument permitted by the
Agreement; or
It. Any rights or interests provided in the Agreement for the protection of the
holder of such mortgages, deeds of trust or other security instruments; or
Hi. Any rental or lease agreement entered into by Developer that is not in
violation of the Agreement.
C. To exercise its right to repurchase, reenter and take possession with respect to the
Site or any portion thereof, the Commission shall pay to the Developer in cash an amount equal to:
The amount of the Purchase Price paid by Developer to Commission for the
Site; plus
ii. The out-of-pocket costs actually incurred by the Developer for on-site labor
and materials for the construction of the Improvements existing on the Site (but specifically excluding the
Public Improvements) at the time of the repurchase, reentry and repossession (exclusive of amounts
financed, if any, to the extent such financing obligations are assumed by the Commission); less
iii. Any net gains or net income withdrawn or made by the 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
V. The amount of unpaid liens on the Site, the City's', or the Commission's
property, or such portion thereof which the Commission agrees to pay, and any unpaid current or past -due
installments of assessments against the Site or such portion thereof which the Commission agrees to pay.
d_ In order to exercise such repurchase option, the Commission shall give Developer
Notice of such exercise and Developer shall, within thirty (30) days after Developer's receipt of such Notice,
provide the Commission with a summary of all of the Developer's costs incurred as provided above. The
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 the Commission a grant deed
transferring to the Commission all of Developer's interest in the Site_
7. The 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 the 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:
749836v7C 80078/0022 Attachment No. 5 Page 3
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 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 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 pemut 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."
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 to the terms and conditions of the
Affordability Regulations, as defined in the Agreement. Commission shall consider subordination of the
Affordability Restrictions to Developer's construction or permanent financing in accordance with the
Convnunity Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.).
In the event of a conflict among any of the Affordability Regulations, the more stringent shall control.
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
749836v7C 80078/0022 Attachment No. 5 Page 4
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 Agreernent.
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, without
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.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on
their behalf by their respective officers thereunto duly authorized thisM day of
2004.
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:
Its:
/Signature must be notarized/
The provisions of this Grant Deed are hereby approved and accepted.
"GRANTOR"
749836v7C 80078/0022 Attachment No. 5 Page 5
Dated:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:—
Name.-
Its:—
By:
y:Name:Its:By:
Name:
Its:
ISiquature must he uotarizedl
"GRANTEE"
749836v7C 80078/0022 Attachment No. 5 Page 6
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , 20 , before me, the
undersigned, personally appeared .
( ) personally known to me
( ) proved tome 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 )
On , 20 , before me, the
undersigned, personally appeared
( ) personally known to me
( ) 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
749836v7C 80078/0022
EXHIBIT A
LEGAL DESCRIPTION OF TIIE SITE
749836v7C 80078/0022 Attachment No. 5
Exhibit A
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 5 6103.
CERTIFICATE OF COMPLETION
OF CONSTRUCTION AND IMPROVEMENT
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT PARK, a public body corporate and
politic (the "Commission"), in favor of Burbank Housing Development Corporation, a California nonprofit
public benefit corporation (the "Developer"), as of the date set forth below.
RECITALS
A. The Commission and the Developer have entered into that certain Affordable Housing and
Loan Agreement (the "Agreement") dated ,',u� ;, ,: 200, = 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, the Commission is required to furnish the
Developer or its successors with a Certificate of Completion upon completion of construction of the
Improvements (as defined in Recital A of the Agreement), which Certificate is required to be in such form as
to permit it to be recorded in the Recorder's Office of Sonoma County. This Certificate is conclusive
determination of satisfactory completion of the construction and development required by the Agreement.
C. The Commission has conclusively determined that such construction and development has
been satisfactorily completed.
NOW, THEREFORE, the Commission hereby certifies as follows:
1. The work of Improvements to be constructed by the 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.
749836v7C 80078/0022 Attachment 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 the 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, the Commission has executed this Certificate this, day of
COMMUNITY DEVELOPMENT COMMISSION OF
THE.CITY OF ROHNERT PARK,
a public body corporate and politic
By:
Its:
ATTEST:
Commission -Secretary
APPROVED AS TO FORM:
General Counsel
/Signature must be notarized/
749836v7C 80078/0022 Attachment No. 6 Page 2
EXHIBIT "A"
SITE DESCRIPTION
749836v7C 80078/0022 Attachment No. 6
Exhibit A
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On 120
undersigned, personally appeared
, before me,
personally known to me
proved to me on the basis of satisfactory evidence
the
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
749836v7C 80078/0022
ATTACHMENT NO. 7
AFFORDABLE HOUSING AND MAINTENANCE COVENANT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL Tb:
Community Development Commission
of the City of Rolinert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: Executive Director
This document is exempt from the payment of a recording fee
pursuant to Govermnent Code § 27383.
AFFORDABLE HOUSING AND MAINTENANCE COVENANT
For valuable consideration, the receipt of which is hereby acknowledged, BURBANK HOUSING
DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation ("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 (the "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
200, between Developer and Commission (the "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 (the
"Covenant") as specified below.
I . USE OF THE SITE. Developer hereby covenants and agrees that during the term of this Affordable
Housing and Maintenance Covenant (the "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 of a fifty-six (56) unit multi -family residential rental housing project 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 1.13(l), all of the units (other than the Manager's Unit)
within the Project shall be restricted to households of very low and low income.
B. Rent and Income Restrictions.
(1) All of the residential units (other than the Manager's Unit) of the Project shall be
rent -restricted (the "Affordable Units"). Twenty-two (22) of the Affordable Units shall be occupied by Very
Low Income Persons or Households whose gross income is fifty percent (50%) or less 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,
and thirty-four (34) of the Affordable Units shall be affordable to Lower Income Persons or Households
(provided that the Participant may, in its sole reasonable judgment, elect to have a property manager residing
749836v7C 80078/0022 Attachtnent No. 7 Page
on the Site, in which event one (1) of the lower income units may be used as a resident "Manager's Unit," and
the remaining thirty-three (33) Affordable Units shall be occupied by households whose gross income is
eighty percent (80%) or less of Area Median Income as adjusted by household size for Sonoma County, or
such other percentage or such other standard as set from time to time pursuant to California Health and
Safety Code section 5,0079.5, as amended, or any successor statute thereto, (collectively "Eligible
Households"). Rent shall be no greater than that considered as "affordable rent" for very low or low-income
households, as applicable, 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 (the "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 or 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 an occupant of an Affordable Unit no longer qualifies for the income category
designated for that Affordable Unit, the occupant may continue to occupy the Affordable Unit. If the gross
income exceeds applicable limitations on Area Median Income, the unit may be rented at market rents. The
former Very Low or Lower -Income Household who has ceased to qualify as such shall be deemed to
continue to be a Very Low or Lower -Income household (respectively) for the purposes of the very low or
lower-income (respectively) unit requirements of Subsection 1.13(1), until the rental of the next available unit
of comparable size to a new Very Low or Lower -Income Household (respectively) 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. Developer shall 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. Developer shall comply with the provisions of
Developer's 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, has a history of poor performance in meeting financial
obligations, especially rent, disturbance of neighbors, destruction of property, poor housekeeping habits such
as damage to the unit or the existence of health and sanitation hazards, poor landlord references, history of
criminal activity involving crimes of physical violence to persons or property, unlawful drug activity, or
other acts which would adversely affect the health, safety or welfare of other residents, or has, in the five (5)
years preceding the application, been evicted by a court of law. Examples of poor financial performance
shall include but not be limited to the existence of accounts sent to collection for non-payment;credit
accounts of status "3" or more, unpaid judgments, repossessions, outstanding liens, bankruptcy, more than
two late rent payments within 12 months (consideration will be given in instances where tenant's rent was
unusually high in proportion to household income) and where the total amount of outstanding credit.
payments plus the projected rent exceeds 60% of gross income. The Developer or its agent may not use
marital status in determining eligibility. A potential tenant refused a rental unit or a place on a waiting list
shall be notified in writing stating the reasons for such determination and the procedure for appeal of this
decision.
749836v7C 80078/0022 Attachment No. 7 Page 2
D. Reporting Requirements. At the Commission's request, annual reports and annual income
certifications or recertifications must be submitted to the Commission. The reports, at a minimum, shall
include:
(1) The number of persons per unit;
(2) Tenant name;
(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 by Developer to certify the tenant as an Eligible
Household with copies available on request.
The first annual report and annual income certification (the "Initial Report") shall be
submitted to the 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 recertifications sha11 be
submitted to the Commission on the anniversary date of submittal of the Initial Report. The Commission
may, from time to time during the term of this Covenant, request additional or different information and
Owner shall promptly supply such information in the reports required hereunder. Owner shall maintain all
necessary books and records, including property, personal and financial records, in accordance with
requirements prescribed by the Commission with respect to all matters covered by this Covenant. Owner, at
such time and in such forms as the 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 the Commission, Owner, at any time during normal business hours, shall make available all
of its records with respect to all matters covered by this Covenant. Owner shall permit the Commission to
audit, examine and make excerpts 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, 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 Sitethatcomplies 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 the 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. Developer shall request approval by written notice at least sixty (60)
749836v7C 80078/0022 Attachment No. 7 Page 3
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 the Developer and its managing member or partner is of
particular concern to the Commission. It is because of the demonstrated qualifications and identity that the
Commission has entered into the Agreement with the Developer. No voluntary or involuntary successor in
interest of the 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. The 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 the Commission's Executive Director. The documentation to be provided by
Developer to the Commission's Executive Director may include, without limitation, all loan documents in
connection with any proposed refinancing and all documentation which Corrunission's Executive Director
determines is reasonably necessary to evaluate the proposed transaction and the proposed
assignee's/transferee's experience and qualifications. The 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 the Commission's Executive Director is financially capable and has the development
qualifications and experience to perform the duties and obligations of the Developer hereunder.
Prior to any proposed assignment being considered for approval by the Commission's
Executive Director, the Developer shall deliver to the 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 the 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 the Developer which arose prior to the effective date of the assignment.
The assignment and assumption agreement shall be in a form reasonably acceptable to the Commission's
legal counsel. No later than the date the assignment becomes effective, Developer shall deliver to the
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, the 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 the
Commission's Executive Director. Assignments for financing purposes shall be subject to review and
approval by the Commission's Executive Director in accordance with this Section 2 and with the
requirements of Section 313.1 of the Agreement. The Commission's Executive Director shall have the right
to disapprove any transfer, assignment or refinancing, which would diminish or otherwise impair the ability
of the 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 right(s) hereunder without the prior written approval of the
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:
749836v7C 80078/0022 Attachment No. 7 Page 4
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;
The continued operation of the Project shall comply with the provisions of the Agreement
and the Covenant;
Either (i) the purchaser or assignee or its property manager has at least three 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;
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
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. Notwithstanding any other provision of the Agreement to the
contrary, Commission 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.-
(1)
ollowing:(1) Subject to Developer submitting the assignment and assumption agreement referred
to above and the approval of such agreement by the Conunission, 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.)
(2) Transfers resulting from the death or mental or physical incapacity of any member
or partner of Developer;
(3) The granting of temporary or permanent easements or permits to facilitate
development of the Project;
(4) Any assignment for financing purposes (subject to such financing being considered
and approved by Con mission 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 funds necessary for construction and
permanent financing of the Project;
749836v7C 80078/0022 Attachment No. 7 Page 5
(5) 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);
(6) 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;
(7) . 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 limited partner of Developer;
(8) The admission of any new non -managing member or limited partner to Developer;
(9) 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;
. (10) 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;
(11) 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;
(12) The transfer of the Project to a limited partnership in which the 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;
(13) The transfer of any limited partnership interests in Developer; and
(14) The removal of the general partner of Developer, provided that any successor
general partner has been approved by the Commission in its reasonable discretion, unless such successor
general partner is the Lumted Partner (as defned m Section 3 3'3 of the Agreement}
In the event of an assignment or transfer by Developer under the above Subsections (1) through (14),
inclusive, not requiring the 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 the
Commission'.s Executive Director for the purpose of determining compliance of such assignment or transfer
with the requirements of Subsections (1) through (14) inclusive.
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 the Conunission
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 the
749836v7C 80078/0022 Attachment No. 7 Page 6
Covenant (excluding repayment of any portion of the Commission Assistance not actually disbursed to such
transferee).
Nothing in this Covenant shall be deemed to restrict Developer's right to encumber the Site for the
benefit of lenders providing financing for the Site permitted pursuant to Section 313 of the Agreement.
F. Amendments to By -Laws. Before entering into any amendment to the By -Laws (as that
term is defined in the Agreement) approved by the Commission, Developer shall first submit the proposed
amendment to the Co►nmission's Executive Director who shall .have the right to reasonably disapprove any
such amendment which would materially diminish or otherwise impair the ability of the Developer to fulfill
its duties and obligations under the Agreement and the Covenant. Within thirty (30).days following receipt of
the proposed amendment, the 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. NODISCRIMINATION. 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 (but specifically excluding the Public
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 perforn 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. The 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") shalI 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 perforated to ensure that all cuttings, weeds, leaves and other debris
are properly disposed of by maintenance workers.
749836v7C 80078/0022 Attachment No. 7 Page 7
(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.
(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. The 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 Cormnission upon demand all charges and costs
incurred by Commission or City for such maintenance. Until so paid, the 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 the Commission created or claimed hereunder 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 way
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. No lien in
favor of the Coni nission created or claimed hereunder shall in any way defeat, invalidate, or impair the
obligation or pnority.of any lease, sublease or easement unless such instrument is expressly subordinated 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 Nineteen Thousand Six Hundred Dollars ($19,600.00)
or Three Hundred Fifty Dollars ($350.00) per apartment unit, whichever is greater, into a special capital
replacement and repair reserve account maintained with the Developer's lender approved by the Commission
(the "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,
749836v7C 80078/0022 Attachment No. 7 Page 8
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 Covenant or the Certificate of
Completion, whichever occurs later. The covenants set forth at Section 3 shall remain in effect in perpetuity.
8. SUCCESSORS AND ASSIGNS. Tile 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 partthereof. 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 for Approved Lenders (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, the 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
749836v7C 80078/0022 Attachment No. 7 Page 9
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 the Commission:
(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
749836v7C 80078/0022 Attaclunent No. 7 Page 10
Commission fails to conunence 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 the Developer contained in the Agreement and this Covenant will be deemed applicable to any
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 the 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 indenuiification 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 the 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 patties, 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 Commission to 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 deterniined. by Commission in its 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 ternis and conditions of Affordability
Regulations. Commission shall consider subordination of Affordability Restrictions to Developer's
construction or permanent financing in accordance with the Community Redevelopment Law of the State of
California (Health and Safety Code section 33000, et seq.). In the event of a conflict among any of the
Affordability Regulations, the more stringent shall control.
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
749836v7C 80078/0022 Attachment No. 7 Page 1 1
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 deliver}; 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.
To Commission: Community Development Commission of the City of
Rolunert 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 Cornmerce Boulevard
Rohnert Park, California 94928
Attention: City Attorney
Telephone: (707) 588-2227
Facsimile: (707) 588-2274
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, with respect to Apollo Housing Capital, LLC
any breach or default 600 Superior Avenue, Suite 2300
by the Developer Cleveland, Ohio 44114
hereunder, to Attention General Counsel
Telephone (216) 875-2626
Facsimile: (216) 875-2612
749836v7C 80078/0022 Attachment No. 7 Page I2
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.
IN WITNESS WHEREOF, Commission and Developer have caused this Covenant to be executed on
their behalf by their respective officers thereunto duly authorized.
Dated:
Dated:
Dated for reference purposes only as of 'F, ��
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:_
Name:
Its:—
By:—
Name:
ts:By:_Name:
Its:
/Signature must be notarized/
"DEVELOPER"
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF R014NERT PARK, a public body
corporate and politic
By:
Its:
"COMMISSION"
/Signature must be notarized/
749836v7C 80078/0022 Attachment No. 7 Page 13
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
749836v7C 80078/0022 Attachment No_ 7 Page 14
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
If BeIriserted]':
749836v7C 30078/0022 Attachment No. 7
Exhibit A
STATE OF CALIFORNIA )
ss.
COUNTY OF
On , 20 , before me, the
undersigned, personally appeared
( ) personally known to me
( ) 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 )
4
On 120 , before me, , the
undersigned, personally appeared
( ) personally known to me
( ) 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
749836v7C 80078/0022
ATTACHMENT NO. 8
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 § 6103.
MEMORANDUM OF AFFORDABLE HOUSING AND LOAN AGREEMENT
THIS MEMORANDUM OF AFFORDABLE HOUSING AND LOAN AGREEMENT
("Memorandum"), dated for identification purposes as of . „• „ •, , 200 , is entered into
by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK, a public body, corporate and politic ("Commission"), and BUR SANK HOUSING DEVELOPMENT
CORPORATION,.a California nonprofit public benefit corporation ("Developer).
I . Affordable Housing and Loan Agreement. Commission and Developer have executed an
Affordable Housing and Loan Agreement ("Agreement") dated for identification purposes as of
�R
� .,.. m
_._ ... 200 which provides, among other things, for (i) Comission s disposition
to Developer of that certain real property (the "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 the Site consisting of twelve (12) buildings containing fifty-six (56)
residential units with accessory ground floor commercial tenant spaces along the City Hall Drive frontage
comprised of (a) eight (8) residential buildings featuring sixteen (16) one-bedroom/one-bath flats, twelve
(12) two-bedroom/two-bath townhouses, twenty (20) three-bedroom/two-bath townhouses, (b) four (4)
mixed-use buildings containing eight (8) two-bedroom/one-bath flats and approximately 7,500 square feet of
commercial space within which the project's manager's office and community rooms would be housed,
(c) ancillary recreational, open space and parking uses, and (d) appurtenant on-site and off-site improvements
(including the Public Improvements, as defined in Section 301.2 of the Agreement) 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
m '�����_
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, Rol -inert 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 hereby
749836v7C 80078/0022 Attachment No. 8 Page I
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.
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:
Dated:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:
Name:
Its:—
By:—
Name:
ts:By:Name:
Its:
"DEVELOPER"
/Signature must be notarized/
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK, a public body
corporate and politic
By:
Its:
"COMMISSION"
/Signature must be notarized/
749836v7C 80078/0022 Attachment No. 8 Page 2
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
749836v7C 80078/0022 Attachment No. 8 Page 3
EXHIBIT A
LEGAL DESCRIPTION OF SITE
[rTo Be "Inserted]
749836v7C 80078/0022 Attachment No. 8
Exhibit A
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 20 , before me, the
undersigned, personally appeared
( ) personally known to me
( ) 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 )
On , 20 , before me, the
undersigned, personally appeared
( ) personally known to me
( ) 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
749836v7C 80078/0022
ATTACHMENT NO. 9
FORM PROMISSORY NOTE
COMMISSION ASSISTAN
Not to Exceed
$3,925,000
811EXIM, 20,D,,
Rohnert Park, California
FOR VALUE RECEIVED, BURBANK HOUSING. DEVELOPMENT CORPORATION, a
California nonprofit public benefit corporation("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 ROI -INERT PARK, ("Lender"), the principal sum of Three Million, Nine
Hundred Twenty -Five Thousand DOLLARS ($3,925,000), 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 (the "Agreement") between Borrower and Lender dated
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 (the "Site").
2. Secured by Deed of Trust. Payment of this Note is secured by a deed of trust, assignment of
rents, security agreement and fixture filing (the "Deed of Trust") from Borrower to Lender upon the. Site.
This Note is non-recourse except as set forth in Commission's Retention Policy Retention Policy as set forth
in Section 502.4 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 Commission's
Retention Policy and the AHP Offset as set forth respectively in Sections 502.4 and 504.2 of the Agreement.
3. Purpose. Pursuant to the Agreement, the Site will be developed with fifty-six (56)
residential units. The fifty-six (56) residential units (excluding the Manager's Unit) are collectively referred
to herein as the "Affordable Units". 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.
The 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, the Commission
agrees to loan to the Developer an amount maximum loan of $3,925,000 (the "Commission Assistance"). As
set forth in the Agreement, such Corrunission Assistance is comprised of the "Purchase Price" of $1,335,000
to pay a portion of the costs to acquire the Project ("Purchase Price"), and the "Remaining Commission
Assistance" consisting of $500,000 intended to pay a portion of those costs related to the pre -development of
the Project and $2,090,000 of which is intended to pay for a portion of the costs of development and
construction of the Project. Upon written request by Developer and written consent of Commission, the
Commission Assistance may be reallocated among the Purchase Price, Predevelopment Commission
Assistance and Development Commission Assistance so long as the Commission Assistance does not exceed
the maximum amount of $3,925,000. No portion of the Conu7ussion 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 detenuine Developer's use or application of the
disbursements. All disbursements of Commission Assistance or any portion or component thereof shall be
subject to Commission's Retention Policy and the AHP Offset as set forth respectively in Sections 502.4 and
504.2 of the Agreement.
749836v7C 80078/0022 Attachment No. 9 Page I
5_ Interest. Simple interest on the unpaid principal balance will accrue from the date of
advance at an annual rate equal to two percent (2%). Lender's conditions precedent to disbursement are as
set forth in the Agreement.
6. Method of Calculating 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. Notwithstandinp-
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
Payment Method and Application.
a. 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: Executive 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
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.
b. Developer and Commission acknowledge that Developer will be submitting an
application to the Federal Home Loan Bank of San Francisco pursuant to its Affordable Housing Program
(AHP), and further acknowledge that a portion of the assistance to be provided by Commission hereunder
has been provided with the specific understanding that if Developer obtains an award of AHP funds, the
Commission assistance will be reduced by the amount of excess funding for the project. Accordingly, if
Developer does receive an award of AHP funding, Developer shall repay to the Commission the amount of
such funding, less any increased costs, at the time the AHP funds are received, or in the event the
Commission assistance has not been fully disbursed at that time, the amount of Commission assistance
remaining to be disbursed shall be reduced by such excess amount. Commission and Developer agree to
execute any documents reasonably necessary to carry out the intent of these provisions.
9. Default. The occurrence of any of the following shall at Lender's option constitute a
"Default" under this Note: (i) Borrower fails to pay any amount due hereunder within fifteen (15) days of its
due date; (ii) any default by Borrower under Section 500 of the Agreement, 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,
Deed of Trust, or Purchase and Sale 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 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
749836v7C 80078/0022 Attachment No. 9 Page 2
sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly,
whether voluntarily or involuntarily or by operational law (collectively, the "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,
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, (i) if after default this Note be placed in the hands of an attorney
or attorneys for collection, (ii) if after a Default hereunder or under the Deed of Trust, or Section 500 of the
Agreement, 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 this Note, the Deed of Trust, or Section 500 of the Agreement, 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 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 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 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.
749836v7C 80078/0022 Attachment No. 9 Page 3
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
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 s
Telephone
Facsimile`:..,
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
749836v7C 80078/0022 Attachment No. 9 Page 4
and, with respect to
Apollo Housing Capital, LLC
any breach or default.
600 Superior Avenue, Suite 2300
by the Developer
Cleveland, Ohio 44114
hereunder, to:
Attention General Counsel
Telephone (216) 875-2626
Facsimile: (216) 875-2612
.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 Deed of Trust. Lender in its sole discretion may 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:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:_
Name:
Its:—
By:—
Name:
ts:By:_Name:
Its:
"BORROWER"
749836v7C 80078/0022 Attachment No. 9 Page 5
ATTACHMENT NO. 10
COMMISSION DEED OF TRUST
[STANDARD FORM OF DEED OF TRUST FROM A
TITLE COMPANY APPROVED BY COMMISSION TO BE USED WITH THE "ADDENDUM TO DEED
OF TRUST" ATTACHED HERETO]
ADDENDUM TO DEED OF TRUST
(COMMISSION ASSISTANCE)
This Addendum to Deed of Trust is part of the Deed of Trust dated :_ �, 200 to which it
is attached between BUR13ANK HOUSING DEVELOPMENT CORPORATION, a. California nonprofit
public benefit corporation, as Trustor, and the COMMUNITY DEVELOPMENT COMMISSION OF THE.
CITY OF ROHNERT PARK, a public body, corporate and politic, as Beneficiary. The following provisions
are made a part of the 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 discri►nination 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 this Deed of Trust, the occurrence of any
of the following shall constitute an "Default" under the Note and this Deed of Trust, and a Default may be
declared under this 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 Agreement, 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 Agreement, the Covenant, Note, Grant Deed, Deed of Trust, or
Purchase and Sale Agreement to the contrary, no default under those instruments except as specified in
clause 3(11) of this Deed of Trust and clause 9(ii) of the Note shall constitute a "Default" under this 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. Beneficiary agrees that the terms and conditions of the Note and this Deed of
Trust shall be subject to and subordinate to the terms and conditions of Developer's Financing (as defined in
the Agreement), or alternative financing obtained by Trustor through a lender acceptable to Beneficiary for
construction or permanent financing of the Project (as defined in the Agreement); 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 the Commission Assistance (as
defined in the Agreement) shall not exceed the appraised value of the Project; 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
749836v7C 80078/0022 Attachment No. 10 Page 1
notice of default; (iii) Beneficiary shall have the right to foreclose under its 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. The 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. The Commission shall have the right to record a request that the
Commission receive notice of any default by the Developer under the Developer's Financing or other
financing obtained by the Developer with respect to the Project. To implement any such subordination, the
Commission agrees to cooperate with the Developer and execute such subordination agreements and/or
intercreditor 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 Deed of Trust means only
this Deed of Trust, the Note, and Section 500 of the Agreement. Trustor's payment and performance of its
obligations under the Agreement (except for Section 500 thereof), the Covenant, the Grant Deed, and the
Purchase and Sale Agreement are not secured by this 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 (the "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 pernutted 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)(10 subject to the provisions of Code Section 42(h)(6)(E)(i).'
Dated:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation
By:
Name:
Its:
By-.—
Name:
y:Name:
Its:
/Signattere must be notarized/
"TRUSTOR"
749836v7C 80078/0022 Attachment No. 10 Page 2
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , 20 , before me, the
undersigned, personally appeared
personally known to me
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
749836v7C 80078/0022
ATTACHMENT NO. 11
PURCHASE AND SALE AGREEMENT
749836v7C 80078/0022 Attachment No. I I
RESOLUTION NO. 2002-11
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF ROHNERT PARK APPROVING AN ACQUISITION AGREEMENT WITH
THE CITY OF ROHNERT PARK FOR THE PURCHASE OF
ASSESSOR'S PARCEL NUMBERS 143-051-063,143-051-064 (450 CITY HALL DRIVE)
AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE THE AGREEMENT
WHEREAS, one of the primary goals and missions of the Community Development
Commission is to develop and maintain affordable housing within the Redevelopment Project
Area.
WHEREAS, Assessor's Parcel Numbers 143-051-063 and 143-051-064 are within the
boundaries of the Redevelopment Project Area;
WHEREAS, Commission staff identified Assessor's Parcel Numbers 143-051-063 and
143-051-064 as a possible affordable housing project and sought out of non-profit housing
developer to develop a project;
WHEREAS, Commission staff began meeting with Burbank Housing Development
Corporation in early 2002 and on April 8, 2002, Burbank Housing Development Corporation
provided Commission staff with a letter formally expressing their desire to develop an affordable
housing project on Assessor's Parcel Numbers 143-051-063 and 143-051-064;
WHEREAS, at the July 23, 2002 Commission budget study session, staff presented a
$1,750,000 budget to purchase Assessor's Parcel Numbers 143-051-063 and 143-051-064 and
this project budget was formally appropriated from the Low and Moderate Income Housing Fund
at the August 13, 2002 meeting;
WHEREAS, during the business portion of the July 23, 2002 meeting, the Commission
authorized staff to hire an appraiser to appraise Assessor's Parcel Numbers 143-051-063 and
143-05.1-064 in preparation for site acquisition.
WHEREAS, at the August 13, 2002 meeting, the Executive Director of Burbank Housing
Development Corporation provide a presentation to the Commission regarding development
options on Assessor's Parcel Numbers 143-051-063 and 143-051-064.
WHEREAS, the purchase price of $1,335,000 was determined by an independent
appraisal performed by Ronald J. Croker, MAI, SRA on September 5, 2002;
WHEREAS, the project proposed by the Commission is categorically exempt from the
California Environmental Quality Act, pursuant to CEQA guidelines section 15332 (Class 3 —
Infill Development Projects);
WHEREAS, attached as Exhibit A to this resolution is the Acquisition Agreement;
NOW, THEREFORE, BE IT RESOLVED by the Community Development Commission
of the City of Rohnert Park that the Executive Director is authorized to execute a purchase
agreement and related title transfer documents for the sale of Assessor's Parcel Numbers 143-
051-063 and 143-051-064.
DULY AND REGULARLY ADOPTED this 19`}' day of December 2002.
ATTEST:
y
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNERT PARK
I
• 1 /a. J — 1. — 1Aj _ /.
rperson
FLORES: AYE MACKENZIE: AYE NORDIN: AYE SPRADLIN: AYE VIDAK-MARTINEZ: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
ACQUISITION AGREEMENT
THIS AGREEMENT is entered into this 19thday of December , 2002_,
by and between the COMMUNITY DEVELOPMENTIT
, COMMISSION OF THE CITY, OF
ROHNERT PARK (the "Commission") and the CITY . OF ROHNERT PARK (the
„City„
Recitals
A. The Commission is a public body, corporate and politic, organized and
existing under the California Community Redevelopment Law (Health and Safety
Code Section 33000 et seq.) to carry out the Redevelopment Plan (the "Redevelopment
Plan") for the Rohnert Park Redevelopment Project Area (the "Project").
B. The City is a public .body, corporate and politic; authorized by the
California Community Redevelopment Law and the Redevelopment Plan to aid and
cooperate with the Commission in carrying out the Project and ensuring the fulfillment
of the purposes of the Redevelopment Plan.
C. In furtherance of the Commission's activities implementing the
Redevelopment Plan, the Commission and City desire to enter into this agreement to
�rovide for the purchase by the Commission of certain real property (herein the
`Property") currently owned by the City. The Property consists of two parcels,
Assessor's Parcel Numbers 143-051-064 and 143-051-063. The Property is more
particularly described in the "Legal Description of the Property," attached hereto as
Exhibit A and incorporated herein by this reference.
D. The Property is located within the City. The Commission is acquiring the
Property for purposes of developing affordable housing units.
E. The project is categorically exempt from the California Environmental
Quality Act, pursuant to CEQA Guidelines; Section 15332 (Class 32 — Infill
Development Projects).
F. The Commission has appropriated sufficient funding in its Low and
Moderate Income Housing Fund to purchase the two parcels for affordable housing
development purposes.
12/18/2002
Agreements
NOW, THEREFORE, THE CITY AND THE COMMISSION HEREBY AGREE AS
FOLLOWS:
1. Agreement to Sell and Purchase.
The City agrees to sell to the Commission, and the Commission agrees to
purchase from the City, the Property, upon the terms and for the consideration set
forth in this Agreement.
2. Purchase Price.
The Purchase Price for the Property shall be the amount of ONE
MILLION THREE HUNDRED THIRTY-FIVE THOUSAND DOLLARS ($1,335,000).
The Purchase Price shall be paid in cash at the time of delivery to the Commission of a
grant deed conveying the Property to the Commission. The Commission shall pay all
transaction and closing costs related to the property purchase. The purchase price of
$1,335,000 was determined by an independent appraisal performed by Ronald J.
Croker, MAI, SRA on September 5, 2002. The Commission authorized this appraisal at
the regularly scheduled July 23, 2002 meeting.
3. Conveyance of Title and Delivery of Possession.
The City and the Commission shall open an escrow with a title company
acceptable to both parties. All transaction and closing fees shall be the responsibility of
the Commission. The proposed use of the property is consistent with the General Plan.
A formal determination by the City of Rohnert Park Planning Commissionpursuant to
Government Code Section 65402 will be required prior to conveyance of title. The
Property shall be conveyed and possession delivered by the City to the Commission
upon delivery by the City to the Commission of a grant deed to the Property in
accordance with the conditions set forth in Section 5 of this Agreement.
Upon conveyance, the Commission shall file the grant deed for
recordation among the land records in the Office of the County Recorder for Sonoma
County.
4. Condition of Title to the Property.
The City shall convey bygrant deed to the Commission fee simple title to
the Property. Title shall be free and clear of all recorded or unrecorded liens, encum-
brances, covenants, assessments, easements, leases and taxes, except as approved by
the Commission in writing.
5. Occupancy of the Property by City or Others.
The Property shall be conveyed to the Commission free and clear of any
possession or right of possession by the City or any other person.
6. Permission to Enter the Property.
2 12/18/2002
Prior to the conveyance of title, the City grants to the Commission, its
authorized officials, agents, employees, contractors and contractors' employees the
right of access to the Property at all reasonable times for the purpose of inspecting the
Property, obtaining data andymaking surveys and tests. All such work performed on
the Property by the Commission shall be at the sole expense of the Commission. The
Commission shall hold the City harmless from any inlury.or damages arising out of
any activity pursuant to this Section 6.
7. Notices and Communications Between the Parties.
Formal notices, demands and communications between the Commission
and the City shall be sufficiently given if dispatched by registered or certified mail,
postageprepaid, return receipt requested, to the addresses of the Commission and the
City set forth below:
Commission: Community Development Commission
Of the City of Rohnert Park
6750 Commerce Blvd.
Rohnert Park, CA 94928
Attn: Executive Director
City: City of Rohnert Park
6750 Commerce Blvd.
Rohnert Park, CA 94928
Attn: City Manager
Written notices, demands and communications may be sent in the same manner to
such other addresses as either party may from time -to -tune designate.
8. Entire Agreement.
This Agreement constitutes the entire understanding and agreement of
the parties relating to the acquisition of the Property and payment of the Purchase
Price for the Property. It integrates all the terms and conditions mentioned herein or
incidental thereto and suppersedes all negotiations or previous agreements between the
parties with respect to all or any part of the subject matter hereof. This. Agreement is
executed in two (2) duplicate counterparts, each of which is deemed to be an original.
9. Termination of Agreement.
This Agreement and the obligations of the parties hereunder shall
terminate upon full payment by the Commission to the City of the Purchase Price for
the Property, and upon delivery by the City to the Commission of a grant deed for the
Property.
The effective date of this Agreement shall be the date when this
Agreement has been signed by both parties.
3 12/18/2002
COMMISSION:
Per CDC Resol. No. 2002-11 CO�m
adopted by the Community CITY OF ROt
Development Commission at
its meeting of 12/19/02.
By:,
WPMENT COMMISSION
PARK
e Ulreclor Joseph D. Netter
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12/18/2002
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PSR/AcquisAgmt Exhibit A 1/13/99
Escrow No. 5149211PB DESCRIPTION PAGE
Situated in the State of California, City of Rohnert Park, County of Sonoma, and
described as follows:
PARCEL ONE:
Parcel 2 as shown on the map entitled, ROHNERT PARK PARCEL MAP NO. 107, filed in the
office of the County Recorder of Sonoma County on June 18, 1986 in Book 385 of Maps, at
Pages 17 and 18; Sonoma County Records.
(143-051-063-000)
PARCEL TWO:
Parcel 3 as shown on the map entitled, ROHNERT PARR PARCEL MAP NO. 107, filed in the
office of the County Recorder of Sonoma County on June 18, 1986 in Book 385 of Maps, at
Pages 17 and 18, Sonoma County Records.
(143-051-064-000)
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ATTACHMENT NO. 12
PARKING LOT IMPROVEMENT AGREEMENT
749836v7C 80078/0022 Attachment No. 12
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 )
(Space Above This Line for Recorder's Use Only)
Exempt from recording fee per Gov. Code § 27383.
PARKING LOT IMPROVEMENT AGREEMENT
THIS PARKING LOT IMPROVEMENT AGREEMENT (_the "Parking Agreement") is
made and entered into on this ., day of ' _; (the "Effective Date") among
BURBANK HOUSING DEVELOPMENT CORPORATION, a California non-profit public
benefit corporation, COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
ROHNERT. PARK, a public body corporate and politic ("Commission") and THE CITY OF
ROHNERT PARK, a California municipal corporation ("City").
RECITALS
A. Commission and Developer have executed an Affordable Housing and Loan
Agreement ("Affordable Housing Agreement") dated for identification purposes as of
01kk,, " _ , 2005, which provides, among other things, for Commission's disposition to
Developer of that certain real property (the "Site") located in the City of Rohnert Park, County of
Sonoma, State of California, Developer's construction and installation of Improvements
including affordable housing and ancillary recreational, open space and parking uses, and
appurtenant on-site and off-site improvements (including certain Public Improvements, as
defined in Section 301..2 of the Affordable Housing Agreement). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the Affordable
Housing Agreement.
B. The real property initially identified as the Site does not comply with parking
requirements applicable to the Project.
C. In order to assist Developer in meeting Project parking requirements, City, per
Commission's request, intends to transfer the Burbank Lot (as defined below) to Commission.
Commission in turn will transfer the Burbank Lot to Developer subject to the terms and
conditions contained in the Affordable Housing Agreement and this Parking Agreement.
D. The City of RohnertPark ("City") currently owns two lots described as APN
("City Lot") and APN ("Burbank Lot") in the Sonoma
County Records. Legal descriptions of the City Lot and the Burbank Lots are attached hereto as
Exhibits A and B, respectively, and incorporated by reference. The City Lot and the Burbank
Lot are collectively referred to herein as the "Parking Lots." The Burbank Lot is currently used
for parking of public safety and other municipal vehicles, and is located in close proximity to the
820633v2 80078/0022
City of Rohnert Park Police Station. The City Lot currently undeveloped, and is in close
proximity to the Police Station and the Burbank Lot.
E. Upon transfer of the Burbank Lot, City will lose necessary secured parking
capacity for public safety and other municipal vehicles in the area of the Burbank and City Lots.
Without development of the City Lot (as set forth below) to replace such lost parking, citizens,
public safety employees and staff would be hampered by potentially shorter emergency and other
response times.
F. To help offset the loss of the Burbank Lot, at loss and in exchange for transfer of
the Burbank Lot, Developer shall construct, install and complete of improvements to the City Lot
such that the City Lot can be used for a public safety parking lot, in accordance with the plans
(attached hereto as Exhibit C and incorporated by reference (the "Plans") and all labor and
materials furnished in connection therewith (collectively the "Work"). The transfer of the
Burbank Lot is conditioned on performance of the. Work, and the parties acknowledge and agree
that but for Developer performing such Work, the Burbank Lot transfers would not be possible.
AGREEMENT
NOW, THEREFORE, in consideration of the faithful performance of the terms and
conditions set forth in this Parking Agreement, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
Introduction.
1.1. Recitals. The foregoing Recitals are incorporated by reference into this Parking
Agreement.
1.2. Purpose. The purpose of this Parking Agreement is to guarantee Developer's
satisfactory and timely completion of the Work, to ensure Developer meets the conditions and
requirements of the Planning Board's approval of the Project, and to set forth the parties'
respective obligations with respect to the Work and the Transfer.
2. Work.
2.1. Obligation to Perform and Complete Work. Developer shall construct, install and
complete, or cause to be constructed, installed and completed, the Work in accordance with the
Plans and as provided in the Affordable Housing Agreement. All costs of the Work, including
all other costs and expenses incurred by Developer in connection with the design, construction
and installation of the Work and Developer's staff time and attorneys fees, shall be borne by
Developer at its sole cost and expense.
2.2. Completion Date. Developer shall complete the Work as set forth in the Schedule
of Performance. All Work will be completed in a good and workmanlike manner in accordance
with accepted design and construction practices. This completion date may be extended by the
City in its sole and absolute discretion at the request of Developer.
2.3. Repairs. Developer agrees to repair or have repaired in a timely manner at its sole
cost and expense all public roads, streets, or other public or private property damaged as a result
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of or incidental to the Work or in connection with the development of the Property or to pay to
the property owner of any damaged road, street or.property the full cost of such repair. In
addition, Developer shall obtain the written acceptance of such repair or payment from any
owner whose private property was repaired by Developer or to whom Developer has paid the full
cost of such repair. .
2.4. Standard and Examination of Work. All Work shall be completed in a good and
workmanlike manner, in accordance with City's construction plans and specifications and
accepted construction practices and in a manner equal or superior to the requirements of the
City's Municipal Code and rulings made under it, and to the satisfaction of the City Engineer, in.
his or her reasonable discretion. The City and its authorized agents shall, at all times during the
performance of the Work, have free access to the Work and shall be allowed to examine the
Work and all materials used and to be'used in the Work. Developer shall pay the actual cost for
all inspection, administration and testing services furnished by Commission or City in
connection with this Parking Agreement, including those performed by consultants under
contract with the Commission City within thirty (30) days of Commission's or City's written
request therefor.
Completion and Acceptance.
3.1. Completion of Work. After Developer (a) completes the Work in accordance
with the Plans and the terms and conditions of this Parking Agreement, (b) repairs any road,
street, or private or public property damaged as a result of the Work or pays the full cost of such
repair to the owner whose property was damaged, and (c) obtains the written acceptance of such
repair or payment from any owner whose private property was repaired by Developer or to
whom Developer paid the full cost of such repair, Developer will provide City with a written
notice of completion, together with copies of all written acceptances.
3.2. Notice of Completion. Within sixty (60) days of receipt of Developer's written
notification pursuant to Section 3.1 above, City Engineer shall inspect the Work and repairs and
review the written acceptances, if any, and send Developer a written notice stating whether the
Work and repair are complete to the satisfaction of the. City Engineer, in his or her reasonable
discretion, and whether the written acceptances have been provided. If the Work and repair are,
in the opinion of the City Engineer, not complete and satisfactory, and/or written acceptances
have not been provided, the City Engineer will list the deficiencies that must be corrected to find
the Work and repair complete and satisfactory. Upon satisfactory completion of the Work and
repair and submittal of written acceptances, the City Engineer will send Developer a written
notice of satisfactory completion. The requirement.for written acceptances may be waived by
the City Engineer, in his reasonable discretion, if Developer has made commercially reasonable
efforts to obtain such acceptances. City Engineer's failure to respond to Developer's written
notification within sixty (60) days -will not be deemed a breach or default under this Agreement
or the Affordable Housing Agreement.
. 3.3. Acceptance of Improvements. After sending Developer a written notice of
satisfactory completion pursuant to Section 3.2, the City Engineer will recommend acceptance of
the Work to the City Council. The acceptance of the Work, offers of dedication and right-of-way
and easements, if any, shall be by resolution. Upon adoption of such resolution, the City
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Engineer shall record a notice, in a form to be approved by the City Attorney, in the Official
Records of Sonoma County.
4. Performance, Labor and Materials and Warranty. Security.
4.1. Developer will furnish and deliver to City, within the times set forth below, the
following surety bonds, each of which must be issued by a surety company duly and regularly
authorized to do general surety business in the State of California, or such other surety as may be
acceptable to the City Attorney.,
4.2. Performance Bond Developer shall furnish and deliver a performance surety
bond in the amount of R ,. concurrently with the execution of this Parking
Agreement, which bond must meet the requirements of Government Code Section 66499.1 and
City's insurance carrier and be acceptable to the City Attorney. The bond shall be conditioned
upon the faithful performance of this Parking Agreement with respect to the Work and shall be
released by the City upon final acceptance of the Work pursuant to section 3.3 and Developer's
delivery of the Warranty Bond described in Section 4.4.
4.3. Labor and Materials Bond. Developer shall furnish and deliver a labor and
materials surety bond in the amount of V11,311 concurrently with the execution of
this Parking Agreement, which bond must meet the requirements of Government Code Section
66499.2 and City's insurance carrier, and be acceptable to the City Attorney. The bond shall
secure payment to the contractor(s) and subcontractor(s) performing the Work and to all persons
furnishing labor, materials or equipment to them. The City shall retain each bond until both
(i) the City accepts the Work it! accordance with Section 3.3 and (ii) the statute of limitations to
file an action under Civil Code section 3114 et seq. has expired. After said date, the bond may
be reduced by the City Engineer to an amount not less than the total amount claimed by all
claimants for whom claims of lien have been recorded and notice given in writing to the City
Council. The balance of the bond shall be retained until the final settlement of all such claims
and obligations. If no such claims have been recorded, the bond shall be released in full by the
City Engineer.
4.4. Warranty Bond. Developer shall furnish and deliver a warranty bond in the
amount of $, jP,,._.., upon acceptance of the Improvements and prior to release of the
Performance Bond. The bond shall be in a form acceptable to the City Attorney and City's
insurance carrier and shall guarantee and warranty the Work for a period of four (4) years
following the completion and acceptance thereof against any defective work or labor done, or
defective materials furnished.
4.5. Warranty Period; Repair and Reconstruction. Without limiting the foregoing,
Developer expressly warrants and guarantees all Work performed under this Parking Agreement
and all materials used in the Work for a period of four (4) years after final acceptance in
accordance with Section 3.3. If, within this four (4) year period, any Improvement or part of any
Improvement installed•or constructed, or caused to be installed or constructed by Developer, or
any of the work done under this Parking Agreement, fails to fulfill any of the requirements of the
Plans or this Parking Agreement, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Work or
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Improvement to the satisfaction of the City Engineer. Should Developer fail to act promptly or
in accordance with this requirement, or should the exigencies of the situation require repairs,
replacements or reconstruction to be made before Developer can be notified, City may, at its
option, make the necessary repairs, replacements or perform the necessary reconstruction and
Developer shall pay to the City upon demand the actual cost of such repairs, replacements or
reconstruction.
5. Breach of Parking Agreement; Performance by'City. If the City gives Developer
notice of breach and default of this` Parking Agreement, the City may proceed to complete the
Work by contractor other method the City considers advisable, at the sole expense of Developer.
Developer; immediately upon demand, shall pay the costs and charges related to the Work and
any subsequent repairs. City, without liability for doing so, may take possession of and utilize in
completing the Work and repairs, if any, such materials and other property belonging to
Developer as may be on or about the Property and necessary for completion of the work. In the
event of default, the financial institution holding the bonds shall be liable to City to pay the face
amount of the bonds.
6. Final Drawings. Upon completion of the Work and prior to final acceptance, Developer
shall deliver to City a set of record (i.e., "as -built") drawings. These drawings shall be in a form
acceptable to the City Engineer, shall be certified as being "as -built" and shall reflect the Work
as actually constructed, with any and all changes incorporated therein. Said drawings shall be
signed and sealed as accurate by the engineer of record.
7. Prevailing Wages.
7.1. Developer -Obligations. Developer acknowledges and agrees that the Work 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 Labor Section 1720. Accordingly,
Developer shall comply with any prevailing wage policies as set forth in the Rohnert Park
Municipal Code, if applicable, and well as all State Labor Code requirements pertaining to
"public works," including the payment of prevailing wages in connection with development of
the Project (collectively, "Prevailing Wage Policies"). Developer shall require the general
contractor for the. Project to submit, upon request by the Commission, 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, a provision in form acceptable
to Commission, obligating the general contractor or lessee, as applicable, to require its
contractors and/or subcontractors to comply with Prevailing Wage Policies, and to submit; upon
request by the 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.
7.2. Indemnity. Developer shall defend, indemnify and hold.harmless Commission
and City and their respective officers, employees, volunteers, agents and representatives from
and against any and all 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
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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.
8. Liens and Stop Notices. Developer shall not allow to be placed on the Burbank Lot, or
any part thereof, any lien or stop notice. If a claim of a lien or stop notice is given or recorded
affecting the Work, Developer shall within thirty (30) days of such recording or service: (i) pay
and discharge the same; (ii) affect the release thereof by recording and delivering to the City a
surety bond in sufficient form and amount; or (iii) provide the City with other assurance which
City deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop
notice and for the full and continuous protection of City from the effect of such lien or bonded
stop notice.
9. Permits. Developer shall obtain, at its sole cost and expense, any and all permits and
approvals required for construction and installation of the Work. City and Developer agree to act
promptly and in good faith to expedite the issuance of permits necessary for the Work.
Notwithstanding the foregoing, it is expressly acknowledged, understood.and agreed by the
parties that (a) City and Commission shall act independently of Developer and each other,
reserving full and complete discretion with respect to pursuing any approvals (including but not
limited to City Council and Planning Commission actions and CEQA approvals), (b) nothing in
this Parking Agreement is intended to or shall abrogate or delegate Commission's or City's
discretionary powers, (c) nothing in this Parking Agreement is intended to or shall prejudge or
commit to Commission or City regarding the findings and determinations to be made with
respect thereto, and (d) neither Commission nor City shall bear any liability toward Developer in
connection therewith.
10. Payments. Developer agrees that it will pay, when due, all those furnishing labor or
materials in connection with the Work. Developer further agrees that pursuant to Government
Code section 66499.7, the Labor and Materials Bond provided by Developer in accordance with
Section 4.3 of this Parking Agreement shall not be released if any mechanics liens or stop notices
are outstanding, unless said liens are released by bond in compliance with Civil Code section
3143.
11. Waiver. Developer hereby waives, releases and discharges forever the 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 including, without limitation, all
applicable state labor laws and standards and Public Contracts Code requirements. 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."
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 shall
survive the termination of this Parking Agreement.
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12. Insurance. Developer shall take out and maintain or shall cause its contractors to take
out and maintain throughout the term of this Parking Agreement, insurance coverage as follows:
12.1. 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, or such other policy limit as. the,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, the 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 Work, the Burbank Lot, this Parking
Agreement, or other operations performed, by or on behalf of Developer. The coverage shall
contain no special limitations on the scope of protection afforded to the City, the 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. ten (10) days for non-payment of premium) to the
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.
12.2. Developer's insurance is primary coverage to the Commission and the City, and
any insurance or self-insurance programs maintained by the Commission or the City is excess to
Developer's insurance and will not be called upon to contribute with it.
12.3. Any failure to comply with reporting or other provisions of the parties, including
breach of warranties, shall not affect coverage provided to the City, the Commission, and their
respective officers, agents, employees, volunteers, and representatives.
12.4. Developer shall also obtain and maintain throughout the term of this Parking
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
Parking 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 (ten (10) days for non-payment of premium) to the Commission and the City by certified
mail.
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12.5. After the date of this Parking Agreement, but in all events prior to the start of
Work, Developer shall also obtain and maintain until the completion and acceptance of such
Work pursuant to this Parking 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 City or Commission may reasonably require, and shall furnish or cause to be furnished to the
City or Commission evidence satisfactory to the City or Commission that Developer and any
contractor with whom it has contracted for the performance of the Work contemplated under this
Parking Agreement, whether on or off the City Lot, or otherwise pursuant to this Parking
Agreement carries workers' compensation insurance as required by law.
12.6. 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, the Commission, and their respective officers, agents, employees, volunteers,
and representatives, and provide for thirty (30) days prior written notice to Commission and City
in the event of cancellation. If Developer has no employees, Developer 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. "
12.7. , 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
the Commission and City setting forth the general provisions of the insurance coverage. This
countersigned certificate shall name 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 the Commission or City, and the policy shall contain such an
endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for
the benefit of the City and the Commission. The required certificate shall be furnished by
Developer to City and Commission within the time provided in the Schedule of Performance.
13. General Provisions.
13.1. Notice of Breach and Default. The occurrence of any of the following constitutes
a breach and default of this Parking Agreement:
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(A) Developer refuses or fails to complete the Work within the time set forth
herein or abandons the Work.
(B) Developer assigns this Parking Agreement without the prior written
consent.of City.
(C) Developer is adjudged bankrupt or makes a general assignment for the
benefit of creditors, or a receiver is appointed in the event of Developer's insolvency.
(D) Developer or Developer's Parties, fail to comply with any terms or
conditions of this Parking Agreement or the Affordable Housing Agreement (including
attachments thereto).
(E) Any delay in the construction of any portion of the Work or repairs, which
in the reasonable opinion of the City Engineer, endangers public or private property.
City or Commission may serve written notice of breach and default upon Developer and the
financial institution holding the bonds, as applicable.
13.2. Remedies. Each party to this Parking Agreement may bring legal action to
compel performance of this Parking Agreement, and City and Commission may recover the costs
of completing the Work and/or repairs, if any, including administrative and legal costs. The
parties agree that if legal action is brought under this Parking Agreement, the non -prevailing
party shall pay all of the costs of suit, reasonable attorney fees, arbitration costs and such other
costs as may be determined by the court or arbitrator. No failure on the part of any party to
exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy
that such party may have hereunder.
13.3. Notices. Any approval, disapproval, demand, document or other notice
("Notice") to be provided under this Parking 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.
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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
To City: City of Rohnert Park
6750 Commerce Boulevard
Rohnert Park, California 94928
Attention: City Attorney
Telephone: (707) 588-2227
Facsimile: (707) 588-2274
With a copy of any McDonough, Holland & Allen
notice to City or 1901 Harrison Street, 9th floor
Commission to: Oakland, California 94612-3501
Attention: Susanne M. Brown, Esq.
Telephone: (510) 273-8780
,Facsimile: (510) 839-9104
To Developer: Burbank Housing Development Corporation
Attention:f.. ..._..... _.. .�'
Telephone:
Facsimile:
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
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.
13.4. Successors and Assigns. Subject to the prohibitions against changes in the
ownership, management and control of Developer set forth herein and in the Affordable Housing
Agreement and Affordable Housing and Maintenance Covenant and the Grant Deed including
Covenants recorded or to be recorded against the Site, and incorporated by this reference, all of
-10-
820633v2 80078/0022
the terms, covenants and conditions of this Parking Agreement shall be binding upon Developer
and its permitted successors and assigns.. Whenever the term "Developer" is used in this Parking
Agreement, such term shall include any other permitted successors and assigns as herein
provided. City and Commission hereby acknowledge that Developer intends to assign this
Parking Agreement to a newly -formed California limited partnership entitled Arbors Rohnert
Park Apartments L.P. of which Burbank Housing Development Corporation will be managing
member. Notwithstanding the foregoing and regardless of City's and Commission's consent, no
assignment or sublease shall release Developer or Burbank Housing Development Corporation
under this Parking Agreement or alter the primary liability of Developer or Burbank Housing
Development Corporation to pay the sums due and to perform and to comply with all other
obligations of Developer hereunder. Any assignee pursuant to an assignment consented to by
City and Commission, including Arbors Rohnert Park Apartments L.P., shall deliver to City and
Commission, before the assignment shall be effective, a written original of the assignment of this
Agreement and the party's agreements to be bound by and to perform and observe all terms,
covenants and conditions of Developer under both this Parking Agreement and the Affordable
Housing Agreement (including all attachments thereto) and to assume all obligations of
Developer hereunder and thereunder, which instruments must be satisfactory in form and content
to City and Commission.
13.5. - Compliance with Laws. Developer shall carry out the Work and terms of this
Parking Agreement in conformity with all applicable laws, including without limitation all
applicable state labor laws and standards (including but not limited to prevailing wage
requirements pursuant to Labor Code sections 1720 et seq.); 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 without limitation the
Americans With Disabilities Act, 42 U.S.C. section 12 10 1, 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.
13.6. Relationship Between Commission, City, and Developer. It is hereby
acknowledged that neither Developer nor Developer's contractors, subcontractors, agents,
officers, or employees ("Developer's Parties") are agents or employees of City or Commission,
and that the relationship of Developer and Developer's Parties _relationship to the City and/or
Commission, if any, arising herefrom is strictly that of an independent contractor. The
relationship between the Commission and/or City on the one hand and Developer and
Developer's Parties on the other hand is not that of a partnership or joint venture and that the
Commission and/or City on the one hand and Developer and/or Developer's Parties on the other
hand shall not be deemed or construed for any purpose to be the agent of the other. Developer
agrees to indemnify, hold harmless and defend .the Commission and City from any Claim made
against the Commission or City arising from. a claimed relationship of partnership or joint
venture between the Commission and/or City on the one hand and Developer and/or Developer's
Parties on the other hand with respect to the development, operation, maintenance or
management of the Parking Lots or the Work.
-11-
820633v2 80078/0022
13.7. Countemarts. This Parking Agreement may be signed in multiple counterparts
which, when signed by all parties, shall constitute a binding agreement. This Parking Agreement
is executed in three (3) originals, each of which is deemed to be an original.
13.8. Integration.L The Affordable Housing Agreement and this Parking Agreement
(including attachments thereto) contain the entire understanding between the parties relating to
the transaction contemplated by this Parking Agreement. All prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged into the
Affordable Housing Agreement and this Parking Agreement and shall be of no further force or
effect. Each party is entering this Parking 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.
13.9. 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 Parking Agreement or of any of its
terms. Reference to section numbers are to sections in this Parking Agreement, unless expressly
stated otherwise.
13.10. Interpretation. As used in this Parking Agreement, masculine, feminine or neuter
gender 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." This Parking Agreement shall be interpreted as though prepared
jointly by both parties.
13.11. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Parking 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 Parking Agreement.
13.12. Modifications. Any alteration, change or modification of or to this Parking
Agreement, in order to become effective, shall be made in writing and in each instance signed on
behalf of each party.
13.13. Severability. If any term, provision, condition or covenant of this Parking
Agreement or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Parking 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.
13.14. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Parking Agreement, and in signing this Parking 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 Parking Agreement,
or have knowingly chosen not to consult legal counsel as to the matters set forth in this Parking
Agreement; and, they have freely signed this Parking Agreement without any reliance upon any
agreement, promise, statement or representation by or on behalf of the other party, or their
-12-
820633v2 80078/0022
respective officers, agents, employees, volunteers, and representatives, or attorneys, except as
specifically set forth in this Parking Agreement, and without duress or coercion, whether
economic or otherwise.
13.15. Time of Essence. Time is of the essence with respect to the performance by the
Commission and Developer of each and every obligation and condition of this Parking
Agreement.
13.16. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, shall execute any and all documents which mayy be reasonably necessary,
helpful,. or appropriate to carry out the purposes and intent of this Parking Agreement including,
but not limited to, releases or additional agreements.
13.17. Indemnity. Developer shall defend (with counsel reasonably acceptable to the
Commission), indemnify, assume all responsibility for, and hold the Commission and the City,
and their respective officers, employees, volunteers, agents and representatives, harmless 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".) relating to
the subject matter of this Parking Agreement, including the Work, the Burbank Lot, 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
or Developer's Parties' activities under this Parking 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 Parking Agreement. The aforementioned indemnity shall apply regardless of
whether or not City or Commission has prepared, supplied or approved plans and/or
specifications for the Work and regardless of whether any insurance required under this Parking
Agreement is applicable to any Claims. Neither Commission nor City waive or shall waive any
of their rights under this indemnity provision because of acceptance of the bonds or insurance
required under the provisions of this Parking Agreement. Developer's indemnity obligations
under this Parking Agreement shall not extend to Claims occasioned by the sole or active
negligence or willful misconduct of the Commission or the City, or their respective designated
agents or employees.
13.18. Non -Discrimination. Developer, for itself and its successors and assigns, agrees
that in the performance of the Work or other terms of this Parking Agreement, Developer will
not discriminate against any employee or applicant for employment because of race, color; creed,
religion, sex, marital status, ancestry or national origin.
13.19. Non -Liability of Officials and Employees. No member, official or employee of
the Commission or the City shall be personally liable to Developer, or any successor in interest,
in the event of any Default or breach by the 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
Parking Agreement. Developer hereby waives and releases any Claim it may have against the
members, officials or employees of the Commission and the City with respect to any Default or
breach by the 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 Parking Agreement. Developer
-13-
82063382 80078/0022
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 favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
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 shall
survive the termination of this Parking Agreement.
13.20. Applicable Law. The laws of the State of California, without regard to conflict of
laws principles, shall govern the interpretation and enforcement of this Parking Agreement.
13.21. Authorization. Each individual or entity executing this Parking Agreement on
behalf of Developer represents and warrants that he or she or it is duly authorized to execute and
deliver this Parking Agreement on behalf of Developer and that such execution is binding upon
Developer.
13.22. 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 shall be a part of the judgment in
said action or proceeding.
[Signatures follow on next two pages]
-14-
820633v2 80078/0022
IN WITNESS WHEREOF, Commission, City and Developer have executed this Parking
Agreement as of the Effective Date.
Dated:
Dated:
DEVELOPER:
BURBANK HOUSING DEVELOPMENT
CORPORATION, a California nonprofit public
benefit corporation
By:
Name:
Title:
(Signature must be notarized/
By:
Name:
Title:
(Signature must be notarized]
COMMISSION:
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNERT PARK, a public.
body corporate and politic
By:
Name:
Title:
]Signature must be notarized]
ATTEST:
Commission Secretary
APPROVED AS TO FORM:
General Counsel
-15-
820633x2 80078/0022
Dated:
CITY:
THE CITY OF ROHNERT PARK, a California
municipal corporation
By: _
Name:
Title:
[Signature must be notarized]
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
-16-
820633v2 80078/0022
EXHIBIT A
LEGAL DESCRIPTION OF CITY LOT
e7 inserted`+
Exhibit A
820633v2 80078/0022
EXHIBIT B
LEGAL DESCRIPTION OF BURBANK LOT
M? be ttsertej
Exhibit B
820633v2 80078/0022
EXHIBIT C
PLANS
(including materials specifications and scope of work)
Exhibit C
820633v2 80078/0022
ATTACHMENT NO. 13
PROFORMA
749836v7C 80078/0022 Attachment No. 13
THE ARBORS
PALET
Repand Far.
Burbank Housing Development
Corporation
.
Prepared By:
California Housin PartnersN Co oration
Version:
Ci Loan Amendment 4/05
Revised: 19 -Al -05 2:26 PM
SOURCES OF FUNDS
aIX RfY< pF FUNDS RMANEMT
AMQUNI INTERESTCDST
TOTAL
WF
010
FST RnTF
TEBM XII
COMMENTS
Tax Uanpt Bank Purdrase: US Bank
1,878,300
5.600%
30 Bond Rate: 5.35096
City of Rohn n Pah - Loan 1
2.425,0002.000%1.358%
55 Per UNt: 43,304
any. Rohn- Park - Loan 2
1,500,000
2.000%
1.358%
55 Pa UNt: 26,786
Mandatory annual i Rawl: 0.0096
Sonoma County Loan
675,000
3.00096
1.788%
55 Pa UM: 12,054
Fully t fatal
HOD Multifw* Housing Rogram
2,855,000
3.000%
1.903%
55 , Pa —1 50,982
Mandatory arcual mta—: 0.42%
I — horn Openfiors prior to Conversion
49,756
Deferred Develops Fee
305,000
0.000%
Pat— of Una�4usted Efi ide Basis:
25096
Capital C. oributi—
GeneralPartner
534,941
% ownership: 0.01%
LnitM Pa,U,
6Sc 60
%ovmasNip: 99.99%
Etyaity Priang: 1-083
TOTAL SOURCES
16,775,606
Surplus/(Shortfall)
0
Term Bond Rate Stacie'
Bond7Swap Rate 5,350%
LOC -0.000%
Issuer 0250%
Tnrstee 0.00096
0 Per annum
Rating 0.000%
0 per annum
Remarketing 0.00096
Rebate Analyst q-QQQgy
0 pa annum
Total 5-600%
.
SOURCES OF FUNDS - CONSTRL_ ION
Tax -Exempt Bank Pu chase: US Bank
AMMLE
9,945,000
INT RATE
5.073%
TERM IMo 1
18
3 , LISOR + 2.25 X TE E My f Cushion: 1.500%
Gly of ROMat Park - Loan 1
2,425,000
2.000%
18
50% Test: 61.8%
See a e 4-A
of
CAy RoMat Pak -Loan 2
I,S00,000
2.000%
Is
Percent of Allocation Used
100.096
Sonoma County Loan
675,000
3.000%
Is
Costs Defaled Until Pamanent Loan [lasing
1,330,909
Income from Opaatians
49,756
Defared Develops Fee
305,000
Capital Conor—lions
Genaal Patna
534,941
LinitM Parnas
10.000
%of total payin: 0.15%
SOURCES URCES
16,775,606
Staylus/(ShortfalU
- 0
Const. Loan Valuation
Restricted fid174,945
Pam an Amou
Lont
1,878,300
Gedt Value @ 1.08
6,552,609
Beneficial Value of BMR Financing
2.855 000
Total Value
11,285.909
LN:
90.00%
Max. Ctnst. Loan A-1
9 945 000
SOURCES OF FUNDS _ BRIDGE
.
AMQUHT
0
BJT HATE
0.00%
TERM fyrl
0
California Housing P.--Np Corporation
THE ARBORS
Construction Close
425,000
During Construction
-
Conversion
135,000
Final LP Pay -in
235,000
Plus: Deferred
USES OF FUNDSVERSION
Plus: GP Capital
534.941
Total Developer Fee
1,634,941
Max. Allowable Fee per MHP (prorated)
795,000
0
795,000
Max. Allowable Fee Per TCAC (prorated)
=28
0
GN
Loan Amendment 4/05
10,000
0
10,000
Less: MHP Adjustment for Over -basis
Revised:
19 -Apr -0S
Net Allowable
1,634,941
0
1,634,941
Max Per GP Cap Limit
1,634,941
0
1,634,941
Variance btwn Max HCD Fee and Basis Fee
1,705,000
0
1,705,000
Net Fee (Less other development costs)
785,000
0
785,000
Net Fee Ad usted if fee oes ne ati
785 000
0
785 000
Deferred
USES OF FUNDS
94.50%Lhti
94.50%
DEPRECIABLE
TAX CREDIT ELIGIBLE
Perm Con,.
TOTAL NOW CONST/ -
TOTAL
RESIDENTIAL
OEPREC
RESIDENTIAL
NON -RES
EXPENSE
AMORTIZE
REHAB
ACOUIS.
ACQUISITION COSTS
Total Purchase Price:
1,335,000
Land
1,335,000
1,261,575
1,335,000
Mlding
0
0
0
0
0
0
Demolition
53,924
50,958
53,924
Sales Commissions
0
0
0
0
0
0
Land Holding Costs
0
0
0
Off-site Improvements
179,689
169,806
179,689
GENERAL DEVELOPMENT CASTS
Hard Costs -Unit Construction
7,584,705
7,167,546
0
7,167,546
417,159
0
7,167,546
Construction Continency
754,555
713,054
0
713,054
41,501
713,054
Overhead Contractor and Profit
7B8,575
745,203
0
745,203
43,372
745,203
Local Development Impact Fees
847,549
800,934
0
800,934
46,615
800,934
750,407
Local Penrats/Fees
84,145
79,517
79,517
4,628
79,517
Environmental Assessments
. 17,000
16,065
16,065
935
16,065
Site trnprovements/landscape
1,658,356
1,567,146
1,567,146
91,210
1,567,146
Architecture
320,640
303,005
303,005
17,635
303,005
Survey/Engineering/Staking
66,100
62,465
62,465
3,636
62,465
Appraisal
12,500
11,813
0
11,813
688
0
11,813
Market Study (ICAC)
S,ODO
5,000
5,000
0
Sols Report/Geotech Monitoring
10,892.
10,293
0
10,293
599
10,293
0
Construction Loan Interest
483,475
456,884
258,239
0
225,236
258,239
0
Ttle/Recording/Es,crow-Construction
15,000
14,175
14,175
-825
14,175
0
Titie/Recordng/Es-- Permanent
10,000
9,450
10,000
10,000
Real Estate Taxes During Const
12,530
- 11,841
11,841
689
0
11,841
0
tmurance During Const
172,377
162,896
162,896
9,481
0
162,896
0
Soft Cost Contingency
51,587
48,750
-
48,750
2,837
48,750
Misc.
5,000
4,725
4,725
275
4,725
Title/Recordng/Escrow- Acquisition
5,000
4,725
51000
0 -
0
TCAC Application/Res/Monitoring Fee
31,010
31,010
31,010
22,550
Legal: Acquisition
5,000
4,725
5,000
0
0
Construction Closing
15,000
14,175
14,175
B25
14,175
0
Permanent Closing
5,000
4,725
5,000
0
Organization of Ptrshp
5,000
5,000
5,000
Syndication
30,000
30,000
30,000
Syndication Consulting
38,000
38,000
38,000
0
0
Development Consulting
10,000
9,450
9,450
550
9,450
Audit/Cmt Certification12,000
12,000
12,000
0
Furnishings
109,200
103,194
103,194
6,006
103,194
Rent-up/Marketing
Capitalized Operating Reserve
60,000
120,910
60,000
120,910
0
120,910
60,000
0
120,910
Developer Fee
1,634,941
1,545,019
1,545,019
89,922
1,545,019
0
427,042
COSTS OF ISSUANCE/FINANCING FEES
Bond Counsel
40,000
40,000
4,000
0
36,000
4,000
Borrower Counsel
10,000
10,000
1,000
0
9,000
1,000
Issuer Fee-CSCDA
24,890
23,521
2,352
137
22,401
2,352
Lender Origination -Construction
60,500
57,173
41,291
333
18,876
41,291
Londe, Expenses - Construction
10,000
9,450
6,825
55
3,120
6,825
Lender Ca el - Construction
20,000
18,900
13,650
110
6,240
13,650
Lender Origination -Permanent
14,087
13,312
0
77
14,010
0
Lender Expense - Permanent
5,000
4,725
0
28
4,973
0
Lender Counsel - Permanent
20,000
18,900
0
110
19,890
0
Trustee Fee
6,000
6,000
600
0
5,400
600
CDLAC Fee
3,481
3,289
329
19
3,133
329
CDIAC Fee
1,989
1,880
188
11
1,790
188
COI Contingency
10000
14,000_ _
1.,402
4
9902
1.000
Subfatal - Financing/Costs of issuance
225,947
217,150
0
71,235
880
0
153,832
71,235
0
0
TOTAL DEVELOPMENT COSTS
16,775,606
15,873,183
1,767,523
13,720,740
780,266
297,236
209,842
13,720,740
0
1,330,909
TDC Per Unit
2991..
94.62%
Developer Fee Payment Schedule:
Construction Close
425,000
During Construction
-
Conversion
135,000
Final LP Pay -in
235,000
Plus: Deferred
305,000
Plus: GP Capital
534.941
Total Developer Fee
1,634,941
DEVELOPER FE CALCULATION
CONST-
ACO,
Imetal
Maximum Potential Fee per TCAC Formula
1,824,941
0
1,824,941
Percent of Total
100.00%
0.00%
100.00%
Max. Allowable Fee per MHP (prorated)
795,000
0
795,000
Max. Allowable Fee Per TCAC (prorated)
2,500,000
0
2,500,000
Less: Broker Fee/Other De, Fees
10,000
0
10,000
Less: MHP Adjustment for Over -basis
180.000
0
180.0
Net Allowable
1,634,941
0
1,634,941
Max Per GP Cap Limit
1,634,941
0
1,634,941
Variance btwn Max HCD Fee and Basis Fee
1,705,000
0
1,705,000
Net Fee (Less other development costs)
785,000
0
785,000
Net Fee Ad usted if fee oes ne ati
785 000
0
785 000
California Housing Partnership Corporation
THE ARBORS
60% AM
PERCENT OF TARGETED UNITS
0.0%
TCAC AFFORDABILITY POINTS 0.0
TOTAL
FACE 2
UNCC MIX AND RENTAL INCOME
version:
City Loan Amendment 4/05
PER-UNIT TOTAL
TOTAL
Revised:
19 -Apr -05
PER UNIT
TOTAL INCOME
MONTHLY
MONTHLY MONTHLY
ANNUAL
UNIT TYPE
NUMBER
SOFT
AVERAGE AFFOROABIL7TY FOR
GROSS RENT
JET EN NET ENT
NET RENT
0BR
0
428
0 0.0%
UTILITY 0 BR 530
QUALIFIED UNITS % o/ Median
45.7%
1SR
DEDUCTIONS •: 1 BR
$37
0 0.0%
0
415 0
0
2 Bit
0
2 BR
$48
0
495 0
0
3 OR
0
1,294
3 BR
$54
573 0
0
4m
O
0
0- 0.0%
4 BR
$61
0 -
TOTAL
0
0
0
0
0
0
Q
TOTAL
14
0-
RESIDENTIAL INCOME
0
1,236
11.432
137184
TOTAL
21
TOTAL
TAX -CREDIT ELIGIBLE - TIER 1
MNP B: 30% AMI
0
PERCENT OF TARGETED UNITS
36.496
TCAC AFFORDABILITY
POINTS:
0.0
%MEDIAN
PER-UNIT
PER-UNIT
TOTAL
TOTAL
PER UNIT
TOTAL INCOME
MONTHLY
MONTHLY
MONTHLY
ANNUAL'.
UNIT TYPE
NUMBER
. 6QET-
5_Q FT AFFORDABLE
GR055 RENT
NET REN
NET RENT
NET RENT
0 SR-
0
428
0 0.0%
0
361
0
0
18R
11
610
6,710 30.0%
419
382
4,206
50,477
2 BR
9
801
7,209 30.0%
503
455
4,093
49,118
3 BR
0
1,294
0 0.0%
0
528
0
0
ggR 0_
0
0- 0.0%
0
588
0
0 -
TOTAL
20
13,919 1
8,300
99,595
•Indude 8 Speaal Needs units
TAX -CREDIT ELIGIBLE -•TIER 2
60% AM
PERCENT OF TARGETED UNITS
0.0%
TCAC AFFORDABILITY POINTS 0.0
TOTAL
TOTAL
%MEDIAN
PER-UNIT
PER-UNIT TOTAL
TOTAL
TOTAL
TOTAL
PER UNIT
TOTAL INCOME
MONTHLY
MONTHLY MONTHLY
ANNUAL
UNIT TYPE
NUMBER
SOFT
SOFT AFFORDABLE
GROSS RENT
JET EN NET ENT
NET RENT
0BR
0
428
0 0.0%
0
392 0
0
1SR
0
610
0 0.0%
0
415 0
0
2 Bit
0
801
0 0.0%
0
495 0
0
3 OR
0
1,294
0 0.0%
0
573 0
0
4m
O
0
0- 0.0%
0
639 (L -
0 -
TOTAL
0
0
0
0
0
0
TAX -CREDIT ELIGIBLE - TIER 3 50% AN
60% AM
PERCENT OF TARGETED UNITS 25.596
38.256
TCAC AFFORDABILITY POINTS: 0.0
TOTAL
TOTAL
%MEDIAN
PER -IMT
PER-UNIT
TOTAL
TOTAL
TOTAL
TOTAL
PER UNIT
TOTAL INCOME
MONTHLY
MONTHLY
MONTHLY
ANNUAL
UNIT TYPE NUMBER
ANNUAL
SQII
SQII AFFORDABLE GROSS
RENT
NET RENT
NET RENT
NET RENT
- 0 BR
0
428
0 0.0%
0
622
0
0
1 OR
3610
0
1,830 50.0%
699
662
1,986
23,832
2 OR
5
1.192
5,960 50.0%
838
790
3,950
47,400
3 OR
6
1.294
7,764 50.0%
970
916
5,496
65,952
gOR
Q
0
Q 0.0%
0
1,020
0-
Q
TOTAL
14
0-
IS 554
0
1,236
11.432
137184
TAX -CREDIT EUGIBLE - TIER 5
60% AM
PERCENT OF TARGETED UNITS
38.256
TCAC AFFORDABILITY POINTS 0.0
TOTAL
TOTAL
PER UNIT
%MEDIAN
PER-UNIT
PER-UNIT
TOTAL
TOTAL
TOTAL
TOTAL
PER UNIT
TOTAL
INCOME
MONTHLY
MONTHLY
MONTHLY
ANNUAL
UNIT TYPE
NUMBER
50 FT
- SOFT
AFFORDABLE
GROSS RENT
NET RENT
NET RENT
NET RENT
0 BR
0
428
0
0.0%
0
752
0
0
1 BR
2
610
1,220
54.9%
768
731
1,462
17,544
2 BR
6
1,192
7,152
55.0%
.921
873
5.238
62,856
3 OR
13
1,294
16,822
55.0%
1,067
1,013
13,169
158.028
4m
0-
0
0-
0.0%
0
1,236
2
Q
TOTAL
21
TOTAL
25,194
0
19869
238428
NON -TAX CREDIT ELIGIBLE
%MEDIAN
PER-UNIT
PER-UNIT
TOTAL
TOTAL
PER UNIT
TOTAL INCOME
MONTHLY
%MEDIAN
PER-UNIT
PER-UNIT
TOTAL
TOTAL
50 FT
SOFT AFFORDABLE
PER UNIT
TOTAL
INCOME
MONTHLY
MONTHLY
MONTHLY
ANNUAL
UNIT TYPE
NU@IDER
9LEI
SOFT
AFFORDABLE
GROSS RENT
NET RENT
NET RENT
NET RENT
0 BR
0
428
0
0.0%
0
0
0
0
1 BR
0
610
0
0.0%
0
0
0
0
2 OR
0
1,192
0
0.0%
0
0
0
0
3 OR
0
1,294
0
0.0%
0
0
0
0
4_BR
O
0
0-
0.0%
0
0
0
0 -
TOTAL
0
0
0
MANAGER UNIT S
%MEDIAN
PER-UNIT
PER-UNIT
TOTAL
TOTAL
PER UNIT
TOTAL INCOME
MONTHLY
MONTHLY
MONTHLY
ANNUAL
UNIT TYPE
NUMBER
50 FT
SOFT AFFORDABLE
GROSS RENT
NET RENT
NET RENT
NET RENT
0 BR
0
428
0 0.0%
0
0
0
0
1 BR
0610
0 0.0%
0
0
0
0
2 BR
0
1.192
0 0.0%
0
0
0
0
3 BR
1
1,294
1,294 55.0%
1,067
1,013
1,013
12,156
4 BR
Q
0
O 0.0%
61
0
0-
9
TOTAL
1
1294
1.013
12,156
�TOTAIRESIDENDAL IN OME TOTAL TOTAL TOTAL
UNIT MONTHLY (Net) ANNUAL
56 40,614 487,363
TOTAL SQ FT - TAX CREDIT ELIGIBLE 55,961
TOTAL SQ FT - NON -TAX CREDIT ELIGIBLE O
MONTHLY MONTHLY ANNUAL
Laundry/Venddng ' 21.28 1,192 14,300
Financial 0.00 0 0
COMMERCIAL INCOME
TOTAL TOTAL
MONTHLY ANNUA
TOTAL COMMERCLAL 0 4 227 50 726
California Housing Partnership Corporation
THE ARBORSPACE 3
CALCULATION OF TAX CREDITS Version: City Loan Amendment 4/05 Revised: 19 -Apr -OS
rOTAL STATE + FEDERAL UHTC AMOUNTS - 10 YEARS
rotal Federai + State 6,049,866
3enera1 Partner Share 0.01% 605
Irruted Partner Share 99.99% 6.049 261
HISTORIC CREDIT CALCULATION
Total Depreciable Basis
CONST/
less: Acquisition Basis
179,689
CONST/
115,640_
Basis for Historic Credit
ACQ iS
REHAB
TOTAL
A_CQUI
REHA
TOTAL
TOTAL ELIGIBLE COSTS
0
13,720,740
13,720,740
0
0
0
Less:
55,961
100.0000%
APPLICABLE FRACTION
Historic Tax Credit (Res. Portion)
0
0
0
0
0
0
Non -Eligible (Federal/Gant Financing):
MCD MHP NonRes Space for Supp Svcs Loan
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
ELIGIBLE BASIS
0
13,720,740
13,720,740
0
0
0
REQUESTED ELIGIBLE BASIS
0
13,296,408
13,296,408
0
0
0
HIGH COST ADJUSTMENT or N Y
100.0%
130.0%
100.0%
100.0%
ADJUSTED ELIGIBLE BASIS
0
17,285,330
17,285,330
0
0
0
APPLICABLE FRACTION*
100.0%
100.0%
100.0%
100.0%
QUALIFIED CREDIT BASIS
0
17,285,330
17,285,330
0
0
0
REQUESTED QUALIFIED BASIS (For Leveraging Points)
100.0%
100.0%
100.0%
100.0%
%REDUCTION. 0.00%
0
17,285,330
17,285.330
0
0
0
CREDIT RATE (TCAC UNDERWRITING) State - Total
13.00%
30.00%
Federal Annual/Yr 1-3 State
3.50%
3.50%
3.42%
3.42%
Year 4 - State
2.74%
2.74%
MAX. POTENTIAL FEDERAL CREDIT (No TBL/Actual Rate)
Credit Rates
3.42%
3.42%
Potential Credit
0
610,024
610,024
MAX. CREDIT AMOUNT PER TCAC UNDERWRITING
Federal Annual/Yr 1 State
0
604,987
604,987
0
0
0
Yr 2State
0
-
0
Yr 3 State
0
-
0
Yr 4 State
Q
Q
Q
Total
0
0
ACTUAL TCAC CREDIT RESERVATION
(Pending) Federal Annual/Total State
N/A
N/A
N/A
N/A
N/A
N/A
MAXIMUM ALLOWABLE CREDITS (Lesser of. above)
Federal Annual/Total State
0
604,987
604,987
0
MAXIMUM ALLOWABLE - TEN YEAR TOTAL
6,049,8661
0
rOTAL STATE + FEDERAL UHTC AMOUNTS - 10 YEARS
rotal Federai + State 6,049,866
3enera1 Partner Share 0.01% 605
Irruted Partner Share 99.99% 6.049 261
HISTORIC CREDIT CALCULATION
Total Depreciable Basis
13,720,740
less: Acquisition Basis
179,689
less: Personal Property
115,640_
Basis for Historic Credit
13,425,411
Credit Percentage
0-1%
Total Historic Credit
0
Res. Portion of Historic Credit
0
'APPLICABLE FRACTION
. Number of
Total
Units
Fraction
Sq Ft
Fraction
Tax Credit 55
100.0000%
55,961
100.0000%
Non -Tax Credit EBgil 0
0.0000%
0
0.0000%
TOTAL 55
100.0000%
55,961
100.0000%
APPLICABLE FRACTION
(Lesser of Low Income
Units or Sq Ft %)
100.0000%
California Housing Partnership Corporation
THE ARBORS PAGE 4
BASE YEAR INCOME /OPERATING EXPENSE STATEMENT
City Loan Amendment 4/05 Revised: 19 -Apr -05
Scheduled Gross Income - Residential
487,363
Scheduled Gross Income - Commercial
50,726
Section 8 PBA (incremental Income)
0
Misc. Income
14,300
Vacancy Loss - Residential
5.0% (25,083)
Vacancy Loss - Section 8
5.0% 0
Vacancy Loss - Commercial
50.046 (25,363)
EFFECTIVE GROSS INCOME
501,943
EXPENSES - RESIDENTIAL
Advertising
500
Legal
4,000
Accounting/Audit
13,212
Security
672
MisC. Admin
9.220
Total Administrative
9,000
27,604
Management Fee
0
31,147
Utilities
7260
Fuel
0
46,080
Electricity
13,440
44,800
Gas
3,500
On -Site Services Coordinator
0
Total Utilities
1,344
16,940
Water/Sewer
0
3 5, 500
Payroll/Payroll Taxes
2,800
On -Site Manager/Office Admin
26,800
14,144
Maintenance Payroll
23,400
341,142
Manager Unit Expense/ (Credit)
13,320
Payroll Taxes/Benefits
36,247
Total Payroll/Payroll Taxes
3,400
99,767
Insurance
20,160
Real Estate Taxes
5,000
Maintenance
Painting
2,500
Repairs
11,720 .
Trash Removal
13,800
Exterminating
1,800
Grounds
9,000
Elevator
0
Janitorial/Misc
7260
Total Maintenance
46,080
Replacement Reserve
44,800
Other
On -Site Services Coordinator
10,000
State Inc. Tax
1,344
0
County Loan Monitoring Fee
2,800
Total Other
14,144
TOTAL EXPENSES - RESIDENTIAL
341,142
Per Unit Per Month (incl. Reserves)
6,092
Per Unit Per Month (w/o taxes/res/svc))
5,024
TCAC Minimum (w/o taxes/res/svc)
3,400
TOTAL EXPENSES - COMMERCIAL
0
NET AVAILABLE INCOME
160,801
Less: HCD Mandatory Interest Payment
11,991
Less:
0
ADJUSTED NET AVAILABLE INCOME: TOTAL
148,810
ADJUSTED NET AVAILABLE INCOME NET OF SECT 8
148,810
Debt Service Coverage Ratio
1.15
AVAILABLE FOR DEBT SERVICE
129,400
California Housing Partnership Corporation
CHE ARBORS PAGE 4-,
Mortgage Calculation/Bond Ratios Revised: 19 -Apr -O
Financing Type: Tax -Exempt Bank Purchase: US Bank
Underwriting Maximum
Constraint Loan Amount
Debt Service Coverage - 1.15 1,878,300
Lender Commitment NA
MAXIMUM MORTGAGE 1,878,300
LOAN Z
FHA/CONV. SERIES A SERIES 8
Bond/Loan Rate
Financing Type:
5.35000%
0.00000%
Lender. Tax Exempt 2nd Loan:
Section 8 Increment
Section 8 Increment (Ann'I)
10.00
LOC Fee
Less: Vacancy
0.00000%
5.0%
Net Section 8 Increment
-
0.00000%
DSC
1.10
0.000001%
Available for DS (Ann'I):
-
Other Annual Bond Fees
0.00000%
Underwriting
Maximum
Amort (P&I)
Constraint
Loan Amount
Debt Service Coverage
1.10
0
Commitment Amount
NA
NA
MAXIMUM MORTGAGE
5.68179%
0
LOAN CONSTANT/TIC CALCULATION
FHA/CONV. SERIES A SERIES 8
Bond/Loan Rate
8.00000%
5.35000%
0.00000%
Term (Yr)
30.00
30.00
10.00
LOC Fee
0.00000%
0.00000%
0.00000%
GNMA/Servicing
0.00000%
0.00000%
0.00000%
Annual Issuer Fee
0.000001%
0.25000%
0.00000%
Other Annual Bond Fees
0.00000%
0.00000%
0.00000%
Amort (P&I)
0.80517%
1.35096%
10.00000%
Loan Constant8.80517%
6.95096%
10.00000%
imputed Total Interest Cost TIC
8.00000%
5.68179%
0.00000%
BOND/REHABILITATION RATIOS
Series A Bonds
0
Series B Bonds
0
Tax -Exempt Construction Loan
9,945,000
Tax -Exempt Bridge Loan
Oil
TOTAL TAX-EXEMPT FINANCING
9,945,000,
TOTAL BASIS + LAND ALLOCATION
16,079,618'
Percent Tax -Exempt Financing
61.85%
California Housing Partnership Corporation
4 r.
THE ARBORS rAees
LEASE-UP/PLACED-IN-SERVICE SCHEDULE V -m: City Levn Ame fflt 4/05 Re0-d: 19 -Apr -05
I MTC L.FASE�P SCHEDULE
Lease41p Start (Year):
�•
2006
v Manth
C er
Month wee.
Jan -06
_ _
peremt
0 0.0%
Fee -06
0 0.0%
Mar -06
0 0.0%
Apr -06
0 0.096
May -06
0 0.0%
Jun -06
0 0.0%
Jul -06
0 0.0%
Aug -06
0 0.0%
SeP706
0 0.0%
Oct -06
19 34.5%
Nov -06
19 34.5%
Dec -06
1Z 30.9-94
TOTAL
55 100.0%
Total K QM.L Occ. In F t Year
17.0%
BUILDING PLACED -N -SERVICE SQ EDULE
Rltl MS
2006
M Month
Month Bu kg- Na No.
UNts
Percent
lan-06 0
0
0.0%
Fetr06 0
0
0.0%
Mar -06 0
0
0.0%
Apr -06 0
0
0.096
May -06 0
0
0.0%
Jun -06 0
0
0.0%
Ju 06 0
0
0.0%
Aeg-06 0
0
0.0%
Sep -06 0
0
0.0%
W-06 1
56
100.0%
W106 0
0
- 0.0%
D-06 0
0
- 0.4%
TOTAL
S6
100.0%
Total % PIS M Ft Year
Year
2S.0%
California Housing PartnersNp Corporation
OPERATIONS SCHEDULE
2006
,r,nlev
Men
$.0 M
Jan -06
O
0.0%
Fee -06
0
0.0%
Mar -06
0
0.0%
Apr -06
0
0.0%
May -06
0
0.0%
lun-06
0
0.0%
Ju1-06
0
0.0%
Aug -06
0
0.0%
SeP-06
0
0.0%
al -06
19
33.9%
Npv-O6
19
33.9%
Dec -06
18
31194
TOTAL
S6
100.0%
Total % openting in First
Year
16.8%
THE ARBORS
PAGE 6
Calculation of Net Syndication Proceeds
Version: City Loan AmendmE Revised: 19 -Apr -OS
CALCULATION OF SYNDICATION COSTS
Total Federal Credit (10 yr) & State Credit
6,049,866
Gross Proceeds (Total)
6,552,609
Gross Proceeds (net of bridge int/fees)
6,552,609
Less
Comments
Upper Tier Costs
Attorney
35,000
Accountant
12,000
Consulting
38,000
Broker
Bridge Loan Fee
0
Syndicator
0
Other
Total Syndication Costs
85,000
Total Syndication Costs/Gross Proceeds
0.01
% (Syndication Load)
Net Proceeds
6,467,609
Net Proceeds/Total Fed and State Credit
1.06905 tax credit factor
Gross Proceeds (Total)/Total Fed and State Credit
1.08310 tax credit factor
Gross Proceeds w/o Bride /Total Fed and State Credit
1.08310 tax credit factor
California Housing Partnership Corporation
A.,.
fHE ARBORS PACE
FCAC Basis Limit Calculation
Iersion: City Loan Amendment 4/05 - Revised: 19 -Apr -O
County:
Sonoma
221 (d)(3) Multiplier:
1.88
Elevator (Y/N)
N
Special Feature (Y/N)
Y
Special Feature Percent
120.00%
Special Features:
Prev Wage
BASIS CALCULATION
221(d)(3) basis Limit
6,765,684
Plus: Special Features Boost
Per Unit
Per Unit
TOTAL
TOTAL
4';0% 270,627 -
Plus: Seismic rroxics
0
Plus: Additional Boost for Tax -Exempt Bonds
60.0% 4.OS9.410
TCAC Basis
TCAC Basis
without
with
Unit Type
Elevator
Non-Elevato
unit Type
No. of Units
w/o Socl Feat
w/ Sod Feat
jpcl. Feat
Socl. Feat
0 BR
46,267
43,964
0 BR
0
82,652
99,182
0
0
1 BR
53,036
50,691
1 BR
16
95,299
114,359
1,524,784
1,829,741
2 BR
64,492-
61,134
2 BR
20
114,931
137,917
2,298,620
2,758,344
3 BR
83,430
78,252
3 BR
20
147,114
176,537
2,942,280
3,530,736
4 BR
91,581
87,176
4 BR
Q
163,891
196,669
Q
Q
BASIS CALCULATION
221(d)(3) basis Limit
6,765,684
Plus: Special Features Boost
20.00% 1,353,137
Plus: Local Development Impact Fees
_
_. 847;549
Plus: Title 24/Energy Star
4';0% 270,627 -
Plus: Seismic rroxics
0
Plus: Additional Boost for Tax -Exempt Bonds
60.0% 4.OS9.410
TCAC THRESHOLD BASIS LIMIT
13,Z96,408
Potential Eligible Basis
13,720,740
Sur lus/ Deficit
(424,332)
California Housing Partnership Corporation
50% of Su us Cash a fter PMF and Der Dev Fee
Perm Loan
- % Debt Svc Yr 1
O.O%
p
0
0
ksSUMPTIDNS:
25,159
27,238
29,255
Perm Loan
- %Debt Svc Yr 2
83.3%
36,018
0
0
0
0
Rent increase: TCAC Rents
2.50%
IS'TIRBUTION OF CASH FLOW
2,704
41,592
20,838
23.025
0
0
0
0
0
0
Rent Increase: Sect 8 Rents
2.00%
3.50%
Deferred Developer Fee
0
0
0
0
57H
38,278
39.742
_ 49,760
Expenses Increase:
4 '. 4
Interest on Deferred Developer Fee
0
0
-
2014
2015
2016
2017
2018
2019
2020
2021
Reservs Increase:
zoos
2006
2007
2008
2009
ZO10
2011
2012
2013
0
0
0
665.207
578
668,58
-Go
746
8702201�35,5
20,000
21,160
20,000
22,465
20,000
23,648
0
553,514.1
554,856
540'2195fi,227
72S
557,633
67 568
559074
1 757
5fi0,53
630 1
562,065
8636016
0
-666,837
18,218
19,742
POTENTIAL INCOME -RESIDENTIAL
8B
450,939
552,23
88
0
0
0
0
551
18.382
8, 42
313
19,796
(34,723)17,934
20,2
GROSS
GROSS POTENTIAL- INCOME - COMMERCIAL
0
53p
2,405
14,360
14,719
15.087
15 464
(28,499)
(29.213)
(29,948)
(30,690)
(31,457)
(32,244)
(33,050)
(33,876)
1141141
(36.7-141Vicanry
Mlsc. Income
(4,218)
(25,189)
(2255,818)
(26,464)
(27,125)
27,804)
(28114)
QR11.7)
u9537)
(3D z7s1
(v103)
(11 BOB)
(jZ&=
L33.9.1M
Loss -Residential
5.0%
50.0%
(4265)
(2597Q
(76759)
(74 B)
614,140
629,493
645,231
661,361
677,895
694,843GRO55
VacancyLoss-Commercial
529.571
542,870
556,380
570.290
584,547
599, 161
0
0
0
0
0
EFFECTIVE INCOME
84404
504,053
516,654
0
0
0
0
364433
355.92.4-
379.249
392S2L
446.251-
420380
434197
44D4 qTOTAL
4561944g
0
E%PENSES704
B'+1
]x8086
x09 cto
310.254
334399302,4(11
214,320
216.257
218,123
219,912
221,617
223,233
224,751
226,165
227467
228,649
0
0
0
34,573
205,967
208,135
210.254
212,317
0
0
p
0
0
0
44,11
44,11
44,11
44,11 900
44, 0
NET OPERATING INCOME
Sonoma County Loan
38.30%
0
0
44,800
44600
44,11
44,11 090
4411 900
44,11 c90
44,11 990
990
990
990
0
11,991_
'
0
7,533
44,800
44,800
44,800
��'
998
0
0
0
0
0
0
0
0
0
REPLACEMENT RESERVE
MH
Payment: P Loan
1
9,993_
11 991
1)-%91-
1�1"
0
0
0
163,121
164,826
166,442
167.960
169,374
170,676
171,858
172,91
Mandatory Interest
General Partner
151,344
153.463
155,526
157,529
159,466
161,332
NET INCOME AVAILABLE FOR DEBT SERVICE
27,039
151,175
CONSTRUCTION PERIOD INTEREST PW) FROM OPERATIONS
24,336
25,421
California
Housing Partnership
Corporation
Tax.Exempt Bank Purchase: US Bank
1,66<,263
1,634,874 65
1,594,080
1,553987
1,503,877
1,463.767
1 G41
1413,651
0,047
1,363,529
1,303,400
SERIES A BONDS: Tax -Exempt Bank Purchase:
US Bank
1,878,300
1,856,725
1829642
I'804,574
-1.770.601
1734,427
1704,947 27
125.864
125,864
125,864 -
125,864
PrindPalBalance
1,078,300
0.250%
p
4,696
4,502
125,864
125,864
125,864
125,864
125,864
125,864
125,864
841,674
125,864
843
q
76,952
74,270
71.441
Annual Issuer Fee
p
104,887
125,864
125,864
95.611
_
93,952
92.202
9�0.9t�
Bal a�4
960
45.374
48912
SI,S94
S4 42
Series A Bond P61
0
83,312
98.674
97,184
34.253
3.1912
13.662
39 SOS
129,846
129,741
129, 632
129,515
129,393
129,26,
Interest Payment
0
71 c7c
27 19-0
28:5.81
130,438
130,366
130,291
730,211
130,127
130,038
129.944
Principal Payment
0
109,583
130,506
34,882
36,596
38,218
39,742
� 41,160
42,465
43,64
TOTAL SERIES A DEBT SERVICE
23.025
2s,159
27.236
29,255
31,205
33,083
2.704
41,592
20,838
1.27
1.28
1.29
1.32
1.33
1.3,
NET CASH FLOW1.31
1.10
1.19
1.21
1.22
1.24
1.25
-
NA
1.15
1.16
Debt Service Coverage Ratio
50% of Su us Cash a fter PMF and Der Dev Fee
p
0
0
0
25,159
27,238
29,255
31,205
33,083
34,882
36,018
0
0
0
0
0
0
IS'TIRBUTION OF CASH FLOW
2,704
41,592
20,838
23.025
0
0
0
0
0
0
Deferred Developer Fee
0
0
0
0
57H
38,278
39.742
_ 49,760
42.465
4 '. 4
Interest on Deferred Developer Fee
0
0
0
0
0
0
Allowable for PMF/IMF per Milo limit
0
0
0
p
0
0
0
0
578
20,000
20,000
20,000
21,160
20,000
22,465
20,000
23,648
0
0
p
0
0
0
0
0
p
0
0
18,218
19,742
GP Partnership Management Fee - Current
Annual Amr: 20,000
0
0
0
0
0
0
0
0
0
GP Partnership Management Fee -Deferred
Inflator: 0.0%
0
0
0
0
p
p
0
0
0
0
0
p
p
GP Incentive Management Fee
25.00%
0
0
0
0
0
0
0
0
0
-'d -I R ns
32.53%
0
0
0
0
0
0
0
p
p
p
0
0
0
0
0
0
City of Rohnert Park -Loan 1
20 12%
0
0
0
p
0
0
0
O
0
0
0
0
0
0
0
City of Rohn- Park - Loan 2
9.05%
0
0
0
0
0
p
0
0
0
Sonoma County Loan
38.30%
0
0
-0
0
0
0
0
0
HCD Multifamily Housing Program
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
General Partner
0
0
0
Limited Partner
90.09%
California
Housing Partnership
Corporation
C 0C RESOLUTION NO. 2005-05
Council: X
Miscellaneous
Communications .1!
e A ends OSb°S
Copy to:
Co y to:
RESOLUTION OF THE CITY OF ROHNERT PARK COMMUNITY DEVELOPMENT
COMMISSION APPROVING SALE OF REAL PROPERTY LOCATED AT 430 AND
450 CITY HALL DRIVE TO BURBANK HOUSING DEVELOPMENT CORPORATION
AND ACCEPTING § 33433 REPORT
WHEREAS, the Rohnert Park Community Development Commission intends to
enter into an affordable housing agreement with Burbank Housing Development
Corporation for property within the redevelopment project area located at 430 and 450
City Hall Drive; and
WHEREAS, Health and Safety Code Section 33433(a)(1) requires that a sale or
lease first be approved by the Redevelopment Agency's Legislative Body by resolution
after a public hearing; and
WHEREAS, the agency has made available the report required by Health and
Safety Code Section 33433(A)(2)
NOW, THEREFORE, the Rohnert Park Community Development Commission approves
the sale of the real property located at 430 and 450 City Hall Drive to Burbank Housing
Development Corporation and accepts the Section 33433 report.
The foregoing Resolution was duly and regularly adopted by the Rohnert Park
Community Development Commission at a meeting thereof, held on the 7th day of
.lune 2005, by at least a majority vote, to wit:
AYES: Community Development Commission o e City of Rohnert Park
NOES:
ABSTAIN:
ABSENT: airperson
Attest: Approved to form:
COMMISSION CLERK ASSISTANT GENERAL COUNSEL
8315370 80078/00-12
SUMMARY REPORT PURSUANT TO
SECTION 33433 OF THE
CALIFORNIA HEALTH AND SAFETY CODE
on the
AFFORDABLE HOUSING AND LOAN AGREEMENT
by and between
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF ROHNART PARK
and
ARBORS ROHNERT PARK APARTMENTS, L.P.
May 2005
r
INTRODUCTION
The following Summary Report has been. prepared pursuant to Section 33433 of the
California Health and Safety 'Code. The Report. outlines the salient parts of the Affordable
Housing and Loan Agreement (AHLA) . by and between the Community Development
Commission of the City of Rohnert Park ("Commission") and Arbors Rohnert Park Apartments,
L.P. ("Developer') that provides for .the conveyance of approximately 1 .89 acres of real
property to the Developer: Section 33433 requires that if a redevelopment agency intends to
sell or lease property to which it holds title and which was acquired in whole or in part with
property tax increment funds, the agency must first secure approval of the proposed sale from
its local legislative body after a public hearing.
The proposed transaction under review involves the use of Commission tax increment funds.
Accordingly, a 33433 Report is required under the rules of the California Health and Safety
Code.
1. REQUIRED ELEMENTS OF A 33433 REPORT
Section 33433 requires that a copy of the proposed AHLA and a summary report that
describes and, contains specific financing elements of the proposed transaction shall .be
available for public inspection prior to the public hearing. The following information is
required to be included in the summary report:
I . The cost to the redevelopment agency of the portion of the AHLA pertaining to the
sale of the land, including the redevelopment agency's land acquisition costs,
clearance costs, relocation costs, and the costs of any improvements to be provided by
the redevelopment agency, -
2. The estimated value of the interest to be conveyed, determined at the highest and best
use permitted under the redevelopment plan, -
3. The estimated value of the interest to be conveyed in accordance with the uses,
covenants, and development costs required under the proposed AHLA with the
redevelopment agency, i.e_, the Reuse Value of the site,-
4.
ite;
4. An explanation of why the sale of the property will assist in the elimination of blight, -
and,
5, if the sale price is less than the fair market value of the interest to be conveyed,
determined at the highest and best use consistent with the redevelopment plan, then
the redevelopment agency shall provide as part of the summary an explanation of the
reasons for the difference_
Arbors Rohnert Park Apartments 33433 Report
II- DESCRIPTION OF THE PROPOSED AGREEMENT
A key element of the AHLA is the sale by the Commission of approximately 1.89 acres of land
to the Developer, consisting of two parcels ("Site") located at 430 and 450 City Hall Drive in
the City of Rohnert Park. The Site is located in the City of Rohnert Park Community
Development Project Area. The sale price is $1,335,000.
The site currently is vacant. The AHLA calls for the Developer to develop 12 buildings with a
total of 56 apartment units and some ground floor commercial space. All of the residential
units will be leased at affordable rents in accordance with the terms of the AHLA.
In addition to selling the site to the Developer, the Commission will provide a non-recourse
loan in the amount of $3,925,000 to the Developer. The loan will accrue interest at a rate of
2.00% per annum and is due and payable in 50 years.
The Developer is obligated to construct the necessary improvements and to obtain the
remainder of the required financing from equity and lender sources. Both construction and
take—out permanent loans will be obtained from U.S_ Bank. The Developer will obtain other
loans from the Sonoma County Community Development Commission ("Sonoma") and the
California Department of Housing and Community Development ("HCD"). The units will be
leased to qualifying tenants at affordable rents as called for in the AHLA for a period of 55
years.
III. COST OF THE AGREEMENT TO THE COMMISSION
The site was purchased by the City of Rohnert Park ("City") in 1998 at a cost of $775,000,
The City conveyed the site to the Commission for a price of $1,335,000. This conveyance
involved the use of property tax increment funds of the Commission_ The land has been used
from time to time for certain purposes by the City's public safety departments. The
Commission has not incurred any significant costs in holding the property since acquiring it
from the City. Consequently, the cost to the Commission of conveying the Site to the
Developer under the terms of the AHLA is effectively $1,335,000.
IV. VALUE OF THE SITE CONVEYED
Highest and Best Use Value
To provide background and context for negotiating the AHLA, the Commission engaged the.
services of the Crocker Company to perform an appraisal of the Site at its highest and best
use. The appraisal was completed in November 2004_ Crocker Company concluded that the
value of the Site at the highest and best use permitted under the Project Area Plan is
$1,335,000- This represents a potential sale price for a transaction that does not involve any
public assistance from the Commission or other public agency.
- 2 -
Arbors Rohnert Park Apartments 33433 Report
Reuse Value Under Terms of AHLA
The AHLA contains a number of terms that influence what the supportable value of the land
will be in this specific transaction. Those terms include a) the nature of the development that
is required, b) the limitations -on rents that may be charged, and c) the value of any public
assistance that may be provided by public agencies.
In accordance with the AHLA, the apartment: units will be leased at affordable rents to
qualifying tenants. The Developer has estimated that the non -land costs of developing the
project are approximately $15.4 million. The total cost of the project including the purchase
of the Site from the Commission for $1,335,000 is estimated at approximately $16.8 million.
Because of the nature of the affordable. rent provisions, the project qualifies for federal "tax
credit" financing. Tax credit financing regulations allow for a specified developer fee as a
function of the other development costs. The total developer fee permitted for this project is
$1,635,000 and is included in the total development costs_ The developer will draw
$795,000 of the fee during the development phase. A cumulative total of $305,000 will be
deferred and paid to the Developer on an annual basis from any net revenues that remain
after the project's operating expenses and debt service have been paid. The developer
estimates that it will take 1 1 years for the residual net revenues to fully pay off the deferred
amount. The remaining $535,000 of the fee will remain in the project as an equity
contribution.
As indicated, the AHLA calls for the Commission to provide approximately $3.9 million in
financing for the project. In addition to that financing, the project will be capitalized with a
loan from U=S. Bank, a loan from Sonoma, a loan from HCD, a contribution from the
purchasers of the project's "tax credits," and an equity contribution from the Developer.
Smaller elements of the capitalization consist of the deferral of a porlion of the developer fee
and project revenue up to the. point at which the permanent financing from U.S. Bank is
closed. The amounts of these components of the project's capitalization are presented in
Exhibit 1.
Both the Sonoma and HCD loans accrue simple interest at a 3.00% interest rate. The
Sonoma loan calls for the principal and all accrued interest to be paid at the end of 55 years.
The HCD loan calls for small partial interest payments for the first 30 years followed by
payments for an additional 25 years scaled to the annual cost to HCD of monitoring the
loan. All principal on the HDC loan and any remaining interest will be paid at the end of 55
years.
The various elements of the project's capitalization, in accordance with the provisions of the
AHLA, combine to produce a supportable residual or Reuse Value of the Site of $1 ,335,000.
That amount is the same as the appraised highest and best use value. If a larger amount of
public assistance were provided, a higher Reuse Value could be supported. If a lesser amount
of public assistance were provided, the Reuse Value would be less. A higher Reuse Value of
- 3 -
Arbors Rohnert Park Apartments 33433 Report
the Site could also be supported if the actual non -land development costs are less than
estimated. The AHLA calls for the amount of the Commission loan to be reduced on a dollar
for dollar basis to the extent the actual non -land development costs are less than estimated.
That provision will function to preserve the Reuse Value of the Site under the terms of the
AHLA at the $1,335,000 figure.
IV. PURCHASE PRICE
This AHLA calls for the Developer to purchase the Site from the Commission for $1,335,000
cash_ This amount is consistent with both the estimated supportable Reuse Value of the Site
and the current appraised highest and best use value.
V. ELIMINATION OF BLIGHT
The project will further the objectives of eliminating blight in a number of respects. First, .the
nature of the project is entirely consistent with the Center City Plan and will convert disused
land to o productive use. Second, the project will provide opportunities for local employment
both during the construction of the project and, upon completion. Third, the project will
increase the stock of affordable housing to residents of the area_
-4-
EXHIBIT 1
Arbors Apartments Capitalization
U.S_ Bank Loan
$1,878,000
Rohnert Park COC Loan
3,925,000
Sonoma County Loan
675,000
HCD Loan
2,855,000
Income from Operations
50,000
Deferred of Developer Fee
305,000
Capital Contributions
General Partner
535,000
Limited Partner
6,553,000
Total $16,776,000
Notes:
1. The General Partner is the Developer, Arbors
Rohnert Park Apartments, L.P.
2. The Limited Partner is the purchaser of the
project's tax credits
Source: Arbors Rohnert Park Apartments, L.P.
NlSharedlSedwaylProposals & Jobs 20051Rohnert Park - Arbors
33.433 RphSprdshtl[Rohnert 33433 Reoprt Ex 1_xls]Sheetl
5/19/05