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AGREEMENT FOR THE TRANSFER AND
DEVELOPMENT OF REAL PROPERTY AND JOINT
ESCROW INSTRUCTIONS
between the
CITY OF CAMARILLO
a California municipal corporation and general law city and
BARRY60 LP,
a California limited partnership
AGREEMENT APPROVED BY CITY COUNCIL ON
OCTOBER 27, 2021 BY RESOLUTION NO. 2021-109
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1. DEFINITIONS; REPRESENTATIONS AND WARRANTIES;
PROHIBITION AGAINST CHANGE IN OWNERSHIP ......................................... 3
1.1 Definitions ................................................................................................. 3
1.2 Representations and Warranties .............................................................. 8
1.3 Prohibition Against Change in Ownership, Management and Control of Developer ................................................................................10
2. DISPOSITION OF THE PROPERTY ................................................................. 12
2.1 Transfer of Property and Improvements ................................................. 12
2.2 Purchase Price ....................................................................................... 12
2.3 City Conditions Precedent ...................................................................... 14
2.4 Developer Conditions Precedent ............................................................ 15
2.5 Escrow .................................................................................................... 16
2.6 Closing .................................................................................................... 17
2.7 Delivery of Documents and Closing Funds ............................................. 18
2.8 Property Taxes and Assessments .......................................................... 18
2.9 Approval of Developer Condition of Title ................................................. 19
2.10 Title Insurance ........................................................................................ 19
2.11 Developer Due Diligence Period ............................................................. 20
2.12 Access to Property; Indemnity; Insurance ............................................... 20
2.13 Approval of Condition of Property ........................................................... 21
2.14 City Documents ...................................................................................... 21
2.15 As-Is Transfer, Investigation, Waivers and Release ............................... 21
3. DEVELOPMENT OF THE PROJECT ................................................................ 24
3.1 Development of Project........................................................................... 24
3.2 Cost of Development .............................................................................. 24
3.3 Permits and Approvals ............................................................................ 24
3.4 Construction Contract ............................................................................. 24
3.5 Payment of City Fees and Charges ........................................................ 24
3.6 Defects in Plans ...................................................................................... 24
3.7 Schedule of Performance ....................................................................... 24 Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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3.8 Insurance Requirements ......................................................................... 25
3.9 Rights of Access ..................................................................................... 26
3.10 Compliance with Laws; Indemnity and Waiver ........................................ 26
3.11 Green Building Certification .................................................................... 26
3.12 Certificate of Completion ......................................................................... 26
3.13 Liens and Stop Notices ........................................................................... 27
3.14 Right of City to Satisfy Other Liens After Closing .................................... 27
3.15 Holder Not Obligated to Construct Improvements .................................. 27
3.16 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure ........................................................................................................ 27
3.18 Project Name .......................................................................................... 28
3.19 City Covenants ....................................................................................... 28
3.20 Signage ................................................................................................... 29
3.21 Water ...................................................................................................... 29
4. PREPARATION OF AGREEMENTS ................................................................. 29
4.1 City to Take Lead in Preparation of Legal Agreements .......................... 29
5. REQUIREMENTS, RESTRICTIONS AND AGREEMENTS .............................. 29
5.1 Ownership and Maintenance of Common Areas ………………………….29
5.2 Taxes and Assessments After Closing.…………………………………….29
5.3 Use Restrictions ………………………………………………………………30
5.4 Prevaling Wages………………………………………………………………30
5.5 Outdoor Art Features ….……………………………………………………..30
5.6 Undergrounding of Existing Overhead Utilities…………………………….30
5.7 Developer Obtain Permits……………………………………………………30
5.8 Flood Damage Protection…………………………………………….………30
5.9 Affordability Covenant for Rental Units …………………………….……...30
5.10 Affordability Covenant for For-Sale Units ………………………….……….31
5.11 Homeowner’s Association for For-Sale Units …………...…………………31
5.12 Reciprocal Easement Agreement …………………………………….……..31
6. DEFAULTS AND REMEDIES ............................................................................ 31 Right of City to Cure Mortgage or Deed of Trust Default........................ 28 3.17 Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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6.1 Default Remedies ................................................................................... 31
6.2 Institution of Legal Actions ...................................................................... 31
6.3 Termination ............................................................................................. 31
6.4 Investor Limited Partner Cure Rights ...................................................... 32
6.5 6.6
Rights and Remedies Are Cumulative .................................................... 32 Inaction Not a Waiver of Default ............................................................. 32
7. GENERAL PROVISIONS .................................................................................. 32
7.1 Notices, Demands and Communications Between the Parties ............... 32
7.2 Enforced Delay; Extension of Times of Performance ............................. 33
7.3 Successors and Assigns ......................................................................... 34
7.4 Relationship between City and Developer .............................................. 34
7.5 City Approvals and Actions ..................................................................... 34
7.6 Exhibits ................................................................................................... 34
7.7 Counterparts ........................................................................................... 34
7.8 Integration ............................................................................................... 34
7.9 Brokerage Commissions ......................................................................... 35
7.10 Titles and Captions ................................................................................. 35
7.11 Interpretation ........................................................................................... 35
7.12 Modifications ........................................................................................... 35
7.13 Severability ............................................................................................. 35
7.14 Computation of Time............................................................................... 35
7.15 Legal Advice ........................................................................................... 35
7.16 Time of Essence ..................................................................................... 36
7.17 Cooperation ............................................................................................ 36
7.18 Conflicts of Interest ................................................................................. 36
7.19 Time for Acceptance of Agreement by City ............................................. 36
7.20 Developer’s Indemnity ............................................................................ 36
7.21 Cooperation in the Event of Legal Challenge .......................................... 36
7.22 Non-liability of City .................................................................................. 37 Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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7.23 Non-liability of Developer ........................................................................ 37
7.24 Applicable Law; Venue ........................................................................... 37
7.25 Survival ................................................................................................... 37 Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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EXHIBITS
Exhibit A Site Map of the Property
Exhibit B Legal Description
Exhibit C August 23, 2018 Letter from the County of Ventura Environmental Health Division
Exhibit D Parking
Exhibit E Schedule of Performance
Exhibit F Form of Grant Deed
Exhibit G Form of Memorandum of Agreement
Exhibit H City Affordable Housing Loan Documents: Promissory Note, Deed of Trust and Affordable Housing
Agreement
Exhibit I Form of Certificate of Completion
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AGREEMENT FOR THE TRANSFER AND DEVELOPMENT OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This Agreement For The Transfer And Development Of Real Property and Joint Escrow Instructions (“Agreement”) is between the City of Camarillo, a California municipal corporation and general law city (“City”) and BARRY60 LP, a California limited partnership, whose sole general partner is 60BARRY LLC, a California limited liability company ("Developer"). This Agreement is effective as of the date the Agreement is signed by the City (“Date of Agreement”), The City and Developer are collectively referred to in this Agreement as the “Parties”.
RECITALS
The following Recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 1 of this Agreement:
A. This Agreement has been negotiated by representatives of the City and Developer pursuant to an Exclusive Negotiation Agreement between City and The Area Housing Authority of the County of Ventura (the City’s Housing Authority) and Many Mansions, A California Nonprofit Corporation entered into on May 8, 2019 and extended to January 3, 2020 and a Term Sheet entered on December 16, 2019. This Agreement shall only become effective if approved by the Camarillo City Council and signed by the City.
B. The City owns in fee approximately 2.52 acres of land located at the southwest corner of Lewis Road and Barry Street commonly known as 2800 Barry Street, Camarillo, California 93010 (“Property”). A site map of the Property is attached as Exhibit A.
C. The Property is further described the Legal Description attached hereto as Exhibit B.
D. Prior to acquiring title to the Property, the City retained Rincon Associates to conduct an Environment Assessment of the Property. As a result of the recommendations by Rincon in the Environment Assessment, the City performed remedial action to remove approximately 462.96 tons of soil.
E. On August 23, 2018, following completion of the soil removal, the City received a no further action letter from the County of Ventura Environmental Health Division, copy attached as Exhibit C, which includes a statement that the Division does not require restricted use of the property should the land use change to residential.
F. On September 4, 2018, the City acquired title to the Property for a purchase price of $3,600,000 with tax exempt Housing Bonds.
G. The Property was formerly occupied by Stock Lumber and BMC West, LLC.
The City has removed the buildings which were located on the Property. The foundations for the building remain on the Property.
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H. The Property is currently zoned Light Manufacturing (M-1). The Developer is seeking a General Plan Amendment from Industrial to High Density Residential (18.1 to 30 dwelling units per acre) and zone change to Residential Planned Development (RPD). This will allow for the maximum of 75 units.
I. Developer plans to construct on the Property 68 units of affordable housing for low, very low- and extremely low-income families with 60 rental units and 8 for sale units (“Project”). Of the 68 units, 14 will be reserved for households with disabled and/or Veteran member(s).
J. Developer is proposing for the rental units that approximately 25% of the units (15 units) be rented to extremely low-income households, approximately 35% of the units (21 units) be rented to very low-income households, and approximately 38% of the units (23 units) be rented to low-income households, and 1 unit will be an unrestricted manager's unit for a total of 60 units. The rental unit portion of the Project will be known as "Vista Campanario Apartments" and the For Sale Units will be known as "Vista Campanario Homes".
K. The unit mix for the rental portion of the Project is currently planned to include 7 studios, 22 one-bedrooms, 16 two-bedrooms, and 15 three-bedrooms. One of the two-bedrooms will be designated as the manager’s unit.
L. The rental units will be arranged in a village concept, with single and two story facades along the street frontage that will blend with the character of the surrounding neighborhood. The units would range in size from approximately 340-400 square feet for a studio, approximately 536 square feet for a one-bedroom, approximately 767-1,014 square feet for a two-bedroom unit, and approximately 1,044 square feet for a three- bedroom unit.
M. In addition to the rental units, the Project is currently planned to include 8 for sale units consisting of three-bedroom units ("For Sale Units"). Buyers of these units shall be considered low income, earning less than or equal to 80% of the Area Median Income with a preference given for persons who live, work or have been offered employment in the City of Camarillo.
N. In accordance with the California Environmental Quality Act (CEQA) and the State CEQA guidelines, a Mitigated Negative Declaration (MND) has been prepared for the Project which has been approved by the City Council. The Developer has paid all costs incurred in connection with the preparation of the MND and must comply with any mitigation measures.
O. In accordance with the National Environmental Policy Act (NEPA), an Environmental Assessment and Finding of No Significant Impact (EA-FONSI) has been prepared for the Project and submitted to the U.S. Department of Housing and Urban Development. The Developer has paid all costs incurred in connection with the preparation of the EA-FONSI and must comply with any mitigation measures.
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P. The Developer has applied to the City for the following entitlements (“Entitlements”) for the Project: General Plan Amendment, Zone Change, Tentative Tract Map, Residential Planned Development (RPD), Conditional Use Permit (CUP), and Density Bonus and Other Incentives.
Q. Parking will be provided for the Project as illustrated on Exhibit D attached except as may be modified by the Entitlements.
R. A Schedule of Performance is attached as Exhibit E. If the Developer does not meet the Project timelines in the Schedule of Performance, then the Parties will discuss potential extensions of timelines. Any extensions of the timelines are subject to the written approval by the City Manager in his or her sole discretion.
S. City and Developer now desire to enter into this Agreement to provide for the transfer of the Property by City to the Developer and for development of the Project by the Developer.
T. The execution and performance of this Agreement is in the best interests of City and the public health, safety and general welfare of its residents, and is in accord with the provisions of applicable federal, state and local law.
AGREEMENT
NOW, THEREFORE, City and Developer agree that the foregoing Recitals are true and correct and said Recitals are hereby incorporated by reference and further agree as follows:
1.DEFINITIONS; REPRESENTATIONS AND WARRANTIES;
PROHIBITION AGAINST CHANGE IN OWNERSHIP.
1.1 Definitions.
“Agreement” means this Agreement for the Transfer and Development of Real Property between City and Developer.
“Annual Operating Expenses” with respect to a particular calendar year shall mean the following costs reasonably and actually incurred for operation and maintenance of the Project, using generally accepted accounting principles: debt service currently due on a non-optional basis (excluding debt service due from net cash flow or of the Project) on loans associated with the Project and approved by the City in the Financing Plan; property and other taxes and assessments imposed on the Project; premiums for property damage and liability insurance; utility services not paid for directly by tenants, including water, sewer, trash collection, gas, and electricity; maintenance and repair, including but not limited to pest control, landscaping and grounds maintenance, painting and decorating, cleaning, common systems repairs, general repairs, janitorial supplies and maintenance oversight fee; any annual license or certificate of occupancy fees required for operation of the Project; general administrative expenses including but not limited to advertising and marketing, security services and systems, professional fees Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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for legal, audit, accounting and tax returns; bookkeeping fees, property management fees not to exceed eight percent (8%) of gross revenues from the Project plus reimbursements including on-site manager costs and reimbursements which are comparable to other 100% affordable housing projects in the County of Ventura, reasonable fees for any services required to be provided by or otherwise required by the California Debt Limit Allocation Committee or the California Tax Credit Allocation Committee, or any other lender set forth on the Financing Plan; any fees or costs in connection with resident/social services provided; social services oversight fee in a reasonable amount given comparable fees for such services at that time; cash deposited into a reserve for capital replacements of Project improvements in such reasonable amounts as are approved by senior lenders to the Project and the investor limited partner; any current and accrued annual asset management fee, or similar fee, paid to investor limited partner or its designee, in a reasonable amount that is customary for the industry; and any current and accrued annual partnership management fee, or similar fee, paid to the managing general partner of the Developer in a reasonable amount that is customary for the industry; payment of any previously unpaid portion of the developer fee for the Project due (with interest at a rate not to exceed the applicable federal rate); cash deposited into an operating reserve in such reasonable amounts as are approved by senior lenders to the Project and the investor limited partner; and capital adjusted under the Developer's partnership agreement; repayment of any advances or loans made by a partner to fund operating shortfalls; extraordinary operating costs specifically approved by the City Manager; and other ordinary and reasonable operating expenses not listed above and approved by the City Manager. Annual Operating Expenses shall not include the following: depreciation, amortization, depletion or other non-cash expenses or any amount expended from a reserve account.
“Applicable Laws” means, collectively, any and all applicable local, state, or federal code, ordinance, statute, rule, regulation, enactment, decree, judgment, order, permit, certificate, or law of any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or later in existence including (i) the Americans with Disabilities Act, Title 24 of the California Administrative Code, and other similar federal, state and local laws, (ii) building codes, zoning ordinances and all other laws relating to the use, ownership, construction or design of the improvements on the Property, including fire, safety, handicapped access, or seismic design, and (iii) Environmental Laws (as defined below).
“As-Is Condition” is defined in 2.15.1.
“City” means the CITY OF CAMARILLO, a California municipal corporation and general law city.
“City Party” and “City Parties” are defined in Section 2.15.1. “City Conditions Precedent” is defined in Section 2.3.
“City Council” means the City Council of the City of Camarillo.
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“City Affordable Housing Loan” is defined in Section 2.2.2 “City Title Policy” is defined in Section 2.10.2
“Claims” means liabilities, obligations, orders, claims, damages, governmental fines or penalties, and expenses of defense with respect thereto, including reasonable attorneys’ fees and costs.
“Closing” is defined in Section 2.6.
“Closing Date” is defined in Section 2.6.
“Construction Contract” is defined in Section 3.4.
“Construction Drawings” is defined in Section 3.66.
“Date of Agreement” means the date the Agreement is signed by the City “Default” means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following Notice and opportunity to cure, as defined in Section 6.1.
“Deposit” is defined in Section 2.2.1.
“Developer” means 60Barry LP, a California limited partnership. “Developer Condition of Title” is defined in Section 2.9.5. “Developer Conditions Precedent” is defined in Section 2.4. “Developer Title Policy” is defined in Section 2.10.1
“Due Diligence Period” is defined in Section 2.11
“Exclusive Negotiation Agreement” is defined in Recital A. “Environmental Laws” means, collectively: (i) the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601, et seq., (ii) the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq., (iii) the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq., (iv) the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq., (v) the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq., (vi) the Toxic Substances Control Act , as amended, 15 U.S.C. § 2601,et seq., (vii) the Clean Water Act, as amended, 33 U.S. Code § 1251, et seq., (viii) the Oil Pollution Act, as amended, 33 U.S.C. § 2701, et seq., (ix) California Health & Safety Code § 25100, et seq. (Hazardous Waste Control), (x) the Hazardous Substance Account Act, as amended, Health & Safety Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous Materials Management Regulatory Program, as amended, Health & Safety Code § 25404, et seq., (xii) Health & Safety Code § 25531,et seq.(Hazardous Materials Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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Management), (xiii) the California Safe Drinking Water and Toxic Enforcement Act, as amended, Health & Safety Code § 25249.5, et seq., (xiv) Health & Safety Code § 25280, et seq. (Underground Storage of Hazardous Substances), (xv) the California Hazardous Waste Management Act, as amended, Health & Safety Code § 25170.1, et seq., (xvi) Health & Safety Code § 25501, et seq. (Hazardous Materials Response Plans and Inventory), (xvii) Health & Safety Code § 18901, et seq. (California Building Standards), (xviii) the Porter-Cologne Water Quality Control Act, as amended, California Water Code § 13000, et seq., (xix) California Fish and Game Code §§ 5650-5656 and (xx) any other federal, state or local laws, ordinances, rules, regulations, court orders or common law related in any way to the protection of the environment, health or safety. “Escrow Agent” is defined in Section 2.2.1.
“Financing Plan” is defined in Section 2.3.3.
“For-Sale Developer” means the developer, subject to the approval by the City Manager, in his or her reasonable discretion, of the For Sale Units. Prior to City Manager approval of a proposed For-Sale developer, the For-Sale Developer must execute an Agreement, including a Schedule of Performance for the construction and completion of the For Sale Units, approved by the City Manager in which the For-Sale Developer agrees to comply with the terms of this Agreement to the extent applicable. “For Sale Units“ means the 8 for sale units consisting of three-bedroom units.
“Force Majeure Delay” is defined in Section 7.2
“Governmental Requirements” means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees, of the United States, the State of California, the County of Ventura, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer or the Property.
“Grant Deed” means the Grant Deed for the conveyance of the Property to be executed and recorded at Closing substantially in the form attached hereto as Exhibit F. The Grant Deed will include a reservation of all easements of record. The Final Map will include an easement in favor of the City for public water meter and access to the meter. The Grant Deed will include a covenant that the property, for both the rental units and for sale units, must be developed consistent with the terms of this Agreement and entitlements for the Project approved by the City and that the recordation of the Certificate of Completion with indicate compliance with such covenant for any applicable provision of the Property.
“Gross Revenue” with respect to a particular calendar year shall mean all revenue, income, receipts, and other consideration actually received from the operation and leasing of the Project. Gross Revenue shall include, but not be limited to: all rents, fees and charges paid by tenants, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements; Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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proceeds from vending and laundry machines; the proceeds of business interruption or similar insurance; the proceeds of casualty insurance; and condemnation awards for a taking of part or all of the Project for a temporary period. Gross Revenue shall not include tenants' security deposits, loan proceeds, interest earned on restricted cash (lender impounds and reserves), or similar advances.
“Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Sections 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); (x) 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. The term “Hazardous Materials” shall not include: (i) construction materials, gardening materials, household products, office supply products or janitorial supply products customarily used in the construction, maintenance, rehabilitation, or management of affordable housing properties, buildings and grounds, or typically used in residential activities, or (ii) certain substances which may contain chemicals listed by the State of California pursuant to California Health & Safety Code Section 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Project, including, but not limited to, alcoholic beverages, aspirin, tobacco products, NutraSweet and saccharine, so long as such materials and substances are stored, used and disposed of in compliance with all applicable Hazardous Materials Laws. “Litigation Challenge” is defined in Section 7.21.1.
"Net Cash Flow” with respect to a particular calendar year shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses. “Notice” means a written notice in the form prescribed by Section 7.1.
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“Organizational Documents” means the Certificate of Limited Partnership and partnership agreement of Developer, as the same may be amended from time to time. In the event of an approved transfer or assignment, the term “Organizational Documents” will be deemed to refer to the formation documents and the bylaws, operating agreement, partnership agreement or other organizational documents, as applicable, of Developer approved successor(s)-in-interest.
“Project” is defined in Recitals H to M and as referenced in Section 3.1. “Property” is defined in Recitals B and C
“Property Claims” is defined in Section 2.15.4.
“Real Property” means the Property as defined in Recitals B and C “Reports” is defined in Section 2.14.
“Schedule of Performance” means the Schedule of Performance attached as Exhibit E, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished.
“Security Financing Interest” means mortgages, deeds of trust, regulatory agreements, use restrictions, or any other reasonable method of security are permitted to be placed upon the Developer's fee interest in the Property but only for the purpose of securing loans approved by the City pursuant to the approved Financing Plan. “Sustainable Design Elements” means the sustainability elements described in Section 3.11.
“Title Company” is defined in Section 2.2.1.
“Unrecorded Agreements” is defined in Section 2.14.
“Zoning Code” means Title 19 of the Camarillo Municipal Code, as amended.
1.2 Representations and Warranties.
1.2.1 City Representations. City represents and warrants to Developer as follows:
(a) Authority. City is a California municipal corporation and general law city possessed of full right, power and lawful authority to perform its obligations hereunder, and the execution, delivery, and performance of this Agreement by City has been fully authorized by all requisite actions on the part of the City Council.
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(b) No Conflict. City’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 City is a party or by which City is bound. (c) No Litigation or Other Proceeding. To City’s current actual knowledge, no litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of City to perform its obligations under this Agreement, or that would adversely affect the Property.
(d) Eminent Domain. To City’s actual current knowledge there are no condemnation or eminent domain proceedings which are pending or have been threatened that affect the Property.
(e) Condition of Property. City has no notice of any pending or threatened action or proceeding arising out of the condition of the Property or any alleged violation of any Environmental Law. To City’s actual current knowledge, the Property is in compliance with all Environmental Laws.
Until the expiration or earlier termination of this Agreement, City will, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 1.2.1 not to be true, immediately give written Notice of such fact or condition to Developer. Notwithstanding anything to the contrary in this Agreement, the foregoing representations and warranties will survive the Closing or earlier termination of this Agreement for a period of 12 months.
1.2.2 Developer Representations. Developer represents and warrants to City as follows:
(a) Authority. The Developer is duly organized under the applicable laws. Developer has the full right, power and lawful authority to undertake all of its obligations hereunder 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.
(b) No Conflict. Developer execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which Developer is bound.
(c) No Litigation or Other Proceeding. To Developer's current actual knowledge, no litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement. (d) No Developer Bankruptcy. Developer is not the subject of any bankruptcy proceeding, and no general assignment or general arrangement for the Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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benefit of creditors or the appointment of a trustee or receiver to take possession of all or substantially all of Developer's assets has been made.
Until the expiration or earlier termination of this Agreement, Developer must, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 1.2.2 not to be true, immediately give written Notice of such fact or condition to City. Notwithstanding anything to the contrary in this Agreement, the foregoing representations and warranties will survive the Closing or earlier termination of this Agreement for a period of 12 months.
1.3 Prohibition Against Change in Ownership, Management and Control of Developer. The qualifications and identity of Developer are of particular concern to City.
It is because of those unique qualifications and identity that City has entered into this Agreement with Developer. Until such time as a Certificate of Completion is issued for the Project, no voluntary or involuntary successor in interest of Developer may acquire any interest in the land or improvements comprising the Project nor any rights or powers under this Agreement, except as expressly set forth herein.
1.3.1 Consent Required. City Manager will have the right to approve or disapprove any proposed assignment of Developer’s rights and obligations under this Agreement and related documents (in whole or in part) in its sole discretion until such time as a Certificate of Completion is issued for the Project. No approval of a proposal assignment shall be effective unless the approval is in a writing signed by the City Manager. Developer must submit documentation of its intent to assign its rights along with related information describing the proposed transferee (including its business operations and financial capacity and experience) to City Manager at least 45 days prior to the date of the proposed transfer. City Manager will have 30 days after receipt of complete information regarding the proposed assignment to exercise its right to approve or disapprove the assignment in writing. All assignments would have to be documented as set forth in Section 1.3.3. No later than 10 business days after the date the assignment becomes effective, Developer must deliver to City a fully executed counterpart of the assignment and assumption agreement.
1.3.2 Permitted Transfers. Notwithstanding the provisions of Sections 1.3 and 1.3.1, the following transfers shall be permitted and are hereby approved by the City, except for a transfer described in subsections (d), (i) and (j) below, the person or entity to which such transfer is made expressly and unconditionally assumes in a written assignment and assumption agreement between such person or entity, and Developer and City that is in a form reasonably acceptable to the City Manager, as set forth in Section 1.3.3, all obligations of Developer under this Agreement:
(a) Any transfer creating a Security Financing Interest permitted pursuant to the approved Financing Plan.
(b) Any transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest.
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(c) Any transfer of stock or equity in any party that does not change management or operational control of the Developer. (d) Any transfer of this Agreement or the Property or the Development by the Developer to a to-be-formed limited partnership in which the managing general partner is controlled by the Developer. (e) The lease of residential units in the Project consistent with this Agreement and the Affordable Housing Agreement.
(f) The admission of an investor as a limited partner of the Developer for the purposes of syndicating the low income housing tax credits to obtain equity funds, and the transfer and sale of limited partnership interests in Developer while the Developer is in the form of a limited partnership.
(g) In the event that any general partner of the Developer, while the Developer is in the form of a limited partnership, is removed by the investor limited partner for cause following default under the Developer's partnership agreement, the transfer of any general partner interest to a 501(c)(3) tax exempt nonprofit corporation or affiliate of the investor limited partner selected by the investor limited partners and approved by the City, which approval shall not be withheld unreasonably, delayed or conditioned.
(h) The grant and exercise of a right of first refusal in connection with the tax credit syndication of the Project.
(i) Any agreement to transfer a portion of the Property related to the development of the For Sale Units to the For Sale Developer, which developer shall be approved by the City Manager, in his or her reasonable discretion. (j) The transfer of the Project from Developer, while the Developer is in the form of a limited partnership, to one or more of the general partners of the Developer or their affiliates at the end of the tax credit compliance period for the Project.
(k) Any dilution of a general partner's interest in the Developer while the Developer is in the form of a limited partnership, in accordance with the Developer's limited partnership agreement.
1.3.3 Form of Assignment. Prior to consideration by the City Manager of any proposed assignment or transfer, Developer must deliver to City Manager the form of a proposed written assignment and assumption agreement in which the assignee expressly agrees to assume the rights and obligations of Developer under this Agreement being transferred that arise after the effective date of the assignment, and in which the assignee agrees to assume the performance and obligations of Developer that arise prior to the effective date of the assignment with respect to the rights and obligations being transferred. The assignment and assumption agreement must be in a form reasonably acceptable to the City Attorney.
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2.DISPOSITION OF THE PROPERTY.
2.1 Transfer of Property and Improvements. Subject to the terms, covenants and conditions of this Agreement, Developer agrees to acquire from City and City agrees to transfer to Developer all of the following:
2.1.1 Fee interest in the Property.
2.1.2 All structures, fixtures, foundations landscaping and other improvements erected or located on the Property, if any.
2.2 Purchase Price.
The Property will be donated by the City to the Developer because the Property was purchased by the City with tax exempt Housing Bonds for the development of low, very low and extremely low income housing units.
2.2.1 Deposit. Developer must pay a deposit of Twenty Five Thousand Dollars ($25,000) into Escrow (“Deposit”). The Escrow (“Escrow Agent”) and Title Company will be:
Escrow Agent: Cheryl Greer
Email: [email protected]
Title Company:
Commonwealth Land Title Company
888 South Figueroa Street, Suite 2100
Los Angeles, CA 90017
Phone: (213) 330-3080
The Parties will prepare and submit this Agreement to the Escrow Agent. The Deposit by the Developer must be delivered to the Escrow Agent within three business days after the City Council’s approval and execution of this Agreement. The Deposit will be invested by the Escrow Agent into one or more interest-bearing accounts. The Deposit will be fully refundable to Developer during the Due Diligence Period, after which time the Deposit will: (1) become non-refundable except in the event of any Default by the City and the Escrow Agent shall pay the Deposit to the City as liquidated damages if escrow fails to close for any reason other than a Default by City under this Agreement; (2) if escrow fails to close due to any Default by the City, then the Escrow Agent shall return the Deposit to the Developer; or (3) if escrow closes, the Deposit shall be applied by the Escrow Agent to pay the Developer share of escrow costs set forth in Section 2.5.1 and the balance of the Deposit, if any, will be paid by the Escrow Agent to the Developer.
2.2.2 City Affordable Housing Loan. The City agrees to provide a loan to the Developer in the amount of $4,900,000 in City affordable housing funds to be applied to the construction and construction related costs and fees of the rental portion of Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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the Project (“City Affordable Housing Loan”) which will be secured by a Promissory Note and Deed of Trust (included in Exhibit H). The Promissory Note will be a residual receipts loan and the annual payment amount shall be fifty percent (50%) of the Net Cash Flow (provided however if there are other loans to the Project from governmental lenders payable from Net Cash Flow, the payment to the City will be the prorata share of fifty percent (50%) of Net Cash Flow based on the original principal amounts of all loans payable from Net Cash Flow), have a 3.0% simple interest rate, and a loan term of 55 years. The City Affordable Housing Loan will be in junior lien position after any commercial institution loans and any State of California affordable housing program loans (if required by their governing regulations). The City Affordable Housing Loan will be disbursed in a percentage commensurate with the percentage of the completion of construction. For example, completion of 10 percent of the Project would equate to a loan disbursement of 10 percent of the City Affordable Housing Loan. The Developer will provide to City a certified AIA Document G702 pay application each month which indicates percentage of construction completed and will provide to City an invoice for proportional disbursement amount due. City shall pay the invoice within 30 calendar days of receipt of the G702 and the invoice.
2.2.3 LIQUIDATED DAMAGES PAYABLE TO CITY. IF AFTER
THE DUE DILIGENCE PERIOD THE TRANSFER OF PROPERTY AND
IMPROVEMENTS CONTEMPLATED UNDER THIS AGREEMENT IS NOT
CONSUMMATED FOR ANY REASON OTHER THAN A MATERIAL DEFAULT BY CITY HEREUNDER, THEN CITY MAY RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES.
THE PARTIES HAVE AGREED THAT CITY’S ACTUAL DAMAGES IN THE EVENT OF
A FAILURE TO CONSUMMATE THE TRANSFER OF PROPERTY AND
IMPROVEMENTS CONTEMPLATED UNDER THIS AGREEMENT FOR ANY REASON
OTHER THAN AS SET FORTH ABOVE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE
AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE
DATE OF AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE
ESTIMATE OF THE DAMAGES THAT CITY WOULD INCUR IN SUCH EVENT,
INCLUDING LOST OPPORTUNITIES TO PURSUE OTHER DEVELOPMENT OPPORTUNITIES FOR THE PROPERTY, AND IS NOT A PENALTY. BY PLACING ITS
INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF
THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
THE FOREGOING IS NOT INTENDED TO LIMIT THE PARTIES’ INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT.
INITIALS: CITY ________ DEVELOPER ______ AND _______
2.2.4 LIQUIDATED DAMAGES PAYABLE TO DEVELOPER. IF
AFTER THE DUE DILIGENCE PERIOD THE TRANSFER OF PROPERTY AND
IMPROVEMENTS CONTEMPLATED UNDER THIS AGREEMENT ESCROW FAILS TO
CLOSE DUE TO ANY DEFAULT BY THE CITY, THEN THE CITY SHALL PAY TO THE DEVELOPER THE SUM OF $25,000 AS LIQUIDATED DAMAGES. THE PARTIES Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837db
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HAVE AGREED THAT DEVELOPER ACTUAL DAMAGES IN THE EVENT OF A
FAILURE TO CONSUMMATE TRANSFER OF PROPERTY AND IMPROVEMENTS
CONTEMPLATED UNDER THIS AGREEMENT FOR ANY REASON OTHER THAN AS
SET FORTH ABOVE WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT,
CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF AGREEMENT, THE AMOUNT OF THE $25,000 IS A REASONABLE ESTIMATE OF
THE DAMAGES THAT DEVELOPER WOULD INCUR IN SUCH EVENT, INCLUDING
LOST OPPORTUNITIES TO PURSUE OTHER DEVELOPMENT OPPORTUNITIES, AND IS NOT A PENALTY. BY PLACING THEIR INITIALS BELOW, EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT THE PARTIES’ INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT.
INITIALS: CITY ________ DEVELOPER ______ AND _______
2.3 City Conditions Precedent. City’s obligation to proceed with the disposition of the Property to Developer and For-Sale Developer pursuant to the terms of this Agreement is subject to the fulfillment or waiver by City of each and all of the conditions precedent described below (“City Conditions Precedent”). City Conditions Precedent are solely for the benefit of City and must be fulfilled or waived within the time periods provided for herein, and in any event, no later than the Closing Date:
2.3.1 No Default. Developer (and For-Sale Developer if applicable) may not be in material Default under this Agreement and in no event may a default have occurred which with the passage of time or giving of Notice or both would constitute a material Default by Developer hereunder.
2.3.2 Execution of Documents. City and Developer (and For-Sale Developer if applicable) must have executed and recorded the Memorandum of Agreement, and Developer must have executed (and, where appropriate, acknowledged) and delivered to the Escrow Agent all other documents that Developer (and For-Sale Developer if applicable) is required to deliver pursuant to Section 2.7.1
2.3.3 Financing Plan. By approval of this Agreement, City has approved a financing plan for the Project, including a pro forma that demonstrates to the reasonable satisfaction of City Manager the financial viability of the Project, and sets out Developer’s plan for financing the costs of construction and development of the Project, as well as all debt and equity sources, together with a current statement of financial condition and/or capacity (the “Financing Plan”). Prior to the Close of Escrow, Developer must submit to City Manager for review and approval any changes to the Financing.
2.3.4 Insurance. Developer must have provided proof of insurance as required by Section 3.8 below.
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2.3.5 Condition of the Property. Developer must have provided Notice to City that all physical aspects of the Property are acceptable to Developer.
2.3.6 Agreement in Effect. This Agreement may not have been previously terminated pursuant to any other provision hereof.
2.3.7 Organizational Documents. To the extent City has not previously approved Developer Organizational Documents, Developer must have submitted and secured City approval of the Organizational Documents for Developer.
2.3.8 City Title Policy. The Title Company will, upon payment of the Title Company’s regularly scheduled premium, be irrevocably committed to issue the City Title Policy.
2.3.9 Updated Statement of Financial Condition. Developer has submitted to the City an updated statement of financial condition and capacity which has been approved by the City in writing.
2.3.10 Expiration of Time to File Legal Challenge. The close of escrow is contingent upon expiration of the time for the filing of a legal challenge to any certification by the City of the environmental document or, if a legal challenge has been filed, then a final judgment being entered in favor of the City and against the party filing the legal challenge.
2.4 Developer Conditions Precedent. Developer’s obligation to proceed with the acquisition of the Property from City is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer Conditions Precedent”), which are solely for the benefit of Developer, and which must be fulfilled or waived within the time periods provided for herein, and in any event, no later than the Closing Date.
2.4.1 Execution of Documents by City. City and Developer must have executed and recorded a Memorandum of this Agreement in the form attached as Exhibit G, and City must have executed (and, where appropriate, acknowledged) and delivered to the Escrow Agent the Grant Deed and all other documents that City is required to deliver into escrow pursuant to Section 2.7.2.
2.4.2 No Default by City. City may not be in Default under this Agreement, and no event may have occurred which with the passage of time or giving of Notice or both would constitute a Default hereunder.
2.4.3 Land Use Approvals. It will be a condition of Closing that Developer has obtained all necessary entitlements for the Project.
2.4.4 Financing. It will be a condition of Closing that Developer will close simultaneously with the construction financing for the rental housing portion of the Project substantially consistent with the Financing Plan.
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2.4.5 Review and Approval of Title. Developer must have reviewed and approved title to the Property as set forth in this Agreement, and the only exceptions to title to the Property will be the Developer Condition of Title.
2.4.6 Parcelization. It will be a condition of Closing that separate legal parcels shall be ready to be formed for the rental portion of the Project and the For-Sale Units at the Closing. City agrees to cooperate with the Developer's process to form the separate parcels so the parcel map (or other appropriate document) can be recorded upon Closing. Developer Title Policy. The Title Company will, upon payment of Title Company’s regularly scheduled premium, be irrevocably committed to issue the Developer Title Policy upon recordation of the Grant Deed.
2.4.8 Condition of the Property. Within the Due Diligence Period, Developer must have provided Notice to City that all physical aspects of the Property are acceptable to Developer.
2.4.9 Absence of Proceedings. There may not be any
condemnation, environmental or other pending governmental proceedings with respect to the Property which would materially and adversely affect Developer’s intended uses of the Property or the value of the Property.
2.4.10 No Material Adverse Change. There will not have occurred between the Date of Agreement and the Closing a material adverse change to the physical condition of the Property.
2.4.11 No Leases or Parties in Possession. City must have terminated all leases, licenses, and any other occupancy agreements affecting the Property effective no later than the Closing date, and City must have demonstrated the ability to deliver fee title to the Property to Developer free and clear of any tenants, lessees, licensees or any third party occupants or parties in possession.
2.4.12 Agreement in Effect. This Agreement may not have been previously terminated pursuant to any other provision hereof.
2.4.13 City Authorization to Close. City Manager must have instructed the Title Company to consummate the Closing.
2.4.14 Title to Property. Title shall be taken to the Property in the name of one or more entities associated with the Developer as instructed by Developer.
2.5 Escrow. City and Developer will open escrow with the Escrow Agent for the conveyance of the Property to Developer (“Escrow”).
2.5.1 Costs of Escrow. All usual fees, charges, and costs chargeable by Escrow Agent for the escrow including recording fees, document fees, title insurance premiums and documentary transfer taxes, if any, due with respect to the conveyance of the Property to Developer will be paid equally by Developer and City.
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2.5.2 Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and City with respect to the conveyance of the Property, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties must use reasonable good faith efforts to close the escrow for the transfer of the Property. Insurance policies for fire or casualty are not to be transferred, and City will cancel its own policies, if any, as of the Closing. All funds received in the escrow will be deposited in interest-bearing accounts for the benefit of the depositing party in any state or national bank doing business in the State of California.
All disbursements must be made by check or wire transfer from such accounts. If, in the opinion of any party, it is necessary or convenient in order to accomplish the Closing, such party may provide supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement will control. The Closing will take place as set forth in Section 2.6. Escrow Agent is instructed to release City’s and Developer‘s escrow closing statements to the respective parties.
2.5.3 Authority of Escrow Agent. Escrow Agent is authorized to, and must:
(a) Pay and charge Developer for the premium of the
Developer Title Policy, including any endorsements requested by Developer. (b) Pay and charge Developer for any escrow fees, charges, and costs.
(c) Record the Grant Deed when both the Developer
Conditions Precedent and City Conditions Precedent have been fulfilled or waived in writing by Developer and City, as applicable. Concurrently with the recording of the Grant Deed, Escrow Agent must record all other recordable documents delivered into escrow for the Closing.
(d) Do such other actions as necessary, including obtaining and issuing the Developer Title Policy to fulfill its obligations under this Agreement. (e) Direct City and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA), if applicable, and any similar state act and regulations promulgated thereunder. (f) Prepare and file with all appropriate governmental or taxing authorities uniform settlement statements, closing statements, tax withholding forms including IRS 1099-S forms, and be responsible for withholding taxes, if any such forms are provided for or required by law.
2.6 Closing. The escrow for transfer of the Property will close (“Closing”) no later than 180 days after the expiration of the Due Diligence Period or 195 days after satisfaction of all conditions precedent to the close of escrow, whichever is later (“Closing Date”). The City Manager has authority, in his or her reasonable discretion, to extend the Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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Closing Date by another six (6) months if Developer has shown progress in meeting the conditions for closing, including the LOMR as set forth in Section 5.8. In addition, the Closing Date may be extended by mutual written agreement of the Parties each in its sole discretion. If Closing does not occur on or before the Closing Date, then this Agreement will automatically terminate if the City provides written notice to escrow of the termination and the Deposit will be retained by City as liquidated damages in accordance with Section
2.2.3, except if the failure to Close is due to the Default by City under this Agreement in which case the Deposit will be returned to Developer. For purposes of this Agreement, the “Closing” means the time and day the Grant Deed is recorded with the Ventura County Recorder.
2.7 Delivery of Documents and Closing Funds.
2.7.1 At or before the Closing, Developer must deposit into Escrow the following items with respect to the Property:
(a) funds in an amount necessary to Developer share of
escrow costs in the event the $25,000 Deposit is not sufficient to pay those closing costs. (b) all instruments reasonably required by the Title Company or otherwise required to close the Escrow and consummate the transfer of the Property in accordance with the terms hereof.
2.7.2 At or before the Closing, City must deposit into Escrow the following items with respect to Property:
(a) one original executed and acknowledged Grant Deed for the Property.
(b) a certified copy of the resolution authorizing and approving the conveyance of the Property to the Developer in accordance with this Agreement duly adopted by the City Council;
(c) one duly executed non-foreign certification in accordance with the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended;
(d) one duly executed California Form 593-W Certificate or comparable non-foreign person affidavit;
(e) all other instruments reasonably required by the Title Company or otherwise required to close the Escrow and consummate the transfer of the Property in accordance with the terms hereof.
2.8 Property Taxes and Assessments. Ad valorem taxes and assessments levied, assessed or imposed on the Property for any period prior to the Closing, if any, must be paid by City unless the City is exempt from paying such taxes and assessments. Ad valorem taxes and assessments levied, assessed or imposed on Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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the Property, the Project or any other improvements thereon, if any, for the period after the Closing will be paid by Developer.
2.9 Approval of Developer Condition of Title.
2.9.1 Within seven days after the Date of Agreement, if it has not already done so, Developer must cause the Title Company to deliver to Developer and to City a standard preliminary title report for the Property, together with legible copies of the documents underlying the exceptions set forth in the preliminary title report.
Developer will have the right to reasonably approve or disapprove all exceptions.
2.9.2 Within 14 days after the receipt of the preliminary title report, Developer must give Notice to City of Developer’s approval or disapproval of any of the title exceptions. Developer’s failure to give written disapproval of the exceptions within such time period will be deemed Developer’s disapproval of the exceptions.
2.9.3 If Developer delivers to City Notice of disapproval of any exceptions, City will have the right, but not the obligation, to cause any disapproved exceptions to be removed within 14 days after receiving such Notice of disapproval, or provide assurances satisfactory to Developer, in its sole discretion, that such exceptions will be removed on or before the Closing. Failure to notify Developer within such 14-day period will be deemed City’s election not to remove the disapproved exceptions. City’s election or deemed election not to remove any disapproved exceptions will not be a Default under this Agreement.
2.9.4 If City cannot or does not elect to remove any of the disapproved exceptions within such 14-day period, Developer must within 14 days thereafter either give City Notice that Developer elects, in its sole discretion, to proceed with the Closing, subject to the disapproved exceptions, or to give City Notice that Developer elects to terminate this Agreement, in which case, notwithstanding any other provision of this Agreement to the contrary, the Deposit and any interest earned thereon will be returned to Developer and neither party will have any further rights or obligations under this Agreement other than those obligations which survive termination of this Agreement.
2.9.5 The exceptions to title approved by Developer as provided in this Section 2.9 are referred to as the “Developer Condition of Title.” Subject to the City’s covenant in Section 3.19 to neither cause nor voluntarily permit, any new lien, encumbrance or any other matter that changes the condition of title to the Property, if any exceptions are reported by the Title Company after Developer has approved the Developer Condition of Title for the Property pursuant to the foregoing procedures, then any such new exception will be subject to the same procedures for review and approval set forth above for exceptions constituting the Developer Condition of Title.
2.10 Title Insurance.
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for the Property which at Developer’s option may be an ALTA extended coverage owner’s policy (“Developer Title Policy”) as may be required by Developer, or Developer’s lenders, investors or other institutions that may be providing financing for the Project, if any, together with such endorsements as are reasonably requested by Developer or Developer’s lenders or other institutions, insuring that Developer have has a valid fee ownership interest in the Property, and other encumbrances expressly contemplated by this Agreement to be recorded at Closing. The Developer Title Policy for the Property will be in an amount as instructed by Developer and will include at least $3,600,000 with regard to the acquisition of the Property. The premium for the Developer Title Policy, plus any additional costs, including the cost of surveys, and any endorsements requested by Developer must be paid by Developer.
2.10.2 City Title Insurance. City, at Developer’s sole cost and expense, may obtain a CLTA or ALTA Lender’s Policy of Title Insurance in the full amount of the Note, to protect City against the unenforceability or invalidity of the Note and Deed of Trust (“City Title Policy”).
2.10.3 Subordination. City agrees to subordinate all of its loan document(s) to any commercial institution loans and any State of California affordable housing program loans (if required by their governing regulations) through a subordination agreement reasonable acceptable to the City Manager.
2.11 Developer Due Diligence Period. Developer’s obligation to acquire the Property will be expressly conditioned on its approval of the condition of the Property, including the physical and environmental condition of the Property and a market study for viability of intended use. Developer will have a period of 45 days after the Date of the Agreement to conduct such investigations as Developer may choose to determine whether this due diligence contingency is met (“Due Diligence Period”). Developer will have the right to terminate the Agreement prior to the expiration of the Due Diligence Period in accordance with Section 2.13.
2.12 Access to Property; Indemnity; Insurance. City agrees to cooperate to enable representatives of Developer to obtain the right of access to all portions of the Property for the purpose of obtaining data and making surveys and tests which Developer determines are reasonably necessary or desirable, including the investigation of the soils and environmental condition of the Property for the presence or absence of Hazardous Materials. Developer agrees to provide written Notice to City at least 48 hours prior to undertaking any studies or work upon the Property. Developer agrees to protect, defend, indemnify and hold harmless the City and City’s respective officers, officials, members, employees, agents, and representatives (any of the foregoing will be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever related to Developer’s exercise of its rights hereunder, including attorneys' fees and expert witness fees, but excluding those resulting from City's or any City Party's gross negligence or willful misconduct and from environmental contamination of the Property or other defects on the Property existing prior to Developer’s entry thereon or Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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not otherwise caused by Developer or any of its consultants, but including, without limitation, injury to or death of any person or persons and damage to or destruction of any party, threatened, brought or instituted ("Claims"), arising out of or in any manner directly or indirectly connected with the entry upon the Property by Developer. Developer must also procure and maintain until the Closing Date or termination of this Agreement commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000). City and City’s respective officers, officials, members, employees, agents, and representatives must be named additional insured on such policies Developer must furnish or cause to be furnished to the City Manager, prior to the entry on the Property pursuant to this Agreement, evidence reasonably satisfactory to the City Manager of the insurance Developer is required to procure and maintain by this Agreement.
2.13 Approval of Condition of Property. As soon as practicable following Developer’s completion of its studies and investigations, but in any event no later than the expiration of the Due Diligence Period, Developer must notify City in writing of whether Developer approves or disapproves the market study and all physical aspects of the Property, including the soils and environmental condition of the Property. Developer failure to give written Notice of its approval or disapproval of the condition of the Property prior to the expiration of the Due Diligence Period will be deemed Developer’s disapproval of the physical aspects of the Property. In the event Developer disapproves, or is deemed to have disapproved, the physical aspects of the Property prior to the expiration of the Due Diligence Period, then this Agreement will terminate, in which case the Deposit and any interest earned thereon will be returned to Developer and neither party will have any further rights or obligations under this Agreement other than those obligations which survive termination hereof.
2.14 City Documents. To the extent it has not done so prior to the Date of Agreement, City must furnish Developer with copies of any and all existing surveys, inspection reports, environmental and/or Hazardous Material reports, and any other data pertaining to the physical condition of the Property which are in City’s possession (the “Reports”) within ten days after the Date of Agreement. City must also furnish Developer with copies of any and all unrecorded leases, service contracts, easements, licenses and other unrecorded agreements affecting the Property (“Unrecorded Agreements”) within ten days after the Date of Agreement. City must notify Developer in writing of any material changes to any Reports and Unrecorded Agreements of which City becomes aware before Closing. City must terminate any and all Unrecorded Agreements prior to Closing. As used in this Section 2.14, “current, actual knowledge” means the current actual knowledge of the individuals holding the position of City Manager and Community Development Director as of the Date of Agreement.
2.15 As-Is Transfer, Investigation, Waivers and Release.
2.15.1 AS-IS CONDITION. DEVELOPER SPECIFICALLY AGREE
THAT CITY IS DONATING AND DEVELOPER IS ACQUIRING THE PROPERTY ON AN “AS-IS WITH ALL FAULTS” BASIS, CONDITION AND STATE OF REPAIR INCLUSIVE
OF ANY AND ALL FAULTS AND DEFECTS, LEGAL, PHYSICAL, OR ECONOMIC, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE CLOSING (“AS-IS Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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CONDITION”) AND THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, DEVELOPER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES FROM CITY OR ANY OF CITY’S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES OR ATTORNEYS (EACH, A “CITY PARTY” AND COLLECTIVELY, “CITY PARTIES”) AS TO ANY MATTERS CONCERNING THE PROPERTY.
2.15.2 Independent Investigation. Developer acknowledge, agree, represent, and warrant that, during the Due Diligence Period and prior to Closing, Developer will have been given a full opportunity to obtain, review, inspect and investigate each and every aspect of the Property, either independently or through agents of Developer choosing, including the following:
(a) The size and dimensions of the Property.
(b) The availability and adequacy of water, sewage, fire protection, and any utilities serving the Property.
(c) All matters relating to title including extent and conditions of title to the Property, taxes, assessments, and liens. (d) All legal and governmental laws, statutes, rules,
regulations, ordinances, limitations on title, restrictions or requirements concerning the Property including zoning, use permit requirements and building codes. (e) Natural hazards, including flood plain issues, currently or potentially concerning or affecting the Property.
(f) The physical, legal, economic and environmental condition and aspects of the Property, and all other matters concerning the conditions, use or transfer of the Property, including any permits, licenses, agreements, and liens, zoning reports, engineers’ reports and studies and similar information relating to the Property.
Such examination of the condition of the Property has included examinations for the presence or absence of Hazardous Materials as Developer deemed necessary or desirable.
(g) Any easements and/or access rights affecting the Property. (h) Any contracts and other documents or agreements
affecting the Property.
(i) All other matters of material significance affecting the Property.
2.15.3 Disclaimers. Developer acknowledges and agrees that:
(i) except as expressly set forth in this Agreement, neither City, nor any City Party, has made any representations, warranties, or promises to Developer, or to anyone acting for or on behalf of Developer, concerning the condition of the Property or any other aspect Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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of the Property; (ii) the condition of the Property has been independently evaluated by Developer prior to the Closing; and (iii) any information including any engineering reports, architectural reports, feasibility reports, marketing reports, title reports, soils reports, environmental reports, analyses or data or other similar reports, analyses, data or information of whatever type or kind, if any, which Developer has received or may hereafter receive from City or any City Party were and are furnished without warranty of any kind and on the express condition that Developer has made its own independent verification of the accuracy, reliability and completeness of such information and that Developer will not rely on any of the foregoing.
2.15.4 Waiver and Release. Developer hereby waives and releases City and City Parties from any and all manner of rights, liabilities, claims, actions, causes of action, suits, proceedings, demands, damages, costs, expenses (including reasonable attorneys’ fees and costs) or other compensation whatsoever, in law or equity, of whatever kind or nature, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, now existing or which may in the future arise, including lost business opportunities or economic advantage, lost tax monies, and special and consequential damages, arising out of, directly or indirectly, or in any way connected with: (i) all warranties of whatever type or kind with respect to the physical or environmental condition of the Property, whether express, implied or otherwise, including those of fitness for a particular purpose, tenantability, habitability or use; (ii) use, management, ownership or operation of the Property, whether before or after Closing; (iii) the physical, environmental or other condition of the Property; (iv) the application of, compliance with or failure to comply with any and all Applicable Laws with respect to the Property; (v) Hazardous Materials in, on, or under the Property; and (vi) the As-Is Condition of the Property; the foregoing are collectively referred to as “Property Claims.” By releasing and forever discharging the Property Claims, Developer expressly waives any rights under California Civil Code section 1542, which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.”
INITIALS: DEVELOPER _______
Notwithstanding the foregoing, the release and waiver of Property Claims set forth in this Section 2.15.4 will not apply to any Property Claims arising from the sole active negligence or willful misconduct of City or from breaches by City of this Agreement (including but not limited to breaches of representations and warranties of City expressly set forth herein).
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3.DEVELOPMENT OF THE PROJECT.
3.1 Development of Project. The Project consists of the development of the Property as described in Recitals H to M.
3.2 Cost of Development. All costs of planning, designing, constructing and developing the Project, including the cost of securing all necessary permits, approvals and entitlements will be borne solely by Developer.
3.3 Permits and Approvals. Developer will be responsible for submitting and must obtain all permits, Entitlements and approvals for the Project. The execution of this Agreement does not constitute the granting of, or a commitment to grant or obtain, any land use permits, entitlements or approvals required by City, or any other government agency.
3.4 Construction Contract. Prior to commencement of the Project, Developer must have entered into a construction contract (“Construction Contract”) for the development of the Project with a licensed general contractor, consistent with Developer approved Financing Plan.
3.5 Payment of City Fees and Charges.
3.5.1 City Impact Fees will be due at the time when a unit is ready for issuance of a Certificate of Occupancy. The amount of fees to be paid will be those in effect at the actual time of payment of such fees.
3.5.2 For all other City fees and charges other than City Impact Fees, Developer will pay all standard City permit processing, development fees, and utility connection fees as required, including all time and materials costs incurred by City related to permit processing, design, and construction of the Project. Developer will be responsible for determining and verifying to their satisfaction all applicable City fees and charges pertaining to the Project, as well as those of other agencies having jurisdiction over the Project.
3.6 Defects in Plans. City will not be responsible either to Developer or to any third parties in any way for any defects in the construction plans and drawings for the applicable Improvements (“Construction Drawings”), or for any structural or other defects in any work done according to the approved Construction Drawings. Developer must hold harmless, indemnify, protect and defend City, and their officers, employees, volunteers, agents. contractors, consultants and representatives from and against any Claims arising out of or in any way relating to defects in the Construction Drawings, including the violation of any Governmental Requirements, or for defects in any work done according to the Construction Drawings.
3.7 Schedule of Performance. Developer must adhere to the benchmarks and timetable for the Project as set forth in the Schedule of Performance attached as Exhibit E.
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3.8 Insurance Requirements.
3.8.1 Until the completion of construction of the Project, as evidenced by the issuance of a Certificate of Completion, Developer must take out and maintain, or must cause its contractor to take out and maintain, for the Project a commercial general liability policy with a minimum limit of Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage, or such other higher policy limits as may be required by Developer’s lenders or other institutions providing financing for the Project. Coverage must be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001). If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate limit must apply separately to the Project or the general aggregate limit must be twice the required occurrence limit. Developer and each of its contractors must also take out and maintain a comprehensive automobile liability policy in an amount not less than One Million Dollars ($1,000,000).
3.8.2 Until such time as Developer has completed the Project, Developer must also obtain and maintain builder’s all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis, or such other greater policy limits as may be required by Developer’s lenders or other institutions providing financing for the Project, and must furnish or cause to be furnished to City evidence satisfactory to City that Developer and any contractor with whom it has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers’ compensation insurance as required by law.
3.8.3 Companies writing the insurance required hereunder must 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:VII or otherwise acceptable to City.
The commercial general liability and comprehensive automobile policies hereunder must name City and their respective officers, officials, agents, employees, volunteers and representatives as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Developer on the Property, including materials, parts or equipment furnished in connection with such work or operations.
3.8.4 Developer must furnish City with a certificate of insurance evidencing the required insurance coverage and a duly executed endorsement evidencing such additional insured status. The certificate must contain a statement of obligation on the part of the carrier to notify City by certified mail, return receipt requested, of any material change, cancellation or termination of the coverage at least 30 days in advance of the effective date of any such material change, cancellation or termination.
Coverage provided hereunder by Developer must be primary insurance and may not be contributing with any insurance, self-insurance or joint self-insurance maintained by City, and the policy must so provide. Any insurance or self-insurance maintained by City will be excess of and will not contribute with the insurance required to be maintained by Developer. The insurance policies must contain a waiver of subrogation for the benefit of City. The required certificate and endorsement for the Project must be furnished by the Developer to City prior the commencement of construction of the Project.
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3.8.5 Any deductibles or self-insured retentions must be declared to and approved by City, which may require Developer to provide proof of its ability to pay losses and costs of related investigation, claim administration, and defense expenses within the retention.
3.9 Rights of Access. Prior to issuance of a Certificate of Completion for the Project, City representatives will have the right of access to the Project, without charges or fees, at reasonable times and after prior arrangement with Developer so long as such representatives comply with all safety rules of Developer and its contractors and insurers and do not unreasonably interfere with the progress of construction of the Project. Nothing herein will be deemed to limit the ability of City to conduct code enforcement and other administrative inspections of the Property or Project in accordance with applicable law.
3.10 Compliance with Laws; Indemnity and Waiver. Developer must carry out the Project work in conformity with all applicable Governmental Requirements, including all applicable state labor laws and standards; the City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City of Camarillo Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. Developer must defend, indemnify and hold harmless City, and its officers, employees, volunteers, agents and representatives from and against any and all present and future Claims, arising out of or in any way connected with Developer’s failure to comply with all Governmental Requirements with respect to the Project components that are developed by Developer, including all applicable state labor laws and standards, except to the extent caused by the sole active negligence or willful misconduct of City or its officers, employees, volunteers, agents and representatives. Developer hereby waives, releases and discharges forever City and its 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 failure to comply with such Governmental Requirements, except to the extent caused by the sole active negligence or willful misconduct of City or its officers, employees, volunteers, agents or representatives.
3.11 Green Building Certification. Developer must design and construct each aspect of the Project in conformance with the California Green Building Code by using efficient and “Sustainable Design Elements,” including, but not limited to, requirements for green building criteria required by the California Tax Credit Allocation Committee.
3.12 Certificate of Completion. Following satisfactory completion of all Project Components, including the issuance of all certificates of occupancy for the Project, City will furnish Developer with the Certificate of Completion substantially in the form of the attached Exhibit I. City may not unreasonably withhold, condition or delay such Certificate of Completion. The Certificate of Completion will be the conclusive determination of satisfactory completion of the Project Components required by this Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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Agreement. The Certificate of Completion will not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the Project or any part thereof.
The Certificate of Completion will not be deemed a notice of completion as referred to in California Civil Code section 9208.
3.13 Liens and Stop Notices. Developer may not allow to be placed on the Property or any part thereof any lien or stop notice arising from any work or materials performed or provided or alleged to have been performed or provided by Developer ’s contractors, subcontractors, agents or representatives. If a claim of a lien or stop notice is given or recorded affecting the Property, Developer must within 30 days of such recording or service: (i) pay and discharge the same; or (ii) effect the release thereof by recording a surety bond in sufficient form and amount.
3.14 Right of City to Satisfy Other Liens After Closing. After Closing, City will have the right, but not the obligation, to satisfy any such liens or stop notices without further notice to Developer. In such event Developer will be liable for and City will be entitled to reimbursement by Developer for such paid lien or satisfied stop notice.
3.15 Holder Not Obligated to Construct Improvements. The holder of any mortgage or deed of trust authorized by this Agreement will not be obligated by the provisions of this Agreement to construct or complete the Project, or any portion thereof, or to guarantee such construction or completion. Nothing in this Agreement will be deemed to or be construed to permit or authorize any such holder to devote the Property to any uses or to construct any improvements thereon or therein other than those uses and improvements provided for or authorized by this Agreement.
3.16 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, then so long as any such mortgage or deed of trust remains unsatisfied of record, the following provisions will apply:
3.16.1 City, upon serving Developer any Notice of failure to perform or other alleged breach pursuant to Section 6.1 below or any other Notice with respect to this Agreement, will also serve a copy of such Notice upon any holder at the address provided to City, and no Notice by City to Developer hereunder will affect any rights of a holder unless and until a copy thereof has been delivered to such holder in accordance with Section 3.16.3 and Section 7.1; provided, however, that failure so to deliver any such Notice will in no way affect the validity of the Notice sent to Developer as between Developer and City.
3.16.2 In the event of a failure to perform or other breach of any covenant or requirement under this Agreement by Developer, any holder will have the right to remedy, or cause to be remedied, such failure or breach within 60 days following the later to occur of (i) the date of holder’s receipt of the Notice referred to in Section
3.16.1 above, or (ii) the expiration of the period provided herein for Developer to remedy or cure such failure or breach, and City will accept such performance by or at the Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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insistence of the holder as if the same had been timely made by Developer; provided, however, that (a) if such failure or breach is not capable of being cured within the timeframes set forth in this Section 3.16.2 and holder commences to cure the failure or breach within such timeframes, then holder will have such additional time as is required to cure the failure or breach so long as holder diligently prosecutes the cure to completion and (b) if possession of the Property (or portion thereof) is required to effectuate such cure or remedy, the holder will be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within 60 days after receipt of the copy of the Notice, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy.
3.16.3 Any Notice or other communication which City may desire or is required to give to or serve upon the holder must be in writing and must be served in the manner set forth in Section 7.1, addressed to the holder at the address provided by holder to City. Any notice or other communication which holder gives to or serves upon City will be deemed to have been duly given or served if sent in the manner and at City’s address as set forth in Section 7.1, or at such other address as may be designated by City by notice in writing given to the holder in like manner.
3.17 Right of City to Cure Mortgage or Deed of Trust Default. If a mortgage or deed of trust default or breach by Developer prior to the completion of the construction of the Project occurs, City may cure the default following ten business days’ prior Notice thereof to Developer. In such event, Developer will be liable for, and City will be entitled to reimbursement from Developer of, all costs and expenses incurred by City associated with and attributable to the curing of the mortgage or deed of trust default or breach.
3.18 Project Name. Developer recognizes the importance of choosing a name for the Project that reflects the City’s and the Developer’ vision for the Project. The Developer has requested that the name for the rental portion of the Project be "Vista Campanario Apartments" and that the name for the For Sale Units be "Vista Campanario Homes" and the City agrees that the Project will have that name.
3.19 City Covenants. From the Date of Agreement until the Closing or earlier termination of this Agreement, City will maintain the Property in a manner generally consistent with the manner in which City has maintained the Property prior to the Date of Agreement. Notwithstanding the foregoing, from and after the Date of Agreement, City may not: (a) cause nor voluntarily permit, any new lien, encumbrance or any other matter to cause the condition of title to be changed, without Developer’s prior written consent; (b) enter into any agreements with any governmental agency, utility company or any person or entity regarding the Property, which would remain in effect after the Closing, without obtaining Developer’s prior written consent; or (c) amend any existing licenses, agreements or leases, or enter into any new licenses, agreements or leases, that would give any person or entity any right of possession to any portion of the Property, or which would remain in effect after the Closing. If Developer’s consent is required by the terms of this Section 3.19 such consent may not be unreasonably withheld, delayed, or conditioned.
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3.20 Signage. Signage must comply with the standards provided under State planning law and the City’s ordinance.
3.21 Water.
3.21.1 The Developer must comply with the Water Conservation Measures per City of Camarillo Municipal Code Chapter 14.12.
3.21.2 Before the City issues the grading permit, and before the City issues a water will serve letter, the Developer must satisfy the Project’s Water Demand Offset Requirement per City of Camarillo Resolution 2016-90. The City will provide assistance relating to these requirements between the rental portion of the Project and the For Sale Units in writing to the Developer. The Developer must submit to the Department of Public Works a Water Supply Study (WSS) that identifies the amount of water required for the uses approved and entitled by the City, and the sources that will provide 100% of the identified water demand. The WSS must include a description of the entitled project and the estimated water demand for the entitled uses.
3.21.3 Before the City issues any building permits, the Developer must submit to the Department of Public Works a WSS update to demonstrate that the approved water conservation measures (WCMs), which satisfy the Water Demand Offset Requirement, are implemented. Before the City issues any Certificate of Occupancy, the Developer must demonstrate that the approved WCMs, which satisfy the Water Demand Offset Requirement, are 100% operational and provide the specified water reductions.
The Water Demand Offset Requirement must be met and confirmed by the Department of Public Works and Department of Community Development.
4.PREPARATION OF AGREEMENTS.
4.1 City to Take Lead in Preparation of Legal Agreements. In addition to this Agreement, the City Attorney will take the lead role in drafting all legal documents necessary for the transfer of the Property. Developer will be allowed to review and comment on drafts of such agreements and documents.
5.REQUIREMENTS, RESTRICTIONS AND AGREEMENTS.
5.1 Ownership and Maintenance of Common Areas. Developer acknowledge that the Project will be privately owned by the Developer (except for areas provided for use by a parking and/or access agreement) or other appropriate entity, and Developer will be responsible for the maintenance of all areas in accordance with the provisions of the Residential Planned Development Permit, Tentative Tract Map, and Conditional Use Permit, this Agreement or any other City-issued entitlement. Developer, or their successor(s), will be responsible for the maintenance of all common areas in the Project.
5.2 Taxes and Assessments After Closing. After the Closing, Developer and its successors must pay prior to delinquency all ad valorem real estate taxes and assessments on the Property or the Project or any portion thereof, subject to Developer’s Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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right to contest in good faith any such taxes. Developer must remove or have removed any such levy or attachment, or assure the satisfaction thereof within 30 days following the date of attachment or levy.
5.3 Use Restriction. The Agreement will include provisions in regard to a use restriction in the affordable housing agreement which will limit the use of the Property as an affordable housing project of the size and type as described in this Agreement unless otherwise negotiated by the Parties.
5.4 Prevailing Wages. Developer will require all contractors for the Project to comply with all other requirements of the California Labor Code including, when applicable, the payment of prevailing wages. Developer agree to defend and indemnify the City, to the fullest extent allowed by law, for any violations of the California Labor Code by the contractors on the Project. Within 60 days of the Date of Agreement, the Developer will provide the City with an opinion letter from an attorney experienced in prevailing wage issues regarding any portion of the Project for which prevailing wages will not be paid which should be sent by email to: Greg Ramirez, City Manager, City of Camarillo, 601 Carmen Drive, Camarillo, California 93010 at [email protected] and a copy to Brian A. Pierik, City Attorney at [email protected]
5.5 Outdoor Art Features. The Project must include two outdoor art features, one at the corner of Lewis Road and Barry Street and one on the parking structure stairwell, subject to review and approval by the City Council prior to fabrication and installation of the artwork. Public art features are to be maintained by the property owner.
5.6 Undergrounding of Existing Overhead Utilities. The Developer must remove existing utility poles and underground all existing overhead utilities, as required by the City of Camarillo Municipal Code Chapter 13.08. Developer may request to the City Council to approve the Planning Commission’s recommendation on December 1, 2020 to waive the undergrounding of the existing poles and overhead utilities adjacent to the westerly property line and to waive the underground utility in-lieu fee.
5.7 Developer Obtain Permits. Developer must obtain all necessary permits including, without limitation from the City of Camarillo, Southern California Edison Company, Southern California Gas Company, Frontier Communications (telephone), Spectrum, Ventura County Watershed Protection District and Caltrans.
5.8 Flood Damage Protection. Developer must comply with all requirements of CMC Chapter 16.34 relating to flood damage protection. The Developer must process for review by FEMA a Conditional Letter of Map Revision (CLOMR) and the developer must process for review and approval by FEMA a Letter of Map Revision (LOMR).
5.9 Affordability Covenant for Rental Units. Prior to the issuance of a building permit for the first apartment unit, the Developer must enter into an affordable Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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housing agreement with the City of Camarillo. The term of the affordability covenant for the rental units will be 55 years from the date of issuance of a final Certificate of Occupancy.
5.10 Affordability Covenant for For-Sale Units. Prior to issuance of a building permit for the first for-sale residential unit, the For Sale Developer must enter into an affordable housing agreement with the City of Camarillo. The term of the affordability covenant for the for-sale units will be 55 years from the date of issuance of a final Certificate of Occupancy, which resets with each property transfer.
5.11 Homeowner’s Association for For-Sale Units. For Sale Developer must form a Homeowner’s Association for the For Sale Units and submit CC&Rs for review and approval by the City Attorney, Director of Community Development, and Director of Public Works prior to occupancy.
5.12 Reciprocal Easement Agreement. Developer and For Sale Developer/Homeowner's Association shall enter into a reciprocal easement agreement regarding the For-Sale Units' shared use of and maintenance obligations regarding sewer, water, storm drain utilities; shared access and parking; and common space areas, including tot-lot, village green and BBQ area, subject to the review and approval by the City Attorney and Director of Community Development prior to occupancy.
6.DEFAULTS AND REMEDIES.
6.1 Default Remedies. Failure by either party to perform any action or covenant required by this Agreement within 30 days following receipt of written Notice from the other party specifying the failure will constitute a “Default” under this Agreement; provided, however, that if the failure to perform cannot be reasonably cured within such 30-day period, a party will be allowed additional time as is reasonably necessary to cure the failure so long as such party commences to cure the failure within the 30-day period and therefore diligently prosecutes the cure to completion.
6.2 Institution of Legal Actions. Except as otherwise specifically provided herein, upon the occurrence of a Default by Developer or City, either party has 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 seek to recover liquidated damages as provided in Sections 2.2.3 and 2.2.4. Such legal actions must be instituted in the Superior Court of the County of Ventura. Notwithstanding anything herein to the contrary, Developer remedies in the event of a Default by City are limited to terminating this Agreement and having the Deposit returned to Developer and recovery of liquidated damages pursuant to Section 2.2.4. Developer expressly waives any right to recover damages of any kind from the City for any breach of this Agreement by the City. Further, neither party has the right to recover any punitive, consequential, or special damages.
6.3 Termination. This Agreement may be terminated: (1) if there is an uncured Default, after Notice from the party not in default and expiration of all cure periods, or (2) if there is a failure of an express Developer Condition Precedent or City Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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Condition Precedent (which is not waived by the party whom the condition benefits) by timely Notice from the party whom the condition benefits.
6.4 Investor Limited Partner Cure Rights. The City shall accept a cure made by the Developer's investor limited partner, or any other partner of the Developer, of a Default by Developer under this Agreement in accordance with such document(s) as if such cure was made directly by the Developer. In addition, as a condition to the tender of a cure by the Developer's investor limited partner or any other partner of the Developer, the City agrees that the dates in the Schedule of Performance shall be extended as reasonably necessary to permit the party tendering such cure to complete the applicable tasks in the Schedule of Performance. Additionally, if a cure by the Developer's investor limited partner requires removal of the general partner, the City will not exercise its right to terminate this Agreement for so long as the Developer's investor limited partner is proceeding diligently to remove the defaulting general partner in order to effect such cure.
6.5 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 will 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.
6.6 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 will 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.
7.GENERAL PROVISIONS.
7.1 Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice (“Notice”) which either party may desire to give to the other party under this Agreement must be in writing and must be given by personal delivery, or overnight courier or email, to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice.
To City: City of Camarillo
Attn: Greg Ramirez, City Manager
601 Carmen Drive
Camarillo, California 93010
Telephone: 805.388.5307
Email: [email protected]
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With a copy to: Burke, Williams & Sorensen, LLP
Attention: Brian A. Pierik, City Attorney
2310 E. Ponderosa Drive, Suite 25
Camarillo, California 93010
Telephone: 805.987.3468
Email: [email protected]
To Developer: Area Housing Authority of Ventura County
Michael Nigh, Executive Director
[email protected]
1400 W. Hillcrest Drive
Newbury Park, CA 91320
Many Mansions
Rick Schroeder, President
[email protected]
1259 E. Thousand Oaks Blvd.
Thousand Oaks, CA 91362
With a copy to: Goldfarb & Lipman LLP
Attention: Lynn Hutchins
1300 Clay Street, 11th Floor
Oakland, California 94612
Email: [email protected]
Any Notice will be deemed received on the date of delivery if delivered by personal service, and on the date of delivery or refused delivery as shown by the records of the overnight courier or if delivered by email on the first business day after the email has been sent. Notices sent by a party’s attorney on behalf of such party will be deemed delivered by such party.
7.2 Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, performance by either party hereunder will not be deemed to be in Default, and all performance and other dates specified in this Agreement will be extended, where delays are due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics and pandemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation and arbitration, including court delays; legal challenges to this Agreement, or any approval required for the Project or initiatives or referenda regarding the same; unusually severe weather; acts or omissions of the other party; or acts or failures to act of any public or governmental agency or entity (other than the acts or failures to act of City which will not excuse performance by City) (each a “Force Majeure Delay”). An extension of time for any such cause will be for the period of the enforced delay and will commence to run from the time of the commencement of the cause, if Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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Notice by the party claiming such extension is sent to the other party within 60 days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City 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 the Project will not constitute grounds of enforced delay pursuant to this Section 7.2.
Developer expressly assume the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Date of Agreement.
7.3 Successors and Assigns. Subject to the restrictions on Developer transfers set forth in Section 1.3 above, all of the terms, covenants and conditions of this Agreement are binding upon Developer and City and their respective permitted successors and assigns. Whenever the term “Developer” is used in this Agreement, such term includes any permitted successors and assigns as herein provided.
7.4 Relationship between City and Developer. It is hereby acknowledged that the relationship between City and Developer is not that of a partnership or joint venture and that City and Developer will not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the exhibits hereto, City will have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. Developer must indemnify, protect, hold harmless and defend City from any Claims made against City arising from a claimed relationship of partnership or joint venture between City and Developer with respect to the development, operation, maintenance or management of the Project.
7.5 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, in his or her sole discretion, unless specifically provided otherwise.
7.6 Exhibits. The attached Exhibits A to I are incorporated by this reference as part of the Agreement.
7.7 Counterparts. This Agreement may be signed in multiple counterparts each of which will be deemed to be an original.
7.8 Integration. This Agreement, including the attached exhibits, contains the entire understanding between the parties relating to the transactions contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and will 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.
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7.9 Brokerage Commissions. City and Developer each represents to the other that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker’s fees, or finder’s fees which may accrue by means of the acquisition of the Property as described in this Agreement, or the negotiation and execution of this Agreement. Each party must indemnify, defend, protect and hold the other party harmless from any and all claims based upon any assertion that such commissions or fees are allegedly due from the party making such representations.
7.10 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. References to section numbers are to sections in this Agreement, unless expressly stated otherwise. References to specific section numbers include all subsections which follow the referenced section.
7.11 Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number are each be deemed to include the others where and when the context so dictates. The words “include” and “including” will be construed as if followed by the words “without limitation.” The parties acknowledge that each party and his, her or its counsel have reviewed and revised this Agreement and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or any document executed and delivered by either party in connection with this Agreement.
7.12 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, must be made in writing and in each instance signed on behalf of each party.
7.13 Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances is 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, will not be affected, and will be valid and enforceable to the fullest extent permitted by law.
7.14 Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day, 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” means 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 will be Pacific Time Zone time.
7.15 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 Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
7.16 Time of Essence. Time is expressly made of the essence with respect to the performance by City and Developer of each and every obligation and condition of this Agreement.
7.17 Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, must execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement.
7.18 Conflicts of Interest. No City Council member, official or employee of City may have any personal interest, direct or indirect, in this Agreement, nor may 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.
7.19 Time for Acceptance of Agreement by City. This Agreement, when executed by Developer and delivered to City, must be authorized, executed and delivered by City on or before 45 days after signing and delivery of this Agreement by Developer or this Agreement will be void, except to the extent that Developer consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement.
7.20 Developer’s Indemnity. Developer must indemnify, defend (with counsel reasonably acceptable to City), protect and hold City, and its officers, employees, agents and representatives, harmless from, all Claims relating to the development of the Project Components that are the responsibility of Developer or by anyone directly or indirectly employed or contracted with by Developer and whether such Claims will accrue or be discovered before or after termination of this Agreement. Developer indemnity obligations under this Section 7.20 do not extend to Claims caused primarily or solely by the active negligence or willful misconduct of City or its officers, employees, agents or representatives. Insurance limits will not operate to limit Developer indemnity obligations under this Section 7.20.
7.21 Cooperation in the Event of Legal Challenge.
7.21.1 Cooperation of Parties. City and Developer must cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement (“Litigation Challenge”), and the Parties must keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. To the extent Developer elects, in its sole discretion, to contest or defend such Litigation Challenge, (i) Developer must take the lead role defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice; (ii) City may, in its sole discretion, elect Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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to be separately represented by the legal counsel of its choice in any such action or proceeding with the reasonable costs of such representation to be paid by Developer; (iii) Developer must reimburse City, within thirty business days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable costs incurred by City in connection with the Litigation Challenge, including City’s administrative, legal, and court costs and City Attorney oversight expenses; and (iv) Developer must indemnify, defend, and hold harmless City Parties from and against any damages, attorneys’ fees or cost awards, including attorneys’ fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge will be subject to City’s and Developer's approval, each in its reasonable discretion. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement, the settlement will not become effective unless such amendment or modification is approved by Developer, and by City in accordance with Applicable Laws, and City reserves its full legislative discretion with respect thereto.
7.21.2 City Election to Contest or Defend. In addition, City has the right, but not the obligation, to contest or defend such Litigation Challenge, at its sole expense, in the event that Developer elect not to do so.
7.22 Non-liability of City. No officer, official, employee or agent of City will be personally liable to Developer, or any successor in interest, in the event of any Default or breach by City or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Agreement. Developer hereby waives and releases any claim it may have against the officers, officials, employees and agents of City with respect to any Default or breach by City or for any amount which may become due to Developer or its successors under the terms of this Agreement.
7.23 Non-liability of Developer. No member, partner, shareholder, officer, director, or employee of Developer will be personally liable to City, or any successor in interest, in the event of any Default or breach by Developer or for any amount which may become due to City or its successors, or on any obligations under the terms of this Agreement. City hereby waives and releases any claim it may have against the members, partners, shareholders, officers, directors, or employees of Developer with respect to any Default or breach by Developer or for any amount which may become due to City or its successors under the terms of this Agreement.
7.24 Applicable Law; Venue. The laws of the State of California, without regard to conflict of laws principles, will govern the interpretation and enforcement of this Agreement. The exclusive venue for any disputes or legal actions will be the Superior Court of California in and for the County of Ventura or the United States District Court, Southern California District.
7.25 Survival. The parties’ indemnification obligations under Sections 2.12,
3.6, 3.10, 7.4, 7.9, 7.20, and 7.21, will survive termination of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the dates shown below.
CITY OF CAMARILLO, a California
municipal corporation
By:
Greg Ramirez, City Manager
Date:
ATTEST
By:
Carrie Weal, Interim City Clerk
APPROVED AS TO FORM
By: ________________________________
Brian A. Pierik, City Attorney
60BARRY LP, a California limited partnership
By: 60Barry LLC, a California limited liability company, its managing general partner
By: Area Housing Authority of the County of Ventura,
a public body, corporate and politic,
its member
By: _____________________________
Michael Nigh, Executive Director
By: Many Mansions, A California Nonprofit Corporation,
a California nonprofit public benefit corporation
its member
By: _____________________________
Rick Schroeder, President
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837db
Doc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e
Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
2/13/2022
OFFRAMP NB
101 LEWIS
BARRY ST
PEOPLES AV
DAWS
ON
DR
(PVT)
DAILY DR
LEWIS RD
.
Former Stock Building Supply
2800 Barry St
Location Map
Exhibit A
CITY OF CAMARILLO
Former Stock
Building Supply
2800 Barry St
0 100 20050 Feet
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
LEGAL DESCRIPTION FOR
2800 BARRY STREET, CAMARILLO, CALIFORNIA 93010
Lot 17 of Peoples Tract No. 1, in the City of Camarillo County of Ventura, State of California, as per Map recorded in Book 19, Page 87 and 88 of Maps, in the office of the County Recorder of said County.
APN: 162-0-023-030
EXHIBIT B
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
EXHIBIT C
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
Parking Calculations for 68-Unit Affordable Development Rental
Unit Size
(bedrooms)
Parking Required Number of Units T otal
SPECIAL NEEDS UNITS Per
Code
Reduced
Ratio
Per
Code
Reduced
Ratio
Studio 1 0.5 7 7 3.5
1 1.5 1 6 9 6
NONSPECIAL NEEDS
1 1.5 16 24
2 2.0 16 32
3 2.5 15 38
Guest Units/5 X 2 24
Total Rental 60 13 4 12 7.5
For Sale
Unit Size
(bedrooms)
Parking Required Number of Units T otal
NONSPECIAL NEEDS
3 2 enclosed 8 16
Guest 3:5 5
Total ForSale 8 21
Total spaces required with reduced ratio for special needs units = 148.5 Total spaces proposed = 149 (enclosed spaces for the forsale units are proposed to be tandem)
EXHIBIT D
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
Schedule of Performance For Rental Units
Date Milestone*
2021
Sept/Oct Enter Agreement for the Transfer and Development of Real Property and City approval of Financing Plan
Obtain final City approvals for all entitlements
Ends 45 days after date of Agreement Due Diligence Period 2023
July Secure all funding for rental units (assumes three rounds of 9% tax credit applications)
2024
January City Manager approval of any amendments to Financing Plan prior to Close of Escrow
Close of Escrow will take place 180-195 days after
reservation of Tax Credits
Escrow will not close until City Manager has approved
Financing Plan. See Note below.
Construction loan closing for rental units
Start Construction for rental units (assumes 18-month schedule)
2025
July Receive Certificate of Occupancy for rental units (construction completion)
Start Lease-up for rental units
*If the Close of Escrow is delayed because the Project does not receive a LOMR-F from FEMA by the Closing Date (as defined in the Agreement), the construction-related deadlines in the "Schedule of Performance" above shall be extended for twelve months, and that the "Construction Commencement" deadline shall be thirty (30) days after the Close of Escrow, and the "Construction Completion" date shall be twenty-four months after the Construction Commencement deadline, and a "Certificate of Occupancy" shall be issued within thirty (30) days of the Construction Completion deadline. In no event shall the Closing Date occur later than December 31, 2023, and the Construction Completion date be later than July 31, 2025, unless otherwise agreed to in writing by the City.
The following page sets forth the anticipated recording order of documents to be recorded upon Close of Escrow, which will change as financing for the Project changes. .
EXHIBIT E
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
Anticipated Recording Order
(subject to change)
1. Grant Deed from City to Developer
2. Final Tract Map (or alternative document)
On Rental Portion of the Project:
1. Regulatory Agreement for Tax-Exempt Bonds Issued for Rental Development
2. Deed of Trust from Commercial Lender for Rental Development
3. City's Affordable Housing Agreement relative to Rental Development
4. City's Deed of Trust
5. AHACV Deed of Trust
6. Subordination Agreements
On For Sale Portion of the Project:
1. Grant Deed from Developer to For Sale Units Developer
2. Financing Deeds of Trust
3. Habitat Documents
4. City's Affordable Housing Agreement relative to For Sale Units
5. Subordination Agreements
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
RECORDED AT THE REQUEST
OF AND WHEN RECORDED
RETURN TO:
City of Camarillo
Attn: City Clerk
601 Carmen Drive
Camarillo, California 93010
APN: 162-0-023-030
This transaction is exempt from California documentary transfer tax pursuant to Section 11922 of the California Revenue and Taxation Code.
This document is exempt from recording fees pursuant to Section 27383 of the California Government Code.
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, City of Camarillo, a municipal corporation (“Grantor”) hereby GRANTS to BARRY60 LP (“Grantee”) the real property in the describes as Lot 17 of Peoples Tract No. 1, in the City of Camarillo County of Ventura, State of California, as per Map recorded in Book 19, Page 87 and 88 of Maps, in the office of the County Recorder of said County (“Property”).
This Grant Deed is executed pursuant to an Agreement for Transfer and Development of the Property entered into by the Grantor and Grantee on ___________________.
City of Camarillo, a municipal corporation.
By:
Print Name: Greg Ramirez
Title: City Manager
Date:
EXHIBIT F
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
1 RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Clerk
City of Camarillo
601 Carmen Drive
Camarillo, California 93010
APN: 162-0-023-030
(Space above line for Recorder’s Use)
MEMORANDUM OF AGREEMENT FOR THE TRANSFER AND DEVELOPMENT OF
REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS
This Memorandum Of Agreement For The Transfer And Development Of Real Property And Joint Escrow Instructions (“Memorandum”) is made as of the last date of execution indicated on the signature page below between the City of Camarillo, a California municipal corporation, hereinafter designated CITY, and BARRY60 LP, a California limited partnership, hereinafter designated DEVELOPER. The CITY and DEVELOPER are collectively referred to herein as the Parties.
1. The Parties entered into an unrecorded Agreement For The Transfer And Development Of Real Property And Joint Escrow Instructions (“Agreement”) on the last date of execution thereof.
2. Pursuant to the Agreement, DEVELOPER will develop a 68-unit affordable housing project as more particularly described in the Agreement to include 59 rental units of affordable housing for low, very low- and extremely low-income households, one unrestricted manager unit, and 8 for sale units for low income households (“Project”). Of the 59 rental units, 14 will be reserved for households with disabled and/or Veteran member(s).
3. The Effective Date of the Agreement, of which this is a Memorandum, shall be as provided in the Agreement.
4. The terms, covenants and provisions of the Agreement, the terms of which are hereby incorporated by reference into this Memorandum, shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of the Parties.
SIGNATURES APPEAR ON NEXT PAGE
EXHIBIT G
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
2 IN WITNESS WHEREOF, the parties have executed this Memorandum as follows:
CITY OF CAMARILLO
By: _______________________________
Greg Ramirez, City Manager
Date: _____________________
ATTEST:
__________________________
Carrie Weal, Interim City Clerk
SIGNATURES MUST BE NOTARIZED
60BARRY LP, a California limited partnership
By: 60Barry LLC, a California limited liability company, its managing general partner
By: Area Housing Authority of the County of Ventura,
a public body, corporate and politic,
its member
By: _____________________________
Michael Nigh, Executive Director
By: Many Mansions, A California Nonprofit Corporation,
a California nonprofit public benefit corporation
its member
By: _____________________________
Rick Schroeder, President
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
1 PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Amount: $4,900,000
Maker: BARRY60 LP, a California
limited partnership
Maturity Date: The earlier of fifty-five
(55) years from the date of issuance
of the first certificate of occupancy for
the Development or December 31,
2076.
Date of Note: __________, _______
Lender: CITY OF CAMARILLO, California
municipal corporation and general law city
Interest Rate: Three Percent (3.00%)
Simple Interest
1. City Loan. FOR VALUE RECEIVED, the undersigned BARRY60 LP, a California limited partnership ("Maker"), with its principal place of business located 1400 W.Hillcrest Drive, Newbury Park, California 91320, promises to pay to the CITY OF CAMARILLO, a municipal corporation and general law city (the "City" or "Holder"), at 601 Carmen Drive, Camarillo, California 93010, or such place as the Holder may, from time to time, designate by written notice to the Maker, the principal sum of FOUR MILLION NINE HUNDRED THOUSAND DOLLARS ($4,900,000), (the "City Loan"), together with any accrued interest, if applicable, as set forth in this Note. This Promissory Note (the "Note") is made and given pursuant to that certain Agreement for the Transfer and Development of Real Property and Joint Escrow Instructions, entered into by and between the City and Maker, dated ________________, ____ (the "Transfer Agreement"). The Transfer Agreement is incorporated herein by this reference. All initially capitalized terms used but not defined herein shall have the meanings given to them in the Transfer Agreement. The City Loan is made to finance the Development's development and construction costs in accordance with the terms and conditions of the Transfer Agreement. The City Loan will be disbursed as set forth in the Transfer Agreement.
2.Term of Loan and Right of Prepayment.
a.Maturity Date. All accrued interest, if any, and principal shall be due and payable in full without any further demand or notice upon the earlier of fifty-five (55) years from the date of issuance of the first certificate of occupancy for the Development as provided in the Transfer Agreement or December 31, 2076.("Maturity Date"). b. Prepayment. This Note may be prepaid in whole or in part at any time and from time to time without penalty or premium.
EXHIBIT H
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2 3. Security for Note.
This Note is secured by a Deed of Trust executed by Maker which creates a lien on that certain real property as described therein and in the Transfer Agreement.
4. Interest Calculation.
The principal outstanding under this Note shall accrue simple interest at the rate of three percent (3%) per annum, except in the case of Event of Default as set forth in Section 7 of this Note. Principal and interest shall be payable in lawful money of the United States of America. If applicable, interest shall be computed based on an actual day year and the actual number of days elapsed. Interest shall commence on amounts disbursed hereunder from the date of disbursement.
5. Annual Payment.
Following completion of the Development as evidenced by the issuance by the City of certificates of occupancy for the Development, and continuing each year thereafter until the Maturity Date, a portion of the Net Cash Flow (as defined in the Transfer Agreement) from the Development shall be paid to Holder and applied to pay down the amounts due and owing under this Note. The payments described below shall be paid to Holder no later than May 1st each year, with the first payment due on the May 1st following the issuance of the first certificate of occupancy for the Development, and continuing each year thereafter. The Transfer Agreement defines Net Cash Flow in the manner described in Exhibit 1 attached to this Promissory Note.
a. Annual Payments from Net Cash Flow. Maker shall make annual repayments of the outstanding principal and accrued interest, if any, equal to Fifty Percent (50%) of the Net Cash Flow from the Development as repayment of amounts due and owing under this Note. However in the event that any other governmental loan to the Developer is also paid from Net Cash Flow, the City will receive the City's Percentage of Fifty Percent (50%) of the Net Cash Flow from the Development as annual repayment of amounts due and owing under this Note. "City's Percentage" means the percentage calculated by dividing (1) the original principal amount of the City Loan actually disbursed to Borrower by (2) the sum of the original principal amount of the total amount of the City Loan actually disbursed to Borrower plus the original principal amounts of loans made and actually disbursed by other governmental lenders to Borrower payable from Net Cash Flow.
Such annual payments shall be accompanied by the Maker's report of Net Cash Flow. The Maker shall provide the Holder with the audited financial statement provided for in subsection b below, and any other documentation reasonably requested by Holder to substantiate the Maker's determination of Net Cash Flow.
All payments made hereunder shall be credited first to any accrued but unpaid interest (if applicable), then to current interest due and owing and lastly to Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
3 principal. Interest not paid current each year shall be added to and thereafter be considered additional principal due hereunder.
Prior to any sale of all or any portion of the Development, or refinancing of all or any portion of the outstanding debt from the Development, and so long as there is any outstanding amount due and owing under this Note, Maker shall notify Holder of any such proposed or intended sale or refinancing. If such sale or refinancing is not a Permitted Transfer as referenced in Section 1.3.2 of the Transfer Agreement, Maker and Holder shall meet and confer, and shall use good faith efforts, to determine the feasibility of the payoff or restructuring of the remaining balance owing under this Note as part of any such sale or refinancing to provide for repayment of this Note sooner than the fifty-five (55) year repayment period. If such sale or refinancing is a Permitted Transfer, no repayment or restructuring of the remaining balance owing under this Note shall be due or required. b. Audited Financial Statement. Maker shall annually provide Holder with an audited financial statement documenting the calculation of Net Cash Flow for the previous calendar year ending December 31. The audited financial statement shall be provided on or before May 1st, together with payment of the Net Cash Flow payment due to Holder.
Holder shall have the right to inspect and audit Maker's books and records concerning the calculation of the Net Cash Flow Payment and to object within ninety (90) days from receipt of Maker's statement. Failure to timely object shall be deemed acceptance. If Holder does object, Holder shall specify the reasons for disapproval. Maker shall have thirty (30) days to reconcile any disapproved item. If Maker and Holder cannot agree on the amount of the Net Cash Flow payment, an independent auditor mutually selected by Maker and Holder shall resolve any disputed items. The cost of the auditor shall be shared equally by Maker and Holder.
6. Acceleration Upon Certain Events or Upon Event of Default.
In the event of any Event of Default under the terms of this Note, the Transfer Agreement or the Affordable Housing Agreement, the Deed of Trust which is the security for this Note, or under any loans, notes or deeds of trust held by a Senior Lender, at the option of the Holder and after notice to the Maker, providing Maker with thirty (30) days in which to cure any Event of Default, and such Event of Default not having been cured within thirty (30) days (or if a greater amount of time is reasonably necessary to effect a cure, if actions to cure such Event of Default are not undertaken within said thirty (30) day period and pursued with reasonable diligence thereafter), all principal and interest due under this Note shall immediately become due and payable, upon thirty (30) day written notice from the Holder to the Maker. Failure to exercise such option shall not constitute a waiver of the right to exercise it in the event of any subsequent Event of Default.
Should the undersigned Maker agree to or sell, convey, transfer, or dispose of the real property described in the Deed of Trust securing this Note or any part thereof or interest therein, without first obtaining the prior written consent of the Holder (except for a Permitted Transfer, as defined in the Transfer Agreement), then, at the option of the Holder, all principal and interest due hereunder shall immediately become due and payable upon thirty (30) days written notice from the Holder to the Maker. Consent to Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
4 one transaction of this type will not constitute a waiver of the right to require consent to future or successive transactions.
Notwithstanding the generality of the foregoing, certain transfers permitted under the Transfer Agreement shall not constitute an Event of Default hereunder or under the Transfer Agreement, and any such action shall not accelerate the maturity of this Promissory Note, provided that any transfer is either a Permitted Transfer as defined in the Transfer Agreement or is reasonably acceptable to the City with reasonable promptness, which acceptance must be in writing signed by the City, and any transferee under such a transfer agrees to be bound by any and all instruments in favor of the City.
7. Interest on Event of Default.
From and after an Event of Default, the entire outstanding principal balance of this Note shall automatically bear an annual interest rate equal to the lesser of: (a) eight percent (8%) compounding annually; or (b) the maximum interest rate allowed by law.
8. Costs Paid by Maker.
Maker agrees to pay the following costs, expenses and attorneys fees paid or incurred by the Holder of this Note, or as adjudged by a court of competent jurisdiction:
(a) reasonable costs of collection, costs and expenses and attorneys fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed; and (b) costs of suit in such sum as the court may adjudge reasonable as attorneys fees in any action to enforce payment of this instrument.
9. Waiver.
Maker hereby waives diligence, presentment, protest and demand, notice of protest, dishonor and nonpayment of this instrument, and expressly agrees that, without in any way affecting the liability of Maker hereunder, the Holder hereof may extend the Maturity Date or the time for payment of any installment due hereunder, accept additional security, release any party liable hereunder or release any security now or hereafter securing this Note. Maker hereby waives, to the fullest extent permitted by law, the right to plead any and all statutes of limitations as a defense to any demand on this instrument or any deed of trust, security agreement, guarantee or other agreement now or hereafter securing this Note.
10. Nonrecourse.
This Note is a nonrecourse obligation of Maker and the Holder must resort only to the Development or the Property, or both, for repayment should the Maker fail to repay the sums evidenced hereby. Neither Maker nor any of its general and limited partners shall have any personal liability for repayment of the City Loan and no deficiency judgment may be obtained against Maker or any of its general and limited partners.
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5 11. Severability.
If any provision of this Note is determined by a court of competent jurisdiction to be void or unenforceable, such determination shall not affect any other provision of this instrument, and all other provisions hereof shall remain valid and in full force and effect.
12. Non-Waiver.
No delay in demanding or failure to demand performance hereunder shall constitute a waiver by the Holder hereof of its right to subsequently demand such performance or to exercise any remedies for any Event of Default hereunder. Further, in order to be effective, any waiver of any of the Holder's rights and remedies hereunder shall be expressed in a writing signed by a duly appointed representative of the Holder hereof. Further, waiver by the Holder hereof of any right hereunder shall not constitute a waiver of any other right, including, but not limited to, the right to exercise any and all remedies for a different or subsequent event of Event of Default hereunder. [Signatures on Following Page]
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6 MAKER:
60BARRY LP, a California limited partnership
By: 60Barry LLC, a California limited liability company, its managing general partner
By: Area Housing Authority of the County of Ventura,
a public body, corporate and politic,
its member
By: _____________________________
Michael Nigh, Executive Director
By: Many Mansions, A California Nonprofit Corporation,
a California nonprofit public benefit corporation
its member
By: _____________________________
Rick Schroeder, President
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7 Exhibit 1
“Annual Operating Expenses” with respect to a particular calendar year shall mean the following costs reasonably and actually incurred for operation and maintenance of the Project, using generally accepted accounting principles: debt service currently due on a non-optional basis (excluding debt service due from net cash flow or of the Project) on loans associated with the Project and approved by the City in the Financing Plan; property and other taxes and assessments imposed on the Project; premiums for property damage and liability insurance; utility services not paid for directly by tenants, including water, sewer, trash collection, gas, and electricity; maintenance and repair, including but not limited to pest control, landscaping and grounds maintenance, painting and decorating, cleaning, common systems repairs, general repairs, janitorial supplies and maintenance oversight fee; any annual license or certificate of occupancy fees required for operation of the Project; general administrative expenses including but not limited to advertising and marketing, security services and systems, professional fees for legal, audit, accounting and tax returns; bookkeeping fees, property management fees not to exceed eight percent (8%) of gross revenues from the Project plus reimbursements including on- site manager costs and reimbursements which are comparable to other 100% affordable housing projects in the County of Ventura, reasonable fees for any services required to be provided by or otherwise required by the California Debt Limit Allocation Committee or the California Tax Credit Allocation Committee, or any other lender set forth on the Financing Plan; any fees or costs in connection with resident/social services provided; social services oversight fee in a reasonable amount given comparable fees for such services at that time; cash deposited into a reserve for capital replacements of Project improvements in such reasonable amounts as are approved by senior lenders to the Project and the investor limited partner; any current and accrued annual asset management fee, or similar fee, paid to investor limited partner or its designee, in a reasonable amount that is customary for the industry; and any current and accrued annual partnership management fee, or similar fee, paid to the managing general partner of the Developer in a reasonable amount that is customary for the industry; payment of any previously unpaid portion of the developer fee for the Project due (with interest at a rate not to exceed the applicable federal rate); cash deposited into an operating reserve in such reasonable amounts as are approved by senior lenders to the Project and the investor limited partner; and capital adjusted under the Developer's partnership agreement; repayment of any advances or loans made by a partner to fund operating shortfalls; extraordinary operating costs specifically approved by the City Manager; and other ordinary and reasonable operating expenses not listed above and approved by the City Manager. Annual Operating Expenses shall not include the following: depreciation, amortization, depletion or other non-cash expenses or any amount expended from a reserve account.
“Gross Revenue” with respect to a particular calendar year shall mean all revenue, income, receipts, and other consideration actually received from the operation and leasing of the Project. Gross Revenue shall include, but not be limited to: all rents, fees and charges paid by tenants, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements; Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
8 proceeds from vending and laundry machines; the proceeds of business interruption or similar insurance; the proceeds of casualty insurance; and condemnation awards for a taking of part or all of the Project for a temporary period. Gross Revenue shall not include tenants' security deposits, loan proceeds, interest earned on restricted cash (lender impounds and reserves), or similar advances.
“Net Cash Flow” with respect to a particular calendar year shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses.
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1 FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF CAMARILLO
601 Carmen Drive
Camarillo, California 93010
Attn: City Clerk
(Exempt from Recording Fee per Gov. Code
§§ 6103, 27383 & 27388.1(a)(2)(D))
APN: 162-0-023-030 (Space Above This Line for Recorder's Office Use Only)
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
(Vista Campanario)
This Deed of Trust, Security Agreement and Fixture Filing (with Assignment of Rents) ("Deed of Trust") is dated as of _______________, _______, by BARRY60 LP, a California limited partnership, whose address is 1400 W. Hillcrest Drive, Newbury Park, California 91320 ("Trustor"), to COMMONWEALTH LAND TITLE COMPANY, a California corporation ("Trustee"), for the benefit of the CITY OF CAMARILLO, a municipal corporation and general law city , whose address is 601 Carmen Drive, Camarillo, California 93010 ("Beneficiary"), and is executed to secure that certain Promissory Note even date herewith, in the original principal amount of FOUR MILLION NINE HUNDRED THOUSAND DOLLARS ($4,900,000), executed by Trustor in favor of Beneficiary (such Promissory Note, as it may from time to time be supplemented, amended extended, renewed or otherwise modified), the provisions of which are incorporated in the Deed of Trust by this reference.
This Deed of Trust is made with respect to that certain Agreement for the Transfer and Development of Real Property and Joint Escrow Instructions, dated as of _______________, _______, between the Trustor and the Beneficiary (the "Transfer Agreement").
Trustor hereby IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to Trustee, its successors and assigns, in Trust, with POWER OF SALE TOGETHER WITH RIGHT OF ENTRY AND POSSESSION, the following property ("Trust Estate"):
(a) All of that certain real property in the City of Camarillo, County of Ventura, State of California, more particularly described in Exhibit A attached hereto and by this reference made a part hereof ("Subject Property"); Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
2 (b) All buildings, structures and other improvements now or in the future located or to be constructed on the Subject Property ("Improvements"); (c) All tenements, hereditament, appurtenances, privileges, franchises and other rights and interests now or in the future benefitting or otherwise relating to the Subject Property or the Improvements, including easements, rights-of-way and development rights ("Appurtenances"). (Appurtenances, together with the Subject Property and the Improvements, are hereafter collectively referred to as the "Real Property");
(d) Subject to the assignment to Beneficiary set forth in Paragraph 4 below, all rents, issues, income, revenues, royalties and profits now or in the future payable with respect to or otherwise derived from the Trust Estate or the ownership, use, management operation, leasing or occupancy of the Trust Estate, including those past due and unpaid ("Rents");
(e) All present and future right, title and interest of Trustor in and to all inventory, equipment, fixtures and other goods (as those terms are defined in Division 9 of the California Uniform Commercial Code ("UCC"), whether existing now or in the future) located at, upon or about, or affixed or attached to or installed in, the Real Property, or used or to be used in connection with or otherwise relating to the Real Property or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing or occupancy of the Real Property, including furniture, furnishings, machinery, appliances, building materials and supplies, generators, boilers, furnaces, water tanks, heating, ventilating and air conditioning equipment and all other types of tangible personal property of any kind or nature, and all accessories, additions, attachments, parts, proceeds, products, repairs, replacements and substitutions of or to any of such property ("Goods," and together with the Real Property, collectively the "Property"); and
(f) All present and future right, title and interest of Trustor in and to all accounts, general intangibles, chattel paper, deposit accounts, money, instruments and documents (as those terms are defined in the UCC) and all other agreements, obligations, rights and written material (in each case whether existing now or in the future) now or in the future relating to or otherwise arising in connection with or derived from the Property or any other part of the Trust Estate or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing, occupancy, sale or financing of the Property or any other part of the Trust Estate, including (to the extent applicable to the Property or any other portion of the Trust Estate) (i) permits, approvals and other governmental authorizations, (ii) improvement plans and specifications and architectural drawings, (iii) agreements with contractors, subcontractors, suppliers, project managers, supervisors, designers, architects, engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout, refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and insurance policies, together with insurance payments and unearned insurance premiums, (vi) claims, demands, awards, settlements, and other payments arising or resulting from or otherwise relating to any insurance or any loss or destruction Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
3 of, injury or damage to, trespass on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the Property, (vii) license agreements, service and maintenance agreements, purchase and sale agreements and purchase options, together with advance payments, security deposits and other amounts paid to or deposited with Trustor under any such agreements, (viii) reserves, deposits, bonds, deferred payments, refunds, rebates, discounts, cost savings, escrow proceeds, sale proceeds and other rights to the payment of money, trade names, trademarks, goodwill and all other types of intangible personal property of any kind or nature, and (ix) all supplements, modifications, amendments, renewals, extensions, proceeds, replacements and substitutions of or to any of such property (collectively, "Intangibles").
Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security interest in all present and future right, title and interest of Trustor in and to all Goods and Intangibles and all of the Trust Estates described above in which a security interest may be created under the UCC (collectively, the "Personal Property"). This Deed of Trust constitutes a security agreement under the UCC, conveying a security interest in the Personal Property to Trustee and Beneficiary. Trustee and Beneficiary shall have, in addition to all rights and remedies provided herein, all the rights and remedies of a "secured party" under the UCC and other applicable California law. Trustor covenants and agrees that this Deed of Trust constitutes a fixture filing under Sections 9313 and 9402(6) of the UCC.
FOR THE PURPOSE OF SECURING, in such order of priority as Beneficiary may elect, the following: (a) payment of that certain Promissory Note dated as of the date of this Deed of Trust in the original principal amount of Four Million Nine Hundred Thousand Dollars ($4,900,000)(the "Note"); and (b) due, prompt and complete observance, performance and discharge of each and every monetary and non-monetary condition, obligation, covenant and agreement contained herein or contained in the Transfer Agreement. The Transfer Agreement, that certain Affordable Housing Agreement dated as of the date of this Deed of Trust, between the Trustor and the Beneficiary ("Affordable Housing Agreement") and the Note (collectively, "Secured Obligations") and all of their terms are incorporated herein by reference and this conveyance shall secure any and all extensions, amendments, modifications or renewals thereof, however evidenced.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES:
1. That Trustor shall perform its obligations as set forth in the Secured Obligations at the time and in the manner respectively provided therein.
2. That Trustor shall not permit or suffer the use of any of the property for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed.
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4 3. That the Secured Obligations are incorporated in and made a part of this Deed of Trust. Upon default of a Secured Obligation, and after the giving of notice and the expiration of any applicable cure period, the Beneficiary, at its option, may declare the whole of the indebtedness secured hereby to be due and payable. This Deed of Trust shall cover, and the property subject hereto shall include, all property now or hereafter affixed or attached to or incorporated upon the Subject Property in, to or under which Trustor now has or hereafter acquires any right, title or interest, which, to the fullest extent permitted by law, shall be deemed fixtures and a part of the Subject Property. To the extent any of the property subject to this Deed of Trust consists of rights in action or personal property covered by the UCC, this Deed of Trust shall also constitute a security agreement, and Trustor hereby grants to Beneficiary, as secured party, a security interest in such property, including all proceeds thereof, for the purpose of securing the Secured Obligations. In addition, for the purpose of securing the Secured Obligations, Trustor hereby grants to Beneficiary, as secured party, a security interest in all of the property described herein in, to, or under which Trustor now has or hereafter acquires any right, title or interest, whether present, future or contingent, including, but not limited to, all equipment, inventory, accounts, general intangibles, instruments, documents and chattel paper, as those terms are defined in the UCC, and all other personal property of any kind (including, without limitation, money and rights to the payment of money), whether now existing or hereafter created, that are now or at any time hereafter (i) in the possession or control of Beneficiary in any capacity; (ii) erected upon, attached to or appurtenant to the Subject Property; (iii) located or used on the Subject Property or identified for use on the Subject Property (whether stored on the Subject Property or elsewhere); or (iv) used in connection with, arising from, related to, or associated with the Subject Property or any of the personal property described herein, the construction of any improvements on the Subject Property, the ownership, development, maintenance, management or operation of the Subject Property, the use or enjoyment of the Subject Property or the operation of any business conducted thereon, including, without limitation, all such property described as the Trust Estate hereinabove. The security interests granted in this Paragraph 3 are hereinafter severally and collectively called the "Security Interest". The Security Interest shall be self-operative with respect to the real property described herein but Trustor shall execute and deliver on demand such additional security agreements, financing statements and other instruments as may be requested in order to impose the Security Interest more specifically upon the real and personal property encumbered hereby. The Security Interest, at all times, shall be prior to any other interest in the personal property encumbered hereby. Trustor shall act and perform as necessary and shall execute and file all security agreements, financing statements, continuation statements and other documents requested by Beneficiary to establish, maintain and continue the perfected Security Interest. Trustor, on demand, shall promptly pay all costs and expenses of filing and recordation, to ensure the continued priority of the Security Interest. Trustor shall not sell, transfer, assign or otherwise dispose of any personal property encumbered hereby without obtaining the prior written consent of Beneficiary, except that the Trustor may, in the ordinary course of business, replace personal property or dispose of personal property that will not be replaced because of its obsolescence.
Unless Beneficiary then agrees otherwise in writing, all proceeds from any permitted Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
5 sale or disposition in excess of that required for full replacement shall be paid to Beneficiary to be applied on the Note subject to the rights of any senior lenders.
Although proceeds of personal property are covered hereby, this shall not be construed to mean that Beneficiary consents to any sale of such personal property. Upon its recordation in the real property records of Ventura County, this Deed of Trust shall be effective as a financing statement filed as a fixture filing. In addition, a carbon, photostatic or other reproduced copy of this Deed of Trust and/or any financing statement relating hereto shall be sufficient for filing and/or recording as a financing statement.
4. That all rents, profits and income from the property covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the debt hereby secured. Permission is hereby given to Trustor so long as no default exists hereunder after the giving of notice and the expiration of any applicable cure period, to collect such rents, profits and income for use in accordance with the provisions of the Secured Obligations.
5. That upon default hereunder or under the aforementioned agreements, and after the giving of notice and the expiration of any applicable cure period, Beneficiary shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the property described herein and operate same and collect the rents, profits and income therefrom.
6. That Trustor will keep the improvements now existing or hereafter erected on the property insured against loss by fire and such other hazards, casualties, and contingencies as may be required by applicable provisions of the Secured Obligations, and all such insurance shall be evidenced by standard fire and extended coverage insurance policy or policies. Such policies shall be endorsed with standard mortgage clause with loss payable to the Beneficiary and certificates thereof together with copies of original policies, if requested, shall be deposited with the Beneficiary,
7. To pay before delinquency any taxes and assessments affecting said Property; to pay, when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof which appear to be prior or superior hereto; and to pay all costs, fees, and expenses of this trust. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be required to pay and discharge any such tax, assessment charge or levy so long as Trustor is contesting the legality thereof in good faith and by appropriate proceedings, and Trustor has adequate funds to pay any liabilities contested pursuant to this Paragraph 7.
8. As it is provided more specifically in the Secured Obligations, to keep said property in good condition and repair, subject to ordinary wear and tear, casualty and condemnation, not to remove or demolish any buildings thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged, or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon (subject to Trustor's right to Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
6 contest the validity or applicability of laws or regulations); not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law and/or covenants, conditions and/or restrictions affecting said property; not to permit or suffer any material alteration of or addition to the buildings or improvements hereafter constructed in or upon said property without the consent of the Beneficiary.
9. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and reasonable attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear.
10. Should Trustor fail, after the giving of notice and the expiration of any applicable cure period, to make any payment or do any act as herein provided, then 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, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. Following default, after the giving of notice and the expiration of any applicable cure period, Beneficiary or Trustee, being authorized to enter upon said property for such purposes, may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase, contest or compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and pay reasonable counsel fees.
11. Beneficiary shall have the right to pay all insurance premiums required by the Secured Obligations when due should Trustor fail to make any required premium payments. All such payments made by the Beneficiary shall be added to the sums secured hereby.
12. To pay immediately and without demand all sums so expended by Beneficiary or Trustee, under permission given under this Deed of Trust, with interest from date of expenditure, at the highest rate of interest permitted by law.
13. That the funds to be advanced hereunder are to be used in accordance with applicable provisions of the Secured Obligations; upon the failure of Trustor to do so, after the giving of notice and the expiration of any applicable cure period, Trustor shall be in default hereunder.
14. Trustor further covenants that it will not voluntarily create, suffer, or permit to be created against the property subject to this Deed of Trust any lien or liens except as authorized by Beneficiary and/or as provided in the Secured Obligations and further that it will keep and maintain the property free from the claims of all persons supplying labor or materials which will enter into the construction of any and all buildings now being erected or to be erected on said premises. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be obligated to pay any claims Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
7 for labor, materials or services which Trustor in good faith disputes and is diligently contesting, provided that Trustor shall, at Beneficiary's written request, within thirty (30) days after the filing of any claim or lien (but in any event, and without any requirement that Beneficiary must first provide a written request prior to foreclosure) record in the Office of the Recorder of Ventura County, a surety bond in the amount required by law to protect against a claim of lien, or provide such other security reasonably satisfactory to Beneficiary.
15. That any and all improvements made or about to be made upon the premises covered by this Deed of Trust and all plans and specifications, comply with all applicable municipal ordinances and regulations and all other applicable regulations made or promulgated, now or hereafter, by lawful authority, and that the same will upon completion comply with all such municipal ordinances and regulations and with the rules of the applicable fire rating or inspection organization, bureau, association or office.
IT IS MUTUALLY AGREED THAT:
16. Trustor confirms that if Trustor should sell, enter into a contract of sale, convey, or in any way transfer all or any interest of Trustor in the Real Property encumbered by this Deed of Trust or suffer Trustor's title or any interest therein to be divested, whether voluntarily or involuntarily, unless the same is a Permitted Transfer as defined in the Transfer Agreement, without the prior written consent of the Beneficiary being first obtained, then Beneficiary shall have the right, at Beneficiary's sole option, to declare all sums payable under the Note secured hereby immediately due and payable in full, irrespective of the maturity date otherwise specified in the Note. No waiver of this right shall be effective unless in writing and signed by the Beneficiary. Consent by the Beneficiary to any one such transaction shall not be deemed a waiver of the right to require such consent to future or successive transactions. Further, upon default under one of the Secured Obligations, and after the giving of notice and the expiration of any applicable cure period provided therein, the Beneficiary, at its option, may declare the whole of the indebtedness secured hereby to be immediately due and payable in full, irrespective of the maturity date otherwise specified in the Note.
17. As provided more specifically in the Secured Obligations, should the Property or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, subject to the rights of any senior lenders, Beneficiary shall be entitled to all compensation, awards, and other payments or relief therefor which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement, in connection with such taking or damage subject to the rights of any senior lenders. All such compensation, awards, damages, rights of action and proceeds which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, including the proceeds of any policies of fire and other insurance affecting said property, are hereby assigned to Beneficiary subject to the rights of any senior lenders.
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8 18. Notwithstanding Sections 16 and 17, in the event that a portion of the Property is taken for a public improvement or pursuant to a condemnation proceeding and the Restricted Units (as defined in the Affordable Housing Agreement) remain intact and continue to be owned and operated by Trustor in conformance with the Transfer Agreement and the Affordable Housing Agreement, Beneficiary shall not declare all sums due and payable under the Note, nor shall the Beneficiary be entitled to any compensation, awards and other payments therefor, provided that such compensation, awards and other payments are used for (1) paying principal and interest owed on any loan held by a senior lender, (2) making improvements to the Property that are approved by Beneficiary, in its reasonable discretion, or (3) payment of principal owing under the Note. In the event that Trustor receives such compensation, awards or other payments and fails to expend the funds in conformance with subsections (1) and (2) this section within thirty (30) days of receipt of such funds, Trustor shall be in default under this Deed of Trust.
19. Upon default by Trustor in taking any action or in making any payments provided for herein, or in the Secured Obligations, if Trustor shall fail to perform any covenant or agreement in this Deed of Trust within thirty (30) days after written demand therefor by Beneficiary (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Trustor fail to promptly commence such cure, and diligently prosecute same to completion), after the giving of notice and the expiration of any applicable cure period, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale, and of written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust. Beneficiary shall also deposit with Trustee this Deed of Trust and all documents evidencing expenditures secured hereby.
20. 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 of 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 announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee's Deed; Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
9 (3) all sums expended under the terms hereof, not then repaid, with accrued interest at the maximum rate allowed by law; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto.
21. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Deed of Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the property is situated, shall be conclusive proof of proper appointment of the successor trustee.
22. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law.
23. Upon written request of Beneficiary stating that all sums secured hereby have been paid and all obligations secured hereby have been satisfied, and upon surrender of this Deed of Trust 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 of fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto".
24. The trust created hereby is irrevocable by Trustor.
25. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any future successor in interest to Beneficiary. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of Trustor hereunder are joint and several.
26. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
27. The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to it at the address set forth in the Deed of Trust.
28. Trustor agrees at any time and from time to time, upon receipt of a written request from Beneficiary, to furnish to Beneficiary detailed statements in writing of Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
10 income, rents, profits, and operating expenses of the premises, and the names of the occupants and tenants in possession, together with the expiration dates of their leases and full information regarding all rental and occupancy agreements, and the rents provided for by such leases and rental and occupancy agreements, and such other information regarding the premises and their use as may be requested by Beneficiary.
29. Trustor agrees that the obligations secured by this Deed of Trust are made expressly for the purpose of acquiring the Property, completing the construction work necessary to construct a new 60-unit affordable housing development on the Property, as is more specifically provided in the Secured Obligations.
30. As is provided more specifically in the Secured Obligations, the obligations of Trustor thereunder are nonrecourse obligations of the Trustor. The sole recourse of Beneficiary shall be the exercise of its rights against the Property.
31. Notwithstanding specific provisions of this Deed of Trust, non-monetary performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the Authority or any other public or governmental agency or entity (except that any act or failure to act of Beneficiary shall not excuse performance by Beneficiary unless such act or failure to act is allowed or required by law); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Deed of Trust may also be extended in writing by the Beneficiary and Trustor.
32. If the rights and liens created by this Deed of Trust shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any part of the obligations described herein, the unsecured portion of such obligations shall be completely performed and paid prior to the performance and payment of the remaining and secured portion of the obligations, and all performance and payments made by Trustor shall be considered to have been performed and paid on and applied first to the complete payment of the unsecured portion of the obligations.
33. (a) Subject to the extensions of time set forth in Paragraph 31, and subject to the further provisions of this Paragraph 33, failure or delay by Trustor to perform any term or provision respectively required to be performed under the Secured Obligations or this Deed of Trust constitutes a default under this Deed of Trust.
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11 (b) Beneficiary shall give written notice of default to Trustor, specifying the default complained of by the Beneficiary. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) Any failures or delays by Beneficiary 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. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive Beneficiary 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) If an event of default occurs under the terms of this Deed of Trust, prior to exercising any remedies hereunder or thereunder, Beneficiary shall give Trustor written notice of such default. Trustor shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of remedies by Beneficiary under this Deed of Trust. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within thirty (30) days after the notice of default is first given.
(e) If an event of default occurs under the terms of the Secured Obligations, prior to exercising any remedies hereunder or thereunder, Beneficiary shall give Trustor notice of such default. As is provided more specifically in the Secured Obligations, if the default is reasonably capable of being cured within thirty (30) days, Trustor shall have such period to effect a cure prior to exercise of remedies by the Beneficiary under the Secured Obligations, or this Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default.
34. This Deed of Trust shall be subject and subordinate to the terms of that certain extended use agreement executed by the Trustor in connection with the Trustor's allocation of low-income housing tax credits under Section 42 of the Code (the "Extended Use Agreement"). If Beneficiary or its successors or assigns (collectively, the "Subsequent Owner") acquires the Property by foreclosure (or instrument in lieu of foreclosure), then the "extended use period" (as defined in Section 42(h)(6)(D) of the Internal Revenue Code) shall terminate, except for the obligation of the Subsequent Owner to comply with the limitations on evictions, termination of tenancy and increase in rents for the three year period following the Subsequent Owner's acquisition of the Property, as set forth in Section 42(h)(6)(E)(ii) of the Internal Revenue Code. As provided in the Transfer Agreement, upon request when appropriate, Beneficiary shall execute such documentation as is necessary to subordinate this Deed of Trust to a senior lender.
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SIGNATURE PAGE TO DEED OF TRUST
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first set forth above.
TRUSTOR:
[SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
60BARRY LP, a California limited partnership
By: 60Barry LLC, a California limited liability company, its managing general partner
By: Area Housing Authority of the County of Ventura,
a public body, corporate and politic,
its member
By: _____________________________
Michael Nigh, Executive Director
By: Many Mansions, A California Nonprofit Corporation,
a California nonprofit public benefit corporation
its member
By: _____________________________
Rick Schroeder, President
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who 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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Name: __________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who 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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Name: __________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who 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.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Name: __________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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EXHIBIT 1
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Lot 17 of Peoples Tract No. 1, in the City of Camarillo County of Ventura, State of California, as per Map recorded in Book 19, Page 87 and 88 of Maps, in the office of the County Recorder of said County.
APN: 162-0-023-030
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Camarillo
601 Carmen Drive
Camarillo, CA 93010
No Recording Fee: Govt. Code §§ 6103, 27383
(Space above this line for Recorder’s use)
AFFORDABLE RENTAL HOUSING REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(Vista Campanario Apartments – RPD-205/CUP-405)
This AFFORDABLE RENTAL HOUSING AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (“Agreement”) is effective as of ______________, 20__, and is between the CITY OF CAMARILLO, a California municipal corporation and general law city (“City”), and BARRY60 LP, a California limited partnership (“Developer”), each a “Party” and collectively referred to as the “Parties.” The Parties agree as follows:
1. Recitals.
1.1 The City and the Developer have entered that certain Transfer Agreement in which the City agreed to convey the Property located at 2800 Barry Street, Camarillo, California 93010 to Developer and to loan the Developer funds for development costs for this project.
1.2 In consideration, Developer is seeking to develop the Property into a 60-unit affordable housing complex, with 59 restricted units and one manager’s unit, as specified below.
1.3 Development of the Property is also governed by various City approvals, including RPD-205 and CUP-405. Condition No. 191 of RPD-205 and CUP-405 requires Developer to restrict 15 of the Project's units to Extremely Low Income Households, 21 to Very Low Income Households, and 23 to Low Income Households, for a minimum of 55 years (The “Affordable Housing” or “Low Income Rental Units”.) Fourteen of the Project’s units must be reserved for households with disabled and/or Veteran member(s). Developer agrees to manage undertake all management responsibilities for this Project in a manner consistent with the terms of this Agreement.
1.4 This Agreement is intended to satisfy the Affordable Housing Requirements under RPD-205 and CUP-405 for the Property, and sets forth the covenants and conditions upon which Developer agrees to rent the Affordable Housing for a minimum of 55 years from the date of the issuance of the certificate of occupancy for the Project, according to the terms of this Agreement.
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1.5 City desires to enter into this Agreement in order to ensure that the required number of Restricted Rental Units will be made available to and occupied by Qualified Households in accordance with the terms and conditions of this Agreement.
2. Definitions.
“Actual Household Size” means the actual number of persons in the applicable household.
“Affordable Housing Requirements” means the affordable rental housing requirements for the 59 units in this Project, as set forth under RPD-205 and CUP-405 for the Property, as incorporated into this Agreement.
"Affordable Rent" means the amount of annual rental payments, less a Utility Allowance and other fees and charges required to be paid by tenants of the Project on a non- optional basis, that does not exceed the applicable maximum percentage of income that can be devoted to rent as set forth in Health & Safety Code Section 50053(b) for extremely low, very low, and lower income households, adjusted for the household size appropriate for the unit, unless other limitations are prescribed by the requirements of another funding entity, in which case such limitations will control in the determination of the Affordable Rent. For the purpose of calculating household size appropriate for the unit, the following household size may be used: Studio = 1 person; 1-bedroom unit = 2 persons; 2-bedroom unit = 3 persons; 3-bedroom unit = 4 persons, except that if any federal statutes or regulations (including those in connection with federal low income housing tax credits) require use of alternate household size assumptions in calculating rents, such federally-mandated household size assumptions shall be used instead of the assumptions provided herein).
“Agreement” means this Affordable Rental Housing Agreement and Declaration of Restrictive Covenants.
"Area Median Income" or "AMI" means the median income for Ventura County, California, adjusted for Actual Household Size, as published from time to time by the State of California Department of Housing and Community Development ("HCD") in Section 6932 of Title 25 of the California Code of Regulations or any successor provision published pursuant to California Health and Safety Code Section 50093(c). The HCD AMI levels will be applied, unless otherwise prescribed by the requirements of another funding entity other than the City.
Furthermore, if tax credits are used in connection with the funding of the Restricted Units, then the provisions of Section 42 of the Internal Revenue Code (26 U.S.C. § 42) and TCAC will control with respect to AMI requirements.
“City” means City of Camarillo.
“Developer” means 60BARRY LP, a California limited partnership. “Director” means the City’s Director of Community Development or his or her Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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designee.
"Extremely Low Income Household" means a household with annual income equal to or less than the then current income range established under Section 6932 of Title 25 of the California Code of Regulations with respect to extremely low income households and in effect at the time the household submits its application (currently 30% of current Area Median Income), as adjusted by Actual Household Size and as set forth in Health & Safety Code Section 50106, unless otherwise prescribed by the requirements of another funding entity other than the City, in which case such requirements will control.
“Extremely Low Income Rental Unit” means a rental unit in the Project reserved for and rented to Extremely Low Income Households at a maximum monthly rental determined as set forth in Section 5 below.
"HCD" means the California Department of Housing and Community Development "HUD" means the United States Department of Housing and Urban Development “Low Income Household” means a household with annual income that does not exceed the then current income range established under Section 6932 of Title 25 of the California Code of Regulations with respect to low income households and in effect at the time the household submits its application (currently 80% of current Area Median Income), as adjusted by Actual Household Size and as set forth in Health & Safety Code Section 50079.5, unless otherwise prescribed by the requirements of another funding entity other than the City, in which case such requirements will control.
“Low Income Rental Unit” means a rental unit in the Project reserved for and rented to Low Income Households at a maximum monthly rental determined as set forth in Section 5 below.
“Occupancy Requirements” has the meaning set forth in Section 5.4 of this Agreement.
“Permitted Rental Rate” means the rental rate for each Low Income Rental Unit established under Section 5 of this Agreement.
“Project” means this project for the development of the Property into 60 residential dwelling units, recreational and common area improvements, landscaping, and parking and other related improvements.
“Property” means that certain real property within the City consisting of approximately 2.52 acres of land located at the southwest corner of Lewis Road and Barry Street commonly known as 2800 Barry Street, Camarillo, California 93010, which is more particularly described on Exhibit A and depicted on Exhibit B.
“Qualified Household” means a household that qualifies as a Low Income Household, Very Low Income Household, or Extremely Low Income Household.
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“Restricted Units” means the Extremely Low Income Rental Units, Very Low Income Rental Units, and Low Income Rental Units.
“TCAC” means the California Tax Credit Allocation Committee. “Term” means the period of 55 years from the date of the City’s issuance of the final certificate of occupancy for a Restricted Unit.
“Transfer Agreement” means that certain agreement for the Transfer and Development of Real Property and Joint Escrow Instructions, dated as of ______________, 2022, between the City and the Developer.
“Unrestricted Unit” means the residential unit in the Project that is not subject to any rental rate or sales price restriction under this Agreement or otherwise. “Utility Allowance” means the allowance for utilities and other services not furnished by the Developer required under Government Code Section 50053, which may be calculated based on either (a) the most current version of the Allowances for Tenant Furnished Utilities and Other Services worksheet prepared by the Area Housing Authority of the County of Ventura or its successor agency using the form prepared by the U. S. Department of Housing and Urban Development, or (b) the California Utility Allowance Calculator (“CUAC”) of the California Energy Commission as approved by TCAC for the Restricted Units. "Very Low Income Household” means a household with annual income equal to or less than the then current income range established under Section 6932 of Title 25 of the California Code of Regulations with respect to very low income households and in effect at the time the household submits its application (currently 50% of current Area Median Income), as adjusted by Actual Household Size and as set forth in Health & Safety Code Section 50105, unless otherwise prescribed by the requirements of another funding entity other than the City, in which case such requirements will control.
"Very Low Income Rental Unit” means a rental unit in the Project reserved for and rented to Very Low Income Households at a maximum monthly rental determined as set forth in Section 5 below.
3. Term.
3.1 This Agreement is binding upon Developer and Developer’s successors or assigns for a period of 55 years from the date of the City’s issuance of the final certificate of occupancy for a Restricted Unit (“Term”). The date of the City’s issuance of the final certificate of occupancy is referred to as the “”Commencement of the Term” and such date will be memorialized in a written notice from City to Developer. During this time, Developer may not convert any units into condominium or cooperative ownership, or sell condominium or cooperative conversion rights for this Property, and Developer must pay any real and personal property taxes, assessments, and charges and all franchise, income, employment, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property. However, Developer Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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may contest in good faith, any such taxes, assessments, or charges. If the Developer exercises its right to contest any tax, assessment, or charge against it, the Developer, on final determination of the proceeding or contest, must immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges, and interest.
3.2 Upon the expiration of the Term, at the request of the Developer, the City will prepare and record a memorandum of termination of this Agreement; provided, however, the recordation of such instrument will not be necessary or a prerequisite to the termination of this Agreement upon the expiration of the Term set forth in Section 3.1.
4. Provision of Restricted Units.
4.1 Number. The Project will consist of 59 Restricted Units and one Unrestricted Unit, as follows:
Extremely
Low Income
Rental Units
Very Low
Income
Rental Units
Low Income
Rental Units
Manager's
Unit
(Unrestricted
Unit)
Total
Studios 4 0 3 07
1BR Units 5 10 7 0 22
2 BR Units 4 4 7 1 16
3 BR Units 2 7 6 0 15
Total 15 21 23 1 60
4.2 At least 14 of the Project’s units must be reserved for households with disabled and/or veteran member(s).
4.3 Appearance. The Restricted Units must be comparable in exterior architecture to the comparable Unrestricted Units located elsewhere within the Project.
4.4 Lease Form. The Developer must forward a copy of its initial standard form of lease agreement to the City for final review as to compliance with this Agreement and thereafter upon request by City. In addition to other requirements imposed under this Agreement, Developer’s form of lease agreement must include restrictions prohibiting tenants from subleasing the Restricted Unit and that the Qualified Household must have continued residence in the Unit.
5. Rental of Restricted Rental Units.
5.1 Marketing of Units. Developer must offer each Restricted Unit for rental only to Qualified Households. Of the 59 Restricted Rental Units, at least 15 Restricted Units must be offered to Extremely Low Income Households, 21 Restricted Units to Very Low Income Households, and 23 Restricted Units to Low Income Households. Developer must continuously maintain an interest list of prospective tenants for Restricted Units that may become available in the future. Developer may not charge more than the then current industry standard per adult household member for application fees including credit check and screening and background checks.
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5.2 Verification of Qualified Household. Developer must use reasonable efforts to verify that the income provided by an applicant is accurate using the methodology utilized by the Area Housing Authority of the County of Ventura. Developer may utilize a third-party verification vendor regarding income information of each prospective tenant of a Restricted Unit, provided that Developer maintains on file such information to verify the income of an applicant or tenant. Developer must provide the income verification information for each tenant for review, and the City agrees to review and accept or reject such income verification for the tenant as a Qualified Household within one (1) business day after receipt of the income verification information. The City will not unreasonably reject any income verification.
5.3 Reliance on Tenant Representations. Each lease must contain a provision to the effect that Developer has relied on the income certification and supporting information supplied by the tenant in determining qualification for occupancy of the Restricted Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for termination of the lease in the soonest time period permitted by applicable law.
5.4 City Preference. In qualifying applicants for each Restricted Unit, to the extent permitted by law, Owner must give a preference in the rental of the Restricted Units to Qualified Households that include at least one member who currently lives, or works, or has been offered employment in the city limits of the City of Camarillo. In the event there are fewer Qualified Household applicants that meet the criteria specified in this Section than there are available Restricted Units, the Restricted Units may be made available by Developer to members of the general public. Notwithstanding the foregoing, in the event of a conflict between this Section and the provisions of Section 42 of the Internal Revenue Code, as amended, and regulations promulgated thereunder or any applicable provision of federal or state fair housing laws (collectively, “Occupancy Requirements”), the applicable provisions of the Occupancy Requirements will control.
5.5 Developer or its authorized agent must obtain from each household on the anniversary of their occupancy of the Restricted Unit a written certification that includes the identity and age of each household member and the total gross household income in the format required by TCAC, or may provide self-certifications that conform with all applicable policies and regulations on self-certifications. Subject to and only to the extent permitted by the Occupancy Requirements, upon a determination that a tenant exceeds the income qualification limits of a Low Income Household, the tenant must vacate the Restricted Unit within one year of such determination so that the Restricted Unit may be re-let to a new Qualified Household.
Notwithstanding the foregoing, in the event of a conflict between this Section and the provisions of Section 42 of the Internal Revenue Code, as amended, and regulations promulgated thereunder, the applicable provisions of Section 42 of the Internal Revenue Code, as amended, and the regulations promulgated thereunder will control.
5.6 Permitted Rental Rate. The rent charged may not exceed the relevant Affordable Rent as applicable for those Restricted Units designated for Extremely Low, Very Low, and Low Income Households.
5.7 Adjustment to Permitted Rental Rate. Subject to Section 5.6, for each subsequent year after the issuance of the applicable certificate(s) of occupancy for the Project, the Permitted Rental Rate may be adjusted based on the then current Area Median Income (as Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
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set forth in Section 6932 of Title 25 of the California Code of Regulations) and the Utility Allowance.
5.8 Exclusions from Permitted Rental Rate. The Permitted Rental Rate does not include application fees, credit and employment screening fees, security deposits, cleaning charges, reimbursements for damages or repairs, service charges or user fees, whether for laundry or otherwise, charges for supplying furniture, charges for special furnishings or equipment or any alterations requested by a tenant, special trash removal fees, renter insurance, additional parking, or any charges other than for use and occupancy of an unfurnished Restricted Unit developed and operated as set forth in this Agreement. The word “charges” as used herein also does not include any charges, payments, or assessments for the use or occupancy of recreational buildings or facilities.
5.9 Developer’s Standard Operating Procedures. The Parties understand and agree that the Developer can apply its standard operating procedures to the tenants or prospective tenants and to the Restricted Units in order to apply the same lease terms, rules, regulations and policies to all tenants of the Project, except as otherwise expressly provided in this Agreement.
6. Reporting Requirements.
6.1 Annual Reports. By no later than March 15th of each year following the Commencement of the Term, Developer must submit an annual report (“Annual Report”) to the Director in a form reasonably satisfactory to the Director. The Annual Report must include the following information for each Restricted Unit:
6.1.1. The number of bedrooms;
6.1.2. The number of people residing in the Unit;
6.1.3. The current rent and other charges;
6.1.4. The dates of any vacancies during the previous year; and
6.1.5. The total gross household income of the residents upon commencing occupancy of their Restricted Unit and the source of such information.
6.2 Additional Report Information. In addition to the information in Section 6.1, the information in the Annual Report must include the following:
6.2.1. Information on the status of waiting lists for the Units;
6.2.2. A summary of Developer’s Marketing Plan for the Units in accordance with Section 5.1.
6.2.3. The insurance certificate required under Section 9.
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6.3 Cost of Review of Annual Report. Developer agrees to pay City’s actual costs for the staff or contractor time required to review each Annual Report. The Parties agree that the cost of this review for each year will not exceed a total sum equal to $50 per Restricted Unit multiplied by the number of Restricted Units. The Parties further agree that the annual per unit review cost may be adjusted every five years during the Term of this Agreement by up to 15%, as needed, in order to fully reimburse City for the costs associated with this review.
6.4 Maintenance of Records. Developer must maintain complete and accurate records pertaining to the Restricted Units for a period of five years after the final date of occupancy by a tenant, and must permit any duly authorized representative of City to inspect the books and records of Developer pertaining to the Project including, but not limited to, those records pertaining to the occupancy of the each Restricted Unit.
7. Fair Housing and Non-Discrimination Covenants.
7.1 Developer covenants that it will comply with all applicable state and federal fair housing laws in the marketing and rental of the Restricted Units. Developer agrees to accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies under the Section 8 program or any successor program.
7.2 Developer may not restrict the rental, use, occupancy, or enjoyment of the Restricted Units, the Property, or any portion thereof, on the basis of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of any person.
Developer covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there may be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the lease, use, occupancy, tenure or enjoyment of the Restricted Units. Nor may Developer nor any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants.
8. Indemnification.
Developer agrees to defend, indemnify, and hold harmless City and its respective officers, officials, agents, employees, representatives, and volunteers from and against any third-party loss, liability, claim, or judgment relating in any manner to the development and leasing of the Restricted Units pursuant to this Agreement or actions taken or omitted (where there was a duty to act) by Developer under this Agreement (collectively, “Claims”), except to the extent any such Claims are caused by the illegal acts, active negligence or willful misconduct of the City or its respective officers, officials, agents, employees, representatives, and volunteers. This indemnity covenant will survive the expiration or earlier termination of this Agreement.
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9. Insurance.
Developer must maintain, during the Term, an all-risk property insurance policy insuring the Restricted Units in an amount equal to the full replacement value of all of the Restricted Units, in a form, content and with companies reasonably acceptable to the City. The Developer agrees to notify the City at least 30 days in advance of any material change, cancellation or termination of coverage. Developer must transmit a copy of the certificate of insurance to City within 30 days of the final certificate of occupancy obtained for the first Restricted Unit. Thereafter, Developer must annually transmit to City with the Annual Report a copy of the certificate of insurance signed by an authorized agent of the insurance carrier setting forth the general provisions of coverage.
The Developer and the City agree to modify and amend any of the foregoing requirements that become impracticable, uneconomical or impossible to obtain by the Developer from industry standard insurers who customarily provide the types of coverage required hereunder. The Parties agree to act reasonably with regard to any such modifications and amendments.
10. Deed of Trust.
10.1 City agrees that this Agreement may be subordinated to the liens, rights, duties and obligations created by a deed of trust recorded in the first position (i.e., senior to all other deeds of trust recorded against the Property or any portion of the Property), and that this Agreement does not impair the rights of an institutional lender that is the maker of a loan secured by a deed of trust recorded in the first position, or such lender’s assignee or successor in interest, to:
10.1.1. foreclose or take title to the Property, including the Affordable Housing Site, under the remedies in the deed of trust; or
10.1.2. accept a deed or assignment in lieu of foreclosure in the event of default by a trustor; or
10.1.3. sell the Property to any person at any price, subsequent to exercising its rights under the deed of trust .
11. Running of Benefits and Burdens.
11.1 All conditions, covenants, and restrictions contained in this Agreement are covenants running with the land, and to the fullest extent permitted by law and equity are binding for the benefit and in favor of, and enforceable by, City against Developer and its successors and assigns, to or of the Property or Project or any portion thereof or any interest therein, and any party in possession or occupancy of the Property or Project or portion thereof. It is further intended and agreed that City is a beneficiary of the covenants and conditions of this Agreement in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation are binding for the benefit of City and such covenants run in favor of City for the Term. Developer further agrees for itself and its successors that in the event a court of competent jurisdiction determines that any of the conditions, covenants, and restrictions contained in this Agreement do not run with the land, then such conditions, covenants, and restrictions will be enforced as equitable servitudes against the Property and the Project in favor of City.
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12. Assignment of Agreement.
12.1 This Agreement is binding upon Developer and its executors, administrators, and assigns, and all persons claiming under or through Developer. Wherever this Agreement employs the term “Developer” it will be deemed to include its executors, administrators, and assigns, and all persons claiming under or through Developer. Except for a sale of the Property or any portion of the Property, Developer may not voluntarily assign any of its rights or obligations under this Agreement. In the event Developer assigns its interest in this Agreement, in whole or in part, in connection with a conveyance of all or any portion of the Property, then Developer will be released from its liabilities and obligations under this Agreement to the extent such liabilities and obligations are assumed by its assignee or successor.
12.2 City may assign its rights and obligations under this Agreement to any affiliated public entity or body without the consent of Developer.
13. Event of Default.
If a Party defaults as to any of the terms or conditions of this Agreement applicable to such Party, the defaulting Party will have 30 days after service upon it of written notice of such default to cure the default by rendering a performance reasonably satisfactory to the other Party.
If the default cannot be remedied within 30 days, the defaulting Party must commence performance within 30 days of notice and diligently work thereafter to render a full and complete performance to the reasonable satisfaction of the other Party. The failure to cure a default within the prescribed period will constitute an “Event of Default.” If the defaulting Party does not agree with the allegation of default being made by the non-defaulting Party, then the former Party may notify the non-defaulting Party of its opinion and the Parties will be obligated to use good faith efforts to resolve the disagreement.
14. City’s Remedies.
If there is an Event of Default by Developer, City may pursue the remedy thereof by any and all means of enforcement, both in equity and at law, including but not limited to injunctive relief and specific performance. In addition to any other remedies available to City, if Developer charges or receives from the tenant of any Restricted Unit any rent that exceeds the applicable Affordable Rent, Developer will be liable to City for the entire amount of rent received in excess of the amount permitted under this Agreement, except to the extent such excess amounts are returned to the overcharged tenant.
15. Notices.
Written notice, demands, and communications between City and Developer will be deemed sufficient if personally served or sent by registered or certified mail, postage prepaid, return receipt requested to the principal offices of the City and the Developer at the addresses set forth below, which either Party may change by giving notice in accordance with this Section.
City
City of Camarillo
601 Carmen Drive
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Camarillo, California 93010
Attention: Director of Community Development
Developer
BARRY60 LP
c/o Area Housing Authority of Ventura County
1400 W. Hillcrest Drive
Newbury Park, California 91320
Attn: Executive Director
With a copy to: Many Mansions
1259 E. Thousand Oaks Blvd.
Thousand Oaks, California 91362
Attn: President
With a copy to: Goldfarb & Lipman LLP
1300 Clay Street, 11th Floor
Oakland, California 94612
Attention: Lynn Hutchins
Notices will be deemed given as of the date of personal service or three calendar days after deposit of the same in the custody of the United States Postal Service.
16. General Provisions.
16.1 Governing Law. This Agreement is to be interpreted and construed in accordance with the laws of the State of California.
16.2 Waiver and Amendment. No provision of this Agreement, or default under any provision, can be waived except in writing. Waiver of any provision or default will not be deemed to be a waiver of any other provision, or of any subsequent default of the same or other provision. This Agreement may be amended only by a written agreement signed by the Parties.
16.3 Further Assurances. The Parties agree to execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either may reasonably request to carry out the intent of this Agreement.
16.4 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.
Nothing in this Agreement is intended to or establishes the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Developer and City may not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Developer (except as expressly provided in this Agreement) or to any third party with respect to the Project. Developer and its employees are not employees of City but rather are, and will always be considered independent contractors.
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as employees or agents of City. Except as City may specify in writing, Developer has no authority to act as an agent of City or to bind City to any obligation.
16.5 No Third Party Beneficiaries or Standing. Only the City has the right and standing to bring an action for enforcement of Developer’s obligations under this Agreement.
There are no third beneficiaries of this Agreement and no third parties have either the right or standing to enforce any provision of this Agreement.
16.6 Action by the City. Except as specifically provided in this Agreement, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action must be in writing, and such action may be given, made or taken by the City’s City Manager or by any person who has been designated as the City’s authorized representative by the City Manager, without further approval by the City Council.
16.7 Integration. This Agreement contains the entire agreement and understanding between the Parties as to its subject matter. No representations oral or otherwise, express or implied, other than those contained herein, have been made by the Parties. All exhibits referred to in this Agreement are incorporated in the Agreement by this reference.
16.8 Time of the Essence. In all matters under this Agreement, time is of the essence.
16.9 Severability. If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force and effect.
16.10 Estoppels. Each party agrees at any time and from time to time, upon not less than ten days’ prior notice by the other party to execute, acknowledge and deliver to the requesting party a statement in writing substantially in the form of Exhibit C, certifying (a) that this Agreement is unmodified and in full force and effect (or if there have been modifications that this Agreement is in full force and effect as modified and stating the modifications), (b) whether or not, to the actual knowledge of the signer of such statement, either party is then not in compliance with the Agreement or may be not in compliance with notice or the passage of time, or both, in keeping, observing or performing any term, covenant, agreement, provision, condition or limitation contained in this Agreement, and, if not in compliance, specifying each such incidents of noncompliance and whether the signing party has waived or accepted such incidents of noncompliance as incidental and immaterial, and (c) any other information related to this Agreement reasonably requested by the requesting party; it being intended that any such statement delivered pursuant to this Section may be relied upon by the receiving party, the receiving party’s lender or any prospective purchaser of the interest of such party.
16.11 Consent and Approvals. Any consent or approval by the City or the Developer required under this Agreement will not be unreasonably delayed or withheld, unless otherwise provided in this Agreement. Any approval required under this Agreement must be in writing and executed by an authorized representative of the party granting the approval.
16.12 Counterparts. This Agreement may be executed in counterparts which shall together constitute one document.
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[Signatures on the following page.]
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THE CITY OF CAMARILLO
Greg Ramirez, City Manager
DEVELOPER
All signatures must be property notarized.
60BARRY LP, a California limited partnership
By: 60Barry LLC, a California limited liability company, its managing general partner
By: Area Housing Authority of the County of Ventura,
a public body, corporate and politic,
its member
By: _____________________________
Michael Nigh, Executive Director
By: Many Mansions, A California Nonprofit Corporation,
a California nonprofit public benefit corporation
its member
By: _____________________________
Rick Schroeder, President
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
(CITY)
STATE OF CALIFORNIA )
) ss
COUNTY OF VENTURA )
On _____________, before me, _______________________Notary Public, personally appeared __________________________ personally known to me or proved to me on the basis of satisfactory evidence to be the person[s] whose name[s] [is/are] subscribed to the within instrument and acknowledged to me that [he/she/they] executed the same in [his/her/their] authorized capacity[ies] , and that by [his/her/their] signature[s] on the instrument the person[s] , or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
(DEVELOPER)
STATE OF CALIFORNIA
)
) ss
COUNTY OF VENTURA )
On _____________, before me, _________________________Notary Public, personally appeared __________________________ personally known to me or proved to me on the basis of satisfactory evidence to be the person[s] whose name[s] [is/are] subscribed to the within instrument and acknowledged to me that [he/she/they] executed the same in [his/her/their] authorized capacity[ies] , and that by [his/her/their] signature[s] on the instrument the person[s] , or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
(DEVELOPER)
STATE OF CALIFORNIA )
) ss
COUNTY OF VENTURA )
On _____________, before me, _________________________Notary Public, personally appeared __________________________ personally known to me or proved to me on the basis of satisfactory evidence to be the person[s] whose name[s] [is/are] subscribed to the within instrument and acknowledged to me that [he/she/they] executed the same in [his/her/their] authorized capacity[ies] , and that by [his/her/their] signature[s] on the instrument the person[s] , or the entity upon behalf of which the persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
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A-1
EXHIBIT A
LEGAL DESCRIPTION FOR
2800 BARRY STREET, CAMARILLO, CALIFORNIA 93010
Lot 17 of Peoples Tract No. 1, in the City of Camarillo County of Ventura, State of California, as per Map recorded in Book 19, Page 87 and 88 of Maps, in the office of the County Recorder of said County.
APN: 162-0-023-030
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B-1
EXHIBIT B
DEPICTION OF THE PROPERTY
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C-1
EXHIBIT C
ESTOPPEL CERTIFICATE
___________, 20__
_____________________
_____________________
Re: Affordable Rental Housing Regulatory Agreement dated as of _____, 20__ by the CITY OF CAMARILLO (the “City”) and_________________ (the “Developer”) and _____________ (“Owner”) recorded in Document No. in the Official Records of the Office of the County Recorder of Ventura County (the “Agreement”) Ladies and Gentlemen:
The undersigned is the current holder of all of the rights and interests of the City under the Agreement. The undersigned understands that the Developer intends to [describe transaction]. The undersigned hereby certifies to __________________ effective as of the date written above as follows (words with initial capital letters used but not defined herein shall have the respective meanings ascribed to them in the Agreement):
1. Developer remains as the current Developer under the Agreement. The City remains the City under the Agreement;
2. A true, correct and complete copy of the Agreement, together with all amendments thereto, is attached hereto as Exhibit A. The Agreement is otherwise unmodified and is in full force and effect. There are no other promises, agreements, understandings, or commitments between Developer and City relating to affordable housing on the Property other than those set forth in the Agreement. The undersigned has not given to the Developer any notice of default, termination or noncompliance under the Agreement;
3. The City is the holder of all the rights and interests of the City under the Agreement;
4. No default has occurred and, to the actual knowledge of the undersigned, no breach or noncompliance by Developer exists under the Agreement, and no facts or circumstances exist that, with the passage of time, the giving of notice (or both), will or could constitute a default or breach or noncompliance under the Agreement. The undersigned has not made a claim against the Developer alleging such party's default under the Agreement. The undersigned has not received notice from the Developer in which the Developer has made any claim against the City under the Agreement;
5. To the knowledge of the City, the Developer is in full compliance with all the terms of the Agreement; and
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6. The undersigned representative of the City is duly authorized and fully qualified to execute this estoppel instrument on behalf of the City thereby binding such party.
The undersigned executes and delivers this instrument with the intention that you will rely hereon, and hereby agrees that you and your successors and assigns will be entitled to rely hereon. Additionally, the undersigned confirms and agrees that [to be included in any mortgage or financing transaction] the City will provide concurrent copies of any notices sent to the Developer under the Agreement to you.
EXECUTED to be effective as of the date first written above.
THE CITY OF CAMARILLO
By:
Name:
Title:
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Exhibit A
(Copy of Agreement and any amendments to the Agreement) Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4
1 Exhibit I
Form of Certificate of Completion
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Camarillo
601 Carmen Drive
Camarillo, CA 93010
No Recording Fee: Govt. Code § 27383
(Space above this line for Recorder’s use)
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (“Certificate of Completion”) is made by the CITY OF CAMARILLO, a California municipal corporation and general law city (“City”), in favor of BARRY60 LP, a California limited partnership (“Developer”), as of the date written below.
RECITALS
A. City and Developer have entered into that certain Agreement for the Transfer and Development of Real Property and Joint Escrow Instructions (“Agreement”) dated ____, concerning the disposition and development of certain real property (“Property”) situated in the City of Camarillo, California, as more fully described in the attached Exhibit A. Pursuant to the Agreement, City conveyed fee title to the Property to Developer on _____. Capitalized terms not otherwise defined in this Certificate of Completion will have the meanings ascribed to such terms in the Agreement.
B. City and Developer are also parties to an Affordable Housing Agreement on Real Property dated _____, recorded against the Property in the Official Records of Ventura County as Instrument No. ______ (“Affordable Housing Agreement”).
C. As provided in Section 3.12 of the Agreement, City is required to furnish Developer or its successors with a Certificate of Completion upon satisfactory completion of the Project on the Property. This Certificate of Completion is City’s conclusive determination of Developer’s satisfactory completion of the construction and development of the Project on the Property as required by the Agreement.
NOW, THEREFORE, City hereby certifies as follows:
1. The Project to be constructed by Developer on the Property has been fully and satisfactorily completed in conformance with the Agreement.
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2 2. All affordable housing, use, maintenance, and other covenants contained in the Affordable Housing Agreement will remain in effect and enforceable according to their terms.
3. This Certificate of Completion will not be deemed or construed to constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance the construction and development of the improvements on the Property or a portion of it.
This Certificate of Completion is not a notice of completion as referred to in section 3093 of the California Civil Code.
IN WITNESS WHEREOF, City has executed this Certificate of Completion as of the date written below.
“GRANTOR”
CITY OF CAMARILLO, a California
municipal corporation
By:
Greg Ramirez, City Manager
[Signature must be notarized]
Dated:
APPROVED AS TO FORM
By:
Brian A. Pierik, City Attorney
Dated:
ATTEST:
By:
_______________, City Clerk
Dated:
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3 STATE OF CALIFORNIA )
)
COUNTY OF VENTURA )
On _____________________, before me, ________________________, personally appeared ___________________________ who 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 persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under
the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official sea.
Signature of Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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4 EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lot 17 of Peoples Tract No. 1, in the City of Camarillo County of Ventura, State of California, as per Map recorded in Book 19, Page 87 and 88 of Maps, in the office of the County Recorder of said County.
APN: 162-0-023-030
Doc ID: 43c11d8122359eb3891d0cefe9ee0f5dd40837dbDoc ID: f734c248c1e3f978032b2ffd532182f0bb69ab1e Doc ID: 6f01178d4b45a513f108cb574dd6106a2e7517c4