RESOLUTION NO. 23-49
Resolution Of The City Council Of The City Of Emeryville Authorizing The City Manager To Execute The Amended And Restated Loan Agreement By And Between The City Of Emeryville And Evoy, L.P., An Affiliate Of Resources For Community Development, A California Nonprofit Public Benefit Corporation, For The Development Of Affordable Housing At 3600, 3610 And 3620 San Pablo Avenue, Increasing The Loan Amount By $12,247,486 To A Total Amount Not To Exceed $16,747,486 (CEQA Determination: Exempt Pursuant To California Government Code Section 8698.4(a)(4) And State CEQA Guidelines Sections 15268(a), 15269(c), 15332, And 15061(b)(3))
WHEREAS, on June 5, 2018, the voters in the City of Emeryville approved Measure C, which provides for the issuance of up to $50,000,000 in general obligation bonds for affordable housing programs in the City of Emeryville; and WHEREAS, on November 5, 2019, the City Council adopted Resolution No. 19-150, authorizing the City Manager to execute a $2,000,000 pre-development loan agreement with Resources for Community Development (“Developer”) to acquire 3600, 3610 and 3620 San Pablo Avenue (collectively herein referred to as the “Site”) and on November 22, 2019 the Developer entered into a Predevelopment Loan Agreement with the City to acquire the Site for affordable housing; and
WHEREAS, Developer requested a zoning application be processed under Senate Bill (“SB”) 35 and Assembly Bill (“AB”) 1763 and on October 20, 2020 the Community Development Director approved the zoning application for a seven-story building with 89 affordable residential units and one resident manager’s unit, with ground floor commercial space (the “Project”); and
WHEREAS, on January 19, 2021, the City Council adopted Resolution No. 21-01, authorizing the commitment of an additional $14,747,486 in permanent financing for a total amount of $16,747,486 in loan funds committed to support the development of the Project; and
WHEREAS, on March 2, 2021, the City Council adopted Resolution No. 21-13 approving the Affordable Housing Bond Administration and Expenditure Plan (the “Expenditure Plan”), which includes the City’s commitment of $14,747,486 of additional funding for the Project; and
WHEREAS, on June 1, 2021, the City Council adopted Resolution No. 21-48, authorizing the execution of the First Amendment to Predevelopment Loan Agreement, providing an additional $1,500,000 for predevelopment expenses for the Project; and WHEREAS, on November 14, 2022, the City and Developer entered into that certain Second Amendment to Predevelopment Loan Agreement, extending the term of the agreement and modifying the development milestones for the Project; and DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E Resolution No. 23-49
3600 San Pablo Avenue Amended and Restated Loan Agreement City Council Meeting | April 18, 2023
WHEREAS, on December 16, 2022, the City and Developer entered into that certain Third Amendment to Predevelopment Loan Agreement, which provided an additional $1,000,000 for predevelopment expenses for the Project; and WHEREAS, Developer has assembled the necessary financing to proceed to construction of the Project; and
WHEREAS, Developer and City have negotiated the Amended and Restated Loan Agreement to implement the City’s commitment of permanent financing memorialized in Resolution No. 21-01; now, therefore, be it
RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute the Amended and Restated Loan Agreement increasing the loan amount by $12,247,486 to a total amount not to exceed $16,747,486 for development of the Project, in substantial form as attached hereto as Exhibit A, and be it further RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute any amendments to the Amended and Restated Loan Agreement as may be necessary to effectuate its purpose and as agreed upon by the City Manager and City Attorney provided such amendments do not materially increase the obligations of the City thereunder.
ADOPTED by the City Council of the City of Emeryville at a regular meeting held on Tuesday, April 18, 2023, by the following vote:
AYES:
5 Mayor Bauters, Vice Mayor Welch and Council Members Kaur, Mourra and Priforce
NOES: 0
ABSTAIN: 0
ABSENT: 0
ATTEST:
MAYOR
APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
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AMENDED AND RESTATED
LOAN AGREEMENT
by and between
THE CITY OF EMERYVILLE
and
EVOY, L.P.
(1048 36th Street and 3610 San Pablo Avenue)
Exhibit A
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND EXHIBITS 2
Section 1.1 Definitions.........................................................................................................2 Section 1.2 Exhibits. ............................................................................................................4 ARTICLE 2 LOAN PROVISIONS 4
Section 2.1 Loan. .................................................................................................................4 Section 2.2 Interest...............................................................................................................4 Section 2.3 Use of Funds. ....................................................................................................5 Section 2.4 Security. ............................................................................................................5 Section 2.5 Subordination....................................................................................................6 Section 2.6 Development Component Disbursement Requirements...................................7 Section 2.7 Conditions Precedent to Disbursement of Retention........................................8 Section 2.8 Repayment of the Loan.....................................................................................9 ARTICLE 3 DEVELOPER OBLIGATIONS 12
Section 3.1 Financing Plan. ...............................................................................................12 Section 3.2 Construction Contract. ....................................................................................13 Section 3.3 Construction Bonds.........................................................................................13 Section 3.4 Commencement of Construction. ...................................................................13 Section 3.5 Completion of Construction............................................................................13 Section 3.6 Construction Pursuant to Plans and Laws.......................................................14 Section 3.7 Construction Responsibilities. ........................................................................14 Section 3.8 Mechanics Liens, Stop Notices, and Notices of Completion..........................14 Section 3.9 Inspections. .....................................................................................................15 Section 3.10 Insurance.......................................................................................................15 Section 3.11 Management Plan..........................................................................................17 Section 3.12 Marketing Plan..............................................................................................17 Section 3.13 Supportive Services, Plan and Budget..........................................................17 Section 3.14 Transfers. ......................................................................................................18 Section 3.15 Non-Discrimination. .....................................................................................18 Section 3.16 Relocation. ....................................................................................................19 Section 3.17 Hazardous Materials. ....................................................................................19 Section 3.18 Maintenance and Damage.............................................................................21 Section 3.19 Reserve Accounts..........................................................................................22 Section 3.20 State Prevailing Wages. ................................................................................22 Section 3.21 Indemnification.............................................................................................24 Section 3.22 Covenants Regarding the Approved Financing. ...........................................24 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF DEVELOPER 24 Section 4.1 Representations and Warranties......................................................................24 ARTICLE 5 DEFAULT AND REMEDIES 26
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Section 5.1 Events of Default. ...........................................................................................26 Section 5.2 Remedies.........................................................................................................27 Section 5.3 Right of Contest. .............................................................................................28 Section 5.4 Remedies Cumulative. ....................................................................................28 ARTICLE 6 GENERAL PROVISIONS 29
Section 6.1 Relationship of Parties. ...................................................................................29 Section 6.2 No Claims. ......................................................................................................29 Section 6.3 Amendments. ..................................................................................................29 Section 6.4 Indemnification...............................................................................................29 Section 6.5 Non-Liability of City Officials, Employees and Agents. ...............................29 Section 6.6 No Third-Party Beneficiaries..........................................................................30 Section 6.7 Action by the City...........................................................................................30 Section 6.8 Waivers. ..........................................................................................................30 Section 6.9 Notices, Demands and Communications. .......................................................30 Section 6.10 Applicable Law and Venue...........................................................................31 Section 6.11 Parties Bound................................................................................................31 Section 6.12 Attorneys' Fees..............................................................................................31 Section 6.13 Severability. ..................................................................................................31 Section 6.14 Future City Actions.......................................................................................31 Section 6.15 Counterparts; Multiple Originals. .................................................................31 Exhibit A Legal Description of the Property
Exhibit B Development Milestones
Exhibit C Modification to Deed of Trust
Exhibit D Amended and Restated Note
Exhibit E Preliminary Financing Plan
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AMENDED AND RESTATED LOAN AGREEMENT
(1048 36th Street/3610 San Pablo Avenue)
This Amended and Restated Loan Agreement (the "Agreement") is entered into as of __________________, 2023 (the "Effective Date"), by and between the City of Emeryville, a municipal corporation (the "City") and Evoy, L.P., a California limited partnership, (the "Developer"), with reference to the following facts, purposes and intentions.
RECITALS
A. These recitals ("Recitals") refer to and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The parties intend to refer to those definitions in connection with the use of capitalized terms in these Recitals.
B. Developer intends to develop (i) no fewer than ninety (90) affordable residential units (including one (1) unrestricted manager’s unit); and (ii) an approximately five thousand nine hundred (5,900) square foot ground floor commercial space to be used to provide food security services (the "Development" or the "Improvements") on certain real property located at 1048 36th Street and 3610 San Pablo Avenue in the City of Emeryville, California, more particularly described in Exhibit A attached (the "Property").
C. The Property consists of three parcels of property, previously owned by a single, private owner. On August 1, 2019, after the Property fell into foreclosure, the bankruptcy court approved of a purchase agreement between the private owner and Developer. Developer acquired the Property on December 8, 2019 in accordance with the purchase agreement.
D. Developer requested that the City provide Developer financial assistance to acquire the Property.
E. Pursuant to that certain Predevelopment Loan Agreement dated as of November 22, 2019 which was subsequently amended on June 23, 2021, November 14, 2022 and December 16, 2022, to increase the Loan amount to Four Million Five Hundred Thousand Dollars ($4,500,000) (the "Predevelopment Loan") from the City’s Capital Improvement Fund to fund the acquisition of the Property and predevelopment costs. The Predevelopment Loan is evidenced by a promissory note (the "Predevelopment Note") and is secured by a deed of trust on the Property, more particularly described in Exhibit C attached (the "Predevelopment Deed of Trust").
F. Developer has now requested that the City provided additional financial assistance to the Development in the amount of Twelve Thousand Two Hundred Forty Seven Thousand Four Hundred Eighty Six Dollars ($12,247,486) ("Additional Loan Funds") for a total loan amount of Sixteen Million Seven Hundred Forty Seven Thousand Four Hundred Eighty Six Dollars ($16,747,486) ("Loan") in the form of a permanent loan to be used for predevelopment and construction costs for the Development. The City has agreed to commit the Additional Loan Funds pursuant to the terms and conditions set forth in this Agreement.
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G. Developer, as additional security for the Predevelopment Loan, recorded that certain Regulatory Agreement against the Property dated as of November 22, 2019 for the benefit of the City that restricts occupancy of the Development to households with incomes between thirty-percent (30%) and eighty-percent (80%) of the area median income (the "AMI") with the average of all household incomes not exceeding sixty-percent (60%) of the AMI for seventy-five (75) years. Concurrently with entering into this Agreement, the Developer and the City intend to enter into an Amended and Restated Affordable Housing Agreement replacing the Regulatory Agreement.
H. Developer will lease the ground floor commercial space to Emeryville Citizens Assistance Program ("ECAP"), a community services organization that provides food to people who are experiencing homelessness or at risk of experiencing homelessness.
I. As more fully set forth in Section 6.14, this Agreement does not authorize the granting of the Land Use Approvals or the construction of the Development. Such actions may be authorized and will become possible only upon subsequent discretionary action of the City.
NOW, THEREFORE, in consideration of the Recitals hereof and the mutual promises and covenants set forth in this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided:
(a) "Additional Loan Funds" has the meaning set forth in Recital F. (b) "Affordable Housing Agreement" means the Amended and Restated Affordable Housing Agreement between the City and Developer dated of even date herewith which Affordable Housing Agreement is to be recorded in the Official Records of Alameda County.
(c) "Agreement" has the meaning set forth in the first paragraph of the Recitals.
(d) "City" has the meaning set forth in the first paragraph of the Recitals. (e) “Construction Lender” means Silicon Valley Bank, a division of First Citizens Bank and Trust.
(f) "Deed of Trust" means the Predevelopment Deed of Trust as modified by the Modification to the Deed of Trust.
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(g) "Default" has the meaning set forth in Section 5.1. (h) "Developer" has the meaning set forth in the first paragraph of the Recitals.
(i) "Development" has the meaning set forth in the Paragraph B of the Recitals.
(j) "Development Component" means the Loan Funds minus the Predevelopment Loan in the amount of Four Million Five Hundred Thousand Dollars ($4,500,000). The total amount of the Development Component is Twelve Million Two Hundred Forty-Seven Thousand Four Hundred Eight Six Dollars ($12,247,486) (k) "Effective Date" has the meaning set forth in the first paragraph of Recitals above.
(l) "Land Use Approvals" means the permits and approvals necessary for the development of the Development on the Property, including, but not limited to, overall design and architectural review and approval by the City and any other applicable government entity. (m) "Loan Documents" means this Amended and Restated Loan Agreement, the Amended and Restated Promissory Note, the Affordable Housing Agreement and the Predevelopment Deed of Trust as modified by the Modification to the Amendment to Deed of Trust as well as any other documents between the City and the Developer evidencing or securing the Loan.
(n) "Loss Payee" means the party entitled to an insurance claim payment. (o) "Note" means the Predevelopment Note as amended by the Amended and Restated Note.
(p) "Predevelopment Deed of Trust" has the meaning set forth in Paragraph E of the Recitals.
(q) "Predevelopment Loan" has the meaning set forth in Paragraph E of the Recitals.
(r) "Predevelopment Loan Documents" means the Predevelopment Loan Agreement, the Predevelopment Note, the Regulatory Agreement, and the Predevelopment Deed of Trust.
(s) "Predevelopment Note" has the meaning set forth in Section E of the Recitals.
(t) "Property" has the meaning set forth in Paragraph B of the Recitals.
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(u) "Retention Amount" means five percent (5%) of the Development Component of the Loan which amount will be retained by the City until the disbursement conditions set forth in Section 2.7 below are met.
(v) "Term" means the term of this Agreement, which shall commence on the Effective Date and shall terminate on the fifty-fifth (55th) anniversary of the date of the issuance of a certificate of occupancy or temporary certificate of occupancy for the Development. (w) "Transfer" has the meaning set forth in Section 3.15(a).
Section 1.2 Exhibits. The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A Legal Description of the Property
Exhibit B Development Milestones Schedules
Exhibit C Modification to Predevelopment Deed of Trust
Exhibit D Amended and Restated Note
Exhibit E Approved Financing Plan
ARTICLE 2
LOAN PROVISIONS
Section 2.1 Loan. Subject to satisfaction of the conditions set forth in Section 2.6, 2.7 and 2.8, the City shall lend to Developer the principal sum not to exceed Sixteen Million Seven Hundred Forty Seven Thousand Four Hundred Eighty Six Dollars ($16,747,486) for the purposes set forth in Section 2.3 of this Agreement. The Loan shall be evidenced by the Note substantially in a form attached as Exhibit D, which shall be executed by Developer concurrently herewith. The Developer acknowledges that the Four Million Five Hundred Thousand Dollars ($4,500,000) Predevelopment Loan has been fully disbursed to the Developer as of the date of this Agreement.
Section 2.2 Interest.
(a) Subject to the provisions of Section 2.2(b) below, the outstanding principal balance of the Loan shall bear simple interest at the rate of three percent (3%) per annum commencing with the date of first disbursement.
(b) In the event of a Default, interest on the Loan shall begin to accrue, as of the date of Default and continue until such time as the Loan funds are repaid in full or the DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 5
Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
Section 2.3 Use of Funds. Proceeds of the Loan may be used only for the acquisition of the Property, predevelopment and development costs associated with the Development unless the City Manager approves in writing a different use of the funds.
Section 2.4 Security. As security for the Loan, and as part of the consideration for entering into this Agreement, Developer agrees to the following:
(a) Developer grants to the City a valid, continuing security interest in all presently existing and hereafter acquired or arising collateral in order to secure prompt, full and complete payment of any and all obligations to the City under this Agreement and in order to secure prompt, full and complete performance by Developer of each of its covenants and duties under each of the Loan Documents (the "Assignment Agreement"). Collateral includes all rights, title, interest, claims and demands of Developer in and to the collateral documents, including contract rights and general intangibles, now existing or hereafter arising; and all amendments, substitutions for, and proceeds thereof, including, without limitation, insurance and similar payments (the "Collateral"). Collateral documents include all contracts, architectural and engineering plans and specifications, reports, approvals, and any other information related to the development of the Property obtained by Developer (the "Collateral Documents"). The Assignment Agreement will become effective upon an uncured event of Default of Developer as defined in Section 5.1, or upon termination of this Agreement. The City will not have any obligation under any Collateral Document assigned until it expressly agrees in writing to be bound by such contracts or agreements. Upon an event of Default that has not been cured pursuant to this Agreement or termination of this Agreement, the City may use any of the foregoing assigned Collateral Documents for any purpose for which Developer could have used them for development of the Property, and Developer shall cooperate with the City to implement the Assignment Agreement and immediately deposit with the City, for the City's use, all the Collateral Documents;
(b) Developer previously executed and recorded on the Property the Predevelopment Deed of Trust. As a condition to any further disbursement of the Loan, the Developer shall execute and record on the Property the Modification to the Deed of Trust substantially in the form of Exhibit D attached hereto; (c) Developer has previously executed and recorded the Regulatory Agreement. As a condition of any further disbursement of the Loan, the Developer shall execute and record on the Property the Affordable Housing Agreement; and (d) The Loan shall be nonrecourse. Developer shall not have any personal liability for payment of the principal of, and interest on, the Loan. The sole recourse of the City with respect to the principal of, or interest on, the Note will be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability limits or impairs the enforcement of all the rights and remedies of the City against all such security for the Note, or impairs the right of City to assert the unpaid principal amount of the Note as demand for money within the meaning and intent of Section 431.70 of the California DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 6
Code of Civil Procedure or any successor provision thereto. The foregoing limitation of liability is intended to apply only to the obligation to repay the principal and interest on the Note. Except as hereafter set forth; nothing contained herein is intended to relieve Developer of its obligation to indemnify the City under Sections 3.16, 3.17, 3.21 and 6.4 of this Agreement, or liability for (i) loss or damage of any kind resulting from waste, fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Developer other than in accordance with the Deed of Trust; and (iv) the misappropriation of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Property.
Section 2.5 Subordination.
(a) City shall not subordinate the Affordable Housing Agreement to other private lenders. The City may subordinate the Deed of Trust to financing approved by the City (in each case, a "Senior Lien"), but only on condition that all of the following conditions are satisfied:
(1) The conditions of the subordination agreement are negotiated prior to the closing of the loans secured by the Senior Liens. (2) All of the proceeds of the proposed Senior Lien, less any transaction costs, must be used to provide acquisition, construction and/or permanent financing for the Development.
(3) The proposed lender (each, a "Senior Lender") must be a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with Developer or any of Developer's affiliates, other than as a depositor or a lender. (4) Developer must demonstrate to the City's reasonable satisfaction that subordination of the Deed of Trust is necessary to secure adequate acquisition, construction, and/or permanent financing to ensure the viability of the Development, including the operation of the Development as affordable housing, as required by the Loan Documents. To satisfy this requirement, Developer must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Loan is necessary to provide adequate acquisition, construction, and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination.
(5) The subordination agreement(s) must be structured to minimize the risk that the Deed of Trust would be extinguished as a result of a foreclosure by the Senior Lender or other holder of the Senior Lien. To satisfy this requirement, the subordination agreement must provide the City with adequate rights to cure any defaults by Developer, including: (i) providing the City or its successor with copies of any notices of default at the same time and in the same manner as provided to Developer; (ii) providing the City with a cure period DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 7
of at least one hundred twenty (120) days to cure any default; and (iii) providing the City with the right to ensure that the Project attributes will be maintained to agreed upon standards. (6) The subordination(s) described in this Section 2.5 may be effective only during the original term of the Senior Loan and any extension of its term approved in writing by the City.
(7) No subordination may limit the effect of the Deed of Trust before a foreclosure, nor require consent of the holder of the Senior Loan to exercise of any remedies by the City under the Loan Documents.
(8) Upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager or his/her designee will be authorized to execute the approved subordination agreement without the necessity of any further action or approval.
(b) Notwithstanding this Section 2.5(a) herein, the City previously agreed to subordinate the Predevelopment Deed of Trust to the preapproved one-million-dollar ($1,000,000) loan from Housing Trust Silicon Valley.
Section 2.6 Development Component Disbursement Requirements. The maximum amount of funds to be disbursed pursuant to this Section shall not exceed the amount of the Development Component less the Retention Amount. The City shall not be obligated to make any disbursements of Loan funds for the Development Component unless the following conditions precedent are satisfied prior to each such disbursement of Loan funds:
(a) There exists no Default nor any act, failure, omission, or condition that would constitute an event of Default under this Agreement or any of the Loan Documents;
(b) The Developer has furnished the City with evidence of insurance coverage meeting the requirements of Section 3.11 below;
(c) The Developer has caused to be executed and delivered to the City all Loan Documents and any other instruments and policies required under the Loan Documents; (d) The Deed of Trust and the Affordable Housing Agreement have been recorded against the Property in the Office of the Recorder of the County of Alameda; (e) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing a 2021 ALTA Lender's Policy of title insurance insuring the priority of the Deed of Trust in the amount of the Loan, subject only to such exceptions and exclusions as may be reasonably acceptable to the City, and containing such endorsements as the City may reasonably require. The Developer shall provide whatever documentation (including an indemnification agreement), deposits or surety is reasonably required by the title company in order for the City's Deed of Trust to be senior in lien priority to any mechanics liens in connection with any early start of construction;
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(f) The City has determined that the undisbursed proceeds of the Loan, together with other funds or firm commitments for funds that the Developer has obtained in connection with the Development, are not less than the amount that is necessary to pay for development of the Improvements and to satisfy all of the covenants contained in this Agreement and the Loan Documents;
(g) The Developer has executed, and the City has approved, the Partnership Agreement governing the operation and organization of the Partnership; (h) The Developer has obtained all permits and approvals necessary for the construction of the Improvements and the City has received a copy of the building permits required to construct the Improvements;
(i) The City in its capacity as the lender and not in its regulatory capacity has received and approved the final plans and specifications for the Improvements; (j) The City has received and approved the general contractor's construction contract that the Developer has entered or proposed to enter for construction of the Improvements as required pursuant to Section 3.3 below; (k) The City has received copies of labor and material (payment) bonds and performance bonds as required pursuant to Section 3.4 below; (l) The Developer has closed the construction financing identified in the Approved Financing Plan approved by the City and is eligible to receive the proceeds thereof. (m) The City has received a written draw request from the Developer, including certification that the condition set forth in Section 2.6(b) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Approved Financing Plan, the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by (i) certification by the Developer's architect reasonably acceptable to the City that the work for which disbursement is requested has been completed (although the City reserves the right to inspect the Property and make an independent evaluation); and (ii) lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City.
Section 2.7 Conditions Precedent to Disbursement of Retention. The City shall not be obligated to disburse the Retention Amount unless the following conditions precedent are satisfied:
(a) The City has received from the Developer all relevant contract activity information, including compliance with the City's Living Wage, Prevailing Wage and Minimum Wage and Paid Sick Leave requirements.
(b) The City has received from the Developer copies of the final certificate of occupancy for the Development.
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(c) The City has received its LP-10 ALTA loan policy and, if requested by the City, unconditional lien releases and final payment certification. (d) The City has received the final construction inspection report from the Construction Lender’s inspector.
(e) The City has received from the Developer and approved a final Management Plan in accordance with Section 3.12 for the Development. (f) The City has received from the Developer and approved a form of lease and Marketing Plan in accordance with Section 3.13 for the Development at least 180 days prior to completion of construction.
(g) The City has received from the Developer, at least 180 days prior to completion of construction, evidence of marketing for any vacant units in the Development such as copies of flyers, list of media ads, list of agencies and organizations receiving information on availability of units, as applicable.
(h) The City has received from the Developer the Supportive Services Plan and Resident Services Budget in accordance with Section 3.14. (i) The City has received from the Developer all certified payrolls demonstrating compliance with the Prevailing Wage requirements, and any identified payment issues have been resolved, or the Developer is working diligently to resolve any such issues. (j) The City has received for the Developer current evidence of the insurance coverage meeting the requirements of Section 3.11 below. (k) The City has received a written draw request from the Developer, including certification that the condition set forth in Section 2.7(a) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Approved Financing Plan, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. The Developer shall apply the disbursement for the purpose(s) requested.
Section 2.8 Repayment of the Loan.
The Loan shall be repaid as follows:
(a) Annual Payments. Commencing on July 1 following the first full calendar year after the issuance of the certificate of occupancy for the Development and on July 1 of each calendar year thereafter through the end of the Term, and subject to Section 2.8(c) below, the Developer shall make repayments of the Loan equal to the City Share of Residual Receipts (as defined in Section 2.8(d) below). Payments made shall be credited first against accrued interest and then against outstanding principal. The Developer shall provide the City with any documentation reasonably requested by the City to substantiate the Developer's determination of Residual Receipts. The Developer may retain twenty five percent (25%) of Residual Receipts.
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(b) Payment in Full. All principal and accrued interest on the Loan shall be due in full on the earlier to occur of (i) the date of any Transfer not authorized by the City, (ii) the date of any Default, and (iii) the expiration of the Term. (c) Prepayment. The Developer shall have the right to prepay the Loan at any time without premium or penalty. However, the Affordable Housing Agreement shall remain in effect for the entire Term, regardless of any prepayment. (d) Special Definitions. Except as otherwise noted, the following definitions shall apply for purposes of this Section:
(1)"Annual Operating Expenses" means with respect to a particular calendar year the following costs reasonably and actually incurred for operation and maintenance of the Development to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles.
Annual Operating Expenses shall not include the following: depreciation, amortization, depletion or other non-cash expenses; any amount expended from a reserve account; payment of any deferred management fees to the extent payable from cash flow:
(A) property taxes and assessments imposed on the
Development;
(B) debt service currently due on a non-optional basis
(excluding debt service due from residual receipts or surplus cash of the Development) on loans approved by the City;
(C) property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry and pursuant to a management contract approved by the City;
(D) premiums for property damage and liability insurance; (E) utility services not paid for directly by tenants, including water, sewer, and trash collection;
(F) maintenance and repair;
(G) Any costs associated with the management and operation of the Commercial Space;
(H) any annual license or certificate of occupancy fees required for operation of the Development;
(I) security services;
(J) advertising and marketing;
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(K) fees for resident services in the annual amount approved by the City in the Resident Services Budget;
(L) cash deposited into the Replacement Reserve Account in an amount not to exceed six hundred dollars ($600) per unit per year unless required by the Permanent Lenders;
(M) cash deposited into the Operating Reserve Account in accordance with Section 3.19 below. The Developer may apply all or a portion of capitalized operating reserves funded during development to satisfy this requirement; (N) cash deposited into any other reserve accounts as required by Permanent Lenders and as approved by the City;
(O) payment of any previously unpaid portion of the
development fee (without interest);
(P) extraordinary operating costs specifically approved in writing by the City;
(Q) Partnership management fee payable to the general partner in the annual amount in accordance with the Approved Financing Plan, increasing by 3% per annum, which fee shall accrue if not paid in a given year and be paid in subsequent years. (2) “City’s Additional Share of Residual Receipts” shall mean twentyfive percent (25%) of the Residual Receipts. (3) "City Share of Residual Receipts" shall mean the City's Pro Rata Share of the Lenders' Share of Residual Receipts plus the City’s Additional Share of Residual Receipts. The "Pro Rata Share" shall be determined by calculating the percentage resulting from dividing the amount of the Loan funds disbursed to the Developer in accordance with this Agreement, by the total of the Loan funds plus the amount of any other loans that are to be repaid from Residual Receipts.
(4) "Gross Revenue" means with respect to a particular calendar year all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development or Property. Gross Revenue does not include tenants' security deposits, loan proceeds, capital contributions, or similar advances. Gross Revenue shall include, but not be limited to:
(A) all rents, fees and charges paid by tenants;
(B) Section 8, or other rental subsidy payments received for the dwelling units;
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(C)All withdrawals from the capitalized operating subsidy reserve (“COSR”)
(D) deposits forfeited by tenants;
(E) all cancellation fees;
(F) price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income; (G) proceeds from vending and laundry room machines;
(H) the proceeds of business interruption or similar insurance; (I) subject to the rights of Senior Lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Development (or applied toward the cost of recovering such proceeds); and
(J) subject to the rights of Senior Lenders, condemnation awards for a taking of part of all of the Development for a temporary period. (5) "Lenders' Share of Residual Receipts" shall mean fifty percent (50%) of Residual Receipts.
(6) "Residual Receipts" shall mean in a particular calendar year the amount by which Gross Revenue exceeds Annual Operating Expenses.
ARTICLE 3
DEVELOPER OBLIGATIONS
Section 3.1 Financing Plan. The Developer’s plan for the financing of the Development (“Approved Financing Plan”) is attached hereto as Exhibit E and incorporated herein. The Approved Financing Plan includes the Loan, financing from the State of California pursuant to the No Place Like Home program, the Affordable Housing and Sustainable Communities program and the Housing Accelerator program, financing from private construction loans, and potential Developer deferral of a portion of its development fee. All financing necessary for the construction of the Development, as approved by the City in the Approved Financing Plan (not including permanent financing), shall be closed by the Developer prior to, or simultaneously with, the disbursement of any portion of the Development Component of the Loan. In the event the Developer obtains additional sources of financing, Developer shall provide the City with an updated Financing Plan showing such sources for the City approval which the City shall grant or deny within thirty (30) days of receipt of such updated Financing Plan. If the City approves any such additional sources of funds, the updated Financing Plan shall DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 13
become the Approved Financing Plan and shall be substituted for the then existing Approved Financing Plan.
Section 3.2 Construction Contract.
(a) Not later than ten (10) days prior to the proposed commencement of the construction of the Improvements, the Developer shall submit to the City for its approval the proposed construction contract for the Development. All construction work and professional services shall be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California. Each contract that the Developer enters for construction of the Improvements shall provide that at least five percent (5%) of the costs incurred shall be payable only upon completion of construction, subject to early release of retention for specified subcontractors upon approval by the City. The construction contract shall include the City's Living Wage, Prevailing Wage and Minimum Wage and Paid Sick Leave requirements. The City's approval of the construction contract shall in no way be deemed to constitute approval of or concurrence with any term or condition of the construction contract except as such term or condition may be required by this Agreement. (b) The City shall, if the construction contract submitted conforms to the provisions of this Agreement, approve the construction contract. Unless rejected by the City for its failure to comply with the foregoing requirements within ten (10) working days after receipt by the City, said construction contract shall be deemed accepted. If the construction contract is not approved by the City, the City shall set forth in writing and notify the Developer of the City's reasons for withholding such approval. The Developer shall thereafter submit a revised construction contract for City approval, which approval shall be granted or denied in ten (10) working days in accordance with the procedures set forth above. Any construction contract executed by the Developer for the Improvements shall be in the form approved by the City.
Section 3.3 Construction Bonds.
Prior to commencement of the construction of the Improvements, the Developer shall deliver, or cause the general contractor to deliver, to the City copies of labor and material bonds and performance bonds for the construction of the Improvements in an amount equal to one hundred percent (100%) of the scheduled cost of the Improvements. Such bonds shall name the City as a co-obligee.
Section 3.4 Commencement of Construction.
The Developer shall cause the commencement of the construction of the Improvements, as evidenced by the issuance of a notice to proceed, no later than the date set forth in the Development Milestone Schedule, or such later date that the City may approve in writing.
Section 3.5 Completion of Construction.
The Developer shall diligently prosecute construction of the Improvements to completion, and shall cause the completion of the construction of the Improvements no later than 24 months after commencement of construction, or such later date that the City may approve.
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Completion of construction of the Improvements shall be evidenced by a temporary certificate of occupancy for the residential portion of the Improvements.
Section 3.6 Construction Pursuant to Plans and Laws.
The Developer shall construct the Development in conformance with the plans and specifications approved by the City Building Department. During the course of construction, the Developer shall submit to the City for its approval all disbursements requests for construction funding regardless of whether the Developer is requesting disbursements from the City. The Developer shall notify the City in a timely manner of any changes in the work required to be performed under this Agreement, including any additions, changes, or deletions to the plans and specifications approved by the City. A written change order authorized by the City Manager or his or her designee must be obtained before any of the following changes, additions, or deletions in work for the Development may be performed: (i) any change in the work the cost of which exceeds Fifty Thousand Dollars ($50,000); or (ii) any set of changes in the work the cost of which cumulatively exceeds Two Hundred Thousand Dollars ($200,000); or (iii) any material change in building materials or equipment, specifications, or the structural or architectural design or appearance of the Development as provided for in the plans and specifications approved by the City Building Department. Consent to any additions, changes, or deletions to the work shall not relieve or release the Developer from any other obligations under this Agreement or relieve or release the Developer or its surety from any surety bond.
Section 3.7 Construction Responsibilities.
(a) It shall be the responsibility of the Developer to coordinate and schedule the work to be performed so that commencement and completion of the construction of the Improvements will take place in accordance with this Agreement. (b) The Developer shall be solely responsible for all aspects of the Developer's conduct in connection with the Development, including (but not limited to) the quality and suitability of the plans and specifications, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Development is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Improvements.
Section 3.8 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or a stop notice affecting the Loan is served on the City or any other lender or other third party in connection with the Development, then the Developer shall, within thirty (30) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a surety bond in sufficient form and amount, or provide the City with other assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged.
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(b) If the Developer fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section, then in addition to any other right or remedy, the City may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at the Developer's expense. Alternately, the City may require the Developer to immediately deposit with the City the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against the Developer.
(c) The Developer shall file a valid notice of cessation or notice of completion upon cessation of construction on the Development for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims of lien against the Property. The Developer authorizes the City, but without any obligation, to record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Development and Property.
Section 3.9 Inspections.
(a) The Developer shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Development by the City and by public authorities during reasonable business hours for the purposes of determining compliance with this Agreement.
(b) Developer shall provide to the City the inspection reports prepared by the Construction Lender immediately upon receipt. The City shall be invited to all construction draw meetings and shall have an opportunity to comment on all inspections reports. Developer shall work with its Construction Lender to provide the City access to construction reports and to address any questions or concerns the City has regarding such reports.
Section 3.10 Insurance. Developer shall maintain and keep in force, at Developer's sole cost and expense, the following insurance applicable to the Development in a form acceptable to the City with evidence of such coverage provided to the City within ten (10) days of execution of this Agreement, but in no event later than the initial disbursement of Predevelopment Loan funds pursuant to this Agreement:
(a) Workers' Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident.
(b) Commercial General Liability insurance with limits not less than Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverage for Contractual Liability, Personal Injury, Broadform Property Damage, and Products and Completed Operations. (c) Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverage for owned, non-owned and hired vehicles, as applicable; DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 16
provided, however, that if Developer does not own or lease vehicles for purposes of this Agreement, then no automobile insurance shall be required. (d) Property insurance, including during the course of construction builder's risk insurance, covering the Development, in form appropriate for the nature of such property, covering all risks of loss, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. Flood insurance shall be obtained if required by applicable federal regulations. (e) For any design professionals working on the Development, errors and omission coverage in a minimum amount of One Million Dollars ($1,000,000). (f) Developer shall cause any general contractor or subcontractor working on the Development under direct contract with Developer or subcontract, to maintain insurance of the types and in at least the minimum amounts described in subsections (a), (b), and (c) above, except that the limit of liability for commercial general liability insurance for subcontractors shall be One Million Dollars ($1,000,000), and shall require that such insurance shall meet all of the general requirements of subsections (g), (h), and (i) below. (g) The required insurance shall be provided under an occurrence form, and Developer shall maintain such coverage continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be three (3) times the occurrence limits specified above. (h) Commercial General Liability and Comprehensive Automobile Liability insurance policies shall be endorsed to name as an additional insured the City, and its officers, agents, employees, and members of the City Council.
(i) All policies and bonds shall contain (a) the agreement of the insurer to give the City at least thirty (30) days' notice prior to cancellation (including, without limitation, for nonpayment of premium) or any material change in said policies; (b) an agreement that such policies are primary and noncontributing with any insurance that may be carried by the City; (c) a provision that no act or omission of Developer shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (d) a waiver by the insurer of all rights of subrogation against the City and its authorized parties in connection with any loss or damage thereby insured against.
(j) If in connection with the use of the Loan funds, death, serious personal injury, or substantial property damage occurs, Developer shall immediately notify the City.
Developer shall promptly submit to the City a written report, in such form as may be required by the City, of all accidents which occur in connection with this Agreement. This report shall include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Developer's contractor or subcontractor, if any; (3) name and address of Developer's liability insurance carrier; and (4) a detailed description of the accident and whether any of the City's equipment, tools or material were involved.
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Section 3.11 Management Plan.
(a) No later than six (6) months prior to the projected date of the completion of the Improvements, the Developer shall submit to the City for approval its plan for management of the Development including without limitation, the tenants certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security (the "Management Plan"). The Management Plan shall include Developer's proposed management agent for the Development. The City hereby approves The John Stewart Company as the initial management agent for the Development.
(b) Upon receipt of the Management Plan, the City shall promptly review the Management Plan and shall approve or disapprove it within thirty (30) days after submission. If the Management Plan is not approved, the Developer shall submit a revised Management Plan within thirty (30) days, and the City shall approve or disapprove it within fifteen (15) days after submission. If the City does not approve the revised Management Plan, the Developer shall be in default hereunder. If the City fails to approve or disapprove the Management Plan within thirty (30) days of submission, it shall be deemed approved. (c)The Developer shall submit to the City any updates or amendments to the Management Plan for the City approvals in accordance with this Section during the term of this Agreement.
Section 3.12 Marketing Plan.
(a) No later than one hundred twenty (120) days prior to the projected date of the completion of the Improvements, the Developer shall submit to the City for approval its plan for marketing the Development to income-eligible households, as required pursuant to the Affordable Housing Agreement, including information on affirmative marketing efforts and compliance with fair housing laws (the "Marketing Plan"). The Marketing Plan shall include the Developer's tenant selection and waiting list procedures that the Developer shall use in connection with the Units.
(b) Upon receipt of the Marketing Plan, the City shall promptly review the Marketing Plan and shall approve or disapprove it within thirty (30) days after submission. If the Marketing Plan is not approved, the Developer shall submit a revised Marketing Plan within thirty (30) days, and the City shall approve or disapprove it within fifteen (15) days after submission. If the City does not approve the revised Marketing Plan, the Developer shall be in default hereunder. If the City fails to approve or disapprove the Marketing Plan within thirty (30) days of submission it shall be deemed approved.
(c) Developer shall submit to the City updates to the Marketing Plan annually as part of the Annual Report required by the Affordable Housing Agreement.
Section 3.13 Supportive Services, Plan and Budget.
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(a) No later than six (6) months prior to the projected date of the completion of the Improvements, the Developer shall submit to the City a Supportive Services Plan and Resident Services Budget for the initial year of operation of the Development.
(b) Upon receipt by the City of the proposed Supportive Services Plan and Resident Services Budget, the City shall promptly review the same and approve or disapprove it within thirty (30) days, provided that such approval shall not be unreasonably denied. If the Supportive Services Plan and/or Resident Services Budget are not approved by the City, the City shall set forth in writing and notify the Developer of the City's reasons for withholding such approval, which may include a request by the City for a change in the nature or scope of resident services or a change in service provider. The Developer shall thereafter submit a revised Supportive Services Plan and/or Resident Services Budget for City approval within thirty (30) days of such disapproval and the City shall approve or disapprove the submittal within fifteen (15) days of submission. If the City does not approve the revised Supportive Service Plan, the Developer shall be in default hereunder.
(c) The Developer shall thereafter submit to the City updates to the Supportive Services Plan and Resident Services Budget at least every five years during the term of this Agreement. The City shall approve or disapprove the updated within thirty (30) days of receipt.
Section 3.14 Transfers.
(a) For purposes of this Agreement, "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of (i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest including any mortgages or deeds of trust, or an interest evidenced by a land contract by which possession of the Development is transferred and Developer retains title. (b) Except for the leasing of residential units in the ordinary course of business and the commercial space to ECAP, no Transfer shall be permitted without the prior written consent of the City, which the City may withhold in its sole discretion. The Loan shall automatically accelerate and be due in full upon any unauthorized Transfer. (c) The City hereby approves future Transfers of the limited partner interest in the Partnership provided that in subsequent Transfers, a wholly owned affiliate of the initial limited partner retains a membership or partnership interest and serves as a managing member or managing general partner of the successor limited partner. The City also hereby approves future Transfers of the limited partner interest in the Partnership to the sole member of the Partnership's general partner or any entity affiliated with the sole member of the Partnership's general partner.
(d) The City approves the grant of the security interests required to secure financing that is part of the Approved Financing Plan.
Section 3.15 Non-Discrimination. Developer covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, disability, sex, sexual orientation, DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 19
marital status, familial status, ancestry, veterans status, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Development, nor shall Developer or 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, lessees, subtenants, sublessees or vendees in the Development.
Section 3.16 Relocation. If and to the extent that development of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then Developer shall comply with all applicable state statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. If temporary or permanent relocation of residential tenants, homeowners, or businesses is required, Developer shall prepare and submit a relocation plan to the City for approval. Developer is solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. Developer shall indemnify, defend (with counsel reasonably chosen by the City), and hold harmless the City against all claims that arise out of relocation obligations to residential tenants, homeowners, or businesses permanently or temporarily displaced by the Development.
Section 3.17 Hazardous Materials.
(a) Developer shall keep and maintain the Property in compliance with and shall not cause or permit the Property to be in violation of any Hazardous Materials Law (defined below), including but not limited to, soil and ground water conditions. Developer shall not shall not cause or permit the use, generation, manufacture, storage or disposal of on, under, or about the Property or transportation to or from the Property of (i) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical, and (ii) any waste, substance or material defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "toxic materials", "toxic waste", "toxic substances," or words of similar import under any Hazardous Materials Law (collectively referred to hereinafter as "Hazardous Materials"). Developer shall cause the tenants and other persons who may come onto the Property to comply with the foregoing.
(b) Developer shall immediately notify the City in writing if at any time it has any notice of (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Developer, the tenants, or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene, environmental conditions, or the regulation or protection of the environment, and all amendments thereto as of this date and to be added in the future and any successor statute or rule or regulation promulgated thereto ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party against Developer, the tenants, or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as "Hazardous Materials Claims"); and (iii) Developer's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law including but not DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 20
limited to the provisions of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith.
(c) The City shall have the right to join and participate in, as a party if it so elects, and be represented by counsel of its own choice in, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims, and to have its reasonable attorneys' fees in connection therewith paid by Developer. (d) Developer shall indemnify and hold harmless the City and its councilmembers, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or liability, directly or indirectly arising out of or attributable to: (i) any actual or past or present violation of any Hazardous Materials Law; (ii) any Hazardous Materials Claim; (iii) any actual or past or present use, generation, manufacture, storage, release, threatened release, discharge, disposal, transportation, or presence of Hazardous Materials on, under, or about the Property; (iv) any investigation, cleanup, remediation, removal, or restoration work of site conditions of the Property relating to Hazardous Materials (whether on the Property or any other property); and (v) the breach of any representation of warranty by or covenant of Developer in this Section 3.9.
Such indemnity shall include, without limitation: (x) all consequential damages; (y) the costs of any required or necessary investigation, repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (z) all reasonable costs and expenses incurred by the City in connection with clauses (x) and (y), including but not limited to reasonable attorneys' fees and consultant fees. This obligation to indemnify shall survive termination of this Agreement and shall not be diminished or affected in any respect as a result of any notice, disclosure, knowledge, if any, to or by the City of Hazardous Materials.
(e) Without the City's prior written consent, which shall not be unreasonably withheld, Developer shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any claims made or threatened by any third party against Developer, any tenant, or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials, which remedial action, settlement, consent decree or compromise might, in the City's reasonable judgment, impair the value of the City's security hereunder; provided, however, that the City's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City's consent before taking such action, provided that in such event Developer shall notify the City as soon as practicable of any action so taken. The City agrees not to withhold its consent, where such consent is required hereunder, if either (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Developer will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Developer establishes to the reasonable satisfaction of the City that there is no reasonable alternative to such remedial action which would result in less impairment of the City's security hereunder; or (iv) the action has been agreed to by the City. The City hereby gives its consent to the remedial action to be undertaken by the Developer pursuant to the Response Plan prepared DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 21
by the Developer and approved by the California Department of Toxic Substances Control and the installation of a sub-slab vapor barrier as part of the construction of the Development. (f) Developer hereby acknowledges and agrees that (i) this Section is intended as the City's written request for information (and Developer's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736. (g) In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the City's or the trustee's rights and remedies under the Deed of Trust, the City may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (i) waive its lien on such environmentally impaired or affected portion of the Property and (ii) exercise (1) the rights and remedies of an unsecured creditor, including reduction of its claim against Developer to judgment, and (2) any other rights and remedies permitted by law. For purposes of determining the City right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), Developer shall be deemed to have willfully permitted or acquiesced in a release or threatened release of Hazardous Materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and Developer knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the City in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the rate specified in the Note until paid, shall be added to the indebtedness secured by the Deed of Trust and shall be due and payable to the City upon its demand made at any time following the conclusion of such action.
Section 3.18 Maintenance and Damage.
(a) Developer shall maintain and cause any tenant to maintain the Property and any improvements in good repair and in a neat, clean, and orderly condition. If there arises a condition in contravention of this requirement, and if Developer has not cured such condition within thirty (30) days after receiving a notice from the City of such a condition, then in addition to any other rights available to the City, the City shall have the right to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property.
(b) If any improvement constructed on the Property by Developer, now or in the future, is damaged or destroyed, then Developer shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with any plans and specifications approved by the City. Such work or repair shall be commenced no later than the later of one DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 22
hundred twenty (120) days, or such longer period approved by the City in writing, after the damage or loss occurs or thirty (30) days following receipt of the insurance proceeds, and shall be complete within one (1) year thereafter, unless a longer period is approved by the City in writing. Any insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, then Developer shall make up the deficiency.
Section 3.19 Reserve Accounts.
(a) Replacement Reserve Account. Developer shall establish and maintain an account that is available for capital expenditures for repairs and replacement necessary to maintain the Development in the condition required by the Loan Documents (the "Replacement Reserve Account"). Developer shall make annual deposits to the Replacement Reserve Account and replenish the Replacement Reserve Account in the amount of Five Hundred Dollars ($500) per unit per annum deposited in the Replacement Reserve Account. Developer shall prepare a physical needs assessment of the Development at least once every seven (7) years after the issuance of the Certificate of Occupancy and shall provide a copy of the physical needs assessment to the City. If, on the basis of such physical needs assessment, the City determines that the Replacement Reserves needs to be increased to ensure that the Development continues to be well maintained, the Developer shall increase the amount deposited into the Replacement Reserve Account by the amount so agreed upon by the City and Developer. (b) Operating Reserve Account. Developer shall establish and maintain an account that is available to fund operating deficits (which is the amount by which Annual Operating Expenses exceed Gross Revenue for any period) (the "Operating Reserve Account").
Developer shall capitalize the Operating Reserve Account in the amount of three months of Annual Operating Expenses; provided, however that if the Partnership Agreement or the documents evidencing the Permanent Loan require the Operating Reserve Account to be capitalized and replenished in a greater amount, Developer shall capitalize and replenish the Operating Reserve Account as required by the Partnership Agreement or the documents evidencing the Permanent Loan, as applicable, for as long as the Partnership Agreement or the Permanent Loan, as applicable, is outstanding. In no event may the amount held in the Operating Reserve Account exceed six (6) months gross rent from the Development (as such rent may vary from time to time).
Section 3.20 State Prevailing Wages.
(a) Developer shall pay and shall cause any consultants or contractors to pay prevailing wages in the performance of the predevelopment activities and construction of any improvements on the Property as those wages are determined pursuant to Labor Code Sections 1720 et seq., to employ apprentices as required by Labor Code Sections 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the "DIR"). (b) Developer shall and shall cause the consultants and contractors to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seq., and implementing regulations of the DIR.
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(c) Developer shall and shall cause the consultants and contractors to keep and retain such records as are necessary to determine if such prevailing wages have been paid as required pursuant to Labor Code Sections 1720 et seq., and apprentices have been employed are required by Labor Code Sections 1777.5 et seq.
(d) During the performance of the predevelopment activities and construction of any improvements on the Property, Developer shall or shall cause the contractor to post at the Property the applicable prevailing rates of per diem wages. Copies of the currently applicable current per diem prevailing wages are available from DIR. (e) Developer shall cause its contractors and subcontractors performing the predevelopment activities and constructing any improvements on the Property to be registered as set forth in Labor Code Section 1725.5.
(f) Developer shall cause its respective contractors and subcontractors, in all calls for bids, bidding materials and the construction contract documents for performing the predevelopment activities, and constructing any improvements on the Property to specify that:
(1) No contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the performance of the predevelopment activities or construction of any improvements on the Property unless registered with the DIR pursuant to Labor Code Section 1725.5.
(2) The performance of the predevelopment activities and construction of any improvements on the Property are subject to compliance monitoring and enforcement by the DIR.
(A) Developer shall provide the City all information required by Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within 2 days of the award of any contract (https://www.dir.ca.gov/pwc100ext/). (B) Developer shall cause its contractors to post job site notices, as prescribed by regulation by the DIR.
(C) Developer shall cause its contractors to furnish payroll records required by Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner.
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Section 3.21 Indemnification. Developer shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Developer, its contractor and subcontractors): (i) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq., (ii) to employ apprentices pursuant to Labor Code Sections 1777.5 et seq., (iii) to meet the conditions of Labor Code Section 1771.4, and implementing regulations of the DIR, or (iv) to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seq., and 1771.4, and the implementing regulations of the DIR, in connection with the predevelopment activities or any other work undertaken or in connection with the Property. The requirements in this Subsection shall survive the repayment of the Loan, and the reconveyance of the Deed of Trust.
Section 3.22 Covenants Regarding the Approved Financing. (a) The Developer shall promptly pay the principal and interest when due on any loans obtained for the development and operation of the Development. (b) The Developer shall promptly notify the City in writing of the existence of any default under any documents evidencing the any financing obtained for the development and operation of the Development whether or not a default has been declared by the lender, and any defaults under the Partnership Agreement.
(c) The Developer shall promptly notify the City in writing of the existence of any Default under the Loan Documents.
(d) The Developer may not incur any indebtedness of any kind that is not identified in the Approved Financing Plan or encumber the Development with any liens (other than liens for financing in the Approved Financing Plan) without the prior written consent of the City.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Section 4.1 Representations and Warranties. Developer hereby represents and warrants to the City as follows and agrees that the representations and warranties set forth in this Article 4 shall be deemed to be continuing during all times when any or all of the Loan remains outstanding:
(a) Organization. Developer is duly organized, validly existing California nonprofit public benefit corporation and is in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted.
(b) Authority of Developer. Developer has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Loan Documents and all other documents or instruments DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 25
executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) Authority of Persons Executing Documents. This Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered by Developer, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Developer, and all actions required under Developer's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken (to the extent such actions are required as of the date of execution and delivery of the above-named documents).
(d) Valid Binding Agreements. This Agreement and the Loan Documents and all other documents or instruments which have been executed and delivered by Developer pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Developer enforceable by and against it in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the rights of creditors generally and general principles of equity.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the Loan Documents by Developer or of any other documents or instruments executed and delivered, or to be executed or delivered by Developer, pursuant to this Agreement, nor the performance by Developer of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on Developer, or any provision of the organizational documents of Developer, or will conflict with or constitute a breach of or a default under any agreement to which Developer is a party, or will result in the creation or imposition of any lien upon any assets or property of Developer, other than liens established pursuant hereto.
(f) Compliance with Laws; Consents and Approvals. The development of the Property will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
(g) Pending Proceedings. Developer is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Developer, threatened against or affecting Developer, or the Property, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Developer, materially and adversely affect Developer's ability to repay the Loan or impair the security to be given to the City pursuant hereto.
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(h) Title to Land. Developer has good and marketable fee title to the Property and there exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than those liens approved by the City, liens for current real property taxes and assessments not yet due and payable, and liens in favor of the City or approved in writing by the City.
(i) Financial Statements. The financial statements of Developer and other financial data and information furnished by Developer to the City fairly present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of Developer from that shown by such financial statements and other data and information.
ARTICLE 5
DEFAULT AND REMEDIES
Section 5.1 Events of Default. Each of the following shall constitute a "Default" by Developer under this Agreement:
(a) Failure to Make Payment. Failure by Developer to repay the principal and any interest on the Loan within ten (10) days of receipt of written notice from the City that such payment is due pursuant to the Loan Documents.
(b) Failure to Construct. Failure of the Developer to commence and complete construction of the Improvements within the times set forth in Article 3 above; (c) Breach of Covenants. Failure by Developer to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Loan Documents, and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to Developer or, if the breach cannot be cured within thirty (30) days, Developer shall not be in breach so long as Developer is diligently undertaking to cure such breach and such breach is cured within sixty (60) days; provided, however, that if a different period or notice requirement is specified under any other section of this Article 5, the specific provisions shall control.
(e) Default Under Other Loans. A default is declared under any other financing for the Development by the lender of such financing which remains uncured following any applicable notice and cure periods.
(d) Unauthorized Transfer. Any Transfer other than as permitted by Section
3.15. (e) Representation or Warranty Incorrect. Any representation or warranty of Developer contained in this Agreement, or in any application, financial statement, certificate, or report submitted in connection with any of the Loan Documents, proves to have been incorrect in any material and adverse respect when made.
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(f) Adverse Financial Condition. A material adverse change in Developer's financial condition, or an event or condition materially impairing Developer's intended use of the Property, or Developer's ability to repay the Loan occurs. (g) Other Obligations. Failure by Developer to make any payment or perform any of its other covenants, agreements, or obligations under any other agreement with respect to the Development.
(h) Insolvency. A decree or order by a court having jurisdiction (i) adjudging Developer to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Developer or seeking any arrangement for Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Developer in bankruptcy or insolvency or for any of their properties, (iv) directing the winding up or liquidation of Developer, if any such decree or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days; or (v) Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence of any of the events of Default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note.
(i) Assignment; Attachment. Assignment by Developer of its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note. (j) Suspension; Dissolution. Voluntarily suspension or dissolution by Developer of its business.
(k) Liens on Property and the Development. Any claim of lien (other than liens approved in writing by the City) filed against the Development, the Property, or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Loan and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the City. (l) Condemnation. The condemnation, seizure, or appropriation of all or the substantial part of the Property and the Development, except that condemnation by the City shall cause the Loan to accelerate but shall not be a Default.
Section 5.2 Remedies. The occurrence of any Default hereunder following the expiration of all applicable notice and cure periods will, either at the option of the City or DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 1828\13\3028075.6 28
automatically where so specified, relieve the City of any obligation to make or continue the Loan and shall give the City the right to proceed with any and all remedies set forth in this Agreement and the Loan Documents, including but not limited to the following:
(a) Acceleration of Note. The City shall have the right to cause all indebtedness of Developer to the City under this Agreement and the Note, together with any accrued interest thereon, to become immediately due and payable. Developer waives all right to presentment, demand, protest or notice of protest or dishonor. The City may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the City as a creditor and secured party under the law including the Uniform Commercial Code, including foreclosure under the Deed of Trust. Developer shall be liable to pay the City on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees and expenses) paid or incurred by the City in connection with the collection of the Loan and the preservation, maintenance, protection, sale, or other disposition of the security given for the Loan. (b) Assignment Agreement. The City shall have the right to exercise all rights under the Assignment Agreement.
(c) Specific Performance. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Developer to perform its obligations and covenants under the Loan Documents or to enjoin acts or things which may be unlawful or in violation of the provisions of the Loan Documents.
(d) Right to Cure at Developer's Expense. The City shall have the right (but not the obligation) to cure any monetary default by Developer under a loan other than the Loan.
Developer agrees to reimburse the City for any funds advanced by the City to cure a monetary default by Developer upon demand therefore, together with interest thereon at the lesser of the maximum rate permitted by law or ten percent (10%) per annum from the date of expenditure until the date of reimbursement.
Section 5.3 Right of Contest. Developer shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute a Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the City or the rights of the City hereunder.
Section 5.4 Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement or the Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Developer and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.
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ARTICLE 6
GENERAL PROVISIONS
Section 6.1 Relationship of Parties. Nothing contained in this Agreement shall be interpreted or understood by any of the parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and Developer or Developer's agents, employees or contractors, and Developer shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement for the development of the Development. Regarding the development of the Development, Developer shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each contract that contractors shall be solely responsible for similar matters relating to their employees. Developer agrees to be solely responsible for its own acts and those of its agents and employees.
Notwithstanding the preceding paragraph, the City shall have the right to provide input regarding the selection and, if necessary, the replacement of such consultants or vendors employed by Developer to perform the development milestones contemplated by this Agreement. Developer shall consider in good faith such input from the City, and shall confer with the City, upon request, regarding such selection and replacement decisions.
Section 6.2 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City, by any person Developer may have employed or with whom Developer may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the development of the Development, and Developer shall include similar requirements in any contracts entered into for the development of the Development.
Section 6.3 Amendments. No alteration or variation of the terms of this Agreement shall be valid unless made in writing by the parties.
Section 6.4 Indemnification. Except as directly caused by the City's sole gross negligence or willful misconduct, Developer agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the City) the City, and its council members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Developer's performance or non-performance of its obligations under this Agreement, arising from Developer's purchase and ownership of the Property, the development, marketing, rental, operation and management of the Development, or any documents executed by Developer in connection with the Development. The provisions of this Section 6.4 shall survive termination of this Agreement.
Section 6.5 Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Developer, or any successor in interest, in the event of any Default or breach by the City, or for any amount which may become due to Developer or its successor or on any obligation under the terms of this Agreement.
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Section 6.6 No Third-Party Beneficiaries. There shall be no third-party beneficiaries to this Agreement.
Section 6.7 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent, request, extension of time, waiver of condition, termination, or other action by the City is required or permitted under this Agreement, such action may be given, made, or taken by the City Manager without further approval by the City Council, and any such action shall be in writing. The amount of the Loan may not be increased without approval of the City Council.
Section 6.8 Waivers. Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Developer or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Developer to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Developer shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers.
Section 6.9 Notices, Demands and Communications. Formal notices, demands, and communications between the City and Developer shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the City and Developer as follows:
City:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: Paul Buddehagen, City Manager
Developer:
Evoy, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, CA 94704
Attn: Dan Sawislak, Executive Director
Such written notices, demands, and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this Section. Receipt shall be deemed to have occurred on the date shown on a written receipt for delivery or refusal of delivery.
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Section 6.10 Applicable Law and Venue. This Agreement shall be governed by California law. Any action brought claiming a breach of this Agreement or interpreting this Agreement shall be brought and venued in Alameda County, California.
Section 6.11 Parties Bound. Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, legal representatives, successors and assigns.
Section 6.12 Attorneys' Fees. If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing party will have the right to recover its reasonable attorneys' fees and costs of suit from the other party.
Section 6.13 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
Section 6.14 Future City Actions. The parties acknowledge and agree that:
(a) This Agreement does not constitute City approval of, the Land Use Approvals, or construction of the Development;
(b) The City retains full discretion to approve or disapprove any entitlements necessary for the Development.
Section 6.15 Counterparts; Multiple Originals. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute this Agreement.
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32 WHEREFORE, this Agreement has been entered into by the undersigned as of the date first above written.
DEVELOPER:
EVOY, L.P., a California limited partnership
By: RCD GP III LLC, a California nonprofit public
benefit corporation, its sole member/manager
By: Resources for Community
Development, a California nonprofit public
benefit corporation, its sole
member/manager
By:____________________________
Daniel Sawislak, Executive Director
CITY:
THE CITY OF EMERYVILLE, a municipal
corporation
By:_____________________________________
Its:_____________________________________
APPROVED AS TO FORM:
GOLDFARB & LIPMAN LLP
By: __________________________
City Special Counsel
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A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
EMERYVILLE, IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Parcel A, as shown on Parcel Map 11287, filed December 12, 2022, in Book 356 of Parcel Maps, Pages 62 and 63, Alameda County Records.
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B-1
EXHIBIT B
DEVELOPMENT MILESTONES AND TIME SCHEDULE
Development Milestones
Task Estimated Completion Date
Submit Phase II Environmental Site Assessment to California Department of Toxic Substances Control January 31, 2021 Apply for Competitive State Financing April 1, 2022
Submit application for 4% or 9% Tax Credits to California Tax Credit Allocation Committee July 30, 2022
Commence Construction June 1, 2023
Complete Construction May 1, 2025
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C-1
EXHIBIT C
MODIFICATION TO DEED OF TRUST
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EXHIBIT D
AMENDED AND RESTATED NOTE
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EXHIBIT E
APPROVED FINANCING PLAN
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AMENDED AND RESTATED
AFFORDABLE HOUSING AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608-3517
Attention: City Attorney
)
)
)
)
)
)
)
)
The document is exempt from the payment of a
recording fee pursuant to Government Code § 27383.
AMENDED AND RESTATED
AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT ("Agreement"), dated ________________, 2023, is entered into by and between Evoy, L.P., a California limited partnership ("Owner"), and the CITY OF EMERYVILLE, a municipal corporation ("City"), and is made with reference to the following facts:
RECITALS
A. City has entered into a Predevelopment Loan Agreement (the “Loan Agreement”) with Owner dated as of November 22, 2019, which was subsequently amended on June 23, 2021, , November 14, 2022, and December 16, 2022 Pursuant to the Loan Agreement, City originally made a Four Million Five Hundred Thousand Dollars ($4,500,000) loan to Owner to acquire those certain properties located at 3600 San Pablo Avenue, 3610 San Pablo Avenue, and 3620 San Pablo Avenue in the City of Emeryville, California and more particularly described in Exhibit A attached hereto and incorporated herein (together, the "Project Site") and for certain predevelopment costs associated with the Project Site.
B. Pursuant to the most recent amendment to the Loan Agreement, the City has increased the amount of the Loan by Twelve Million, Two Hundred Forty-Seven Thousand, Four Hundred and Eighty-Six Dollars ($12,247,486) bringing the combined loan amount to Sixteen Million, Seven Hundred Forty-Seven Thousand, Four Hundred and Eighty-Six Dollars ($16,747,486) (“Loan”). In connection with the Loan the Owner has given the City a Promissory Note dated of even date herewith for the full Loan Amount.
C. Owner intends to construct (i) ninety (90) units of rental housing (each, "Unit") including one (1) unrestricted manager’s Unit; and (ii) an approximately Five thousand nine hundred (5,900) square foot ground floor commercial space (the "Commercial Space") (the Units and the Commercial Space are together, the “Development”) on the Project Site.
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D. Owner received the Loan in part in exchange for providing Eighty-Nine (89) units of rental housing restricted to households earning between twenty percent (20%) and eighty percent (80%) of the area median income (the "AMI"). At least thirty-nine (39) Units must be permanent supportive housing units, targeted towards people experiencing homelessness, as described below. In addition, six (6) Units must be targeted to special needs households, as described below. The manager’s Unit need not be income restricted and will not be considered an affordable unit.
E. Owner shall make a good faith effort to lease the Commercial Space to Emeryville Citizens Assistance Program ("ECAP"), a community services organization that provides food to people who are experiencing homelessness or at risk of experiencing homelessness. When leasing the space, ECAP will provide food security services in the Commercial Space. The lease will be subject to the mutual approval of ECAP and Owner.
F. Owner and the City previously entered into that certain Affordable Housing Agreement dated November 22, 2019 and recorded against the Project Site on December 6, 2019 as Instrument No. 2019250388 (“Original Agreement”). This Agreement replaces in its entirety the Original Agreement.
G. The city council for City ("City Council") adopted Resolution No. [] authorizing City's city manager ("City Manager") to execute this Agreement.
AGREEMENT
1. USE OF THE PROJECT SITE. The foregoing recitals are incorporated by reference into this Agreement. Owner covenants and agrees on behalf of itself and its heirs, executors, successors and assigns that Owner shall operate, use and maintain the Project Site and the Development in compliance with all of the following:
A. Rent and Income Restrictions.
(1) At all times, all of the Units other than the manager’s Unit (“Affordable Units”) shall be rented to and occupied by Low, Very Low and Extremely Low Income Households in accordance with the terms of this Agreement and Applicable Laws as those terms are defined in Health and Safety Code Sections 50079.5, 50105, and 50106 respectively ("Eligible Households")The average income of all of the households occupying the Affordable Units shall not exceed 60% AMI, as adjusted for household size in accordance with California Health and Safety Code Section 50053.
(2) Affordable Units shall be rented to Eligible Households at affordable rents as that term is defined in California Health and Safety Code Section 50053, as amended, or any successor statute thereto for the applicable income level ("Affordable Rent"). The monthly Affordable Rent for each Unit shall be calculated pursuant to City’s then-current Affordable Rent and Income Levels Table (the "Table"). City’s current Table is attached hereto for illustrative purposes as Exhibit B.
(3) At least thirty-nine (39) of the Units must be permanent supportive housing units as defined in California Health and Safety Code Section 50675.14, as amended, or any successor DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 3 1828\13\3489081.4
statute. The target population for the permanent supportive housing units will be homeless households as defined in Title 42 of the United States Code Section 11302, as amended, or any successor statute . or subject to approval of the City, as defined by any coordinated entry system to be used for selection of tenants for the supportive housing units. (4) At least six (6) of the One Bedroom Units shall be targeted to special needs households as defined in the California Housing and Community Development (“HCD”) 2019 Multifamily Housing Program (“MHP”) Guidelines (“Special Needs Units”). (5) In the Affordable Units, no less than one (1) Occupant shall be allowed per bedroom and no more than two (2) Occupants shall be allowed per bedroom. A studio shall count as a one-bedroom for the purposes of these occupancy requirements. No more than three persons shall be permitted to occupy a one bedroom unit. If no Eligible Households apply within sixty (60) days of a Unit being available that meet these occupancy standards, City shall, upon request of Owner, grant exceptions to the occupancy standards, but only to the extent such exceptions are consistent with applicable laws, and do not increase City's obligations or liabilities under this Agreement, or diminish or impair City's rights and remedies under this Agreement. (6) Not more than once per year, Owner may adjust rents in occupied Units in accordance with City's published rent ceilings for the applicable unit size and income level.
Owner may adjust rent upon vacancy of an Affordable Unit to the then current Affordable Rent determined in accordance with the provisions of this Agreement. City shall annually publish a list of all rent ceilings reflecting the annual adjustments in the income limits for households provided by the U.S. Department of Housing and Urban Development and State of California Housing and Community Development Department. Owner must notify a Tenant in writing of any increase in such Tenant's monthly rent for a Unit at least sixty (60) days in advance of the effective rent adjustment date, and a copy of any such notification shall be sent to City simultaneously. Owner shall report any rent increase(s) to City in the Annual Report, including:
(1) the rent adjustment for each Unit; (2) the new rental amount for each Unit; and (3) the effective date of the adjustment for each Unit. Failure to provide the notice and reporting required shall be considered a default by Owner under this Agreement. (7) The determination of a status as an Eligible Household shall be made by Owner prior to initial occupancy of the Unit by such household and shall be subject to review and approval by City. City shall review and provide Owner with approval or disapproval of the determination of a status within fifteen (15) days of the City receiving notice of determination by Owner. The income of all Occupants aged 18 years or older residing in the Unit shall be considered for purposes of calculating the household income. Owner shall not discriminate against prospective Tenants with qualified Public Housing Authority Section 8 certificates or vouchers or with other governmental rental subsidies who are otherwise qualified in the rental of any of the Units. In the Annual Report, Owner shall report any changes in the Occupants of any Units to City that are known by Owner, including the name(s) and household size(s) of the Occupant(s) vacating the Unit(s) during the reporting period, and, if the Unit(s) has/have been reoccupied, the name, household size and income of the new household occupying the Unit(s). (8) Immediately prior to the first anniversary of the lease commencement for each Unit, and on each anniversary thereafter, Owner shall re-certify the income of the Occupants aged 18 DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 4 1828\13\3489081.4
years or older residing in the Unit by obtaining a completed Occupant Income Certification based upon the current income of each Occupant of the Unit. The Occupant Income Certification shall be in the form attached hereto as Exhibit C or such other income certification document approved by the City; provided, however, that City reserves the right to make any updates or changes as City deems necessary or desirable. Subject to applicable law and the requirements of other sources of financing for the Development, if the household income of the Occupants of an Affordable Unit exceeds the applicable income limit for such Unit but does not exceed 80% of AMI, the Occupants shall be allowed to remain in the Unit, the Owner shall be allowed to increase the Affordable Rent for the Unit to an amount that does not exceed the Rent allowed for those Units rented to Eligible Households with income at or below 80% of AMI and the Owner shall rent the next available Unit to an Eligible Household with an income not exceeding 20% of AMI or 50% of AMI in order to maintain distribution of Affordable Units set forth in Exhibit B. Subject to applicable law and the requirements of other sources of financing for the Development, if the household income of the Occupants of an Affordable Unit exceeds 80% of AMI, the Occupant’s Rent can be increased to thirty percent (30%) of the household income after Owner has provided the Occupants with all required notices and the next available Unit shall be rented to an Eligible Household with an income not exceeding the applicable income limit necessary to maintain the distribution of Affordable Units set forth in Exhibit B. If an Occupant’s household income exceeds one hundred twenty percent (120%) of AMI, the Occupants shall be given one hundred eighty (180) days' notice of termination of lease, and promptly following each lease termination, Owner shall re-let the Unit to an Eligible Household; provided, however, that such termination shall be subject to any requirements under Section 42 of the Internal Revenue Code of 1986. All documentation obtained by Owner in connection with the annual Occupant Income Certification shall be retained by Owner for three (3) calendar years.
(9) In the event that the Development is subject to a regulatory agreement between Owner and HCD (“HCD Regulatory Agreement”), any conflict between the HCD Regulatory Agreement and this Agreement with respect to occupancy standards, occupancy assumptions, income limits and rent levels shall be resolved by application of the provisions of the HCD Regulatory Agreement.
B. Leasing Commercial Space. Owner shall lease to ECAP the Commercial Space to be used to provide food security services on the Project Site. Owner shall charge ECAP rent for leasing the Commercial Space, not to exceed reasonable operating and maintenance cost incurred by Owner in operating and maintaining the Commercial Space, as well as deposits to a reasonable reserve account for replacements, operating expenses and re-leasing expenses of the Commercial Space. The lease to ECAP for the Commercial Space shall be subject to the mutual approval of Owner, ECAP and the City. In the event that ECAP does not enter into a lease for the Commercial Space for any reason or if such lease is terminated, the Owner shall be make commercially reasonable efforts to lease the Commercial Space to another food security services provider on similar terms as are required to be offered to ECAP. If the Owner is unable to lease the Commercial Space to a food security services provider, Owner may, with the approval of the City, DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 5 1828\13\3489081.4
lease the Commercial Space to another community services provider on similar terms as are required to be offered to ECAP.
C. Site Plan, Amenities, Parking and Affordability.
(1) No less than one hundred twenty (120) calendar days prior to lease-up of the Units, Owner will provide City (i) a site plan illustrating the location of the Affordable Units, including the permanent supportive housing units and the Special Needs Units (the "Site Plan"); (ii) the amenities of the Units (the "Amenities"); (iii) and the percentage of Units reserved for each targeted income level (the "Affordability Distribution"). (2) Owner shall provide City with a parking plan outlining how parking spaces will be allocated to Tenants, and how the waitlist for parking spaces will be maintained. The Parking Plan must comply with the 9-4.403(e) Unbundled Parking Requirements of the Emeryville Municipal code. If financing sources for the Development require that the costs for parking and housing be bundled together, the Owner shall request an exception to the Unbundled Parking Requirements from the City at least 120 calendar days prior to lease-up of the Units.
D. Marketing and Leasing Program.
(1) Owner shall actively market the Units. No less than one hundred and twenty (120) calendar days prior to lease-up of the Units, Owner shall provide City with a copy of its marketing program for initial lease up of the Units ("Marketing Program") that is in conformance with City's Affordable Units Marketing Program Procedures in effect at the time.
City shall review the Marketing Program and either approve or request modifications or clarifications to the Marketing Program within thirty (30) days after receipt; City’s approval shall not be unreasonably withheld, nor shall City’s modification requests be unreasonable. Failure of City to respond within thirty (30) days shall be deemed approval. If City requests modifications or clarifications to the Marketing Program, Owner shall resubmit the Marketing Program addressing such modifications or clarifications within thirty (30) days of receipt of City's comments and City shall either approve or request further modifications or further clarifications to the Marketing Program within fifteen (15) days of receipt of the revised Program; City’s approval shall not be unreasonably withheld, nor shall City’s modification requests be unreasonable. Owner shall not commence marketing the Units until City has approved the Marketing Program. To the extent permitted by applicable law and funding sources the Marketing Program must include a preference applicable to those Units that do not require the use of a coordinated entry or similar referral program, for Eligible Households that include at least one member who (i) lives in the City of Emeryville, or (ii) works in the City of Emeryville, or (iii) has one or more children attending a public school within the Emery Unified School District. Owner shall provide a monthly written report on the Marketing Program commencing thirty (30) days after the date the Marketing Program is initially approved by City until all the Affordable Units are leased initially. The report shall contain a listing of Affordable Units under lease, the income of the tenant, name of the tenant, and date the tenant was approved to move in. (2) Thereafter, Owner shall provide an update on the Marketing Program in the Annual Report and shall revise as may be required by City’s Affordable Units Marketing Program Procedures then in effect. The Marketing Program must be revised from time to time and shall DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 6 1828\13\3489081.4
be updated at least once every five (5) years, with City’s written approval. City shall review the Marketing Program and any revisions to the supportive services plan and either approve or request modifications to the Marketing Program and the supportive services plan within thirty (30) days after receipt.
(3) At least 120 days before the Special Needs Units are available for initial occupancy, Owner is required to provide written notice of the availability, income and rental restriction of the Units to up to seven service agencies designated by the City during the marketing period. The Owner shall provide the City with written evidence of its effort to market the Special Needs Units. Applicants may be screened according to the typical tenant screening process used for all other Units in the Development. Owner may not unreasonably deny an application. The Owner shall provide notice to the City at any time a Special Needs Unit become vacant as well as Owner’s efforts to market the Special Needs Unit. (4) Owner shall be responsible for developing a supportive services plan and ensuring that adequate levels of supportive services are provided to the Occupants and Tenants in accordance with the supportive services plan. Owner shall submit the supportive services plan to the City for its approval not later than six months prior to the issuance of the certificate of occupancy for the Development. The supportive services plan may be revised from time to time and shall be updated at least once every five (5) years, with City’s written approval. City shall review the supportive services plan and any revisions to the supportive services plan and either approve or request modifications to the supportive services plan within thirty (30) days after receipt.
E. Reporting Requirements.
(1) Owner shall submit to the City annual reports ("Annual Report"), which shall include all reporting required under this Agreement from the date of the previous Annual Report and include the following:
a. A cover letter to City describing the status of compliance with this Agreement, including any problems experienced during the reporting period, any recommendations to address problems and enhance compliance; any changes to the Marketing Program, supportive services plan or Lease Agreement since the date of the previous Annual Report, a description of any additional fees charged to Tenants, and the date and staff members names that participated in any Fair Housing Trainings.
b. A signed copy of the Certificate of Continuing Program Compliance in the form attached hereto as Exhibit D; provided, however, that City reserves the right to make any updates or changes to the form as City deems necessary or desirable; c. A copy of the current Marketing Program; and
d. A copy of the current supportive service plan;
e. A copy of the current form of lease agreement used for Units; f. A copy of the then current and the previous years’ Utility Allowance including method of calculation.
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g. An Income Certification Worksheet as described below in Section F(2); (2) Owner shall include a summary of the income certifications or re-certifications in the form of the Income Certification Worksheet in a format and containing the information reasonably required by City attached hereto as Exhibit E; provided, however, that City reserves the right to make any updates or changes to the form as City deems necessary or desirable, including all information necessary to meet reporting requirements imposed on City by applicable laws, and at a minimum, shall include the following with respect to each of the Units:
a. Unit number;
b. Unit square footage;
c. Number of bedrooms and bathrooms in the unit;
d. Head of household name(s)
e. The number of Occupant(s) in the household;
f. The number of Occupant(s) in the household between 3 and 17; g. Initial lease commencement date;
h. Lease Term
i. Household Income limit applicable to Unit at initial lease commencement date; and at recertification date (if applicable);
j. Actual Income of household at lease commencement date; and at recertification date (if applicable);
k. Gross Affordable Rent Limit (see Exhibit B);
l. Utility Allowance;
m. Amount of any other fees charged to the tenants (if applicable); n. Section 8 Assistance or other government rental assistance (if applicable); o. Current Net Rent Paid by household;
p. Current Net Rent as a percentage of household’s Income; q. Previous Net Rent Paid by household;
r. Next Recertification Date;
s. Move out date (if applicable).
Each Annual Report shall include the Certificate of Continuing Program Compliance (Exhibit D) and Income Certification Worksheet (Exhibit E) and be submitted to City annually on March 1st starting the year following issuance of the initial Certificate of Occupancy for the Development.
Upon request by City, the annual Occupant Income Certification Form (Exhibit C) for each Occupant(s) of a Unit shall be submitted as part of the Annual Report and shall be accompanied by the copies of the documents used to certify eligibility. Upon receipt of the Annual Report, City may request additional information to confirm compliance with this Agreement. In the event City requests such information, Owner shall promptly supply such information to City in the format requested by City. Owner shall maintain all necessary documents, books and records, including property and financial records, in accordance with requirements prescribed by City with respect to all matters covered by this Agreement for a period of three (3) years following the date of submittal of the Annual Report to which such documents, books or records relate.
Upon request for examination by City, Owner, at any time during normal business hours and upon reasonable notice, shall make available at the Property (or at another location within twenty miles of Emeryville) all material records with respect to matters covered by the Agreement.
Owner shall permit City to audit, examine, copy, and make excerpts or transcripts from such DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 8 1828\13\3489081.4
records. If Owner does not submit the Annual Report by March 1st, Owner has a grace period to submit the Annual Report through March 15th. Failure to timely submit the Annual Report with the required information shall be considered a default by Owner under this Agreement, subject to the provisions of Section 8. In the event that Owner fails to submit the Annual Report in a timely manner, in addition to any other rights that City may have, City may audit Owner's books and records to determine compliance, and Owner shall be responsible for all reasonable expenses incurred by City in conducting such audit. In addition to paying City's costs and expense, Owner shall pay to City one hundred dollars ($100) as liquidated damages for the first violation of failing to submit the Annual Report for each day the Annual Report is late after March 15th, and five hundred dollars ($500) as liquidated damages for each successive violation of failing to submit the Annual Report for each day the Annual Report is late, it being agreed that the damages to City by reason of Owner's failure to submit the Annual Report are difficult, if not impossible, to ascertain and that the amounts set forth above represent the parties' reasonable estimate of such damages.
F. Annual Financial Report. Owner shall annually submit to City a financial report, in a form acceptable to City, including without limitation (i) an annual income statement and balance sheet, (ii) a copy of any and all annual reports provided to Owner’s Investors, and (iii) documentation demonstrating that Owner is funding an ongoing capital reserve fund for capital repair and replacement costs (“Financial Report”). Owner shall provide the Financial Report as part of the Annual Report.
G. City Approval of Lease Forms. City shall have the right to review and approve Owner's form of lease for the Units and Commercial Space including any modifications, including disclosures of the affordability restrictions on the Units, prior to Owner's use of such form; City’s approval of such forms shall not be unreasonably withheld.
H. Compliance with All Applicable Laws. Owner shall manage and operate all Units in compliance with all applicable federal and state laws, and City ordinances and resolutions, including but not limited to, City’s Affordable Housing Rent Regulations in effect as such laws, ordinances, resolutions and Rent Regulations may be amended from time to time.
2. MANAGEMENT OF UNITS.
A. The City has approved the Owner’s selection of The John Stewart Company as the property management agent (“Property Manager”) in order to manage the Units (including leasing, property management, maintenance and repair services, and reporting obligations) and ensure that Owner's obligations under this Agreement with respect to the Units are satisfied and has approve the property management agreement with The John Stewart Company (“Management Agreement”). If Owner enters changes its Property Manager, any new Property Manager shall have at least five (5) years' experience in the operation and management of similar size rental housing projects, and at least three (3) years’ experience in the operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other applicable laws. No less than sixty (60) calendar days prior to hiring any Property Manager or executing any Management Agreement or material amendment to a Management Agreement, Owner shall provide documentation to City as is reasonably necessary to evaluate the proposed Property Manager's experience and DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 9 1828\13\3489081.4
qualifications as well as the Management Agreement. No Property Manager shall be hired, or Management Agreement signed or amended, or Management Plan amended, without City's prior approval thereof, which shall not be unreasonably withheld or delayed. For the term of this Agreement, any change in Property Manager, the Management Agreement and any amendment thereto shall comply with the requirements of this Section and any material amendment shall require the prior written approval of City, which shall not be unreasonably withheld or delayed.
B. Property Management leasing staff must participate in Fair Housing Training at least once every two years. Property Manager shall notify the City of any change in the primary staff assigned to the Development within ten (10) days of such staff change and any new staff member shall attend a one-on-one training session with the City or its Consultant within thirty (30) days of notification. City can waive the requirement for a one-on-one training session, at its discretion. Owner shall require as part of the Management Agreement that Property Manager provides adequate training and support for any staff assigned to the Development to properly implement the terms of this Agreement.
3. MAINTENANCE; PROPERTY DAMAGE.
A. Maintenance of Development. Owner shall maintain the Development (such maintenance to include buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Development and any and all other improvements on the Project Site and in the public right-of-way to the nearest curbline(s) abutting the Project Site) in accordance with the maintenance standards (as hereinafter defined). To accomplish the maintenance, Owner shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement.
The maintenance covenants and obligations set forth in this Section 3 shall remain in effect for the period of time specified in Section 6, below.
(1) The following standards (collectively, "Maintenance Standards")shall be complied with by Owner and its maintenance staff, contractors and subcontractors:
(i) Landscape maintenance shall include: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain-a healthy, natural appearance, safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees.
(ii) Clean-up maintenance shall include: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other conditions which are unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers.
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(iii) All maintenance work shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance.
(iv) Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all Applicable Laws.
Precautionary measures shall be employed recognizing that all areas are open to public access.
(v) The Development shall be maintained in accordance with the custom and practice generally applicable to comparable first-class residential developments located within Alameda County, California. Public right-of-way improvements to the curbline(s) on and abutting the Project Site shall be maintained as required by Subsection 3.A in good condition and in accordance with the custom and practice generally applicable to public rights-of-way within the City of Emeryville. (2) If Owner does not maintain or cause to be maintained the Development and all other private and public improvements (if any) on the Project Site to the curbline(s) on and abutting the Project Site in the manner set forth herein and in accordance with the Maintenance Standards, City shall have the right to maintain such private and/or public improvements, or to contract for the correction of such deficiencies, after written notice to Owner. However, prior to taking any such action, City agrees to notify Owner in writing if the condition of said improvements does not conform to the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Owner to cure the deficiencies and if the conditions identified in the City’s notice related to the Commercial Space and the Commercial Space is rented to ECAP, the City agrees to also notify ECAP of such conditions. Upon notification of any maintenance deficiency, Owner shall have thirty (30) days within which to correct, remedy or cure the deficiency, or begin and diligently work to cure the deficiency, if the nature of the deficiency is not the type that can be cured within thirty (30) days. If the written notification states that the problem is urgent and relates to the public health and safety, then Owner shall have twenty-four (24) hours to cure the problem or begin and diligently work to cure the problem, if the nature of the problem is not the type that can reasonably be cured within twenty-four (24) hours. In the event Owner fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such maintenance deficiency after notification and after expiration of any applicable cure periods, then City shall have the right to maintain such improvements at Owner's expense.
Owner shall pay City upon demand all reasonable and actual charges and costs incurred by City for such maintenance. Until so paid, City shall have the right to file a lien on the Development for the amount of such charges or costs, which lien may be perfected by the recordation of a "Notice of Claim of Lien" against the Development. Any lien in favor of City created or claimed under this Subsection 3.A(2) is expressly made subject and subordinate to any mortgage or deed of trust made in good faith and for value, recorded as of the date of the recordation of the Notice of Claim of Lien, and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the mortgagee or beneficiary thereunder expressly subordinates its interest, of-record, to such lien. Notwithstanding anything set forth above, City agrees that if the maintenance condition violating the terms of this Agreement is caused by ECAP, City shall look to ECAP to correct the maintenance deficiency. Owner acknowledges and agrees that City may also pursue any and all other remedies available in law DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 11 1828\13\3489081.4
or equity in the event of a breach of the maintenance obligations and covenants set forth herein, subject to the limitations set forth in Section 6, below.
B. Damage or Destruction. If all or any portion of the Development constructed by Owner on the Project Site is damaged or destroyed, Owner shall, at its own cost and expense, repair, restore or reconstruct the Project consistent with the original Construction Drawings. Such work shall be commenced within one hundred twenty (120) calendar days after the damage or loss occurs and shall be completed within one (1) year thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs, restoration or reconstruction.
4. TAXES. Owner shall not apply for exemption from the payment of real or personal property taxes on the Project, other than pursuant to California Revenue and Taxation Code Section 214(g).
5. NO IMPAIRMENT OF LIEN. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor in interest to the Development shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
6. DURATION. The covenants and restrictions in this Agreement shall remain in effect until the date which is seventy-five (75) years following the date of issuance of the final Certificate of Occupancy for the Development.
7. PRIORITY OF DOCUMENTS; SUBORDINATION AGREEMENT. Owner's covenants with respect to the use, maintenance, and operation of the Project Site and the Development set forth herein shall run with the land and be binding on Owner and its successors and assigns for the period of time set forth herein. This Agreement shall have priority over the liens of all mortgages, deeds of trust and other liens (other than the lien for current, unpaid property taxes) and Owner shall cause all such mortgagees, deed of trust beneficiaries and other lien holders to execute and deliver to City for recordation in the Official Records of Alameda County, a subordination agreement, in a form reasonably acceptable to City, subordinating such mortgages, deeds of trust and other liens to this Agreement thereby ensuring the priority of this Agreement over all such mortgages, deeds of trust and other liens.
8. SUCCESSORS AND ASSIGNS. The covenants contained herein shall inure to the benefit of City and its successors and assigns and shall be binding upon Owner and any successor in interest to the Project Site or the Development. The covenants shall run in favor of City and its successors and assigns for the entire period during which such covenants shall be in force and effect, without regard to whether City is an owner of any land or interest therein to which such covenants relate. In the event of any breach of any such covenants, or breach of any of Owner's obligations under this Agreement, City and its successors and assigns shall have the right to exercise all of the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. Upon recordation of the grant deed to the Project Site, the prior Owner shall be released from all further obligations and DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 12 1828\13\3489081.4
liabilities under this Agreement arising after the date of such transfer of ownership. The covenants contained herein shall be for the benefit of and shall be enforceable only by City, and its successors and assigns. City Manager may release this covenant, wholly or in part, in connection with a sale of the Project Site approved by City Manager if the Project Site is not used for housing and City Manager determines that the development of affordable housing is infeasible and that the loan must be repaid.
9. DEFAULT. Any failure by Owner to perform any term or provision of this Agreement shall constitute a "Default" hereunder if Owner does not cure such failure within thirty (30) days following written notice of default from City, unless such failure is not of a nature which can be cured within such thirty (30) day period. If such failure is not of a nature which can be cured within such thirty (30) day period, Owner's failure to commence substantial efforts to cure the failure within thirty (30) days and thereafter prosecute to completion with diligence and continuity the curing of such failure shall constitute a Default. Any notice of default given under this Agreement shall identify the nature of the failure in performance which City claims constitutes the Default and the manner in which such Default may be satisfactorily cured. Any failure or delay by City in asserting any of its rights or remedies, including specific performance, as to any Default shall not operate as a waiver of any Default or of any such rights or remedies or deprive City 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.
Upon notice of default, Owner shall promptly supply information to City in the format requested by City.
10. REMEDIES. Following the declaration of an event of Default hereunder, City may take any one or more of the following steps, in addition to all other remedies provided by law or equity; A. By mandamus or other suit, action or proceeding at law or in equity, including injunctive relief, require Owner to perform its obligations and covenants hereunder or enjoin any acts or things that may be unlawful or in violation of the rights of City hereunder; B. Have access to and inspect, examine and make copies of all of the books and records of Owner pertaining to the Project Site and the Development; and C. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of Owner hereunder.
Owner hereby agrees that specific enforcement of Owner’s agreements contained herein is the only means by which City may fully obtain the benefits of such Agreement made by Owner herein, and Owner therefore agrees to the imposition of the remedy of specific performance against it in the case of any Default by Owner hereunder.
In addition to any other right or remedy that City may have, in the event that Owner fails to rent the Affordable Units to Eligible Households at an Affordable Rent, Owner shall pay to City the amount of any rent collected by Owner in excess of the Affordable Rent.
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11. ESTOPPEL CERTIFICATE. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the current, actual knowledge of the certifying party, (a) this Agreement is in full force and effect and a binding obligation of the parties; (b) this Agreement has not been amended or modified or, if so amended or modified, identifying the amendments or modifications; and (c) the requesting party is not in Default in the performance of its obligations under the Agreement, or if in Default, to describe therein the nature and extent of any such defaults. The party receiving a request hereunder shall execute and return a certificate in reasonable form, or give a written, detailed response explaining why it will not do so, within forty-five (45) days following the receipt of the request. City's City Manager or City Attorney shall be authorized to execute any certificate requested by Owner hereunder. Owner and City acknowledge that a certificate hereunder may be relied upon by those tenants, transferees, investors, partners, bond counsel, underwriters, bond holders and mortgagees identified therein.
12. EXPENSES. Owner shall annually pay to City City's monitoring and enforcement fees for the Affordable Units in accordance with City's Master Fee Schedule. The monitoring or enforcement fee shall be either City's actual expenses incurred for monitoring or enforcing the terms of this Agreement, including staff time and third party costs or the amount set forth in the Master Fee Schedule, as determined by City. City may expend such sums to reimburse itself for City's actual out-of-pocket expenses incurred in connection with such monitoring and/or enforcement activities. All reasonable fees, costs and expenses of City incurred in taking action pursuant to Section 10 shall be the sole responsibility of Owner.
13. INDEMNIFICATION AND RELEASE. It is specifically understood and agreed by the Parties that the Development contemplated by this Agreement is a private development, that City has no interest in or responsibility for or duty to third persons concerning any of said improvements, and that Owners shall have full power over and the exclusive control of the Project Site and the Development subject only to the limitation and obligations of Owners under this Agreement. Owner hereby agrees to and shall indemnify, defend with counsel reasonably acceptable to City and hold City and its elected and appointed representatives, officers, agents and employees harmless from any and all claims arising out of this Agreement and related to any portion of the Development or use, operation or maintenance of the Project Site, including claims for bodily injury, including death, and property damage, which may arise directly or indirectly from the acts, omissions, negligence or willful misconduct of Owner or its shareholders, partners, members, principals, officers, employees, representatives, agents, contractors or subcontractors, excepting suits and actions arising from the active negligence or willful misconduct of City, or any of its officials, elected or otherwise, officers, employees, representatives, agents, contractors or subcontractors ("Claim"). This indemnification and hold harmless agreement applies to all damages and claims for damages (including attorneys' fees and costs) suffered or alleged to have been suffered by reason of the acts, omissions, negligence or willful misconduct referred to in this Section 13, regardless of whether or not City prepared, supplied or approved plans or specifications for the Development or Project Site. This Section 13 shall survive termination of this Agreement.
14. NOTICES, DEMANDS AND COMMUNICATIONS BETWEEN THE PARTIES. Any approval, disapproval, demand, document or other notice to be provided under this Agreement shall be given in writing and shall be sent (a) for personal delivery by a delivery service that DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 14 1828\13\3489081.4
provides a record of the date of delivery, the individual to whom delivery was made, and the address where delivery was made; (b) by first-class certified United States mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service and marked for next day business delivery. All notices shall be addressed to the party to whom such notice is to be given at the property address stated herein or to such other address as a party may designate by written notice to the other. Any written notice, demand or communication shall be deemed received (a) immediately if delivered by personal delivery as provided hereinabove; (b) on the third (3rd) day from the date it is postmarked if delivered by first-class mail, postage prepaid, return receipt requested; and (c) on the next business day if sent via nationally recognized overnight courier and marked for next day business delivery. Notices sent by a party's attorney on behalf of such party shall be deemed sent by such party.
To City: City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attention: City Manager
Telephone: (510) 596-4300
With a copy to: City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attention: City Attorney
To Owner: Evoy, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, CA 94704
Attention: Dan Sawislak, Executive Director
With copies to:
15. ATTORNEYS' FEES. In the event that either Party fails to perform any of its obligations under this Agreement or in the event a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the defaulting party or the non-prevailing party in such dispute, as the case may be, shall pay the prevailing party reasonable attorneys' and experts' fees and costs, and all court costs and other costs of action incurred by the prevailing party in connection with the prosecution or defense of such action and enforcing or establishing its rights hereunder (whether or not such action is prosecuted to a judgment). For purposes of this Agreement, reasonable attorneys' fees of City Attorney shall be based on the fees regularly charged by private attorneys with the equivalent number of years of experience in the subject matter area of the law for which City Attorney’s services were rendered who practice in the San Francisco Bay Area. The term "attorneys' fees" shall also include, without limitation, all such fees incurred with respect to appeals, mediations, arbitrations, and bankruptcy proceedings, and whether or not any action is brought with respect to the matter for which such fees were incurred. The term "costs" shall mean the costs and expenses of counsel to the parties, which may include printing, DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 15 1828\13\3489081.4
duplicating and other expenses, air freight charges, hiring of experts, and fees billed for law clerks, paralegals, and others not admitted to the bar but performing services under the supervision of an attorney.
16. MISCELLANEOUS. Each party agrees to cooperate with the other in the implementation and administration of this Agreement and, in that regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of the Agreement. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. The words "include" and "including" shall be construed as if followed by the words "without limitation." All exhibits and attachments hereto are incorporated by reference as though fully restated herein. This Agreement shall be interpreted as though prepared jointly by both parties, and shall be construed in accordance with and be governed by the laws of the State of California. Venue shall be in Alameda County. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. A waiver by either party of a breach of any of the covenants, conditions or agreements hereunder to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. No waiver by City of any of the conditions hereof shall be effective unless in a writing expressly identifying the scope of the waiver and signed on behalf of an authorized official of City. Any alteration, change or modification of or to the Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party hereto. [Signatures on following page]
DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E 16 1828\13\3489081.4
IN WITNESS WHEREOF, City and Owner have caused this Agreement to be executed on their behalf by their respective duly authorized persons.
Address:
Evoy, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, CA 94704
Attn: Executive Director
"OWNER"
EVOY, L.P., a California limited partnership
By: RCD GP III LLC, a California limited
liability company, its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation, its sole
member/manager
Dated: By:
Dan Sawislak, Executive Director
[Signature must be notarized]
Address:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Manager
"CITY"
CITY OF EMERYVILLE, a municipal corporation
Dated: By:
Paul Buddenhagen, City Manager
[Signature must be notarized]
APPROVED AS TO FORM
___________________________
John Kennedy, City Attorney
DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E A-1
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EXHIBIT A
Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
EMERYVILLE, IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Parcel A, as shown on Parcel Map 11287, filed December 12, 2022, in Book 356 of Parcel Maps, Pages 62 and 63, Alameda County Records.
APN’s 049-0950-001 and 049-0950-008-01 and 049-0950-006-01 DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E B-1
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EXHIBIT B
Project Affordable Rent and Income Levels
AGREEMENT ON AFFORDABLE UNITS
2022 Rent Calculation for Below Market Rate Set-Aside Units Unit size
Number of
units 2022 Monthly Rents Income Limit
Special Needs
Population
Studio 27 $500* 20% AMI Homeless
1 Bdrm 12 $535* 20% AMI Homeless
1 Bdrm 6 $535* 20% AMI Special Needs
2 Bdrm 6 $1,606** 50% AMI N/A
3 Bdrm 2 $1,785** 50% AMI N/A
1 Bdrm 24 $1,714*** 80% AMI N/A
2 Bdrm 9 $1,928**** 80% AMI N/A
3 Bdrm 3 $2,142** 80% AMI N/A
* Rents for units rented to households with incomes at or below 20% of AMI shall be based on 30% of 20% of the area gross median income for Alameda County, adjusted for household size. Affordable rent shall mean the total of monthly payments for a rent including a reasonable allowance for utilities and any service charges or fees required of tenants. Utility allowance and charges/fees must be deducted from rents shown above.
** Rents for units rented to households with incomes at or below 50% of AMI shall be based on 30% of 50% of the area gross median income for Alameda County, adjusted for household size. Affordable rent shall mean the total of monthly payments for a rental including a reasonable allowance for utilities and any service charges or fees required of tenants. Utility allowance and charges/fees must be deducted from rents shown above.
***Rents for units rented to households with incomes at or below 80% of AMI shall be based on 30% of 60% of the area gross median income for Alameda County, adjusted for household size. Affordable rent shall mean the total of monthly payments for a rental including a reasonable allowance for utilities and any service charges or fees required of tenants. Utility allowance and charges/fees must be deducted from rents shown above.
Note: Initial rents shown in this table will be adjusted by City to reflect annual income and/or rent limits available on date that Certificate of Occupancy is received.
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EXHIBIT C
OCCUPANT INCOME CERTIFICATION FORM
OCCUPANT INCOME CERTIFICATION Effective Date:
Move-in Date:
(MM/DD/YYYY) Initial
Certification
Recertification Other
PART I. DEVELOPMENT DATA
Property Name:
Address:
County:
Unit Number:
# Bedrooms:
PART II. HOUSEHOLD COMPOSITION
HH
Mbr # Last Name
First Name &
Middle Initial
Relationship to
Head of Household
Date of Birth
(MM/DD/YYYY)
F/T
Student (Y
or N)
Social Security or
Alien Reg. No.
(last 4 digits)
1 HEAD
2 3
4 5
6 7
PART III. GROSS ANNUAL INCOME (USE ANNUAL AMOUNTS)
HH
Mbr #
(A)
Employment or Wages
(B)
Soc. Security/Pensions
(C)
Public Assistance
(D)
Other Income
TOTALS $ $ $ $
Add totals from (A) through (D), above TOTAL INCOME (E): $ PART IV. INCOME FROM ASSETS
HH
Mbr #
(F)
Type of Asset
(G)
C/I
(H)
Cash Value of Asset
(I)
Annual Income from
Asset
TOTALS: $ $
Enter Column (H) Total Passbook Rate
If over $5000 $ X 2.00% = (J)
Imputed Income
Enter the greater of the total of column I or J: imputed income TOTAL INCOME FROM ASSETS (K) $
$
(L) Total Annual Household Income from all Sources [Add (E) + (K)] $
HOUSEHOLD CERTIFICATION & SIGNATURES
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The information on this form will be used to determine maximum income eligibility. I/we have provided for each person(s) set forth in Part II acceptable verification of current anticipated annual income. I/we agree to notify the landlord immediately upon any member of the household moving out of the unit or any new member moving in. I/we agree to notify the landlord immediately upon any member becoming a full time student.
Under penalties of perjury, I/we certify that the information presented in this Certification is true and accurate to the best of my/our knowledge and belief. The undersigned further understands that providing false representations herein constitutes an act of fraud. False, misleading or incomplete information may result in the termination of the lease agreement.
Signature (Date) Signature (Date)
Signature (Date) Signature (Date)
Sections Below To Be Completed by Owner/Representative
PART V. DETERMINATION OF INCOME ELIGIBILITY
TOTAL ANNUAL HOUSEHOLD
INCOME
FROM ALL SOURCES:
From item (L) on page I $
Current Income Limit per Family Size: $
Household Income at Move-in: $ Household Size at Move-in:
Method of Income Verification
PART VI. RENT
Tenant Paid Rent $ Rent Assistance: $
Utility Allowance $ Other non-optional charges: $
Utility Paid by Tenant
(Check all that apply)
__Heating Electric
__Cooking Electric
__Hot Water Electric
__Water
__Trash
__Heating Gas
__Cooking Gas
__Hot Water Gas
__Sewer
__Electrical Other
GROSS RENT FOR UNIT:
(Tenant paid rent plus Utility
Allowance &
Other non-optional charges) $
Unit Meets Rent Restriction at:
60% 50% 40% 30% _____%
Maximum Rent Limit for this Unit: $
SIGNATURE OF OWNER/REPRESENTATIVE
Based on the representations herein and upon the proofs and documentation required to be submitted, the individual(s) named in Part II of this Occupant Income Certification is/are eligible under the provisions of California Health and Safety Code Section 50053 as amended, and the Affordable Housing Covenant, to live in a unit in this Project.
SIGNATURE OF OWNER/REPRESENTATIVE DATE
_________________________________ __________________________ NAME EMAIL DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E D-1
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EXHIBIT D
[Project Name] Apartments Period through _________________
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
CITY OF EMERYVILLE
The undersigned does hereby certify that it is in continuing compliance with the Affordable Housing Agreement executed by the undersigned and recorded in the records of the County of Alameda, California, and that to the knowledge of the undersigned no default exists under said Agreement. Specifically, it is hereby confirmed that each qualified tenant currently residing in the Affordable Unit as defined by said Agreement has completed an Occupant Income Certification in the form approved by the City of Emeryville and that:
Since the beginning of the Agreement term, not less than __ [__] of the Property Units have been continuously occupied by or held vacant and available for occupancy by qualified very lowincome tenants. Since the beginning of this Agreement term, not less than __ [__] of the Property Units have been continuously occupied by or held vacant and available for occupancy by qualified low-income tenants. Since the beginning of the Agreement term, not less __ [__] of the Property Units has been continuously occupied by or held vacant and available for occupancy by qualified moderate-income tenants.
As of the date of the Certificate:
Total 20% Units occupied: __________________(# Units)
Total 20% Units vacant: __________________(# Units)
Total 50% Units occupied: ___________________(# Units)
Total 50% Units vacant: ___________________(#Units)
Total 80% Units occupied: ___________________(# Units)
Total 80% Units vacant: ___________________(#Units)
[OWNER]
By:____________________________________
Authorized Owner Representative
Date: __________________________________
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EXHIBIT E
[Project Name] Apartments Period through _________________
INCOME CERTIFICATION WORKSHEET
CITY OF EMERYVILLE
INCOME HOUSE INCOME HOUSEHOLD MAX UTILITY NET SEC. 8 TENANT RENT as RECERT HOUSE # INCOME HOUSEHOLD MAX UTILITY NET SEC. 8 TENANT RENT as LEVEL RESIDENT CURRENT HOLD MOVE-IN LIMIT @ INCOME @ RENT ALLOW RENT ASSIST PAID % OF EFF DATE HOLD MINOR LIMIT INCOME PER RENT ALLOW RENT ASSIST. PAID % OF MOVE-OUT UNIT # UNIT TYPE SQ. FT. OF UNIT NAME STATUS SIZE DATE MOVE-IN MOVE-IN LIMIT + FEES RENT INCOME PER TIC SIZE CHILD RECERT TIC RECERT TIC LIMIT + FEES RENT INCOME DATE 1 $0 #DIV/0! $0 #DIV/0!
2 $0 #DIV/0! $0 #DIV/0!
3 $0 #DIV/0! $0 #DIV/0!
4 $0 #DIV/0! $0 #DIV/0!
5 $0 #DIV/0! $0 #DIV/0!
6 $0 #DIV/0! $0 #DIV/0!
7 $0 #DIV/0! $0 #DIV/0!
8 $0 #DIV/0! $0 #DIV/0!
9 $0 #DIV/0! $0 #DIV/0!
10 $0 #DIV/0! $0 #DIV/0!
11 $0 #DIV/0! $0 #DIV/0!
12 $0 #DIV/0! $0 #DIV/0!
13 $0 #DIV/0! $0 #DIV/0!
14 $0 #DIV/0! $0 #DIV/0!
15 $0 #DIV/0! $0 #DIV/0!
16 $0 #DIV/0! $0 #DIV/0!
17 $0 #DIV/0! $0 #DIV/0!
18 $0 #DIV/0! $0 #DIV/0!
19 $0 #DIV/0! $0 #DIV/0!
20 $0 #DIV/0! $0 #DIV/0!
21 $0 #DIV/0! $0 #DIV/0!
22 $0 #DIV/0! $0 #DIV/0!
23 $0 #DIV/0! $0 #DIV/0!
24 $0 #DIV/0! $0 #DIV/0!
25 $0 #DIV/0! $0 #DIV/0!
26 $0 #DIV/0! $0 #DIV/0!
27 $0 #DIV/0! $0 #DIV/0!
28 $0 #DIV/0! $0 #DIV/0!
29 $0 #DIV/0! $0 #DIV/0!
30 $0 #DIV/0! $0 #DIV/0!
31 $0 #DIV/0! $0 #DIV/0!
32 $0 #DIV/0! $0 #DIV/0!
33 $0 #DIV/0! $0 #DIV/0!
34 $0 #DIV/0! $0 #DIV/0!
35 $0 #DIV/0! $0 #DIV/0!
36 $0 #DIV/0! $0 #DIV/0!
37 $0 #DIV/0! $0 #DIV/0!
38 $0 #DIV/0! $0 #DIV/0!
39 $0 #DIV/0! $0 #DIV/0!
40 $0 #DIV/0! $0 #DIV/0!
41 $0 #DIV/0! $0 #DIV/0!
42 $0 #DIV/0! $0 #DIV/0!
43 $0 #DIV/0! $0 #DIV/0!
44 $0 #DIV/0! $0 #DIV/0!
45 $0 #DIV/0! $0 #DIV/0!
46 $0 #DIV/0! $0 #DIV/0!
47 $0 #DIV/0! $0 #DIV/0!
48 $0 #DIV/0! $0 #DIV/0!
49 $0 #DIV/0! $0 #DIV/0!
50 $0 #DIV/0! $0 #DIV/0!
Completed By: Title: Date:
INITIAL CERTIFICATION RECERTIFICATION INCOME AND RENTS PER TIC FORM DocuSign Envelope ID: F36E5B52-6588-4981-B244-7A298239E17E