1 LEASE DISPOSITION AND DEVELOPMENT AGREEMENT
(5890, 5900 and 6150 Christie Avenue)
This Lease Disposition and Development Agreement (the "Agreement") is entered into as of __________, 2024 (the "Effective Date"), by and between the City of Emeryville, a municipal corporation (the "City"), and [EAH, Inc., a California nonprofit public benefit corporation] (the "Developer"), with reference to the following facts, understandings and intentions of the parties:
RECITALS
A. These 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. The City owns the Property, which is located at 5890, 5900 and 6150 Christie Avenue (APN No. 049-1493-003,004 and 005), as more particularly described in the attached Exhibit A. The Property currently is improved with Existing Buildings located at 5900 and 6150 Christie Avenue used by the City of Emeryville Public Works Department.
C. The City issued a Request for Qualifications and Proposals on June 22, 2022, for a developer of the Property to develop on the Property affordable housing consistent with Government Code Section 37364. The City received proposals from various developers and after a review and selection process, the City Council adopted Resolution No. 22-153, selecting the Developer and authorizing the City Manager to enter into negotiations for an ERN.
D. Pursuant to Resolution No.22-153, the City and the Developer entered into an ERN on March 23, 2023, which provided for an initial negotiation period of 180 days, with a permitted extension of an additional 180 days that was utilized by the Parties. The City Council adopted Resolution No. 22-018 at its August 24, 2023, regular meeting authorizing a further extension of the ERN for an additional 180 days, to allow the City and the Developer to negotiate the terms of this Agreement.
E. The Developer intends to form one or more Partnerships as single purpose entities for the purpose of entering into the Ground Leases and completing and operating the Development.
F. The City desires to lease the Residential Property to the Developer or one of the Partnerships, as applicable, in phases and pursuant to separate Ground Leases for each Phase, in accordance with the provisions of this Agreement and the Ground Lease attached hereto in order to facilitate the use of the Residential Property for the development and operation of affordable housing benefiting the citizens of Emeryville and the general public.
G. The City intends to provide financial assistance to the Developer in the form of one or more loans to bridge financing gaps in an aggregate amount not to exceed Twenty-Three Million Six Hundred Sixty Thousand Dollars ($23,660,000) (“City Subsidy”). The exact amount of the City Subsidy will be determined for each Phase of the Development at such time as the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 2 City approves as Phase Financing Plan for the Phase and will be evidenced by a City Subsidy Note.
H. In accordance with the ERN, the City and the Developer have established the terms and conditions for the conveyance of the leasehold interests in the Residential Property to the Developer, and the ongoing operation of the Development upon completion of construction.
The City has determined that the Developer has the necessary expertise, skill and ability to carry out the commitments set forth in this Agreement.
I. To effectuate the redevelopment of the Property, upon the Developer's satisfaction of the conditions set forth below with respect to each Phase, the City will convey the leasehold interest in the applicable portion of the Residential Property to the Developer pursuant to a Ground Lease.
J. The Planning Board of the City has determined, in accordance with Government Code Section 65402 that the lease of the Residential Property to the Developer in accordance with the terms of this Agreement conforms to the City's General Plan.
THEREFORE, the Parties agree as follows:
AGREEMENT
The foregoing recitals are hereby incorporated by reference and made part of this Agreement.
ARTICLE 1.
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, the following definitions shall apply throughout this Agreement.
(a) "Affordable Housing Covenant" or "Covenant" means the Affordable Housing Covenant between the City and the Partnership to be recorded against each Phase of the Residential Property upon execution of the Ground Lease for such Phase in the form attached as Exhibit F.
(b) “Amenity Plan” means the plan to be submitted by Developer to the City pursuant to Section 2.10.
(c) "Building Permit" means the building permit and all other ministerial construction permits required from the City and other governmental agencies to construct the Improvements in each Phase.
(d) "CEQA" means the California Environmental Quality Act (Public Resource Code 21000 et seq.), and its implementing regulations. (e) "City" means the City of Emeryville, a municipal corporation.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 3 (f) "City Consultants" means, collectively, the City's third-party construction monitor, the City’s financial consultant and any other third-party consultants retained by the City to monitor or otherwise provide professional services for the benefit of the City in connection with the Development.
(g) "City Contract Addendum" means the addendum to the construction contract in the form attached as Exhibit H.
(h) "City Council" means the city council of the City.
(i) "City Documents" means, collectively, this Agreement, the Ground Leases, the ERN, the Covenants, and all documents executed by the Developer in favor of the City in accordance with the ERN and this Agreement, and all other documents required by the City to be executed by the Developer in connection with the transaction contemplated by this Agreement. "City Document" means any of the City Documents. (j) “City Note” means the promissory note or notes evidencing the City Subsidy loan to each Phase of the Development, substantially in the form attached hereto as Exhibit I.
(k) "City Regulatory Approvals" means all entitlements and approvals required to be obtained from the City to permit the construction of the Development, if any, other than the building permit and including, but not limited to any lot line adjustments, parcel maps or tentative maps. Other approvals and consents required from the City pursuant to this Agreement are governed by Section 7.17 below.
(l) "Close of Escrow" means the date on which the City conveys the leasehold interest in a Phase of the Residential Property as evidenced by the Memorandum of Ground Lease.
(m) "Code" means the Internal Revenue Code of 1986, as amended. (n) "Construction Plans" means the final construction plans for the construction of the Improvements as approved by the City in accordance with Section 2.8. (o) "Control" means (i) direct or indirect management or control of the managing member or members in the case of a limited liability company; (ii) direct or indirect management or control of the managing general partner or general partners in the case of a partnership; and (iii) (a) boards of directors that overlap by fifty percent (50%) or more of their directors, or (b) direct or indirect control of a majority of the directors in the case of a corporation.
(p) "County" means the County of Alameda, California.
(q) "Default" has the meaning set forth in Section 6.3. (r) "Developer" means EAH, Inc., a California nonprofit public benefit corporation, and its successors and assigns as permitted by this Agreement.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 4 (s) "Developer Event of Default" has the meaning set forth in Section 6.3. (t) "Developer Payment" means the payment by the Developer to the City at each the Close of Escrow for each Phase of one-third (1/3rd) of the City’s costs incurred not to exceed $250,000 per Phase in connection with (i) the solicitation and review of proposals for the development of the Property; (ii) negotiation and preparation of all documents pertaining to the disposition, lease, development and financing of the Development, including without limitation, the ERN, this Agreement, the Ground Leases, the Covenants and as applicable, any loan documents; (iii) review of all financing and other documents pertaining to each Phase of the Development, including without limitation, construction documents, loan documents, bond financing documents, financing documents and partnership agreements and related documents; and (iv) other City expenses relating to each Phase, including without limitation, legal fees, relocation costs, financial and development consulting fees, appraisal costs, environmental studies and feasibility studies.
(u) "Development" means the Developer's design, planning and construction of the Improvements in accordance with the terms of this Agreement and the Ground Lease. (v) "Development Schedule" or "Schedule of Performance" means the schedule attached as Exhibit B, as approved by the City setting forth the anticipated schedule for the Developer's acquisition of the leasehold interest in the Residential Property and the development of the Improvements.
(w) "Effective Date" means the date this Agreement is entered into by the Parties as first written above.
(x) "Existing Building" means the approximately 14,416 square foot and 16,304 square foot buildings existing on the Property as of the Effective Date. (y) "ERN" means that certain Exclusive Right to Negotiate dated as of as March 23, 2023, by and between the City and the Developer. (z) “FF&E” shall mean the furniture, fixtures and equipment that are to be installed in the common areas and amenity spaces of the Development. (aa) "Financing" means any financing received by the Developer for the Development.
(bb) "Financing Plan" means the Developer's plan for financing the design, engineering and construction of each Phase of the Improvements, including a detailed development budget, construction and permanent financing commitment letters, to be approved by the City pursuant to Section 2.3, and the initial year operating budget for the Phase, and which may be revised from time to time with the approval of the City pursuant to Section 2.3. (cc) "Financing Proposal" means the Developer's initial financing proposal for financing the acquisition of the leasehold interests in the Residential Property and the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 5 development of the Improvements, in the form approved by City and attached hereto as Exhibit E.
(dd) "General Partner" means the general partner of a Partnership which shall be an entity that: (i) is under the Control of the Developer; and (ii) meets the requirements necessary for the Partnership to be eligible for a property tax exemption pursuant to California Revenue & Taxation Code 214(g).
(ee) "Ground Lease" means the ground lease, substantially in the form attached as Exhibit G, to be executed by the City and the Developer at the Close of Escrow for each Phase.
(ff) "Hazardous Materials" means any "hazardous substance" as defined in Section 101(14) of CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the California Health and Safety Code as amended from time to time; (1) any "hazardous waste," "infectious waste" or "hazardous material" as defined in Section 25117, 25117.5 or 25501(j) of the California Health and Safety Code as amended from time to time;
(2) any other waste, substance or material designated or regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C. Section 6901 et seq.), CERCLA (42 U.S.C. Section 9601 et seq., Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), Safe Drinking Water Act (42 U.S.C. Section 300(f) et seq.), Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), Clear Air Act (42 U.S.C. Section 7401 et seq.), California Health and Safety Code (Section 25100 et seq., Section 39000 et seq.), or California Water Code (Section 13000 et seq.) as amended from time to time; and (3) any additional wastes, substances or materials which at such time are classified, considered or regulated as hazardous or toxic under any other present or future environmental or other similar laws relating to the Property or the Improvements.
The term "Hazardous Materials" shall not include: (i) construction materials, gardening materials, household products, office supply products, or janitorial supply products customarily used in the construction, maintenance, construction, or management of multifamily residential buildings, or typically used in office activities, or (ii) certain substances which may contain chemicals listed by the State of California pursuant to California Health and Safety Code Sections 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Property, including, but not limited to, alcoholic beverages, aspirin, tobacco products, nutrasweet and saccharine. (gg) "Hazardous Materials Laws" means all federal, state, and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials in, on or under the Property or the Improvements or any portion thereof. (hh) "Improvements" means collectively the Park Improvements and the Residential Improvements.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 6 (ii) "Investor" means a reputable equity investor, reasonably acceptable to the City, committed to purchasing a limited partnership interest in each Partnership, provided that it is understood that each Partnership may have a different Investor. (jj) "Management Agent" means EAH, Inc., a California nonprofit public benefit corporation, or other management agent retained by the Developer and approved by the City in accordance with the provisions of Section 2.13 to manage the Development. (kk) "Memorandum of Ground Lease" means the memorandum of the Ground Lease to be recorded against each Phase of the Residential Property at the Close of Escrow.
(ll) "Official Records" means the official land records of the County. (mm) “Park Improvements” means the approximately 6,000 square foot expansion of Christie Park to be improved with a sprots court, seating and picnic amenities in accordance with this Agreement and the Scope of Development attached as Exhibit C. (nn) “Park Property” means the real property upon which the Park Improvements will be constructed, which real property is more particularly described in Exhibit A-1.
(oo) "Parties" means, collectively, the City, and the Developer. "Party" shall refer to either of the Parties in their individual capacity. (pp) "Partnership" means a California limited partnership to be formed by the Developer for the development of the Improvements on each Phase of the Property. Each Partnership shall consist of as of the Close of Escrow for each Phase, at a minimum: (i) the General Partner, and (ii) the Investor, or an entity under the Control of the Investor, as a limited partner.
(qq) "Partnership Agreement" means the partnership agreement of each Partnership, as such may be amended from time to time.
(rr) “Phase” means one of three phases of the Development as further described herein.
(ss) "Project" means the Development.
(tt) "Property" means the real property to be developed by the Developer pursuant to this Agreement, which real property is more particularly described in Exhibit A. (uu) "Property Management Plan" is defined in Section 2.13. (vv) “Residential Improvements” means the residential development consisting of not less than 362 residential units, and related improvements, to be located on the Residential Property.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 7 (ww) "Residential Property" means the real property to be ground leased to the Partnerships upon which the Residential Project will be developed and operated, which real property is more particularly described in Exhibit A-2. (xx) "Scope of Development" means the description of the basic physical characteristics of the Development which, will serve as a basis for the Developer's application for the City Regulatory Approvals and for the preparation of the Construction Plans. Among other things, the Scope of Development sets forth that the Development shall consist of no fewer than 362 affordable family residential units targeted to households with incomes between 30% and 80% of area median income, of which a minimum of 25% of the residential units will be 3- bedroom units and no more than 15% of the residential units in each building will be studio units. Three (3) of the residential units may be unrestricted manager’s units. If the Developer desires to establish additional units as manager’s units those units shall be subject to the income restrictions in the Affordable Housing Covenant. The Development is expected to be developed in three Phases as follows (i) Building A which will consist of approximately 126 residential units, the expansion of Christie Park, childcare or after school space within the building, and retail space of approximately 1,500 square feet; (ii) Building B which will consist of approximately132 residential units and (iii) Building C which will consist of 104 residential units. Any change in the number of units must be approved by the City. Each Phase and Building will include furnished resident common amenity spaces, laundry rooms, rooftop decks, bike storage facilities with storage lockers, landscaped open areas, outdoor children’s play areas and parking lifts to minimize the parking footprint of the Development. The Development shall include between one quarter (.25) and one half (.5) parking spaces per residential unit, be designed as Net Zero ready, and be designed as an all-electric building consistent with City's applicable "REACH" codes. The Development shall provide on-site public art as required by the Emeryville Municipal Code Section 3-2.403a. The Scope of Development is attached to this Agreement as Exhibit C.
(yy) "Supportive Services Plan" is defined in Section 2.12 (zz) "Residential Marketing Plan" is defined in Section 2.11. (aaa) "Tax Credit Funds" means all of the proceeds from the sale of limited partnership interests in the Partnership to the Investor in the anticipated amount set forth in the Financing Plan.
(bbb) "Tax Credit Reservation" means a preliminary reservation, or allocation (as applicable), of federal and/or state low income housing tax credits from TCAC. (ccc) "TCAC" means the California Tax Credit Allocation Committee. (ddd) "Term" means the term of this Agreement, which shall consist of the period commencing as of the Effective Date and continuing until the earlier of: (i) the execution of the Ground Lease for the third and final Phase of the Development; (ii) January 1, 2026 if the Developer has not met the conditions for conveyance of the leasehold interest in the Residential Property for the first Phase of the Development and the Close of Escrow for the first Phase of the Residential Property has not occurred; (iii) January 1, 2027 if the Developer has not met the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 8 conditions for conveyance of the leasehold interest in the Residential Property for the second Phase of the Development and the Close of Escrow for the second Phase of the Residential Property has not occurred; or (iv) January 1, 2028 if the Developer has not met the conditions for conveyance of the leasehold interest in the Residential Property for the third Phase of the Development and the Close of Escrow for the third Phase of the Residential Property has not occurred.
(eee) "Title Company" means Old Republic Title Company, or such other title company as the Parties may mutually select.
(fff) "Title Report" means that certain title report dated March 24, 2023, issued by the Title Company for the Property.
(ggg) "Transfer" has the meaning set forth in Section 5.4.
Section 1.2 Exhibits.
The following exhibits are attached to and incorporated in the Agreement:
Exhibit A: Legal Description of the Property
Exhibit B: Development Schedule
Exhibit C: Scope of Development
Exhibit D: Site Map and Phasing Plan
Exhibit E: Financing Proposal
Exhibit F: Form of Affordable Housing Covenant
Exhibit G: Form of Ground Lease
Exhibit H: Form of City Contract Addendum
Exhibit I Form of City Note
Exhibit J Form of Construction License Agreement
ARTICLE 2.
PREDISPOSITION REQUIREMENTS FOR
CONVEYANCE OF THE LEASEHOLD INTEREST IN THE PROPERTY
Section 2.1 Conditions Precedent to Disposition of the Leasehold Interest in the Property.
The requirements set forth in this Article 2 are conditions precedent to the City's obligation to convey any Phase of the leasehold interest in the Residential Property to the Developer pursuant to the Ground Lease and shall be applicable to each Phase conveyance. The City shall have no obligation to convey any portion of the leasehold interest in the Residential Property to the Developer unless the Developer has satisfied the conditions precedent set forth in this Article 2 in the manner set forth below and within the timeframe set forth in the Development Schedule. In the event of any conflict between the terms of this Section and any other provision of this Agreement, the terms of this Section shall control.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 9 Section 2.2 City Regulatory Approvals.
No later than the date set forth in the Development Schedule, the Developer shall apply for all of the City Regulatory Approvals. All applications shall conform to the description of the Improvements set forth in Scope of Development, unless a variation has been previously approved by the City in writing. No later than the date set forth in the Development Schedule, the Developer shall obtain the City Regulatory Approvals.
Developer agrees that the Developer will seek community input on the concept and design for the Development from the City Planning Commission, the Housing Committee, the Parks and Recreation Committee, the Bicycle/Pedestrian Advisory Committee and the Public Art Committee and that any meeting with the above commissions and committees shall not constitute a hearing for purposes of Government Code Section 65905.5(a).
Nothing herein shall in any way limit the City's discretion in considering any applications submitted by the Developer for the City Regulatory Approvals or approval of such applications.
The City retains its full discretion to consider any application submitted by the Developer in accordance with its standard policies and procedures.
Section 2.3 Financing Plan.
(a) Financing Proposal. As of the Effective Date, the City has approved the preliminary Financing Proposal attached to this Agreement as Exhibit E. (b) Financing Plan. No later than the date set forth in the Development Schedule, the Developer shall submit an updated and revised Financing Proposal for each Phase, as well as commitment letters, and all other related documentation, for all Financing and from the Investor for the applicable Phase, and setting forth the Developer's revisions to the Financing Proposal based on such commitment letters, to the City for approval. The Developer’s Financing Proposal shall include evidence that the Developer conducted a competitive selection process for the construction and permanent lenders and the tax credit investor in order to obtain the most competitive pricing, terms and conditions for such financing. The City shall reasonably approve or disapprove the revised Financing Proposal in writing within thirty (30) calendar days of the City's receipt of all such documentation; provided, however, in no event shall the City approve of any proposal that requires, or contemplates that: (i) the City encumber its fee interest in the Residential Property with a mortgage or deed of trust, other than any Ground Lease rider required as a term of funding from the California Department of Housing and Community Development (“HCD”) or the California Tax Credit Allocation Committee, or the United States Department of Housing and Urban Development (“HUD”); (ii) the Affordable Housing Covenant be subordinated to any mortgage, deed of trust or other encumbrance except as required by HUD or HCD; (iii) includes a developer fee that exceeds the maximum developer fee permitted by the California Department of Housing and Community Development Uniform Multifamily Housing Regulations as such regulations currently exist or may be amended from time to time; (iv) does not include an equity contribution from the general partner of the Partnership in an amount consistent with the preliminary Financing Proposal. The City shall have sole discretion to approve any Financing Plan that includes additional financing from the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 10 City. The Developer's updated Financing Proposal approved by the City (if any) for a particular Phase shall be referred to as the "Phase Financing Plan". (c) City Review. The Developer shall not rely on the City's approval of a Phase Financing Plan as a representation of any kind, including but not limited to the business advantage of the terms of any of the Financing or any documentation thereof. The City's approval shall merely constitute satisfaction of the condition set forth in this Section. If a Financing Proposal is disapproved by the City, the Developer shall have fifteen (15) calendar days from the date of the Developer's receipt of the City's notice of disapproval to submit a revised Financing Proposal. The provisions of this Section relating to time periods for approval, disapproval and resubmission of a new Financing Proposal shall continue to apply until the revised Phase Financing Plan has been approved by the City; provided, however, that if the City's approval of the revised Phase Financing Plan has not been obtained by the date set forth in the Development Schedule, the City may terminate this Agreement pursuant to Article 8. Failure of the City to respond within the thirty (30) day period(s) set forth above shall be deemed approval by the City.
(d) Competitive Bidding. The Developer shall conduct a competitive bid process for the selection of the construction and permanent lenders and the tax credit investor in order to obtain the most competitive pricing, terms and conditions for such financing. Prior to soliciting bids for any such financing, the Developer shall submit to the City, for its review and approval, any bid documents and the list of lenders and investors to receive such documents. The City shall have fifteen (15) calendar days from the date of receipt of the documents to approve or disapprove the documents. If the bid documents 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.
The Developer shall thereafter submit revised bid documents for City approval, which approval shall be granted or denied in fifteen (15) days. Failure of the City to respond within the fifteen (15) day period(s) set forth above shall be deemed approval by the City. (e) Use of Vouchers or other Tenant Subsidies. The Developer’s Financing Proposal may include Project Based Vouchers or other tenant subsidies only if the Developer has received a firm commitment for such subsidies. The Developer may not delay proceeding with the Development in expectation of a receiving a commitment of Project Based Vouchers or other tenant subsidy at a later date, without approval of the City.
Section 2.4 Construction Plans and Building Permit.
(a) Construction Plans. The Developer shall prepare construction plans for the construction of each Phase of the Improvements. The final construction plans for each Phase of the Improvements submitted by the Developer for City approval shall consist of all construction documentation upon which the Developer and its contractors shall rely in building the Improvements for the applicable Phase. Such construction plans shall include (without limitation) final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications, mechanical, plumbing and HVAC (also known as "working drawings"). The construction plans shall be based upon any preliminary or conceptual drawings DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 11 previously approved by the City, and shall be consistent with the City Regulatory Approvals and the Scope of Development, and shall not materially deviate from them without the written consent of the City. The City and the Developer acknowledge that the construction plans may deviate from the Scope of Development in order to accommodate the conversion of Market Drive to a pedestrian only right of way, as required by City approvals for the adjacent property.
As part of the construction plans submitted to the City pursuant to this Agreement, the Developer shall include an FF&E plan for the Amenity spaces included in the Phase. (b) Building Permit. No later than the date set forth in the Development Schedule, the Developer shall apply for the City's regulatory final building permit plan check approval for each Phase of the Development. After submitting applications for the Building Permit as set forth above, the Developer shall diligently pursue and obtain the Building Permit for the applicable Phase of the Improvements, no later than the date set forth in the Development Schedule. For the purposes of this Agreement, the Developer shall be deemed to have satisfied the condition precedent to obtain the Building Permit for a Phase of the Improvements by delivering evidence to the City that the Developer has received an issue ready letter from the City's building department to commence construction of the Improvements. Only upon delivery to the City of such evidence in a form reasonably satisfactory to the City for a particular Phase shall the predisposition condition of this Section for such Phase be deemed met. (c) City Discretion. As set forth in Section 7.15, the Developer acknowledges that execution of this Agreement by the City does not constitute approval by the City of any required permits and in no way limits the discretion of the City in the permit approval process.
The Developer's failure to satisfy the requirements of this Section by the specific date set forth in the Development Schedule for any Phase shall constitute a Developer Event of Default pursuant to Article 8. As part of the Developer's application for a Building Permit for a Phase, the City shall also have the right to review and approve the proposed construction plans for conformance with the Scope of Development, and the other commitments made by the Developer to the City.
The Developer acknowledges that the City's right to review and approve the proposed construction plans as allowed by this paragraph is in addition to, and shall not be limited by, the City's regulatory obligation to review the Developer's proposed construction plans for consistency with applicable building and construction code requirements. The Developer further acknowledges that the City shall have no obligation to approve such proposed plans in the event that the Developer fails to incorporate the City's reasonably requested changes or modifications to the proposed construction plans to conform to the Scope of Development (even in the event that such requested changes or modifications exceed the minimum thresholds set forth in the applicable building code and have not been required by the City's building department). (d) Proposed Changes. As approved, these construction plans for each Phase of the Improvements shall be referred to as the "Construction Plans". Following the Close of Escrow for each Phase, any proposed change to the Construction Plans for such Phase shall be governed by the Ground Lease applicable to the Phase.
Section 2.5 Construction Contract.
(a) Contract Requirements. No later than the date set forth in the Development Schedule, the Developer shall submit to the City for its limited approval the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 12 proposed construction contract for each Phase of the Improvements. The City's review and approval shall be limited exclusively to a determination whether: (i) the guaranteed maximum construction cost, or stipulated sum, set forth in the construction contract is consistent with the approved Phase Financing Plan; (ii) the construction contract is with a contractor duly licensed by the State of California and reasonably acceptable to the City; (iii) the construction contract contains provisions consistent with this Agreement and the Ground Lease for the applicable Phase; (iv) the construction contract requires a retention of ten percent (10%) of hard costs until completion of the Improvements (provided, however, the construction contract may provide for the release of retention, prior to completion of the Improvements, to certain specified subcontractors that have completed all of their work on the applicable Phase of Development as reasonably approved by the City); (v) the construction contract requires the payment of prevailing wages in accordance with the Ground Lease and Labor Code Sections 1720 et seq.; (vi) the construction contract includes the City Contract Addendum, in the form of Exhibit H; (vii) the construction contract includes language indemnifying the City for any and all claims resulting from the construction in a form to be provided by the City; and (viii) the construction contract includes the applicable insurance requirements as set forth in the Agreement and the applicable Ground Lease.
(b) City Review. Upon receipt by the City of the proposed construction contract, the City shall promptly review same and approve it within fifteen (15) days if it satisfies the limited criteria set forth above. 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 fifteen (15) days in accordance with the criteria and procedures set forth above. Failure of the City to respond within the fifteen (15) day period(s) set forth above shall be deemed approval by the City. Any construction contract executed by the Developer for any Phase of the Improvements shall be in a form approved or deemed approved by the City. The Developer shall not rely on the City's approval of the construction contract(s) as a representation regarding the enforceability or business advantage of the construction contract(s). City approval shall merely constitute satisfaction of the condition set forth in this Section. The City's approval of the construction contract shall in no way be deemed to constitute approval of, or concurrence with, any other term or condition of the construction contract.
Section 2.6 Construction Bonds.
(a) Requirements. No later than the date set forth in the Development Schedule, the Developer shall deliver to the City forms of one (1) labor and material bond and one (1) performance bond for each Phase of the Improvements issued by a reputable insurance company licensed to do business in California, and named in the current list of "Surety Companies Acceptable on Federal Bonds" as published in the Federal Register by the Audit Staff Bureau of Accounts, U.S. Treasury Department, and reasonably acceptable to the City, each in a penal sum of not less than one hundred percent (100%) of the scheduled cost of construction of the applicable Phase of the Improvements as set forth in the approved construction contract, for the City's review and approval. The bonds shall name the City as co-obligee. Upon receipt by the City of the proposed payment and performance bonds, the City shall promptly review such bonds and approve them within fifteen (15) days if they satisfy the criteria set forth above, and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 13 include any other modification reasonably requested by the City. If the payment and performance bonds 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. The Developer shall thereafter submit revised payment and performance bonds for City approval, which approval shall be granted or denied in fifteen (15) days in accordance with the criteria and procedures set forth above. Failure of the City to respond within the fifteen (15) day period(s) set forth above shall be deemed approval by the City.
(b) Delivery of Bonds. Prior to the Close of Escrow for each Phase, the Developer shall deliver to the City copies of actually issued bonds substantially identical to the forms previously delivered to, and approved by, the City. The Developer may elect to satisfy the obligation set forth in this Section 2.6 by delivering bonds which name the Developer's general contractor(s), and not the Developer, as the principal. Only upon City receipt of such bonds shall the pre-disposition conditions of this Section 2.6 be deemed met. If such bonds are not received within the time set forth above, this Agreement may be terminated pursuant to Article 6.
Section 2.7 Insurance.
The Developer shall furnish to the City evidence of the insurance coverage meeting the requirements set forth in the Ground Lease for each Phase including any insurance required from the Contractor and any design professionals, no later than the date set forth in the Development Schedule.
Section 2.8 Other Governmental Approvals.
The Developer shall have obtained any other required governmental approvals and permits, if any for the applicable Phase of the Improvements.
Section 2.9 Site Remediation.
(a) The Developer shall be responsible for any Hazardous Materials remediation required for construction and operation of the Developmentat the Developer’s sole cost, except as set forth herein. The Parties understand that any remediation required and to be performed by Developer will be based on a “brownfield” cleanup model and designed to remediate impacted areas at the Property to a level consistent with the Development, and that such remediation would not remove all Hazardous Materials from the Property. As such, any such remediation would likely include and rely upon the use of long-term engineering and institutional controls following remediation for areas with residual impacts. The City understands that such controls may include capping, vapor intrusion mitigation, an ongoing soil or operation and maintenance plan for the Property, and recordation of a deed restriction (also known as a land use covenant or (“LUC”) estabilishing certain limitations and obligations with respect to portions of the Property. The City agrees to cooperate with Developer, at no cost to Developer, as may be required to obtain and record any such LUC.
(b) Within the time established in the Schedule of Performance, the Developer shall negotiate and obtain a fully executed agreement with the California Department of Toxic Substances Control (“DTSC”) or the California Regional Water Quality Control Board, San Francisco Bay Region (“Water Board”) pursuant to the California Property Reuse and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 14 Revitalization Act of 2004 (Health and Safety Code Section 25395 et seq. (“CLRRA Agreement”). In lieu of a CLRAA Agreement, Developer may, in its sole discretion, elect to enter into a prospective purchaser agreement (“PPA”) with such agency(ies). Obtaining a CLRRA Agreement or PPA that is satisfactory to the Developer, in its sole and absolute discretion, is a condition precedent to the conveyance of any Phase of the Residential Property.
The City shall cooperate with the Developer in obtaining a CLRRA Agreement and/or PPA, provided, however, in no event shall the City be required to incur any expenditures in connection with such cooperation. If Developer is diligently pursuing the CLRRA Agreement or PPA but despite Developer’s reasonable best efforts is unable to obtain the CLRRA Agreement or PPA within the time set forth in the Schedule of Performance, the times for performance set forth in the Schedule of Performance shall be extended by the period of delay caused by the failure to obtain the CLRRA Agreement or PPA on a day for day basis (“CLRRA Extension”) provided however, any such extension shall not exceed one year without approval of an amendment to this Agreement by the Emeryville City Council.
The City shall provide Brownfield Remediation program funding to the Developer to assist with remediation of the Property in the form of a grant or loan, with terms to be mutually agreed upon by the Parties, provided however, in no event shall the City’s assistance exceed the amount available to the City pursuant to the Brownfield Remediation Program which is currently estimated to be One Million Four Hundred Thousand Dollars ($1,400,000). Parties intend to finalize the terms of the Brownfield Remediation program funding prior to execution of the Ground Lease for the development of Building A.
Section 2.10 City Approval of Amenity Plan.
Within the time established in the Schedule of Performance, Developer shall submit to City a proposed Amenity Plan for each Phase, in a form acceptable to the City and consistent with the Scope of Development. The Amenity Plan shall include, but not be limited to the following: (a) the type of amenity/common area space provided in each Phase; (b) the square footage of each amenity space; (c) anticipated programming and services for each amenity or amenity space; (d) the FF&E to be include within each amenity space; (e) resident access plan for each amenity; (f) operational hours for each amenity; and (g) potential secondary uses of any amenity space (“Amenity Plan”). Amenity space shall be open to all residents within the Project, unless otherwise approved by the City. The City shall approve or disapprove the proposed Amenity Plan within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City disapproves the Amenity Plan, the City shall do so by written notice to Developer stating the reasons for such disapproval. The City shall approve or disapprove any newly submitted Amenity Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Amenity Plan initially submitted to City.
Section 2.11 City Approval of Residential Marketing Plan.
Within the time established in the Schedule of Performance, Developer shall submit to City an initial residential marketing plan for each Phase, in a form acceptable to City and consistent with the provisions of the Affordable Housing Covenant (the “Residential Marketing Plan”). The City shall approve or disapprove the proposed Residential Marketing Plan within DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 15 the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City disapproves the Residential Marketing Plan, the City shall do so by written notice to Developer stating the reasons for such disapproval. The City shall approve or disapprove any newly submitted Residential Marketing Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Residential Marketing Plan initially submitted to City. Such approval by the City shall not waive, limit, or impair the City’s rights under the Affordable Housing Covenant.
Section 2.12 City Approval of Supportive Services Plan. Within the time established in the Schedule of Performance, Developer shall submit to City an initial supportive services plan for each Phase of the Improvements, in a form acceptable to City and consistent with the provisions of the Affordable Housing Covenant (“Supportive Services Plan”). The City shall approve or disapprove the proposed Supportive Services Plan within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City disapproves the Supportive Services Plan, the City shall do so by written notice to Developer stating the reasons for such disapproval. The City shall approve or disapprove any newly submitted Supportive Services Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Supportive Services Plan initially submitted to City. Such approval by the City shall not waive, limit, or impair the City’s rights under the Affordable Housing Covenant.
Section 2.13 City Approval of Property Management Plan. Within the time established in the Schedule of Performance and as a condition to conveyance of the first Phase of the Residential Property, Developer shall submit to the City for review and approval an initial property management plan that provides for management of the Residential Property, including maintenance, inspection, and repair of the Improvements and landscaping on the Property, and compliance with the requirements of any recorded LUC ("Property Management Plan"). The Property Management Plan shall include, but is not limited to, the following: (a) a maintenance schedule which specifies maintenance work, such as roof replacement, painting, pavement replacement, fixtures replacement, including HVAC and water heaters, to be performed on a scheduled basis over five years during the term of each Ground Lease, (b) a maintenance budget identifying the amounts and scheduling of spending on items in the maintenance schedule described in (a) above; (c) semi-annual inspections of individual residential units to ensure continued compliance with state and local housing codes, (d) a maintenance fund where monies are deposited to cover the cost of scheduled spending on items in the maintenance schedule, (e) annual reporting to the City on compliance with the maintenance schedule, findings and any corrective measures taken or to be taken arising from the semi-annual inspections, (f) painting of the exterior of the Improvements, (g) maintenance of outdoor landscaping, outdoor lighting, parking area paving, stops, curbs, striping, laundry room facilities, garbage and recycling receptacles, and general sanitation and cleanliness of the Improvements, (h) schedule of interior renovation, including repainting, carpet cleaning and replacement, floor refinishing and replacement, and kitchen, bathroom, and laundry room facilities replacement, and (i) an assessment of the Improvements no less frequent than every five (5) years to evaluate the capital needs of the Improvements and evaluation of reserves needed to fund such capital needs. The City's approval shall not be unreasonably withheld, conditioned or delayed. If the City disapproves the Property Management Plan, the City shall do so by written notice to Developer stating the reasons for such disapproval. The City shall approve or disapprove any newly DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 16 submitted Property Management Plan in the same manner as the Property Management Plan initially submitted to City. Such approval by the City shall not waive, limit, or impair the City's rights under the Affordable Housing Covenant. Prior to the conveyance of each subsequent Phase of the Residential Property, the Developer shall submit to the City any updates to the Property Managment Plan, if any, to address any particular property management issues related to the applicable Phase. The City shall approve or disapprove any updates to the Property Management Plan in the same manner as the initial Property Management Plan submitted to the City.
Section 2.14 Construction License Agreement. Prior to the conveyance of the first Phase, Developer, or an affiliate(s), shall have entered into a construction license agreement or other agreements, including but not limited to a Project Improvement Agreement with the City to provide for: (i) the construction of the Park Improvements on the Park Property; (ii) the demolition of the Existing Building located at 5900 Christie Avenue if that portion of the Property is not part of the Ground Lease for the First Phase; (iii) site work, utilities and infrastructure work for the second Phase on the Residential Property; and (iv) construction staging on the second Phase of the Residential Property not ground leased in the first Phase to the first Phase Partnership (the “Construction License Agreement”). The form of the Construction License Agreement is attached hereto as Exhibit J.
Section 2.15 Memorandum of Understanding related to Market Drive. Prior to conveyance of the first Phase, Developer shall have used diligent efforts to enter into a Memorandum of Understanding with Emeryville Holdings (DE) LLC, the owner of the Emeryville Public Market (“MOU”) regarding the configuration and location of landscaping and other site improvements related to conversion of Market Drive to a pedestrian right of way, provided, however, if despite Developer’s good faith and diligent efforts it is unable to obtain an MOU but all other conditions precedent to the City’s conveyance of the first Phase of the Residential Property have been satisfied or waived, the Developer may request the City waive this condition, which waiver the City shall grant in its reasonable discretion.
Section 2.16 No Default.
No Developer Event of Default shall exist under this Agreement.
Section 2.17 No Litigation.
There shall be no unresolved litigation challenging the City Regulatory Approvals, the City's authority to enter into this Agreement or the Ground Lease or the Development.
ARTICLE 3.
CEQA PROVISIONS
Section 3.1 No City Obligation; Developer at Risk. In the event the Developer utilizes the process set forth in Government Code Section 65913.4 in connection with the Development or any Phase thereof, then the Parties agree that this Article shall not apply. In the event the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 17 Developer elects not to utilize such process, then the Developer shall notify the City, in writing, of such determination, and thereafter, the Parties shall comply with all of the applicable requirements of CEQA. Notwithstanding any provision of this Agreement to the contrary, as more particularly set forth in this Article, nothing in this Agreement, including, but not limited to the execution of this Agreement shall be construed to compel the City Council to approve or make any particular findings with respect to any CEQA approval or documentation required for the Project, or approve or make findings with respect to the applicable land use approvals, and the Developer assumes all risks regarding CEQA, including, but not limited to, the risk that the Project may not be approved by the City Council, and that the City Council may impose mitigation measures on the Project, including but not limited, mitigation measures not contemplated by the Developer, and all risks regarding the applicable land use approvals.
Section 3.2 Developer Acknowledgement regarding City Council Discretion. The Developer acknowledges that the environmental review process under CEQA involves the preparation and consideration of certain information by the City Council, as well as consideration of input from third-parties; that approval or disapproval of the Project following completion of the environmental review process pursuant to CEQA is within the sole and absolute discretion of the City Council without limitation by, or consideration of, the terms of this Agreement; and that the City makes no representation regarding the ability or willingness of the City Council to approve the Project at the conclusion of the environmental review process required by CEQA, or regarding the imposition of any mitigation measures as conditions of any approval that may be imposed by the City Council. The City Council retains, to the maximum extent permitted under applicable law, its full discretion under CEQA and applicable planning and zoning laws to: (a) make such modifications to any entitlements, permits or approvals as may be reasonably necessary to impose reasonable measures to mitigate any significant environmental impacts of the proposed Project; (b) select other reasonable alternatives to avoid significant environmental impacts of the proposed Project; (c) balance the benefits of the proposed Project against any significant environmental impacts of the proposed Project (if any) prior to taking final action if such significant impacts cannot otherwise be reasonably avoided; (d) determine not to proceed with the proposed Project in the event there are substantial environmental impacts that cannot be feasibly reasonably mitigated so the proposed Project can be approved without a statement of overriding considerations; or (e) take such other actions to approve or not approve the proposed Project as determined by the City Council. In addition, any required approvals by any other local, state or federal agency (or any other required approvals under any applicable local, state, or federal law) may require additional environmental review, and that approval by the City Council pursuant to CEQA (if any) shall not bind any other local, state or federal agency to approve the Project (or otherwise satisfy any requirements of any other applicable local, state, or federal law, including, to the extent such laws may be applicable to the proposed Project), or bind any other local, state or federal agency to impose mitigation measures that are consistent with the terms of this Agreement or with the terms of any mitigation measures that may be required by the City Council pursuant to the City's environmental review in accordance with CEQA.
Section 3.3 Termination following Completion of CEQA; Developer Release. Either Party has the right to terminate this Agreement if the City Council disapproves the Project following completion of the environmental review process pursuant to CEQA. In addition, the Developer may terminate this Agreement if Developer determines that the implementation of any DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 18 mitigation measures required pursuant to CEQA would cause development of the Project to become economically infeasible. To effectuate such termination of this Agreement, the terminating Party shall deliver a written notice to the other Party setting forth that this Agreement is terminated pursuant to this Section within ten (10) days following the City Council's final action under CEQA. In the event this Agreement is terminated pursuant to this Section, then the City: (a) shall have no obligation to execute the Ground Lease, or convey any other interest in the Residential Property, to the Developer; and (b) shall have no further obligation or duty under this Agreement (except for any provision that expressly survives the termination of this Agreement). The City further acknowledges that due to the termination of this Agreement as set forth above, the City may suffer economic loss or other consequences due to the failure of the Property to be developed, including, but not limited to, economic loss or other consequences due to the City's inability to operate, or to permit the operation of, any particular form of business at the Property. In the event of such a termination of this Agreement under this Section 3.3, then the Developer shall have no further duties or obligations under this Agreement (except for any provision that expressly survives the termination of this Agreement). The Developer further acknowledges that due to the termination of this Agreement as set forth above, the Developer shall have no right, pursuant to this Agreement, to acquire the Residential Property, and, therefore, may suffer economic loss or other consequences, including, but not limited to, economic loss or other consequences due to the Developer's inability to obtain any interest in the Residential Property, develop the Property, or to operate, or to permit the operation of, any particular form of business at the Residential Property. The City and Developer, on behalf of themselves and anyone claiming by, through or under each of them specifically releases and waives any claim against the other Party for such loss or economic consequences in connection with the termination of this Agreement following completion of all applicable requirements of CEQA, or any other failure of any, or all, of the conditions precedent set forth below. The City and Developer, on behalf of themselves and anyone claiming by, through or under each of them, hereby assumes the above-mentioned risks and hereby expressly waives any right the Developer or City and anyone claiming by, through or under the Developer or City, may have under Section 1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or her settlement with the debtor or released party." .
Developer's Initials: _______ City Initials: _______
Section 3.4 Conflict with other provisions. In the event of any conflict between the terms of this Article, and the terms of any other provision of this Agreement, the terms of this Article shall control; provided, however, this Article shall only apply in the event the Developer does not utilize the streamlined approval process permitted by Government Code Section 65913.4.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 19 ARTICLE 4.
DISPOSITION OF THE LEASEHOLD INTEREST IN THE PROPERTY
Section 4.1 Opening Escrow.
To accomplish the transfer of each Phase of the leasehold interest in the Residential Property from the City to the Developer, the Parties shall, within ninety (90) days after the Effective Date, establish an escrow with the Title Company. The Parties shall execute and deliver all written instructions to the Title Company to accomplish the terms hereof, so long as such instructions are consistent with this Agreement.
Section 4.2 Close of Escrow.
The Close of Escrow for each Phase shall occur within thirty (30) days after the Developer has met all of its pre-disposition conditions as set forth in Article 2 above and as set forth below for such Phase, but in no event shall the Close of Escrow occur later than the time set forth in the Development Schedule, unless extended in writing by the City. At the Close of Escrow, the City shall convey the applicable Phase of the leasehold interest in the Residential Property to Developer by the execution of a Ground Lease in substantially the form set forth in the attached Exhibit G, and the execution of a Memorandum of Ground Lease and the recordation of the Memorandum of Ground Lease against the Residential Property.
Section 4.3 Conditions to Conveyance. The City's obligation to convey any Phase of the leasehold interest in the Residential Property to the Developer shall be subject to satisfaction of the following pre-conditions:
(a) Article 2 Conditions. The conditions precedent set forth in Article 2 above shall have been satisfied in accordance with the Development Schedule or waived by the City.
(b) Representations. The representations, warranties, and covenants of the Developer set forth in Section 7.19 shall be true and correct, and fully observed, as of the Effective Date and as of the Close of Escrow.
(c) No Developer Event of Default. There exists no Developer Event of Default nor any act, failure, omission or condition that would constitute a Developer Event of Default under this Agreement, or under any Ground Lease that the Parties may have entered into. (d) Developer Authority. The Developer has delivered to the City a copy of the Developer's organizational documents and corporate resolution(s) authorizing the Developer's execution of the Ground Lease and the acquisition of the applicable Phase of the Residential Property and the transactions contemplated by this Agreement. (e) City Documents. The Developer has executed and delivered to the City:
(i) the Ground Lease for the applicable Phase; (ii) the Memorandum of Ground Lease for the applicable Phase; and (iii) the Affordable Housing Covenant for the applicable Phase. In addition, the Memorandum of Ground Lease, and the Affordable Housing Covenant have been DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 20 recorded against applicable Phase of the Residential Property, or the Developer's leasehold interest in the Residential Property (as applicable).
(f) Developer Payment. The Developer has paid, or the Title Company is prepared to release, to the City the Developer Payment, as evidenced by the final settlement statement for the closing of the Financing approved by the City.
Section 4.4 Condition of Title. At the Close of Escrow, the City shall deliver title to the leasehold interest in the Residential Property free and clear of all liens, encumbrances, clouds and conditions, rights of occupancy or possession, except those set forth in the Title Report.
Section 4.5 Condition of the Property.
(a) Hazardous Materials. In fulfillment of the purposes of Health and Safety Code Section 25359.7(a), to the City's Current Actual Knowledge, no release of Hazardous Materials has come to be located on or beneath the Property, except as previously disclosed by the City to the Developer (as applicable). During the negotiating period, as set forth in the ERN, the Developer completed all due diligence activities, including but not limited to the inspection of the Existing Building, and a physical adequacy determination of the Property, and may not terminate this Agreement as a result of the purported physical unsuitability of the Property or condition of the Existing Building. As used in this Agreement, the phrase "to the City's Current Actual Knowledge" and words of similar import shall mean the actual knowledge of Chadrick Smalley, Community Development Director (the "City Representative"), on behalf of the City, as of the Effective Date, without any duty of separate inquiry and investigation. The City represents and warrants that the City Representative is that person affiliated with the City most knowledgeable regarding the ownership and operation of the Property. Developer hereby agrees that the foregoing person shall not have or incur any personal liability for the breach of any representation or warranty in this Agreement, and that Developer's sole remedy for any such breach shall be against the City.
(b) "AS IS" CONVEYANCE. EXCEPT AS SET FORTH ABOVE, THE
DEVELOPER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE CITY
IS CONVEYING AND THE DEVELOPER IS ACCEPTING THE LEASEHOLD INTEREST IN EACH PHASE OF THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS, INCLUDING, BUT NOT LIMITED TO THE, CONDITION OF THE
EXISTING BUILDING, AND THAT THE DEVELOPER IS NOT RELYING ON ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS (EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT) OR IMPLIED,
FROM THE CITY AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION: (A) THE QUALITY, NATURE, ADEQUACY
AND PHYSICAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT
LIMITATION, TOPOGRAPHY, CLIMATE, AIR, WATER RIGHTS, WATER, GAS,
ELECTRICITY, UTILITY SERVICES, GRADING, DRAINAGE, SEWERS, ACCESS TO PUBLIC ROADS AND RELATED CONDITIONS); (B) THE QUALITY, NATURE,
ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND
GROUNDWATER; (C) THE DEVELOPMENT POTENTIAL OF THE PROPERTY,
AND THE PROPERTY'S USE, HABITABILITY, MERCHANTABILITY, OR FITNESS, DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 21 SUITABILITY, VALUE OR ADEQUACY OF THE PROPERTY FOR ANY PARTICULAR PURPOSE; (D) THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS WITHIN THE EXISTING BUILDING OR ON, UNDER OR ABOUT THE PROPERTY; AND (E) THE CONDITION OF TITLE TO THE PROPERTY. THE
DEVELOPER AFFIRMS THAT THE DEVELOPER HAS NOT RELIED ON THE
SKILL OR JUDGMENT OF THE CITY OR ANY OF ITS RESPECTIVE AGENTS,
EMPLOYEES OR CONTRACTORS TO SELECT OR FURNISH THE PROPERTY FOR
ANY PARTICULAR PURPOSE, AND THAT THE CITY MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE. THE
DEVELOPER ACKNOWLEDGES THAT IT SHALL USE ITS INDEPENDENT
JUDGMENT AND MAKE ITS OWN DETERMINATION AS TO THE SCOPE AND
BREADTH OF ITS DUE DILIGENCE INVESTIGATION WHICH IT SHALL MAKE
RELATIVE TO THE PROPERTY AND SHALL RELY UPON ITS OWN
INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC AND
LEGAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION,
WHETHER THE PROPERTY IS LOCATED IN ANY AREA WHICH IS DESIGNATED
AS A SPECIAL FLOOD HAZARD AREA, DAM FAILURE INUNDATION AREA,
EARTHQUAKE FAULT ZONE, SEISMIC HAZARD ZONE, HIGH FIRE SEVERITY
AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY). THE DEVELOPER UNDERTAKES AND ASSUMES ALL RISKS
ASSOCIATED WITH ALL MATTERS PERTAINING TO THE PROPERTY'S
LOCATION IN ANY AREA DESIGNATED AS A SPECIAL FLOOD HAZARD AREA,
DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT ZONE, SEISMIC
HAZARD ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY.
(c) Representations. The City is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property furnished by any contractor, agent, employee, servant or other person. The Developer acknowledges that the lease payments reflect the "as is" nature of this transaction and any faults, liabilities, defects or other adverse matters that may be associated with the Property. The Developer has fully reviewed the disclaimers and waivers set forth in this Agreement with the Developer's counsel and understand the significance and effect thereof.
(d) Acknowledgment. The Developer acknowledges and agrees that (i) to the extent required to be operative, the disclaimers of warranties contained in this Section are "conspicuous" disclaimers for purposes of all applicable laws and other legal requirements, and (ii) the disclaimers and other agreements set forth in such sections are an integral part of this Agreement, that the Ground Leases have been adjusted to reflect the same and that the City would not have agreed to convey the Property to the Developer pursuant to the Ground Leases without the disclaimers and other agreements set forth in this Section. (e) Developer's Release of the City. The Developer, on behalf of itself and anyone claiming by, through or under the Developer hereby waives its right to recover from and fully and irrevocably releases the City and its council members, employees, and agents (the "Released Parties") from any and all claims, responsibility and/or liability that the Developer may have or hereafter acquire against any of the Released Parties for any costs, loss, liability, DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 22 damage, expenses, demand, action or cause of action arising from or related to: (i) the condition (including any construction defects, errors, omissions or other conditions, latent or otherwise), valuation, salability or utility of the Property, or its suitability for any purpose whatsoever, (ii) any presence of Hazardous Materials, and (iii) any information furnished by the Released Parties under or in connection with this Agreement.
(f) Scope of Release. The release set forth in Section 4.5 hereof includes claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer's release of the Released Parties. The Developer specifically waives the provision of any statute or principle of law that provides otherwise. In this connection and to the extent permitted by law, the Developer agrees, represents and warrants that the Developer realizes and acknowledges that factual matters now unknown to the Developer may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Developer nevertheless hereby intends to release, discharge and acquit the City from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses. Accordingly, the Developer, on behalf of itself and anyone claiming by, through or under the Developer, hereby assumes the abovementioned risks and hereby expressly waives any right the Developer and anyone claiming by, through or under the Developer, may have under Section 1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or her settlement with the debtor or released party." Developer's Initials: __________
Notwithstanding the foregoing, this release shall not apply to, nor shall the City be released from, the City's actual fraud or intentional misrepresentation.
Section 4.6 Costs of Escrow and Close of Escrow. Ad valorem taxes, if any, shall be prorated as of the Close of Escrow. The lien of any bond or assessment shall be assumed by the Developer and assessments payable thereon shall be prorated as of the Closing Date. The City shall pay any delinquent ad valorem taxes and any amounts owning for delinquent bonds and assessments as of the date of conveyance. The Developer shall bear the costs of title insurance for any owner's title insurance policy desired by the Developer, all other title insurance policies, and all other costs of escrow (including the Title Company's fee). The costs borne by the Developer shall be in addition to the rent paid by the Developer to the City pursuant to any Ground Lease, the Developer Payment, or any other amounts owed by the Developer to the City.
Section 4.7 Estoppel Certificates. At the Close of Escrow and at the request of the Developer’s lenders or investor limited partner, the City shall deliver to the party requesting same a statement in writing certifying that upon full execution of the Ground Lease for the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 23 applicable Phase and conveyance of the applicable Phase of the Residential Property, this Agreement shall have no further force and effect with respect to such Phase, that this Agreement is unmodified and in full force and effect (or if there shall have been modifications that the same is in full force and effect as modified and stating the modifications) and stating whether or not, to the best knowledge of the City, the Developer is in default in the performance of any covenant, agreement or condition contained in this Agreement and, if so, specifying each such default of which the City may have knowledge and such other statements or certifications reasonably requested.
ARTICLE 5.
ASSIGNMENT AND TRANSFERS
Section 5.1 Definitions.
As used in this Article , the term "Transfer" means:
(a) Property. Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, of or with respect to this Agreement or of the Developer's interest in the Property or the Improvements or any part thereof or any interest therein or any contract or agreement to do any of the same; or (b) Developer. Any total or partial sale, assignment or conveyance, of any trust or power, or any transfer in any other mode or form, of or with respect to any ownership interest in Developer, or
(c) Merger. Any merger, consolidation, sale or lease of all or substantially all of the assets of Developer.
Section 5.2 Purpose of Restrictions on Transfer.
This Agreement is entered into solely for the purpose of the development and operation of the Development and its subsequent use in accordance with the terms hereof and the terms of the City Documents. The Developer recognizes that the qualifications and identity of Developer are of particular concern to the City, in view of: (i) The importance of the redevelopment of the Property to the general welfare of the community; (ii) The public assistance and other public aids that have been made available by law and by the government for the purpose of making such redevelopment possible; (iii) The reliance by the City upon the unique qualifications and ability of the Developer to serve as the catalyst for development of the Property and upon the continuing interest which the Developer will have in the Property to assure the quality of the use, operation and maintenance deemed critical by the City in the development of the Property; (iv) The fact that the Property is not to be leased or used for speculation, but only for development and operation by the Developer in accordance with the Agreement; and (v) The importance to the City and the community of the standards of use, operation and maintenance of the Property. The Developer further recognizes that it is because of such qualifications and identity that the City is entering into this Agreement with the Developer and that Transfers are permitted only as provided in this Agreement.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 24 Section 5.3 Prohibited Transfers.
The limitations on Transfers set forth in this Article shall apply throughout the Term.
Except as expressly permitted in this Agreement, the Developer represents and agrees that the Developer has not made or created, and will not make or create or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the City. Any Transfer made in contravention of this Section 5.3 shall be void and shall be deemed to be a Developer Event of Default under this Agreement whether or not the Developer knew of or participated in such Transfer.
Section 5.4 Permitted Transfers; Process.
(a) Permitted Transfers. Notwithstanding the provisions of Section 5.3, the following Transfers shall be permitted and are hereby approved by the City, subject to satisfaction of the requirements of Section 5.5:
(1) The Transfer of the Developer's leasehold interest in the Residential Property and the assumption of the Developer's duties and obligations under the City Documents by the Partnership; provided that the Developer, or an entity under the Control of the Developer, remains the General Partner throughout the Term, the Partnership will be eligible for a property tax exemption in accordance with California Revenue and Taxation Code Section 214(g), and subject to the City’s approval of the Partnership Agreement; (2) The admission of the Investor as a limited partner of the Partnership for the purposes of syndicating the Tax Credit Reservation to the Investor to obtain the Tax Credit Funds. The City hereby approves the sale of limited partnership interests in the Partnership to the Investor, provided that: (i) the amended Partnership Agreement of the Partnership is first approved by the City; and (ii) all documents associated with the admission of the Investor as a limited partner of the Partnership are submitted to the City for approval prior to execution, which approval (with respect to (i) and (ii) above) shall not be unreasonably withheld.
In the event the Developer desires to consummate the assignment and assumption described in Section 5.4(a)(2), and admit the Investor to the Partnership, as set forth in this subsection, in conjunction with the Close of Escrow, then the Developer shall submit to the City all required documentation required for approval by the City no less than thirty (30) days prior to the Close of Escrow.
(3) If the general partner of the Partnership is removed by the Investor for cause following default under the Partnership Agreement, the transfer of the general partner interest in the Partnership provided that the replacement general partner is reasonably approved by the City.
(4) The Transfer of the Developer's leasehold interest in the Residential Property from the Partnership to the Developer, or a nonprofit affiliate of the Developer at the end of the fifteen (15) year compliance period as described in Section 42(i)(l) of the Internal Revenue Code of 1986.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 25 (b) Process. No Transfer of this Agreement permitted pursuant to Section shall be effective unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an instrument in writing approved as to form by the City Attorney and in form recordable among the Official Records, shall expressly assume the obligations of the Developer under the City Documents and agree to be subject to the conditions and restrictions to which the Developer is subject arising under the City Documents, to the fullest extent that such obligations are applicable to the particular portion of or interest in the Property and Improvements conveyed in such Transfer. In the absence of specific written agreement by the City, no such Transfer, assignment or approval by the City shall be deemed to relieve the Developer or any other party from any obligations under this Agreement.
Section 5.5 Other Transfers with City Consent.
The City may, in its sole discretion, approve in writing other Transfers as requested by the Developer. In connection with such request, the Developer shall submit to the City for review all instruments and other legal documents proposed to effect any such Transfer and all other documents as reasonably requested by the City to determine the qualifications and identity of the proposed transferee. If a requested Transfer is approved by the City such approval shall be indicated to the Developer in writing. Such approval shall be granted or denied by the City within thirty (30) days of receipt by the City of all materials required by this Section.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 General Applicability.
The provisions of this Article shall govern the Parties' remedies for breach or Default under this Agreement.
Section 6.2 No Fault of Parties.
(a) Events. The following events constitute a basis for a Party to terminate this Agreement without the fault of the other Party:
(1) The City, despite good faith and diligent efforts, is unable to convey the leasehold interest in any Phase of the Residential Property to the Developer and the Developer is otherwise entitled to such conveyance, in which event the Developer may terminate this Agreement.
(2) Any of the conditions precedent to the conveyance of the leasehold interest in any Phase of the Residential Property proves to be impossible to meet despite the Developer's good faith and diligent efforts and the City is otherwise ready and able to convey the leasehold interest in the Phase of the Residential Property to the Developer, in which event the City may terminate this Agreement.
(b) Right to Terminate. Upon the happening of the above-described event and at the election of the applicable Party, this Agreement may be terminated by written notice to the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 26 other Party. After such termination of this Agreement, no Party shall have any rights against or liability to the others under this Agreement, except that the indemnification provisions of this Agreement shall survive such termination and remain in full force and effect.
Section 6.3 Developer Event of Default.
(a) Events. The following shall constitute a Developer Event of Default:
(1) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 5; or
(2) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made; or (3) A court having jurisdiction shall have made or entered any decree or order (i) adjudging the Developer, to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the 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 the Developer, in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up or liquidation of the 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 unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well; or the 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; or
(4) The Developer shall have assigned 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 (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period shall apply under this subsection as well) or prior to sooner sale pursuant to such sequestration, attachment, or execution. In the event that the Developer, is diligently working to obtain a return or release of the property and the City's interests under the City Documents are not immediately threatened, in the City's reasonable business judgment, the City may elect not to declare a Default under this subsection; or
(5) The Developer shall have voluntarily suspended its business or, the Developer shall have been dissolved or terminated.
(b) Cure Period. Upon the happening of any of the above-described events, the City shall first notify the Developer in writing of the purported breach, failure, or act above described, giving the Developer sixty (60) days from receipt of such notice to cure or, if such cure cannot be accomplished within sixty (60) days, to commence to cure such breach, failure, or DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 27 act. In the event the Developer fails to cure within said sixty (60) days, or, if the breach or failure is of such a nature that it cannot be cured within sixty (60) days, the Developer fails to commence to cure within such sixty (60) days and thereafter diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty (120) days, then the City shall be afforded the remedies described in Section 6.4 below. (c) City Documents. Notwithstanding the notice and cure periods set forth above, if a lesser cure period or notice requirement is allowed before a default occurs under any other City Document (as applicable), such periods shall control in this Agreement as well. (d) Copies. Copies of any notices delivered to the Developer under this Section shall be concurrently delivered to the Investor and any Leasehold Mortgagee, as that term is defined in the Ground Lease (provided that the City shall have no liability for the failure to give notice to the Investor or any Leasehold Mortgagee, nor shall such failure impair the City's rights in any manner).
Section 6.4 Remedies for Default.
City and Developer agree that, in the event of a Developer Event of Default or breach under this Agreement, following the expiration of the notice and cure periods described in Section 6.3, the only remedies available to the City shall be those listed in this Section 6.4, as follows:
(a) Action for Specific Performance. The City may prosecute an action for specific performance.
(b) Action for Damages. The City may prosecute an action for damages. (c) Termination of this Agreement. The City terminate this Agreement by written notice to the Developer, provided, however, that the remedies pursuant to this Article or any other City Document and the indemnification provisions of this Agreement shall survive such termination and provided, further, that any such termination shall only apply to any Phases of the Residential Property that have not been conveyed to the Developer by a Ground Lease.
Section 6.5 Waiver of Lis Pendens.
It is expressly understood and agreed by the Parties that no lis pendens shall be filed against any portion of the Property with respect to this Agreement or any dispute or act arising from it.
Section 6.6 Remedies Cumulative.
No right, power, or remedy given by the terms of this Agreement or the City 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 by the terms of any such instrument, or by any statute or otherwise. Neither the failure nor any delay to exercise any such rights and remedies shall operate as a waiver thereof, nor shall DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 28 any single or partial exercise of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.
Section 6.7 Waiver of Terms and Conditions.
No waiver of any default or breach by the Developer hereunder shall be implied from any omission by the City to take action on account of such default if such Default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated.
Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or approval by the City to, or of, any act by the Developer requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this Agreement or the applicable City Documents, nor shall it invalidate any act done pursuant to notice of Default, or prejudice the City in the exercise of any right, power, or remedy hereunder or under the applicable City Documents, unless in the exercise of any such right, power, or remedy all obligations of the Developer to the City under the applicable City Documents are paid and discharged in full.
ARTICLE 7.
GENERAL PROVISIONS
Section 7.1 Notices, Demands and Communications.
Formal notices, demands, and communications between the City and the 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 facsimile with a copy delivered the following day by reputable overnight delivery service, or delivered personally, to the principal office of the Parties as follows:
City: Paul Buddenhagen, City Manager
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Phone:
Fax:
With copy to: Office of City Attorney
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Phone:
Fax:
Developer: EAH, Inc.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 29 22 Pelican Way
San Rafael, CA 94901
Attention: President
With copy to: Klein Hornig LLP
1325 G Street NW
Suite 770
Washington, DC 20005
Attn: Jed D’Abravanel
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 7. Telephone numbers are only provided for the Parties' convenience, and formal notices may not be transmitted by telephone. In addition, any notice or demand from the City to the Developer may be delivered by e-mail to the Developer's e-mail set forth above; provided, however, in no event shall the Developer deliver any formal notice or demand to the City by email.
Section 7.2 Non-Liability of City Officials, Employees and Agents.
No member, official, employee or agent of the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the City for any amount which may become due to the Developer or successor or on any obligation under the terms of this Agreement.
Section 7.3 Forced Delay.
In addition to specific provisions of this Agreement, performance by either Party shall not be deemed to be in Default only if such delay or Default is due solely to war; insurrection; riots; floods; earthquakes; fires; casualties; acts of terrorism or the public enemy; severe and unanticipated weather conditions; litigation (including suits filed by third parties concerning or arising out of this Agreement); or court order. An extension of time for cause will be deemed granted if notice by the Party claiming such extension is sent to the other Party within ten (10) days from the date the Party seeking the extension first discovered the cause and such extension of time is not rejected in writing by the other Party within ten (10) days after receipt of the notice. In no event shall the cumulative delays exceed one hundred twenty (120) days, unless otherwise agreed to by the Parties in writing.
Section 7.4 Inspection of Books and Records.
Upon request, the Developer shall permit the City to inspect at reasonable times and on a confidential basis those books, records and all other documents of the Developer necessary to determine Developer's compliance with the terms of this Agreement.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 30 Section 7.5 Provision Not Merged with Ground Lease.
None of the provisions of this Agreement are intended to or shall be merged by any of the Ground Leases transferring title to any interest in the real property which is the subject of this Agreement from City to Developer or any successor in interest, and any such Ground Lease shall not be deemed to affect or impair the provisions and covenants of this Agreement.
Section 7.6 Title of Parts and Sections.
Any titles of the articles, sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any part of its provision.
Section 7.7 General Indemnification.
The Developer agrees to indemnify, protect, hold harmless and defend (with counsel reasonably selected by the City) the City, and its council members, employees, agents, and volunteers from any and all suits, actions, claims, losses, liabilities, damages, injuries, causes of action, costs, and expenses of any kind, whether actual or alleged, including without limitation, court costs, reasonable attorneys' fees, and other litigation expenses, demands, judgments and liens arising out of, pertaining to, or relating to, directly or indirectly, in whole or in part, the Developer's performance or non-performance under any of the City Documents, or any other agreement executed pursuant to the City Documents, or arising out of acts or omissions of any of Developer's contractors, subcontractors, or persons claiming under any of the aforesaid, except as directly caused by the City's willful misconduct or gross negligence. The Developer's obligation to indemnify, as set forth in this Section, are in addition to, and shall not be limited by, any additional obligation to indemnify the City pursuant to any other agreement between the Parties, or any approval provided by the City to the Developer in connection with the Development. The provisions of this section shall survive expiration of the Term or other termination of this Agreement, and shall remain in full force and effect and are not limited by the amount of insurance as may be required.
Section 7.8 Applicable Law.
This Agreement shall be interpreted under and pursuant to the laws of the State of California without regard to choice of law principles.
Section 7.9 No Commissions.
The City shall not be liable for any real estate commissions or brokerage fees that may arise from this Agreement. The City represents that it has engaged no broker, agent or finder in connection with this transaction, and the Developer shall defend and hold the City harmless from any claims by any broker, agent or finder retained by the Developer. The provisions of this section shall survive expiration of the Term or other termination of this Agreement, and shall remain in full force and effect.
Section 7.10 Severability.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 31 If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall 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 7.11 Legal Actions.
Any legal action commenced to interpret or to enforce the terms of this Agreement shall be filed in the Superior Court of the County.
Section 7.12 Binding Upon Successors.
This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the Parties hereto except that there shall be no Transfer of any interest by any of the Parties hereto except pursuant to the terms of this Agreement. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any successor, heir, administrator, executor or assign of such Party who has acquired an interest in compliance with the terms of this Agreement, or under law.
The covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property. Each and every contract, deed, or other instrument hereafter executed covering or conveying any interest in the Property shall be held conclusively to have been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed, or other instrument, unless the City expressly releases the leasehold interest in the Residential Property from the requirements of this Agreement.
Section 7.13 Parties Not Co-Venturers.
Nothing in this Agreement is intended to or does establish the Parties as partners, coventurers, or principal and agent with one another.
Section 7.14 No Third Party Beneficiaries.
This Agreement and the City Documents are made and entered into solely for the benefit of the City and the Developer and no other person shall have any right of action under or by reason of this Agreement or the City Documents.
Section 7.15 Discretion Retained by City.
Neither the execution of this Agreement by the City, nor any approval by the City Manager pursuant to this Agreement, constitutes approval by the City acting in its capacity as a municipal government, and in no way limits the discretion of the City in the permit and approval process in connection with development of the Improvements, or any proposed subsequent development of the Property. The Developer acknowledges that nothing in this Agreement (including any approval by the City Manager in accordance with this Agreement) shall limit, waive, or otherwise impair the authority and discretion of: (i) the City's building division, in connection with the review and approval of the proposed construction plans for the Development DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 32 (or any change to such plans), or any use, or proposed use, of the Property, (ii) the City's issuance of a Building Permit, or (iii) any other office or department of the City acting in its capacity as a governmental regulatory authority with jurisdiction over the development, use, or operation of the Property and Improvements during the Term.
Section 7.16 Time of the Essence.
In all matters under this Agreement, the Parties agree that time is of the essence.
Section 7.17 Action by the City.
Except as may be otherwise specifically provided in this Agreement or another applicable City Document, whenever any approval, notice, direction, finding, consent, request, or other action by the City is required or permitted under this Agreement or another applicable City Document that is in substantial compliance with the terms of this Agreement, including, but not limited to, any approval of a proposed Transfer pursuant to Article 5, such action may be given, made, or taken by the City Manager, or by any person who shall have been designated in writing to the Developer by the City Manager, without further approval by the City Council. Any such action shall be in writing.
Section 7.18 Operating Memoranda; Implementation Agreements.
The Parties acknowledge that the provisions of this Agreement require a close degree of cooperation and that new information and future events may demonstrate that changes are appropriate with respect to the details of performance of the Parties under this Agreement. The Parties desire, therefore, to retain a certain degree of flexibility with respect to the details of performance for those items covered in general terms under this Agreement. If and when, from time to time during the Term of this Agreement, the Parties find that refinements or adjustments are necessary, such refinements or adjustments shall be made through Operating Memoranda or Implementation Agreements approved by the Parties which, after execution, shall be attached to this Agreement as addenda and become a part hereof. Operating Memoranda or Implementation Agreements may be executed on the City's behalf by the City Manager. In the event a particular subject requires notice or hearing or any significant modification is proposed to the terms of this Agreement, the matter shall be processed as an amendment to this Agreement and must be approved by the City Council.
Section 7.19 Representation and Warranties of Developer.
The Developer hereby represents and warrants to the City as follows:
(a) Organization. The Developer is a 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. The Developer has full power and authority to execute and deliver this Agreement, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 33 (c) Authority of Persons Executing Documents. This Agreement and all other documents or instruments executed and delivered, or to be executed and delivered, 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 the Developer's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. This Agreement and all other documents or instruments which have been executed and delivered 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 the Developer enforceable against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance 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 the Developer, or any provision of the organizational documents of the Developer, or will conflict with or constitute a breach of or a default under any agreement to which the Developer is a party, or will result in the creation or imposition of any lien upon any assets or property of the Developer, other than liens established pursuant hereto. (f) Compliance With Laws; Consents and Approvals. The construction of the Improvements 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. The 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 the Developer, threatened against or affecting the Developer, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to the Developer, materially affect the Developer's ability to develop the Improvements. (h) Title to Property. Upon the recordation of the Ground Lease, the Developer will have good and marketable title to the leasehold interest in the applicable Phase of the Residential Property and there will 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 the Developer, and other financial data and information furnished by, or on behalf of the Developer, to the City DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 34 Parties fairly present the information contained therein. As of the Effective Date, there has not been any adverse, material change in the financial condition of the Developer from that shown by such financial statements and other data and information. (j) Sufficient Funds. Upon the acquisition of the leasehold interest in the Residential Property the Developer will hold sufficient funds or binding commitments for sufficient funds to obtain the leasehold interest in the Residential Property, and complete the construction of the Improvements in accordance with this Agreement.
Section 7.20 Conflict Among City Documents.
Unless otherwise provided in a particular City Document, in the event of a conflict between the terms of this Agreement and any other City Document, the terms of this Agreement shall control to the extent of such conflict until such time as the Ground Lease is effective, after which the Ground Lease shall control.
Section 7.21 Entire Understanding of the Parties.
This Agreement, in conjunction with the City Documents, constitutes the entire understanding and agreement of the Parties with respect to the conveyance of the leasehold interest in the Residential Property, and the development of the Improvements. The Parties further intend that this Agreement constitute the final and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial proceedings involving this Agreement. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared it. The Parties to this Agreement and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (including but not limited to Civil Code Section 1654 as may be amended from time to time) shall not apply to the interpretation of this Agreement.
Section 7.22 Mandatory Language in All Subsequent Deeds, Leases and Contracts. All deeds, leases or contracts entered into by Developer as to any portion of the Property shall contain the following language:
(a) In Deeds:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any person claiming under or through the grantee, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 35 (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(b) In Leases:
"(1) Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee or any person claiming under or through the lessee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts:
"(1) There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee 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 of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 36 Section 7.23 Counterparts; Multiple Originals.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original.
Remainder of Page Left Intentionally Blank
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 37 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
DEVELOPER:
EAH, INC., a California nonprofit public benefit
corporation
By: _______________________________
Name: _______________________________
Its: _______________________________
CITY:
CITY OF EMERYVILLE, a municipal corporation
By: ______________________________
Paul Buddenhagen, City Manager
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
_________________________________
City Attorney
Note: Section 3.5 requires the Developer's initials and the City's initials Section 4.5 require the Developer's initials
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA Assistant Secretary
Welton Jordan
DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3631005.5
A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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B-1
EXHIBIT B
DEVELOPMENT SCHEDULE
This Development Schedule summarizes the schedule for various activities under the Lease Disposition and Development Agreement (the "Agreement" or the "LDDA") to which this exhibit is attached. Times for performance set forth in this Development Schedule are subject to Section 7.3 of the LDDA, and may be amended or otherwise revised in accordance with Section
7.16 and Section 7.18 of the LDDA. The description of items in this Development Schedule is meant to be descriptive only, and shall not be deemed to modify in any way the provisions of the LDDA to which such items relate. Section references herein to the LDDA are intended merely as an aid in relating this Development Schedule to other provisions of the LDDA and shall not be deemed to have any substantive effect.
Whenever this Development Schedule requires the submission of plans or other documents at a specific time, such plans or other documents, as submitted, shall be complete and adequate for review by the City, within the time set forth herein. Prior to the time set forth for each particular submission, the Developer shall consult with City staff, informally as necessary concerning such submission in order to assure that such submission will be complete and in a proper form within the time for submission set forth herein.
Action Date
1. Effective Date. The LDDA is executed by the
Parties.
________ (the "Effective Date").
2. Developer City Regulatory Approvals. The
Developer shall apply and obtain all City Regulatory
Approvals. [LDDA § 2.2]
180 days after the Effective Date
3. Developer Obtains a CLRR Agreement. The
Developer shall obtain a CLRAA Agreement.
[LDDA § 2.9]
365 days after the Effective Date
FIRST PHASE
4. Submittal of Financing Plan for First Phase. The
Developer shall submit the proposed financing plan
and any updates to the financing plan. [LDDA § 2.3]
20 days prior to submitting any
financing application and in no
event later than March 31, 2024
5. Approval of Financing Plan for First Phase. The
Developer shall obtain City approval of the
Financing Plan. [LDDA § 2.3]
30 days after submittal of
Financing Plan to City.
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B-2
Action Date
6. Application for Building Permit for First Phase. The Developer shall apply for building permit for the
Improvements. [LDDA § 2.4]
30 days after award from
California Tax Credit Allocation
Committee or similar
7. Submittal of Construction Plans for First Phase.
Developer shall submit the proposed construction
plans [LDDA § 2.4]
Concurrent with application for
Building Permit for First Phase
8. Submittal of Amenity Plan For First Phase.
Developer shall submit the proposed Amenity Plan
[LDDA § 2.10]
Concurrent with application for
Building Permit for First Phase
9. City Approval of the Construction Plans for First
Phase. The City shall either approve or disapprove
of the Construction Plans. [LDDA § 2.4]
60 days prior to Closing
10. City Approval of the Amenity Plan for the First
Phase. The City shall either approve or disapprove
the Amenity Plan. [LDDA § 2.10]
60 days prior to Closing
11. Residential Marketing Plan for First Phase. The
Developer shall submit, and obtain City approval of,
the initial Residential Marketing Plan. [LDDA §
2.11]
60 days prior to the Closing
12. Supportive Services Plan for First Phase The
Developer shall submit, and obtain City approval of,
the initial Supportive Services Plan. [LDDA§ 2.12]
60 days prior to the Closing
13. Property Management Plan for First Phase. The
Developer shall submit, and obtain City approval of,
the initial Property Management Plan. [LDDA §
2.13]
60 days prior to the Closing
14. Construction Contract for First Phase. The
Developer shall submit, and obtain City approval of,
the proposed construction contract. [LDDA § 2.5]
60 days prior to the Closing
15. Construction Bonds for the First Phase. The
Developer shall deliver the construction bonds to the
City. [LDDA § 2.6]
60 days prior to the Closing
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B-3
Action Date
16. Building Permit for the First Phase. The Developer
shall have received an issue ready letter for the
Improvements. [LDDA § 2.4]
No later than the Closing.
17. Closing of all Financing for the First Phase. The
Developer shall close on all Financing as set forth in
the Financing Plan. [LDDA § 2.3]
No later than the Closing.
18. Developer Insurance for the First Phase. The
Developer shall provide the City all applicable
insurance policies required by LDDA and Ground
Lease. [LDDA § 2.7]
No later than the Closing.
19. Closing for the First Phase. The closing for the
recordation of the Memorandum of Ground Lease
shall occur upon the satisfaction of the predisposition requirements in accordance with the LDDA.
[LDDA § 4.2]
No later than January 1, 2026
SECOND PHASE
20. Submittal of Financing Plan for Second Phase. The
Developer shall submit the proposed financing plan
and any updates to the financing plan. [LDDA § 2.3]
20 days prior to submitting any
financing application and in no
event later than March 31, 2025
21. Approval of Financing Plan for Second Phase. The
Developer shall obtain City approval of the
Financing Plan. [LDDA § 2.3]
30 days after submittal of
Financing Plan to City.
22. Application for Building Permit for Second Phase.
The Developer shall apply for building permit for the
Improvements. [LDDA § 2.4]
30 days after award from
California Tax Credit Allocation
Committee or similar
23. Submittal of Construction Plans for Second Phase.
Developer shall submit the proposed construction
plans [LDDA § 2.4]
Concurrent with application for
Building Permit for Second
Phase
24. Submittal of Amenity Plan For Second Phase.
Developer shall submit the proposed Amenity Plan
[LDDA § 2.10]
Concurrent with application for
Building Permit for Second
Phase
25. City Approval of the Construction Plans for Second
Phase. The City shall either approve or disapprove
of the Construction Plans. [LDDA § 2.4]
60 days prior to Closing
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3631005.5
B-4
Action Date
26. City Approval of the Amenity Plan for the Second
Phase. The City shall either approve or disapprove
the Amenity Plan. [LDDA § 2.10]
60 days prior to Closing
27. Residential Marketing Plan for Second Phase. The
Developer shall submit, and obtain City approval of,
the initial Residential Marketing Plan. [LDDA §
2.11]
60 days prior to Closing
28. Supportive Services Plan for Second Phase The
Developer shall submit, and obtain City approval of,
the initial Supportive Services Plan. [LDDA§ 2.12]
60 days prior to Closing
29. Property Management Plan for Second Phase. The
Developer shall submit, and obtain City approval of,
the initial Property Management Plan. [LDDA §
2.13]
60 days prior to Closing
30. Construction Contract for Second Phase. The
Developer shall submit, and obtain City approval of,
the proposed construction contract. [LDDA § 2.5]
60 days prior to Closing
31. Construction Bonds for the Second Phase. The
Developer shall deliver the construction bonds to the
City. [LDDA § 2.6]
60 days prior to Closing
32. Building Permit for the Second Phase. The
Developer shall have received an issue ready letter
for the Improvements. [LDDA § 2.4]
No later than the Closing.
33. Closing of all Financing for the Second Phase. The
Developer shall close on all Financing as set forth in
the Financing Plan. [LDDA § 2.3]
No later than the Closing.
34. Developer Insurance for the Second Phase. The
Developer shall provide the City all applicable
insurance policies required by LDDA and Ground
Lease. [LDDA § 2.7]
No later than the Closing.
35. Closing for the Second Phase. The closing for the
recordation of the Memorandum of Ground Lease
shall occur upon the satisfaction of the predisposition requirements in accordance with the LDDA.
[LDDA § 4.2]
No later than January 1, 2027
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3631005.5
B-5
Action Date
THIRD PHASE
36. Submittal of Financing Plan for Third Phase. The
Developer shall submit the proposed financing plan
and any updates to the financing plan. [LDDA § 2.3]
20 days prior to submitting any
financial application and in no
event later than March 31, 2027.
37. Approval of Financing Plan for Third Phase. The
Developer shall obtain City approval of the
Financing Plan. [LDDA § 2.3]
30 days after submittal of
Financing Plan to City.
38. Application for Building Permit for Third Phase.
The Developer shall apply for building permit for the
Improvements. [LDDA § 2.4]
30 days after award from
California Tax Credit Allocation
Committee or similar
39. Submittal of Construction Plans for Third Phase.
Developer shall submit the proposed construction
plans [LDDA § 2.4]
Concurrent with application for
Building Permit for Third Phase
40. Submittal of Amenity Plan For Second Phase.
Developer shall submit the proposed Amenity Plan
[LDDA § 2.10]
Concurrent with application for
Building Permit for Third Phase
41. City Approval of the Construction Plans for Third
Phase. The City shall either approve or disapprove
of the Construction Plans. [LDDA § 2.4]
60 days prior to Closing
42. City Approval of the Amenity Plan for the Third
Phase. The City shall either approve or disapprove
the Amenity Plan. [LDDA § 2.10]
60 days prior to Closing
43. Residential Marketing Plan for Third Phase. The
Developer shall submit, and obtain City approval of,
the initial Residential Marketing Plan. [LDDA §
2.11]
60 days prior to Closing
44. Supportive Services Plan for Third Phase The
Developer shall submit, and obtain City approval of,
the initial Supportive Services Plan. [LDDA§ 2.12]
60 days prior to Closing
45. Property Management Plan for Third Phase. The
Developer shall submit, and obtain City approval of,
the initial Property Management Plan. [LDDA §
2.13]
60 days prior to Closing
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3631005.5
B-6
Action Date
46. Construction Contract for Third Phase. The
Developer shall submit, and obtain City approval of,
the proposed construction contract.
[LDDA § 2.5]
60 days prior to Closing
47. Construction Bonds for the Third Phase. The
Developer shall deliver the construction bonds to the
City. [LDDA § 2.6]
60 days prior to Closing
48. Building Permit for the Second Phase. The
Developer shall have received an issue ready letter
for the Improvements. [LDDA § 2.4]
No later than the Closing.
49. Closing of all Financing for the Third Phase. The
Developer shall close on all Financing as set forth in
the Financing Plan. [LDDA § 2.3]
No later than the Closing.
50. Developer Insurance for the Third Phase. The
Developer shall provide the City all applicable
insurance policies required by LDDA and Ground
Lease. [LDDA § 2.7]
No later than the Closing.
51. Closing for the Third Phase. The closing for the
recordation of the Memorandum of Ground Lease
shall occur upon the satisfaction of the predisposition requirements in accordance with the LDDA.
[LDDA § 4.2]
No later than January 1, 2028
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3631005.5
C-1
EXHIBIT C
SCOPE OF DEVELOPMENT
The attached plans dated ___________, 20__, are hereby incorporated into this Scope of Development by this reference.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE COVER SHEET G000 22230
2023-11-28
CHRISTIE AVE
ENTITLEMENT SET
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE TITLE SHEET G001 22230
2023-11-28
CHRISTIE AVE PROJECT DIRECTORY
VICINITY MAP
PROJECT SITE
ENTITLEMENT SET
OWNER:
Attn: Bianca Neumann
EAH Housing
22 Pelican Way, San Rafael, CA
94901
T: 415.295.8886
E: [email protected]
ARCHITECT:
Attn: Caroline Souza
David Baker Architects
461 2nd St, Loft C-127
San Francisco, CA 94107
T: 415.692.0169
E: [email protected]
ADDRESS 6150 CHRISTIE AVE
5900 CHRISTIE AVE,
5890 CHRISTIE AVE
EMERYVILLE, CA 94608
PARCEL 49-1493-3, 49-1493-4,
49-1493-5
ZONING MUR
LOT SIZE 2.22 ACRES
LANDSCAPE ARCHITECT:
Attn: Wendy Mok
GLS
2677 Mission Street #200
San Francisco, CA 94110
T: 415.285.3614
E: [email protected]
CHRISTIE
AVE
POWELL ST
SHELLMOUN
D
ST
65TH ST
CIVIL:
Attn: Susan Ulvenes
Sandis
636 9th Street
Oakland, CA 94607
T: 510.910.3605
E: [email protected]
PROJECT SITE
AERIAL RENDERING
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE SHEET INDEX G002 22230
2023-11-28
SHEET INDEX
G000 COVER SHEET
G001 TITLE SHEET
G002 SHEET INDEX
G003 PROJECT DATA
G100 EXISTING SITE PHOTOS
G101 SITE PLAN
G102 DESIGN DIAGRAMS
G207 SUMMER SOLSTICE SHADOW STUDY
G208 FALL EQUINOX SHADOW STUDY
G209 WINTER SOLSTICE SHADOW STUDY
G401 VEHICLE CIRCULATION
G402 BICYCLE CIRCULATION
G402A BIKE PARKING
G403 PEDESTRIAN CIRCULATION
A101 DEMOLITION PLAN
A102 BUILDING AREAS
A110 LEVEL 1 FLOOR PLAN
A111 MEZZANINE FLOOR PLAN
A120 LEVEL 2 FLOOR PLAN
A130 LEVEL 3-7 FLOOR PLAN
A180 LEVEL 8 FLOOR PLAN
A190 ROOF PLAN
A200 TYP UNIT PLANS
A201 TYP UNIT PLANS
A202 TYP UNIT PLANS
A203 TYP UNIT PLANS
A204 TYP UNIT PLANS
A300 MATERIALS
A301 ELEVATIONS
A302 ELEVATIONS
A303 ELEVATIONS
A304 ELEVATIONS
A800 OPEN SPACE
A801 DISCARDS STRATEGY
SHEET INDEX
A802 FIRE ACCESS PLAN
A803 ALLOWABLE AREA
L001 KEY PLAN - LEVEL 1
L002 KEY PLAN - LEVEL 2
L003 KEY PLAN - LEVEL 8
L004 TREE REMOVAL PLAN
L101 ENLARGED PLAN - CHRISTIE PARK EXT
L102 ENLARGED PLAN - CHRISTIE PARK EXT
L103 ENLARGED PLAN - PEDESTRIAN AREA
L104 ENLARGED PLAN - PEDESTRIAN AREA
L105 ENLARGED PLAN - 59TH STREET
L106 ENLARGED PLAN - 59TH STREET
L111 ENLARGED PLAN - LEVEL 2 - BUILDING A
L112 ENLARGED PLAN - LEVEL 2 - BUILDING B
L113 ENLARGED PLAN - LEVEL 2 - BUILDING C
L121 ENLARGED PLAN - LEVEL 8
L401 PROGRAM PRECEDENTS
L501 PLANTING PALETTE
L502 PLANTING PALETTE
R101 RENDERING
R102 RENDERING
R103 RENDERING
R104 RENDERING
R105 RENDERING
R106 RENDERING
C-0 EXISTING CONDITIONS PLAN
C-1 SITE PLAN
C-2 PRELIMINARY GRADING AND DRAINAGE PLAN
C-3 PRELIMINARY UTILITY PLAN
C-4A CONCEPTUAL STORMWATER MANAGEMENT
PLAN
C-4B CONCEPTUAL STORMWATER MANAGEMENT
PLAN - LEVEL 2
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE PROJECT DATA G003 22230
2023-11-28
BUILDING A RESIDENTIAL UNITS:
PROJECT DESCRIPTION
PROJECT DATA
This proposed project will bring 362 family affordable family rental units to Emeryville. The project site is comprised of 2.2 acres (96,578 sq ft), bounded by Market Drive and the Emeryville Public Market to the east, an existing parking garage to the south, Christie Ave to the west, and Christie Park to the north. The building will have resident common spaces, open space and parking lifts to minimize the parking footprint of the project. The project includes a 6,000 sf expansion of Christie park with an mixed active use court. The site is in the city core. The site is within a Pedestrian Priority Zone, and Christie Ave is a Green Street. Additionally, the site is within a Transit Hub (TH).
ITEM
ZONING REQUIREMENTS
REQUIREMENT PROPOSED
ZONING
MAX HEIGHT
NO. STORIES
PARKING
MUR (Mixed Use with Residential)
108 feet (75 + 33 per AB1763)
MIN LOT AREA
MIN LOT WIDTH
LANDSCAPING
DENSITY
N/A
N/A
10% of lot area, minimum
REFERENCE
MIN OPEN SPACE Total: Common 100 sf/unit 9-4.303
Figure 2-4
9-4.701
9-4.701
No Parking Minimum
2.2 acres
154 feet
N/A 8 stories
95 feet
unlimited per AB1763, 100% affordable within .5 mile of major transit stop 163.1 du/acre See G404
BUILDING B RESIDENTIAL UNITS:
BUILDING C RESIDENTIAL UNITS:
BLDG A - UNIT MATRIX
TYPE COUNT PERCENTAGE
STUDIO 12 10%
1 BR 27 21%
2 BR 48 38%
TH 2 4 3%
3 BR 34 27%
TH 3 1 1%
126
BLDG B - UNIT MATRIX
TYPE COUNT PERCENTAGE
STUDIO 14 11%
1 BR 41 31%
2 BR 40 30%
TH 2 2 2%
3 BR 34 26%
TH 3 1 1%
132
BLDG C - UNIT MATRIX
TYPE COUNT PERCENTAGE
STUDIO 14 13%
1 BR 27 26%
2 BR 34 33%
TH 2 2 2%
3 BR 27 26%
104
12,177 sf / 12.6% 9-4.504
228 (.63/unit) 9-4.404, CGBS A4 106.8.2.1
LONG TERM BIKE PARKING 1 space : 1 residential unit 415 (1.1/unit) 9-4.408 (f) SHORT TERM BIKE PARKING 1 space : 20 residential unit 22 (1 : 16.5 units) 9-4.408 (e) FAR 3.0 (Garages excluded) 3.49 Figure 2-3
CONSTRUCTION TYPE
BUILDING CODE
TYPE I-A
NUMBER OF STORIES
OCCUPANCY R-2, WITH ACCESSORY A, S, B
USE RESIDENTIAL
8 APPLICABLE CODES
2022 CALIFORNIA BUILDING CODE
2022 CALIFORNIA GREEN BUILDING STANDARDS
2022 CALIFORNIA MECHANICAL CODE
2022 CALIFORNIA PLUMBING CODE
SPRINKLER SYSTEM PER 903.3.1.1
2022 CALIFORNIA ENERGY CODE
2022 CALIFORNIA ELECTRICAL CODE
2022 CALIFORNIA FIRE CODE
ALLOWABLE AREA UNLIMITED
LOADING 1 small loading space per 50-149 unit building 1 small loading space in each building 9-4.409
ALL BLDG - UNIT MATRIX
TYPE COUNT PERCENTAGE
STUDIO 40 11%
1 BR 95 26%
2 BR 122 34%
TH 2 8 2%
3 BR 95 26%
TH 3 2 1%
362
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE EXISTING SITE PHOTOS G100 22230
2023-11-28
INTERSECTION AT 59TH ST AND CHRISTIE AVE
6-19-2023
CHRISTIE AVE AT SOUTH WEST CORNER OF SITE
6-19-2023
MARKET DRIVE AT SOUTH EAST CORNER OF SITE
6-19-2023
CORNER OF 59TH STREET AND MARKET DRIVE
6-19-2023
MARKET DRIVE, MIDPOINT OF THE SITE N-S
6-19-2023
SITE FROM NORTHEAST CORNER ON MARKET DRIVE
6-19-2023
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
95' TALL
BLDG B
95' TALL BLDG C
95' TALL
CHRISTIE AVE
MARKET DRIVE
59TH ST
PUBLIC MARKET FOOD HALL
EXISTING BUILDING
(5850 SHELLMOUND)
CHRISTIE PARK
12' - 2"
8' - 0"
8' - 0"
8' - 2"
5' - 3"
5' - 0"
8' - 7 1/4"
11' - 3"
STREET LIGHTS,
SEE L001
STREET LIGHTS, SEE L001
ADA LOADING ZONE
ADA LOADING ZONE
CURB RAMP
CURB RAMP
CURB RAMP
GARAGE
ENTRY
GARAGE
ENTRY GARAGE
ENTRY
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
RETAIL
PRIMARY BUILDING ENTRY
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE SITE PLAN G101
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE DESIGN DIAGRAMS G102 22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE SUMMER SOLSTICE SHADOW STUDY G207 22230
2023-11-28
SUMMER SOLSTICE - 9AM SUMMER SOLSTICE - 10AM SUMMER SOLSTICE - 11AM
SHADOWS OFF CHRISTIE
COMMONS FOR THE
REMAINDER OF THE DAY
SUMMER SOLSTICE - 12PM SUMMER SOLSTICE - 1PM SUMMER SOLSTICE - 2PM SUMMER SOLSTICE - 3PM SUMMER SOLSTICE - 4PM SUMMER SOLSTICE - 5PM
NO SUMMER SHADOWS
ON PLAY STRUCTURE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE FALL EQUINOX SHADOW STUDY G208 22230
2023-11-28
FALL EQUINOX - 9AM FALL EQUINOX - 10AM FALL EQUINOX - 11AM
SHADOWS OFF CHRISTIE
COMMONS FOR THE
REMAINDER OF THE DAY
FALL EQUINOX - 12PM FALL EQUINOX - 1PM FALL EQUINOX - 2PM FALL EQUINOX - 3PM FALL EQUINOX - 4PM FALL EQUINOX - 5PM
NO FALL SHADOWS ON
PLAY STRUCTURE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE WINTER SOLSTICE SHADOW STUDY G209 22230
2023-11-28
WINTER SOLSTICE - 9AM WINTER SOLSTICE - 10AM WINTER SOLSTICE - 11AM
SHADOWS OFF CHRISTIE
COMMONS FOR THE
REMAINDER OF THE DAY
WINTER SOLSTICE - 12PM WINTER SOLSTICE - 1PM WINTER SOLSTICE - 2PM WINTER SOLSTICE - 3PM WINTER SOLSTICE - 4PM WINTER SOLSTICE - 5PM
BRIEF WINTER SHADING
ON PLAY STRUCTURE
BRIEF WINTER SHADING
ON PLAY STRUCTURE
SUN HAS SET
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 73 PARKING
SPACES
(35 EVSE)
LOADING 14
14 14
14 PARK TRASH
82 PARKING SPACES GARAGE
(37 EVSE)
TRASH
GARAGE GARAGE
CHRISTIE AVENUE
59TH STREET
MARKET DRIVE
EXISTING
EXISTING 2-STORY PARKING GARAGE
BLDG A
BLDG B
BLDG C
LOADING LOADINGLOADING
DROPOFF
DROPOFF DROPOFF
PARKING
PARKING
PARKING
TWO WAY
TRAFFIC
TWO WAY
TRAFFIC
TWO WAY
TRAFFIC
14 14
14 14
14 8 LOADING
14 TRASH
73 PARKING SPACES
(35 EVSE)
LOADING
14 14 14
14 14
SERVICE
ONE WAY TRAFFIC (LIMITED HOURS)
PARKING
PROVIDED IN
STACKERS /
LIFTS
PARKING PROVIDED
IN STACKERS / LIFTS PARKING PROVIDED IN STACKERS / LIFTS 23' - 8" 11' - 0" 20' - 0" 10' - 0"
10' - 6"
24' - 4"
8' - 0"
25' - 0"
8' - 0"
25' - 0"
8' - 0"
25' - 0"
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
PRIMARY BUILDING ENTRY
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE VEHICLE CIRCULATION G401
22230
0' 15' 30' 60' 2023-11-28
STREET PARKING & LOADING SUMMARY (SEE L102, L104, & L106) STREET PARKING ON CHRISTIE AVE: (9) PARKING SPACES
ACCESSIBLE LOADING PROVISION: (3) TOTAL, (1) FOR EACH BUILDING DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREET
EXISTING
EXISTING 2-STORY PARKING GARAGE
BLDG A
BLDG B BLDG C BIKE RACKS
BIKE PARKING
BIKE RACKS
BIKE RACKS
BIKE RACK BIKE RACK BIKE RACK
TWO WAY
TRAFFIC
ONE WAY TRAFFIC
TWO WAY
TRAFFIC
BIKE PARKING
BIKE PARKING
73 PARKING SPACES
(35 EVSE)
73 PARKING
SPACES
(35 EVSE)
LOADING
LOADING 14
14 14
14 14
PARK
14 82 PARKING SPACES
(37 EVSE)
14 14
14 14
14 14 8 LOADING
14 14 14
BIKE RACK
BIKE RACK
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
MARKET DRIVE
PRIMARY BUILDING ENTRY
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE BICYCLE CIRCULATION G402
22230
0' 15' 30' 60' 2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 16 16 16 16
16 16 16 16
16 16
16 16
16 16 16
16 16
16 16
16 16
16 16
16 16
5 CARGO BIKE
SPACES
STORAGE SPACE
8' - 0"
3' - 0"
3' - 0"
8' - 0"
5 CARGO BIKE SPACES
STORAGE SPACE
3' - 0"
8' - 0"
5 CARGO BIKE
SPACES
STORAGE
SPACE
128 BIKE
SPACES
STORAGE
SPACE
144 BIKE
SPACES
STORAGE
SPACE
128 BIKE
SPACES
STORAGE
SPACE
scale:
date: David Baker Architects
1" = 20'-0"
EAH Housing CHRISTIE AVE BIKE PARKING G402A
22230
2023-11-28
1" = 20'-0"
BLDG A - CARGO & E-BIKE ROOM 1
1" = 20'-0"
BLDG B - CARGO & E-BIKE ROOM 2
1" = 20'-0"
BLDG C - CARGO & E-BIKE ROOM 3
1" = 20'-0"
BLDG A - BIKE ROOM 4
1" = 20'-0"
BLDG B - BIKE ROOM 5
1" = 20'-0"
BLDG C - BIKE ROOM 6
BIKE PARKING SPACES
BUILDING A
CARGO BIKE: 5
LONG TERM: 128
SHORT TERM (SEE G402): 6
BUILDING B
CARGO BIKE: 5
LONG TERM: 144
SHORT TERM (SEE G402): 10
BUILDING C
CARGO BIKE: 5
LONG TERM: 128
SHORT TERM (SEE G402): 6
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
LOADING
CHRISTIE AVENUE
59TH STREET
EXISTING
EXISTING 2-STORY PARKING GARAGE
BLDG A
BLDG B BLDG C
SIDEWALK
SIDEWALKSIDEWALK
SIDEWALK
PEDESTRIAN PASSAGEWAY OPEN TO PUBLIC
73 PARKING SPACES
(35 EVSE)
73 PARKING
SPACES
(35 EVSE)
LOADING
LOADING 14
14 14
14 14
PARK
14 82 PARKING SPACES
(37 EVSE)
14 14
14 14
14 14 8 LOADING
14 14 14
12' - 2"
8' - 2"
8' - 0"
8' - 0"
5' - 3"
5' - 0"
8' - 7 1/4"
11' - 3"
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
MARKET DRIVE
PRIMARY BUILDING ENTRY
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE PEDESTRIAN CIRCULATION G403
22230
0' 15' 30' 60' 2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 ~
~
~
~
~
~
(1623 OR 600)
(1432 OR 813)
HRISTIE PARK
C(50'HWIDRE)
ISTIE AVENUE
5 9
T
H
S
T
R
E
E
T (50' WIDE)
~
~
C
~
~
~
E
E
E
E
E
E
E
E
E
E
E
E
E E
E
E
?
?
2 9.7'
2 9.7'
E
S
E
S E
S
E
E
E
E
W
W W W
W
W
W W
W
W
?
?
C
C
W
6' CHAIN-LK FECE 6' IRON FECE ROLING ATE 6' CHAIN-LK FECE 6' CHAIN-LK FECE CONCRE TE WAL 1.2' WIDE CONCR ET WAL L
(PUBLIC STREET)
(PUBLIC STREET)
P( UBLIC STREET)
P( UBLIC STREET)
TRACT ONE
PARCEL 1
PER TITLE REPORT
LANDS OF CITY OF EMERYVILLE
APN: 49-1493-005
21.8'± CONCRETE BUILDING
14,843± SQUARE FEET
LANDS OF
SHELLMOUND
CHRISTIE CORP
APN: 49-1493-6
SPED BUM P
SPED BUM P
18.2'± CONCRETE BUILDING
14,445± SQUARE FEET
TRACT TWO
PARCEL 1
PER TITLE REPORT
LANDS OF CITY OF EMERYVILLE
APN: 49-1493-004
TRACT TWO
PARCEL 2
PER TITLE
REPORT
(EXHIBIT "E-7" REEL
1311 IMAGE 900)
(REEL 1354 IMAGE
320)
TRACT THREE
PER TITLE REPORT
LANDS OF CITY OF EMERYVILLE
APN: 49-1493-003
F CITY OF
YVILLE
93-1-2
(15' OPEN SPACE, PARK, AND RECREATION
AND LANDSCAPING ESMT 93-002555)
LANDS OF
EMERYVILLE PARCEL CFG
DE LLC
APN: 49-1556-22
PARCEL G
FINAL TRACT MAP 8334
345 MAPS 94-98
SAND &G RAVEL PI
E
FOUND PIN
IN CONCRETE
CHRISTIE AVE
MARKET DRIVE
59TH ST
DEMOLISH
EXISTING
BUILDING
DEMOLISH
EXISTING
BUILDING
DEMOLISH
EXISTING
FOUNDATIONS
DEMOLISH
EXISTING
BUILDING
DEMOLISH EXISTING
VAULTS
PARKING TO BE REMOVED BY
ADJACENT PROJECT, NOT IN
THIS PROJECT SCOPE
EXISTING BACKFLOW
PREVENTERS TO REMAIN
NEW PROPERTY LINE
NEW PROPERTY LINE
scale:
date:
1" = 40'-0"
EAH Housing CHRISTIE AVE DEMOLITION PLAN A101
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CIRCULATION
COMMON
GARAGE
OFFICE
OPEN SPACE
RESIDENTIAL
RETAIL
SERVICE
1161 SF
LEARNING CENTER
1259 SF
LOBBY
1589 SF
COMMON
1370 SF
LOBBY
1205 SF
LOBBY
1130 SF
FITTNESS
958 SF
LOUNGE
503 SF
LAUNDRY
585 SF
LAUNDRY
746 SF
LOUNGE
576 SF
LAUNDRY
1080 SF
LOUNGE
894 SF
LOUNGE
1266 SF
LOUNGE
555 SF
LOUNGE
762 SF
LOUNGE
853 SF
LOUNGE
414 SF
LOUNGE
scale:
date: David Baker Architects
1" = 80'-0"
EAH Housing CHRISTIE AVE BUILDING AREAS A102
22230
2023-11-28
1" = 80'-0"
LEVEL 1 1
1" = 80'-0"
LEVEL 2 2
1" = 80'-0"
MEZZANINE 3
1" = 80'-0"
LEVEL 8 4
BUILDING AREA SCHEDULE
Building Area Occupancy
A 19721 SF CIRCULATION
A 5537 SF COMMON
A 9330 SF GARAGE
A 1533 SF OFFICE
A 6938 SF OPEN SPACE
A 103035 SF RESIDENTIAL
A 1582 SF RETAIL
A 5909 SF SERVICE
A 153584 SF
B 18195 SF CIRCULATION
B 6409 SF COMMON
B 10968 SF GARAGE
B 2114 SF OFFICE
B 5567 SF OPEN SPACE
B 102109 SF RESIDENTIAL
B 6145 SF SERVICE
B 151506 SF
C 15324 SF CIRCULATION
C 4959 SF COMMON
C 9870 SF GARAGE
C 925 SF OFFICE
C 5850 SF OPEN SPACE
C 80065 SF RESIDENTIAL
C 6035 SF SERVICE
C 123028 SF
Common Area Schedule
Building Name Area
A LEARNING
CENTER
1161 SF
A LOBBY 1259 SF
A LOUNGE 958 SF
A LAUNDRY 503 SF
A LOUNGE 894 SF
A LOUNGE 762 SF
B COMMON 1589 SF
B LOBBY 1370 SF
B LOUNGE 746 SF
B LOUNGE 1266 SF
B LAUNDRY 585 SF
B LOUNGE 853 SF
C LOBBY 1205 SF
C FITTNESS 1130 SF
C LOUNGE 555 SF
C LOUNGE 1080 SF
C LAUNDRY 576 SF
C LOUNGE 414 SF
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 73 PARKING SPACES
(35 EVSE)
73 PARKING
SPACES
(35 EVSE)
LOADING
LOADING 14
14 14
14 14
PARK
14 TRASH
TH 2
TH 2
GARAGE
82 PARKING SPACES
(37 EVSE)
TH 3
TH 2
TH 2
ELEC
LEARNING
CENTER
RETAIL
PROPERTY
MANAGEMENT
TRASH
TH 2
TH 2
TH 2
GARAGE GARAGE
CHRISTIE AVENUE
59TH STREET
MARKET DRIVE
EXISTING
EXISTING 2-STORY PARKING GARAGE
FIRE PUMP
BLDG A
BLDG B BLDG C
LOBBY
FITNESS
TRANSFORMER
TRASH
COMMON
DOM. WATER
FIRE PUMP
LOBBY
PROPERTY
MANAGEMENT
14 ELEC
MAINT
14 TH 3
BATTERY
DOM. WATER
PROP. MAN.
MAINT
BATTERY
WC
BIKE
BIKE
14 14
BIKE
MAIL
14 14
MPOE
8 LOADING
BATTERY
MAINT
PKG
LOBBYMAIL
14 14
TH 2 TRANSFORMER
14 ELEC
FIRE
PUMP
DOM. WATER
PKG
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE LEVEL 1 FLOOR PLAN A110
22230
0' 15' 30' 60' 2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1616
16 16 16
16 16
16 16
16 16 16 16
1616
16161616
16161616
1616
TH 2
TH 2
TH 2
TH 3
TH 2
TH 2
TH 3
TH 2
TH 2
RESIDENT
SERVICES
BIKES
RES SERVICES
RES SERVICES
BIKE
LOUNGE
LOUNGE
LOUNGE
CHRISTIE AVENUE
59TH STREET
MARKET DRIVE
BIKE
TH 2
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE MEZZANINE FLOOR PLAN A111
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 59TH STREET
149' 17' 47' 39' 59' 15' 88' 50' 122' 104'
CHRISTIE AVENUE
MARKET DRIVE
BLDG B BLDG C
BLDG A
CORRIDOR
3 BR
1 BR
2 BR
2 BR
3 BR
2 BR
1 BR
2 BR
2 BR
2 BR
LOUNGE
3 BR
STUDIO 1 BR
LAUNDRY
3 BR
2 BR
3 BR
LAUNDRY
1 BR
2 BR
3 BR
3 BR
LOUNGE
1 BR 3 BR
2 BR
1 BR
TRASH
STUDIO
2 BR
3 BR
1 BR
LAUNDRY
2 BR
LOUNGE
3 BR
1 BR
TRASH TRASH
2 BR 1 BR
2 BR
2 BR 3 BR
1 BR
3 BR
CORRIDOR
ELEC 1 BR
STUDIO
1 BR
3 BR
STUDIO
2 BR
2 BR
56' 65' 24'
118' 41' 54' 51' 54' 50' 128'
64' 50' 49'
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE LEVEL 2 FLOOR PLAN A120
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG B
BLDG C
59TH STREET
118' 41' 54' 51' 54' 50' 128' 12'
149' 17' 86' 106' 56' 50' 121' 137' 64'
CHRISTIE AVENUE
MARKET DRIVE
BLDG A
CORRIDOR
3 BR
1 BR
2 BR
2 BR
3 BR
2 BR
1 BR
2 BR
2 BR
2 BR
2 BR
3 BR
STUDIO 1 BR
1 BR
3 BR
2 BR
3 BR
STUDIO
1 BR
2 BR
3 BR
3 BR
2 BR
1 BR
3 BR
STUDIO 2 BR
1 BR
TRASH
STUDIO
2 BR
3 BR
1 BR
1 BR
2 BR
3 BR 3 BR
1 BR
TRASH TRASH
2 BR 1 BR
2 BR
3 BR
1 BR
3 BR
CORRIDOR
ELEC
1 BR
STUDIO
1 BR
3 BR
STUDIO
2 BR
2 BR
2 BR
64' 50' 49'
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE LEVEL 3-7 FLOOR PLAN A130
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CORRIDOR
3 BR
1 BR
2 BR
2 BR
3 BR
2 BR
1 BR
2 BR
2 BR
2 BR
2 BR
3 BR
STUDIO
3 BR
3 BR
STUDIO
1 BR
2 BR
3 BR
3 BR
1 BR
COMMON
STUDIO 2 BRTRASH
STUDIO
2 BR
3 BR
1 BR
1 BR
2 BR
3 BR 3 BR
TRASH TRASH COMMON 59TH STREET
1 BR
2 BR
2 BR
1 BR
3 BR
CORRIDOR
ELEC
1 BR
STUDIO
1 BR
COMMON
STUDIO
118' 41' 54' 51' 54' 50' 128' 12'
149' 17' 106' 56' 50' 122' 137' 64'
CHRISTIE AVENUE
MARKET DRIVE
BLDG A
BLDG B
BLDG C 1 BR
1 BR
1 BR
1 BR
2 BR
2 BR
3 BR
commercial
common
residential
circulation
stairs / elevator
office
service / trash
garage / bike room
retail
green / open space
47'
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE LEVEL 8 FLOOR PLAN A180
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B
BLDG C
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE ROOF PLAN A190
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 REF.
REF.
REF.
15' - 0"
12' - 2" 10' - 8"
PANTRY
MICROWAVE
GARBAGE
DISPOSAL
STUDIO
376 SF
10' - 5" 10' - 11"
10' - 3 1/2" 2' - 9 1/2" 9' - 9"
PANTRY
MICROWAVE
GARBAGE
DISPOSAL
1 BR
528 SF
scale:
date: David Baker Architects
1/4" = 1'-0"
EAH Housing CHRISTIE AVE TYP UNIT PLANS A200
22230
2023-11-28
1/4" = 1'-0"
TYP STUDIO UNIT PLAN 1
1/4" = 1'-0"
TYP 1BR UNIT PLAN 2
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 DW
REF.
10' - 8"
DINING
108 SF
10' - 4" 10' - 6 1/2" 10' - 5 1/2"
LIVING
10' - 9 1/2"
128 SF
2' - 9 1/2" 9' - 9"
12' - 8 1/2" 10' - 8"
PANTRY
MICROWAVE
GARBAGE
DISPOSAL
2BR
784 SF
scale:
date: David Baker Architects
1/4" = 1'-0"
EAH Housing CHRISTIE AVE TYP UNIT PLANS A201
22230
2023-11-28
1/4" = 1'-0"
TYP 2BR UNIT PLAN 1
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 REF.
10' - 0 1/2"
13' - 9 1/2" 10' - 1 1/2"
20' - 5 1/2" 10' - 6" 10' - 7"
PANTRY MICROWAVE GARBAGE
DISPOSAL
11' - 7"
16' - 8 1/2" 6' - 7 1/2"
9' - 11" 10' - 11 1/2"
LIVING
ROOM
118 SF
DINING
ROOM
95 SF
3BR
1037 SF
scale:
date: David Baker Architects
1/4" = 1'-0"
EAH Housing CHRISTIE AVE TYP UNIT PLANS A202
22230
2023-11-28
1/4" = 1'-0"
TYP 3BR UNIT PLAN 1
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 ?
9' - 11" 11' - 7"
PANTRY
GARBAGE
DISPOSAL
MICROWAVE
9' - 11 1/2" 11' - 6 1/2"
DINING ROOM
112 SF
LIVING ROOM
178 SF
2 BR TOWNHOME
1100 SF
10' - 1" 12' - 3"
9' - 9" 11' - 9"
5' - 9 1/2" 11' - 1 1/2"
scale:
date: David Baker Architects
1/4" = 1'-0"
EAH Housing CHRISTIE AVE TYP UNIT PLANS A203
22230
2023-11-28
1/4" = 1'-0"
2BR TOWNHOME UNIT PLAN LEVEL 1 1
1/4" = 1'-0"
2BR TOWNHOME UNIT PLAN LEVEL 2 2
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 ?
PANTRY
GARBAGE
DISPOSAL
MICROWAVE
DINING ROOM
150 SF
LIVING ROOM
200 SF
3 BR TOWNHOME
1440 SF
9' - 9" 13' - 0 1/2"
21' - 6" 10' - 8" 10' - 10"
12' - 7" 5' - 0" 12' - 6"
scale:
date: David Baker Architects
1/4" = 1'-0"
EAH Housing CHRISTIE AVE TYP UNIT PLANS A204
22230
2023-11-28
1/4" = 1'-0"
3BR TOWNHOME UNIT PLAN LEVEL 1 1
1/4" = 1'-0"
3BR TOWNHOME UNIT PLAN LEVEL 2 2
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 scale:
date: David Baker Architects EAH Housing CHRISTIE AVE MATERIALS A300 22230
2023-11-28
CORTEN METAL PANEL THIN BRICK ALUMINUM METAL PANEL
TILE TEXTURED CONCRETE STOREFRONT FIBER CEMENT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 LEVEL 1
0' - 0"
LEVEL 2
21' - 0"
LEVEL 3
30' - 0"
LEVEL 4
39' - 0"
LEVEL 5
48' - 0"
LEVEL 6
57' - 0"
LEVEL 7
66' - 0"
LEVEL 8
75' - 0"
ROOF
85' - 0"
MEZZANINE
11' - 6"
ROOF PH
95' - 0"
A
B
F
G
B
B
G
F
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE ELEVATIONS A301
22230
2023-11-28
1" = 40'-0"
CHRISTIE AVENUE - WEST ELEVATION 1
A B C D E F G
A. CORTEN METAL PANEL
B. THIN BRICK
C. ALUMINUM METAL PANEL
D. TILE
E. TEXTURED CONCRETE
F. STOREFRONT
G. FIBER CEMENT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 LEVEL 1
0' - 0"
LEVEL 2
21' - 0"
LEVEL 3
30' - 0"
LEVEL 4
39' - 0"
LEVEL 5
48' - 0"
LEVEL 6
57' - 0"
LEVEL 7
66' - 0"
LEVEL 8
75' - 0"
ROOF
85' - 0"
MEZZANINE
11' - 6"
ROOF PH
95' - 0"
G
F
A
E
B
F
G
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE ELEVATIONS A302
22230
2023-11-28
A B C D E F G
A. CORTEN METAL PANEL
B. THIN BRICK
C. ALUMINUM METAL PANEL
D. TILE
E. TEXTURED CONCRETE
F. STOREFRONT
G. FIBER CEMENT
1" = 40'-0"
MARKET DRIVE - EAST ELEVATION 1
PUBLIC ART OPPORTUNITY AT
PERFORATED METAL SCREEN
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 LEVEL 1
0' - 0"
LEVEL 2
21' - 0"
LEVEL 3
30' - 0"
LEVEL 4
39' - 0"
LEVEL 5
48' - 0"
LEVEL 6
57' - 0"
LEVEL 7
66' - 0"
LEVEL 8
75' - 0"
ROOF
85' - 0"
MEZZANINE
11' - 6"
ROOF PH
95' - 0"
A
PUBLIC ART OPPORTUNITY AT
COURT WALL
B
B
scale:
date: David Baker Architects
1" = 20'-0"
EAH Housing CHRISTIE AVE ELEVATIONS A303
22230
2023-11-28
1" = 20'-0"
NORTH ELEVATION, VIEW FROM CHRISTIE PARK 1
A B C D E F G
A. CORTEN METAL PANEL
B. THIN BRICK
C. ALUMINUM METAL PANEL
D. TILE
E. TEXTURED CONCRETE
F. STOREFRONT
G. FIBER CEMENT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 LEVEL 1
0' - 0"
LEVEL 2
21' - 0"
LEVEL 3
30' - 0"
LEVEL 4
39' - 0"
LEVEL 5
48' - 0"
LEVEL 6
57' - 0"
LEVEL 7
66' - 0"
LEVEL 8
75' - 0"
ROOF
85' - 0"
MEZZANINE
11' - 6"
ROOF PH
95' - 0"
G
A E
scale:
date: David Baker Architects
1" = 20'-0"
EAH Housing CHRISTIE AVE ELEVATIONS A304
22230
2023-11-28
1" = 20'-0"
1 SOUTH ELEVATION, VIEW FROM SOUTH PROPERTY
LINE
A B C D E F G
A. CORTEN METAL PANEL
B. THIN BRICK
C. ALUMINUM METAL PANEL
D. TILE
E. TEXTURED CONCRETE
F. STOREFRONT
G. FIBER CEMENT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
OPEN SPACE REQUIREMENTS
9-4.303
20 SQUARE FEET OF COMMON OPEN SPACE
PER UNIT AND 40 SQUARE FEET OF PRIVATE
OPEN SPACE PER UNIT.
TOWNHOMES
10 TOWNHOME UNITS MEET PRIVATE OPEN
SPACE REQUIREMENTS.
COMMON OPEN SPACE REQUIRED FOR THOSE
10 TOWNHOME UNITS = 200 SF
FLATS
ii. WHERE INFEASIBLE TO PROVIDE PRIVATE
OPEN SPACE, COMMON OPEN SPACE MAY BE
SUBSTITUTED FOR PRIVATE OPEN SPACE AT A
RATIO OF 2:1 (I.E. 80 SQUARE FEET OF COMMON
OPEN SPACE MAY SUBSTITUE FOR 40 SQUARE
FEET OF REQUIRED PRIVATE OPEN SPACE.
THEREFORE, 100 (20 + 80) SQUARE FEET OF
COMMON OPEN SPACE PER 352 UNITS WITH NO
PRIVATE OPEN SPACE WOULD MEET THE OPEN
SPACE REQUIREMENTS FOR THE PROJECT.
352 UNITS * 100 SQUARE FEET / UNIT = 35,200.
35,200 + 200 = 35,400 SQUARE FEET OF
COMMON OPEN SPACE REQUIRED.
THE PROJECT IS PROVIDING 18,909 SQUARE
FEET OF COMMON OPEN SPACE. THE PROJECT
IS REQUESTING A WAIVER FOR OPEN SPACE
REQUIREMENTS.
ADDITIONALLY, THE PROJECT IS PROVIDING
20,409 SQUARE FEET OF PUBLICLY ACCESSIBLE
OPEN SPACE.
COMMON
PRIVATE
PUBLICLY
ACCESSIBLE
99 SF
PRIVATE
73 SF
PRIVATE
75 SF
PRIVATE
73 SF
PRIVATE
73 SF
PRIVATE
83 SF
PRIVATE
82 SF
PRIVATE
83 SF
PRIVATE
130 SF
PRIVATE
705 SF
COMMON
15871 SF
PUBLICLY
ACCESSIBLE
4538 SF
PUBLICLY
ACCESSIBLE
5440 SF
COMMON
4293 SF
COMMON
5416 SF
COMMON
264 SF
COMMON
385 SF
COMMON
25' - 0"
25' - 0"
25' - 0"
25' - 0"
25' - 0"
25' - 0"
65'
51'
50'
1102 SF
COMMON
939 SF
COMMON
366 SF
COMMON
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE OPEN SPACE A800
22230
2023-11-28
1" = 80'-0"
LEVEL 1 1
1" = 80'-0"
LEVEL 2 4
1" = 80'-0"
LEVEL 8 3
Area Schedule (Open Space)
Name Area
COMMON 5440 SF
COMMON 4293 SF
COMMON 5416 SF
COMMON 264 SF
COMMON 385 SF
COMMON 1102 SF
COMMON 939 SF
COMMON 366 SF
COMMON 705 SF
18909 SF
PRIVATE 99 SF
PRIVATE 73 SF
PRIVATE 75 SF
PRIVATE 73 SF
PRIVATE 73 SF
PRIVATE 83 SF
PRIVATE 82 SF
PRIVATE 83 SF
PRIVATE 130 SF
770 SF
PUBLICLY
ACCESSIBLE
15871 SF
PUBLICLY
ACCESSIBLE
4538 SF
20409 SF
40088 SF
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 73 PARKING SPACES
(35 EVSE)
73 PARKING
SPACES
(35 EVSE)
LOADING
LOADING 14
14 14
14 14
PARK
14 LOBBY
TRASH
TH 2
TH 2
GARAGE
82 PARKING SPACES
(37 EVSE)
TH 3
TH 2
TH 2
ELEC
LEARNING
CENTER
RETAIL
PROPERTY
MANAGEMENT
TRASH
TH 2
TH 2
TH 2
TH 3
GARAGE GARAGE
CHRISTIE AVENUE
59TH STREET
MARKET DRIVE
EXISTING
EXISTING 2-STORY PARKING GARAGE
FIRE PUMP
14 14
14 14
14 14 8 LOADING
14 14 14
BIKE
FITNESS
TRASH TRANSFORMER
COMMON
DOM. WATER
FIRE PUMP
LOBBY
PROPERTY
MANAGEMENT
ELEC
MAINT
DOM. WATER BATTERY
PROP. MAN.
MAINT
BATTERY
WC
BIKE
BIKE
MAIL
MPOE
BATTERY
MAINT
PKG
LOBBYMAIL
ST2-1
EL-1 EL-1
ST2-1
WC
EL-1
TH 2
TRANSFORMER
ELEC
WC WC
PKG
WC
PKG
DOM. WATER
FIRE
PUMP
BUILDING A TRASH STAGING
BUILDING B & C TRASH STAGING
scale:
date: David Baker Architects
1" = 40'-0"
EAH Housing CHRISTIE AVE DISCARDS STRATEGY A801
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 ~
~
C
~
E
E
E
E
E
E
E
E
E
E
?
?
S E
E
S E
W W
?
?
1.2' WIDE CONCR ET WAL
L
73 PARKING SPACES
(35 EVSE)
PEDESTRIAN PASSAGEWAY
LOADING
14 368'
334'
327'
164'
120'
25'
REMOVE EXISTING RED CURB EXISTING RED CURB
132'
132'
73 PARKING
SPACES
(35 EVSE)
LOADING 14
14 14
14 PARK
381'
EXISTING FIRE LANE
14 EXISTING RED CURB EXISTING RED CURB EXISTING RED CURB 89'
90'
88'
87'
TH 3
TH 2
TH 2
ELEC
GARAGE GARAGE
82 PARKING SPACES
(37 EVSE)
TH 3
TH 2
TH 2
TH 2
TRASH
LEARNING
CENTER
RETAIL
BIKE
PROPERTY
MANAGEMENT
GARAGE
TH 2
TH 2
TRASH
LOBBY
REMOVE EXISTING
RED CURB
CHRISTIE AVE
SHELLMOUND STREET
59TH STREET
6 2
N
D
S
T
R
E
E
T
MARKET DRIVE
FIRE PUMP
14 14
14 14
14 14 8 LOADING
14 14 14
193'
17' - 0"
17' E.V.A.E. PER FINAL TRACT MAP 8327
BUILDING ENTRY
SITE ACCESS
HYDRANT
FDC
AERIAL ACCESS ROAD
FIRE APPARATUS ACCESS
LEGEND
FIRE APPARATUS ACCESS
ROAD WITHIN 150' PER 503.1.1
ACCESS WITHIN 400' OF
EXISTING HYDRANTS PER 507.5.1
EXISTING RED CURB
APPLICABLE CODE: 2019 CALIFORNIA FIRE CODE (INTERNATIONAL FIRE CODE 2018), APPENDIX D D105.2 WIDTH
AERIAL FIRE APPARATUS ACCESS ROADS SHALL HAVE A MINIMUM UNOBSTRUCTED WIDTH OF 26 FEET (7925 MM), EXCLUSIVE OF SHOULDERS, IN THE IMMEDIATE VICINITY OF THE BUILDING OR PORTION THEREOF. 503.2.1 DIMENSIONS
FIRE APPARATUS ACCESS ROADS SHALL HAVE AN UNOBSTRUCTED WIDTH OF NOT LESS THAN 20 FEET (6096 MM), EXCLUSIVE OF SHOULDERS, EXCEPT FOR APPROVED SECURITY GATES IN ACCORDANCE WITH SECTION 503.6, AND AN UNOBSTRUCTED VERTICAL CLEARANCE OF NOT LESS THAN 13 FEET 6 INCHES (4115 MM). 507.5.1.1 HYDRANT FOR STANDPIPE SYSTEMS
FIRE HYDRANT TO BE PROVIDED WITHIN 100' OF FDC, AS INDICATED. 503.1.1 BUILDINGS AND FACILITIES
APPROVED FIRE APPARATUS ACCESS ROADS SHALL BE PROVIDED FOR EVERY FACILITY, BUILDING OR PORTION OF A
BUILDING HEREAFTER CONSTRUCTED OR MOVED INTO OR WITHIN THE JURISDICTION AS DETERMINED BY THE LOCAL FIRE CHIEF AND/OR FIRE CODE OFFICIAL OF THE RESPONDING FIRE DEPARTMENT OR AGENCY. THE FIRE APPARATUS ACCESS ROAD SHALL COMPLY WITH THE REQUIREMENTS OF THIS SECTION AND APPENDIX D OF THIS CODE.
THE FIRE APPARATUS ACCESS ROAD SHALL EXTEND TO WITHIN 150 FEET (45.7 M) OF ALL PORTIONS OF THE
FACILITY OR ANY PORTION OF THE EXTERIOR WALL OF THE FIRST STORY OF THE BUILDING AS MEASURED BY AN APPROVED ROUTE AROUND THE EXTERIOR OF THE BUILDING OR FACILITY.
EXCEPTION: THE LOCAL FIRE CHIEF AND/OR FIRE CODE OFFICIAL OF THE RESPONDING FIRE DEPARTMENT OR AGENCY IS AUTHORIZED TO INCREASE THE DIMENSION OF 150 FEET (45.7 M) WHERE:
1. THE BUILDING IS EQUIPPED THROUGHOUT WITH AN APPROVED AUTOMATIC SPRINKLER SYSTEM INSTALLED IN ACCORDANCE WITH SECTION 903.3.1.1, 903.3.1.2 OR 903.3.1.3.
2. THE FIRE APPARATUS ACCESS ROADS CANNOT BE INSTALLED BECAUSE OF LOCATION ON THE PROPERTY,
TOPOGRAPHY, WATERWAYS, NONNEGOTIABLE GRADES OR OTHER SIMILAR CONDITIONS, AND AN APPROVED ALTERNATIVE MEANS OF FIRE PROTECTION IS PROVIDED.
3. THERE ARE NOT MORE THAN TWO GROUP R-3 OR GROUP U OCCUPANCIES. 507.5.1 WHERE REQUIRED (FIRE HYDRANT SYSTEMS)
WHERE A PORTION OF THE FACILITY OR BUILDING HEREAFTER CONSTRUCTED OR MOVED INTO OR WITHIN THE JURISDICTION IS MORE THAN 400 FEET (152 M) FROM A HYDRANT ON A FIRE APPARATUS ACCESS ROAD,
AS MEASURED BY AN APPROVED ROUTE AROUND THE EXTERIOR OF THE FACILITY OR BUILDING, ON-SITE
FIRE HYDRANT AND MAINS SHALL BE PROVIDED WHERE REQUIRED BY THE LOCAL FIRE CHIEF AND/OR FIRE CODE OFFICIAL OF THE RESPONDING FIRE DEPARTMENT OR AGENCY. scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE FIRE ACCESS PLAN A802
22230
2023-11-28
1" = 60'-0"
FIRE ACCESS PLAN 1
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 21384 SF
BLDG A 20540 SF
BLDG B
17502 SF
BLDG C
16882 SF
BLDG A
17220 SF
BLDG B
13769 SF
BLDG C
16105 SF
BLDG A
16094 SF
BLDG B
13381 SF
BLDG C
ALLOWABLE BUILDING AREA
OCCUPANCY: R-2, WITH ACCESSORY A, S, B
PER CBC TABLE 506.2 ALLOWABLE AREA IS
UNLIMITED
3285 SF
BLDG A
3140 SF
BLDG A
2615 SF
BLDG B
4470 SF
BLDG B
1128 SF
BLDG C
2557 SF
BLDG C
16874 SF
BLDG A
17059 SF
BLDG B
13819 SF
BLDG C
scale:
date: David Baker Architects
As indicated
EAH Housing CHRISTIE AVE ALLOWABLE AREA A803
22230
2023-11-28
1" = 80'-0"
LEVEL 1 1
1" = 80'-0"
LEVEL 2 3
1" = 80'-0"
LEVEL 8 6
Area Schedule (Code Analysis)
Building Area
A 146486 SF
B 146094 SF
C 117432 SF
1" = 80'-0"
MEZZANINE 2
1" = 80'-0"
TYPICAL LEVEL 4
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
STREET LIGHTING SUMMARY (SEE L102, L104-L106)
CHRISTIE AVENUE:
(3) POLE LIGHT FIXTURE PER CITY STANDARD TO REPLACE EXISTING, TO
MATCH DOUBLE-HEADED POLE LIGHT ALONG CHRISTIE AVENUE
59TH STREET:
(2) NEW PEDESTRIAN-SCALED POLE LIGHT FIXTURE PER CITY STANDARD KEY PLAN - LEVEL 1 L001
MARKET DRIVE IMPROVEMENT
BY OTHERS
PUBLIC MARKET EMERYVILLE
59TH STREET
PEDESTRIAN PASSAGEWAY
CHRISTIE AVENUE
CHRISTIE AVENUE COMMONS
STREET TREE SUMMARY
(SEE L102,L104-L106)
CHRISTIE AVENUE:
(12) NEW STREET TREES
59TH STREET:
(11) NEW STREET TREES
LOBBY
LOBBY
LOBBY
FITNESS
COMMON
ROOM
LEARNING
CENTER
RETAIL
CHRISTIE
PARK
CHRISTIE PARK
EXTENSION
BUILDING A BUILDING B BUILDING C
L101 L103
L104 L106
L102
L105
- -
- -
-
-
1” = 50’
0’ 25’ 50’
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
KEY PLAN - LEVEL 2 2023-11-28 2023-06-26 L002
PUBLIC MARKET EMERYVILLE
59TH STREET
CHRISTIE AVENUE
CHRISTIE
PARK
BUILDING A
BUILDING B BUILDING C
L113
-
L111 L112
- -
1” = 50’
0’ 25’ 50’
MARKET DRIVE IMPROVEMENT
BY OTHERS
CHRISTIE PARK
EXTENSION
PEDESTRIAN PASSAGEWAY
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
KEY PLAN - LEVEL 8 2023-11-28 2023-06-26 L003
PUBLIC MARKET EMERYVILLE
59TH STREET
CHRISTIE AVENUE
CHRISTIE
PARK
BUILDING A BUILDING B
BUILDING C
L121
1 L121 L121
3 2
1” = 50’
0’ 25’ 50’
MARKET DRIVE IMPROVEMENT
BY OTHERS
CHRISTIE PARK
EXTENSION
PEDESTRIAN PASSAGEWAY
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
450
435
428 427 426
430
429
434
433
432
425
423
424
443 442 441
440
439
438
437 436
444
445
446
447
449
448
431
TREE REMOVAL PLAN L004
PUBLIC MARKET EMERYVILLE
59TH STREET
CHRISTIE AVENUE
CHRISTIE
PARK
BUILDING A BUILDING B BUILDING C
1” = 50’
0’ 25’ 50’
MARKET DRIVE IMPROVEMENT
BY OTHERS
CHRISTIE PARK
EXTENSION
(4) TREES TO REMOVE
OUTSIDE PROPERTY LINE
436, 437, 448, 449
(1) TREE TO REMAIN OUTSIDE
PROPERTY LINE
450: QUERCUS AGRIFOLIA
10” TRUNK
TOTAL NUMBER OF SURVEYED TREES TO BE REMOVED = (27)
(SEE ARBORIST REPORT FOR TREE DATA)
TOTAL NUMBER OF SURVEYED
TREES TO REMAIN = (1)
TOTAL NUMBER OF TREES TO BE PLANTED = (52)
(23) TREES TO REMOVE
WITHIN PROPERTY LINE
423, 424, 425, 426, 427, 428, 429, 430,
431, 432, 433, 434, 435, 438, 439, 440,
441, 442, 443, 444, 445, 446, 447
(26) TREES TO BE PLANTED
OUTSIDE PROPERTY LINE
CHRISTIE AVENUE: (12)
CHRISTIE PARK EXTENSION: (14)
(26) PRIVATE TREES TO BE
PLANTED INSIDE PROPERTY LINE
PEDESTRIAN PASSAGEWAY: (13)
59TH STREET: (11)
BUILDING C: (2)
PL
PL
PL
PEDESTRIAN PASSAGEWAY
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - CHRISTIE PARK EXT. 2023-11-28 2023-06-26 L101 1/16” = 1’
CHRISTIE PARK
(EXISTING PLAYGROUND)
PICNIC
AREA
1.8%
1.1%
0.0%
+(0.00)
+BW 8.48
+8.48
+BW 9.98
+BW 11.48
+(9.17)
(9.17)+
FF 8.75
FF 8.75
FF 0.00
+BW 0.00
FITNESS
BLEACHER
HALF BASKETBALL COURT
BATTERY
LEARNING CENTER
BUILDING A
LOBBY
BUILDING A
GARAGE
MAINT.
ELEC.
MATCHLINE - L103
MATCHLINE - L102
0’ 8’ 16’ 32’
PARK
EASEMENT
MARKET DRIVE IMPROVEMENT
BY OTHERS
MATERIAL LEGEND
GRADING LEGEND
PLANTING LEGEND
STREET TREE
36” BOX
SMALL TREE
24” BOX
SLOPE
FINISHED FLOOR
ELEVATION BY ARCHITECT
BOTTOM OF WALL
EXISTING SPOT GRADE
TO REMAIN
PARK TREE
36” BOX
EXISTING TREE
TO REMAIN
QUERCUS AGRIFOLIA
10” TRUNK
ACCENT SHRUB
15 & 5 GALLON
EVERGREEN SHRUB
FOR SCREENING
15 GALLON
CONCRETE UNIT PAVER
ACRYLIC SPORT SURFACING
SYSTEM ON CONCRETE SLAB
WARNING PAVER
CONCRETE PAVING
REDBROWN PATHWAY MIX
REGULAR PLANTING
BIORETENTION PLANTING
CONCRETE PLANTER WALL
BUILT-IN WOOD SEATING
PICNIC TABLE
TREE WELL WITH COBBLES
FOR STREET TREE
BUILDING
MOUNTED LIGHT
POLE LIGHT FOR
PARK EXTENSION
PL
PL
PL
1.0%
NOTE: STREET GRADING
SEE CIVIL DRAWINGS
ARTIFICIAL TURF
FOUR SQUARE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
MATERIAL LEGEND
PLANTING LEGEND
STREET TREE
36” BOX
EXISTING TREE
TO REMAIN
CONCRETE UNIT PAVER
ACRYLIC SPORT SURFACING
SYSTEM ON CONCRETE SLAB
WARNING PAVER
CONCRETE PAVING
REDBROWN PATHWAY MIX
REGULAR PLANTING
BIORETENTION PLANTING
CONCRETE PLANTER WALL
BUILT-IN WOOD SEATING
PICNIC TABLE
TREE WELL WITH COBBLES
FOR STREET TREE
L102
ENLARGED PLAN -
CHRISTIE PARK EXT. & CHRISTIE AVE.
PM SUITE
DOM.
WATER
FIRE
PUMP
RETAIL SPACE
LEARNING
CENTER
BIKE
ROOM
BUILDING A
GARAGE
CHRISTIE AVENUE
BUILDING A
ACCESSIBLE LOADING
1/16” = 1’
0’ 8’ 16’ 32’
MATCHLINE - L104
MATCHLINE - L101
PL
EXISTING STREET
LIGHT TO REMAIN
CHRISTIE PARK
PARK
EASEMENT
PL
PL
(1) CLASS II
BIKE RACK
0.0%
+(0.00) FF 0.00
GRADING LEGEND SLOPE +BW 0.00
FINISHED FLOOR
ELEVATION BY ARCHITECT
BOTTOM OF WALL
EXISTING SPOT GRADE
TO REMAIN
FF 7.94
FF 7.75
FF 7.94
BUILDING A
LOBBY
NOTE: STREET GRADING
SEE CIVIL DRAWINGS
1.8%
1.8%
SMALL TREE
24” BOX
PARK TREE
36” BOX
ACCENT SHRUB
15 & 5 GALLON
EVERGREEN SHRUB
FOR SCREENING
15 GALLON
PICNIC
AREA
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - PEDESTRIAN PASSAGEWAY 2023-11-28 2023-06-26 L103
CROSSWALK CONNECTION
TO PUBLIC MARKET
BUILDING B
GARAGE
TOWNHOUSE
TRANSFORMERS
ELEC.
BATTERY
TOWNHOUSE
TOWNHOUSE
EGRESS
STAIRS
EGRESS
STAIRS
TOWNHOUSE
SIGHTLINE TO
PUBLIC MARKET
TOWNHOUSE
TOWNHOUSE
(2) CLASS II
BIKE RACKS
1/16” = 1’
0’ 8’ 16’ 32’
MATCHLINE - L101MATCHLINE - L105
MATCHLINE - L104
NEW PENDANT
LIGHTING
PRIVATE
PATIO
PRIVATE
PATIO
PRIVATE
PATIO
PRIVATE
PATIO
BUILDING A
GARAGE
TRASH TRANSFORMER
ROOM
MARKET DRIVE IMPROVEMENT
BY OTHERS
MATERIAL LEGEND PLANTING LEGEND
STREET TREE
36” BOX
EVERGREEN TREE
36” BOX
SMALL TREE
24” BOX
ACCENT SHRUB
15 & 5 GALLON
WARNING PAVER
CONCRETE PAVING
REGULAR PLANTING
BIORETENTION PLANTING
BIORETENTION PLANTERS
WITH METAL WHEELGUIDE
BUILT-IN WOOD BENCH
CLASS II BIKE RACK
TREE WELL WITH COBBLES
FOR STREET TREE
CONCRETE UNIT PAVER TYPE 1
CONCRETE UNIT PAVER TYPE 2
PL
PL
FF 7.94
FF 7.94
FF 7.94
FF 7.91
FF 7.91
FF 7.91
1.5%
1.5%
1.5%
1.5%
1.5%
0.7%
1.5%
+(8.70)
0.0%
+(0.00)
FF 0.00
+BW 0.00
GRADING LEGEND
SLOPE
FINISHED FLOOR
ELEVATION BY ARCHITECT
BOTTOM OF WALL
EXISTING SPOT GRADE
TO REMAIN
PRIVATE
PATIO
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26 L104
CHRISTIE AVENUE
COMMON ROOM
PM SUITE
DOM.
WATER
FIRE
PUMP
TOWNHOUSE
TOWNHOUSE
TOWNHOUSE
TOWNHOUSE
(2) CLASS II
BIKE RACKS
NEW PENDANT
LIGHTING
1/16” = 1’
0’ 8’ 16’ 32’ MATCHLINE - L106
MATCHLINE - L103
MATCHLINE - L102
BUILDING B
ACCESSIBLE LOADING
REPLACE EXISTING COBRA LIGHT
WITH NEW POLE LIGHT TO MATCH
DOUBLE-HEADED STREET LIGHT
ON CHRISTIE AVE.
BUILDING A
GARAGE
BUILDING B
GARAGE
PROPOSED
CROSSWALK
REPLACE EXISTING COBRA LIGHT
WITH NEW POLE LIGHT TO MATCH
DOUBLE-HEADED STREET LIGHT
ON CHRISTIE AVE.
(1) CLASS II
BIKE RACK
SIGHTLINE TO
PUBLIC MARKET
MATERIAL LEGEND PLANTING LEGEND
STREET TREE
36” BOX
EVERGREEN TREE
36” BOX
SMALL TREE
24” BOX
ACCENT SHRUB
15 & 5 GALLON
WARNING PAVER
CONCRETE PAVING
REGULAR PLANTING
BIORETENTION PLANTING
BIORETENTION PLANTERS
WITH METAL WHEELGUIDE
BUILT-IN WOOD BENCH
CLASS II BIKE RACK
TREE WELL WITH COBBLES
FOR STREET TREE
CONCRETE UNIT PAVER TYPE 1
CONCRETE UNIT PAVER TYPE 2
PL PL
1.5%
1.5%
1.5%
0.7%
1.5%
+(7.72)
0.0%
+(0.00)
FF 0.00
+BW 0.00
GRADING LEGEND
SLOPE
FINISHED FLOOR
ELEVATION BY ARCHITECT
BOTTOM OF WALL
EXISTING SPOT GRADE
TO REMAIN
FF 7.94
FF 7.94
FF 8.10
FF 7.91
FF 7.91
PRIVATE
PATIO
PRIVATE
PATIO
PRIVATE
PATIO
PRIVATE
PATIO
ENLARGED PLAN -
PEDESTRIAN PASSAGEWAY & CHRISTIE AVE.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - 59TH STREET 2023-11-28 2023-06-26 L105
TOWNHOUSE
TOWNHOUSE
TRASH
TRASH
BATTERY
BUILDING B
GARAGE
BUILDING C
GARAGE
59TH STREET
(50’ EASEMENT FOR
ROADWAY & P.U.E.)
MARKET DRIVE
EXISTING EV
CHARGING STATIONS
EXISTING TRANSFORMER
TO REMAIN
EXISTING TRANSFORMER
TO REMAIN
1/16” = 1’
0’ 8’ 16’ 32’
MATCHLINE - L101
MATCHLINE - L104
NEW PEDESTRIAN-SCALED
POLE LIGHT PER CITY
STANDARD
PROPOSED
CROSSWALK
TRANSFORMER
ROOM
ELEC.
EGRESS
STAIRS
MATERIAL LEGEND PLANTING LEGEND
STREET TREE
36” BOX
EVERGREEN TREE
36” BOX
SMALL TREE
24” BOX
ACCENT SHRUB
15 & 5 GALLON
WARNING PAVER
CONCRETE PAVING
REGULAR PLANTING
BIORETENTION PLANTING
BIORETENTION PLANTERS
WITH METAL WHEELGUIDE
BUILT-IN WOOD BENCH
CLASS II BIKE RACK
TREE WELL WITH COBBLES
FOR STREET TREE
NOTE: STREET GRADING SEE CIVIL DRAWINGS
CONCRETE UNIT PAVER TYPE 1
CONCRETE UNIT PAVER TYPE 2
PL
PL
PL
PRIVATE
PATIO
PRIVATE
PATIO
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - 59TH ST. & CHRISTIE AVE. 2023-11-28 2023-06-26 L106
BUILDING B
LOBBY
BUILDING C
LOBBY
FIRE
PUMP
BIKE
ROOM
PACKAGE
DOM.
WATER
MAINT.
BUILDING C
ACCESSIBLE LOADING
TOWNHOUSE
BUILDING C
GARAGE
BIKE ROOM
FITNESS
(4) CLASS II
BIKE RACKS
1/16” = 1’
0’ 8’ 16’ 32’
MATCHLINE - L105
MATCHLINE - L104
BUILDING B
ACCESSIBLE LOADING
END OF EXISTING
SIDEWALK
EXISTING SIDEWALK
NEW PEDESTRIAN-SCALED
POLE LIGHT PER CITY
STANDARD
REPLACE EXISTING COBRA LIGHT
WITH NEW POLE LIGHT TO MATCH
DOUBLE-HEADED STREET LIGHT
ON CHRISTIE AVE.
PROPOSED
CROSSWALK
EXISTING
CROSSWALK
(1) CLASS II
BIKE RACK
MATERIAL LEGEND PLANTING LEGEND
STREET TREE
36” BOX
EVERGREEN TREE
36” BOX
SMALL TREE
24” BOX
ACCENT SHRUB
15 & 5 GALLON
WARNING PAVER
CONCRETE PAVING
REGULAR PLANTING
BIORETENTION PLANTING
BIORETENTION PLANTERS
WITH METAL WHEELGUIDE
BUILT-IN WOOD BENCH
CLASS II BIKE RACK
TREE WELL WITH COBBLES
FOR STREET TREE
CONCRETE UNIT PAVER TYPE 1
CONCRETE UNIT PAVER TYPE 2
PL
PL
PL
59TH STREET
(50’ EASEMENT FOR
ROADWAY & P.U.E.)
NOTE: STREET GRADING SEE CIVIL DRAWINGS
FF 8.34
FF 8.34
FF 8.34
FF 7.91
1.8%
0.0%
FF 0.00
GRADING LEGEND
SLOPE
FINISHED FLOOR
ELEVATION BY ARCHITECT
PM
6’ TALL METAL FENCE WITH
CUSTOM PERFORATED
PATTERN
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - LEVEL 2 - BUILDING A 2023-11-28 2023-06-26 L111
LAUNDRY
UNIT
UNIT
UNIT
UNIT UNIT UNIT
COMMON ROOM
UNIT UNIT
UNIT
UNIT
CHRISTIE PARK
EXTENSION BELOW
PLAY
AREA
LOOKOUT AREA
1/16” = 1’
0’ 8’ 16’ 32’
+TW 1.50 +TW 1.50 +TW 1.50
+TW 1.50
+TW 3.50
+0.00 +0.00
+0.00
+0.00
FF 0.00 FF 0.00
FF 0.00
FF 0.00
MATERIAL LEGEND
PLANTING LEGEND
SMALL TREE
24” BOX
SHRUB
15 GALLON
ACCENT SHRUB
5 GALLON
PEDESTAL PAVER TYPE 1
PEDESTAL PAVER TYPE 2
NATURAL RESILIENT SURFACE
RAISED METAL PLANTER
GRAVEL
RECLAIMED BOULDERS
RECLAIMED TIMBER
BUILT-IN WOOD BENCH
BUILT-IN TABLE
PICNIC TABLE SET
+0.00
FF 0.00
+TW 0.00
GRADING LEGEND
FINISHED FLOOR
ELEVATION BY ARCHITECT
TOP OF WALL
EXTERIOR FINISHED FLOOR
ELEVATION/TOP OF SOIL
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - LEVEL 2 - BUILDING B 2023-11-28 2023-06-26 L112
COMMON ROOM
UNIT
UNIT
UNIT
UNIT
UNIT UNIT
LAUNDRY
ELEVATOR
PEDESTRIAN PASSAGEWAY BELOW
59TH STREET BELOW
PLAY
AREA
1/16” = 1’
0’ 8’ 16’ 32’
+TW 1.50 +TW 1.50
+TW 1.50
+TW 3.50
+0.00
+0.00
+0.00
+1.50
+1.50
+0.00
+0.00
FF 0.00
FF 0.00
FF 0.00
MATERIAL LEGEND
PLANTING LEGEND
SMALL TREE
24” BOX
SHRUB
15 GALLON
ACCENT SHRUB
5 GALLON
+0.00
FF 0.00
+TW 0.00
GRADING LEGEND
FINISHED FLOOR
ELEVATION BY ARCHITECT
TOP OF WALL
EXTERIOR FINISHED FLOOR
ELEVATION/TOP OF SOIL
PEDESTAL PAVER TYPE 1
PEDESTAL PAVER TYPE 2
NATURAL RESILIENT SURFACE
RAISED METAL PLANTER
GRAVEL
RECLAIMED BOULDERS
RECLAIMED TIMBER
BUILT-IN WOOD BENCH
BUILT-IN TABLE
PICNIC TABLE SET
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - LEVEL 2 - BUILDING C 2023-11-28 2023-06-26 L113
LAUNDRY
COMMON ROOM
UNIT UNIT
UNIT
UNIT
UNIT
UNIT
UNIT
UNIT UNIT UNIT UNIT
UNIT
UNIT
ELEVATOR
PLAY
AREA
1/16” = 1’
0’ 8’ 16’ 32’
59TH STREET BELOW
MATERIAL LEGEND
PLANTING LEGEND
SMALL TREE
24” BOX
SHRUB
15 GALLON
ACCENT SHRUB
5 GALLON
+0.00
FF 0.00
+TW 0.00
+TW 1.50
+TW 1.50
+TW 1.50
+TW 1.50
+TW 3.50
+TW 1.50
GRADING LEGEND
FINISHED FLOOR
ELEVATION BY ARCHITECT
TOP OF WALL
EXTERIOR FINISHED FLOOR
ELEVATION/TOP OF SOIL
FF 0.00
+0.00
+0.00
+0.00
+0.00
+0.00
+1.50
+1.50
+1.50
+1.50
+1.50
FF 0.00
FF 0.00
PEDESTAL PAVER TYPE 1
PEDESTAL PAVER TYPE 2
NATURAL RESILIENT SURFACE
RAISED METAL PLANTER
GRAVEL
RECLAIMED BOULDERS
RECLAIMED TIMBER
BUILT-IN WOOD BENCH
BUILT-IN TABLE
PICNIC TABLE SET
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
ENLARGED PLAN - LEVEL 8 2023-11-28 2023-06-26 L121
COMMON
ROOM
UNIT
UNIT
1/16” = 1’
0’ 8’ 16’ 32’
COMMON
ROOM
ELEVATOR ELEVATOR
ELEVATOR
59TH STREET
CHRISTIE AVENUE CHRISTIE AVENUE CHRISTIE AVENUE
LEVEL 2 LANDSCAPE
BELOW
CHRISTIE PARK BELOW
COMMON
ROOM
59TH STREET
MATERIAL LEGEND
LEVEL 8 LANDSCAPE PLAN - BUILDING A LEVEL 8 LANDSCAPE PLAN - BUILDING B LEVEL 8 LANDSCAPE PLAN - BUILDING C SCALE: 1/16” = 1’ SCALE: 1/16” = 1’ SCALE: 1/16” = 1’
PLANTER POT
PEDESTAL PAVER F.F.E. (FOR REFERENCE)
3 2 1
FF 0.00
FF 0.00 FF 0.00
+0.00
+0.00
+0.00
+0.00
FF 0.00
GRADING LEGEND
FINISHED FLOOR
ELEVATION BY ARCHITECT
EXTERIOR FINISHED FLOOR
ELEVATION
WINDSCREEN
BY ARCHITECT
WINDSCREEN
BY ARCHITECT
WINDSCREEN
BY ARCHITECT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
MULTI-USED COURT WITH HALF BASKETBALL COURT SCULPTURAL TERRACE SEATING KIDS FITNESS MARKING PICKLEBALL COURT
SHELTERED COURTYARD SEATING
PICNIC AREA
ROOF DECK
NATIVE GARDEN SEATING AREA TREE LINE STREET GREENWAY
PROGRAM PRECEDENTS L401
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
LOPHOSTEMON CONFERTUS (BRISBANE BOX) * LEPTOSPERMUM LAEVIGATUM (AUSTRALIAN TEA TREE)
GREVILLEA ROBUSTA (SILK OAK)
ACER MACROPHYLLUM (BIG LEAF MAPLE)* # GINKGO BILOBA ‘AUTUMN GOLD’ * (AUTUMN GOLD MAIDENHAIR TREE)
CEANOTHUS ‘RAY HARTMAN’ #
(RAY HARTMAN WILD LILAC)
DODONAEA VISCOSA PURPUREA
(PURPLE HOPSEED BUSH)
LOMANDRA LONGIFOLIA ‘BREEZE’
(LOMANDRA)
STREET TREES
DECIDUOUS TREES
VINES
EVERGREEN TREES
SHRUBS/SCREENING
GRASSES & GROUNDCOVERS
SALVIA BEE’S BLISS #
(BEE’S BLISS SAGE)
SATUREJA DOUGLASII #
(YERBA BUENA)
TRACHELOSPERMUM JASMINOIDES *
(STAR JASMINE)
PLANTING PALETTE L501
* MODERATE WATER USE, OTHERWISE LOW WATER USE PER WUCOLS IV #
CALIFORNIA NATIVE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 David Baker Architects scale:
Christie Ave date: EAH Housing
22230
2023-11-28 2023-06-26
IRIS DOUGLASIANA #
(DOUGLAS IRIS)
BIORETENTION TREES
TRISTANIA LAURINA ‘ELEGANT’ *
(ELEGANT WATER GUM)
PRUNUS ILICIFOLIA #
(HOLLYLEAF CHERRY)
ACER CIRCINATUM * #
(VINE MAPLE)
GINKGO BILOBA ‘AUTUMN GOLD’ *
(AUTUMN GOLD MAIDENHAIR TREE)
BIORETENTION SHRUBS
BIORETENTION GRASSES & GROUNDCOVERS
HETEROMELES ARBUTIFOLIA #
(TOYON)
RIBES SANGUINEUM VAR. GLUTINOSUM #
(PINK FLOWERING CURRANT)
RHAMNUS CALIFORNICA #
(COFFEEBERRY)
GARRYA ELLIPTICA ‘JAMES ROOF’ #
(JAMES ROOF SILK TASSEL)
FRAGARIA CHILOENSIS * #
(BEACH STRAWBERRY)
MUHLENBERGIA RIGENS #
(DEER GRASS)
CHONDROPETALUM ELEPHANTINUM
(LARGE CAPE GRASS)
PLANTING PALETTE L502
* MODERATE WATER USE, OTHERWISE LOW WATER USE PER WUCOLS IV #
CALIFORNIA NATIVE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R101
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R102
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R103
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R104
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R105
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 BLDG A
BLDG B BLDG C
N
scale:
date: David Baker Architects
1" = 200'-0"
EAH Housing CHRISTIE AVE RENDERING R106
22230
2023-11-28
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 scale: date: David Baker Architects Christie Ave EAH Housing 22230 EXISTING CONDITIONS PLAN 2023-11-28 C-0 1"=50' 0' 1 INCH = 50 FT 10' 25' 50' 100' DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 CHRISTIE AVE. 59TH ST. BLDG A BLDG B BLDG C scale: date: David Baker Architects Christie Ave EAH Housing 22230 SITE PLAN 2023-11-28 C-1 1"=50' 0' 1 INCH = 50 FT 10' 25' 50' 100' DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 CHRISTIE AVE. 59TH ST. BLDG A BLDG B BLDG C scale: date: David Baker Architects Christie Ave EAH Housing 22230 2023-11-28 0' 1 INCH = 50 FT 10' 25' 50' 100' PRELIMINARY GRADING AND DRAINAGE PLAN C-2 1"=50' LEGEND DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 CHRISTIE AVE. 59TH ST. BLDG A BLDG B BLDG C scale: date: David Baker Architects Christie Ave EAH Housing 22230 2023-11-28 0' 1 INCH = 50 FT 10' 25' 50' 100' PRELIMINARY UTILITY PLAN C-3 1"=50' DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 BLDG A BLDG B BLDG C scale: date: David Baker Architects Christie Ave EAH Housing 22230 2023-11-28 CONCEPTUAL STORMWATER MANAGEMENT PLAN 0' 1 INCH = 50 FT 10' 25' 50' 100' C-4A 1"=50' DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 D-1
1828\01\3631005.5
EXHIBIT D
SITE MAP
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE AVENUE
59TH STREETTRACT ONE PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-005 TRACT TWO PARCEL 1 PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-004 TRACT TWO PARCEL 2 PER TITLE REPORT TRACT THREE PER TITLE REPORT LANDS OF CITY OF EMERYVILLE APN: 49-1493-003 CHRISTIE AVE. 59TH ST. BLDG A BLDG B BLDG C scale: date: David Baker Architects Christie Ave EAH Housing 22230 SITE PLAN 2023-11-28 C-1 1"=50' 0' 1 INCH = 50 FT 10' 25' 50' 100' DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 E-1
1828\01\3631005.5
EXHIBIT E
FINANCING PROPOSAL
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
DEVELOPMENT PROGRAM- BUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Development Program
Affordable Market Rate Total Est. Ave.
Type Units Units Hsg. Units % Units Sq. Ft/Unit Total SF
RENTAL HOUSING UNITS
Studio 13 0 13 10% 360 4,680
1 Bedroom 29 0 29 23% 536 15,544
2 Bedroom 51 0 51 40% 744 37,944
3 Bedroom 35 0 35 27% 1,018 35,630
4 Bedroom 0 0 0 0% 0
____ ____ ____ ____ ________
Total Rental Units 128 0 128 100% 93,798
No. of Manager's Units 1 0 1 743 743
Total Rental Units Includ. Mgr 129 0 129 94,541
OWNER HOUSING UNITS
Studio 0 0 0 0% 0 0
1 Bedroom 0 0 0 0% 0 0
2 Bedroom 0 0 0 0% 0 0
3 Bedroom 0 0 0 0% 0 0
4 Bedroom 0 0 0 0% 0 0
____ ____ ____ ____ ________
Total Owner Units 0 0 0 0% 0
Total Residential 129 94,541
Community Room/Leasing Office/Non-Rentable Residential 27,293 Total Residential Space, Owner Housing 121,834
NON-RESIDENTIAL USES
Commercial Space for Bike Rescue 1,508
Parking 12,153
Service 2,184
(Specify) (1)
Total Net SF Non-Residential Uses 15,845
Total Building Square Feet 137,679
(1) For example retail, commercial, other non-residential space.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
SOURCES AND USES- BUILDING A
PLEASE FILL IN ALL BOXES; PUT "0" IF NOT APPLICABLE
Number of Units 129
SOURCES OF FUNDS
CONSTRUCTION
Tax Credit Equity (1) - 4% $7,856,452
Construction Loan/Bond $52,987,523
Mezzanine Debt $0
AHP $0
Energy Efficiency Subsidies/Grants $0
City of Emeryville $11,830,000
Gap Sources $25,585,842
Equitable Community Revitalization Grants (ECRG) $1,000,000 Other (Specify) $0
Deferred Developer Fee $0
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $99,259,817
PERMANENT
Tax Credit Equity (1) - 4% $52,376,344
Permanent Loan/Bond $10,880,866
AHP $1,290,000
Energy Efficiency Subsidies/Grants $0
City of Emeryville $11,830,000
Gap Sources $25,585,842
Equitable Community Revitalization Grants (ECRG) $1,000,000 GP Equity $10,207,821
Deferred Developer Fee $1,012,482
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $114,183,355
USES OF FUNDS $114,183,355
TOTAL COST/UNIT $885,142
(1) Specify 9%, 4% and/or State credits, as appropriate DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
DEVELOPMENT COSTS- BUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE No. of Units 129
Total Residential Net SF 121,834
Non-Residential Net SF 15,845
Total Net Square Feet (SF) 137,679 (Rental Hsg. Only)
% Residential Basis Eligible 88.49% Tax Credit Basis
Total (88% Resid.)
BUILDING ACQUISITION
OFF-SITE IMPROVEMENTS $50,000 $49,618
DEMOLITION AND SITE WORK Per SF Site $2,550,000 $2,530,522 RESIDENTIAL CONSTRUCTION Per NSF $70,525,939 $70,525,939 OTHER HARD COST - Photovoltaic & Commercial Shell $1,770,183 $1,217,940 GENERAL CONDITIONS Per Month $2,246,884 $2,229,721
CONTRACTOR FEE 3% % of Contract $2,382,674 $2,365,511
SUBTOTAL CONSTRUCTION CONTRACT $79,525,680 $78,919,251
CONTRACTOR'S LIABILITY INSURANCE $794,225 $788,504
CONTRACTOR'S PERFORMANCE BOND $0 $0
CONSTRUCTION CONTINGENCY $3.00 % of Hard Costs $6,445,459 $6,396,830 ARCH./ENG./CONSTR. SUPERVISION $2,805,000 $2,783,574
LOCAL PROCESSING FEES $3,065,577 $3,042,160
LOCAL DEVELOPMENT IMPACT FEES $1,419,000 $1,408,161
ALTA SURVEY incl
ENVIRONMENTAL PHASE I/II incl
SOILS TESTING incl
SECURITY DURING CONSTRUCTION incl
BOND ISSUANCE COSTS $170,885 $170,885
CONSTRUCTION LOAN FEES $407,406 $404,294
CONSTRUCTION LOAN RATE LOCK FEE incl incl
CONSTRUCTION/LEASE-UP INTEREST $2,858,677 $2,836,841
REAL ESTATE TAXES DURING CONSTRUCTION $0 $0
CONSTRUCTION PERIOD INSURANCE (builders risk) $852,654 $846,141 TITLE AND CLOSING $15,000 $14,885
APPRAISAL FEES
LENDER LEGAL/INSPECTION FEES $10,000 $9,924
REAL ESTATE LEGAL $15,000 $14,943
ORGANIZATIONAL LEGAL $10,000 $9,924
MARKET STUDY
FINANCIAL ADVISORY SERVICES
POST-CONSTRUCTION AUDIT
MARKETING/LEASE-UP/START-UP
FURNITURE/EQUIPMENT
PERMANENT LOAN FEES $136,308 $136,100
CAPITALIZED OPERATING RESERVE $899,426 $899,426
CAPITALIZED REPLACEMENT RESERVE
SOFT COST CONTINGENCY $350,934 $349,907
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
TOTAL DEVELOPMENT COST $99,781,231 $99,031,750
DEVELOPER FEE $14,280,303 $14,280,303
DEVELOPMENT CONSULTANT
TAX CREDIT APPLICATION FEE $111,821 $111,821
TCAC ALLOCATION/RESERVATION FEE
CDLAC FEES (If Appropriate)
SYNDICATION LEGAL $10,000 $10,000
TAX CREDIT CONSULTANT
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
TOTAL USES $114,183,355 $113,433,874
PER UNIT $885,142 $879,332
PER NET SF $829.34
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING
PLAN TEMPLATE FINANCING ASSUMPTIONSBUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
TAX CREDIT EQUITY (LIHTC RENTAL ONLY)
Requested Adjusted Eligible Basis (From Threshold Basis Calculation) $109,482,324 Less: Non-Qualified Non-Recourse Financing $0
Less: Eligible Amount Voluntarily Excluded $0
Unadjusted Eligible Basis $109,482,324
High Cost Area Adjustment? Enter Yes or No Yes
Adjusted Eligible Basis (High Cost Area Adjust) $142,327,021 Qualified Basis Percentage (% Low Income Units) 88%
Qualified Basis $142,327,021
Tax Credit Rate 4.00%
Annual Allow. Federal Credits $5,693,081
Annual Allow. State Credits $0
Tax Credit Pricing (Equity Raised Per Tax Credit Dollar) Federal $0.920
State
Federal Tax Credit Equity $52,376,345
State Tax Credit Equity $0
Total Tax Credit Equity $52,376,345
CONSTRUCTION LOAN/BOND (RENTAL AND OWNER)
Construction Loan Amount $52,987,523
Interest Rate 4.15%
Loan Points (%) 0.75%
Average Loan Balance--Construction 40.00%
Average Loan Balance--Lease Up 100.00%
Average Loan Balance--Total 52.00%
Construction Loan Term 24 Months
Lease-Up Period 3 Months
Total Construction Loan Period 30 Months
Construction Loan Interest--Construction $1,759,186
Construction Loan Interest--Lease-Up $1,099,491
Total Construction Loan Interest $2,858,677
Construction Loan Points ($) $397,406
PERMANENT MORTGAGE/BOND (RENTAL ONLY)
Annual Net Operating Income $801,449
Debt Coverage Ratio 1.15
Annual Debt Service $696,912
Mortgage Term 35 years
Interest Rate 5.45%
Loan Fees (%) 1%
Loan Fees ($) $108,809
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING PLAN TEMPLATE
RENTAL INCOME AND OPERATING COSTS- BUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
ASSUMPTIONS
Median Household Income, Family of Four $142,800
Year of Median Income 2022
Affordable Housing Cost As a % of Income 30%
No. of Bedrooms Totals Studio 1 Bedroom 2 Bedroom 3 Bedroom 4 Bedroom Household Size 1.00 1.5 Persons 3.0 Persons 4.5 Persons 6.0 Persons Household Size Income Adjust. Factor $99,950 $107,100 $128,500 $148,500 $165,650 Utility Allowance $87.00 $93 $115 $138 $162
No. of Affordable Units (Exclud. Mgr.) 128 13 29 51 35 0 Net Sq. Ft. of Leaseable Commercial Spac 1,500
AFFORDABLE RENTS BY INCOME LEVEL
30% of Median % of AMI
Annual Gross Income $29,985 $32,130 $38,550 $44,550
Affordable Monthly Housing Cost $750 $803 $964 $1,113
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $663 $710 $849 $975
40% of Median % of AMI
Annual Gross Income $39,980 $42,840 $51,400 $59,400
Affordable Monthly Housing Cost $1,000 $1,071 $1,285 $1,484 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $913 $978 $1,170 $1,346
50% of Median % of AMI
Annual Gross Income $49,975 $53,550 $64,250 $74,250
Affordable Monthly Housing Cost $1,250 $1,339 $1,607 $1,856 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,163 $1,246 $1,492 $1,718
60% of Median % of AMI
Annual Gross Income $59,970 $64,260 $77,100 $89,100
Affordable Monthly Housing Cost $1,500 $1,606 $1,928 $2,227 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,413 $1,513 $1,813 $2,089
% of AMI
Annual Gross Income
Affordable Monthly Housing Cost
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent
NET OPERATING INCOME
Max. Net Subsidy Monthly
Affordability Level/No. of Bedrooms Units Monthly Rent Contract Rent Gross Income 30% of Median Studio 6 $663 $3,976
1 Bedroom 10 $710 $7,103
2 Bedroom 15 $849 $12,731
3 Bedroom 7 $975 $6,825
4 Bedroom 38 0 $0 $0
40% of Median Studio 2 $913 $1,826
1 Bedroom 6 $978 $5,868
2 Bedroom 10 $1,170 $11,700
3 Bedroom 9 $1,346 $12,114
4 Bedroom 27 0 $0 $0
50% of Median Studio 2 $1,163 $2,326
1 Bedroom 6 $1,246 $7,476
2 Bedroom 12 $1,492 $17,904
3 Bedroom 11 $1,718 $18,898
4 Bedroom 31 0 $0 $0
60% of Median Studio 3 $1,413 $4,239
1 Bedroom 7 $1,513 $10,591
2 Bedroom 14 $1,813 $25,382
3 Bedroom 8 $2,089 $16,712
4 Bedroom 32 0 $0 $0
0% of Median Studio $0 $0
1 Bedroom $0 $0
2 Bedroom $0 $0
3 Bedroom $0 $0
4 Bedroom $0 $0
Average Monthly Market Rents Studio $0
1 Bedroom $0
2 Bedroom $0
3 Bedroom $0
4 Bedroom $0
Totals 128 $165,671
Manager's Unit(s) 1
GROSS RESIDENTIAL RENTAL INCOME Assumption $1,988,046
Less: Residential Vacancy 5.0% Percent of Gross Residential Rental Income ($99,402) Laundry/Miscel. Income $120 Per Unit Annual Income Per Non-Manager's Unit $15,480 Commercial Income $0.00 Per NSF Ann. Rent Per Net SF of Com Space (Cell B19) $0 Less: Commercial Vacancy 5.0% Percent of Gross Commercial Income $0 _________
GROSS ANNUAL INCOME $1,904,124
LESS: RESIDENTIAL OPERATING EXPENSES $8,292 Per Unit/Year ($1,069,690) Less: Commercial Operating Expenses Total Expenses/Year $0 Less: Operating Reserves % of Oper. Budget $0
Less: Replacement Reserves $250 Per Unit/Year ($32,250) _________
NET OPERATING INCOME $802,183
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET - BUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 129
Annual Annual
Per Unit Total
General Administrative
Advertising $12,000
Legal $15,000
Accounting/Audit, Compliance $30,000
Security/Alarm Service $15,000
Office Supplies, Computers, Equip $25,000
Bad Debt, Licenses, misc. $25,000 _____ ________
Total General Administrative $946 $122,000
Management Fee $66,644
Utilities
Electricity $35,000
Gas $20,000
Cable, Phone Internet $15,000
Water & Sewer $80,000
Other (Specify)
Total Utilities $271 $35,000
Total Water/Sewer $80,000
Payroll/Payroll Taxes
On-Site Manager $125,000
Maintenance Personnel $80,000
Payroll Taxes $53,300
Social Services $127,639
Health Insurance & Benefits $65,000
Workers Comp Ins $32,250
Total Payroll/Payroll Taxes $3,746 $483,189
Total Insurance $85,000
Maintenance
Painting $25,000
Repairs $35,000
Trash Removal $30,000
Exterminating $10,000
Grounds $25,000
Elevator Maintenance $20,000
HVAC Maintenance $15,000
Misc $37,857
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET - BUILDING A
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 129
Annual Annual
Total Maintenance $1,534 $197,857
Other
Real Estate Taxes
Other (Specify)
Other (Specify)
Other (Specify)
Total Other $0
Total Operating Budget (w/o replacem $8,292 $1,069,690
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE LIHTC
THRESHOLD BASIS LIMITS- BUILDING A
(For LIHTC Projects Only)
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Specify Elevator/Non-Elevator: Elevator
TCAC Basis Total
Unit Size # of Units Limit Per Unit Basis
Threshold Basis Calculation
Studio 13 $365,252 $4,748,276
1 Bedroom 29 $421,132 $12,212,828
2 Bedroom 51 $508,000 $25,908,000
3 Bedroom 35 $650,240 $22,758,400
4 Bedroom 0 $0
Manager's Unit(s) 1 $508,000 $508,000 ___________
Total Threshold Basis 129 $66,135,504
Plus: Affordability Boost (4% only) 105% $69,235,606
Plus: Prevailing Wage Boost 20% $13,227,101
Plus: Project Labor Agreement 5% $3,306,775
Plus: 95% of units elevator served 10% $6,613,550
Plus: Energy Efficiency Basis Boost 10% $6,613,550
Plus: Building Type (Type 1) 15% $9,920,326
Plus: Distributive Energy Technologies $0
Plus: Total Development Impact Fees $1,408,161
___________
Total Adjusted Threshold Basis $176,460,573
Requested Eligible Basis Calculation
Total Eligible Basis $109,482,324
Less: BMIR Federal Financing
Less: Eligible Basis Amount Voluntarily Excluded
Total Requested Unadjusted Eligible Basis $109,482,324
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW - BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues Gross Potential Rent $1,988,046 $2,037,747 $2,088,691 $2,140,908 $2,194,431 $2,249,292 $2,305,524 $2,363,162 Laundry/Misc. $15,480 $15,867 $16,264 $16,670 $17,087 $17,514 $17,952 $18,401 Residential Vacancy Allowance 5.00% ($99,402) ($101,887) ($104,435) ($107,045) ($109,722) ($112,465) ($115,276) ($118,158) Commercial Income $0 $0 $0 $0 $0 $0 $0 $0 Commercial Vacancy Allowance 5.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify) _________ _________ _________ _________ _________ _________ _________ _________ Net Rental Income $1,904,124 $1,951,727 $2,000,520 $2,050,533 $2,101,796 $2,154,341 $2,208,200 $2,263,405Operating Costs $8,292 /Unit/Yr ($1,069,690) ($1,107,129) ($1,145,879) ($1,185,985) ($1,227,494) ($1,270,457) ($1,314,923) ($1,360,945) Net Operating Income $834,433 $844,597 $854,641 $864,548 $874,302 $883,885 $893,277 $902,460 Replacement Reserve $250 /Unit/Yr ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) Operating Reserve 0.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. $802,183 $812,347 $822,391 $832,298 $842,052 $851,635 $861,027 $870,210 Debt Service--First Trust Deed ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) Debt Coverage Ratio 1.15 1.17 1.18 1.19 1.21 1.22 1.24 1.25NET CASH FLOW AFTER DEBT SERVICE $105,271 $115,435 $125,479 $135,386 $145,140 $154,723 $164,115 $173,298 Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: $105,271 $115,435 $125,479 $135,386 $145,140 $154,723 $164,115 $173,298 Investor Asset Mgt. Fee $7,500 ($7,500) ($7,688) ($7,880) ($8,077) ($8,279) ($8,486) ($8,698) ($8,915) Developer Asset Mgt. Fee $15,000 ($15,000) ($15,375) ($15,759) ($16,153) ($16,557) ($16,971) ($17,395) ($17,830) Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total: $82,771 $92,373 $101,840 $111,156 $120,304 $129,266 $138,022 $146,552 Residual Receipts: Developer 50% $41,386 $46,186 $50,920 $55,578 $60,152 $64,633 $69,011 $73,276 Residual Receipts: City of Emeryvil 50% $41,386 $46,186 $50,920 $55,578 $60,152 $64,633 $69,011 $73,276 Residual Receipts: Other Pub. Ag. $0 $0 $0 $0 $0 $0 $0 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 years Beginning Balance $1,012,482 $1,012,482 $971,096 $924,910 $873,990 $818,412 $758,260 $693,627 $624,616 Interest Payments $41,386 $46,186 $50,920 $55,578 $60,152 $64,633 $69,011 $73,276 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 5.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
9 10111213141516
$2,422,241 $2,482,797 $2,544,867 $2,608,489 $2,673,701 $2,740,543 $2,809,057 $2,879,283 $18,861 $19,332 $19,816 $20,311 $20,819 $21,339 $21,873 $22,420 ($121,112) ($124,140) ($127,243) ($130,424) ($133,685) ($137,027) ($140,453) ($143,964) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $2,319,990 $2,377,990 $2,437,439 $2,498,375 $2,560,835 $2,624,856 $2,690,477 $2,757,739 ($1,408,578) ($1,457,878) ($1,508,904) ($1,561,715) ($1,616,376) ($1,672,949) ($1,731,502) ($1,792,104) $911,412 $920,111 $928,535 $936,660 $944,459 $951,907 $958,975 $965,634 ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) $0 $0 $0 $0 $0 $0 $0 $0
$879,162 $887,861 $896,285 $904,410 $912,209 $919,657 $926,725 $933,384 ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912)
1.26 1.27 1.29 1.30 1.31 1.32 1.33 1.34
$182,250 $190,949 $199,373 $207,498 $215,297 $222,745 $229,813 $236,472$182,250 $190,949 $199,373 $207,498 $215,297 $222,745 $229,813 $236,472 ($9,138) ($9,366) ($9,601) ($9,841) ($10,087) ($10,339) ($10,597) ($10,862) ($18,276) ($18,733) ($19,201) ($19,681) ($20,173) ($20,678) ($21,195) ($21,724) $154,836 $162,850 $170,572 $177,976 $185,037 $191,728 $198,021 $203,886 $77,418 $81,425 $85,286 $88,988 $92,519 $95,864 $99,011 $101,943$77,418 $81,425 $85,286 $88,988 $92,519 $95,864 $99,011 $101,943 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW - BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance $1,012,482 Interest Payments 9 10111213141516
$551,340 $473,922 $392,497 $307,211 $218,223 $125,704 $29,840 $0 $77,418 $81,425 $85,286 $88,988 $92,519 $95,864 $29,558 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW - BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 5.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
17 18 19 20 21 22 23 24
$2,951,265 $3,025,047 $3,100,673 $3,178,190 $3,257,645 $3,339,086 $3,422,563 $3,508,127 $22,980 $23,555 $24,144 $24,747 $25,366 $26,000 $26,650 $27,316 ($147,563) ($151,252) ($155,034) ($158,910) ($162,882) ($166,954) ($171,128) ($175,406) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $2,826,682 $2,897,349 $2,969,783 $3,044,028 $3,120,128 $3,198,132 $3,278,085 $3,360,037 ($1,854,828) ($1,919,747) ($1,986,938) ($2,056,481) ($2,128,458) ($2,202,954) ($2,280,057) ($2,359,859) $971,854 $977,602 $982,845 $987,547 $991,670 $995,178 $998,028 $1,000,178 ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) $0 $0 $0 $0 $0 $0 $0 $0
$939,604 $945,352 $950,595 $955,297 $959,420 $962,928 $965,778 $967,928 ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912)
1.35 1.36 1.36 1.37 1.38 1.38 1.39 1.39
$242,692 $248,440 $253,683 $258,385 $262,508 $266,016 $268,866 $271,016$242,692 $248,440 $253,683 $258,385 $262,508 $266,016 $268,866 $271,016 ($11,134) ($11,412) ($11,697) ($11,990) ($12,290) ($12,597) ($12,912) ($13,235)($22,268) ($22,824) ($23,395) ($23,980) ($24,579) ($25,194) ($25,824) ($26,469) $209,291 $214,204 $218,591 $222,415 $225,640 $228,225 $230,130 $231,312$104,645 $107,102 $109,295 $111,208 $112,820 $114,113 $115,065 $115,656$104,645 $107,102 $109,295 $111,208 $112,820 $114,113 $115,065 $115,656 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOWPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance $1,012,482 Interest Payments 17 18 19 20 21 22 23 24
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING APLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 5.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
25 26 27 28 29 30
$3,595,830 $3,685,726 $3,777,869 $3,872,316 $3,969,124 $4,068,352 $27,999 $28,699 $29,417 $30,152 $30,906 $31,678
($179,792) ($184,286) ($188,893) ($193,616) ($198,456) ($203,418) $0 $0 $0 $0 $0 $0$0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ $3,444,038 $3,530,139 $3,618,392 $3,708,852 $3,801,573 $3,896,613 ($2,442,454) ($2,527,940) ($2,616,418) ($2,707,993) ($2,802,773) ($2,900,870) $1,001,584 $1,002,199 $1,001,974 $1,000,859 $998,801 $995,743 ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) ($32,250) $0 $0 $0 $0 $0 $0
$969,334 $969,949 $969,724 $968,609 $966,551 $963,493
($696,912) ($696,912) ($696,912) ($696,912) ($696,912) ($696,912)
1.39 1.39 1.39 1.39 1.39 1.38
$272,422 $273,037 $272,812 $271,697 $269,639 $266,581$272,422 $273,037 $272,812 $271,697 $269,639 $266,581 ($13,565) ($13,905) ($14,252) ($14,609) ($14,974) ($15,348)($27,131) ($27,809) ($28,504) ($29,217) ($29,947) ($30,696) $231,725 $231,323 $230,056 $227,872 $224,718 $220,537$115,863 $115,661 $115,028 $113,936 $112,359 $110,269$115,863 $115,661 $115,028 $113,936 $112,359 $110,269 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOWPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 129No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance $1,012,482 Interest Payments 25 26 27 28 29 30
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING
PLAN TEMPLATE DEVELOPMENT PROGRAMBUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Development Program
Affordable Market Rate Total Est. Ave.
Type Units Units Hsg. Units % Units Sq. Ft/Unit Total SF
RENTAL HOUSING UNITS
Studio 28 0 28 21% 360 10,080
1 Bedroom 19 0 19 14% 534 10,146
2 Bedroom 44 0 44 33% 742 32,648
3 Bedroom 41 0 41 31% 1,003 41,111
4 Bedroom 0 0 0 0% 0
____ ____ ____ ____ ________
Total Rental Units 132 0 132 100% 93,985
No. of Manager's Units 1 0 1 743 743
Total Rental Units Includ. Mgr 133 0 133 94,728
OWNER HOUSING UNITS
Studio 0 0 0 0% 0 0
1 Bedroom 0 0 0 0% 0 0
2 Bedroom 0 0 0 0% 0 0
3 Bedroom 0 0 0 0% 0 0
4 Bedroom 0 0 0 0% 0 0
____ ____ ____ ____ ________
Total Owner Units 0 0 0 0% 0
Total Residential 133 94,728
Community Room/Leasing Office/Non-Rentable Residential 28,075 Total Residential Space, Owner Housing 122,803
NON-RESIDENTIAL USES
Parking 11,586
Service 2,796
(Specify) (1)
(Specify) (1)
Total Net SF Non-Residential Uses 14,382
Total Building Square Feet 137,185
(1) For example retail, commercial, other non-residential space.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING
PLAN TEMPLATE SOURCES AND USES -
BUILDING B
PLEASE FILL IN ALL BOXES; PUT "0" IF NOT APPLICABLE
Number of Units 133
SOURCES OF FUNDS
CONSTRUCTION
Tax Credit Equity (1) - 4% $8,085,683
Construction Loan/Bond $55,457,941
Mezzanine Debt $0
AHP $0
Energy Efficiency Subsidies/Grants $0
City of Emeryville $7,000,000
Gap Sources $29,290,873
Other (Specify) $0
Other (Specify) $0
Deferred Developer Fee $0
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $99,834,497
PERMANENT
Tax Credit Equity (1) - 4% $53,904,551
Permanent Loan/Bond $12,128,815
AHP $1,330,000
Energy Efficiency Subsidies/Grants $0
City of Emeryville $7,000,000
Gap Sources $29,290,874
Other (Specify) $0
Gap Sources $10,296,735
Deferred Developer Fee $1,260,230
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $115,211,205
USES OF FUNDS $115,211,205
TOTAL COST/UNIT $866,250
(1) Specify 9%, 4% and/or State credits, as appropriate DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
DEVELOPMENT COSTS- BUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE No. of Units 133
Total Residential Net SF 122,803
Non-Residential Net SF 14,382
Total Net Square Feet (SF) 137,185 (Rental Hsg. Only)
% Residential Basis Eligible 89.52% Tax Credit Basis
Total (90% Resid.)
BUILDING ACQUISITION
OFF-SITE IMPROVEMENTS
DEMOLITION AND SITE WORK Per SF Site
RESIDENTIAL CONSTRUCTION Per NSF $75,239,748 $75,239,748 OTHER HARD COST - Photovoltaic $1,241,580 $1,241,580
GENERAL CONDITIONS Per Month $2,294,440 $2,294,440
CONTRACTOR FEE 3% % of Contract $2,434,171 $2,434,171
SUBTOTAL CONSTRUCTION CONTRACT $81,209,939 $81,209,939
CONTRACTOR'S LIABILITY INSURANCE $811,390 $811,390
CONTRACTOR'S PERFORMANCE BOND $0 $0
CONSTRUCTION CONTINGENCY 8.00% % of Hard Costs $6,582,503 $6,582,503 ARCH./ENG./CONSTR. SUPERVISION $1,250,000 $1,250,000
LOCAL PROCESSING FEES $3,151,587 $3,151,587
LOCAL DEVELOPMENT IMPACT FEES $1,463,000 $1,463,000
ALTA SURVEY incl incl
ENVIRONMENTAL PHASE I/II incl incl
SOILS TESTING incl incl
SECURITY DURING CONSTRUCTION incl incl
BOND ISSUANCE COSTS $178,852 $178,852
CONSTRUCTION LOAN FEES $425,935 $425,935
CONSTRUCTION LOAN RATE LOCK FEE incl incl
CONSTRUCTION/LEASE-UP INTEREST $2,991,956 $2,991,956
REAL ESTATE TAXES DURING CONSTRUCTION $0 $0
CONSTRUCTION PERIOD INSURANCE (builders risk) $886,038 $886,038 TITLE AND CLOSING $15,000 $15,000
APPRAISAL FEES
LENDER LEGAL/INSPECTION FEES $10,000 $10,000
REAL ESTATE LEGAL $15,000 $15,000
ORGANIZATIONAL LEGAL $10,000 $10,000
MARKET STUDY
FINANCIAL ADVISORY SERVICES
POST-CONSTRUCTION AUDIT
MARKETING/LEASE-UP/START-UP
FURNITURE/EQUIPMENT
PERMANENT LOAN FEES $148,788 $148,788
CAPITALIZED OPERATING RESERVE $923,454 $923,454
CAPITALIZED REPLACEMENT RESERVE
SOFT COST CONTINGENCY $315,675 $315,675
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
TOTAL DEVELOPMENT COST $100,389,117 $100,389,117
DEVELOPER FEE $14,696,966 $14,696,966
DEVELOPMENT CONSULTANT
TAX CREDIT APPLICATION FEE $115,122 $115,122
TCAC ALLOCATION/RESERVATION FEE
CDLAC FEES (If Appropriate)
SYNDICATION LEGAL $10,000 $10,000
TAX CREDIT CONSULTANT
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
TOTAL USES $115,211,205 $115,211,205
PER UNIT $866,250 $866,250
PER NET SF $839.83
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE FINANCING
ASSUMPTIONS- BUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
TAX CREDIT EQUITY (LIHTC RENTAL ONLY)
Requested Adjusted Eligible Basis (From Threshold Basis Calculation) $112,676,736 Less: Non-Qualified Non-Recourse Financing $0
Less: Eligible Amount Voluntarily Excluded $0
Unadjusted Eligible Basis $112,676,736
High Cost Area Adjustment? Enter Yes or No Yes
Adjusted Eligible Basis (High Cost Area Adjust) $146,479,757 Qualified Basis Percentage (% Low Income Units) 90%
Qualified Basis $146,479,757
Tax Credit Rate 4.00%
Annual Allow. Federal Credits $5,859,190
Annual Allow. State Credits $0
Tax Credit Pricing (Equity Raised Per Tax Credit Dollar) Federal $0.920
State
Federal Tax Credit Equity $53,904,548
State Tax Credit Equity $0
Total Tax Credit Equity $53,904,548
CONSTRUCTION LOAN/BOND (RENTAL AND OWNER)
Construction Loan Amount $55,457,941
Interest Rate 4.15%
Loan Points (%) 0.75%
Average Loan Balance--Construction 40.00%
Average Loan Balance--Lease Up 100.00%
Average Loan Balance--Total 52.00%
Construction Loan Term 24 Months
Lease-Up Period 3 Months
Total Construction Loan Period 30 Months
Construction Loan Interest--Construction $1,841,204
Construction Loan Interest--Lease-Up $1,150,752
Total Construction Loan Interest $2,991,956
Construction Loan Points ($) $415,935
PERMANENT MORTGAGE/BOND (RENTAL ONLY)
Annual Net Operating Income $893,369
Debt Coverage Ratio 1.15
Annual Debt Service $776,843
Mortgage Term 35 years
Interest Rate 5.45%
Loan Fees (%) 1%
Loan Fees ($) $121,288
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING PLAN TEMPLATE
RENTAL INCOME AND OPERATING COSTS- BUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
ASSUMPTIONS
Median Household Income, Family of Four $142,800
Year of Median Income 2022
Affordable Housing Cost As a % of Income 30%
No. of Bedrooms Totals Studio 1 Bedroom 2 Bedroom 3 Bedroom 4 Bedroom Household Size 1.00 1.5 Persons 3.0 Persons 4.5 Persons 6.0 Persons Household Size Income Adjust. Factor $99,950 $107,100 $128,500 $148,500 $165,650 Utility Allowance $87.00 $93 $115 $138 $162
No. of Affordable Units (Exclud. Mgr.) 132 28 19 44 41 0 Net Sq. Ft. of Leaseable Commercial Spac 0
AFFORDABLE RENTS BY INCOME LEVEL
30% of Median % of AMI
Annual Gross Income $29,985 $32,130 $38,550 $44,550
Affordable Monthly Housing Cost $750 $803 $964 $1,113
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $663 $710 $849 $975
40% of Median % of AMI
Annual Gross Income $39,980 $42,840 $51,400 $59,400
Affordable Monthly Housing Cost $1,000 $1,071 $1,285 $1,484 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $913 $978 $1,170 $1,346
50% of Median % of AMI
Annual Gross Income $49,975 $53,550 $64,250 $74,250
Affordable Monthly Housing Cost $1,250 $1,339 $1,607 $1,856 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,163 $1,246 $1,492 $1,718
60% of Median % of AMI
Annual Gross Income $59,970 $64,260 $77,100 $89,100
Affordable Monthly Housing Cost $1,500 $1,606 $1,928 $2,227 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,413 $1,513 $1,813 $2,089
% of AMI
Annual Gross Income
Affordable Monthly Housing Cost
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent
NET OPERATING INCOME
Max. Net Subsidy Monthly
Affordability Level/No. of Bedrooms Units Monthly Rent Contract Rent Gross Income 30% of Median Studio 10 $663 $6,630
1 Bedroom 7 $710 $4,970
2 Bedroom 13 $849 $11,037
3 Bedroom 9 $975 $8,775
4 Bedroom 39 0 $0 $0
40% of Median Studio 6 $913 $5,478
1 Bedroom 4 $978 $3,912
2 Bedroom 9 $1,170 $10,530
3 Bedroom 9 $1,346 $12,114
4 Bedroom 28 0 $0 $0
50% of Median Studio 6 $1,163 $6,978
1 Bedroom 4 $1,246 $4,984
2 Bedroom 9 $1,492 $13,428
3 Bedroom 11 $1,718 $18,898
4 Bedroom 30 0 $0 $0
60% of Median Studio 6 $1,413 $8,478
1 Bedroom 4 $1,513 $6,052
2 Bedroom 13 $1,813 $23,569
3 Bedroom 12 $2,089 $25,068
4 Bedroom 35 0 $0 $0
0% of Median Studio $0 $0
1 Bedroom $0 $0
2 Bedroom $0 $0
3 Bedroom $0 $0
4 Bedroom $0 $0
Average Monthly Market Rents Studio $0
1 Bedroom $0
2 Bedroom $0
3 Bedroom $0
4 Bedroom $0
Totals 132 $170,901
Manager's Unit(s) 1
GROSS RESIDENTIAL RENTAL INCOME Assumption $2,050,812
Less: Residential Vacancy 5.0% Percent of Gross Residential Rental Income ($102,541) Laundry/Miscel. Income $120 Per Unit Annual Income Per Non-Manager's Unit $15,960 Commercial Income $0.00 Per NSF Ann. Rent Per Net SF of Com Space (Cell B19) $0 Less: Commercial Vacancy Percent of Gross Commercial Income $0 _________
GROSS ANNUAL INCOME $1,964,231
LESS: RESIDENTIAL OPERATING EXPENSES $8,292 Per Unit/Year ($1,036,848) Less: Commercial Operating Expenses Total Expenses/Year $0 Less: Operating Reserves % of Oper. Budget $0
Less: Replacement Reserves $250 Per Unit/Year ($33,250) _________
NET OPERATING INCOME $894,133
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET - BUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 133
Annual Annual
Per Unit Total
General Administrative
Advertising $9,250
Legal $10,000
Accounting/Audit, Compliance $30,000
Security/Alarm Service $15,000
Office Supplies, Computers, Equip $15,000
Bad Debt, Licenses, misc. $15,000 _____ ________
Total General Administrative $709 $94,250
Management Fee $68,748
Utilities
Electricity $35,000
Gas $18,000
Cable, Phone Internet $12,000
Water & Sewer $80,000
Other (Specify)
Total Utilities $263 $35,000
Total Water/Sewer $80,000
Payroll/Payroll Taxes
On-Site Manager $125,000
Maintenance Personnel $80,000
Payroll Taxes $53,300
Social Services $161,045
Health Insurance & Benefits $65,000
Workers Comp Ins $30,000
Total Payroll/Payroll Taxes $3,867 $514,345
Total Insurance $95,000
Maintenance
Painting $22,500
Repairs $35,000
Trash Removal $30,000
Exterminating $7,500
Grounds $20,000
Elevator Maintenance $20,000
HVAC Maintenance $10,000
Misc $4,505
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET - BUILDING B
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 133
Annual Annual
Total Maintenance $1,124 $149,505
Other
Real Estate Taxes
Other (Specify)
Other (Specify)
Other (Specify)
Total Other $0
Total Operating Budget (w/o replacem $7,796 $1,036,848
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE LIHTC
THRESHOLD BASIS LIMITS - BUILDING B
(For LIHTC Projects Only)
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Specify Elevator/Non-Elevator: Elevator
TCAC Basis Total
Unit Size # of Units Limit Per Unit Basis
Threshold Basis Calculation
Studio 28 $365,252 $10,227,056
1 Bedroom 19 $421,132 $8,001,508
2 Bedroom 44 $508,000 $22,352,000
3 Bedroom 41 $650,240 $26,659,840
4 Bedroom 0 $0
Manager's Unit(s) 1 $508,000 $508,000 ___________
Total Threshold Basis 133 $67,748,404
Plus: Affordability Boost (4% only) 103% $69,801,384
Plus: Prevailing Wage Boost 20% $13,549,681
Plus: Project Labor Agreement 5% $3,387,420
Plus: 95% of units elevator served 10% $6,774,840
Plus: Energy Efficiency Basis Boost 10% $6,774,840
Plus: Building Type (Type 1) 15% $10,162,261
Plus: Distributive Energy Technologies $0
Plus: Total Development Impact Fees $1,463,000
___________
Total Adjusted Threshold Basis $179,661,830
Requested Eligible Basis Calculation
Total Eligible Basis $112,676,736
Less: BMIR Federal Financing
Less: Eligible Basis Amount Voluntarily Excluded
Total Requested Unadjusted Eligible Basis $112,676,736
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues Gross Potential Rent $2,050,812 $2,102,082 $2,154,634 $2,208,500 $2,263,713 $2,320,306 $2,378,313 $2,437,771 Laundry/Misc. $15,960 $16,359 $16,768 $17,187 $17,617 $18,057 $18,509 $18,971 Residential Vacancy Allowance 5.00% ($102,541) ($105,104) ($107,732) ($110,425) ($113,186) ($116,015) ($118,916) ($121,889) Commercial Income $0 $0 $0 $0 $0 $0 $0 $0 Commercial Vacancy Allowance 0.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify) _________ _________ _________ _________ _________ _________ _________ _________ Net Rental Income $1,964,231 $2,013,337 $2,063,671 $2,115,262 $2,168,144 $2,222,348 $2,277,906 $2,334,854 Operating Costs $8,292 /Unit/Yr ($1,036,848) ($1,073,138) ($1,110,698) ($1,149,572) ($1,189,807) ($1,231,450) ($1,274,551) ($1,319,160) Net Operating Income $927,383 $940,199 $952,973 $965,690 $978,337 $990,897 $1,003,355 $1,015,694 Replacement Reserve $250 /Unit/Yr ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) Operating Reserve 0.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. $894,133 $906,949 $919,723 $932,440 $945,087 $957,647 $970,105 $982,444 Debt Service--First Trust Deed ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) Debt Coverage Ratio 1.15 1.17 1.18 1.20 1.22 1.23 1.25 1.26NET CASH FLOW AFTER DEBT SERVICE $117,290 $130,106 $142,880 $155,597 $168,244 $180,804 $193,262 $205,601 Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: $117,290 $130,106 $142,880 $155,597 $168,244 $180,804 $193,262 $205,601 Investor Asset Mgt. Fee $7,500 ($7,500) ($7,688) ($7,880) ($8,077) ($8,279) ($8,486) ($8,698) ($8,915) Developer Asset Mgt. Fee $15,000 ($15,000) ($15,375) ($15,759) ($16,153) ($16,557) ($16,971) ($17,395) ($17,830) Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total: $94,790 $107,044 $119,241 $131,367 $143,408 $155,348 $167,169 $178,855 Residual Receipts: Developer 50% $47,395 $53,522 $59,620 $65,684 $71,704 $77,674 $83,585 $89,428 Residual Receipts: City of Emeryvil 50% $47,395 $53,522 $59,620 $65,684 $71,704 $77,674 $83,585 $89,428 Residual Receipts: Other Pub. Ag. $0 $0 $0 $0 $0 $0 $0 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 years Beginning Balance 1331646 1331646 $1,284,251 $1,230,729 $1,171,108 $1,105,425 $1,033,721 $956,047 $872,462 Interest Payments $47,395 $53,522 $59,620 $65,684 $71,704 $77,674 $83,585 $89,428 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
9 10111213141516
$2,498,715 $2,561,183 $2,625,213 $2,690,843 $2,758,114 $2,827,067 $2,897,744 $2,970,187 $19,446 $19,932 $20,430 $20,941 $21,464 $22,001 $22,551 $23,115 ($124,936) ($128,059) ($131,261) ($134,542) ($137,906) ($141,353) ($144,887) ($148,509) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $2,393,225 $2,453,056 $2,514,382 $2,577,242 $2,641,673 $2,707,715 $2,775,408 $2,844,793 ($1,365,331) ($1,413,118) ($1,462,577) ($1,513,767) ($1,566,749) ($1,621,585) ($1,678,340) ($1,737,082) $1,027,894 $1,039,938 $1,051,806 $1,063,475 $1,074,924 $1,086,130 $1,097,067 $1,107,710 ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) $0 $0 $0 $0 $0 $0 $0 $0
$994,644 $1,006,688 $1,018,556 $1,030,225 $1,041,674 $1,052,880 $1,063,817 $1,074,460 ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843)
1.28 1.30 1.31 1.33 1.34 1.36 1.37 1.38
$217,801 $229,845 $241,713 $253,382 $264,831 $276,037 $286,974 $297,617$217,801 $229,845 $241,713 $253,382 $264,831 $276,037 $286,974 $297,617 ($9,138) ($9,366) ($9,601) ($9,841) ($10,087) ($10,339) ($10,597) ($10,862) ($18,276) ($18,733) ($19,201) ($19,681) ($20,173) ($20,678) ($21,195) ($21,724) $190,387 $201,746 $212,911 $223,860 $234,571 $245,020 $255,182 $265,031 $95,194 $100,873 $106,455 $111,930 $117,286 $122,510 $127,591 $132,515$95,194 $100,873 $106,455 $111,930 $117,286 $122,510 $127,591 $132,515 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 1331646 Interest Payments 9 10111213141516
$783,035 $687,841 $586,968 $480,513 $368,583 $251,297 $128,787 $1,196 $95,194 $100,873 $106,455 $111,930 $117,286 $122,510 $127,591 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
17 18 19 20 21 22 23 24
$3,044,442 $3,120,553 $3,198,567 $3,278,531 $3,360,494 $3,444,507 $3,530,619 $3,618,885 $23,693 $24,285 $24,892 $25,514 $26,152 $26,806 $27,476 $28,163 ($152,222) ($156,028) ($159,928) ($163,927) ($168,025) ($172,225) ($176,531) ($180,944) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $2,915,913 $2,988,810 $3,063,531 $3,140,119 $3,218,622 $3,299,087 $3,381,565 $3,466,104 ($1,797,880) ($1,860,806) ($1,925,934) ($1,993,342) ($2,063,109) ($2,135,318) ($2,210,054) ($2,287,406) $1,118,032 $1,128,004 $1,137,596 $1,146,777 $1,155,513 $1,163,770 $1,171,511 $1,178,698 ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) $0 $0 $0 $0 $0 $0 $0 $0
$1,084,782 $1,094,754 $1,104,346 $1,113,527 $1,122,263 $1,130,520 $1,138,261 $1,145,448 ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843)
1.40 1.41 1.42 1.43 1.44 1.46 1.47 1.47
$307,939 $317,911 $327,503 $336,684 $345,420 $353,677 $361,418 $368,605$307,939 $317,911 $327,503 $336,684 $345,420 $353,677 $361,418 $368,605 ($11,134) ($11,412) ($11,697) ($11,990) ($12,290) ($12,597) ($12,912) ($13,235)($22,268) ($22,824) ($23,395) ($23,980) ($24,579) ($25,194) ($25,824) ($26,469) $274,538 $283,675 $292,411 $300,714 $308,551 $315,886 $322,683 $328,901$137,269 $141,838 $146,206 $150,357 $154,276 $157,943 $161,341 $164,451$137,269 $141,838 $146,206 $150,357 $154,276 $157,943 $161,341 $164,451 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 1331646 Interest Payments 17 18 19 20 21 22 23 24
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $8,292 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
25 26 27 28 29 30
$3,709,357 $3,802,091 $3,897,143 $3,994,572 $4,094,436 $4,196,797 $28,867 $29,589 $30,329 $31,087 $31,864 $32,661
($185,468) ($190,105) ($194,857) ($199,729) ($204,722) ($209,840) $0 $0 $0 $0 $0 $0$0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ $3,552,756 $3,641,575 $3,732,615 $3,825,930 $3,921,578 $4,019,618 ($2,367,465) ($2,450,326) ($2,536,087) ($2,624,851) ($2,716,720) ($2,811,806) $1,185,292 $1,191,249 $1,196,527 $1,201,079 $1,204,858 $1,207,812 ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) ($33,250) $0 $0 $0 $0 $0 $0
$1,152,042 $1,157,999 $1,163,277 $1,167,829 $1,171,608 $1,174,562 ($776,843) ($776,843) ($776,843) ($776,843) ($776,843) ($776,843)
1.48 1.49 1.50 1.50 1.51 1.51
$375,199 $381,156 $386,434 $390,986 $394,765 $397,719$375,199 $381,156 $386,434 $390,986 $394,765 $397,719 ($13,565) ($13,905) ($14,252) ($14,609) ($14,974) ($15,348)($27,131) ($27,809) ($28,504) ($29,217) ($29,947) ($30,696) $334,502 $339,442 $343,678 $347,161 $349,844 $351,675$167,251 $169,721 $171,839 $173,580 $174,922 $175,837$167,251 $169,721 $171,839 $173,580 $174,922 $175,837 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING BPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 133No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 1331646 Interest Payments 25 26 27 28 29 30
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING PLAN
TEMPLATE DEVELOPMENT PROGRAM- BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Development Program
Affordable Market Rate Total Est. Ave.
Type Units Units Hsg. Units % Units Sq. Ft/Unit Total SF
RENTAL HOUSING UNITS
Studio 5 0 5 5% 360 1,800
1 Bedroom 41 0 41 39% 518 21,238
2 Bedroom 30 0 30 29% 731 21,930
3 Bedroom 28 0 28 27% 1,001 28,014
4 Bedroom 0 0 0 0% 0
____ ____ ____ ____ ________
Total Rental Units 104 0 104 100% 72,982
No. of Manager's Units 1 0 1 730 730
Total Rental Units Includ. Mgr 105 0 105 73,712
OWNER HOUSING UNITS
Studio 0 0 0 0% 0 0
1 Bedroom 0 0 0 0% 0 0
2 Bedroom 0 0 0 0% 0 0
3 Bedroom 0 0 0 0% 0 0
4 Bedroom 0 0 0 0% 0 0
____ ____ ____ ____ ________
Total Owner Units 0 0 0 0% 0
Total Residential 105 73,712
Community Room/Leasing Office/Non-Rentable Residential 24,675 Total Residential Space, Owner Housing 98,387
NON-RESIDENTIAL USES
Parking 9,936
Service 1,908
(Specify) (1)
(Specify) (1)
Total Net SF Non-Residential Uses 11,844
Total Building Square Feet 110,231
(1) For example retail, commercial, other non-residential space.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
SOURCES AND USES
BUILDING C
PLEASE FILL IN ALL BOXES; PUT "0" IF NOT APPLICABLE
Number of Units 105
SOURCES OF FUNDS
CONSTRUCTION
Tax Credit Equity (1) - 4% $6,673,352
Construction Loan/Bond $45,437,695
Mezzanine Debt $0
AHP $0
Energy Efficiency Subsidies/Grants $0
City of Emeryville $4,830,000
Gap Sources $25,517,317
Other (Specify) $0
Other (Specify) $0
Deferred Developer Fee $0
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $82,458,364
PERMANENT
Tax Credit Equity (1) - 4% $44,489,012
Permanent Loan/Bond $9,602,477
AHP $1,050,000
Energy Efficiency Subsidies/Grants $0
City of Emeryville $4,830,000
Gap Sources $25,517,318
Other (Specify) $0
GP Equity $8,579,225
Deferred Developer Fee $970,613
Deferred Operating Reserve $0 ____________
TOTAL SOURCES $95,038,645
USES OF FUNDS $95,038,645
TOTAL COST/UNIT $905,130
(1) Specify 9%, 4% and/or State credits, as appropriate DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
DEVELOPMENT COSTS- BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE No. of Units 105
Total Residential Net SF 98,387
Non-Residential Net SF 11,844
Total Net Square Feet (SF) 110,231 (Rental Hsg. Only)
% Residential Basis Eligible 89.26% Tax Credit Basis
Total (89% Resid.)
BUILDING ACQUISITION
OFF-SITE IMPROVEMENTS
DEMOLITION AND SITE WORK Per SF Site
RESIDENTIAL CONSTRUCTION Per NSF $62,066,064 $62,066,064 OTHER HARD COST - Photovoltaic $978,960 $978,960
GENERAL CONDITIONS Per Month $1,891,351 $1,891,351
CONTRACTOR FEE 3% % of Contract $2,006,534 $2,006,534
SUBTOTAL CONSTRUCTION CONTRACT $66,942,909 $66,942,909
CONTRACTOR'S LIABILITY INSURANCE $668,845 $668,845
CONTRACTOR'S PERFORMANCE BOND incl incl
CONSTRUCTION CONTINGENCY 8.00% % of Hard Costs $5,426,083 $5,426,083 ARCH./ENG./CONSTR. SUPERVISION $1,250,000 $1,250,000
LOCAL PROCESSING FEES $2,527,606 $2,527,606
LOCAL DEVELOPMENT IMPACT FEES $1,155,000 $1,155,000
ALTA SURVEY incl incl
ENVIRONMENTAL PHASE I/II incl incl
SOILS TESTING incl incl
SECURITY DURING CONSTRUCTION incl incl
BOND ISSUANCE COSTS $146,537 $146,537
CONSTRUCTION LOAN FEES $350,783 $350,783
CONSTRUCTION LOAN RATE LOCK FEE incl incl
CONSTRUCTION/LEASE-UP INTEREST $2,451,364 $2,451,364
REAL ESTATE TAXES DURING CONSTRUCTION $0 $0
CONSTRUCTION PERIOD INSURANCE (builders risk) $730,378 $730,378 TITLE AND CLOSING $15,000 $15,000
APPRAISAL FEES $0
LENDER LEGAL/INSPECTION FEES $10,000 $10,000
REAL ESTATE LEGAL $15,000 $15,000
ORGANIZATIONAL LEGAL $10,000 $10,000
MARKET STUDY $0
FINANCIAL ADVISORY SERVICES $0
POST-CONSTRUCTION AUDIT $0
MARKETING/LEASE-UP/START-UP $0
FURNITURE/EQUIPMENT $0
PERMANENT LOAN FEES $123,525 $123,525
CAPITALIZED OPERATING RESERVE $719,417 $719,417
CAPITALIZED REPLACEMENT RESERVE $0
SOFT COST CONTINGENCY $262,952 $262,952
OTHER (Specify) $0
OTHER (Specify) $0
OTHER (Specify) $0
OTHER (Specify) $0
TOTAL DEVELOPMENT COST $82,805,399 $82,805,399
DEVELOPER FEE $12,129,838 $12,129,838
DEVELOPMENT CONSULTANT
TAX CREDIT APPLICATION FEE $93,408 $93,408
TCAC ALLOCATION/RESERVATION FEE
CDLAC FEES (If Appropriate)
SYNDICATION LEGAL $10,000 $10,000
TAX CREDIT CONSULTANT
OTHER (Specify)
OTHER (Specify)
OTHER (Specify)
TOTAL USES $95,038,645 $95,038,645
PER UNIT $905,130 $905,130
PER NET SF $862.18
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING
PLAN TEMPLATE FINANCING ASSUMPTIONS -
BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
TAX CREDIT EQUITY (LIHTC RENTAL ONLY)
Requested Adjusted Eligible Basis (From Threshold Basis Calculation) $92,995,426 Less: Non-Qualified Non-Recourse Financing $0
Less: Eligible Amount Voluntarily Excluded $0
Unadjusted Eligible Basis $92,995,426
High Cost Area Adjustment? Enter Yes or No Yes
Adjusted Eligible Basis (High Cost Area Adjust) $120,894,054 Qualified Basis Percentage (% Low Income Units) 89%
Qualified Basis $120,894,054
Tax Credit Rate 4.00%
Annual Allow. Federal Credits $4,835,762
Annual Allow. State Credits $0
Tax Credit Pricing (Equity Raised Per Tax Credit Dollar) Federal $0.920
State
Federal Tax Credit Equity $44,489,010
State Tax Credit Equity $0
Total Tax Credit Equity $44,489,010
CONSTRUCTION LOAN/BOND (RENTAL AND OWNER)
Construction Loan Amount $45,437,695
Interest Rate 4.15%
Loan Points (%) 0.75%
Average Loan Balance--Construction 40.00%
Average Loan Balance--Lease Up 100.00%
Average Loan Balance--Total 52.00%
Construction Loan Term 24 Months
Lease-Up Period 3 Months
Total Construction Loan Period 30 Months
Construction Loan Interest--Construction $1,508,531
Construction Loan Interest--Lease-Up $942,832
Total Construction Loan Interest $2,451,364
Construction Loan Points ($) $340,783
PERMANENT MORTGAGE/BOND (RENTAL ONLY)
Annual Net Operating Income $707,287
Debt Coverage Ratio 1.15
Annual Debt Service $615,032
Mortgage Term 35 years
Interest Rate 5.45%
Loan Fees (%) 1%
Loan Fees ($) $96,025
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING PLAN TEMPLATE
RENTAL INCOME AND OPERATING COSTS- BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE
ASSUMPTIONS
Median Household Income, Family of Four $142,800
Year of Median Income 2022
Affordable Housing Cost As a % of Income 30%
No. of Bedrooms Totals Studio 1 Bedroom 2 Bedroom 3 Bedroom 4 Bedroom Household Size 1.00 1.5 Persons 3.0 Persons 4.5 Persons 6.0 Persons Household Size Income Adjust. Factor $99,950 $107,100 $128,500 $148,500 $165,650 Utility Allowance $87.00 $93 $115 $138 $162
No. of Affordable Units (Exclud. Mgr.) 104 5 41 30 28 0 Net Sq. Ft. of Leaseable Commercial Spac 0
AFFORDABLE RENTS BY INCOME LEVEL
30% of Median % of AMI
Annual Gross Income $29,985 $32,130 $38,550 $44,550
Affordable Monthly Housing Cost $750 $803 $964 $1,113
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $663 $710 $849 $975
40% of Median % of AMI
Annual Gross Income $39,980 $42,840 $51,400 $59,400
Affordable Monthly Housing Cost $1,000 $1,071 $1,285 $1,484 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $913 $978 $1,170 $1,346
50% of Median % of AMI
Annual Gross Income $49,975 $53,550 $64,250 $74,250
Affordable Monthly Housing Cost $1,250 $1,339 $1,607 $1,856 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,163 $1,246 $1,492 $1,718
60% of Median % of AMI
Annual Gross Income $59,970 $64,260 $77,100 $89,100
Affordable Monthly Housing Cost $1,500 $1,606 $1,928 $2,227 Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent $1,413 $1,513 $1,813 $2,089
% of AMI
Annual Gross Income
Affordable Monthly Housing Cost
Less: Monthly Utility Allowance $87 $93 $115 $138
Affordable Monthly Rent
NET OPERATING INCOME
Max. Net Subsidy Monthly
Affordability Level/No. of Bedrooms Units Monthly Rent Contract Rent Gross Income 30% of Median Studio 3 $663 $1,989
1 Bedroom 14 $710 $9,940
2 Bedroom 7 $849 $5,943
3 Bedroom 7 $975 $6,825
4 Bedroom 31 0 $0 $0
40% of Median Studio 2 $913 $1,826
1 Bedroom 9 $978 $8,802
2 Bedroom 6 $1,170 $7,020
3 Bedroom 6 $1,346 $8,076
4 Bedroom 23 0 $0 $0
50% of Median Studio 0 $1,163 $0
1 Bedroom 9 $1,246 $11,214
2 Bedroom 6 $1,492 $8,952
3 Bedroom 6 $1,718 $10,308
4 Bedroom 21 0 $0 $0
60% of Median Studio 0 $1,413 $0
1 Bedroom 9 $1,513 $13,617
2 Bedroom 11 $1,813 $19,943
3 Bedroom 9 $2,089 $18,801
4 Bedroom 29 0 $0 $0
0% of Median Studio $0 $0
1 Bedroom $0 $0
2 Bedroom $0 $0
3 Bedroom $0 $0
4 Bedroom $0 $0
Average Monthly Market Rents Studio $0
1 Bedroom $0
2 Bedroom $0
3 Bedroom $0
4 Bedroom $0
Totals 104 $133,256
Manager's Unit(s) 1
GROSS RESIDENTIAL RENTAL INCOME Assumption $1,599,072
Less: Residential Vacancy 5.0% Percent of Gross Residential Rental Income ($79,954) Laundry/Miscel. Income $120 Per Unit Annual Income Per Non-Manager's Unit $12,480 Commercial Income $0.00 Per NSF Ann. Rent Per Net SF of Com Space (Cell B19) $0 Less: Commercial Vacancy Percent of Gross Commercial Income $0 _________
GROSS ANNUAL INCOME $1,531,598
LESS: RESIDENTIAL OPERATING EXPENSES $7,595 Per Unit/Year ($797,546) Less: Commercial Operating Expenses Total Expenses/Year $0 Less: Operating Reserves % of Oper. Budget $0
Less: Replacement Reserves $250 Per Unit/Year ($26,250) _________
NET OPERATING INCOME $707,802
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET- BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 105
Annual Annual
Per Unit Total
General Administrative
Advertising $5,000
Legal $7,500
Accounting/Audit, Compliance $22,500
Security/Alarm Service $10,000
Office Supplies, Computers, Equip $10,000
Bad Debt, Licenses, misc. $10,000 _____ ________
Total General Administrative $619 $65,000
Management Fee $53,606
Utilities
Electricity $25,000
Gas $12,500
Cable, Phone Internet $10,000
Water & Sewer $55,000
Other (Specify)
Total Utilities $238 $25,000
Total Water/Sewer $55,000
Payroll/Payroll Taxes
On-Site Manager $125,000
Maintenance Personnel $75,000
Payroll Taxes $52,000
Social Services $81,385
Health Insurance & Benefits $50,000
Workers Comp Ins $25,000
Total Payroll/Payroll Taxes $3,889 $408,385
Total Insurance $80,000
Maintenance
Painting $22,500
Repairs $22,500
Trash Removal $22,500
Exterminating $5,440
Grounds $15,000
Elevator Maintenance $10,000
HVAC Maintenance $5,000
Misc $7,615
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATE
RENTAL OPERATING BUDGET- BUILDING C
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPL Units: 105
Annual Annual
Total Maintenance $1,053 $110,555
Other
Real Estate Taxes
Other (Specify)
Other (Specify)
Other (Specify)
Total Other $0
Total Operating Budget (w/o replacem $7,596 $797,546
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ FINANCING
PLAN TEMPLATE LIHTC THRESHOLD BASIS
LIMITS- BUILDING C
(For LIHTC Projects Only)
PLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLE Specify Elevator/Non-Elevator: Elevator
TCAC Basis Total
Unit Size # of Units Limit Per Unit Basis
Threshold Basis Calculation
Studio 5 $365,252 $1,826,260
1 Bedroom 41 $421,132 $17,266,412
2 Bedroom 30 $508,000 $15,240,000
3 Bedroom 28 $650,240 $18,206,720
4 Bedroom 0 $0
Manager's Unit(s) 1 $508,000 $508,000 ___________
Total Threshold Basis 105 $53,047,392
Plus: Affordability Boost (4% only) 102% $54,067,546
Plus: Prevailing Wage Boost 20% $10,609,478
Plus: Project Labor Agreement 5% $2,652,370
Plus: 95% of units elevator served 10% $5,304,739
Plus: Energy Efficiency Basis Boost 10% $5,304,739
Plus: Building Type (Type 1) 15% $7,957,109
Plus: Distributive Energy Technologies $0
Plus: Total Development Impact Fees $1,155,000
___________
Total Adjusted Threshold Basis $140,098,374
Requested Eligible Basis Calculation
Total Eligible Basis $92,995,426
Less: BMIR Federal Financing
Less: Eligible Basis Amount Voluntarily Excluded
Total Requested Unadjusted Eligible Basis $92,995,426
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW - BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues Gross Potential Rent $1,599,072 $1,639,049 $1,680,025 $1,722,026 $1,765,076 $1,809,203 $1,854,433 $1,900,794 Laundry/Misc. $12,480 $12,792 $13,112 $13,440 $13,776 $14,120 $14,473 $14,835 Residential Vacancy Allowance 5.00% ($79,954) ($81,952) ($84,001) ($86,101) ($88,254) ($90,460) ($92,722) ($95,040) Commercial Income $0 $0 $0 $0 $0 $0 $0 $0 Commercial Vacancy Allowance 0.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify) _________ _________ _________ _________ _________ _________ _________ _________ Net Rental Income $1,531,598 $1,569,888 $1,609,136 $1,649,364 $1,690,598 $1,732,863 $1,776,185 $1,820,589Operating Costs $7,595 /Unit/Yr ($797,546) ($825,460) ($854,351) ($884,253) ($915,202) ($947,234) ($980,388) ($1,014,701)Net Operating Income $734,052 $744,428 $754,784 $765,111 $775,396 $785,629 $795,797 $805,888 Replacement Reserve $250 /Unit/Yr ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) Operating Reserve 0.00% $0 $0 $0 $0 $0 $0 $0 $0 Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. $707,802 $718,178 $728,534 $738,861 $749,146 $759,379 $769,547 $779,638 Debt Service--First Trust Deed ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) Debt Coverage Ratio 1.15 1.17 1.18 1.20 1.22 1.23 1.25 1.27NET CASH FLOW AFTER DEBT SERVICE $92,770 $103,146 $113,502 $123,829 $134,114 $144,347 $154,515 $164,606 Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: $92,770 $103,146 $113,502 $123,829 $134,114 $144,347 $154,515 $164,606 Investor Asset Mgt. Fee $7,500 ($7,500) ($7,688) ($7,880) ($8,077) ($8,279) ($8,486) ($8,698) ($8,915) Developer Asset Mgt. Fee $15,000 ($15,000) ($15,375) ($15,759) ($16,153) ($16,557) ($16,971) ($17,395) ($17,830) Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total: $70,270 $80,084 $89,863 $99,598 $109,278 $118,890 $128,422 $137,861 Residual Receipts: Developer 50% $35,135 $40,042 $44,932 $49,799 $54,639 $59,445 $64,211 $68,930 Residual Receipts: City of Emeryvil 50% $35,135 $40,042 $44,932 $49,799 $54,639 $59,445 $64,211 $68,930 Residual Receipts: Other Pub. Ag. $0 $0 $0 $0 $0 $0 $0 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANK IF NOT APPLICABLENo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation: 1 234 5 6 7 8Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 years Beginning Balance 970613 970613 $935,478 $895,436 $850,504 $800,705 $746,066 $686,621 $622,410 Interest Payments $35,135 $40,042 $44,932 $49,799 $54,639 $59,445 $64,211 $68,930 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $7,595 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
9 10111213141516
$1,948,314 $1,997,022 $2,046,947 $2,098,121 $2,150,574 $2,204,338 $2,259,447 $2,315,933 $15,206 $15,586 $15,975 $16,375 $16,784 $17,204 $17,634 $18,075 ($97,416) ($99,851) ($102,347) ($104,906) ($107,529) ($110,217) ($112,972) ($115,797) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $1,866,104 $1,912,757 $1,960,575 $2,009,590 $2,059,830 $2,111,325 $2,164,108 $2,218,211 ($1,050,216) ($1,086,973) ($1,125,017) ($1,164,393) ($1,205,147) ($1,247,327) ($1,290,983) ($1,336,168) $815,888 $825,783 $835,558 $845,197 $854,683 $863,998 $873,125 $882,043 ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) $0 $0 $0 $0 $0 $0 $0 $0
$789,638 $799,533 $809,308 $818,947 $828,433 $837,748 $846,875 $855,793 ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032)
1.28 1.30 1.32 1.33 1.35 1.36 1.38 1.39
$174,606 $184,501 $194,276 $203,915 $213,401 $222,716 $231,843 $240,761$174,606 $184,501 $194,276 $203,915 $213,401 $222,716 $231,843 $240,761 ($9,138) ($9,366) ($9,601) ($9,841) ($10,087) ($10,339) ($10,597) ($10,862) ($18,276) ($18,733) ($19,201) ($19,681) ($20,173) ($20,678) ($21,195) ($21,724) $147,192 $156,402 $165,474 $174,393 $183,141 $191,700 $200,051 $208,175 $73,596 $78,201 $82,737 $87,196 $91,570 $95,850 $100,026 $104,087$73,596 $78,201 $82,737 $87,196 $91,570 $95,850 $100,026 $104,087 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW - BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 970613 Interest Payments 9 10111213141516
$553,480 $479,884 $401,683 $318,946 $231,749 $140,179 $44,329 $0 $73,596 $78,201 $82,737 $87,196 $91,570 $95,850 $44,329 $0 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $7,595 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
17 18 19 20 21 22 23 24
$2,373,831 $2,433,177 $2,494,007 $2,556,357 $2,620,266 $2,685,772 $2,752,917 $2,821,740 $18,527 $18,990 $19,465 $19,951 $20,450 $20,961 $21,485 $22,022 ($118,692) ($121,659) ($124,700) ($127,818) ($131,013) ($134,289) ($137,646) ($141,087) $0 $0 $0 $0 $0 $0 $0 $0
$0 $0 $0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ _________ _________ $2,273,666 $2,330,508 $2,388,771 $2,448,490 $2,509,702 $2,572,445 $2,636,756 $2,702,675 ($1,382,934) ($1,431,336) ($1,481,433) ($1,533,283) ($1,586,948) ($1,642,491) ($1,699,978) ($1,759,478) $890,733 $899,172 $907,338 $915,207 $922,754 $929,954 $936,778 $943,197 ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) $0 $0 $0 $0 $0 $0 $0 $0
$864,483 $872,922 $881,088 $888,957 $896,504 $903,704 $910,528 $916,947 ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032)
1.41 1.42 1.43 1.45 1.46 1.47 1.48 1.49
$249,451 $257,890 $266,056 $273,925 $281,472 $288,672 $295,496 $301,915$249,451 $257,890 $266,056 $273,925 $281,472 $288,672 $295,496 $301,915 ($11,134) ($11,412) ($11,697) ($11,990) ($12,290) ($12,597) ($12,912) ($13,235)($22,268) ($22,824) ($23,395) ($23,980) ($24,579) ($25,194) ($25,824) ($26,469) $216,050 $223,653 $230,964 $237,955 $244,603 $250,881 $256,760 $262,212$108,025 $111,827 $115,482 $118,978 $122,302 $125,441 $128,380 $131,106$108,025 $111,827 $115,482 $118,978 $122,302 $125,441 $128,380 $131,106 $0 $0 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 970613 Interest Payments 17 18 19 20 21 22 23 24
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues Gross Potential Rent Laundry/Misc. Residential Vacancy Allowance 5.00% Commercial Income Commercial Vacancy Allowance 0.00% Other (Specify) Net Rental IncomeOperating Costs $7,595 /Unit/YrNet Operating Income Replacement Reserve $250 /Unit/Yr Operating Reserve 0.00% Other (Specify)CASH FLOW AVAIL. FOR DEBT SERV. Debt Service--First Trust Deed Debt Coverage RatioNET CASH FLOW AFTER DEBT SERVICE Payment of Deferred Developer FeeNET CASH FLOW Annual Amount: Investor Asset Mgt. Fee $7,500 Developer Asset Mgt. Fee $15,000 Other (Specify) NET CASH FLOW FOR DISTRIBUTIO% of Total:
Residual Receipts: Developer 50%
Residual Receipts: City of Emeryvil 50%
Residual Receipts: Other Pub. Ag.
25 26 27 28 29 30
$2,892,283 $2,964,590 $3,038,705 $3,114,672 $3,192,539 $3,272,353 $22,573 $23,137 $23,716 $24,309 $24,916 $25,539
($144,614) ($148,230) ($151,935) ($155,734) ($159,627) ($163,618) $0 $0 $0 $0 $0 $0$0 $0 $0 $0 $0 $0
_________ _________ _________ _________ _________ _________ $2,770,242 $2,839,498 $2,910,485 $2,983,247 $3,057,829 $3,134,274 ($1,821,059) ($1,884,796) ($1,950,764) ($2,019,041) ($2,089,708) ($2,162,847) $949,182 $954,701 $959,721 $964,206 $968,121 $971,427
($26,250) ($26,250) ($26,250) ($26,250) ($26,250) ($26,250) $0 $0 $0 $0 $0 $0
$922,932 $928,451 $933,471 $937,956 $941,871 $945,177
($615,032) ($615,032) ($615,032) ($615,032) ($615,032) ($615,032)
1.50 1.51 1.52 1.53 1.53 1.54
$307,900 $313,419 $318,439 $322,924 $326,839 $330,145$307,900 $313,419 $318,439 $322,924 $326,839 $330,145 ($13,565) ($13,905) ($14,252) ($14,609) ($14,974) ($15,348)($27,131) ($27,809) ($28,504) ($29,217) ($29,947) ($30,696) $267,204 $271,706 $275,682 $279,099 $281,918 $284,101$133,602 $135,853 $137,841 $139,549 $140,959 $142,050$133,602 $135,853 $137,841 $139,549 $140,959 $142,050 $0 $0 $0 $0 $0 $0
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
CHRISTIE SITES DEVELOPER RFQ
FINANCING PLAN TEMPLATERENTAL CASH FLOW- BUILDING CPLEASE FILL IN ALL APPLICABLE BOXES; LEAVE BLANNo. of Rental Units 105No. of Years Until Stabilized Occup 0.00 ESCALATION RATES: Income/Rents 2.50% Operating Costs 3.50% Replacement Reserve Deposits 0.00% Asset Management Fees 2.50%Year of Stabilized Operation:Rental Revenues DEFERRED DEVELOPER FEE Paid via RR in 1st 15 y Beginning Balance 970613 Interest Payments 25 26 27 28 29 30
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 F-1
1828\01\3631005.5
EXHIBIT F
FORM OF AFFORDABLE HOUSING COVENANT
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
AFFORDABLE HOUSING AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608-3517
Attention: City Attorney
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The document is exempt from the payment of a
recording fee pursuant to Government Code § 27383.
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT ("Agreement"), dated ________________, 202_, is entered into by and between ___________________________, a California limited partnership ("Developer"), and the CITY OF EMERYVILLE , a municipal corporation ("City"), and is made with reference to the following facts:
RECITALS
A. As of the date first set forth above, Developer has acquired from City a ground lease to that certain approximately ____ acre real property, designated as APNs, located at Christie Avenue in the City of Emeryville, County of Alameda, State of California, more particularly described on Exhibit A attached hereto (“Property”).
B. Developer has acquired a ground lease to the Property pursuant to that certain Lease Disposition and Development Agreement dated ______________, 2023, between City and EAH, Inc., a California nonprofit public benefit corporation (“EAH”) with respect to the Property (“DDA”). The DDA provides, among other things, for (i) City’s ground lease of the Property to Developer,, an affiliate of EAH, (ii) Developer’s development of the Property with a new________ (___) unit affordable housing rental apartment building, approximately _____ square feet of amenity space, together with ancillary parking uses, (iii) Developer’s use, operation and maintenance of the Project in accordance with the terms of the Ground Lease (as defined below) and this Covenant and (iv) the establishment of certain covenants and restrictions to ensure development of the Property in accordance with the Ground Lease.
C. The term “Project” means the Improvements to be constructed by Developer on the Property as set forth in the Ground Lease. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Ground Lease.
D. Execution and recordation of this Affordable Housing Covenant against the Project is a condition of City’s Conveyance of the Property under the DDA pursuant to that certain Ground Lease dated ___________, 202_, between City and Developer (“Ground Lease”).
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E. Developer and City agree that the Project shall be subject to the conditions and restrictions, and the rights of City, as set forth in this Covenant.
F. The City Council for the City of Emeryville adopted Ordinance No. 2_-____ authorizing the City Manager to execute this Agreement.
AGREEMENT
1. USE OF THE PROPERTY. The foregoing recitals are incorporated by reference into this Agreement. Developer covenants and agrees on behalf of itself and its heirs, executors, successors and assigns that Developer shall operate, use and maintain the Project in compliance with all of the following:
A. Rent and Income Restrictions.
(1) All of the rental units (with the exception of one (1) unit which shall be reserved for the on-site property manager of the Project) shall be rented to and occupied by either low income households, as defined in California Health and Safety Code Section 50079.5 (“Low Income Households”), as amended or any successor statute thereto, or very low income households as defined in California Health and Safety Code section 50105, as amended or any successor statute thereto ("Very Low Income Households"); or extremely low income households as defined in California Health and Safety Code section 50105, as amended or any successor statute thereto (“Extremely Low Income Households”), in accordance with Exhibit B, at an Affordable Rent (defined below) (each, an "Affordable Unit" and collectively, the “Affordable Units”). The Affordable Units shall consist of ______ (__) studios, _________ (__) one-bedroom units, ______ (__) two-bedroom units, and __________ (__) three-bedroom units. An additional ___-bedroom unit will be occupied by the on-site project manager of the Project and shall not be an Affordable Unit.. The location and number of bedrooms and bathrooms of the Affordable Units shall be as set forth in Exhibit B attached hereto and incorporated herein. (2) The Affordable Units shall only be rented to Low, Very Low and Extremely Low Income Households qualified in accordance with the terms of this Agreement and Applicable Laws ("Eligible Households"), at rental rates no greater than that considered as affordable rent for Low, Very Low and Extremely Low Income Households, adjusted for family size appropriate to the Affordable Unit, pursuant to California Health and Safety Code Section 50053, as amended, or any successor statute thereto ("Affordable Rent"). "Area Median Income," as referenced in California Health and Safety Code section 50053, means the median household income (adjusted for family size appropriate to the unit) of the Metropolitan Statistical Area in which Alameda County is located, as established pursuant to California Health and Safety Code section 50093, as amended or any successor statute thereto. "Adjusted for family size appropriate to the unit" shall have the meaning set forth in California Health and Safety Code section 50052.5, as amended or any successor statute thereto. For purposes of the calculation of Affordable Rent, “family size appropriate to the unit” shall mean a household of one person for a studio unit, 1.5 persons for a one-bedroom unit, 3 persons for a two-bedroom unit, 4.5 persons for a three-bedroom unit, and 6 persons for a four-bedroom unit. If the Project qualifies for federal tax credits pursuant to Section 42 of the Internal revenue Code of 1986, as amended, then those rules for affordable rent rates shall apply in lieu of the requirements of the preceding sentences. To the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
extent other regulatory covenants are in effect with respect to the Project (in addition to this Agreement), the most stringent income and rent requirements shall control. "Applicable Laws" means all applicable laws, ordinances, statutes, codes, orders, decrees, rules, regulations, official policies, standards and specifications (including any ordinance, resolution, rule, regulation, standard, official policy, condition, or other measure) of the United States, the State of California, the County of Alameda, City of Emeryville, or any other political subdivision in which the Project is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Developer, or the Project and shall include any guidelines adopted by the City related to the management and operations of affordable rental units, as such guidelines currently exist or may be amended from time to time. The monthly Affordable Rent for each Affordable Unit shall be calculated pursuant to City’s then-current Affordable Rent and Income Levels Table. City’s current Table is attached hereto for illustrative purposes as Exhibit C. In the event of a threatened foreclosure of any approved financing or deed in lieu thereof or a loss or reduction of any ProjectBased Rental Assistance to the Project, the City hereby agrees that the Developer may increase the Affordable Rent for some or all of the Affordable Units provided in no event shall the Affordable Rent increase above the Affordable Rent for Low Income Households and in the event of any such rent increase Developer is required to 1) use good faith efforts to reduce the effect of rent increases by using any transition reserves, and other sources to mitigate increases or seeking other sources of subsidy, (2) coordinate with the City before sending notices to tenants of increases, and 3) not displace tenants for a period of at least 6 months following notice of such rent increases, except as otherwise required by law or other Project documents.
(3) In the Affordable Units, no less than one Occupant shall be allowed per bedroom and no more than two Occupants shall be allowed per bedroom. A studio shall count as a one-bedroom for the purposes of these occupancy requirements. If no Eligible Households apply within sixty (60 days) of an Affordable Unit being available that meet these occupancy standards, the City shall, upon request of the Developer, 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. "Occupant" shall mean a person over the age of three (3) who occupies an Affordable Unit for more than fourteen (14) days or more during a one-month period. "Tenant" shall mean the Occupant(s) who is/are identified in the lease for an Affordable Unit.
(4) Not more than once per year, Developer may adjust rents in occupied Affordable Units in accordance with the City's published rent ceilings for the applicable unit size and income level. City shall annually publish a list of all rent ceilings reflecting the annual adjustments in the income limits for Eligible Households provided by the U.S. Department of Housing and Urban Development and State of California Housing and Community Development Department. Developer must notify a tenant in writing of any increase in such tenant's monthly rent for an Affordable 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. The Developer shall report any rent increase(s) to the City in the Annual Report, including: (1) the rent adjustment for each Affordable Unit; (2) the new rental amount for each Affordable Unit; and (3) the effective date of the adjustment for each Affordable Unit. Failure to provide the notice and reporting required shall be considered a default by Developer under this Agreement.
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(5) The determination of a status as an Eligible Household shall be made by Developer prior to initial occupancy of the Affordable Unit by such household and shall be subject to review and approval by City. The income of all Occupants aged 18 years or older residing in the Affordable Unit shall be considered for purposes of calculating the household income. Developer shall not discriminate against prospective tenants with qualified Public Housing Authority Section 8 certificates or vouchers who are otherwise qualified in the rental of any of the Property Units. In the Annual Report, the Developer shall report any changes in the Occupants of any Affordable Units to the City that are known by the Developer, including the name(s) and household size(s) of the Occupant(s) vacating the Affordable Unit(s) during the reporting period, and, if the Affordable Unit(s) has/have been reoccupied, the name, household size and income of the new Occupant(s) occupying the Affordable Unit(s). (6) Immediately prior to the first anniversary date of the lease commencement of an Affordable Unit by an Eligible Household, and on each anniversary date thereafter, Developer shall re-certify the income of the Occupant(s) of such Affordable Unit by obtaining a completed Occupant Income Certification based upon the current income of each occupant of the Affordable Unit and Developer shall take all reasonable steps to verify with reliable documentation the income and household size of the Occupant(s). The Occupant Income Certification shall be in the form attached hereto as Exhibit D; provided, however, that City reserves the right to make any updates or changes as City deems necessary or desirable. All documentation obtained by Developer in connection with the annual Occupant Income Certification shall be retained by Developer for three (3) calendar years. If the household income of an Affordable Unit exceeds one hundred forty percent(140%) of the applicable income limit under which the household qualified for occupancy of the Affordable Unit originally, the Occupants shall be given one hundred eighty (180) days notice of termination of lease, promptly following each lease termination, Developer shall re-let the Affordable Unit to an Eligible Household with the appropriate income to keep the income mix consistent with Exhibit B, provided however, that such termination shall be subject to any requirement under Section 42 of the Internal Revenue Code of 1986, and as permitted by applicable law. (7) Notwithstanding anything set forth in this Section 1(A), Affordable Units that are subject to Project-Based Rental Assistance from the Housing Authority of the County of Alameda shall be governed by the requirements of the Housing Authority of the County of Alameda related to occupancy, Affordable Rents and tenant selection. .
B. Marketing and Leasing Program.
(1) Developer shall actively market the Affordable Units in accordance with the “Residential Marketing Plan” attached hereto as Exhibit I. Developer shall provide City with evidence of marketing of Affordable Units at least one hundred and twenty (120) calendar days prior to lease-up of the Affordable Units. The Residential Marketing Plan may be revised from time to time, and shall be updated at least once every five (5) years, with City’s written approval, so long as it remains in conformance with the City’s Affordable Units Marketing Program Procedures in effect and consistent with the terms of this covenant. City shall review the Residential Marketing Plan within thirty (30) days after receipt thereof. Failure of the City to DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
respond within thirty (30) days shall be deemed approval. If the City requests modifications or clarifications to the Residential Marketing Plan, the Developer shall resubmit the Residential Marketing Plan addressing such modifications or clarifications within thirty (30) days of receipt of the City's comments and the City shall either approve or request modifications or further clarifications to the Residential Marketing Plan within fifteen (15) days of receipt of the revised Program. To the extent permitted by applicable law and funding sources, the Residential Marketing Plan must include a preference for (i) households being displaced from City regulated inclusionary rental units for Very Low-Income Households as a result of the unit being converted to a for-sale condominium and (ii) eligible households that include at least one member who lives or works in the City of Emeryville, or has one or more children attending a public school within the Emery Unified School District. Developer shall provide monthly updates to the Residential Marketing Plan commencing thirty (30) days after the initial Certificate of Occupancy is issued and continuing until the Affordable Units are all initially leased. Thereafter, Developer shall provide an update on the Residential Marketing Plan in the Annual Report. (2) Developer is responsible for implementing the Residential Marketing Plan actively and in good faith. City may extend the required marketing period in its discretion if Developer delays implementation or otherwise fails to comply with the Residential Marketing Plan as approved by City.
C. Reporting Requirements.
(1) Developer shall submit to 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 the City describing the status of the Project and compliance with this Agreement, including any problems experienced during the reporting period, any recommendations to address problems and enhance compliance, any revisions to the Marketing Program, Supportive Service Plan or Lease Agreement since the date of the previous Annual Report, a description of any additional fees charged to Tenants, and Property Management staff members that participated in Fair Housing Trainings since the previous Annual Report;
b. A signed copy of the Certificate of Continuing Program Compliance in the form attached hereto as Exhibit G; provided, however, that City reserves the right to make any updates or changes as City deems necessary or desirable; c. A copy of the current Residential Marketing Plan, if revised or updated; d. A copy of the current Supportive Service Plan, if revised or updated; e. A copy of the current form of lease agreement used for Affordable Units, if revised or updated;
f. A copy of the then current and the previous years’ Utility Allowance Schedule, including method of calculation for each bedroom type;
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g. A copy of the current waitlist; and
h. A copy of the Income Certification Worksheet as described in Section C(3). (2) In addition, the Annual Report shall include a financial report, in a form acceptable to the City, including without limitation (i) an annual income statement and balance sheet, (ii) a copy of any and all annual reports provided to Developer’s investors, and (iii) documentation demonstrating that Developer is funding an ongoing replacement reserve fund for capital repair and replacement costs (“Financial Report”). (3) In addition, the Annual Report shall include income certifications or recertifications, for each Eligible Household of an Affordable Unit. The Annual Report 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 H; provided, however, that City reserves the right to make any updates or changes 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 Affordable 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 the ages of 3 and 17; g. Initial lease commencement date;
h. Lease Term;
i. Household Income limit applicable to Affordable 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 C);
l. Utility Allowance Calculation;
m. Amount of any other fees charged to tenants (if applicable); n. Utility Allowance;
o. Section 8 Assistance or any other governmental rental assistance (if applicable); p. Net Rent Paid by Household;
q. Net Rent as a percentage of Household’s Income;
r. Next Recertification Date;
s. Move out date (if applicable).
Each Annual Report shall include the Certificate of Continuing Program Compliance (Exhibit G) and Income Certification Worksheet (Exhibit H) and be submitted to the City annually on March 1st starting the year following issuance of the initial Certificate of Occupancy for the Project.
Upon request by City, the annual Occupant Income Certification Form (Exhibit D) for each Occupant(s) of an Affordable Unit shall be accompanied by the copies of the documents used to DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
certify eligibility. Upon receipt of the Annual Report, the City may request additional information to confirm compliance with this Agreement. In the event the City requests such information, the Developer shall promptly supply such information to City in the format requested by City.
Developer 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, Developer, 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. Developer shall permit City, to audit, examine, copy, and make excerpts or transcripts from such records. Failure of the Owner to submit the Annual Report by March 15th of each year with the required information shall be considered a default by Developer under this Agreement, subject to the provisions of Section 9. In the event that Developer fails to submit the Annual Report in a timely manner, in addition to any other rights that the City may have, City may audit Developer’s books and records to determine compliance, and Developer shall be responsible for all reasonable expenses incurred by the City in conducting such audit. In addition to paying the City's costs and expense, Developer shall pay to the City fifty dollars ($50) 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 one hundred dollars ($100) 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 the City by reason of the Developer’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.
D. Annual Operating Budget. At least 90 calendar days prior to the commencement of the Project’s calendar year, Developer shall submit to City an operating budget for the coming year for the City’s review and approval. The proposed operating budget shall include projected income from all sources, projected expenses, including salaries and operating expenses, debt service and deposits to reserves, and projected distributions, including, without limitation, partnership management fees, asset management fees, deferred developer fees, and any other distributions to Developer or other parties. If City has not responded to any submission of the proposed operating budget by Developer within 30 calendar days of receipt of such operating budget by City, the operating budget shall be deemed approved.
E. City Approval of Lease Forms. City shall have the right to review and approve, which may be reasonably withheld, Developer's form of lease for the Affordable Units including any modifications, including disclosures of the affordability restrictions on the Affordable Units, prior to Developer's use of such form.
F. Supportive Services. Developer shall be responsible for ensuring that adequate levels of supportive services are provided to the Project residents in accordance with the “Supportive Services Plan” attached hereto as Exhibit J and incorporated herein. 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, such approval not to be unreasonably withheld. City shall review any revisions t the Supportive Services Plan and either approve or request modifications to the Supportive Services Plan within thirty (30) days after receipt. If the City does not respond within DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
thirty (30) days of receipt either approving or requesting changes to the Supportive Services Plan it shall be deemed approved.
G. Parking. Developer 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 Emeryville Municipal Code section 9-4.403(e). If financing sources for the Development require that the costs for parking and housing be bundled together, the Developer shall request an exception to the Unbundled Parking Requirements from the City at least 120 calendar days prior to the Lease-up of the Affordable Units.
H. Compliance with All Applicable Laws. Owner shall manage and operate all Affordable Units in compliance with all applicable federal, and state laws, and City ordinances and resolutions, including but not limited to, the 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 AND MAINTENANCE; PROPERTY DAMAGE.
A. Management of Project. In order to ensure that Developer's obligations under this Covenant with respect to the Project are satisfied, Developer shall operate the Project (including leasing, property management, and maintenance and repair services) in accordance with the "Property Management Plan" attached hereto as Exhibit K and incorporated herein. The Property Management Plan may be revised from time to time and shall be updated at least once every five (5) years, with City's written approval, such approval not to be unreasonably withhold, so long as it remains consistent with the terms of this Covenant. City shall review any modifications to the Property Management Plan and either approve or request modifications to the Property Management Plan within thirty (30)days after receipt. If the City does not respond within thirty (30) days of receipt either approving or requesting changes to the Property Management Plan, it shall be deemed approved. The Property Management Plan shall at all times provide that the Project shall be managed by a property manager reasonably acceptable to City ("Property Manager"). 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 Property Manager shall be hired, or Management Agreement signed or amended, without City's prior approval thereof, which shall not be unreasonably withheld or delayed. No less than sixty (60) calendar days prior to hiring any Property Manager or executing any amendment to a Management Agreement, Developer shall provide documentation to the City as is reasonably necessary to evaluate the proposed Property Manager's experience and qualifications or revisions to a Management Agreement. For the term of this Agreement, any change in Property Manager or amendment to the Management Agreement 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. The City hereby approves EAH, Inc., as the initial Property Manager.
B. Training. Property Management leasing staff must participate in fair housing training at least once every two (2) years. Property Manager shall notify the City of any change in the primary staff assigned to the Project within ten (10) business 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 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
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 Project to properly implement the terms of this Agreement.
C. Maintenance of Project. Developer shall maintain the Project (such maintenance to include buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Project and any and all other improvements on the Property and in the public right-of-way to the nearest curbline(s) abutting the Property) in accordance with the maintenance standards (as hereinafter defined). To accomplish the maintenance, Developer shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Covenant.
The maintenance covenants and obligations set forth in this Section 3 shall remain in effect for the period of time specified in Section 7, below.
(1) The following standards (collectively, "Maintenance Standards") shall be complied with by Developer 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 condition which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. (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.
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(v) The Project 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-ofway improvements to the curbline(s) on and abutting the Property shall be maintained as required by Subsection 3.B 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 Developer does not maintain the Project and all other private and public improvements (if any) on the Property to the curbline(s) on and abutting the Property 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 Developer. However, prior to taking any such action, City agrees to notify Developer in writing if the condition of said improvements does not conform to the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Developer to cure the deficiencies. Upon notification of any maintenance deficiency, Developer shall have 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 30 days. If the written notification states that the problem is urgent and relates to the public health and safety, then Developer shall have 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 24 hours. In the event Developer fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such maintenance deficiency after notification and after expiration of any applicable cure periods, then City shall have the right to maintain such improvements at Developer's expense. Developer 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 Project 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 Project. Any lien in favor of City created or claimed under this Subsection 3.B(2) is expressly made subject and subordinate to any leasehold 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 leasehold mortgage or deed of trust, unless the leasehold mortgagee or beneficiary thereunder expressly subordinates its interest, of-record, to such lien. Developer acknowledges and agrees that City may also pursue any and all other remedies available in law or equity in the event of a breach of the maintenance obligations and covenants set forth herein, subject to the limitations set forth in Section 11 below.
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3. TAXES. Developer shall not apply for exemption from the payment of real or personal property taxes on the Project except pursuant to Revenue and Taxation Code Section 214(g), except as approved in writing by the City in its reasonable discretion. The Developer shall have all rights under Applicable Law to appeal the valuation of the Project (including but not limited to the Property, any improvements, fixtures or appurtenances, and any personal property) for tax purposes.
4. INSPECTION AND RECORDS. Developer shall maintain records which clearly document Developer's performance of its obligations to operate the Project under the terms of this Covenant, and shall submit any and all relevant records to City within ten (l0) business days of a request therefor. Developer shall also permit representatives of City to enter and inspect any and all records and the Property for compliance with the obligations under this Covenant upon no less than 48 hours advance notice of such inspection or visit to Developer or Developer's management agent.
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 Project 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 ninety-nine (99) years following the date of recording of the Certificate of Completion (as defined in Section 6.2 of the Ground Lease), except that nondiscrimination covenants set forth in Section 2 shall remain in effect in perpetuity.
7. PRIORITY OF DOCUMENTS; SUBORDINATION AGREEMENT.
Developer's covenants with respect to the use, maintenance, and operation of the Project set forth herein shall run with the land and be binding on Developer 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 Developer 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 Developer and any successor in interest to the Project. 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 Developer'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 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
enforce the curing of such breach. The covenants contained herein shall be for the benefit of and shall be enforceable only by City, and its successors and assigns.
9. DEFAULT. Any failure by Developer to perform any term or provision of this Agreement shall constitute a "Default" hereunder if Developer 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, Developer does not 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. 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. Developer’s limited partner shall have the right but not the obligation to cure any Defaults under this Covenant and the City shall accept such cure as if tendered by the Developer.
10. REMEDIES. Following the declaration of an Event of Default hereunder, in addition to any other remedies that the City may have under the Ground Lease, the 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 the Developer to perform its obligations and covenants hereunder or enjoin any acts or things that may be unlawful or in violation of the rights of the City hereunder; B. have access to and inspect, examine and make copies of all of the books and records of the Developer pertaining to the Project Site;
C. take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Developer hereunder.
The Developer hereby agrees that specific enforcement of the Developer's agreements contained herein is the only means by which the City may fully obtain the benefits of such Agreement made by the Developer herein, and the Developer therefore agrees to the imposition of the remedy of specific performance against it in the case of any Event of Default by the Developer hereunder.
In addition to any other right or remedy that the City may have, in the event that Developer fails to rent the Affordable Units to Eligible Households at an Affordable Rent, Developer shall pay to the City the amount of any rent collected by Developer in excess of the Affordable Rent.
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 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
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 Developer hereunder. Developer 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. Developer shall annually pay to the City the City's monitoring and enforcement fees for the Affordable Units in accordance with the City's Master Fee Schedule. The monitoring fee shall be either the City's actual expenses incurred for monitoring including staff time and third party costs or the amount set forth in the Master Fee Schedule. 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 the City incurred in taking action pursuant to Section 10 shall be the sole responsibility of the Developer.
13. INDEMNIFICATION AND RELEASE. It is specifically understood and agreed by the Parties that the Project 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 Developers shall have full power over and the exclusive control of the Property subject only to the limitation and obligations of the Developers under this Agreement and the Conditions of Approval. The Developer 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 Project, 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 Developer or its shareholders, partners, members, principals, officers, employees, representatives, agents, contractors or subcontractors, excepting suits and actions arising from the sole negligence or willful misconduct of City ("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 Project. This Section 14 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 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, DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
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
Telephone: (510) 596-4370
To Developer: EAH, Inc.
22 Pelican Way
San Rafael, CA 94901
Attention: President
With copies to: Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, DC 20005
Attn: Jed D’Abravanel
Telephone: (202) 926-3163
Facsimile: (202) 926-3401
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 pa1ty 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 the 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 the 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 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
included. The term "costs" shall mean the costs and expenses of counsel to the parties, which may include printing, 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. 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: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653218.3
IN WITNESS WHEREOF, City and Developer have caused this Agreement to be executed on their behalf by their respective duly authorized persons. "DEVELOPER"
Dated: By:
[Signature must be notarized]
Name:
Its:
"CITY"
CITY OF EMERYVILLE, a municipal corporation
Dated: By:
City Manager
[Signature must be notarized]
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit A
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EXHIBIT A
Legal Description
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit B
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EXHIBIT B
Project Affordable Rent and Income Levels
CITY OF EMERYVILLE AFFORDABLE HOUSING PROGRAM
AGREEMENT ON AFFORDABLE UNITS
__________ Avenue
202_ Rent Calculation for Affordable Units
Number Project
Unit #
Unit
Type Unit Sq Ft # Beds/ Baths Income Level
Gross
Monthly
Rent*
1 .
2 3
4 5
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 29
30 31
32 33
34 35
36 37
38 39
40 41
42 43
44 45
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit B
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46 47
48 49
50 51
52 53
54 55
56 57
58 59
60 61
62 63
64 65
66 67
68 * Very Low Income rents are based on 30% of 50% of Year 2022 area gross median income for Alameda County, adjusted for household size. Low Income rents are based on 30% of 60% of Year 2022 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, such as for on-site parking. 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 each Certificate of Occupancy is received.
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit C
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EXHIBIT C
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit D
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EXHIBIT D
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) $
$
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit D
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(L) Total Annual Household Income from all Sources [Add (E) + (K)] $
HOUSEHOLD CERTIFICATION & SIGNATURES
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 Developer/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 DEVELOPER/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 DEVELOPER/REPRESENTATIVE DATE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit D
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_________________________________ __________________________
NAME EMAIL
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit E
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EXHIBIT E
Site Plan
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit F
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EXHIBIT F
List of Amenities
This exhibit should relates to appearance, materials, finished quality, and amenities of the units in the project
Project Amenities
•
Unit Amenities
•
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit G
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EXHIBIT G
[CHECK WITH CITY STAFF FOR UPDATED FORM PRIOR TO EXECUTING] [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 low income tenants. Since the beginning of this Agreement term, not less than XX 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 XX 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 Extremely Low Income Units occupied: ___________________(# Units) Total Extremely Low Income Units vacant: ___________________(#Units) Total Very Low Income Units occupied: ___________________(# Units) Total Very Low Income Units vacant: ___________________(#Units) Total Low Income Units occupied: ___________________(# Units) Total Low Income Units vacant: ___________________(#Units) Attached is a separate sheet listing all information required by the Affordable Housing Agreement Section 1.D(1).
[DEVELOPER]
By:____________________________________
Authorized Developer Representative
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit H
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EXHIBIT H
[CHECK WITH CITY STAFF FOR UPDATED FORM PRIOR TO EXECUTING] [Project Name] Apartments Period through _________________
INCOME CERTIFICATION WORKSHEET
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit I
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EXHIBIT I
Residential Marketing Plan
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit J
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EXHIBIT J
Supportive Services Plan
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 Exhibit K
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EXHIBIT K
Management & Maintenance Plan
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 G-1
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EXHIBIT G
FORM OF GROUND LEASE
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
GROUND LEASE
by and between
CITY OF EMERYVILLE, A MUNICIPAL CORPORATION
AS LANDLORD
and
_________________, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
AS TENANT
Dated as of _____________, 20__
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITION ............................................................................................................. 2
1.1 Definitions................................................................................................... 2 ARTICLE II. DEMISE OF PREMISES ......................................................................................... 5
2.1 Demise. ....................................................................................................... 5
2.2 Condition of Title. ....................................................................................... 5
2.3 Condition of Property. ................................................................................ 5
2.4 Tenant to Rely on Own Experts. ................ Error! Bookmark not defined.
2.5 Environmental Disclosure. .......................................................................... 6
2.6 Release by Tenant. ...................................................................................... 7 ARTICLE III. TERM OF LEASE .................................................................................................. 7
3.1 Term. ........................................................................................................... 7
3.2 Lease Year. ................................................................................................. 7 ARTICLE IV. RENT ...................................................................................................................... 8
4.1 Rent. ............................................................................................................ 8
4.2 Additional Rent. .......................................................................................... 8
4.3 Payment of Rent. ......................................................................................... 9 ARTICLE V. TAXES, ASSESSMENTS AND OTHER CHARGES ........................................... 9
5.1 Impositions. ................................................................................................. 9
5.2 Tenant Right to Contest. ............................................................................. 9
5.3 Tenant Duty to File. .................................................................................. 10
5.4 Utilities. ..................................................................................................... 10 ARTICLE VI. DEVELOPMENT OF THE PROPERTY ............................................................. 10
6.1 Construction of Improvements. ................................................................ 10
6.2 Construction Schedule. ............................................................................. 11
6.3 Construction Standards. ............................................................................ 11
6.4 Easements; Reciprocal Easement/Joint Use Agreement. .......................... 12
6.5 Protection of Landlord. ............................................................................. 12
6.6 Mechanic's Liens and Stop Notices. ......................................................... 12
6.7 Right of Landlord to Satisfy Liens on the Property. ................................. 12
6.8 Notice of Completion. ............................................................................... 13
6.9 Use of Plans. ............................................................................................. 13
6.10 Cost of Construction ................................................................................. 13
6.11 Project Approvals...................................................................................... 13
6.12 Conditions of Approval............................................................................. 14
6.13 Fees and Permits. ...................................................................................... 14 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
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6.14 Construction Plans. ................................................................................... 14
6.15 Construction Pursuant to Plans. ................................................................ 14
6.16 Change in Construction Plans. .................................................................. 15
6.17 Rights of Access. ...................................................................................... 15
6.18 Landlord Disclaimer. ................................................................................ 15
6.19 Defects in Plans......................................................................................... 15
6.20 Equal Opportunity. .................................................................................... 16
6.21 Prevailing Wage Requirements. ................................................................ 16
6.22 Performance and Payment Bonds. ............................................................ 17
6.23 Insurance Requirements. ........................................................................... 18 ARTICLE VII. USE OF THE PROPERTY ................................................................................. 19
7.1 Permitted Uses. ......................................................................................... 19
7.2 Affordability Requirements. ..................................................................... 19
7.3 Preference for Emeryville Residents, Employees, EUSD Attendees and Displacees from City Regulated Housing. ......................................... 19
7.4 Manager's Unit. ......................................................................................... 20
7.5 No Condominium Conversion. ................................................................. 20
7.6 Obligation to Refrain from Discrimination. .............................................. 20
7.7 Management and Operation of the Project; Compliance with Laws. ....... 22
7.8 Tenant Right to Contest. ........................................................................... 22
7.9 Hazardous Materials. ................................................................................ 22 ARTICLE VIII. SURRENDER AND RIGHT TO REMOVE ..................................................... 24
8.1 Ownership During Term. .......................................................................... 25
8.2 Ownership at Lease Termination. ............................................................. 25
8.3 Condition of Improvements at Lease Termination. .................................. 25
8.4 Survival. .................................................................................................... 26 ARTICLE IX. INSURANCE........................................................................................................ 26
9.1 Insurance. .................................................................................................. 26 ARTICLE X. INDEMNIFICATION BY TENANT .................................................................... 27 ARTICLE XI. DAMAGE AND DESTRUCTION ...................................................................... 28
11.1 Damage or Destruction. ............................................................................ 28
11.2 Rebuilding by Tenant. ............................................................................... 29
11.3 Disbursement of Funds. ............................................................................ 29
11.4 Notice Required. ....................................................................................... 29
11.5 Removal of Debris. ................................................................................... 29
11.6 Tenant's Right to Terminate. ..................................................................... 29 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
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ARTICLE XII. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS ................ 30 ARTICLE XIII. REPAIRS, CHANGES, ALTERATIONS AND NEW CONSTRUCTION ..... 30
13.1 Repairs and Maintenance. ......................................................................... 31
13.2 Changes and Alterations. .......................................................................... 31
13.3 Exceptions to Requirement for Consent. .................................................. 32
13.4 No Right to Demolish. .............................................................................. 32 ARTICLE XIV. EMINENT DOMAIN ........................................................................................ 32
14.1 Eminent Domain. ...................................................................................... 32
14.2 Notice. ....................................................................................................... 33
14.3 Total or Substantial Taking. ...................................................................... 34 ARTICLE XV. MORTGAGES .................................................................................................... 35
15.1 Leasehold Mortgages. ............................................................................... 35
15.2 Rights of Leasehold Mortgagee. ............................................................... 36
15.3 Non-Subordination of Fee......................................................................... 40
15.4 Subsequent Transfers. ............................................................................... 40
15.5 Landlord's Rights Under Leasehold Mortgages. ....................................... 40
15.6 Reserved. ................................................................................................... 41
15.7 No Voluntary Surrender/Modification. ..................................................... 41
15.8 Leasehold Mortgagee Right to Pay Landlord Obligations. ...................... 41
15.9 Amendments for the Benefit of Leasehold Mortgagees. .......................... 41 ARTICLE XVI. ASSIGNMENT, TRANSFER, SUBLETTING ................................................. 42
16.1 Restrictions on Transfer or Assignment by Tenant. ................................. 42
16.2 Procedure for Obtaining Landlord's Consent. ........................................... 42
16.3 Subleases; Nondisturbance and Attornment. ............................................ 43
16.4 Limitations. ............................................................................................... 44
16.5 Involuntary and Other Transfers. .............................................................. 45
16.6 Assumption Agreement and Release. ....................................................... 45
16.7 Change in General Partner of Tenant. ....................................................... 45
16.8 Sale by Landlord. ...................................................................................... 46 ARTICLE XVII. BREACHES, REMEDIES AND TERMINATION ......................................... 46
17.1 Event of Default. ....................................................................................... 46
17.2 Notice and Opportunity to Cure. ............................................................... 48
17.3 Remedies Upon Default. ........................................................................... 48
17.4 Right to Receiver. ..................................................................................... 50
17.5 Remedies Cumulative. .............................................................................. 50 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948
TABLE OF CONTENTS
Page
iv
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17.6 No Election of Remedies. ......................................................................... 50
17.7 Survival of Obligations. ............................................................................ 51
17.8 No Waiver. ................................................................................................ 51 ARTICLE XVIII. GENERAL PROVISIONS .............................................................................. 51
18.1 Estoppel Certificates. ................................................................................ 51
18.2 Quiet Enjoyment. ...................................................................................... 51
18.3 Landlord's Right to Enter the Property. .................................................... 51
18.4 Representations of Landlord and Tenant. ................................................. 52
18.5 Miscellaneous. .......................................................................................... 53 DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1 1828\01\3632282.3
THIS GROUND LEASE (this "Lease" or this "Agreement"), dated as of __________________, 20__ (the "Effective Date"), is entered into by and between the City of Emeryville, a municipal corporation (hereafter "Landlord") and ___________________, L.P., a California limited partnership (hereafter "Tenant"). Landlord and Tenant are hereafter collectively referred to as the "Parties."
RECITALS
A. Landlord is the owner of fee title to the property known as _____ Christie Avenue, identified as Alameda County Assessor's Parcel No. ______________________, and more particularly described in Exhibit A attached hereto (hereafter, the "Property").
B. Landlord and EAH, Inc., a California nonprofit public benefit corporation (“EAH”) have entered into that certain Lease Disposition and Development Agreement dated as of _________________, 2023 (hereafter, the "DDA") which provides for the ground lease of the Property by Landlord to affiliates of EAH to allow for the development and operation of an approximately 362 unit affordable residential project to be developed in three phases (the “Development”).
C. Tenant proposes to construct a multi-family residential rental development consisting of __________ units of affordable housing, and related improvements [Each Ground Lease should describe the additional improvements that are part of the applicable Phase], which shall be affordable to Eligible Households in accordance with Exhibit B to the Affordable Housing Covenant, common areas, parking, and related improvements (the "Project" as more particularly described below). The Project is a phase of the Development to be developed and operated in three phases (each a “Phase”) located on adjoining sites to the Property, each of which must for tax and financing reasons be organizationally, legally and financially distinct and owned and operated by a distinct affiliate of EAH organized as a limited partnership, in which EAH will serve as the sole member of the managing general partner of each partnership (each a “Phase Owner”).
D. Tenant, as an affiliate of EAH, has satisfied the conditions precedent to the lease of the Property, as set forth in the DDA. Therefore, the Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord the Property, upon the terms and conditions set forth in this Lease, for the undertaking of the Project as more particularly described herein.
E. The City has determined that development of the Project pursuant to this Lease is consistent with the General Plan and the City's Housing Element and is compliant with the requirements of California Government Code Section 37364.
F. The City Council has approved the lease of the Property as set forth in this Agreement, has followed all requisite procedures, and has adopted all requisite findings in connection with the foregoing, including without limitation the requirements of Government Code Section 37364.
G. [RECITAL RE: CEQA/SB 35 COMPLIANCE].
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 2 1828\01\3632282.3
H. In connection with the financing and development of the Project, Landlord and Tenant will execute and cause to be recorded in the Official Records the following documents, substantially in the form attached hereto as an exhibit or as attachments to the DDA:
Memorandum of Ground Lease (attached hereto as Exhibit B), and an Affordable Housing Covenant (Exhibit E) (the "Affordability Covenant").
NOW, THEREFORE, for and in consideration of the covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows.
ARTICLE I.
DEFINITION
1.1 Definitions. The following terms shall have the meanings set forth in the Sections referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined in the Recitals and text of this Agreement.
1.1.1 "Affordability Covenant" is defined in Recital H.
1.1.2 "Affordable Rent" is defined in the Affordability Covenant.
1.1.3 "Annual Operating Expenses” means, for the applicable calendar year, the following costs reasonably and actually incurred for operation and maintenance of the Project to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles:
1.1.3.1 Property taxes and assessments imposed on the Project;
1.1.3.2 Debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Project,) on loans associated with the Project and approved by the Landlord in the Final Project Budget or otherwise;
1.1.3.3 Property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract reasonably approved by the Landlord;
1.1.3.4 Premiums for property damage and liability insurance;
1.1.3.5 Any annual license or fees required for operation of the Project;
1.1.3.6 Security services;
1.1.3.7 Advertising and marketing costs;
1.1.3.8 Cash deposited into reserves for capital replacements of the Project in an amount to be approved by the Landlord as part of the Final Project Budget, as the same may increase during the Term with the approval of the Landlord; provided, however, no approval of Landlord shall be required to the extent of any cash deposited into reserves for capital DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 3 1828\01\3632282.3
replacements is in compliance with the requirements of Tenant’s lenders and/or Tax Credit Partner;
1.1.3.9 Cash deposited into an operating reserve in an amount to be approved by the Landlord as part of the Final Project Budget, as the same may be increased during the Term with the approval of the Landlord, and annual operating budgets, but with the operating reserve capped at six (6) months of gross rent from the Project (as such rent may vary from time to time); provided, however, no approval of Landlord shall be required to the extent of any cash deposited into an operating reserve is in compliance with the requirements of Tenant’s lenders and/or Tax Credit Partner;
1.1.3.10 asset management fee and a partnership management fee, in the amount not to exceed thirty thousand dollars ($30,000) annually increasing by 3% each year starting in 2025;
1.1.3.11 Utility services not paid for directly by tenants, including, without limitation, water, sewer, and trash collection;
1.1.3.12 Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair, janitorial supplies and services,
1.1.3.13 Social services fees and expenses in an amount approved by the Landlord as part of the Final Project Budget;
1.1.3.14 Annual audit fees, inspection fees, or monitoring fees required in relation to any Financing Plan;
1.1.3.15 Extraordinary operating costs specifically approved by the Landlord in its reasonable discretion;
1.1.3.16 Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves,
1.1.3.17 Reasonable accounting fees and legal fees; and
1.1.3.18 Other ordinary and reasonable operating expenses approved by the Landlord in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or other non-cash expenses or any amount expended from a reserve account.
1.1.4 "Applicable Laws" is defined in Section 6.3.
1.1.5 "Area Median Income" is defined in the Affordability Covenant.
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1.1.6 "City" means the City of Emeryville, a municipal corporation, in its regulatory capacity as opposed to its proprietary interest in the Property as Landlord.
1.1.7 "City Council" means the City Council of the City of Emeryville.
1.1.8 "City Pro Rata Share of Net Operating Income" means the City's proportionate share of fifty percent (50%) of Net Operating Income as measured by the amount of the City Subsidized Loan divided by the total of all other loans from public agencies repayable from Net Operating Income and the amount of the City Subsidized Loan.
1.1.9 “City Subsidized Loan” means the City loan to the Tenant in the amount of ________
1.1.10 "Claims" is defined in Article X.
1.1.11 "Construction Plans" is defined in Section 6.14.
1.1.12 "Environmental Laws" is defined in Section 7.9.4.2.
1.1.13 "Gross Revenue" with respect to a particular calendar year, means all revenue, income, receipts, and other consideration actually received from operation and leasing of the Project, including but not limited to:
1.1.13.1 all rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income;
1.1.13.2 The proceeds of business interruption or similar insurance;
1.1.13.3 Any payment received in consideration for the leasing or other use of any portion of the Project;
1.1.13.4 Subject to the rights of Institutional Lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Project (or applied toward the cost of recovering such proceeds); and
1.1.13.5 Subject to the rights of Institutional Lenders, condemnation awards for a taking of part or all of the Project for a temporary period.
Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital contributions or other similar advances.
1.1.14 "Hazardous Material" is defined in Section 7.9.4.1.
1.1.15 "Improvements" means all buildings, structures, fixtures, fences, walls, paving, parking improvements, driveways, walkways, plazas, landscaping, permanently affixed DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 5 1828\01\3632282.3
utility systems and equipment, and other improvements located on the Property, including, without limitation, the Project and all replacements of the foregoing.
1.1.16 "Indemnitees" is defined in Article X.
1.1.17 "Lease Termination" is defined in Section 8.2.1.
1.1.18 "Leasehold Mortgage" means a mortgage on the leasehold estate created by this Lease and held by a Leasehold Mortgagee.
1.1.19 "Leasehold Mortgagee" means the mortgagee or beneficiary of any Leasehold Mortgage and in the event of a transfer of such Leasehold Mortgage, the successor Leasehold Mortgagee, upon delivery of written notice of the transfer to Landlord.
1.1.20 "Major Additional Improvements" is defined in Section 6.24.
1.1.21 “Net Operating Income” means, for any calendar year, the amount, if any, by which Gross Revenue exceeds Annual Operating Expenses which Tenant paid during such period.
1.1.22 "Official Records" means the Official Records of Alameda County.
1.1.23 "Prevailing Wage Laws" is defined in Section 6.3.
1.1.24 "Project" means the residential rental project and related improvements as described in Recital D and Section 6.1, and any replacement thereof pursuant to this Lease.
1.1.25 "Property" is defined in Recital B
1.1.26 "Term" is defined in Section 3.1.
1.1.27 "Transfer" is defined in Section 16.1.
ARTICLE II.
DEMISE OF PREMISES
2.1 Demise. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Property for the Term and on the terms and conditions set forth in this Lease.
2.2 Condition of Title. Landlord leases the Property to Tenant subject to all easements, covenants, conditions, restrictions and other title matters of record existing as of the Effective Date, and all matters that would be apparent from an inspection of the Property on the Effective Date.
2.3 Condition of Property. THE TENANT SPECIFICALLY ACKNOWLEDGES
AND AGREES THAT THE LANDLORD IS CONVEYING AND THE TENANT IS ACCEPTING THE LEASEHOLD INTEREST IN THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS, INCLUDING, BUT NOT LIMITED TO THE,
CONDITION OF THE EXISTING BUILDING, AND THAT THE TENANT IS NOT DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 6 1828\01\3632282.3
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS (EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT) OR IMPLIED, FROM THE LANDLORD AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION: (A) THE
QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF THE
PROPERTY (INCLUDING, WITHOUT LIMITATION, TOPOGRAPHY, CLIMATE,
AIR, WATER RIGHTS, WATER, GAS, ELECTRICITY, UTILITY SERVICES,
GRADING, DRAINAGE, SEWERS, ACCESS TO PUBLIC ROADS AND RELATED CONDITIONS); (B) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND GROUNDWATER; (C) THE
DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE PROPERTY'S USE,
HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR ADEQUACY OF THE PROPERTY FOR ANY PARTICULAR PURPOSE; (D) THE
PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS WITHIN THE EXISTING BUILDING OR ON, UNDER OR ABOUT THE PROPERTY; AND (E) THE CONDITION OF TITLE TO THE PROPERTY. THE TENANT AFFIRMS THAT THE
TENANT HAS NOT RELIED ON THE SKILL OR JUDGMENT OF THE LANDLORD
OR ANY OF ITS RESPECTIVE AGENTS, EMPLOYEES OR CONTRACTORS TO
SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND
THAT THE LANDLORD MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE. THE TENANT ACKNOWLEDGES THAT IT
SHALL USE ITS INDEPENDENT JUDGMENT AND MAKE ITS OWN
DETERMINATION AS TO THE SCOPE AND BREADTH OF ITS DUE DILIGENCE
INVESTIGATION WHICH IT SHALL MAKE RELATIVE TO THE PROPERTY AND
SHALL RELY UPON ITS OWN INVESTIGATION OF THE PHYSICAL,
ENVIRONMENTAL, ECONOMIC AND LEGAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, WHETHER THE PROPERTY IS LOCATED
IN ANY AREA WHICH IS DESIGNATED AS A SPECIAL FLOOD HAZARD AREA,
DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT ZONE, SEISMIC
HAZARD ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY). THE TENANT UNDERTAKES AND
ASSUMES ALL RISKS ASSOCIATED WITH ALL MATTERS PERTAINING TO THE
PROPERTY'S LOCATION IN ANY AREA DESIGNATED AS A SPECIAL FLOOD
HAZARD AREA, DAM FAILURE INUNDATION AREA, EARTHQUAKE FAULT
ZONE, SEISMIC HAZARD ZONE, HIGH FIRE SEVERITY AREA OR WILDLAND FIRE AREA, BY ANY FEDERAL, STATE OR LOCAL AGENCY.
2.4 Environmental Disclosure. To the extent the Landlord has copies of reports regarding the environmental condition of the Property, it has provided copies to Tenant of those reports known to exist; but the Parties acknowledge that Landlord will not be conducting a public records search of any regulatory agency files—although the Landlord urges Tenant to do so to satisfy itself regarding the environmental condition of the Property. By execution of this Agreement, Tenant: (i) acknowledges its receipt of the foregoing notice respecting the environmental condition of the Property; (ii) acknowledges that it has had an opportunity to conduct its own independent review and investigation of the Property; (iii) agrees to rely solely on its own experts in assessing the environmental condition of the Property and its sufficiency DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 7 1828\01\3632282.3
for its intended use; and (iv) waives any and all rights Tenant may have to assert that the Landlord failed to disclose information about the environmental condition of the Property.
2.5 Release by Tenant. Effective upon the Effective Date, Tenant WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES the Indemnitees and any person acting on behalf of the Landlord, from any and all Claims, direct or indirect, known or unknown, foreseen or unforeseen, which Tenant now has or which may arise in the future on account of or in any way arising out of or in connection with the physical condition of the Property, the presence of Hazardous Material in, on, under or about the Property, or any law or regulation applicable thereto including, without limiting the generality of the foregoing, all Environmental Laws, except for claims arising solely out of the gross negligence or intentional misconduct of the Landlord or its employees, officers or agents. The provisions of this Section
2.6 shall survive the expiration or earlier termination of this Agreement.
TENANT ACKNOWLEDGES THAT TENANT IS FAMILIAR WITH SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
BY INITIALING BELOW, TENANT EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WITH RESPECT TO THE FOREGOING RELEASE:
Tenant's initials: _____________
ARTICLE III.
TERM OF LEASE
3.1 Term. The Parties shall execute a memorandum of this Lease substantially in the form set forth in Exhibit B attached hereto ("Memorandum") which shall be recorded in the Official Records. The term of this Lease (the "Term") shall commence on the date that the Memorandum is recorded in the Official Records ("Commencement Date"). Unless sooner terminated under the provisions hereof, the Term of this Lease shall expire on the day preceding the ninety-nine (99th) anniversary of the date of recording of the Certificate of Completion as set forth in Section 6.2; (the "Expiration Date"). The expiration or sooner termination of the Term shall be referred to as "Lease Termination."
3.2 Lease Year. For purposes of this Lease, "Lease Year" shall mean each calendar year, or partial calendar year during the Term. If the Commencement Date does not occur on January 1, then any amounts required to be paid under this Lease on a Lease Year basis shall be DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 8 1828\01\3632282.3
prorated on a per diem basis for the partial Lease Years that commence with the Commencement Date and end on the Expiration Date.
ARTICLE IV.
RENT
4.1 Rent. The Tenant shall pay to Landlord, rent for the entire Term in the amount of One Dollar ($1.00) a year ("Base Rent") plus the City's Pro Rata Share of Net Operating Income, provided, however, that the City's Pro Rata Share of Net Operating Income shall be applied first to repayment in full of the City's Subsidized Loan according to the terms of the City Loan Documents. After repayment in full of the City Subsidized Loan, the Tenant shall continue to pay to the Landlord the City’s Pro Rata Share of Net Operating Income as Additional Rent.
Tenant shall deliver to Landlord an annual operating statement that shows the Annual Operating Expenses, Gross Revenues and the determination of Net Operating Income, along with any rent owed, in arrears, no later than June 30 of each year, commencing on the June 30th following the first full calendar year after the Improvements are placed in service. As of the Commencement Date, the Tenant has pre-paid the entire amount of Base Rent for the Term.
4.2 Right to Audit. If Landlord disputes Tenant's determination of the Net Operating Income, Landlord shall notify Tenant of such dispute and the parties shall cause their representatives to meet and confer concerning the dispute and to use all reasonable efforts to reach a mutually acceptable resolution of the matter in question within thirty (30) days after Landlord’s notice of such dispute. If the parties are unable to achieve a mutually acceptable resolution within such 30-day period, then, within twenty (20) days after the expiration of such period, Landlord and Tenant shall jointly select a national firm of certified public accountants to review the dispute and to make a determination as to the matter in question within thirty (30) days after such appointment. Such firm’s determination shall be final and binding upon the parties. Such firm shall have full access to the books, records and accounts of the Tenant and the Project.
If any audit by Landlord reports an underpayment by Tenant of Rent, Tenant shall pay the amount of any such underpayment, together with the late charge owed, to Landlord within ten (10) business days after notice thereof to Tenant or, in the event of a dispute, after notice to Tenant of the resolution of such dispute by the independent firm of certified public accountants, as the case may be, and, if such underpayment amounts to more than three percent (3%) of the disputed payment for the period audited, then, notwithstanding anything to the contrary in this Section, Tenant shall pay to Landlord, within ten (10) business days after demand, Landlord’s reasonable costs and expenses in conducting such audit and exercising its rights under this Section (including a reasonable charge for the services of any employees of Lender conducting such audit and exercising its rights under this Section).
If any audit by Landlord reports an overpayment by Tenant of rent owed, Landlord shall promptly reimburse the amount of any such overpayment to Tenant within ten (10) business days after notice thereof to Landlord.
4.3 Additional Rent. Tenant also agrees to pay as rent all sums, Impositions (as defined in Section 5.1 below), costs, expenses, and other payments which Tenant in any of the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 9 1828\01\3632282.3
provisions of this Lease assumes or agrees to pay (collectively, "Additional Rent"). If Tenant fails to pay timely any Additional Rent, Landlord shall have (in addition to all other rights and remedies) all the rights and remedies provided for herein or by law in the case of non-payment of rent, subject to the terms and conditions of this Lease.
4.4 Payment of Rent. The Base Rent, Additional Rent and the City’s Pro Rata Share of Net Operating Income shall be collectively referred to as "Rent" under this Lease. All Rent shall be paid to Landlord in lawful money of the United States at the place to which notices are to be delivered to Landlord, unless Landlord designates a different address for the payment of Rent in writing to Tenant.
ARTICLE V.
TAXES, ASSESSMENTS AND OTHER CHARGES
5.1 Impositions. Tenant covenants and agrees to pay prior to delinquency, all real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the Property or the Improvements or part thereof, including, but not limited to (i) any assessment, levy, imposition or charge, in lieu of or substitution for real estate taxes, and (ii) any assessment for public improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Property or the Improvements or any part thereof or any personal property, equipment or other facility used in the operation thereof, (b) the rent or income received by Tenant from subtenants or licensees, (c) any use or occupancy of the Property or Improvements or part thereof, or (d) this transaction or, subject to the exclusions specified below, any document to which Tenant is a party creating or transferring an estate or interest in the Property or part thereof. All of the foregoing are hereinafter referred to as "Impositions."
5.1.1 Exclusions. Impositions specifically shall exclude (i) any income, franchise, gross receipts, estate, inheritance, transfer or gift tax imposed on Landlord, and (ii) any transfer tax imposed on any document to which Landlord is a party creating or transferring an estate or interest in the Property.
5.1.2 Installments. If, by law, any Imposition is payable, or may at the option of the taxpayer be paid, in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), Tenant may pay the same together with any accrued interest on the unpaid balance of such Imposition in installments as the same respectively become due and before any fine or penalty may be added thereto for the nonpayment of any such installment and interest.
Any Impositions relating to tax years that are only partially included in the Term shall be prorated between Tenant and Landlord.
5.1.3 Evidence of Payment. Upon request by Landlord, Tenant shall furnish, in form satisfactory to Landlord, evidence of payment prior to delinquency of all Impositions payable by Tenant.
5.2 Tenant Right to Contest. Tenant shall have the right before any delinquency occurs to contest or object to the amount or validity of any Imposition by appropriate legal DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 10 1828\01\3632282.3
proceedings, but such right shall not be deemed or construed in any way as relieving, modifying or extending Tenant's covenant to pay any such Imposition at the time and in the manner required by law. Any such contest shall be conducted in accordance with and subject to the requirements of Applicable Laws and otherwise in a manner that does not subject Landlord's title to the Property to foreclosure or forfeiture. Tenant shall indemnify, defend, protect and hold Landlord harmless from and against all claims, damages, losses, liabilities, costs and expenses (including without limitation attorneys' fees) incurred by Landlord as a result of any such contest brought by Tenant. During any contest of an Imposition, Tenant shall (by payment of disputed sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of Landlord's title, reversion or other interest in the Property or the Improvements.
5.3 Tenant Duty to File. Tenant shall have the duty of making or filing any exemption application, declaration, statement or report which may be necessary or advisable in connection with property tax exemption or the determination, equalization, reduction or payment of any Imposition which is or which may become payable by Tenant under the provisions of this Article V, and Landlord shall not be responsible for the contents of any such declaration, statement or report. To the extent applicable, Landlord shall (at no additional cost to Landlord) in a timely manner, upon request of the Tenant, execute such documents as may be necessary for the Property to be exempt from real property taxes pursuant to Revenue and Taxation Code Section 236.
5.4 Utilities. Tenant agrees to pay, or cause to be paid, all charges which are incurred by Tenant or which are otherwise a charge or lien against the Property or part thereof during the Term, for gas, water, electricity, light, heat or power, telephone or other communication service use, or other utility use, rendered or supplied upon or in connection with the Property. Tenant shall also obtain, or cause to be obtained, without cost to Landlord, any and all necessary permits, licenses or other authorizations required for the lawful and proper installation and maintenance upon the Property of wires, pipes, conduits and other equipment for the supply of utilities to the Project. In no event shall Landlord have any liability to Tenant, and Tenant hereby releases Landlord, from any and all claims, including but not limited to consequential damages, lost profits and similar damages that Tenant may incur as a result of any interruption, curtailment or diminishment of such utilities, other than for the active negligence or willful misconduct of Landlord. Notwithstanding the foregoing, Tenant shall have the right to challenge the amount or validity of the foregoing charges, provided that doing so does not result in the Property being subjected to any lien or other encumbrance that is not itself adequately released, insured over or otherwise satisfied by Tenant after Tenant has exhausted its efforts to contest the same in accordance with all Applicable Laws.
ARTICLE VI.
DEVELOPMENT OF THE PROPERTY
6.1 Construction of Improvements. Tenant agrees to construct on the Property a __________unit multi-family residential rental project, , together with related improvements in accordance with plans and specifications approved by the City. The Project shall include __________ (____) studio units, ______ (__) one-bedroom units, ____________, and (___) twobedroom units; (ii) ________ parking spaces; (iii) approximately _______ square feet of ground floor amenity space; (iv) common facilities including laundry facilities, and (v) recreational DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 11 1828\01\3632282.3
space. [ One (1)] of the two-bedroom residential units will be a resident manager's unit that is not subject to the Affordability Covenant. ___________ (____) of the residential units will be subject to affordability restrictions pursuant to the Affordability Covenant and Article VII hereof.
6.2 Construction Schedule. Tenant shall commence construction of the Project within sixty (60) days following the Commencement Date and shall diligently prosecute to completion the construction of the Project sufficient to allow City to issue a final certificate of occupancy within thirty-six (36) months following commencement of construction. Subject to delays caused by causes beyond Tenant’s reasonable control and without its fault or negligence, including, without limitation, acts of God, or of the public enemy, acts of the government, acts of the other party, fires, floods, epidemics/pandemics shelter-in-place/quarantine restrictions, strikes, freight embargoes, general scarcity of materials and unusually severe weather or delays of subcontractors due to such causes (“Force Majeure”) and the City's issuance of permits and approvals, Tenant's failure to commence or complete the Project in accordance with the time periods specified in this Section 6.2 shall be an Event of Default hereunder. In conjunction with completion of construction of the Project, as evidenced by the final certificate of occupancy, the Landlord shall issue to the Tenant a "certificate of completion" (the "Certificate of Completion") evidencing the Tenant's satisfaction of its obligations to construct the Project in accordance with this Lease. A form of the Certificate of Completion is attached as Exhibit C.
The Certificate of Completion shall constitute a conclusive determination that the covenants in this Lease solely with respect to the obligations of the Tenant to construct the Project (including the dates for the beginning and completing construction of the Project) have been met. The Certificate of Completion shall not constitute evidence of compliance with, or satisfaction of, any obligation of the Tenant to any holder of a deed of trust securing money loaned to finance the Project or any part thereof, shall not be deemed a notice of completion under the California Civil Code, and shall not constitute evidence of compliance with, or otherwise waive, modify, or limit any of the requirements regarding the payment of prevailing wages as set forth in this Lease. Any issuance of the Certificate of Completion by the Landlord shall not waive, limit, or otherwise impair Landlord's right to declare a default for Tenant breach or violation of any other obligations under this Lease.
6.3 Construction Standards. Tenant shall carry out and shall cause its contractors to carry out the construction of the Project and all subsequent improvements, alterations and replacements, in a first class and workmanlike fashion in accordance with the Construction Plans approved by Landlord, in compliance with all applicable state, federal, and local laws, rules, ordinances, codes, and regulations, including without limitation California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws"), and all other applicable federal and state labor laws and standards, applicable provisions of the California Public Contracts Code (if any), the City zoning and development standards, building, plumbing, mechanical and electrical codes, all other provisions of the City's Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. (all of the foregoing, collectively "Applicable Laws"). In addition to any other Applicable Laws, Tenant shall and shall cause all contractors and subcontractors to comply with the City's Living Wage Ordinance (Chapter 31 of Title 5 of the Emeryville DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 12 1828\01\3632282.3
Municipal Code) or the Minimum Wage, Paid Sick Leave and other Employment Standards (Chapter 37 of Title 5 of the Emeryville Municipal Code), as applicable.
6.4 Easements; Reciprocal Easement/Joint Use Agreement. From time to time at Tenant's request, Landlord shall, in a timely manner without undue delay, in its capacity as fee title owner to the Property, join in the grant of easements to public or private utility companies for utility service to and for the benefit of the Project. Landlord agrees to join in granting or dedicating such public or private utility or other easements as may be reasonably required for the development, maintenance, use, operation or enjoyment of the Property in accordance with this Lease; provided, however, any action taken by the Landlord, at the request of the Tenant pursuant to this Section, shall be without cost or expense to Landlord.
6.5 Protection of Landlord. Nothing in this Lease shall be construed as constituting the consent of the Landlord, express or implied, to the performance of any labor or services, or the furnishing of any materials or any specific improvements, alterations of or repairs to the Property or any part thereof, by any contractor, subcontractor, laborer or materialman such as to give rise to any right of any such contractor, subcontractor, laborer or materialman to file a mechanic's lien or other claim against the fee title to the Property. Landlord shall have the right at all reasonable times to post, and keep posted, on the Property any notices which Landlord may deem necessary for the protection of Landlord and the Property from mechanic's liens or other claims. Tenant shall give Landlord ten (10) days' prior written notice of the commencement of any work to be done on the Property to enable Landlord to post such notices. In addition, Tenant shall make, or cause to be made, timely payment of all monies due and legally owing to all persons doing any work or furnishing any materials or supplies to Tenant or any of its contractors or subcontractors in connection with the Property (subject to Tenant's right to contest the same in accordance with all Applicable Laws).
6.6 Mechanic's Liens and Stop Notices. Tenant shall not allow to be placed on the Property or any part thereof any lien or stop notice on account of materials supplied to or labor performed on behalf of Tenant. If a claim of a lien or stop notice is given or recorded affecting the Project or the Property, Tenant shall within sixty (60) days of such recording or service: (a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to Landlord that the claim of lien or stop notice will be paid or discharged. Tenant shall indemnify, defend and hold Landlord harmless from and against liability, loss, damages, costs and expenses (including reasonable attorneys' fees) incurred by or brought against Landlord for claims of lien of laborers or materialmen or others for work performed or materials or supplies furnished to Tenant or persons claiming under it.
6.7 Right of Landlord to Satisfy Liens on the Property. If Tenant fails to satisfy or discharge any lien or stop notice on the Property pursuant to and within the time period set forth in Section 6.6 above, upon not less than ten (10) days' prior written notice to Tenant, the Landlord shall have the right, but not the obligation, to satisfy any such liens or stop notices at Tenant's expense and without further notice to Tenant, and all sums advanced by Landlord for such purpose shall be payable to Landlord as Additional Rent. In such event Tenant shall be liable for and shall immediately reimburse Landlord for such paid lien or stop notice.
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Alternatively, the Landlord may require Tenant to immediately deposit with Landlord the amount necessary to satisfy such lien or claim pending resolution thereof. The Landlord may use such deposit to satisfy any claim or lien that is adversely determined against Tenant. Tenant shall file a valid notice of cessation or notice of completion upon cessation of construction work on the Property for a continuous period of thirty (30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens against the Property. The Landlord may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the Landlord deems necessary or desirable to protect its interest in the Property.
6.8 Notice of Completion. Upon completion of construction of any Improvement, Tenant shall file or cause to be filed in the Official Records a "notice of completion", in accordance with the California Civil Code, with respect to the subject work. Upon request of Landlord, Tenant shall make available to Landlord following the completion of the Improvements a full set of as-built plans for the Improvements.
6.9 Use of Plans. The contracts relating to design and construction of the Improvements executed by and between Tenant (or an affiliate of Tenant's general partner) and any architect, other design professional or any general contractor shall provide, in form and substance reasonably satisfactory to Landlord, for the assignment thereof to Landlord as security to Landlord for Tenant's performance hereunder, and Landlord shall be furnished with any such contract, together with the further agreement of the parties thereto, that if this Lease is terminated due to Tenant's default, Landlord may, at its election, use any plans and specifications to which Tenant is then entitled pursuant to any such contract upon the payment of any sums due to any party thereto, subject to any prior rights of the Project construction lender.
6.10 Cost of Construction. Tenant shall be solely responsible for all direct and indirect costs and expenses incurred in connection with the development of the Property and the construction of the Improvements. Except as expressly set forth herein, all costs of designing, developing and constructing the Improvements and the Project and compliance with the Project approvals, including without limitation all off-site and on-site improvements required by City in connection therewith, shall be borne solely by Tenant and shall not be an obligation of the Landlord. If any Applicable Laws are hereafter changed so as to require during the Term any alteration of the Improvements, or the reinforcement or any other physical modification of the Improvements, Tenant shall be solely responsible for such cost and expense.
6.11 Project Approvals. Tenant acknowledges and agrees that execution of this Agreement by Landlord does not constitute approval for the purpose of the issuance of building permits for the Project, does not limit in any manner the discretion of City in such approval process, and does not relieve Tenant from the obligation to apply for and obtain all necessary entitlements, approvals, and permits for the development of the Property, including without limitation, the approval of architectural plans, the issuance of any certificates regarding historic resources required in connection with the Project (if any), and the completion of any required environmental review (if any). Tenant covenants that it shall obtain all necessary permits and approvals which may be required by City, or any other governmental agency having jurisdiction over the Property, and shall not commence construction work on the Project prior to issuance of building permits required for such work. Landlord staff shall work cooperatively with Tenant to DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 14 1828\01\3632282.3
assist in coordinating the expeditious processing and consideration of all permits, entitlements and approvals necessary for development of the Project on the Property.
6.12 Conditions of Approval. Tenant shall develop the Property in accordance with the terms and conditions of this Agreement and in compliance with the terms and conditions of all approvals, entitlements and permits of any other governmental body or agency with jurisdiction over the Project or the Property granted or issued as of the Effective Date or hereafter granted or issued in connection with development of the Project, including without limitation, all mitigation measures imposed in connection with environmental review of the Project and all conditions of approval imposed in connection with any entitlements, approvals or permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions of approval are hereafter collectively referred to as the "Conditions of Approval").
6.13 Fees and Permits. Tenant shall have the sole responsibility for obtaining all necessary governmental permits and approvals for the construction of the Improvements, at Tenant's sole cost and expense. Landlord shall cooperate with Tenant in connection with obtaining any such governmental permits and approvals. Tenant shall be solely responsible for, and shall promptly pay when due, all customary and usual fees and charges of City and all other agencies with jurisdiction over development of the Property in connection with obtaining building permits and other approvals for the Project, including without limitation, those related to the processing and consideration of amendments, if any, to the current entitlements, any related approvals and permits, environmental review, architectural review, historic review, and any subsequent approvals for the Project.
6.14 Construction Plans. Tenant has submitted, and as of the Effective Date, City's Building Department has approved, detailed construction plans for the Project (the "Construction Plans"). As used herein Construction Plans means all construction documents upon which Tenant and Tenant's contractors shall rely in developing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and signage plans and specifications, materials specifications, final elevations, and building plans and specifications. The Construction Plans and any modifications thereto shall be based upon the scope of development set forth herein and the DDA, the site plan and the elevations approved by the Landlord, and upon the approvals issued by the City for the Project, and shall not materially deviate therefrom without the express written consent of Landlord and City.
6.15 Construction Pursuant to Plans. Tenant shall develop the Project in accordance with the approved Construction Plans, the Conditions of Approval, and all other permits and approvals granted by the City pertaining to the Project. Tenant shall comply with all directions, rules and regulations of any fire marshal, health officer, building inspector or other officer of every governmental agency having jurisdiction over the Property or the Project. Each element of the work shall proceed only after procurement of each permit, license or other authorization that may be required for such element by any governmental agency having jurisdiction. All design and construction work on the Project shall be performed by licensed contractors, engineers or architects, as applicable.
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6.16 Change in Construction Plans. If Tenant desires to make any material change in the approved Construction Plans, Tenant shall submit the proposed change in writing to the Landlord for its written approval, which approval shall not be unreasonably withheld or delayed if the Construction Plans, as modified by any proposed change, conform to the requirements of this Agreement and any approvals issued by City after the Effective Date. Written authorization from the Landlord must be obtained before any of the following changes, additions, or deletions in work for the Project may be performed: (i) any change in the work the cost of which exceeds Two Hundred Fifty Thousand Dollars ($250,000); or (ii) any set of changes in the work the cost of which cumulatively exceeds Two Million Five Hundred Thousand Dollars ($2,500,000); or (iii) any material change in building materials or equipment, specifications, or the structural or architectural design or appearance of the Improvements as provided for in the plans and specifications approved by the Landlord. Unless Landlord notifies Tenant in writing that a proposed change is rejected or that Landlord requests a modification to such proposed change within twenty (20) days, it shall be deemed approved. If rejected, the previously approved Construction Plans shall continue to remain in full force and effect. Any change in the Construction Plans required in order to comply with applicable codes shall be deemed approved, so long as such change does not substantially nor materially change the architecture, design, function, use, or amenities of the Project as shown on the latest approved Construction Plans. Nothing in this Section is intended to or shall be deemed to modify the City's standard plan review procedures.
6.17 Rights of Access. For the purpose of ensuring that the construction of the Project is completed in compliance with this Agreement, Tenant shall permit representatives of the Landlord to enter upon the Property following 24 hours written notice (except in the case of emergency in which case such notice as may be practical under the circumstances shall be provided), provided that Landlord shall not have the right to enter any tenant occupied unit upon less than 72 hours written notice and shall not unnecessarily or unreasonably disturb lawful occupants of the Project. Such rights are in addition to any right to enter and inspect the City may have as a governmental authority.
6.18 Landlord Disclaimer. Tenant acknowledges that the Landlord is under no obligation, and Landlord does not undertake or assume any responsibility or duty to Tenant or to any third party, to in any manner review, supervise, or inspect the progress of construction or the operation of the Project. Tenant and all third parties shall rely entirely upon its or their own supervision and inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters relating to the construction and operation of the Project. Any review or inspection undertaken by the Landlord is solely for the purpose of determining whether Tenant is properly discharging its obligations under this Agreement, and shall not be relied upon by Tenant or any third party as a warranty or representation by the Landlord as to the quality of the design or construction of the improvements or otherwise.
6.19 Defects in Plans. Landlord shall not be responsible to Tenant or to any third party for any defect in the Construction Plans or for any structural or other defect in any work done pursuant to the Construction Plans. Tenant shall indemnify, defend (with counsel approved by Landlord) and hold harmless the Indemnitees from and against all Claims arising out of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects in any DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 16 1828\01\3632282.3
work done pursuant to the Construction Plans whether or not any insurance policies shall have been determined to be applicable to any such Claims. Tenant's indemnification obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement. It is further agreed that Landlord does not, and shall not, waive any rights against Tenant which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by Landlord, or Tenant's deposit with Landlord of any of the insurance policies described in this Agreement. Tenant's indemnification obligations pursuant to this Section shall not extend to Claims arising due to the gross negligence or willful misconduct of the Indemnitees.
6.20 Equal Opportunity. There shall be no discrimination on the basis of race, color, religion, creed, sex, sexual orientation, gender identity, marital status, veteran status, ancestry, national origin, age or disability in the hiring, firing, promoting or demoting of any person engaged in construction work on the Property, and Tenant shall direct its contractors and subcontractors to refrain from discrimination on such basis.
6.21 Prevailing Wage Requirements.
6.21.1 Federal Requirements. To the full extent required by applicable federal law, Tenant and its contractors and agents shall comply with federal Davis Bacon requirements (if applicable), and shall be responsible for carrying out the requirements of such provisions. If applicable, Tenant shall submit to Landlord a plan for monitoring payment of prevailing wages and shall implement such plan at Tenant's expense.
6.21.2 State Requirements.
6.21.2.1 Tenant shall and shall cause its contractors and subcontractors to pay prevailing wages in the construction of the Improvements or any Major Additional Improvements, defined below, as those wages are determined pursuant to Labor Code Sections 1720 et seq. and the implementing regulations of the Department of Industrial Relations (the "DIR"), to employ apprentices as required by Labor Code Sections 1777.5 et seq., and the implementing regulations of the DIR and comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seq., 1810-1815 and implementing regulations of the DIR.
6.21.2.2 All calls for bids, bidding materials and the construction contract documents for the Improvements or any Major Additional Improvements must specify that:
(i) No contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the Improvements or any Major Additional Improvements unless registered with the DIR pursuant to Labor Code Section 1725. 5. (ii) The Improvements or any Major Additional Improvements are subject to compliance monitoring and enforcement by the DIR.
6.21.2.3 Tenant, as the "awarding body", shall register the Improvements or the Major Additional Improvements as required by Labor Code Section 1773. 3 as set forth in the DIR's online form PWC-100 within two (2) days after entering into the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 17 1828\01\3632282.3
construction contract and provide evidence of such registration to the City within two (2) days of such registration and any additional registration reporting to the DIR.
6.21.2.4 In accordance with Labor Code Sections 1725. 5 and 1771.1, Tenant shall require that its contractors and subcontractors be registered with the DIR, and maintain such registration as required by the DIR.
6.21.2.5 Pursuant to Labor Code Section 1771. 4, the Improvements and any Major Additional Improvements are subject to compliance monitoring and enforcement by the DIR. Tenant shall and shall require its contractors and subcontractors to submit payroll and other records electronically to the DIR pursuant to Labor Code Sections 1771.4 and 1776 et seq, or in such other format as required by the DIR.
6.21.2.6 Tenant shall and shall cause its contractors and subcontractors to keep and retain such records as are necessary to determine if prevailing wages have been paid as required pursuant to Labor Code Sections 1720 et seq. , and that apprentices have been employed as required by Labor Code Section 1777.5 et seq., and shall, from time to time upon the request of Landlord provide to Landlord such records and other documentation reasonably requested by Landlord.
6.21.2.7 Tenant shall and shall cause its respective contractors and subcontractors to comply with all other applicable provisions of Labor Code, including without limitation, Labor Code Sections 1720 et seq. , 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and implementing regulations of the DIR in connection with construction of the Improvements or any Major Additional Improvements or any other work undertaken or in connection with the Property.
6.21.2.8 Copies of the currently applicable current per diem prevailing wages are available from the DIR website, www. dir.ca.gov. Tenant shall cause its respective contractors to post the applicable prevailing rates of per diem wages at the Property site and to post job site notices, in compliance with Title 8 California Code of Regulations 16451(d) or as otherwise as required by the DIR.
6.21.2.9 Tenant shall indemnify, hold harmless and defend (with counsel reasonably selected by the City), to the extent permitted by applicable law, the City, its councilmembers, commissioners, officials, employees, volunteers, and agents, 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 Tenant, or its contractors or subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq. , to hire apprentices in accordance with Labor Code Sections 1777.5 et seq., or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the DIR in connection with the work performed pursuant to this Agreement. The provisions of this Section shall survive termination of this Agreement.
6.22 Performance and Payment Bonds. Prior to commencement of construction work on the Project, Tenant shall cause its general contractor to deliver to the Landlord copies of DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 18 1828\01\3632282.3
payment bond(s) and performance bond(s) issued by a reputable insurance company licensed to do business in California, each in a penal sum of not less than one hundred percent (100%) of the scheduled cost of construction of the Project. The bonds shall name the Landlord as an obligee.
In lieu of such performance and payment bonds, subject to Landlord's approval of the form and substance thereof, Tenant may submit evidence satisfactory to the Landlord of the contractor's ability to commence and complete construction of the Project in the form of an irrevocable letter of credit, pledge of cash deposit, certificate of deposit, or other marketable securities held by a broker or other financial institution, with signature authority of the Landlord required for any withdrawal, or a completion guaranty in a form and from a guarantor acceptable to Landlord.
Such evidence must be submitted to Landlord in approvable form in sufficient time to allow for Landlord's review and approval prior to the scheduled construction start date.
6.23 Insurance Requirements. Tenant shall maintain and shall cause its contractors to maintain all applicable insurance coverage specified in Article IX.
6.24 Additional Construction on Property.
6.24.1 General Standards. Any additional building erected on any portion of the Property permitted under this Lease (other than the initial construction of the Improvements), and any alteration, construction, remodeling, reconstruction or repair work undertaken on or within any existing building on any portion of the Property shall at all times be of high-quality construction and architectural design consistent with the quality standards of the initial Improvements. Subject to Section 6.24.3 below, all Major Additional Improvements shall be diligently prosecuted, and completed: (1) only after the Tenant has obtained the Landlord's prior written approval for such additional construction, (2) without cost to the Landlord, (3) in good and workmanlike manner, (4) in accordance with any plans and specifications approved by the Landlord pursuant to subsection 6.24.2 below, (5) by a licensed contractor reasonably acceptable to the Landlord, pursuant to a construction contract in a form approved by the Landlord that, among other things, includes the City Contract Addendum (as defined in, and attached to, the DDA). The Tenant shall secure all necessary permits and approvals for such expansion, prior to submitting any construction plans to the Landlord under this Section.
6.24.2 Approval of Plans. Prior to commencing construction of any Major Additional Improvements (as defined below), the Tenant shall submit to the Landlord for the Landlord's approval plans and specifications for such work which, to the extent relevant, shall contain the same information as set forth in the Construction Plans. The Landlord shall approve or disapprove (in the Landlord's reasonable discretion) such plans and specifications in writing within sixty (60) days of submission. Any disapproval shall state with specificity the reasons for such disapproval.
If rejected by the Landlord in whole or in part, the Tenant shall submit new or corrected construction plans within thirty (30) days of notification of the Landlord's disapproval. The Landlord shall then have thirty (30) days to review and approve the Tenant's new or corrected construction plans. The Landlord's failure to either approve or disapprove the construction plans within such thirty (30) day period shall be deemed approval. The provisions of this Section relating to time periods for approval, rejection, or resubmission of new or corrected construction plans shall continue to apply until construction plans have been approved by the Landlord (or DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 19 1828\01\3632282.3
deemed approved) at which time they shall be attached to and become a part of this Lease as if fully set forth herein. Only upon approval of the construction plans shall this condition be met.
In the event that prior to or during the course of construction of any Major Additional Improvements, the Tenant desires to make any material change in the Major Additional Improvements from that contemplated in the approved plans and specifications, the Tenant shall, prior to making such change, submit to the Landlord such plans or other information which document the desired change. The Landlord shall approve or disapprove such change within thirty (30) days of its submission to the Landlord. Any disapproval shall state with reasonable specificity the basis for such disapproval. Unless such change is approved, the previously approved plans and specifications shall remain in effect.
6.24.3 Definition of Major Additional Improvements. "Major Additional Improvements" means any of the following: (1) any new buildings, structures or outdoor facilities to be located on the Property; (2) any substantial alterations, remodeling or rehabilitation of existing buildings, structures, or remodeling or rehabilitation of existing buildings, structures, or outdoor facilities; (3) construction of additional spaces or facilities, (4) any other alteration, construction, remodeling or reconstruction with a cost in excess of Two Hundred Fifty Thousand Dollars ($250,000); or (5) a change that will reduce the number of bedrooms within any residential unit. Alteration, construction, remodeling, or reconstruction not constituting a Major Additional Improvement shall not require the Landlord's consent or approval of plans and specifications, but must be designed and performed in accordance with the General Standards set forth in subsection 6.24.1 above.
ARTICLE VII.
USE OF THE PROPERTY
7.1 Permitted Uses. Tenant may use the Property for the construction and operation of the Project and for no other purpose without the prior written consent of Landlord. Tenant shall not do or permit any activity on or about the Property that constitutes a public or private nuisance. At Tenant's sole expense, Tenant shall procure and maintain all governmental licenses or permits required for the proper and lawful conduct of Tenant's activities conducted on the Property.
7.2 Affordability Requirements. For the period of time commencing on the Commencement Date and expiring on the Expiration Date as provided in Section 3.1 hereof, no fewer than________ (___) of the dwelling units in the Project shall be both rent-restricted and occupied (or if vacant, available for occupancy) by eligible households of low-, very low-, and extremely low-income pursuant to and in accordance with the terms and conditions set forth in the Affordability Covenant.
7.3 Preference for Emeryville Residents, Employees, EUSD Attendees and Displacees from City Regulated Housing. In order to ensure that there is an adequate supply of affordable housing within the City of Emeryville for residents, employees of businesses within the City, or households with one or more children attending the Emery Unified School District and to address potential displacement of households occupying City regulated inclusionary rental DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 20 1828\01\3632282.3
units for Very Low Income Households (as defined in the Affordability Covenant) being converted to for-sale condominiums, to the extent permitted by law and consistent with the program regulations for funding sources used for development of the Project, Tenant shall give a preference in the rental of the residential units in the Project to (i) households being displaced from City regulated inclusionary rental units for Very Low Income Households (as defined in the Affordability Covenant) as a result of the unit being converted to a for-sale condominium and (ii) eligible households that include at least one member who lives or works in the City of Emeryville, or has one or more children attending a school within the Emery Unified School District. In the event there are fewer eligible persons available than there are units, units shall be made available to members of the general public. Notwithstanding the foregoing, in the event of a conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of 1986 or any requirement of the United State Department of Housing and Urban Development ("HUD") applicable to the Project, the provisions of such Section 42 or the requirements of HUD shall control. The preferences set forth in this Section 7.3 shall not be applicable at any time that the Project is subject to a Regulatory Agreement from the County of Alameda related to HOME funding and shall not be applicable to any Affordable Unit subject to Project-Based Rental Assistance.
7.4 Manager's Unit. [One (1)] two-bedroom dwelling unit in the Project shall be used as a resident manager's unit, and shall be exempt from the occupancy and rent restrictions set forth in Sections 7.2 and 7.3 of this Lease.
7.5 No Condominium Conversion. Tenant shall not convert the Project to condominium or cooperative ownership or sell condominium or cooperative conversion rights to the Project during the Term of this Lease.
7.6 Obligation to Refrain from Discrimination. Tenant shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, gender identity, disability, age, marital status, ancestry, veteran status, or national origin of any person.
Tenant covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Tenant or any person claiming under or through Tenant 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, of, or for the Property or part thereof. Tenant shall include such provision in all deeds, leases, contracts and other instruments executed by Tenant, and shall enforce the same diligently and in good faith.
All deeds, leases or contracts made or entered into by Tenant, its successors or assigns, as to any portion of the Property or the improvements located thereon shall contain the following language:
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(a) In Deeds, the following language shall appear:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land."
"(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(b) In Leases, the following language shall appear:
"(1) The lessee herein covenants by and for the lessee and lessee's heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased." "(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(c) In Contracts, the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 22 1828\01\3632282.3
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land."
7.7 Management and Operation of the Project; Compliance with Laws. Tenant agrees to operate, maintain and manage the Property in first-class manner, subject to incidental wear and tear. Tenant, at its sole cost and expense, shall comply with all Applicable Laws pertaining to the use, operation, occupancy and management of the Property. Tenant shall not itself, and shall not knowingly permit any subtenant to use the Property or the Improvements for any unlawful purpose and shall not itself, and shall not knowingly permit any subtenant to, perform, permit or suffer any act of omission or commission upon or about the Property or the Improvements which would result in a nuisance or a violation of Applicable Law. Landlord shall have the right to review and approve the qualifications of any management entity proposed by Tenant for the Project. Landlord hereby approves EAH, as the initial management entity for the Project; provided, however, any replacement or substitution of any other entity as the property manager shall remain subject to the Landlord's prior written approval. Any contracting of management services by Tenant shall not relieve Tenant of its primary responsibility for proper performance of management duties.
7.8 Tenant Right to Contest. Tenant shall have the right to contest by appropriate proceedings, in the name of Tenant, and without cost or expense to Landlord, the validity or application of any Applicable Law. If compliance with any Applicable Law may legally be delayed pending the prosecution of any such proceeding without the incurrence of any lien, charge or liability against the Property or Tenant's interest therein, and without subjecting Tenant or Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant may delay compliance therewith until the final determination of such proceeding. Tenant shall indemnify, defend, protect and hold Landlord harmless from and against all claims, damages, losses, liabilities, costs and expenses (including without limitation reasonable attorneys' fees) incurred by Landlord as a result of any such contest brought by Tenant.
7.9 Hazardous Materials.
7.9.1 Obligations of Tenant. Tenant hereby covenants and agrees that:
7.9.1.1 Tenant shall not cause or permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Material or otherwise knowingly permit the presence or release of Hazardous Material in, on, under, about or from the Property or the Project with the exception of limited amounts of cleaning supplies and other materials customarily used in construction, use or maintenance of residential/mixed-use properties similar in nature to the Project and used, stored and disposed of in compliance with Environmental Laws.
7.9.1.2 Tenant shall keep and maintain the Property and each portion thereof in compliance with, and shall not cause or permit the Project or the Property or any portion of either to be in violation of, any Environmental Laws.
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7.9.1.3 Upon receiving actual knowledge of the same, Tenant shall within five (5) days advise Landlord in writing of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Tenant, or the Property pursuant to any applicable Laws; (ii) any and all claims made or threatened by any third party against the Tenant or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Material; (iii) the presence or release of any Hazardous Material in, on, under, about or from the Property; or (iv) Tenant's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project that may in any way affect the Property pursuant to any Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as "Hazardous Materials Claims". The Landlord shall have the right to join and participate in, at its own expense, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claim.
7.9.1.4 Tenant shall promptly take all actions at its sole expense as are necessary to remediate the Property as required by law; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld.The Parties understand that any remediation required by Tenant will be based on a “brownfield” cleanup model and designed to remediate impacted areas at the Property to a level consistent with the Development and that such remediation will not remove all Hazardous Materials from the Propety. As such, any such remediation may include and rely upon the use of long-term engineering and institutional controls following remediation for areas with residual impacts. The City understands that such controls may include capping, vapor intrusion mitigation, an ongoing soil or operation and maintenance plan for the Property, and recordation of a deed restriction (also known as a land use covenant or “LUC”) establishing certain limitations and obligations with respect to portions of the Property. The City agrees to cooperate with Tenant, at no cost to Tenant, as may be required to obtain and record any such LUC.
7.9.1.5 Without the Landlord's prior written consent, Tenant shall not enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claim.
7.9.2 Environmental Indemnity. From and after the Commencement Date, Tenant shall indemnify, defend and hold Landlord and Indemnitees harmless from and against any demand, lawsuit, liability, obligation, claim, damage, fine, penalty, expense, cost, or cause of action, whether at law or in equity, or any Hazardous Materials Claims resulting from, arising out of, or based upon the release, use, generation, discharge, storage, transporation or disposal of any Hazardous Materials on, under, in or about the Property, or the alleged violation, of any Environmental Laws with respect to such Hazardous Materials, no matter when occurred, except that the foregoing indemnity obligation shall not apply to any matters that arise out of the active negligence or willful misconduct of Landlord or any Indemnitees. This indemnity shall include any damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the environment. Tenant's indemnification obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement.
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7.9.3 No Limitation. Tenant hereby acknowledges and agrees that Tenant's duties, obligations and liabilities under this Agreement are in no way limited or otherwise affected by any information the Landlord may have concerning the Property and/or the presence in, on, under or about the Property of any Hazardous Material, whether the Landlord obtained such information from the Tenant or from its own investigations, unless such information was known to the Landlord at the time of execution of this Agreement but not disclosed to Tenant.
7.9.4 Definitions.
7.9.4.1 "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including any material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under sections 25115, 25117 or 25122.7, or listed pursuant to section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a "hazardous substance" under section 25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum, or any fraction thereof; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous substances" pursuant to section 311 of the Clean Water Act (33 U.S.C. § 1317); (x) defined as a "hazardous waste" pursuant to section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, (42 U.S.C. § 6903); or (xi) defined as "hazardous substances" pursuant to section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
7.9.4.2 "Environmental Laws" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees, of the United States, the State of California, the County of Alameda, City, any other political subdivision in which the Site is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, Tenant, the Site, the Improvements or Hazardous Materials, including all applicable state labor laws and standards (including prevailing wages, as applicable); all applicable public contracts requirements, zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City Municipal Code (including City's Living Wage Ordinance in section 5-31.01, et seq. thereof, as applicable), and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. section 12101, et seq., Government Code section 4450, et seq., Government Code section 11135, et seq., and the Unruh Civil Rights Act, Civil Code section 51, et seq.
ARTICLE VIII.
SURRENDER AND RIGHT TO REMOVE
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8.1 Ownership During Term.
8.1.1 Improvements. During the Term of this Lease the Improvements shall, subject to the terms of this Lease, be and remain the property of Tenant.
8.1.2 Personal Property. All personal property, furnishings, fixtures and equipment installed by Tenant in, on or around the Property which (i) are not attached to the Property so as to cause substantial damage upon removal, and (ii) are not necessary for the normal operation and occupancy of the Project, shall be the personal property of Tenant (the "Personal Property"). At any time during the Term, Tenant shall have the right to remove the Personal Property provided Tenant shall repair any damage caused by the removal of such Personal Property. Personal Property shall not include any portion or part of major building components or fixtures necessary for the operation of the basic building systems (such as elevators, escalators, chillers, boilers, plumbing, electrical systems, lighting, sanitary fixtures and HVAC systems) which shall be deemed a part of the Improvements.
8.2 Ownership at Lease Termination.
8.2.1 Improvements. Upon the Lease Termination, the Improvements and all stoves, refrigerators and dishwashers installed in the residential units (the "Appliances") shall unconditionally be and become the property solely of Landlord, and no compensation therefor shall be due or paid by Landlord to Tenant for any part thereof, and this Lease shall operate as a conveyance and assignment thereof. Upon Lease Termination, Tenant shall surrender to Landlord the Property, the Improvements and the Appliances in good order, condition and repair, reasonable wear and tear excepted, free and clear of all liens, claims and encumbrances other than those matters existing prior to the Effective Date or matters subsequently created or consented to by Landlord. Upon Lease Termination, at Landlord's request Tenant agrees to execute, acknowledge and deliver to Landlord such recordable instruments as are necessary or desirable to confirm the termination of the Lease and all Tenant's rights hereunder and to perfect Landlord's right, title and interest in and to the Property, the Improvements and the Appliances.
8.2.2 Personal Property. With the exception of the Appliances, any Personal Property may be removed prior to Lease Termination by Tenant; provided, however, the removal shall be with due diligence, and without expense to Landlord, and any part of the Property damaged by such removal shall be promptly repaired by Tenant. Any Personal Property which remains on the Property for thirty (30) days after the Lease Termination may, at the option of Landlord, be deemed to have been abandoned and either may be retained by Landlord as its property or may be disposed of in accordance with Applicable Law. If requested by Landlord within a reasonable time but not less than six months prior to the termination of this Lease, upon Lease Termination Tenant shall, at Tenant's sole cost and expense, remove all Personal Property, or portions thereof designated by Landlord.
8.3 Condition of Improvements at Lease Termination. Landlord has entered this Lease in reliance on the fact that, at Lease Termination, Landlord will receive from Tenant the Improvements in good condition and repair, reasonable wear and tear excepted and reflecting the age of the Improvements at such time and Landlord's willingness during the Term of this Lease to consent to the encumbrance of Tenant's interest in the Property for construction financing. At DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 26 1828\01\3632282.3
any time during the Term, upon reasonable advance notice and during normal business hours, Landlord may inspect the Property and Improvements to confirm that they are being properly maintained as required herein. Following its inspection, Landlord may deliver to Tenant written notification of any portions of the Property or Improvements which Landlord has determined are not being properly maintained and Tenant shall promptly comply with the provisions of this Lease regarding such items; provided, the failure of Landlord to inspect or to notify Tenant of any default hereunder shall not be a waiver of Landlord's right to enforce Tenant's maintenance and repair obligations hereunder.
8.4 Survival. The provisions of this Article VIII shall survive Lease Termination.
ARTICLE IX.
INSURANCE
9.1 Insurance. Tenant, at its sole cost and expense, commencing upon the Effective Date and continuing throughout the Term (except as otherwise specified below) shall keep and maintain in full force and effect policies of insurance pursuant to and in accordance with the requirements set forth in this Article IX. Landlord shall review and update the insurance requirements no more often than every five (5) years during the term of this Lease and shall provide to Tenant written notice of the updated insurance requirements.
9.1.1 Tenant and all contractors working on behalf of Tenant on the Project shall maintain a commercial general liability policy in the amount of One Million Dollars ($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate, together with Three Million Dollars ($3,000,000) excess liability coverage, or such other policy limits as Landlord may require in its reasonable discretion, including coverage for bodily injury, property damage, products, completed operations and contractual liability coverage. Such policy or policies shall be written on an occurrence basis and shall name the Indemnitees as additional insureds.
9.1.2 Tenant and all contractors working on behalf of Tenant shall maintain a comprehensive automobile liability coverage in the amount of Two Million Dollars ($2,000,000), combined single limit including coverage for owned and non-owned vehicles and shall furnish or cause to be furnished to Landlord evidence satisfactory to Landlord that Tenant and any contractor with whom Tenant has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. Automobile liability policies shall name the Indemnitees as additional insureds.
9.1.3 Upon commencement of construction work and continuing until issuance of the final certificate of occupancy or equivalent for the Project, Tenant and all contractors working on behalf of Tenant shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming Landlord as loss payee.
9.1.4 Tenant shall maintain property insurance covering all risks of loss (other than earthquake), including flood (if required) for 100% of the replacement value of the Project with deductible, if any, in an amount acceptable to Landlord, naming Landlord as loss payee.
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9.1.5 Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive automobile policies required hereunder shall name the Indemnitees as additional insureds.
Builder's Risk and property insurance shall name Landlord as loss payee as its interest may appear pursuant to this Lease.
9.1.6 Prior to commencement of construction work, Tenant shall furnish Landlord with certificates of insurance in form acceptable to Landlord evidencing the required insurance coverage and duly executed endorsements evidencing such additional insured status.
The certificates shall contain a statement of obligation on the part of the carrier to notify Landlord of any material adverse change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material adverse change, cancellation, termination or non-renewal.
9.1.7 If any insurance policy or coverage required hereunder is canceled or reduced, Tenant shall, within fifteen (15) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with Landlord a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Landlord may, without further notice and at its option, procure such insurance coverage at Tenant's expense, and Tenant shall promptly reimburse Landlord for such expense upon receipt of billing from Landlord. Failure to file such certificate shall also constitute an event of default.
9.1.8 Coverage provided by Tenant shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by Landlord, and the policies shall so provide. The Tenant's full insurance limit, including limits that exceed the requirements of this Lease shall be available to cover claims against the Landlord. The insurance policies shall contain a waiver of subrogation for the benefit of the Landlord. Tenant shall furnish the required certificates and endorsements to Landlord prior to the commencement of construction of the Project, and shall provide Landlord with certified copies of the required insurance policies upon request of Landlord.
ARTICLE X.
INDEMNIFICATION BY TENANT
Tenant shall indemnify, defend (with counsel approved by Landlord), protect and save Landlord and its elected and appointed officials, officers, employees, and agents (all of the foregoing, collectively the "Indemnitees") harmless from and against any and all claims, liabilities, losses, damages, fines, penalties, demands, suits, actions, causes of action, judgments, judicial or administrative proceeding, deficiency, order, costs and expenses (including without limitation reasonable attorneys' fees and court costs) (all of the foregoing, collectively "Claims") which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to: the construction, renovation, use, operation, or management of, the Property or the Improvements; any breach or default on the part of Tenant in the performance of any covenant or agreement to DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 28 1828\01\3632282.3
be performed by Tenant pursuant to this Lease; any negligence of Tenant or any of its agents, contractors, employees, sublessees or licensees; any accident, injury or damage caused to any person in or on the Property or Improvements; the furnishing of labor or materials by Tenant; or the failure to comply with Applicable Laws (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781); whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that Landlord does not and shall not waive any rights against Tenant which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by Landlord, or Tenant's deposit with Landlord of any of the insurance policies described in this Agreement. Tenant's indemnification obligations set forth in this Section shall not apply to Claims arising solely from the gross negligence or willful misconduct of the Indemnitees. Tenant's obligation to indemnify, as set forth in this Section, are in addition to, and shall not be limited by, any additional obligation to indemnify the Landlord pursuant to any other agreement between the Parties, or any approval provided by the Landlord to the Tenant in connection with the Project in the Landlord's capacity as a governmental authority. The provisions of this section shall survive expiration of the Term or other termination of this Lease, and shall remain in full force and effect and are not limited by the amount of insurance as may be required.
ARTICLE XI.
DAMAGE AND DESTRUCTION
11.1 Damage or Destruction. In the event of any damage to or destruction of the Improvements during the Term for which insurance coverage is required under this Lease, Tenant shall restore and rebuild the Improvements as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in Applicable Law and the availability of insurance proceeds for such purpose. Tenant shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible. Unless Landlord agrees otherwise in writing, Tenant shall commence reconstruction of the Improvements within one hundred and eighty (180) days following the date upon which insurance proceeds are made available for such work. Tenant shall be deemed to have commenced reconstruction when Tenant engages an architect for such work. Upon the occurrence of damage or destruction, all insurance proceeds paid in respect of such damage or destruction shall be applied to the payment of the costs of the restoration and rebuilding required to be performed by Tenant pursuant to this Lease. The insurance proceeds shall be held in trust by a financial institution agreed upon by Landlord and Tenant (the "Insurance Trustee"), with the costs of such trust to be a first charge against the insurance proceeds. After the completion of the restoration and rebuilding of the Improvements, any remaining insurance proceeds shall be paid to Tenant and Tenant shall be entitled to retain the same.
11.1.1 Mortgagee Protection. Notwithstanding the foregoing or any other provision to the contrary in this Article XI, if a Leasehold Mortgagee requires insurance proceeds payable with respect to a casualty to be paid to it or its successors or assigns pursuant to the terms of its Leasehold Mortgage, the insurance proceeds shall be delivered to such Leasehold Mortgagee to be applied by such Leasehold Mortgagee in accordance with such Leasehold Mortgage. No settlement with the issuer of any insurance policy purchased by the Tenant shall be made without the mutual agreement of the Landlord and Tenant and any Leasehold DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 29 1828\01\3632282.3
Mortgagee. Landlord and Tenant each agree to execute, acknowledge and deliver to the other any instruments that may be reasonably required to effectuate or facilitate this provision.
11.2 Rebuilding by Tenant. The funds held by the Insurance Trustee shall be held in trust and shall be applied to the cost of rebuilding. Any funds held by the Insurance Trustee following final completion of rebuilding and payment of all costs and expenses thereof and removal of any liens related thereto, shall be paid to Tenant.
11.3 Disbursement of Funds. The Insurance Trustee shall disburse funds only on a periodic basis approved by Landlord and Tenant and only upon receipt of invoices and other documentation, certified as correct by Tenant's architect, if an architect is required for the repair, evidencing satisfactory completion of the work for which payment is requested (a "Payment Request"). Further, the Insurance Trustee shall not disburse any funds unless the payment request is accompanied by (a) an executed conditional lien release in form complying with California law relating to all labor and materials described in the Payment Request and (b) an executed final lien release in form complying with California law releasing all claims for labor and materials described in the immediately preceding Payment Request.
11.4 Notice Required. In the event of material damage to or destruction of the Improvements, or any part thereof, Tenant shall promptly give Landlord and Leasehold Mortgagee notice of such occurrence and take all actions reasonably required to protect against hazards caused by such damage or destruction. For purposes of this Article XI damage or destruction shall be deemed to be material if the estimated cost to repair equals or exceeds Two Hundred Fifty Thousand Dollars ($250,000).
11.5 Removal of Debris. If this Lease shall terminate following the occurrence of damage to or destruction of the Improvements and at a time when Tenant shall not have restored and rebuilt the Improvements, then Tenant shall, at its cost and expense after the use of any insurance proceeds released for such purpose, remove the debris and damaged portion of Improvements (including without limitation all foundations) and restore the Property and Improvements or the applicable portion thereof to a neat, clean and safe condition.
11.6 Tenant's Right to Terminate. Notwithstanding any contrary provision of this Article XI, Tenant shall have the option to terminate this Lease and be relieved of the obligation to restore the Improvements where all or substantially all of the Improvements are substantially damaged or destroyed and such damage or destruction resulted from a cause not insured against by Tenant nor required to be insured against by Tenant under this Lease (an "Uninsured Loss"), and where all of the following occur:
(i) No more than one hundred twenty (120) days following the Uninsured Loss, Tenant shall notify Landlord of its election to terminate this Lease. To be effective, such notice must include the written consent of all Leasehold Mortgagees and partners of Tenant to Tenant's exercise of the option to terminate set forth in this Section 11.6. Landlord shall be entitled to rely upon the foregoing notice and certification as conclusive evidence that Tenant has obtained the consent of all Leasehold Mortgagees to Tenant's exercise of its option to terminate this Lease.
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(ii) No more than sixty (60) days following the giving of the notice required by the preceding paragraph (i) or such longer time as may be reasonable under the circumstances, Tenant shall, at Tenant's expense after the use of any insurance proceeds released for such purpose, remove all debris and other rubble from the Property, secure the Property against trespassers, and at Landlord's election, remove all remaining Improvements on the Property.
(iii) No more than thirty (30) days following Tenant's
termination notice, Tenant shall deliver to Landlord a quitclaim deed to the Property and Improvements in recordable form, in form and content satisfactory to Landlord and/or with such other documentation as may be reasonably requested by Landlord or any title company on behalf of Landlord, terminating Tenant's interest in the Property and Improvements.
ARTICLE XII.
LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
If Tenant shall at any time fail to pay any Imposition or other charge payable by Tenant to a third party as required by this Lease within the time permitted (which shall be deemed to include any time to contest the same that is permitted by Applicable Laws), or to pay for or maintain any of the insurance policies required pursuant to Article IX within the time therein permitted, or to make any other payment or perform any other act on its part to be made or performed hereunder within the time permitted by this Lease, then after thirty (30) days' written notice to Tenant and after satisfying all other notice requirements set forth in this Lease respecting Leasehold Mortgagees and partners of Tenant and such parties' failure to timely cure (or as applicable, commence to cure) the same, and without waiving or releasing Tenant from any obligation of Tenant hereunder, Landlord may (but shall not be required to): (i) pay such Imposition or other charge payable by Tenant; (ii) pay for and maintain such insurance policies required pursuant to Article IX; or (iii) make such other payment or perform such other act on Tenant's part to be made or performed under this Lease; and Landlord may enter upon the Property and Improvements for such purpose and take all such action thereon as may be reasonably necessary therefor.
All sums paid by Landlord and all costs and expense incurred by Landlord in connection with the performance of any such act (together with interest thereon at the Default Rate from the respective dates of Landlord's making of each such payment) shall constitute additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. The "Default Rate" shall mean interest calculated at an annual rate equal to the rate of interest most recently announced by Bank of America N.A. (or its successor bank) at its San Francisco office as its "reference rate" but in no event more than the maximum rate of interest permitted by law.
If Bank of America or its successor no longer issues a "reference rate," the most comparable rate of the largest bank with its corporate headquarters in California shall be used. If there is no such bank or comparable rate, then the Default Rate shall be the highest legal rate of interest that may be charged at that time.
ARTICLE XIII.
REPAIRS, CHANGES, ALTERATIONS AND NEW CONSTRUCTION
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13.1 Repairs and Maintenance. Tenant covenants and agrees, throughout the Term, without cost to Landlord, to take good care of the Property and to keep the same in good order and condition. Tenant shall promptly, at Tenant's own cost and expense, make all necessary repairs, interior and exterior, structural and nonstructural, ordinary as well as extraordinary, whether contemplated or not contemplated at the time of execution of this Lease, and shall keep the Property in a well maintained, safe, clean and sanitary condition. The term "repairs" shall include replacements or renewals when necessary, and all such repairs made by Tenant shall be at least equal in quality and class to the original work. Tenant waives any rights created under any law now or hereafter in force to make repairs to the Improvements at Landlord's expense.
Tenant shall keep and maintain all portions of the Property and the sidewalks adjoining the same in a clean and orderly condition, free of accumulation of dirt, rubbish, and graffiti. From time to time during the Term, upon not less than 48 hours prior notice from Landlord, Landlord may enter the Property, or portions thereof, to determine if Tenant is properly maintaining the Property. If, following any such inspection by Landlord, Landlord delivers notice of any deficiency to Tenant, Tenant shall promptly prepare and deliver to Landlord Tenant's proposed plan for remedying the indicated deficiencies. Tenant's failure to deliver a remedial plan and to complete, within a reasonable time, remedial work shall be a default under this Lease (subject to all applicable notice and cure rights of Tenant, Leasehold Mortgagees, and partners of Tenant).
Landlord's failure to deliver, following any Landlord's inspection, any notice of deficiency to Tenant, shall not be a waiver of any default by Tenant under this Article XIII. Tenant shall defend, indemnify and hold Landlord harmless from and against any claim, loss, expense, cost, or liability incurred by Landlord arising out of Tenant's failure to fully and timely fulfill its obligations to maintain and repair the Property as required hereunder.
13.2 Changes and Alterations. Tenant shall not during the Term make any changes or alterations in, to or of the Improvements without the prior written consent of Landlord, which Landlord shall not unreasonably withhold, so long as Tenant complies with all of the following at Tenant's sole cost and expense:
(a) The change or alteration shall be in alignment with any adopted applicable design guidelines and shall not materially impair the value or structural integrity of the Improvements.
(b) The change or alteration shall be for a use which is permitted hereunder.
(c) No change, alteration or addition shall be undertaken until Tenant shall have obtained and paid for, so far as the same may be required from time to time, all applicable permits and authorizations of any federal, state or municipal government or departments or subdivisions of any of them, having jurisdiction. Landlord shall join in the application for such permits or authorizations whenever such action is necessary; provided, however, that Landlord shall incur no liability or expense in connection therewith. (d) Any change, alteration or addition shall be made in a good and workmanlike manner and in accordance with all applicable permits and all Applicable Laws.
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(e) During the period of initial renovation of, or of construction of any change, alteration or addition in, to or of, the Improvements or of any permitted demolition or new construction or of any restoration, Tenant shall maintain or cause to be maintained property and other applicable insurance described in Article IX, which policy or policies by endorsement thereto, if not then covered, shall also insure any change, alteration or addition or new construction, including all materials and equipment incorporated in, on or about the Improvements (including excavations, foundations and footings) under a broad form all risks builders' risk form or equivalent thereof.
(f) Tenant shall comply with the provisions of Article VI hereof. (g) At Landlord's request, Tenant shall provide Landlord with a copy of as-built drawings for the Improvements within sixty (60) days following the completion of the Improvements.
13.3 Exceptions to Requirement for Consent. The foregoing notwithstanding, following Landlord's issuance of a Certificate of Completion as set forth in Section 6.2, above, Tenant shall not be required to obtain Landlord's prior written consent to any changes, alterations or improvements so long as such do not meet the definition of "Major Additional Improvements" (defined above) and all the following requirements are met:
(a) The change, alteration or improvement is nonstructural; (b) The change, alteration or improvement is not visible from the exterior of any building on the Land;
(c) The change, alteration or improvement has a cost of less than Two Hundred Fifty Thousand Dollars ($250,000); and
(d) The provisions of Article VI are satisfied.
Notwithstanding the foregoing, except in response to emergency situations for which it would not be reasonably practicable or possible to provide such advance notice, Tenant shall deliver to Landlord not later than ten (10) days prior to commencement of any construction, change, alteration or repair, written notice of the proposed work, a general description of the proposed work and sufficient information to permit Landlord to post a notice of non-responsibility on the Property.
13.4 No Right to Demolish. Notwithstanding any other provisions of this Article XIII, Tenant shall have no right to demolish any Improvement, once built, unless Tenant shall have received the prior written consent of Landlord which shall not be unreasonably withheld if the age and condition of the Improvements makes repair or reconstruction impractical or financially infeasible.
ARTICLE XIV.
EMINENT DOMAIN
14.1 Eminent Domain.
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14.1.1 Definitions. The following definitions shall apply in construing the provisions of this Article XIV:
(a) "Award" means all compensation, damages or interest, or any combination thereof, paid or awarded for the taking, whether pursuant to judgment, by agreement, or otherwise.
(b) "Notice of intended taking" means any notice or notification on which a reasonably prudent person would rely and would interpret as expressing an existing intention of taking as distinguished from a mere preliminary inquiry or proposal. It includes, but is not limited to, the service of a condemnation summons and complaint on a party to this Lease.
The notice is considered to have been received when a party to this Lease receives from the condemning agency or entity a written notice of intent to take. (c) "Partial taking" means any taking that is not a total taking, a substantial taking, or a temporary taking.
(d) "Substantial taking" means the taking of so much of the Property that the remaining portion thereof would not be economically and feasibly usable by Tenant for the then existing uses and purposes of the Property, in Tenant's reasonable judgment, but shall exclude a temporary taking.
(e) "Taking" means any taking of or damage, including severance damage, to all or any part of the Property or any interest therein by the exercise of the power of eminent domain, or by inverse condemnation, or a voluntary sale, transfer or conveyance under threat of condemnation in avoidance of the exercise of the power of eminent domain or while condemnation proceedings are pending.
(f) "Temporary taking" means the taking of any interest in the Property for a period of less than one (1) year.
(g) "Total taking" means the taking of all or substantially all of the Property, but shall exclude a temporary taking.
14.2 Notice. The party receiving any notice of the kind specified below shall promptly give the other party and all Leasehold Mortgagees written notice of the receipt, contents and date of the notice received:
(a) notice of intended taking;
(b) service of any legal process relating to condemnation of all or any portion of the Property;
(c) notice in connection with any proceedings or negotiations with respect to such a condemnation; or
(d) notice of intent or willingness to make or negotiate a private purchase, sale or transfer in lieu of condemnation.
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Landlord and Tenant, and any Leasehold Mortgagee, each shall have the right to represent its respective interest in each proceeding or negotiation with respect to a taking or intended taking and to make full proof of their respective claims. No agreement, settlement, sale or transfer to or with the condemning authority shall be made without the mutual agreement of Landlord and Tenant and any Leasehold Mortgagee. Landlord and Tenant each agree to execute, acknowledge and deliver to the other any instruments that may be reasonably required to effectuate or facilitate the provisions of this Lease relating to condemnation.
14.3 Total or Substantial Taking. In the event of a total or substantial taking of fee title to the Property, Tenant's interest in this Lease and all obligations of Tenant subsequently accruing hereunder shall cease as of the date of the vesting of title in the condemning authority; provided, however, that if actual physical possession of all or part of the Property is taken by the condemning authority prior to such date of vesting of title, Tenant's obligations to pay Rent and other sums under this Lease shall terminate as of such earlier date. In the event of a total or substantial taking of an interest in the Property other than fee title, at Tenant's option (exercisable by written notice to Landlord), Tenant's interest in this Lease and all obligations of Tenant subsequently accruing hereunder shall cease as aforesaid.
14.3.1 Award. In the event of a total or substantial taking, the Award shall be apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount owing on the Leasehold Mortgage.
(b) To Landlord that portion of the Award equal to the fair market value of the Property. Any "bonus value" attributable to this Lease shall be paid to Landlord. (c) To Tenant, that portion of the Award equal to the fair market value of the Improvements (subject to Landlord's reversionary interest), less the amount paid to the Leasehold Mortgagee pursuant to (a) above.
(d) The balance, if any, shall be allocated between Landlord and Tenant respectively in that proportion in which (i) the fair market value of the Property bears to (ii) the fair market value of the Improvements, exclusive of Landlord's reversionary interest.
14.3.1.2 Temporary Taking. In the event of a temporary taking, Tenant shall be entitled to the whole Award, and this Lease shall remain in full force and effect.
14.3.1.3 Partial Taking. In the event of a partial taking, this Lease shall remain in full force and effect, covering the remainder of the Property, and Tenant shall repair and restore any damage to the Improvements caused by such partial taking consistent with and subject to the provisions applicable to a restoration in the event of an insured casualty under Article IX, so that after completion of the restoration the Improvements shall be, as nearly as possible, in a condition as good as the condition immediately preceding the partial taking. The Award for any partial taking shall be deposited and disbursed in the same manner as insurance proceeds are disbursed for restoration pursuant to Article IX, and upon completion of the restoration, any remaining portion of the Award shall be allocated as set forth in Section
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14.3.1.4 Award on Partial Taking. In the event of a partial taking, after application of the Award for restoration pursuant to Section 14.1.6, any remaining portion of such Award shall be apportioned as follows, in the following order:
(a) To Leasehold Mortgagee in an amount equal to the amount owing on the Leasehold Mortgage.
(b) To Landlord, that portion of the Award attributable to the fair market value of the portion of the Property taken.
(c) To Tenant, that portion of the Award equal to the fair market value of the portion of the Improvements taken (subject to Landlord's reversionary interest), less the amount paid to the Leasehold Mortgagee pursuant to (a) above, but only to the extent that the proceeds of the Award are not used for restoration of the Improvements. (d) The balance, if any, shall be allocated between Landlord and Tenant respectively in that proportion in which (i) the fair market value of the Property bears to (ii) the fair market value of the Improvements exclusive of the reversionary interest of Landlord.
Any "bonus value" attributable to this Lease shall be paid to Landlord. (e) Any severance damages awarded or payable because only a portion of the Property is taken by eminent domain shall be (a) paid to Tenant during the first fifty years of this Lease and (b) equally divided between Tenant and Landlord during the remaining term of this Lease (except to the extent needed to replace any Improvements taken by eminent domain with equivalent Improvements on the remainder of the Property).
No payments shall be made to Tenant pursuant to this Section if any default by Tenant hereunder has occurred and is continuing unless and until such default is cured.
14.3.1.5 Partial Taking in Last Five Years. If a partial taking occurs during the last five (5) years of Term and the reasonably estimated cost of reconstruction work exceeds ten percent (10%) of the replacement value of the Improvements, Tenant shall have the right and option to treat the same as a substantial taking by giving written notice thereof to Landlord no later than the earlier of: (a) the date of vesting of title in the condemning authority of the portion of the Property taken, or (b) the date upon which the condemning authority takes physical possession of such portion of the Property. If Tenant does give such notice the partial taking shall be considered as a substantial taking and the taking shall be subject to the provisions of Section 14.1.3.
ARTICLE XV.
MORTGAGES
15.1 Leasehold Mortgages. Tenant shall have the right, at any time and from time to time during the Term, to encumber its leasehold interest hereunder with a Leasehold Mortgage or Mortgages subject to Landlord's prior written consent (which consent will not be unreasonably withheld) provided that (a) no Leasehold Mortgage shall in any way impair (except as otherwise stated herein or as provided by law) the enforcement of Landlord's right and remedies herein and by law provided, (b) any such Leasehold Mortgage shall at all times be subject and subordinate DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 36 1828\01\3632282.3
to, and shall not affect or become a lien upon Landlord's right, title or estate in the Property or in this Lease, and (c) Tenant shall give Landlord prior written notice of any such Leasehold Mortgage, accompanied by a true and correct copy of any such Leasehold Mortgage. Any Leasehold Mortgage shall be subject to the terms and conditions set forth in this Article XV.
15.2 Rights of Leasehold Mortgagee.
15.2.1 Notices. If Landlord shall have been provided with written notice of the address of any Leasehold Mortgagee, Landlord shall mail to such Leasehold Mortgagee a copy of any notice under this Lease at the time of giving such notice to Tenant, and no such notice shall be effective against such Leasehold Mortgagee, and no termination of this Lease or termination of Tenant's right of possession of the Property or reletting of the Property by Landlord predicated on the giving by Landlord of any notice shall be effective, unless Landlord gives to such Leasehold Mortgagee written notice or a copy of its notice to Tenant of such default or termination, as the case may be.
15.2.2 Right to Cure.
(a) In the event of any default by Tenant under the provisions of this Lease, the Leasehold Mortgagee shall have the right, but not the obligation, to remedy or cause to be remedied such default (including the right to enter the Property and to take possession of the Property if necessary to cure the default) within the same cure period as afforded Tenant hereunder, extended by an additional sixty (60) days, which cure period shall commence as against the Leasehold Mortgagee upon the receipt by the Leasehold Mortgagee of the notice of default. Landlord shall accept such performance by the Leasehold Mortgagee as if the same had been done by Tenant.
(b) The term "incurable default" as used herein means any default which cannot be reasonably cured by a Leasehold Mortgagee. The term "curable default" means any default under this Lease which is not an incurable default. Any failure to pay monetary sums shall at all times be deemed a curable default. Any failure to comply with the requirements of Section 7.2 hereof shall at all times be deemed a curable default, and as to Leasehold Mortgagees or any entity acquiring the interest of Tenant in the Property and in this Lease as a result of the foreclosure of a Leasehold Mortgage (or an assignment or deed in lieu thereof), Landlord shall not terminate this Lease provided such party is diligently and in good faith proceeding to cure any such default. In the event of any curable default under this Lease, and if prior to the expiration of the applicable grace period specified in Section 15.2.2 (a) the Leasehold Mortgagee shall give Landlord written notice that it intends to undertake the curing of such default, or to cause the same to be cured, or to exercise its rights to acquire the leasehold interest of Tenant or possession of the Property by foreclosure or otherwise, and shall promptly commence and then proceed with diligence to do so, whether by performance on behalf of Tenant of its obligations under this Lease, by foreclosure or otherwise, then Landlord will not terminate or take any action to effect a termination of this Lease or re-enter, take possession of or relet the Property, appoint a receiver, exercise any other remedy under this Lease, or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is diligently and in good faith engaged in the curing of such default or effecting such foreclosure, and upon completion of a foreclosure (or assignment or deed in lieu thereof) and obtaining of possession by the Leasehold Mortgagee, the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 37 1828\01\3632282.3
applicable cure period shall be deemed to have been commenced. The foregoing sentence shall not be deemed to extend the time period within which a default in the payment of money must be cured under Section 15.2.2 (a). The Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings. Nothing herein shall preclude Landlord from terminating this Lease with respect to any additional default which shall occur during any period of forbearance and not be remedied within the cure period, if any, applicable to any such additional default, except that Leasehold Mortgagee shall have the same rights specified in this Article XV with respect to any additional defaults.
In the event of any incurable default under this Lease, and if prior to the expiration of the applicable grace period specified in Section 15.2.2 (a) of this Lease, the Leasehold Mortgagee shall give Landlord written notice that it intends to exercise its rights to acquire the leasehold interest of Tenant by foreclosure or otherwise, and shall promptly commence and then proceed with diligence to do so, whether by foreclosure or otherwise, then Landlord will not terminate or take any action to effect a termination of this Lease or re-enter, take possession of or relet the Property or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is diligently and in good faith engaged in effecting such foreclosure and such incurable default shall be deemed cured upon the foreclosure of the Leasehold Mortgage (or assignment or deed in lieu thereof).
(c) If the default by Tenant pertains to the failure of Tenant to complete construction of the Project within the time period required under Section 6.2 of this Lease, and if prior to the expiration of the applicable grace period specified in Section 15.2.2 (a) of this Lease, the Leasehold Mortgagee shall give Landlord written notice that it intends to undertake to exercise its rights to acquire the leasehold interest of Tenant or possession of the Property by foreclosure or otherwise, and shall promptly commence and then proceed with diligence to do so, whether by foreclosure or otherwise, then Landlord will not terminate or take any action to effect a termination of this Lease or re-enter, take possession of or relet the Property or similarly enforce performance of this Lease so long as the Leasehold Mortgagee is diligently and in good faith engaged in the completion of the construction of the Project or effecting such foreclosure or acquisition of possession; provided, however, Landlord shall not be obligated to forbear from a termination or other enforcement of its rights under the Lease in response to such default beyond the date which is three (3) years following the date of foreclosure of the Leasehold Mortgage (or deed or assignment in lieu of foreclosure); provided, further, that additional extensions will be granted by the Landlord, in its reasonable discretion, if the Landlord determines that there has been good faith progress in pursuing completion of the Project, which may include, among other things, securing a substitute developer, obtaining additional or substitute financing, or securing a substitute construction contractor. (d) If a Leasehold Mortgagee is prohibited, stayed or enjoined by any bankruptcy, insolvency or other judicial proceedings involving Tenant from commencing or prosecuting foreclosure or other appropriate proceedings, the times specified for commencing or prosecuting such foreclosure or other proceedings for Leasehold Mortgagee shall be extended for the period of such prohibition.
15.2.3 Execution of New Lease. If this Lease is terminated for any reason, including by Tenant's trustee in bankruptcy, receiver, liquidator or other similar person on DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 38 1828\01\3632282.3
account of a default or if Tenant's interest under this Lease shall be sold, assigned or transferred pursuant to the exercise of any remedy of the Leasehold Mortgagee, or pursuant to judicial proceedings, and if (i) all monetary defaults of Tenant have been cured, and (ii) the Leasehold Mortgagee shall have arranged to the reasonable satisfaction of Landlord to cure any other curable default of Tenant under this Lease, then Landlord, within thirty (30) days (or such period as may reasonably be necessary to enable Landlord to comply with statutory requirements applicable to Landlord's lease of real property) after receiving a written request therefor, which shall be given within sixty (60) days after such termination or transfer and upon payment to it of all reasonable out-of-pocket expenses, including attorneys' fees, incident thereto, will execute and deliver a new lease of the Property to the Leasehold Mortgagee or its affiliate or other nominee or to the purchaser, assignee or transferee, as the case may be, for the remainder of the Term, containing the same covenants, agreements, terms, provisions, priority, and limitations, as are contained herein. The tenant under such new lease shall be personally obligated only for the performance of obligations under the Lease commencing as of the date of such foreclosure or assumption, and ending as of the date of any assignment of the Lease to a successor tenant. (a) Upon the execution and delivery of a new lease, the new tenant, in its own name or in the name of Landlord may take all appropriate steps as shall be necessary to remove Tenant from the Property, but Landlord shall not be subject to any liability for the payment of fees, including attorneys' fees, costs or expenses in connection therewith, and the new tenant shall pay all such fees, including attorneys' fees, costs and expenses, on demand, and shall make reimbursement to Landlord of all such fees, including attorneys' fees, costs and expenses, incurred by Landlord. Tenant acknowledges and agrees that Landlord shall have no liability whatsoever to Tenant in connection with any such action, and hereby releases Landlord from any claim Tenant may have with respect thereto.
(b) Following foreclosure or enforcement of a Leasehold Mortgage, or assignment in lieu thereof, Landlord will recognize the purchaser or assignee of the leasehold estate as the Tenant under the Lease.
(c) After such termination and cancellation of the Lease and prior to the expiration of the period within which the Leasehold Mortgagee may elect to obtain a new lease from Landlord, Landlord shall refrain from terminating any existing sublease or otherwise encumbering the Property or the Improvements without the prior written consent of the Leasehold Mortgagee. Any new lease shall enjoy the same priority in time and in right as the Lease over any lien, encumbrance or other interest created by Landlord before or after the date of such new lease, and shall vest in the new lessee all right, title, interest, power and privileges of Tenant hereunder in and to the Property and the Improvements, including, without limitation, the assignment of Tenant's interest in and to all then existing subleases and sublease rentals and the automatic vesting of title to all Improvements, fixtures and personal property of Tenant. Such new lease shall provide, with respect to each and every permitted sublease which immediately prior to the termination of the Lease was superior to the lien of the Leasehold Mortgage that the new lessee shall be deemed to have recognized the sublessee under the sublease, pursuant to the terms of the sublease as though the sublease had never terminated but had continued in full force and effect after the termination of the Lease, and to have assumed all the obligations of the sublessor under the sublease accruing from and after the termination of the Lease, except that the obligation of the new lessee, as sublessor, under any covenant of quiet enjoyment, expressed or DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 39 1828\01\3632282.3
implied, contained in any such sublease shall be limited to the acts of such new lessee and those claiming by, under or through such new lessee. If more than one entity claims to be the Leasehold Mortgagee that is entitled to a new lease pursuant to this subsection, Landlord shall enter into such new lease with the lender whose mortgage or deed of trust is prior in lien.
Landlord, without liability to Tenant or any lender with an adverse claim, may rely upon a lender title insurance policy issued by a responsible title insurance company doing business in the state of California as the basis for determining the appropriate Leasehold Mortgagee who is entitled to such new lease.
15.2.4 Tenant Default Under Leasehold Mortgage. If Tenant defaults under a Leasehold Mortgage, the Leasehold Mortgagee may exercise with respect to Tenant's interest in the Property and the Improvements any right, power or remedy under the Leasehold Mortgage which is not in conflict with the provisions of this Lease, including without limitation, judicial or nonjudicial foreclosure of the Leasehold Mortgage (or deed or assignment in lieu thereof), appointment of a receiver, and/or revocation of Tenant's license to collect rents.
15.2.5 No Merger. There shall be no merger of this Lease or any interest in this Lease, nor of the leasehold estate created hereby, with the fee estate in the Property, by reason of the fact that this Lease or such interest therein, or such leasehold estate may be directly or indirectly held by or for the account of any person who shall hold the fee estate in the Property, or any interest in such fee estate, nor shall there be such a merger by reason of the fact that all or any part of the leasehold estate created hereby may be conveyed or mortgaged in a Leasehold Mortgage to a Leasehold Mortgagee who shall hold the fee estate in the Property or any interest of the Landlord under this Lease.
15.2.6 Assumption of Obligations. For the purpose of this Article XV, the making of a Leasehold Mortgage shall not be deemed to constitute an assignment or Transfer of this Lease or of the leasehold estate hereby created, nor shall any Leasehold Mortgagee, as such, be deemed an assignee or transferee of this Lease or of the leasehold estate hereby created so as to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed hereunder. The purchaser at any sale of this Lease and of the leasehold estate hereby created in any proceedings for the foreclosure of any Leasehold Mortgage, or the assignee or transferee of this Lease and of the leasehold estate hereby created under any instrument or assignment or transfer in lieu of the foreclosure of any Leasehold Mortgage, in order to be deemed to be an assignee or transferee and before the same shall be binding on Landlord, must assume in writing the performance of all of the terms, covenants, and conditions on the part of Tenant to be performed hereunder during the period such party holds a leasehold interest in the Property by an instrument, in recordable form, reasonably satisfactory to Landlord; provided however, that nothing contained herein shall be construed to require the purchaser, assignee or transferee as described above to be obligated to cure any default by Tenant.
15.2.7 Limitation of Leasehold Mortgagee Liability for Tenant Defaults.
Notwithstanding any contrary provision hereof: (i) no Leasehold Mortgagee shall be required to pay any liens or charges that are extinguished by the foreclosure of its Leasehold Mortgage; (ii) any incurable default shall be, and shall be deemed to have been waived by Landlord upon completion of foreclosure proceedings or acquisition of Tenant's interest in this Lease by any DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 40 1828\01\3632282.3
purchaser at a foreclosure sale, or any entity who otherwise acquires Tenant's interest from the Leasehold Mortgagee by deed in lieu of foreclosure. Any entity acquiring the interest of Tenant in the Property and in this Lease as a result of the foreclosure of a Leasehold Mortgage (or an assignment or deed in lieu thereof) acquires an interest in the leasehold only, and shall be liable to perform the obligations of Tenant under this Lease only during the period such entity retains ownership of the interest of Tenant in the Property and in this Lease.
15.3 Non-Subordination of Fee. Nothing in this Lease shall be construed as an agreement by Landlord to subordinate its fee interest in the Property or its right to rent payments hereunder or any other right of Landlord herein. Except as expressly set forth in this Article XV, no Leasehold Mortgage shall impair Landlord's ability to enforce its rights and remedies under this Lease or provided by law. Landlord shall have no obligation to encumber or otherwise subordinate its fee interest in the Property or in this Lease to the interest of any Leasehold Mortgagee in this Lease or in Tenant's leasehold estate.
15.4 Subsequent Transfers. In the event any person or entity becomes the lessee under the Lease by means of foreclosure or deed in lieu of foreclosure or pursuant to any new lease obtained under Section 15.2.7, such person or entity may assign or Transfer the Lease or such new lease in compliance with the terms of Article XVI.
15.5 Landlord's Rights Under Leasehold Mortgages.
15.5.1 Notice of Tenant's Default. Tenant shall use best efforts to ensure that every Leasehold Mortgage secured by a deed of trust on Tenant's leasehold estate in the Property shall expressly provide that:
(a) the lender shall give Landlord contemporaneous notice of any default by Tenant thereunder, if the failure to cure such default could reasonably be expected to result in acceleration of the maturity of the debt secured by the Leasehold Mortgage; provided however, that the lender's giving or failure to give notice shall not affect the lender's rights or ability to timely pursue all applicable remedies, including, but not limited to, filing a notice of default or notice of sale, instituting judicial foreclosure proceedings, or seeking the appointment of a receiver. In addition, within three (3) business days following Tenant's receipt of any notice of default under any financing document affecting the Property, Tenant shall provide Landlord with a copy of such notice.
(b) Landlord shall have the right to cure any curable default by Tenant (but without obligation to do so) upon the same terms and conditions and within ninety (90) days measured from the date that Landlord receives notice thereof; and (c) If Landlord shall tender payment in full of all sums required to be paid under the Leasehold Mortgage or the note secured thereby (disregarding any acceleration of maturity thereunder, but including any costs or expenses arising as a result of such default) on or before ninety (90) calendar days from the date of such notice of default from the lender to Landlord, then the lender shall accept such payment and rescind the acceleration, if any. Any sums paid by Landlord pursuant to this Section 15.5.1 shall become immediately due and payable from Tenant to Landlord as Rent due under this Lease; provided however, that no DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 41 1828\01\3632282.3
Leasehold Mortgagee shall be obligated to cure a failure by Tenant to pay such amount pursuant to the rights granted to Leasehold Mortgagees under this Lease and Landlord shall have no right to terminate this Lease as a result of Tenant's failure to pay such amounts. (d) Landlord shall have the right and option (but not the obligation), during the period described in the last sentence of this paragraph, by notice in writing to the lender, to purchase any Leasehold Mortgage, the note secured thereby, and any other instruments securing or guaranteeing such note or otherwise evidencing any obligation secured by the Leasehold Mortgage. The purchase price therefor shall be the full amount due and owing to the lender thereunder, including any costs, expenses, swap termination fees, and penalties payable in accordance with the terms thereof. The sale and assignment by the lender shall be without recourse or warranty by the lender except that such lender has good title to the note (or is authorized to obtain payment or acceptance on behalf of one who has good title) and has the authority to transfer the loan to the Landlord. The right granted by this paragraph may be exercised by Landlord at any time after the lender has declared the entire sum secured by any Leasehold Mortgage to be due and payable or has commenced proceedings to foreclose any Leasehold Mortgage, and such right shall terminate ninety (90) days following receipt by Landlord of the notice described above.
15.6 Reserved.
15.7 No Voluntary Surrender/Modification. Notwithstanding anything to the contrary set forth herein, Landlord will not voluntarily surrender the Lease or accept a voluntary surrender of the Tenant's leasehold estate, and Landlord will not amend or modify the Lease without the prior written consent of (i) all holders of any Leasehold Mortgage then in effect (which such party may withhold in such party's sole discretion), and (ii) the limited partners of Tenant.
Landlord will not enforce against any Leasehold Mortgagee any waiver or election made by Tenant under the Lease which has a material adverse effect on the value of Tenant's leasehold estate or the rights of Tenant under the Lease without the prior written consent of such Leasehold Mortgagee (which may be withheld in its sole discretion).
15.8 Leasehold Mortgagee Right to Pay Landlord Obligations. Leasehold Mortgagees shall have the right, but not the obligation, upon not less than five (5) business days' prior written notice to Landlord, to pay any taxes payable by Landlord with respect to the Property, and to cure any monetary or nonmonetary default by Landlord under any encumbrance on the Property which has priority over this Lease; and if any Leasehold Mortgagee does so pay or cure, Landlord agrees that it will reimburse such Leasehold Mortgagee for the amount thereof promptly following Landlord's receipt of Leasehold Mortgagee's written request therefor.
15.9 Amendments for the Benefit of Leasehold Mortgagees. Landlord and Tenant shall cooperate to include in this Lease by suitable amendment from time to time, provisions which may reasonably be requested by any proposed Leasehold Mortgagee for the purpose of implementing the mortgagee protection provisions contained in this Lease and allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of the Leasehold Mortgage upon the occurrence of a default under the Lease. Landlord and Tenant each agree to execute and deliver (and acknowledge, if necessary for recording purposes) any agreement reasonably necessary to effect any such amendment; provided however, that any such DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 42 1828\01\3632282.3
amendment shall not in any way affect the Term, the Rent payable hereunder, nor otherwise in any material respect adversely affect any rights of Landlord under this Lease.
ARTICLE XVI.
ASSIGNMENT, TRANSFER, SUBLETTING
16.1 Restrictions on Transfer or Assignment by Tenant. Following the Effective Date, except as permitted pursuant to Article XV and this Article XVI, Tenant shall not sell, transfer, encumber, pledge, assign, convey, sublet or otherwise dispose ("Transfer") all or any portion of its interest in the Property, the Improvements or this Lease voluntarily, involuntarily, by operation of law, or otherwise, without Landlord's prior written consent. Each Transfer shall comply with all requirements therefor set forth elsewhere in this Lease and Tenant shall have no right to hypothecate or encumber its interest in this Lease or sublet or assign all or any portion of the Property and/or the Improvements except as expressly provided under the terms of this Lease. No voluntary or involuntary assignee, sublessee, or successor in interest of Tenant shall acquire any rights or powers under this Lease except as expressly set forth herein.
16.1.1 Exceptions. Notwithstanding any contrary provision of this Lease, Landlord's consent shall not be required, and the provisions of Section 16.2 below shall not be applicable, with respect to the following Transfers (“Permitted Transfers”): (A) the renting or leasing of residential units to tenants in the ordinary course of business; (B) the renting or leasing of retail or commercial space to tenants in the ordinary course of business, provided that use of the retail and commercial space will conform to applicable City regulations, including without limitation, the City's zoning ordinance, and any applicable use restrictions imposed by the Conditions of Approval or otherwise agreed upon by Landlord and Tenant; (C) the granting of a Leasehold Mortgage in accordance with Section 15.1 or the foreclosure of a Leasehold Mortgage or the acquisition of Tenant's interest in this Lease by an assignment or deed in lieu of foreclosure; (D) the first Transfer following any event described in clause (C) of this sentence; (E) conveyance or dedication any portion of or interest in the Tenant’s leasehold interest in the Property to any appropriate governmental agency, or the granting of easements or permits to facilitate construction and or operation of the Project or Development, as and if required to satisfy conditions imposed in connection with the granting of any governmental approval; and (F) the granting of any portion or interest in the Tenant’s leasehold interest of easements or permits which are necessary to facilitate construction of the Improvements constituting the Project, the grant of such easements or permits must be in furtherance of the development of the Project and in compliance with this Lease. In addition, Landlord shall not unreasonably withhold consent to any Transfer of Tenant's interest in the Property or any portion thereof, to an entity in which EAH, retains 50% or more of the equity or beneficial interest in said entity or to a limited partnership in which EAH or its affiliate acts as the general partner. Neither the transfer of limited partner interests in Tenant, nor the admission of an investor limited partner to Tenant's partnership shall be considered a Transfer for purposes of this Article XVI.
16.2 Procedure for Obtaining Landlord's Consent.
(a) Transfer Request. With respect to each Transfer requiring the Landlord's consent under Section 16.1, Tenant shall send to Landlord written request for Landlord's approval of the Transfer (a "Transfer Consent Request") specifying the name and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 43 1828\01\3632282.3
address of the proposed transferee and its legal composition (if applicable). Each Transfer Request shall be accompanied by all of the following:
(i) An audited or certified financial statement of the proposed transferee for the three most recent calendar or fiscal years prepared in accordance with generally accepted accounting procedures by a certified public accounting firm sufficiently current and detailed to evaluate the proposed transferee's assets, liabilities and net worth and certified as true and correct by the proposed transferee;
(ii) a description of the nature of the interest proposed to be transferred, the portion or portions of the Property affected by the Transfer, and the proposed effective date of such Transfer;
(iii) a true and complete copy of the proposed assumption agreement described in Section 16.6;
(iv) a complete history of the proposed transferee describing its background, its current real estate projects and location thereof, and the background of the principals or personnel to be involved in the development or operation of the portion of the Property subject to the Transfer and stating whether the proposed transferee ever filed for bankruptcy or had projects that were foreclosed;
(v) a description of all projects of the proposed transferee which during the past five (5) years have been the subject of substantial litigation; and (vi) any such other information as reasonably requested by Landlord within fifteen (15) days following the receipt of the above information, in order to make an informed decision whether or not to approve or disapprove the Transfer. (b) Approval of Landlord. Within sixty (60) days following receipt of all the information referred to in Section 16.3 (a), Landlord shall approve or disapprove a proposed transferee with respect to the information supplied which approval shall not be unreasonably withheld. If Landlord fails to give Tenant written notice of its disapproval of the transferee or request additional information in writing within such sixty (60) day period, it shall be deemed to have approved the transferee.
16.3 Subleases; Nondisturbance and Attornment. Tenant agrees for the benefit of Landlord that each sublease, rental agreement, and any other agreement for occupancy of any part of the Improvements (each an "Occupancy Agreement"): (a) shall state that it is subject to the terms and provisions of this Lease, and (b) shall require that the subtenant under the Occupancy Agreement shall attorn to and accept Landlord as the sublessor or other party under the Occupancy Agreement in the event this Lease is terminated. Landlord agrees that as long as each Occupancy Agreement complies with the requirements of the preceding clauses (a) and (b), then upon the expiration or termination of this Lease, Landlord shall recognize the subtenant or occupant under the Occupancy Agreement as the direct tenant of Landlord under the terms and conditions contained in the Occupancy Agreement and for a term equal to the then unexpired term of the Occupancy Agreement; provided however, that: (i) at the time of the expiration or termination of this Lease no uncured default shall exist under the Occupancy Agreement which DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 44 1828\01\3632282.3
at such time would permit the termination of the Occupancy Agreement or the exercise of any dispossession remedy provided for therein; and (ii) Landlord shall not be (x) liable for any prior act or omission of Tenant under the Occupancy Agreement; (y) liable for the return of any security deposit under the Occupancy Agreement not actually received by Landlord; or (z) subject to any offsets or defenses that the subtenant or occupant may have against Tenant. The provisions of this Section 16.3 shall survive the expiration or termination of this Lease.
16.4 Limitations.
(a) Non-Transfer Period. In no event shall Tenant request Landlord to approve any Transfer prior to the date that all of the following shall have occurred:
(i) the construction of the Improvements shall be complete and a Certificate of Completion as provided by Section 6.2, above, shall be issued with respect to the Project; and
(ii) all costs and expenses with regard to the construction of the Project and related Improvements shall be paid in full, all lien periods shall have expired and there shall be no liens on the Property, the Improvements, the Landlord's fee title or any portion thereof.
The provisions of this Section 16.4 (a) shall not be applicable to the granting of a Leasehold Mortgage in accordance with Section 15.1, and shall not be applicable to, or after, the foreclosure of a Leasehold Mortgage or the acquisition of Tenant's interest in this Lease by assignment or deed in lieu of foreclosure.
(b) No Relief from Liability. No Transfer will limit, diminish or otherwise relieve Tenant of any liability described herein. The provisions of this Section 16.4 (b) shall not be applicable to any Transfer following the foreclosure of a Leasehold Mortgage or following the acquisition of Tenant's interest in this Lease by assignment or deed in lieu of foreclosure.
(c) No Consent If Bankruptcy. In no event shall Landlord be required to consent or be deemed to consent to a Transfer to a party then subject to any proceedings under any insolvency, bankruptcy or similar laws.
(d) Criteria for Transfer. Landlord shall be deemed to be reasonable in withholding its consent to a proposed Transfer if, among other requirements, either of the following conditions is unsatisfied:
(i) Tenant delivers to Landlord an audited financial statement of the proposed transferee for the three most recent calendar or fiscal years prepared in accordance with generally accepted accounting principles by a recognized certified accounting firm demonstrating that the proposed transferee (or its principals) is a viable, going concern with sufficient financial ability to own, operate and manage the Property; and (ii) the proposed transferee shall have demonstrated experience operating and managing affordable residential/mixed-use properties similar to the Project.
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16.5 Involuntary and Other Transfers. Without limiting any other restrictions on transfer contained in this Lease, no interest of Tenant in this Lease, the Property or part thereof shall be assignable in the following manner:
(a) under an order of relief filed, or a plan of reorganization confirmed, for or concerning Tenant by a bankruptcy court of competent jurisdiction under the federal bankruptcy act or the laws of the State of California, whereby any interest in this Lease, the Property or part thereof is assigned to any party which does not qualify as an approved transferee pursuant to this Lease unless such order is filed or such plan is confirmed in connection with an involuntary proceeding brought against Tenant and Tenant reacquires such transferred interest within ninety (90) days after the date such order is filed or such plan is confirmed;
(b) if Tenant assigns substantially all of its assets for the benefit of its creditors; or
(c) if an order of attachment is issued by a court of competent jurisdiction, whereby any interest in this Lease, the Property or part thereof or substantially all of Tenant's assets are attached by its creditors and such order of attachment is not stayed within ninety (90) days after the date it is issued.
The transfers described in this Section 16.5 shall constitute a breach under this Lease by Tenant and Landlord shall have the right to terminate this Lease as a result of any such transfer taking place, in which case this Lease shall not be treated as an asset of Tenant. In such event, a Leasehold Mortgagee may request a new lease in accordance with Section 15.2.3.
16.6 Assumption Agreement and Release. No permitted Transfer shall be effective until any curable default hereunder shall have been cured and there shall have been delivered to Landlord an assumption agreement, executed by the transferor and the proposed transferee, whereby such transferee expressly assumes liability for such Lease obligations as arise and/or accrue during the period in which the transferee retains ownership of the interest of Tenant in the Property and in this Lease. The parties agree that as a condition to any Transfer taking place the transferee shall deliver to Landlord representations and warranties confirming the accuracy of the information delivered to Landlord concerning its current financial condition and its outstanding or pending liabilities.
16.7 Change in General Partner of Tenant. In addition to the restrictions on Transfers as set forth in this Article XVI, Landlord shall have the right to approve any change in the identity of the general partner of Tenant, including without limitation, any admission of any new general partner or withdrawal of any existing general partner. Such approval right of Landlord shall also apply to the transfer of a majority of the ownership interest in a general partner of Tenant. Landlord shall not unreasonably withhold, delay or condition its approval under this Section 16.7. Notwithstanding any contrary provision of this Section 16.7, Landlord's approval shall not be required with respect to any change in the identity or ownership of the general partner of Tenant as long as following such change the general partner of Tenant continues to be an entity which controls, is controlled by, or is under common control with EAH. For purposes of this Article XVI, "control" shall mean the right to direct the management and affairs of an DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 46 1828\01\3632282.3
entity, whether by virtue of the ownership of ownership interests, by contract, by appointment of directors or by common or overlapping boards. Removal of the general partner of Tenant by the Tenant's Limited Partner for cause in accordance with the Tenant's Partnership Agreement shall not require the consent of the Landlord, provided, that the Limited Partner concurrently with removal of the General Partner replaces the General Partner with an interim replacement General Partner ("Interim General Partner") that is an affiliate of the Limited Partner. The Limited Partner must replace the Interim General Partner with a permanent replacement General Partner ("Permanent Replacement General Partner") within 90 days from the date the General Partner was removed from the Partnership. Upon written request from the Tenant, the Landlord may give the Tenant thirty (30) day extensions at Landlord's sole discretion, up to a total of a ninety (90) day extension, but in all events the Permanent Replacement General Partner must be admitted to the Partnership no later than one hundred eighty days (180) after the date the General Partner was removed from Tenant. The nomination of the Permanent Replacement General Partner shall be subject to City's consent. Failure to replace the General Partner with the Permanent Replacement General Partner within the time set forth above shall constitute an Event of Default under this Lease and Landlord may terminate the Lease immediately upon delivering the Notice of termination.
16.8 Sale by Landlord. Nothing contained in this Lease shall be deemed in any way to limit, restrict or otherwise affect the right of Landlord to sell, transfer, assign or convey all or any portion of the right, title and estate of Landlord in the Property and in this Lease; provided, however, that in each such instance any such sale, transfer, assignment or conveyance shall be subject to this Lease, and Tenant's other rights arising out of this Lease shall not be affected or disturbed in any way by any such sale, transfer, assignment or conveyance. Any other provision of this Lease to the contrary notwithstanding, each covenant, agreement or obligation of Landlord under this Lease relating to the ownership or use of the Property is intended to and shall constitute a covenant running with the title to the Property and shall be binding upon the owner from time to time of the Property. At such time as Landlord shall sell, transfer, assign or convey the entire right, title and estate of Landlord in the Property and in this Lease, all obligations and liability on the part of Landlord arising under this Lease after the effective date of such sale, transfer, assignment or conveyance shall terminate as to Landlord, and thereupon all such liabilities and obligations shall be binding upon the transferee.
ARTICLE XVII.
BREACHES, REMEDIES AND TERMINATION
17.1 Event of Default. Tenant shall be in default under this Lease upon the occurrence of any of the following ("Events of Default"):
(a) Monetary Obligation. Tenant at any time is in default hereunder as to any monetary obligation (including without limitation, Tenant's obligation to pay taxes and assessments due on the Property or part thereof, subject to Tenant's rights to contest such charges pursuant to Section 5.2), and such default continues for ten (10) days after Tenant receives Notice of Breach (as defined in Section 17.2.1);
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(b) Insurance. Tenant fails to obtain and maintain any policy of insurance required pursuant to this Lease, and Tenant fails to cure such default within ten (10) business days;
(c) Abandonment. Tenant abandons the Property;
(d) Bankruptcy. Tenant or any general partner of Tenant files a voluntary petition in bankruptcy or files any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of Tenant (or any general partner of Tenant) or of all or any substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or makes any general assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; (e) Reorganization. A court of competent jurisdiction enters an order, judgment or decree approving a petition filed against Tenant seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree remains unvacated and unstayed for an aggregate of ninety (90) days from the first date of entry thereof, or any trustee receiver or liquidator of Tenant of all or any substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed without the consent or acquiescence of Tenant and such appointment remains unvacated and unstayed for an aggregate of ninety (90) days, such ninety (90) day period to be extended in all cases during any period of a bona fide appeal diligently pursued by Tenant; (f) Attachment. Subject to Tenant's right to contest the following charges pursuant to Sections 5.2 and 6.6, Tenant fails to pay prior to delinquency taxes or assessments due on the Property or the Improvements or fails to pay when due any other charge that may result in a lien on the Property or the Improvements, and Tenant fails to cure such default within ninety (90) days of the date of delinquency, but in all events prior to the date upon which the holder of any lien has the right to pursue foreclosure thereof; (g) Transfer. Tenant Transfers all or any portion of Tenant's interest in this Lease, the Property, the Improvements or part thereof in violation of the provisions of Article XVI and fails to rescind such Transfer within ten (10) business days after written notice from Landlord;
(h) Other Obligations. Tenant defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 17.1 and unless a shorter cure period is specified for such default, the default continues for ten (10) business days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default after the date upon which Landlord shall have given written notice of the default to Tenant; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an Event of Default shall not arise hereunder if Tenant DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 48 1828\01\3632282.3
commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion.
17.2 Notice and Opportunity to Cure.
17.2.1 Notice of Breach. Unless expressly provided otherwise in this Lease, no breach by a party shall be deemed to have occurred under this Lease unless another party first delivers to the nonperforming party a written request to perform or remedy (the "Notice of Breach"), stating clearly the nature of the obligation which such nonperforming party has failed to perform, and stating the applicable period of time, if any, permitted to cure the default.
17.2.2 Failure to Give Notice of Breach. Failure to give, or delay in giving, Notice of Breach shall not constitute a waiver of any obligation, requirement or covenant required to be performed hereunder. Except as otherwise expressly provided in this Lease, any failure or delay by either party in asserting any rights and remedies as to any breach shall not operate as a waiver of any breach or of any such rights or remedies. Delay by either party in asserting any of its rights and remedies shall not deprive such party of the right to institute and maintain any action or proceeding which it may deem appropriate to protect, assert or enforce any such rights or remedies.
17.2.3 Limited Partners' Right to Cure. The limited partners of Tenant ("Limited Partners") shall have the right to cure any curable default of Tenant hereunder upon the same terms and conditions afforded to Tenant within the same cure period as afforded Tenant hereunder extended by an additional sixty (60) days; provided however, if the default is of such a nature that the Limited Partners reasonably determine that it is necessary to replace the general partner of Tenant in order to cure such default, then the cure period shall be extended by an additional sixty (60) days after the removal and replacement of such general partner, provided that the Limited Partners have promptly commenced and diligently proceeded with all requisite actions to effect such removal and replacement. Landlord agrees that it shall deliver notice of default to the Limited Partners in accordance with Section 17.2.1 concurrently with delivery of such notice to Tenant provided that Landlord has been given the address for delivery of such notices. Any such cure by a Limited Partner shall be accepted by Landlord as if performed by Tenant or by any Leasehold Mortgagee. If this Lease has been terminated, upon any such cure by a Limited Partner, Landlord shall, upon request by such Limited Partner enter into a new lease with such Limited Partner (or any of its affiliated designees) pursuant to substantially similar terms and conditions as those set forth in this Lease, subject to the rights of Leasehold Mortgagees pursuant to Article XV. Notwithstanding the preceding sentence, the Landlord shall not exercise its rights to terminate this Lease pursuant to Section 17.3 until the expiration of the Limited Partner's cure period. No rights and remedies of Landlord shall be effective as against any Limited Partner unless Landlord has delivered to such Limited Partner all notices required to be so delivered hereunder and such Limited Partner has been afforded the opportunity to cure as provided herein. Landlord agrees not to amend any material provision of this Lease without the prior written consent of the Limited Partners.
17.3 Remedies Upon Default.
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17.3.1 Landlord's Remedies. Upon the occurrence of any Event of Default and in addition to any and all other rights or remedies of Landlord hereunder and/or provided by law, but subject in all events to the rights and remedies of Leasehold Mortgagees under Article XV hereof and of any Limited Partner under this Article XVII, Landlord shall have the right to terminate this Lease and/or Tenant's possessory rights hereunder, in accordance with applicable law to re-enter the Property and take possession thereof and of the Improvements, and except as otherwise provided herein, to remove all persons and property therefrom, and to store such property at Tenant's risk and for Tenant's account, and Tenant shall have no further claim thereon or hereunder. In no event shall this Lease be treated as an asset of Tenant after any final adjudication in bankruptcy except at Landlord's option so to treat the same but no trustee, receiver, or liquidator of Tenant shall have any right to disaffirm this Lease.
17.3.2 Remedies Upon Abandonment. If Tenant should breach this Lease and abandon the Property, Landlord may, at its option, but subject in all events to the rights and remedies of Leasehold Mortgagees under Article XV hereof and of any Limited Partner under this Article XVII, enforce all of its rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder. Additionally, Landlord shall be entitled to recover from Tenant all costs of maintenance and preservation of the Property, and all costs, including attorneys' and receiver's fees incurred in connection with the appointment of and performance by a receiver to protect the Property and Landlord's interest under this Lease.
17.3.3 Landlord Right to Continue Lease. In the event of any default under this Lease by Tenant (and regardless of whether or not Tenant has abandoned the Property), this Lease shall not terminate (except by an exercise of Landlord's right to terminate under Section
17.3.1) unless Landlord, at Landlord's option, elects to terminate Tenant's right to possession or, at Landlord's further option, by the giving of any notice (including, without limitation, any notice preliminary or prerequisite to the bringing of legal proceedings in unlawful detainer) to terminate Tenant's right to possession. For so long as this Lease continues in effect, Landlord may enforce all of Landlord's rights and remedies under this Lease, including, without limitation, the right to recover all rent and other monetary payments as they become due hereunder. For the purposes of this Lease, the following shall not constitute termination of Tenant's right to possession: (a) acts of maintenance or preservation or efforts to relet the Property; or (b) the appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this Lease.
17.3.4 Right to Injunction; Specific Performance. In the event of a default by Tenant under this Lease that remains uncured beyond any applicable grace periods permitted hereunder, Landlord shall have the right to commence an action against Tenant for damages, injunction and/or specific performance. Tenant's failure, for any reason, to comply with a courtordered injunction or order for specific performance shall constitute a breach under this Lease.
17.3.5 Damages Upon Termination. Should Landlord elect to re-enter the Property, or should Landlord take possession pursuant to legal proceedings or to any notice provided by law, this Lease shall thereupon terminate, and Landlord may recover from Tenant:
(a) the worth at the time of award of the unpaid rent which is due, owing and unpaid by Tenant to Landlord at the time of termination; and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 50 1828\01\3632282.3
(b) the worth at the time of award of the amount by which the unpaid rent which would have come due after termination until the time of award exceeds the amount of rental loss that Tenant proves could have been reasonably avoided; and (c) the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of rental loss which Tenant proves could be reasonably avoided; and
(d) all other amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things are likely to result therefrom, including all costs (including attorneys' fees) of repossession, removing persons or property from the Property, repairs, reletting and reasonable alterations of the Improvements in connection with reletting, if any.
All computations of the worth at the time of award of amounts recoverable by Landlord under subparagraphs (a), (b), and (d) above shall be computed by allowing interest at a rate equal to the rate of interest most recently announced by Bank of America, N.A., (or any successor bank) at its principal office in San Francisco as its "reference rate" serving as the basis upon which effective rates of interest are calculated for those transactions making reference thereto, but in no event in excess of the maximum rate of interest permitted under applicable law. The worth at the time of the award recoverable by Landlord under (c) above shall be computed by discounting the amount otherwise recoverable by Landlord at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus 1%, or at such lower discount rate as may hereafter be specified by applicable California statute.
17.4 Right to Receiver. Following the occurrence of an Event of Default, if Tenant (and all Leasehold Mortgagees and Limited Partners) fails after receipt of a Notice of Breach to cure the default within the time period set forth in this Lease, Landlord, at its option, may have a receiver appointed to take possession of Tenant's interest in the Property with power in the receiver (a) to administer Tenant's interest in the Property, (b) to collect all funds available in connection with the operation of the Property, and (c) to perform all other acts consistent with Tenant's obligations under this Lease, as the court deems proper. Landlord's rights under this Section 17.4 shall be subject and subordinate to the rights of all Leasehold Mortgagees and Limited Partners.
17.5 Remedies Cumulative. No remedy in this Article XVII shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy given by this Lease may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, subject to any limitations referred to hereinabove.
17.6 No Election of Remedies. The rights given in this Article XVII to receive, collect or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and conditions of this Lease, or to prevent the breach or nonobservance thereof, or the exercise of any such right or of any other right or remedy hereunder or otherwise granted or arising, shall not DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 51 1828\01\3632282.3
in any way affect or impair or toll the right or power of Landlord upon the conditions and subject to the provisions in this Lease to terminate Tenant's right of possession because of any default in or breach of any of the covenants, provisions or conditions of this Lease beyond the applicable cure period.
17.7 Survival of Obligations. Nothing herein shall be deemed to affect the right of Landlord to indemnification for liability arising prior to the termination of the Lease for personal injuries or property damage or in connection with any other Claim, nor shall anything herein be deemed to affect the right of Landlord to equitable relief where such relief is appropriate. No expiration or termination of the Lease by operation of law, or otherwise, and no repossession of the Property or any part thereof shall relieve Tenant of its previously accrued liabilities and obligations hereunder, all of which shall survive such expiration, termination or repossession.
17.8 No Waiver. Except to the extent that Landlord may have agreed in writing, no waiver by Landlord of any breach by Tenant of any of its obligations, agreements or covenants hereunder shall be deemed to be a waiver of any subsequent breach of the same or any other covenant, agreement or obligation, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be deemed a waiver by Landlord of its rights or remedies with respect to such breach.
ARTICLE XVIII.
GENERAL PROVISIONS
18.1 Estoppel Certificates. At any time and from time to time, Landlord and Tenant, shall for the benefit of any Limited Partner or Leasehold Mortgagee, on at least twenty (20) days' prior written request by the requesting party, deliver to the party requesting same a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there shall have been modifications that the same is in full force and effect as modified and stating the modifications) and the dates to which the Rent has been paid and stating whether or not, to the best knowledge of the certifying party, the other party is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the certifying party may have knowledge and such other statements or certifications reasonably requested. A prospective purchaser, mortgagee, or Limited Partner shall be entitled to request such a statement and rely on a statement delivered hereunder.
18.2 Quiet Enjoyment. Landlord covenants and agrees that Tenant (and pursuant to the provision of Articles XV and XVII, respectively, any Leasehold Mortgagee and Limited Partner, as applicable), upon paying the Rent and all other charges herein provided for and observing and keeping all covenants, agreements and conditions of this Lease on its part to be observed and kept, shall quietly have and enjoy the Property during the Term of this Lease without hindrance or molestation by anyone claiming by or through Landlord, subject, however, to the exceptions, reservations and conditions of this Lease.
18.3 Landlord's Right to Enter the Property. Landlord and its agents may enter the Property or the Improvements from time to time with reasonable notice (and, upon Tenant's request, when accompanied by representative(s) of Tenant), except for emergencies in which case no notice shall be required, to inspect the same, to post notices of nonresponsibility and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 52 1828\01\3632282.3
similar notices, and to discharge Tenant's obligations hereunder when Tenant has failed to do so within a reasonable time after written notice from Landlord.
18.4 Representations of Landlord and Tenant.
18.4.1 Representations of Tenant. Tenant hereby represents and warrants that all of the following are true and correct as of the Effective Date:
(a) Tenant is a limited partnership, duly organized, validly existing and in good standing under the laws of the State of California; (b) Tenant has taken all requisite action in connection with the execution of this Lease and the undertaking of the obligations set forth herein. This Lease constitutes the legally valid and binding obligation of Tenant, enforceable against Tenant in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally; and
(c) The execution of this Lease and the acceptance of the obligations set forth herein do not violate any court order or ruling binding upon Tenant or any provision of any indenture, agreement or other instrument to which Tenant is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest applicable to Tenant.
18.4.2 Representations of Landlord. Landlord hereby represents and warrants that all of the following are true and correct as of the Effective Date:
(a) Landlord has taken all requisite action in connection with the execution of this Lease and the undertaking of the obligations set forth herein. This Lease constitutes the legally valid and binding obligation of Landlord, enforceable against Landlord in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally.
(b) The execution of this Lease and the acceptance of the obligations set forth herein do not violate any court order or ruling binding upon Landlord or any provision of any indenture, agreement or other instrument to which Landlord is a party or may be bound.
Neither the entry into nor the performance of this Lease will violate, be in conflict with or constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest applicable to Landlord.
(c) As of the Effective Date, Landlord has not executed or consented to the recordation of any monetary lien on Landlord's fee interest in the Property, and Landlord agrees that it will not execute or consent to the recordation of any monetary lien on Landlord's fee interest in the Property unless the holder of such lien agrees irrevocably to recognize this DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 53 1828\01\3632282.3
Lease in the event of any realization upon the Property by such holder or its successors or assigns.
18.5 Miscellaneous.
18.5.1 Severability. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law.
18.5.2 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Lease shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(a) personal delivery, in which case notice is effective upon delivery; (b) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (c) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service;
(d) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day.
Landlord: City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Manager
Phone: (510) 596-4370
Facsimile: (510) 596-3724
And
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Attorney
Phone: (510) 596-4380
Facsimile: (510) 596-3724
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Tenant: _____________________, L.P.
c/o EAH Inc.
22 Pelican Way
San Rafael, CA 94901
Attention: President
Telephone: (415) 295-8854
With Copies to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, DC 20005
Attn: Jed D’Abravanel
Telephone: (202) 926-3163
Facsimile: (202) 926-3401
And with copies to: ________________________________
Leasehold Mortgagees: _________________________
_________________________
18.5.3 Captions; Construction. The captions used for the sections and articles of this Lease are inserted for convenience only and shall not be used to construe this Lease. The language in all parts of this Lease shall be construed as a whole, according to its fair meaning and not strictly for or against Landlord or Tenant.
18.5.4 Tenant's Rights. Landlord acknowledges that, subject to Tenant's obligations to pay rent pursuant to the terms of this Lease, Tenant shall have the exclusive right to deduct, claim, retain and enjoy any and all income, appreciation gain, depreciation, amortization and tax credits for federal and state tax purposes relating to the Property and Landlord shall treat Tenant as the tax owner of the Property for federal income tax purposes and shall not file any tax returns inconsistent with this treatment.
18.5.5 Binding on Successors. Subject to the restrictions on Transfers set forth in Article XVI, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law.
18.5.6 Memorandum of Lease. A memorandum of lease substantially in the form attached hereto as Exhibit B shall be executed by Landlord and Tenant and recorded in the Official Records.
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18.5.7 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California.
18.5.8 Attorneys' Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements.
18.5.9 Indemnity Includes Defense Costs. In any case where either party is obligated under an express provision of this Lease, to indemnify and to save the other party harmless from any damage or liability, the same shall be deemed to include defense of the indemnitee by the indemnitor, such defense to be through legal counsel reasonably acceptable to the indemnitee.
18.5.10 No Brokers; No Third-Party Beneficiaries. Landlord represents that it has not engaged any broker or agent to represent Landlord in this transaction. Tenant represents that it has not engaged any broker or agent to represent Tenant in this transaction.
Each party agrees to indemnify and hold the other harmless from and against any and all liabilities or expenses, including attorneys' fees and costs, arising out of, or in connection with claims made by any broker or individual for commissions or fees as a result of the acts of the indemnifying party. There shall be no third-party beneficiaries to this Lease other than the Leasehold Mortgagees and Limited Partners.
18.5.11 Disclaimer of Partnership, Lender/Borrower Relationship. The relationship of the parties under this Lease is solely that of landlord and tenant, and it is expressly understood and agreed that Landlord does not as a result of this Lease in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise. This Lease is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, association, or seller and buyer as between Landlord and Tenant. It is further expressly understood and agreed that this Lease is not intended to, and shall not be construed to create the relationship of lender and borrower, and Landlord does not, solely as a result of this Lease, become a lender to Tenant.
18.5.12 Entire Agreement; Amendments. This Lease together with the DDA, the Affordability Covenant and the other documents executed in connection with the DDA contains the entire agreement between the parties relative to the subject matter hereof. All previous correspondence, communications, discussions, agreements, understandings or proposals and acceptances thereof between the parties or their representatives, whether oral or written, are deemed to have been integrated into and superseded by this Lease and are of no further force and effect except as expressly provided in this Lease. No amendment or modification hereof shall be effective for any purpose unless in writing signed by Landlord and Tenant.
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18.5.13 Time is of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a "business day" means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of California.
18.5.14 Survival. The following provisions shall survive the expiration or termination of this Lease: all representations made by Tenant hereunder, Tenant's release of Landlord pursuant to Section 2.6, Tenant's indemnification obligations pursuant to Sections 5.2,
6.6, 6.19, 7.8, 7.9, 13.1, and 18.5.10 and Article X, and all other provisions of this Lease which state that they shall survive the expiration or termination of this Lease.
18.5.15 Headings; Interpretation. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
18.5.16 Counterparts. This Lease may be executed in one or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.
18.5.17 Action by the Landlord. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the Landlord is required or permitted under this Lease, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the governing board of the Landlord. In any approval, consent, or other determination by Landlord required hereunder, Landlord shall act reasonably and in good faith.
18.5.18 Action by the Parties. Whenever this Lease calls for either Party to grant consent or approval, the Parties shall exercise reasonable discretion in granting such consent or approval unless this Lease specifically states otherwise.
18.5.19 Inspection of Books and Records. Upon request, Tenant shall permit the Landlord to inspect at reasonable times and on a confidential basis those books, records and all other documents of Tenant necessary to determine Tenant's compliance with the terms of this Agreement.
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SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of the Effective Date.
LANDLORD:
CITY OF EMERYVILLE, a municipal corporation
By: _______________________________
Paul Buddenhagen, City Manager
ATTEST:
___________________________
April Richardson, City Clerk
APPROVED AS TO FORM:
___________________________
John Kennedy, City Attorney
TENANT:
________________________________, L.P., a
California limited partnership
By: ________________________LLC, a
California limited liability company, its sole
and managing general partner
By: EAH INC., a California nonprofit
public benefit corporation, its
managing and sole member
By: __________________________
Name: _______________________
Its: __________________________
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Exhibit A
LEGAL DESCRIPTION OF PROPERTY
(Legal description of Property attached)
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Exhibit B
MEMORANDUM OF LEASE
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MEMORANDUM OF GROUND LEASE
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.
BLOCK/LOT____________________
Address: ________ Christie Avenue, Emeryville, CA
MEMORANDUM OF GROUND LEASE
THE UNDERSIGNED LESSOR(S) DECLARE(S):
Documentary Transfer Tax is $____________; City Transfer Tax is $____________ Computed on full value of property conveyed, or
Computed on full value less value of liens and/or encumbrances remaining at time of sale, THIS MEMORANDUM OF GROUND LEASE ("Memorandum"), dated for identification purposes as of , 20__, is entered into by and between the CITY OF EMERYVILLE , a municipal corporation ("City"), and ____________________________, L.P., a California limited partnership ("Tenant").
Pursuant to that certain Ground Lease Agreement (the "Lease"), Landlord hereby leases to Tenant and Tenant leases from Landlord certain real property situated in the City of Emeryville, California, more specifically described on Exhibit A attached hereto (the "Site"), consisting of one or more parcels.
The Lease is dated as of _________, 20_____, and the term of the Lease commences as of the date of recordation of this Memorandum, and shall continue until the day preceding the ninety-ninth (99th) anniversary of the date of recording of the Certificate of Completion as set forth in Section ____ of the Lease, unless sooner terminated pursuant to the terms of the Lease.
This Memorandum shall incorporate herein all of the terms and provisions of the Lease as though fully set forth therein.
This Memorandum is solely for recording purposes and shall not be construed to alter, modify, amend or supplement the Lease, of which this is a memorandum. Capitalized terms used herein which are not defined shall have the meanings as defined in the Lease.
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The parties have executed this Memorandum on the dates specified immediately adjacent to their respective signatures.
Dated: ____________________
APPROVED AS TO FORM:
___________________________
City Attorney
Dated: ____________________
LANDLORD:
CITY OF EMERYVILLE,
a municipal corporation
By: _______________________________
Name: _______________________________
Its: __________________________________
[notary acknowledgment required]
TENANT:
________________________________, L.P., a
California limited partnership
By: ______________________LLC, a
California limited liability company, its sole
and managing general partner
By: EAH INC., a California nonprofit
public benefit corporation, its
managing and sole member
By: ____________________
Name: _________________
Its: ____________________
[notary acknowledgment required]
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT C
FORM OF CERTIFICATE OF COMPLETION
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.
BLOCK/LOT____________________
Address: _______ Christie Avenue, Emeryville, CA
CERTIFICATE OF COMPLETION
(Ground Lease)
The CITY OF EMERYVILLE, a municipal corporation ("Landlord"), and ____________________________, L.P., a California limited partnership ("Tenant"), entered into that certain Ground Lease dated as of _______________20__ (the "Lease"), a memorandum of which was recorded in the official records of Alameda County on _______________, 20__, as document number_______________. The Lease governs certain real property as more particularly described in Exhibit A (the "Property").
Pursuant to Section 6.2 of the Lease, the Landlord certifies that the Tenant has met its obligations under Section of the Lease regarding the construction of the Project on the Property.
This Certificate of Completion shall not constitute evidence of compliance with, or satisfaction of, any obligation of the Tenant to any holder of a deed of trust securing money loaned to finance the Property, or any part thereof, and shall not be deemed to be either a notice of completion under the California Civil Code or a certificate of occupancy. This Certificate of Completion shall not constitute evidence of compliance with the requirements of Section 6.3 of the Lease.
The issuance of this Certificate of Completion shall have no effect on the Term of the Lease, and the remaining provisions of the Lease shall remain in full force and effect throughout the Term.
Capitalized terms used in this Certificate of Completion which are not defined herein shall have the meanings given such terms in the Lease.
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The parties have executed this Certificate of Completion on the dates specified immediately adjacent to their respective signatures.
Dated: ____________________
APPROVED AS TO FORM:
___________________________
City Attorney
Dated: ____________________
LANDLORD:
CITY OF EMERYVILLE,
a municipal corporation
By: _______________________________
Name: _______________________________
Its: __________________________________
[notary acknowledgment required]
TENANT:
________________________________, L.P., a
California limited partnership
By: ______________________LLC, a
California limited liability company, its sole
and managing general partner
By: EAH INC., a California nonprofit
public benefit corporation, its
managing and sole member
By: ____________________
Name: _________________
Its: ____________________
[notary acknowledgment required]
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EXHIBIT D
SPECIAL PROVISIONS IF THE CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT IS A LEASEHOLD MORTGAGEE.
In the event that the State of California Department of Housing and Community Development (“HCD”) is a Leasehold Mortgagee providing a Leasehold Mortgage to Tenant in compliance with Article XV (each such loan a “HCD Loan”), and if such HCD Loan or a refinancing of such HCD Loan is secured or collateralized by a deed of trust or mortgage in favor of HCD encumbering Tenant’s leasehold interest, in such event the provisions of this Exhibit D shall apply. If any provision of this Exhibit D is in conflict with any provision of the Lease, as to the HCD Loan and the HCD Leasehold Mortgage, the provisions hereof shall control and shall supersede the contrary provision of the Lease.
1. HCD Capital Loan. The provisions and restrictions of this Exhibit D shall be in force and effect at any time, but only at such time, that there is an outstanding HCD Loan or a HCD Leasehold Mortgage held by HCD securing an HCD Loan. If an HCD Loan, or any refinancing thereof, has been paid in full and the HCD Leasehold Mortgage released from title to Tenant’s leasehold interest hereunder, then the provisions of this Exhibit D shall cease to apply unless and until HCD again holds an HCD Loan secured or collateralized by an HCD Leasehold Mortgage.
2. Term of Lease. The Term of the Lease shall be a period of 65 years from the date of recordation of the Leasehold Mortgage in favor of HCD which secures the HCD Loan.
3. Assignment to HCD. In the event that circumstances arise under which the HCD regulations governing the loan program under which the HCD Loan is made (“HCD Program Regulations”) provide or require Tenant to assign its leasehold interest hereunder to HCD, (a) the required assignment of Tenant’s leasehold interest to HCD shall be deemed for all purposes hereunder to be a Permitted Transfer of Tenant’s leasehold interest pursuant to applicable provisions of the Lease and shall not require further prior consent of the Landlord, and (b) should HCD so acquire Tenant’s leasehold interest in the Lease, HCD thereafter shall be entitled to transfer or assign the said leasehold interest to a third party as a Permitted Transfer without requiring the consent of the Landlord, providing only that HCD shall make such transfer or assignment in compliance with any applicable HCD Program Regulations. The third party transferee from HCD shall be bound by the provisions and restrictions in the Lease relating to any further Transfer.
4. Special Notice and Right to Cure in the Event of Default. In the event of any default by Tenant under the provisions of the Lease including, but not limited to, the occurrence of any one or more of the events described in Article XVII of the Lease, and notwithstanding any other provision of the Lease, the Landlord may not exercise any right given to the Landlord under the Lease to terminate the Lease or to accelerate the monetary or other obligations of the Tenant as a remedy to an event of default without (a) concurrently with service of any notice of an event of default given by Landlord to Tenant, giving a copy of such written notice to HCD at the address set forth below:
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State of California
Department of Housing and Community Development
_________________________________
__________________, CA __________
Attn: ____________________________
Facsimile: (___) ___________________
Email: (___) ______________________
and (b) the Landlord shall also permit HCD or its representatives to cure or remedy such default within sixty (60) days following the service of written notice from the Landlord to HCD specifying the failure complained of or, if cure or remedy is not reasonably practicable within such sixty (60) day period, then the Lease shall not be deemed to be in default if HCD shall commence such cure or remedy within such sixty (60) day period and thereafter diligently prosecute such cure or remedy to completion. All time periods for a remedy or cure by HCD shall be subject to the “Force Majeure” provisions of the Lease. HCD shall have the same rights as Tenant and as any other Leasehold Mortgagee to cure any Event of Default under the Lease on behalf of Tenant. Landlord shall accept the performance by HCD in such event if made in lieu of performance by the Tenant with the same force and effect as if such cure or remedy was performed by the Tenant.
5. Absence of Restrictions on HCD Program Requirements. No provision of the Lease shall be interpreted in such a way that it fails to ensure the validity of any HCD Loan or of the Leasehold Mortgage securing an HCD Loan. Further, no provision of the Lease shall be interpreted in a way that is contrary to HCD’s right to require the Project to satisfy all of HCD’s Uniform Multifamily Regulations and of any specific requirements of the HCD Program Regulations. No provision of the Lease shall be interpreted to prohibit HCD from enforcing any provision of the HCD Loan on the Project without restriction, providing only that such HCD action is in compliance with HCD’s Uniform Multifamily Regulations and applicable requirements of the HCD Program Regulations.
6. HCD Consent Required for Termination, Modification or Amendment.
Notwithstanding any other provisions of the Lease to the contrary, the Landlord shall not, and shall not permit, the termination, modification or amendment to any provision of the Lease without the prior written consent of HCD. Any attempt to take such actions without first receiving HCD’s consent shall be deemed void and of no force and effect.
7. Damage or Destruction. Notwithstanding any other provision of the Lease or of the requirement of any Leasehold Mortgage to the contrary, in the event of destruction of any of the Improvements constituting the Project neither Tenant nor the Landlord shall terminate the Lease if and so long as either the Tenant or HCD, but only at HCD’s sole discretion, pursues with reasonable diligence reconstruction of such Improvements in accordance with applicable provisions of the Lease.
8. HCD Non-Responsibility for Performance. Notwithstanding any other provision of the Lease to the contrary, HCD shall not have any responsibility, liability or obligation to perform any obligation of Tenant under the Lease on behalf of Tenant unless and until HCD has DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 GL-C-5
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taken such actions as may be required to, and has completed, its acquisition of Tenant’s leasehold interest thereunder by or through the exercise of HCD’s rights under its Leasehold Mortgage.
Should it acquire Tenant’s leasehold interest, HCD shall be liable to perform the obligations imposed on Tenant by the Lease incurred or accrued only during the period that HCD has ownership of such leasehold interest. The provisions of the Lease enforceable against the Tenant shall likewise be enforceable against HCD only when, and then only for so long as, HCD owns or has title to Tenant’s leasehold interest, and then only in compliance with the applicable terms of the Lease. HCD shall not be liable for the performance of any Lease obligations accruing prior to its ownership of Tenant’s leasehold interest or for any such obligations accruing at any point following HCD’s assignment, sale or transfer of HCD’s leasehold interest thereunder to any third person or entity.
9. Non-Merger; New Lease. Notwithstanding any other provision of the Lease to the contrary, if both the Landlord’s and the Tenant’s estates in the Property or the Project or both become vested in the same owner, the Lease shall nevertheless not be destroyed by application of the doctrine of merger without the prior written consent of HCD, which HCD shall be under no obligation to provide. Further, HCD’s acquisition of Tenant’s leasehold interest under the Lease by Transfer, assignment, foreclosure, or voluntary transfer in lieu of foreclosure, will not result in a termination of Tenant’s leasehold interest thereunder. In the event that HCD acquires Tenant’s leasehold interest under the Lease, HCD shall have the right to require the Landlord to replace the Lease with a new lease covering the Property containing substantially all of the same rights, terms, covenants, considerations and obligations as set forth in the Lease, and for a term to commence on the date of procurement by the Landlord of possession of the Property and to have a term until expiration at least as long as the balance of the Term then remaining on the Lease prior to the acquisition of the leasehold interest by HCD if the Lease had otherwise continued uninterrupted until the end of its Term. Such new lease shall be executed and delivered by the Landlord in compliance with the obligations established by Section 15.2.3 of the Lease.
10. Bankruptcy. For the purposes hereof, any reference to “Bankruptcy Law” shall refer to Title 11 of the United States Code or any other or successor State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization or similar matters. “Bankruptcy proceeding” shall be deemed to mean any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. In the event of a bankruptcy by either Tenant or Landlord, neither Landlord nor the Tenant will exercise any rights under any provision of Bankruptcy Law that would cause the termination of the Lease or otherwise render it unenforceable in accordance with its terms.
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EXHIBIT H
FORM OF CITY CONTRACT ADDENDUM
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CONSTRUCTION CONTRACT ADDENDUM
This Construction Contract Addendum is made this _________day of ________________, ____, by and between _____________________, a California limited partnership (“Owner"), and__________________ ("Contractor").
RECITALS
A. The City of Emeryville (“City”) and EAH, Inc., a California nonprofit public benefit corporation (“EAH”), into that certain ____________ Affordable Housing Ground Lease Disposition and Development Agreement dated ____ __, 2024, (“Agreement”) pursuant to which the City agreed to ground lease to Owner that certain real property with a street address of ______ Christie Avenue (APN No. ________________________) ), (the "Site") under the terms and conditions set forth in the Agreement and the ground lease dated ____________________ (“Ground Lease”) and Owner agreed to develop on the Site ___________________________ (____) multi-family residential rental units (“Project”).
B. Owner is borrowing funds from the City to support development of the Project, and has executed a Loan Agreement, Deed of Trust, and Promissory Note.
C. The Ground Lease, the Loan Agreement, Deed of Trust and Promissory Note are herein referred to as the “City Documents”.
D. Owner and Contractor have entered into a construction agreement dated ______________ under which Contractor has agreed to undertake construction work on the Project (the “Contract”).
E. Owner and Contractor wish to modify and add to the terms of the Contract as set forth in this Addendum, and Contractor agrees to be bound by the following provisions in the construction of said Project, in order to provide for certain terms required by the City as a condition to financing of the Project. The City has indicated that it will not make the loan, as contemplated by the Loan Agreement, unless Contractor agrees to be bound by the terms hereof.
NOW, THEREFORE, Owner and Contractor hereby agree as follows:
1. OWNER'S OBLIGATIONS. Owner agrees that any obligation imposed on Contractor by this Addendum does not waive, diminish, or alter any of Owner's obligations to the City under the City Documents, and that the obligations of Contractor to the City contained herein are in addition to those obligations of Owner to the City contained in the City Documents.
Owner shall be solely responsible for satisfying its obligations to Contractor under the Contract.
2. CONSENT TO ASSIGNMENT OF DEVELOPMENT RIGHTS. Contractor consents to the assignment of its Contract with Owner to the City under the conditions specified in the City Documents. Contractor agrees that if there is a breach of any of the City Documents or any other Event of Default (as the term may be defined in the relevant City Document), the City may elect to enforce the assignment and take over the Contract. Contractor agrees to DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 continue to perform its obligations under the Contract and this Addendum for the benefit and account of the City in the same manner as if performed for the benefit and account of Owner in the absence of the assignment at no additional cost to the City, as long as Contractor continues to receive the compensation called for under the Contract. Contractor agrees that the City shall not have any obligation under the Contract until the City notifies it in writing of the City 's election to accept the assignment.
3. COMMENCEMENT AND COMPLETION OF CONSTRUCTION. Contractor must begin construction of the Project by the date set for the commencement of construction in the City Documents. Contractor may not commence construction until the City has issued a written notice to proceed to Owner. Contractor must diligently prosecute construction of the Project to completion, and must complete construction of the Project by the completion date set forth in the City Documents.
4. CONSTRUCTION BONDS. Contractor must obtain a labor and material (payment) bond and a performance bond, or a dual bond which covers both payment and performance obligations, with respect to the construction of the Project in a penal sum each of not less than one hundred percent (100%) of the scheduled cost of construction. Such bonds must be issued by a company which is authorized to transact surety insurance in California and which has assets exceeding its liabilities in an amount equal to or in excess of the bond amount.
The bonds must name the City as an obligee. In lieu of said bonds, a letter of credit in the sole name and possession of the City in the penal amount and in a form acceptable to the City may be substituted.
5. CONTRACT WORK. Contractor warrants and represents that it is licensed or otherwise authorized to perform the construction work specified in the Contract in the State of California. Contractor warrants and represents that it holds a current City of Emeryville Business License Certificate. All construction work must be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work in the State of California. Contractor shall insert similar provisions in all subcontracts for work for the Project.
6. QUALITY OF WORK. Contractor must construct the Project in conformance with the Plans and Specifications and any modifications thereto approved by the City. Contractor must construct the Project according to general industry standards and shall employ building materials of a quality suitable for the requirements of the Project and conforming to general industry standards. Contractor must construct the Project in full conformance with applicable local, state, and federal statutes, regulations, and building and housing codes.
The parties acknowledge that the City is under no duty to review the Plans and Specifications or to inspect construction of the Project. Any review or inspection undertaken by the City of the Project is solely for the purpose of determining whether Owner and Contractor are properly discharging their obligations to the City, and should not be relied upon by Owner, Contractor, or any third parties as a warranty or representation by the City as to the quality of the design or construction of the Project.
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7. ADDITIONS OR CHANGES IN WORK. The City and Owner must be notified in a timely manner of any changes in the work required to be performed under the Contract or this Addendum, including any substantial additions, changes, or deletions to the approved Plans and Specifications. A written change order authorized by the City must be obtained before any of the following changes, additions, or deletions in work for the Project may be performed: (1) any change that exceeds two hundred fifty thousand dollars ($250,000); or (2) any set of changes that cumulatively exceeds two million five hundred thousand dollars ($2,500,000); or (3) any substantial change in building materials or equipment, specifications, or the architectural or structural design of the Project as provided for in the Plans and Specifications. Consent to any additions, changes, or deletions to the work shall not release Contractor from any other obligations herein, or release Contractor or its surety from any surety bond.
8. SITE INSPECTIONS. Contractor shall permit and facilitate observation and inspection of work at the job site by the City and its agents and by public authorities during reasonable business hours.
9. AUDITS. Contractor must make available for examination at reasonable intervals and during normal business hours to the City 's representatives all books, accounts, reports, files, and other papers or property with respect to all matters covered by the Contract and this Addendum, and must permit these representatives to audit, examine, and make copies, excerpts or transcripts from such records.
10. LEAD-BASED PAINT. Contractor and its subcontractors may not use lead-based paint in the construction or maintenance of the Property. Contractor must insert such a provision in all subcontracts for work performed on the Project which involve the application of paint.
11. NONDISCRIMINATION. Contractor may not discriminate against any employee or applicant for employment on the basis of race, color, religion, sex, sexual preference, national origin, AIDS or AIDS-related conditions, or disability in any phase of employment during construction. Contractor agrees to post in conspicuous places available to all employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
12. PREVAILING WAGES. All workers performing construction work for the Project employed by Contractor and by any of its subcontractors must be compensated in an amount no less than the general prevailing rate of per diem wages as determined by the California Department of Industrial Relations under California Labor Code Sections 1770, et seq., and implementing rules and regulations. Contractor must comply with, and must ensure that its subcontractors comply with, all reporting and recordkeeping requirements of the applicable prevailing wage statutes and regulations.
In the event of underpayment of wages by Contractor or by any subcontractor employed on the Project, the City , in addition to other rights and remedies afforded by this Agreement, may: (1) demand that any underpaying employer comply with these requirements; (2) demand that the underpaying employer pay the difference between the prevailing wage rate and the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 amount actually paid to workers; (3) withhold and/or pay any Loan proceeds as necessary to compensate workers the full wages required under this Agreement (whether or not the Loan payee is directly responsible for the underpayment); (4) in the case of failure to pay state prevailing wages, impose liquidated damages in an amount up to fifty dollars ($50) per working day on any underpaying employer for each worker paid less than the prevailing wage, the amount of such liquidated damages to be determined solely by the City according to the standards contained in California Labor Code Section 1775; and/or (5) pursue any lawful administrative or court remedy to enforce these requirements against the underpaying employer.
Any underpaying employer shall comply with a demand to pay any amounts due under this section within ten calendar days of the demand.
Contractor must include the prevailing wage requirement in all subcontracts for work on this Project, and must specify that the City is an intended third party beneficiary of such provisions. Contractor must take reasonable measures to monitor and enforce the prevailing wage requirements imposed on its subcontractors, including withholding payments to those subcontractors who violate these requirements. In the event that Contractor fails to take the above measures, Contractor shall be liable for the full amount of any underpayment of wages, plus costs and attorneys' fees, as if Contractor was the actual employer.
Contractor agrees that it would be impracticable or extremely difficult to fix the actual damages the City would suffer from violations of the prevailing wage provisions, and that the sums and formulas designated herein as liquidated damages represent a reasonable approximation of the damages the City is likely to suffer from violations of these terms.
Contractor agrees to pay in full any accrued liquidated damages to the City within ten business days of a written demand by the City for such payment.
13. INSURANCE COVERAGE. Contractor must have in full force and effect during the construction of the Project the insurance coverage required under the City Documents.
14. WORKERS' COMPENSATION. Contractor must carry or cause to be carried Workers' Compensation and Employers' Liability Insurance as required by the California Labor Code for all persons employed in connection with this Project.
15. NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS. No member, official, employee, or agent of the City shall be personally liable to Contractor for any obligation created under the terms of the Contract or this Addendum except in the case of actual fraud or willful misconduct by such person.
16. INDEMNITY. Notwithstanding the insurance requirements herein, Contractor hereby indemnifies, defends and holds , the City of Emeryville its respective members, officers, officials, employees, and agents, (collectively, the “Indemnified Parties”), harmless against any losses, damages, liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses (including attorneys' fees) which an Indemnified Party may incur as a consequence of Contractor's failure to perform any obligations as and when required by the Contract or this Addendum, any act or omission by Contractor or its subcontractors with respect to the Project, or any failure of any of Contractor's representations or warranties to be true and DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 complete, except to the extent such losses are caused by the negligence or willful misconduct of the Indemnified Party. Contractor shall pay immediately upon the Indemnified Party’s demand any amounts owing under this indemnity. The duty of Contractor to indemnify includes the duty to defend the Indemnified Party in any court action, administrative action, or other proceeding brought by any third party arising from the Project. Contractor's duty to indemnify the Indemnified Party shall survive the term of the Contract.
17. HAZARDOUS MATERIALS. Neither Contractor nor any of its subcontractors may use the Property or allow the Property to be used for the generation, manufacture, storage, disposal, or release of Hazardous Materials. Contractor shall immediately notify the City and Owner in writing of: (a) the discovery of any concentration or amount of Hazardous Materials on or under the Property requiring notice to be given to any governmental agency under Hazardous Materials Laws; (b) any knowledge by Contractor that the Property does not comply with any Hazardous Materials Laws; (c) the receipt by Contractor of written notice of any Hazardous Materials claims; and (d) the discovery by Contractor of any occurrence or condition on the Property or on any real property located within 2,000 feet of the Property that could cause the Property to be designated as a "hazardous waste property" or as a "border zone property" under California Health and Safety Code Sections 25220, et seq., or regulations adopted therewith.
18. NOTICE OF DEFAULT TO LENDER. Contractor shall give the City prior or concurrent written notice of any default or breach claimed by Contractor against Owner or any other party under the Contract. The notice shall describe the default and give the City the option to cure said default within 30 calendar days. No termination of the Contract by Contractor shall be binding unless the City has been given the required notice and has not cured the default within 30 calendar days.
19. REMEDIES. The parties hereto agree that the City, while not a party to the Contract, is an intended third party beneficiary of the obligations imposed on Contractor in this Addendum. In the event of any breach or violation of any agreement or obligation of Contractor under the Contract or this Addendum, the City may proceed with any of the following remedies:
A. Bring an action in equitable relief seeking the specific performance by Contractor of the terms and conditions of the Contract or this Addendum, and/or enjoining, abating, or preventing any violation of said terms and conditions; B. Order immediate stoppage of construction and demand that any condition leading to the default be corrected before construction may continue; C. Enter the Property and take any actions necessary in its judgment to complete construction of the Project as permitted under the assignment of development rights;
D. Suspend disbursement of Loan funds for the Project until the breach or violation is corrected, or, if Owner had any concurrent obligation to perform on or ensure performance on the breached obligation, cancel the Loan commitment made to Owner and terminate the City 's obligation to disburse Loan funds to Owner; or DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 E. Pursue any other remedy allowed at law or in equity.
20. GOVERNING LAW. This Addendum shall be interpreted under and be governed by the laws of the State of California, except for those provisions relating to choice of law and those provisions preempted by federal law.
21. DEFINITIONS. Capitalized terms not defined in this Addendum shall have the same meaning as defined in the Loan Agreement.
22. ATTORNEYS' FEES AND COSTS. In the event any legal action is commenced to interpret or to enforce the terms of this Addendum, the prevailing party in any such action shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.
23. TIME. Time is of the essence in the performance of this Addendum by Contractor.
24. CONSENTS AND APPROVALS. Any consent or approval required under this Addendum shall not be unreasonably withheld, delayed, or conditioned.
25. BINDING UPON SUCCESSORS. All provisions of this Addendum shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors-ininterest, transferees, and assigns of each of the parties; provided, however, that this section does not waive the prohibition on assignment of this Addendum by Contractor without the City 's consent.
26. RELATIONSHIP OF CONTRACTOR AND CITY. Contractor understands that the City neither undertakes nor assumes any responsibility or duty to Contractor or to any third party. The relationship of Contractor and the City for this Project shall not be construed as a joint venture, equity venture, or partnership. The City shall have no obligation to any party under the Contract, but is an intended third party beneficiary of the obligations under this Addendum.
Contractor shall have no authority to act as an agent of the City or to bind the City to any obligation.
27. ASSIGNMENT. Contractor may not assign any of its interests under the Contract or the Addendum to any other party, except with the prior written consent of the City. Any unauthorized assignment shall be void.
28. AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Addendum must be in writing, and shall be made only if executed by Owner and Contractor, and consented to in writing by the City.
29. SEVERABILITY. Every provision of this Addendum is intended to be severable.
If any provision of this Addendum is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired.
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30. ADDENDUM CONTROLS. In the event that any provisions of this Addendum and the Contract conflict, the terms of this Addendum shall control. [SIGNATURE BLOCKS ON NEXT PAGE]
DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 IN WITNESS WHEREOF, the undersigned parties have executed this Construction Contract Addendum as of the date first written above.
“CONTRACTOR”
By: _____________________________________
Title: _____________________________________
“OWNER”
By: _____________________________________
its sole and managing general partner
By: EAH INC.,
a California nonprofit public benefit corporation,
its managing and sole member
By: ____________________
Name:
Its:
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EXHIBIT I
CITY NOTE
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1 PROMISSORY NOTE
(City of Emeryville Loan – Christie Sites)
$________ Emeryville, Alameda, California
________, 202_
FOR VALUE RECEIVED, the undersigned ______________________ , a California limited partnership ("Borrower") hereby promises to pay to the order of the City of Emeryville, a municipal corporation, 1333 Park Avenue, Emeryville, CA 94608-3517 ("Holder"), a principal amount of up to ________________________ Dollars ($_______________) or so much thereof as is disbursed to Borrower (as defined below), plus interest thereon pursuant to Section 2 below.
1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower's obligation to pay Holder the principal amount of up to ___________________ Dollars ($______________) (the “Loan”) for the funds loaned to Borrower by Holder to finance the construction of the Improvements pursuant to this note and the Lease Disposition and Development Agreement between Borrower and Holder of even date herewith (the "DDA ") on property leased to the Borrower by Holder pursuant to the Ground Lease between the Borrower and Holder of even date herewith (the “Ground Lease”). The leasehold estate created by the Ground Lease and the Improvements are collectively referred to herein as the “Project.”) All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Ground Lease.
2. Interest.
(a) This Note bears simple interest at the rate of ____ percent (_%) per annum from the date of disbursement.
(b) If a default occurs, interest on all amounts due under this Note will begin to accrue at the rate of ten percent (10%) per annum (the “Default Rate”), as of the date of default and continuing until such time as the Loan funds are repaid in full or the default is cured.
3. Term and Repayment Requirements. The Loan shall be repaid as follows:
(a) Term. The term of this Note shall be fifty-five (55) years from the date set forth above (“Term”)
(b) Annual Payments. Commencing on July 1 following the first full calendar year after the issuance of the certificate of occupancy for the Improvements and on July 1 of each calendar year thereafter through the end of the Term, and subject to subsection (c) below, the Borrower shall make repayments of the Loan equal to the Holder Share of Residual Receipts (as defined in subsection(e) below). Payments made shall be credited first against accrued interest and then against outstanding principal. The Borrower shall provide the Holder DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653230.2
2 with any documentation reasonably requested by the Holder to substantiate the Borrower's determination of Residual Receipts.
(c) 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. (d) 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. (e) Special Definitions. Except as otherwise noted, the following definitions shall apply for purposes of this Section:
(i)"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:
(1) Property taxes and assessments imposed on the
Project;
(2) Debt service currently due on a non-optional basis
(excluding debt service due from residual receipts or surplus cash of the Project,) on loans associated with the Project and approved by the Landlord in the Final Project Budget or otherwise;
(3) Property management fees and reimbursements, not
to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract reasonably approved by the Landlord; (4) Premiums for property damage and liability
insurance;
(5) Any annual license or fees required for operation of the Project;
(6) Security services;
(7) Advertising and marketing costs;
(8) Cash deposited into reserves for capital
replacements of the Project in an amount to be approved by the Holder, as the same may increase during the Term with the approval of the Holder; provided, however, no approval of Holder shall be required to the extent of any cash deposited into reserves for capital replacements is in compliance with the requirements of Borrower’s lenders and/or tax credit partner; DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653230.2
3 (9) Cash deposited into an operating reserve in an
amount to be approved by the Holder, as the same may be increased during the Term with the approval of the Holder, and annual operating budgets, but with the operating reserve capped at six (6) months of gross rent from the Project (as such rent may vary from time to time); provided, however, no approval of Holder shall be required to the extent of any cash deposited into an operating reserve is in compliance with the requirements of Borrower's lenders and/or tax credit partner;
(10) asset management fee and a partnership
management fee, in the amount not to exceed thirty thousand dollars ($30,000) annually increasing by 3% each year starting in 2025;
(11) Utility services not paid for directly by tenants, including, without limitation, water, sewer, and trash collection; (12) Maintenance and repair, including pest control,
landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair, janitorial supplies and services;
(13) Social services fees and expenses in an amount
approved by the Landlord as part of the Final Project Budget; (14) Annual audit fees, inspection fees, or monitoring
fees required in relation to any Financing Plan;
(15) Extraordinary operating costs specifically approved by the Landlord in its reasonable discretion;
(16) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves; (17) Reasonable accounting fees and legal fees; and
(18) Other ordinary and reasonable operating expenses
approved by the Landlord in its reasonable discretion and not listed above. (ii) "Holder Share of Residual Receipts" means the Holder’s proportionate share of fifty percent (50%) of the Residual Receipts as measured by the amount of the Loan divided by the total of the Loan plus the amount of any other loans that are to be repaid from Residual Receipts.
(iii) "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 Project. Gross Revenue does not include tenants' security deposits, loan proceeds, capital contributions, or similar advances. Gross Revenue shall include, but not be limited to: