CITY OF FAIRFIELD
CITY COUNCIL
MEETING AGENDA
Tuesday, May 5, 2026, 6:00 p.m.
Harry T. Price Memorial Council Chamber
1000 Webster Street, Fairfield, CA 94533 or Via Zoom
Notice to Public
The City of Fairfield is committed to providing meeting facilities that are accessible to persons with disabilities and/or have language barriers. To request meeting materials in alternative formats, or to request a sign language interpreter, realtime captioning, or other accommodation, please contact the City Clerk's Office, at least 72 hours in advance of the meeting at (707) 428-7400.
For individuals with hearing or speaking limitations, dial 711 or (800) 735-2922 (English). For Spanish, Tagalog or other language, please dial (800) 855-3000 and provide the communication assistant with the following City telephone number: (707) 399-4010.
DISCLOSURE OF CAMPAIGN CONTRIBUTIONS:
Pursuant to Government Code 84308, City Council Members are disqualified and not able to participate in any agenda item involving contracts (other than competitively bid, labor, or personal employment contracts), franchises, discretionary land use permits and other entitlements if the City Council Member received more than $250 in campaign contributions from the applicant or contractor, an agent of the applicant or contractor, or any financially interested participant who actively supports or opposes the City's decision on the agenda item in the 12 months prior to the date the item is on the agenda. Members of the City Council who have received, and applicants, contractors or their agents who have made, campaign contributions totaling more than $250 to a City Council Member in the 12 months prior to the date the item is on the agenda are required to disclose that fact for the official record of the subject proceedings. Disclosures must include the amount of the campaign contribution and identify the recipient City Council Member and may be made either in writing to the City Clerk before the agenda item or by verbal disclosure during consideration.
Members of the public can observe the meeting on Roku City of Fairfield, Xfinity Channel 26, AT&T U-Verse Channel 99, and web streamed live at www.youtube.com/FFCATV. The public may join the meeting via Zoom at: https://fairfield.ca.gov/zoomcitycouncil or via phone (408) 638-0968, Webinar ID: 814 7538 5275, Passcode: 7074287400
Pages
A. CALL TO ORDER 6:00 PM
B. ROLL CALL
Councilmember Doug Carr
Councilmember Doriss Panduro
Councilmember Manveer Sandhu
Councilmember Scott Tonnesen
Councilmember K. Patrice Williams
Vice Mayor Pam Bertani
Mayor Catherine "Cat" Moy
C. INVOCATION - Pastor Oneal Young, Jr. of Greater Purpose Church D. PLEDGE OF ALLEGIANCE
E. COUNCIL REPORTS
F. CITY MANAGER'S REPORT
G. CITY ATTORNEY'S REPORT
H. CITY CLERK'S REPORT
I. PRESENTATIONS
I.1 Employee Recognition Ceremony Presented by Assistant City Manager/Human Resources Director Farbod Pirouzmand
J. PUBLIC COMMENTS
Persons wishing to address the City Council on subjects not on the agenda but within the jurisdiction of the council may do so at this time. The council cannot discuss or take action on matters, not on the agenda for this meeting, but councilmembers may briefly respond to statements made or questions raised by the public, ask for clarification from staff, refer the matter to staff, request staff to report back to the council at a subsequent meeting, or place the matter on a future agenda. To speak on an agenda item, please use the “raise your hand” feature or press *9 on your phone. Speakers are limited up to three minutes per item, as determined by the mayor.
K. CONSENT CALENDAR
All matters listed on the Consent Calendar are to be approved with one motion unless a member of the City Council or the public requests that separate action be taken on a specific item.
Recommended Action:
To approve the consent calendar.
K.1 Resolution 2026-67 HD Committing $850,000 in HOME funds and Increasing Housing Trust Fund Commitment from $1,000,000 to $1,150,000 for the Tabor Commons Project
6 Approving the First Amendment of the Development Loan Agreement with 212
E Tabor Fairfield EAH, LLC, and Committing $850,000 in HOME Funds and an additional $150,000 in Housing Trust Funds to Support the Development of Affordable Housing
Funding Source: $1,000,000 ($850,000, HOME Program Income Fund and $150,000, Housing Trust Fund)
Contact: LaTanya Terrones, (707) 428-7454
Recommended Action:
Adopt resolution.
K.2 Resolution 2026-68 CD Operating Memorandum No. 1 with One Lake Holding, LLC for Vanden Road Improvements
107
Authorizing the City Manager to Enter into Operating Memorandum No.1 Between the City of Fairfield and One Lake Holding, LLC. to Begin Phase 1 Construction of Vanden Road Improvements
Funding Source: $7,083,477 ($4,722,317.67, Northeast Transportation; $2,361,158.83, AB1600 Transportation)
Contact: Dave Zellers, (707) 428-7436
Recommended Action:
Adopt resolution.
K.3 Resolution 2026-69 PW Canon Station Planning Area 5 – Neighborhood J & K-2 Subdivision Acceptance
130
Accepting the Canon Station Planning Area 5 – Neighborhood J & K-2 Subdivision Improvements as Complete
Funding Source: N/A
Contact: Matt Kett, (707) 428-7478
Recommended Action:
Adopt resolution.
K.4 Resolution 2026-70 PW Construction Contract for the East Tabor Avenue/Tolenas Road Safe Routes to School and Sidewalk Gap Closure Project 133
Approving the Plans and Specifications and Awarding a Contract to Quimu Contracting Inc. for the East Tabor Avenue/Tolenas Road Safe Routes to School and Sidewalk Gap Closure Project and Authorizing an Update to the Fiscal Year 2025-2026 Budget
Funding Source: $3,052,56 ($2,731,000 Federal Grants; $2,55,738 Senate Bill 1 $16,972 State Gas Tax)
Contact: Ryan Panganiban, (707) 428-7017
Recommended Action:
Adopt resolution
K.5 Resolution 2026-71 PW Markeley Lane Reconnection Project PSA Amendment No. 2 for NEPA Clearance
140
Authorizing the City Manager to Execute Amendment No. 2 to the Professional Services Agreement Between the City of Fairfield and Bennett Engineering Services, Inc. National Environmental Policy Act Clearance for the Markeley Lane Reconnection Project
Funding Source: $277,071; Intragovernmental Services Fund Contact: Ryan Panganiban, (707) 428-7017
Recommended Action:
Adopt resolution.
L. PUBLIC HEARINGS
L.1 Resolution 2026-72 HD Fiscal Year 2026-2027 Annual Action Plan 151 Approving the Fiscal Year 2026-2027 Community Development Block Grant Annual Action Plan
Funding Source: N/A
Contact: Miesha Garnett, (707) 428-7426
Recommended Action:
Hold a public hearing and adopt resolution.
M. NEW BUSINESS
M.1 CD Contract Negotiations with the Downtown Theatre Foundation for the Arts 204 Discussion and Direction Regarding Contract Negotiations with the Downtown Theatre Foundation for the Arts
Funding Source: $190,000; General Fund
Contact: Dave Zellers, (707) 428-7436
Recommended Action:
Receive report, open discussion, and provide direction to staff.
M.2 PW Proposition 218 Balloting Process in Landscape and Lighting Maintenance District No. 13 – North Cordelia and Recognize the Green Valley Community Landscape Group as a Primary Community Liaison
214
PW Discussion and Direction Regarding a Request to Begin a Proposition 218 Balloting Process in Landscape and Lighting Maintenance District No. 13 – North Cordelia and Recognize the Green Valley Community Landscape Group as a Primary Community Liaison
Funding Source: N/A
Contact: Chris Lewis, (707) 428-7089
Recommended Action:
Receive report, open discussion, and provide direction to staff.
M.3 Continuation from April 21, 2026: CM Discussion and Direction Regarding the Future State of Landscaping and Lighting Maintenance Districts and Assessment Refunds
219
Funding Source: N/A
Contact: David Lim, (415) 421-8484
Recommended Action:
Receive report, open discussion, and provide direction to staff.
M.4 Receive and File Presentation on Vista Ridge Appraisal 226 Presentation on the Appraisal for the Vista Ridge Permanent Supportive Housing Project
Funding Source: N/A
Contact: LaTanna Jones, (707) 428-7647
Recommended Action:
Receive and file.
N. ADJOURN
ADJOURN TO TUESDAY, MAY 19, 2026, 6:00 P.M., HARRY T. PRICE MEMORIAL COUNCIL CHAMBER.
Any disclosable public records related to an open session item on a regular meeting agenda and distributed by the City of Fairfield to all or a majority of the Fairfield City Council less than 72 hours prior to that meeting are available for public inspection at City Hall, in the 4th floor lobby, 1000 Webster Street, Fairfield, California during normal business hours.
PUBLIC NOTIFICATION
I, Esther Beavers, Deputy City Clerk, do hereby certify that I have caused a true copy of the above notice and agenda to be delivered to each of the members of the Fairfield City Council, at the time and in the manner prescribed by law and that this agenda was posted at City Hall, 1000 Webster Street, Fairfield, California on Wednesday, April 29, 2026.
Agenda Item No: K.1
AGENDA REPORT
DATE: May 5, 2026
TO: Mayor and Council
FROM: David Gassaway, City Manager
SUBJECT: Resolution 202 6-67 HD Committing $ 850,000 in HOME funds and Increasing Housing Trust Fund Commitment from $1,000,000 to $1,150,000 for the Tabor Commons Project
Approving the First Amendment of the Development Loan Agreement with 212 E Tabor Fairfield EAH, LLC, and Committing $850,000 in HOME Funds and an additional $150,000 in Housing Trust Funds to Support the Development of Affordable Housing
Funding Source: $1,000,000 ($850,000, HOME Program Income Fund and $150,000, Housing Trust Fund)
Contact: LaTanya Terrones, (707) 428-7454
RECOMMENDED ACTION
Adopt resolution.
STATEMENT OF ISSUE
Adopt a resolution authorizing the city manager, or designee, to execute an amendment to the Development Loan Agreement (DLA) with 212 E . Tabor Fairfield EAH, LLC (Developer) for the development of 66 affordable housing units plus one manager’s unit (67 to tal) located at 212 E.
Tabor Avenue. The amendment authorizes an additional $1,000,000 to the project by increasing the Local Housing Trust Fund commitment from $1,000,000 to $1,150,000 and adding $850,000 in HOME funds.
DISCUSSION
Developer Background and Experience
EAH Housing is a nonprofit corporation founded in 1968 and is one of the largest and most respected nonprofit affordable housing development and management organizations in the Western United States. EAH Housing develops and manages afforda ble housing throughout
California and Hawaii and is actively engaged in local, regional, and national housing advocacy efforts.
EAH Housing currently manages over 222 properties and 13,000 units across 87 municipalities, serving more than 25,000 residents, including seniors, families, students, people with disabilities, the frail elderly, and individuals experiencing homelessness. The organization has successfully developed over 106 affordable housing properties, demonstrating its capacity to develop and operate high -quality affordable housing for extremely low -, very low -, and low -income households.
Project Description
EAH Housing proposes developing and operat ing a 67 -unit affordable multifamily housing development, consisting of 66 affordable units and one on -site manager’s unit, along with community space, at 212 E . Tabor Avenue. The project is intended to provide long -term affordable housing while contributing to the City’s housing goals.
Financing Need and Request
The Developer has submitted updated pro forma documentation demonstrating a need for additional local financial support to successfully advance the project. While the Developer has secured most of the funding required to submit a competitive application for California Tax Credits, an additional local commitment is necessary to strengthen the application and address financing gaps.
The Developer is requesting that the City amend the existing Developme nt Loan Agreement to include $ 850,000 in HOME funds and an additional $150,000 in previously approved Housing Trust Funds. The additional $1,000 ,000 in combined funds w ill enhance the project’s financial feasibility and improve its competitiveness for State funding.
The additional funds will allow Tabor Commons to be better structured to compete for 4% Tax Credit Allocation Committee (TCAC) financing. With the award of additional funds, the project is better positioned to receive and award for the Multifamily Housing Program (MIP) funds applied for in March 2026, and the first round of TCAC/CDLAC funds in May 2026.
If Tabor Commons is successful in receiving both MIP and TCAC/CDLAC awards, construction is anticipated to begin in 2027, consistent with the 180-day TCAC readiness requirement.
Tabor Commons will be subject to a 55 -year affordability covenant, ensuring the long -term provision of affordable housing units consistent with State and federal affordable housing requirements. The covenant will be recorded against the property and will require the project to remain affordable to income -qualified households for the full term of the restriction, thereby securing a lasting public benefit from the City’s investment.
City Financial Commitments and Leveraging Strategy
Approval of the amended DLA would confirm the City’s overall financial commitment to the project, which includes:
$1,150,000 Housing Trust Fund loan (previously approved and updated) $850,000 HOME funds (requested)
Fee credits up to $1,000,000
Fee deferrals up to $1,500,000
Commitment of 25 Project-Based Housing Choice Vouchers $636,083 in Community Development Block Grant (CDBG) funds for land acquisition ( previously approved and disbursed)
These commitments will allow EAH Housing to leverage City funds to strengthen its funding applications and improve scoring competitiveness at the State level.
FINANCIAL IMPACT
This action will have no impact on the General Fund. However, approval of the amended Development Loan Agreement will commit an additional $850,000 in HOME funds from the City’s HOME Program Income funds and increase the City’s contribution of the Local Housing Trust Fund from $1,000,000 to $1,150,000.
PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
N/A
ALTERNATIVE ACTION
The City Council may choose not to approve the amendment. However, this choice would prevent the City from reaching the requisite affordable housing goals and mandates identified in its City of Fairfield Housing Element.
COORDINATED WITH
City Attorney’s Office
STAFF CONTACT
LaTanya Terrones, Sr. Project Manager
(707) 428-7454
[email protected]
ATTACHMENTS
Attachment 2: Proposed Resolution
Attachment 3: Amended Developer Loan Agreement
CITY OF FAIRFIELD
RESOLUTION NO. 2026-67
APPROVING THE FIRST AMENDMENT OF THE DEVELOPMENT LOAN AGREEMENT WITH 212 E TABOR FAIRFIELD EAH, LLC AND COMMITTING $850,000 IN HOME FUNDS AND AN ADDITIONAL $150,000 IN HOUSING TRUST FUNDS TO SUPPORT THE DEVELOPMENT OF
AFFORDABLE HOUSING
WHEREAS, EAH Housing is a non -profit developer, owner , and manager of affordable housing which has been in operation for over 57 years and manages over 222 communities and 13,000 units for low-income families, seniors, and special needs individuals throughout California and Hawaii; and
WHEREAS, EAH Housing has demonstrated the ability to develop and operate affordable housing projects that serve extremely low- to low and moderate- income households; and
WHEREAS, EAH Housing has proposed developing and operating 66 units of multifamily housing, plus one manager unit, at 212 East Tabor Avenue, Fairfield, inclusive of affordable housing, community space, case management services, and resident programs; and
WHEREAS, E AH Housing has requested the City of Fairfield amend the Development Loan Agreement (DLA) to add $850,000 in City of Fairfield HOME Funds and an additional $150,000 in City of Fairfield Housing Trust Funds to support development activities at 212 East Tabor Avenue; and
WHEREAS, the additional loan funds would better structure the project to compete for 4% Low Income Tax credits in May 2026 and Multifamily Housing Program (MIP) funding in March 2026, resulting in the initiation of construction in 2027.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:
Section 1. The city manager, or his designee ( authorized officer), is authorized to set aside and direct $850,000 from the HOME funds to support the development of the Affordable Housing Units at 212 East Tabor Avenue and increase the previously approved Local Housing Trust Fund allocation from $1,000,000 to $1,150,000.
Section 2. The authorized officer is authorized to execute and deliver, for and in the name of the City of Fairfield, the Amendment of Development Loan Agreement in substantially such form, with such additions or changes as the Authorized Officer executing the same, may approve and do all things necessary or proper to implement the Development Loan Agreement, including the execution and recordation of agreements and documents contemplated by the Development Loan Agreement.
RES. NO. 2026-67
Section 3. The officers and staff of the City of Fairfield are hereby authorized, jointly and severally, to do all things they deem necessary or proper to effectuate the purposes of this Resolution, and any such actions previously taken are hereby ratified and confirmed.
PASSED AND ADOPTED this 5th day of May 2026, by the following vote:
AYES: MEMBERS: MOY/BERTANI/CARR/PANDURO/SANDHU/TONNESEN/WILLIAMS NOES: MEMBERS: _________________________________________________ ABSENT: MEMBERS: _________________________________________________ ABSTAIN: MEMBERS: _________________________________________________
_________________________________________________
MAYOR
ATTEST:
___________________________
CITY CLERK
11245-0001\2653652v5.doc
DEVELOPMENT LOAN AGREEMENT
by and between the
CITY OF FAIRFIELD
and
212 E TABOR FAIRFIELD, L.P.
a California limited partnership
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TABLE OF CONTENTS
Page
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1. DEFINITIONS .................................................................................................................. 1
1.1 Definitions............................................................................................................. 1
2. CITY LOAN; FEE CREDITS AND DEFERRALS ......................................................... 6
2.1 City Loan; City Deferred Fees; City Fee Credits.................................................. 6
2.2 Opening and Closing of Escrow ........................................................................... 7
2.3 Condition of Title; Title Insurance ....................................................................... 7
2.4 City Conditions to Close of Escrow...................................................................... 8
2.5 Developer Conditions to Close of Escrow ............................................................ 9
2.6 Costs; Escrow Holder Settlement Statement ...................................................... 10
2.7 Environmental Indemnity ................................................................................... 10
2.8 Deposits into Escrow by City ............................................................................. 11
2.9 Deposits into Escrow by Developer .................................................................... 11
2.10 Authorization to Record Documents and Disburse Funds .................................. 11
2.11 Escrow’s Closing Actions ................................................................................... 12
3. DEVELOPMENT COVENANTS .................................................................................. 12
3.1 Environmental Review........................................................................................ 12
3.2 Development of the Project ................................................................................ 13
3.3 City’s Right to Review Plans and Specifications ............................................... 13
3.4 Construction Contract ......................................................................................... 13
3.5 Costs of Entitlement, Development and Construction; Prevailing Wages ................................................................................................ 14
3.6 Rights of Access and Inspection ......................................................................... 14
3.7 Local, State and Federal Laws ............................................................................ 15
3.8 Governmental Permits and Approvals ................................................................ 15
3.9 No Discrimination During Construction ............................................................. 15 Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
TABLE OF CONTENTS (cont.)
Page
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3.10 Taxes, Assessments, Encumbrances and Liens .................................................. 15
3.11 No Agency Created ............................................................................................. 15
3.12 Certificate of Completion ................................................................................... 15
3.13 Capital Replacement Reserve ............................................................................. 15
4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS ............................ 16
4.1 Restrictions on Transfer of Developer’s Rights and
Obligations .......................................................................................................... 16
4.2 Holders of Deeds of Trust ................................................................................... 16
4.3 Rights of Holders ................................................................................................ 16
4.4 Succession of City’s Rights ................................................................................ 17
4.5 Noninterference with Holders ............................................................................. 17
4.6 Right of City to Cure........................................................................................... 17
4.7 Right of City to Satisfy Other Liens ................................................................... 17
5. DEFAULT, REMEDIES AND TERMINATION .......................................................... 18
5.1 Defaults ............................................................................................................... 18
5.2 Remedies ............................................................................................................. 19
5.3 No Personal Liability .......................................................................................... 19
5.4 Rights and Remedies are Cumulative ................................................................. 19
5.5 Inaction Not a Waiver of Default........................................................................ 19
5.6 Force Majeure ..................................................................................................... 19
6. INSURANCE; INDEMNITY ......................................................................................... 20
6.1 Insurance ............................................................................................................. 20
6.2 Indemnity ............................................................................................................ 21
7. REPRESENTATIONS AND WARRANTIES............................................................... 22
7.1 Developer Representations ................................................................................. 22 Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
TABLE OF CONTENTS (cont.)
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8. GENERAL PROVISIONS ............................................................................................. 22
8.1 Notices ................................................................................................................ 22
8.2 Construction ........................................................................................................ 23
8.3 Interpretation ....................................................................................................... 23
8.4 Time of the Essence ............................................................................................ 23
8.5 Warranty Against Payment of Consideration for Agreement ............................. 23
8.6 Attorneys’ Fees ................................................................................................... 23
8.7 Entire Agreement ................................................................................................ 23
8.8 Severability ......................................................................................................... 23
8.9 No Third-Party Beneficiaries .............................................................................. 24
8.10 Governing Law; Jurisdiction; Service of Process ............................................... 24
8.11 Survival ............................................................................................................... 24
8.12 City Actions ........................................................................................................ 24
8.13 Counterparts ........................................................................................................ 24
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TABLE OF CONTENTS (cont.)
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TABLE OF EXHIBITS
EXHIBIT “A” LEGAL DESCRIPTION OF LAND
EXHIBIT “B” FORM OF CITY LOAN PROMISSORY NOTE
EXHIBIT “C” FORM OF CITY LOAN DEED OF TRUST
EXHIBIT “D” SCHEDULE OF PERFORMANCE
EXHIBIT “E” SCOPE OF DEVELOPMENT
EXHIBIT “F” FORMS OF AFFORDABILITY RESTRICTIONS AND REGULATORY AGREEMENTS (2)
EXHIBIT “G” FORM OF CERTIFICATE OF COMPLETION
EXHIBIT "H" BASE PROJECT FINANCING SUMMARY
EXHIBIT "I" FORM OF FEE DEFERRAL AGREEMENT
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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DEVELOPMENT LOAN AGREEMENT
THIS DEVELOPMENT LOAN AGREEMENT (the “Agreement” or “DLA”) is dated as of _________, 2026 and is entered into by and between the CITY OF FAIRFIELD (the “ City”), and 212 E TABOR FAIRFIELD, L.P., a California limited partnership (“Developer”).
RECITALS
A. Developer owns the land described on Exhibit “A” (the “Property”), having acquired the Property from a private party utilizing Community Development Block Grant (“CDBG”) funds provided by the City of Fairfield.
B. Developer desires to obtain a loan from the Fairfield Housing Trust Fund (“FHTF”) and Fee Credits and Fee Deferrals from the City of Fairfield (“City”) for the purpose of developing a sixty-seven (67) unit apartment complex (the “Project”) on the Property.
A material inducement to the City to enter into this Agreement is the agreement by Developer to develop the Project as provided herein, and not sell or otherwise convey the Project until the Project is complete.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants contained in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Definitions. The following capitalized terms used in this Agreement shall have the meanings set forth below:
1.1.1 “Affiliated Person” means, when used in reference to a specific person, any person that directly or indirectly controls or is controlled by or under common control with the specified person, any person that is an officer or director of, a trustee of, or a general partner, managing member or operator in, the specified person or of which the specified person is an officer, director, trustee, general partner or managing member.
1.1.2 “Agreement” means this Development Loan Agreement.
1.1.3 “Base Project Financing Summary” means the summary of the Project financing showing current estimated total development costs and the City, and other loans, fee credits, fee deferrals and equity sources, attached hereto as Exhibit “H”.
1.1.4 “Building Permit” means, collectively, any and all permits necessary to grade the Land and construct the Project that would be issued by the City.
1.1.5 “Capital Replacement Reserve” means a reserve fund to be established by the Developer pursuant to Section 3.12 hereof.
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1.1.6 “Certificate of Completion” means the certificate described in Section 3.11.
1.1.7 “City Manager” means the City Manager of the City of Fairfield.
1.1.8 “Close of Escrow” is defined in Section 2.3.
1.1.9 “Construction Contract” is defined in Section 3.3.
1.1.10 “Debt Service” means required debt service payments under the Senior Project Loan (which will not require payments based on Residual Receipts or any similar concept) and reserve deposits, compliance monitoring fees and any mandatory payments (excluding any payments based on Residual Receipts or any similar concept) required by any Lender with a Permitted Security Instrument.
1.1.11 “Default” is defined in Section 5.1.
1.1.12 “Disapproved Title Exceptions” is defined in Section 2.4.1.
1.1.13 “Escrow” is defined in Section 2.3.
1.1.14 “Escrow Holder” means Old Republic Title Company.
1.1.15 “FIRPTA Affidavit” is defined in Section 2.9.1.3.
1.1.16 “Force Majeure Delay” is defined in Section 5.7.
1.1.17 “General Contractor” is defined in Section 3.3.
1.1.18 “Gross Revenues” means the sum of: the total rental income and all other revenues or income received by the Developer or its successors or assigns in connection with the Project, including without limitation Housing Rent, laundry charges or consideration received from an entity that contracts to provide laundry services, payments in connection with Section 8 certificates, if any (including payments under such certificates that are in excess of the restricted rents provided for herein), cable income or consideration received from an entity that contracts to provide cable services, and each of (i) amounts paid to Developer on account of Operating Expenses for further disbursement by Developer to a third party or parties; (ii) late charges and interest paid on rentals; (iii) rents and receipts from licenses, concessions, vending machines, coin laundry, and similar sources; (iv) other fees, charges, or payments not denominated as rental but payable to Developer in connection with the rental of office, retail, st orage, or other space in the Project; (v) consideration received in whole or in part for the cancellation, modification, extension or renewal of leases; (vi) interest and other investment earnings on security deposits, reserve accounts and other Project accounts to the extent disbursed and not added to the respective account or, in the case of reserve accounts, used to pay for repairs, capital improvements or to fund operating deficits, (vii) grants, but only to the extent they are used to pay Operating Exp enses or Debt Service, and (viii) all other income from the Project, but does not include insurance proceeds applied to reconstruct or repair the Project.
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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1.1.19 “Hazardous Materials” means any chemical, material or substance now or hereafter defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous waste, restricted hazardous waste, toxic substances, pollutant or contaminant, imminently hazardous chemical substance or mixture, hazardous air pollutant, toxic pollutant, or words of similar import under any local, state or federal law or under the regulations adopted or publications promulgated pursuan t thereto applicable to the Land, including, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 1801, e t seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et seq. (“RCRA”) The term Hazardous Materials shall also include any of the following: any and al l toxic or hazardous substances, materials or wastes listed in the United States Department of Transportation Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR. Part 302) and in any and all amendments thereto in effect as of the Close of Escrow Date; oil, petroleum, petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liqui ds, liquefied natural gas or synthetic gas usable for fuel, not otherwise design ated as a hazardous substance under CERCLA; any substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive (including any source, special nuclear or by product material as defined at 42 U.S.C. 2011, et seq.), carcinogeni c, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment which contain dielectric fluid containing levels of polychlorinated byphenyls; radon gas; or any other chemical, material or substance (i) which poses a hazard to the Land, to adjacent properties, or to persons on or about the Land, (ii) which causes the Land to be in violation of any of the aforementioned laws or regulations , or (iii) the presence of which on or in the Land requires investigation, reporting or remediation under any such laws or regulations.
1.1.20 “Holder” is defined in Section 4.2.
1.1.21 “Housing Rent” means the total of payments by the tenants of the Project for (a) use and occupancy of their rental unit and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits (until they are applied), and (c) a reasonable allowance for utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity and gas, provided that the rent charged as to any afforda ble unit shall not exceed the affordable rent described in the Regulatory Agreements.
1.1.22 “Improvements” means all buildings, landscaping, infrastructure, utilities, and other improvements to be built on the Land, as described in the Scope of Development.
1.1.23 “Institutional Lender” means any reputable, established and creditworthy bank (State or Federal), savings bank (State or Federal), trust company, insurance company, credit union, pension, welfare or retirement fund or system, real estate investment trust (or an umbrella partnership or other entity of which a real estate investment trust is the majority owner), Federal or State agency or nonprofit lender regularly making or guaranteeing mortgage Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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loans, investment bank or Fortune 500 company, or any combination of, any one or more of the entities described above.
1.1.24 “Land” means the land described on Exhibit “A” attached hereto.
1.1.25 “Lender” means the holder of any Security Instrument and such holder’s successors and assigns.
1.1.26 “Operating Expenses” means actual, reasonable and customary costs, fees and expenses directly incurred and for which payment has been made and which are attributable to the operation, maintenance, and management of the Project (but not any capital replacement reserves or other reserves, expenditures or capital), including without limitation the following (to the extent actual, reasonable and customary, and attributable to the operation, maintenance or management of the Project): painting, cleaning, repairs and alterations; landscaping; utilities; rubbish removal; sewer charges; real and personal property taxes and assessments; insurance premiums; security; advertising, promotion and publicity; office, janitorial, cleaning and building supplies; actual and customary salary payable to on-site staff which directly and exclusively benefits residents of the Project; reasonable current and accrued partnership and asset management fees, if required by Developer’s partnership agreement, with annual earnings not to exceed $25,000, increased by 3.5% each January 1 st, for the general partner, and with annual
earnings not to exceed $7,500, increased by 3.5% each January 1st, for the duration of the tax credit compliance period, for limited partners; a property management fee (“Management Fee”) to a property manager of not to exceed $62 per unit per month with 3.5% increasing each January 1 st,
plus $9.50 per unit per month for bookkeeping fees; purchase, repairs, servicing and installation of appliances, equipment, fixtures and furnishings; reasonable and customary fees and expenses of accountants, attorneys, consultants and other professionals as incurred commencing after the completion of the Project (as evidenced by the issuance by City of a certificate of occupancy) in connection with the operation of the Project; deposits to reserves from operating cash, as required by the Developer’s partnership agreement or any lender, or as reasonably necessary for the financial sustainability of the Project as determined by the Developer and approved by the City or the lender for the Senior Project Loan (such approval may be provided in the form of an approved annual Project Budget); payments of deductibles in connection with casualty insurance claims not normally paid from reserves; resident services, repayment of advances or loans from the general partner or its affiliates used for fund operating costs/deficits; and payment of any tax credit adjuster payments, repayment of loans from the limited partner and deferred developer fees. The Operating Expenses shall not include non- cash expenses, including without limitation, depreciation.
Operating Expenses shall also exclude all of the following: (i) salaries of employees of Developer or Developer’s general overhead expenses, or expenses, costs and fees paid to an Affiliated Person, except as set forth above; (ii) any amounts paid directly by a tenant of the Project which, if incurred by Developer, would be Operating Expenses; (iii) optional or elective payments with respect to the Senior Project Loan or any other loa n; (iv) Debt Service; (v) expenses, expenditures, and charges of any nature whatsoever arising or incurred by Developer prior to completion of the Project, or any portion thereof, including, without limitation, all predevelopment and preconstruction activi ties conducted by Developer in connection with the Project, including, without limitation, the preparation of all plans and the performance of any tests, studies, investigations or other work, and the construction of the Project and any on site or off site work in connection therewith; (vi) depreciation, amortization, and accrued principal and interest expense Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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on deferred debt; and (vii) any partnership internal fees except as set forth above. The Operating Expenses shall be reported in the Annual Financial Statement and Residual Receipts Report and shall be described in line-item format and detail.
1.1.27 “Party” means any party to this Agreement, and “Parties” means all parties to this Agreement.
1.1.28 “Permitted Exceptions” is defined in Section 2.4.2.
1.1.29 “Permitted Security Instrument” means any Security Instrument (a) that encumbers only the Project; (b) a copy of which, together with the related loan documents, is promptly after execution delivered to the City, (c) that is held by a Lender that is an Institutional Lender or by an affiliate of the Developer, and (d) only secures the repayment of money used to pay or reimburse the Total Development Costs or any Refinancing permitted by this Agreement.
1.1.30 “Plans and Specifications” means all drawings, landscaping and grading plans, engineering drawings, final construction drawings, and any other plans or specifications for construction of the Project.
1.1.31 “Project” means the Land and Improvements.
1.1.32 “Project Budget” is defined in Section 2.5.1.
1.1.33 “Purchase Price” is defined in Section 2.1.
1.1.34 “Refinancing” means any loan secured by a Permitted Security Instrument that Developer obtains to pay off all or a portion of an existing loan secured by a Permitted Security Instrument and costs in connection with such a loan.
1.1.35 “Released Parties” is defined in Section 2.8.3.
1.1.36 “Residual Receipts” for a particular Operating Year means Gross Revenues for the corresponding Operating Year less (i) Debt Service payments made during such Operating Year on the Senior Project Loan, or any other mandatory payments or loan fees paid from operating cash flow for other loans secured by a Permitted Security Instrument, in amounts not in excess of the amounts due and payable during such Operating Year ( i.e., not including prepayments); and (ii) Operating Expenses. All calculations of Residual Receipts shall be made annually, on or before July 1 for the preceding Operating Year, the components thereof shall be subject to verification and approval, on an annual basis, based upon conformity with the terms of this Agreement and the City Loan Promissory Note, by the City.
1.1.37 “Schedule of Performance” means the schedule attached hereto as Exhibit “D”.
1.1.38 “Scope of Development” means the description attached hereto as Exhibit “E”.
1.1.39 “Senior Project Loan” means the loan or loans that Developer obtains from an Institutional Lender in an amount that is sufficient to pay and the proceeds of Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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which are to be used and applied solely to pay (a) the reasonable costs of obtaining such loan, and (b) all or a portion of the Total Project Costs. Such loan shall provide for normal and customary disbursement controls for the payment of Total Project Costs as construction of the Project progresses and normal and customary fees and expenses for a loan of similar size and purpose.
Such loan may also provide for a portion of the loan to convert to a permanent loan status following completion of the Project. Any refinancing of a Senior Project Loan that either (i) does not exceed the outstanding principal balance of the loan refinanced plus refinancing loan closing costs or (ii) has Debt Service which does not exceed the Debt Service on the loan being refinanced or (iii) constitutes a “takeout” loan at conversion to the permanent phase, shall also be a Senior Project Loan.
1.1.40 “Title Company” shall mean the Escrow Holder ( i.e., the Title Company and the Escrow Holder are the same).
1.1.41 “Total Project Costs” means all hard and soft costs of the construction of the Project, including land costs and carry costs, as set forth in the Project Budget.
1.1.42 “Transfer” is defined in Section 4.1.
1.1.43 “Transferee” is defined in Section 4.1.
1.1.44 “Withholding Affidavit” is defined in Section 2.9.1.2.
2. CITY LOAN; FEE CREDITS AND DEFERRALS.
2.1 City Loan; City Deferred Fees; City Fee Credits . City shall make a construction loan to Developer in the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) (the “City Loan”), which shall be evidenced by the promissory note (“ City Loan Promissory Note”) attached hereto as Exhibit “B”.
The City Loan Promissory Note shall be secured by a deed of trust on the Project in the form attached hereto as Exhibit “C” (“City Loan Deed of Trust”). The City shall reasonably subordinate the City Loan Deed of Trust and the Affordability Restrictions and Regulatory Agreement (Fairfield Housing Funds), but not the Affordability Restrictions and Regulatory Agreement (Density Bonus; Fee Deferral; Fee Credits ), to the deed of trust securing the Senior Project Loan by a reasonable subordination agreement approved by the City Manager . The City loan shall be repaid with Residual Receipts, as described in the City Loan Promissory Note.
On or before July 1 of each calendar year commencing in the first year following receipt of a certificate of occupancy for the Project, Developer shall provide the C ity with an annual Residual Receipts report in form and substance reasonably acceptable to City that include annual financial statements with respect to the Project that have been reviewed by an independent certified public accountant, together with an express written opinion of such independent certified public accountant that such report prese nts the financial position, results of operations and cash flows of the Project accurately and in accordance with tax accounting principles (“Annual Financial Report”). In the event the Residual Receipts reported or paid deviate by three percent (3%) or more from that amount determined to be owing upon review of Developer’s submittal and Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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an audit (and the City shall have the right to audit), Developer shall reimburse C ity for its cost to review and shall pay the amounts owing.
Subject to the approval of the Director of Community Development of the City of Fairfield, and as a condition to the Close of Escrow (for the benefit of both City and Developer), the City shall provide: (i) an amount not to exceed $1,000,000 of Fee Credits under Section 5.4.4 of the City of Fairfield Municipal Code; and (ii) up to $1,500,000 (as increased by adjustments to the area of the Project/Improvements and by increases in fees enacted after the date hereof) of Fee Deferrals under Section 5.4.3 of the City of Fairfield Municipal Code (“Fee Deferral”). The Fee Deferral shall be evidenced by a Fee Deferral Agreement in the form attached hereto as Exhibit “I”. The Fee Deferral Agreement shall be recorded at the Close of Escrow prior to the deed of trust securing the Senior Project Loan, and shall not be subordinated to the deed of trust securing the Senior Project Loan.
2.2 Opening and Closing of Escrow. Within ten (10) business days after tax credits are awarded, the City and the Developer shall cause an escrow (the “Escrow”) to be opened with Escrow Holder for the closing o f the City Loan and the Senior Project Loan. The Parties shall deposit with Escrow Holder a fully executed duplicate original of this Agreement as the escrow instructions for the Escrow. The C ity and Developer shall provide such additional instructions as shall be necessary and consistent with this Agreement. Provided that each of the conditions to closing described in Section 2.7 have been satisfied, Escrow shall close (the “Close of Escrow”) within seven (7) months after the award of tax credits, but not later than July 30, 2028; provided, however, that if Developer shall not have received an amount of federal tax credits by such fixed date, then the City Manager may extend such date in writing for up to two (2) calendar years. If the Close of Escrow does not occur by such date, as so extended, any party not then in default may terminate this Agreement b y written notice to the other and all the funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing party, except that all escrow and title cancellation fees shall be paid by Developer. Developer shall diligently, reasonably, and in good faith apply for federal tax credits at each time application is permitted under applicable law until sufficient federal tax credits are awarded to Developer for the Project.
2.3 Condition of Title; Title Insurance.
2.3.1 Title Exceptions; Survey. Upon CITY’s delivery to Developer of a copy of this Agreement executed by City, Developer shall obtain a preliminary title report for the Property (the “PTR”) from the Title Company and shall deliver it (or cause it to be delivered to) City at [email protected], which shall include hyperlinks to copies of the title exception documents. C ity shall have thirty (30) days after delivery of the PTR to review and approve or disapprove any title exceptions in the PTR, and notify Developer in writing of any such title exceptions to which City objects. If Developer notifies City that Developer will remove (or cause to be removed) one or more of such title exceptions, then Developer shall do so on or before the Close of Escrow (unless this Agreement is terminated by Developer under this Section or Section 2.8.2 below). If Developer fails to so notify City , or declines to remove title exceptions, then City may terminate this Agreement by written notice toDeveloper. As used herein, the term “Disapproved Title Exceptions” shall mean any title exceptions that City has disapproved.
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2.3.2 Title exceptions in the City lender’s title policy may, however, include non-delinquent current real property taxes and assessments not yet due for the tax year during which the conveyance occurs , and that certain Deed of Trust With Assignment of Rents dated June 9, 2020 recorded on October 23, 2020 as Document No. 202000093654 in the Official Records of Solano County, California, as amended, and the deed of trust (as amended) securing the Senior Project Loan.
2.4 City Conditions to Close of Escrow. The obligation of the City to make the City loan and close Escrow shall be subject to the satisfaction (or express written waiver by the City Manager) of each of the following conditions (collectively, the “City Conditions”):
2.4.1 Developer shall have submitted to the City Manager , and the City Manager shall have approved, a comprehensive project budget, showing line items for each type of expenditure and the applicable sources of funds (the “Project Budget”), together with a copy of all commitments obtained by the Developer for construction financing, permanent financing, and other financing from external sources (including but not limited to tax credit equity and deferred Developer fees) to assist in financing the development of the Development, certified by the Developer to be true and correct, and an audited financial statement (or other evidence in a form satisfactory to the City ) demonstrating that the Developer has sufficient additional capital funds (i.e., “equity”) available and is committing such funds (and/or deferring development or other fees) to cover the difference, if any, between costs of development of the Development and the funds available to the Developer to construct the Improvements (the “Project Budget”).
2.4.2 The Developer shall have delivered to the City a copy of the construction loan documents for the Senior Project Loan, financial terms of which must be consistent with the Project Budget.
2.4.3 The Senior Project Loan and all other loans necessary to finance construction of the Improvements shall close prior to or concurrently with the Close of Escrow , and Developer shall have been awarded sufficient tax credits and shall have obtained sufficient commitments for tax credit equity as is necessary for the Project.
2.4.4 The City Manager shall have approved the executed Construction Contract for the Project, as provided in Section 3.3 hereof.
2.4.5 The Developer shall have submitted to the City Manager a description of the legal and ownership structure of the Developer and the City Manager shall have approved such entity and documents.
2.4.6 The City shall have received evidence acceptable to the City Manager that the construction -related insurance required by Section 6.1 of this Agreement shall be in effect.
2.4.7 All conditions to the issuance of the Building Permit shall have been approved/issued and a “permit ready” letter shall have been issued by the City (and any permit fees still payable after any fee credits are applied, shall be paid at or immediately following Close of Escrow).
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2.4.8 The Developer shall have provided evidence to the City that the Developer’s general contractor is experienced, creditworthy and able to construct and complete the Project (pursuant to the Construction Contract) and, unless such bonds are waived ( i.e., and not required) by the lender of the Senior Project Loan, evidence that the obligations of Developer’s general contractor to construct the Project have been bonded, for the express benefit of Developer and Developer’s construction lender. If the bondi ng requirement applies, Developer shall secure and deposit with the City a Performance Bond and a Labor and Material Payment Bond (in the form of AlA form A311 or A312), issued by a surety admitted to issue insurance in the State of California and otherwise acceptable to the City Manager, securing the faithful performance by the General Contractor of the completion of construction of the Improvements free of all liens and claims, within the time provided in the Schedule of Performance attached hereto. Such bond shall be in an amount equal to one hundred percent (100%) of the stipulated sum or guaranteed maximum price, as applicable. Such construction bond shall be issued by a company acceptable to the City and listed in the current United States Treasury Department circular 570 and otherwise within the underwriting limits specified for that company in such circular. All of the foregoing shall be satisfactory in form and substance to the City Manager.
2.4.9 Director of Community Development of the City of Fairfield shall have approved an amount not to exceed $1,000,000 of fee credits under Section 5.4.4 of the City of Fairfield Municipal Code.
2.4.10 The Director of Community Development of the City of Fairfield shall have granted the Fee Deferrals to Developer under Section 5.4.3 of the City of Fairfield Municipal Code, and Developer and City will have executed and delivered to escrow the Fee Deferral Agreement.
2.4.11 Developer shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow.
2.4.12 Issuance to City of a lender’s title policy in the amount of the City Loan, insuring that the City Deed of Trust is not subject to any Disapproved Title Exceptions.
2.5 Developer Conditions to Close of Escrow. The obligations of the Developer to close escrow shall be subject to the satisfaction (or waiver by Developer) of the following conditions (the “Developer Conditions”):
2.5.1 There shall have been no change to the physical condition of the Property and no new title exceptions after the date of the PTR that, in either case, would materially and adversely affect the development, use or operation of the Project.
2.5.2 The delivery by City of all documents and funds required to be delivered pursuant to Section 2.9 hereof.
2.5.3 The Title Company shall have committed to issue at the Close of Escrow an ALTA owner’s title insurance policy, with any extended coverage and endorsements requested by Developer, showing fee simple title to the Land vested in Developer (or Developer’s assignee as permitted by this Agreement), subject only to the Permitted Exceptions.
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2.5.4 City shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow.
2.5.5 Director of Community Development of the City of Fairfield shall have approved $1,000,000 of fee credits under Section 5.4.4 of the City of Fairfield Municipal Code.
2.5.6 The Director of Community Development of the City of Fairfield shall have granted Fee Deferrals to Developer under Section 5.4.3 of the City of Fairfield Municipal Code, and Developer and City will have completed, executed and delivered to escrow the Fee Deferral Agreement executed by the City.
2.5.7 City shall have made the City Loan to Developer, or such loan will be made concurrently with the Close of Escrow.
2.5.8 Developer shall have obtained the Senior Project Loan, any other loans necessary to finance the Improvements, and the tax credits for the tax credit equity necessary to pay the costs of the Improvements (after deferral of Developer fees).
2.6 Costs; Escrow Holder Settlement Statement.
2.6.1 Developer shall be solely responsible for all costs and expenses , including escrow fees and title insurance costs.
2.6.2 Escrow Holder is authorized on the Close of Escrow to pay and charge the Developer for any fees, charges and costs payable under Section 2.6.1 as set forth on the settlement statements approved by the Parties. Before such payments are made, Escrow Holder shall notify the City and Developer of the fees, charges, and costs necessary to close under the Escrow, by delivering draft settlement statements to the Parties for their mutual approval.
2.7 Environmental Indemnity. From and after the Close of Escrow, Developer shall indemnify, protect , defend and hold harmless the the City and the and City’s officials, officers, attorneys, employees, consultants, agents and representatives, from and against any and all claims, liabilities, suits, losses, costs, expenses and damages, including but not limited to reasonable attorneys’ fees and costs, arising dir ectly or indirectly out of any claim for loss or damage to any property, including the Property, injuries to or death of persons, or for the cost of cleaning up the Land and removing Hazardous Materials or toxic substances, materials and waste therefrom, by reason of contamination or adverse effects on the environment, or by reason of any statutes, ordinances, orders, rules or regulations of any governmental entity or agency requiring the clean-up of any Hazardous Materials caused by or resulting from any Hazardous Material, or Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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toxic substances or waste existing on or under, any portion of the Property acquired by Developer or other portion of the Land or Improvements.
2.8 Deposits into Escrow by City.
2.8.1 The City hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following instruments and documents, the delivery of each of which shall be a condition of the Close of Escrow:
2.8.1.1 A Subordination Agreement subordinating the City Deed of Trust and the Affordability Restrictions and Regulatory Agreement (Housing Trust Funds) (but not the Affordability Restrictions and Regulatory Agreement (Density Bonus; Fee Deferral; Fee Credits)) to the Senior Project Loan deed of trust, in a form reasonably approved by the City Manager.
2.8.1.2 Counterpart of two (2) Affordability Restrictions and Regulatory Agreements in the forms attached hereto as Exhibit “ F”, duly executed by City and acknowledged (“Regulatory Agreements”).
2.8.1.3 A Request for Notice, duly executed by the City and acknowledged (with respect to the Senior Project Loan deed of trust) (the “Request”).
2.8.1.4 A counterpart of the Fee Deferral Agreement in the form attached hereto as part of Exhibit “I”, duly executed by City and acknowledged.
2.9 Deposits into Escrow by Developer.
2.9.1 The Developer hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following instruments and documents duly executed and acknowledged where appropriate, the delivery of each of which shall be a condition of the Close of Escrow:
2.9.1.1 The City Loan Promissory Note in the form attached hereto as part of Exhibit “B”, executed by Developer.
2.9.1.2 The City Loan Deed of Trust in the form attached hereto as Exhibit “C” duly executed by Developer and acknowledged.
2.9.1.3 Counterparts of the Regulatory Agreements, duly executed by Developer and acknowledged.
2.9.1.4 A counterpart of the Fee Deferral Agreement duly executed by Developer and acknowledged.
2.10 Authorization to Record Documents and Disburse Funds . Escrow Holder is hereby authorized to deliver the original executed City Loan Promissory Note to City, and record Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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the documents and disburse the funds and documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled:
(i) The Title Company is unconditionally committed to issue in favor of City a lender’s policy of title Insurance with a liability amount equal to the City Loan, subject only to the Permitted Title Exceptions.
(ii) The City and the Developer shall have deposited in Escrow the documents and funds required pursuant to Sections 2.8 and 2.9. (iii) The City and Developer have confirmed to Escrow Holder that all other City Conditions and Developer Conditions have been satisfied or expressly waived in writing by the Party benefited thereby.
Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for issuance of Developer’s title insurance policy.
2.11 Escrow’s Closing Actions. On the Close of Escrow, Escrow Holder shall:
2.11.1 Record the Affordability Restrictions and Regulatory Agreement (Density Bonus; Fee Deferral; Fee Credits), then the Fee Deferral Agreement, then deed of trust securing the Senior Project Loan, then the Affordability Restrictions and Regulatory Agreement (Housing Trust Funds); then the City Loan Deed of Trust, then the Request, and finally the Subordination Agreement in the Official Records of Solano County;
2.11.2 Issue the Title Policy (or cause the Title Company to issue the Title Policy to the City.
2.11.3 From funds deposited by Developer, pay costs payable by Developer as shown on the approved preliminary settlement statement approved by City and Developer settlement statement, and return any excess to Developer;
2.11.4 Prepare and deliver to both Developer and the City one signed copy of Escrow Holder’s final settlement statement showing all receipts and disbursements of the Escrow; and
3. DEVELOPMENT COVENANTS.
3.1 Environmental Review . Environmental analyses required under the California Environmental Quality Act (Pub. Res. Code § 21000 et seq.) (“CEQA”) has been completed. The parties acknowledge that the City of Fairfield, acting as the lead agency, has determined that the Project is exempt from CEQA pursuant to Public Resources Code Section 21159.23 and CEQA Guidelines Section 15194 and has filed a Notice of Exemption on February 25, 2020. The parties acknowledge that no development of the Property will occur unless and until environmental analyses required under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) has been completed to inform the parties of the potential environmental effects of development, and alternatives and mitigation measures therefore. The parties further Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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acknowledge that the parties retain the discretion to modify Project as may be necessary to comply with NEPA, select other feasible alternatives to avoid significant environmental effects identified during the NEPA processes, balance the benefits of any pr oposed development against any significant environmental effects prior to taking final action if such significant effects cannot otherwise be avoided, and/or determine not to proceed with any proposed development. Developer shall not take any action to construct or install anything for or in relation to the Project until NEPA review has been completed. The City of Fairfield has also prepared an Environmental Assessment and Finding of No Significant Impact pursuant to NEPA, which was published for public comment pursuant to NEPA requirements . Developer acknowledges that approval or disapproval of the Project following completion of the environmental review process is within the sole, complete, unfettered, and absolute discretion of the City 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 to provide environmental clearance. The parties recognize that, as a result of the environmental review process, City has the absolute discretion a nd right to terminate this Agreement, and no cost shall be incurred by City as a result of such. In addition, Developer acknowledges that any required approvals by any other local, state or federal agency may require additional environmental review, and that any approval by the City shall not bind any other local, state or feder al agency to approve the Project pursuant to the City’s environmental review.
Developer has the right to terminate this Agreement if the City disproves of the Project following completion of the environmental review process; or, Developer determines that implementation of any required environmental measure or alternative would cause the Project to become economically infeasible.
3.2 Development of the Project . Developer shall develop the Project in accordance with the Scope of Development, the Schedule of Performance, all requirements of any and all applicable federal, state and local laws, rules and regulations (including any conditions of approval required by the City, the Plans and Specifications, and all other terms, conditions and requirements of this Agreement. Developer shall comply with the Schedule of Performance in a timely manner, provided that the obligations of Developer set forth therein which are to be performed after the Close of Escrow shall be delayed by Force Majeure Delays, if applicable.
Until a Certificate of Completion is issued, the Developer shall promptly provide the City with written, detailed progress reports, as reasonably requested by the City , regarding the status of the construction of the Improvements.
3.3 City’s Right to Review Plans and Specifications . In connection with construction of the Project, Developer shall comply in all material respects with Plans and Specifications approved by the City. Developer shall deliver the Plans and Specifications for the Improvements to the City, in its proprietary capacity ( i.e., its capacity as a party to this contract, as opposed to its governmental capacity) for its review ten (10) days prior to their submission to the City to ensure that the Improvements are const ructed in accordance with the Scope of Development and the other applicable provisions of this Agreement. Following such ten (10) day period, Developer may submit the Plans and Specifications to the City.
3.4 Construction Contract. Developer shall retain one or more reputable and financially responsible general contractors (each, a “General Contractor”) to undertake the construction of the Project. Each General Contractor shall be acceptable to and approved in writing by the City Manager (in the exercise of his reasonable discretion), licensed in California, shall Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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have any other licenses required by the City , and shall be experienced in constructing the type of improvements constituting the Improvements. The General Contractor shall be deemed to have been approved if the City Manager fails to approve or disapprove of the General Contractor within five (5) business days after receipt of all requested information relating to the General Contractor.
On or before the date set forth in the Schedule of Performance, Developer shall enter into a written contract, in form a nd substance reasonably acceptable to the City Manager (the “Construction Contract”), with the General Contractor(s) for performing the work constituting the construction of all of the Project. Each such Construction Contract shall be a guaranteed maximum cost contract or stipulated sum insuring construction of the improvements for a fixed or maximum price, and shall obligate the General Contractor to commence and complete such construction in accordance with this Agreement and all applicable federal, stat e and local laws, rules and regulations. Each such Construction Contract shall provide for retention of at least ten percent (10%) (reduced to 5% retainage following 50% Project completion) from each progress payment (except there shall be no retention for any items excused from retention as specified in the Construction Contract) until the final payment, and said final payment shall not be paid to the General Contractor until the portion of the Project covered by such Construction Contract shall have been completed to Developer’s satisfaction, and Developer shall have obtained all appropriate lien waivers from the General Contractor and its subcontractors, or bonds acceptable to Developer in form and amount, insuring against loss arising from any mechanics ’, laborers’, materialmen’s or similar liens filed against the Project.
3.5 Costs of Entitlement, Development and Construction; Prevailing Wages .
The Developer agrees that all costs, expenses and fees associated with the development and construction of the Project including the costs for developing and constructing the Improvements thereon (including, but not limited to, the land acquisition cost s and governmental permits and approvals) shall be borne by Developer.
Developer shall pay and cause its contractors to pay any wages for construction of the Improvements that may be required by law, such as the Davis-Bacon Act (due to project-based “Section 8” vouchers or otherwise).
3.6 Rights of Access and Inspection. In addition to those rights of access to and across the Land to which the City may be entitled by law, members of the staffs of the City shall have a reasonable right of access to the Land, without charge or fee, during normal construction hours, upon 48 hours’ notice to Developer (which may be telephonic notice to Developer’s Chief Real Estate Officer or their designee) to inspect the work being performed at the Land in connection with the initial development of the Project but shall not be obligated to do so and City shall not be liable for any failure to disclose any information discovered by C ity (or that could or should have been discovered by any C ity inspection). The C ity shall also have the right at all reasonable times upon reasonable notice to inspect and copy the books, records and all other documentation of the Developer pertaining to its obligations under this Agreement. City shall defend, indemnify and hold Developer harmless from and against any and all claim s, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and cost) resulting from the entry onto the Property for such purposes, except to the extent any such claims, liabilities, loss, damages, costs o r expenses are the result of the negligence or willful misconduct of Developer.
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3.7 Local, State and Federal Laws. Developer shall carry out the construction of the Improvements on the Land in conformity with all applicable federal, state and local laws, including all applicable federal and state occupation, safety and health standards.
3.8 Governmental Permits and Approvals . Before commencement of construction or development of any work of improvement on the Land, Developer shall (at Developer’s expense) secure, or cause to be secured, the Building Permit, and any other required governmental permits and approvals.
3.9 No Discrimination During Construction. Developer, for itself and its successors and assigns, agrees that it shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin in the construction of the Improvements.
3.10 Taxes, Assessments, Encumbrances and Liens. Developer shall pay when due all real property taxes and assessments assessed or levied on portions of the Land from time to time owned by Developer, commencing immediately after closing of the land acquisition.
3.11 No Agency Created . In performing this Agreement, Developer is not the agent of the City. The City is not an agent of Developer. The City shall not have any responsibility whatsoever for payment to any contractor or supplier of Developer or its contractors. Developer shall not have any responsibility whatsoever for payment to any contractor or supplier of the City.
3.12 Certificate of Completion . Upon Developer’s completion of the construction of the Project, Developer will apply to the City for a Certificate of Completion (which shall be substantially in the form attached hereto as Exhibit “ G”). The City’s issuance of the Certificate of Completion shall constitute the acknowledgement of the C ity that Developer has complied in all respects with its development obligations (and only the development obligations) set forth in this Article 3. Promptly following the City’s issuance of a certificate of occupancy for the entire project, and provided that Developer is then in full compliance with all of its obligations under Article 3 of this Agreement, the City Manager shall execute, acknowledge and deliver the Certificate of Completion, which shall be recorded in the Official Records of Solano County. If the City Manager believes that the Developer is not in compliance with its obligations under this Article 3, the City Manager shall promptly specify the nature of such non- compliance by written notice to Developer.
3.13 Capital Replacement Reserve. Upon completion of the Project, Developer shall annually set aside $500 per unit or such greater amount as may be required or approved by the Senior Project Loan documents delivered to City, from the gross rents received by the Project into a separate Capital Replacement Reserve account identified in writing to C ity. Funds in the Capital Replacement Reserve shall be used only for capital repairs, improvements and replacements to the accepted accounting principles. The non- availability of funds in the Capital Replacement Reserve does not in any manner relieve or lessen Developer’s obligations to undertake any and all necessary capital repairs, improvements or replacements and to continue to maintain the Project in the manner prescribed in this Agreement or the Regulatory Agreements.
Notwithstanding the foregoing, this Section 3.13 shall not apply to the Senior Project Lender or any foreclosure transferee following a foreclosure or deed in lieu of foreclosure of the Senior Project Loan.
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4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS.
4.1 Restrictions on Transfer of Developer’s Rights and Obligations . Prior to issuance of a Certificate of Completion for the Project, Developer shall not sell, assign, transfer, mortgage, lease (except for leases/rental agreements that comply with the Regulatory Agreements, hypothecate, or convey (collectively, a “Transfer”) the Project or any part thereof or any of Developer’s rights or obligations hereunder, or agree to do so, or change the managers or managing members of Developer or (after assignment to a tax credit limited partnership approved by the City Manager), the general partner of Developer (except for cause and in accordance with the limited partnership agreement of Developer, which shall not require C ity’s consent) or transfer fifty percent (50%) or more of the ownership interests in Developer in a single transaction or series of transactions, without the City’s prior written consent, which consent may be granted or withheld in the City’s sole and absolute discretion, except that the C ity’s consent shall not be required for:
(i) the assignment of this Agreeme nt to a tax credit limited partnership drectly or indirectly controlled by Developer and which is at least 50% owned directly or indirectly by Developer, as shown by reasonable evidence delivered to the City (and provided that City is given a copy of the assignment and assumption agreement and the LLP -1 and operating agreement of the limited partnership); (ii) admission of one or more tax credit limited partner(s) or subsequent transfer of limited partner interests, or (ii i) execution of one or more deeds of trust and related instruments securing Developer’s construction and permanent financing (provided a copy is given to City), or (iv) a conveyance of the Project resulting from the foreclosure thereof (or a deed in lieu of such a foreclosure), or (v) the grant, exercise and subsequent transfer of the Property pursuant to an option or right of first refusal to Developer’s general partner or an affiliate thereof in accordance with Developer’s partnership documents and Section 42 of the Internal Revenue Code (each of the foregoing in this clause ( v) shall be referred to herein as a “Permitted Transferee”). Developer acknowledges that the identity of Developer is of particular concern to the C ity, and it is because of Developer’s identity that the City has entered into this Agreement with Developer. Except for any Transferee approved by the C ity pursuant to this Section 4.1, any Permitted Transferee and except for any Holder (defined in Section 4.2), no voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement prior to the issuance of a Certificate of Completion. Except with respect to a transfer to a Permitted Transferee, no transfer or assignment of Developer’s interest hereunder without the C ity’s prior written approval shall release Developer from the obligations of Developer hereunder.
4.2 Holders of Deeds of Trust. Notwithstanding any provisions of Section 4.1 to the contrary, Developer shall have the right to hypothecate its interest in the Land and the Project pursuant to one or more deeds of trust from an Institutional Lender, for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Project (including land development costs, reasonable and customary developer fees, loan fees and costs, and other normal and customary project costs), or for refinancing the constructi on financing with permanent financing. Any Institutional Lender of record holding any such deed of trust, whose name and address shall have been provided by Developer to City referred to herein as a “Holder.”
4.3 Rights of Holders. The City shall deliver a copy of any notice or demand to Developer concerning any breach or default by Developer under this Agreement to each Holder who has previously made a written request to the City for special notice hereunder. Any notice of breach or default by Developer shall not be effective against any such Holder unless given to such Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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Holder. Such Holder shall have the right, but not the obligation, at its option to cure or remedy any such default and to add the cost thereof to the secured debt and the lien of its security interest.
If such breach or default can only be remedied or cured by such Holder upon obtaining possession, such Holder may remedy or cure such breach or default within a reasonable period of time after obtaining possession, provided such Holder seeks possession with diligence through a receiver or foreclosure. Such Holder shall not be obligated to undertake or continue the construction or completion of the Improvements beyond the extent necessary to conserve or protect the Improvements already constructed. Any Holder completing the Improvements must assume all rights and obligations of Developer under this Agreement and shall then be entitled, upon written request made to the City, to a Certificate of Completion from the City.
4.4 Succession of City’s R ights. In any case where the applicable Holder, having first exercised its option to construct, has not proceeded diligently with the completion of construction after first exercising such option, C ity shall be afforded those rights against such Holder it would otherwise have against the Developer under this Agreement.
4.5 Noninterference with Holders . The provisions of this Agreement do not limit the right of Holders (a) to foreclose or otherwise enforce any mortgage, deed of trust, or other security instrument encumbering all or any portion of the Project, (b) to pursue any remedies for the enforcement of any pledge or lien encumbering such portions of the Project, or (c) to accept, or cause its nominee to accept, a deed or other conveyance in lieu of foreclosure or other realization. No Holder is obligated by, or to perform, any of the Developer's obligations under this Agreement, including, without limitation, to construct or complete any improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in conveyances from City to the Developer evidencing the realty comprising the Property or any part thereof be construed so to obligate such Holder. However, nothing in this Agreement shall be deemed to permit or authorize any Holder to devote the Property or any portion thereof t o any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. The City agrees to execute such further documentation regarding the rights of any Holder as is customary with respect to construction or permanent financing, as the case may be, to the extent that such documentation is reasonably requested by any Holder and is reasonably approved by the City Manager.
4.6 Right of City to Cure. In the event of a default or breach by the Developer of a loan by a Holder prior to the completion of the Improvements, the City may, upon prior written notice to the Developer, cure the default, prior to the completion of any foreclosure. In such event the City shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the City in curing the default. The C ity shall also be entitled to a lien upon the Project or any portion thereof to the extent of such costs and disbursements. The City agrees that such lien shall be subordinate to any lien in favor of a Holder, and the C ity shall execute from time to time any and all documentation reasonably requested by the Developer to effect such subordination.
4.7 Right of City to Satisfy Other Liens . After the Close of Escrow and after the Developer has had a reasonable time (not exceeding 30 days) to challenge, cure, or satisfy any liens or encumbrances on the Project or any portion thereof, and has failed to do so within thirty (30) days, in whole or in part, the City shall, upon prior written notice to the Developer, have the right to satisfy any such lien or encumbrances; however, nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment , lien or charge so Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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long as the Developer in good faith shall contest the validity or amount therein and so long as such delay in payment shall not subject the Land or any portion thereof to forfeiture or sale.
5. DEFAULT, REMEDIES AND TERMINATION.
5.1 Defaults. The occurrence of any or all of the following shall constitute a default (“Default”) under this Agreement:
5.1.1 Developer’s failure to timely comply with the Schedule of Performance, subject to Section 5.7;
5.1.2 Any breach of this Agreement by any Party involving the payment of money, and the continuance of such breach for a period of ten (10) days after the non defaulting Party has given written notice to the defaulting Party;
5.1.3 Except as otherwise provided in Section 5.1.1 hereof, a breach of any other term of this Agreement by any Party not involving the payment of money, and failure of such Party to cure such breach within thirty (30) days after the non defaulting Party has given written notice to the defaulting Party; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then such Party shall be deemed in Default only if such Party does not commence to cure such breach within such thirt y (30) day period and thereafter fails to diligently prosecute such cure to completion;
5.1.4 Developer’s violation of Section 4.1;
5.1.5 Developer’s failure or refusal to keep in force and effect any material permit or approval with respect to construction of the Project, and Developer’s failure to cure such breach within thirty (30) calendar days after notice from the City of Developer’s breach; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then Developer shall be deemed in Default only if Developer does not commence to cure such breach within such thirty (30) day period and thereafter fails to diligently prosecute such cure to completion; or
5.1.6 Filing of a petition in bankruptcy by or against any Party or appointment of a receiver or trustee of any property of any Party, or an assignment by any Party for the benefit of creditors, or adjudication that such Party is insolvent by a court, and the fa ilure of such Party to cause such petition, appointment, or assignment to be removed or discharged within 180 days.
5.1.7 The failure to comply with any of the requirements of Section 6 below;
5.1.8 If applicable under Section 2.5.8, the failure to maintain, or the cancellation of, any of the bonds described in Section 2.5.8 prior to the issuance of a Certificate of Completion.
5.1.9 The failure of Developer to reasonably apply for federal tax credits in all possible tax credit rounds until awarded, or the failure to deliver to C ity evidence of an Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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application for tax credits after the application is submitted or amount granted within ten (10) days after written request from City.
5.1.10 A default by Developer under that certain City of Fairfield Community Development Block Grant (CDBG) Funding Agreement dated July 11, 2020, executed by the City of Fairfield and EAH Inc. and Developer, as amended, or that certain Deed of Trust With Assignment of Rents (as amended) securing such agreement.
5.2 Remedies.
5.2.1 Remedies Prior to the Close of Escrow. In the event of a Default by any Party prior to the Close of Escrow, the non defaulting Party shall have the right to terminate this Agreement (provided it is not in Default of its obligation under this Agreement), by delivering written notice thereof to the defaulting Party.
5.2.2 Remedies for Default After the Close of Escrow . In the event of a Default by Developer after the Close of Escrow, City may accelerate the City Loan and the City shall be entitled to payment of the deferred fees, and if not promptly paid within ten (10) days after written demand, C ity may proceed with its remedies under the C ity Deed of Trust, including foreclosure.
5.3 No Personal Liability . No representative, agent, attorney, consultant, or employee of the C ity shall personally be liable to the Developer or any successor in interest of Developer, in the event of any Default or breach by the City, or for any amount which may become due to Developer or any successor in interest, on any obligation under the terms of this Agreement.
No representative, agent, attorney, consultant, or employee of the Developer shall personally be liable to the City or any successor in interest of City, in the event of any Default or breach by the Developer, or for any amount which may become due to City or any successor in interest, on any obligation under the terms of this Agreement.
5.4 Rights and Remedies are Cumulative. To the extent permitted by law, t he rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the non defaulting Party; provided, however, that liquidated damages specified herein shall constitute the sole damages recoverable for the default giving rise to such liquidated damages.
5.5 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such Party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. The acceptance by a Party of less than the full amount due from the other party shall not constitute a waiver of such Party’s right to demand and receive the full amount due, unless such Party executes a specific accord and satisfaction.
5.6 Force Majeure. Following the Close of Escrow, and notwithstanding anything to the contrary in this Agreement, nonperformance of a construction obligation in the Schedule of Performance shall be excused when performance is prevented or delayed by reason of Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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any of the following forces reasonably beyond the control of such party (a “Force Majeure Delay”):
(i) failure to perform by Developer attributable to any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party hereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body; or (ii) delay attributable to severe weather, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion, or any other cause beyond the reasonable control of the party from whom performance is required, or any of its contractors or other representatives. Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the performance of the party affected for a period of time equal to any such prevention, delay or stoppage (except the obligations of either party to pay money to the other party or to close escrow) provided that the Party claiming the Force Majeure Delay notifies the other Party of the Force Majeure Delay within a reasonable time (not to exceed ten business days) after the commencement of the Force Majeure Delay.
6. INSURANCE; INDEMNITY.
6.1 Insurance.
6.1.1 From and after the Close of Escrow and for so long as title to the Land has not reverted to the C ity as the result of a foreclosure under the C ity Deed of Trust , Developer shall obtain and maintain at no cost or expense to the C ity, with a reputable and financially responsible insurance company reasonably acceptable to the City, (i) after the opening of the Project for business, commercially reasonable casualty insurance for the Improvements in an amount not less than the replacement cost of the Improvements (subject to commercially reasonable deductibles); (ii) commercial broad form general liability insurance, insuring against claims and liability for bodily injury, death, or property damage arising from the construction, use, occupancy, condition, or operation of the Land, which liability insurance shall provide combined single limit protection of at least $2,000,000 and shall include a reasonable inflation rider, contractual liability coverage and products and completed operations coverage, and (iii) commercial automobile liability insurance, or non -owned/hired automobile insurance provided through Developer’s general liability policy, of at least $1,000,000 combined single limit.
Such liability insurance policies shall name the C ity and their council members, board members, officers, agents and employees as additional insureds.
6.1.2 Before commencement of any demolition or construction work by Developer on any portion of the Land owned by Developer, Developer shall obtain and maintain in force until completion of such work (i) “all risk” builder’s risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to the C ity, and (ii) workers’ compensation insurance covering all persons employed by Developer in connection with work on the Project, or any portion thereof. During the construction of Improvements on any portion of the Land by Developer, such builder’s risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors’, subcontractors’, and construction managers’ tools and equipment and property owned by contractors’ and subcontractors’ employees.
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6.1.3 Each architect and each engineer engaged by Developer shall provide professional liability insurance with a limit of liability of at least One Million Dollars ($1,000,000.00).
6.1.4 Developer shall also furnish or cause to be furnished to the C ity evidence satisfactory to the C ity that any contractor with whom it has contracted for the performance of work on the Land or otherwise pursuant to this Agreement carries workers’ compensation insurance as required by law.
6.1.5 With respect to each policy of insurance required above, Developer and each of Developer’s general contractors, engineers and architects shall furnish to the C ity a certificate on the insurance carrier’s form setting forth the general provisions of the insurance coverage promptly after written request by C ity showing the additional insureds. The certificate shall also be furnished by Developer prior to commencement of construction of any Improvements.
6.1.6 All policies required by this Section to be furnished by Developer shall contain (i) language to the effect that the policies cannot be cancelled or materially changed except after thirty (30) days’ written notice by the insurer to the C ity, and (ii) a waiver of the insurer of all rights of subrogation against the C ity and the other additional insureds. All such insurance shall have deductibility limits which shall be commercially reasonable.
6.2 Indemnity. From and after the execution of this Agreement, Developer hereby agrees to indemnify, defend, protect, and hold harmless the City (as a third party beneficiary) and any and all agents, employees, representatives, council members, board members, consultants, and officers of the C ity, from and against all losses, liabilities, claims, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out of pocket litigation costs and reasonable attorneys’ fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with:
(i) the validity of this Agreement (based on CEQA, NEPA or otherwise);
(ii) the development and construction by Developer of the Improvements on the Land or the use, ownership, management, occupancy, or possession of the Land during Developer’s period of ownership of the Land; (iii) any breach or Default by Developer hereunder;
(iv) any of Developer’s activities on the Land (or the activities of Developer’s agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on the Land), regardless of whether such losses an d liabilities shall accrue or are discovered before or after termination or expiration of this Agreement, except to the extent such losses or liabilities are caused by the gross negligence or willful misconduct of the City. The City may in its discretion, and at their own cost, participate in the defense of any legal action naming the City; or Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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(v) claims for prevailing wages under or violation of any applicable prevailing wage laws.
The provisions of this Section shall survive the Close of Escrow or the termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Developer Representations. Developer represents and warrants to the City as of the date of this Agreement and as of the Close of Escrow that:
(i) Developer is a limited liability company validly existing and in good standing under the laws of the State of California.
(ii) Developer has duly authorized the execution and performance of this Agreement and the execution and performance of all of the closing documents set forth herein.
(iii) Developer’s execution and performance of this Agreement and the closing documents will not violate any provision of the Developer’s partnership agreement or any deed of trust, lease, contract, agreement, instrument, order, judgment or decree by which Developer is bound.
8. GENERAL PROVISIONS.
8.1 Notices. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by reputable overnight messenger. Notices shall be considered given upon the earlier of (a) one business day following deposit or del ivery with a nationally recognized overnight courier delivery charges prepaid, or (b) upon delivery or attempted delivery as shown on the return receipt if sent by certified mail. Notices shall be addressed as provided below for the respective Part y; provided that if any Party gives notice in writing of a change of name or address, notices to such Party shall thereafter be given as demanded in that notice:
City: Fairfield Housing Authority
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Deputy Executive Director
Developer: EAH Housing
22 Pelican Way
San Rafael, CA 94901
After assignment of this Agreement to a tax credit limited partnership in accordance with the terms of this Agreement, C ity hereby agrees to provide copies of any written notices to Developer’s limited partners who shall have been identified in writing by Developer to C ity with a written request to deliver to them copies of no tices to Developer under this Agreement . C ity Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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further agrees that any cure of any default made or tendered by any such limited partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer.
8.2 Construction. The Parties agree that each Party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties.
8.3 Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words “person” and “party” include corporation, partnership, firm, trust, or association where ever the context so requires.
Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed by excluding the first day and including the last day. If the date for performance falls on a Saturday, Sunday, or legal holiday, the date for performance shall be extended to the next business day. All references in this Agreement to a number of days in which either party shall have to consent approve or perform shall mean calendar days unless specifically stated to be business days.
8.4 Time of the Essence. Time is of the essence of this Agreement.
8.5 Warranty Against Payment of Consideration for Agreement . Developer warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys.
8.6 Attorneys’ Fees. If any Party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing Party in any such action shall be entitled to its reasonable attorneys’ fees to be paid by the losing Party as fixed by the court. If the City is made a party to any litigation instituted by or against Developer or to any litigation attacking the validity of this Agreement, then Developer shall indemnify and defend the C ity against, and save them harmless from, all costs, expenses (including reasonable attorneys’ fees), claims, liabilities, damages and losses incurred by the City in connection with such litigation provided, however, that in no event shall the Developer be obligated to pay any damages awarded to any person or entity that result from the gross negligence or willful misconduct of the City.
8.7 Entire Agreement . This Agreement, together with all attachments and exhibits hereto, and all agreements executed pursuant hereto, constitutes the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter hereof.
8.8 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
8.9 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties, and there are no third- party beneficiaries of this Agreement. No other person shall have any right of action based upon any provision of this Agreement.
8.10 Governing Law; Jurisdiction; Service of Process. This Agreement and the rights of the Parties shall be governed by California law. The Parties consent to the exclusive jurisdiction of the California Superior Court for the County of Solano. If any legal action is commenced by Developer against the City, or by City against Developer, service of process on the City shall be made by personal service upon the City Manager or secretary of the City, or in such other manner as may be provided by law. If any legal action is commenced by C ity against Developer, service of process on Developer shall be made by personal service to Developer’s agent for service of process, or in such other manner as may be provided by law.
8.11 Survival. The provisions hereof shall not merge into, but rather shall survive, any conveyance hereunder (including, without limitation, the delivery and recordation of the Grant Deed) and the delivery of all consideration.
8.12 City Actions. In addition to any provisions of this Agreement that gives the City Manager the authority to make decisions and grant approvals, the City hereby authorizes the City Manager to deliver such approvals, consents as are contemplated by this Agreement, waive requirements under this Agreement, and modify this Agreement, on behalf of the C ity provided that the applicable approval, consent, waiver or modification is not substantial ( i.e., does not change the fundamental business transaction between t he Developer and the C ity, as determined by the City Manager in his reasonable discretion).
8.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed as original but all of which together shall constitute one and the same instrument.
[Signatures to Follow]
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the day and year first above written.
DEVELOPER:
212 E TABOR FAIRFIELD, L.P.,
a California limited partnership
By: 212 E Tabor Fairfield EAH, LLC,
a California limited liability company,
its Managing General Partner
By: EAH Inc.,
a California nonprofit public benefit
corporation,
its Sole and Managing Member
By:
Print Name: Welton Jordan
Title: Assistant Secretary
CITY:
CITY OF FAIRFIELD,
a California municipal corporation
By: _____________________________
Print Name: David Gassaway,
Title: City Manager
ATTEST:
By:
Karen L. Rees, City Clerk
APPROVED AS TO FORM:
By:
David Lim, City Attorney
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EXHIBIT “A”
LEGAL DESCRIPTION OF LAND
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East,
11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
APN: 0034-150-240
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EXHIBIT “B”
FORM OF CITY LOAN PROMISSORY NOTE
SECURED PROMISSORY NOTE
, 202___
Fairfield, California
$2,000,000.00
FOR VALUE RECEIVED, the undersigned, ________________________________(“Maker” or “Developer”), having its principal place of business at ______________________, promises to pay to the order of the CITY OF FAIRFIELD (“Payee” or “C ity”), at 1000 Webster Street, 1st Floor, Fairfield, CA 98533, or at such other place as the holder of this Note from time to time may designate in writing, the principal sum of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) (the “Original City Principal Amount”), together with interes t on the unpaid principal amount of this promissory note (the “City Loan Note”) from time to time outstanding at the “Applicable Interest Rate,” as defined below, in lawful money of the United States of America.
This City Loan Note is being delivered, and the loans evidenced hereby are being made, pursuant to the terms of a Development Loan Agreement between C ity and 212 E. Tabor Fairfield, L.P., dated _______ 2026 (“DLA”) which was assigned to Developer. All capitalized terms used herein which are not separately defined herein shall have the meanings set forth therefor in the DLA. “Applicable Interest Rate” means three percent (3%) per annum, simple interest, except that amounts not paid when due shall accrue interest from the date due until the date paid at the lesser of: (i) seven percent (7%) per annum, simple interest, or (ii) t he maximum rate permitted by applicable law.
1. Payments. Payments under this City Loan Note shall be due and payable as follow:
Payments of a proportionate share of 50% of the residual receipts, calculated by the pro rata proportion of the amount of this loan to total construction loan funds provided by lenders, other than the senior project lender, who require residual receipts payments, provided such percentage is approved by the City Manager in writing (“City Portion”) payable on July 1 after the first anniversary of issuance of a final certificate of occupancy for the Project pursuant to the DLA, and each July 1 anniversary thereafter until this C ity Loan Note has been satisfied in full. Payments shall first be applied to accrued interest, then to remaining outstanding principal. In addition, the entire amount of outstanding principal and accrued interest and any additional amounts which become owing hereunder shall be paid by Maker to Payee as of the earliest of (i) a default under the DLA, any Regulatory Agreement entered into pursuant to the DLA, or the deed of trust securing this City Loan Note not cured within the applicable cure period after delivery of required notice; (ii) as provided in Section 4 below; or (iii) fifty -five (55) years after the date a final certificate of occupancy is issued for the Project (the “City Maturity Date”).
2. Secured by Deed of Trust. Repayment of this City Loan Note is secured by a deed of trust (the “City Loan Deed of Trust”) of this date executed by Maker for the benefit of Payee encumbering the property described in the City Loan Deed of Trust (the “Property” or “Site”).
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3. Prepayment. Maker shall have the right to prepay amounts owing under this C ity Loan Note at any time, without penalty or premium.
4. Due on Sale or Encumbrance . In the event of any Transfer (as defined below) of the Property, or any portion thereof or interest therein, Payee shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. As used herein, the term “Transfer” means and includes the direct or indirect sale, transfer, conveyance, assignment, or other alienation of the Property, or any portion thereof or interest therein, whether voluntary, invol untary, by operation of law or otherwise, or the lease of all or substantially all of the Property or of all or substantially all of the improvements located thereon. Transfer shall not include the sale, transfer, assignment, pledge, hypothecation or encumbrance by Developer’s limited partner of its partnership interest to the extent permitted by the DLA, nor shall Transfer include the removal of any general partner of Developer by the limited partner for cause and the replacement of such removed general partner by another person or entity in accordance with the terms of Developer’s partnership agreement to the extent permitted by the DLA nor any other “Permitted Transfer” as such term is defined in the DLA. “Transfer” shall not include any lease of a rental unit so long as Trustor complies with the provisions of the Regulatory Agreement relating to such leasing activity. Failure of Beneficiary to exercise the option to declare all sums secured hereby immediately due and payable upon a Transfer will not constitute waiver of the right to exercise this option in the event of any subsequent Transfer.
5. Miscellaneous.
(a) Governing Law. All questions with respect to the construction of this City Loan Note and the rights and liabilities of the parties to this City Loan Note shall be governed by the laws of the State of California.
(b) Attorneys’ Fees.
(i) Maker shall reimburse Payee for all reasonable attorneys’ fees, costs and expenses, incurred by Payee in connection with the enforcement of Payee’s rights under this City Loan Note, including, without limitation, reasonable attorneys’ fees, costs and expenses for trial, appellate proceedings, out -of-court negotiations, workouts and settlements or for enforcement of rights under any state or federal statute, including, without limitation, reasonable attorneys’ fees, costs and expenses incurred to protect Payee’s security and attorneys’ fees, costs and expenses incurred in bankruptcy and insolvency proceedings such as (but not limited to) seeking relief from stay in a bankruptcy proceeding. The term “expenses” means any expenses incurred by Payee in connectio n with any of the out -of-court, or state, federal or bankruptcy proceedings referred to above, including, without limitation, the fees and expenses of any appraisers, consultants and expert witnesses retained or consulted by Payee in connection with any such proceeding.
(ii) Payee shall also be entitled to its attorneys’ fees, costs and expenses incurred in any post-judgment proceedings to collect and enforce the judgment. This provision is separate and several and shall survive the merger of this City Loan Note into any judgment on this City Loan Note.
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(c) Entire Agreement. This City Loan Note and the relevant provisions of the DLA constitute the entire agreement and understanding between and among the parties in respect of the subject matter of such agreements and supersede all prior agreements and understandings with respect to such subject matter, whether oral or written. (d) Time of the Essence. Time is of the essence with respect to every provision hereof.
(e) Waivers by Maker . Except as otherwise provided in any agreement executed in connection with this City Loan Note, Maker waives: presentment; demand; notice of dishonor; notice of default or delinquency; notice of acceleration; notice of protest and nonpayment; notice of costs, expenses or losses and interest thereon; and diligence in taking any action to collect any sums arising under this C ity Loan Note or in any proceeding against any of the rights or interests in or to properties securing payment of this City Loan Note. (f) Non-waivers. No previous waiver and no failure or delay by Maker in acting with respect to the terms of this C ity Loan Note or the C ity Loan Deed of Trust shall constitute a waiver of any breach, default, or failure of condition under this C ity Loan Note, the City Loan Deed of Trust or the obligations secured thereby. A waiver of any term of this C ity Loan Note, the City Loan Deed of Trust or of any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. In the event of any inconsistencies between the terms of this C ity Loan Note and the terms of any other document related to the loan evidenced by this City Loan Note, the terms of this City Loan Note shall prevail. (g) Non-Recourse. Repayment of this Note and all other obligations of Borrower hereunder, under the DLA, Regulatory Agreement or Deed of Trust shall be a non- recourse obligation of Borrower, such that neither Borrower nor any partner of Borrower shall have any personal obligation to make any payments or perform any other obligations of Borrower. (h) Cure by Limited Partners. City hereby agrees that any cure of any default made or tendered by Developer’s limited partners who shall have been identified in writing by Developer to City (and whose address shall have been given by Developer to C ity in writing and shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer; provided City shall have received written notice by Developer of the identity of, and address for notices for, such limited partners and a copy of the applicable limited partnership agreement and amendments showing they are limited partners.
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MAKER:
Print Name
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EXHIBIT “C”
FORM OF CITY LOAN DEED OF TRUST
RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
City of Fairfield
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Deputy Executive Director
with a copy to:
212 E Tabor Fairfield, L.P.
Attn:
APN(s): 0034-150-100 and 0034-150-240
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Deed of Trust with Assignment of Rents (Short Form) is recorded for the benefit of the City of Fairfield and is exempt from Recording Fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST, dated as of _______, 202__, among
______________________________________, herein called TRUSTOR, whose address is:
__________________________________________, ____________________________ herein called TRUSTEE, and the CITY OF FAIRFIELD, herein called BENEFICIARY, WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Fairfield, County of Solano, State of California, described as:
SEE EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF. together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing payment of the sum of $ 2,000,000 with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof. A breach or default under the promissory note or a breach or default under any Affordability Restrictions and Regulatory Agreement encumbering said property (“Regulatory Agreement”), or under any obligation secured by a deed of trust encumbering all or any portion of said property, shall be deemed to constitute a default hereunder.
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To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Solano County in Book 1287, Page 621 in the Official Records of said County, shall inure to and bi nd the parties hereto, with respect to the property above described. Said agreements, terms and provisions contained in said subdivisions A and B (identical in all counties), are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address hereinbefore set forth.
TRUSTOR:
Signature
Print Name:
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of __________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT “A”
LEGAL DESCRIPTION
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East,
11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
APN: 0034-150-240
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EXHIBIT B
RIDER TO DEED OF TRUST
as “Trustor”, to _____________________ Title
Insurance Company, a California corporation, as Trustee, for the benefit of the CITY OF FAIRFIELD, as “Beneficiary” (“Deed of Trust”).
1. DUE ON SALE OR ENCUMBRANCE. In the event of any Transfer (as defined below) of the Property, or any portion thereof or interest therein, Beneficiary shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. As used herein, the term “Transfer” means and includes the direct or indirect sale, transfer, conveyance, mortgage, further encumbrance, assignment, or other alienation of the Property, or any portion thereof or interest therein, whether voluntar y, involuntary, by operation of law or otherwise, the execution of any installment land sale contract, sales agreement or similar instrument affecting all or a portion of the Property, granting of an option to purchase any portion of or interest in the Property or any interest therein, or the lease of all or substantially all of the Property or of all or substantially all of the improvements situated on the Property. “Transfer” shall not include a Transfer permitted in the DLA so long as Trustor complies with the provisions of the Agreement relating to such activity. “Transfer” shall not include the leasing of individual dwelling units on the Property in compliance with applicable recorded Regulation Agreements with the Beneficiary. Failure of Beneficiary to exercise the option to declare all sums secured hereby immediately due and payable upon a Transfer will not constitute waiver of the right to exercise this option in the event of any subsequent Transfer.
2. NOTICE AND CURE RIGHTS BY LIMITED PARTNERS. CITY hereby agrees that any cure of any default made or tendered by Developer’s limited partners who shall have been identified in writing by Developer to C ITY and shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer; provided CITY shall have received written notice by Developer of the identity of, and address for notices for, such limited partners and a copy of the applicable limited partnership agreement and amendments.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
This Schedule of Performance requires the submission of plans or other documents at specific times. Some of the submissions are not described in the text of the Agreement. Such plans or other documents, as submitted, must be complete and adequate for review by the C ity or other applicable governmental entity when submitted. Prior to the time set forth for each particular submission, the Developer shall consult with C ity 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 / Deadline
Items 1 – 10 Relate to Developer Actions and Requirements Prior to or through/at the Close of Escrow
1. Opening of Escrow. The Parties shall
open escrow with the Escrow Holder.
Within fifteen (15) business days after the award
of tax credits.
2. Preliminary Project Budget. The
Developer shall submit a preliminary
Project Budget for the Improvements.
As soon as reasonably possible, but an update to
the financing proposal heretofore delivered by
Developer to CITY shall be delivered to CITY no
later than twelve (12) months after the date of this
DLA, subject to written extension by the City
Manager.
3. Planning Commission Approval; Final
Plans and Specifications. The
Developer shall submit the Final Plans
and Specifications for City approval,
which shall be provided within ten (10)
days or thereafter shall be deemed
approved.
Planning Commission Approval c omplete as of
January 22, 2020
Final Plan Approval complete as of
__________________[date]
4. Building Permits. The Developer shall
obtain the Building Permit or permit
ready letter for the construction of the
Improvements.
Prior and as a condition to the Close of Escrow.
5. Construction Contract. The Developer
shall submit the construction contract
for the construction of the
Improvements to the City for approval.
Prior and as a condition to the Close of Escrow.
6. Performance and Payment Bonds. The
Developer shall deliver to the City
copies of the required performance and
payment bonds.
Prior and as a condition to the Close of Escrow.
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Action Date / Deadline
7. Insurance. The Developer shall submit
evidence of insurance to the City.
Prior and as a condition to the Close of Escrow.
8. Project Budget. The Developer shall
submit the final Project Budget to City
together with reasonable evidence that
all equity required will be available or
committed subject to the terms of the
Partnership Agreement at the Close of
Escrow.
Prior and as a condition to the Close of Escrow.
9. Tax Credit Applications/Award. Developer must reasonably apply for federal tax credits in all rounds (until awarded) and must
promptly provide evidence thereof to City.
Developer must be awarded tax credits and must
provide evidence thereof to City prior (and as a
condition) to Close of Escrow.
10. Tax Credit Equity. All tax credit equity
must have been committed to the
Developer entity and available for
Project Costs, as shown by reasonable
evidence delivered to City.
Prior and as a condition to Close of Escrow.
Items 11 – 15 Relate to the Conveyance of the Land and Developer Actions and Requirements After the Close of Escrow
11. Close of Escrow. The Developer shall
close the Construction Loan.
The earlier of (i) six (6) months after award of
tax credits, or (ii) two (2) calendar years after
the date of the DLA, subject to extension as
provided therein.
12. Commencement of Construction.
Developer shall substantially
commence the Improvements.
No later than 30 days after the Close of Escrow.
13. Completion of Grading. Developer
shall substantially complete the grading
for the Project.
Not later than twelve (12) months following the
commencement of construction.
14. Commencement of Vertical
Construction. Developer shall
commence vertical construction.
Not later than fourteen (14) months after the
commencement of construction.
15. Completion; Qualification for
Certificate of Completion. The Project
shall be completed and shall qualify for
a Certificate of Completion.
No later than thirty (30) calendar months after
the commencement of construction.
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EXHIBIT “E”
SCOPE OF DEVELOPMENT
Sixty-seven (67) apartment/rental units, including one manager’s unit, in two 3 -story buildings and one (1) one -story community building. Building “A” is comprised of 14 one -bedroom, 14 two-bedroom, and nine three-bedroom rental units (37 total units). Building “B” is comprised of four one-bedroom, 17 two-bedroom, and nine three-bedroom rental units (30 total units). On- site amenities include a multi-purpose community room with kitchen, property management and tenant services offices, laundry facilities, active and passive outdoor recreation areas including a playground, a picnic area, a barbecue area, and quiet sitting areas. Off street, surface parking will be provided to residents and guests, with a total of 90 vehicle parking spaces and 21 bike parking spaces provided.
The development will encompass , seventeen (17) one-bedroom units, thirty (30) two -bedroom units and nineteen (19) three (3)-bedrooms.
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EXHIBIT “F”
FORMS OF AFFORDABILITY RESTRICTIONS
AND REGULATORY AGREEMENTS (2)
RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
City of Fairfield
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Housing Services Director
with a copy to:
212 E. TABOR FAIRFIELD, L.P.
Attn:
APNs: 0034-150-100 and
0034-150-240
(Space above for Recorder’s Use.)
This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
AFFORDABILITY RESTRICTIONS AND REGULATORY AGREEMENT
(Fairfield Housing Funds)
These AFFORDABILITY RESTRICTIONS AND REGULATORY AGREEMENT (“Regulatory Agreement”) is hereby entered, effective as of _______________, 202_, by and between the CITY OF FAIRFIELD (“City”), and _______________________ (“Developer”) (City and Developer are sometimes collectively referred to herein as the “Parties.”).
R E C I T A L S
WHEREAS, City and 212 E. Tabor Fairfield, L .P. have entered into a Development Loan Agreement dated ______, 2026 (“DLA”) which was assigned to Developer, for the improvement and development of certain real property described in Exhibit “A” referred to as the “Site”, which DLA provides for the recordation of this Regulatory Agreement. The DLA is incorporated herein by this reference, and any capitalized term not defined herein shall have the meaning established therefor in the DLA.
WHEREAS, the DLA requires these restrictive covenants apply to the Site, particularly the use of the Site for the provision of forty-one (41) Units and available to Extremely Low Income Households at Affordable Rents as those terms are defined therein, ten (10) Units and available to Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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Low Income Households at Affordable Rents as those terms are defined therein, and an unrestricted manager’s unit.
NOW, THEREFORE , City and Developer (as owner of real property interests described hereinabove), declare that the Site shall be held, transfer red, encumbered, used, sold, conveyed, leased and occupied subject to the covenants, conditions and restrictions hereinafter set forth expressly and exclusively for the use and benefit of said property. Each and all of the restrictions, limitations, conditions, covenants, liens, reservations and charges herein contained shall run with the land and be recorded on the property title and shall be binding on Parties, their grantees, successors, heirs, executors, administrators, devisees or assigns, and all subsequent owners of all or any part of the Site, during the term of this Regulatory Agreement.
ARTICLE I
DEFINITIONS
The definitions provided herein shall be applicable to this Regulatory Agreement and also to any amendment or supplement (unless the context implicitly or explicitly shall prohibit), recorded against the Site pursuant to the provision of this Regulatory Agreement.
Section 1. “Affordable Housing Development ” means an affordable housing project operated in conformity with this Regulatory Agreement throughout the Required Covenant Period.
Section 2. “Affordable Rent ”, per month, means, for an Extremely Low Income Household, a monthly rent (including a reasonable utility allowance) that does not exceed one- twelfth (1/12) of thirty percent (30%) of thirty percent (30%) of Median Income for a household size appropriate to the Unit ; per month, means, for a Low Income Household, a monthly rent (including a reasonable utility allowance) that does not exceed one-twefth (1/12) of thirty percent (30%) of sixty percent (60%) of Median Income for a household size appropriate to the Unit.
Section 3. “Approved Housing Development” means all improvements as provided to be developed by Developer under the DLA. The Approved Housing Development must be completed in strict conformity with all specifications contained in or referred to in the DLA.
Section 4. “Area” means the Vallejo -Fairfield, CA Metropolitan Statistical Area, as periodically defined by HUD.
Section 5. “Certificate” or “Certification” is defined in Section 3(a).
Section 6. “City”, as defined in the first paragraph hereof, means the City of Fairfield, a municipal corporation.
Section 7. “City Code” means and refers to the City of Fairfield Municipal Code, as revised from time to time.
Section 8. “Common Areas” means all areas on the Site that are open or accessible to all tenants of the Site (such as grounds, but excluding interiors of Units).
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Section 9. “Extremely Low Income Household” means a household earning not greater than the extremely low income limit for Solano County, adjusted for household size, pursuant to Health and Safety Code Section 50106.
Section 10. “Household size appropriate to the unit ” shall be one person for a studio, two persons for a one-bedroom unit, three persons for a two-bedroom unit, and four persons for a three-bedroom unit.
Section 11. “Gross Income” means all payments from all sources received by a person (together with the gross income of all persons of the age of 18 years or older who intend to reside with such person in one residential unit) whether in cash or in kind as calculated pursuant to the Department of Housing and Urban Development (“HUD”) Regulations (24 C.F.R. § 813) and 25 California Code of Regulations Section 6914.
Section 12. “Low Income Household” means a household earning not greater than the low income limit for Solano County, adjusted for household size and not less than the upper bound of the extremely low income limit for Solano County, adjusted for household size, pursuant to Health and Safety Code Section 50106.
Section 13. “Median Income” or “Median Income for the Area ” means the median income for the Sites most recently determined by the Secretary of Housing and Urban Development under Section 8 of the United States Housing Act of 1937, as amended, or, if programs under Section 8 are terminated, Median Income for the A rea determined under the method used by the Secretary prior to such termination. Such Median Income is published at 25 California Code of Regulations Section 6932, as modified from time to time.
Section 14. “Prescribed Income Levels” means the following:
Type Income of Household
as Percentage of AMI Number of Units
1BR/1BA 30% 17
2BR/1BA 30% 22
3BR/1.5 BA 30% 2
1BR/1BA 60% 1
2BR/1BA 60% 3
3BR/1.5 BA 60% 6
Section 15. “Regulatory Agreement ” means this Regulatory Agreement and any amendments, modifications or supplements.
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Section 16. “Rental Development” means the sixty -seven (67) Unit residential rental development on the Site.
Section 17. “Required Affordable Unit” means any of the fifty-one (51) of the dwelling units in the Rental Development, as constructed under the DLA, available to, occupied by, or held vacant for occupancy only by tenants qualifying as Extemely Low Income Households, and rented at Affordable Rent. (One dwelling unit shall be a manager’s unit.) Section 18. “Required Covenant Period” means the period commencing on the date all Required Affordable Units have been completed as evidenced by the issuance of a Final Certificate of Occupancy for the Rental Development, and ending as of the fifty- fifth (55th) anniversary thereof.
Section 19. “Site” means all of the real property and appurtenances as described in the Recitals above, including all structures and other improvements thereon, and those hereafter constructed.
Section 20. “Unit” means a dwelling unit on the Rental Development.
Section 21. “Year” means a calendar year, excepting that the last Year hereunder shall be deemed to end as of the expiration of this Regulatory Agreement.
ARTICLE II
LAND USE RESTRICTIONS; IMPROVEMENTS
Section 1. Uses. Developer shall develop the Approved Housing Development on the Site in conformity with the DLA. Thereafter, the Site shall be operated as an Affordable Housing Development and devoted only to the uses specified in the DLA for the periods of time speci fied herein. All uses conducted on the Site, including, without limitation, all activities undertaken by Developer pursuant to the DLA, shall conform to all applicable provisions of the C ity Code and the City Approvals.
The Site shall be used, maintained and operated in accordance with the DLA, the and this Regulatory Agreement for the Required Covenant Period. None of the units in the Rental Development shall at any time be utilized on a transient basis nor shall the Rental Development or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium, rest home or trailer court or park. No part of the Site, from the date Developer acquired the Site, has been or will at any time be owned or used as a cooperative housing corporation or a community apartment project or a stock cooperative.
Section 2. Affordable Housing.
Affordability Restrictions. Throughout the Required Covenant Period, the Developer shall cause the Required Affordable Units to be rented in accordance with the definition of “Prescribed Income Levels” in Section 14 of Article I above at Affordable Rents.
Except to the extent prohibited by state or federal law or tax credit regulations, in the event a household’s income initially complies with the corresponding income restriction but the income of such household increases, such increase shall not be deemed to result in a violation of the restrictions of this Regulatory Agreement concerning limitations upon income of occupants, Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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provided that the next available unit is leased to an Extremely Low Income Houshold until compliance with the Prescribed Income Levels is achieved.
Duration of Affordability Requirements. The restrictions shall apply throughout the Required Covenant Period. All tenants residing in any Required Affordable Unit for which rents are limited by virtue of this Regulatory Agreement or pursuant to other regulation during the last two (2) Years o f the Required Covenant Period shall be given notice by Developer at least once every six (6) months prior to the expiration date of this requirement, that the rent payable on such Required Affordable Unit may be raised to a market rate rent at the end of the Required Covenant Period.
Selection of Tenants. Developer shall demonstrate to City that the proposed tenants of the Required Affordable Unit of the Extremely Low Income Units constitute Extremely Low Income Households.
Prior to the rental or lease of a Required Affordable Unit to a tenant, and as set forth in this Section 2 of Article II of this Regulatory Agreement, Developer shall require the tenant to execute a written lease and to complete an Income Verification cert ifying that the tenant(s) occupying the Unit is/are in the appropriate income category. Developer shall verify the income of the tenant(s).
Developer shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. Developer shall not apply selection criteria to Section 8 certificate holders which are more burdensome than criteria applied to any other prospective tenants.
Determination of Affordable Rent for the Required Affordable Units. The Required Affordable Units shall be rented or leased at Affordable Rent. The maximum monthly rental for the Required Affordable Units shall be adjusted annually as permitted by Section 50053 of the California Health and Safety Code based on the annua l adjustment to the Median Income for the Area established pursuant to Section 50093 of the California Health and Safety Code, as more particularly set forth in the Affordable Rent Worksheet.
Notwithstanding anything to the contrary herein, for so long as it is consistent with the published policies of HCD, any determination of Area Median Income under Section 2 with respect to any calendar year shall not be less than the Area Median Income determined under this Section 2 for the calendar year preceding the calendar year for which such determination is made.
DEVELOPER UNDERSTANDS AND KNOWINGLY AGREES THAT THE
MAXIMUM RENTAL FOR THE REQUIRED AFFORDABLE UNITS ESTABLISHED BY
THIS REGULATORY AGREEMENT IS SUBSTANTIALLY BELOW THE FAIR MARKET RENT FOR THE REQUIRED AFFORDABLE UNITS.
Section 3. Developer Verification and Program Compliance.
Income and Age Verification and Certification. Developer will obtain and maintain on file an Income and Age Verification from each tenant (for every Unit on the Site), dated immediately prior to the initial occupancy of such tenant in the Required Affordable Unit.
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On or before July 1 following the completion of the Development, Developer shall file with Authority or its designee a Certificate, containing all information required pursuant to Health and Safety Code Section 33418. Each Certificate shall cover the imme diately preceding Year.
Developer shall maintain on file throughout the Required Covenant Period each tenant’s executed lease and Income and Age Verification and rental records for the Required Affordable Units. Developer shall maintain complete and accurate records pertaining t o the Required Affordable Units, and will permit any duly authorized representative of City to inspect the books and records of Developer pertaining to the occupancy of the Required Affordable Units.
Developer shall prepare and submit to C ity annually commencing the June 15 first following the recording of the Regulatory Agreement and continuing throughout the Required Covenant Period, a Certificate of Continuing Program Compliance. Such documentation shall state for each Unit, the Unit size, the rental amount, the number of occupants, and the income of the occupants and any other information which may be used to determined compliance with the terms of this Regulatory Agreement.
In addition, as part of its annual report, at C ity’s request, but not less frequently than prior to each initial and subsequent rental of each Required Affordable Unit to a new tenant household (but not lease renewals) and annually thereafter, Developer shall also provide to C ity completed income computation, asset evaluation, and certification forms, for any such tenant or tenants, in substantially the form provided by C ity from time to time. Developer shall obtain an annual certification from each household of each Required Affordable Unit demonstrating that such household is an Extremely Low Income Household. Developer shall verify the income certification of each tenant household. Developer shall submit to City copies of any and all tenant income and occupancy certifications upon request of City. City may request (and Developer shall provide) additional documentation to assist City’s evaluation of Developer’s compliance with this Agreement, if determined to be necessary in the reasonable discretion of the City Manager , specifically including (without limitation) any documentation or additional certifications that may be necessary to verify compliance with all requirements from all funding sources, and each tenant’s status as to each Required Affordable Unit. This requirement is in addition to and does not replace or supersede Developer’s obligation to annually submit the Certificate of Continuing Program Compliance to City. Further, City has the right, but not the obligation to monitor compliance with respect to each tenant household at the Rental Development, and City’s election to monitor some, but not all, of the Units shall not constitute a waiver of C ity’s right to monitor and enforce compliance with respect to all Units in the future.
Verification of Income of New and Continuing Tenants. Gross income calculations for prospective (and continuing) tenants shall be determined in accordance with 25 Cal. Code Regs. Section 6914. Developer shall verify the income and information provided in the income certification of the proposed tenant as set forth below. (a) Developer shall verify the income of each proposed tenant of the Required Affordable Units and by at least one of the following methods as appropriate to the proposed tenant:
(i) obtain two (2) paycheck stubs from the person’s two (2) most recent pay periods;
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(ii) obtain a true copy of an income tax return from the person for the most recent tax year in which a return was filed; (iii) obtain an income verification certification from the employer of the person;
(iv) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the person receives assistance from such agencies; or
(v) obtain an alternate form of income verification reasonably requested by Authority, if none of the above forms of verification is available to Developer.
Verification Regarding Eligibility of New Tenants . Developer shall retain documentation regarding the eligibility of each new tenant household.
Reporting Amounts. In the event Developer fails to submit to City or its designee the Certification as required by Section 3(a), Developer shall be in noncompliance with this Regulatory Agreement.
Section 4. Management of the Rental Development.
Manager. The Rental Development shall at all times be managed by an experienced manager (the “Manager”) reasonably acceptable to the City, with demonstrated ability to operate residential developments like the Rental Development in a manner that will provide decent, safe, and sanitary housing. The Developer shall submit for the City’s approval the identity of any proposed Manager. The Developer shall also submit such additional information about the background, experience and financial condition of any proposed Manager as is reasonably necessary for the C ity to determine whether the proposed Manager meets the standard for a qualified Manager set forth above. If the proposed Manager meets the standard for a qualified Manager set forth above, the City shall approve the proposed Manager by notifying Developer in writing.
Performance Review. The Developer shall cooperate with the C ity in an annual review of management practices, in connection with which the City shall have the right to review and approve the annual operations and management budget; provided, however, that the C ity reserves the right to conduct reviews more frequently at its sole discretion. The purpose of each annual review will be to enable the City to determine if the Improvements are being operated and managed in accordance with the requirements and standards of this Agreement.
Replacement of Manager.
(i) If, as a result of the annual review, the C ity determines in its reasonable judgment that the Improvements are not being operated and managed in accordance with any of the requirements and standards of this Agreement, the C ity shall deliver notice to the Developer of its intention to cause replacement of the Manager. Within fifteen (15) days of receipt by the Developer of such written notice, the City and the Developer shall meet in good faith to consider methods for improving the financial and operating s tatus of the Rental Development, including, without limitation, replacement of the Manager.
(ii) If, after such meeting, the City elects to proceed with the replacement of the Manager, the City shall so notify the Developer in writing within fifteen (15) days following the Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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meeting. Thereupon, the Developer shall promptly dismiss the then Manager, and shall appoint as the Manager a person or entity meeting the standards for a Manager set forth in this section and approved by the C ity in its reasonable discretion. C ity shall have the right to disapprove the replacement Manager within thirty (30) days, and in such case Developer shall promptly dismiss the replacement Manager and appoint another replacement Manager meeting the standards for a Manager set forth in this sec tion a nd approved by the C ity in its reasonable discretion.
Notwithstanding the foregoing, the C ity’s approval rights shall be subject and subordinate to the rights of senior lender under the senior deed of trust. (iii) Any contract for the operation or management of the Property entered into by the Developer shall provide that the contract can be terminated as set forth above.
The Developer agrees that the Rental Development shall be preserved and maintained throughout the term hereof in good condition and repair so as to provide decent, safe, and sanitary housing, and in conformance with all applicable ordinances, statutes and regulations promulgated by any governmental entity having jurisdiction over the Rental Development.
Annual Inspection. Subject to the rights of the occupants of the Units, C ity shall have the right to perform an annual on-site inspection of the units, common areas and grounds and to perform an annual tenant file review to ensure that Developer is managing the Rental Development in accordance with the requirements of this Agreement.
Annual Budget . Developer shall submit or shall cause its Property Manager to submit to the City Manager on or before the completion of the Rental Development, and each anniversary thereof, an annual budget for the ongoing operation of the Rental Development for approval by City, which will not be unreasonably withheld. At the City’s request, delivered within thirty (30) days after receipt of the budget, each of Developer and the City shall cause its respective representative(s) to meet within thirty (30) days following the receipt of request to review the budget. Such review is without obligation to either party to propose or agree to any modification of permitted operating expenses.
Management of Property . Developer shall be completely responsible for the management, administration and operation of the Rental Development including, but not limited to the hiring and discharge of employees, salaries and all other related Rental Development expenses, maintenance and repairs, including capital expenditures, the financial operations of the Rental Development, the rental and re- rental of the apartment units in accordance with the occupancy requirements set forth in this Agreement and all operational, maintenance and management responsibilities of an Developer in a typical multi- family residential housing Rental Development.
Reserves. The Developer will maintain replacement reserves in accordance with the DLA and will not withdraw funds from such reserves without the consent of the C ity, which will not be unreasonably withheld, subject and subordinate to the rights of the senior mortgage lender.
Manager’s Failure to Perform. In the event the manager appointed by Developer for management of the Rental Development fails to perform the obligations imposed upon Developer by this Section, such failure shall constitute a default under Section 10 hereof, and if Developer shall fail to cure such default as provided in Section 10 hereof, then City shall have the Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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right, in addition to any other remedies of City, to require Developer, upon thirty (30) days’ prior written notice, to appoint a substitute management C ity, reasonably acceptable to both C ity and Developer, subject and subordinate to the rights of the senior mortgage lender.
Gross Mismanagement. During the Required Covenant Period, in the event of “Gross Mismanagement” (as defined below) of the Development, any acts of Gross Mismanagement shall cease immediately upon written notice from the City Manager , and any omissions constituting Gross Mismanagement shall be corrected within thirty (30) days after written notice from the City Manager. If such an act or omission is not timely ceased/cured, then, Developer shall within sixty (60) days replace the Property Manager with a new property manager reasonably acceptable to the City Manager, subject to the rights of the senior mortgage lender.
For purposes of this Agreement, the term “Gross Mismanagement” means management of the Development in a manner which materially violates the terms and/or intention of this Agreement to operate a first quality affordable housing complex, and shall include, but is not limited to, any one or more of the following:
(a) Leasing to tenants who exceed the Prescribed Income Levels; (b) Subject to fair housing laws, allowing tenants to exceed the prescribed occupancy levels without taking immediate action to stop such overcrowding; (c) Under-funding required reserve accounts;
(d) Failing to submit timely and/or adequate annual reports to Authority as required herein;
(e) Failing to comply with this Regulatory Agreement;
(f) Fraud or embezzlement of Development funds, including without limitation funds in the reserve accounts;
(g) Failing to fully cooperate with the Fairfield Police Department or other local law enforcement agency(ies) with jurisdiction over the Development, in maintaining a crime-free environment within the Development;
(h) Failing to fully cooperate with the Fairfield Fire Department or other local public safety agency(ies) with jurisdiction over the Development, in maintaining a safe and accessible environment within the Development; and
(i) Failing to fully cooperate with the Fairfield Planning and Building and Safety Department, or other local health and safety enforcement agency(ies) with jurisdiction over the Development, in maintaining a decent, safe and sanitary environment within the Development.
Developer is obligated and shall use commercially reasonable efforts to correct any defects in property management or operations at the earliest feasible time.
Code Enforcement . Developer acknowledges and agrees that C ity and its employees and authorized agents, shall have the right to conduct code compliance and/or code enforcement inspections of the Development and the individual dwelling units at the Development (and not limited to the Required Affordable Units), both exterior and interior, at reasonable times and upon reasonable notice (not less than 48 hours prior notice, except in an emergency) to Developer and/or an individual tenant. If such notice is pr ovided by Authority representative(s) Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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to Developer, then Developer shall immediately and directly advise any affected tenant of such upcoming inspection and cause access to the area(s) and/or Units at the Rental Development to be made available and open for inspection. Developer shall include express advisement of such inspection rights within the lease/rental agreements for each Unit in the Development in order for each and every tenant and tenant household to be aware of this inspection right. The foregoing portion of this Section 5 is without limitation as to the exercise of police powers by City.
Section 6. Parking of Vehicles. Developer shall not permit the parking, storing or keeping of any vehicle except wholly within the parking areas designated for the Required Affordable Units.
Developer shall not permit the parking, storing or keeping of any large commercial type vehic le (dump truck, cement mixer truck, oil or gas truck, etc.), or any recreational vehicle over twenty (20) feet in length (camper unit, motor home, trailer, mobile home or other similar vehicle), boats over twenty (20) feet in length, or any vehicle other than a private passenger vehicle, upon any portion of the Common Areas, including parking spaces. For purposes of this section, a pickup truck with a pickup bed mounted camper shall be considered a private passenger vehicle; provided however, that no such vehicle shall be used for residential purposes while parked on the premises.
Developer shall not permit major repairs or major restorations of any motor vehicle, boat, trailer, aircraft or other vehicle to be conducted upon any portion of the Common Area, including the parking areas, except for emergency repairs thereto and then only to the extent necessary to enable movement of the vehicle to a proper repair facility. No inoperable vehicle shall be stored or kept in the Common Area. Developer shall give the vehicle owner not less than four (4) days, nor more than seven (7) days’ notice and an opportunity to remove any vehicle parked, stored or kept in violation of the provisions of this Regulatory Agreement. Notice shall consist minimally of a reasonably diligent attempt to personally notify the vehicle owner or alternatively leaving written notice on the subject vehicle. After due notice and opportunity have been given to the vehicle owner, Developer shall have the right to remove, at the vehicle owner’s expense, any vehicle parked, stored or kept in violation of the provisions of this Regulatory Agreement.
Section 7. Maximum Occupancies. No persons shall be permitted to occupy any Apartment within the Rental Development in excess of applicable limit of maximum occupancy set by the City of Fairfield and the laws of the State of California.
Section 8. Signs Required. “No loitering” signs will be posted at each building and enforced by Developer. “Illegally parked vehicles will be towed” signs in compliance with California Vehicle Code requirements will be posted and enforced by Developer.
Section 9. Fences and Electronic Installations . Developer shall not install or knowingly permit to be installed on the exterior of any improvement or building on any fences or any antenna or other television or radio receiving device, excepting satellite dishes having a diameter of eighteen inches (1 8”) or less, without prior written consent of C ity. This prohibition shall not prohibit the installation of cable television or subscription wires or receiving devices.
Section 10. Structural Change. Nothing shall be done on the Site in, on or to any building which would materially structurally change the exterior or the interior bearing walls of any such building or structure without the prior written consent of the City and any such changes shall be in compliance with all applicable laws including any required permits and ordinances of the C ity.
Nothing herein shall affect the rights of Developer to repair, alter or construct improvements on the buildings on the Site unless such repair, alteration or improvement would impair the structural Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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integrity and/or exterior appearance of said buildings. Nothing herein shall be deemed to prohibit work ordered to be performed by the City building official.
Section 11. Compliance with Laws . Developer shall comply with all applicable laws in connection with the development and use of the Site, including without limitation the Fair Housing Act (42 U.S.C. § 3601, et seq., and 24 C.F.R. § 100.300, et seq.) . Developer is a sophisticated party, with substantial experience in the acquisition, development, financing, obtaining financing for, marketing, and operation of affordable housing projects, and with the negotiation, review, and preparation of agreements and other documents in connection with such activities. Developer is familiar with and has reviewed all laws and regulations pertaining to the acquisition, development and operation of the Rental Development and has obtained advice from any advisers of its own choosing in connection with this Agreement.
ARTICLE III
DUTIES OF DEVELOPER: SPECIFIC MAINTENANCE RESPONSIBILITIES Section 1. Exterior Building Maintenance. All exterior, painted surfaces shall be maintained at all times in a clean and presentable manner. Any defacing marks shall be cleaned or removed within a reasonable period of time as set forth herein.
Section 2. Front and Side Exteriors . Developer shall at all times maintain the front exterior and yard in a clean, safe and presentable manner, free from defacing marks or any disrepair and any visible side exteriors. Developer shall hire maintenance personnel to maintain and/or repair any front exterior or yard or visible side yard and exterior of any lot or building.
Section 3. Graffiti Removal. All graffiti, and defacement of any type, including marks, words and pictures must be removed and any necessary painting or repair completed by the later to occur of (i) seventy -two (72) hours of their creation or (ii) seventy- two (72) hours after notic e to Developer.
Section 4. Driveways. All driveways must be paved and maintained with impervious material in accordance with the City Code. In addition, all water must be made to drain freely to the public part of the waterway without any pooling.
Section 5. Exterior Illumination. Developer shall at all times maintain adequate lighting in all entrance ways and parking areas. Adequate lighting means outdoor, night lighting designed and installed, which provides no less than one (1.0) foot candles in the parking areas and no less than one and one-half (1-1/2) foot candles in the walking areas or common areas and no less than 0.2 foot candles at the point of least illumination.
Section 6. Front Setbacks . All front setback areas that are not buildings, driveways or walkways shall be adequately and appropriately landscaped in accordance with minimum standards established by City and shall be maintained by Developer. The landscaping shall meet minimum standards set from time to time by City.
Section 7. Trash Bins. All trash shall be collected and placed at all times in an enclosable bin to be placed in a designated refuse/trash bin area. The designated area shall be located so that the bin will, to the extent possible, be readily accessible from the street.
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ARTICLE IV
OBLIGATION TO MAINTAIN, REPAIR AND REBUILD
Section 1. Maintenance. If, at any time, Developer fails to maintain the Rental Development or any portion thereof, and said condition is not corrected after the expiration of forty- five (45) days from the date of written notice from C ity to Developer, C ity may perform the necessary maintenance and Developer shall pay such costs as are reasonably incurred for such maintenance.
Payment shall be due within fifteen (15) days of receipt of an invoice from City.
City hereby agrees that any cure of any default made or tendered by Developer’s limited partners who shall have been identified in writing by Developer to C ity and shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer; provided City shall have received written notice by Developer of the identity of, and address for notices for, such limited partners and a copy of the applicable limited partnership agreement and amendments showing they are limited partners.
Developer agrees to assume full responsibility for the operation and maintenance of the Rental Development throughout the Required Covenant Period without expense to City, and to perform all repairs and replacements necessary to maintain and preserve the Rental Development and the Site in good repair, in a neat, clean, safe and orderly condition reasonably satisfactory to City and in compliance with all applicable laws. Developer agrees that C ity shall not be required to perform any maintenance, repairs or services or to assume any expense in connection with the Rental Development and the Site. Developer hereby waives all rights to make repairs or to cause any work to be performed at the expense of City as provided for in Section 1941 and 1942 of the California Civil Code.
The following standards shall be complied with by Developer and its maintenance staff, contractors or subcontractors:
(1) Developer shall maintain the Rental Development, including individual Required Affordable Units, all common areas, all interior and exterior facades, and all exterior project site areas, in a safe and sanitary fashion suitable for a high quality, rental housing project.
Developer agrees to provide utility services, administrative services, supplies, contract services, maintenance, maintenance reserves, and management for the entire project including interior tenant spaces, common area spaces and exteri or common areas. The services provided by Developer shall include, but not be limited to, providing all common area electricity, gas, water, property, fire and liability insurance in the amounts set forth in this Regulatory Agreement, all property taxes and personal property taxes, any and all assessments, maintenance and replacement of all exterior landscaping, and all administration and overhead required for any property manager. (2) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing, edging, and trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe roa d conditions and visibility, and optimum 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.
(3) Clean-up maintenance shall include, but not be limited to: maintenance of all private paths, parking areas, driveways and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter w hich is unsafe or Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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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 cutt ings, weeds, leaves and other debris are properly disposed of by maintenance workers.
(4) The Rental Development shall be maintained in conformance and in compliance with the approved construction and architectural plans and design scheme, as the same may be amended from time to time with the approval of City. (5) All maintenance work shall conform to all applicable federal and state Occupational Safety and Health Act standards and regulations for the performance of maintenance. (6) Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied only by persons in strict accordance with all governing regulations.
(7) Parking lots, lighting fixtures, trash enclosures, and all areas shall be kept free from any accumulation of debris or waste materials by regularly scheduled maintenance.
Section 2. Damage and Destruction Affecting Development - Developer’s Duty to Rebuild.
If all or any portion of the Site and the improvements thereon is damaged or destroyed by fire or other casualty, Developer shall promptly proceed to obtain insurance proceeds and subject to the terms of the senior loan secured by the Site and improveme nts, take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Rental Development to substantially the same condition as the Rental Development is required to be constructed pursuant to the DLA, subject to the sufficiency of the insurance proceeds to cover the actual cost of repair, replacement, or restoration, and Developer shall complete the same as soon as possible thereafter so that the Rental Development can be occupied as an affordable housing project in accordance with the DLA. In no event shall the repair, replacement, or restoration period exceed eighteen (18) months from the date Developer obtains insurance proceeds unless the City Manager , in his or her reasonable discretion, approves a longer period of time, subject to the terms of the senior loan secured by the Site and improvements. If the then- existing laws of any other governmental agencies with jurisdiction over the Site do not permit the repair, replacement, or restoration, Developer may elect not to repair, replace, or restore the Rental Development by giving notice to C ity (in which event the insurance proceeds shall be treated as Residual Receipts and shall be distributed to the Parties in accordance with the terms of the City Loan entered pursuant to the DLA, and Developer shall be required to remove all debris from the Site) or Developer may reconstruct such other Rental Development on the Site as is consistent with applicable land use regulations and approved by City, and any other governmental agency or agencies with jurisdiction, and C ity may pursue remedies of its choosing under this Agre ement, including without limitation termination of the DLA and accelerating the payment of the City Loan in accordance with the terms of the City Loan.
In furtherance of the requirements of this Section 2, Developer shall keep the construction on the Site insured by carriers at all times reasonably satisfactory to C ity against loss by fire and such other hazards, casualties, liabilities and contingencies as included within an all risk extended coverage hazard insurance policy, in an amount of the full replacement cost of the constructions.
In the event of loss, Developer shall give prompt notice to the insurance carrier and to Authority.
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If the Site is abandoned by Developer, or if Developer fails to respond to City within thirty (30) days from the date notice is mailed by City to Developer that the insurance carrier offers to settle a claim for insurance benefits, City is authorized to collect and apply the insurance proceeds at City’s option either to restoration or repair of the Site.
Section 3. Variance in Exterior Appearance and Design. In the event the Rental Development sustains substantial physical damage due to a casualty event, Developer may apply to C ity for approval to reconstruct, rebuild or repair in a manner which will provide different exterior appearance and lot design from that which existed prior to the date of the casualty.
Section 4. Time Limitation. Upon damage to the Site or the Rental Development or other improvements, subject to the requriements of the Senior Project Lender and the receipt and sufficiency of insurance proceeds, Developer shall be obligated to proceed with all due diligence hereunder and commence reconstruction within twelve (12) months after the damage occurs and complete reconstruction within twenty -four (24) months after damage occurs or demolition and vacate within twenty -four (24) months, unless prevented by causes beyond their reasonable control, in which event reconstruction shall be commenced and completed at the earliest feasible time unless otherwise agreed to by the parties.
ARTICLE V
ENFORCEMENT
Section 1. Remedies. Breach of the covenants contained in the Regulatory Agreement may be enjoined, abated or remedied by appropriate legal proceeding by C ity. No remedies shall be instituted until the party complaining of a violation has provided written notice to the other party and such party has failed to cure the alleged violation within thirty (30) days after delivery of the written notice, provided that if the default is a default other than the violation of Article II, Section 2, Developer shall not be in default so long as Developer commences the cure within such 30 days and thereafter diligently prosecutes the cure to completion and completes the cure within one hundred and twenty (120) days after delivery of the notice. C ity hereby agrees that any cure of any default made or tendered by Developer’s limited partners who shall have been identified in writing by Developer to City and shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer; provided C ity shall have received written notice by Developer of the identity of, and address for notices for, such limited partners and a copy of the applicable limited partnership agreement and amendments showing they are limited partners.
This Regulatory Agreement does not in any way infringe on the right or duties of C ity to enforce any of the provisions of the C ity Code including, but not limited to, the abatement of dangerous buildings.
Section 2. Nuisance. The result of every act or omission whereby any of the covenants contained in this Regulatory Agreement are violated in whole or in part is hereby declared to be and constitutes a nuisance, and every remedy allowable at law or equity, against a nuisance, either public or private, shall be applicable against every such result and may be exercised by any owner or its successors in interest, without derogation of City’s rights under law.
Section 3. Right of Entry. In addition to the above general rights of enforcement, C ity shall have the right through its agents and employees, to enter upon any part of the project area for the purpose of enforcing the California Vehicle Code, and the ordinances and other regulations of Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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City, and for maintenance and/or repair of any or all publicly owned utilities. In addition, City has the right of entry at reasonable hours and upon and after reasonable attempts to contact Developer, on any lot to effect emergency repairs or maintenance which Developer has failed to perform.
Subsequent to sixty (60) days written notice to Developer specifically outlining Developer’s noncompliance, City shall have the right of entry on the Site at reasonable hours to enforce compliance with this Regulatory Agreement which Developer has failed to perform. This Section 3 is without limitation as to the exercise of police powers of City.
Section 4. Costs of Repair . The costs borne by C ity for any such repairs or maintenance emergency and/or non- emergency, shall become a charge for which Developer shall be responsible.
Section 5. Cumulative Remedies. The remedies herein provided for breach of the covenants contained in this Regulatory Agreement shall be deemed cumulative, and none of such remedies shall be deemed exclusive.
Section 6. Failure to Enforce. The failure to enforce any of the covenants contained in this Regulatory Agreement shall not constitute a waiver of the right to enforce the same thereafter.
Section 7. Enforcement and Nonliability. City may from time to time make such efforts, if any, as it shall deem appropriate enforce and/or assist in enforcing this Regulatory Agreement.
However, City will not be subject to any liability for failure to affirmatively enforce any provision of this Regulatory Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Covenant Against Partition. By acceptance of its interest in the Site, Developer shall be deemed to covenant for itself and for its heirs, representatives, successors and assigns, that it will not institute legal proceedings or otherwise seek to effect partition of its right and interest in the interest being conveyed to Developer, or the burdens running with the land as a result of this Regulatory Agreement.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in all force and effect.
Section 3. Term. This Regulatory Agreement shall run with and bind the interest of Developer in the Site, and shall inure to the owner(s) of any property subject to this Regulatory Agreement, his legal representatives, heirs, successors and assigns, and as provided in A rticle VI, Sections 2 and 3, be enforceable by City, for a term equal to the Required Covenant Period as defined herein, provided; however, that the covenants regarding nondiscrimination set forth in Section 4 of Article II of this Regulatory Agreement shall remain in effect for perpetuity.
Section 4. Construction. The provisions of this Regulatory Agreement shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of the Required Affordable Units available at Affordable Rent for Extremely Low Income Households, and, to the extent provided herein, Low Income Households in conformity with the Prescribed Income Levels. The article and section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction.
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Developer shall be obligated by this Regulatory Agreement to comply with the provisions hereof.
In the event of conflict, Developer shall comply with the most stringent requirements, in each case.
Section 5. Amendments. This Regulatory Agreement may be amended only by the written agreement of Developer and City.
Section 6. Encroachments. None of the rights and obligations of Developer created herein shall be altered in any way by encroachments due to settlement or shifting of structures or any other cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist; provided, however, that in no event shall a valid easement for encroachment be created in favor of Developer if said encroachment occurs due to the willful conduct of said Developer.
Section 7. Notices. Any notice permitted or required to be delivered as provided herein to Developer shall be in writing and may be delivered either by reputable overnight service or certified mail to its address on the first page hereof, and shall be effective as of one business day after delivery to the messenger service for overnight delivery, or the date of delivery or attempted delivery shown on the return receipt. Such address may be changed from time to time by notice in writing.
Section 8. Notice of Transfer of Title; Notice of Property Manager. Developer shall promptly notify City in writing of the identity and address for notices for the initial Property Manager and any replacement thereof, and Developer shall also promptly notify the C in writing of any conveyance of the Approved Housing Development, including the name of any buyer and the address for notices of the buyer.
DEVELOPER:
,
a
By:
Name:
Title:
CITY:
CITY OF FAIRFIELD,
a California municipal corporation
By:
Name: David Gassaway
Title: City Manager
ATTEST:
By:
Karen L. Rees, City Clerk
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EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East,
11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Housing Services Department
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Housing Services Director
with a copy to:
212 E. Tabor Fairfield, L.P.
Attn:
_____________________
APNs: 034-150-100 and 0034-150-240
(Space above for Recorder’s Use.)
This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103.
AFFORDABILITY RESTRICTIONS AND REGULATORY AGREEMENT
(DENSITY BONUS; FEE DEFERRAL; FEE CREDITS)
These AFFORDABILITY RESTRICTIONS AND REGULATORY AGREEMENT (“Regulatory Agreement”) is hereby entered, effective as of _______________, 20__, by and among the CITY OF FAIRFIELD, a municipal corporation (“City”), and ________________________ (“Developer”) (City and Developer are sometimes collectively referred to herein as the “Parties.”).
R E C I T A L S
WHEREAS, City and 212 E. Tabor Fairfield, L.P. have entered into a Development Loan Agreement dated _______ 2026 (“DLA”) which was assigned to Developer, for a loan for the development of certain real property described in Exhibit “A” (“Site”).
WHEREAS, this Regulatory Agreement establishes a plan for the improvement, development and maintenance of the Site, for the benefit of C ity, and constitutes a “density bonus housing agreement” under the Fairfield Municipal Code for which Developer has been given incentives and waivers relating to landscaping and private open space as described in the applicable City Resolution.
WHEREAS, City and Developer wish to adopt this Regulatory Agreement to further govern the use of the Site to comply with the City’s density bonus ordinances and to satisfy requirements of the Fairfield Municipal Code with respect to fee deferrals and fee credits described in the DLA.
City shall not subordinate this Regulatory Agreement to any deed of trust or other liens.
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NOW, THEREFORE , City and Developer (as owner of real property interests described hereinabove), declare that the Site shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants, conditions and restrictions hereinafter set forth expressly and exclusively for the use and benefit of said property. Each and all of the restrictions, limitations, conditions, covenants, liens, reservations and charges herein contained shall run with the land and be recorded on the property title and shall be binding on Parties, their grantees, successors, heirs, executors, administrators, devisees or assigns, and all subsequent owners of all or any part of the Site, during the term of this Regulatory Agreement.
ARTICLE I
DEFINITIONS
The definitions provided herein shall be applicable to this Regulatory Agreement and also to any amendment or supplement (unless the context implicitly or explicitly shall prohibit), recorded against the Site pursuant to the provision of this Regulatory Agreement.
Section 1. “Affordable Housing Development ” means an affordable housing project operated in conformity with this Regulatory Agreement throughout the Required Covenant Period.
Section 2. “Affordable Rent”, per month, means, for a Very Low Income Household, a monthly rent (including a reasonable utility allowance) which does not exceed one -twelfth (1/12th) of thirty percent (30%) of fifty percent (50%) of Median Income for a household size appropriate to the Unit, and for a Lower Income Household, a monthly rent (including a reasonable utility allowance) which does not exceed one -twelfth (1/12th) of thirty percent (30%) of sixty percent (60%) of Medium Income for a household size appropriate to the unit.
Section 3. “Area” means the Vallejo -Fairfeld, CA Metropolitan Statistical Area, as periodically defined by HUD.
Section 4. “Certificate” or “Certification” is defined in Section 3(a).
Section 5. “City”, as defined in the first paragraph hereof, means the City of Fairfield, a municipal corporation.
Section 6. “City Code” means and refers to the City of Fairfield Municipal Code, as revised from time to time.
Section 7. “Extremely Low Income Household” means households earning not greater than the extremely low income limit for Solano County, adjusted for household size, pursuant to Health and Safety Code Section 50105.
Section 8. “Extremely Low Income Unit ” means a Unit occupied at an Affordable Rent by an Extremely Low Income Household.
Section 9. “Gross Income” means all payments from all sources received by a person (together with the gross income of all persons of the age of 18 years or older who intend to reside with such person in one residential unit) whether in cash or in kind as calculated pursuant to the Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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Department of Housing and Urban Development (“HUD”) Regulations (24 C.F.R. § 813) and 25 California Code of Regulations Section 6914.
Section 10. “Household size appropriate to the unit ” shall be one person for a studio unit, two persons for a one-bedroom unit, three persons for a two-bedroom unit, and four persons for a three-bedroom unit.
Section 11. “Lower Income Household” means households earning not greater than the lower income limit for Solano County, adjusted for household size, pursuant to the California Health and Safety Code.
Section 12. ”Lower Income Unit ” means a unit occupied at an Affordable Rent by a Lower Income Household.
Section 13. “Lower Income Required Units ” means the Required Affordable Units which are required to be rented to Lower Income Households at an Affordable Rent.
Section 14. “Median Income” or “Median Income for the Area ” means the median income for the Sites most recently determined by the Secretary of Housing and Urban Development under Section 8 of the United States Housing Act of 1937, as amended, or, if programs under Section 8 are terminated, Median Income for the A rea determined under the method used by the Secretary prior to such termination. Such Median Income is published at 25 California Code of Regulations Section 6932, as modified from time to time.
Section 15. “Prescribed Income Levels” means the following:
Type Income of Household
as Percentage of AMI Number of Units
1BR/1BA 30% 17
2BR/1BA 30% 22
3BR/1.5BA 30% 2
1BR/1BA 60% 1
2BR/1BA 60% 3
3BR/1.5 BA 60% 6
2BR/1BA 70% 5
3BR/1.5 BA 70% 10
Section 16. “Regulatory Agreement ” means this Regulatory Agreement and any amendments, modifications or supplements.
Section 17. “Rental Development” means the sixty -seven (67) Unit residential rental development on the Site.
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Section 18. “Required Affordable Units” means any of the fifty-one (51) of the dwelling units in the Rental Development, restricted and available to, occupied by, or held vacant for occupancy under this Agreement only by tenants qualifying as Extremely Low Income Households, Very Low Income Households , and Low Income Households and rented at an Affordable Rent. (Another dwelling unit must be a manager unit.) Section 19. “Required Covenant Period” means the period commencing on the date all Required Affordable Units have been completed as evidenced by the C ity’s issuance of a Final Certificate of Occupancy for the Rental Development, and ending as of the fifty- fifth (55th) anniversary thereof.
Section 20. “Site” means all of the real property and appurtenances as described in the Recitals above, including all structures and other improvements thereon, and those hereafter constructed.
Section 21. “Unit” means a dwelling unit on the Rental Development.
Section 22. “Very Low Income Households” means households earning not greater than the very low income limit for Solano County, adjusted for household size, pursuant to Health and Safety Code Section 50105.
Section 23. “Very Low Income Unit” means a Unit occupied at an Affordable Rent by a Very Low Income Household.
Section 24. “Very Low Income Required Units” means the Required Affordable Units which are required to be rented to Very Low Income Households at an Affordable Rent.
Section 25. “Year” means a calendar year, excepting that the last Year hereunder shall be deemed to end as of the expiration of this Regulatory Agreement.
ARTICLE II
LAND USE RESTRICTIONS; IMPROVEMENTS
Section 1. Uses. The Site shall be operated as an Affordable Housing Development. All uses conducted on the Site, including, without limitation, all activities undertaken by Developer pursuant to the DLA, shall conform to all applicable provisions of the City Code and the City permits and approvals.
The Site shall be used, maintained and operated in accordance with this Regulatory Agreement for the Required Covenant Period.
Section 2. Affordable Housing.
Affordability Restrictions; Number of Units. Throughout the Required Covenant Period, the Developer shall cause the Required Affordable Units to be rented in accordance with the definition of “Prescribed Income Levels” in Section 15 of Article I above at Affordable Rents.
Except to the extent prohibited by state or federal law or tax credit regulations, in the event a household’s income initially complies with the corresponding income level/restriction but the income of such household increases, such increase shall not be deemed to result in a violation of Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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the restrictions of this Regulatory Agreement concerning limitations upon income of occupants, provided that the next available unit is leased to a Very Low Income Houshold or Low Income Household, as applciable, until compliance with the Prescribed Income Levels is achieved.
Duration of Affordability Requirements. The restriction shall apply throughout the Required Covenant Period. All tenants residing in any Required Affordable Unit for which rents are limited by virtue of this Regulatory Agreement or pursuant to other regulation during the last two (2) Years of the Required Covenant Period shall be given notice by Developer at least once every six (6) months prior to the expiration date of this requirement, that the rent payable on such Required Affordable Unit may be raised to a market rate rent at the end of the Required Covenant Period.
Selection of Tenants. Developer shall demonstrate to City that the proposed tenants of Required Affordable Units for Extremely Low Income Households constitute Extremely Low Income Households, that the proposed tenants of Required Affordable Units for Very Low Income Households constitute Very Low Income Households , and that the proposed tenants of Required Affordable Units for Low Income Households constitute Low Income Households.
Prior to the rental or lease of a Required Affordable Unit to a tenant, and as set forth in this Section 2 of Article II of this Regulatory Agreement, Developer shall require the tenant to execute a written lease and to complete an Income Verification cert ifying that the tenant(s) occupying the Unit is/are in the appropriate income category. Developer shall verify the income of the tenant(s).
Developer shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. Developer shall not apply selection criteria to Section 8 certificate holders which are more burdensome than criteria applied to any other prospective tenants.
Determination of Affordable Rent for the Required Affordable Units. The Required Affordable Units shall be rented or leased at an Affordable Rent. The maximum monthly rental for the Required Affordable Units shall be adjusted annually as permitted by Section 50053 of the California Health and Safety Code based on the annual adjustment to the Median Income for the Area established pu rsuant to Section 50093 of the California Health and Safety Code, as more particularly set forth in the Affordable Rent Worksheet.
Notwithstanding anything to the contrary herein, for so long as it is consistent with the published policies of HCD, any determination of Area Median Income under Section 2 with respect to any calendar year shall not be less than the Area Median Income determined under this Section 2 for the calendar year preceding the calendar year for which such determination is made.
DEVELOPER UNDERSTANDS AND KNOWINGLY AGREES THAT THE
MAXIMUM RENTAL FOR THE REQUIRED AFFORDABLE UNITS ESTABLISHED BY
THIS REGULATORY AGREEMENT IS SUBSTANTIALLY BELOW THE FAIR MARKET RENT FOR THE REQUIRED AFFORDABLE UNITS.
Section 3. Developer Verification and Program Compliance.
Income and Age Verification and Certification. Developer will obtain and maintain on file an Income and Age Verification from each tenant (for every Unit on the Site except the Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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Manager’s unit), dated immediately prior to the initial occupancy of such tenant in the Required Affordable Units.
On July 1 following the completion of the Development, and on or before each subsequent July 1, Developer shall file with City Manager or its designee a Certificate, containing all information required pursuant to Health and Safety Code Section 33418. Each Certificate shall cover the immediately preceding Year.
Developer shall maintain on file throughout the Required Covenant Period each tenant’s executed lease and Income and Age Verification and rental records for the Rental Development and the Required Affordable Units. Developer shall maintain complete and accurate records pertaining to the Units, and will permit any duly authorized representative of City to inspect the books and records of Developer pertaining to the occupancy of the Required Affordable Units. Developer shall prepare and submit to City annua lly commencing the June 15 first following the issuance of the Certificate of Ocupancy and continuing throughout the Required Covenant Period, a Certificate of Continuing Program Compliance. Such documentation shall state for each Required Affordable Unit in the Rental Development the Unit size, the rental amount, the number of occupants, and the income of the occupants and any other information which may be used to determined compliance with the terms of this Regulatory Agreement.
In addition, as part of its annual report, at City’s request, but not less frequently than prior to each initial and subsequent rental of each Required Affordable Unit to a new tenant household (but not lease renewals) and annually thereafter, Developer shall also provide to City completed income computation, asset evaluation, and certification forms, for any such tenant or tenants, in substantially the form provided by City from time to time. Developer shall obtain an annual certification from each househ old, Required Affordable Unit demonstrating that such household is a Low Income Household, Very Low Income Household, or Extremely Low Income Household, as applicable. Developer shall verify the income certification of each tenant household. Developer shall submit to City copies of any and all tenant income and occupancy certifications upon request of City. City may request (and Developer shall provide) additional documentation to assist City’s evaluation of Developer’s compliance with this Agreement, if determined to be necessary in the reasonable discretion of the City Manager, specifically including (without limitation) any documentation or additional certifications that may be necessary to verify compliance with all requirements from all funding sourc es, and each tenant’s status as to each Required Affordable Unit. This requirement is in addition to and does not replace or supersede Developer’s obligation to annually submit the Certificate of Continuing Program Compliance to City. Further, City has the right, but not the obligation to monitor compliance with respect to each tenant household at the Rental Development, and City’s election to monitor some, but not all, of the Units shall not constitute a waiver of City’s right to monitor and enforce compliance with respect to all Units in the future.
Verification of Income of New and Continuing Tenants. Gross income calculations for prospective (and continuing) tenants shall be determined in accordance with 25 Cal. Code Regs. Section 6914. Developer shall verify the income and information provided in the income certification of the proposed tenant as set forth below. (a) Developer shall verify the income of each proposed tenant of the Required Affordable Units and by at least one of the following methods as appropriate to the proposed tenant:
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(i) obtain two (2) paycheck stubs from the person’s two (2) most recent pay periods;
(ii) obtain a true copy of an income tax return from the person for the most recent tax year in which a return was filed; (iii) obtain an income verification certification from the employer of the person;
(iv) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the person receives assistance from such agencies; or
(v) obtain an alternate form of income verification reasonably requested by Authority, if none of the above forms of verification is available to Developer.
Verification Regarding Eligibility of New Tenants . Developer shall retain documentation regarding the eligibility of each new tenant household.
Reporting Amounts. In the event Developer fails to submit to the City Manager or its designee the Certification as required by Section 3(a), Developer shall be in noncompliance with this Regulatory Agreement.
ARTICLE III
ENFORCEMENT
Section 1. Remedies. Breach of the covenants contained in the Regulatory Agreement may be enjoined, abated or remedied by appropriate legal proceeding by City. No remedies shall be instituted until the party complaining of a violation has provided written notice to the other party and such party has failed to cure the alleged violation within thirty (30) days after delivery of the written notice, provided that if the default is a default other than the violation of Article II, Section 2, Developer shall not be in default so long as Developer commences the cure within such 30 days and thereafter diligently prosecutes the cure to completion and completes the cure within one hundred and twenty (120) days after delivery of the notice. City hereby agrees that any cure of any default made or tendered by Developer’s limited partners who shall have been identified in writing by Developer to City and shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basi s as if made or tendered by Developer; provided City shall have received written notice by Developer of the identity of, and address for notices for, such limited partners.
This Regulatory Agreement does not in any way infringe on the right or duties of City to enforce any of the provisions of the City Code including, but not limited to, the abatement of dangerous buildings.
Section 2. Nuisance. The result of every act or omission whereby any of the covenants contained in this Regulatory Agreement are violated in whole or in part is hereby declared to be and constitutes a nuisance, and every remedy allowable at law or equity, against a nuisance, either public or private, shall be applicable against every such result and may be exercised by any owner or its successors in interest, without derogation of City’s rights under law.
Section 3. Reserved.
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Section 4. Reserved.
Section 5. Cumulative Remedies. The remedies herein provided for breach of the covenants contained in this Regulatory Agreement shall be deemed cumulative, and none of such remedies shall be deemed exclusive.
Section 6. Failure to Enforce. The failure to enforce any of the covenants contained in this Regulatory Agreement shall not constitute a waiver of the right to enforce the same thereafter.
Section 7. Enforcement and Nonliability. City may from time to time make such efforts, if any, as it shall deem appropriate enforce and/or assist in enforcing this Regulatory Agreement.
However, City will not be subject to any liability for failure to affirmatively enforce any provision of this Regulatory Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Covenant Against Partition. By acceptance of its interest in the Site, Developer shall be deemed to covenant for itself and for its heirs, representatives, successors and assigns, that it will not institute legal proceedings or otherwise seek to effect partition of its right and interest in the interest being conveyed to Developer, or the burdens running with the land as a result of this Regulatory Agreement.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in all force and effect.
Section 3. Term. This Regulatory Agreement shall run with and bind the interest of Developer in the Site, and shall inure to the owner(s) of any property subject to this Regulatory Agreement, his legal representatives, heirs, successors and assigns, and as provided in Article VIII, Sections 1 and 2, be enforceable by City, for a term equal to the Required Covenant Period as defined herein.
This Regulatory Agreement shall not be subordinate to the lien of any financing obtained by Developer with respect to the Site.
Section 4. Construction. The provisions of this Regulatory Agreement shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of Required Affordable Units available at Affordable Rent for Extremely Low Income Households, Very Low Income Households, and Low Income Households in conformity with the Prescribed Income Levels. The article and section headings have been inserted for convenience only, and shall not be considered or referred to in resolvi ng questions of interpretation or construction.
Developer shall be obligated by this Regulatory Agreement to comply with the provisions hereof.
In the event of conflict, Developer shall comply with the most stringent requirements, in each case.
Section 5. Amendments. This Regulatory Agreement may be amended only by the written agreement of Developer and City.
Section 6. Reserved.
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Section 7. Notices. Any notice permitted or required to be delivered as provided herein to Developer shall be in writing and may be delivered either by reputable overnight service or certified mail to its address on the first page hereof, and shall be effective as of one business day after delivery to the messenger service for overnight delivery, or the date of delivery or attempted delivery shown on the return receipt. Such address may be changed from time to time by notice in writing.
Section 8. Notice of Transfer of Title; Notice of Property Manager. Developer shall promptly notify City in writing of any conveyance of the Approved Housing Development, including the name of any buyer and the address for notices of the buyer.
DEVELOPER:
212 E TABOR FAIRFIELD, L.P.,
a California limited partnership
By: 212 E Tabor Fairfield EAH, LLC,
a California limited liability company,
its Managing General Partner
By: EAH Inc.,
a California nonprofit public benefit
corporation,
its Sole and Managing Member
By:
Print Name: Welton Jordan
Title: Assistant Secretary
CITY:
CITY OF FAIRFIELD,
a California municipal corporation
By:
Name: David Gassaway
Title: City Manager
ATTEST:
By:
Karen L. Rees, City Clerk
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EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East,
11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT “G”
FORM OF CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Fairfield
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Housing Services Department
With a copy to:
212 E. TABOR FAIRFIELD, L.P.
Attn:
APNs: 0034-150-100
0034-1050-240
(Space Above for Recorder’s Use Only)
This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383.
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the “Certificate”) is made by the CITY OF FAIRFIELD (the “ City”), in favor of 212 E. TABOR FAIRFIELD, L .P., a California limited liability company.
R E C I T A L S
A. City and Developer have entere d into that certain unrecorded Development Loan Agreement (the “DLA”) dated as of ______, 2026 concerning the development of certain real property situated in the City of Fairfield, California, described in Exhibit “A” attached hereto (the “Site”).
B. As referenced in Section 3.12 of the DLA, City is required to furnish Developer or its successors with a Certificate of Completion upon completion of construction of the “Project” (as defined in the DLA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder’s Office of Solano County. This Certificate is conclusive determination of satisfactory completion of the construction and development required by the DLA.
C. City has conclusively determined that the construction and development of the Project has been satisfactorily completed.
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NOW, THEREFORE, City hereby certifies as follows:
1. City does hereby certify that the Project to be constructed by Developer has been fully and satisfactorily completed in full conformance with the DLA.
2. This Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Site, or any part thereof.
3. This Certificate shall not constitute evidence of Developer’s compliance with those covenants in the DLA that survive the issuance of this Certificate.
4. This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093.
5. Nothing contained in this instrument shall modify in any other way any other provisions of the DLA (including without limitation the attachments thereto).
IN WITNESS WHEREOF, City has executed this Certificate of Completion this ___ day of ________________, 20__.
FAIRFIELD HOUSING AUTHORITY
By:
David Gassaway, City Manager
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State of California )
County of ________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT “A”
LEGAL DESCRIPTION
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East,
11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
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EXHIBIT "H"
BASE PROJECT FINANCING SUMMARY
1. Fairfield Housing Authority Loan: $2,000,000
2. Fee Credits in an amount not to
exceed:
$1,000,000
3. Fee Deferral approximate
amount*: $ 1,500,000
*Fee Deferrals will be paid at a later date Subtotal $3,500,000
4. Tax Credit Investor Equity,
5. Senior Project Loan
6. ___________________
$____________
$______________
$______________
Total Development
Costs
$_______________
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EXHIBIT "I"
FORM OF FEE DEFERRAL AGREEMENT
(Attached.)
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RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL TO:
Housing Services Department
1000 Webster Street, 1st Floor
Fairfield, CA 94533
Attn: Housing Services Director
Wity a copy to:
212 E. TABOR, FAIRFIELD, L.P.
Attn:
APN(s):APNs: 0034-150-100
0034-150-240
Space Above This Line For Recorder’s Use
This Fee Deferral Agreement is recorded for the benefit of the City of Fairfield and is exempt from Recording Fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
FEE DEFERRAL AGREEMENT
THIS FEE DEFERRAL AGREEMENT (the “AGREEMENT”) is dated as of ____________________, 202__ and is entered into by and between CITY OF FAIRFIELD, a municipal corporation (the “CITY”), and ______________________ (the “DEVELOPER”).
RECITALS
A. The CITY has adopted a Fee Deferral Ordinance (Fairfield Municipal Code Section
5.4.3 in Chapter 5);
B. The purpose of the Fee Deferral Ordinance is to facilitate the development of affordable housing;
C. DEVELOPER is the owner of certain real property in the City of Fairfield, County of Solano as described more particularly on Exhibit “A” hereto (the “Property”); D. DEVELOPER intends to construct a project on the Property that will be rent- and income-restricted for very-low and low-income households (the “Project”); and E. The Fairfield Housing Authority (the “Authority”)) and 212 E. Tabor Fairfield, L.P. have entered into a Developmen Loan Agreement dated _______ 2026 (“DLA”) which was assigned to Developer and which provided for the construction of the Project by Developer, and the recording of Affordable Restrictions and Regulatory Agreements restricting the Project, including this Agreement.
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F. The DLA provides that the granting of the fee deferral described herein is a condition to City’s and Developer’s obligations to the construction of the Project by Developer , and the DLA contemplates that this Agreement will be recorded prior to any deed of trust, and shall remain senior to all deeds of trust encumbering the Property.
NOW, THEREFORE, in consideration of the above Recitals and of the mutual covenants contained herein, the Parties agree as follows:
AGREEMENT
1. Fee Deferral(s). The Director of Community Development of the City has approved the following fee deferral(s) for the Project:
a. ____________________________________________________________. b. ____________________________________________________________.
2. Payment of Deferral Fees. All deferred fees shall be due and payable upon the earlier of:
(i) the closing of so- called “permit” financing (i.e., financing used to repay construction financing for the Project); or (ii) thirty (30) calendar months after the date on which the building permit for the Project issued.
3. Lien. Developer hereby grants to City a lien on the Property (and any improvements), with power of sale, to secure the payment of the deferred fees, and City may foreclose such lien non-judicially, in accordance with California Civil Code Sections 2924, et. seq.
4. DEVELOPER’S Covenant to Pay and Costs of Enforcement. DEVELOPER further agrees to pay the CITY’s and/or the COUNTY’s reasonable costs of collection enforcement or collection of the fees required to be paid hereunder and costs of foreclosure.
5. Attorneys’ Fees . If any legal action or proceeding arising out of or relating to this Agreement is brought by any party, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs, and expenses incurred in the action or proceeding by the prevailing party.
DEVELOPER further agrees to pay the CITY’s reasonable attorneys’ fees related to collection of the fees required to be paid hereunder.
6. Notices. All notices required or permitted under the terms of this Agreement shall be in writing and sent to:
CITY: City of Fairfield
1000 Webster Street, 2nd Floor
Fairfield, CA 94533-4883
Attn: Director of Community Development
DEVELOPER:
Attn:
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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7. Consideration. CITY’s agreement to defer payment of the Fees has been made in consideration of DEVELOPER’s agreement to provide and maintain a certain number of affordable housing units as part of the Project, as reflected in the “Affordability Restrictions and Regul ation Agreement (Density Bonus; Fee Deferral; Fee Credits) document recorded against the Property (which is not, and shall not be, subordinate to any deed of trust or liens, other than liens for property taxes and assessments not yet delinquent).
8. Entire Agreement. This Agreement constitutes the entire agreement between CITY and the DEVELOPER with respect to the specific subject matter hereof, and no alteration or amendment or any part thereof shall be effective unless in writing signed by parties sought to be charged or bound thereby.
IN WITNESS WHEREOF, this Fee Deferral Agreement has been executed by the parties as of the date and year first above written.
CITY:
CITY OF FAIRFIELD,
a California municipal corporation
By:
Name: David Gassaway
Title: City Manager
DEVELOPER:
,
a
By:
Name:
Title:
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On before me, ________________________________________ Notary Public, personally appeared ________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instr
ument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On before me, ________________________________________ Notary Public, personally appeared ________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instr
ument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed t he instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
I-7
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Exhibit “A”
Legal Description of the Property
The land referred to is situated in the County of Solano, City of Fairfield, State of California, and is described as follows:
LOT 18, AS SHOWN ON THAT CERTAIN MAP ENTITLED, “MAP OF LOCKE -PADDON COLONY NO. 5”, FILED FOR RECORD IN THE OFFICE OF THE COUNTY RECORDER OF DECEMBER 6, 1912 IN BOOK 4 OF MAPS, PAGE 17, SOLANO COUNTY RECORDS.
EXCEPTING THEREFROM:
ALL THAT PARCEL OF LAND DESCRIBED IN THE DEED TO HILARION ANGELES AND LOURETTA G. ANGELES, HIS WIFE, RECORDED OCTOBER 10, 1940 IN BOOK 222 OF OFFICIAL RECORDS AT PAGE 250, INSTRUMENT NO. 6958.
APN: 0034-150-100
and;
PARCEL ONE:
Lot 18, as shown on that certain Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps, Page 17, Solano County Records, described as follows:
Beginning on the East line of the parcel of land described as Parcel 1 in the Deed from Walter C.
Klein, et ux, to Hermosa Homes, Inc., dated August 11, 1958, recorded August 25, 1958, in Book 938 of Official Records, Page 396, Instrument No. 13649, distant thereon North 0° 52’ West, 168.009 feet from the Southeast corner thereof; thence from said point of beginning North 0° 52’ West, along said East line, 100.191 feet to the Northwest line of said Lot 18, said Northwest line being the Southeasterly line of the Sacramento Northern railway right of way; thence North 60° 26’ East, along the Northwest line of said Lot 18, 102.56 feet to the East line of the parcel of land described in the Deed from Joseph Musso, et al, to Fred Klein, dated April 16, 1952, recorded April 18, 1952, in Book 619 of Official Records, Page 21, Instrument No. 5449; thence South 0° 52’ East, along said East line, 151.991 feet to a point that bears South 89° 27’ East from the point of beginning; thence North 89° 27’ West, 90 feet to the point of beginning.
PARCEL TWO:
An easement for ingress and egress, granted in the Deed from Hermosa Homes, Inc., to Walter C.
Klein, et ux, dated February 1, 1965, in Book 1320 of Official Records, Page 340, Instrument No. 2774, over that portion of Lot 18 as shown on the Map of Locke -Paddon Colony No. 5, filed December 6, 1912 in Book 4 of Maps at Page 17, described as follows:
Commencing on the South line of said Lot 18, distant thereon South 89° 27’ East, 83.5 feet from the Southwest corner of said Lot; thence from said point of commencement South 89° 27’ East, Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
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11.5 feet; thence North 0° 52’ West, 90 feet to the actual point of beginning of the herein described parcel of land; thence from said point of beginning North 0° 52’ West to a point in a line which is parallel with and one foot distant, measure at right angles, Southeasterly from the Northwest line of said Lot 18; thence South 60° 26’ West, along said parallel line to a line which is parallel with and distant 11.5 feet Easterly at right angles from the Court first hereinabove mentioned as having a bearing of North 0° 52’ West; thence along said last mentioned parallel line South 0° 52’ East to a point that bears North 89° 27’ East from the point of beginning; thence South 89° 27’ East, 11.5 feet to the point of beginning.
PARCEL THREE:
An easement for ingress and egress over the following described property, being a portion of Lot 18, Locke Paddon Colony Unit No. 5, filed for record December 6, 1912, in Book 4 of Maps, Page 17, in the Office of the County Recorder of Solano County:
Beginning at a point in the South line of said Lot which point is South 89° 27’ East a distance of
83.5 feet from the Southwest corner of said Lot; thence continuing along the South line South 89° 27’ East a distance of 11.5 feet; thence North 0° 52’ West 90 feet; thence North 89° 27’ West 11.5 feet; thence South 0° 52’ East 90 feet to the point of beginning.
PARCEL FOUR:
An easement for ingress and egress over that portion of Lot 18, as shown on the Map of Locke - Paddon Colony No. 5, filed on December 6, 1912, in Book 4 of Maps at Page 17, described as follows:
Beginning on the South line of said Lot 18, distant thereon South 89° 27’ East, 95 feet from the Southwest corner thereof; thence from said point of beginning North 0° 52’ West, 168.009 feet; thence South 89° 27’ East, 12.5 feet; thence South 0° 52’ East, 168.009 feet to the South line of said Lot 18; thence North 89° 27’ West, along said South line, 12.5 feet to the point of beginning.
APN: 0034-150-240
Docusign Envelope ID: D10C7573-8EDA-8BDA-81DD-453DBD8EC0AE
Agenda Item No: K.2
AGENDA REPORT
DATE: May 5, 2026
TO: Mayor and Council
FROM: David Gassaway, City Manager
SUBJECT: Resolution 2026-68 CD Operating Memorandum No. 1 with One Lake Holding, LLC for Vanden Road Improvements
Authorizing the City Manager to Enter into Operating Memorandum No. 1 Between the City of Fairfield and One Lake Holding, LLC. to Begin Phase 1 Construction of Vanden Road Improvements
Funding Source: $7,083,477 ($4,722,317.67, Northeast Transportation; $2,361,158.83, AB1600 Transportation)
Contact: Dave Zellers, (707) 428-7436
RECOMMENDED ACTION
Adopt resolution.
STATEMENT OF ISSUE
In order to utilize as much of the available construction time during the summer and fall months for the Vanden Road project, as well as increase the city’s competitiveness for federal funds that will enhance transportation infrastructure and safety in the Train Station Specific Plan area, city staff have negotiated an operating memorandum with One L ake Holding, LLC (One Lake) that will allow the Vanden Road project to commence while a full amendment to the development agreement related to the One Lake project is finalized.
DISCUSSION
Beginning in August 2024, city staff and One Lake have been in ne gotiations to amend a development agreement with the primary goal of ensuring the planned improvements to Vanden Road are the prioritized transportation infrastructure deliverable. The Vanden Road project, as designed, includes roadway widening and other improvements including a new bridge to be built over the Union Pacific Railroad tracks running through Planning Area 6 (PA6) of the Train Station Specific Plan thus eliminating the at-grade crossing that is currently at the intersection of Vanden Road and Canon Road. The bridge is also a critical asset for the complete development of approximately 300 acres of industrial property in PA6. Without the bridge futu re development
and other infrastructure improvements in PA6 would be stymied ; this in turn would have a negative impact on the city’s economic development and the utility of Travis Air Force Base ’s north gate.
Phase 1 of the project, as addressed in the Operating Memorandum, is for the construction of an embankment that will one day be the new path of travel for Vanden Road. Construction timing is critical because the embankment material needs time to settle before the next phases of the Vanden Road project can commence. Future phases will include bridge construction over Union Creek, the preparation of the new path of travel for the bridge over the Union Pacific Railroad tracks, utility improvements to service increased development in PA6, and paving. Staff are working to bring a full amended and restated development agreement to council in the summer of 2026 and have the remaining scope of work for the Vanden Road project incorporated into that agreement.
FINANCIAL IMPACT
The total estimated construction cost for Vanden Road Phase 1, based on a 65% design level cost estimate, is $8,267,510. Including a 15% contingency, the total construction budget is estimated at $9,507,636.50. The developer will contribute $2,424,160 towards the construction of Phase 1 improvements. The remaining project cost of approximately $7,083,476.50 will be funded by the City using a combination of development impact fees, with approximately two -thirds funded by the Northeast Transportation Impact Fee (Fund 290, $4,722,317.67) and one-third funded by the AB 1600 Citywide Transportation Impact Fee (Fund 262, $2,361,158.83).
Sufficient funding is anticipated to be available within these fee programs, subject to timing of revenue collection and cash flow considerations. Use of thes e funds is consistent with the adopted nexus and intended purpose of each fee program to support regional and citywide transportation infrastructure improvements. Staff will return to the City Council with updated funding implications upon completion of fi nal design, conclusion of the bid process, and execution of the construction contract.
PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
N/A
ALTERNATIVE ACTION
Council may choose not to adopt the resolution.
COORDINATED WITH
City Manager’s Office, City Attorney’s Office, and Public Works Department
STAFF CONTACT
Dave Zellers, Director of Community and Economic Development (707) 428-7436
[email protected]
ATTACHMENTS
Attachment 2: Proposed Resolution
Attachment 3: Operating Memorandum No. 1 Between the City of Fairfield and One Lake Holding, LLC
CITY OF FAIRFIELD
RESOLUTION NO. 2026-68
AUTHORIZING THE CITY MANAGER TO ENTER INTO OPERATING MEMORANDUM NO. 1 BETWEEN THE CITY OF FAIRFIELD AND ONE LAKE HOLDING, LLC. TO BEGIN PHASE 1
CONSTRUCTION OF VANDEN ROAD IMPROVEMENTS
WHEREAS, the City of Fairfield entered into an agreement with One Lake Holding, LLC and other parties for the development of portions of the Train Station Specific Plan Area; and
WHEREAS, the City of Fairfield may designate assignment of transportation infrastructure improvements as defined by prior agreements; and
WHEREAS, the City of Fairfield has determined that improvements to Vanden Road are the priority transportation improvements for assignment; and
WHEREAS, the City of Fairfield staff and One Lake Holding, LLC have negotiated an operating memorandum to allow work to commence; and
WHEREAS, the City of Fairfield and One Lake Holding, LLC will each provide the necessary funding for phase 1 of the Vanden Road project; and
WHEREAS, the City of Fairfield will provide $7,083,476.50 to fund the first phase of the project; and
WHEREAS, two-thirds of the City of Fairfield funding of the first phase of the project shall come from the Northeast Transportation Impact Fee and one -third shall come from the AB1600 Citywide Transportation Impact Fee.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF FAIRFIELD HEREBY RESOLVES:
Section 1. Operating Memorandum No. 1, substantially in the form attached, is hereby approved, subject to any clerical or clarifying changes consistent with the attached report and approved by the city attorney.
Section 2. The city manager is hereby authorized to execute Operating Memorandum No. 1 and take all steps to implement the amended agreement.
RES. NO. 2026-68
PASSED AND ADOPTED this 5th day of May 2026, by the following vote:
AYES: MEMBERS: MOY/BERTANI/CARR/PANDURO/SANDHU/TONNESEN/WILLIAMS NOES: MEMBERS: _________________________________________________ ABSENT: MEMBERS: _________________________________________________ ABSTAIN: MEMBERS: _________________________________________________
_________________________________________________
MAYOR
ATTEST:
___________________________
CITY CLERK
HK DRAFT 4/9/26
This document is recorded
for the benefit of the City
of Fairfield and is entitled
to be recorded free of charge
in accordance with Section 6103
of the Government Code.
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
City Clerk
Fairfield City Hall
1000 Webster Street
Fairfield, CA 94533
SPACE ABOVE THIS LINE FOR RECORDER’S
USE
O
PERATING MEMORANDUM NO. 1
DEVELOPMENT AGREEMENT
By and Between
CITY OF FAIRFIELD, a Municipal Corporation
and
ONE LAKE HOLDING, LLC,
A Delaware Limited Liability Company
O
ne Lake (Canon Station)
HK DRAFT 4/9/26
1 OPERATING MEMORANDUM NO. 1
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF FAIRFIELD
AND ONE LAKE HOLDING, LLC
THIS OPERATING MEMORANDUM NO. 1 (“MEMORANDUM”) is executed by the Parties (defined below), to become effective upon recordation of this Memorandum in the Official Records (defined below), by and between the CITY OF FAIRFIELD, a municipal corporation of the State of California ( “City”), and ONE LAKE HOLDING, LLC, a Delaware limited liability company, as successor in interest to Canon Station LLC (“Developer”). City and Developer are each a “Party” and collectively, the “Parties.”
RECITALS
THIS MEMORANDUM is entered into on the basis of the following facts, understandings and intentions of the parties:
A. The City and Developer entered into that certain Development Agreement effective May 8, 2015, 2023 and recorded on June 10, 2015 in the O fficial Records of Solano County, California (“Official Records”) as Document No. 201500051329, and was amended by that certain First Amendment to Development Agreement recorded February 17, 2016, as Document No. 201600011949, by that certain Second Amendment to Development Agreement recorded January 27, 2017, as Document No. 201700009022, by that certain unrecorded Agreement and Consent to Modification and Correction of Development Agreement dated as of August 21, 2017, by that certain Third Amendment to Development Agreement recorded February 19, 2019, as Document No. 201900009074, and by that certain Fourth Amendment to Development Agreement recorded June 22, 2021, as Document No. 202100067256, by that certain Fifth Amendment to Development Agreement recorded October 8, 2024, as Document No. 202400044404, and by that certain Sixth Amendment to Development Agreement recorded January 30, 2025 , as Document No. 202500004002 (collectively herein the “Development Agreement”).
B. The Development Agreement has been partially assigned numerous times as the Project as been built out as planned over the years, and a full list of all assignments as of the date of this on Exhibit A. The “Property” that is the subject of this Memorandum is the remaining real property subject to the Development Agreement that is owned by the Developer and that has not yet been partially assigned (“Remaining Property”). The Developer’s Remaining Prope rty is legally described on Exhibit B.
C. Developer has made substantial progress on the completion of the Project, as defined in the Development Agreement under the terms of the Development Agreement, and the City and Developer have been meeting and conferring in good faith to discuss and resolve interpretational issues as the Project is completed, particularly with respect to Transportation Improvements as priorities have changed and construction costs have substantially increased.
Section 5.8.1 acknowledged at the time the Development Agreement was entered into that the phasing of the construction of the Transportation Improvements “could not be determined…due to the uncertainty regarding the timing of: (a) roads constructed by Villages at Fairfield project ,
2 (b) funding of Jepson Parkway [now referred to a s “Vanden Road”] by STA , and (c) roads constructed by other projects in the Specific Plan area.” D. The Parties acknowledge the City’s priority Transportation Improvement is Vanden Road. The Parties mutually desire to take advantage of the Developer’s planned work related to Planning Area 5 during the upcoming seasonal construction window in the Summer of 2026 to begin initial work on Vanden Road (“Vanden Stage 1”), which is further defined below, while the Parties continue discussions related to the remaining three construction (four total) stages of Vanden and the final implementation of the Development Agreement and the Project. The Parties intend to use this Memorandum to document certain agreed upon terms related to the Vanden Road Stage 1 and to continue good faith negotiations and documentation of a formal amendment and restatement of the Development Agreement.
E. This Memorandum is intended to document the terms of the agreements described in Recital C and D, above and other matters described in the Memorandum below, consistent with the spirit, intent and material terms of the Development Agreement and pursuant to Section 11.17 of the Development Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1.1 Vanden Road Stage 1.
Notwithstanding anything to the contrary in the Development Agreement, the Developer and City hereby mutually agree that:
a. The City shall be the sole and exclusive contracting party with respect to the design, permitting and construction of Vanden Stage 1. For the purposes of this Memorandum, “Vanden Stage 1” shall mean that portion of the embankment and remedial grading using the fill stockpiled by the Developer and staged nearby and as further depicted and described on those certain plans prepared by CBG Civil Engineering, dated June 2, 2026 entitled JEPSON PARKWAY - SEGMENT 17A, 17B & 18 - PHASE 1 CITY OF FAIRFIELD SOLANO COUNTY CALIFORNIA IMPROVEMENT PLANS (Job No. 1668-031) and consisting of 50 Sheets on file with the City as File No. ___________.
b. One Lake shall also fund the City’s actual and reasonable cost of retention of a professional construction manager or construction management firm (“Construction Manager”) to act as the City’s third party agent in satisfaction of One Lake’ s obligations pursuant to Sections
5.6.3 (2) of the Development Agreement with respect to Vanden Stage 1 to assist the City to solicit bids for the proposed work and construction contracts on, including but not limited to civil, geotechnical, structural, environmental and other consultants necessary for the course of construction and to supervise construction to completion. The Parties agree that the purpose of the Construction Manager is to assist the City as an “owner’s representative,” and that the Construction Manager is in addition to, and not intended to replace or perform the work of, the City’s general contractor. The City will, at all times, retain the ultimate decision-making authority with respect to the Construc tion Manager and Vanden Stage 1, and the Parties shall remain in regular and good faith coordination. The City will consult with One Lake on the selection of the
3 Construction Manager, scope of work and budget, but the City retains the sole decision- making authority. One Lake’s funding obligations hereunder shall not exceed a maximum of $384,000 and shall be paid to the City within 30 days of the City’s submittal of invoices. The City will endeavor to commence Vanden Stage 1 in the 2026 construction season. In the event of any need for clarification or interpretation of this provision, the Parties will meet and confer promptly and in good faith to resolve to meet the spirit and intent of this Memorandum. c. Notwithstanding anything to the contrary in Sections 9.3 (Indemnification of Developer) and/or Section 9.4 (Environmental Indemnification of Developer), the City agrees and confirms that the Developer’s indemnification obligations under the Development Agreement do not include or extend to third party claims (or any work stoppage related to such claim) specifically related to or based on the City’s legal rights to construct Vanden Stage 1 unless such claim is directly caused by the gross negligence or willful misconduct of the Developer. With respect to Vanden Stage 1, the City will (i) indemnify and hold the Developer harmless from third party claims specifically related to or based on the City’s legal rights to construct Vanden Stage 1, (ii) include Developer as an indemnitee and additional insured in all professional and construction contracts, and (iii) add the Developer as an additional named insured to insurance policies. The City’s indemnification obligation herein shall be construed narrowly to ensure such indemnification does not reduce or modify Developer’s existing indemnification obligations under Section 9.3 and/or Section 9.4 with respect to the Developer’s Project. The City’s obligations under this Section expressly exclude any indirect or consequential monetary damages or lost profits of Developer. If any third-party claim results in an extended work stoppage, the City and Developer will meet and confer in good faith to determine the most appropriate modifications to this Memorandum necessary to achieve the Parties’ goals.
d. The Developer will pay TWO MILLION FOUR HUNDRED AND TWENTY FOUR THOUSAND ONE HUNDRED AND SIXTY DOLLARS ( $2,424,160) for the costs of Vanden Stage 1 as fulfillment of its traffic fee (AB 1600 and Northeast Fee) obligations under the existing Neighborhood A/B Subdivision Improvement Agreement (“ A/B SIA”) (“Developer Payment”).
Upon execution of this Memorandum and posting of the payment bond below and notwithstanding anything to the contrary in the A/B SIA , the A/B SIA obligation shall be deemed satisfied in full and such amount shall be available as fee credits to Developer . Developer will deposit the Developer Payment in the City’s account (30) days prior to the commencement of construction of Vanden Stage 1, upon written request from the City to Developer with payment instructions. The City shall use the Developer Payment exclusively for Vanden Stage 1. The City shall be responsible for all costs for Vanden Stage 1 in excess of this Developer Payment. e. Promptly following execution of this Memorandum, Developer shall provide the City with a payment bond in the amount of the Developer Payment (“Vanden Stage 1 Bond”) , plus $2,500,000.00 (TWO MILLION FIVE HUNDRED THOUSAND DOLLARS) “Vanden Security Bond”) that can be used by the City exclusively for the City’s costs related to Vanden Road , including the cost of the Construction Manager, in the event of a Developer default under this Memorandum, after notice and opportunity to cure per the terms of the Development Agreement.
The City may hold the Vanden Security Bond until the final (fourth) stage of the construction of Vanden (“Vanden Stage 4”). Upon receipt of the Developer Payment, City will promptly release the Vanden Stage 1 Bond, and retain only the Vanden Security Bond until the City is in receipt of
4 a payment bond from the Developer for Vanden Stage 4, or the Parties otherwise mutually agree in writing.
1.2. Fee Credits and EDUs
The City and Developer agree that Exhibit C reflects the Parties agreement with respect to the transportation fees and EDU credits earned by Developer under the Development Agreement, and available to be used by home builders.
1.3 Recordation. Promptly after signing and delivery of this Memorandum into escrow by the Parties, the Parties shall cause this Memorandum to be recorded in the Official Records.
1.4 Effect of Agreement. The Development Agreement shall remain in full force and effect. In the case of a conflict between the terms of this Memorandum and the Development Agreement or any other written or oral agreements between the Parties on the specific topics covered in this Memorandum, this Memorandum shall control.
IN WITNESS WHEREOF, City and Developer have signed this Memorandum as of the date first written above.
Signatures to follow on following pages
HK DRAFT 4/9/26
S-1
CITY
CITY OF FAIRFIELD, a municipal
corporation
By:
David Gassaway
City Manager
ATTEST: APPROVED AS TO FORM:
By: By:
City Clerk City Attorney
DEVELOPER:
ONE LAKE, LLC, a Delaware
limited liability company
By:
Name:
Title:
S-2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California }
} ss.
County of ________ }
On ______________________________, before me, ___________________, a Notary Public in and for said County and State, personally appeared _____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/t heir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct.
WITNESS my hand and official seal
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission #_______________
Expires: _____________________
HK DRAFT 4/9/26
S-3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California }
} ss.
County of _________ }
On ______________________________, before me, ___________________, a Notary Public in and for said County and State, personally appeared _____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/t heir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct.
WITNESS my hand and official seal
NOTARY PUBLIC, STATE OF CALIFORNIA
My Commission #_______________
Expires: _____________________
Exhibit A
EXHIBIT A
PARTIAL ASSIGNMENTS OF DEVELOPMENT AGREEMENT
EXHIBIT A – DEVELOPMENT AGREEMENT ASSIGNMENTS
• Industrial Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded March 4, 2016 as Document No. 201600017628 by and between Canon Station LLC and Canon Partners LLC
• 2020 Assignment to Assignor: Assignment and Assumption Agreement recorded January 24, 2020 as Document No. 202000006500 by and between Canon Station LLC and One Lake Holding LLC
• Neighborhood 3B Assignment I: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded January 24, 2020 as Document No. 202000006505 by and between One Lake Holding LLC and Lennar Homes of California, Inc.
• Neighborhood 3A Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded February 3, 2020 as Document No. 202000008984 by and between One Lake Holding LLC and Tri Pointe Homes, Inc. • Neighborhood 3B Assignment II: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded February 20, 2020 as Document No. 202000013377 by and between One Lake Holding LLC and Lennar Homes of California, Inc.
• Neighborhood 2 and Neighborhood 3C Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded September 18, 2020 as Document No. 202000080325 by and between One Lake Holding LLC and Tri Pointe Homes, Inc.
• Neighborhood 3B Assignment III: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded April 2, 2021 as Document No. 202100037080 by and between One Lake Holding LLC and Lennar Homes of California, Inc. • Neighborhood 4B Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded April 28, 2021 as Document No. 202100047449 by and between One Lake Holding LLC and Lennar Homes of California, Inc.
• Neighborhood 7A Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded May 5, 2021 as Document No. 202100050110 by and between One Lake Holding LLC and Brookfield Bay Area Holdings LLC
Exhibit A
• Neighborhood 7B and Neighborhood 4C Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded October 29, 2021 as Document No. 202100113137 by and between One Lake Holding LLC and Tri Pointe Holdings, Inc.
• Neighborhood 8 Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded February 17, 2022 as Document No. 202200012491 by and between One Lake Holding LLC and Civic One Lake, LLC • Neighborhood 5A Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded March 30, 2022 as Document No. 202200023338 by and between One Lake Holding LLC and Glisten One Lake 75, LLC
• Neighborhood R Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded July 17, 2024 as Document No. 202400030273 by and between One Lake Holding LLC and TPG AG EHC III (LEN) CA 1, L.P. • Neighborhood O Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded August 28, 2024 as Document No. 202400037829 by and between One Lake Holding LLC and TPG AG EHC II CA 1 LP • Neighborhood L Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded April 2, 2025 as Document No. 202500014448 by and between One Lake Holding LLC and Tri Pointe Homes Holdings, Inc. • Neighborhood K1 Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded April 30, 2025 as Document No. 202500019304 by and between One Lake Holdings LLC and Tri Pointe Homes Holdings, Inc.
• Neighborhood J Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded October 7, 2025 as Document No. 202500046041 by and between One Lake Holding LLC and Century Communities of California, LLC
• Neighborhood C Assignment: Assignment of Rights and Assumption of Obligations Under Development Agreement recorded December 8, 2025 as Document No. 202500059179 by and between One Lake Holding LLC and KB Home North Bay LLC • Neighborhood A/B: Partial Assignment of Rights and Assumption of Obligations Under Development Agreement recorded February 18, 2026 as Document No. 202600007536 by and between One Lake Holding LLC, K Hovanian Homes Northern California, Inc. and DRP CA 4, LLC
Exhibit A
EXHIBIT B
LEGAL DESCRIPTION OF REMAINING PROPERTY
[insert CBG exhibit]
VANDEN ROAD
LAKE
WETLAND
LAKECLUBLAKE TRAIL PARK GREATPARK
NEIGHBORHOOD 3A
NEIGHBORHOOD 2
NEIGHBORHOOD 4A
NEIGHBORHOOD 4BNEIGHBORHOOD 3B
NEIGHBORHOOD 3C
NEIGHBORHOOD 7
NEIGHBORHOOD 5
NEIGHBORHOOD 6
NEIGHBORHOOD 8NEIGHBORHOOD 9
LAKE CLUB DRIVE
LAKE CLUB DRIVE STORMWATERDETENTIONBASIN
VANDEN ROADLAKE TRAIL
LAKE TRAILLAKE TRAIL
ONE LAKE DRIVEONE LAKE DRIVE
LAKECLUBDRIVE
AREA A/B
AREA G
AREA P/Q
AREA N
AREA OAREA L
AREA M
AREA K-1
AREA I-1AREA I-2AREA K-2AREA JPARK &REC. CENTER
AREA CAREA H
DOG PARK
AREA D
AREA E/F
AREA RNEW CANON ROAD
NEW CANON ROAD
WATERQUALITY
WATERQUALITY
WATERQUALITY
WATER QUALITY
DWR PARCEL
WATER QUALITY
WATER QUALITY
VILLAGE SQUARE BOULEVARD
OLD WATER TREATMENTPLANT SITE
UPRR
UPRR
TYPICAL RESIDENTIAL STREET SECTIONTYPICAL DRIVE AISLE STREET SECTION
TYPICAL LAKE CLUB DRIVE SECTION
G:\1668\1668-16\ACAD\EXHIBITS\OVERALL SITE PLAN.DWG
OVERALL SITE PLANONE LAKE - PLANNING AREA 5CITY OF FAIRFIELD SOLANO COUNTY CALIFORNIASCALE: 1" = 200'DATE: MARCH 16, 2021 6004002000 CIVIL ENGINEERSSURVEYORSPLANNERSSAN RAMONWWW.CBANDG.COMROSEVILLE(925) 866-0322(916) 788-4456
PRODUCT SUMMARYNEIGHBORHOODUNIT TYPEYIELD (DU)
LEGEND
PARCEL H
LOT 7
PARCEL B
PARCEL A5
PARCEL PQ
PARCEL 1
PARCEL 1 & PARCEL 2
Exhibit A
EXHIBIT C
FEE CREDITS/EDU
[insert final chart]
Exhibit C
Developer Fee Credits Earned and Available to Transfer to Builders (April 9, 2026)
____________________________________________________________________________________ Project Total Fee Credits Fee Credits Earned- Fee Credits Earned ($) Currently Available Remaining to
To Builders Earn _________
Vanden Design
(2022) 68.20 EDU $2,050,160 $ 140 $ 541,242
NE Fees 1,366,773 93 360,828
AB 1600 Fees 683,387 47 180,414
New Canon/McCrory Design
(2022) 113.57 EDU $3,413,969 $ 96,195 $2,219,044
NE Fees 2,275,979 64,130 1,479,363
AB 1600 Fees 1,137,990 32,065 739,681
New Canon/McCrory BioMitigation
(2022) 220.96 EDU $6,642,251 $ 489,108 $-
NE Fees 4,428,167 326,072 -
AB 1600 Fees 2,214,084 163,036 -
Traffic Fees (J/K2) Cash Payment
(2024) 65.81 EDU $2,157,143 $11,425 $-
NE Fees 1,438,095 7,617 -
AB 1600 Fees 719,048 3,808 -
Vanden Seg. 19 BioMitigation
(2024) 24.40 EDU $ 794,687 $ 794,687 $-
NE Fees 529,791 529,791 -
AB 1600 Fees 264,896 264,896 -
Linear Park Seg. 4 Biological Mitigation
(2024) 53.34 EDU $1,748,487 $1,748,487 $-
NE Fees 1,165,658 1,165,658 -
AB 1600 Fees 582,829 582,829 -
Traffic Fees Cash
(2022) 3.33 EDU $ 100,000 $ 100,000 $-
NE Fees 66,667 66,667 -
AB 1600 Fees 33,333 33,333 -
Traffic Fees Cash
(2023) 3.16 EDU $ 100,000 $ 100,000 $-
NE Fees 66,667 66,667 -
AB 1600 Fees 33,333 33,333 -
Traffic Fees Cash
(2024) 3.05 EDU $ 100,000 $ 100,000 $-
NE Fees 66,667 66,667 -
AB 1600 Fees 33,333 33,333 -
Developer Fee Credits Earned and Previously Awarded to Builders (April 9, 2026)
____________________________________________________________________________________ Project Total Fee Credits Fee Credits Fee Credits Earned Previously Awarded Remaining
To Builders _________
Land Exchange ROW (Vanden)
(2015) 68.20 EDU $ 1,386,112 $ 1,386,112 $ -
Biological Mitigation (Vanden)
(2015) 156.65 EDU $ 3,178,900 $ 3,178,900 $ -
Vanden Landscaping-SIA
(2015) 136.66 EDU $ 3,420,242 $ 3,420,242 $ -
Linear Park Segment 3A
(2022) 121.96. EDU $ 3,666,183 $ 3,666,183 $ -
Cash 2018 - Paid
(2018) 4.25 EDU $ 100,000 $ 100,000 $ -
TOTAL EDUs 555.82 $17,106,697 $3,440,042 $2,760,286 NE Fees 11,404,465 2,293,361 1,840,191
AB 1600 Fees 5,702,232 1,146,681 920,095
Cash 2019 - Paid
(2019) 4.21EDU $ 100,000 $ 100,000 $ -
Cash 2020- Paid
(2020) 4.00 EDU $ 100,000 $ 100,000 $ -
Cash 2021- Paid
(2021) 3.87 EDU $ 100,000 $ 100,000 $ -
META Apartments-AB 1600 Fees Paid
(2022) 25.12 EDU $ 755,131 $ 755,131 $ -
Neighborhood 6-AB 1600 Fees Paid
(2022) 17.49 EDU $ 525,900 $ 525,900 $ -
Neighborhood 5A -Est Fees Paid
(2023-2025) 48.89 EDU $ 1,602,755 $ 1,602,755 $ -
Neighborhood 4C, 7A – Fees Paid
(2023-2025) 16.75 EDU $ 549,118 $ 549,118 $ -
Neighborhood 8 – Fees Paid
(2022) 27.93 EDU $. 839,524 $ 839,524 $ -
TOTAL 635.98 EDU $ 16,323,865 $ 16,323,865 $-
Agenda Item No: K.3
AGENDA REPORT
DATE: May 5, 2026
TO: Mayor and Council
FROM: David Gassaway, City Manager
SUBJECT: Resolution 2026-69 PW Canon Station Planning Area 5 – Neighborhood J & K -2 Subdivision Acceptance
Accepting the Canon Station Planning Area 5 – Neighborhood J & K-2 Subdivision Improvements as Complete
Funding Source: N/A
Contact: Matt Kett, (707) 428-7478
RECOMMENDED ACTION
Adopt resolution.
STATEMENT OF ISSUE
Adoption of the resolution will formally accept the subdivision improvements for the Canon Station Planning Area 5 – Neighborhood J & K-2 Subdivision (Subdivision) as complete.
DISCUSSION
One Lake Holding, LLC (Developer) has completed all the required improvements for the Subdivision in accordance with th e subdivision improvement agreement adopted by the City Council on December 3, 2024, by Resolution No. 2024-276. The subdivision consists of 84 single- family residential lots in Planning Area 5 and 29 privately -owned and maintained pedestrian realm parcels.
Staff have inspected the improvements in the subdivision and found them to be complete in accordance with City Standards and the requirements of the subdivision improvement agreement. The final punch list was completed on December 8, 2025. The proposed resolution accepts the subdivision improvements as being complete, except for the obligation of the Developer to repair or reconstruct defective work for a period of one year after the final acceptance.
FINANCIAL IMPACT
Acceptance of the public improvements by the council will obligate the City to maintain the public improvements, including Briones Drive, Calero Drive, Freeform Drive, Open Green Drive, Tempo Drive, and all public water, sewer, and storm utilities located within these streets. Ongoing maintenance for the public improvements will be funded by the City’s General Fund.
The Homeowner’s Association (HOA) will be responsible for the maintenance of the improvements within the pedestrian realm, which include landscape, irrigation, streetlights, and sidewalks, with a portion of these costs to be funded through Community Facilities District (CFD) No. 2023-1 and 2023-2.
PUBLIC CONTACT/ADVISORY BODY RECOMMENDATION
N/A
ALTERNATIVE ACTION
If the council has any questio ns, acceptance may be delayed so that staff may provide the necessary background information.
COORDINATED WITH
N/A
STAFF CONTACT
Matt Kett, Construction Manager
(707) 428-7478
[email protected]
ATTACHMENTS
Attachment 2: Proposed Resolution