Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Protected Protected Protected Protected
Rights: Include Include Ovl Ovl
Min. Green: 7 10 10 7 10 10 7 10 10 7 10 10
Y+R: 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 1 0 2 0 1 2 0 2 0 1 1 0 1 0 1 2 0 0 1 1
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 3 Oct 2006 << 7:15-8:15 am Base Vol: 60 1170 430 140 900 120 30 40 20 860 250 590
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 60 1170 430 140 900 120 30 40 20 860 250 590 Added Vol: 0 6 0 231 19 0 0 0 0 0 0 79
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 60 1176 430 371 919 120 30 40 20 860 250 669 User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Volume: 60 1176 430 371 919 120 30 40 20 860 250 669 Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 60 1176 430 371 919 120 30 40 20 860 250 669 PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 60 1176 430 371 919 120 30 40 20 860 250 669 ------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 0.93 0.93 0.83 0.90 0.93 0.83 0.93 0.98 0.83 0.90 0.87 0.87 Lanes: 1.00 2.00 1.00 2.00 2.00 1.00 1.00 1.00 1.00 2.00 0.54 1.46 Final Sat.: 1769 3538 1583 3432 3538 1583 1769 1862 1583 3432 903 2415 ------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.03 0.33 0.27 0.11 0.26 0.08 0.02 0.02 0.01 0.25 0.28 0.28 Crit Moves: **** **** **** ****
Green Time: 11.9 58.8 58.8 19.1 66.1 66.1 7.0 11.8 23.6 44.3 49.0 68.2 Volume/Cap: 0.43 0.85 0.69 0.85 0.59 0.17 0.36 0.27 0.08 0.85 0.85 0.61 Delay/Veh: 67.9 46.6 41.4 78.3 32.3 25.5 72.1 66.1 54.0 56.7 53.4 31.6 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 67.9 46.6 41.4 78.3 32.3 25.5 72.1 66.1 54.0 56.7 53.4 31.6 LOS by Move: E D D E C C E E D E D C
HCM2kAvgQ: 3 28 17 11 17 3 2 2 1 21 22 16
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1288
Cum With Pj_AM Tue May 18, 2021 22:48:44 Page 8-2
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project AM with MIT
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1289
Pj_PM Tue May 18, 2021 23:10:15 Page 1-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Scenario Report
Scenario: Pj_PM
Command: Existing PM + Project
Volume: Ex_PM
Geometry: Ex_PM
Impact Fee: Default Impact Fee
Trip Generation: Project PM
Trip Distribution: Default Trip Distribution
Paths: Default Path
Routes: Default Route
Configuration: Default Configuration
Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK
Packet Page 1290
Pj_PM Tue May 18, 2021 23:10:15 Page 5-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Level Of Service Computation Report
2000 HCM Operations Method (Future Volume Alternative)
******************************************************************************** Intersection #7 Thornton Ave. / Willow St.
******************************************************************************** Cycle (sec): 95 Critical Vol./Cap.(X): 0.747
Loss Time (sec): 16 Average Delay (sec/veh): 35.0
Optimal Cycle: 75 Level Of Service: C
******************************************************************************** Street Name: Willow St. Thornton Ave.
Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Split Phase Split Phase Protected Protected
Rights: Ovl Include Include Include
Min. Green: 10 10 10 10 10 10 7 10 10 7 10 10
Y+R: 4.0 4.0 3.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 1 1 0 0 1 1 0 0 1 0 1 0 1 1 0 1 0 0 1 0
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 17 May 2007 << 5:00-6:00 pm Base Vol: 112 8 123 18 6 8 42 402 253 10 170 29
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 112 8 123 18 6 8 42 402 253 10 170 29
Added Vol: 147 3 233 0 3 0 0 0 237 381 0 0
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 259 11 356 18 9 8 42 402 490 391 170 29
User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 0.98 0.98 0.98 0.98 0.98 0.98 0.98 0.98 0.98 0.98 0.98 0.98 PHF Volume: 264 11 363 18 9 8 43 410 500 399 173 30
Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 264 11 363 18 9 8 43 410 500 399 173 30
PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 264 11 363 18 9 8 43 410 500 399 173 30
------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 0.93 0.93 0.89 0.93 0.91 0.91 0.93 0.85 0.85 0.93 0.96 0.96 Lanes: 1.92 0.08 1.00 1.00 0.53 0.47 1.00 1.00 1.00 1.00 0.85 0.15 Final Sat.: 3408 145 1689 1769 916 814 1769 1624 1624 1769 1556 265 ------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.08 0.08 0.22 0.01 0.01 0.01 0.02 0.25 0.31 0.23 0.11 0.11 Crit Moves: **** **** **** ****
Green Time: 10.0 10.0 34.9 10.0 10.0 10.0 23.5 34.1 34.1 24.9 35.5 35.5 Volume/Cap: 0.74 0.74 0.58 0.10 0.10 0.10 0.10 0.70 0.86 0.86 0.30 0.30 Delay/Veh: 48.7 48.7 25.6 38.7 38.6 38.6 27.7 28.0 35.4 48.2 21.2 21.2 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 48.7 48.7 25.6 38.7 38.6 38.6 27.7 28.0 35.4 48.2 21.2 21.2 LOS by Move: D D C D D D C C D D C C
HCM2kAvgQ: 6 6 8 1 1 1 1 10 15 14 3 3
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1291
Pj_PM Tue May 18, 2021 23:10:15 Page 5-2
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1292
Pj_PM Tue May 18, 2021 23:10:15 Page 6-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Level Of Service Computation Report
FHWA Roundabout Method (Future Volume Alternative)
******************************************************************************** Intersection #14 Enterprise Dr / Willow St
******************************************************************************** Average Delay (sec/veh): 13.4 Level Of Service: B
******************************************************************************** Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Yield Sign Yield Sign Yield Sign Yield Sign
Lanes: 1 1 1 1
------------|---------------||---------------||---------------||---------------| Volume Module:
Base Vol: 0 120 0 130 130 0 0 0 0 0 0 130
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 0 120 0 130 130 0 0 0 0 0 0 130
Added Vol: 142 127 42 127 168 327 192 17 91 21 8 64
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 142 247 42 257 298 327 192 17 91 21 8 194
User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 0.92 0.92 0.92 0.92 0.92 0.92 0.92 0.92 0.92 0.92 0.92 0.92 PHF Volume: 154 268 46 279 324 355 209 18 99 23 9 211
Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 154 268 46 279 324 355 209 18 99 23 9 211
PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 154 268 46 279 324 355 209 18 99 23 9 211
------------|---------------||---------------||---------------||---------------| PCE Module:
AutoPCE: 154 268 46 279 324 355 209 18 99 23 9 211
TruckPCE: 0 0 0 0 0 0 0 0 0 0 0 0
ComboPCE: 0 0 0 0 0 0 0 0 0 0 0 0
BicyclePCE: 0 0 0 0 0 0 0 0 0 0 0 0
AdjVolume: 154 268 46 279 324 355 209 18 99 23 9 211
------------|---------------||---------------||---------------||---------------| Delay Module: >> Time Period: 0.25 hours <<
CircVolume: 507 186 626 632
MaxVolume: 926 1100 862 859
PedVolume: 0 0 0 0
AdjMaxVol: 926 1100 862 859
ApproachVol: 468 959 326 242
ApproachV/C: 0.51 0.87 0.38 0.28
ApproachDel: 7.8 20.4 6.7 5.8
ApproachLOS: A C A A
Queue: 2.9 12.1 1.8 1.2
Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1293
Pj_PM Tue May 18, 2021 23:10:15 Page 7-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Level Of Service Computation Report
2000 HCM Operations Method (Future Volume Alternative)
******************************************************************************** Intersection #17 Mowry Ave. / Cherry St.
******************************************************************************** Cycle (sec): 85 Critical Vol./Cap.(X): 0.891
Loss Time (sec): 16 Average Delay (sec/veh): 34.4
Optimal Cycle: OPTIMIZED Level Of Service: C
******************************************************************************** Street Name: Cherry St. Mowry Ave.
Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Protected Protected Protected Protected
Rights: Include Include Ovl Ovl
Min. Green: 7 10 10 7 10 10 7 10 10 7 10 10
Y+R: 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 1 0 2 0 1 2 0 2 0 1 1 0 1 0 1 1 0 0 1 1
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 3 Oct 2006 << 4:45-5:45 pm Base Vol: 41 798 152 387 635 63 76 176 53 68 128 322
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 41 798 152 387 635 63 76 176 53 68 128 322 Added Vol: 0 20 0 147 12 0 0 0 0 0 0 249
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 41 818 152 534 647 63 76 176 53 68 128 571 User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 0.89 0.89 0.89 0.89 0.89 0.89 0.89 0.89 0.89 0.89 0.89 0.89 PHF Volume: 46 919 171 600 727 71 85 198 60 76 144 642
Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 46 919 171 600 727 71 85 198 60 76 144 642 PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 46 919 171 600 727 71 85 198 60 76 144 642 ------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 0.93 0.93 0.83 0.90 0.93 0.83 0.93 0.98 0.83 0.93 0.86 0.86 Lanes: 1.00 2.00 1.00 2.00 2.00 1.00 1.00 1.00 1.00 1.00 0.37 1.63 Final Sat.: 1769 3538 1583 3432 3538 1583 1769 1862 1583 1769 598 2668 ------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.03 0.26 0.11 0.17 0.21 0.04 0.05 0.11 0.04 0.04 0.24 0.24 Crit Moves: **** **** **** ****
Green Time: 11.4 23.9 23.9 16.1 28.5 28.5 7.0 17.1 28.5 12.0 22.1 38.1 Volume/Cap: 0.19 0.93 0.38 0.93 0.61 0.13 0.59 0.53 0.11 0.31 0.93 0.54 Delay/Veh: 33.1 43.7 25.2 53.2 24.6 19.8 43.7 31.7 19.6 33.5 46.4 17.4 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 33.1 43.7 25.2 53.2 24.6 19.8 43.7 31.7 19.6 33.5 46.4 17.4 LOS by Move: C D C D C B D C B C D B
HCM2kAvgQ: 1 17 4 12 9 1 3 5 1 2 14 8
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1294
Pj_PM Tue May 18, 2021 23:10:15 Page 7-2
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Existing Plus Project PM Conditions with Mitigation
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1295
Cum With Pj_PM Tue May 18, 2021 22:52:05 Page 1-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Scenario Report
Scenario: Cum With Pj_PM
Command: Future _ WITH Project PM
Volume: Cum_PM
Geometry: CU_PM
Impact Fee: Default Impact Fee
Trip Generation: Project PM
Trip Distribution: Default Trip Distribution
Paths: Default Path
Routes: Default Route
Configuration: Default Configuration
Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1296
Cum With Pj_PM Tue May 18, 2021 22:52:07 Page 5-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Level Of Service Computation Report
2000 HCM Operations Method (Future Volume Alternative)
******************************************************************************** Intersection #3 Gateway Blvd. / Thornton Ave.
******************************************************************************** Cycle (sec): 65 Critical Vol./Cap.(X): 1.056
Loss Time (sec): 12 Average Delay (sec/veh): 38.8
Optimal Cycle: 180 Level Of Service: D
******************************************************************************** Street Name: Thornton Ave. Gateway Blvd.
Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Permitted Protected Split Phase Split Phase
Rights: Ovl Include Include Ovl
Min. Green: 0 10 10 7 10 0 0 0 0 10 0 10
Y+R: 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 0 0 2 1 0 2 0 1 0 0 0 0 0 0 0 1 0 0 0 2
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 17 May 2007 <<
Base Vol: 0 550 60 420 1070 0 0 0 0 40 0 450
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 0 550 60 420 1070 0 0 0 0 40 0 450
Added Vol: 0 144 3 0 232 0 0 0 0 5 0 0
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 0 694 63 420 1302 0 0 0 0 45 0 450
User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Volume: 0 694 63 420 1302 0 0 0 0 45 0 450
Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 0 694 63 420 1302 0 0 0 0 45 0 450
PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 0 694 63 420 1302 0 0 0 0 45 0 450
------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 1.00 0.88 0.88 0.90 0.98 1.00 1.00 1.00 1.00 0.93 1.00 0.73 Lanes: 0.00 2.75 0.25 2.00 1.00 0.00 0.00 0.00 0.00 1.00 0.00 2.00 Final Sat.: 0 4604 418 3432 1862 0 0 0 0 1769 0 2786
------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.00 0.15 0.15 0.12 0.70 0.00 0.00 0.00 0.00 0.03 0.00 0.16 Crit Moves: **** ****
Green Time: 0.0 10.0 20.0 33.0 43.0 0.0 0.0 0.0 0.0 10.0 0.0 43.0 Volume/Cap: 0.00 0.98 0.49 0.24 1.06 0.00 0.00 0.00 0.00 0.17 0.00 0.24 Delay/Veh: 0.0 54.8 18.6 9.0 53.2 0.0 0.0 0.0 0.0 24.2 0.0 4.5 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 0.0 54.8 18.6 9.0 53.2 0.0 0.0 0.0 0.0 24.2 0.0 4.5 LOS by Move: A D B A D A A A A C A A
HCM2kAvgQ: 0 6 4 2 37 0 0 0 0 1 0 2
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1297
Cum With Pj_PM Tue May 18, 2021 22:52:07 Page 5-2
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1298
Cum With Pj_PM Tue May 18, 2021 22:52:07 Page 6-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Level Of Service Computation Report
2000 HCM Operations Method (Future Volume Alternative)
******************************************************************************** Intersection #7 Thornton Ave. / Willow St.
******************************************************************************** Cycle (sec): 115 Critical Vol./Cap.(X): 0.832
Loss Time (sec): 16 Average Delay (sec/veh): 41.5
Optimal Cycle: OPTIMIZED Level Of Service: D
******************************************************************************** Street Name: Willow St. Thornton Ave.
Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Split Phase Split Phase Protected Protected
Rights: Ovl Include Include Include
Min. Green: 10 10 10 10 10 10 7 10 10 7 10 10
Y+R: 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 1 1 0 0 1 1 0 0 1 0 1 0 1 1 0 1 0 0 1 0
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 17 May 2007 << 5:00-6:00 pm Base Vol: 120 10 130 20 10 10 50 830 260 20 560 30
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 120 10 130 20 10 10 50 830 260 20 560 30
Added Vol: 147 3 233 0 3 0 0 0 237 381 0 0
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 267 13 363 20 13 10 50 830 497 401 560 30
User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Volume: 267 13 363 20 13 10 50 830 497 401 560 30
Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 267 13 363 20 13 10 50 830 497 401 560 30
PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 267 13 363 20 13 10 50 830 497 401 560 30
------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 0.93 0.93 0.83 0.93 0.92 0.92 0.93 0.88 0.88 0.93 0.97 0.97 Lanes: 1.91 0.09 1.00 1.00 0.57 0.43 1.00 1.25 0.75 1.00 0.95 0.05 Final Sat.: 3388 165 1583 1769 984 757 1769 2089 1251 1769 1753 94 ------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.08 0.08 0.23 0.01 0.01 0.01 0.03 0.40 0.40 0.23 0.32 0.32 Crit Moves: **** **** **** ****
Green Time: 10.0 10.0 38.7 10.0 10.0 10.0 12.6 50.3 50.3 28.7 66.4 66.4 Volume/Cap: 0.91 0.91 0.68 0.13 0.15 0.15 0.26 0.91 0.91 0.91 0.55 0.55 Delay/Veh: 80.6 80.6 36.4 48.9 49.0 49.0 47.6 38.8 38.8 64.2 15.8 15.8 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 80.6 80.6 36.4 48.9 49.0 49.0 47.6 38.8 38.8 64.2 15.8 15.8 LOS by Move: F F D D D D D D D E B B
HCM2kAvgQ: 8 8 12 1 1 1 2 25 25 17 13 13
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1299
Cum With Pj_PM Tue May 18, 2021 22:52:07 Page 6-2
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1300
Cum With Pj_PM Tue May 18, 2021 22:52:07 Page 7-1
-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Level Of Service Computation Report
FHWA Roundabout Method (Future Volume Alternative)
******************************************************************************** Intersection #14 Enterprise Dr / Willow St
******************************************************************************** Average Delay (sec/veh): 11.8 Level Of Service: B
******************************************************************************** Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Yield Sign Yield Sign Yield Sign Yield Sign
Lanes: 1 1 1 1
------------|---------------||---------------||---------------||---------------| Volume Module:
Base Vol: 10 130 10 140 140 10 10 10 10 10 10 140
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 10 130 10 140 140 10 10 10 10 10 10 140
Added Vol: 142 127 42 127 168 327 192 17 91 21 8 64
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 152 257 52 267 308 337 202 27 101 31 18 204 User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Volume: 152 257 52 267 308 337 202 27 101 31 18 204 Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 152 257 52 267 308 337 202 27 101 31 18 204 PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 152 257 52 267 308 337 202 27 101 31 18 204 ------------|---------------||---------------||---------------||---------------| PCE Module:
AutoPCE: 152 257 52 267 308 337 202 27 101 31 18 204
TruckPCE: 0 0 0 0 0 0 0 0 0 0 0 0
ComboPCE: 0 0 0 0 0 0 0 0 0 0 0 0
BicyclePCE: 0 0 0 0 0 0 0 0 0 0 0 0
AdjVolume: 152 257 52 267 308 337 202 27 101 31 18 204
------------|---------------||---------------||---------------||---------------| Delay Module: >> Time Period: 0.25 hours <<
CircVolume: 496 201 606 611
MaxVolume: 932 1091 873 870
PedVolume: 0 0 0 0
AdjMaxVol: 932 1091 873 870
ApproachVol: 461 912 330 253
ApproachV/C: 0.49 0.84 0.38 0.29
ApproachDel: 7.6 17.4 6.6 5.8
ApproachLOS: A C A A
Queue: 2.8 10.4 1.8 1.2
Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1301
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-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Level Of Service Computation Report
2000 HCM Operations Method (Future Volume Alternative)
******************************************************************************** Intersection #17 Mowry Ave. / Cherry St.
******************************************************************************** Cycle (sec): 135 Critical Vol./Cap.(X): 1.339
Loss Time (sec): 16 Average Delay (sec/veh): 98.3
Optimal Cycle: 180 Level Of Service: F
******************************************************************************** Street Name: Cherry St. Mowry Ave.
Approach: North Bound South Bound East Bound West Bound Movement: L - T - R L - T - R L - T - R L - T - R
------------|---------------||---------------||---------------||---------------| Control: Protected Protected Protected Protected
Rights: Include Include Ovl Ovl
Min. Green: 7 10 10 7 10 10 7 10 10 7 10 10
Y+R: 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0 4.0
Lanes: 1 0 2 0 1 2 0 2 0 1 1 0 1 0 1 2 0 0 1 1
------------|---------------||---------------||---------------||---------------| Volume Module: >> Count Date: 3 Oct 2006 << 4:45-5:45 pm Base Vol: 50 850 710 730 920 90 100 220 60 230 170 940
Growth Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Initial Bse: 50 850 710 730 920 90 100 220 60 230 170 940 Added Vol: 0 20 0 147 12 0 0 0 0 0 0 249
PasserByVol: 0 0 0 0 0 0 0 0 0 0 0 0
Initial Fut: 50 870 710 877 932 90 100 220 60 230 170 1189 User Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 PHF Volume: 50 870 710 877 932 90 100 220 60 230 170 1189 Reduct Vol: 0 0 0 0 0 0 0 0 0 0 0 0
Reduced Vol: 50 870 710 877 932 90 100 220 60 230 170 1189 PCE Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 MLF Adj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 FinalVolume: 50 870 710 877 932 90 100 220 60 230 170 1189 ------------|---------------||---------------||---------------||---------------| Saturation Flow Module:
Sat/Lane: 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 1900 Adjustment: 0.93 0.93 0.83 0.90 0.93 0.83 0.93 0.98 0.83 0.90 0.85 0.85 Lanes: 1.00 2.00 1.00 2.00 2.00 1.00 1.00 1.00 1.00 2.00 0.25 1.75 Final Sat.: 1769 3538 1583 3432 3538 1583 1769 1862 1583 3432 405 2831 ------------|---------------||---------------||---------------||---------------| Capacity Analysis Module:
Vol/Sat: 0.03 0.25 0.45 0.26 0.26 0.06 0.06 0.12 0.04 0.07 0.42 0.42 Crit Moves: **** **** **** ****
Green Time: 11.5 44.7 44.7 25.5 58.6 58.6 7.0 31.2 42.7 17.7 41.8 67.3 Volume/Cap: 0.33 0.74 1.35 1.35 0.61 0.13 1.09 0.51 0.12 0.51 1.35 0.84 Delay/Veh: 59.4 42.7 217.1 224.5 30.0 23.0 184.5 46.3 32.9 55.6 213 33.5 User DelAdj: 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 AdjDel/Veh: 59.4 42.7 217.1 224.5 30.0 23.0 184.5 46.3 32.9 55.6 213 33.5 LOS by Move: E D F F C C F D C E F C
HCM2kAvgQ: 2 18 53 35 16 2 8 8 2 5 51 26
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1302
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-------------------------------------------------------------------------------- Newark-Dumbarton Rail SAP
2020 Analysis
Future Year 2035 Base Plus Project PM
-------------------------------------------------------------------------------- Note: Queue reported is the number of cars per lane.
******************************************************************************** Traffix 8.0.0715 (c) 2008 Dowling Assoc. Licensed to FEHR & PEERS WALNUT CRK Packet Page 1303
ATTACHMENT 1
INTERSECTION LEVEL OF SERVICE TABLES
Willow and Grand Park Project, Newark
Bus Turning Simulation Attachment 3 CONCEPTUAL - NOT FOR CONSTRUCTION N.T.S. INCOMING 45' BUSES OUTGOING 45' BUSES Packet Page 1305
2201 Broadway | Suite 602 | Oakland, CA 94612 | (510) 834-3200 | Fax (510) 253-0059 www.fehrandpeers.com
MEMORANDUM
Date: February 28, 2022
To: Lesley Owning, HELIX Environmental Planning, Inc.
From: Rob Rees, Fehr & Peers
Subject: Enterprise Drive – Willow Street Mixed-Use Project OK19-0325
This memorandum presents our findings for the Enterprise Drive cross section for the Willow Street Mixed-Use project. The review of Enterprise Drive cross section between Willow and Hickory Streets per request from the City of Newark and the development team is summarized below.
ROUNDABOUT ANALYSIS
Roundabout analysis is a process of evaluating intersection analysis for all movements during both AM and PM peak hour for a roundabout. The analysis for the roundabout at Enterprise Drive and Willow Street was performed using Sidra Intersection software (SIDRA) and the traffic volumes from Dumbarton TOD EIR. The study roundabout is currently operating with an eastbound right turn slip lane. Table 1 summarizes the 2035 buildout cumulative turn movements at the study roundabout from the Dumbarton TOD EIR.
Table 1:
Turning Volumes at Enterprise Drive and Willow Street – 2035 Cumulative Buildout Forecasts
Willow Street Enterprise Drive
Movement NBL NBT NBR SBL SBT SBR EBL EBT EBR WBL WBT WBR AM 97 245 19 178 211 260 196 14 107 52 27 278
PM 110 218 52 267 255 247 281 27 114 31 18 204
The cumulative traffic forecasts shown in Table 1 illustrate that the heaviest traffic flows are anticipated along the Willow Street corridor. The volumes in Table 1 were used to analyze if the roundabout at Enterprise Drive and Willow Street could operate as a single lane roundabout. SIDRA shows the results in level of service (LOS) and volume-to-capacity (v/c) ratio. The intersection will Packet Page 1306
Lesley Owning
February 28, 2022
operate with LOS B in the AM and LOS C in the PM. LOS B in the AM means the operation will experience minor delays with less then 15 seconds per vehicle. LOS C in the PM means the operation will experience moderate delays with less than 25 seconds per vehicle. The v/c ratio is 0.64 in the AM and 0.75 in the PM, which are under 0.85. Values under 0.85 typically represent conditions where the traffic network is serving the travel demand well. The SIDRA calculation worksheets are provided in Attachment A to this memorandum. The single lane roundabout operates well through Year 2035 and controls capacity to and from Enterprise Drive. As such, Enterprise Drive approaching the roundabout should be one lane in each direction to provide efficient vehicular movements approaching and departing the single lane roundabout.
RECOMMENDATIONS
This assessment results in the following recommendations:
• The roundabout at Enterprise Drive and Willow Street can be constructed as a single lane roundabout that will serve the travel demand well for 2035 buildout scenario with LOS B in the AM and LOS C in the PM.
• The Enterprise Drive cross section can be one lane in each direction consistent with the single lane roundabout. The recommended cross section is below.
ATTACHMENTS
Attachment 1: Intersection Worksheets
Packet Page 1307
SITE LAYOUT
Site: 1 [AM - Willow St & Enterprise Dr (Site Folder: General)] Site Category: One Lane Roundabout
Roundabout
Layout pictures are schematic functional drawings reflecting input data. They are not design drawings.
SIDRA INTERSECTION 9.0 | Copyright © 2000-2020 Akcelik and Associates Pty Ltd | sidrasolutions.com Organisation: FEHR AND PEERS | Licence: PLUS / Enterprise | Created: Thursday, October 1, 2020 9:57:50 AM Project: \\Fpok03.fpainc.local\data\Projects\2019\OK19-0325.00_Willow_Street_Mixed_Use\Analysis\Task 4 - Hickory Alignment & Transit Simulations \SIDRA\Willow and Enterprise Roundabout.sip9
ATTACHMENT A Packet Page 1308
MOVEMENT SUMMARY
Site: 1 [AM - Willow St & Enterprise Dr (Site Folder: General)] Site Category: One Lane Roundabout
Roundabout
Vehicle Movement Performance
INPUT
VOLUMES
DEMAND
FLOWS
95% BACK OF
QUEUE
Mov
ID
Turn Deg.
Satn
Aver.
Delay
Level of
Service
Prop.
Que
Effective
Stop
Rate
Aver.
No.
Cycles
Aver.
Speed
[ Total HV ] [ Total HV ] [ Veh. Dist ]
veh/h % veh/h % v/c sec veh ft mph
South: Willow St
3 L2 97 3.0 105 3.0 0.456 9.9 LOS A 2.9 73.2 0.66 0.67 0.78 27.0 8 T1 245 3.0 266 3.0 0.456 9.9 LOS A 2.9 73.2 0.66 0.67 0.78 24.0 18 R2 19 3.0 21 3.0 0.456 9.9 LOS A 2.9 73.2 0.66 0.67 0.78 24.4 Approach 361 3.0 392 3.0 0.456 9.9 LOS A 2.9 73.2 0.66 0.67 0.78 24.9 East: Enterprise Dr
1 L2 52 3.0 57 3.0 0.536 13.2 LOS B 3.9 98.6 0.75 0.89 1.14 23.7 6 T1 27 3.0 29 3.0 0.536 13.2 LOS B 3.9 98.6 0.75 0.89 1.14 25.8 16 R2 278 3.0 302 3.0 0.536 13.2 LOS B 3.9 98.6 0.75 0.89 1.14 21.9 Approach 357 3.0 388 3.0 0.536 13.2 LOS B 3.9 98.6 0.75 0.89 1.14 22.5 North: Willow St
7 L2 178 3.0 193 3.0 0.644 12.3 LOS B 6.7 170.6 0.65 0.53 0.75 23.4 4 T1 211 3.0 229 3.0 0.644 12.3 LOS B 6.7 170.6 0.65 0.53 0.75 22.2 14 R2 260 3.0 283 3.0 0.644 12.3 LOS B 6.7 170.6 0.65 0.53 0.75 23.8 Approach 649 3.0 705 3.0 0.644 12.3 LOS B 6.7 170.6 0.65 0.53 0.75 23.3 West: Enterprise Dr
5 L2 196 3.0 213 3.0 0.426 9.8 LOS A 2.4 62.6 0.66 0.69 0.78 21.0 2 T1 14 3.0 15 3.0 0.426 9.8 LOS A 2.4 62.6 0.66 0.69 0.78 26.6 12 R2 107 3.0 116 3.0 0.426 9.8 LOS A 2.4 62.6 0.66 0.69 0.78 24.9 Approach 317 3.0 345 3.0 0.426 9.8 LOS A 2.4 62.6 0.66 0.69 0.78 22.5 All Vehicles 1684 3.0 1830 3.0 0.644 11.5 LOS B 6.7 170.6 0.68 0.67 0.84 23.2 Site Level of Service (LOS) Method: Delay & v/c (HCM 6). Site LOS Method is specified in the Parameter Settings dialog (Site tab).
Roundabout LOS Method: Same as Sign Control.
Vehicle movement LOS values are based on average delay and v/c ratio (degree of saturation) per movement.
LOS F will result if v/c > 1 irrespective of movement delay value (does not apply for approaches and intersection).
Intersection and Approach LOS values are based on average delay for all movements (v/c not used as specified in HCM 6).
Roundabout Capacity Model: US HCM 6.
Delay Model: HCM Delay Formula (Geometric Delay is not included).
Queue Model: HCM Queue Formula.
Gap-Acceptance Capacity: Traditional M1.
HV (%) values are calculated for All Movement Classes of All Heavy Vehicle Model Designation.
SIDRA INTERSECTION 9.0 | Copyright © 2000-2020 Akcelik and Associates Pty Ltd | sidrasolutions.com Organisation: FEHR AND PEERS | Licence: PLUS / Enterprise | Processed: Thursday, October 1, 2020 9:57:43 AM Project: \\Fpok03.fpainc.local\data\Projects\2019\OK19-0325.00_Willow_Street_Mixed_Use\Analysis\Task 4 - Hickory Alignment & Transit Simulations \SIDRA\Willow and Enterprise Roundabout.sip9
ATTACHMENT A Packet Page 1309
SITE LAYOUT
Site: 1 [PM - Willow St & Enterprise Dr (Site Folder: General)] Site Category: One Lane Roundabout
Roundabout
Layout pictures are schematic functional drawings reflecting input data. They are not design drawings.
SIDRA INTERSECTION 9.0 | Copyright © 2000-2020 Akcelik and Associates Pty Ltd | sidrasolutions.com Organisation: FEHR AND PEERS | Licence: PLUS / Enterprise | Created: Thursday, October 1, 2020 9:57:53 AM Project: \\Fpok03.fpainc.local\data\Projects\2019\OK19-0325.00_Willow_Street_Mixed_Use\Analysis\Task 4 - Hickory Alignment & Transit Simulations \SIDRA\Willow and Enterprise Roundabout.sip9
ATTACHMENT A Packet Page 1310
MOVEMENT SUMMARY
Site: 1 [PM - Willow St & Enterprise Dr (Site Folder: General)] Site Category: One Lane Roundabout
Roundabout
Vehicle Movement Performance
INPUT
VOLUMES
DEMAND
FLOWS
95% BACK OF
QUEUE
Mov
ID
Turn Deg.
Satn
Aver.
Delay
Level of
Service
Prop.
Que
Effective
Stop
Rate
Aver.
No.
Cycles
Aver.
Speed
[ Total HV ] [ Total HV ] [ Veh. Dist ]
veh/h % veh/h % v/c sec veh ft mph
South: Willow St
3 L2 110 3.0 120 3.0 0.595 15.5 LOS C 4.7 120.5 0.79 0.97 1.32 23.9 8 T1 218 3.0 237 3.0 0.595 15.5 LOS C 4.7 120.5 0.79 0.97 1.32 20.7 18 R2 52 3.0 57 3.0 0.595 15.5 LOS C 4.7 120.5 0.79 0.97 1.32 21.5 Approach 380 3.0 413 3.0 0.595 15.5 LOS C 4.7 120.5 0.79 0.97 1.32 21.8 East: Enterprise Dr
1 L2 31 3.0 34 3.0 0.412 11.2 LOS B 2.2 56.3 0.71 0.77 0.90 25.1 6 T1 18 3.0 20 3.0 0.412 11.2 LOS B 2.2 56.3 0.71 0.77 0.90 27.0 16 R2 204 3.0 222 3.0 0.412 11.2 LOS B 2.2 56.3 0.71 0.77 0.90 23.1 Approach 253 3.0 275 3.0 0.412 11.2 LOS B 2.2 56.3 0.71 0.77 0.90 23.7 North: Willow St
7 L2 267 3.0 290 3.0 0.749 15.9 LOS C 13.9 355.8 0.76 0.72 1.08 21.4 4 T1 255 3.0 277 3.0 0.749 15.9 LOS C 13.9 355.8 0.76 0.72 1.08 20.2 14 R2 247 3.0 268 3.0 0.749 15.9 LOS C 13.9 355.8 0.76 0.72 1.08 22.0 Approach 769 3.0 836 3.0 0.749 15.9 LOS C 13.9 355.8 0.76 0.72 1.08 21.2 West: Enterprise Dr
5 L2 281 3.0 305 3.0 0.644 17.0 LOS C 5.8 148.9 0.82 1.04 1.46 18.5 2 T1 27 3.0 29 3.0 0.644 17.0 LOS C 5.8 148.9 0.82 1.04 1.46 23.2 12 R2 114 3.0 124 3.0 0.644 17.0 LOS C 5.8 148.9 0.82 1.04 1.46 21.6 Approach 422 3.0 459 3.0 0.644 17.0 LOS C 5.8 148.9 0.82 1.04 1.46 19.6 All Vehicles 1824 3.0 1983 3.0 0.749 15.4 LOS C 13.9 355.8 0.77 0.85 1.19 21.2 Site Level of Service (LOS) Method: Delay & v/c (HCM 6). Site LOS Method is specified in the Parameter Settings dialog (Site tab).
Roundabout LOS Method: Same as Sign Control.
Vehicle movement LOS values are based on average delay and v/c ratio (degree of saturation) per movement.
LOS F will result if v/c > 1 irrespective of movement delay value (does not apply for approaches and intersection).
Intersection and Approach LOS values are based on average delay for all movements (v/c not used as specified in HCM 6).
Roundabout Capacity Model: US HCM 6.
Delay Model: HCM Delay Formula (Geometric Delay is not included).
Queue Model: HCM Queue Formula.
Gap-Acceptance Capacity: Traditional M1.
HV (%) values are calculated for All Movement Classes of All Heavy Vehicle Model Designation.
SIDRA INTERSECTION 9.0 | Copyright © 2000-2020 Akcelik and Associates Pty Ltd | sidrasolutions.com Organisation: FEHR AND PEERS | Licence: PLUS / Enterprise | Processed: Thursday, October 1, 2020 9:57:44 AM Project: \\Fpok03.fpainc.local\data\Projects\2019\OK19-0325.00_Willow_Street_Mixed_Use\Analysis\Task 4 - Hickory Alignment & Transit Simulations \SIDRA\Willow and Enterprise Roundabout.sip9
ATTACHMENT A Packet Page 1311
2201 Broadway | Suite 602 | Oakland, CA 94612 | (510) 834-3200 | Fax (510) 253-0059 www.fehrandpeers.com
DRAFT MEMORANDUM
Date: May 26, 2022
To: Lesley Owning, HELIX Environmental Planning, Inc.
From: Rob Rees, Fehr & Peers
Subject: Trip Generation and Intersection Operations Analysis for Willow Street at G Street
OK19-0325
This memorandum presents the findings of the trip generation and intersection operations analysis prepared for the G Street intersection with Willow Street after buildout of the FMC Willow and Grand Park Project (formerly the Willow Street Mixed-Use Project) in Newark, CA.
PROJECT TRIP GENERATION
Proposed construction of the Project includes a new street, G Street, that would intersect with Willow Street and serve 64 market-rate townhomes, 91 affordable housing units, 3,600 square feet of retail space, and a bus transit station with 72 commuter parking spaces. The trip generation generated by these uses would use G Street to access Willow Street.
Trip generation is the process of estimating vehicles that would likely access the Project. Trip generation for the SP EIR was estimated using methods, formulas, and rates presented by Institute of Transportation Engineers (ITE) in the Trip Generation Manual, 8th Edition. To remain consistent with the SP EIR, Project trip generation was also estimated using the Trip Generation Manual, 8th Edition. Consistent with FMC Parcel C Project analysis, Trip Generation Manual, 9th Edition was used to estimate trip generation for land uses that were not evaluated in the SP EIR, except for the bus transit center, which used the Trip Generation Manual, 10th Edition because data was not available from earlier editions.
The proposed Project would be located less than a half-mile from the future Dumbarton Rail Transit Station, and it would construct the bus transit station element of the Rail Station. Considering the proximity of the Project to the future Dumbarton Rail Transit Station, some Project trips are likely to shift to transit. However, the future of the Dumbarton Rail line is uncertain due to funding Packet Page 1312
Lesley Owning
May 26, 2022
constraints. Therefore, as a reasonable worst-case scenario, no transit reductions were assumed in the trip generation estimates, which is consistent with the trip generation in the SP EIR.
Table 1 on the next page summarizes the trip generation for the Project elements that would use G Street. Since the Trip Generation Manual, 8th Edition does not differentiate between affordable housing and market-rate townhouses, this analysis combines them for 155 total residential units.
Using the SP EIR internalization assumptions, the Project elements that use G Street is estimated to generate about 852 daily, 72 AM peak hour, and 83 PM peak hour external vehicle trips.
INTERSECTION OPERATIONS AND SIGNAL WARRANT ANALYSIS
Intersection operations were evaluated at the G Street intersection with Willow Street to assess intersection operations.
Vehicle trip generation for the uses that would use G Street is summarized in Table 1. Vehicle trips were distributed to the road network using the trip distribution percentages from the SP EIR, and the distributed trips were assigned to the study intersection based on paths of travel. The assigned trips were then added to the “Existing with SP Buildout” and “Cumulative (Year 2035) with SP Buildout” traffic forecasts based on the current planned SP buildout as evaluated in the November 19, 2021, memorandum titled, Trip Generation and Intersection Operations Analysis – FMC Willow and Grand Park Project.
Attachment 1 provides the intersection analysis worksheets and the peak hour signal warrant worksheets. With buildout of the current specific plan the G Street intersection with Willow Street would operate as follows.
Intersection Level of Service – G Street at Willow Street (Side Street Stop Control Operations)
Study Scenario
AM Peak Hour PM Peak Hour Peak Hour Signal
Warrant Met
(Yes / No)?
Level of
Service Delay Level of Service Delay
Existing Plus Project D 25.0 F 54.1 No
Cumulative 2035 Plus Project D 31.9 E 47.2 No
Notes: Intersection LOS and Delay represents the operations for the side-street stop control movements on G Street turning onto Willow Street because this traffic must stop before proceeding. Willow Street traffic does not stop and so its LOS would be “A”.
Source: ITE Highway Capacity Manual, 6th Edition; Fehr & Peers, 2022.
Packet Page 1313
Lesley Owning
May 26, 2022
Level of Service E and F conditions occur during the PM peak hours when the traffic loads on Willow Street are greatest, and so it is more difficult to turn onto Willow Street from G Street.
The G Street intersection with Willow Street was reviewed for the Peak Hour Traffic Signal Warrants (worksheets in Attachment 1). The peak hour warrant is not met because G Street traffic volumes are substantially lower than the minimum threshold for signalization. However, it is likely that the peak hour warrant for signalization will be met once the rail station traffic is added to the G Street corridor. The analysis in this memorandum assumes a bus transit station but not a rail station. Only the peak hour warrant was considered for this memorandum. Prior to signalization in the future after the project is constructed the full complement of signal warrants should be considered to determine if a traffic signal should be installed.
ATTACHMENTS
Attachment 1: Intersection Analysis Worksheets and Peak Hour Signal Warrant Worksheets Packet Page 1314
Lesley Owning
May 26, 2022
Table 1
FMC Willow and Grand Park Project Trip Generation for Uses Served by G Street Land Use Units1 ITE
Code Daily
AM Peak Hour PM Peak Hour
In Out Total In Out Total
New Uses (Served by G Street)
Retail2 3.6 KSF 820 155 2 2 4 7 6 13
Townhomes/Apartments
(including 91 Affordable
Units)3
155 DU 230 680 8 37 45 36 18 54
Bus Transit Station5 72 PS 90 202 21 9 30 9 22 31
Total Project Trips using G Street 1,037 31 48 79 52 46 98 Reductions
Retail Internalization (-80%)6 -124 -2 -1 -3 -6 -4 -10
Townhomes/Apart Internalization (-9%)6 -61 -1 -3 -4 -3 -2 -5 Total Internalization (-80% retail, -9%
residential)6 -185 -3 -4 -7 -9 -6 -15
Net External Project Trips Using G Street 852 28 44 72 43 40 83
1. KSF = 1,000 square feet, DU = dwelling units
2. Based on the Dumbarton Transit Oriented Development Specific Plan Final Environmental Impact Report (RBF, May 2011):
Daily: T = 42.94 * (X);
AM Peak Hour: T = 1 * (X) (61% in, 39% out);
PM Peak Hour: T = 3.37 * (X) (49% in, 51% out)
3. Based on the Dumbarton Transit Oriented Development Specific Plan Final Environmental Impact Report (RBF, May 2011):
Daily: T = 4.39 * (X);
AM Peak Hour: T = 0.29 * (X) (17% in, 83% out);
PM Peak Hour: T = 0.35 * (X) (67% in, 33% out)
4. ITE Trip Generation (8th Edition) land use category 412 (County Park):
Daily: T = 2.28 * (X);
AM Peak Hour: T = 0.01 * (X) (80% in, 20% out);
PM Peak Hour: T = 0.06 * (X) 41% in, 59% out)
5. ITE Trip Generation (10th Edition) land use category 090 (Park and Ride Lot with Bus or Light Rail) Daily: T = 2.81 * (X);
AM Peak Hour: T = 0.42 * (X) (69% in, 31% out);
PM Peak Hour: T = 0.43 * (X) (28% in, 72% out)
6. As in the SP EIR, 9% of the residential trips and 80% of the commercial trips would be internal to the Specific Plan Area.
Sources: ITE Trip Generation Manual, 8th Edition; ITE Trip Generation Manual, 10th Edition; Fehr & Peers, 2021.
Packet Page 1315
HCM 6th TWSC FMC Willow & Grand Park
1: Willow Street & G Street AM Existing Plus Project
Synchro 11 Report
Fehr & Peers Page 2
Intersection
Int Delay, s/veh 0.9
Movement EBL EBR NBL NBT SBT SBR
Lane Configurations
Traffic Vol, veh/h 30 14 10 729 465 18
Future Vol, veh/h 30 14 10 729 465 18
Conflicting Peds, #/hr 0 00000
Sign Control Stop Stop Free Free Free Free
RT Channelized - None - None - None
Storage Length 0 0 100 - - -
Veh in Median Storage, # 0 - - 0 0 -
Grade, % 0 - - 0 0 -
Peak Hour Factor 92 92 92 92 92 92
Heavy Vehicles, % 2 22222
Mvmt Flow 33 15 11 792 505 20
Major/Minor Minor2 Major1 Major2
Conflicting Flow All 1329 515 525 0 - 0
Stage 1 515 -----
Stage 2 814 -----
Critical Hdwy 6.42 6.22 4.12 - - -
Critical Hdwy Stg 1 5.42 -----
Critical Hdwy Stg 2 5.42 -----
Follow-up Hdwy 3.518 3.318 2.218 - - -
Pot Cap-1 Maneuver 171 560 1042 - - -
Stage 1 600 -----
Stage 2 436 -----
Platoon blocked, % - - -
Mov Cap-1 Maneuver 169 560 1042 - - -
Mov Cap-2 Maneuver 169 -----
Stage 1 593 -----
Stage 2 436 -----
Approach EB NB SB
HCM Control Delay, s 25 0.1 0
HCM LOS D
Minor Lane/Major Mvmt NBL NBT EBLn1 EBLn2 SBT SBR
Capacity (veh/h) 1042 - 169 560 - -
HCM Lane V/C Ratio 0.01 - 0.193 0.027 - -
HCM Control Delay (s) 8.5 - 31.3 11.6 - -
HCM Lane LOS A - D B - -
HCM 95th %tile Q(veh) 0 - 0.7 0.1 - -
Packet Page 1316
HCM 6th TWSC FMC Willow & Grand Park
1: Willow Street & G Street PM Existing Plus Project
Synchro 11 Report
Fehr & Peers Page 2
Intersection
Int Delay, s/veh 1.4
Movement EBL EBR NBL NBT SBT SBR
Lane Configurations
Traffic Vol, veh/h 28 12 14 674 946 29
Future Vol, veh/h 28 12 14 674 946 29
Conflicting Peds, #/hr 0 00000
Sign Control Stop Stop Free Free Free Free
RT Channelized - None - None - None
Storage Length 0 0 100 - - -
Veh in Median Storage, # 0 - - 0 0 -
Grade, % 0 - - 0 0 -
Peak Hour Factor 92 92 92 92 92 92
Heavy Vehicles, % 2 22222
Mvmt Flow 30 13 15 733 1028 32
Major/Minor Minor2 Major1 Major2
Conflicting Flow All 1807 1044 1060 0 - 0
Stage 1 1044 -----
Stage 2 763 -----
Critical Hdwy 6.42 6.22 4.12 - - -
Critical Hdwy Stg 1 5.42 -----
Critical Hdwy Stg 2 5.42 -----
Follow-up Hdwy 3.518 3.318 2.218 - - -
Pot Cap-1 Maneuver 87 278 657 - - -
Stage 1 339 -----
Stage 2 460 -----
Platoon blocked, % - - -
Mov Cap-1 Maneuver 85 278 657 - - -
Mov Cap-2 Maneuver 85 -----
Stage 1 331 -----
Stage 2 460 -----
Approach EB NB SB
HCM Control Delay, s 54.1 0.2 0
HCM LOS F
Minor Lane/Major Mvmt NBL NBT EBLn1 EBLn2 SBT SBR
Capacity (veh/h) 657 - 85 278 - -
HCM Lane V/C Ratio 0.023 - 0.358 0.047 - -
HCM Control Delay (s) 10.6 - 69.3 18.6 - -
HCM Lane LOS B - F C - -
HCM 95th %tile Q(veh) 0.1 - 1.4 0.1 - -
Packet Page 1317
HCM 6th TWSC FMC Willow & Grand Park
1: Willow Street & G Street AM 2035 Plus Project
Synchro 11 Report
Fehr & Peers Page 2
Intersection
Int Delay, s/veh 1
Movement EBL EBR NBL NBT SBT SBR
Lane Configurations
Traffic Vol, veh/h 30 14 10 823 536 18
Future Vol, veh/h 30 14 10 823 536 18
Conflicting Peds, #/hr 0 00000
Sign Control Stop Stop Free Free Free Free
RT Channelized - None - None - None
Storage Length 0 0 100 - - -
Veh in Median Storage, # 0 - - 0 0 -
Grade, % 0 - - 0 0 -
Peak Hour Factor 92 92 92 92 92 92
Heavy Vehicles, % 2 22222
Mvmt Flow 33 15 11 895 583 20
Major/Minor Minor2 Major1 Major2
Conflicting Flow All 1510 593 603 0 - 0
Stage 1 593 -----
Stage 2 917 -----
Critical Hdwy 6.42 6.22 4.12 - - -
Critical Hdwy Stg 1 5.42 -----
Critical Hdwy Stg 2 5.42 -----
Follow-up Hdwy 3.518 3.318 2.218 - - -
Pot Cap-1 Maneuver 133 506 975 - - -
Stage 1 552 -----
Stage 2 390 -----
Platoon blocked, % - - -
Mov Cap-1 Maneuver 132 506 975 - - -
Mov Cap-2 Maneuver 132 -----
Stage 1 546 -----
Stage 2 390 -----
Approach EB NB SB
HCM Control Delay, s 31.9 0.1 0
HCM LOS D
Minor Lane/Major Mvmt NBL NBT EBLn1 EBLn2 SBT SBR
Capacity (veh/h) 975 - 132 506 - -
HCM Lane V/C Ratio 0.011 - 0.247 0.03 - -
HCM Control Delay (s) 8.7 - 41 12.3 - -
HCM Lane LOS A - E B - -
HCM 95th %tile Q(veh) 0 - 0.9 0.1 - -
Packet Page 1318
HCM 6th TWSC FMC Willow & Grand Park
1: Willow Street & G Street PM 2035 Plus Project
Synchro 11 Report
Fehr & Peers Page 2
Intersection
Int Delay, s/veh 1.2
Movement EBL EBR NBL NBT SBT SBR
Lane Configurations
Traffic Vol, veh/h 28 12 14 649 900 29
Future Vol, veh/h 28 12 14 649 900 29
Conflicting Peds, #/hr 0 00000
Sign Control Stop Stop Free Free Free Free
RT Channelized - None - None - None
Storage Length 0 0 100 - - -
Veh in Median Storage, # 0 - - 0 0 -
Grade, % 0 - - 0 0 -
Peak Hour Factor 92 92 92 92 92 92
Heavy Vehicles, % 2 22222
Mvmt Flow 30 13 15 705 978 32
Major/Minor Minor2 Major1 Major2
Conflicting Flow All 1729 994 1010 0 - 0
Stage 1 994 -----
Stage 2 735 -----
Critical Hdwy 6.42 6.22 4.12 - - -
Critical Hdwy Stg 1 5.42 -----
Critical Hdwy Stg 2 5.42 -----
Follow-up Hdwy 3.518 3.318 2.218 - - -
Pot Cap-1 Maneuver 97 297 686 - - -
Stage 1 358 -----
Stage 2 474 -----
Platoon blocked, % - - -
Mov Cap-1 Maneuver 95 297 686 - - -
Mov Cap-2 Maneuver 95 -----
Stage 1 350 -----
Stage 2 474 -----
Approach EB NB SB
HCM Control Delay, s 47.2 0.2 0
HCM LOS E
Minor Lane/Major Mvmt NBL NBT EBLn1 EBLn2 SBT SBR
Capacity (veh/h) 686 - 95 297 - -
HCM Lane V/C Ratio 0.022 - 0.32 0.044 - -
HCM Control Delay (s) 10.4 - 59.8 17.7 - -
HCM Lane LOS B - F C - -
HCM 95th %tile Q(veh) 0.1 - 1.2 0.1 - -
Packet Page 1319
Project FMC Willow & Grand Park
Major Street Willow Street Scenario Existing Plus Project Minor Street G Street Peak Hour AM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 10 0 30 0 X North/South
Through 729 465 0 0 East/West
Right 0 18 14 0
Total 739 483 44 0
Major Street Minor Street Warrant Met Willow Street G Street * Note: Traffic Volume for Major Street is Total Volume of Both Approches.
Traffic Volume for Minor Street is the Volume of High Volume Approach.
Number of Approach Lanes 1 1
NO
Traffic Volume (VPH) * 1,222 44
0 100
200
300
400
500
600
400 500 600 700 800 900 1000 1100 1200 1300 1400 1500 1600 1700 1800 Minor Street Higher Volume Approach - VPH
Major Street - Total of Both Approaches - Vehicle Per Hour (VPH) Warrant 3B, Peak Hour
* Note: 150 vph applies as the lower threshold volume for a minor-street approach with two or more lanes and 100 vph applies as the lower threshold volume for a minor-street approach with one lane.
Source: California Manual on Uniform Traffic Control Devices, Caltrans, 2014 150*
100*
2 or More Lanes & 2 or More Lanes
1 Lane & 1 Lane
2 or More Lanes & 1 Lane
Packet Page 1320
Project FMC Willow & Grand Park
Major Street Willow Street Scenario Existing Plus Project Minor Street G Street Peak Hour AM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 10 0 30 0 X North/South
Through 729 465 0 0 East/West
Right 0 18 14 0
Total 739 483 44 0
Intersection Geometry
1 3
54 Approach with Worst Case Delay EB
44 Warrant 3A, Peak Hour
Number of Approach Lanes for Minor Street
Total Approaches
Worst Case Delay for Minor Street
Stopped Delay (seconds per vehicle)
Total Vehicles on Approach
Peak Hour Delay on
Minor Approach
(vehicle-hours)
Peak Hour Volume
on Minor Approach
(vph)
Peak Hour Entering
Volume Serviced
(vph)
Existing Plus Project 0.7 44 1,266
Warrant Met NO
Limiting Value 4 100 650
Condition Satisfied? Not Met Not Met Met
Packet Page 1321
Project FMC Willow & Grand Park
Major Street Willow Street Scenario Existing Plus Project Minor Street G Street Peak Hour PM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 14 0 28 0 X North/South
Through 674 946 0 0 East/West
Right 0 29 12 0
Total 688 975 40 0
Major Street Minor Street Warrant Met Willow Street G Street * Note: Traffic Volume for Major Street is Total Volume of Both Approches.
Traffic Volume for Minor Street is the Volume of High Volume Approach.
Number of Approach Lanes 1 1
NO
Traffic Volume (VPH) * 1,663 40
0 100
200
300
400
500
600
400 500 600 700 800 900 1000 1100 1200 1300 1400 1500 1600 1700 1800 Minor Street Higher Volume Approach - VPH
Major Street - Total of Both Approaches - Vehicle Per Hour (VPH) Warrant 3B, Peak Hour
* Note: 150 vph applies as the lower threshold volume for a minor-street approach with two or more lanes and 100 vph applies as the lower threshold volume for a minor-street approach with one lane.
Source: California Manual on Uniform Traffic Control Devices, Caltrans, 2014 150*
100*
2 or More Lanes & 2 or More Lanes
1 Lane & 1 Lane
2 or More Lanes & 1 Lane
Packet Page 1322
Project FMC Willow & Grand Park
Major Street Willow Street Scenario Existing Plus Project Minor Street G Street Peak Hour PM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 14 0 28 0 X North/South
Through 674 946 0 0 East/West
Right 0 29 12 0
Total 688 975 40 0
Intersection Geometry
1 3
0 Approach with Worst Case Delay 0
#N/A
Warrant 3A, Peak Hour
Number of Approach Lanes for Minor Street
Total Approaches
Worst Case Delay for Minor Street
Stopped Delay (seconds per vehicle)
Total Vehicles on Approach
Peak Hour Delay on
Minor Approach
(vehicle-hours)
Peak Hour Volume
on Minor Approach
(vph)
Peak Hour Entering
Volume Serviced
(vph)
Existing Plus Project #N/A 40 1,703
Warrant Met NO
Limiting Value 4 100 650
Condition Satisfied? #N/A Not Met Met
Packet Page 1323
Project FMC Willow & Grand Park
Major Street Willow Street Scenario 2035 Plus Project
Minor Street G Street Peak Hour AM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 10 0 30 0 X North/South
Through 823 536 0 0 East/West
Right 0 18 14 0
Total 833 554 44 0
Major Street Minor Street Warrant Met Willow Street G Street * Note: Traffic Volume for Major Street is Total Volume of Both Approches.
Traffic Volume for Minor Street is the Volume of High Volume Approach.
Number of Approach Lanes 1 1
NO
Traffic Volume (VPH) * 1,387 44
0 100
200
300
400
500
600
400 500 600 700 800 900 1000 1100 1200 1300 1400 1500 1600 1700 1800 Minor Street Higher Volume Approach - VPH
Major Street - Total of Both Approaches - Vehicle Per Hour (VPH) Warrant 3B, Peak Hour
* Note: 150 vph applies as the lower threshold volume for a minor-street approach with two or more lanes and 100 vph applies as the lower threshold volume for a minor-street approach with one lane.
Source: California Manual on Uniform Traffic Control Devices, Caltrans, 2014 150*
100*
2 or More Lanes & 2 or More Lanes
1 Lane & 1 Lane
2 or More Lanes & 1 Lane
Packet Page 1324
Project FMC Willow & Grand Park
Major Street Willow Street Scenario 2035 Plus Project
Minor Street G Street Peak Hour AM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 10 0 30 0 X North/South
Through 823 536 0 0 East/West
Right 0 18 14 0
Total 833 554 44 0
Intersection Geometry
1 3
47 Approach with Worst Case Delay EB
44 Warrant 3A, Peak Hour
Number of Approach Lanes for Minor Street
Total Approaches
Worst Case Delay for Minor Street
Stopped Delay (seconds per vehicle)
Total Vehicles on Approach
Peak Hour Delay on
Minor Approach
(vehicle-hours)
Peak Hour Volume
on Minor Approach
(vph)
Peak Hour Entering
Volume Serviced
(vph)
2035 Plus Project 0.6 44 1,431
Warrant Met NO
Limiting Value 4 100 650
Condition Satisfied? Not Met Not Met Met
Packet Page 1325
Project FMC Willow & Grand Park
Major Street Willow Street Scenario 2035 Plus Project
Minor Street G Street Peak Hour PM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 14 0 28 0 X North/South
Through 649 900 0 0 East/West
Right 0 29 12 0
Total 663 929 40 0
Major Street Minor Street Warrant Met Willow Street G Street * Note: Traffic Volume for Major Street is Total Volume of Both Approches.
Traffic Volume for Minor Street is the Volume of High Volume Approach.
Number of Approach Lanes 1 1
NO
Traffic Volume (VPH) * 1,592 40
0 100
200
300
400
500
600
400 500 600 700 800 900 1000 1100 1200 1300 1400 1500 1600 1700 1800 Minor Street Higher Volume Approach - VPH
Major Street - Total of Both Approaches - Vehicle Per Hour (VPH) Warrant 3B, Peak Hour
* Note: 150 vph applies as the lower threshold volume for a minor-street approach with two or more lanes and 100 vph applies as the lower threshold volume for a minor-street approach with one lane.
Source: California Manual on Uniform Traffic Control Devices, Caltrans, 2014 150*
100*
2 or More Lanes & 2 or More Lanes
1 Lane & 1 Lane
2 or More Lanes & 1 Lane
Packet Page 1326
Project FMC Willow & Grand Park
Major Street Willow Street Scenario 2035 Plus Project
Minor Street G Street Peak Hour PM
Turn Movement Volumes Major Street Direction
NB SB EB WB
Left 14 0 28 0 X North/South
Through 649 900 0 0 East/West
Right 0 29 12 0
Total 663 929 40 0
Intersection Geometry
1 3
25 Approach with Worst Case Delay EB
40 Warrant 3A, Peak Hour
Number of Approach Lanes for Minor Street
Total Approaches
Worst Case Delay for Minor Street
Stopped Delay (seconds per vehicle)
Total Vehicles on Approach
Peak Hour Delay on
Minor Approach
(vehicle-hours)
Peak Hour Volume
on Minor Approach
(vph)
Peak Hour Entering
Volume Serviced
(vph)
2035 Plus Project 0.3 40 1,632
Warrant Met NO
Limiting Value 4 100 650
Condition Satisfied? Not Met Not Met Met
Packet Page 1327
(ord1)
ORDINANCE NO. ___
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWARK AMENDING THE OFFICIAL ZONING MAP
ESTABLISHED PURSUANT TO TITLE 17 (ZONING) AND
SECTION 17.03.020 OF THE NEWARK ZONING
ORDINANCE BY REZONING ALL THAT REAL PROPERTY
SHOWN ON THE VESTING TENTATIVE MAP 8559 FROM
BUSINESS AND TECHNOLOGY PARK (BTP) AND PARK
(PK) TO MEDIUM DENSITY RESIDENTIAL WITH FORM
BASED CODE (RM-FBC), COMMERCIAL MIXED USE WITH
FORM BASED CODE (CMU-FBC), TRANSIT STATION (TS),
PUBLIC FACILITIES (PF), AND PARK (PK)
WHEREAS, Willow Project Owner, LLC (“Applicant”) submitted applications for a General Plan Amendment, Zoning Map Amendment, Specific Plan Amendment, Design Review, Minor Use Permit, Density Bonus, Park Agreement Amendment, Alternative Means of Compliance to Payment of Housing Impact Fee, Vesting Tentative Map, and an Addendum to the Dumbarton Transit Oriented Development Specific Plan Environmental Impact Report with the City of Newark to allow phased residential and commercial development at 8787 Enterprise Drive (APNs 537-0852-001-08, 537-0852-002-09, & 092-0100-005) (the “Project”); and WHEREAS, in accordance with the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.; “CEQA”) and sections 15162 and 15164 of the CEQA Guidelines, an initial study and addendum (collectively, “Addendum”) was prepared for the Project which determined that the Project does not result in any new significant impacts or change the conclusions contained in the Environmental Impact Report for the Dumbarton Transit-Oriented Development Specific Plan (SCH 2010042012); and WHEREAS, a component of the Project is an amendment to Title 17 (Zoning) of the Newark Zoning Ordinance and the Official Zoning Map, to rezone property described as follows:
From Business and Technology Park (BTP) and Park (PK) to Medium Density with Form Based Code (RM-FBC), Commercial Mixed Use with Form Based Code (CMU-FBC), Transit Station (TS), Public Facilities (PF), and Park (PK); and WHEREAS, Exhibit A to this Ordinance depicts the affected portions of real property proposed for re-zoning as shown on Vesting Tentative Tract Map 8559 in the City of Newark, County of Alameda; and
WHEREAS, as described fully in section IV of the Findings of Determinations for the Project attached hereto as Exhibit B and incorporated herein, the City Council finds that the Ordinance meets the following criteria required by Newark Municipal Code section 17.39.080:
a. The amendments are consistent with the General Plan; Packet Page 1328
Ordinance No. 2
b. Any change in district boundaries is necessary to achieve the balance of land uses desired by the City, consistent with the General Plan, and to increase the inventory of land within a given zoning district; and
c. The amendments will promote the growth of the City in an orderly manner and promote and protect the public health, safety, peace, comfort and general welfare; and WHEREAS, pursuant to Newark Zoning Ordinance Section 17.39.050.C, a public hearing notice was published in the Tri-City Voice on July 12, 2022, and mailed as required, and the Planning Commission held a public hearing to consider the Ordinance at 7:00 p.m. on July 12, 2022 at the City Administration Building, 37101 Newark Boulevard, Newark, California, and the Planning Commission voted 4-0 (1 absence) to recommend that the City Council adopt the Ordinance; and
WHEREAS, pursuant to Newark Zoning Ordinance Section 17.39.050.C, a public hearing notice was published in the Tri-City Voice on August 23, 2022, and mailed as required, and the City Council held a public hearing to consider the Ordinance on September 8, 2022 and September 22, 2022 at 7:00 p.m. at the City Administration Building, 37101 Newark Boulevard, Newark, California.
The City Council of the City of Newark does ordain as follows:
Section 1: The above recitals are true and correct and are incorporated herein.
Section 2: Based on the substantial evidence set forth in the record, the City Council of the City of Newark finds that the Addendum adequately evaluates potential environmental impacts of the Project, including the rezonings in this Ordinance, consistent with the requirements of CEQA and the CEQA Guidelines. The applicable mitigation measures identified in the Specific Plan EIR would ensure that any potential environmental impacts of the Project would be reduced to less than significant levels. The impacts identified in the Specific Plan EIR as significant and unavoidable remain significant and unavoidable but the Project does not increase those previously identified impacts in their severity. No new mitigation measures are required to mitigate environmental impacts associated with the Project. Therefore, the Addendum supports the City's consideration of the Project, as outlined in the State CEQA Guidelines Section 15162 and 15164.
Section 3: Pursuant to Section 17.39.080 of the City of Newark Zoning Ordinance, the City Council of the City of Newark does hereby make the Findings and Determinations attached hereto as Exhibit B and incorporated herein, including specifically the findings contained in section IV, which support the zoning map amendments in this Ordinance. The City Council further finds that the that this Ordinance is necessary and desirable to achieve the purposes of Title 17 (Zoning) of the Newark Zoning Ordinance; is consistent with the policies, goals, and objectives of the General Plan; and promotes the public health, safety, morals, comfort, convenience, and general welfare of the residents of the City of Newark.
Section 4: The City’s Official Zoning Map established pursuant to Title 17 (Zoning) and Section 17.03.020 of the Newark Zoning Ordinance is hereby amended by rezoning and Packet Page 1329
Ordinance No. 3
redistricting the territory in the City of Newark, County of Alameda, State of California as shown on Exhibit A attached to this Ordinance, which is incorporated herein.
Section 5. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Ordinance, or any part thereof, is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed the remainder of this Ordinance, if such invalid portion thereof had been deleted.
Section 6: Effective Date. This ordinance shall take effect thirty (30) days from the date of its passage. Before expiration of fifteen (15) days after its passage, this ordinance shall be published in The Argus, a newspaper of general circulation published and printed in the County of Alameda and circulated in the City of Newark.
Exhibit A: Zoning Map Amendment for real property shown on Vesting Tentative Tract Map 8559
Exhibit B: Findings of Determinations for the FMC Willow Project Packet Page 1330
ENTERPRISE DRIVE (PUBLIC)
WILLOW STREET (PUBLIC) 'A' WAY 'A' WAY
'B' STREET'D' PLACECOURT 1
'B' STREET
COURT 9
'G' STREET 'H' STREET 'E' PLACE
BLDG 6 BLDG 14
BLDG 10
BLDG 5
BLDG 12
BLDG 13 BLDG 30 BLDG 29 BLDG 28 BLDG 27
BLDG 26
BLDG 25
BLDG 23
BLDG 21
BLDG 17
BLDG 16
BLDG 15
BLDG 42
BLDG 39
BLDG 43
BLDG 2
BLDG 1
BLDG 3
BLDG 4
BLDG 7 BLDG 8 BLDG 9
BLDG 11
'C' WAY 'F' WAY
BLDG 18
BLDG 19
BLDG 20
BLDG 24
BLDG 22 COURT 4 COURT 3
BLDG 31 BLDG 32 COURT 5 BLDG 33 BLDG 34BLDG 35 BLDG 36 BLDG 37 BLDG 38 COURT 6 COURT 7 COURT 8
BLDG 40
BLDG 41 COURT 10 'H' WAY
TRANSIT
STATION COURT 2 GRAND
PARK
ENTERPRISE DRIVE (PUBLIC)
WILLOW STREET (PUBLIC) COURT 10
BLDG 41
BLDG 40 COURT 6 COURT 7 COURT 8
BLDG 36BLDG 37 BLDG 33 BLDG 34BLDG 35 COURT 5
BLDG 31 BLDG 32 COURT 3 COURT 4
BLDG 22
BLDG 24
BLDG 20
BLDG 19
BLDG 18
'F' WAY
'C' WAY
BLDG 11
BLDG 9
BLDG 7 BLDG 8
BLDG 4
BLDG 3
BLDG 1
BLDG 2
BLDG 43
BLDG 39
BLDG 42
BLDG 15
BLDG 16
BLDG 17
BLDG 21
BLDG 23
BLDG 25
BLDG 30 BLDG 29 BLDG 28 BLDG 27 BLDG 13
BLDG 12
BLDG 5
BLDG 10
BLDG 14 BLDG 6 'E' PLACE 'H' STREET
'G' STREET
COURT 9
'B' STREET COURT 1 'D' PLACE
'B' STREET 'A' WAY
'A' WAY
BLDG 38
BLDG 26 COURT 2 GRAND
PARK
FUTURE TRANSIT
STATION
F:\2674-000\2674-010\ACAD\EXHIBITS\XB-076_ZONING AMENDMENT OVERLAY.DWG TRACT 8559
ZONING CHANGES
FMC WILLOW
CITY OF NEWARK ALAMEDA COUNTY CALIFORNIA
SCALE: 1"=100' DATE:JULY 5, 2022
0 100 200 300
CURRENT APPROVED ZONING
PROPOSED ZONING
LEGEND
RESIDENTIAL MEDIUM DENSITY WITH
FORM BASED CODE (RM)
COMMERCIAL MIXED USE WITH
FORM BASED CODE (CMU-FBC)
PARKS (PF)
PUBLIC FACILITIES (PF)
ZONING AMENDMENT SUMMARY
ZONING DISTRICT CURRENT ZONING PROPOSED ZONING PROPOSED ZONING CHANGE
CIVIL ENGINEERS SURVEYORS PLANNERS
SAN RAMON
WWW.CBANDG.COM
SACRAMENTO
(925) 866-0322
(916) 375-1877
BUSINESS AND TECHNOLOGY PARK (BTP)
TRANSIT STATION (TS)
Packet Page 1331
EXHIBIT B: Findings of Fact
-1-
I. California Environmental Quality Act Determination (Cal. Public Resources Code Section 21000, et. seq.)
The Dumbarton TOD Specific Plan was adopted after certification of a full environmental impact report.
The City of Newark (City) certified a Program Environmental Impact Report (PEIR) for the Bayside Newark Transit Oriented Development (TOD) Specific Plan (Specific Plan), formerly known as the Dumbarton TOD Specific Plan (State Clearinghouse No. 2010042012, July 2011).
The City required preparation of an Initial Study (IS) to determine whether those changes to the FMC Willow and Grand Park project would result in any new or more substantial impacts from those identified in the prior adopted 2011 PEIR. Generally, the project’s increased residential density replaces existing commercial and office. The IS concludes, based upon substantial evidence, that the proposed FMC Willow and Grand Park project is similar to the project evaluated in the adopted 2011 PEIR and would not cause any new or more severe impacts not previously addressed. Similar to the approved project, the proposed project involves the construction of a commercial/mixed-use and residential development, with a future transit station and recreational open space. As supported in the analysis contained in the accompanying IS, there are no substantial changes proposed in the FMC Willow and Grand Park project which would result in any new significant environmental effects or a substantial increase in the severity of significant effects previously identified in the 2011 PEIR. There is no new information of substantial importance which was not known for the 2011 PEIR, and no new mitigation measures are necessitated by new impacts. Therefore, under CEQA Guidelines 15162 and 15164, no further environmental analysis is required as none of the circumstances in Section 15162 exist and the City finds that an addendum to the 2011 PEIR is appropriate for the project.
The IS and addendum (together the “IS/Addendum”) is incorporated into these findings by reference.
II. General Plan Amendment
Pursuant to Newark Municipal Code Chapter 17.38, the City finds as follows:
A. Reasons for the recommendation - The General Plan Amendment is required to allow the proposed change in uses permitted on the 22.1 acre Project Site, and ensure consistency with the concurrently approved Bayside Newark TOD Specific Plan (“Specific Plan”) Amendment and Rezoning, by amending the General Plan land use map to designate the Project Site with Medium Density Residential, Commercial Mixed Use, Public Institutional, and Parks and Recreation Facilities land use designations, a change from the existing Community Commercial, High Density Residential, Parks and Recreational Facilities, and Public Institutional designations.
B. Findings related to supporting the recommendation1. The request for the General Plan Amendment is consistent with the requirements and procedures set forth in the General Plan and Specific Plan;
2. The proposed Project (specifically including the General Plan Amendment, Specific Plan Amendment, Rezoning, Design Review, Minor Use Permit, Vesting Tentative Tract Map No.
Packet Page 1332
EXHIBIT B: Findings of Fact
-2-
8559, and Affordable Housing-Alternative Means of Compliance to Payment of Housing Impact Fee) is consistent with the General Plan, including the following General Plan policies:
Policy LU-1.1 Balance of Uses. Maintain a reasonable balance of land uses in the city so that residents can live close to where they work and satisfy their shopping, educational, personal, health, entertainment, and recreational needs close to home. The Project would result in the development of market rate and affordable housing adjacent to retail and recreational uses, as well as a future transit station.
Policy LU-1.2 Growth Focus Areas. Achieve a future growth pattern which includes new neighborhoods on vacant land along the southern and western edges of the city, and infill development in transit-served areas such as Old Town and the Greater NewPark Mall Area.
Zoning and development review decisions should recognize these areas as the priority locations for growth and change over the next 20 years. The Project would redevelop vacant, blighted former industrial sites on the western edge of the City with 279 market rate residential units, 90 affordable housing units, retail uses and parks/recreational uses.
Policy LU-1.4 Coordinating Land Use and Transportation Decisions. Coordinate land use and development decisions with the capacity of the transportation system and plans for future transportation improvements. The Project would develop residential and retail uses adjacent to, and reserve property for, a future transit station. As part of the Project, the applicant is dedicating the property for the future transit station.
Policy LU-1.6 Strengthening the Retail Base. Diversify the retail base of the city to create jobs, generate tax revenue to support City services, and enable residents and workers to find the goods and services they need without leaving Newark. The Project would develop retail uses on an underutilized, former industrial vacant site, increasing tax revenue.
Policy LU-1.8 Housing Opportunity Sites. Ensure that adequate sites are provided for the private and non-profit sectors to develop housing for seniors, persons with disabilities, and lower income households. Such housing should be well designed and managed, and located in a manner that is compatible with existing uses and neighborhood character. The Project would develop 90 high quality affordable housing units, which will be professionally managed along with the 279 market rate townhome units proposed by the Project, as a 370-unit mixed use community.
Policy LU-1.9 Park and Recreation Expansion. Expand park and recreational lands and facilities to keep pace with population growth and support the leisure time needs of Newark residents. The Project would include a five-acre community park (Grand Park), as well as a 1,485 square foot community building.
Policy LU-1.10 Vacant and Underutilized Sites. Encourage the development of Newark's remaining vacant and underutilized sites for their highest and best use, consistent with the designations shown on the General Plan Diagram. Future growth in the city should generally be directed to the areas identified in this General Plan. The Project would redevelop vacant, blighted former industrial sites on the western edge of the City with 279 market rate residential units, 90 affordable housing units, retail uses and parks/recreational uses.
Packet Page 1333
EXHIBIT B: Findings of Fact
-3-
Policy LU-1.15 Mixed-Use. Provide opportunities for development combining residential and commercial uses (e.g. "mixed-use" development) in areas where the impacts of one land use on the other and the impacts on nearby neighborhoods can be sufficiently mitigated. The Project would redevelop vacant, blighted former industrial sites with a mixed used residential community that incorporates commercial/retail uses as part of the Project.
Policy LU-2.3 High-Quality Development. Maintain standards for medium-density, highdensity, and mixed-use development that ensure high quality development and adequate buffering and screening from nearby lower density uses. The Project would comply with the Specific Plan’s design guidelines and all the other standards imposed by the Design Review to ensure high quality development and adequate buffering, as applicable. The project will be buffered to the west by a 5-acre grand park. The bay trail corridor along Enterprise Drive will include a 7-foot landscape strip with tree planting and a 12-foot concrete pedestrian trail. Along the north side of the project is the Sam Trans right of way where a soundwall will be constructed along the property line. The east side of the project adjacent to Willow Street will include the future transit station site and the mixed-use parcel.
Policy LU-2.7 Design Guidelines. Maintain design guidelines and a design review process that applies to building and site design throughout the city. The Project would comply with the Bayside Newark Specific Plan’s design guidelines and all the other standards imposed by the City’s Design Review approval. Architecture will feature high quality materials such as stone/brick veneer, lap siding metal railings, awnings, and metal-look roofing, and fiber cement finishes.
Landscaping will feature a blend of low maintenance, drought tolerant, and California native trees, shrubs, grasses and perennials
Policy LU-2.8 Relating Density to Transit Service. Allow higher residential densities in areas with more frequent and reliable public transit service, and ensure that public transit services are expanded in areas where growth is projected. The Project would develop higher density residential in the area surrounding the future transit station specifically, 79.1 du/ac at the commercial mixed/use site and 21.4 du/ac for the residential area and would dedicate a 1.8 net acre site to the City to be used for expanded transit services.
Policy LU-4.3 Urban Centers. Create locations in Newark which are more urban and pedestrian-oriented in character than they are today. Such areas include the future Dumbarton Transit Oriented Development and Old Town. These areas should be transformed over time into mixed-use centers with retail, office, civic, and higher density housing uses. The Project would redevelop vacant, blighted former industrial sites with a mixed used residential community that incorporates commercial/retail uses as part of the Project, high density residential condominiums, affordable for rent units, a bay trail compliant corridor along Enterprise Drive and Willow Street, as well as a five-acre park for use by the Project’s residents and a future transit station. The project would incorporate sidewalk connections throughout both the project’s northern and southern sites allowing for pedestrians to move freely throughout the area.
Policy LU-6.1 Dumbarton TOD Land Uses. Plan for the following activities around the intersection of Willow Street and the proposed Dumbarton Rail Service: (1) a future transit station serving the region as well as neighboring residents; (2) a neighborhood center consisting of retail, grocery, visitor-serving, and higher-density residential uses; (3) up to 2,500 housing units with a Packet Page 1334
EXHIBIT B: Findings of Fact
-4-
wide range of unit types and affordability levels; (4) necessary infrastructure to support the development; (5) contribution toward an overpass on Central Avenue over the Union Pacific railroad tracks, and (6) a network of open space and parks, including a bayside trail. The Project implements this Policy by dedicating a net 1.8 acre property for a future transit station and developing 3,600 sf of retail and 370 higher-density residential units, including 90 affordable housing units (and one manager’s unit), a five-acre park and the necessary infrastructure to support the Project.
Policy LU-6.2 Dumbarton TOD Design Guidelines. Apply design guidelines to future development at Dumbarton TOD which support the area’s development as a “village” comprised of traditional city blocks, vernacular architectural styles, and a mix of housing types. The Project would comply with the Specific Plan’s design guidelines, and provide higher density residential housing products, including 90 affordable units, to allow for a variety of housing types. The contemporary architectural styles of the 3 residential products (Split, Towns, Stack) would use colors and materials (light color palette, stucco finishes, and lap siding) similar to surrounding residential developments, while incorporating contemporary low-slope roofs to give the development a subtle unique character to differentiate and add visual interest. With the adjacent location of the future transit hub, linking its future residents to nearby corporate campuses, the product styles would help blend the bold contemporary styles of the campuses with the traditional styles of neighboring residential communities. With the nearby 4-story apartment complex to the south of the project site, the 5-story mixed use podium building being of similar height and mass, would reflect a similar and complimentary style with the use of scored stucco, similar window awnings, and parapet walls with roofed tower elements, as well as a light color palette Policy LU-6.3 Dumbarton Rail. Advocate for construction of the Dumbarton Rail project connecting Newark to BART and the West Bay, with a station at Willow Street in Newark. As an interim measure until rail service is provided, advocate for high quality, rapid bus service connecting the Dumbarton TOD station area to BART, VTA, and the West Bay, to ensure that new development in this area can meet the TOD goals for the project. As part of the Project, the applicant would dedicate property for the future development of this station. Staff will continue to work with SamTrans to eventually build a transit station at the project site to help the public transportation connection between this site and other services.
Policy LU-6.4 Minimizing Dumbarton TOD Impacts. Minimize the impacts of the Dumbarton TOD on the natural environment by incorporating native plant species, reducing herbicide and pesticide use, using environmentally friendly construction and waste disposal techniques, and managing stormwater runoff to avoid water quality impacts to nearby wetlands and San Francisco Bay. The EIR imposes mitigation measures on the Project that will ensure it is consistent with this Policy. Dumbarton TOD impacts will be mitigated through the use of plant species that specifically aid in phytoremediation which will naturally remove runoff pollutants and salts before runoff reaches sewer systems, wetlands, and adjacent water bodies. Bioretention basins are located in the majority of planter beds throughout the site which will add an additional layer of pollutant filtration. Trees with expansive canopies will be planted throughout the development and will intercept rainwater before touching the ground, thus adding another layer of water treatment.
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EXHIBIT B: Findings of Fact
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Policy LU-6.5 Dumbarton TOD Landscaping and Streetscape. Use landscaping and tree planting to enhance the character of the Dumbarton TOD neighborhoods, define the community’s edges, provide landmarks and focal points, make streets more pleasant for walking, and create a stronger sense of place. The landscape should reflect climate and soil conditions, as well as the desire to conserve water and create visual appeal The Project would include landscaping consistent with this Policy, in compliance with the Specific Plan design guidelines and as part of the Project’s Design Review approval. The landscape would enhance the character of Dumbarton TOD neighborhoods through the use of site specific materiality, planting design, and park design.
Enhanced brick and stucco veneers would be utilized for seat walls and retaining walls to visually tie in the landscape built elements with the brick and stucco materials that will be used on the TOD neighborhood architecture. Custom enhanced steel architecture stoop railings and patio fences would match the decorative, linear architectural balcony railings for a heightened sense of identity.
These same enhanced steel details will carry through to the landscape park overheads. The planting design would feature wispy, flowing native grasses to capture the native wetland feel of the adjacent bay. Flowering shrubs at pedestrian paseo entry points would add a natural highlight to neighborhood entrances and enhance wayfinding.
Policy LU-6.6 Dumbarton TOD Lighting. Use lighting and illumination which compliments architectural styles, reduces glare and over-lighting impacts, ensures pedestrian safety, and highlights special design elements within the community. The Project would include landscaping consistent with this Policy, in compliance with the Specific Plan design guidelines and as part of the Project’s Design Review approval. Modern yet timeless street pole lights, pedestrian scale pole lights, and bollard lights would be specified to match the sconce lighting that will be featured on the community architecture. All pole and bollard lights would feature light fixture covers that would prevent vertical light pollution and also direct light throw towards pedestrian circulation areas and away from private residential units. All pedestrian circulation lighting would be strategically distributed to maintain uniform light coverage based on photometric plans that would be prepared by a certified lighting designer. This uniform lighting design would enhance safety and promote clear pedestrian circulation.
Policy E D-2.4 New Retail Districts. Create additional shopping opportunities in newly developing neighborhoods, such as Dumbarton TOD, to meet the needs of new residents and workers, and reduce the loss of retail dollars to nearby communities. New commercial districts should be designed as integral parts of the neighborhoods they serve, so that patrons can easily walk or bicycle from home or work to shopping. The Project is a mixed use residential project that would incorporate retail uses. The mixed use building would contain 3,600 square feet of ground floor retail space fronting along Willow Ave. The high floorplate façade for the retail space would serve as a grand entry to the project. Residential affordable units would be located above the retail space to provide proper massing and an urban feel. The current plan shows one 1,000 square foot retail space that could be used for a small coffee shop or café plus a 2,600 sf space for another neighborhood serving use such as a restaurant or deli. The retail frontage would also include an enclosed, secured elevator lobby for the affordable housing units.
The Project is consistent with the General Plan’s Housing Element because it would increase overall housing stock in the City by 370 total units, including 90 affordable units, and would assist in addressing both the regional and statewide housing crisis.
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EXHIBIT B: Findings of Fact
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III. Specific Plan Amendment
A. The proposed amendments to the Bayside Newark TOD Specific Plan are consistent with the Newark General Plan. The amendments to the Specific Plan would include re-designation of the Project Site’s land use designations/zoning so that the current office uses are replaced with 48 residential units (collectively “Specific Plan Amendment”). These changes are provided to enable implementation of the vision for buildout of the Specific Plan area and made in light of the fact that third part experts have determined that the development of office uses are not feasible on the Project Site. The Project would also be consistent with the overall development capacity and intensity for the Specific Plan area as identified in the General Plan and assumed in the 2013 General Plan Environmental Impact Report (“EIR”) and 2011 PEIR. The Specific Plan Amendment would not result in increased development capacity or a change in the intensity of development or site improvements already planned or anticipated in the General Plan and Specific Plan. Nor would the amendments directly result in development types that were not already assumed and evaluated in the General Plan EIR and Specific Plan EIR. Specifically, the Specific Plan planned for the development of a total of 2,500 dwelling and 35,000 square feet of retail, and as of February 2022, a total of 2,171 dwelling units and 3,600 square feet of retail have been approved or are pending approval in the Specific Plan area, leaving plenty of capacity for the Project without resulting in any new or increased impacts on the environment, as concluded in the IS/Addendum to the PEIR prepared for the Project.
IV. Zoning Map Amendment
Pursuant to Newark Municipal Code section 17.39.080, the City finds as follows:
A. The amendment is consistent with the General Plan. The City’s zoning map would be amended to change the zoning of the Project Site from Business and Technology Park and Park to Medium Density Residential - Form Based Code, Commercial/Mixed Use - Form Based Code, Transit Station, Public Facilities, and Park. These zones are consistent with the General Plan land use designations for the Project Site, as amended – Medium Density Residential, Commercial Mixed Use, Public Institutional, and Parks and Recreation Facilities. The new zoning designations specifically, and the Project generally, would be consistent with the applicable polices of the General Plan, including but not necessarily limited to the Policies specifically listed in section II above. Therefore, the Zoning Map Amendment would be consistent with the General Plan.
B. Any change in district boundaries is necessary to achieve the balance of land uses desired by the city, consistent with the general plan, and to increase the inventory of land within a given zoning district. The Zoning Map Amendment would reflect the changes to land use designations eliminate infeasible office uses and replace them with housing, which is necessary to achieve the balance of land uses desired by the City, and consistent with the General Plan as set forth above. The zoning change would allow underutilized, vacant and blighted former industrial land to be developed consistent with the vision of the General Plan and Specific Plan, and would result in the dedication of property for the City’s desired transit station.
C. The amendment will promote the growth of the city in an orderly manner and to promote and protect the public health, safety, peace, comfort, and general welfare. The Zoning Map Packet Page 1337
EXHIBIT B: Findings of Fact
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Amendment and Specific Plan, as amended, would guide the orderly development of the Project in a manner to promote and protect the public health, safety, peace, comfort and general welfare, as required through conformance of applicable policies and regulations of the Specific Plan in addition to the City’s zoning requirements. The Zoning Map Amendment would ensure consistency with the Specific Plan and General Plan and would result in orderly and planned-for growth that promotes the General Plan policies described in section II above.
V. Design Review
Pursuant to Newark Municipal Code section 17.34.060, the City finds as follows:
A. The overall design of the project including its scale, massing, site plan, exterior design, and landscaping will enhance the appearance and features of the project site and surrounding natural and built environment. The Project would redevelop and revitalize a largely vacant and blighted former industrial site with modern, aesthetically pleasing market rate and affordable residential units, commercial retail uses, a five-acre park, and other landscaping improvements, including trees and greenspaces and other aesthetic improvements such as open spaces on the property dedicated to the City for a future transit station. The massing of the residential units and other development would be appropriate for the area and would enhance the appearance and features of the project site and surrounding natural and built environment.
B. The project design is appropriate to the function of the project and will provide an attractive and comfortable environment for occupants, visitors, and the general community. The Project would redevelop and revitalize a largely vacant and blighted former industrial site with modern, aesthetically pleasing market rate and affordable residential units, commercial retail uses, a five-acre park, and other landscaping improvements, including trees and greenspaces and other aesthetic improvements such as open spaces on the property dedicated to the City for a future transit station. The Project design and connectivity would encourage pedestrians, including Project residents and visitors, to walk to the retail uses, park, and future transit station.
C. Project details, materials, signage and landscaping, are internally consistent, fully integrated with one another, and used in a manner that is visually consistent with the proposed architectural design. The high-quality exterior building materials, such as brick and stone, are integral to the architectural design per applicable Specific Plan Design Guidelines. The street level storefronts would help create a pleasant pedestrian experience, as well the features of the park and future transit station. Landscape seat walls and retaining walls would feature enhanced brick and stucco veneers with wall caps that would match the community architectural brick and veneer materials. These same brick and stucco materials would carry through to the two entry monument signs to further promote a sense of unique community identity. Custom metal details with linear elements would be featured on the park overheads, patio fences, and architectural unit stoop railings to tie in the custom linear metal balcony railings on the architecture. The project details would be internally consistent, fully integrated with one another, and used in a manner that is visually consistent with the proposed design.
D. The design of streetscapes, including street trees, lighting, and pedestrian furniture, is consistent with the intended character of the area. Consistent with the Specific Plan design guidelines, the Project would include these features, consistent with the intended character of the Packet Page 1338
EXHIBIT B: Findings of Fact
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area, including landscaped walkways and streets, as well as trees. Modern yet timeless pedestrian furniture and light fixtures would be specified to reflect the modern forms of the architecture and the warm, timeless brick and stucco architecture facades. Street trees would feature strong structural forms for year-round interest and vibrant reddish-orange fall color which will create a noteworthy identity for the community. The Bay Trail would run along the perimeter of the community and will be lined with wide parkways and lush native planting which will encourage pedestrian use and interaction surrounding the community.
E. Parking areas are designed and developed to buffer surrounding land uses; compliment pedestrian-oriented development; enhance the environmental quality of the site, including minimizing stormwater run-off and the heat-island effect; and achieve a safe, efficient, and harmonious development. The Project would redevelop and revitalize a largely vacant and blighted former industrial site with modern, aesthetically pleasing market rate and affordable residential units, commercial retail uses, a five-acre park, and other landscaping improvements, including trees and greenspaces and other aesthetic improvements such as open spaces on the property dedicated to the City for a future transit station. This would enhance the environmental quality of the site.
F. Lighting and lighting fixtures are designed to complement buildings, be of appropriate scale, provide adequate light over walkways and parking areas to create a sense of pedestrian safety, and avoid creating glare. The Project’s lighting would be designed in conformance with the Specific Plan’s lighting design guidelines, which ensure the lighting will implement all of these goals. See response to LU-6.6 describing the character, specification, and design of landscape lighting.
G. Landscaping is designed to be compatible with and enhance the architectural character and features of the buildings on site, and help relate the building to the surrounding landscape.
The landscaping design would incorporate “Bay Friendly” landscape practices including native, non-invasive and drought tolerant trees and shrubs to complement the buildings while providing shade and visual interest along the pedestrian path. The sidewalk landscaping would also designed as part of the stormwater management system in compliance with provision C.3 of the Municipal Regional Stormwater NPDES Permit issued by the California Regional Water Quality Control Board, which governs stormwater discharge for new development projects. Finally, the landscaping design would be consistent with and subject to the Specific Plan’s design guidelines.
VI. Minor Use Permit
Pursuant to Newark Municipal Code sections 17.35.060 and 17.23.050, the City finds as follows:
A. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Ordinance and all other titles of the Municipal Code. The only aspect of the Project that would require a Minor Use Permit is the request to have a reduced number of parking spaces due to the proximity of the Project’s residential uses to a transit station, pursuant to Newark Municipal Code section 17.23.050(A). The Project’s uses are permitted in the Project’s zoning, as amended, and the Project would qualify for reduced parking by meeting the requirements set forth in Newark Municipal Code section 17.23.050.
Packet Page 1339
EXHIBIT B: Findings of Fact
-9-
B. The proposed use is consistent with the General Plan and the Specific Plan. The uses of the Project would be consistent with the General Plan and the Specific Plan as amended, as set forth in detail in the findings above.
C. The proposed use will not be adverse to the public health, safety, or general welfare of the community, nor detrimental to surrounding properties or improvements. The Project, and specifically the reduced parking as a result of adjacent transit, would not be adverse the public health, safety, or general welfare of the community, nor detrimental to surrounding properties or improvements, and instead would reduce vehicle miles traveled and promote the use of transit instead of passenger vehicles, and pedestrian travel. The Project would further be consistent with the General Plan polices described in section II above, which are intended to promote the public health, safety, and welfare of the community.
D. Tax revenue generated by the development will exceed the City’s cost of the service demand as a result of the development or a compelling community benefit will be provided. The Project would redevelop vacant and blighted former industrial property with residential and retail uses, thereby significantly increasing the City’s property tax base by increasing the value of the property, as well as creating sales tax.
E. The proposed use complies with any design or development standards applicable to the zoning district or the use in question unless waived or modified pursuant to the provisions of this [Zoning] Ordinance. The uses of the Project would comply with all applicable design and development standards and are allowed under the Specific Plan and Zoning Ordinance.
F. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity. The Project would comply with all applicable design and development standards. Further, the Project would qualify for reduced parking by meeting the requirements set forth in Newark Municipal Code section 17.23.050 due to the close proximity to a future transit station.
G. The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints. The proposed Project would comply with all applicable design and development standards, and the General Plan, Specific Plan and zoning. The Project’s impacts have been analyzed in detail in the 2011 EIR and Addendum thereto prepared for the Project. Further, the Project would qualify for reduced parking by meeting the requirements set forth in Newark Municipal Code section 17.23.050 due to the close proximity to a future transit station.
VII. Vesting Tentative Map No. 8559
The City makes the following findings which indicate conformance with the State Subdivision Map Act and the City’s Subdivision Ordinance (Newark Municipal Code Chapter 16.08):
A. The proposed map would be consistent with the General Plan and Specific Plan as specified in Government Code §65451 as it would provide sufficiently dense residential and commercial uses in an area with pre-existing commercial uses on adjacent property and the immediate area. It would also be consistent with the City’s Subdivision Ordinance and the design or improvement of the proposed tentative tract map would be consistent with the General Packet Page 1340
EXHIBIT B: Findings of Fact
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Plan in that the property is developed by street and parcel improvements in conformance with applicable goals and policies. The proposed map would be consistent with the General Plan and Specific Plan, as amended, for all the reasons set forth in the findings relating to the concurrent General Plan and Specific Plan amendments, and would propose sufficiently dense residential and commercial mixed uses on blighted, vacant former industrial property, which the Project would significantly improve. The street and parcel improvements would comply with all City requirements, and for the reasons discussed in the findings regarding the concurrent Design Review approval, implement the goals and policies of the General Plan and Specific Plan, specifically including redeveloping the western portion of the City.
B. The design and improvements of the proposed subdivision would be consistent with applicable General Plan and Specific Plan, as amended, as the proposed subdivision would include multi-family residential and commercial development, sidewalks, pedestrian paseos, event spaces, and landscaped areas which would be adequately served by streets, and provide sufficient drainage for the development, as detailed in the findings in support of the concurrent Design Review approval, as well as the findings for the concurrent General Plan and Specific Plan amendments.
C. The site would be physically suitable for the type of development in that it is a highly disturbed, blighted for former industrial development, that would be significantly improved to support the proposed residential and commercial uses. There are no known problems regarding cultural, historical or scenic aspects. Given the topography of the site and the location of the proposed construction, it appears that grading would be minimal and in compliance with all City regulations. Therefore, the site would be physically suitable for the type of development.
D. The site would be physically suitable for the proposed density of development as the development would be within with the residential and retail capacities identified in the Specific Plan. The proposed development would be compatible with adjacent and neighboring existing developments in the surrounding area and would significantly improve an area of the City that the City’s planning documents have long targeted for development E. The design of the subdivision or the proposed improvements would not likely cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, as set forth in detail in the CEQA addendum to the EIR prepared for this Project.. The existing subject property is a developed and highly disturbed former industrial property in an urban area. The proposed subdivision and related development would have no significant impact on the environment’s flora or fauna and instead would improve a blighted area.
F. The design of the subdivision or type of improvements would not likely cause serious public health problems. Phased residential subdivisions and associated commercial development would not involve significant amounts of hazardous materials or projects, as set forth in detail in the CEQA addendum to the EIR prepared for this Project.
G. The design of the subdivision or the type of improvements would not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. The City has reviewed the records related to the subject property and found that the subdivision would not have a conflict with any easements.
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EXHIBIT B: Findings of Fact
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VIII. Affordable Housing – Alternative Means of Compliance to Payment of Housing Impact Fee
Pursuant to Newark Municipal Code section 17.18.050, the City finds as follows:
A. The proposed alternative means of compliance fulfills the purposes of this chapter as set forth in Section 17.18.010, Purpose. The alternative means of compliance would fulfill the purposes of section 17.18.010 in that the proposed Project would result in the production of affordable housing that would be available to households with incomes at the very low-, low-, and moderate-income levels. The affordable housing units would be administered through an affordable housing agreement between the City and the property owner that would establish affordability levels for a period of 55-years. The alternative means of compliance would contribute to a more economically balanced community and provides safe and stable housing for households at all income levels.
B. The proposed alternative means of compliance will further affordable housing opportunities in the city to an equal or greater extent than compliance with the requirements of Section 17.18.020, Housing Impact Fee, and will fully mitigate the impact of the project on the need for affordable housing. The alternative means of compliance would result in the production of affordable units that have a value equal to or greater than the required housing impact fee and as a result would fully mitigate the impact of the Project on the need for affordable housing.
C. The proposed alternative means of compliance would better address the city’s needs than compliance with the requirements of Section 17.18.020, Housing Impact Fee. The alternative means of compliance would result in the production of affordable housing with a market rate housing project, resulting in the availability of affordable housing more immediately than what otherwise may be possible though the payment of the Housing Impact Fee.
D. The proposed alternative means of compliance will not unduly concentrate affordable housing in one geographic area so as to result in housing segregation. The alternative means of compliance would result in the production of family affordable housing within the Specific Plan area, which does not currently have any restricted affordable housing units, other than 72 affordable units for seniors, out of the 2,500 total residential units allowed in the Specific Plan area, and 2,171 units approved or in process therein. Therefore, there would not be an undue concentration of affordable housing units within one geographical area.
Packet Page 1342
9.8.2022
FMC Willow &
Grand Park
City Council Meeting
1 Packet Page 1343
Project
Proposal
2 Project Proposal
• 279 multifamily units
• 3,600 square feet of retail
• 91 multifamily affordable units
• A 1,485 square foot community building
• 1.8 acres set aside for a future Transit Station
• 5-acre Grand Park (Revision)
Packet Page 1344
Project
Location
3 Project Location
• 22.1 acres located at 8787 Enterprise Drive
• Northwest Corner of Enterprise Drive and Willow
Street
• Area divided by the SFPUC Hetch-Hetchy pipeline
• Bordered by:
• East: Willow Street
• South: Enterprise Drive
• North: Union Pacific Railroad
• West: Residential
• Bayside Transit Oriented Development Specific
Plan
Willow Street
Enterprise Drive
Union Pacific Railroad
Packet Page 1345
Bayside
Transit
Oriented
Development
Specific Plan
4 Bayside Transit Oriented Development Specific Plan
• Adopted in 2010
• Neighborhood Center
• Transit Station focal point
• Anticipated 2,500 residential units, 35,000 square feet of retail/commercial, 195,000 square feet of general
office and a 5-acre park.
• Currently, 1,828 units built with 7 parcels undeveloped • With this project’s approval, there would be 2,198 units built along with 3,600 square feet of retail
Parks and Open Space
Commercial/Office
Commercial/Retail
High Density Residential
Transit Station
Packet Page 1346
History of
Project
5 History of Project
• Land Use Feasibility Analysis by Land Econ Group
examined the feasibility of the uses proposed in
the Specific Plan and supported the elimination of
office, reduction in retail, and reduction in
residential density.
• City Council and Planning Commission Study
Session in Feb 2021
• City worked with SamTrans and the outlook for a
potential transit station is 15-20 years.
• Transit Station Area Planning
• Virtual Townhall Meeting on January 20, 2022
• Planning Commission Meeting on July 12, 2022
Packet Page 1347
Design Review
A requirement for all projects that are subject to a
permit for new construction, reconstruction,
rehabilitation, alteration, or other improvements to the exterior of a structure, site, or a parking area.
• North Site: 91-unit affordable housing and 3,600
square foot commercial mixed-use building, 64
market rate multifamily units, and the 1.8-acre future
transit station parcel
• South Site: Grand Park, 1,485 square foot community
building, 123 multifamily units, and 92 townhomes.
• Entry points
6 Requested
EntitlementDesign Review
Packet Page 1348
Agrarian Contemporary
• Per the Specific Plan
• Clean & crisp look
• Light color palette
• Simple form
• Flat and low-slope roofs
• Horizontal lap siding, stucco, stone veneer, brick, etc. • Private balconies and awnings
7 Architectural
Style
Mixed Use Affordable Building
Community Center
UA Stacks UA Splits
UA Towns
Packet Page 1349
Transit Station
• Size, location, and access
• Fixed platform for transit access
• Transit Station Dedication Agreement
• Parking structure, surface parking, a pedestrian plaza, a station plaza, and a station building
• Transit based layout
• Status of Dumbarton Rail Corridor Project:
• Listed in Plan Bay Area 2050 in its 2036-2050-time
horizon for implementation
• SamTrans is coordination with the Metropolitan
Transportation Commission regarding funding
8 Transit Station
and
Dedication
Agreement
CMU
Surface
Parking
Station Platform
Parking
Structure
Surface
Parking
Pedestrian
Plaza
Bus
Turnaround
& Dropoff
Station
Plaza
Station
Building
Packet Page 1350
Bay Trail
9 Bay Trail
• Bay Trail provides access through Grand
Park and Project boundary
• Completes the Bay Trail loop around the
Specific Plan area
Packet Page 1351
Park Agreement Amendment
• An amendment to the previously approved Park
Agreement for the Grand Park (Harbor Pointe
Subdivision)
• Reconfiguration of the 5-acre park
• Size of the park would remain the same
• Boundary would be adjusted and include additional
land on the eastern boundary and the land to the
northeast would be reduced.
10 Requested
AgreementPark
Agreement
Amendment
Packet Page 1352
Minor Use Permit
To allow for reduced parking throughout the project site by 20% due to the close proximity of the project to a
future transit station.
Density Bonus Incentive
To allow for 1 parking stall for each affordable unit, as an incentive for providing affordable units
11 Requested
Entitlements
Continued
Land Use Required
Parking
Spaces
Number of
Required
Spaces
Required with
20% Reduction
(MUP) and
Density Bonus
Provided
Parking
Spaces
MultiFamily2.5 per unit 698 558 630
Affordable
Units &
Manager’s
Unit
1.5/1 Bed;
2/2-3 Bed
187 91 91
Retail 3/1,000 s.f.
greater than
5,000 s.f.
0 0 9
Total 885 649 730
Packet Page 1353
Vesting Tentative Map
• Vesting Tentative Map to construct 279 multi-family
units, 3,600 square feet of retail area, 91 multifamily affordable units, a 1,485 square foot community
building, a 5-acre community park, and 1.8 acres set
aside for a future transit station.
• 36 lettered parcels
12 Requested
Entitlements
Continued
Packet Page 1354
13 Specific Plan Amendment
Specific Plan Amendment for the entire project area to
change it from Commercial/Retail, Commercial/Office,
High Density Residential, Transit Station, Parks & Open Space to Commercial Mixed Use, Medium/High Density
Residential, Transit Station, Restricted Use Areas and
Parks & Open Space.
Commercial/Retail
Commercial/Office
High Density Residential
Transit Station
Parks & Open
Space
Transit Station
Commercial Mixed Use
Medium/High Density
Residential
Restricted Use Areas
Parks & Open
Space
Requested
EntitlementsSpecific Plan
Amendment
Packet Page 1355
14 General Plan Amendment
General Plan Amendment from Community Commercial,
High Density Residential, Parks and Recreational Facilities and Public Institutional to Medium Density Residential, Commercial Mixed Use, Public Institutional and Parks and Recreational Facilities
Community
Commercial
Public
Institutional
High Density
Residential
Community
Commercial
Parks and
Recreational
Facilities
Medium Density
Residential
Commercial
Mixed Use
Public
Institutional
Parks and
Recreational
Facilities
Requested
EntitlementsGeneral Plan
Amendment
Packet Page 1356
15 Zoning Map Amendment
Zoning Map Amendment from Business and
Technology Park and Park to Residential Medium
Density with Form Based Code, Commercial Mixed Use
with Form Based Code, Public Facilities, Transit
Station, and Park.
Business and
Technology Park
Park
Park
Transit Station
Commercial Mixed Use
with Form Based Code
Residential Medium Density
with Form Based Code
Public Facilities
Requested
EntitlementsZoning Map
Amendment
Packet Page 1357
Affordable
Housing
and
Compliance
Agreements
16 Affordable Housing and Compliance Agreements
• Mixed-use building will consist of parking and retail on the first floor, with residential, residential amenities, and retail on the second floor, and all residential on the third floor or higher.
• City of Newark requires developers to pay an impact
fee to preserve or increase the supply of affordable
housing in the city.
• Alternative to paying the impact fee, developers may
provide on-site affordable housing units
• Developer has provided an appropriate mix of
affordable units, which mitigates the impacts to
affordable housing needs to the city.
• USA Properties Fund would construct and manage the
affordable units.
• Developer would also enter into an Affordable Housing Compliance Agreement and Affordable Housing
Satisfaction Agreement
Required Distribution
Percentage of AMI per
Household
Required Units Units Proposed
Very Low
(30-50%)
44 47
Low
(50-80%)
21 23
Moderate
(80-120%)
19 20
Total 85 90*
Packet Page 1358
California Environmental Quality Act
(CEQA)
17 • The City of Newark certified a Program Environmental Impact Report (PEIR) for the Specific Plan in July 2011. • Initial Study was prepared for this project, which
examined the nature and extent of potentially adverse
effects on the environment that could occur if the
project is approved and implemented.
• Initial Study demonstrated that the proposed project
would be substantially similar to the project evaluated in the adopted 2011 PEIR and would not result in any new
significant environmental effects or a substantial
increase in the severity of previously identified
significant effects.
• An Addendum has been prepared to document that the
proposed project modifications do not require
preparation of a subsequent EIR or negative declaration.
CEQA
Packet Page 1359
RECOMMENDATION
• Staff recommends, that the City Council:
1) Waive the first reading and introduce a Zoning Amendment based on the analysis and findings of determination;
2) Approve a resolution approving an Amendment to the General Plan, Amendment to the Bayside Transit Oriented Development Specific Plan, Design Review, Minor Use Permit, Density Bonus Incentive, Vesting Tentative Map, Dedication Agreement, Park Agreement Amendment, Alternate Means of Compliance to
Payment of the Housing Impact Fee, and an Initial Study and Addendum to the Program EIR for the Bayside Newark Transit Oriented Development Specific Plan
18 Packet Page 1360
QUESTIONS?
19 Packet Page 1361
Item F. 1.
DATE 09/22/2022
TO Honorable Mayor and City Council Members
FROM Steven Turner, Community Development Director
SUBJECT Adopt two resolutions approving (1) a Standard Agreement, Loan Agreement, Regulatory Agreement, Promissory Note and Deed of Trust, and (2) a Subordination Agreement for the Towne Place Suite Homekey Project known as "Cedar Community Apartments" at 39802 Cedar Boulevard
SUMMARY AND RECOMMENDATION
Homekey is a statewide program to protect and provide housing for low-income households and those who are experiencing homelessness. Administered by the California Department of Housing and Community Development (HCD), approximately $1.9 billion in grant funding has been made available to develop a broad range of housing types including, but not limited to, hotels, apartment buildings, commercial facilities and other buildings into affordable housing. Abode Services, a Fremont-based non-profit focusing on homeless services and low-income housing, identified an opportunity to acquire the Towne Place Suites extended-stay hotel and propose a project to create Cedar Community Apartments containing 124 units of affordable housing for extremely low-income households through the Homekey grant program.
In January 2022, the City Council authorized staff to apply for a Homekey Round 2 program grant in an amount not to exceed $39 million and assigned $6 million from the city’s ARPA Recovery Fund and Housing Impact Fee fund for the project. Additional funding for the project was obtained from the County of Alameda ($4 million in HOME-ARP funds) and from the Housing Authority of Alameda County in the form of 60 Project Based Vouchers, 12 of which would be made available to military veterans.
Key aspects of Cedar Community Apartments include:
100% permanent, supportive rental housing for a minimum period of 55-years 124 units: 60 units for chronically homeless households, 64 units for households at risk of homelessness
All units for extremely low-income households; incomes of no greater than 30% Area Median Income
Monthly rents capped at no more than 30% of monthly gross income Resident and case management services, mental health, and physical care referrals
Abode Services would be the on-site service provider and Housing for Independent People would be the property management agent.
Packet Page 1362
On July 25, 2022, the City received notification of a Homekey grant award in the amount of $38.2 million. The following agreements are necessary to establish the terms, expectations, and other requirements necessary for the Homekey grant and the City’s contribution:
Loan Agreement
Regulatory Agreement
Promissory Note and Deed of Trust
Subordination Agreement
Key aspects of the project include:
Local preference- a local live/work preference is required for the at-risk units once the county and the federal Department of Housing and Urban Development agree that the preference is consistent with applicable fair housing laws (see further discussion below).
Resident Selection Criteria- there is a process for how eligible households are referred to and apply for available resident units.
Safety and Security- the city staff is sensitive to neighborhood concerns with the proposed change in land use from Hotel to Residential. The project would enhance on-site security and implement maintenance standards and programs meant to reduce nuisance impacts improve communications with the immediate neighborhood.
Parking- the site would contain 88 automobile parking spaces, a reduction of approximately 46 spaces. An automobile parking waiver would be required for the project. 100 bicycle parking spaces would be provided.
Design Review- minimal exterior changes would be necessary and considered pursuant to a design review application for these changes that would be reviewed by the Community Development Director.
Engagement with the community included two virtual meetings for the community to learn about Homekey and the process to convert the hotel to affordable housing. The City has communicated project information through the City’s website, social media, electronic email, and courtesy notices.
The Cedar Community Apartments project is consistent with the General Plan’s Housing Element and the Council-adopted Affordable Housing Work Plan.
The City is providing a significant $6 million loan to the developer the use of these funds that is appropriate and consistent with the associated implementing resolutions.
In future years, the City could expect residual receipts revenues representing an excess of operating revenue minus expenses. Conversion of Towne Place Suites hotel would result in a loss of Transit Occupancy Tax of approximately $300,000 per year, which may be offset by a new hotel that will open in the fall.
Per State statute, Homekey projects are eligible for California Environmental Quality Act (CEQA) streamlining and would be considered statutorily exempt from CEQA. The County of Alameda has prepared a National Environmental Policy Act Environmental Assessment and a Finding of No Significant Impact was issued.
Staff Recommendation
Staff recommends that the City Council adopt: 1) a resolution for acceptance and Packet Page 1363
Staff recommends that the City Council adopt: 1) a resolution for acceptance and approval of a Standard Agreement with the State of California’s Housing and Community Development Department for a Homekey grant of $38,156,293.00 and, 2) a resolution for approval of Loan Agreement and Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants between the City of Newark and Allied 39802 Cedar LLC, and a Secured Promissory Note and Deed of Trust, and a Subordination Agreement for the Cedar Community Apartments project at 39802 Cedar Boulevard.
BACKGROUND
Homekey Program Overview
Building on the success of Project Roomkey (a COVID-19 response from the state to provide temporary shelter options at hotels), Homekey is the next phase in the state’s response to protect low-income households and those who are experiencing homelessness. Administered by the California Department of Housing and Community Development (HCD), approximately $1.9 billion in grant funding has been made available to local public entities, including cities and counties within California to purchase and rehabilitate hotels, motels, vacant apartment buildings, and other buildings for conversion into interim or permanent, long-term affordable housing. The Homekey program requires grant funds to be used to provide housing for individuals and families experiencing homelessness or at-risk of experiencing homelessness.
There have been two rounds of Homekey grants. The 2021 Homekey Round 2 program Notice of Funding Availability was released on September 9, 2021.
Abode Services Opportunity with Town Place Suites Owner Abode Services, a Fremont-based non-profit focusing on homeless services and low-income housing, identified an opportunity to acquire a hotel property in Newark and participate in the Homekey grant program. Allied Housing (Abode Services’ development division) has a purchase option agreement with the owner of Towne Place Suites (TPS), an extended-stay hotel at 39802 Cedar Boulevard to convert the hotel to 100% permanent, supportive residential housing known as “Cedar Community Apartments”.
TPS contains 125 suites (57 studios, 38 1-bedroom, and 30 2-bedroom units) with 134 parking spaces on a 2.7-acre site. TPS was built in 2000 and renovated in 2015.
Allied Housing partnered with the City as Round 2 Homekey program applicants to acquire TPS. If acquisition is successful, Allied Housing would acquire the hotel and convert the extended-stay suites to affordable residential apartment units.
Opportunity to Access Homekey Funds
The Homekey program offers an opportunity to receive a substantial grant for site acquisition purposes and funds for operational subsidies and services.
County HOME-ARP Homekey Funding Opportunity
In August 2021, the County of Alameda issued a Request for Proposals (RFP) for HOME-American Rescue Plan (ARP) program funds to be used for affordable housing Packet Page 1364
HOME-American Rescue Plan (ARP) program funds to be used for affordable housing projects associated with the State of California’s Homekey program. In response, staff from the city and Abode Services/Allied Housing submitted a proposal requesting $4,000,000 of HOME-ARP funds for the Cedar Community Apartments Homekey project.
In January 2022, the County issued a conditional commitment of the requested funds, based upon (among other requirements) a Homekey award from the state.
Housing Authority of the County of Alameda Project Based Vouchers The Housing Authority of the County of Alameda (HACA) operates the project-based housing voucher program to provide funding to specific units rather than using it for more traditional tenant-based assistance. The program is applicable to existing housing or newly constructed or rehabilitated housing. HACA selects projects to participate in the program in accordance with the requirements of its Administrative Plan.
HACA issued a RFP for Project-Based Vouchers (PBV) in November 2021. Allied Housing submitted a proposal requesting 60 PBV for the Towne Place Suites Homekey project, serving homeless households and/or military veterans. HACA ranked and rated all of the proposals received using the criteria outlined in the RFP.
In January 2022, HACA informed Allied Housing that Allied Housing would be awarded 60 PBVs, contingent on a successful Homekey award.
Council Authorization to Apply with Allied Housing and Assignment of Funds In January 2022, the City Council authorized staff to apply for a Homekey Round 2 program grant in an amount not to exceed $39 million. The application was submitted to HCD at the end of January 2022. The City was the applicant with Allied Housing as the co-applicant.
In addition to the authorization to apply for Homekey grant funds, the City Council authorized a one-time, $1.5 million allocation of ARPA Recovery Plan funds and $4.5 million of Housing Impact Fee funds for a total contribution of $6 million, contingent on a successful Homekey award. The assignment of local funding would support the community-based effort to provide opportunities to very-low income and homeless households. Assignment of local funding is important to demonstrate support for the project and to contribute to a financing plan to acquire and convert the hotel to housing and provide resident services.
On July 25, 2022, the City received notification of a Homekey grant award in the amount of $38.2 million. Public announcement of the grant award was embargoed by the State until August 25, 2022.
Project Description
The project site, located 39802 Cedar Boulevard, is approximately 2.7-acres in size and currently contains the existing Towne Place Suites extended stay hotel with 57 studios, 38 1-bedroom units, and 30 2-bedroom units across two separate 4-story Packet Page 1365
buildings. The project site contains 134 parking spaces.
The project includes the conversion of 125 units into 124 permanent supportive housing and affordable housing apartment units (1 of the original 2-bedroom units would be dedicated to a property manager). All 124 units would be permanently affordable to Extremely Low-Income households with incomes between 0 percent to 30 percent of Area Median Income (AMI). 60 units will be dedicated to homeless individuals and families, and the remaining 64 units to individuals or families at risk of homelessness.
Each of the existing 124 extended-stay hotel rooms are already set up as apartments with full kitchens and fully furnished living spaces. As such, the converted residential unit interiors will only require minimal improvements, with the exception of required ADA upgrades for seven units. In addition, the conversion would include renovations to change the existing lobby into community space, property management, and services offices. An ADA accessible modular building would be installed in the parking lot after property acquisition primarily to be used for resident services (described further below).
Lastly, conversion includes re-purposing some of the existing surface parking lot area for children’s playground equipment, pet area, resident common space, and landscaping. Security fencing and security cameras would be installed on the site.
The site would not include any ground disturbing activities such as demolition, excavation, or construction (other than for new utility connections as may be necessary) nor would it introduce substantial physical changes to the existing buildings or site.
For the purposed of this staff report, the preceding information is considered the “Project”.
In summary, the following are key aspects of the Cedar Community Apartments Homekey project:
Permanent, supportive rental housing for a minimum period of 55-years.
Property would be owned by Allied Housing (known as Allied 39802 Cedar LLC for ownership purposes), Abode’s property development division. 124 units: 60 units for chronically homeless households, 64 units for households at risk of homelessness; one resident manager's unit.
All units for extremely low-income households; incomes or greater than 30% AMI.
Monthly rents capped at no more than 30% of monthly gross income.
HACA contribution of 60 Project Based Vouchers (assigned to the homeless household units), 12 of which reserved for military veterans administered through the Veteran’s Administration Veterans Affairs Supportive Housing (VASH) program.
In addition to the affordable housing, resident support services are an important and necessary component of Cedar Community Apartments, summarized below:
Five full-time, on-site staff: including two clinical case managers, one resident services coordinator, one wellness specialist, and one program coordinator.
Service Coordination to connect all residents with available community resources Packet Page 1366
such as job training, financial planning, life skills, peer support, transportation services, food banks, cooking classes, exercise classes, and community events.
Case management with individual service plans for non-VASH residents while VASH households will work with VA case managers.
Mental Health Care and supportive services to participants living with mental health disabilities. Services for veterans and all populations will be informed by best practices, including trauma-informed care and harm reduction.
Physical Care: referrals to health and dental services and similar services.
In-home care, for residents who receive in-home care the services, staff will work closely with health care professionals to ensure that health services are integrated with and support the resident’s individualized self-sufficiency plan. Referrals will be available to veterans during weekly case management or more often as needed.
Substance Abuse Service: For residents who request these services, staff will focus on helping reduce the negative consequences of their substance use.
Residents who wish to receive treatment for substance abuse will be provided with referrals, and will receive support from the services staff, including one-on-one support and coordination with the treatment provider.
Site Management Roles
Abode Services (Abode): On-Site Services Provider
Abode has been a provider of services to those who are homeless and at risk of homelessness for 30 years. Abode’s programs span a wide breadth of services and offering participant-centered routes out of homelessness. Abode’s programs provide targeted services to multiple sub-populations, including veterans, families with children, former foster youth, and people experiencing chronic homelessness.
Abode has extensive experience, not only with providing services to residents of permanent supportive housing, but as an owner and property manager as well. The Abode team therefore brings a special understanding of the property manager/service provider/resident relationship, including the various needs of these roles, and how best to create a safe, supportive environment that addresses the needs of all parties.
Housing for Independent People (HIP): Property Management Agent Housing for Independent People (HIP) would serve the property management agent for the project. HIP is a property management subsidiary of Abode Services that specializes in managing supportive housing projects for formerly homeless and special needs residents. HIP works closely with service providers to create a community of housing stability and financial stability for residents. HIP only focuses on supportive housing, and it is HIP’s mission to serve those that are formerly homeless and have special needs.
DISCUSSION/ANALYSIS
Homekey Award – largest source of funding; completes the funding portfolio Packet Page 1367
Homekey Award – largest source of funding; completes the funding portfolio As stated above, on July 25, 2022, the City received notification of a Homekey Round 2 grant award of $38.2 million. The public announcement of this grant was made on August 25, 2022, after the state removed communication restrictions associated with the program. Newark’s grant is the sixth largest among 108 total Homekey awards (in both funding rounds) and would be the 10th largest project in terms of total affordable units created.
The Homekey grant is the largest component of the Cedar Community Apartments funding portfolio and allows the other funding (through the County and HACA) to become available for use. The Homekey grant would be formalized through various agreements between the City, the state, and Allied Housing.
State HCD Standard Agreement – Homekey Grant
The Standard Agreement (the “Agreement”) is the State of California document that, when executed, authorizes the $38.2 million grant. Under the terms of the Agreement, the City and Allied Housing are considered the “Grantee”. The City would be awarded the $38.2 million grant for Allied Housing’s acquisition of Towne Place Suites. The Agreement sets the eligible uses of the grant, rent standards, deadlines and reporting requirements, grant disbursement conditions, the specific Homekey program terms and conditions, and the project-specific terms and conditions for the permanent affordable housing program.
In particular, the Agreement establishes the grantee reporting requirements to the State, including a Homekey Program and Expenditure Report (required annually for the first five years) and demonstrated satisfaction of performance milestones. As provided in the City/Allied Housing Loan Agreement, Allied Housing would be responsible for preparing and submitting monitoring reports to the State as directed by the Agreement.
Staff recommends that the City Council adopt a resolution to accept the Homekey grant award for the Cedar Community Apartments project and authorize the city manager to execute the Agreement on behalf of the City Council. The resolution and Agreement are provided as Attachment A.
Agreements with Allied Housing
In addition to the Standard Agreement with the state, the City and Allied Housing would enter into agreements that establish the terms, expectations, and other requirements necessary for the city’s $6 million contribution and the $38.2 million Homekey grant to be used for acquisition and conversion of Towne Place Suites into Cedar Community Apartments. The agreements and other documents are:
Loan Agreement
Regulatory Agreement
Promissory Note and Deed of Trust
Subordination Agreement
Loan Agreement
The Loan Agreement is an enforceable commitment between the City and Allied Housing (the Developer) that, in exchange for a loan of funds, requires Allied Housing Packet Page 1368
to produce and maintain affordable housing for a period of time, subject to loan and repayment terms, distribution of operating proceeds, and a monitoring program, among other requirements. Key aspects of the Loan Agreement are:
Loan amount: $38.2 Homekey grant funds + $6 million City funds.
Use of funds: property acquisition and related costs; predevelopment costs, construction costs.
Affordable housing commitment: affordable housing must be provided for at least 55-years.
Development schedule: affordable units must be provided within the timeframes required by the Standard Agreement.
Payment of prevailing wages: Developer must ensure that contractors and subcontractors comply with the state’s prevailing wage requirements and maintain records demonstrating compliance with applicable laws.
Loan terms: the loan of city funds will accrue simple interest at the rate of 3% per year. The outstanding balance of the Homekey grant funds will not accrue interest.
Residual receipts: if the Project generates residual receipts (the excess of operating revenue over the operating expenses), the Developer shall make annual payments equal to 60% of 75% of residual receipts to the city and 40% of 75% of residual receipts to the county.
Residual receipts are not expected during the initial years of the Project.
Developer would retain 25% of any residual receipts generated.
Developer shall maintain records verifying residual receipts (or lack thereof).
Loan re-payment:
If the Homekey grant is required to be repaid, the Developer is responsible for making the repayment.
If the Homekey grant obligations have been satisfied and City/Developer are no longer responsible for repayment, the Homekey grant shall be forgiven.
The balance of the city funds with accrued interest shall be paid in full upon Developer default and upon expiration of the 55-year term.
Other provisions for loan disbursement, refinancing, use of the property, changes in ownership, loan security, environmental matters, defaults, and indemnification.
Staff recommends that the City Council adopt the resolution to approve the Loan Agreement by and between the City of Newark and Allied 39802 Cedar LLC and authorize the City Manager to execute the Loan Agreement on behalf of the City. The resolution and Loan Agreement are provided in Attachment B, Exhibit 1.
Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants The Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (the Regulatory Agreement) between the City and Allied Housing (the Owner) acknowledges the Loan Agreement that’s required for the acquisition and development of affordable housing. The intent of the Regulatory Agreement is to regulate and restrict the occupancy and rents of the affordable units for the benefit of the occupants and the city. The Regulatory Agreement runs with the land and is binding on the property owner and any property owner’s successors for the full 55-year term of the agreement. Key aspects of the Regulatory Agreement are:
Affordability: no fewer than 124 units are rent restricted for occupancy by eligible households who are homeless or at-risk of homelessness. One unit will be Packet Page 1369
occupied by an on-site manager and is not rent-restricted.
Extremely low-income rents: monthly rents cannot exceed 30% of a tenant’s actual income, which must be no more than 30% of the Alameda County AMI.
Tenant certifications: the Owner or agent must collect and retain income and resident identity information on a yearly basis to assess conformance with income requirements.
Annual reporting and inspections: the property owner shall maintain resident data and records complied into an annual report to demonstrate compliance with the Regulatory Agreement. On-site inspections by the city are allowed with 24-hours advance notice to the property owner or designated agent.
Property management- including an experienced management agent reasonably acceptable to the City to oversee all aspects of on-site operations, maintenance, up-keep, repairs, records retention, and security (along other responsibilities). City can conduct performance reviews and demand the replacement of the agent, if necessary. Details regarding site security are provided below.
Requirements for repairs, maintenance, and security- the property owner shall maintain the property in good physical condition, in good repair, and in safe, sanitary, habitable living conditions in conformance with state, federal, and local laws.
Marketing and Management Plan- addresses how the property owner plans to manage the property and market the affordable units to eligible households in accordance with fair housing laws and the Regulatory Agreement. The Marketing and Management Plan contains the tenant selection criteria, and tenant certification process. This plan also describes the management team and addresses how the management entity plans to manage and maintain the property and the project. The owner shall submit modifications to this plan to City for review and approval.
Social services- the Regulatory Agreement requires the provision of social services in accordance with the Standard Agreement and described earlier in this report. Owner shall ensure that all personnel providing or coordinating all social services shall be adequately trained and counseled, including with respect to the appropriate means and methods of communicating and interacting with residents.
Any substantive change in the scope, amount, or type of social services to be provided shall be subject to prior reasonable approval of City.
Other provisions for insurance, transfers and encumbrances, defaults, and indemnification are provided in the Regulatory Agreement.
Staff recommends that the City Council adopt the resolution to approve the Regulatory Agreement by and between the City of Newark and Allied 39802 Cedar LLC and authorize the City Manager to execute the Regulatory Agreement on behalf of the City.
The resolution and Regulatory Agreement are provided in Attachment B, Exhibit 2.
Secured Promissory Note and Deed of Trust
The Secured Promissory Note is the document containing the developer’s promise to repay the City Loan to the City. It is what is known as a “residual receipts” note, because repayment is only required to be paid from a percentage of the net proceeds (or “residual receipts”) of the housing project. Three-percent interest will accrue on the $6,000,000 portion of the City Loan that will be obtained from City funds, and no Packet Page 1370
interest will accrue on the portion of the Promissory Note that is funded by the Project Homekey Grant from the State. Once the State certifies that all of the Project Homekey requirements have been satisfied, the portion of the Promissory Note that is funded by the Project Homekey Grant will be forgiven.
The Promissory Note will be secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the “Deed of Trust”) that will be recorded against the property. If the developer fails to make payments as required under the Promissory Note, the Deed of Trust allows the City to foreclose upon the property and exercise other remedies.
Staff recommends that the City Council adopt the resolution to approve the Secured Promissory Note and Deed of Trust and authorize the City Manager to execute the documents on behalf of the City. The resolution containing the Secured Promissory Note and Deed of Trust are provided in Attachment B, Exhibits 3 and 4.
Subordination Agreement
The Subordination Agreement identifies the county and City loans that would be provided for the project, acknowledges the promissory note and deed of trust prepared for each loan, and the process for notification and loan default cures. It establishes the priority for the loans as provided in the City and county's regulatory agreements and deeds of trust, with the City regulatory agreement as superior to the county's and the City's deed of trust superior to the county's deed of trust.
Staff recommends that the City Council adopt the resolution to approve the Subordination Agreement and authorize the City Manager to execute the document on behalf of the City. The resolution containing the Subordination Agreement is provided in Attachment B, Exhibit 5
Local Preference
The Regulatory Agreement includes a requirement for applying a Newark live/work preference for the 64 affordable units available to households that are at-risk of becoming homeless, subject to prohibition by applicable law or the county’s financing or restrictions or from other financing sources for the Project. As of the date of this report, the federal Department of Housing and Urban Development (HUD) has provided an interpretation that the local preference requirement may be inconsistent with applicable fair housing law. As a result, the county would not support a local preference, in that HUD is the source of the county’s funding for the Project.
City staff continues to work with HUD and the county regarding the applicability of a local preference to the Project. The City has recently completed a displacement study and disparate impact analysis that provides evidence of residential displacement from Newark due to a variety of housing factors and findings that providing a local preference would not have an unintended disparate (or divergent) affect from the intent of creating affordable housing consistent with fair housing laws and policies. Utilizing these studies, staff will continue to advocate for the Project’s local preference requirements. Thus, staff retains the requirement in the Regulatory Agreement and in the tenant section criteria upon approval by HUD and the county.
Packet Page 1371
As described in the Tenant Selection Criteria below, households that are at-risk of homelessness may apply for tenancy and would be assigned “points” for vulnerability factors confirmed as “true” at the time of application. Applicants that can demonstrate Newark residency or employment location would receive an additional “point”.
All applicants with the highest vulnerability point total will be given preference based on a lottery system for everyone with the same point total. The Newark Live/Work applicants will be given preference over other applicants with the same total vulnerability score. Once everyone at the highest vulnerability index is processed, then the next highest vulnerability point total group is given preference based on a lottery for everyone in that next highest point total with Newark Live/Work applicants being given preference over other applicants with the same total vulnerability score. This will continue until all applicants with a score are processed. If there are still units left after all applicants with a vulnerability score have been processed, then a lottery will be used for the remaining applicants, with Newark Live/Work applicants with a zero-vulnerability score given a preference over other applicants with a zero-vulnerability score. Abode services will provide more information on the scoring process at the City Council meeting.
As described earlier in the report, the units set aside for homeless households will utilize housing vouchers issued by HACA that subsidize monthly rental rates. These vouchers have requirements that limit the ability to prioritize one household over another household. As a result, a local preference requirement is not applicable to the 60 homeless household-designated units.
Resident Selection Criteria
As indicated earlier in the report, Cedar Community Apartments would contain apartment units for two household groups: 60 units would be made available for homeless households and 64 units for households that are at-risk of homelessness. In order to be eligible for these units, all households may not have a gross income of more than 30% of the Area Median Income (AMI) for Alameda County based on household size. The current Alameda County AMI for a household of four persons is $142,800. 30% AMI for a household of four is $42,850 per year. For the “at-risk” units, tenants would need to demonstrate a minimum income of two times the monthly rent of the unit to be leased. There is no minimum income for the homeless household units.
In addition, all eligible households shall comply with the following:
Submittal of identity and proof of income documents
Credit check for household members aged 18 years or older to confirm income and asset certification proposes
Criminal background checks for all adult household members. Grounds for denial include, but are not limited to, serious felony offensives such as domestic violence, sexual abuse, weapons possession, sex offender status, violent behavior, drug sales or manufacturing
Submittal of complete resident application documents
The tenant section process is defined by unit type, either 1.) “Referral Units” (units available to homeless households), or 2.) “Non-Referral Units” (units available to Packet Page 1372
households at-risk of homelessness). The Cedar Community Apartment’s management agent coordinates tenant selection with referral sources.
Referral Units – 60 units
48 units for formally chronically homeless households would be referred through a referral source, the Alameda County Coordinated Entry System (CES) by Homestretch. These units would receive a Project Based Voucher (PBV) subsidy through the Housing Authority of Alameda County (HACA). Households would be prioritized based on the highest need for housing and services HACA will maintain a household wait list for these units and will apply preference criteria
CES will refer interested applicant’s contact information and completed application packets to the management agent to continue the application process 12 units for income eligible military veterans would be available through the Veterans Administration Supportive Housing (VASH) program administered by the Palo Alto Veterans Affairs (VA) office
Non-Referral Units – 64 units
64 units for households that are at risk of homelessness Available units will be offered by the management agent through the Alameda County affordable housing portal and on the Eden I&R Housing Database/211 referral list
Household applicants are scored on a variety of vulnerability factors and would receive “points” for each confirmed vulnerability factor Households with identical scores would be grouped and given preference based on a lottery system. Highest scoping households would be processed first, followed by the next highest scoring household group. This continues until all households with a score have been processed
The management agent will maintain a household waitlist for these units The Site Specific Residential Selection Criteria is part of the Cedar Community Apartments Marketing and Management Plan, identified by reference in the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants agreement and is subject to the requirements contained in that agreement.
Safety and Security
City staff is sensitive to neighborhood member's concerns with the proposed change in use from Hotel to Residential.
The Developer is proposing the following additions and functions to the property to promote safety and security in the neighborhood:
Security fencing around the perimeter of the site, with the exception of a small visitor parking area along Cedar Boulevard. There will be an access-controlled gate leading to the private parking area
Security cameras placed at strategic locations around the site 24-hour/seven days per week uniformed security guard who will patrol the premises
The Regulatory Agreement also addresses on site security and requires building- and Packet Page 1373
site-maintenance and repairs to prevent the property for falling into disrepair that may promote nuisance activity, including:
Employ defensible space design principles and crime prevention measures in the operation of the Project including but not limited to conducting a yearly security inspection, utilizing Crime Prevention Through Environmental Design (CPTED) principles, and review of illegal activity review with City of Newark Police Department
Work with the City of Newark Police Department (PD) to implement and operate an effective neighborhood watch program
Maintain an on-site contact, available 24 hours per day, to receive complaints and concerns from the community, and promptly respond to and address such complaints and concerns
Exercising city’s right to enter the property if Newark PD becomes aware of or is notified of any conditions that pose a danger to the peace, health, welfare or safety of the tenants and/or the surrounding community, and to perform or cause to be performed such acts as are necessary to correct the condition.
As described above, the resident section process contains provisions for background checks and grounds for denial of residences applications based on certain serious felony offensives.
As provided in the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants agreement, Cedar Community Apartments would employ an experienced management agent with the demonstrated ability to operate a residential development in a manner that will provide decent, safe, sanitary housing. The city must approve the management agent, conduct performance reviews, and force the replacement of the management agent if in the judgment the city the development is not being operated and managed in accordance with any of the standards of the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants agreement.
The Regulatory Agreement contains strict default and remedy provisions for certain management, financial, and performance aspects violations, including the terms, provision, or covenant of the agreement. The intent is to set expectation between the city and the owner for agreement defaults and the procedure to correct or cure those defaults, including the city’s option to pursue all legal remedies to force compliance.
Parking
The existing hotel contains 134 automobile parking spaces, accessed off a driveway from Cedar Boulevard. The plans for Cedar community Apartment include conversion of some of these spaces into resident amenity space and an area for a residential services trailer, resulting in 46 fewer parking spaces for a total of 88 spaces provided. A typical residential development with the proposed unit and bedroom count would require over 200 parking spaces.
State law allows developers of permanent, supportive rental housing to request an automobile parking waiver of up to 100% of the required parking. The Developer intends to request that the city support a waiver to allow 88 paces under the city’s Packet Page 1374
Density Bonus for Affordable Housing regulations, provided in Newark Municipal Code Section 17.19. The Planning Commission would consider the waiver request and make a recommendation to the City Council. The waiver process would be initiated after the Council’s consideration of the Homekey and Cedar Community Apartments agreements.
Design Review
Minimal exterior building and site improvements would be needed for the conversion of the existing hotel to an affordable housing residential use. Improvements include:
A resident services/community room modular building would be placed near Building A (adjacent to the property line shared with the retail center to the northwest of the site). Utility connections would be installed, and the building would be painted with colors that complement the existing buildings colors A six-foot high metal security fencing with key card access controls would be placed at the front of the property that matches the color and materials of the exiting permitter fencing
Approximately 16 parking spaces would be available for visitor and guests at the front of the property that may be accessed by visitors to the site Installation of new security camera at strategic locations throughout the property Installation of a bicycle parking area within the secured parking area with room for 100 bicycles.
ADA parking, safety, and accessibility improvements
Removal of existing pool and equipment. Installation of children’s playground equipment, pet area, outdoor community spaces and landscaping, and designated outdoor smoking areas
All other exterior aspects of the property and site would remain unchanged.
The developer would be required to received design review approval, consistent with Newark Municipal Code (NMC) Chapter 17.34. Based upon the scope of work described above and the assignment of Design Review responsibilities described in NMC 17.34.030, the Community Development Director would be the design review authority for this project. The design review process would be initiated after the Council’s consideration of the Homekey and Cedar Community Apartments agreements.
Community Engagement
Engagement with the community regarding the proposal to convert the hotel to permanent, supporting rental housing has occurred in a variety of ways:
Abode Services and Allied Housing hosted a virtual community meeting on Wednesday, November 10, 2021, for community members within the vicinity of the Towne Place Suites site. The meeting was an opportunity for the public to learn more about the Homekey grant, the proposal to convert the hotel use to a residential use, and learn about Abode Services approach to resident services.
A second virtual community meeting was held on Wednesday, March 9, 2022. The format and information presented at this meeting was similar to the November 2021 meeting, but also included information from the Newark Police Department regarding safety and security associated with affordable housing sites in Newark.
Packet Page 1375
The city has prepared and updated a project website that includes frequently asked questions and other project information. The city also has engaged the community through social media posts and electronic mails when new information becomes available.
A courtesy notice for the September 22, 2022 meeting was mailed to property owners within a 1000-foot radius of the Cedar Community Apartments site.
Next Steps
If City Council accepts the staff recommendation, the development of Cedar Community Apartments would proceed in the following general timeline, subject to change depending on unique circumstances of the project:
Property acquisition October 2022
Design review and parking concession
consideration
October 2022
Marketing, advertisement, and tenant
referrals and recruitment
October 2022 –
March 2023
Site and building
improvements/renovations
October 2022 –
March 2022
Leasing activities/resident move-in October 2022 –
March 2023
General Plan and Housing Element Conformance
The Homekey project is consistent with the 2015-2023 Housing Element programs of the General Plan, including:
Program 1: The City will continue ongoing work with non-profit and for-profit housing developers and organizations to support efforts to create new housing for seniors, people with disabilities, formerly homeless people, households with moderate incomes or below, especially including extremely low-income households, and other special needs populations. Funding will be prioritized for housing for people with special needs and very low-income people Program 2: The City will continue support for regional efforts to end homeless, such as the Alameda County EveryOne Home Program, which prioritizes supportive housing.
Program 8: Seek Federal, State, County and Regional Funds for Affordable Housing. The City shall apply for state, County, regional and Federal funds to construct housing for low income and special needs households. Funding to provide infrastructure that would support housing development will also be sought.
Housing Impact Fee Fund and Affordable Housing Work Plan Conformance The use of the Housing Impact Fee fund (Fund) for the Homekey program is consistent with the implementing ordinance and resolution for the Fund. Use of the Fund is also consistent with the 2021-2023 Affordable Housing Work plan (Work plan) adopted by the City Council. The Work plan includes site acquisition activities for developing affordable housing. Up to 40% of the Fund (or approximately $12M based on the current Fund balance) could be used for site acquisition purposes.
Packet Page 1376
FISCAL IMPACT
The City’s $6 million commitment, comprising $1.5 million in ARPA funds and $4.5 million in Housing Impact Fee funds, is consistent with the requirements of each funding source, the Housing Element, and the Affordable Housing Workplan. Also described above is the $38.2 million Homekey grant award received from the state’s Housing and Community Development department. This award was granted to the City as the Homekey applicant and to Allied Housing as the co-applicant. The Homekey grant funds and the City’s $6 million contribution would be used to fund the acquisition, pre-development, and development costs associated with the Project. There would be no other direct costs to the City for the acquisition and development of the Project.
As provided in the Loan Agreement, the City would be eligible to receive Residual Receipts from the project. Residual Receipts are the excess of annual operating revenue generated by the Project over the annual operating expenses. Allied Housing would receive 25% of the Residual Receipts. The remaining funds would be shared with Alameda County and other lenders on a pro-rata shared basis.
Based on the Project's financial projections, Residual Receipts revenue are not expected in the initial operating years. As described in the Loan Agreement, the Project would need to be re-financed, upon City approval, over time to maintain solvency of the project (Section 5.1). Residual receipts could be received after re-financing but expected revenue amounts are not known at this time.
City staff would be responsible for on-going monitoring and compliance, as well as review and approval tasks associated with the various agreements. It is expected that these tasks would require between 40 and 80 hours of Community Development staff time per year.
The conversion of the existing hotel to residential use would result in the loss of Transit Occupancy Taxes (TOT) in the amount of approximately $300,000, based on an average Towne Place Suite TOT revenue over the past five fiscal years. However, this loss could be offset by the new 112-room Hyatt Place Hotel at 5600 John Muir Drive (anticipated opening Fall 2022).
ENVIRONMENTAL/PLANNING COMMISSION REVIEW
Per State statute, Homekey projects are eligible for CEQA streamlining and would be considered statutorily exempt from CEQA. The Project would also be categorically exempt from CEQA through the Class 1 (Existing Facilities) exemption. The County of Alameda, as the “Responsible Entity” has prepared a National Environmental Policy Act (NEPA) Environmental Assessment (EA), similar to a CEQA Initial Study. The EA was required for the County’s $4 million contribution of federal HOME funds as well as the 60 Project Based Vouchers from the Housing Authority of Alameda County (HACA). The EA was prepared and a Finding of No Significant Impact was issued.
REVIEW AND APPROVAL
Prepared by - Steven Turner, Community Development Director Packet Page 1377
Prepared by - Steven Turner, Community Development Director Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - David J. Benoun, City Manager
Attachments
A- Resolution- Project Homekey Standard Agreement
Exhibit 1 - Standard Agreement
B- Resolution- City Agreements
Exhibit 1 - Loan Agreement
Exhibit 2 - Regulatory Agreement
Exhibit 3 - Deed of Trust
Exhibit 4 - Promissory Note
Exhibit 5 - Subordination Agreement
Presentation
Packet Page 1378
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING PROJECT HOMEKEY STANDARD
AGREEMENT BY AND AMONG THE CALIFORNIA
DEPARTMENT OF HOUSING AND COMMUNITY
DEVELOPMENT, THE CITY, ALLIED HOUSING, INC., AND
ALLIED 39802 CEDAR LLC, FOR THE CEDAR COMMUNITY
APARTMENTS HOMEKEY PROJECT
WHEREAS, the City of Newark (“City”) and Allied Housing, Inc. (“Allied”) have jointly applied for and have received approval of a grant from the California Department of Housing and Community Development (“HCD”) in the amount of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) (the “Homekey Grant”) to finance the acquisition and conversion of an existing hotel property located at 39802 Cedar Boulevard, Newark, California (the "Property") into an affordable supportive housing project for chronically homeless persons and persons at risk of homelessness (the “Project”); and WHEREAS, HCD has prepared and presented to City, Allied and Allied 39802 Cedar, LLC (“Developer”), a Standard Agreement with HCD, Agreement Number 22 HK-17486, which sets forth the requirements imposed in connection with the Homekey Grant (the “Project Homekey Agreement”); and
WHEREAS, the City desires for Developer to acquire the Property and convert it into a one hundred twenty-five (125) unit multifamily residential apartment complex consisting of fifty-seven (57) studio units, thirty-eight (38) one-bedroom units, and thirty (30) two-bedroom units, and for all of the units (except for one on-site manager’s unit) to be rented at an affordable housing cost to extremely-low income households; and
WHEREAS, the acceptance and use of the Homekey Grant is necessary for the funding of the acquisition of the Property and conversion and operation of the Project; and WHEREAS, housing projects that are funded by Round 2 of Project Homekey are exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to Health and Safety Code Section 50675.1.4, provided that certain statutory prerequisites are satisfied; and
WHEREAS, the City has determined that the statutory prerequisites to the CEQA exemption set forth in Health and Safety Code Section 50675.1.4 have been satisfied with respect to the Project; and
WHEREAS, the Project consists of the minor alteration of existing private structures involving negligible or no expansion of existing or former use, and is therefore also exempt from the requirements of CEQA pursuant to Section 15301 of the CEQA Guidelines; WHEREAS, the County Housing and Community Development Department has made a Finding of No Significant Impact that determines that the Project will have no significant impact Packet Page 1379
on the human environment, and that an Environmental Impact Statement under the National Environmental Policy Act of 1969 (NEPA) is not required.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby resolves as follows:
1. The City Council finds that the foregoing Recitals are true and correct and are incorporated into this Resolution.
2. The City Council hereby approves the Project Homekey Agreement, substantially in the form presented to the City Council, with such non-material changes as may be approved by the City Community Development Director and the City Attorney.
3. The City is authorized and directed to receive the Homekey Grant pursuant to the terms of the Project Homekey Agreement.
4. The City Council authorizes the City Manager (or his designee), on behalf of the City, to execute the Project Homekey Agreement and to take such other actions as are necessary to carry out the City’s obligations under the Project Homekey Agreement, including the execution of escrow instructions and closing documents.
5. The City Council finds that the Project is exempt from CEQA pursuant to Health and Safety Code Section 50675.1.4 and Section 15301 of the CEQA Guidelines. City staff is authorized and directed to file a Notice of Exemption from CEQA with the California Office of Planning and Research and the County Clerk of the County of Alameda in the manner specified in Subdivisions (b) and (c) of Section 21152 of the Public Resources Code.
Passed and adopted by the City Council of the City of Newark at a meeting duly held on the 22nd day of September, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
:
5192076.1
Packet Page 1380
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
ADMINISTRATION AND MANAGEMENT DIVISION
Business and Contract Services Branch
Contracts Office
2020 W. El Camino Avenue, Suite 130, 95833
P. O. Box 952054
Sacramento, CA 94252-2054
(916) 263-6928 / FAX (916) 263-6917
www.hcd.ca.gov
Steven Turner, Community Development Director
City of Newark
37101 Newark Boulevard
Newark, CA 94560
Jonathan White, Chief Real Estate Officer
Allied Housing, Inc.
40849 Fremont Boulevard
Fremont, CA 94538
Jonathan White, Chief Real Estate Officer
Allied 39802 Cedar LLC
40849 Fremont Boulevard
Fremont, CA 94538
Re: Contract 22-HK-17486, Cedar Community Apartments
Dear Steven Turner and Jonathan White:
Attached is an electronic copy of the Homekey Program (HK) Standard Agreement 22-HK-17486 with Exhibits A through E.
A. Standard Agreement (STD. 213 and Exhibits A through E) STD. 213 - Cover page
Exhibit A - Authority, Purpose and Scope of Work
Exhibit B – Budget Detail and Payment Provisions
Exhibit C - State of California General Terms and Conditions – GTC - 04/2017 Exhibit C is now incorporated by reference; please see the STD. 213 for additional information.
Exhibit D – Homekey General Terms and Conditions
Exhibit E – Project Specific Provisions and Special Terms and Conditions Interim, Permanent, or Interim Housing-to-Permanent Housing
For expeditious handling of the contract, please adhere to the following:
9/12/2022
Exhibit 1
Packet Page 1381
City of Newark, Allied Housing Inc., Allied 39802 Cedar LLC. 22-HK-17486
1. Review the entire Agreement thoroughly and, if necessary, discuss the requirements with your legal and financial advisors.
2. The person or persons authorized by the Resolution(s), must provide an original signature, printed name, title and date, using blue ink, on the lower left-hand section entitled "Contractor" on the STD 213 and/or on page 2 of the STD 213, if applicable.
B. The Department now offers two options for returning signed STD 213; please review and complete one of the following options:
1. Option One: For electronic signature processing, reply to this Standard Agreement email notification with the attached, fully signed STD 213 page.
All signatures must be in blue ink. All signers must be included in the reply email and confirm acceptance of e-signing the Agreement.
2. Option Two: Print one copy of the Standard Agreement, STD 213. Do not send photocopies of the signed STD 213 page. The hardcopy must be an original, wet signature and in blue ink; do not return the Exhibits to HCD.
3. Note: If the resolution did not authorize a designated official to sign the STD 213 and amendments thereto, your governing body must adopt a resolution authorizing a designated official(s) to sign the STD 213 and any subsequent amendments. If the authorized designee as reflected in the resolution, the awarded NOFA amount or your entity status has changed, you are required to provide, to the Department, a new resolution consistent with the terms of the NOFA award and adopted by your Board.
4. Return the e-signed copy or the signed hardcopy of the STD 213; and, if applicable, the certified resolution within 30 days from the date of this letter to the following address:
Department of Housing and Community Development
Business & Contract Services Branch
Contracts Office, Attention: Viet Huu Hoai Luong
2020 W. El Camino Avenue, Suite 130
Sacramento, CA 95833
5. Maintain a complete electronic version of the STD 213 and Exhibits for your pending file. Note: The Standard Agreement contract is not effective until it is signed by the Awardee's designated official and the Department.
Packet Page 1382
City of Newark, Allied Housing Inc., Allied 39802 Cedar LLC. 22-HK-17486
The Department reserves the right to cancel any pending Standard Agreement in its entirety if not returned within the required 30-day period.
Please contact Merritt Beckett, Homekey Program Manager, Program, Design & Implementation Branch, at (916)776-7788 or [email protected], if you have any questions regarding the Standard Agreement or the provisions therein.
Sincerely,
Contract Representative
Stephen Bedsworth
Contracts Analyst
Enclosures
cc: Contracts Office, Contract Manager
Packet Page 1383
22-HK-17486
Allied 39802 Cedar LLC, Allied Housing, Inc., and City of Newark Upon HCD Approval
$38,156,293.00
STATE OF CALIFORNIA - DEPARTMENT OF GENERAL
SERVICES
STANDARD AGREEMENT
STD 213 (Rev. 04/2020)
AGREEMENT NUMBER PURCHASING AUTHORITY NUMBER (if applicable)
1. This Agreement is entered into between the Contracting Agency and the Contractor named below:
CONTRACTING AGENCY NAME
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
CONTRACTOR'S NAME
2. The term of this Agreement is:
START DATE
fifteen(15) Years from Effective Date
THROUGH END DATE
3. The maximum amount of this Agreement is:
4. The parties agree to comply with the terms and conditions of the following exhibits, which are by this reference made a part of the Agreement.
EXHIBITS
Exhibit A Authority, Purpose and Scope of Work
Exhibit B Budget Detail and Payment Provisions
Exhibit C* State of California General Terms and Conditions Exhibit D Homekey General Terms and Conditions
Exhibit E Project-Specific Provisions and Special Terms and Conditions 9 TITLE PAGES
3 16
9 GTC - 04/2017
TOTAL NUMBER OF PAGES ATTACHED 37
These documents can be viewed at https://www.dgs.ca.gov/OLS/Resources Items shown with an asterisk (*), are hereby incorporated by reference and made part of this agreement as if attached hereto.
CONTRACTOR NAME (if other than an individual, state whether a corporation, partnership,etc.) IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN EXECUTED BY THE PARTIES HERETO.
CONTRACTOR
CONTRACTOR BUSINESS ADDRESS
See Attached
See Attached
CITY STATE ZIP
See Attached See Attached See Attached
PRINTED NAME OF PERSON SIGNING TITLE
See Attached
DATE SIGNED
See Attached
CONTRACTOR AUTHORIZED SIGNATURE
See Attached
STATE OF CALIFORNIA
CONTRACTING AGENCY NAME
Department of Housing and Community Development
CONTRACTING AGENCY ADDRESS CITY STATE ZIP
2020 W. El Camino Ave., Suite 130 Sacramento CA 95833
PRINTED NAME OF PERSON SIGNING TITLE
Contracts Manager,
Business & Contract Services Branch
CONTRACTING AGENCY AUTHORIZED SIGNATURE DATE SIGNED
California Department of General Services Approval (or exemption, if applicable) Exempt per; SCM Vol. 1 4.04.A.3 (DGS memo dated 06/12/1981) See Attached
SCO ID:
Michael White
Packet Page 1384
STATE OF CALIFORNIA
STANDARD AGREEMENT
STD 213 (Rev. 06/03) 22-HK-17486
CONTRACTOR Page 2 of 2
Allied 39802 Cedar LLC
Allied Housing, Inc.
City of Newark
Allied 39802 Cedar LLC
a California limited liability company
Its: Sole Member/Manager
By: Allied Housing, Inc.
a California nonprofit public benefit corporation
Chief Real Estate Officer
Jonathan White
By: ______________________________ Date: ___________________ Address:
40849 Fremont Blvd
Fremont, CA 94538
City of Newark
a California municipal corporation
City Manager
David J. Benoun
By: ______________________________ Date: ___________________ Address:
37101 Newark Boulevard
Newark, CA 94560
Allied Housing, Inc.
a California nonprofit public benefit corporation
Chief Real Estate Officer
Jonathan White
By: ______________________________ Date: ___________________ Address:
40849 Fremont Boulevard
Fremont, CA 94538
Prep Date: 08/10/2022
Packet Page 1385
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
AUTHORITY, PURPOSE AND SCOPE OF WORK
1. Authority
California Assembly Bill No. 140 (Chapter 111, Statutes of 2021) (“AB 140”) added sections 50675.1.3 and 50675.1.4 to the Multifamily Housing Program (“MHP”) (Chapter
6.7 (commencing with Section 50675) of Part 2 of Division 31 of the Health and Safety Code). Health and Safety Code section 50675.1.3 provides the statutory basis for the Homekey Program – Round 2 (“Homekey” or “Program”). Health and Safety Code section 50675.1, subdivision (d) authorizes the Department of Housing and Community Development (“Department” or “HCD”) to administer MHP.
The Department issued a Homekey Program Notice of Funding Availability, Round 2 on September 9, 2021, which was subsequently amended on January 14, 2022 and May 5, 2022 (the “NOFA”). The NOFA incorporates by reference the MHP, as well as the Multifamily Housing Program Final Guidelines, dated June 19, 2019 (“MHP Guidelines”), both as amended and in effect from time to time. Homekey grant funds are derived primarily from the state’s direct allocation of the federal Coronavirus State Fiscal Recovery Fund (“CSFRF”), which was established by the American Rescue Plan Act of 2021 (“ARPA”) (Pub.L. No. 117-2). Homekey funds are also derived from the State of California’s General Fund.
This STD 213, Standard Agreement (“Agreement”) is entered under the authority and in furtherance of the Program. This Agreement is the result of an Application by the Grantee, as defined below, for funding under the Program (the “Grant”). As such, this Agreement shall be executed by the Grantee. Where the Grantee comprises a Public Entity or Tribal Entity, as defined below, and one or more additional entities, all entities shall execute the Agreement.
This Agreement hereby incorporates by reference the Application, as well as the project report prepared by the Department in reliance on the representations and descriptions included in that Application. This Agreement is governed by the following (collectively, the “Program Requirements”), and each of the following, as amended and in effect from time to time, is incorporated hereto as if set forth in full herein:
A. AB 140;
B. The above-referenced MHP statutory scheme;
C. The NOFA;
Packet Page 1386
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
D. The MHP Guidelines;
E. ARPA and related federal guidance;
F. The award letter issued by the Department to the Grantee; and G. All other applicable law.
1. Purpose
The Homekey Program is intended to provide housing for individuals and families who are homeless or who are at risk of homelessness, as defined in Part 578.3 of Title 24 of the Code of Federal Regulations, and who are inherently impacted by or at increased risk for medical diseases or conditions due to the COVID-19 pandemic or other communicable diseases (“Target Population”).
Grantee applied to the Department for the Grant in order to conduct one or more of the activities outlined in Paragraph 4 below. By entering into this Agreement and thereby accepting the award of Program Grant funds, the Grantee agrees to comply with the Program Requirements and the terms and conditions of this Agreement.
2. Definitions
Any capitalized terms that are not defined below shall have the definitions set forth in the NOFA, the MHP statutes, and the MHP Guidelines. In the event of any conflict, the definitions in this Agreement and the NOFA are controlling.
A. “AMI” means Area Median Income.
B. "Application” means the application for Grant funds that was submitted in response to the Department’s NOFA.
C. “Assisted Unit” means a Homekey-funded residential dwelling unit that is subject to rent, income, occupancy, and other restrictions in accordance with Program Requirements. See also “Youth Assisted Unit.”
D. “Chronically Homeless” is defined in accordance with Part 578.3 of Title 24 of the Code of Federal Regulations.
E. “Co-Applicant” means the nonprofit corporation, for-profit corporation, limited liability company, and/or limited partnership that applied for an award of Homekey Grant funds with the Eligible Applicant (i.e., a Public Entity or Tribal Entity).
Packet Page 1387
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
F. “Designated Payee” means the Co-Grantee that will serve as the payee of the Program Grant funds. If applicable, the Designated Payee is identified at Exhibit E of this Agreement.
G. “Eligible Applicant” means the Public Entity or Tribal Entity that applied for an award of Homekey Grant funds.
H. “Eligible Uses” means the activities that may be funded by the Homekey Program Grant. Those activities are listed at Paragraph 4 of this Agreement, and at Health and Safety Code section 50675.1.3, subdivision (a).
I. “Expenditure Deadline for Capital Funds” means the date by which the capital expenditure award must be fully expended. This deadline is eight (8) months from the date of the Grantee’s award unless the Department has approved an alternate arrangement in advance and in writing.
J. “Expenditure Deadline for Operating Funds” means the date by which the operating subsidy award must be fully expended. This deadline is June 30, 2026.
K. “Grantee” means the Eligible Applicant (and, if applicable, the Co-Applicant) that has been awarded funds under the Program, and that will be held responsible for compliance with and performance of all Program Requirements. The Grantee may comprise one or more entities, so long as the Grantee structure includes an “Eligible Applicant,” as defined in the NOFA and as set forth above. “Grantee” refers, both individually and collectively, to the Co-Applicant and/or the Eligible Applicant that received a Homekey Grant after submitting an Application or a joint Application to the Department. When the Grantee comprises two or more entities, each entity may be referred to as a “Co-Grantee.” On the STD 213 portion of this Agreement, the Grantee is identified as the Contractor.
L. “Homeless Youth” means a child, youth, or current or former foster youth through the age of 25 who qualifies as “homeless” under any of the relevant definitions set forth or identified at Part 578.3 of Title 24 of the Code of Federal Regulations.
M. “Homeless Youth Project” means a Project that was prioritized to receive setaside Homekey funds because (i) at least 25 percent of its Assisted Units will be restricted to Homeless Youth or Youth at Risk of Homelessness; (ii) the Grantee jointly applied and/or partnered with a nonprofit corporation with experience serving the foregoing subpopulation; and (iii) the Project is in reasonable proximity to youthcentered amenities, such as community colleges, universities, trade schools, apprenticeship programs, employment programs, childcare centers for parenting youth, and community centers for youth. Alternatively, “Homeless Youth Project” means a Project that was prioritized to receive set-aside Homekey funds because it Packet Page 1388
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
will provide Supportive Services for Youth Assisted Units using a Positive Youth Development (PYD) model and trauma-informed care.
N. “Interim Housing” or “Transitional Housing” means any facility that is primarily intended to provide temporary shelter or lodging for the Target Population, and which does not require occupants to sign leases or occupancy agreements, or to pay any rent, fees, or charges.
O. “Local Public Entity” is defined at Health and Safety Code section 50079, and means any county, city, city and county, the duly constituted governing body of an Indian reservation or rancheria, tribally designated housing entity as defined in Section 4103 of Title 25 of the United States Code and Section 50104.6.5, redevelopment agency organized pursuant to Part 1 (commencing with Section 33000) of Division 24, or housing authority organized pursuant to Part 2 (commencing with Section 34200) of Division 24, and also includes any state agency, public district, or other political subdivision of the state, and any instrumentality thereof, that is authorized to engage in or assist in the development or operation of housing for persons and families of low or moderate income. In addition, and in accord with this Health and Safety Code definition, the term “Local Public Entity” also includes two or more local public entities acting jointly.
P. “Performance Milestones” means the indicators and metrics of progress and performance that are identified as such at Exhibit E of this Agreement. Grantee’s failure to satisfy any one of the Performance Milestones will constitute a breach of this Agreement and will entitle the Department to exercise any and all available remedies, including the recapture of disbursed Grant funds and the cancellation of this Agreement.
Q. “Permanent Housing” means housing, dwellings, or other living accommodations where the landlord does not limit the tenant’s length of tenancy, the landlord does not restrict the tenant’s movements, and the tenant has a lease and is subject to the rights and responsibilities of tenancy.
R. “Program Requirements” means the legal authority and Program materials listed at Paragraph 1.A – G, above.
S. “Project” means a structure or set of structures with common financing, ownership, and management and which provides Permanent Housing, Interim Housing, or Transitional Housing for the Target Population.
T. “Public Entity” is defined in accordance with Health and Safety Code section 50675.1.3, subdivision (a), and means a city, a county, a city and county, and any Packet Page 1389
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
other state, regional, or Local Public Entity, including any council of government, metropolitan planning organization, and regional transportation planning agency designated in Section 29532.1 of the Government Code. For purposes of this Agreement, a “Local Public Entity” is defined in accordance with Health and Safety Code section 50079 and as set forth above.
U. “Scope of Work” or “Work” means the work to be performed by the Grantee to accomplish the Program purpose.
V. “Supportive Services” means social, health, educational, income support, employment, and housing stability services and benefits; coordination of community building and educational activities; individualized needs assessment and case management; and individualized assistance with obtaining services and benefits.
W. “Target Population” means individuals and families who are “homeless” or “at risk of homelessness,” as those terms are defined in Part 578.3 of Title 24 of the Code of Federal Regulations, and who are inherently impacted by or at increased risk for medical diseases or conditions due to the COVID-19 pandemic or other communicable diseases.
X. “TCAC” means the California Tax Credit Allocation Committee.
Y. “Tribal Entity” means an entity that meets any of the following criteria:
i. Meets the definition of Indian tribe under section 4103(13)(B) of title 25 of the United States Code;
ii. Meets the definition of Tribally Designated Housing Entity under section 4103(22) of title 25 of the United States Code;
iii. Is not a federally recognized tribe, but is either:
I. Listed in the petitioner list of the Office of Federal Acknowledgment (OFA) within the Office of the Assistant Secretary – Indian Affairs of the Department of the Interior pursuant to Part 82.1 of Title 25 of the Code of Federal Regulations; or
II. Is an Indian tribe located in the State of California and identified on the contact list maintained by the Native American Heritage Commission for the purpose of consultation pursuant to Government Code section 65352.3.
Z. “Youth Assisted Unit” means an Assisted Unit serving Homeless Youth or Youth at Risk of Homelessness. See also “Assisted Unit.”
Packet Page 1390
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
AA.“Youth at Risk of Homelessness” means a child, youth, or current or former foster youth through the age of 25 who qualifies as “at risk of homelessness” or “homeless” under any of the relevant definitions set forth or identified at Part 578.3 of Title 24 of the Code of Federal Regulations.
3. Eligible Uses
Grantee shall apply the Program Grant funds to one or more of the following uses. All costs in connection with such Eligible Uses must be incurred on or after March 3, 2021, by the Expenditure Deadline for Capital Funds, and by the Expenditure Deadline for Operating Funds, respectively and as applicable. Grantee’s use of the funds and scope of work (“Scope of Work” or “Work”) are specified at Exhibit E of this Agreement.
A. Acquisition or rehabilitation, or acquisition and rehabilitation, of motels, hotels, hostels, or other sites and assets, including apartments or homes, adult residential facilities, residential care facilities for the elderly, manufactured housing, commercial properties, and other buildings with existing uses that could be converted to permanent or interim housing.
B. Master leasing of properties for non-congregate housing.
C. Conversion of units from nonresidential to residential.
D. New construction of dwelling units.
E. The purchase of affordability covenants and restrictions for units.
F. Relocation costs for individuals who are being displaced as a result of the Homekey Project.
G. Capitalized operating subsidies for units purchased, converted, or altered with Homekey Grant funds provided pursuant to Health and Safety Code section 50675.1.3.
4. Rent Standards
Permanent Housing. Rent limits for initial occupancy, and for each subsequent occupancy, of an Assisted Unit shall not exceed 30 percent of that Assisted Unit’s designated income-eligibility level.
Interim Housing, Transitional Housing. No rent shall be charged to the Target Population residents of Interim Housing or Transitional Housing.
Packet Page 1391
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
5. Program Deadlines
For Projects that involve acquisition, the Grantee shall expend any capital expenditure award and the Project escrow must be closed by the Expenditure Deadline for Capital Funds.
For Projects that involve construction and/or rehabilitation, the Grantee shall expend any capital expenditure award by the Expenditure Deadline for Capital Funds and complete any construction or rehabilitation activities within twelve (12) months of the date of the award.
All acquisition-only Projects shall achieve full occupancy of the Assisted Units within ninety (90) calendar days of the Expenditure Deadline for Capital Funds. Otherwise, Projects shall achieve full occupancy of the Assisted Units within ninety (90) calendar days of construction and/or rehabilitation completion. For purposes of this paragraph, “full occupancy” means fully occupied with consideration for an average 10 percent vacancy rate at any given time.
Projects that received a bonus award for expedited occupancy shall achieve full occupancy within eight (8) months of the date of the award. For purposes of this paragraph, “full occupancy” means fully occupied with consideration for an average 10 percent vacancy rate at any given time. No bonus award shall be granted for expedited occupancy if the Grantee requests and the Department approves an extension for full occupancy.
Grantee may ask the Department for an extension to complete construction and/or rehabilitation, where the Grantee clearly demonstrates that the extension is due to circumstances or conditions beyond the Grantee’s control, and that granting the extension will enable the construction and/or rehabilitation to be completed and full occupancy of the Assisted Units to be achieved. Where the Department grants an extension for completion of construction and/or rehabilitation, the Expenditure Deadline for Capital Funds and the deadline for full occupancy of the Assisted Units may also be extended within the constraints of applicable law.
Grantee shall expend any Homekey-funded operating subsidy award by the Expenditure Deadline for Operating Funds.
6. Performance Milestones
Grantee shall complete each of the Performance Milestones set forth at Exhibit E of this Agreement by the date designated for such completion therein (each, a “Milestone Completion Date”). The Performance Milestones shall include, but not be limited to, Packet Page 1392
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
any applicable Expenditure Deadline for Capital Funds, Expenditure Deadline for Operating Funds, occupancy deadline, or expedited occupancy deadline.
Grantee may apply to the Department for an extension of any such Milestone Completion Date. Approval of any such extension request shall be in the Department’s reasonable discretion. In no event will the Department approve an extension request in the absence of Grantee’s demonstration of good cause for said extension, along with Grantee’s reasonable assurances that the extension will not result in Grantee’s failure to meet other Performance Milestones or any Expenditure Deadline under this Agreement.
7. Reporting Requirements
Grantee shall submit an annual Homekey Program and Expenditure Report, a nd comply with all additional reporting requirements, as set forth and specified at Section 601 of the NOFA, all in accordance with the Milestone Completion Date(s) set forth at Exhibit E of this Agreement.
After satisfaction of each Performance Milestone, the Grantee shall promptly report its progress, in writing, to the Department.
Upon the Department’s request and as specified, the Grantee shall provide progress reports in connection with the development plan and any updates to the timeline for completion of the Project. The development plan should include the Project’s completion milestones and any updates or substantial changes.
In addition, the Grantee shall submit to the Department such periodic reports, updates, and information as deemed necessary by the Department to monitor compliance and/or perform Program evaluation. Any requested data or information shall be submitted in electronic format on a form provided by the Department.
Grantee shall, at the request of the Department, report back on any racial equity strategies described in the Homekey Application.
8. Department Contract Coordinator
The Department’s Contract Coordinator for this Agreement is the Deputy Director of the Division of State Financial Assistance, or the Deputy Director’s designee. Unless otherwise informed, Grantee shall mail any notice, report, or other communication required under this Agreement by First-Class Mail to the Department Contract Coordinator at the following address or email to [email protected]:
Packet Page 1393
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT A
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
California Department of Housing and Community Development Attention: Homekey Program – Round 2 (Homekey)
State Grant Management Section
2020 West El Camino Avenue, Suite 400, 95833
P. O. Box 952050
Sacramento, CA 94252-2050
9. Grantee Contract Coordinator
The Grantee Contract Coordinator for this Agreement may coordinate with the State Grant Management Section Manager for the Homekey Program. Unless otherwise informed, the Department shall mail any notice, report, or other communication required under this Agreement by First-Class Mail, or through a commercial courier, to the Grantee Contract Coordinator at the address specified at Exhibit E of this Agreement.
Packet Page 1394
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT B
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
BUDGET DETAIL AND PAYMENT PROVISIONS
1. Budget Detail
Grantee has been awarded the Grant amount set forth in this Agreement.
2. Conditions of Disbursement
The Department will disburse the full amount of the Grant award to the Grantee after this Agreement has been fully executed and after the Department receives the Grantee’s request for funds, with all required supporting documents appended thereto.
The Grantee shall append the following supporting documents to the request for funds, all in form and substance acceptable to the Department:
A. Payee Data Record (STD 204) or Government Agency Taxpayer ID Form, as applicable;
B. An authorizing resolution or set of authorizing resolutions that, in the Department’s reasonable determination, materially comports with the Program Requirements (if the Grantee has not already submitted same); C. Documentary evidence of any eligible costs incurred on or after March 3, 2021 and before the execution of this Agreement;
D. Certification of compliance with California’s prevailing wage law, as well as all applicable federal prevailing wage law;
E. A copy of the Department-approved relocation plan for the Project, or a copy of a Department-issued Certification Regarding Non-Application of Relocation Benefits and Indemnification Agreement, which has been duly executed by the Grantee and approved by the Department;
F. Evidence of the insurance coverages required under the Program and/or a written acknowledgment of self-insured status;
G. Documentary evidence of capacity to provide operating funds for the Project for at least five (5) years;
H. A current title report (dated within 15 days of the request for funds); or for tribal trust land, a title status report (“TSR”) or an attorney’s opinion regarding chain of title and current title status;
Packet Page 1395
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT B
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
I. Any forms, certifications, or documentation required pursuant to Paragraph 5– Additional Conditions Precedent to Disbursement of Exhibit E of this Agreement; and
J. Any other forms, certifications, or documentation deemed necessary by the Department prior to disbursement of Grant funds.
3. Performance
After disbursement of the funds, the Grantee shall meet each Performance Milestone set forth at Exhibit E by the relevant Milestone Completion Date. After satisfaction of each Performance Milestone, the Grantee shall promptly report its progress, in writing, to the Department. Grantee may apply to the Department for an extension of any Milestone Completion Date based on good cause shown and best efforts and assurances from the Recipient for timely completion of the remaining Performance Milestones.
FAILURE TO SATISFY ANY ONE OF THE PERFORMANCE MILESTONES WILL
CONSTITUTE A BREACH OF THIS AGREEMENT AND ENTITLES THE
DEPARTMENT TO MANDATE THE GRANTEE TO RETURN TO THE DEPARTMENT ANY FUNDS DISBURSED; IN ANY SUCH INSTANCE, THE DEPARMENT MAY ALSO
CANCEL THIS AGREEMENT WITHOUT OWING ANY DAMAGES OR OTHER PAYMENT TO GRANTEE.
4. Fiscal Administration
A. Grantee shall either deposit the Grant funds with an escrow company licensed to do business in the State of California and in good standing or deposit the Grant funds in an interest-bearing checking or savings account insured by the federal or state government. All interest earned from the deposit of Grant funds shall be used for eligible Program activities.
B. Any capital expenditure award funds that have not been expended by the Expenditure Deadline for Capital Funds must be returned to the Department with accrued interest. Any operating subsidy award funds that have not been expended by the Expenditure Deadline for Operating Funds must be returned to the Department with accrued interest. Checks shall be made payable to the Department of Housing and Community Development and shall be mailed to the Department at the address below, no later than thirty (30) calendar days after the applicable Expenditure Deadline.
Packet Page 1396
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT B
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
Department of Housing and Community Development
Accounting Division, Suite 300
2020 W. El Camino Avenue
Sacramento, California 95833
5. Duplication of Benefit
Homekey funding is not required to be used as funding of last resort. However, Grantee may not use Homekey funding to cover expenditures that have already been funded through other sources. Expenses that have been or will be reimbursed under any federal program are not eligible uses of Homekey funding.
Packet Page 1397
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
HOMEKEY GENERAL TERMS AND CONDITIONS
1. Effective Date, Term of Agreement, Timing, and Deadlines A. This Agreement, when fully executed by the Department and the Grantee, is effective upon the date of the Department representative’s signature on the STD 213, Standard Agreement (such date, the “Effective Date").
B. This Agreement shall terminate fifteen (15) years after the Effective Date, as stated in Paragraph 2 of the STD 213, Standard Agreement (such date, the “Expiration Date”).
C. Grantee will receive the disbursement of Program funds after satisfying all conditions precedent to such disbursement, as set forth under Paragraph 2 of Exhibit B and, as necessary and applicable, under Paragraph 5 – Additional Conditions Precedent to Disbursement of Exhibit E.
D. Any expenses incurred prior to March 3, 2021, after the Expenditure Deadline for Capital Funds, or after the Expenditure Deadline for Operating Funds, respectively and as applicable, are not eligible for payment under the Program, unless an alternate arrangement is legally permissible and has been approved by the Department in advance and in writing.
E. Grant funds that have not been expended by the applicable Expenditure Deadlines shall revert to the Department in the absence of an alternate arrangement that has been approved by the Department in advance and in writing.
2. Termination for Cause
The Department may terminate this Agreement for cause at any time by giving at least fourteen (14) calendar days’ advance written notice to the Grantee. Upon such termination, Grantee shall return any unexpended funds to the Department within thirty (30) calendar days of the date on the Department’s written notice of termination, unless the Department has approved an alternate arrangement in advance and in writing, as provided below. Such termination will not limit any other remedies that may be available to the Department under this Agreement, at law, or Packet Page 1398
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
in equity. Cause shall consist of Grantee’s breach of, or failure to satisfy, any of the terms or conditions of this Agreement. Cause includes but is not limited to the following:
A. Grantee’s failure to satisfy the conditions precedent to disbursement or to expend Program Grant funds, as specified.
B. Grantee’s failure to timely satisfy each or any of the conditions set forth in these Homekey General Terms and Conditions, the Project-Specific Provisions and Special Terms and Conditions set forth at Exhibit E of this Agreement (including any one of the Performance Milestones), or the award letter.
C. Grantee’s violation of any of the Program Requirements.
D. The Department’s determination of the following:
1) Any material fact or representation, made or furnished to the Department by the Grantee in connection with the Application or the award letter, shall have been untrue or misleading at the time that such fact or representation was made known to the Department, or subsequently becomes untrue or misleading; or
2) Grantee has concealed any material fact from the Department related to the Application or the Project.
E. The Department’s determination that the objectives and requirements of the Homekey Program cannot be met in accordance with applicable timeframes, as memorialized by this Agreement.
In the event of this or any other breach, violation, or default by the Grantee, the Department may give written notice to the Grantee to cure the breach, violation, or default. If the breach, violation, or default is not cured to the Department’s satisfaction within a reasonable time, as determined by the Department in its sole and absolute discretion, then the Department may declare a default under this Agreement and seek any and all remedies that are available under this Agreement, at law, or in equity.
Packet Page 1399
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
3. Cancellation
A. It is mutually understood between the parties that this Agreement may have been written for the mutual benefit of both parties before ascertaining the availability of congressional appropriation of funds to avoid program and fiscal delays that would occur if this Agreement were executed after that determination was made.
B. This Agreement is valid and enforceable only if sufficient funds are made available to the State of California by the United States Government for fiscal years 2021- 2022 through 2025-2026 for CSFRF purposes. In addition, this Agreement is subject to any additional restrictions, limitations, or conditions enacted by the Congress or to any statute enacted by the Congress that may affect the provisions, terms, or funding of this Agreement in any manner.
C. The parties mutually agree that if the Congress does not appropriate sufficient funds for the CSFRF, this Agreement shall be amended to reflect any subsequent reduction in CSFRF funds.
D. The Department may cancel this Agreement, in whole or in part, if (i) sufficient funds are not made available by the United States Government; (ii) Congress enacts any restrictions, limitations, or conditions that impact this Agreement or the funding of this Agreement; or (iii) cancellation is otherwise permitted under state contracting law.
E. To cancel this Agreement pursuant to this paragraph, the Department shall give thirty (30) calendar days’ advance written notice to the Grantee. The Locality shall return any undisbursed portion of its Grant award to the Department within thirty (30) calendar days from the date on the Department’s written notice of cancellation, unless (i) the parties have agreed upon an alternate arrangement in advance and in writing; or (ii) an alternate arrangement is necessary for one or both parties to remain in compliance with ARPA or other applicable law.
4. Eligible Activities
Grant funds awarded to the Grantee shall be applied to the eligible uses set forth at Exhibit A and described in greater detail at Exhibit E. Payment for any cost which is not authorized by this Agreement or which cannot be adequately documented shall be disallowed and must be reimbursed to the Department or its designee.
Packet Page 1400
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
5. Performance Milestones
Grantee shall timely satisfy and complete all Performance Milestones, as identified at Exhibit E of this Agreement.
6. Article XXXIV
Per Health and Safety Code section 37001, subdivision (h)(2), article XXXIV, section 1 of the California Constitution (“Article XXXIV”) is not applicable to development that consists of the acquisition, rehabilitation, reconstruction, alterations work, new construction, or any combination thereof, of lodging facilities or dwelling units using moneys received from CSFRF established by ARPA. As such, Article XXXIV is not applicable to Homekey-funded development, construction, or acquisition.
7. Appraisals
Grantee shall, at the request of the Department, provide an appraisal of any real property or any interest in real property that is acquired with the Grant funds. Any such appraisal shall be prepared in a form, and by a qualified appraiser, acceptable to the Department.
8. Compliance with Prevailing Wage Law
Grantee’s Project is subject to state and federal prevailing wage law. Grantee is urged to seek professional legal advice about prevailing wage law requirements and Grantee’s potential obligations thereunder. Prior to disbursing the Grant funds, the Department will require a certification of compliance with California’s prevailing wage law, as well as all applicable federal prevailing wage law. The certification must verify that prevailing wages have been or will be paid if such payment is required by law, and that labor records will be maintained and made available to any enforcement agency upon request. The certification must be signed by Grantee and its general contractor(s).
9. Environmental Conditions
Grantee shall provide a Phase I Environmental Site Assessment (“ESA”) for the Project, in conformance with ASTM Standard Practice E 1527, evaluating whether the Project is affected by any recognized environmental conditions. If the Phase I ESA discloses evidence of recognized environmental conditions and Grantee desires to proceed with the Project, the Grantee shall provide the Department with a Packet Page 1401
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
Phase II report and any additional reports as required by the Department and in a form acceptable to the Department. Any remediation work shall be subject to Department approval. Grantee shall also provide an asbestos assessment and a lead-based paint report for the Department’s approval if the Project involves rehabilitation or demolition of existing improvements.
10. Insurance
Grantee shall obtain the insurance coverages identified in the NOFA. Grantee shall maintain such insurance coverages for either the term of this Agreement or the term of any required restrictive covenant or regulatory agreement, whichever applicable term is longer. Grantee shall name the State of California and the Department, as well as their respective appointees, officers, agents, and employees, as additional insureds on all such policies. Such policies shall provide for notice to the Department in the event of any lapse of coverage or insurance claim thereunder. Prior to disbursement of any Grant funds, Grantee shall provide evidence satisfactory to the Department of its compliance with these insurance requirements.
If Grantee is self-insured, in whole or in part, as to any of the required types and levels of coverage, the Grantee shall provide the Department with a written acknowledgment of its self-insured status prior to disbursement of any Grant funds.
If the Grantee abandons its self-insured status at any time after execution of this Agreement, the Grantee shall immediately notify the Department, and shall promptly comply with the insurance coverage requirements under the Program.
11. Operating Funds
Grantee shall demonstrate its capacity to provide five (5) years of operating funds for the Project. As set forth at Exhibit B of this Agreement, Grantee shall provide documentary evidence of such capacity prior to disbursement of any Grant funds.
12. Relocation
Grantee must comply with all applicable federal, state, and local relocation law.
Pursuant to relocation law, a Grantee must have a relocation plan prior to proceeding with any phase of a Project or other activity that will result in the displacement of persons, businesses, or farm operations. To ensure that displaced persons and entities do not suffer a disproportionate impact as a result of Projects which benefit the public, all notices to vacate and relocation services must be provided to them in accordance with applicable law. In addition, before the Homekey Packet Page 1402
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
award will be disbursed, Grantee must have either:
A. A Department-approved relocation plan; or
B. A Department-issued Certification Regarding Non-Application of Relocation Benefits and Indemnification Agreement, which has been duly executed by the Grantee and approved by the Department.
13. One-for-One Replacement of Assisted Units
One-for-one replacement of Assisted Units is permissible if approved in advance by the Department per Section 301 of the NOFA, after the Department’s determination, in its sole and absolute discretion, that such replacement will not reduce the inventory of units that are already available at affordable rents to households that are at or under 30 percent AMI.
.
14. Site Control
Unless and except as otherwise expressly approved in writing by the Department or provided at Exhibit E to this Agreement, the Grantee shall have control of the property at all times, and such control shall not be contingent on the approval of any other party. The status and nature of the Grantee's title and interest in the property must be acceptable to the Department. Site control may be evidenced by one of the following:
A. Fee title.
B. A leasehold interest on the property with provisions that enable the lessee to make improvements on and encumber the property provided that the terms and conditions of any proposed lease shall permit compliance with, and satisfaction of, all program objectives and requirements, including, without limitation, those set forth in this Agreement. If the Grantee’s interest in the property is a leasehold, and the lessee and the lessor are affiliated or related parties, then the Department may require that both the lessee and the lessor must execute this Agreement.
C. An executed disposition and development agreement, or irrevocable offer of dedication to a public agency.
Packet Page 1403
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
D. A sales contract, or other enforceable agreement for the acquisition of the property. If this form of evidence was relied upon at the time of Application, the Department may impose additional Performance Milestones (e.g., presentation of additional or supplemental evidence of eventual site control closer to any projected close of escrow).
E. A letter of intent, executed by a sufficiently authorized signatory of the Grantee, that expressly represents to the Department, without condition or reservation, that, upon successful application, the Grantee shall purchase or otherwise acquire a sufficient legal interest in the property to accomplish the purpose of the award. The letter of intent must also be duly acknowledged by the party selling or otherwise conveying an interest in the subject property to the Grantee. If this form of evidence was relied upon at the time of Application, the Department may impose additional Performance Milestones (e.g., presentation of additional or supplemental evidence of eventual site control closer to any projected close of escrow).
F. Other evidence of site control that gives the Department assurance (equivalent to A-E above) that the Grantee will be able to complete the Project in a timely manner and in accordance with the Program’s objectives and requirements, including, without limitation, those set forth or referenced in this Agreement.
15. Adaptability and Accessibility
The Project shall comply with all applicable federal, state and local laws regarding adaptability and accessibility, including, without limitation, the requirements set forth in the NOFA.
16. Title Status and Reports
Grantee shall provide a current title report for the real property on which the Project is located. If Grantee’s interest in the property is leasehold, then Grantee shall provide a current title report for the leasehold interest and the fee interest. For tribal trust land, Grantee shall provide a TSR or an attorney’s opinion regarding chain of title and current title status. As set forth and specified at Exhibit B of this Agreement, Grantee shall provide such title report or documentation of title status prior to disbursement of any Homekey Grant funds.
Packet Page 1404
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
17. Title Insurance
Grantee shall provide evidence of title insurance and an ALTA As-Built Survey that are acceptable to the Department. The condition of title, the insurer, the liability amount, the form of policy, and the endorsements shall be subject to Department approval. The policy shall insure that Grantee holds good and marketable title (fee simple or leasehold).
18. Property Management Plan
Grantee shall submit a property management plan to the Department for its review and approval. Such management plan shall be consistent with any representations made in the Application, and it shall meet the Program Requirements (e.g., include the management, maintenance, and repair information required by the MHP Guidelines).
19. Supportive Services Plan
Grantee shall submit a Supportive Services plan to the Department for its review and approval. Such Supportive Services plan shall be consistent with any representations made in the Application, and it shall meet the Program Requirements (e.g., provide for delivery of housing stability services and benefits).
20. Compliance with Title VI of the Civil Rights Act of 1964 Grantee and any of its contractors, subcontractors, successors, transferees, and assignees shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the U.S. Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this Agreement. Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by the U.S. Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this Agreement.
Packet Page 1405
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
21. Nondiscrimination
Statutes and regulations prohibiting discrimination are applicable to this Agreement and include, without limitation, the following:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and the U.S.
Department of the Treasury’s implementing regulations at 31 CFR Part 22; B. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.);
C. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); D. The Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101 et seq.); E. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. § 12101 et seq.); and
F. The State of California nondiscrimination statutes, regulations, and standards set forth and identified in the NOFA and at Exhibit C of this Agreement.
Grantee shall adopt a written nondiscrimination policy requiring that no person shall, on the grounds of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, age, medical condition, genetic information, citizenship, primary language, immigration status (except where explicitly prohibited by federal law), arbitrary characteristics, and all other classes of individuals protected from discrimination under federal or state housing laws, individuals perceived to be a member of any of the preceding classes, or any individual or person associated with any of the preceding classes, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity funded in whole or in part with Homekey funds.
Packet Page 1406
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
22. Affirmative Fair Housing Marketing Plan and Fair Housing Compliance Grantee shall develop and implement an affirmative fair housing marketing plan that is satisfactory to the Department. Appropriate aspects of the initial plan shall be incorporated into the ongoing management plan to ensure positive outreach and informational efforts to those who are least likely to know about and apply for Interim Housing, Transitional Housing, or Permanent Housing. Grantee is encouraged to refer to the guidelines for Affirmative Fair Housing Marketing Plans issued by the U.S. Department of Housing and Urban Development (“HUD”). Grantee shall comply with all applicable state and federal fair housing laws.
23. Grantee Acknowledgment of the Pet Friendly Housing Act of 2017 By executing this Agreement, Grantee acknowledges that the Pet Friendly Housing Act of 2017 (Health & Saf. Code, § 50466) requires each housing development, if it is financed on or after January 1, 2018 pursuant to Division 31 of the Health and Safety Code, to authorize a resident of the housing development to own or otherwise maintain one or more common household pets within the resident’s dwelling unit, subject to applicable state laws and local governmental ordinances related to public health, animal control, and animal anticruelty.
24. Final Certificate of Occupancy
Grantee shall provide a final certificate of occupancy (or an equivalent form of occupancy certification or approval) issued by the local agency having jurisdiction over such certificates.
25. Occupancy
The Assisted Units shall be occupied by the Target Population, and such units shall be in decent, safe, and sanitary condition at the time of their occupancy. In addition, the Grantee shall certify, upon occupancy, that it will employ the core components of Housing First (as set forth at Welfare and Institutions Code section 8255) as part of its property management plan and Supportive Services plan.
26. Tenant Selection
Referrals to Assisted Units shall be made through the local Coordinated Entry System (“CES”), or another comparable prioritization system based on greatest need shall be used. All referral protocols for Assisted Units shall be developed in Packet Page 1407
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
collaboration with the local Continuum of Care and implemented consistent with the Program Requirements.
27. Participation in Statewide HDIS/HMIS
Grantee shall support Continuum of Care participation in the statewide Homeless Data Integration System (“HDIS”). As required by and in accordance with state and federal law (including all applicable privacy law), Grantee shall further disclose relevant data to the local Homeless Management Information System (“HMIS”) and comparable data collection systems.
28. Restrictive Covenants and Regulatory Agreements
A restrictive covenant, regulatory agreement, or similar use restriction shall be recorded against the Project real property, depending on the Project type. For Interim Housing or Transitional Housing Projects that will not result in Permanent Housing, the Department will prepare, and the Public Entity shall cause, a 15-year restrictive covenant to be recorded against the Project real property. For Interim Housing or Transitional Housing Projects that will ultimately result in Permanent Housing, the Public Entity or Tribal Entity shall prepare and cause a 15-year restrictive covenant to be recorded against the Project real property. For Permanent Housing Projects, the Public Entity or Tribal Entity shall prepare and cause a 55-year regulatory agreement to be recorded against the Project real property. For Permanent Housing Projects located on tribal trust land, a 50-year use restriction shall be recorded against the Project real property.
All use restrictions shall require integration of the Target Population within all entrances, common areas, and buildings that comprise the Project.
All use restrictions shall include occupancy and rent restrictions that maintain the Project’s accessibility to the Target Population over the full term of the use restriction.
All use restrictions are subject to the advance written approval of the Department, and shall be acceptable to the Department in form, substance, and priority. Projectspecific requirements and deadlines are set forth at Exhibit E of this Agreement.
29. Restrictions on Sales, Transfers, and Encumbrances
Grantee shall not, for the duration of this Agreement, sell, assign, transfer, or convey Packet Page 1408
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
the Project, or any interest therein or portion thereof, without the express prior written approval of the Department.
30. Retention, Inspection, and Audit of Records
Grantee is responsible for maintaining records which fully disclose the activities funded by the Grant. Grantee shall retain all records for a period of five (5) years after the expiration of this Agreement, unless a longer retention period is stipulated.
If any litigation, claim, negotiation, audit, monitoring, inspection or other action commences during this required retention period, all records must be retained until a full and final resolution of the action.
The Department, as well as its appointees, employees, agents, and delegatees, shall have the right to review, obtain, and copy all records pertaining to performance under this Agreement. The U.S. Department of the Treasury and any authorized oversight body or representative, including, without limitation, the Treasury’s Office of Inspector General, the Government Accountability Office, and the Pandemic Relief Accountability Committee, shall have the right of access to such records in order to conduct audits or other investigations. Grantee shall provide any relevant information requested, and shall permit access to its premises, upon reasonable notice and during normal business hours, for the purpose of interviewing employees and inspecting and copying books, records, accounts, and other relevant material.
At any time during the term of this Agreement, the Department may perform or cause to be performed a financial audit of any and all phases of the Project. At the Department’s request, the Grantee shall provide, at its own expense, a financial audit prepared by a certified public accountant. The audit shall be performed by a qualified state, local, independent, or Department auditor. Where an independent auditor is engaged, the audit services agreement shall include a clause which permits the Department to have access to the independent auditor’s relevant papers, records, and work product.
If there are audit findings, the Grantee shall submit a detailed response to the Department for each audit finding. The Department will review the response. If the Department determines, in its sole and absolute discretion, that the response is satisfactory, the Department will conclude the audit process and notify the Grantee in writing. If the Department determines, in its sole and absolute discretion, that the response is not satisfactory, the Department will contact the Grantee, in writing, and explain the action required to cure any audit deficiencies. Such action could include the repayment of ineligible costs or other remediation.
Packet Page 1409
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
If so, directed by the Department upon the termination or expiration of this Agreement, the Grantee shall deliver all records, accounts, documentation, and other materials that are relevant to this Agreement to the Department as depository.
31. Site Inspection
The Department reserves the right, upon reasonable notice, to inspect the Project to determine whether it meets the Program Requirements. If the Department reasonably determines that the site is not acceptable for the Project in accordance with the Program Requirements, the Department reserves the right to rescind the award and the Grant. Nothing in this paragraph is intended to create or imply any obligation of the Department to inspect the Project.
32. Compliance with State and Federal Laws, Rules, Guidelines, and Regulations Grantee agrees to comply with all state and federal laws, rules, guidelines, and regulations that are applicable to the Project, including those that pertain to construction, health and safety, labor, fair employment practices, and equal opportunity.
33. Updated Information
If there is any change in the information that has been provided to the Department, Grantee shall promptly provide the Department with updated documentation (e.g., updated sources and uses). All changes shall be subject to Department approval. In addition, Grantee shall promptly notify the Department, in writing, of any changes in Grantee or Co-Grantee organization, authorization, or capacity.
34. Survival of Obligations
The obligations of the Grantee, as set forth in this Agreement, shall survive the termination or expiration of this Agreement.
35. Litigation
Grantee shall notify the Department immediately of any claim or action undertaken by or against it which affects or may affect this Agreement or the Department and shall take such action with respect to the claim or action as is consistent with the terms of this Agreement, the Program Requirements, the interests of the Packet Page 1410
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
Department, and the objectives of the Homekey Program.
36. Entire Agreement; Severability
This Agreement constitutes the entire agreement between the Grantee and the Department. All prior representations, statements, negotiations and undertakings with regard to the subject matter hereof are superseded hereby. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remaining terms and provisions of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
37. Modification or Waiver under AB 1010
The Department reserves the right to waive or modify any requirement under this Agreement, or any Program Requirement, as authorized by and in accordance with Assembly Bill No. 1010 (Chapter 660, Statutes of 2019) (“AB 1010”), which is codified at Health and Safety Code section 50406, subdivision (p).
38. Waivers
No waiver of any breach, violation, or default under this Agreement shall be held to be a waiver of any other or subsequent breach or violation thereof or default thereunder. The Department’s failure, at any time, to enforce the provisions of this Agreement or to require the Grantee’s performance under this Agreement shall in no way be construed as a waiver of such provisions or performance, and it shall not affect the validity of this Agreement or the Department’s right to enforce this Agreement.
39. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
This Agreement is subject to the administrative requirements, cost principles, and audit requirements for federal awards to non-federal entities, which are set forth at 2 Code of Federal Regulations part 200.
Packet Page 1411
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
40. Single Audit Requirements
Grantee is responsible for complying, as necessary, with the Single Audit Act and its implementing regulation at 2 Code of Federal Regulations part 200, subpart F regarding audit requirements.
41. Disputes
In the event of any conflict between this Agreement and any Grantee documents or side agreements, this Agreement and the Program Requirements shall prevail, are applicable, and shall be enforceable by the Department even if the Department provided review or approval of such documents and side agreements.
42. Consent
The parties agree that wherever the consent or approval of the Department or Grantee is required under this Agreement, such consent or approval shall not be unreasonably withheld, conditioned, or delayed, unless the same is specified as being in that party’s sole and absolute discretion, or other words of similar import.
43. Grantee Liability
Grantee shall remain liable to the Department for performance under this Standard Agreement and compliance with all Program Requirements regardless of any Department-approved transfer or assignment of interest, or of any designation of a third party for the undertaking of all or any part of the Scope of Work. Likewise, each Co-Grantee shall remain jointly and severally liable to the Department for performance under this Standard Agreement and compliance with all Program Requirements regardless of any Department-approved transfer or assignment of interest; any designation of a third party for the undertaking of all or any part of the Scope of Work; or the Co-Grantees’ identification of a Designated Payee.
44. Defense and Indemnification
Grantee agrees to defend, indemnify, and hold harmless the Department, and its appointees, agents, employees, and officers, from any losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys’ fees), which may arise in connection with Grantee’s use of the Grant funds and performance under this Agreement. If any attorney, including the Packet Page 1412
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-14786
EXHIBIT D
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 6-17-2022
Prep. Date: 08-10-2022
California Attorney General, is engaged by the Department to enforce, construe, or defend any provision of this paragraph, with or without the filing of any legal action or proceeding, Grantee shall, individually or jointly, pay to the Department, immediately upon demand, the amount of all attorneys’ fees and costs incurred by the Department in connection therewith.
45. Time Is of the Essence
Time is of the essence under this Agreement, and in the performance of every term, covenant, and obligation contained herein.
Packet Page 1413
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
PROJECT-SPECIFIC PROVISIONS AND SPECIAL TERMS AND CONDITIONS Permanent Housing
A. PROJECT-SPECIFIC PROVISIONS
1. Permanent Housing – Award, Disbursement, and Eligible Use(s). Grantee received Homekey Program award letter on July 25, 2022 (the “Award Date”).
Pursuant to that award letter, the Grantee is receiving Homekey Grant funds in the amount of $36,916,293.00 (the “Award”). The Designated Payee of these funds is Allied 39802 Cedar LLC. Grantee will use the funds to provide Permanent Housing for the Target Population. Specifically, the Grantee will apply these funds towards the following eligible use(s):
Project Name: Cedar Community Apartments
Street Address: 39802 Cedar Boulevard,
Newark, CA 94560
County of Alameda
Assessor Parcel Number (APN):
901-0195-037, 901-0195-038
# of
Bedrooms Units
NonHomekey
Units
HomekeyAssisted
Units
AMI Income
Limit Restriction to Subset of Target Population
Manager
Unit 1 0 1 N/A
0 (Studio) 23 0 23 30% Chronically Homeless
0 (Studio) 34 0 34 30% N/A
1-Bedroom 27 0 27 30% Chronically Homeless
1-Bedroom 11 0 11 30% N/A
2-Bedroom 10 0 10 30% Chronically Homeless
2-Bedroom 19 0 19 30% N/A
Totals: 125 0 125
Packet Page 1414
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
a. Acquisition and rehabilitation of a hotel to provide Permanent Housing for the Target Population.
b. Capitalization of an operating subsidy for the Assisted Units.
Grantee’s Award includes $33,145,673.00 for capital expenditures and $3,770,620.00 for operating funds. The Expenditure Deadline for Capital Funds is set forth herein as a Milestone Completion Date. The Expenditure Deadline for Operating Funds is set forth herein as a Milestone Completion Date.
Grantee will receive additional funds in the amount of $1,240,000.00 (the “Bonus Award”) if the Project’s Assisted Units achieve full occupancy (with consideration for an average of 10 percent vacancy) within eight (8) months of the Award Date. The occupancy deadline in connection with Grantee’s Bonus Award is set forth herein as a Milestone Completion Date. The Department will not disburse the Bonus Award until it receives documentary evidence, in form and substance reasonably satisfactory to the Department, that the Milestone Completion Date has been met.
Grantee shall only use such Bonus Award for its incurred or prospective operating costs for the Project. If Grantee duly satisfies all requirements and conditions relative to the Bonus Award, Grantee’s total award amount will be $38,156,293.00 (the “Total Award Amount”).
2. Project Narrative. Grantee is acquiring a hotel located at 39802 Cedar Boulevard, Newark, CA that will include 124 units of permanent housing for the target populations of persons experiencing chronic homelessness or at-risk of homelessness. Sixty (60) units will be occupied by the chronically homeless population, and sixty-four (64) units will be occupied by persons at-risk of homelessness. The project is within a half-mile of a public transit station, grocery store, health facility, and pharmacy. Supportive services will be provided by Abode Services, Alameda County Health Care Services Agency, and the Veterans Affairs Health Care System.
The hotel was constructed in 2000 and underwent interior rehabilitation in 2015; due to the relatively recent construction and rehabilitation, and overall good condition of the property, there will be minimal rehabilitation to the units. Rehabilitation will focus on converting the operations of the building from a hotel to a permanent supportive housing site, including converting the lobby, breakfast nook, exercise room, and office area into property management and supportive services offices, a community room, and mail boxes, among other uses. Exterior rehabilitation will focus on converting unneeded parking spaces and the pool area into community space for a Packet Page 1415
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
children's play area, dog park, and a sport court. Site security and safety will be enhanced by the installation of a perimeter fence, vehicle and pedestrian access gate, key system, and security cameras.
Obligation to Serve Subsets of the Target Population. Grantee shall ensure that at least 48 percent of the Project’s Assisted Units are restricted to occupancy by the Chronically Homeless.
3. Scope of Work. Grantee will complete building interior upgrades including converting the lobby, breakfast nook, exercise room, and office area from their hotel focused use to a property management and resident services use. The conversion will also create a community room and mail boxes. Exterior upgrades will include adding perimeter fencing, vehicle and pedestrian access gates, a key card access system, and a security camera system in each building and around the property.
Community amenity upgrades will include converting unneeded parking spaces and the pool area into community open space including a children’s play area, dog run, hard-scaped open space area, and a sport court.
On-site supportive services will be provided by Abode Services, Alameda County Health Care Services Agency, and the Veterans Affairs Health Care System.
Supportive services will include, but are not limited to:
a. Case management – Case management staff will assist tenants in developing goals and working collaboratively with tenants on setting attainable goals that will inform the service plan. Case management services will support the tenant on achieving self-sufficiency. Tenants will also be connected to other community service providers as necessary.
b. Behavioral health services – Services staff will refer tenants to behavioral health support as needed. Staff will also facilitate monthly groups focused on mental health and wellness for tenants. The groups will include, but are not limited to, art therapy, women/men process groups, trauma recovery groups, and other groups to be determined with input from tenants. Tenants will also provide input on other community activities that would benefit the overall wellness of the community.
c. Physical health services – Tenants will receive support in scheduling appointments, traveling to appointments, and maintaining health care benefits. Services staff will collaborate with medical providers as needed.
Packet Page 1416
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
d. Assistance obtaining benefits and essential documentation – Tenants will receive support in accessing benefits including Supplemental Nutrition Assistance Program (SNAP), CalFresh, veteran’s benefits/assistance, inhome support services, or any other assistance program. Services staff will collaborate closely with local agencies to provide comprehensive access to benefits and services for residents. Weekly information sessions will also be hosted to provide awareness of available benefits and services during the first year of occupancy and quarterly thereafter.
e. Education and employment services – Monthly workshops will be provided to support tenants or household members who are pursuing higher education, and services staff will help research scholarship opportunities, provide application support, and coordinate with local colleges and universities to provide tours and on-site information sessions. Tenants will also have access to employment placement and training, including assistance in preparing a resume, developing interpersonal skills, and interviewing. f. Other services, such as housing retention skills, legal assistance, family connection services, etc. – Goal of services will be to promote self-sufficiency through weekly life skills workshops that focus on promoting health and wellness, including healthy cooking, financial management and budgeting, and housekeeping. Residents will be engaged early by service staff to identify goals and created individualized service plans to identify goals in areas including family reunification, domestic violence support, legal assistance and/or family law services, and any other identified service goals residents may have.
g. Food pantry and resources – Abode services will work will local food banks to procure items for the site and have a weekly food distribution. Additionally, an inventory will be created with donations of perishable and non-perishable items in the event of a food emergency.
Case manager ratio is 20:1 for persons experiencing chronic homelessness and 40:1 for persons at-risk of homelessness. Supportive services staffing will include:
a. Clinical Case Manager (2 FTE, on-site)
b. Resident Service Coordinator (1 FTE, on-site)
c. Wellness Specialist (1 FTE, on-site)
Packet Page 1417
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
d. Program Coordinator (1 FTE, on-site)
Supportive services outcomes include:
a. Ninety percent of tenants will remain housed during their first year of tenancy. b. Seventy percent of tenants will increase their income above $850 per month or maintain their current income above that level.
c. Ninety percent of tenants will be connected to medical services and reduce unnecessary use of emergency and acute services.
4. Grantee Contract Coordinator.
Authorized Representative Name: Steven Turner
Authorized Representative Title: Community Development Director Entity Name: City of Newark
Address: 37101 Newark Boulevard, Newark, CA
94560
Telephone No.: (510) 578-4330
E-Mail Address: [email protected]
Authorized Representative Name: Jonathan White
Authorized Representative Title: Chief Real Estate Officer Entity Name: Allied Housing, Inc.
Address: 40849 Fremont Boulevard, Fremont, CA
94538
Telephone No.: (408) 951-1851
E-Mail Address: [email protected]
Authorized Representative Name: Jonathan White
Packet Page 1418
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
Authorized Representative Title: Chief Real Estate Officer Entity Name: Allied 39802 Cedar LLC
Address: 40849 Fremont Boulevard, Fremont, CA
94538
Telephone No.: (408) 951-1851
E-Mail Address: [email protected]
5. Additional Conditions Precedent to Disbursement.
a. Grantee will submit National Environmental Policy Act (NEPA) approval documentation for HOME Investment Partnership Program funds and United States Department of Housing and Urban Development Housing Choice Vouchers.
b. Allied Housing, Inc. must submit a legally sufficient resolution, as determined by the Department in its sole and reasonable discretion, from its Board of Director’s ratifying the resolution number 470 of its Executive Committee in its capacity as sole member manager of Allied 39802 Cedar LLC dated August 9, 2022.
6. Budget Detail.
Grantee is obligated to cover the Project’s development, operations, and service costs for five (5) years. Grantee will satisfy this obligation by leveraging funding commitments, or other reasonable funding assurances, from the following funding sources:
a. Homekey award dated July 25, 2022, for a funding commitment of $38,156,293.00 for capital expenses and program operations. b. HOME Consortium American Rescue Plan Act (ARPA) allocation from the Alameda County Community Development Agency, in a letter dated January 18, 2022, for a funding commitment of $4,000,000.00 for capital expenditures. c. American Rescue Plan Act (ARPA) and Affordable Housing Fund allocations from the City of Newark, in a resolution adopted January 13, 2022, for a funding commitment of $6,000,000.00 for capital expenditures.
Packet Page 1419
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
d. Bay’s Future Fund (BFF) allocation from the Corporation for Supportive Housing (CSH), dated May 19, 2022, for a funding commitment of $655,000.00 in the form of a 4 percent interest loan with a 1.5 percent origination fee. The BFF allocation is a reservation of funds and still subject to CSH’s credit committee approval; for this reason, Allied Housing, Inc. has committed $625,000.00 in the form of a 3 year fully amortized loan at 3 percent simple interest, dated May 19, 2022, in the event the BFF allocation is not secured.
Grantee shall maintain the ongoing affordability of the Project by leveraging the following non-Homekey sources of rental or operating subsidies:
a. Supplemental Capitalized Operating Subsidy Reserve commitment from Allied Housing, Inc., in a letter dated January 28, 2022, for $2,177,889.00. b. U.S. Department of Housing and Urban Development Veterans Affairs Supportive Housing (HUD-VASH) and non-HUD-VASH Project-Based Vouchers allocation from the Housing Authority of the County of Alameda, dated January 14, 2022, for a commitment of twelve (12) HUD-VASH ProjectBased Vouchers and forty-eight (48) non-HUD-VASH Project-Based Vouchers over 20 years, together valued at $4,154,044 over 4 years.
7. Performance Milestones.
Performance Milestones Milestone Completion Date
The Project’s escrow must be closed,
and the capital funds must be fully
expended.
March 25, 2023
All Homekey-funded construction or
rehabilitation must be completed.
July 25, 2023
Full occupancy by the Target
Population must be accomplished in
accordance with the descriptions and
representations set forth in the
Application.
March 25, 2023
Packet Page 1420
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
Performance Milestones Milestone Completion Date
A copy of Grantee’s written
nondiscrimination policy (in
accordance with Exhibit D of this
Agreement) must be submitted to the
Department.
March 25, 2023
A [DRAFT] Regulatory Agreement or
other use restriction must be submitted
to the Department for review and
approval.
March 25, 2023
A Department-approved Regulatory
Agreement or other use restriction
must be recorded against the Project
real property as specified and
described in the NOFA and this
Agreement.
July 25, 2023
Homekey-funded operating funds must
be fully expended.
June 30, 2026
A Homekey Program and Expenditure
Report must be submitted to the
Department as specified and described
in the NOFA.
January 31 – Each year for five (5) years
following the Effective Date of this
Agreement
B. SPECIAL TERMS AND CONDITIONS
The following Special Terms and Conditions are applicable to this Project and shall control notwithstanding anything to the contrary herein:
1. Use Restriction. The state, regional, local, or tribal Grantee shall ensure that the Project is duly encumbered with a 55-year covenant, declaration, regulatory agreement, or similar use restriction (the “Regulatory Agreement”) that (a) is recorded in first position against the Project for the benefit of the state, regional, local, or tribal Grantee; (b) restricts the use, operation, occupancy, and affordability of the Project in accordance with this Agreement and the applicable Program Packet Page 1421
City of Newark, Allied Housing, Inc., Allied 39802 Cedar LLC 22-HK-17486
EXHIBIT E
Homekey Program – Round 2 (Homekey)
NOFA Date: September 9, 2021 (amended 1/14/2022, 5/5/2022) Project Name: Cedar Community Apartments
Approved Date: 06-17-2022
Prep. Date: 08-10-2022
Requirements; (c) duly names the Department as a third-party beneficiary with the right and privilege, but not the obligation, of enforcement thereof; and (d) is otherwise in form and substance acceptable to the Department.
The Regulatory Agreement must be recorded against the real property of the Project site by the Milestone Completion Date set forth herein. The Grantee shall obtain the Department’s express written approval of the Regulatory Agreement prior to the recordation of the same. After recordation, the Grantee shall promptly provide the Department with a conformed copy of the recorded Regulatory Agreement.
Unless otherwise authorized by the prior and express written approval of the Department, the Regulatory Agreement must be recorded as a lien against the Project in first position, and must remain in first position, over all other Project agreements, covenants, or other matters of record on the real property for the period of affordability required by the Program.
2. Grantee has committed to a 55-year use restriction for the Project and has waived any potential accommodation by the Department to increase income limits, as described in the NOFA, for 100 percent of the Assisted Units.
3. Grantee shall submit a complete supportive services plan, including a property management plan, for the Project and such plan must be approved by the Department in its sole and reasonable discretion, prior to occupancy.
Packet Page 1422
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING LOAN AGREEMENT AND
ASSOCIATED AGREEMENTS BY AND BETWEEN THE CITY
AND ALLIED 39802 CEDAR LLC, FOR THE CEDAR
COMMUNITY APARTMENTS HOMEKEY PROJECT
WHEREAS, the City of Newark (“City”) and Allied Housing, Inc. (“Allied”) have jointly applied for and have received approval of a Homekey grant from the California Department of Housing and Community Development (“HCD”) in the amount of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) (the “Homekey Grant”) to finance the acquisition and conversion of an existing hotel property located at 39802 Cedar Boulevard, Newark, California (the "Property") into an affordable supportive housing project for chronically homeless persons and persons at risk of homelessness (the “Project”); and
WHEREAS, the City Council has authorized the City to enter a Standard Agreement by and among HCD, City, Allied and Allied 39802 Cedar, LLC (“Developer”), Agreement Number 22 HK-17486, which sets forth the requirements imposed in connection with the Homekey Grant (the “Project Homekey Agreement”); and
WHEREAS, the City desires for Developer to acquire the Property and convert it into a one hundred twenty-five (125) unit multifamily residential apartment complex consisting of fifty-seven (57) studio units, thirty-eight (38) one-bedroom units, and thirty (30) two-bedroom units, and for all of the units (except for one on-site manager’s unit) to be rented at an affordable housing cost to extremely-low income households; and
WHEREAS, Developer has requested the City to provide a loan to Developer to assist in the acquisition and development of the Project through City’s loan of the amount of the Homekey Grant, plus an additional Six Million Dollars ($6,000,000) in funds from the City’s Housing Impact Fee Fund and American Rescue Plan Act (ARPA) Recovery Fund (the “City Funds”), for a total of Forty-Four Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($44,156,293.00); and
WHEREAS, City, Allied and Developer have negotiated and prepared a “Loan Agreement” which would provide for the City’s loan of the City Funds and the Homekey Grant funds to the Developer; and
WHEREAS, pursuant to the Loan Agreement the Developer would execute a Secured Promissory Note (“Promissory Note”) promising to repay the City Loan, and a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (“Deed of Trust”) securing the Promissory Note; and
WHEREAS, pursuant to the Loan Agreement the City and Developer would execute an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (“Regulatory Agreement”) that would require all of the units (except for one on-site manager’s unit) to be rented at an affordable housing cost to extremely-low income households; and Packet Page 1423
WHEREAS, pursuant to the Loan Agreement the City, Developer and the County of Alameda (“County”) would execute a Subordination Agreement that would establish the order of lien priority between the Regulatory Agreements and Deeds of Trust of the City and County, and provide each party the right to cure defaults of the other party’s agreements; and WHEREAS, the Regulatory Agreement requires a tenant selection priority to be provided to persons who live or work in the City, to the extent such priority is permitted by applicable fair housing laws and Project funding sources; and
WHEREAS, the City is committed to enacting policies and programs that affirmatively further fair housing (“AFFH”), and the City’s strong commitment to AFFH is reflected in the City’s affordable housing workplan, adopted by the City Council in 2021; and WHEREAS, the Project would provide affordable housing opportunities close to excellent schools and local services, in an area identified as high opportunity by the California Tax Credit Allocation Committee in accordance with the HCD AFFH Data Resources and Mapping Tool, and the area has a higher median income than other areas in the City and has an ethnically diverse population; and
WHEREAS, the Project’s unit mix and affordability levels, coupled with the City live/work tenant selection priority, would affirmatively further fair housing by enhancing the area’s socioeconomic diversity and providing a high quality housing project in an area of the highest opportunity, resulting in less segregation along socioeconomic lines in the City and in the surrounding tri-city area; and
WHEREAS, housing projects that are funded by Round 2 of Project Homekey are exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to Health and Safety Code Section 50675.1.4, provided that certain statutory prerequisites are satisfied; and
WHEREAS, the City has determined that the statutory prerequisites to the CEQA exemption set forth in Health and Safety Code Section 50675.1.4 have been satisfied with respect to the Project; and
WHEREAS, the Project consists of the minor alteration of existing private structures involving negligible or no expansion of existing or former use, and is therefore also exempt from the requirements of CEQA pursuant to Section 15301 of the CEQA Guidelines; WHEREAS, the County Housing and Community Development Department has made a Finding of No Significant Impact that determines that the Project will have no significant impact on the human environment, and that an Environmental Impact Statement under the National Environmental Policy Act of 1969 (NEPA) is not required.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark as follows:
1. The City Council finds that the foregoing Recitals are true and correct and are incorporated into this Resolution.
Packet Page 1424
2. The City Council hereby approves the Loan Agreement, Promissory Note, Deed of Trust, Regulatory Agreement and Subordination Agreement, substantially in the form presented to the City Council, with such non-material changes as may be approved by the City Community Development Director and the City Attorney.
3. The City Council authorizes the City Manager (or his designee), on behalf of the City, to execute the Loan Agreement, Regulatory Agreement and Subordination Agreement, and to take such other actions as are necessary to carry out the City’s obligations under the Loan Agreement, Regulatory Agreement and Subordination Agreement, including the execution of escrow instructions and closing documents.
4. The City Council finds that the Project is exempt from CEQA pursuant to Health and Safety Code Section 50675.1.4 and Section 15301 of the CEQA Guidelines. City staff is authorized and directed to file a Notice of Exemption from CEQA with the California Office of Planning and Research and the County Clerk of the County of Alameda in the manner specified in Subdivisions (b) and (c) of Section 21152 of the Public Resources Code. Passed and adopted by the City Council of the City of Newark at a meeting duly held on the 22nd day of September, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
5192081.1
Packet Page 1425
1 LOAN AGREEMENT
by and between
THE CITY OF NEWARK,
and
ALLIED 39802 CEDAR, LLC
(Cedar Community Apartments)
Attachment B
Exhibit 1
Packet Page 1426
2 LOAN AGREEMENT
(Cedar Community Apartments)
THIS LOAN AGREEMENT (this “Agreement”) is entered into effective as of _________________, 2022 (“Effective Date”) by and between the City of Newark, a California municipal corporation (“City”), and Allied 39802 Cedar, LLC, a California limited liability company (“Developer”). City and Developer are hereinafter collectively referred to as the “Parties.”
RECITALS
A. Developer and City have jointly applied for and have received approval of a Homekey grant from the State of California in the amount of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) (the “Homekey Grant”) to finance the acquisition and conversion of an existing hotel property located at 39802 Cedar Boulevard, Newark, California (the "Property") into an affordable supportive housing project for chronically homeless persons and persons at risk of homelessness. Developer and City have entered into a Standard Agreement with the California Department of Housing and Community Development, dated as of _____________________, 2022, which sets forth the requirements imposed in connection with the Homekey Grant (the “Project Homekey Agreement”). The Property is more particularly described on Exhibit A attached hereto and incorporated herein by this reference.
B. Developer has entered into an agreement to purchase the Property. The Parties desire for Developer to acquire the Property and convert it into a one hundred twenty-five (125) unit multifamily residential apartment complex consisting of fifty-seven (57) studio units, thirtyeight (38) one-bedroom units, and thirty (30) two-bedroom units. All of the units will be rented at an affordable housing cost to extremely-low income households, except for one two-bedroom unit which will be used as an on-site manager’s unit (the “Project”).
C. Developer has requested, and City has agreed, to provide a loan to Developer to assist in the acquisition and development of the Project in the amount of the Homekey Grant, plus an additional Six Million Dollars ($6,000,000) in funds from the City’s Housing Impact Fee Fund and American Rescue Plan Act (ARPA) Recovery Fund (the “City Funds”), for a total of Forty-Four Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($44,156,293.00).
D. The City has determined that (i) the acquisition, conversion and rehabilitation of the Property pursuant to this Agreement will be of benefit to the City by providing affordable housing in the City, and (ii) the loan is necessary to make the Project economically feasible and affordable to extremely-low income households, and to provide the tenant services required in connection with the operation of the Project.
E. A material inducement to City to enter into this Agreement is the agreement by Developer to convert and rehabilitate the Property within the time periods specified herein and in accordance with the provisions hereof, and the City would be unwilling to enter into this Packet Page 1427
3 Agreement in the absence of an enforceable commitment by Developer to complete the Project in accordance with such provisions and within such time periods.
F. Prior to the disbursement of the Loan by the City: (i) Developer shall execute a secured promissory note in the amount of the Loan and a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, which will provide City with a security interest in the Property and the Project, and (ii) Developer and Cityshall execute an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants, which will be recorded against the Property and which will require Project rents to be affordable to extremely-low income households for a term of not less than fifty-five (55) years, and will set forth other requirements relating to the operation of the Project.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
ARTICLE I
DEFINITIONS
1. Definitions. The following terms shall have the meanings set forth in the Sections referenced below whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined in the Recitals and text of this Agreement.
1.1 “Agreement” means this Loan Agreement.
1.2 “Bankruptcy Law” is defined in Section 10.1(h).
1.3 “Certificate of Completion” is defined in Section 3.14.
1.4 “City” means the City of Newark, a California municipal corporation.
1.5 “City Documents” means the Agreement, Note, Deed of Trust and Regulatory Agreement.
1.6 “City Funds” means the Six Million Dollars ($6,000,000) portion of the Loan funded by the City’s Housing Impact Fee Fund and American Rescue Plan Act (ARPA) Recovery Fund.
1.7 “City Prorata Percentage” means sixty percent (60%) of Seventy-Five Percent (75%) of the Residual Receipts.
1.8 “Claims” is defined in Section 3.16.
1.9 “Conditions of Approval” is defined in Section 3.2.
1.10 “Construction Plans” is defined in Section 3.10.
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4 1.11 “Controlled Affiliate” is defined in Section 7.2.
1.12 “County” means the County of Alameda.
1.13 “Deed of Trust” is defined in Section 4.1
1.14 “Developer” means Allied 39802 Cedar, LLC, a California limited liability company, or its successors or assigns.
1.15 “Effective Date” means the date in the first paragraph hereof.
1.16 “Environmental Laws” is defined in Section 9.4.
1.17 “Event of City Default” is defined in Section 10.2.
1.18 “Event of Developer Default” is defined in Section 10.1.
1.19 “Financing Plan” is defined in Section 3.9.
1.20 “Hazardous Materials” is defined in Section 9.3.
1.21 “Homekey Grant” is defined in Recital A.
1.22 “Improvements” is defined in Section 3.9.
1.23 “Indemnitees” is defined in Section 3.16.
1.24 “Loan” and “Loan Proceeds” are defined in Section 4.1.
1.25 “Note” is defined in Section 4.1.
1.26 “Official Records” means the official records of the County.
1.27 “Operating Expenses” means all direct costs and expenses necessary to operate the Project including: (1) debt service on any loans secured by the Property as described in the Financing Plan or otherwise approved by City, provided that such loans have been used to develop or improve the Project (or to refinance loans used for development or improvement of the Development); (2) resident service program and property management fees and costs; (3) property taxes and assessments (if any); (4) insurance premiums; (5) maintenance and repair; (6) reasonable payments to reserves for operating contingencies, replacement of capital items, and other reserve uses in such amounts as are required by the loans described in paragraph (1); (7) an asset management fee payable to the sole member of Developer in the amount of $25,000 per year; and (8) developer fee to the Developer or its affiliate for development services for the Project in such amount as set forth in the Financing Plan.
1.28 "Operating Revenues" means all income derived from the Project, and Packet Page 1429
5 includes, without limitation: (i) rents; (ii) rent subsidy payments received on behalf of tenants; and (iii) receipts from laundry, parking, vending, or other services in which a fee is charged. Operating Revenues does not include Project operating deficit reserve funds which are drawn down and used to pay for Operating Expenses of the Project.
1.29 “Parties” means City and Developer.
1.30 “Prevailing Wage Laws” is defined in Section 3.16.
1.31 “Project” is defined in Recital B and further described in Section 3.2.
1.32 “Project Homekey Agreement” is defined in Recital A.
1.33 “Property” is defined in Recital A.
1.34 “Regulatory Agreement” is defined in Recital F.
1.35 “Refinancing” and “Refinancing Plan” are defined in Section 5.1.
1.36 “Residual Receipts” means the excess of annual Operating Revenues over annual Operating Expenses for the Project.
1.37 "Schedule of Performance" means the means the summary schedule of actions to be taken by the Parties pursuant to this Agreement to achieve the rehabilitation of the Improvements, attached to this Agreement as Exhibit C.
1.38 "Scope of Development" means the description of development to be performed on the Property by the Developer, attached to this Agreement as Exhibit B.
1.39 “Transfer” is defined in Section 7.1
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE AND TERM
2.1 Developer's Representations. Developer represents and warrants as follows, and Developer covenants that until the expiration or earlier termination of this Agreement, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.1 not to be true, Developer shall immediately give written notice of such fact or condition to City. Developer acknowledges that City shall rely upon Developer’s representations made herein notwithstanding any investigation made by or on behalf of City. (i) Authority. Developer is a limited liability company duly organized and in good standing under the laws of the State of California. Developer has the full right, power and authority to undertake all obligations of Developer as provided herein, and Developer’s Packet Page 1430
6 execution, performance and delivery of this Agreement and the City Documents have and shall been duly authorized by all requisite actions.
(ii) No Conflict. Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which it is bound. (iii) No Litigation or Other Proceeding. No litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement. (iv) No Developer Bankruptcy. Developer is not the subject of a bankruptcy or insolvency proceeding.
2.2 City Representations. City represents and warrants to Developer and covenants that until the expiration or earlier termination of this Agreement, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.2 not to be true, City shall immediately give written notice of such fact or condition to Developer. City acknowledges that Developer shall rely upon City’s representations made herein notwithstanding any investigation made by or on behalf of Developer.
(i) Authority. City is a municipal corporation duly organized and in good standing under the laws of the State of California. City has the full right, power and authority to undertake all of the respective obligations as provided herein, and the execution, performance and delivery of this Agreement by City has been duly authorized by all requisite actions on the part of the City. The persons executing this Agreement on behalf of City has been duly authorized to do so. This Agreement constitutes a valid and binding obligation of City. (ii) No Conflict. City’s execution, delivery and performance of their respective obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which either is bound. (iii) No Litigation or Other Proceeding. No litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of City to perform their obligations under this Agreement. (iv) No Bankruptcy. City is not the subject of a bankruptcy or insolvency proceeding.
2.3 Effective Date. The obligations of Developer and City hereunder shall be effective as of the Effective Date.
ARTICLE III
DEVELOPMENT OF THE PROJECT
3.1 The Property. Developer shall acquire fee simple title to the Property upon or Packet Page 1431
7 prior to the Effective Date.
3.2 Scope of Development. Developer shall develop the Project on the Property substantially in accordance with the terms and conditions of this Agreement, the Scope of Development attached hereto as Exhibit B, the Project Homekey Agreement, and in compliance with the terms and conditions of all approvals, entitlements and permits that the City or any other governmental body or agency with jurisdiction over the Project or the Property has granted or issued as of the date hereof or may hereafter grant or issue in connection with development of the Project, including without limitation, all mitigation measures imposed in connection with environmental review of the Property and the Project and all conditions of approval imposed in connection with any entitlements, approvals or permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions of approvalare hereafter collectively referred to as the “Conditions of Approval”).
3.3 Project Approvals. Developer acknowledges and agrees that execution of this Agreement by City does not constitute approval for the purpose of the issuance of building permits for the rehabilitation of the Project, does not limit in any manner the discretion of City in such approval process, and does not relieve Developer from the obligation to obtain all necessary entitlements, approvals, and permits for the rehabilitation of the Project, including without limitation, the approval of architectural plans, and the completion of any required environmental review of the Project pursuant to CEQA and the National Environmental Policy Act (NEPA).
Developer covenants that it shall: (i) obtain all necessary permits and approvals which may be required by City and any other governmental agency having jurisdiction over the rehabilitation of the Project or the development of the Property, (ii) comply with all Conditions ofApproval, (iii) comply with all mitigation measures, if any, imposed in connection with any environmental review of the Property or the Project, and (iv) not commence rehabilitation of the Project prior to issuance of building permits.
3.4 Fees. Developer shall be solely responsible for, and shall promptly pay when due, all customary and usual fees and charges of City in connection with obtaining building permits and other approvals for the Project, including without limitation, those related to the processing and consideration of amendments, if any, to the current entitlements, any related approvals and permits, environmental review, architectural review, historic review, and any subsequent approvals for the Project or the development of the Property.
3.5 Development Schedule. Developer shall commence and complete rehabilitation of the Project and shall satisfy all other obligations of Developer under this Agreement within the time periods set forth herein and in the Schedule of Performance attached hereto as Exhibit C, as such time periods may be extended upon the mutual written consent of the Parties.
Developer’s failure to commence or complete rehabilitation of the Project in accordance with the foregoing schedule as such may be amended by the written consent of the Parties shall constitute a default hereunder. The Developer shall provide quarterly progress reports to the City regarding the status of the rehabilitation of the Project. The Developer shall provide the reports and information required under this Section until the Project is fully leased up.
3.6 Cost of Acquisition and Rehabilitation. Except as expressly set forth herein, Packet Page 1432
8 Developer shall be solely responsible for all direct and indirect costs and expenses incurred in connection with the acquisition of the Property, the design, development and rehabilitation of theProject and compliance with the Conditions of Approval, including without limitation the installation and rehabilitation of all off-site or on-site improvements required by City in connection therewith, and none of such costs and expenses shall be the obligation of the City.
3.7 Rights of Access; Books and Records. For the purpose of ensuring that the Project is developed in compliance with this Agreement, Developer shall permit representatives of the City to enter upon the Property to inspect the Project following 48 hours’ written notice (except in the case of emergency in which case such notice as may be practical under the circumstances shall be provided). Upon request, Developer shall permit the City to inspect at reasonable times and on a confidential basis those books, records and all other documents of Developer necessary to determine Developer's compliance with the terms of this Agreement.
3.8 City Disclaimer. Developer acknowledges that the City is under no obligation, and neither City undertakes or assumes any responsibility or duty to Developer or to any third party, to in any manner review, supervise, or inspect the progress of rehabilitation or the operationof the Project. Developer and all third parties shall rely entirely upon its or their own supervisionand inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters relating tothe rehabilitation and operation of the Project. Any review or inspection undertaken by the City issolely for the purpose of determining whether Developer is properly discharging its obligations under this Agreement, and shall not be relied upon by Developer or any third party as a warranty or representation by the City as to the quality of the design or rehabilitation of the Project and other improvements constructed on the Property (collectively, the “Improvements”) or otherwise.
3.9 Financing Plan. As set forth in the attached Exhibit D, Developer has provided City with a financing plan for the Project (“Financing Plan”) which describes (i) the estimated costs of Project development, including acquisition costs, and hard and soft construction costs, (ii) an operating pro forma which describes projected revenue and expenses for the Project, and (iii) identification of sources of construction and permanent financing.
3.10 Construction Plans. Developer shall submit to City detailed construction plans for the Project (the “Construction Plans”) for approval. As used herein "Construction Plans" mean all construction documents upon which Developer and Developer’s contractors shall rely in the rehabilitation of the Project and development of the Property and shall include, without limitation, final architectural drawings and materials specifications. The Construction Plans shall be based upon the Scope of Development and upon the development approvals issued by the City for the Project, and shall not materially deviate therefrom without the express written consent of City. Such approval of the Construction Plans by the City shall not relieve Developer's obligation to obtain any and all approvals and permits required by the City or the City Building Division.
If rejected by the City in whole or in part, Developer shall submit new or corrected Construction Plans within thirty (30) days after notification of the City's rejection and the reasons therefor. The City shall then have thirty (30) days to review and approve Developer's Packet Page 1433
9 new or corrected Construction Plans. The provisions of this Section relating to time periods for approval, rejection, or resubmission of new or corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City.
3.11 Rehabilitation Pursuant to Plans. Developer shall rehabilitate the Project in accordance with the approved Construction Plans, the Conditions of Approval, and all other permits and approvals granted by the City pertaining to development of the Project. Developer shall comply with all directions, rules and regulations of any fire marshal, health officer, building inspector or other officer of every governmental agency having jurisdiction over the Property or the Project. Each element of the work shall proceed only after procurement of each permit, license or other authorization that may be required for such element by any governmental agency having jurisdiction. All design and rehabilitation work on the Project shall be performed by licensed contractors, engineers or architects, as applicable.
3.12 Change in Construction Plans. If Developer desires to make any material change in the approved Construction Plans, Developer shall submit the proposed change in writing to the City for its written approval, which approval shall not be unreasonably withheld or delayed if the Construction Plans, as modified by any proposed change, conform to the requirements of this Agreement and any approvals issued by City after the Effective Date. The Parties shall meet in good faith to discuss the changes if the City propose to reject the changes. Any change in the Construction Plans required in order to comply with applicable codes shall be deemed approved, so long as such change does not substantially nor materially change the design, function, use, or amenities of the Project as shown on the latest approved Construction Plans. For purposes of this section, a “material change” means a change order that would result in a change of costs of Fifty Thousand Dollars ($50,000) or more.
3.13 Defects in Plans. City shall not be responsible to Developer or to any third party for any defect in the Construction Plans or for any structural or other defect in any work done pursuant to the Construction Plans. Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees (defined in Section 3.17 below) from and against all Claims arising out of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects in any work done pursuant to the Construction Plans whether or not any insurance policies shall have been determined to be applicable to any such Claims.
Developer’s indemnification obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement and the recordation of a Certificate of Completion. It is further agreed that City does not, and shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Developer’s deposit with City of any of the insurance policies described in this Agreement. Developer’s indemnification obligations pursuant to this Section shall not extend to Claims arising due to the gross negligence or willful misconduct of the Indemnitees.
3.14 Certificate of Completion for Project. Promptly after completion of rehabilitation of the Project, issuance of a final Certificate of Occupancy (or other applicable final City Building Department approval) by the City, and the written request of Developer, the City will provide an instrument (“Certificate of Completion”) so certifying. The Certificate of Completion shall be conclusive evidence that Developer has Packet Page 1434
10 satisfied itsobligations regarding the rehabilitation and development of the Property.
The Certificate of Completion shall be issued substantially in the form attached hereto as Exhibit E, and at Developer’s option, shall be recorded in the Official Records. The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a deed of trust or mortgage securing money loaned to finance the Project or any part thereof and shall not be deemed a notice of completion under the California Civil Code, nor shall such Certificate provide evidence that Developer has satisfied any obligation that survives the expiration of this Agreement, including without limitation, Developer’s obligations pursuant to the Regulatory Agreement.
3.15 Equal Opportunity. During the rehabilitation of the Project, there shall be no discrimination on the basis of race, color, religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the hiring, firing, promoting or demoting of any person engaged in rehabilitation of the Project, and Developer shall direct its contractors and subcontractors to refrain from discrimination on such basis.
3.16 Prevailing Wage Requirements. Developer and its contractors and agents shall comply with California Labor Code Section 1720, et seq. and applicable federal labor laws and standards, and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. (a) All calls for bids, bidding materials and the construction contract documents for the Development must specify that:
(i) No contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the Project unless registered with the DIR pursuant to Labor Code Section 1725.5.
(ii) The Project is subject to compliance monitoring and enforcement by the DIR.
(b) The Developer, as the "awarding body", shall register the Project as required by Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within two (2) days after entering into the Construction Contract and provide evidence of such registration to the City within two (2) days of such registration and any additional registration reporting to the DIR. (c) In accordance with Labor Code Sections 1725.5 and 1771.1, the Developer shall require that its contractors and subcontractors be registered with the DIR, and maintain such registration as required by the DIR.
(d) Pursuant to Labor Code Section 1771.4, the Project is subject to compliance monitoring and enforcement by the DIR. The Developer shall and shall require its contractors and subcontractors to submit payroll and other records electronically to the DIR pursuant to Labor Code Sections 1771.4 and 1776 et seq., or in such other format as required by the DIR.
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11 (e) The Developer shall and shall cause its contractors and subcontractors to keep and retain such records as are necessary to determine if prevailing wages have been paid as required pursuant to Labor Code Sections 1720 et seq., and that apprentices have been employed as required by Labor Code Section 1777.5 et seq., and shall, from time to time upon the request of the City provide to the City such records and other documentation reasonably requested by the City.
(f) The Developer shall and shall cause its respective contractors and subcontractors to comply with all other applicable provisions of Labor Code, including without limitation, Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and implementing regulations of the DIR in connection with rehabilitation of the Development or any other work undertaken or in connection with the Property. (g) Copies of the currently applicable current per diem prevailing wages are available from the DIR website, www.dir.ca.gov. The Developer shall cause its respective contractors to post the applicable prevailing rates of per diem wages at the Project site and to post job site notices, in compliance with Title 8 California Code of Regulations 16451(d) or as otherwise as required by the DIR.
Developer shall indemnify, defend (with counsel approved by City) and hold the City, and its respective elected and appointed officers, officials, employees, agents, consultants, and contractors (collectively, the “Indemnitees”), harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the rehabilitation of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City does not and shall not waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Developer’s deposit with City of any of the insurance policies described in this Agreement. The provisions of this Section
3.17 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Developer’s indemnification obligations under this Section 3.17 shall not apply to any Claim which arises as a result of an Indemnitee’s gross negligence or willful misconduct.
3.17 Compliance with Laws. Developer shall carry out and shall cause its contractors to carry out the rehabilitation of the Project in conformity with all applicable federal, state and local laws, rules, ordinances and regulations, including without limitation, all applicable federal and state labor laws and standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, all other provisions of the City's Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation, Packet Page 1436
12 the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq..
3.18 Liens and Stop Notices. Until the expiration of the term of the Regulatory Agreement and full repayment of the Loan, Developer shall not allow to be placed on the Property or any part thereof any lien or stop notice on account of materials supplied to or labor performed on behalf of Developer. If a claim of a lien or stop notice is given or recorded affecting the Project, Developer shall within thirty (30) days of such recording or service: (a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a surety bond in sufficient form and amount or provide other assurance satisfactory to City that the claim of lien or stop notice will be paid or discharged.
3.19 Right of City to Satisfy Liens on the Property. If Developer fails to satisfy or discharge any lien or stop notice on the Property pursuant to Section 3.19 above, the City shall have the right, but not the obligation, to satisfy any such liens or stop notices at Developer’s expense and without further notice to Developer. In such event Developer shall be liable for and shall immediately reimburse City for such paid lien or stop notice. Alternatively, the City may require Developer to immediately deposit with City the amount necessary to satisfy such lien or claim pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against Developer. Developer shall file a valid notice of cessation or notice of completion upon cessation of rehabilitation of the Project for a continuous period of thirty (30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens against the Property or the Project. The City may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Property and the Project.
ARTICLE IV
CITY FINANCIAL ASSISTANCE
4.1 Loan. The City shall provide a loan in the amount of Forty-Four Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($44,156,293.00) (the “Loan”) to Developer upon the terms and conditions and for the purposes set forth in this Agreement. The Loan shall consist of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) from the Homekey Grant and Six Million Dollars ($6,000,000) of City Funds. The Loan shall be evidenced by a promissory note (the “Note”) substantially in the form attached hereto as Exhibit F, and shall be secured by a deed of trust (the“Deed of Trust”) executed by Developer as Trustor substantially in the form attached hereto as Exhibit G and recorded against the Property subordinate only to such liens as City shall approve in writing. The outstanding principal balance of the City Funds portion of the Note will accrue simple interest at the rate of three percent (3%) per annum, and the outstanding balance of the Homekey Grant portion of the Note shall not accrue any interest.
Provided that Developer has complied with all conditions precedent to disbursement of Packet Page 1437
13 the Loan set forth in Section 4.5, the proceeds of the Loan (“Loan Proceeds”) shall be disbursed in accordance with Section 4.4 hereof. The Parties agree that City shall disburse Loan Proceeds only for the purposes set forth in Section 4.4.
4.2 Repayment of the Loan.
(a) Annual Payments. The Developer shall make annual payments of principal and interest to the City in the amount of the City Prorata Percentage of Residual Receipts. Such annual payments shall be due and payable in arrears no later than May 1 of each year with respect to the previous calendar year, commencing on May 1st of the first year after the City's issuance of a certificate of occupancy for the Improvements. The Developer shall provide the City with any documentation reasonably requested by the City to substantiate the Developer's determination of Residual Receipts. The Parties acknowledge that they expect the Residual Receipts amount to be zero during the initial years of the Project until Refinancing occurs. Repayments shall be credited first to interest, then to principal.
(b) Sharing of Residual Receipts with Other Lenders. The City acknowledges that the County of Alameda (the "County") and other lenders to be set forth in the Financing Plan may provide additional financing for the Project. The City agrees to share in sixty percent (60%) of seventy-five percent (75%) of Residual Receipts, pro-rata in proportion to the amount of City Funds and the financing provided by the County (the "City Prorata Percentage"). The Developer may pay the County up to forty percent (40%) of Seventy-Five Percent (75%) of the Residual Receipts, and may retain the remaining twenty-five percent (25%) of Residual Receipts. (c) Default Under Project Homekey Agreement. In the event that one or both of the Parties is required to repay some or all of the Homekey Grant pursuant to the Project Homekey Agreement, Developer shall be responsible for making such payment to the State of California. The amount of Developer’s repayment of the Homekey Grant shall be credited against the balance of the Note.
(d) Payment of Remaining Balance. Developer shall pay all outstanding principal and accrued interest on the City Loan, in full, on the earliest to occur of (i) a Developer Event of Default for which the City exercises its right to cause the Loan indebtedness to become immediately due and payable, and (ii) the expiration of the Term.
(e) Partial Forgiveness. Upon receipt of written confirmation from the State of California that the Parties’ obligations under the Project Homekey Agreement have been satisfied and that the Parties are no longer responsible for repayment of the Homekey Grant under any circumstances, the Homekey Grant portion of the Loan shall be forgiven.
4.3 Security. As security for repayment of the Note, Developer shall execute the Deed of Trust pursuant to which City shall be provided a lien against the Property and the Improvements. The Deed of Trust shall be recorded in the Official Records concurrently with Developer’s acquisition of the Property. The Deed of Trust may be subordinated only to such liens and subject only to such title exceptions as City may approve in writing.
4.4 Use and Disbursement of Proceeds. The Loan Proceeds shall be used as Packet Page 1438
14 follows: (a) a portion of the Loan Proceeds shall be used to fund the costs of Developer’s acquisition of the Property, and closing, escrow and other costs approved by the City, (b) a portion of the Loan Proceeds shall be used to pay for predevelopment costs of the Project, to be funded at the close of escrow for Developer’s acquisition of the Property, and (c) a portion of the Loan Proceeds shall be used to pay for the cost of rehabilitation of the Project, to be funded through monthly Loan draws after the close of escrow.
4.5 Conditions to Disbursement of Loan Proceeds. City’s obligation to fund the Loan and disburse the Loan Proceeds for the purposes of Section 4.4(a) above is conditioned upon the satisfaction of all of the following conditions:
(a) Developer’s delivery to City of each of the following: (i) certificate of good standing, certified by the Secretary of State indicating that Developer is properly organized, in good standing, and authorized to do business in the State of California, and a certified resolution indicating that Developer has authorized this transaction and that the persons executing this Agreement, the Regulatory Agreement, and the City Documents on Developer’s behalf have been duly authorized to do so.
(b) The close of escrow for Developer’s acquisition of the Property has occurred or will occur concurrently with the disbursement of the Loan. (c) Developer’s delivery to the City of evidence of insurance coverage in accordance with the requirements set forth in Section 11.2. (d) Developer’s delivery of the Note, Deed of Trust and Regulatory Agreement, each fully executed and acknowledged as applicable. (e) Recordation of the Regulatory Agreement and the Deed of Trust in the Official Records simultaneously with the disbursement of the first Loan Proceeds. (f) The Title Company’s issuance of the City Title Policy, together with such endorsements as are required by the City, in accordance with Section 4.9 hereof. (g) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default under this Agreement. (h) The City’s receipt of a written requisition for disbursement of funds from Developer specifying the amount and use of the requested funds, accompanied by the title company’s estimated settlement statement showing the acquisition price, closing costs and all other amounts due in escrow for Developer’s acquisition of the Property.
City’s obligation to disburse the Loan Proceeds for the purposes of Section 4.4(b) and (c) above is conditioned upon the satisfaction of all of the following conditions:
(i) The City’s receipt of a written draw request for disbursement of funds from Developer specifying the amount and use of the requested funds, setting forth the proposed uses of funds consistent with the Financing Plan, the amount of funds needed, and, where Packet Page 1439
15 applicable, a copy of the bill or invoice covering a cost incurred or to be incurred, and City’s inspection of the work and determination that the work for which payment is requested has been performed in compliance with the requirements of this Agreement. (j) The Developer has submitted to the City all applications and materials for the permits and approvals necessary for the rehabilitation of any Improvements which are proposed to be funded through the City Loan, the application fees therefor have been paid to the City, and such applications shall have been be accepted as complete by the City.
4.6 No Obligation to Disburse Proceeds Upon Default. Notwithstanding any other provision of this Agreement, the City shall have no obligation to disburse or authorize the disbursement of any portion of the Loan Proceeds following:
(i) the failure of any of Developer’s representations and warranties made in this Agreement or in connection with the Loan to be true and correct in all material respects;
(ii) the termination of this Agreement by mutual agreement of the Parties; (iii) the conditions to disbursement of the Loan set forth in Section 4.5 have not been satisfied within the time frame set forth in Section 3.1, unless an extension of such date is approved by City in writing; or (iv) the occurrence of an Event of Default under this Agreement, the Regulatory Agreement, any of the City Documents which remains uncured beyond any applicable cure period.
4.7 Prepayment; Acceleration
(a) Prepayment. Developer shall have the right to prepay the Loan at any time and from time to time, without penalty or premium, provided that any prepayment of principal mustbe accompanied by interest accrued but unpaid to the date of prepayment. Prepayments shall beapplied first to accrued but unpaid interest and then to principal. Any such prepayment shall have no effect upon Developer’s obligations under the Regulatory Agreement which shall survive for the full term of the Regulatory Agreement.
(b) Due On Sale or Encumbrance. Unless City agrees otherwise in writing, the entire unpaid principal balance and all interest and other sums accrued under the Note shall be due and payable upon the Transfer (as defined in Section 7.2) absent the prior written consent of City of all or any part of or interest in the Property except for a Transfer permitted under Section
7.3 of this Agreement or as otherwise permitted pursuant to this Agreement.
4.8 Nonrecourse. Except as expressly provided in this Section 4.8, Developer shall have no personal liability for payment of the principal of, or interest on the Note, and the sole recourse of City with respect to the payment of the principal of, and interest on the Note shall be to the Property and the Improvements and any other collateral held by City as security for the Note; provided however, nothing contained in the foregoing limitation of liability shall: (i) limit or impair the enforcement against all such security for the Note of all the rights and remedies of Packet Page 1440
16 the City thereunder; (ii) be deemed in any way to impair the right of the City to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; or (iii) be deemed in any way to limit the rights of the City to obtain specific performance by the Developer of its covenants under the City Documents, other than the covenants to pay the City principal and interest due under the Note.
The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on the Note; nothing contained herein is intended to relieve the Developer of its obligation to indemnify the City under this Agreement, or liability to the extent of any loss for: (i) fraud or intentional misrepresentation or bad faith, waste, willful misrepresentation by the Developer; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by the Developer other than in accordance with the Deed of Trust; and/or the misappropriation of any proceeds by the Developer under any insurance policies orawards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Development.
4.9 Title Policy. Chicago Title Company shall issue an LP-10 loan policy of title insurance naming City as the insured, in a policy amount not less than the principal amount of Loan, showing Developer as holding fee title to the Property and insuring the Deed of Trust to be a valid first priority lien on the Property subject only to exceptions approved by City (the “City Title Policy”), together with such endorsements as are required by the City.
ARTICLE V
REFINANCING PLAN
5.1 Refinancing. The Parties acknowledge that the financing sources for the Project will need to be supplemented and revised over time in order to maintain the solvency of the Project for the entire term of the Loan and the Regulatory Agreement. On or before the tenth anniversary of the Effective Date, Developer shall prepare a revised Financing Plan (the “Refinancing Plan”) which includes Developer’s proposed new financing sources and modifications or extensions of existing financing for the Project which would close or become effective on or before the fifteenth anniversary of the Effective Date (the “Refinancing”). The Refinancing Plan may include an application for Low Income Housing Tax Credits, other governmental affordable housing loan and grant programs, a new allocation or extension of the allocation of project based vouchers for Project residents, tax-exempt or taxable bond financing, commercial loans, amendments to the City Loan, and/or other sources. The Refinancing Plan shall be subject to the approval of the City, which approval shall not unreasonably be withheld.
Developer shall use diligent and good faith efforts to obtain the Refinancing elements set forth in the approved Refinancing Plan.
ARTICLE VI
USE OF THE PROPERTY
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17 6.1 Use; Affordable Supportive Housing. Developer covenants and agrees for itself and its successors and assigns that the Property shall be used for the development and operation of the Project in accordance with the terms and conditions of this Agreement, the Project Homekey Agreement and the Regulatory Agreement.
6.2 Affordable Housing. Developer covenants and agrees for itself, its successors and assigns that one hundred twenty-four (124) of the residential units developed within the Project shall be occupied by and rented at an affordable rent to households of extremely lowincome in accordance with the terms hereof and the Regulatory Agreement. The Parties shall execute the Regulatory Agreement, substantially in the form attached hereto as Exhibit H, concurrently with the execution of this Agreement. The Regulatory Agreement shall be recorded in the Official Records of Alameda County (“Official Records”) on the date that Developer acquires the Property.
6.3 Maintenance. Developer shall at its own expense, maintain the Property, the Improvements and related landscaping and common areas in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations, consistent with the standards of maintenance of similar multifamily apartment complexes in Alameda County.
Without limiting the foregoing, Developer agrees to maintain the Project and the Property (including without limitation, the residential units, common areas, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project.
Developer shall prevent and/or rectify any physical deterioration of the Property and the Project and shall make all repairs, renewals and replacements necessary to keep the Property and the Project in good condition and repair. Developer shall provide adequate security services for occupants of the Project.
6.4 Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property and payable by Developer, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Developer exercises its right to contest any tax, assessment, or charge, the Developer, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. Developer shall have the right to apply for all applicable tax exemptions, including, without limitation, the welfare exemption from property tax for lowincome housing.
6.5 Obligation to Refrain from Discrimination. Developer shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Developer covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject Packet Page 1442
18 to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Developer shall include such provision in all deeds, leases, contracts and other instruments executed by Developer, and shall enforce the same diligently and in good faith.
6.6 Compliance with Project Homekey Agreement. The Parties agree that, regardless of whether the City is jointly or solely responsible for performance of the requirements of the Project Homekey Agreement under the terms of that agreement, the Developer shall perform all of the requirements of the Grantee under the Project Homekey Agreement, and City shall not be responsible for performance of such obligations. Such requirements to be performed by the Developer shall include, without limitation, compliance with maximum income and rent requirements, meeting all program deadlines, compliance with all rent standards, use in accordance with eligible uses, compliance with all performance milestones, preparation and submission of all required reporting, compliance with all conditions of disbursement of the Homekey Grant, compliance with prevailing wage laws, liability for environmental requirements, insurance requirements, relocation requirements, and adaptability and accessibility requirements, submission and compliance with the property management plan, supportive services plan and affirmative fair housing marketing plan, compliance with fair housing requirements, and compliance with record retention, inspection and audit requirements.
ARTICLE VII
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
7.1 Change Pursuant to this Agreement. Developer has represented that it possesses the necessary expertise, skill and ability to carry out the development and operation of the Project on the Property pursuant to this Agreement. The qualifications, experience, financial capacity and expertise of Developer is of particular concern to the City. It is because of these qualifications, experience, financial capacity and expertise that the City has entered into this Agreement with Developer. No voluntary or involuntary successor, assignee or transferee of Developer shall acquire any rights or powers under this Agreement, except as expressly provided herein.
7.2 Prohibition on Transfer. Prior to the expiration of the term of the Regulatory Agreement, Developer shall not, except as expressly permitted by this Agreement, directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property, the Project, the Improvements, or this Agreement, without the prior written approval of City. Any such attempt to assign this Agreement without the City’s consent shall be Packet Page 1443
19 null and void and shall confer no rights or privileges upon the purported assignee. In addition to the foregoing, prior to the expiration of the term of the Regulatory Agreement, except as expressly permitted by this Agreement, Developer shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Developer, taking all transfers into account on a cumulative basis.
7.3 Permitted Transfers. Notwithstanding any contrary provision hereof, the prohibitions set forth in this Article shall not be deemed to prevent: (i) the granting of utility easements or permits to facilitate development of the Property; (ii) the dedication of any property required pursuant to this Agreement; (iii) the lease of individual units to tenants for occupancy as their principal residence in accordance with the Project Homekey Agreement and the Regulatory Agreement; (iv) assignments creating security interests for the purpose of financing the acquisition, construction or permanent financing of the Project or the Property in accordance with the approved Financing Plan and subject to the requirements of Article VIII, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; and (v) a Transfer to entity which is under the direct control or under common control with Allied Housing or in which Allied Housing is the sole member or the general partner (“Controlled Affiliate”).
7.4 Requirements for Proposed Transfers. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property or portion thereof if all of the following requirements are met (provided however, the requirements of this Section 7.4 shall not apply to Transfers described in Section 7.3):
(i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete rehabilitation of the Project and to otherwise fulfill the obligations undertaken by the Developer under this Agreement.
(ii) The Developer and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of this Agreement, the Property or interest therein together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Developer under this Agreement, the Project Homekey Agreement, the Regulatory Agreement, the City Documents arising after the effective date of the Transfer and all obligations of Developer arising prior to the effective date of the Transfer (unless Developer expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Developer’s obligations pursuant to the Conditions of Approval and all other conditions, and restrictions set forth in this Agreement and the Regulatory Agreement.
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20 (iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
Consent to any proposed Transfer may be given by the City Manager unless the City Manager, in his or her discretion, refers the matter of approval to the City Council. If the City rejects a proposed Transfer, the City, as applicable, shall provide the reasons for such rejection in writing within thirty (30) days following receipt of written request by Developer, and representatives of the City shall meet with Developer and the proposed transferee to discuss in good faith the reasons for the rejection and Developer’s and transferee’s responses thereto.
7.5 Effect of Transfer without City Consent.
7.5.1 In the absence of specific written agreement by the City, no Transfer by Developer shall be deemed to relieve the Developer or any other party from any obligation under this Agreement or the Regulatory Agreement.
7.5.2 Without limiting any other remedy City may have under this Agreement, or under law or equity, this Agreement may be terminated by City if without the prior written approval of the City, Developer assigns or Transfers this Agreement or the Property. This Section 7.5.2 shall not apply to Transfers described in clauses (i) through (iv) of Section 7.3).
7.6 Recovery of City Costs. Developer shall reimburse City for all costs, including but not limited to attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to affect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten days following City’s delivery to Developer of an invoice detailing such costs. This Section 7.6 shall not apply to Transfers described in Section 7.3.
ARTICLE VIII
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
8.1 Mortgages and Deeds of Trust for Development. Mortgages and deeds of trust, or any other reasonable security instrument are permitted to be placed upon the Property only for the purpose of securing loans approved pursuant to the approved Financing Plan for the purpose of financing the acquisition of the Property, the design and rehabilitation of the Improvements, other expenditures reasonably necessary for development of the Property pursuant to this Agreement, and the rehabilitation and/or refinancing of the Project. Developer shall not enter into any conveyance for such financing without the prior written approval of the City Manager or his or her designee. As used herein, the terms “mortgage” and “deed of trust” shall mean any security instrument used in financing real estate acquisition, rehabilitation and land development.
8.2 Holder Not Obligated to Construct. The holder of any mortgage, deed of trust authorized by this Agreement shall not be obligated to construct or complete the Improvements or to guarantee such rehabilitation or completion. Nothing in this Agreement shall be deemed topermit or authorize any such holder to devote the Property or any portion thereof to any uses, orto construct any improvements thereon, other than those uses or improvements provided for Packet Page 1445
21 or authorized by this Agreement.
8.3 Notice of Default and Right to Cure. Whenever City delivers any notice of default hereunder, City shall concurrently deliver a copy of such notice to each holder of record of any mortgage or deed of trust secured by the Property provided that City has been provided with the address for delivery of such notice. City shall have no liability to any such holder for any failure by the City to provide such notice to such holder. Each such holder shall have the right, but not the obligation, at its option, to cure or remedy any such default or breach.
8.4 City Right to Cure Defaults. In the event of a breach or default by Developer under a mortgage or deed of trust secured by the Property, City may (but has no obligation to) cure the default, without acceleration of the subject loan, following prior notice thereof to the holder of such instrument and Developer. In such event, Developer shall be liable for, and City shall be entitled to reimbursement from Developer for all costs and expenses incurred by City associated with and attributable to the curing of the default or breach and such sum shall constitute a part of the indebtedness secured by the Deed of Trust.
8.5 Holder to be Notified. Developer, for itself, its successors and assigns hereby warrants and agrees that each term contained herein dealing with security financing and rights of holders shall be either inserted into the relevant deed of trust or mortgage or acknowledged by the holder prior to its creating any security right or interest in the Property.
8.6 Modifications to Agreement. City shall not unreasonably withhold is consent to modifications of this Agreement requested by Project lenders or investors provided such modifications do not alter City’s substantive rights and obligations under this Agreement.
8.7 Estoppel Certificates. Any Party shall, at any time, and from time to time, within thirty (30) days after receipt of written request from the other Party, execute and deliver to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties (if such be the case), (ii) this Agreement has not been amended or modified, or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature of any such defaults.
ARTICLE IX
ENVIRONMENTAL MATTERS
9.1 No City Liability; Developer’s Covenants. City shall not be responsible for the cost of any soil, groundwater or other environmental remediation or other response activities for any Hazardous Materials, if any, existing or occurring on the Property or any portion thereof, and Developer shall be solely responsible for all actions and costs associated with any such activities required by any regulatory agency with jurisdiction over the Property and/or required for the development of the Project, the Property, or any portion thereof. Upon receipt of any notice regarding the presence, release or discharge of Hazardous Materials in, on or under the Property, or any portion thereof, Developer agrees to timely initiate and diligently pursue and complete all appropriate response, remediation and removal actions for the presence, release or discharge of Packet Page 1446
22 such Hazardous Materials within such deadlines as specified by applicable Environmental Laws.
Developer hereby covenants and agrees that:
(1) Developer shall not knowingly permit the Project or the Property or any portion of either to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence or release of Hazardous Materials in, on, under, about or from the Project or the Property with the exception of any previously disclosed existing conditions on the Property and cleaning supplies and other materials customarily used in construction, rehabilitation, use or maintenance of residential property and used, stored and disposed of in compliance with Hazardous Materials Laws, and
(2) Developer shall keep and maintain the Project and the Property and each portion thereof in compliance with, and shall not cause or permit the Project or the Property or any portion of either to be in violation of, any Hazardous Materials Laws.
9.2 Environmental Indemnification. Developer shall indemnify, defend (with counsel approved by City) and hold the Indemnitees harmless from and against any and all Claims, including without limitation any expenses associated with the investigation, assessment, monitoring, response, removal, treatment, abatement or remediation of Hazardous Materials and administrative, enforcement or judicial proceedings resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, storage or disposal or the alleged presence, release, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property, or (ii) the failure of Developer, Developer’s employees, agents, contractors, subcontractors, or any person acting on behalf of any of the foregoing to comply with Hazardous Materials Laws or the covenants set forth in Section 9.1. The foregoing indemnity shall further apply to any residual contamination in, on, under or about the Property or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. The provisions of this Section 9.2 shall survive the issuance of a Certificate of Completion for the Project and the expiration or earlier termination of this Agreement. Developer’s indemnification obligation under this Section 9.2 shall not apply to acts described in clause (i) above caused by the gross negligence or willful misconduct of an Indemnitee.
9.2.1 No Limitation. Developer hereby acknowledges and agrees that Developer’s duties, obligations and liabilities under this Agreement, including, without limitation, under Section 9.2 above, are in no way limited or otherwise affected by any information the City may have concerning the Property and/or the presence in, on, under or about the Property of any Hazardous Materials, whether the City obtained such information from the Developer or from its own investigations. It is further agreed that City do not and shall not waive any rights against Developer that they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement.
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23 9.3 Hazardous Materials. As used herein, the term “Hazardous Materials” means any substance, material or waste which is or becomes regulated by any federal, state or local governmental authority, and includes without limitation (i) petroleum or oil or gas or any direct or indirect product or by-product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance, material or waste regulated by or listed (directly or by reference) as a “hazardous substance”, “hazardous material”, “hazardous waste”, “toxic waste”, “toxic pollutant”, “toxic substance”, “solid waste” or “pollutant or contaminant” in or pursuant to, or similarly identified as hazardous to human health or the environment in or pursuant to, the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder; (iv) any substance, material or waste which is defined as such or regulated by any “Superfund” or “Superlien” law, or any Environmental Law; or (v) any other substance, material, chemical, waste or pollutant identified as hazardous or toxic and regulated under any other federal, state or local environmental law, including without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products and by-products.
9.4 Environmental Laws. As used herein, the term “Environmental Laws” means all federal, state or local statutes, ordinances, rules, regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions of permits, licenses and other operating authorizations regulating, or relating to, or imposing liability or standards of conduct concerning (i) pollution or protection of the environment, including natural resources; (ii) exposure of persons, including employees and agents, to Hazardous Materials (as defined above) or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; (iv) the manufacture, use or introduction into commerce of chemical substances, including without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous substances or Hazardous Materials or the remediation of air, surface waters, groundwater or soil, as now or may at any later time be in effect, including but not limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Packet Page 1448
24 Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the PorterCologne Water Quality Control Act [California Water Code Section 13000, et seq.], as each of the foregoing now exist or are hereafter amended, together with any regulations promulgated thereunder.
ARTICLE X
DEFAULTS, REMEDIES AND TERMINATION
10.1 Event of Developer Default. The following events shall constitute an event of default on the part of Developer (“Event of Developer Default”):
(a) Subject to force majeure, Developer fails to commence or complete rehabilitation of the Project within the times set forth in Section 3.6, or abandons or suspends rehabilitation ofthe Project prior to completion for a period of sixty (60) days or more; (b) Developer fails to pay when due the principal and interest (if any) payable under the Note and such failure continues for thirty (30) days after City notifies Developer thereof in writing;
(c) Developer fails to timely repay the required portion of the Homekey Grant to the State of California upon demand of the State of California pursuant to the Project Homekey Agreement;
(d) A Transfer occurs, either voluntarily or involuntarily, in violation of Article VII; (e) Developer fails to maintain insurance on the Property and the Project as required pursuant to this Agreement, and Developer fails to cure such default within ten (10) days, following notice thereof from the City;
(f) Subject to Developer’s right to contest the following charges pursuant to Section
6.3, if Developer fails to pay prior to delinquency taxes or assessments due on the Property or the Project or fails to pay when due any other charge that may result in a lien on the Property or the Project, and Developer fails to cure such default within 30 days of date of delinquency, but in all events upon the imposition of any such tax or other lien; (g) A default is declared in writing under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan;
(h) Any representation or warranty contained in this Agreement or in any financial statement, certificate or report submitted to the City in connection with this Agreement or Developer’s request for the Loan proves to have been false in any material and adverse respect when made and continues to be materially adverse to the City; Packet Page 1449
25 (i) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors ("Bankruptcy Law"), Developer (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Developer in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due; (j) A court of competent jurisdiction shall have made or entered any decree or order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as properly filed a petition seeking reorganization of the Developer or seeking any arrangement for Developer under bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of its properties, or (4) directing the winding up or liquidation of the Developer;
(k) Developer shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within sixty (60) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period shall apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration, attachment, or execution;
(l) The Developer shall have voluntarily suspended its business or Developer shall have been dissolved or terminated;
(m) An event of default arises under this Agreement, the Project Homekey Agreement, the Regulatory Agreement, or any City Document and remains uncured beyond any applicable cure period; or
(n) Developer defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 10.1 and unless a shorter cure period is specified for such default, the default continues for ten (10) days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default after the date upon which City shall have given written notice of the default to Developer; provided however, if the default is of a nature that it cannot be cured within 30 days, a Developer Event of Default shall not arise hereunder if Developer commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than ninety (90) days after receipt of notice of the default or such longer period as the City may allow.
10.2 City Default. An event of default on the part of City (“Event of City Default”) shall arise hereunder if City fails to keep, observe, or perform any of its covenants, duties, or obligations under this Agreement, and the default continues for a period of thirty (30) days after written notice thereof from Developer to City, or in the case of a default which cannot with due diligence be cured within thirty (30) days, City fails to commence to cure the default within thirty (30) days of such notice and thereafter fails to prosecute the curing of such default with Packet Page 1450
26 due diligence and in good faith to completion.
10.3 City’s Right to Terminate Agreement. If an Event of Developer Default shall occur and be continuing beyond any applicable cure period, then City shall, in addition to other rights available to it under law or this Agreement, have the right to terminate this Agreement. If City makes such election, City shall give written notice to Developer and to any mortgagee entitled to such notice specifying the nature of the default and stating that this Agreement shall expire and terminate on the date specified in such notice, and upon the date specified in the notice, this Agreement and all rights of Developer under this Agreement, shall expire and terminate.
10.4 City’s Remedies and Rights Upon an Event of Developer Default. Upon the occurrence of an Event of Developer Default and the expiration of any applicable cure period, City shall have all remedies available to them under law or equity, including, but not limited to the following, City may, at its election, without notice to or demand upon Developer, except for notices or demands required by law or expressly required pursuant to this Agreement, the Regulatory Agreement, or the City Documents, exercise one or more of the following remedies:
(a) Accelerate and declare the balance of the City Funds portion of the Note and interest accrued thereon immediately due and payable; (b) If the Event of Developer Default arises pursuant to Section 10.1(c) above, accelerate and declare the Homekey Grant portion of the Note immediately due and payable;
(c) Seek specific performance to enforce the terms of this Agreement or City Documents;
(d) Foreclose on the Property pursuant to the Deed of Trust; (e) Pursue any and all other remedies available under law to enforce the terms of the this Agreement and the City Documents and City’s rights thereunder.
10.5 Developer’s Remedies Upon an Event of City Default. Upon the occurrence of an City Event of Default, in addition to pursuing any other remedy allowed at law or in equity or otherwise provided in this Agreement, Developer may bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking to obtain any other remedy consistent with the purpose of this Agreement.
10.6 Remedies Cumulative; No Consequential Damages. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same or any other default by the other Party. Notwithstanding anything to the contrary set forth herein, a party’s right to recover damages in the event of a default shall be limited to actual damages and shall exclude Packet Page 1451
27 consequential damages.
10.7 Inaction Not a Waiver of Default. No failure or delay by any Party in asserting any of its rights and remedies as to any default shall operate as a waiver of such default or of any such rights or remedies, nor deprive any Party of its rights to institute and maintain any action or proceeding which it may deem necessary to protect, assert or enforce any such rights or remedies in the same or any subsequent default.
ARTICLE XI
INDEMNITY AND INSURANCE.
11.1 Indemnity. Developer shall indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and against any and all Claims, including without limitation, Claims arising directly or indirectly, in whole or in part, as a result of or in connection with Developer’s or Developer’s contractors, subcontractors, agents or employees development, rehabilitation, improvement, operation, ownership or maintenance of the Project or the Property, or any part thereof or otherwise arising out of or in connection with Developer’s performance under this Agreement. Developer’s indemnification obligations under this Section 11.1 shall not extend to Claims resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 11.1 shall survive the issuance of a Certificate of Completion for the Project and the expiration or earlier termination of this Agreement. It is further agreed that City do not and shall not waive any rights against Developer that they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement.
11.2 Insurance.
(a) Developer and all contractors working on behalf of Developer on the Project shall maintain the insurance coverage as described in the City Insurance Requirements attached hereto Exhibit I and incorporated herein.
(b) Prior to closing of the Loan, Developer shall furnish City with certificates of insurance in form acceptable to City evidencing the required insurance coverage and duly executed endorsements evidencing such additional insured status. Each certificate shall contain all provisions required in the City Insurance Requirements. (c) If any insurance policy or coverage required hereunder is canceled or reduced, Developer shall, within fifteen (15) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, City may, without further notice and at its option, procure such insurance coverage at Developer’s expense, and Developer shall promptly reimburse City for such expense upon receipt of billing from City.
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28 ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 No Brokers. Each Party warrants and represents to the other that no person or entity can properly claim a right to a real estate commission, brokerage fee, finder's fee, or other compensation with respect to the transactions contemplated by this Agreement. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section shall survive the expiration or earlier termination of this Agreement.
12.2 Enforced Delay; Extension of Times of Performance. Subject to the limitations setforth below, performance by any Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Parties, acts or failures to act of any other public or governmental agency or entity (other than the acts or failures to act of City which shall not excuse performance by City), or any other cause beyond the affected Party’s reasonable control. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Parties within thirty (30) days of the commencement of the cause and such extension is not rejected in writing by the other Parties within ten (10) days of receipt of the notice. None of theParties shall unreasonably withhold consent to an extension of time pursuant to this Section.
Times of performance under this Agreement may also be extended in writing by the mutual agreement of Developer and City (acting in the discretion of its City Manager unless he or she determines in his or her discretion to refer such matter to the City Council). City and Developer acknowledge that adverse changes in economic conditions, either of the affected Party specifically or the economy generally, changes in market conditions or demand, and/or inability to obtain financing to complete the work of Improvements shall not constitute grounds of enforced delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date.
12.3 Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(d)personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service;
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29 City: City of Newark
37101 Newark Blvd.
Newark, CA 94560
Attention: City Manager
Developer: Allied 39802 Cedar, LLC
c/o Allied Housing, Inc.
40849 Fremont Blvd.
Fremont, CA 94538
Attention: Chief Executive Officer
With a copy to: Gubb & Barshay LLP
235 Montgomery Street, Suite 1110
San Francisco, CA 94194
Attention: Nicole Kline
12.4 Attorneys’ Fees. If any Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys' fees and disbursements.
12.5 Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties.
12.6 Binding on Successors. Subject to the restrictions on Transfers set forth in Article VII, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named party shall be deemed to apply to any permitted successor and assign of such party who has acquired an interest in compliance with this Agreement or under law.
12.7 Construction. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since all of the Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it.
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30 12.8 Action or Approval. Except as may be otherwise specifically provided in this Agreement, whenever any approval, notice, direction, finding, consent, request, waiver, or other action by the City is required or permitted under this Agreement, such action may be given, made, or taken by the City Manager, or by any person who shall have been designated in writing to the Developer by the City, without further approval by the City Council. Any such action shall be in writing. The Developer acknowledges that nothing in this Agreement (including any approval by the City Manager in accordance with this Agreement) shall limit, waive, or otherwise impair the authority and discretion of: (i) the City's Community Development Department, in connection with the review and approval of the proposed construction plans for the Development (or any change to such plans), or any use, or proposed use, of the Property, (ii) the City's issuance of a building permit, or (iii) any other office or department of the City acting in its capacity as a governmental regulatory authority with jurisdiction over the development, use, or operation of the Development.
12.9 Entire Agreement. This Agreement, including the exhibits listed below, which are attached hereto and incorporated herein by this reference, together with the Regulatory Agreement, the City Documents contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof.
Exhibit A Legal Description of Property
Exhibit B Scope of Development
Exhibit C Schedule of Performance
Exhibit D Financing Plan
Exhibit E Form of Certificate of Completion
Exhibit F Form of Promissory Note
Exhibit G Form of Deed of Trust
Exhibit H Form of Regulatory Agreement
Exhibit I City Insurance Requirements
12.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages executed by the other Parties. Any executed counterpart of this Amendment may be delivered to the other Parties by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered.
12.11 Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability.
12.12 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.
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31 12.13 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another.
12.14 Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent of City shall be personally liable to Developer or its successors in interest in the event of any default or breach by City or for any amount which may become due to Developer or its successors in interest pursuant to this Agreement.
12.15 Time of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a “business day” means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of California.
12.16 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California.
SIGNATURES ON FOLLOWING PAGE.
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32 IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first written above.
DEVELOPER:
ALLIED 39802 CEDAR, LLC,
a California limited liability company
By: Allied Housing, Inc., a California
nonprofit public benefit corporation,
its sole member and manager
By:
Its:
CITY:
CITY OF NEWARK,
a California municipal corporation
By:
David Benoun, City Manager
ATTEST:
By:
Sheila Harrington, City Clerk
APPROVED AS TO FORM:
By:
Kristopher Kokotaylo, City
Attorney
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33 EXHIBIT A
LEGAL DESCRIPTION
Packet Page 1458
34 EXHIBIT B
SCOPE OF DEVELOPMENT
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35 EXHIBIT C
SCHEDULE OF PERFORMANCE
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36 EXHIBIT D
FINANCING PLAN
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37 EXHIBIT E
CERTIFICATE OF COMPLETION
Packet Page 1462
38 EXHIBIT F
FORM OF NOTE
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39 EXHIBIT G
FORM OF DEED OF TRUST
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40 EXHIBIT H
FORM OF REGULATORY AGREEMENT
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41 EXHIBIT I
CITY INSURANCE REQUIREMENTS
5161821.2
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1 Recording requested by and when
recorded mail to:
City of Newark
37101 Newark Blvd.
Newark, CA 94560
Attn: Community Development Director
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN: Space above this line for Recorder’s use.
AFFORDABLE HOUSING REGULATORY AGREEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
THE CITY OF NEWARK,
a California municipal corporation
and
ALLIED 39802 CEDAR, LLC,
a California limited liability company
(Cedar Community Apartments)
Dated _________, 2022
Attachment B Exhibit 2
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2 AFFORDABLE HOUSING REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
(Cedar Community Apartments)
This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _____________, 2022 (the “Effective Date”) by and between the City of Newark, a California municipal corporation (the “City”), and Allied 39802 Cedar, LLC, a California limited liability company (“Owner”). City and Owner are hereinafter collectively referred to as the “Parties.”
RECITALS
A. Owner owns that certain real property located at 39802 Cedar Boulevard, Newark, California, known as Cedar Community Apartments (the "Property"), as more particularly described on Exhibit A attached hereto and incorporated herein by this reference.
B. Owner intends to convert the Property into a one hundred twenty-five (125) unit affordable multifamily supportive housing development for chronically homeless persons and persons at risk of homelessness, consisting of fifty-seven (57) studio units, thirty-eight (38) onebedroom units, and thirty (30) two-bedroom units (the “Project”).
C. Owner and City have jointly applied for and have received approval of a Homekey grant from the State of California in the amount of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) (the “Homekey Grant”) to finance the Project. Developer and City have entered into a Standard Agreement with the California Department of Housing and Community Development, dated as of _____________________, 2022, which sets forth the requirements imposed in connection with the Homekey Grant (the “Project Homekey Agreement”).
D. City and Owner previously entered into that certain Loan Agreement dated concurrently herewith pursuant to which the City provided Owner with a loan of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) from the Project Homekey grant received by the City, plus an additional Six Million Dollars ($6,000,000) in funds from the City’s Housing Impact Fee Fund and American Rescue Plan Act (ARPA) Recovery Fund (the “Loan Agreement”). The Loan Agreement is evidenced by a Secured Promissory Note (the “Note) executed by Owner and dated as of the date hereof, and is secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the “Deed of Trust”) dated as of the date hereof and executed by Owner for the benefit of City. The Deed of Trust will be recorded in the Official Records of Alameda County substantially concurrently herewith.
E. Pursuant to the Loan Agreement and the Project Homekey Agreement, the Owner has agreed to restrict one hundred twenty-four (124) of the units in the Project as affordable to and occupied by or available for occupancy by extremely low income households for a period of not less than fifty-five (55) years (the “Restricted Units”).
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3 F. The Parties have agreed to enter into and record this Agreement in order to satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is to regulate and restrict the occupancy and rents of the Project’s Restricted Units for the benefit of the Project occupants and the City. The covenants in this Agreement are intended to run with the land and be binding on Owner and Owner’s successors and assigns for the full term of this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits.
1.1 “Actual Household Size” shall mean the actual number of persons in the applicable household.
1.2 “Area Median Income” or “AMI” means the area median income for Alameda County, California, adjusted for Actual Household Size, determined periodically by the California Department of Housing and Community Project (“HCD”) as published in Section 6932 of Title 25 of the California Code of Regulations (“Regulations”) or successor provision published pursuant to California Health and Safety Code Section 50093(c). If HCD ceases to make such determination, Area Median Income shall be the median income applicable to Alameda County, with adjustments for Actual Household Size, as determined from time to time by the U.S. Department of Housing and Urban Project (“HUD”) pursuant to the United States Housing Act of 1937 as amended, or such other method of median income calculation applicable to the City of Newark that HUD may hereafter adopt in connection with such Act.
1.3 "Assumed Household Size" means the household size "adjusted for family size appropriate to the unit" in accordance with California Health and Safety Code Section 50053.
1.4 “At Risk of Homelessness” is defined in Title 24 CFR Part 578.3.
1.5 “City” means the City of Newark, a California municipal corporation.
1.6 “Controlled Affiliate” is defined in Section 8.2.
1.7 “Deed of Trust” is defined in Recital D.
1.8 “Eligible Household” means a household for which total household income upon initial occupancy does not exceed the maximum income level for a Restricted Unit as specified in Sections 2.1 and 2.2, and is either Homeless or At Risk of Homelessness.
1.9 "Extremely-Low Income Household" shall mean a household, with a Household Income which does not exceed the extremely low income limits applicable to Packet Page 1469
4 Alameda County, as published and periodically updated by the California Department of Housing and Community Development pursuant to Section 50106 of the California Health and Safety Code.
1.10 “Extremely-Low Income Unit" mean the Units which pursuant to Section 2.1 below, are required to be occupied by Extremely-Low Income Households.
1.11 “Homekey Grant” is defined in Recital B hereof.
1.12 “Homeless” is defined in Title 24 CFR Part 578.3.
1.13 "Household Income" shall mean the total anticipated annual income of all persons in a household, as calculated in accordance with in 25 California Code of Regulations Section 6914, or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income.
1.14 “Indemnified Parties” is defined in Section 10.1.
1.15 “Note” is defined in Recital D.
1.16 “Owner” means Allied 39802 Cedar, LLC, a California limited liability company, and its successors and assigns.
1.17 “Project” shall mean the Property and the one hundred twenty-five (125) units to be developed on the Property, and any additional improvements and all landscaping, roads and parking spaces existing thereon, as the same may from time to time exist.
1.18 “Project Homekey Agreement” is defined in Recital C hereof.
1.19 “Property” is defined in Recital A.
1.20 “Qualifying Rent” means a monthly rent which does not exceed the amounts set forth in Section 2.1 below.
1.21 “Rent-Restricted” means a dwelling unit for which the gross rent charged for such unit does not exceed the Qualifying Rent, as adjusted for Assumed Household Size in accordance with the HCD Regulations and guidelines.
1.22 "Rent" shall mean the total of monthly payments by the tenants of a Unit for the following: use and occupancy of the Unit and land and associated facilities, including parking; any separately charged fees or service charges assessed by Owner which are required of all tenants, other than security deposits; the cost of an adequate level of service for utilities paid by the tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not cable or telephone service; any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than Owner, and paid by the Tenant. Utility allowances may Packet Page 1470
5 be determined by use of the utility allowance published by the Alameda County Housing Authority, or if no such allowance is published, by a similar public agency approved by the City.
1.23 “Restricted Unit” means a dwelling unit which is reserved for occupancy at a Qualifying Rent by an Extremely Low-Income Eligible Household in accordance with and as set forth in Sections 2.1 and 2.2.
1.24 "Tenant" shall mean a household occupying a Restricted Unit.
1.25 "Term" means the term of this Regulatory Agreement, which commences as of the Effective Date and shall terminate on the fifty-fifth (55th) anniversary of the City’s issuance of the certificate of completion for the Project in accordance with the Loan Agreement.
1.26 “Transfer” is defined in Section 8.1.
2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that the Property shall be shall be used solely for the conversion and operation of the Project subject to the occupancy and affordability restrictions set forth herein for the Term of this Agreement. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.
2.1 Occupancy Requirements.
For a term of fifty-five (55) years commencing upon the date of issuance of a final certificate of occupancy for the Project, no fewer than one hundred twenty-four (124) dwelling units in the Project shall be both Rent-Restricted and occupied (or if vacant, available for occupancy) by Eligible Households. The size and mix of the Restricted Units are set forth in Exhibit B.
2.1.1 Homeless or At Risk of Homelessness. Each of the residents of the Extremely Low Income Units shall be Homeless or At Risk of Homelessness, in such numbers as required by the Project Homekey Agreement.
2.1.2 Manager's Unit. One (1) Unit shall be reserved for an on-site manager and shall not be subject to affordability or occupancy restrictions set forth herein.
2.2 Qualifying Rent for Restricted Units.
2.2.1 Extremely Low Income Unit Rent. Subject to the provisions of Section
2.3 below, the Rent charged to Tenants of the Extremely Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of thirty percent (30%) of Area Median Income, adjusted for Assumed Household Size.
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6 2.3 Increased Income of Occupying Households.
2.3.1 Non-Qualifying Household. If, upon recertification of a Tenant's income, the Owner determines that a Tenant has an Adjusted Income exceeding the qualifying income for Extremely Low Income Household, adjusted for Actual Household Size, such Tenant shall be permitted to continue to occupy the Unit at a Rent not exceeding one-twelfth of thirty percent (30%) of the Tenant’s actual household income. [Discuss time limits for over-income tenants]
2.3.2 Continued Compliance. In the event an occupant household's income increases and the rent is increased as set forth in Section 2.3.1 above, the Restricted Unit shall continue to be classified as an Extremely Low Income Unit until such time as the Unit is vacated by the occupant.
2.4 Priority. In renting Restricted Units to Persons at Risk of Homelessness, Owner shall give first priority to Eligible Households in which at least one member lives or works in the City of Newark, unless compliance with the foregoing criteria is prohibited by law or by the County financing or by other state or federal sources of financing for the Project. If such priority is prohibited by County or other financing, Owner shall cooperate with City in seeking and applying for applicable approvals for such priority. Upon obtaining applicable approval for such priority, Owner shall make such modifications to the Marketing and Management Plan as are necessary to implement such priority.
2.5 No Condominium Conversion. Owner shall not convert the Project to condominium or cooperative ownership or sell condominium or cooperative rights to the Project during the term of this Agreement.
2.6 Non-Discrimination; Compliance with Fair Housing Laws.
2.6.1 Fair Housing. Owner shall comply with state and federal fair housing laws in the marketing and rental of the units in the Project. Owner shall accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto.
2.6.2 Non-Discrimination. The Owner covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Property and the Project, nor shall the Owner itself or any person claiming under or through it establish or Packet Page 1472
7 permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land.
2.6.3 Section 8 Certificate Holders. Owner 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 housing program under Section 8 of the United States Housing Act, or its successor, or similar programs. Owner shall not apply selection criteria to holders of Section 8 certificate or similar certificates or vouchers that is more burdensome than criteria applied to all other prospective tenants, nor shall Owner apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of units by such prospective tenants.
2.7 Loss of Subsidy. In the event the Section 8 subsidy (“PBV”) to the Project has not been renewed and/or is terminated, and the Owner, after a diligent effort, has been unable to obtain a substitute subsidy in a comparable amount, Owner may propose that rents for any rent-restricted units losing such PBV can be increased to 30% x 60% of Area Median Income, adjusted for Assumed Household Size, and that maximum incomes for residents of such units be increased to 60% of Area Median Income, subject to the reasonable approval of the City and the written consent of the California Department of Housing and Community Development. City shall meet and confer in good faith with Owner regarding such proposed change in maximum rents and incomes, and the Parties shall execute and record such changes to the Project Homekey Agreement and this Agreement as necessary to implement such changes.
2.8 Compliance with Project Homekey Agreement. The Parties agree that, regardless of whether the City is jointly or solely responsible for performance of the requirements of the Project Homekey Agreement under the terms of that agreement, the Owner shall perform all of the requirements of the Grantee under the Project Homekey Agreement, and City shall not be responsible for performance of such obligations. Such requirements to be performed by the Owner shall include, without limitation, compliance with maximum income and rent requirements, meeting all program deadlines, compliance with all rent standards, use in accordance with eligible uses, compliance with all performance milestones, preparation and submission of all required reporting, compliance with all conditions of disbursement of the Homekey Grant, compliance with prevailing wage laws, liability for environmental requirements, insurance requirements, relocation requirements, and adaptability and accessibility requirements, submission and compliance with the property management plan, supportive services plan and affirmative fair housing marketing plan, compliance with fair housing requirements, and compliance with record retention, inspection and audit requirements.
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8 3. Income Certification & Reporting
3.1 Reporting Requirements.
3.1.1 Tenant Certification. Owner or Owner’s authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as City may reasonably require:
(a) The identity and age of each member of the household; and (b) Total household income.
3.1.2 The Owner shall make a good faith effort to verify that the income provided by an applicant or occupying household in an income certification is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a pay stub for the most recent pay period; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency or similar search; (4) obtain an income verification form from the applicant's current employer; (5) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (6) if the applicant is unemployed and has no such tax return, obtain another form of independent verification.
3.1.3 Owner shall retain such certificates for not less than three (3) years, and upon City’s request, shall make the originals available for inspection by City and shall provide copies of such certificates to City.
3.2 Annual Report; Inspections. Owner shall submit an annual report (“Annual Report”) to the City in form satisfactory to City, together with a certification that the Project is in compliance with the requirements of this Agreement.
3.2.1 Owner shall submit to the City such Annual Report:
(a) Not later than the ninetieth (90th) day after the close of each fiscal year of the City; or such other date as may be requested by City; and
(b) Within fifteen (15) days after receipt of a written request, any other information or completed forms requested by City in order to comply with reporting requirements of the State of California.
3.2.2 The Annual Report shall, at a minimum, include the following information for each dwelling unit in the Project:
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9 (a) Unit number;
(b) Identification of the Unit as an Extremely Low Income Unit; (c) Current rent and other charges;
(d) Dates of any vacancies during the previous year;
(e) Number of people residing in the unit;
(f) Total household income of residents;
(g) Documentation of source of household income;
(h) Designation of tenant as Homeless or At Risk of Homelessness as of initial occupancy; and
(i) The information required by Section 3.1.1.
3.2.3 Upon City’s request, Owner shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to show compliance with this Agreement. The Annual Report shall conform to the format requested by City; provided however, during such time that the Project is subject to a regulatory agreement restricting occupancy and/or rents pursuant to requirements imposed in connection with the use of federal low-income housing tax credits or tax-exempt financing, Owner may satisfy the requirements of this Section by providing City with a copy of compliance reports required in connection with such financing.
3.3 On-site Inspection. Owner shall permit representatives of City to enter and inspect the Property and the Project during reasonable business hours in order to monitor compliance with this Agreement upon 24-hours advance notice of such visit to Owner or to Owner's management agent.
3.4 Records. The Owner shall maintain complete, accurate and current records pertaining to the Project, and shall permit any duly authorized representative of the City to inspect records, including records pertaining to income and household size of tenants. All tenant lists, applications and waiting lists relating to the Project shall at all times be kept separate and identifiable from any other business of the Owner and shall be maintained as required by the City in a reasonable condition for proper audit and subject to examination during business hours by representatives of the City. The Owner shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least five (5) years.
4. Term of Agreement.
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10 4.1 Term of Restrictions. This Agreement shall remain in effect through the fiftyfifth (55th) anniversary of the City’s issuance of the certificate of completion for the Project in accordance with the Loan Agreement.
4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This Agreement shall remain effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge the terms of this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement in accordance with its terms.
4.4 Notice of Expiration of Term. Owner shall comply with the requirements set forth in California Government Code Sections 65863.10 and 65863.11, and any other applicable law existing at the time of expiration of the Term. Such notice requirements include: (i) a twelve (12) month notice to existing tenants, prospective tenants and Affected Public Agencies (as defined in California Government Code Section 65863.10(a)) prior to the expiration of the Term, (ii) a six (6) month notice requirement to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term; (iii) a notice of an offer to purchase the Project to "qualified entities" (as defined in California Government Code Section 65863.11(d)), if the Project is to be sold within five (5) years of the end of the Term; (iv) a notice of right of first refusal within the one hundred eighty (180) day period that qualified entities may purchase the Project.
5. Binding Upon Successors; Covenants to Run with the Land.
5.1 Owner hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement.
Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or Packet Page 1476
11 other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby.
5.2 Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
6.1 Management Responsibilities. Owner shall be responsible for all management functions with respect to the Property and the Project, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security.
Except as City may otherwise agree in writing, City shall have no responsibility for management or maintenance of the Property or the Project.
6.2 Management Entity. Unless managed directly by Owner, the Project shall at all times be managed by an experienced management agent reasonably acceptable to City, with demonstrated ability to operate residential facilities like the Project in a manner that will provide decent, safe, and sanitary housing (as approved, the "Management Agent"). The Owner shall submit for City's approval the identity of any proposed Management Agent. The Owner shall also submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the City to determine whether the proposed Management Agent meets the standard for a qualified Management Agent set forth above. If the proposed Management Agent meets the standard for a qualified Management Agent set forth above, City shall approve the proposed Management Agent by notifying the Owner in writing.
Unless the proposed Management Agent is disapproved by City within thirty (30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved.
6.2.1 Performance Review. City reserves the right to conduct an annual (or more frequently, if deemed reasonably necessary by City) review of the management practices and financial status of the Project. The purpose of each periodic review will be to enable City to determine if the Project is being operated and managed in accordance with the requirements and standards of this Agreement. The Owner shall cooperate with City in such reviews.
6.2.2. Replacement of Management Agent. If, as a result of a periodic review, City determines in its reasonable judgment that the Project is not being Packet Page 1477
12 operated and managed in accordance with any of the material requirements and standards of this Agreement, City shall deliver notice to Owner of its intention to cause replacement of the Management Agent, including the reasons therefor. Within fifteen (15) days of receipt by Owner of such written notice, City staff and Owner shall meet in good faith to consider methods for improving the financial and operating status of the Project. If after a reasonable period as determined by City (not to exceed sixty (60) days), City determines that the Owner is not operating and managing the Project in accordance with the material requirements and standards of this Agreement, City may require replacement of the Management Agent.
If, after the above procedure, City requires in writing the replacement of the Management Agent, Owner shall promptly dismiss the then Management Agent, and shall appoint as the Management Agent a person or entity meeting the standards for a Management Agent set forth in above and approved by City.
Any contract for the operation or management of the Project entered into by Owner shall provide that the contract can be terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section shall constitute default under this Agreement.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner shall at its own expense, maintain the Property and the Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including without limitation, the residential units, common meeting rooms, common areas, landscaping, driveways and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair.
Owner shall provide adequate safety and security services for occupants of the Project, including without limitation parking lot and pathway lighting and security cameras. Owner shall conduct a yearly security inspection, employing Crime Prevention Through Environmental Design (CPTED) principles, and illegal activity review with Newark Police Department. Owner shall maintain an on-site contact, available 24 hours per day, to receive complaints and concerns from the community, and Owner shall promptly respond to and address such complaints and concerns. Documents and reports relating to security inspections, community complaints and concerns, and illegal activities on the Property shall be maintained and available for inspection by the City.
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13 6.3.1. Property Maintenance. Owner acknowledges that adequate property maintenance is necessary to protect investments and to ensure that the Property and Project is not allowed to deteriorate due to below-average maintenance. Owner shall make all repairs and replacements necessary to keep the improvements in good condition.
6.3.2 Yard Area. Owner shall not leave any yard areas on the Property unmaintained, including broken or discarded furniture, appliances and other, household equipment stored in yard areas for a period exceeding one (1) week; packing boxes, lumber trash, dirt and other debris in areas visible from public property or neighboring properties; and vehicles parked or stored in other than approved parking areas.
6.3.3 Building. Owner shall not leave any buildings located on the Property in an unmaintained condition so that any of the following exist: violations of state law, uniform codes, or City ordinances; conditions that constitute an unsightly appearance that detracts from the aesthetics or value of the Property or constitutes a private or public nuisance; broken windows; graffiti (must be removed within 72 hours); and, conditions constituting hazards and/or inviting trespassers, or malicious mischief.
6.3.4 Safety and Security. Owner acknowledges that it is a priority of the City to facilitate the security development and the safety of the residents and surrounding community. Owner shall implement and maintain throughout the Term the following security measures in the Project:
a. To the extent feasible, Owner shall employ defensible space design principles and crime prevention measures in the operation of the Project including but not limited to conducting a yearly security inspection, employing Crime Prevention Through Environmental Design (CPTED) principles, and illegal activity review with City of Newark Police Department.
b. Owner shall provide adequate safety and security services for occupants of the Project, including without limitation parking areas and pathway lighting and security cameras.
c. Owner shall use best efforts to work with the City of Newark Police Department to implement and operate an effective neighborhood watch program.
d. Owner shall provide added security including dead-bolt locks for every entry door, and where entry doors are damaged, replace them with solid-core doors.
e. Owner shall maintain an on-site contact, available 24 hours per day, to receive complaints and concerns from the community, and Packet Page 1479
14 Owner shall promptly respond to and address such complaints and concerns.
f. The City shall have the right to enter on the Property and/or contact the City of Newark Police Department if it becomes aware of or is notified of any conditions that pose a danger to the peace, health, welfare or safety of the Tenants and/or the surrounding community, and to perform or cause to be performed such acts as are necessary to correct the condition. The City shall provide Owner notice of its contact with the City of Newark Police Department.
g. Documents and reports relating to security inspections, community complaints and concerns, and illegal activities on the Property shall be maintained and available for inspection by the City.
6.3.5 City’s Right to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property.
6.3.6 Costs. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the rate of 10% per annum.
6.4 Marketing and Management Plan. Owner has submitted to City and City has reviewed and approved a plan for marketing and managing the Property (“Marketing and Management Plan”). The Marketing and Management Plan addresses in detail how Owner plans to market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s tenant selection criteria, and how Owner plans to certify the eligibility of Eligible Households. The Plan also describes the management team and addresses how the Owner and the management entity plan to manage and maintain the Property and the Project. The Plan includes the proposed management agreement and the form of rental agreement that Owner proposes to enter into with Project tenants. Owner shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property and the Project, and throughout the term of this Agreement, shall submit proposed modifications to City for its review and approval.
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15 6.5 Social Services. Owner shall provide a variety of social services at the Project.
Such social services shall be in accordance with the Project Homekey Agreement.
Owner shall use its best efforts to create a comprehensive social service program that is targeted to the needs of the residents of the Project which may include, but is not limited to, the following services: service coordination, referrals to community resources, financial literacy, life skills training, individual service plans, benefits enrollment assistance, housing retention and stability support, computer training, educational assistance, recreational and community building activities. Owner shall ensure that all personnel providing or coordinating all social services shall be adequately trained and counseled, including with respect to the appropriate means and methods of communicating and interacting with residents. Any substantive change in the scope, amount, or type of social services to be provided at the Property shall be subject to prior reasonable approval of City and approval shall not be unreasonably withheld.
6.6 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies, including without limitation possessory interest taxes, if applicable, imposed by any public authority or utility company with respect to the Property or the Project, and shall pay such charges prior to delinquency. However, Owner shall not be required to pay any such charge so long as: i) Owner is contesting such charge in good faith and by appropriate proceedings, ii) Owner maintains reserves adequate to pay any contested liabilities, and iii) On final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest.
6.7 Insurance Coverage. Prior to issuance of building permits for the Project, and continuing throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in the Loan Agreement, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in the Loan Agreement; provided however, during such time that lenders or low-income housing tax credit investors providing financing for the Project impose insurance requirements that are inconsistent with the requirements set forth in the Loan Agreement, Owner may satisfy the requirements of this Section by meeting the requirements of such lenders or investors. Notwithstanding the foregoing, throughout the term hereof, Owner shall comply with the provisions of the Loan Agreement pertaining to (i) provision to City of proof of insurance for the Project, (ii) naming of City as additional insured, and (iii) provision to City of notice of cancellation or reduction in coverage.
6.8 Property Damage or Destruction. If any part of the Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced within 120 days after the damage or loss occurs and shall be completed within one year thereafter, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible.
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16 7. Recordation; No Subordination. This Agreement shall be recorded in the Official Records of Alameda County. Owner hereby represents, warrants and covenants that with the exception of easements of record, if any, absent the written consent of City, this Agreement shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Property or the Project. If at the time this Agreement is recorded, any interest, lien, or encumbrance has been recorded against the Project in position superior to this Agreement, upon the request of City, Owner hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section 7, and to provide such evidence thereof as City may reasonably request.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to the Loan Agreement or this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property, the Project, or the Improvements, without the prior written consent of the City.
8.2 Permitted Transfers. The City shall not withhold its consent to the following Transfers: (i) the granting of utility easements or permits to facilitate development of the Property; (ii) the dedication of any property required pursuant to this Agreement; (iii) the lease of individual units to tenants for occupancy as their principal residence in accordance with this Agreement; (iv) assignments creating security interests for the purpose of financing the acquisition, construction or permanent financing of the Project or the Property in accordance with the approved Financing Plan contained in the Loan Agreements, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; and (v) a Transfer to entity which is under the direct control or under common control with Owner or in which Owner is the sole member or the general partner (“Controlled Affiliate”).
8.3 Encumbrances. Owner agrees to use best efforts to ensure that any deed of trust secured by the Project for the benefit of a lender other than City (“Third-Party Lender”) shall contain each of the following provisions:
8.3.1 Third-Party Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner (provided however, the failure to do so shall not impair such Third-Party Lender’s rights and remedies); and
8.3.2 City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure.
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17 Owner agrees to provide to City a copy of any notice of default Owner receives from any Third-Party Lender within three (3) business days following Owner’s receipt thereof.
8.4 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser.
Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred.
9. Default and Remedies.
9.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder (“Event of Default”):
(a) The occurrence of a Transfer in violation of this Agreement; (b) Owner’s failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Owner to cure such default within 10 days.
(c) Subject to Owner’s right to contest the following charges, Owner’s failure to pay taxes or assessments due on the Property or the Project or failure to pay any other charge that may result in a lien on the Property or the Project, and Owner’s failure to cure such default within 10 days.
(d) Owner’s default in the performance of any term, provision or covenant under this Agreement, and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within 30 days, Owner’s failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default with due diligence and in good faith, but in no event longer than 120 days from receipt of the notice of default.
9.2 Remedies.
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18 9.2.1 If within the applicable cure period, Owner fails to cure a default or fails to commence to cure and diligently pursue completion of a cure, as applicable, or if a cure is not possible, City may proceed with any of the following remedies:
(a) Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief;
(b) For violations of obligations with respect to rents for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Qualifying Rent; (c) Pursue any other remedy allowed at law or in equity, or authorized by the Deed of Trust.
9.2.2 Each of the remedies provided herein is cumulative and not exclusive.
The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.
10. Indemnification.
10.1 Notwithstanding the insurance coverage required hereunder, Owner shall defend, indemnify and hold the City and its officials, officers, directors, employees, and agents (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses (including reasonable attorneys' fees) which an Indemnified Party may incur as a result of:
10.1.1 Owner's failure to perform any obligation as and when required by this Agreement;
10.1.2 Owner's failure to perform any obligation of the Project Homekey Agreement as and when required by the Project Homekey Agreement;
10.1.3 Any failure of Owner's representations or warranties to be true and complete in all material respects when made; or
10.1.4 Any act or omission by Owner, or any of Owner’s contractors, subcontractors, agents, employees, licensees or suppliers with respect to the Project or the Property, except to the extent that such losses are caused by the gross negligence or willful misconduct of such Indemnified Party.
10.2 Owner shall pay immediately upon an Indemnified Party's demand any amounts owing under the indemnity provided under this Section. The duty of Owner to indemnify includes the duty to defend the Indemnified Party in any court action, Packet Page 1484
19 administrative action, or other proceeding brought by any third party arising in connection with the Project or the Property with counsel reasonably approved by City. Owner's duty to indemnify the Indemnified Parties shall survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
11.1 HCD as Third Party Beneficiary. The Department of Housing and Community Development of the State of California is an intended third party beneficiary of this Agreement, and shall have the right, but not the obligation, to enforce any portion of this Agreement.
11.2 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties.
11.3 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.
11.4 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: i) Personal delivery, in which case notice is effective upon delivery; ii) Certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; iii) Nationally recognized overnight courier, in which case notice is effective on delivery if delivery is confirmed by the delivery service; iv) such other method as mutually agreed by the Parties in writing.
11.4.1 All such notices shall be sent to:
City: City of Newark
37101 Newark Blvd.
Newark, CA 94560
Attn: Community Development Director
Owner: Allied 39802 Cedar, LLC
c/o Allied Housing, Inc.
40849 Fremont Blvd.
Fremont, CA 94538
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20 Attention: Chief Executive Officer
11.5 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.
11.6 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another.
11.7 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or designee, without further approval by the City Council.
11.8 Non-Liability of City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Owner or its successor or for any obligation of City under this Agreement.
11.9 Headings; Construction. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party.
11.10 Time is of the Essence. Time is of the essence in the performance of this Agreement.
11.11 Governing Law. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law.
11.12 Attorneys' Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.
11.13 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.
11.14 Entire Agreement; Exhibits. This Agreement, together with the City Documents contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto.
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21 11.15 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants as of the date first written above.
CITY OF NEWARK ALLIED 39802 CEDAR, LLC
a California charter city a California limited liability company By:______________________________ By: Allied Housing, Inc., a California City Manager nonprofit public benefit corporation,
its sole member and manager
By: _____________________________
Title: ____________________________
ATTEST:
By: ___________________________
City Clerk
APPROVED AS TO FORM:
By: ___________________________
City Attorney
SIGNATURES MUST BE NOTARIZED.
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22 STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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23 Exhibit A
LEGAL DESCRIPTION
(Attach legal description of Property.)
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24 Exhibit B
Unit Mix Restrictions
The units in the Project shall be occupied by (or if vacant available for occupancy by) in accordance with the chart below and the requirements of Section 2 of the Agreement.
Unit Type Extremely
Low Income
Unit
Very Low
Income Unit
Low Income
Unit
Manager’s
Unit
Total
Studio 57 57
One Bedroom 38 38
Two Bedroom 29 1 30
Total 124 1 125
5161835.3
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1 Recording requested by and when
recorded mail to:
City of Newark
37101 Newark Boulevard
Newark, CA 94560
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(Cedar Community Apartments)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust”) is made as of ___________________, 2022, by ALLIED 39802 CEDAR, LLC, a California limited liability company (“Trustor”), to Chicago Title Insurance Company as trustee (“Trustee”), for the benefit of the City of Newark, a California municipal corporation (“Beneficiary”).
RECITALS
A. Trustor owns fee simple title to the land described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). Trustor intends to convert the improvements on the Property into a 125 unit multifamily residential apartment complex on the Property and related improvements (the “Project”).
B. Beneficiary and Trustor have entered into a Loan Agreement dated as of ______________, 2022 (the “Loan Agreement”), pursuant to which Beneficiary will provide a loan to Trustor in the amount of Forty-Four Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($44,156,293.00) (“Loan”) for the purpose of financing the Project. Trustor has issued to Beneficiary a secured promissory note dated as of the date hereof (the “Note”) to evidence Trustor’s obligation to repay the Loan. This Deed of Trust, the Loan Agreement, the Note and the Regulatory Agreement (defined below) are collectively referred to herein as the “City Documents.”
C. As a condition precedent to the making of the Loan, Beneficiary has required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of Beneficiary, a lien and security interest in the Project and in Trustor’s fee simple interest in the Property to secure repayment of the Note and performance of Trustor’s obligations under the Loan Agreement and the other City Documents.
Attachment B, Exhibit 3
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2 NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing payment and performance of the Secured Obligations defined and described in Section 2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title and interest which Trustor now has or may later acquire in and to the Property, and all of the following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or constructed on the Property (“Improvements”);
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires and other rights used in connection with the Property or the Improvements or as a means of access thereto, whether now or hereafter owned or constructed or placed upon or in the Property or Improvements and all existing and future privileges, rights, franchises and tenements of the Property, including all minerals, oil, gas and other commercially valuable substances which may be in, under or produced from any part of the Property, and all water rights, rights of way, gores or strips of land, and any land lying in the streets, ways, and alleys, open or proposed, in front of or adjoining the Property and Improvements (collectively, “Appurtenances”); c. All machinery, equipment, fixtures, goods and other personal property of the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor and now or hereafter located at or used in connection with the Property, the Improvements or Appurtenances, and all improvements, restorations, replacements, repairs, additions or substitutions thereto (collectively, “Equipment”);
d. All existing and future leases, subleases, licenses, and other agreements relating to the use or occupancy of all or any portion of the Property or Improvements (collectively, “Leases”), all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other payments which may now or hereafter accrue or otherwise become payable thereunder to or for the benefit of Trustor, including but not limited to security deposits (collectively, “Rents”);
e. All insurance proceeds and any other proceeds from the Property, Improvements, Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made with or other security deposits given to utility companies, all claims or demands relating to insurance awards which the Trustor now has or may hereafter acquire, including all advance payments of insurance premiums made by Trustor, and all condemnation awards or payments now or later made in connection with any condemnation or eminent domain proceeding (“Proceeds”);
f. All revenues, income, rents, royalties, payments and profits produced by the Property, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired by Trustor (“Gross Revenues”);
g. All architectural, structural and mechanical plans, specifications, design Packet Page 1492
3 documents and studies produced in connection with development of the Property and construction of the Improvements (collectively, “Plans”); and h. All interests and rights in any private or governmental grants, subsidies, loans or other financing provided in connection with development of the Property and construction of the Improvements (collectively, “Financing”).
All of the above-referenced interests of Trustor in the Property, Improvements, Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as hereby conveyed to Trustee or made subject to the security interest herein described are collectively referred to herein as the “Property.”
2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment and performance of the following (collectively, the “Secured Obligations”): (i) all present and future indebtedness evidenced by the Note and any amendment thereof, including principal, interest and all other amounts payable under the terms of the Note; (ii) all present and future obligations of Trustor to Beneficiary under the Loan Agreement, the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants dated as of the date hereof, executed by and between City and Trustor and recorded substantially concurrently herewith (the “Regulatory Agreement”) or the other City Documents; (iii) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future) which states that it is or such obligations are, secured by this Deed of Trust; (iv) all obligations of Trustor to Beneficiary under all modifications, supplements, amendments, renewals, or extensions of any of the foregoing, whether evidenced by new or additional documents; and (v) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this Deed of Trust or any other City Document as such may be modified, supplemented, amended, renewed or extended.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits, revenue, income and proceeds of the Property. This is an absolute assignment and not an assignment for security only. Beneficiary hereby confers upon Trustor a license to collect and retain such Rents, royalties, issues, profits, revenue, income and proceeds as they become due and payable prior to any Event of Default hereunder. Upon the occurrence of any such Event of Default, Beneficiary may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as Beneficiary may determine. Beneficiary’s right to the rents, royalties, issues, profits, revenue, income and proceeds of the Property does not depend upon whether or not Beneficiary takes possession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If an Event of Default occurs while Beneficiary is in possession of all or part of the Packet Page 1493
4 Property and/or is collecting and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Property or the Improvements, Beneficiary shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of Trustor under any Lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it, and shall not be responsible for any waste committed by Trustor, lessees or any third parties, or for dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property. Absent Beneficiary’s written consent, Trustor shall not accept prepayment of Rents for any rental period exceeding one month.
4. Security Agreement. The parties intend for this Deed of Trust to create a lien on the Property, and an absolute assignment of the Rents and Leases, all in favor of Beneficiary. The parties acknowledge that some of the Property may be determined under applicable law to be personal property or fixtures. To the extent that any Property may be or be determined to be personal property, Trustor as debtor hereby grants to Beneficiary as secured party a security interest in all such Property to secure payment and performance of the Secured Obligations. This Deed of Trust constitutes a security agreement under the California Uniform Commercial Code, as amended or recodified from time to time (the “UCC”), covering all such Property. To the extent such Property is not real property encumbered by the lien granted above, and is not absolutely assigned by the assignment set forth above, it is the intention of the parties that such Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such section may be modified or supplemented) of the Property and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes Beneficiary, as secured party, to file such financing statements and amendments thereof and such continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest in the Property and Rents, without requiring any signature or further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches as Beneficiary may reasonably require. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall not be construed as in any way derogating from or impairing this Deed of Trust or the rights or obligations of the parties under it.
Everything used in connection with the Property and/or adapted for use therein and/or which is described or reflected in this Deed of Trust is, and at all times and for all purposes and in all proceedings both legal or equitable shall be regarded as part of the estate encumbered by this Deed of Trust irrespective of whether (i) any such item is physically attached to the Improvements, (ii) serial numbers are used for the better identification of certain equipment items capable of being thus identified in a recital contained herein or in any list filed with Beneficiary, or (iii) any such item is referred to or reflected in any such financing statement so filed at any time. Similarly, the mention in any such financing statement of (1) rights in or to the proceeds of any fire and/or hazard insurance policy, or (2) any award in eminent domain Packet Page 1494
5 proceedings for a taking or for lessening of value, or (3) Trustor's interest as lessor in any present or future lease or rights to income growing out of the use and/or occupancy of the property conveyed hereby, whether pursuant to lease or otherwise, shall not be construed as in any way altering any of the rights of Beneficiary as determined by this instrument or impugning the priority of Beneficiary’s lien granted hereby or by any other recorded document. Such mention in any financing statement is declared to be solely for the protection of Beneficiary in the event any court or judge shall at any time hold, with respect to the matters set forth in the foregoing clauses (1), (2), and (3), that notice of Beneficiary's priority of interest is required in order to be effective against a particular class of persons, including but not limited to the federal government and any subdivisions or entity of the federal government.
6. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing pursuant to the provisions of the UCC with respect to all of the Property constituting fixtures, is being recorded as a fixture financing statement and filing under the UCC, and covers property, goods and equipment which are or are to become fixtures related to the Property and the Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed in the real estate records of Alameda County and shall also operate from the date of such filing as a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC. This Deed of Trust shall also be effective as a financing statement covering minerals or the like (including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the Parties.
7.1 Representations and Warranties. Trustor represents and warrants that: (i) Trustor lawfully possesses and holds a fee simple interest in the Property and the Improvements, (ii) Trustor has good and marketable title to all of the Property; (iii) Trustor has the full and unlimited power, right and authority to encumber the Property and assign the Rents; (iv) subject only to encumbrances of record and senior liens permitted pursuant to the City Documents or otherwise approved in writing by Beneficiary (“Permitted Encumbrances”), this Deed of Trust creates a valid first lien on Trustor’s entire interest in the Property; (v) except with respect to Permitted Encumbrances, Trustor owns the Property free and clear of any deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts, (vi) there is no financing statement affecting the Property on file in any public office other than as disclosed in writing to Beneficiary; and (vii) the correct address of Trustor’s chief executive office is specified in Section 10.2.
Trustor further represents and warrants that this Deed of Trust and all other documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do not violate the provisions of any agreement to which Trustor is a party or which affects the Property.
Trustor further represents and warrants that there are no pending, or to Trustor’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect Trustor’s ownership of the Property.
7.2 Payment and Performance of Secured Obligations. Trustor shall promptly pay Packet Page 1495
6 when due the principal and any interest due on the indebtedness evidenced by the Note, and shall promptly pay and perform all other obligations of Trustor arising in connection with the Secured Obligations or the City Documents in accordance with the respective terms thereof.
7.3 Use of Loan Proceeds; Preservation and Maintenance of Property; Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan (the “Loan Proceeds”) solely for purposes authorized by the City Documents. Trustor shall keep the Property and Improvements in good repair and condition, and from time to time shall make necessary repairs, renewals and replacements thereto so that the Property shall be preserved and maintained.
Trustor covenants to comply with all federal, state and local laws, regulations, ordinances and rules applicable to the Property and the Project, including without limitation all applicable requirements of state and local building codes and regulations, and all applicable statutes and regulations relating to accessibility for the disabled. Trustor shall not remove, demolish or materially alter any Improvement without Beneficiary’s consent, shall complete or restore promptly and in good and workmanlike manner any building, fixture or other improvement which may be constructed, damaged, or destroyed thereon, and shall pay when due all claims for labor performed and materials furnished therefor. Trustor shall use the Property and Improvements solely for purposes authorized by the City Documents, shall not commit or allow waste of the Property, and shall not commit or allow any act upon or use of the Property which would violate any applicable law or order of any governmental authority, nor shall Trustor bring on or keep any article on the Property or cause or allow any condition to exist thereon which could invalidate or which would be prohibited by any insurance coverage required to be maintained on the Property pursuant to the City Documents.
7.4 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event of Default hereunder if any Transfer (as defined in the Loan Agreement) of the Property, any part thereof or any interest therein occurs in violation of the requirements of the City Documents.
If any such Transfer occurs in violation of such requirements, without limiting the provisions of Section 8 hereof, all obligations secured by this Deed of Trust, irrespective of the maturity dates of such obligations, shall at the option of Beneficiary, and without demand, immediately become due and payable, subject to any applicable cure period.
7.5 Inspections; Books and Records. Beneficiary and its agents and representatives shall have the right at any reasonable time upon reasonable notice to enter upon the Property and inspect the Property to ensure compliance with the City Documents. Trustor shall maintain complete and accurate books of account and other records (including copies of supporting bills and invoices) adequate to document the use of the Loan Proceeds and the operation of the Property, together with copies of all written contracts, Leases and other instruments which affect the Property. The books, records, contracts, Leases and other instruments shall be subject to examination and inspection at any reasonable time by Beneficiary following two business days prior notice.
7.6 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all taxes, levies, assessments and other charges affecting the Property that are (or if not paid may become) a lien on all or part of the Property. Trustor may, at Trustor’s expense, contest the Packet Page 1496
7 validity or application of any tax, levy, assessment or charge affecting the Property by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor shall have posted a bond or furnished other security as may reasonably be required from time to time by Beneficiary; and provided further that Trustor shall timely make any payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.7 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances, whether released of record or not, which are discharged in whole or in part by Beneficiary in accordance with this Deed of Trust.
7.8 Hazard, Liability and Workers’ Compensation Insurance. At all times during the term hereof, Trustor shall at Trustor’s expense, maintain insurance policies in accordance with the requirements set forth in the City Documents. Trustor shall file with Beneficiary prior to the commencement of the term hereof, certificates (or such other proof as Beneficiary may reasonably require, including without limitation copies of the required insurance policies) evidencing each of the insurance policies and endorsements thereto as required pursuant to the City Documents, and such certificates (or policies) shall provide that at least thirty (30) days’ prior written notice shall be provided to Beneficiary prior to the expiration, cancellation or change in coverage under each such policy. If any insurance policy required pursuant to the City Documents is canceled or the coverage provided thereunder is reduced, Trustor shall, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with Beneficiary a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Beneficiary may, without further notice and at its option, procure such insurance coverage at Trustor’s expense, and Trustor shall promptly reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.
7.9 Condition of Property. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has not received any notice from any governmental authority of any threatened or pending zoning, building, fire, or health code violation or violation of other governmental regulations concerning the Property that has not previously been corrected, and no condition on the Property violates any health, safety, fire, environmental, sewage, building, or other federal, state or local law, ordinance or regulation; (ii) no contracts, licenses, leases or commitments regarding the maintenance or use of the Property or allowing any third party rights to use the Property are in force; (iii) there are no threatened or pending actions, suits, or administrative proceedings against or affecting the Property or any portion thereof or the interest of Trustor in the Property; (iv) there are no threatened or pending condemnation, eminent domain, or similar proceedings affecting the Property or any portion thereof; (v) Trustor has not received any notice from any insurer of defects of the Property which have not been corrected; (vi) there are no natural or artificial conditions upon the Property or any part thereof that could result in a material and adverse change in the condition of the Property; (vii) all information that Trustor has delivered to Beneficiary, either directly or through Trustor's agents, is accurate and complete; and (viii) Trustor or Trustor’s agents have disclosed to Beneficiary all material facts concerning the Property.
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8 7.10 Hazardous Materials. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof to the best knowledge of Trustor: (i) the Property is free and has always been free of Hazardous Materials (as defined below) and is not and has never been in violation of any Environmental Law (as defined below); (ii) there are no buried or partially buried storage tanks located on the Property; (iii) Trustor has received no notice, warning, notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have ever been in violation of any Environmental Law or informing Trustor that the Property is subject to investigation or inquiry regarding Hazardous Materials on the Property or the potential violation of any Environmental Law; (iv) there is no monitoring program required by the Environmental Protection Agency or any other governmental agency concerning the Property; (v) no toxic or hazardous chemicals, waste, or substances of any kind have ever been spilled, disposed of, or stored on, under or at the Property, whether by accident, burying, drainage, or storage in containers, tanks, holding areas, or any other means; (vi) the Property has never been used as a dump or landfill; and (vii) Trustor has disclosed to Beneficiary all information, records, and studies in Trustor’s possession or reasonably available to Trustor relating to the Property concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Materials (as defined in Section 9.3 of the Loan Agreement) to be brought upon, kept, stored or used in, on, under, or about the Property by Trustor, its agents, employees, contractors or invitees except for incidental supplies ordinarily used in the construction and operation of residential developments in compliance with all applicable laws, and shall not cause any release of Hazardous Materials into, onto, under or through the Property. If any Hazardous Material is discharged, released, dumped, or spilled in, on, under, or about the Property and results in any contamination of the Property or adjacent property, or otherwise results in the release or discharge of Hazardous Materials in, on, under or from the Property, Trustor shall promptly take all actions at its sole expense as are necessary to comply with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold Beneficiary and its elected and appointed officials, officers, agents and employees (collectively, “Indemnitees”) harmless from and against any and all loss, claim, liability, damage, demand, judgment, order, penalty, fine, injunctive or other relief, cost, expense (including reasonable fees and expenses of attorneys, expert witnesses, and other professionals advising or assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter individually “Claim” and collectively “Claims”) arising in connection with the breach of Trustor’s covenants and obligations set forth in this Section 7.10 or otherwise arising in connection with the presence or release of Hazardous Materials in, on, under, or from the Property. The foregoing indemnity includes, without limitation, all costs of investigation, assessment, containment, removal, remediation of any kind, and disposal of Hazardous Materials, all costs of determining whether the Property is in compliance with Environmental Laws, all costs associated with bringing the Property into compliance with all applicable Environmental Laws, and all costs associated with claims for damages or injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor’s own cost and expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any Indemnitee Packet Page 1498
9 or Indemnitees in any legal or administrative proceeding incident to any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; b. reimburse Indemnitees for any expenses paid or incurred in connection with any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; and c. reimburse Indemnitees for any and all expenses, including without limitation outof-pocket expenses and fees of attorneys and expert witnesses, paid or incurred in connection with the enforcement by Indemnitees of their rights under this Deed of Trust, or in monitoring and participating in any legal or administrative proceeding.
Trustor’s obligation to indemnify the Indemnitees shall not be limited or impaired by any of the following, or by any failure of Trustor to receive notice of or consideration for any of the following: (i) any amendment or modification of any City Document; (ii) any extensions of time for performance required by any City Document; (iii) any provision in any of the City Documents limiting Beneficiary's recourse to property securing the Secured Obligations, or limiting the personal liability of Trustor, or any other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or inaccuracy of any representation and warranty made by Trustor under this Deed of Trust or by Trustor or any other party under any City Document, (v) the release of Trustor or any other person, by Beneficiary or by operation of law, from performance of any obligation under any City Document; (vi) the release or substitution in whole or in part of any security for the Secured Obligations; and (vii) Beneficiary’s failure to properly perfect any lien or security interest given as security for the Secured Obligations.
The provisions of this Section 7.10 shall be in addition to any and all other obligations and liabilities that Trustor may have under applicable law, and each Indemnitee shall be entitled to indemnification under this Section without regard to whether Beneficiary or that Indemnitee has exercised any rights against the Property or any other security, pursued any rights against any guarantor or other party, or pursued any other rights available under the City Documents or applicable law. The obligations of Trustor to indemnify the Indemnitees under this Section shall survive any repayment or discharge of the Secured Obligations, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor acknowledges and agrees that each of the provisions in this Section 7.10 is an environmental provision (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by Trustor relating to real property security (the “Environmental Provisions”), and that Trustor's failure to comply with any of the Environmental Provisions will be a breach of contract that will entitle Beneficiary to pursue the remedies provided by Section 736 of the California Code of Civil Procedure (“Section 736”) for the recovery of damages and for the enforcement of the Environmental Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or enforcement of the Environmental Provisions shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure.
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10 “Environmental Laws” means all federal, state or local statutes, ordinances, rules, regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions of permits, licenses and other operating authorizations regulating, or relating to, or imposing liability or standards of conduct concerning (i) pollution or protection of the environment, including natural resources; (ii) exposure of persons, including employees and agents, to any Hazardous Material (as defined above) or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; (iv) the manufacture, use or introduction into commerce of chemical substances, including without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous substances or Hazardous Materials or the remediation of air, surface waters, groundwater or soil, as now or may at any later time be in effect, including but not limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder.
7.11 Notice of Claims; Defense of Security; Reimbursement of Costs. a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within five (5) business days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive timely notice of, and shall have a right to cure, any default under any other financing document or other lien affecting the Property and shall use best efforts to ensure that provisions mandating such notice and allowing such right to cure shall be included in all such documents. Within three business days of Trustor’s receipt thereof, Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in connection with any financing document secured by the Property or any part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and defend the Property and title to and right of possession of the Property, the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or Trustee may render in connection with this Deed of Trust, including without limitation, fees and Packet Page 1500
11 expenses related to provision of a statement of obligations or related to a reconveyance. Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed of Trust, including without limitation any rights or remedies afforded to Beneficiary or Trustee or both of them under Sections 7.17 and 8.2, whether or not any lawsuit is filed, or in defending any action or proceeding arising under or relating to this Deed of Trust, including reasonable attorneys’ fees and other legal costs, costs of any disposition of the Property under the power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of title. d. Notice of Changes. Trustor shall give Beneficiary prior written notice of any change in the address of Trustor and the location of any Property, including books and records pertaining to the Property.
7.12 Indemnification. Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold harmless the Indemnitees (as defined in Section 7.10) from and against all Claims arising directly or indirectly in any manner in connection with or as a result of (a) any breach of Trustor’s covenants under any City Document, (b) any representation by Trustor in any City Document which proves to be false or misleading in any material respect when made, (c) injury or death to persons or damage to property or other loss occurring on the Property or in any improvement located thereon, whether caused by the negligence or any other act or omission of Trustor or any other person or by negligent, faulty, inadequate or defective design, building, construction or maintenance or any other condition or otherwise, (d) any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, brought or asserted against any Indemnitee which relates to or arises out of the Property, or any City Document or any transaction contemplated thereby, or any failure of Trustor to comply with all applicable state, federal and local laws and regulations applicable to the Property, provided that no Indemnitee shall be entitled to indemnification under this Section for matters caused by such Indemnitee's gross negligence or willful misconduct. The obligations of Trustor under this Section shall survive the repayment of the Loan and shall be secured by this Deed of Trust.
Notwithstanding any contrary provision contained herein, the obligations of Trustor under this Section shall survive any foreclosure proceeding, any foreclosure sale, any delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed of Trust.
7.13. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary in this Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of Trustor under any agreement related to the Property or under this Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or any third parties, or any dangerous or defective condition of the Property; or (iv) any loss sustained by Trustor or any third party resulting from any act or omission of Beneficiary in managing the Property after an Event of Default, unless the loss is caused by the willful misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly waives and releases all liability of the types described in this Section 7.13, and agrees that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.14 Insurance and Condemnation Proceeds. Subject to the rights of any senior Packet Page 1501
12 lienholders, and notwithstanding anything contained in any of the City Documents, unless Beneficiary and Trustor otherwise agree in writing, any award of damages in connection with any condemnation for public use of, or injury to the Property or any part thereof shall be applied to restoration or repair of the Property, provided Trustor determines that such restoration or repair is economically feasible and there is no default under any City Document that is continuing beyond the expiration of all applicable cure periods. If Trustor determines that such restoration or repair is not economically feasible or if a default exists after expiration of all applicable cure periods, the insurance proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Trustor. In the event funds for such work are insufficient, Beneficiary may, in its sole discretion and subject to the approval of Beneficiary’s governing board, advance such additional funds as may be necessary to allow the Property to be repaired or restored, and may add the amount thereof to the principal balance of the Note. If the Property is abandoned by Trustor, or if Trustor fails to respond to Beneficiary within 30 days from the date notice is mailed by Beneficiary to Trustor that the insurance carrier offers to settle a claim for insurance benefits, Beneficiary is authorized to collect and apply the insurance proceeds at Beneficiary's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust
7.15 Release, Extension, Modification. At any time and from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust and the Note for endorsement, Trustee may release or reconvey all or any part of the Property, consent to the making of any map or plat of the Property or part thereof, join in granting any easement or creating any restriction affecting the Property, or join in any extension agreement or other agreement affecting the lien or charge hereof. At any time and from time to time, without liability therefor and without notice, Beneficiary may (i) release any person liable for payment of any Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of payment of any Secured Obligation; (iii) accept additional real or personal property of any kind as security for any Secured Obligation, or (iv) substitute or release any property securing the Secured Obligations.
7.16 Reconveyance. Upon written request of Beneficiary stating that all of the Secured Obligations have been satisfied in full, and upon surrender of this Deed of Trust, and the Note, Trustee shall reconvey, without warranty, the Property or so much of it as is then held under this Deed of Trust. The recitals in any reconveyance executed under this Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness thereof. Trustor shall pay all fees of Trustee and all recordation fees related to such reconveyance.
7.17 Cure; Protection of Security. Beneficiary may cure any breach or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary may also enter the Property and/or do any and all other things which it may in its reasonable discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary’s sole judgment is or may be senior in priority to this Deed of Trust, such judgment of Beneficiary to be conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or paying any premiums or charges for insurance required to be carried hereunder; otherwise Packet Page 1502
13 caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary. Beneficiary may take any of the actions permitted under this Section 7.17 either with or without giving notice, except for notices required under applicable law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall become additional indebtedness secured by this Deed of Trust.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default shall occur under this Deed of Trust upon the occurrence of any one or more of the following events:
a. Beneficiary’s declaration of an Event of Default under any City Document, subject to the expiration of any applicable cure period set forth in such document; b. Trustor fails to perform any monetary obligation which arises under this Deed of Trust, and does not cure that failure within ten (10) days following written notice from Beneficiary or Trustee;
c. If Trustor’s interest in the Property or any part thereof is voluntarily or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of Section 7.4 hereof or if any other Transfer occurs in violation of the Loan Agreement; d. Trustor fails to maintain the insurance coverage required under the City Documents or otherwise fails to comply with the requirements of Section 7.8 hereof and Trustor fails to cure such default within the time specified in Section 7.8; e. Subject to Trustor’s right to contest such charges as provided herein, Trustor fails to pay taxes or assessments due on the Property or the Improvements or fails to pay any other charge that may result in a lien on the Property or the Improvements, and Trustor fails to cure such default within ten (10) days.
f. Any representation or warranty of Trustor contained in or made in connection with the execution and delivery of this Deed of Trust or in any certificate or statement furnished pursuant hereto or in any other City Document proves to have been false or misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Trustor or any general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Trustor or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or any general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due. h. If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Packet Page 1503
14 Trustor or any general partner thereof or substantially all of such entity’s assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property or the Project, and in each case the order or decree is not released, vacated, dismissed or fully bonded within 60 days after its issuance.
i. The holder of any other debt instrument secured by a mortgage or deed of trust on the Property or part thereof declares an event of default thereunder and exercises a right to declare all amounts due under that debt instrument immediately due and payable, subject to the expiration of any applicable cure period set forth in such holder’s documents; or j. Trustor fails to perform any obligation arising under this Deed of Trust other than one enumerated in this Section 8.1, and does not cure that failure either within ten (10) days after written notice from Beneficiary or Trustee in the event of a monetary default, or within thirty (30) days after such written notice in the event of a nonmonetary default, provided that in the case of a nonmonetary default that in Beneficiary’s reasonable judgment cannot reasonably be cured within thirty (30) days, an Event of Default shall not arise hereunder if Trustor commences to cure such default within thirty (30) days and thereafter prosecutes such cure to completion with due diligence and in good faith and in no event later than ninety (90) days, or such longer period as the City may approve, following receipt of notice of default.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth herein, at any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below, and may exercise any one or more or all, of the remedies set forth in any City Document, and any other remedy existing at law or in equity or by statute, subject to the nonrecourse provisions set forth in the Note. All of Beneficiary’s rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to collect all expenses incurred in pursuing the remedies provided hereunder, including without limitation reasonable attorneys’ fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured Obligations, including without limitation all sums payable under the Note and this Deed of Trust, to be due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. c. Entry. Beneficiary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: taking and possessing copies of all of Trustor’s or the then owner's books and records concerning the Property; entering into, enforcing, modifying, or canceling Leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to Trustor; completing any unfinished construction; and/or contracting for and making repairs and Packet Page 1504
15 alterations. If Beneficiary so requests, Trustor shall assemble all of the Property that has been removed from the Property and make all of it available to Beneficiary at the site of the Property.
Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-in-fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the remedies granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for foreclosure of mortgages on real property and/or to obtain specific enforcement of any of the covenants or agreements of this Deed of Trust.
f. Power of Sale. Under the power of sale hereby granted, Beneficiary shall have the discretionary right to cause some or all of the Property, including any Property which constitutes personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by applicable law.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby granted, Beneficiary shall execute or cause the Trustee to execute a written notice of such default and of its election to cause the Property to be sold to satisfy the obligations hereof, and shall cause such notice to be recorded in the office of the Recorder of each County wherein the Property or some part thereof is situated as required by law and this Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this Deed of Trust and the Note or other evidence of indebtedness which is secured hereby, together with a written request for the Trustee to proceed with a sale of the Property, pursuant to the provisions of law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the time then required by law having elapsed after recordation of such notice of default, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the notice of sale, either as a whole or in separate parcels and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may, and at Beneficiary’s request shall, postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby created, including reasonable attorneys’ fees in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary or Trustee under the terms Packet Page 1505
16 hereof and all outstanding sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees that regardless of whether or not a default has occurred hereunder, if an Event of Default has occurred under the City Documents, and if in connection with such Event of Default Beneficiary exercises its right to foreclose on the Property, then: (i) Beneficiary shall be entitled to declare all amounts due under the Note immediately due and payable, and (ii) the proceeds of any sale of the Property in connection with such foreclosure shall be used to pay all Secured Obligations, including without limitation, the outstanding principal balance and all other amounts due under the Note.
At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law.
Instead of paying cash for such property, Beneficiary may settle for the purchase price by crediting the sales price of the property against the following obligations:
a. First, the portion of the Secured Obligations attributable to the expenses of sale, costs of any action and any other sums for which Trustor is obligated to pay or reimburse Beneficiary or Trustee under Section 7.11(c); and
b. Second, the remaining balance of all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor’s Right to Reinstate. Notwithstanding Beneficiary’s acceleration of the sums secured by this Deed of Trust, Trustor shall have the right to have any proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under the Loan Documents if the Secured Obligations had no acceleration provision; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies as provided herein, including, but not limited to, reasonable attorney’s fees; and (d) Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s interest in the Property and Trustor’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
Nothing contained in Sections 8.3 and 8.4 is intended to expand upon or limit the rights of Trustor and Beneficiary under California law regarding Beneficiary’s exercise of the power of sale or Trustor’s reinstatement rights.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all Packet Page 1506
17 statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The City Documents grant further rights to Beneficiary and contain further agreements and affirmative and negative covenants by Trustor which apply to this Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of sale be mailed to Trustor at the address set forth below. That address is also the mailing address of Trustor as debtor under the UCC. Beneficiary’s address set forth below is the address for Beneficiary as secured party under the UCC. Except for any notice required under applicable law to be given in another manner, all notices to be sent pursuant to this Deed of Trust shall be made in writing, and sent to the parties at their respective addresses specified below or to such other address as a party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered upon receipt;
b. certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail;
c. nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier; or d. facsimile transmission, in which case notice shall be deemed delivered on transmittal, provided that a transmission report is generated reflecting the accurate transmission thereof.
Beneficiary: City of Newark
37101 Newark Boulevard
Newark, CA 94560
Attention: City Manager
Trustor: Allied 39802 Cedar, LLC
c/o Allied Housing, Inc.
40849 Fremont Blvd.
Fremont, CA 94538
Attention: Chief Executive Officer
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18 With a copy to:
Gubb & Barshay LLP
235 Montgomery Street, Suite 1110
San Francisco, CA 94194
Attention: Nicole Kline
Trustee: Chicago Title Company
Attention:
10.3 Binding on Successors. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary and Trustee; provided however this Section 10.3 does not waive the provisions of Section 7.4.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time substitute a trustee or trustees to execute the trust hereby created, and when any such substitution has been filed for record in the office of the Recorder of Alameda County, it shall be conclusive evidence of the appointment of such trustee or trustees, and such new trustee or trustees shall succeed to all of the powers and duties of the Trustee named herein.
10.5 Attorneys’ Fees and Costs. In any action or proceeding to foreclose this Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to Beneficiary and Trustee all costs of such action or proceeding, including reasonable attorneys’ fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be governed by the laws of the State of California without regard to principles of conflicts of laws.
Trustor agrees that any controversy arising under or in relation to this Deed of Trust shall be litigated exclusively in the jurisdiction where the Property is located (the “Property Jurisdiction”). The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in relation to the City Documents. Trustor irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation, and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. If any provision of this Deed of Trust is held unenforceable or void, that provision shall be deemed severable from the remaining provisions, and shall in no way affect the validity of this Deed of Trust. The captions used in this Deed of Trust are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained. In this Deed of Trust, whenever the context so requires, the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to Packet Page 1508
19 any act or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary’s or Trustee’s consent to be obtained in any future or other instance. No amendment to or modification of this Deed of Trust shall be effective unless and until such amendment or modification is in writing, executed by Trustor and Beneficiary. Without limiting the generality of the foregoing, Beneficiary’s acceptance of payment of any sum secured hereby after its due date shall not constitute a waiver by Beneficiary of its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
10.8 Action By Beneficiary. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, or consent by the Beneficiary is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by Beneficiary’s Executive Director or by any person who shall have been designated by Beneficiary’s Executive Director, without further approval by the governing board of Beneficiary. Beneficiary shall use reasonable best efforts to respond to requests for any such approval, notice, direction, or consent in a timely manner. In any approval, consent, or other determination by Beneficiary required hereunder, Beneficiary shall act reasonably and in good faith.
10.9 Joint and Several Liability. If Trustor consists of more than one person or entity, each shall be jointly and severally liable for the faithful performance of all of Trustor’s obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this Deed of Trust.
SIGNATURES ON FOLLOWING PAGE.
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20 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.
ALLIED 39802 CEDAR, LLC
a California limited liability company
By: Allied Housing, Inc., a California
nonprofit public benefit corporation,
its sole member and manager
By:_______________________________
Its:_______________________________
SIGNATURES MUST BE NOTARIZED.
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21 EXHIBIT "A"
LEGAL DESCRIPTION
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22 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 Alameda )
On_____________ before me, _____________________________, Notary Public, , personally appeared, ___________________________________, who proved to me 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_____________________________
5161831.2
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1 SECURED PROMISSORY NOTE
(Cedar Community Apartments)
$44,156,293.00 Newark, California
______________, 2022
FOR VALUE RECEIVED, ALLIED 39802 CEDAR, LLC, a California limited liability company (“Borrower”), promises to pay to the City of Newark, a California municipal corporation (“City”), in lawful money of the United States of America, the principal sum of Forty-Four Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($44,156,293.00), or so much thereof as may be advanced by City pursuant to the Loan Agreement referred to below, together with interest on the outstanding principal balance in accordance with the terms and conditions described herein. The original principal balance of this Note shall consist of Thirty-Eight Million One Hundred Fifty-Six Thousand Two Hundred and Ninety-Three Dollars ($38,156,293.00) from the Homekey Grant and Six Million Dollars ($6,000,000) of City Funds (as those terms are defined in the Loan Agreement). Simple interest shall accrue on the outstanding principal balance of the City Funds at the rate of three percent (3%) per annum commencing upon the date of disbursement of the loan proceeds. No interest shall accrue upon the Homekey Grant portion of the Loan.
Interest shall be calculated on the basis of a year of 365 days, and charged for the actual number of days elapsed.
This Secured Promissory Note (this “Note”) has been executed and delivered pursuant to and in accordance with an Loan Agreement executed by and between Borrower and City, dated as of ________________, 2022 (the “Loan Agreement”), and is subject to the terms and conditions of the Loan Agreement, which is by this reference incorporated herein and made a part hereof. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Loan Agreement.
This Note is secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (“Deed of Trust”) dated as of the date hereof, executed by Borrower for the benefit of City and encumbering the property described therein. City shall be entitled to the benefits of the security provided by the Deed of Trust and shall have the right to enforce the covenants and agreements contained herein, in the Regulatory Agreement, and the Loan Agreement. The Regulatory Agreement shall remain effective for the full term thereof and shall survive the repayment of this Note.
1. PAYMENTS
1.1 REPAYMENT OF THE NOTE AMOUNT.
(a) Annual Payments. Borrower shall make annual payments of principal and interest to the City in the amount of the City Prorata Percentage of Residual Receipts.
Such annual payments shall be due and payable in arrears no later than May 1 of each year with respect to the previous calendar year, commencing on May 1st of the first year after the City's issuance of a certificate of occupancy for the Improvements. Borrower shall provide Attachment B, Exhibit 4
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2 the City with any documentation reasonably requested by the City to substantiate Borrower's determination of Residual Receipts. The Parties hereto acknowledge that they expect the Residual Receipts amount to be zero during the initial years of the Project until Refinancing occurs. Repayments shall be credited first to interest, then to principal. (b) Sharing of Residual Receipts with Other Lenders. The City acknowledges that the County of Alameda (the "County") and other lenders to be set forth in the Financing Plan may provide additional financing for the Project. The City agrees to share in sixty percent (60%) of seventy-five percent (75%) of Residual Receipts, pro-rata in proportion to the amount of City Funds, and the financing provided by the County (the "City Prorata Percentage"). The Borrower may pay the County up to forty percent (40%) of seventy-five Percent (75%) of the Residual Receipts, and may retain the remaining twentyfive percent (25%) of Residual Receipts. (c) Default Under Project Homekey Agreement. In the event that City and/or Borrower is required to repay some or all of the Homekey Grant pursuant to the Project Homekey Agreement, Borrower shall be responsible for making such payment to the State of California. The amount of Borrower’s repayment of the Homekey Grant to the State of California shall be credited against the balance of this Note. (d) Payment of Remaining Balance. Developer shall pay all outstanding principal and accrued interest on the City Loan, in full, on the earliest to occur of (i) a Developer Event of Default for which the City exercises its right to cause the Loan indebtedness to become immediately due and payable, and (ii) the fifty-fifth (55th) anniversary of the date of this Note (“Maturity Date”). (e) Partial Forgiveness. Upon receipt of written confirmation from the State of California that the Parties’ obligations under the Project Homekey Agreement have been satisfied and that the Parties are no longer responsible for repayment of the Homekey Grant under any circumstances, the Homekey Grant portion of this Note shall be forgiven.
1.2 DUE ON SALE. The entire unpaid principal balance and all interest and other sums accrued hereunder shall be due and payable upon the Transfer (as defined in Section 7.2 of the Loan Agreement) absent City consent, of all or any part of the Project or the Property or any interest therein other than a Transfer permitted without City consent pursuant to the Loan Agreement. Without limiting the generality of the foregoing, this Note shall not be assumable without City’s prior written consent, which consent may be granted or denied in City’s sole discretion; provided however, this Note may be assumed in connection with a permitted transfer as described in Section 7.3 of the Loan Agreement.
1.3 PREPAYMENT. Borrower may, without premium or penalty, at any time and from time to time, prepay all or any portion of the outstanding principal balance due under this Note, provided that each such prepayment is accompanied by accrued interest on the amount of principal prepaid calculated to the date of such prepayment. Prepayments shall be applied first to any unpaid late charges and other costs and fees then due, then to accrued but unpaid interest, and then to principal.
1.4 MANNER OF PAYMENT. All payments of principal and interest on this Note shall be made to City at 37101 Newark Avenue, Newark, California 94560 or such Packet Page 1514
3 other place as City shall designate to Borrower in writing, or by wire transfer of immediately available funds to an account designated by City in writing.
2. DEFAULTS AND REMEDIES.
2.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"):
(A) Borrower fails to pay when due the principal and interest payable hereunder and such failure continues for thirty (30) days after City notifies Borrower thereof in writing. (B) Borrower fails to timely repay the portion of the Homekey Grant to the State of California upon demand of the State of California pursuant to the Project Homekey Agreement;
(C) Pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors ("Bankruptcy Law"), Borrower or any general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Borrower or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Borrower or any general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due.
(D) A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Borrower or any general partner thereof in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Borrower or any general partner thereof or substantially all of such entity’s assets, (iii) orders the liquidation of Borrower or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property or the Project, and in each case the order or decree is not released, vacated, dismissed or fully bonded within 60 days after its issuance.
(E) The occurrence of a Transfer in violation of Article VII of the Loan Agreement.
(F) A default is declared under any debt instrument secured by a mortgage or deed of trust on the Project or the Property and remains uncured beyond any applicable cure period such that the holder of such instrument has the right to accelerate payment thereunder following written notice from the City.
(G) Borrower fails to maintain insurance on the Property and the Project as required pursuant to the City Documents and Borrower fails to cure such default within 10 days.
(H) Subject to Borrower’s right to contest the following charges pursuant to the City Documents, if Borrower fails to pay taxes or assessments due on the Property or the Project or fails to pay any other charge that may result in a lien on the Property or the Project, and Borrower fails to cure such default within 10 days. (I) If any representation or warranty contained in any City Document, or any certificate furnished in connection therewith, or in connection with any request for Packet Page 1515
4 disbursement of the proceeds of the Loan (the “Loan Proceeds”) proves to have been false or misleading in any material adverse respect when made and continues to be materially adverse to the City.
(J) An Event of Default shall have been declared under the Regulatory Agreement or any City Document, and remains uncured beyond the expiration of any applicable cure period.
2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder, City may, at its option (i) by written notice to Borrower, declare the entire unpaid principal balance of the City Funds portion of this Note, together with all accrued interest thereon and all sums due hereunder, immediately due and payable regardless of any prior forbearance, (ii) if the Event of Default arises from Borrower’s failure to timely repay the Homekey Grant to the State of California after demand therefor, by written notice to Borrower, declare the entire Homekey Grant portion of this Note, together with all sums due hereunder, immediately due and payable regardless of any prior forbearance, (iii) exercise any and all rights and remedies available to it under applicable law, and (iv) exercise any and all rights and remedies available to City under this Note and the other City Documents, including without limitation the right to pursue foreclosure under the Deed of Trust. Borrower shall pay all reasonable costs and expenses incurred by or on behalf of City including, without limitation, reasonable attorneys' fees, incurred in connection with City's enforcement of this Note and the exercise of any or all of its rights and remedies hereunder and all such sums shall be a part of the indebtedness secured by the Deed of Trust. The rights and remedies of City under this Note shall be cumulative and not alternative.
2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest shall automatically be increased without notice to the rate of ten percent (10%) per annum (the “Default Rate"); provided however, if any payment due hereunder is not paid when due, the Default Rate shall apply commencing upon the due date for such payment. When Borrower is no longer in default, the Default Rate shall no longer apply, and the interest rate shall once again be the rate specified in the first paragraph of this Note. Notwithstanding the foregoing provisions, if the interest rate charged exceeds the maximum legal rate of interest, the rate shall be the maximum rate permitted by law. The imposition or acceptance of the Default Rate shall in no event constitute a waiver of a default under this Note or prevent City from exercising any of its other rights or remedies.
3. MISCELLANEOUS
3.1 WAIVERS; BORROWER’S WAIVERS. No waiver by City of any right or remedy under this Note shall be effective unless in a writing signed by City. Neither the failure nor any delay in exercising any right, power or privilege under this Note will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege by City will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. No waiver that may be given by City will be applicable except in the specific instance for which it is given. No notice to or demand on Borrower will be deemed to be a waiver of any obligation of Borrower or of the right of City to take further action without notice or demand as provided in this Note.
To the maximum extent permitted by applicable law Borrower hereby waives presentment, demand, protest, notices of dishonor and of protest and all defenses and pleas on Packet Page 1516
5 the grounds of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice.
3.2 NOTICES. Any notice required or permitted to be given hereunder shall be given in accordance with Section 12.3 of the Loan Agreement.
3.3 SEVERABILITY. If any provision in this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note will remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of the State of California without regard to principles of conflicts of laws. Any legal action filed in connection with this Note shall be filed in the Superior Court of Alameda County, California, or in the Federal District Court for the Northern District of California.
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its successors and assigns and shall accrue to the benefit of City and its successors and assigns.
3.6 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this Note are provided for convenience only and will not affect its construction or interpretation.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and City under this Note is solely that of borrower and lender, and the loan evidenced by this Note and secured by the Deed of Trust will in no manner make City the partner or joint venturer of Borrower.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to every provision of this Note.
3.9 NONRECOURSE. Except as expressly provided in this Section 3.9, neither Borrower nor its partners shall have personal liability for payment of the principal of, or interest on, this Note, and the sole recourse of City with respect to the payment of the principal of, and interest on, this Note shall be to the Project, the Property and any other collateral held by City as security for this Note; provided however, nothing contained in the foregoing limitation of liability shall: (i) limit or impair the enforcement against all such security for the Note of all the rights and remedies of the City thereunder; (ii) be deemed in any way to impair the right of the City to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; or (iii) be deemed in any way to limit the rights of the City to obtain specific performance by the Borrower of its covenants under the City Documents, other than the covenants to pay the City principal and interest due under the Note.
The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on the Note; nothing contained herein is intended to relieve the Borrower of its obligation to indemnify the City under this Agreement, or liability to the extent of any loss for: (i) fraud or willful misrepresentation by the Borrower; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Packet Page 1517
6 Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by the Borrower other than in accordance with the Deed of Trust; and/or (iv) the misappropriation of any proceeds by the Borrower under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Development
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date first written above.
BORROWER:
ALLIED 39802 CEDAR, LLC,
a California limited liability company
By: Allied Housing, Inc., a California
nonprofit public benefit corporation
its sole member and manager
By:_______________________________,
5161828.2
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1 535\86\3320922.4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Alameda County
Housing and Community Development Department
224 W. Winton Avenue, Room 108
Hayward, CA 94544
Attention: Housing Director
No fee for recording pursuant to
Government Code Section 27383 and 27388.1
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
SUBORDINATION AGREEMENT
(Alameda-Newark – Cedar Community Apartments)
THIS SUBORDINATION AGREEMENT (the "Agreement") is made as of October 1, 2022, by Allied 39802 Cedar LLC, a California limited liability company (the "Borrower"), the County of Alameda, a political subdivision of the State of California (the "County"), and the City of Newark, a municipal corporation (the "City").
RECITALS
A. The Borrower owns or will own certain real property located at 39802 Cedar Boulevard, in Newark, California, County of Alameda, State of California as more particularly described in Exhibit A (the "Property"). Borrower intends to acquire an existing hotel and convert it to provide one hundred twenty five (125) housing units, one hundred twenty four (124) of which will house persons qualifying for assistance under the HOME-American Rescue Plan and one of which will be a manager's unit (collectively, the "Improvements") on the Property.
The Improvements will also be rehabilitated and extended to include a property management office and other ancillary improvements. The Property and the Improvements are collectively referred to as the "Development."
B. Borrower and the County are entering into that certain County Loan Agreement (Alameda County HOME ARP – Cedar Community Apartments Place) (the "County Loan Agreement") dated the same date as this Agreement, pursuant to which the County has agreed to provide a loan to Borrower in the amount of Four Million Dollars ($4,000,000) (the "County Loan"). The County Loan will be used to finance the acquisition and certain other costs associated with the Development. The County Loan is funded with funds appropriated under Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2) ("HOME ARP") to provide homelessness assistance and supportive services.
C. The County Loan is evidenced by a Promissory Note (Alameda County HOME ARP – Cedar Community Apartments) in the amount of the County Loan (the "County Note") dated the same date as this Agreement, and secured by a Deed of Trust with Assignment of Rents, Attachment B, Exhibit 5
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Security Agreement, and Fixture Filing (Alameda County HOME ARP – Cedar Community Apartments) dated the same date as this Agreement naming Borrower as trustor, the County as beneficiary and Chicago Title Company, a California corporation ("Title Company"), as trustee (the "County Deed of Trust"). In connection with the County Loan, the County and Borrower will also execute a Regulatory Agreement and Declaration of Restrictive Covenants (Alameda County HOME ARP – Cedar Community Apartments) (the "County Regulatory Agreement") dated the same date as this Agreement. The County Deed of Trust and the County Regulatory Agreement will be recorded against the Property in the Official Records concurrently herewith.
Collectively, the County Loan Agreement, the County Deed of Trust, the County Note, and the County Regulatory Agreement are referred to as the "County Loan Documents".
D. Borrower and the City are entering into that certain Loan Agreement (Cedar Community Apartments Place) (the "City Loan Agreement") dated the same date as this Agreement, pursuant to which the City has agreed to provide a loan to Borrower in the amount of Forty-Four Million One Hundred Fifty Six Thousand Two Hundred Ninety Three Dollars ($44,156,293) (the "City Loan"). The City Loan will be used finance the acquisition and other costs associated with the Development. All but Six Million Dollars ($6,000,000) of the City Loan is funded with funds from the State of California Department of Housing and Community Development Homekey Program Funds under California Assembly Bill No. 140 (Chapter 111, Statutes of 2021) and the HomeKey Program Notice of Funding Availability Round (2) issued on September 9, 2021 and amended on January 14, 2022 and May 5, 2022. Homekey grant funds are derived primarily from the State’s General Fund and its direct allocation of the federal Coronavirus State Fiscal Recovery Fund, established by the American Rescue Plan Act of 2021.
The remaining Six Million Dollars ($6,000,000) of the City loan is funded with the City’s Housing Impact Fee Fund and American Rescue Plan Act of 2021 funds that had been allocated to the City.
E. The City Loan is evidenced by a Secured Promissory Note (Cedar Community Apartments) in the amount of the City Loan (the "City Note") dated the same date as this Agreement, and secured by a Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing (Cedar Community Apartments) dated the same date as this Agreement naming Borrower as trustor, the City as beneficiary and Chicago Title Company, a California corporation ("Title Company"), as trustee (the "City Deed of Trust"). In connection with the City Loan, the City and Borrower will also execute an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (Cedar Community Apartments) (the "City Regulatory Agreement") dated the same date as this Agreement. The City Deed of Trust and the City Regulatory Agreement will be recorded against the Property in the Official Records concurrently herewith. Collectively, the City Loan Agreement, the City Deed of Trust, the City Note, and the City Regulatory Agreement are referred to as the "City Loan Documents".
F. Borrower, the City, and the County hereby acknowledge and agree that the documents referenced herein shall be recorded in the Official Records in the following order:
1. City Regulatory Agreement
2. County Regulatory Agreement
3. City Deed of Trust
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3 535\86\3320922.4
4. County Deed of Trust
G. As a condition to funding the City Loan, the City requires that the County and Borrower execute and deliver this Subordination Agreement, and that the County provide the City notice of defaults and the right to cure defaults under the County Loan Documents.
H. As a condition to funding the County Loan, the County requires that the City and Borrower execute and deliver this Subordination Agreement, and that the City provide the County notice of defaults and the right to cure defaults under the City Loan Documents and the City Regulatory Agreement.
NOW THEREFORE, for valuable consideration the parties agree as follows:
1. Borrower and the County each acknowledge and agree for the benefit of the City that the City Regulatory Agreement and any modifications, renewals, or extensions thereof approved in writing by the County, shall unconditionally be and at all times remain a lien or charge on the Property prior and superior to the County Regulatory Agreement. The County subordinates the County Regulatory Agreement to the lien or charge of the City Regulatory Agreement.
2. Borrower and the County each acknowledge and agree for the benefit of the City that the City Regulatory Agreement and any modifications, renewals, or extensions thereof approved in writing by the County, shall unconditionally be and at all times remain a lien or charge on the Property prior and superior to the rights of the County under the County Deed of Trust. The County intentionally and unconditionally subordinates all of the County's right, title and interest in and to the County Deed of Trust to the lien or charge of the City Regulatory Agreement.
3. Borrower and the City each acknowledge and agree for the benefit of the County that the County Regulatory Agreement and any modifications, renewals, or extensions thereof approved in writing by the City, shall unconditionally be and at all times remain a lien or charge on the Property prior and superior to the rights of the City under the City Deed of Trust. The City intentionally and unconditionally subordinates all of the City's right, title and interest in and to the City Deed of Trust to the lien or charge of the County Regulatory Agreement.
4. Borrower and the County each agree that the City Deed of Trust and any modifications, renewals, or extensions thereof approved in writing by the County, shall unconditionally be and at all times remain a lien or charge on the Property prior and superior to the rights of the County under the County Deed of Trust. The County intentionally and unconditionally subordinates all of the County's right, title and interest in and to the County Deed of Trust to the lien or charge of the City Deed of Trust.
5. The County agrees that, upon the occurrence of an event of default under the County Loan Documents, the County shall:
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(a) concurrently with notifying Borrower of the occurrence of an event of default, notify the City of the occurrence of such event of default by delivering a notice to the City, at its address set forth in the City Loan Agreement; (b) permit the City to cure or correct (provided that such event of default is curable) any such event of default within ninety (90) calendar days after receipt of such notice; (c) accept all payments and all acts done by the City on behalf of Borrower within the cure period specified in Paragraph 5(b) above as though the same had been timely done and performed by Borrower, so that such acts and payments shall fully and totally cure and correct all such defaults, breaches, failures or refusals for all purposes; and (d) have the continuing right to record a notice of default, obtain a court appointed receiver and otherwise exercise the County's rights and remedies under the County Loan Documents during the above-mentioned cure period.
6. The City agrees that, upon the occurrence of an event of default under the City Loan Documents, the City shall:
(a) concurrently with notifying Borrower of the occurrence of an event of default, notify the County of the occurrence of such event of default by delivering a notice to the County, at its address set forth in the County Loan Agreement; (b) permit the County to cure or correct (provided that such event of default is curable) any such event of default within ninety (90) calendar days after receipt of such notice; (c) accept all payments and all acts done by the County on behalf of Borrower within the cure period specified in Paragraph 6(b) above as though the same had been timely done and performed by Borrower, so that such acts and payments shall fully and totally cure and correct all such defaults, breaches, failures or refusals for all purposes; and (d) have the continuing right to record a notice of default, obtain a court appointed receiver and otherwise exercise the City's rights and remedies under the City Loan Documents during the above-mentioned cure period.
7. The parties hereto agree to cooperate with each other and perform any acts and execute, acknowledge and deliver any additional agreements, documents, or instruments that may be reasonably necessary or desirable to carry out the provisions or to effectuate the purpose of this Agreement.
8. If, subject to the terms of Section 6 above, prior to any foreclosure sale of the Development under the City Deed of Trust, the County takes title to or possession of the Development pursuant to a foreclosure sale of the Development under the County Deed of Trust and cures the outstanding defaults under the City Loan, if any, the City hereby agrees not to exercise any rights it may have to accelerate the City Loan by reason of the transfer of title or possession to the County, or if acceleration has already occurred, the City hereby agrees that it Packet Page 1522
5 535\86\3320922.4
will reinstate the City Loan, as applicable, at that time, and agrees that it will recognize the County as borrower under the City Loan under the same terms and conditions of said City Loan, provided that: (i) the County expressly assumes all of Borrower's obligations under the City Loan Documents, and (ii) the County provides the City with evidence reasonably satisfactory to the City that the County has authority to assume all of Borrower's obligations under City Loan Documents.
9. If the County takes title to the Development pursuant to a foreclosure sale of the Development under the County Deed of Trust and cures the outstanding defaults under the City Loan Documents, if any, the County shall have the right to transfer the Development to another nonprofit housing developer reasonably approved in advance in writing by the City. In connection with any such transfer approved by the County, the City agrees that such transfer shall not constitute a default under the City Loan Documents, and the City shall not exercise any rights it may have to accelerate the City Loan as a result of such transfer, provided such transferee expressly assumes the obligations of Borrower under the City Loan Documents.
10. This Agreement represents the entire agreement among the parties on the subject matter hereof, and except as expressly provided herein, shall not be affected by reference to any other documents. Neither this Agreement nor any provision hereof may be changed, waived, discharged, or terminated orally, but such may be accomplished only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge, or termination is sought.
11. If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other of the terms hereof, and this Agreement shall be construed as if such unenforceable term had never been contained herein.
12. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute and be construed as one and the same instrument.
Exhibit A is attached hereto and incorporated herein by this reference. [SIGNATURES ON FOLLOWING PAGES]
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S-1
535\86\3320922.4
IN WITNESS WHEREOF, the parties have entered into this Agreement, as of the date first written above.
BORROWER:
Allied 39802 Cedar LLC,
a California limited liability company
By: Allied Housing, Inc.,
a California nonprofit public benefit corporation,
its sole member/manager
By: ____________________________
Jonathan White,
Chief Real Estate Officer
COUNTY:
COUNTY OF ALAMEDA, a political subdivision of the State of California
By: _____________________________________
Michelle Starratt, Director
Housing and Community Development Department
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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S-2
County-City Subordination Agreement
535\86\3320922.4
ATTEST:
By: _____________________________
Sheila Harrington, City Clerk
APPROVED AS TO FORM AND
LEGALITY
By: _____________________________
Kristopher Kokotaylo, City Attorney
CITY:
CITY OF NEWARK,
a California municipal corporation
By:
David Benoun, City Manager
[SIGNATURES MUST BE NOTARIZED]
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535\86\3320922.4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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535\86\3320922.4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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535\86\3320922.4
STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
Name: ______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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A-1
535\86\3320922.4
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Newark, County of Alameda, State of California, described as follows:
Packet Page 1529
City Council: September 22, 2022
Cedar Community Apartments
Homekey Project
Grant Acceptance & Agreements
Packet Page 1530
City Council: September 22, 2022
Homekey Project Funding
Agenda
• Background- Homekey program
• Grants and funding overview
• Cedar Community Apartments- affordable housing
• Funding agreements- state and contributing partners
• Safety and Security
• Operation and development overview
• Policy & program conformance
• Next Steps and staff recommendation
Packet Page 1531
1 Background – Homekey Program
Protection for low-income & homeless households
• Builds on success of Project Roomkey
• $1.9 billion in available grant funding
• Purchase/rehab existing buildings
• Convert to permanent housing
Grant Process and Amount
• Notice of funding availability- September 9, 2021
• Funds available on a first come-first served basis
Packet Page 1532
2 City Council Actions – January 13, 2022
Application Authorization
• Allied Housing as co-applicant
• Up to $39 million
• Application submitted January 30, 2022
Assignment of Funds
• $4.5 million Housing Impact Fee Fund
• $1.5 million ARPA Recovery Plan Funds
Packet Page 1533
3 Homekey Grant
Cedar Community Apartments
$38.2 million
• Awarded to city on July 25, 2022
• 6
th largest value award; 10th largest unit count
• Property acquisition and supportive services
• Incentives for quick lease up by March 2023
• Standard Agreement sets terms and conditions
• Regular monitoring and reporting required
Packet Page 1534
4 City Contributions
Cedar Community Apartments
$1.5 million – ARPA Recovery Plan Fund
• $1.5 million identified for affordable housing
• An approved use of ARPA funds
$4.5 million – Affordable Housing Fund
• Consistent with purpose of the Affordable
Housing Fund
Packet Page 1535
5 Other Funding & Service Partners
Cedar Community Apartments
Housing Authority – County of Alameda
• 60 Project Based Vouchers
• 12 reserved for military veterans
Alameda County
• $4 million in HOME-ARP funds
Alameda County Health Care Services Agency
• Resident support programs
Packet Page 1536
6 Towne Place Suites - Newark
39802 Cedar Boulevard
Existing extended stay hotel
• Built in 2000, renovated in 2015
• 125 rooms (studios, 1BR, 2BR)
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Packet Page 1538
7 Homekey Project Partners
Cedar Community Apartments
Abode Services
• 30+ years experience as affordable housing
developer and supportive services provider
• Operating partner of two Homekey sites
Allied Housing
• Development division of Abode
• Homekey Co-applicant with city
Housing for Independent People
• On-site property manager and mgmt. agent
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8 Cedar Community Apartments
Conversion to affordable housing
• 124 extended stay rooms converted to residential
• 57 studios; 38 1-BR; 29 2-BR
• One unit for on-site manager
• Minor interior/exterior improvements
• 7 ADA/Accessible units
• Ground floor office/common area
• Resident services modular building
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9 Cedar Community Apartments
Affordable Housing Program
• 64 units for at-risk of homelessness households
• 60 units for chronically homeless households
• Permanent supportive rental housing
• Gross income <30% Area Median Income
• Term: 55-years
Packet Page 1541
10 Homekey Program – Grant Agreement
Cedar Community Apartments
State’s “Standard Agreement”
• Authorizes funding the $38.2 million grant
• Establishes the eligible uses
• Affordable rent standards- cannot exceed 30% of
income eligibility level
• Deadlines and reporting requirements
• Grant disbursement requirements
• Homekey and project-specific terms and conditions
Packet Page 1542
11 City – Allied Agreements
Cedar Community Apartments
Grant award and city contributions – terms,
expectations, requirements
• Loan Agreement
• Regulatory Agreement
• Promissory Note and Deed of Trust
• Subordination Agreement
Packet Page 1543
12 Loan Agreement
Cedar Community Apartments
Affordable housing in exchange for a loan
• Loan Amount: $38.2 Homekey + $6 million city funds
• Use: property acquisition and development costs
• Term: 55-years
• Payment of prevailing wages, per Standard Agreement
• City loan funds accrue interest at 3% per year
• Annual payments of residual receipts for city loan
• Homekey loan forgiven when state’s obligations satisfied • City loan + interest due at end of term or default
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13 Regulatory Agreement
Cedar Community Apartments
Regulates occupancy, rents, and requirements
• 124 affordable units, one on-site manager unit
• Extremely low-income rents
• Annual tenant income verification
• Annual reporting; inspections permitted with notice
• Property management and maintenance requirements
• Marketing and management plan
• Resident and social services requirements
• Insurance, transfers, defaults, indemnification
Packet Page 1545
14 Promissory Note and Deed of Trust
Cedar Community Apartments
A promise to repay loan secured by Deed of Trust
• Promissory Note is a “residual receipts” note
• Payment required from a percentage of net proceeds
• Residual receipts are not expected in initial years until project is refinanced
• Note accrues at 3% interest on city loan
• No interest on Homekey grant; forgiven upon
satisfaction of all requirements
• Secured by a Deed of Trust
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15 Subordination Agreement
Cedar Community Apartments
Establishes priority for project loans
• City Regulatory Agreement
• County Regulatory Agreement
• City Deed of Trust
• County Deed of Trust
Process for notification and default cure
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16 Live/Work Preference
Cedar Community Apartments
Preference for Newark Live/Work Community
• Regulatory Agreement contains live/work requirement
• Cannot not violate fair housing laws
• HUD interpretation- may not be consistent
• HUD is county’s HOME funding source
• Studies show that displacement is occurring, and
live/work requirement could help
• City will continue advocacy of live/work requirement
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17 Live/Work Preference
Cedar Community Apartments
Live/Work Procedure
• Eligible applicants are scored on housing vulnerability factors to determine greatest need; applicants with
identical scores are grouped
• Applicants in each group who live or work in Newark
receive preference
• Lottery within each group to establish applicant list for continued processing
Packet Page 1549
18 Eligibility and Resident Selection
Cedar Community Apartments
Eligibility
• Extremely low income <30% AMI
• Alameda County AMI 4-person household: $142,800
• 30% AMI = $42,850
• Minimum income for “at-risk” units: 2X monthly rent of unit to be leased
• No minimum income for homeless units
Packet Page 1550
19 Eligibility and Resident Selection
Cedar Community Apartments
Eligibility
• Proof of income; credit check
• Criminal background check for adult household
members
• Grounds for denial- serious felony offensives
• Complete applicant application documents
• Applications coordinated by management agent
Packet Page 1551
20 Eligibility and Resident Selection
Cedar Community Apartments
Referrals for Homeless Households -60 units
• Referral source – County’s CES
• Project Based Vouchers through HACA
• Applicants prioritized by highest need
• CES refers applicant and application materials to CCA management agent to continue processing
• 12 units for miliary veterans; VASH program
administered through Palo Alto VA
Packet Page 1552
21 Eligibility and Resident Selection
Cedar Community Apartments
At-Risk Households -64 units
• Referral source – County’s affordable housing portal
and 211 housing referral list
• CCA management agent prioritize applicants by highest need based on vulnerability factors
• Lottery selection for identical scores
Packet Page 1553
22 Community Safety and Security
Newark Police Department
Crime Analysis and Recommendations
• Misconceptions and Concerns
• Area 40, 41, 43, and 44
• QOL Issues
• Vehicle Theft; Burglary; Package
Theft; Vehicle Abatement; Theft of
Vehicle Parts;
• Abode Partnership
Packet Page 1554
23 Community Safety and Security
Newark Police Department
Misconceptions and Concerns
• Newark Officers
• Impression
• Police Management
• Resources
• Community Concerns
Packet Page 1555
24 Community Safety and Security
Newark Police Department
Area 40, 41, 43, and 44
Packet Page 1556
25 Community Safety and Security
Newark Police Department
Incident Search Results
Area is 40 or 41 or 43 or 44, Date Between 6/20/2019 and 6/20/2020 85%
2%
1%
8%
5%
Incident Chart Officer Initiated Patrol; 1396;
85%
Stolen Vehicles; 36; 2%
Vehicle Parts Theft; >1%
Burglary; 130; 8%
Theft; 75; 5%
Packet Page 1557
26 Community Safety and Security
Newark Police Department
Incident Search Results
Area is 40 or 41 or 43 or 44, Date Between 6/20/2020 and 6/20/2021 73%
4%
3%
12%
8%
Incident Chart Officer Initiated Patrol; 631;
73%
Stolen Vehicles; 32; 4%
Vehicle Parts Theft; 27; 3%
Burglary; 107; 12%
Theft; 68; 8%
Packet Page 1558
27 Community Safety and Security
Newark Police Department
Incident Search Results
Area is 40 or 41 or 43 or 44, Date Between 6/20/2021 and 6/20/2022 80%
3%
2%
11%
5%
Incident Chart Officer Initiated Patrol; 1249;
80%
Stolen Vehicles; 42; 3%
Vehicle Parts Theft; 33; 2%
Burglary; 168; 11%
Theft; 76; 5%
Packet Page 1559
28 Community Safety and Security
Newark Police Department
Abode Partnership
• Police Influenced Requirements
• Security Cooperation
• Camera Access
Packet Page 1560
29 Safety and Security
Cedar Community Apartments
CCA Site and Program Security
• Security fencing with controlled access
• Security cameras
• Security guard: 24 hours/day, seven days per week
• On-site live-in manager
Packet Page 1561
30 Safety and Security
Cedar Community Apartments
Regulatory Agreement
• Employ CPTD design principals
• Review of illegal activity with Newark PD
• Implementation of a neighborhood watch program
• On-site contact to receive neighborhood
complaints/concerns; prompt resolution
• City’s right to enter property to investigate conditions affecting neighborhood safety and welfare
• Management agent responsible for safe operations
Packet Page 1562
31 Site Improvements and Parking
Cedar Community Apartments
Site Improvements
• Resident services modular building
• New security fencing to match existing fencing
• New security cameras
• Bicycle parking – 100 spaces
• Accessible parking and mobility improvements
• Removal of pool; install playground and resident
amenities
• Design review is required
Packet Page 1563
32 Site Improvements and Parking
Cedar Community Apartments
Automobile Parking
• 134 existing automobile parking spaces
• Onsite improvements result in removal of 46 spaces
• 88 spaces to be provided
• Developer request for an automobile parking
concession for 100% supportive, affordable housing
• Planning Commission review and recommendation to
City Council
Packet Page 1564
33 Community Engagement
Cedar Community Apartments
Community Meetings
• Virtual community meetings via Zoom
• November 10, 2021
• March 9, 2022
Other Engagement
• Website and FAQs
• Social media / electronic mail
• Courtesy notifications
Packet Page 1565
34 Policy & Program Conformance
Cedar Community Apartments
General Plan – Housing Element
• Program 1: Create affordable housing w/developers
• Program 2: Support efforts to end homelessness
• Program 8: Seek funds for affordable housing
Affordable Housing Work Plan
• Site acquisition activities and funding for affordable housing development
Packet Page 1566
Property acquisition: October 2022
Design review/parking concession: October 2022
Marketing, advertisement, and
Tenant referrals and recruitment: October 2022 – March 2023 Interior construction and renovations: October 2022 – November 2022 Exterior improvements: December 2022 – March 2023
Leasing activities/resident move-in: October 2022 – March 2023 35 Next Steps
Cedar Community Apartments
Packet Page 1567
36 Staff Recommendation
Cedar Community Apartments
Standard Agreement Resolution
By resolution, accept and approve a Standard Agreement
with the State of California’s HCD Department for a
Homekey grant of $38,156,293.00
Agreements Resolution
By resolution, accept and approve a Loan Agreement
and Affordable Housing Regulatory Agreement and
Declaration of Restrictive Covenants between the city
and Allied, and a Promissory Note and Deed of Trust
Packet Page 1568
Paul Peninger, Baird +Driskell
Ken Smith, President, Board of Directors Abode Services Louis Chicoine, CEO Abode Services
Jon White, Chief Real Estate Officer Abode Services
37 Project Team
Cedar Community Apartments
Packet Page 1569
City Council: September 22, 2022
Cedar Community Apartments
Homekey Project
Grant Acceptance & Agreements
Thank You/
Questions
Packet Page 1570
Item G. 1.
DATE 09/22/2022
TO Honorable Mayor and City Council Members
FROM Alan L. Nagy, Mayor
SUBJECT Adopt a resolution approving the Mayor's appointment to the Planning Commission Debbie Otterstetter resigned from the Planning Commission effective July 31, 2022.
Ms. Otterstetter's term was scheduled to expire on December 31, 2023.
The City Clerk advertised the vacancy and applications were received from Daniel Cardenas, Namit Saksena, Raju Mathew, Patricia Pippitan, and Carol Graham.
The applicants have been interviewed and Mayor Nagy will announce his selection at the City Council Meeting to fill the unexpired term through December 31, 2023.
It is recommended that the City Council adopt a resolution approving the appointment to the Planning Commission.
Attachments
Resolution
Packet Page 1571
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK APPROVING THE APPOINTMENT OF
TO THE PLANNING COMMISSION
WHEREAS, Debbie Otterstetter, hereto appointed member of the Planning Commission, resigned her seat effective July 31, 2022; and
WHEREAS, the City Clerk advertised the vacancy and received applications from, Daniel Cardenas, Namit Saksena, Raju Mathew, Patricia Pitpitan, and Carol Graham; and WHEREAS, the Mayor of the City of Newark has considered the applications; and WHEREAS, the Mayor of the City of Newark has appointed
to said position on the Planning Commission for a term expiring December 31, 2023; NOW, THEREFORE, BE IT RESOLVED that said appointment is hereby approved by the City Council of the City of Newark.
Packet Page 1572