5.1.a In order for applications to be approved, each application should meet the following criteria as applicable: Creates or maintains a pedestrian oriented streetscape, The proposed Fence and Hedge frontage is consistent with the existing streetscapes along Chrysanthy and Sunrise which consist of wide landscape areas with winding pedestrian pathways and perimeter walls around neighborhoods that are focused inward. The project has been designed be pedestrian oriented while maintaining privacy and security for the residents. The design treats the fence as a subtle frame for public life rather than a barrier. The goal is to maintain an active edge along the street while providing residents with security and privacy. The provided landscaped setbacks provide a green buffer, softens the fence, and offers shade and seasonal interest. Clear sightlines, lighting, and signage will make the pedestrian access points to the site feel inviting. On the interior of the site, a continuous network of internal pedestrian circulation is lined with landscape connecting to key amenity spaces throughout the site creating seamless connections, inviting movement through and around the site. The project has been designed to remain welcoming and pedestrian friendly. The design treats the fence as a subtle frame for public life rather than a barrier. The Applicant feels this is an appropriate design for the context of the neighborhood for this site, which differs from the urban environment assumed in the Design Guidelines.
X
5.1.b
In order for applications to be approved, each application should meet the following criteria as applicable: Generates a transition from the public streetscape to each building and its site.
The proposed Fence and Hedge frontage is consistent with the existing streetscapes along Chrysanthy and Sunrise which consist of wide landscape areas with winding pedestrian pathways and perimeter walls around neighborhoods that are focused inward. The site design intends to guide pedestrians and residents naturally from the active public realm to the semi-private residential environment while reinforcing the character of the neighborhood. The building entrances are designed to create shelter and a strong visual signal of entry. The community building with the leasing office is centrally located with easy access for pedestrians and vehicles. Clear sightlines, lighting, and signage will make the pedestrian access points to the site feel inviting. By layering spaces, integrating landscaping, and providing clear architectural and lighting cues, the design establishes a gradual and intuitive transition from the public streetscape to each building and its site. Internally, the site layout design includes a welcoming sidewalk zone, followed by a landscaped buffer area, and finally the building entrance. The Applicant feels this is an appropriate design for the context of the neighborhood for this site, which differs from the urban environment assumed in the Design Guidelines.
X
5.4.A
Fence and Hedge: Intent Statement
Fence and hedge frontages provide a green buffer for residential ground-floor uses at heavily-trafficked thoroughfares. The fence and hedge frontages provide privacy.
The design anticpates the use of hedges to provide privacy and separation between ground-floor residences and walkways. This will be incorporporated as part of the final design.
X
5.4.B
Fence and Hedge: Entries should be recessed behind fence and an optional hedge. There should be a break for pedestrian access at least every two-hundred feet (200 ft.) But can be frequent if serving row houses.
Building entrances are independent of gated entries because of the building typology.
As the proposed building lobbies are located on the internal “streets” of the project, there are no breaks in the fence for building entries. There are pedestrian gates in perimeter fence accessible from both Chrysanthy and Sunrise. Reducing the number of access points also provides greater security for the project residents and gives families peace of mind with children and pets playing outdoors. The Applicant feels this aligns well with the nature of the adjacent uses around the site location, which is less urban than the Design Guidelines account for and is particularly important on the projects frontage on Sunrise Blvd as it is a Major Thoroughfare in the region with high traffic volumes and posted speed limit of 50 mph.
X
5.4.C Fence and Hedge: Dimensions Fence and hedges should be no taller than forty-inches (40”) tall measured from the sidewalk grade.
Plant species for hedges will be selected with this criteria in mind as part of the final design for the project. Clear views throughout the project and CPTED guidelines are primary criteria used in the development of the final planting plan.
X
5.4.D.1 Fence and Hedge: Paving and Landscaping: Yards should be landscaped with native or adaptive landscaping or hardscape.
Plant species for this project include native species, and all non-native are well adapted for this region. X
5.4.D.2 Fence and Hedge: Paving and Landscaping: Walks should be paved. Walks are paved and will be demonstrated as such as part of the final design. X
5.4.E.1 Fence and Hedge: Additional Standards and Guidelines: If used, hedge should be thick enough to obscure the fence.
This design criteria will be included in the final planting design. Softening of hard elements (e.g. fencing) by placement of planting is a primary design consideration at these types of locations.
X
ITEM 9.13.
ATTACHMENT 2
5.4.E.2 Fence and Hedge: Additional Standards and Guidelines: Fence tops should not be visible above hedge upon maturation of landscaping.
Project is proposing a 6' fence height, so we do anticipate that the fence tops will be visible above the matured landscaping. The optional hedge is intentionally omitted to maintain both a sense of security and visual connectivity between the street facing buildings and the street. The Applicant feels that a 6’ fence is important for enhanced protection for the project’s residents, which is particularly important on the projects frontage on Sunrise Blvd as it is a Major Thoroughfare in the region with high traffic volumes and posted speed limit of 50 mph. A fence will also allow families with peace of mind for children and pets to play outdoors with confidence and provide the privacy necessary for residential comfort and dignity. The sense of a protected personal environment reduces stress and fosters a stronger feeling of “home,” which is critical for quality of life. Per conversations with City Planning Staff on 7/14/2025, a 6’ fence would be acceptable so long as the Applicant provided proper justification for the decision.
X
5.4.E.3 Fence and Hedge: Additional Standards and Guidelines: Fences should be metal, wood or vinyl. Chainlink fencing not allowed. Fences are propsed to be decorative metal fencing. X CHAPTER 6 - ARCHITECTURAL STANDARDS
6.2.1 Roof Guidelines: When used, “cool roofs” should be designed using white or other lightly colored surface to reflect the sun and reduce building temperatures and need for cooling.
Cool roofs will be provided at flat roofed areas. X
6.2.2 Roof Guidelines: Roof forms and materials that complement the character of the building design should be used.
Roof material is in character with architectural style. X
6.2.3 Roof Guidelines: The roof edge should be defined with a parapet, cornice, overhang, or some other architectural element.
Roof edges are made up of gables, tile caps, and overhang details. X
6.2.4 Roof Guidelines: Green roofs should be considered for their ability to treat stormwater, as well as to provide a visual amenity.
Green roof considered but not implemented. X
6.2.5 Roof Guidelines: Rooftop mechanical equipment should be clustered away from the edge of the building and behind/within an enclosure that is architecturally compatible with other on-site development in terms of colors, materials, and architectural styles so as not to be visible from the street and improve building appearance from surrounding taller buildings.
Rooftop equipment screened by roof. X
6.2.6 Roof Guidelines: Rooftop equipment not within an enclosure should be painted to match the rooftop, if feasible.
Roof top equipement will match adjacent color. X
6.2.7 Roof Guidelines: Unenclosed shade structures, and similar amenities should be considered to encourage rooftop use and to provide visual relief. Shade structures should not exceed 16 feet in height from the roof deck floor level and do not count as a Story.
No shade structures provided on roofs. X
6.2.8 Roof Guidelines: Rooftop amenities such as swimming pools are permitted; rooftop amenities do not count as a Story.
No rooftop amenities provided. X
6.3.1 Colors and Materials: Changes of exterior color, texture, or material should be accompanied by changes in plane so that buildings appear substantial and integral.
Changes of exterior color, texture, and material are accompanied by changes in plane and/or utilizations of trim / banding to appear substantial and integral. X
6.3.2 Colors and Materials: Color and material changes at the outside of corners of a building or plane change that give a thin veneer, or faux stone appearance, should be avoided.
Changes in material on outside corners have been avoided. X
6.3.3 Colors and Materials: Materials that have demonstrated their durability in similar climates, sustainably manufactured, harvested, and/or sourced should be considered.
Materials have demonstrated durability in similar climates. X
6.4.1 Entrances: The Primary Entrance to buildings should be oriented to the Street front, or courtyard, rather than to the parking lot, Alley, or interior of lot.
As this is a large site, the proposed project has multiple buildings with building entrances oriented toward it’s Internal “Street fronts” to provide convenient access to parking for residents and their guests. Building entrances are also oriented toward the parking for accessibility, resident convenience, safety and operational efficiency purposes. Placing the primary building entrances adjacent to the parking lot allows for the shortest, most level path from accessible parking spaces to the front door, reducing travel distance for people with mobility challenges. The Applicant feels the design still creates a human-scale mixed-use environment by layering spaces, integrating landscaping, and providing clear architectural and lighting cues, which all help establish a gradual and intuitive environment. Per conversations with City Planning Staff on 7/14/2025, parking-oriented building entrances would be acceptable so long as the Applicant provided proper justification for the decision.
X
ITEM 9.13.
ATTACHMENT 2
6.4.2 Entrances: Where side or rear building entrances are provided, they should always be accompanied by a front, street-facing entrance.
As this is a large site, the proposed project has multiple buildings. All of the buildings only have front entrances which are facing the projects internal “Streets”. Because we will be implementing a perimeter fence for privacy and security reasons there are no side of rear building entrances
X
6.4.3 Entrances: On corner lots with one retail frontage, residential lobby entries should be located on the Side Street of the two Streets, where practical, to allow uninterrupted retail on the Primary Street.
There is no retail provided. X
6.4.4 Entrances: Residential entries should be well marked and easy to find. Entry doors should be recessed to articulate the entrance, add depth to the façade, and ensure that doors do not swing into the Sidewalk.
Residential entries are clearly Identifiable. X
6.4.5 Entrances: Residential and/or hotel entries for pedestrians may be accessed from courtyards, which provide additional richness to the streetscape experience.
This sections states Residential entries for pedestrians “may” be accessed from courtyards. As stated above, the building entries are located fronting the projects internal streets. Residential entries are located from common breezeways at each level. Building entrances are oriented toward the parking for accessibility, resident convenience, safety and operational efficiency purposes. Placing the primary building entrances adjacent to the parking lot allows for the shortest, most level path from accessible parking spaces to the front door, reducing travel distance for people with mobility challenges. The Applicant feels the design still creates a human-scale mixed-use environment by layering spaces, integrating landscaping, and providing clear architectural and lighting cues, which all help establish a gradual and intuitive environment. Per conversations with City Planning Staff on 7/14/2025, parking- oriented building entrances would be acceptable so long as the Applicant provided proper justification for the decision.
X
6.4.6 Entrances: Special paving and landscaping should be included at entrances to enhance the overall building design.
Special landscaping is included at entries and enhanced materials are applied to the buildings surrounding the building entrances, however, there is no special paving considered in the design. The building entrances are designed to create shelter and a strong visual signal of entry. Clear sightlines, lighting, and signage will make the pedestrian access points to the site feel inviting. While not contemplating special paving the building entrances have been enhanced, and the Applicant feels they conform to the intent of the Architectural Standards in creating a human-scale mixed- use environment
X
6.7.1 Passageways: Common walkways should be introduced to increase access within and across the blocks.
Sidewalks have been incorporated into the site design providing residents access routes from Residential Buildings to Common Areas, other Residential Buildings, Clubhouse, and Public Right of Way. Please see Preliminary Site Plan Sheet C2.1.
X
6.7.2 Passageways: Common walkways may be open or roofed, and may go between or through buildings, to courtyards, parking areas or public open spaces.
Sidewalks have been incorporated into the site design providing residents access routes from Residential Buildings to Common Areas, other Residential Buildings, Clubhouse, and Public Right of Way. Please see Preliminary Site Plan Sheet C2.1.
X
6.8.1 Windows: Windows should overlook public areas to allow for increased safety. Windows face public street frontage. X
6.8.2 Windows: Highly-reflective, mirrored, heavily-tinted and opaque glazing should not be utilized (except that opaque glazing may be used as spandrel glass). Window glazing should be transparent with clear or limited UV tint so as to provide views to and from the inside of the building and the street. Windows into bathrooms are exempt Window glazing is intended to be transparent. X
6.8.3 Windows: Outer surface of window frames facing the public realm set within masonry, stucco or simulated masonry or stucco walls should be recessed from the wall or trim surface by at least two inches (0’-2”).
Trim and shutter on the out perimeter of the window frames create a 2” recess. X
6.8.4 Windows: Regardless of architectural style, windows should be located in such a way so as to help avoid blank walls.
Windows are positioned to avoid blank walls. X
6.8.5 Windows: If exterior shutters are used, they should be sized and mounted appropriately to fit the window.
Accent Shutters are provided and sized appropriately. X
6.8.6 Windows: Windows and related architectural treatments should be designed, arranged and sized to be appropriate in style, scale, proportion and purpose to the overall architectural form.
Windows are arranged and proportioned to the overall architectural form. X
6.8.7 Windows: Upper-story windows should be designed to be operable. Typically, upper-story windows should be smaller than ground floor windows.
Upper story and lower story windows are operable. X
6.8.8 Windows: Lintels, transoms, sills, shutters, trim detailing and mullions should be considered to enhance window elements.
Window details include header and sill enhancements. X
6.9 Exterior Stairways: Exterior staircases should share compatibility with the architectural style of the building to which they are attached.
The stairway is recessed within the building and compliments the design. X ITEM 9.13.
ATTACHMENT 2
6.10.1 Common Open Space: Proposed developments should incorporate site amenities such as linear planting beds or seat walls, street furniture, enhanced paving surfaces, public art, lighting, etc., where appropriate.
Planting beds, seat walls, and site furniture are included at the common open spaces around the site. X
6.10.2 Common Open Space: Plant species should be selected based on their suitability for an urban environment, for their cleanliness, and for their ability to survive in a healthy state despite constrained growing conditions. Ease of maintenance should also be considered.
All of these factors are criteria used in making plant species selection. Final planting design will focus on appropriate plant species for the space and desired use, with a primary focus on mature plant size to reduce the need for high maintenance.
X
6.10.3 Common Open Space: The majority of plant materials should consist of drought tolerant and/or native plants with minimum water requirements.
The project includes CA native species, as well as drought tolerant species. All species have either a low or moderate classication (WUCOLS), with the majority having a low water-use classification.
X
6.10.4 Common Open Space: Turf should only be utilized where it is to be used for recreational uses. Turf should not be located in continuous planters or in front Street or side Street setback areas between the sidewalk and building facade as shown in “landscaped areas” within the frontage standards.
Turf is used in limited locations and for the intention of passive recreational use. Turf is not used anywhere for purely aesthetic purposes. X
6.10.5 Common Open Space: The use of canopy trees for shading and cooling is encouraged where appropriate, particularly in publicly accessible open spaces and plazas, to mitigate the urban heat island effect. Where canopy trees are used, site design should provide sufficiently sized tree pits or planting beds and appropriate planting medium to provide for healthy tree growth.
Shade trees are provided throughout the project for this purpose, especially at common areas. Final design will select tree species per lcoation taking into account the size of the planter at any given location.
X
6.10.6 Common Open Space: Artificial trees, shrubs, turf and plants should not be used as landscape within the public right of way, any parking area, or within an open space area directly visible to from the public right of way.
Artificial plants are not proposed. X
6.10.7 Common Open Space: Decorative water features shall use re-circulating water and, where available, shall use recycled water Decorative water features are not proposed with this project. X
6.10.8.a
Common Open Space: Landscaped areas are important components Water Quality Management Plans (WQMPs). These areas should be designed to: Consider the full range of Best Management Practice (BMP) alternatives for addressing drainage, infiltration, and stormwater quality for the site, including drainage from roofs, plazas, courtyards, and any surface parking areas.
Final planting design for the project will coordinate with the civil engineer's plans to address these items, as feasible. This will be done as part of the final design of the project.
X
6.10.8.b.1
Common Open Space: Landscaped areas are important components Water Quality Management Plans (WQMPs). These areas should be designed to: Utilize Low Impact Development (LID) design principles and practices to address infiltration of runoff through the use of: Pervious surfaces in lieu of impermeable surfaces in plazas, courtyards, and common walkways where technically feasible.
Final planting design for the project will coordinate with the civil engineer's plans to address these items, as feasible. This will be done as part of the final design of the project.
X
6.10.8.b.2
Common Open Space: Landscaped areas are important components Water Quality Management Plans (WQMPs). These areas should be designed to: Utilize Low Impact Development (LID) design principles and practices to address infiltration of runoff through the use of: Landscaped areas integrated into the drainage design where runoff can be directed into planters with subsurface features to further enhance storage or towards permeable surfaces
Final planting design for the project will coordinate with the civil engineer's plans to address these items, as feasible. This will be done as part of the final design of the project.
X
6.10.8.b.3.a
Common Open Space: Landscaped areas are important components Water Quality Management Plans (WQMPs). These areas should be designed to: Utilize Low Impact Development (LID) design principles and practices to address infiltration of runoff through the use of: Do not include Surface infiltration basins unless: They are accommodated within an active or passive park or open space that can be closed during flood events.
Common Open Space will use LID design principles to include pavement disconnect and vegetated planters to treat local runoff from the Common Areas. Surface Infiltration Basins are not proposed and Common Areas are not anticiapted to convey upgradient large stormwater runoff.
X
6.10.8.b.3.b
Common Open Space: Landscaped areas are important components Water Quality Management Plans (WQMPs). These areas should be designed to: Utilize Low Impact Development (LID) design principles and practices to address infiltration of runoff through the use of: Do not include Surface infiltration basins unless: They are not visible from a street or public open space and they are in addition to the required on-site open space.
Common Open Space will use LID design principles to include pavement disconnect and vegetated planters to treat local runoff from the Common Areas. Surface Infiltration Basins are not proposed.
X
6.10.9 Common Open Space: Outdoor dining areas should have special paving and/or a row of planters or bollards, or permeable fence to delineate the dining space.
Outdoor dining areas are not part of this project. That said, for areas similar in nature, such as seating areas, we have provided planters to separate these or otherwise designed to have these spaces be outside of the main flow of pedestrian movement, as much as feasilbe.
X
6.10.10 Common Open Space: Interior courtyards should include seating and planting areas. Low walls and steps may be used as alternative forms of seating.
Open spaces included seating. Seat walls are used in some areas. X
6.10.11 Common Open Space: Interior courtyard landscaping should include shade trees or shading devices, where space permits. Shade trees and shade trellises are proposed at common areas. X ITEM 9.13.
ATTACHMENT 2
6.10.12 Common Open Space: Lighting should be provided that illuminates the courtyard, but does not negatively impact surrounding buildings.
Lighting will be placed strategically so it doesn't negatively impact surrounding buildings. X
6.11.1 Ventilation: Air ventilation from outdoors is encouraged to improve indoor air quality for occupant comfort and wellbeing. Operable windows are provided at all apartment units. X
6.11.2 Ventilation: Windows, vents, and courtyards should be placed and oriented to enhance cross-ventilation and cooling. Each bedroom and living room has fenestration, allowing for natural ventilation. X
6.11.3 Ventilation: Operable transom windows are highly encouraged.
Operable transom window are not included. The residential floor to ceiling heights are 9’ with the tops of the operable windows at 8’ so there is not enough room for operable transom windows. The applicant understands this is not a firm requirement but rather an encouragement.
X
6.12.1 Garden Walls, Perimeter Walls, Hedges, and Fences: Garden walls, perimeter walls, hedges, and fences may be used to define the edge between adjoining private properties.
Walls, hedges, and fences facing the public Street should also comply with the Frontage Type standards (see Section 3.4).
Fences are proposed along the project edge. The fences and hedges will comply with Section 3.4 except where otherwise descrbied herein. X
6.12.2 Garden Walls, Perimeter Walls, Hedges, and Fences: No fence, wall, or hedge should exceed forty-inches (40”) in height in front yards and street facing side yards or six feet (6’-0”) in height in rear yards.
Final design will incorporate these items. The project is proposing 6' high fencing, so that is an exception. The reason for this descision as as follows:
Enhanced Sercurity - enhanced protection for the projects residents. Beyond the physical deterrence a taller fence will allow families with peace of mind for children and pets to play outdoors with confidence, knowing the barrier is high enough to prevent them from wandering out or strangers from accessing their space. This is particularly important on the projects frontage on Sunrise Blvd as being a Major Thoroughfare in the region with high traffic volumes and posted speed limit of 50 mph.
Stronger Privacy - Privacy is a cornerstone of residential comfort and dignity. The sense of a protected personal environment reduces stress and fosters a stronger feeling of “home,” which is critical for quality of life. • Visual Shielding: A 6-foot fence effectively blocks sightlines from streets, neighboring properties, or public pathways. By contrast, a 40-inch fence barely screens residents from passersby, leaving yards and windows exposed.
• Noise Buffer: Although not soundproof, a taller fence provides a modest buffer against traffic and street noise, creating a more peaceful living environment. • Outdoor Enjoyment: The inclusion of a 6 foot fence will assist with marketing efforts in attracting future residents and will allow residents to enjoy their patios and green spaces that have been thoughtfully designed to fullest extent.
X
6.12.3 Garden Walls, Perimeter Walls, Hedges, and Fences: Garden walls, perimeter walls, hedges, and fences should be built at least eighteen inches (0’-18”) from the lot line, to allow room for footings and planting.
Fences for the project along the property lines have been laid out to accommodate this design item. Final design plans will incorporate this.
X
6.12.4 Garden Walls, Perimeter Walls, Hedges, and Fences: Walls and fences should not be used at shopfronts, except where they are necessary to accommodate grade changes.
There is no Retail component to the proposed Project. X
6.12.5 Garden Walls, Perimeter Walls, Hedges, and Fences: Solid perimeter walls should be constructed of high quality enduring construction materials such as masonry or ornamental metal. Concrete block and interlocking concrete pavers (such as keystone) are not permitted when visible from the street.
The project is not proposing solid perimeter walls. X
6.12.6 Garden Walls, Perimeter Walls, Hedges, and Fences: No plastic or vinyl fencing should be permitted in front yards or street facing side yards.
Plastic or vinyl fencing is not proposed with this project. X
6.12.7 Garden Walls, Perimeter Walls, Hedges, and Fences: No chainlink fencing allowed. Chainlink fencingis not proposed with this project. X
6.12.8 Garden Walls, Perimeter Walls, Hedges, and Fences: In general, fences, walls, and hedges should complement the architecture of the building that they enclose and be compatible with the land use intensity. For example, residential uses should incorporate a softer texture of enclosure such as wood fences and landscaped hedges, whereas commercial buildings should use masonry or concrete walls.
This projects proposes hedges and decorative metal fencing, which is appropriate and compatible with the architeture and residnetial nature of this project. X
6.12.9 Garden Walls, Perimeter Walls, Hedges, and Fences: Walls and fences should be architecturally enhanced and complemented by adjoining landscaping. Tiered planting should be provided adjacent to perimeter walls to soften their appearance from surrounding areas.
Landscaping will enhance the fences and buildings in this project. Tiered landscaping is a common design criteria used by the design team and will be incorporated into the final planting design.
X
6.13 Retaining Walls There is no Retaining Walls as a component to the proposed Project. X ITEM 9.13.
ATTACHMENT 2
6.14.1.a
Parking Area Standards: Surface parking areas: Surface parking areas with two (2) rows of parking or fewer should be landscaped with a minimum of one tree per twenty (20) spaces with a minimum of one landscaped island (between spaces) for every ten (10) spaces.
Please reference Sheet C2.1 Preliminary Site Plan. For Single Row of Parking there is no stretch of parking that Exceeds 10 parking Spaces without a landscape island. At Solar Structure 6 we are exceeding the double row of parking and 20 spaces…we are providing 24 spaces...however this area is covered with a Solar Structure to meet the required solar energy demands of the project.
X
6.14.1.b
Parking Area Standards: Surface parking areas: Surface parking areas with more than two (2) rows of parking should include a landscaped median for every other row of parking that extends the entire length of the row. The landscaped median should be planted with shade trees at least every forty-five feet (45’-0”) and include a common walkway for access to and from the parked vehicles. Where landscaped medians are present, landscaped islands should also be placed a minimum of every fifteen (15) spaces.
Project does not propose a scenario of more than 2 rows of parking. X
6.14.1.c Parking Area Standards: Surface parking areas: Surface parking areas covered in solar panels are allowed to achieve fifty percent (50%) of the shade canopy requirement.
Solar structures are included in the calculations for parking lot shade, see the table on page L3. X
6.14.2 Parking Area Standards: When unrequired parking spaces are provided, at least five percent (5%) of parking spaces should be equipped for charging of electric vehicles, with signage limiting the use of those spaces to electric vehicles only. An electrical conduit should also be installed at the time of construction to facilitate the future installation of EV charging stations to at least ten percent (10%) of parking spaces.
Project does not propose any unrequired parking above what the Zoning Code requires. However the project does provide EV Ready and EV Charging Stations (for 50% of parking field) consistent with 2022 CALGREEN Residential Mandatory Measures.
X
6.14.3 Parking Area Standards: Permeable surfaces for parking and maneuvering areas are encouraged. Stormwater requirements may identify the need for permeable surfaces.
Permitted permeable surfaces include: pervious concrete and pervious pavers.
Project proponent does not propose any Permeable surfaces for parking and/or maneuvering areas. X
6.14.4 Parking Area Standards: Parking areas should be accessed from alleys, where feasible.
Where alleys do not exist, parking areas may be accessed from side streets or narrow driveways that are perpendicular to the street.
Parking Areas are accessed from private drive aisles throughout the project site and all parking stalls are located behind buildings and/or perpendicular to public streets.
X
6.14.5 Parking Area Standards: See Section 8 for approved shade trees. See comments in Section 8. X
6.15.1 Service and Auxiliary Equipment: Service, utility, and mechanical functions, including retail loading, should be located in alleys whenever present. When alleys are not present, service, utility and mechanical functions should be placed behind buildings and provisions for access should be made.
Project has no Functions as listed being a Multi-Family Residential Project. X
6.15.2 Service and Auxiliary Equipment: Service, utility, and mechanical equipment that is visible from the street should be screened from view with landscaping or enclosures. Backflow preventers and fire standpipes, along with utility box transformers should be screened.
Please reference Sheet C2.1 Preliminary Site Plan. Equipment has been located that such that it would not be visible from the Public Streets. However there some exceptions and screening has been placed in an effort to screen equipment however it should be noted that when screening it compliance with utility/fire department clearances must be complied with.
X
6.15.3 Service and Auxiliary Equipment: All screening devices should be compatible with the architecture, materials and colors of adjacent buildings. Should equipmennt need to be screeened, it will comply. X
6.15.4 Service and Auxiliary Equipment: Trash areas that are visible from public streets or adjacent properties should be enclosed by walls. Trash area entrances should be enclosed by a door.
Please reference Sheet C2.1 Preliminary Site Plan. Trash Enclosures have been located such that they would not be visible from the Public Streets. Trash Enclosures are enclosed in a 6-foot tall masonry wall to include access gates.
X
6.15.5 Service and Auxiliary Equipment: Service enclosures and retail loading areas should be sited to minimize nuisance to adjacent properties. Project does not have a retail loading use. X
6.15.6 Service and Auxiliary Equipment: Roof vent penetrations and mechanical equipment should be located at least ten feet (10’-0”) from any exterior building face.
The schematic design phase is designing a 10' clearance from the exterior wall. X
6.16.1 Architectural Lighting: Lighting should encourage a pedestrian-friendly environment and enhance both community safety and business exposure.
Site Lighting is designed to be pedestrian friendly and enhance safety and community exposure. Please see Sheet E2.0 (Site Lighting) X
6.16.2 Architectural Lighting: Lighting on buildings should be oriented to pedestrians in terms of scale, design, and location.
Building Lighting is oriented to pedestrians of scale, design, and location. Please see Sheet E2.0 (Site Lighting) X
6.16.3 Architectural Lighting: All exterior lighting should use full cutoff luminaries and be directed toward the areas to be lit to limit spill-over onto off-site uses.
Lighting Fixtrures are "Dark Sky" compliant. Please see Sheet E2.1 (Site Lighting Photometric), excessive lighting does not protrude beyond lot lines X
6.16.4 Architectural Lighting: Light quality should not be harsh, glaring, blinking or shed beyond lot lines.
Please see Sheet E2.1 (Site Lighting Photometric), Light quality is not harsh, glaring, blinking, or protruding beyond lot lines. X
6.16.5 Architectural Lighting: Building lighting may include low-level exterior lights adjacent to buildings and along pathways for security and wayfinding purposes and low-level accent lighting features and landscape elements.
Low level lighting is not currently utilized X
ITEM 9.13.
ATTACHMENT 2
6.16.6 Architectural Lighting: Alleys should have lights mounted on outbuildings or garages. No Alleys or Garages on project X
6.16.7 Architectural Lighting: Lights should use LED and other technologies to maximize energy efficiency. All Fixtures are LED Type X
6.16.8 Architectural Lighting: High-pressure sodium lights are prohibited. All Fixtures are LED X CHAPTER 7 - ARCHITECTURAL STYLES
7.3 Mediterranean The style is Mediterranean X
7.3.1.a Base: Exterior walls reach the ground with an expression of weight, with or without a base. Proposed exterior walls reach the ground and is proposed without a base. X
7.3.1.b Base: An explicit element of base is described either as a painted band of traditional colors or an applied band of stone or cast concrete.
There is no explicit base considered. Despite this, the design includes other dynamic, contrasting, and vibrant facades, adding visual interest to the community and speak to the Mediterranean style. Low solid walls are utilized at the ground floor patios instead of the open railings used on the floors above to create an expression of weight that grounds the building to the site.
X
7.3.1.c Base: Elements setback within the wall may have their own material connection to the ground, such as tile, plaster or concrete.
There are no setback areas within the exterior walls. Despite this, the design includes other dynamic, contrasting, and vibrant facades, adding visual interest to the community and speak to the Mediterranean style. The solid walls at the first floor contribute to the visual “weight” of the buildings giving them an implied base.
X
7.3.2.a Primary Walls: Expressed as single-plane expanses of plaster wall. Walls are defined by single-plane expanses of plaster. X
7.3.2.b Primary Walls: May be articulated by traditional moldings or applied ornament of stone or cast concrete to describe the vertical divisions into the base, body and top.
They are articulated by molding bands and alternating heights. X
7.3.2.c Primary Walls: Control joints allowed. Control joints will be applied accordingly X
7.3.2.d Primary Walls: Columns are relatively abstract with minimal articulation on the capital and base.
There are no columns. X
7.3.3.a.i Roof-Wall Connections: Exterior walls will transition into roof form by one of three devices: a projected wooden eave with exposed wooden rafters, Roof transitions include projected wooden eaves with expressed rafters and tile caps at gable ends. X
7.3.3.a.ii Roof-Wall Connections: Exterior walls will transition into roof form by one of three devices: a plaster molding or,
There is no plaster molding for roof to wall connections. X
7.3.3.a.iii Roof-Wall Connections: Exterior walls will transition into roof form by one of three devices: a tile cap.
Tile caps will be applied accordingly. X
7.3.3.b
Roof-Wall Connections: Foam moldings are permitted only on the second (2nd) floor or above and should not be used in occupied or high-use areas such as doorway trim or facing balconies.
There is no foam moldings. X
7.3.4.a Roof: May be pitched at a 3:12 ratio and finished in clay or concrete tile with overhanging eaves typically supported by brackets attached to the façade.
Roof pitch is designed to be concrete tile at 4:12 pitch. X
7.3.4.b
Roof: Flat roofs are allowed and should be articulated as an explicit exterior wall (tile may be multi-color randomly placed) visual transition to the sky. May be accessible and used as balconies or terraces.
There is limited flat roof. X
7.3.4.c Roof: No birdstops allowed at end condition: must be mortar filled. There are no brid stops. X
7.3.5.a Drainage: May be conducted off pitched roofs by a traditional combination of gutters and downspouts.
Drainage to be a combination of traditional gutters and downspouts as well as scuppers and integral roof drains. X
7.3.5.b Drainage: Flat roofs may be drained by use of trumpet scuppers. Such roofs draining internally to the roof will need tile or ceramic scuppers on exterior walls.
Flat roof will have trumpet scuppers X
7.3.5.c Drainage: Rainwater reaching the ground may be harvested in cisterns or temporarily collected in dry wells.
Rainwater will not be harvested. X
7.3.6.a
Openings: Windows are generally punched openings with little to no surround. Deep-set (min three inch (0’-3”) plaster return) and combined with deeper balcony, loggia, and arcade elements to generate complex building-wide vertical or horizontal compositions.
There is no 3" recess provided. Only trim configurations include trim combined with shutters matching the aggregate size of the opening, or paired windows grouped vertically with trim and siding in between. Both details provide a recessed depth around the window, enhancing shadow and window conditions include trim applied to the header and sill.
X
7.3.6.b Openings: Such compositions can be symmetrical overall, locally symmetrical or, asymmetrical.
Windows composition are designed with trims to enhance shadow lines and prevent a flat appearance. X
7.3.6.c Openings: There is high ratio of wall to window, meaning that the windows are read as “punched.”
The façade features a high wall-to-window ratio, and additional treatments include windows set within deep balconies. X
7.3.6.d Openings: Shutters are the aggregate size of the associated opening. Shutters area provided. X
7.3.7.a Attached Elements: All allowable urban frontages in the project area can be expressed in terms particular to this architecture. Faux clay vents are expressed at gables. X ITEM 9.13.
ATTACHMENT 2
7.3.7.b
Attached Elements: A number of architectural elements such as balconies, stairs, and chimneys can encroach beyond the primary exterior surface of buildings and into their setbacks. Balconies can either be supported by bracketing or can be entirely metal in construction.
Archtectural elements are not encroaching. X
7.3.8.a Massing: Volumetric compositions can be of a single primary volume offset by a variety of lesser ones. Also possible are compositions that are expressed in a single volume.
The massing is composed of a single primary volume with secondary forms and undulation at the roof level. X
7.3.8.b
Massing: It is common and desirable to articulate building corners on corner lots. Various scales of tower elements are employed as either habitable spaces or as a means of ventilation. They can either protrude above the general building mass or can be engaged to a wall.
There are no tower elements. X
7.3.8.c Massing: Such designs can be devised at the geometric corner or adjacent to it. Gable elements are expressed near the corners. X
7.3.9.a
Site Definition and Landscape: Buildings typically collect surrounding public and private space into walled precincts consistent with their use. Forecourts, garden walls, and zaguans are common.
The design does not include walled precincts. As a large Family Project, the amenity spaces are designed as larger open spaces rather than smaller walled in precincts to offer residents areas to congregate in larger groups and foster a sense of community while not infringing on the desires of other residents to maintain and live in a quiet environment. We will accomplish this through scattered green spaces throughout the site and through our centralized outdoor amenity space with recreational spaces for children, a pool area, and interior clubhouse space for recreation and resident programming. The design includes a fenced perimeter, but the site interior remains open to increase resident connectiveness and promote shared experiences, which increase resident quality of life.
X
7.3.9.b Site Definition and Landscape: The landscape of gardens and courtyards heightens the spatial character of each such enclosed exterior room.
The project design does not include enclosed exterior rooms. The landscape has been designed to provide articulation of the shared amenity spaces and is appropriate and compatible with the architecture and residential nature of this project. As a Family Project, amenity spaces are designed to offer residents areas refuge as well as spaces to congregate and foster a sense of community. We will accomplish this through scattered green spaces throughout the site and through our centralized outdoor amenity space with recreational spaces for children, a pool area, and interior clubhouse space for recreation and resident programming. The design includes a fenced perimeter, but the site interior remains open to increase resident connectiveness and promote shared experiences, which increase resident quality of life.
X
CHAPTER 8 - APPROVED TREES
8.2 The following pages list shade trees that are approved for parking lots in the City of Rancho Cordova. You will need to submit a tree planting plan for review by the City Arborist. When planting, you must adhere to the minimum distances noted below. If you use a tree not on the list, you will be required to go through a more in depth review with the city.
A planting plan is provided with proposed tree species. This proposed list incorporates previous comments from the the City Arborist. Nearly all tree species are selected either from the MFDG or from the City's Approved Tree List.
X
DETERMINATION OF CONSISTENCY
OWNER/APPLICANT
DATE OF DETERMINATION SUBMITTAL:_________________________________ SUBMITTED BY NAME: _____________________________________________________
CITY OF RANCHO CORDOVA
DATE OF DETERMINATION:_________________________________ REVIEW COMPLETE BY NAME: _____________________________________________________ ITEM 9.13.
ATTACHMENT 2
OWNER/APPLICANT
DATE OF DETERMINATION SUBMITTAL:_________________________________ SUBMITTED BY NAME: _____________________________________________________
CITY OF RANCHO CORDOVA
DATE OF DETERMINATION:_________________________________ REVIEW COMPLETE BY NAME: _____________________________________________________ Russell Condas
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
On-Going Conditions
1. The approved entitlement is for a Multifamily Streamlined Design Review Permit for Asteria Flats. The project shall be constructed consistent with the Project Plans (Attachment 1) for a 236 -unit multifamily development . Project MSDR- 1222-0001.
Project
Description
On-Going Planning
2. Applicant(s) agree to defend, indemnify and hold harmless with Coun sel selected by the City of Rancho Cordova
(“City”) and its agents, officers, consultants, and employees (“City’s Agents”) from any and all claims, actions , suits, or proceedings against the City or the City’s Agents to attack, set aside, void, or annul an approval by the City, or the City’s Agents concerning the project (collectively “Claim”).
The City shall promptly notify the Applicant of any Claim and the City shall cooperate fully in the defense. Nothing in this paragraph obligates the City to defend any Claim and the City is not required to pay or perform any
settlement arising from any such Claim not defended by the City, unless the settlement is approved in writing by the City.
General On-Going Planning
3. Any future alteration to the buildings, change in use, intensification of the site, or modification to the parking and landscaped area must be reviewed by the City to ensure
compliance with all local, state, and federal regulations.
Minor modifications that are found to be in substantial conformance with the approved plans such as colors, plant materials, or minor lot line adjustments, may be approved administratively. Major modifications shall be approved by the applicable decision making body.
General On-Going Planning
4. Applicant/Developer shall not carry a negative account balance with the City for the processing of the project. If a General On-Going Planning
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
negative account balance occurs, it will be the developer's responsibility to pay the balance due, in order to avoid delays in the processing of future permits or recordation of maps. Please email the Finance Department at
[email protected] for the status of your account with the City.
5. The Permit is valid for a period of three (3) years from the date of approval unless an extension is granted by the
Community Development Director.
Expiration On-Going Planning
6. Noise sources associated with construction, repair, remodeling, demolition, paving and/or grading of any real property must adhere to the development standards
outlined within the City’s Noise Element, RCMC 6.68 and RCMC 16.18.1407(F).
Noise On-Going Code Enforcement
/Building
7. The removal and replanting of landscape not listed on the approved plan set must be consistent with RCMC
23.716.080 through 23.716.090 and reviewed by the
Planning Department prior to the removal. All landscape care, maintenance, and tree pruning must adhere to RCMC
23.716.100 through 23.716.110.
Landscaping On-Going Planning
8. Signage is not approved with this permit. All signage shall comply with the City of Rancho Cordova Zoning Code.
Signage On-Going Planning
9. Applicant shall be responsible for all damage to City streets associated with construction of the project and shall repair any damage as soon as possible.
Infrastructure On-Going Public Works
10. Public lower laterals must not be smaller than the upper laterals, sized according to the California Plumbing Code requirements.
Sewer On-Going SacSewer
11. Construction of a grease trap or a sand oil separator may be required. The applicant must verify with the applicable jurisdiction’s building department.
Sewer On-Going SacSewer
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
12. If the proposed trash enclosure will contain a drain to the sewer, it must be covered.
Sewer On-Going SacSewer
13. Applicant shall be responsible for coordinating waterline impacts with the Sacramento County Water Agency
(SCWA). A waterline easement exists on the southern
property boundary of the proposed development. Confirm
location and development criteria with SCWA.
Water On-Going Public Works
Prior to Submittal of Improvement Plans
14. The project has an approved Level 3 sewer study. The subject parcel has a proposed density higher than what
was approved in the sewer study. The proposed changes to the approved sewer study require and addendum to be
submitted and approved by SacSewer prior to the submittal of improvement.
Sewer Prior to Submittal of
Improvement Plans
SacSewer
Prior to Approval of Improvement Plans
15. Driveway access along Sunrise Boulevard shall be limited to only right-out.
Public Works Prior to Approval of
Improvement Plans
Public Works
16. Drainage Study : Applicant shall prepare and submit a project specific drainage study. The drainage study shall conform to the requirements of the Sacramento City/County Drainage Manual (Volume 2), County of Sacramento
Improvement Standards (Section 9), and all other
applicable City standards. The drainage study must be
consistent with the Anatolia master drainage study.
Public Works Prior to Approval of
Improvement Plans
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
17. Stormwater Quality- Post Construction:
The improvement plans shall incorporate all applicable post construction stormwater quality measures; including source control (waste management areas, DI stamps, etc.), low
impact development, and full capture trash control
measures into the site improvement plans in conformance with the most recent version of the Stormwater Quality Design Manual for the Sacramento Region. The applicant shall prepare and submit a Post-Construction Stormwater Quality Control Plan that includes details and sizing
calculations of all the proposed post construction
stormwater quality measures. In addition, a maintenance covenant is required for all proposed post construction stormwater quality measures, as detailed in Appendix B of the Stormwater Quality Design Manual for the Sacramento Region.
Public Works Prior to Approval of
Improvement Plans
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
18. Stormwater Quality– During Construction:
SWPPP – the applicant shall prepare a Storm Water
Pollution Prevention Plan (SWPPP) to be executed through all phases of grading and project construction. The SWPPP shall incorporate Best Management Practices (BMPs)
to ensure that potential water quality impacts during
construction phases are minimized. These measures shall be consistent with the City’s Improvement Standards and Land Grading and Erosion Control Ordinance. During
construction, the applicant shall implement BMPs in
accordance with the SWPPP and the City’s Improvement
Standards.
Advisory Condition: Construction General
Permit
The project applicant shall file a Notice of Intent (NOI) to obtain coverage under the National Pollutant Discharge Elimination System (NPDES) General Permit For Storm
Water Discharges Associated With Construction And Land
Disturbance Activities (Construction General Permit).
Permits are issued by the State Water Resources Control Board.
Public Works Prior to Approval of
Improvement Plans
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
19. The SWPPP for the site shall include a contingency plan for the implementation of a process to remove fine clay
sediments prior to discharge to the City of Rancho
Cordova’s storm drain system and/or Waters of the State (e.g., creeks, rivers) to the satisfaction of the City of Rancho Cordova. A polymer treatment system or
comparable process shall be incorporated in the erosion and sediment control plan as part of the improvement plans submittal. This system shall be implemented by qualified professionals with training and proven experience in this field. Such treatment shall be accomplished in a manner that does not pose a toxic threat to fish and other aquatic organisms in receiving waters.
Public Works Prior to Approval of
Improvement Plans
Public Works
20. Drainage System Design:
The applicant shall submit and obtain City approval of plans and specifications for the construction of public
improvements and all grading. The drainage system shall be designed in accordance with the approved Drainage
Study to accommodate runoff from the ultimate
development and shall meet the City of Rancho Cordova’s Improvement Standards, construction standards, and
Floodplain Management Ordinances in effect at the time of improvement plans approval.
Public Works Prior to Approval of
Improvement Plans
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
21. All development within the City must comply with the City of Rancho Cordova’s Floodplain Management Ordinance. All
new structures shall be protected from the 100 -year (1 percent) flood event. Certified pad elevations (certified by a registered Civil Engineer or licensed Land Surveyor) shall be set at least one and two tenths foot (1.2') above all sources of 100 -year flooding (see Section 9 -1 of
improvement standards). The overland release path must
be shown on the improvement plans and the hydraulic
computation must be provided to estimate the flow depths along the overland release paths. The calculations must be in conformance with Section 9 -15 of the Improvement
Standards.
Public Works Prior to Approval of
Improvement Plans
Public Works
22. Provide a permanent concrete stamp, or other permanently applied message to the satisfaction of the City not including paint, which reads “No Dumping -Flows to Creek” or other approved message at each storm drain inlet.
Public Works Prior to Approval of
Improvement Plans
Public Works
23. All storm drain facilities within private lots shall be privately maintained and shall be clearly labeled as “private” in the improvement plans.
Public Works Prior to Approval of
Improvement Plans
Public Works
24. Fees:
Pay the drainage impact fees to the satisfaction of the City of Rancho Cordova’s Public Works Department.
Public Works Prior to Approval of
Improvement Plans
Public Works
25. Number, size, and location of driveways are subject to approval by the Public Works Department
Public Works Prior to Approval of
Improvement Plans
Public Works
26. Enter into a frontage agreement and bond for construction of public improvements per the approved Public Works
plans to the satisfaction of the Public Works Department.
Public Works Prior to Approval of
Improvement Plans
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
27. A final landscape plan shall be submitted in conjunction with improvement plan and or building permit submittal and approved by the planning and public works departments
prior to issuance of permits and/or any installation of landscape materials RCMC 23.716.020. The final
landscape planting and irrigation plan shall be prepared by a registered licensed landscape architect and include the following items per RCMC 22.180.060:
• Planting plan to scale that indicate slope
• Irrigation Plan
• Soils Test
• Water Use Calculations
• Irrigation Schedule
• Permeability test for LID facilities’ locations
• Soil media specifications (LID features)
Public Works Prior to Approval of
Improvement Plans
Public Works
28. All landscape strips, medians, etc. that contain trees shall be designed to include continuous root barriers. Trees shall be appropriately sized for their proposed planters.
Public Works Prior to Approval of
Improvement Plans
Public Works
29. Installation of a public cleanout is required at the right -of- way. These improvements must be shown on the plans.
Sewer Prior to Approval of
Improvement Plans
SacSewer
30. The minimum size for public sewer mainlines is 8 -inch diameter. Public sewer must be located in the right -of-way when possible. The design engineer must satisfactorily
demonstrate that placing the main line within a road ROW isnnot possible before locating a main line in a dedicated public sewer easement as approved by SacSewer. These
improvements must be shown on the plans.
Sewer Prior to Approval of
Improvement Plans
SacSewer
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
31. To obtain sewer service, construction of SacSewer sewer infrastructure will be required. Current SacSewer Standards and Specifications apply to any offsite or onsite public sewer construction or modification. These improvements
must be shown on the plans. Field modifications to new or existing precast manhole bases are not allowed.
Sewer Prior to Approval of
Improvement Plans
SacSewer
32. SacSewer requires each building on each lot with a sewage source to have a separate connection to SacSewer’s sewer system. If there is more than one building in any single parcel and the parcel is not proposed for split, then each building on that parcel must have a separate connection to a private onsite sewer line upstream of any connection to the SacSewer sewer. These improvements must be shown
on the plans.
Sewer Prior to Approval of
Improvement Plans
SacSewer
33. SacSewer Design Standards and Specifications require a minimum 6-inch lower laterals for apartment buildings.
Sewer Prior to Approval of
Improvement Plans
SacSewer
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
34. Sewer easements may be required to service this parcel.
All public sewer easements will be dedicated to SacSewer in a form approved by the District Engineer. All public sewer easements will be at least 20 feet in width and will
require continuous access for installation and maintenance.
SacSewer will only provide maintenance in public right -of- ways and SacSewer dedicated sewer easements. No
awning or overhang may encroach on the easement area.
At minimum, an all -weather access road must be provided to all manholes.
Sewer Prior to Approval of
Improvement Plans
Public sewer
easements must be
assigned prior to plan
approval. Recordation
of the public sewer
easement can occur
after plan approval.
Private sewer
easement and private
sewer agreements
must be assigned and
recorded prior to
approval of
improvement plans.
SacSewer
35. Construction of sewer mainlines are prohibited within 100 - year flood plains. The location of the 100 -year flood plain must be shown on the improvement plan.
Sewer Prior to Approval of
Improvement Plans
SacSewer
36. All onsite sewer plans and offsite sewer plans must be submitted separately to SacSewer for review and approval.
Sewer Prior to Approval of
Improvement Plans
SacSewer
37. All manholes not within public right of way must be accessible with an all-weather access road.
Sewer Prior to Approval of
Improvement Plans
SacSewer
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
38. Alignment of all main lines and structures must provide a minimum of 1 foot vertical clearance and 5 feet horizontal clearance from all other utilities and improvements. Sewer is to be located a minimum of 10 feet (measured
horizontally) from any structure or footing. Show public sanitary sewer and water supply facilities in accordance with the Health and Safety Code.
Sewer Prior to Approval of
Improvement Plans
SacSewer
39. If any proposed garbage enclosure will contain a drain to the sewer, the enclosure must have a roof.
Sewer Prior to Approval of
Improvement Plans
SacSewer
40. Show on the plan how Fire Lanes will be marked. Fire Lane identification shall be provided along the required fire access roadway. Fire Lane identification shall be in
accordance with the Sacramento Metro Fire Districts Fire Prevention Standard #3 and the California Vehicle Code.
Vehicle parking is prohibited on any street less than 28 feet in width. Vehicle parking is permitted on both sides of streets 36 feet or more in width. Roadway widths shall be measured between the gutterline or edge of pavement on opposite sides of the road. Identification of fire apparatus access roadways may be required on private roads.
Fire Prior to Approval of
Improvement Plans
Sacramento Metro
Fire
41. Provide a note on the plan that reads, “Fire access roadways shall be built to bear a minimum of 80,000
pounds and meet the Sacramento County Public Works
Standards for roadways. A report, prepared by a registered geotechnical engineer, verifying the ability of the road to bear the required minimum weight, shall be submitted with any plan indicating construction of roadway. Verification of constructed roadway shall be provided by a registered geotechnical engineer prior to final of the project.
Fire Prior to Approval of
Improvement Plans
Verification of
constructed roadway
by registered
geotechnical engineer
will need to be
completed prior to
vertical construction
Sacramento Metro
Fire
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
42. Show the location of the required fire hydrants for this project on the improvement plans. Approved fire hydrants capable of providing the required fire flow for the protection of any and all structures shall be located along the fire apparatus access roadway. The required fire hydrants shall be installed and operational prior to any construction or on - site storage of combustible materials. The minimum
required fire flow for the protection of commercial
developments is 1,500 gallons per minute (gpm) at a
pressure of 20 pounds per square inch (psi) for a two-hour duration.
Fire Prior to Approval of
Improvement Plans
Sacramento Metro
Fire
Prior to Issuance of Building Permit
43. A final Photometric Plan shall be submitted and approved as part of the building permit review process. The plan shall adhere to the outdoor lighting standards of Chapter 23.725 of the Rancho Cordova Municipal Code.
Lighting Plan Prior to Issuance of
Building Permit
Planning
44. Property Owner/Applicant shall participate in or provide a funding mechanism for maintenance services for the
project’s stormwater drainage and flood protection system.
This may be accomplished through annexation to the City’s Stormwater Utility Fee District, SWUII, or other financial mechanism as may be proposed and provided by the
Property Owner for the same purpose of providing a
funding mechanism to fund the operation and maintenance of the Project’s stormwater drainage and flood protection system. Costs associated with the annexation shall be
borne by the Property Owner/Applicant through payment of the annexation costs in the amount of $7,000 per
annexation. Contact Khaliq McClean at (916) 851-8708 with regard to the process to satisfy this condition of approval.
Public Works Prior to Issuance of
Building Permit
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
45. Property Owner/Applicant shall participate in or provide a funding mechanism for maintenance services for the fair share of existing and all new public improvements
associated with the project including, but not limited to, streets, bridges/culverts, traffic signals, traffic signs, striping and legends, ITS operations, street lights and safety
lighting, public frontage and median and landscape
improvements, and trails. This may be accomplished
through annexation to the City’s Community Facilities
District No. 2014 -2 (Street, Lighting and Landscape
Maintenance), or other financial mechanism as may be
proposed and provided by the Property Owner for the same purpose of providing a financial mechanism to fund the
operation and maintenance of the Project’s public
improvements. Costs associated with the annexation shall be borne by the Property Owner/Applicant through payment of the annexation costs of the CFD annexation in the
amount of $5,000 per annexation. Contact Khaliq McClean at (916) 851-8708 with regard to the process to satisfy this condition of approval.
Public Works Prior to Issuance of
Building Permit
Public Works
46. Reservations for bus turnouts will be required along potential bus routes, including areas served by
neighborhood shuttle services. Provide bus shelter
easements, approximately 10 feet in width by 20 feet in length, for future Regional Transit routes if bus shelters cannot be accommodated within the public utility
easements adjacent to public streets right-of-way.
Public Works Prior to Issuance of
Building Permit
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
47. Applicant shall submit improvement plans to the satisfaction of the Public Works Department. Improvement plans shall include, but shall not be limited to, all streets, water, sewer, storm drain, lighting, signage and striping, and other
associated facilities for all streets and other public areas depicted on the tentative map or tentative map phase.
Design datum shall be NAD-83.
Prior to acceptance of the improvements, record drawings of grading and improvement plans in AutoCAD, pdf format, and a GIS Shape file shall be submitted and approved by the Public Works Department.
Public Works Prior to Issuance of
Building Permit
Public Works
48. Secure City of Rancho Cordova Public Works Department approval of final grading plans, as required by City
Ordinance.
Public Works Prior to Issuance of
Building Permit
Public Works
49. The owner must contact Permit Services Unit at
[email protected] or by phone at (916) 876 -
6100 to determine if SacSewer impact fees are due. Fees are to be paid prior to the issuance of building permits unless fee deferral documentation i s provided and allowed by law as confirmed by SacSewer Permit Services Unit.
Sewer Prior to Issuance of
Building Permit
SacSewer
50. The applicant shall meet the following: Civil Site Plans, Fire Service Underground Plans and Architectural Plans shall be submitted and approved prior to Final Building Permit being issued. Fire Sprinkler and Fire Alarm plans shall be submitted prior to Final Building Permit being issued.
Please note: The Sacramento Metro Fire District does not allow deferred submittals.
Fire Prior to Issuance of
Building Permit
Sacramento Metro
Fire
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
51. In compliance with the Cordova Recreation and Park District (CRPD) Development Review Ordinance 0607-
01 submit to CRPD a Development Review Application
and deposit of $500 prior to the City of
Rancho Cordova’s issuance of a building permit on this
project.
Parks Prior to Issuance of
Building Permit
Cordova
Recreation & Park
District/Building &
Safety
52. To fund mitigation of impacts by new residents in the Asteria Flats complex on surrounding parks the
developer will pay a Park Development Fee in the amount of:
• $7,543.84 (seven thousand five hundred and fortythree dollars and eighty-four cents) per unit for one,
two- and three-bedroom multifamily units.
These fees became effective on January 1, 2025.
The Park Development Fee will be adjusted on January 1
annually thereafter no later than January 15th by the
method provided in City Construction Cost Index (CCI)
Index as follows: A “mean” index will be computed by
averaging the index for 20 U.S. cities with the index for San Francisco by resort to the October issue of the
Engineering News Record Magazine Construction Cost
Index of the year in which the calculation is being made.
An adjustment factor shall be computed by dividing the
“mean” index as calculated in subsection (a) of this
Section by the “mean” index for the previous October. The adjusted Park Development Fee shall be calculated by
multiplying the adjustment factor, as calculated in
subsection (b) of this Section, by the Park Development in place prior to the annual adjustment.
Parks Prior to Issuance of
Building Permit,
Unless fee deferral
documentation is
provided and allowed
by law.
Cordova
Recreation & Park
District/Building &
Safety
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
53. The District shall provide, and the developer shall deliver to City Public Works a certificate from the Cordova
Recreation and Parks District stating that all fees as
required by the District have been paid.
Parks Prior to Issuance of
Building Permit,
Unless fee deferral
documentation is
provided and allowed
by law.
Cordova
Recreation & Park
District/Public
Works
Prior to Final Inspection/Final Occupancy
54. Approved numbers or addresses shall be placed on all new or existing buildings in such a position as to be easily read from the street or road fronting the property. The minimum size of the numbers shall not be less than six (6) inches and shall be mounted immediately adjacent to a light
source and shall also contrast with their background.
Fire Prior to Granting Final
Occupancy
Sacramento Metro
Fire
55. During and upon completion of the installation of the landscaping for the project, the project landscape
architect/designer shall certify that the installed landscape complies with the approved plans. Certification shall be accomplished by completion of site visits at key installation milestones. Key milestones at a minimum shall include:
rough grade, soil amendment verification, Plant material inspection, irrigation coverage test, underdrain installation (as applicable) and final installation. Certification shall include signed site observation reports, photographs and documentation verifying implementation of soil report
recommendations. Failure to submit complete and accurate documentation to the Planning Department will delay final approval/occupancy of the project.
Public Works Prior to Granting Final
Occupancy
Public Works
56. Install public and onsite improvements per the approved Public Works plans and to the satisfaction of the Public Works Department.
Public Works Prior to Final
Inspection of the First
Unit
Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
57. Upon completion of the installation of the landscaping, the designer shall certify that the landscape complies with all city water conserving landscape requirements. Certification shall be accomplished by completion of a certificate of compliance on a form approved by the director of the city public works department. Failure to submit a complete and accurate certificate of compliance will delay final approval of the project and/or discontinue water service per RCMC
22.180.090. Upon receipt of the certificate of compliance and site inspection from City staff, the landscaping
performance bond will be released.
Public Works Prior to Final Building
Inspection of the Last
Building Permit
Public Works
58. Record drawings of grading and improvement plans in AutoCAD, pdf format, and a GIS shape file, or equivalent to the satisfaction of the City Engineer shall be submitted and approved by the Public Works Department.
Public Works Prior to Final Building
Inspection
Public Works
59. Applicant/Owner/Developer shall repair and replace all right-of-way damages caused by the construction of the
building to the satisfaction of the Public Works Department.
Damages include, but are not limited to: pavement,
sidewalks, curbs, and gutters.
Public Works Prior to Occupancy Public Works
60. The Applicant shall request a Final Planning Inspection with the Planning Department prior to granting of Final
Occupancy. Final Planning Inspection will ensure final construction is consistent with the approved design review including final installation of landscaping.
Public Works Prior to Occupancy Public Works
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review
Category Timing/
Implementation
Enforcement/
Monitoring
61. Applicant shall complete improvement plans to the
satisfaction of the Public Works Department prior to any occupancy. Improvement plans shall include, but shall not be limited to:
• All onsite civil improvements
• Civil plan shall include an ADA access plan
• All facilities, including but not limited to, sidewalk, driveways, etc. shall be upgraded to meet current ADA
requirements and City Standards.
• Utility laterals
• Replacement of damaged sidewalk and curb and gutter
along property frontage to the satisfaction of The Public Works Department. Sidewalk panels shall be replaced to
the nearest joint
• Replacement of damaged pavement along property
frontage to the satisfaction of The Public Works Department • Public improvement plans shall clearly delineate all
transitions to existing improvements
• Pavement cuts for utility connections in the right -of-way shall be repaired per County Standard.
• All improvements to be designed and constructed to the satisfaction of the Public Works Department.
Public Works Prior to Final
Inspection/Final
Occupancy
Public Works
ADVISORY:
• Sac Metro Fire: Gates shall be installed in accordance with The County Emergency Access Gates and Barriers Standard.
Plan submittal is required prior to installation.
• Sac Metro Fire: Subsequent applications, including time extensions, may be subject to additional SMFD Fire Conditions beyond those listed above. Fire conditions will only be added when significant life safety issues require remediation. • SacSewer: This project includes planned improvements within the S132 pump station shed area. Due to development in this ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review shed, improvements to S132 station are required. Lennar Homes of California, LLC is taking the lead in the S132 Pump Station upgrades. Your project may be responsible for the upgrades if Lennar does not complete the upgrades. • SMUD: SMUD has existing overhead 69kV facilities along Sunrise Blvd and on south side of project site that will need to remain. The Applicant shall be responsible for maintaining all CalOSHA and State of California Public Utilities Commission General Order No. 95 safety clearances during construction and upon building completion. If the required clearances cannot be maintained, the Applicant shall be responsible for the cost of relocation. • SMUD: SMUD has existing underground 12kV facilities along Sunrise Blvd and Chrysanthy Blvd and on south side of PROJECT SITE that will need to remain. The Applicant shall be responsible for maintaining all CalOSHA and State of California Public Utilities Commission General Order No. 128 safety clearances during construction and upon building completion. If the required clearances cannot be maintained, the Applicant shall be responsible for the cost of relocation. • SMUD: Structural setbacks less than 14-feet shall require the Applicant to conduct a pre-engineering meeting with all utilities to ensure property clearances are maintained.
• SMUD: Any necessary future SMUD facilities located on the Applicant’s property shall require a dedicated SMUD easement.
This will be determined prior to SMUD performing work on the Applicant’s property. • SMUD: In the event the Applicant requires the relocation or removal of existing SMUD facilities on or adjacent to the subject property, the Applicant shall coordinate with SMUD. The Applicant shall be responsible for the cost of relocation or removal. • SMUD: SMUD reserves the right to use any portion of its easements on or adjacent to the subject property that it reasonably needs and shall not be responsible for any damages to the developed property within said easement that unreasonably interferes with those needs.
• SMUD: The Applicant shall not place any building foundations within 5-feet of any SMUD trench to maintain adequate trench integrity. The Applicant shall verify specific clearance requirements for other utilities (e.g., Gas, Telephone, etc.). • SMUD: In the event the City requires an Irrevocable Offer of Dedication (IOD) for future roadway improvements, the Applicant shall dedicate a 12.5-foot public utility easement (PUE) for overhead and/or underground facilities and appurtenances adjacent to the City’s IOD.
• SMUD: The Applicant shall comply with SMUD siting requirements (e.g., panel size/location, clearances from SMUD equipment, transformer location, service conductors). Information regarding SMUD siting requirements can be found at:
https://www.smud.org/en/Business-Solutions-and-Rebates/Design-and-Construction-Services • The Applicant shall dedicate a 12.5-foot public utility easement for overhead and/or underground facilities and appurtenances adjacent to all public street rights-of-ways.
ITEM 9.13.
ATTACHMENT 2
CONDITIONS OF APPROVAL – MSDR-1222-0001 Asteria Flats
Conditions of Approval Asteria Flats
December 5, 2025 Multifamily Streamlined Design Review • The Applicant shall dedicate any private drive, ingress and egress easement, (and 10-feet adjacent thereto) as a public utility easement for (overhead and) underground facilities and appurtenances. All access roads shall meet minimum SMUD requirements for access roads.
• The Applicant shall dedicate and provide all-weather vehicular access for service vehicles that are up to 26,000 pounds. At a minimum: (a) the drivable surface shall be 20-feet wide; and (b) all SMUD underground equipment and appurtenances shall be within 15-feet from the drivable surface.
• The Applicant shall disclose existing or proposed 69 kV electrical facilities to future and/or potential owners.
ITEM 9.13.
ATTACHMENT 2
LOA
N AGREEMENT
by and between
T
HE CITY OF RANCHO CORDOVA
an
d
RANCH
O CORDOVA OWNER LP
ITEM 9.13.
ATTACHMENT 3
2 Exhibits
Exhibit A Legal Description
Exhibit B [Intentionally Omitted]
Exhibit C Memorandum of Agreement
Exhibit D City Loan Promissory Note
Exhibit E City Loan Deed of Trust
Exhibit F Regulatory Agreement
Exhibit G Scope of Development
Exhibit H Schedule of Performance
Exhibit I Financing Plan
Exhibit J Certificate of Completion
Exhibit K Performance Guaranty
ITEM 9.13.
ATTACHMENT 3
3 LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is entered as of __________________, 2026 (“Effective Date”) by and between the City of Rancho Cordova, a California municipal corporation (“City”), and Rancho Cordova Owner LP, a California limited partnership (“Developer”). City and Developer are hereinafter individually referred to as “Party” and collectively referred to as the “Parties.”
RECITALS
A. Developer owns an approximately 11.13 acre parcel located at on a site located at the southeast corner of Sunrise Boulevard and Chrysanthy Boulevard, APN 067-0430-018-0000, Rancho Cordova, California (“Property”). The Property is more fully described in Exhibit A attached hereto and incorporated by reference.
B. Developer desires to construct an affordable housing development (the "Project"). The Project will consist of two hundred thirty six (236) apartment units, together with all associated landscaping, parking and associated improvements, including a clubhouse, fitness center, leasing office, and swimming pool. Sixty (60) of the apartment units will be 1- bedroom units, sixty (60) of the apartment units will be two-bedroom units, fifty-eight (58) of the apartment units will be three-bedroom units, and fifty-eight (58) will be 4-bedroom units (“Improvements”).
C. All of the apartment units in the Project, except for two manager’s unit (the “Affordable Units”), will be restricted for occupancy by eligible households with incomes at or below 70% area median income (AMI), 60% AMI, 50% AMI and 30% AMI for a period of fifty-five (55) years from issuance of a final certificate of occupancy for the Project. Developer and City will enter into a “Regulatory Agreement” which sets forth the affordable housing obligations and other requirements for operation of the Project and Affordable Units.
D. The Parties desire for the City to provide a loan of Five Million Dollars ($5,000,000) (the “City Loan”) for the construction and operation of the Project. The City Loan will accrue simple interest at the rate of three percent (3%) per annum on the outstanding principal amount, for a term ending fifty-five (55) years from the date that the Project is placed in service as evidenced by the receipt of a temporary or permanent certificate of occupancy, and will be repaid from a portion of the Residual Receipts of the Project as set forth and defined in the City Loan Promissory Note.
E. Developer has represented to the City, and the City has determined that the Developer has the necessary expertise, skill and ability to carry out the commitments set forth in this Agreement. The City has further determined that this Agreement is in the best interests, and will materially contribute to the improvement of the City by improving the supply of affordable housing therein.
ITEM 9.13.
ATTACHMENT 3
4 F. A material inducement to the City to enter into this Agreement is Developer’s agreement to develop the Project within the time periods specified herein and in accordance with the provisions hereof (subject to Force Majeure and any other extension(s) provided herein), and the City would be unwilling to enter into this Agreement in the absence of an enforceable commitment by Developer to complete the Project in accordance with such provisions and within such time periods, subject to the terms and conditions set forth herein.
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. (a) “Affiliate” is defined in Section 8.3
(b) “Affordable Units” is defined in Recital D.
(c) “Bankruptcy Law” is defined in Section 11.1(g).
(d) “CEQA” is defined in Section 5.1.
(e) “Certificate of Completion” is defined in Section 5.12. (f) “City” is defined in the Preamble.
(g) “City Council” means the Rancho Cordova City Council.
(h) “City Documents” means this Agreement, the City Loan Promissory Note, the City Loan Deed of Trust, the Regulatory Agreement, and any other debt, loan or security instruments between City and Developer relating to the Property. (i) “City Loan” is defined in Recital E.
(j) “City Loan Deed of Trust” is defined in Section 6.1. (k) “City Loan Proceeds” is defined in Section 6.1.
(l) “City Loan Promissory Note” is defined in Section 6.1. (m) “Claims” is defined in Section 5.14.
(n) “Conditions of Approval” is defined in Section 5.1.
ITEM 9.13.
ATTACHMENT 3
5 (o) “Construction Contract” is defined in Section 4.8(g). (p) “Construction Plans” is defined in Section 5.8.
(q) [Reserved]
(r) “Developer” is defined in the Preamble.
(s) [Reserved]
(t) “Effective Date” is defined in the preamble.
(u) “Environmental Laws” is defined in Section 10.4.
(v) “Event of City Default” is defined in Section 11.2. (w) “Event of Developer Default” is defined in Section 11.1. (x) “Financing Plan” is defined in Section 3.4
(y) “General Contractor” is defined in Section 4.8(f).
(z) “Hazardous Materials” is defined in Section 10.3.
(aa) “Improvements” is defined in Section 5.1.
(bb) “Indemnitees” is defined in Section 5.14.
(cc) “Limited Partner” means U.S. Bancorp Community Development Corporation, a Minnesota corporation, and its permitted successors and assigns. (dd) “Management Agreement” is defined in Section 4.8(k) (ee) “Memorandum of Agreement” is defined in Section 2.2. (ff) “Official Records” means the Official Records of Sacramento County. (gg) “Party” and “Parties” are defined in the Preamble. (hh) “Partnership Agreement ” means that certain Second Amended and Restated Agreement of Limited Partnership of Developer dated as of June 1, 2026, and as it may be amended from time to time.
(ii) “Prevailing Wage Laws” is defined in Section 5.14. (jj) “Property” is defined in Recital B.
(kk) “Property Manager ” means Cornerstone Residential CA, a California corporation.
ITEM 9.13.
ATTACHMENT 3
6 (ll) “Project” is defined in Recital C.
(mm) “Regulatory Agreement” is defined in Section 7.2 and is in the form of Exhibit F.
(nn) “Request for Notice” is defined in Section 4.8(l). (oo) “Scope of Development” is defined in Section 5.1, and attached hereto as Exhibit G.
(pp) “Transfer” is defined in Section 8.2.
ARTICLE II
REPRESENTATIONS; EFFECTIVE DATE; MEMORANDUM.
2.1 Developer’s Representations. Developer represents and warrants to City 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 partnership, 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 the execution, performance and delivery of this Agreement by Developer has been duly authorized by all requisite actions. The persons executing this Agreement on behalf of Developer have been duly authorized to do so. This Agreement and the other City Documents constitute valid and binding obligations of Developer, enforceable in accordance with their respective terms. (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, to Developer’s actual knowledge, has been threatened in writing 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 Effective Date; Memorandum. The obligations of Developer and City hereunder shall be effective as of the Effective Date. The Parties shall execute a Memorandum of this Agreement (“Memorandum of Agreement”) substantially in the form attached hereto as Exhibit C and incorporated herein by this reference, which shall be recorded in the Official ITEM 9.13.
ATTACHMENT 3
7 Records against the Property. The City will not withhold, condition, or delay consent to reasonable requests for subordination of the Memorandum of Agreement to deeds of trust, regulatory agreements and related documents provided for the benefit of Project lenders in accordance with Section 9.1.1 hereof.
ARTICLE III
PREDISPOSITION ACTIVITIES
3.1 Sche dule of Performance. Certain tasks described in this Agreement must be completed no later than the dates set forth in the Schedule of Performance attached to this Agreement as Exhibit H, subject to events of forced delay as set forth in Section 13.2 or other extension as applicable. The Schedule of Performance may be modified by the mutual agreement of the Developer and by the City Manager on behalf of the City without formal amendment of this Agreement, with notice to the Limited Partner.
3.2 Financing Plan. Developer has submitted , and City has approved, a financing plan for the Project (“Financing Plan”), attached hereto as Exhibit I and incorporated herein by this reference. All financing necessary for the construction of the Project, as approved by the City in the Financing Plan (not including permanent financing), shall be closed by the Developer prior to, or simultaneously with, the disbursement of the City Loan to Developer.
ARTICLE IV
DEVELOPMENT OF PARCEL
4.1 Development of Parcel . D eveloper shall construct the Project on the Property, substantially in accordance with and subject to the terms and conditions of this Agreement, free and clear of all liens and encumbrances except: (a) for any liens in connection with the Developer’s senior financing (the “Senior Financing”), including, but not limited to any regulatory agreements or restrictive covenants required by the Senior Financing, California Municipal Finance Authority, Sacramento County Water Agency, or Sacramento Area Sewer District (the “Authority” or the “Agency”); (b) any liens and encumbrances as of the date hereof included in the [owner’s title policy]; (c) any easements, licenses or similar agreements entered into in the normal course of operating the project so long as the City’s interests are not subordinated without its consent; and (d) the provisions and effect of this Agreement; and (e) liens for nondelinquent taxes, assessments, and/or bonds; (all of the foregoing collectively referred to as the “Permitted Exceptions”).
4.2 City’s Conditions to Proceeding. City’s obligation to deliver payment of City Loan is subject to satisfaction or waiver by the City of all of the following conditions:
a. Execution of Documents . Developer shall have executed and acknowledged the Memorandum of Agreement, the Regulatory Agreement, the City Loan Promissory Note and the City Loan Deed of Trust, and all other documents required hereunder, and shall have delivered all such documents to City.
ITEM 9.13.
ATTACHMENT 3
8 b. Insurance. Developer shall have submitted to City and City shall have approved Developer’s evidence of the liability insurance required pursuant to Article XII hereof.
c. Land Use Entitlements. The City shall have approved the land use entitlements for the Project and Developer shall have approved or be deemed to have approved the same, including without limitation all terms and conditions applicable thereto.
d. Evidence of Development Financing. The City shall have received and reasonably approved the following (to the extent such financing is contained in the Financing Plan): (i) construction loan documents evidencing the obligation of the lender to make the construction loan(s) to Developer, in an amount consistent with the Financing Plan, (ii) a commitment of equity funds (the “Tax Credit Funds”) from the syndication of the one or more federal or state tax credits (collectively, the “Tax Credits”) for the construction and operation of the Project, subject only to reasonable and customary conditions as set forth in the Partnership Agreement, (iii) a commitment from a lender reasonably acceptable to City (who may also be one of the construction lenders) to make a permanent loan to Developer, with a term of not less than fifteen (15) years, in a sum sufficient, when added to any Tax Credit Funds to be disbursed for such purpose, to take out any existing construction financing, subject only to reasonable and customary conditions as set forth in the documents evidencing the Senior Financing (the “Senior Financing Documents”), and consistent with the Financing Plan, (iv) commitments and documents from other funding sources described in the Financing Plan (if any), .
e. General Contractor. The general contractor for the Project (the “General Contractor”) shall have been approved by the City, which approval shall not be unreasonably withheld, conditioned, or delayed. The parties hereby agree that CSI Construction Company is hereby approved as the General Contractor for the Project.
f. Construction Contract . City shall have received a true and complete copy of a contract by and between Developer and the General Contractor pursuant to which the General Contractor has agreed to construct the Project at a cost consistent with the costs set forth therefor in the Project budget set forth in the Financing Plan (as the same may be amended from time to time with City’s approval (which shall not be unreasonably conditioned, delayed, or denied), unless for non-substantive amendments) (the “Construction Contract”).
g. Intentionally Omitted.
h. Construction to Commence. The City shall be reasonably satisfied that construction of the Project will commence within the time set forth in the Schedule of Performance and thereafter will be pursued, subject to Force Majeure, to completion in a diligent and continuous manner.
i. Management Plan. Developer shall have submitted a
comprehensive management plan for the Project to the City in accordance with the Regulatory Agreement and the City shall have approved the same.
ITEM 9.13.
ATTACHMENT 3
9 j. Management Agreement. The City shall have received and reasonably approved an executed agreement by and between Developer and the Property Manager (the “Management Agreement”), which Management Agreement shall be substantially consistent with this Agreement and the requirements of the Regulatory Agreement.
k. Request for Notice of Default. City shall have received a notice of default pursuant to Civil Code Section 2924(b), requesting that any beneficiaries of liens securing the Project financing notify City of any default under the instrument creating the lien (the “Request for Notice”).
l. Intentionally Omitted.
m. Representations and Warranties. The representations of Developer contained in this Agreement shall be correct in all material respects as of the Effective Date.
4.3 Developer’s Conditions to Closing. Developer’s obligation to proceed with the Closing is subject to satisfaction or waiver by Developer of the following conditions:
a. Execution of Documents. City and Developer shall have executed and acknowledged the Memorandum of Agreement, the Regulatory Agreement, and all other documents required hereunder, and shall have delivered all such documents to City. b. Land Use Entitlements . The City shall have approved the land use entitlements for the Project and Developer shall have approved the same, including without limitation all terms and conditions applicable thereto.
ARTICLE V
DEVELOPMENT OF THE PROJECT
5.1 Scope of Development. Developer shall develop the Project substantially in accordance with the “Scope of Development” attached hereto as Exhibit G (as the same may be amended from time to time), the terms and conditions of this Agreement and substantially in compliance with the terms and conditions of all approvals, entitlements and permits that the City or any other governmental body or entity 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 Project and all conditions of approval imposed in connection with any entitlements, approvals or permits (all of the foregoing approvals, entitlements, permits, mitigation measures and conditions of approval are hereafter collectively referred to as the “Conditions of Approval”).
The Project shall, following completion, consist of the Improvements.
Notwithstanding anything to the contrary contained herein, the construction of the Project is expressly conditioned upon compliance with the California Environmental Quality ITEM 9.13.
ATTACHMENT 3
10 Act, California Public Resources Code Section 21000 et seq., CEQA guidelines, and implementing regulations, all as amended from time to time (“CEQA”) to the extent applicable.
No physical activity, not otherwise exempt from CEQA, shall commence on the Property without such compliance.
5.2 Timing of Construction. The Developer shall obtain a grading permit (“Grading Permit”) and building permit and commence construction of the Improvements within the time set forth in the Schedule of Performance (as may be amended in accordance with the terms hereof). The Developer shall diligently prosecute to completion the construction of the Improvements within the time set forth in the Schedule of Performance.
5.3 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 construction 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 apply for and obtain all necessary entitlements, approvals, and permits for the construction of the Project, including without limitation, the approval of architectural plans, the issuance of any certificates regarding historic resources required in connection with the Project (if any), and the completion of any required environmental review. For the avoidance of doubt, the parties hereby agree that the necessary entitlements, approvals, and permits for the Project have been received as of the date hereof.
Developer covenants that it shall: (i) obtain all necessary permits and approvals which may be required by City, or any other governmental agency having jurisdiction over the construction of the Project or the development of the Property for the applicable stage of construction, (ii) comply with all Conditions of Approval and other design and use considerations as detailed in the City’s Design Review approval, (iii) comply with all mitigation measures imposed in connection with any environmental review of the Project, and (iv) not commence construction work on the Project prior to issuance of building permits required for such work (excluding any grading work permitted by the Grading Permit).
City staff shall work cooperatively with Developer to assist in coordinating the expeditious processing and consideration of all permits, entitlements and approvals necessary for development of the Project.
5.4 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, design review, architectural review, and any subsequent approvals for the Project or the development of the Property.
5.5 Cost of Construction. Developer shall be solely responsible for all direct and indirect costs and expenses incurred in connection with the design, development and construction of the Project and compliance with the Conditions of Approval, including without limitation the installation and construction of all off-site or on-site improvements required by City in connection therewith as evidenced by the Conditions of Approval.
ITEM 9.13.
ATTACHMENT 3
11 5.6 Rights of Access. For the purpose of ensuring that the Project is developed substantially in compliance with this Agreement, Developer shall permit representatives of the City to enter upon the Property, subject to the rights of tenants, during normal business hours to inspect the Project following forty-eight (48) hours prior written notice, including without limitation inspection for labor standards compliance monitoring as described in Section 5.14 (except in the case of emergency in which case such notice as may be practical under the circumstances shall be provided). Developer or its representative shall have the right to accompany any City representative performing an inspection of the Project.
5.7 City Disclaimer. Developer acknowledges that City shall have the right to monitor, review, or inspect the progress of construction or the operation of the Project.
Notwithstanding such right, Developer and all third parties shall rely on its or their own supervision and inspection in determining the quality and suitability of the materials and work, the performance of architects, subcontractors, and material suppliers, and all other matters relating to the construction and operation of the Project. Except as completed as part of the City’s plan review and permitting process through the Building or Public Works Departments of the City, any review or inspection undertaken by the City is solely 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 construction of the Improvements or otherwise.
5.8 Construction Plans. Prior to commencement of Project construction, Developer shall submit to City’s Building Department detailed construction plans for the development of the Project. As used herein “Construction Plans” means all construction documents upon which Developer and Developer’s contractors shall rely in constructing the Project (including the landscaping, parking, and common areas) and shall include, without limitation, the site development plan, final architectural drawings, landscaping, exterior lighting and specifications, materials specifications, final elevations, and building plans and specifications, in each case as such plans may be amended from time to time. The Construction Plans shall be based upon the scope of development set forth herein and as detailed in the approved design review documents in the Scope of Development and upon the approvals issued by the City for the Project, and shall not materially deviate therefrom without the express written consent of City. Provided that the Construction Plans are substantially consistent with the requirements of this Agreement, approval of the Construction Plans by City staff shall be deemed approval thereof by City.
5.9 Construction Pursuant to Plans. Developer shall develop the Project in accordance with the approved Construction Plans, the Conditions of Approval, and all other permits and approvals granted by the City pertaining to construction 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 entity 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 entity having jurisdiction. All design and construction work on the Project shall be performed by licensed contractors, engineers or architects, as applicable.
ITEM 9.13.
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12 5.10 Changes in Construction Plans. If Developer desires to make any material change in the approved Construction Plans that requires any permit be issued or modified by the City, Developer shall submit the proposed permit or permit modification request to City in accordance with its standard review process. Nothing in this Section is intended to or shall be deemed to modify the City’s permit review procedures.
5.11 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. Subject to the last sentence of this Section 5.11, Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from and against all Claims arising out of, or relating to, or alleged to arise from or relate to defects in the Construction Plans or defects in any 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 for the term of this Agreement. It is further agreed that City shall not waive any rights against Developer which it may have by reason of this indemnity and hold harmless provision 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 to the extent arising due to the gross negligence or willful misconduct of the Indemnitees. Developer’s indemnification obligations set forth in this Section shall not apply to any Construction Plans that are not used by or on behalf of Developer or any entity affiliated with Developer, including without limitation, an entity controlled by or under common control with Developer. In addition, if City uses any of the Construction Plans (or permits a third party to use such Construction Plans), City agrees to release Developer from liability for Claims arising in connection with such use except to the extent any such Claim arises from the gross negligence or willful misconduct of Developer or Developer’s employees, agents or representatives. Notwithstanding the foregoing, Developer's aggregate liability under this Section 5.11 shall not exceed the amount of available insurance proceeds plus the outstanding principal balance of the City Loan.
5.12 Certificate of Completion for Project. Promptly after completion of construction of the Project, issuance of a temporary or final Certificate of Occupancy by the City and the written request of Developer, the City will provide an instrument (“Certificate of Completion”) so certifying such completion, provided that at the time such Certificate of Completion is requested all applicable components of the Project have been completed. The Certificate of Completion shall be conclusive evidence that Developer has satisfied its obligations regarding the development and construction of the Project on the Property.
The Certificate of Completion shall be issued substantially in the form attached hereto as Exhibit J and incorporated herein by reference, 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 the Senior Financing or any part thereof and shall not be deemed a notice of completion under the California Civil Code, nor shall such Certificate of Completion 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 ITEM 9.13.
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13 Agreement; provided that such Certificate of Completion shall be evidence that Developer has satisfied its construction and development obligations under this Agreement.
5.13 Equal Opportunity. During the construction of the Project, there shall be no discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status in the hiring, firing, promoting or demoting of any person engaged in construction of the Project, and Developer shall direct its contractors and subcontractors to refrain from discrimination on such basis. Developer shall satisfy all Federal, State and City requirements in regard to Equal Opportunity including but not limited to noticing, program development and reporting.
Developer will notify City in a timely manner of any Equal Opportunity issues arising during the development and operation of the Project.
5.14 P
revailing Wage Requirements. If and to the fullest extent required by all applicable State and Federal laws, rules and regulations, Developer and its contractors and agents shall comply with California Labor Code Section 1720, et seq., the Davis-Bacon Act, and the regulations adopted pursuant to each of them, as the same may be applicable to the Project (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions (to the extent applicable). Developer, at its own expense, shall prepare and obtain approval from the City of a plan for monitoring, enforcing and reporting on the payment of prevailing wages to the extent applicable by the Prevailing Wage Laws. This plan if prevailing wages are applicable pursuant to Prevailing Wage Laws shall describe penalties, approved by the City, for the Contractor if it fails to implement said plan and to satisfy on a timely basis the reporting requirements included in said plan.
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 reasonable attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (specifically excluding consequential, loss of profit, special or other speculative damages, except to the extent paid to a third party) (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, Developer’s failure to comply with the payment or requirement of payment of prevailing wages (including without limitation, all claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781), 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, whether or not any insurance policies shall have been determined to be applicable to any such Claims, in each instance to the extent such prevailing wages are required by the Prevailing Wage Laws. It is further agreed that City does not and shall not waive any rights against Developer which they 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 5.14 shall survive the term ITEM 9.13.
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14 of this Agreement. Developer’s indemnification obligations set forth in this Section shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of one or more of the Indemnitees.
5.15 Compliance with Laws. In connection with development and construction of the Project, Developer shall comply, and shall use commercially reasonable efforts to cause its contractors to comply with all applicable federal, state and local laws, rules, ordinances and regulations, including without limitation, all applicable federal and state labor laws and standards, contract compliance and reporting requirements, applicable provisions of the California Public Contracts Code (if any), the City zoning and development standards, building, plumbing, mechanical and electrical codes, all other provisions of the City's Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation, applicable provisions of the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. Developer shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from and against any and all Claims arising in connection with the material breach of Developer’s obligations set forth in this Section to the extent caused by the acts or omissions of the Developer, its agents, employees, contractors, subcontractors, or anyone working on behalf of the foregoing, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City 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 set forth in this Section shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees. Developer’s defense and indemnification obligations set forth in this Section 5.15 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project.
5.16 Liens and Stop Notices. Until the expiration of the term of the Regulatory Agreement, if a claim of a lien or stop notice is given or recorded affecting the Project or the Property, Developer shall within thirty (30) days of Developer’s receipt of such recording or service: (a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to City that the claim of lien or stop notice will be paid or discharged, which shall include, but not be limited to, the Developer’s right to contest the validity of such lien or stop order in good faith. The provisions of this Section 5.16 shall apply from and after Developer’s acquisition of the Property.
5.17 Right of City to Satisfy Liens on the Property. If Developer fails to satisfy, discharge and, if applicable, contest any lien or stop notice on the Property pursuant to and within the time period set forth in Section 5.16 above, the City shall have the right, but not the obligation, to satisfy any such liens or stop notices at Developer’s expense with prior written notice to Developer. In such event Developer shall be liable for and shall promptly reimburse City upon receipt of written demand from the City for such paid lien or stop notice.
Alternatively, the City may require Developer to deposit with City, promptly following its written demand, the amount necessary to satisfy such lien or claim pending resolution thereof.
ITEM 9.13.
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15 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 construction of the Improvements for a continuous period of sixty (60) days or more (subject to any Force Majeure stoppages), and shall take all other reasonable steps to forestall the assertion of claims or liens against the Property or the Improvements. The City may (but has no obligation to), with prior written notice to Developer, 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 Improvements if it has requested the Developer to do so in accordance with the terms hereof, and Developer has failed to promptly do so.
5.18 Performance Guaranty. On the Effective Date, Developer shall cause Rancho Cordova Owner, LP to deliver to the City an executed performance guaranty in the form of Exhibit K hereto.
5.19 I nsurance Requirements. Developer shall maintain and shall cause the General Contractor to maintain all applicable insurance coverage specified in Article XII.
ARTICLE VI
CITY FINANCIAL ASSISTANCE
6.1 City Loan. City agrees to provide a loan to Developer to be used as construction and permanent financing in the total principal amount of Five Million Dollars ($5,000,000) (“City Loan”). The City Loan shall bear simple interest at the rate of three percent (3%) per annum on the outstanding principal amount thereof. The City Loan shall be made upon the terms and conditions and for the purposes set forth in this Agreement. The City Loan shall be evidenced by a Promissory Note (“City Loan Promissory Note”) executed by Developer.
The City Loan Promissory Note shall be secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the “City Loan Deed of Trust”) executed by Developer as Trustor for the benefit of City and recorded against the Property. Provided that Developer has complied with all conditions precedent to disbursement of the City Loan, the proceeds of the City Loan (“City Loan Proceeds”) shall be disbursed pursuant to this Agreement. Annual payments shall be due and payable in accordance with the terms of the City Loan Promissory Note. The entire outstanding balance of the City Loan shall be payable in full on the fifty fifth (55
th) anniversary of the date of issuance of the final certificate of occupancy for the Project.
6.2 Use and Disbursement of City Loan. The City Loan Proceeds shall be used solely to fund specific development activities associated with the Project (in an amount and for only such development activities as are approved for funding by the City and granting agencies) and to fund construction of the Project, consistent with the Financing Plan.
ARTICLE VII
USE OF THE PROPERTY
ITEM 9.13.
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16 7.1 Use for Affordable Housing. Developer covenants and agrees for itself that the Property shall be used for the development and operation of a multifamily affordable housing project in accordance with the terms and conditions of this Agreement and the Regulatory Agreement.
7.2 Regulatory Agreement. T he City and the Developer shall execute the “Regulatory Agreement,” which shall be substantially in the form attached hereto as Exhibit F, and cause it to be recorded against the Property concurrently with the Closing. The Regulatory Agreement shall provide, among other matters, for the lease of two hundred thirty four (234) income-restricted units in the Property, at an affordable rent, as defined in the Regulatory Agreement, for a period of fifty-five (55) years. Developer may request changes to the mix of affordable units if necessary to obtain competitive sources of financing for the Project. Any such changes shall be subject to the approval of the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed.
7.3 Maintenance. Developer, at its own expense, shall maintain the Property, the Improvements and related landscaping and common areas in good physical condition, in good repair, (reasonable wear and tear excepted), 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, Developer agrees not to cause any physical waste with respect to the Project that could materially and adversely affect the use thereof and shall take commercially reasonable efforts to prevent any illegal activity at the Property. 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 Improvements in good condition and repair (reasonable wear and tear excepted). Developer shall provide adequate security for the tenants of the Project as contemplated in the Construction Plans. The provisions of this Section 7.3 shall apply from and after Developer’s acquisition of the Property.
7.4 Taxes and Assessments. Developer shall pay all real and personal property taxes, assessments and charges (if any) and all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property or the Improvements 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 or the Improvements; provided, however, that Developer shall have the right to contest in good faith, any such taxes, assessments, or charges (including but not limited to taxes under the welfare exemption). 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 promptly pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest.
7.5 Obligation to Refrain from Discrimination. From and after Developer’s acquisition of the Property, Developer shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Improvements, or any portion thereof, on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income (for avoidance of doubt this provision will not affect income limitation under the Regulatory Agreement or any regulatory agreement in connection with the Senior Financing or required by ITEM 9.13.
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17 the Agency ), disability, veteran or military status, or genetic information of any person. Except as set forth in the immediately preceding sentence, Developer covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there 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 by the Developer, 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 the Improvements 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.
Additionally, City reserves the right to require other mandatory contract language necessary to s
atisfy existing Federal, State and Local requirements.
ARTICLE VIII
LIMITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT
AND CONTROL OF DEVELOPER
8.1 Change Pursuant to this Agreement. Developer and its principals have represented that they possess the necessary expertise, skill and ability to carry out the development of the Project on the Property pursuant to this Agreement. The qualifications, experience, financial capacity and expertise of Developer and its principals are 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.
8.2 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 (excluding the leasing of the Project in the ordinary course of operations and Permitted Exceptions) (collectively, “Transfer”) of the whole or any part of Developer’s interest in the Property, the Project, the Improvements, or this Agreement, without the prior written approval of City, which approval shall not be unreasonably withheld, provided however that so long as one or more of Jeremy Bronfman, Eli Bronfman or Matthew Bronfman continues to control the Developer, no consent from the City shall be required for any Transfer of the interests, direct or indirect, in the Developer. For the purposes of this section the term “control” (including the term “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Any such attempt to assign this Agreement without the City’s consent shall be null and void and shall confer no rights or privileges upon the purported assignee. In ITEM 9.13.
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18 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 that results in Jeremy Bronfman, Eli Bronfman or Matthew Bronfman no longer controlling the Developer.
8.3 Permitted Transfers. Notwithstanding any contrary provision hereof, the prohibitions set forth in this Article shall not be deemed to prevent (and the following are hereby expressly permitted without the City’s consent): (i) the granting of easements, licenses or permits to facilitate development of the Property; (ii) the dedication of any property required pursuant to this Agreement; (iii) the leasing of individual units to tenants for occupancy as their principal residence in accordance with the Regulatory Agreement; (iv) assignments creating security interests for the purpose of financing, construction or permanent financing of the Project or the Property in accordance with the Financing Plan as it may be updated with City approval, and subject to the requirements of Article VII, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest and the first Transfer thereafter; (v) any Transfer so long as there is no “significant change of ownership”, (vi) the transfers of the Limited Partner’s interest and the removal of the general partner of the Developer by the Limited Partner, in each case, in accordance with the terms of the Partnership Agreement; (vii) Transfers of direct or indirect interests in the general partners of the Developer provided that there is no “significant change of ownership” and (viii) the removal of one or more general partners of Developer by Developer’s Limited Partner in accordance with the Regulatory Agreement.
8.4 Requirements for Proposed Transfers. The City shall, in the exercise of its sole but reasonable discretion, consent to a proposed Transfer of this Agreement, the Improvements, the Property or portion thereof if all of the following requirements are met (provided however, the requirements of this Section 8.4 shall not apply to Transfers described in clauses (i) through (vii) of Section 8.3):
(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 construction 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 Improvements, 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 and 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 ITEM 9.13.
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19 Approval and all other conditions, and restrictions set forth in this Agreement and the Regulatory Agreement.
(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 reasonable discretion, refers the matter of approval to the City Council. If a proposed Transfer has not been approved by City in writing within thirty (30) days following City’s receipt of written request by Developer, it shall be deemed rejected.
8.5 Effect of Transfer without City Consent.
8.5.1 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, provided however: (i) this Agreement shall remain in effect and (ii) Developer or any other party, as transferor, shall be relieved from any obligation contained in Section 8.2 and 8.3 of this Agreement.
8.5.2 Without limiting any other remedy City may have under this Agreement, or under law or equity, it shall be an Event of Default hereunder entitling City to terminate this Agreement if without the prior written approval of the City, Developer assigns or Transfers this Agreement, the Improvements, or the Property prior to the City’s issuance of a Certificate of Completion. This Section 8.5.2 shall not apply to permitted Transfers pursuant to Sections 8.2 and 8.3.
8.6 Recovery of City Costs. In connection with any request for the City’s approval of a Transfer that requires the City’s approval hereunder, Developer shall reimburse the City up to Ten Thousand Dollars ($10,000) within thirty (30) days following City’s delivery to Developer of an invoice detailing the reasonable out-of-pocket costs of the City in connection therewith provided that any such invoices may be delivered only after the construction loan closing is consummated. Costs incurred by the City may include, but are not limited to, activity delivery and reasonable legal costs. Recovery is required, if and only if a Closing is consummated.
ARTICLE IX
SECURITY FINANCING AND RIGHTS OF MORTGAGEES
9.1 Mortgages and Deeds of Trust for Project . Mortgages and deeds of trust, or any other reasonable security instrument in connection with the Senior Financing or as required by the Agency are permitted to be placed upon the Property or the Improvements only for the purpose of securing loans for the purpose of the design and construction of the Improvements, and other expenditures reasonably necessary for the operation and development of the Property. Developer shall not enter into any financing that is not contemplated in the Financing Plan (as it may be updated with City approval), without the prior written approval of the City Manager or his or her designee (which shall not be unreasonably withheld, conditioned, ITEM 9.13.
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20 or delayed). As used herein, the terms “mortgage” and “deed of trust” shall mean any security instrument used in financing real estate acquisition, construction and land development.
Notwithstanding the foregoing, the parties hereby agree that the Senior Financing (including any amendments, extensions, refinancings or other changes thereto) shall be permitted and the current Senior Financing is contemplated in the Financing Plan, and the Developer and City shall update the Financing Plan, as applicable, in connection with any future refinancings, extensions or other modifications thereto and upon City Manager or designee approval, which shall not be unreasonably without, conditioned, or delayed.
9.1.1 Subordination of Deed of Trust, Memorandum and Regulatory Agreement. The City agrees that it will not withhold consent to reasonable requests for subordination of the Deed of Trust, Memorandum of Agreement, Regulatory Agreement and related instruments provided for the benefit of (i) any Senior Lenders identified in the Financing Plan as it may be updated with City approval (which shall not be unreasonably withheld, conditioned, or delayed), and (ii) any future Senior Lenders of loans that refinance the Senior Financing currently identified in the Financing Plan, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default. For the avoidance of doubt, the City hereby agrees to enter into customary subordination agreement as may be required by the current and future Senior Lenders, including, but not limited to, Freddie Mac’s form subordination agreements (as updated from time to time).
9.2 Holder Not Obligated to Construct. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated to complete construction of the Improvements or to guarantee such completion. Nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.
9.3 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 the Limited Partner (for so long as it is the limited partner of the Developer) and to the current and any future Senior Lenders, provided that City has been provided with the addresses for delivery of such notice.
City shall have no liability to any such Senior Lender for any failure by the City to provide such notice to such Senior Lender. Each such Limited Partner and Senior Lender shall have the right, but not the obligation, at its option, to cure or remedy any such default or breach within the cure period provided to Developer extended by an additional sixty (60) days. In the event that possession of the Property or the Improvements (or any portion thereof), or other property of Developer, is required to effectuate such cure or remedy, the Senior Lender and/or Limited Partner shall be deemed to have timely cured or remedied the default if it commences the proceedings necessary to obtain possession of the Property or Improvements within sixty (60) days after receipt of the City’s notice, diligently pursues such proceedings to completion, and after obtaining possession, diligently completes such cure or remedy. A Senior Lender and/or Limited Partner who chooses to exercise its right to cure or remedy a default or breach shall first notify City of its intent to exercise such right prior to commencing to cure or remedy such default or breach. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction of the Project (beyond the extent necessary to conserve or protect the same) without first having expressly assumed in writing Developer’s ITEM 9.13.
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21 obligations to City under this Agreement. Any Senior Lender and/or Limited Partner must agree to complete, in the manner provided in this Agreement, the Project and the Improvements and submit evidence reasonably satisfactory to City that it has the development capability on staff or retainer and the financial capacity necessary to perform such obligations. Any Senior Lender and/or Limited Partner properly completing the Project pursuant to this Section shall assume all rights and obligations of Developer under this Agreement and shall be entitled to a Certificate of Completion upon compliance with the requirements of this Agreement.
9.4 City Right to Cure Defaults. In the event of a breach or default by Developer under the Senior Financing, City may cure the default, without acceleration of such Senior Financing, following prior notice thereof to the applicable Senior Lender and Developer.
In such event, Developer shall be liable for, and City shall be entitled to reimbursement from Developer for all out of pocket costs and expenses incurred by City associated with and attributable to the curing of the default or breach and such sum, provided, however, that if the Developer or the Limited Partner is diligently pursuing a cure, the City agrees that it shall not enforce its rights pursuant to this Section 9.4.
9.5 Holder to be Notified. Developer agrees to use best efforts to ensure 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 or the Improvements, or other property of Developer, as applicable.
9.6 Modifications to Agreement. City shall not unreasonably withhold its consent to modifications of this Agreement requested by Senior Lenders or the Limited Partner.
9.7 Estoppel Certificates. Either Party shall, at any time, and from time to time, within fifteen (15) 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, as well as any other information that may reasonably be requested by the Senior Lenders and/or Limited Partner.
ARTICLE X
ENVIRONMENTAL MATTERS
10.1 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 existing or occurring in, on, under or at the Improvements, the Property or any portion thereof. Upon receipt of any notice regarding the presence, release or discharge of Hazardous Materials in violation of applicable Environmental Laws in, on or under the Improvements, 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 ITEM 9.13.
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22 presence, release or discharge of such Hazardous Materials within such deadlines as specified by applicable Environmental Laws. Developer hereby covenants and agrees that commencing upon Developer’s acquisition of its interests in the Property:
(i) 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 in violation of Environmental Laws or otherwise knowingly permit the presence or release of Hazardous Materials in violation of Environmental Laws in, on, under, at or from the Project or the Property with the exception of cleaning supplies and other materials customarily used in construction, operation or maintenance of residential property and any commercial uses developed as part of the Project, and used, stored and disposed of in compliance with Environmental Laws, and (ii) 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 Environmental Laws.
10.2 Environmental Indemnification. Subject to the terms of this Section 10.2, commencing upon Developer’s acquisition of the Property, Developer shall indemnify, defend (with counsel approved by City) and hold the Indemnitees (excluding any third party that takes possession of the Property via a foreclosure or deed in lieu thereof) 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 at, or the transportation of any such Hazardous Materials 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 Environmental Laws or the covenants set forth in Section 10.1; provided, however, Developer's indemnification obligations under this Section 10.2 shall be limited to Claims arising from (a) Hazardous Materials introduced to, released at, or migrating from the Property during Developer's period of ownership or control, and (b) Developer's failure to comply with Environmental Laws. The foregoing indemnity shall further apply to any residual contamination in, on, under or at 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 from the Property. The provisions of this Section 10.2 shall survive the issuance of a Certificate of Completion for the Project and the expiration or earlier termination of this Agreement. Developer’s indemnification obligations set forth in this Section shall not apply to (i) Claims regarding the Property arising out of or occurring prior to Developer’s acquisition of the Property, (ii) Claims arising solely from the gross negligence or willful misconduct of the City or its agents, or (iii) Claims arising after Developer’s dispossession from the Property pursuant to foreclosure proceedings or a deed in lieu thereof.
10.2.1 No Limitation. Developer hereby acknowledges and agrees that Developer’s duties, obligations and liabilities under this Agreement, including, without ITEM 9.13.
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23 limitation, under Section 8.2 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, except to the extent a phase 1 environmental site assessment has been provided to the City, in which case, the protections provided thereby to the City shall apply to the benefit of the Developer with respect to its obligations hereunder. It is further agreed that City does 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.
10.3 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. Section 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. Section 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 78000, 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. Hazardous Materials shall not include any materials routinely used in the construction or operations of multifamily housing in accordance with all applicable laws and regulations.
10.4 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 ITEM 9.13.
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24 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. Section 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. Section 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 78000, 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 each of the foregoing now exist or are hereafter amended, together with any regulations promulgated thereunder.
ARTICLE XI
DEFAULTS, REMEDIES AND TERMINATION
11.1 Event of Developer Default. The following events shall constitute an event of default on the part of Developer (“Event of Developer Default” or “Event of Default”):
(a) Subject to F orce Majeure, the availability of financing and City’s issuance of permits and approvals, Developer fails to commence or complete construction of the Project within the times set forth in Section 5.8, or subject to Force Majeure, abandons or suspends construction of the Project prior to completion for a period of ninety (90) consecutive days or more;
(b) A Transfer occurs, either voluntarily or involuntarily, in violation of Article VIII;
(c) Developer fails to maintain insurance as required pursuant to this Agreement, and Developer fails to cure such default within ten (10) business days of receipt of notice from the City;
(d) Subject to Developer’s right to contest the following charges pursuant to Section 7.4, if Developer fails to pay, prior to delinquency, taxes or assessments due on the Property or the Project or fails to pay when due or bond or insure any other charge that may result in a lien on the Property or the Project, and Developer fails to cure such default within thirty (30) days of the date of delinquency, but in all events upon the imposition of any such tax or other lien that is not bonded or insured over;
ITEM 9.13.
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25 (e) Following Developer’s acquisition of the Property, a default arises under any Senior Financing, and remains uncured beyond any applicable notice or cure period such that the Senior Lender of such Senior Financing has the right to accelerate repayment of such loan unless and until the same default is waived or cured; (f) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the City in connection with this Agreement or Developer’s request for City Funds proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the City and Developer fails to cure such default within sixty (60) days 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 sixty (60) days, an Event of Developer Default shall not arise hereunder if Developer commences to cure the default within sixty (60) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than one hundred twenty (120) days after receipt of notice of the default; (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”), Developer (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Developer or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Developer 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, and any such proceeding or action is not dismissed within sixty (60) days of initiation; (h) A court of competent jurisdiction shall have made or entered any final, unappealable 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; (i) 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 or the Improvements, 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; (j) The Developer shall have voluntarily suspended its business or Developer shall have been dissolved or terminated;
(k) An event of default arises under any City Document and remains uncured beyond any applicable cure period; or
ITEM 9.13.
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26 (l) Developer defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 11.1 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 ninety (90) 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 such ninety (90) days, an Event of Developer Default shall not arise hereunder if Developer commences to cure the default within such ninety (90) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than an additional one hundred twenty (120) days after the end of the initial ninety (90) day cure period t.
11.2 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 due diligence and in good faith to completion.
11.3 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 and to Limited Partner 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.
11.4 City’s Remedies and Rights Upon an Event of Developer Default. During the continuance of an Event of Developer Default and the expiration of any applicable cure period, subject to the rights of the Senior Lenders, City shall have all remedies available to it under this Agreement or under law or equity, including, but not limited to the following, and 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 the City Documents, exercise one or more of the following remedies:
(a) Accelerate and declare the balance of the City Loan Note, and any interest accrued thereon, immediately due and payable;
(b) Seek specific performance to enforce the terms of the City Documents;
(c) Foreclose on the Property pursuant to the City Loan Deed of Trust; and
(d) Pursue any and all other remedies available under this Agreement or under law or equity to enforce the terms of the City Documents and City’s rights thereunder.
ITEM 9.13.
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27 11.5 Developer’s Remedies Upon an Event of City Default. Upon the occurrence of an Event of City 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.
11.6 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 either 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 consequential, special, loss of profit, or other speculative damages.
11.7 Inaction Not a Waiver of Default. No failure or delay by either 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 either 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 XII
INDEMNITY AND INSURANCE
12.1 Indemnity. Developer shall indemnify, defend (with counsel approved by City) and hold Indemnitees, except third party contractors and consultants, harmless from and against any and all 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, construction, 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
12.1 shall not extend to Claims resulting solely from the gross negligence or willful misconduct of, or to any breach of a warranty or representation of this Agreement by, one or more Indemnitees, nor shall it apply to any Claims that arise from actions that first occur after the Developer is no longer in possession of the Property. The provisions of this Section 12.1 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 will 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.
12.2 Liability and Workers’ Compensation Insurance.
(a) Prior to initiating work on the Project and continuing through the issuance of the Certificate of Completion, Developer and all contractors working on behalf of Developer on the Project shall maintain a commercial general liability policy in the amount of ITEM 9.13.
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28 One Million Dollars ($1,000,000) each occurrence, Two Million Dollars ($2,000,000) annual aggregate, together with Three Million Dollars ($3,000,000) excess liability coverage, or such other policy limits as City may require in its reasonable discretion including coverage for bodily injury, property damage, products, completed operations and contractual liability coverage.
Such policy or policies shall be written on an occurrence basis and shall name the Indemnitees as additional insureds.
(b) Until issuance of the Certificate of Completion, unless waived by City, Developer and all contractors working on behalf of Developer shall maintain a comprehensive automobile liability coverage in the amount of One Million Dollars ($1,000,000), combined single limit including coverage for owned and non-owned vehicles and shall furnish or cause to be furnished to City evidence satisfactory to City that Developer and any contractor with whom Developer has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers’ compensation insurance in an amount not less than One Million Dollars ($1,000,000), including a Waiver of Subrogation. Automobile liability policies shall name the Indemnitees as additional insureds. (c) Upon commencement of construction work and continuing until issuance of a Certificate of Completion, Developer and all contractors working on behalf of Developer shall maintain a policy of builder's all-risk insurance in an amount not less than the full insurable cost of the Project on a replacement cost basis naming City as loss payee. Such insurance shall include coverage for risks of direct physical loss or damage, excluding the perils of, flood, and earth movement.
(d) Upon completion of construction, Developer shall maintain property insurance covering all risks of loss (other than earthquake and flood) for one hundred percent (100%) of the replacement value of the Project with an AOP deductible no greater than Two Hundred and Fifty Thousand Dollars ($250,000), naming City as loss payee. (e) Companies writing the insurance required hereunder shall be licensed to do business in the State of California. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A: VII. The Commercial General Liability and comprehensive automobile policies required hereunder shall name the Indemnitees as additional insureds. Builder’s Risk and property insurance shall name City as loss payees as their interests may appear.
(f) Prior to commencement of construction work, 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.
The certificates shall contain a statement of obligation on the part of the carrier to notify City of any material adverse change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of the effective date of any such material adverse change, cancellation, termination or non-renewal.
(g) I f any insurance policy or coverage required hereunder is canceled or reduced, Developer shall, within twenty-one (21) days after receipt of notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation ITEM 9.13.
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29 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.
(h) Coverage provided by Developer shall be primary insurance and shall not be contributing with any insurance, or self-insurance maintained by City, and the policies shall so provide. Unless waived by City, any Workers’ Compensation insurance policies shall contain a waiver of subrogation for the benefit of the City. Developer shall furnish the required certificates and endorsements to City prior to the commencement of construction of the Project, and shall provide City with certified copies of the required insurance policies upon request of City.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 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, except as identified in the Financing Plan. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, reasonable expenses, out-of-pocket 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.
13.2 Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, performance by either 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 the following (each a “Force Majeure”): war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, pandemics, quarantine restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Party, acts or failures to act of the City or 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 Party within thirty (30) days of the later of commencement of the cause or such Party’s acquiring actual knowledge that such cause will necessitate such extension. Neither Party 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 ITEM 9.13.
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30 to obtain financing to complete the work of Improvements (all except in the event of Force Majeure) 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.
13.3 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:
(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 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; or
(iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient’s time or on a non-business day.
City: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: City Manager
And to: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: Stefan Heisler
Email: [email protected]
Phone: 916.851.8757
And to: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: Anthony Amara
Email: [email protected]
Phone: 916.556.1531
ITEM 9.13.
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31 Developer: RANCHO CORDOVA OWNER LP
c/o Lincoln Avenue Communities
401 Wilshire Boulevard, 11th Floor
Santa Monica, California 90401
Attention: Russell Condas and Brandon Hodge
With copies to:
Lincoln Avenue Communities
680 5th Avenue, 17th Floor
New York, New York 10019
Attention: Hanna Jamar, Esq.
With copies to:
Cohen Liuzzo PLLC
88 Pine Street, Suite 1430
New York, New York 10005
Attention: Anthony Bargnesi, Esq. and Eleor Cohen, Esq.
Email: [email protected] and [email protected]
With copies to:
Cox Castle & Nicholson, LLP
50 California Street, Suite 3200
San Francisco, California 94111
Attention: Christian D. Dubois, Esq.
Facsimile: (415) 262-5143
Email: [email protected]
Limited Partner:
U.S. Bancorp Community Development Corporation
USB Project No: 36071
505 N 7th Street
Mail Code: SL-MO-T10M
St. Louis, MO 63101
Attn.: Asset Manager
Applegate & Thorne-Thomsen, P.C.
425 South Financial Place, Suite 1900
Chicago, IL 60605
Attention: Bennett P. Applegate
ITEM 9.13.
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32 13.4 Attorneys’ Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys’ fees and disbursements.
13.5 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 Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties.
13.6 Binding on Successors. Subject to the restrictions on Transfers set forth in Article VIII, 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.
13.7 Survival. All representations made by Developer hereunder and Developer’s obligations pursuant to Sections 5.14, 5.17, 5.18, 10.2, 12.1, 13.1 and 13.18 shall survive the expiration or termination of this Agreement and the issuance and recordation of a Certificate of Completion.
13.8 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 both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
13.9 Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City Manager or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City Manager determines in his or her discretion that such action or approval requires referral to the City Council for consideration.
13.10 Entire Agreement. This Agreement, including Exhibits A through J attached hereto and incorporated herein by this reference, together with other 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.
13.11 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 ITEM 9.13.
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33 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 Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered.
13.12 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.
13.13 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.
13.14 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.
13.15 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 for any amount which may become due to Developer or its successors in interest pursuant to this Agreement.
13.16 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.
13.17 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 Sacramento County, California.
13.18 General Indemnification . Developer shall indemnify, defend (with counsel approved by City) and hold harmless Indemnitees from all Claims (including without limitation, reasonable attorneys’ fees) arising in connection with any claim, action or proceeding to attack, set aside, void, or annul any approval by the City or any of its agencies, departments, commissions, agents, officers, employees or legislative body concerning the Project or this Agreement. The City will promptly notify Developer of any such claim, action or proceeding, and will cooperate fully in the defense. The City may participate in the defense of any such claim, action or proceeding, and if the City chooses to do so, Developer shall reimburse City for ITEM 9.13.
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34 reasonable attorneys’ fees and expenses incurred. Developer’s indemnification obligation hereunder shall not apply to gross negligence or willful misconduct of an Indemnitee.
13.19 Limitation of Liability. Notwithstanding anything to the contrary contained herein, (a) the Developer shall not be liable to the City to the extent any liability arose from the gross negligence or willful misconduct of the City or any Indemnitee, (b) the obligations of the Developer hereunder shall not be recourse to the members, partners, shareholders, agents or employees of the Developer unless authorized by law; and (c) the Developer shall not be liable for any event first occurring after Developer is no longer in possession of the Project.
ITEM 9.13.
ATTACHMENT 3
35 IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first written above.
CITY
THE CITY OF RANCHO CORDOVA,
a California municipal corporation
By: __________________________________
Name: ________________________________
Title: _________________________________
ATTEST:
By: _________________________________
Stacy Leitner, City Clerk
APPROVED AS TO FORM:
By: _________________________________
Adam Lindgren, City Attorney
ITEM 9.13.
ATTACHMENT 3
36 DEVELOPER
RANCHO CORDOVA OWNER LP,
a California limited partnership
By:
Rancho Cordova AGP LLC,
a Delaware limited liability company,
its administrative general partner
By: _____________________________
Name: Russell Condas
Title: Vice President
By: PacH Rancho Cordova Holdings, LLC,
a California limited liability company,
its Managing General Partner
By: Pacific Housing, Inc.,
a California nonprofit public benefit corporation,
its manager
By: _____________________________
Mark A. Wiese, President
ITEM 9.13.
ATTACHMENT 3
37 Exhibit A
LEGAL DESCRIPTION
(Attach)
Exhibit B
[INTENTIONALLY OMITTED]
Exhibit C
MEMORANDUM OF AGREEMENT
(Attach)
Exhibit D
CITY LOAN PROMISSORY NOTE
(Attach)
Exhibit E
CITY LOAN DEED OF TRUST
(Attach)
Exhibit F
AFFORDABLE HOUSING REGULATORY AGREEMENT AND DECLARATION OF
RESTRICTIVE COVENANTS
(Attach)
Exhibit G
SCOPE OF DEVELOPMENT
(Attach)
Exhibit H
SCHEDULE OF PERFORMANCE
(Attach)
Exhibit I
FINANCING PLAN
(Attach)
Exhibit J
ITEM 9.13.
ATTACHMENT 3
38 CERTIFICATE OF COMPLETION
(Attach)
Exhibit K
PERFORMANCE GUARANTY
(Attach)
ITEM 9.13.
ATTACHMENT 3
1 Recording Requested by
and When Recorded, Return to:
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN 067-0430-018-0000
(SPACE ABOVE THIS LINE RESERVED
FOR RECORDER’S USE)
MEMORANDUM OF
LOAN AGREEMENT
This MEMORANDUM OF LOAN AGREEMENT ( “Memorandum”) is entered into as of _______________________, 2026, by and between the CITY OF RANCHO CORDOVA, a California municipal corporation (the “City”), and RANCHO CORDOVA OWNER LP, a California limited partnership (“Developer”).
This Memorandum is made with reference to the following:
1. The City and Developer have entered into that certain unrecorded Loan Agreement dated as of __________________, 2026. The Loan Agreement provides for the development of a rental multifamily housing development which is affordable to lower income and very low income households on certain real property located in the City of Rancho Cordova, California and more particularly described in Exhibit “A” attached hereto, and referred to in the Loan Agreement as the “Property”. Any capitalized term used, but not defined, in this Memorandum shall have the meaning provided in the Loan Agreement.
2. The Loan Agreement provides for City and Developer to enter this Memorandum and to record the same in the Official Records of Sacramento County, California, to provide notice to all persons of the existence of the Loan Agreement, which Loan Agreement is binding on Developer and Developer’s successors-in-interest as to the Property.
3. This Memorandum is not intended as a full description of the terms and conditions of the Loan Agreement. This Memorandum shall not replace, alter, or modify any term or condition set forth in the Loan Agreement, nor shall it be used to interpret the terms and conditions of the Loan Agreement.
ITEM 9.13.
ATTACHMENT 3
2 4. This Memorandum may be executed in several counterparts, and a ll so executed shall constitute one agreement binding on both parties hereto, notwithstanding that both parties are not signatories to the original or same counterpart.
IN WITNESS WHEREOF, City and Developer have entered into this Memorandum as of the date first set forth above.
CITY
THE CITY OF RANCHO CORDOVA,
a California municipal corporation
By: __________________________________
Name: ________________________________
Title: _________________________________
ATTEST:
By: _________________________________
Stacy Leitner, City Clerk
APPROVED AS TO FORM:
By: _________________________________
Adam Lindgren, City Attorney
ITEM 9.13.
ATTACHMENT 3
3 DEVELOPER
RANCHO CORDOVA OWNER LP,
a California limited partnership
By:
Rancho Cordova AGP LLC,
a Delaware limited liability company,
its administrative general partner
By: _____________________________
Name: Russell Condas
Title: Vice President
By: PacH Rancho Cordova Holdings, LLC,
a California limited liability company,
its Managing General Partner
By: Pacific Housing, Inc.,
a California nonprofit public benefit corporation,
its manager
By:
_____________________________
Mark A. Wiese, President
ITEM 9.13.
ATTACHMENT 3
4 EXHIBIT A
LEGAL DESCRIPTION
ITEM 9.13.
ATTACHMENT 3
5 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________________)
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared Russell Condas, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ITEM 9.13.
ATTACHMENT 3
6 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________________)
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared Mark A. Wiese, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ITEM 9.13.
ATTACHMENT 3
1 PROMISSORY NOTE
(Asteria Flats)
$5,000,000 Rancho Cordova, California
June ___, 2026
FOR VALUE RECEIVED, the undersigned RANCHO CORDOVA OWNER LP, a California limited partnership ("Borrower"), hereby promises to pay to the order of the City of Rancho Cordova, a California municipal corporation ("Holder"), 2729 Prospect Park Drive, Rancho Cordova, California, 95670, the principal amount of Five Million Dollars ($5,000,000), plus interest thereon pursuant to Section 2 below (the “City Loan”).
1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower's obligation to pay Holder the principal amount of up to Five Million Dollars ($5,000,000) with interest for the funds loaned to Borrower by Holder pursuant to the Loan Agreement between Borrower and Holder dated June ___, 2026 (the "Loan Agreement"). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Loan Agreement.
2. Interest. The City Loan bears simple interest from the date of this Note at a rate of three percent (3%) per annum on the outstanding balance, until full repayment of the outstanding balance of the City Loan.
3. Term and Repayment Requirements. Principal and interest under this Note is due and payable as follows:
a. Annual Payments. No payments shall be required with respect to the period commencing as the date hereof ending on the end of the calendar year in which there occurs the fifteenth (15
th) anniversary of the date on which the Project receives its final permanent certificate of occupancy. Thereafter the Borrower shall make payments of principal and interest to the Holder in the following amounts: Twenty-Five Percent (25%) of Residual Receipts for each of the following fifteen (15) years; Thirty-Five Percent (35%) of Residual Receipts for each of the following ten (10) years; Forty-Five Percent (45%) of Residual Receipts for each of the following ten (10) years; and Fifty Percent (50%) of Residual Receipts for each of the following five (5) years. Such annual payments shall be due and payable in arrears no later than April 1 of each year with respect to the previous calendar year. The Borrower shall provide the Holder with any documentation reasonably requested by the Holder to substantiate the Borrower's determination of Residual Receipts. Repayments shall be credited first to interest, then to principal.
b. Definitions.
(i) “Residual Receipts" means the excess of annual Operating Revenues over annual Operating Expenses for the Project.
ITEM 9.13.
ATTACHMENT 3
2 (ii) "Operating Revenues" means all income derived from the Project, and 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.
(iii) "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 Final Financing Plan or otherwise approved by Holder, provided that such loans have been used to develop or improve the Project (or to refinance loans used for development or improvement of the Project); (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) and/or by Borrower’s tax credit investor limited partner; (7) deferred developer fee to the Borrower or its affiliate for development services for the Project in such amount as set forth in the Financing Plan as such amount may be updated by the final cost certification upon completion of construction; (8) credit adjuster payments, limited partner loans, and developer loans all as set forth in the Partnership Agreement; (9) advertising, legal, accounting, security and other general office administration expenses; (10) payroll, benefits and payroll taxes, (11) utility costs; and (12) payments for partnership management fee, asset management fees, and other fees payable to a partner of the Partnership pursuant to the Partnership Agreement in such amounts as are set forth in the Financing Plan, including any annual inflationary increases included in the Financing Plan.
c. Payment in Full. Borrower shall pay all outstanding principal and accrued interest on the City Loan, in full, on the earliest to occur of (i) an Event of Developer Default that continues beyond all applicable notice and cure periods for which the Holder exercises its right to cause the City Loan indebtedness to become immediately due and payable, and (ii) the date that is the fifty-fifth (55
th) anniversary of the date that a final certificate of occupancy is issued by the City of Rancho Cordova to certify that the construction of the Project is complete and the Project may be legally occupied (the "Completion Date"); provided, however, if a record of the Completion Date cannot be located or established, the City Loan is due and payable on the fifty-seventh (57
th) anniversary of the date of this Note.
4. Disbursements. All proceeds of the City Loan shall be disbursed to or on behalf of the Borrower as of the closing date.
5. Prepayment. Borrower may prepay the City Loan in full or in part at any time without penalty or fee.
6. Assumption. This Note shall not be assumable by the successors and assigns of Borrower without the prior written consent of Holder (which shall not be unreasonably withheld, conditioned, or delayed) unless the assignment complies with Article VIII of the Loan Agreement. Holder may assign its interest in the Note to a public agency or nonprofit entity in Holder’s upon City’s written approval .
ITEM 9.13.
ATTACHMENT 3
3 7. Security. This Note shall be secured by the City Loan Deed of Trust on the Property, wherein Borrower is the trustor and Holder is the beneficiary. The terms of the City Loan Deed of Trust are hereby incorporated into this Note and made a part hereof.
8. Terms of Payment.
(a) All payments due under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts.
(b) All payments on this Note shall be paid to Holder at the address set forth in the first paragraph of this Note, or to such other place as Holder of this Note may from time to time designate.
(c) All payments on this Note shall be without expense to Holder, and Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of Holder, incurred in connection with the payment of this Note and the release of any security hereof.
(d) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest which would exceed the amount that Holder may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate shall automatically be deducted from the principal balance owing on this Note, so that in no event shall Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate.
(e) Notwithstanding anything to the contrary in the City Loan Documents, the Borrower shall be permitted to refinance any Senior Financing (as defined in the Loan Agreement)(each a “Refinanced Loan”), and the Holder agrees that the City Loan Deed of Trust and other documents evidencing and/or securing the City Loan shall remain subordinate to any such Refinanced Loan.
(f) Notwithstanding anything to the contrary in the City Loan Documents, The indebtedness evidenced by this Note and City Loan Deed of Trust is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by (a) that certain Promissory Note (USB dated as of ________________, 2026 (the “Senior Note A”) in the original principal amount of [$32,000,000] issued by Borrower, and payable to the U.S. Bank National Association (“US Bank”); and (b) that certain Promissory Note (Deutsche Bank) dated as of ______________, 2026 (the “Senior Note B” and together with Senior Note A, collectively, the “Senior Note”) in the original principal amount of [$56,000,000] issued Borrower, and payable the Deutsche Bank AG, New York Branch (“Deutsche Bank”, and together with US Bank, “Senior Lender”), or order, to the extent and in the manner provided in that certain Subordination Agreement (City) dated a of _________________, 2026, (the “Subordination Agreement”) by and among the payee of this Note, Borrower, and U.S. Bank ITEM 9.13.
ATTACHMENT 3
4 National Association, in its capacity as “Administrative Agent” for Senior Lender (in such capacity, “Administrative Agent”) and recorded in the Official Records of Sacramento County, California (“Official Records”). The Senior Note is secured by that certain Construction Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of ____________, 2026 (the “Senior Deed of Trust”), executed by Borrower for the benefit of Administrative Agent, and recorded in the Official Records. The City Deed of Trust (the “Subordinate Deed of Trust”) securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the deed of trusts securing the Senior Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Subordinate Deed of Trust securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement.
Each subsequent holder of this Note shall be deemed, by virtue of such holder’s acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the “Subordinate Lender” named under the Subordination Agreement.
9. Default.
(a) Any of the following shall constitute an event of default under this Note:
(i) Any failure to pay, in full, any payment required under this Note when due following written notice by the Holder of such failure and ten (10) business days opportunity to cure;
(ii) Any failure in the performance by Borrower of any
material term, condition, provision or covenant set forth in this Note and Borrower’s failure to cure such default within thirty (30) days of receiving written notice thereof from the Holder; and
(iii) The occurrence of any Borrower event of default under the Loan Agreement, the City Loan Deed of Trust, the Regulatory Agreement, or other instrument securing the obligations of Borrower under this Note or under any other promissory notes hereafter issued by Borrower to Holder pursuant to the Loan Agreement or the Deed of Trust (the "City Loan Documents"), subject to notice and cure periods, if any, set forth therein.
(b) Upon the occurrence of one or more of the foregoing events of default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note and the Deed of Trust shall at the option of Holder become immediately due and payable upon written notice by Holder to Borrower without further demand.
(c) Holder's failure to exercise the remedy set forth in Subsection 9(b) above or any other remedy provided by law upon the occurrence of one or more of the foregoing events of default shall not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other default. The acceptance by Holder hereof of ITEM 9.13.
ATTACHMENT 3
5 any payment which is less than the total of all amounts due and payable at the time of such payment shall not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the express consent of Holder, except as and to the extent otherwise provided by law.
(d) Notwithstanding anything herein to the contrary, Holder hereby agrees that any cure of any default made or tendered by Limited Partner (as defined in the Loan Agreement) shall be deemed a cure by Borrower and shall be accepted or rejected on the same basis as if made or tendered by Borrower. Copies of all notices which are sent hereunder to Borrower shall be sent to the Limited Partner at the address set forth in the Loan Agreement and to the Senior Lenders (as such addresses may be updated from time to time):
10. Non-Recourse. The Borrower shall not have any direct or indirect personal liability for payment of the principal of, or interest on, the City Loan or the performance of the covenants of the Borrower under the City Loan Deed of Trust and Regulatory Agreement.
The sole recourse of the Holder with respect to the principal of, or interest on, this Note and defaults by the Borrower in the performance of its covenants under the City Deed of Trust and Regulatory Agreement shall be to the property described in the City Deed of Trust.
Notwithstanding the foregoing, however, the foregoing shall not in any way affect any rights Holder may have (as a secured party or otherwise) hereunder or under this Note and City Loan Deed of Trust to recover directly from Borrower any amounts, or any funds, damages or costs (including without limitation reasonable attorneys’ fees and costs) incurred by Holder as a result of fraud, intentional misrepresentation or bad faith, waste, and any costs and expenses incurred by Holder in connection therewith (including without limitation reasonable attorneys’ fees and costs).
11. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that Holder may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note shall not operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
ITEM 9.13.
ATTACHMENT 3
6 12. Miscellaneous Provisions.
(a) All notices to Holder, Limited Partner, or Borrower shall be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower may therein designate.
(b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement.
(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
(d) This Note shall be governed by and construed in accordance with the laws of the State of California.
(e) The times for the performance of any obligations hereunder shall be strictly construed, time being of the essence, subject to Force Majeure.
(f) This document, together with the City Loan Documents, contains the entire agreement between the parties as to the City Loan. It may not be modified except upon written consent of the parties.
(g) Section 13.19 of the Loan Agreement is hereby incorporated with the same force and effect as if set forth herein in its entirety.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
ITEM 9.13.
ATTACHMENT 3
7 IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and year first above written.
RANCHO CORDOVA OWNER LP,
a California limited partnership
By: Rancho Cordova AGP LLC,
a Delaware limited liability company,
its administrative general partner
By: _____________________________
Name: Russell Condas
Title: Vice President
By: PacH Rancho Cordova Holdings, LLC,
a California limited liability company,
its Managing General Partner
By: Pacific Housing, Inc.,
a California nonprofit public benefit corporation,
its manager
By:
_____________________________
Mark A. Wiese, President
ITEM 9.13.
ATTACHMENT 3
1 RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: City Manager
No fee for recording pursuant to
Government Code Section 27383 and 27388.1
A.P.N. 067-0430-018-0000
DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND
FIXTURE FILING
(Asteria Flats)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING ("Deed of Trust") is made as of June __, 2026, by and among RANCHO CORDOVA OWNER LP, a California limited partnership ("Trustor"), Old Republic National Title Insurance Company, a California corporation ("Trustee"), and the City of Rancho Cordova, a California municipal corporation ("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located in the County of Sacramento, State of California, that is described in the attached Exhibit A, incorporated herein by this reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including (without limiting the generality of the foregoing) all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements of every kind and description now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property;
TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, ITEM 9.13.
ATTACHMENT 3
2 adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages to the extent Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein;
TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and
TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, work in process and other personal property to be incorporated into the Property; all goods, materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other personal property now or hereafter appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in connection with the Property; all rents, issues and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance and condemnation awards and proceeds, trade names, trademarks and service marks arising from or related to the Property and any business conducted thereon by Trustor; all replacements, additions, accessions and proceeds; and all books, records and files relating to any of the foregoing.
All of the foregoing, together with the Property, is herein referred to as the "Security." To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever.
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS (the "Secured Obligations"):
(a) Payment to Beneficiary of all sums at any time owing under or in connection with the Note (defined in Section 1.3 below) until paid or cancelled and any other amounts owing under the Loan Documents (defined in Section 1.2 below). Said principal and other payments shall be due and payable as provided in the Note or other Loan Documents, as applicable. The ITEM 9.13.
ATTACHMENT 3
3 Note and all its terms are incorporated herein by reference, and this conveyance shall secure any and all extensions thereof, however evidenced;
(b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to advance said sums and the expiration of any applicable cure period, with interest thereon as provided herein;
(c) Performance of every obligation, covenant or agreement of Trustor contained herein and in the Loan Documents; and
(d) All modifications, extensions and renewals of any of the Secured Obligations (including without limitation, (i) modifications, extensions or renewals at a different rate of interest, or (ii) deferrals or accelerations of the required principal payment dates or interest payment dates or both, in whole or in part), however evidenced, whether or not any such modification, extension or renewal is evidenced by a new or additional promissory note or notes.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES:
ARTICLE 1
DEFINITIONS
Terms used but otherwise not defined herein shall have the meaning ascribed in the Loan Agreement (defined below). In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall have the following meanings in this Deed of Trust:
Section 1.1 The term "Loan Agreement" means that certain Loan Agreement between Trustor and Beneficiary, dated June ___, 2026, providing for the Beneficiary to loan to Trustor Five Million Dollars ($5,000,000).
Section 1.2 The term "Loan Documents" means this Deed of Trust, the Note, the Loan Agreement, the Regulatory Agreement, and any other debt, loan or security instruments between Trustor and the Beneficiary relating to the Property.
Section 1.3 The term "Note" means the Promissory Note in the principal amount of Five Million Dollars ($5,000,000), of even date herewith, executed by Trustor in favor of the Beneficiary, as it may be amended or restated, the payment of which is secured by this Deed of Trust. (A copy of the Note is on file with the Beneficiary and terms and provisions of the Note are incorporated herein by reference.)
Section 1.4 The term "Principal" means the amount required to be paid under the Note.
ITEM 9.13.
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4 Section 1.5 The term "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith by and between the Beneficiary and the Trustor.
ARTICLE 2
MAINTENANCE AND MODIFICATION OF THE PROPERTY
AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment and performance of the Secured Obligations, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition, reasonable wear and tear excepted. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Security.
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary as its agent (said agency being coupled with an interest) with the authority, but without any obligation, to file for record any notices of completion or cessation of labor or any other notice that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the Loan Documents; provided, however, that Beneficiary shall exercise its rights as agent of Trustor only in the event that Trustor shall fail to take, or shall fail to diligently continue to take, those actions as hereinbefore provided.
During the continuance of an Event of Default under this Deed of Trust, upon demand by Beneficiary, Trustor shall make or cause to be made such demands or claims as Beneficiary shall specify upon laborers, materialmen, subcontractors or other persons who have furnished or claim to have furnished labor, services or materials in connection with the Security. Nothing herein contained shall require Trustor to pay any claims for labor, materials or services which Trustor in good faith disputes and is diligently contesting provided that Trustor shall, within thirty (30) days after the filing of any claim of lien, record in the Office of the Recorder of Sacramento County, a surety bond in an amount 1 and 1/2 times the amount of such claim item to protect against a claim of lien.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in the nature of easements with respect to any property or rights included in the Security except those required or desirable for installation and maintenance of public utilities including, without ITEM 9.13.
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5 limitation, water, gas, electricity, sewer, telephone and telegraph, or those otherwise required by law, and as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of the Property including those now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or any part of the Property, regardless of to whom the rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that prior to written notice given by Beneficiary to Trustor of an Event of Default by Trustor, Trustor shall collect and receive all rents and revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents and revenues so collected to the Secured Obligations with the balance, so long as no Event of Default is continuing, to the account of Trustor, it being intended by Trustor and Beneficiary that this assignment of rents constitutes an absolute assignment and not an assignment for additional security only. Upon delivery of written notice by Beneficiary to Trustor of an Event of Default by Trustor, and without the necessity of Beneficiary entering upon and taking and maintaining full control of the Property in person, by agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to possession of all rents and revenues of the Property as specified in this Section 2.3 as the same becomes due and payable, including but not limited to rents then due and unpaid, and all such rents shall immediately upon delivery of such notice be held by Trustor as trustee for the benefit of Beneficiary only; provided, however, that the written notice by Beneficiary to Trustor of the Event of Default by Trustor shall contain a statement that Beneficiary exercises its rights to such rents. Trustor agrees that commencing upon delivery of such written notice of Trustor's Event of Default by Beneficiary to Trustor, each tenant of the Property shall make such rents payable to and pay such rents to Beneficiary or Beneficiary's agents on Beneficiary's written demand to each tenant therefor, delivered to each tenant personally, by mail or by delivering such demand to each rental unit, without any liability on the part of said tenant to inquire further as to the existence of an Event of Default by Trustor.
Trustor hereby covenants that Trustor has not executed any prior assignment of said rents (except in connection with the Loans described in the Financing Plan, that Trustor has not performed, and will not perform, any acts or has not executed and will not execute, any instrument which would prevent Beneficiary from exercising its rights under this Section 2.3, and that at the time of execution of this Deed of Trust, there has been no anticipation or prepayment of any of the rents of the Property for more than two (2) months prior to the due dates of such rents. Trustor covenants that Trustor will not hereafter collect or accept payment of any rents of the Property more than two (2) months prior to the due dates of such rents.
Trustor further covenant that Trustor will execute and deliver to Beneficiary such further assignments of rents and revenues of the Property as Beneficiary may from time to time request.
Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents beyond any applicable notice and cure periods, Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy of Beneficiary's security, enter upon and ITEM 9.13.
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6 take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof including, but not limited to, the execution, cancellation or modification of leases, the collection of all rents and revenues of the Property, the making of repairs to the Property and the execution or termination of contracts providing for the management or maintenance of the Property, all on such terms as are deemed best to protect the security of this Deed of Trust. In the event Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to the appointment of such receiver. Beneficiary or the receiver shall be entitled to receive a reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents shall be applied first to the costs, if any, of taking control of and managing the Property and collecting the rents, including, but not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this deed of Trust. Beneficiary or the receiver shall have access to the books and records used in the operation and maintenance of the Property and shall be liable to account only for those rents actually received. Beneficiary shall not be liable to Trustor, anyone claiming under or through Trustor or anyone having an interest in the Property by reason of anything done or left undone by Beneficiary under this Section 2.3 except resulting from the gross negligence or willful misconduct of Beneficiary or its agents.
If the rents of the Property are not sufficient to meet the costs, if any, of taking control of and managing the Property and collecting the rents, any funds expended by Beneficiary for such purposes shall become part of the Secured Obligations pursuant to Section 3.3 hereof. Unless Beneficiary and Trustor agree in writing to other terms of payment, such amounts shall be payable upon notice from Beneficiary to Trustor requesting payment thereof and shall bear interest from the date of disbursement at the rate stated in Section 3.3.
Any entering upon and taking and maintaining of control of the Property by Beneficiary or the receiver and any application of rents as provided herein shall not cure or waive any default hereunder or invalidate any other right or remedy of Beneficiary under applicable law or provided herein. This assignment of rents of the Property shall terminate at such time as this Deed of Trust ceases to secure the Secured Obligations.
ARTICLE 3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
Trustor shall pay, or cause to be paid, prior to the date of delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor ITEM 9.13.
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7 shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3.1. With respect to taxes, special assessments or other similar governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of the Security; provided, however, if such taxes, assessments or charges may be paid in installments, Trustor may pay in such installments. Except as provided in clause (b) of the first sentence of this paragraph, the provisions of this Section 3.1 shall not be construed to require that Trustor maintain a reserve account, escrow account, impound account or other similar account for the payment of future taxes, assessments, charges and levies.
In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within fifteen (15) days after receipt of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted by law, shall become part of the Secured Obligations secured hereby, and Trustor agrees to pay all such amounts.
Section 3.2 Provisions Respecting Insurance.
Trustor agrees to provide insurance conforming in all respects to that required under the Loan Documents during the course of construction and following completion, and at all times until all amounts secured by this Deed of Trust have been paid and all Secured Obligations secured hereunder fulfilled, and this Deed of Trust reconveyed.
All such insurance policies and coverages shall be maintained at Trustor's sole cost and expense. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time prior to Trustor's satisfaction of the Secured Obligations.
Section 3.3 Advances.
In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Security in accordance with the Loan Documents, the Beneficiary, after at least fifteen (15) days prior notice to Trustor, may (but shall be under no obligation to) take out the required policies of insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and all amounts so advanced therefor by the Beneficiary shall become part of the Secured Obligations (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
ITEM 9.13.
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8 ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages.
All judgments, awards of damages, settlements and compensation made in connection with or in lieu of (1) taking of all or any part of or any interest in the Property by or under assertion of the power of eminent domain, (2) any damage to or destruction of the Property or in any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the Property (collectively, the "Funds") shall be used to repair or restore the Property, but if the property cannot be repaired or restored such Funds are hereby assigned to and shall be paid to the Beneficiary by a check made payable to the Beneficiary. The Beneficiary is authorized and empowered (but not required) to collect and receive any Funds and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary shall determine at its sole option. The Beneficiary shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. All or any part of the amounts so collected and recovered by the Beneficiary may be released to Trustor upon such conditions as the Beneficiary may impose for its disposition. Application of all or any part of the Funds collected and received by the Beneficiary or the release thereof shall not cure or waive any default under this Deed of Trust. The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior mortgage lender. Notwithstanding the foregoing, the Beneficiary shall release the Funds to Trustor to be used to reconstruct the improvements on the Property provided that Beneficiary reasonably determines that Trustor (taking into account the Funds and any other amounts made available to Trustor) has sufficient funds to rebuild the improvements in substantially the form they existed prior to the casualty or condemnation.
ARTICLE 5
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affecting Property.
The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Loan Documents.
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default (as defined in Section 7.1) hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the Secured ITEM 9.13.
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9 Obligations, and shall bear interest from the date such expenses are incurred at the lesser of ten percent (10%) per annum or the maximum rate permitted by law.
Section 5.3 Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Note in the amounts and by the times set out therein.
Section 5.4 Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall constitute a fixtures filing under the California Commercial Code. As to any personal property not deemed or permitted to be fixtures, this Deed of Trust shall constitute a security agreement under the California Commercial Code.
Section 5.5 Financing Statement.
The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the appropriate statutes, and any other documents or instruments as are required or requested to convey to the Beneficiary a valid perfected security interest in the Security. The Trustor agrees to perform all acts which the Beneficiary may reasonably request so as to enable the Beneficiary to maintain such valid perfected security interest in the Security in order to secure the payment of the Note in accordance with its terms. The Beneficiary is authorized to file a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order to protect the security interest established pursuant to this instrument.
Section 5.6 Operation of the Security.
The Trustor shall operate the Security (and, in case of a transfer of a portion of the Security subject to this Deed of Trust, the transferee shall operate such portion of the Security) in full compliance with the Loan Documents.
Section 5.7 Inspection of the Security.
At any and all reasonable times upon forty-eight (48) hours' notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Security.
Section 5.8 Nondiscrimination.
The Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the Trustor itself or any person claiming under or ITEM 9.13.
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10 through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants shall run with the land.
ARTICLE 6
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions ("Environmental Laws") on, under or about the Property including, but not limited to, soil and ground water conditions.
Trustor shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances," hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except (x) as expressly permitted under Environmental Laws; (y) such of the foregoing as may be customarily used in construction or operation of a multi-family residential development; or (z) such of the foregoing as was present on the Property prior to Trustor’s acquisition of the Property.
Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); and (ii) all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as "Hazardous Materials Claims").
Beneficiary shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims.
Beneficiary shall have its reasonable out-of-pocket attorneys' fees in connection therewith paid by Trustor, only if Trustor has failed, based on reasonable evidence produced by Beneficiary, to adequately defend such Hazardous Materials Claims. Trustor shall indemnify, defend, and hold harmless Beneficiary and its councilmembers, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property arising or occurring upon or after the Trustor’s acquisition of the Property, including without limitation:
(a) all actual, non-consequential damages; (b) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (c) all reasonable costs and expenses incurred by Beneficiary in connection with clauses (a) and (b), including but not limited to reasonable attorneys' fees and consultant's fees. This indemnification applies whether or not any government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses ITEM 9.13.
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11 attributable to diminution in the value of the Property; (2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing of any rental space on the Property; and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties).
Notwithstanding the foregoing, Trustor’s indemnity obligations under this paragraph shall not apply with respect to any loss, damage, cost, expense, liability or suit to the extent the same either (i) results from the gross negligence or willful misconduct of the Beneficiary or its agents, or (ii) occurs after the dispossession of the Trustor from the Property pursuant to foreclosure proceedings or a deed in lieu thereof.
Without Beneficiary's prior written consent, which shall not be unreasonably delayed or withheld, Trustor shall not take any environmental measure or other remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in Beneficiary's reasonable judgement, impair the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain Beneficiary's consent before taking such action, provided that in such event Trustor shall notify Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment of Beneficiary's security hereunder; or (iv) the action has been agreed to by Beneficiary.
The Trustor hereby acknowledges and agrees that (i) this Article is intended as the Beneficiary's written request for information (and the Trustor's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the property is intended by the Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736.
In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and remedies of an unsecured creditor, including reduction of its claim against the Trustor to ITEM 9.13.
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12 judgment, and (b) any other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor shall be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Trustor knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the Beneficiary in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the default rate specified in the Loan Agreement until paid, shall be added to the indebtedness secured by this Deed of Trust and shall be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action.
ARTICLE 7 EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default.
The following shall constitute events of default ("Events of Default") following the expiration of any applicable notice and cure periods: (1) failure to make any payment to be paid by Trustor under the Loan Documents; (2) failure to observe or perform any of Trustor's other covenants, agreements or obligations under the Loan Documents, including, without limitation, the provisions concerning discrimination; (3) failure to make any payment or observe or perform any of Trustor's other covenants, agreements, or obligations under any other debt instrument or regulatory agreement secured by the Property, which default shall not be cured within the times and in the manner provided therein; or (4) a default is declared under the Approved Financing by the lender of such Approved Financing, subject to any notice and cure rights. Notwithstanding anything to the contrary contained herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's Limited Partner shall be deemed a cure by the Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. Copies of all notices which are sent to Trustor hereunder shall be sent to Limited Partner at the address set forth in the Loan Agreement.
Section 7.2 Acceleration of Maturity.
If an Event of Default shall have occurred and be continuing, then at the option of the Beneficiary, the amount of any payment related to the Event of Default and all unpaid Secured Obligations shall immediately become due and payable, upon written notice by the Beneficiary to the Trustor (or automatically where so specified in the Loan Documents), and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right.
Section 7.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default shall have occurred and be continuing, the Beneficiary may:
ITEM 9.13.
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13 (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any Event of Default or Notice of Sale (as defined below) hereunder or invalidate any act done in response to such Event of Default or pursuant to such Notice of Sale, and, notwithstanding the continuance in possession of the Security, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise the power of sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the Security to be sold ("Notice of Sale"), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of Sacramento County; or
(d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing the Secured Obligations.
Section 7.4 Foreclosure By Power of Sale.
Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall deliver to the Trustee the Notice of Sale and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the Secured Obligations are immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require.
(a) Upon receipt of the Notice of Sale from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Sale as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Sale having been given as required by law, sell the Security, at the time and place of sale fixed by it in the Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise by the Trustor according to California Civil Code Section 2924, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale.
ITEM 9.13.
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14 (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other Secured Obligations owed to Beneficiary under the Loan Documents; (iii) all other sums then secured hereby; and (iv) the remainder, if any, to Trustor.
(c) Trustee may 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, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new Notice of Sale.
Section 7.5 Receiver.
If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under the Security, and without regard to the then value of the Security or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Security, unless such receivership is sooner terminated.
Section 7.6 Remedies Cumulative.
No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity.
Section 7.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary.
Beneficiary's express or implied consent to breach, or waiver of, any obligation of the Trustor hereunder shall not be deemed or construed to be a consent to any subsequent breach, or further waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, power or remedies consequent on any Event of Default by the Trustor.
ITEM 9.13.
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15 (b) If the Beneficiary (i) grants forbearance or an extension of time for the payment or performance of any Secured Obligation, (ii) takes other or additional security or the payment of any sums secured hereby, (iii) waives or does not exercise any right granted in the Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby.
Section 7.8 Suits to Protect the Security.
The Beneficiary shall have power to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the Beneficiary.
Section 7.9 Trustee May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date.
Section 7.10 Waiver.
The Trustor waives presentment, demand for payment, notice of dishonor, notice of protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in taking any action to collect any Secured Obligations or in proceedings against the Security, in connection with the delivery, acceptance, performance, default, endorsement or guaranty of this Deed of Trust.
ITEM 9.13.
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16 ARTICLE 8
MISCELLANEOUS
Section 8.1 Amendments.
This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all Secured Obligations have been paid or forgiven, and all obligations under the Loan Documents have been performed in full, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto.
Section 8.3 Notices.
Formal notices, demands, and communications between the parties shall be sufficiently given if and shall not be deemed given unless (a) dispatched by registered or certified mail, postage prepaid, return receipt requested, (b) delivered by express delivery service, return receipt requested, (c) delivered personally, or (d) sent by electronic mail, provided that any notice sent by electronic mail must be followed by notice delivered under either (a), (b), or (c) within 2 business days. All such notices shall be delivered to the principal office of the parties as follows:
Trustor: Rancho Cordova Owner L.P.
c/o Lincoln Avenue Communities
401 Wilshire Boulevard, 11
th Floor
Santa Monica, California 90401
Attention: Russell Condas
With copies to:
Lincoln Avenue Communities
680 5th Avenue, 17th Floor
New York, New York 10019
Attention: Hanna Jamar, Esq.
With copies to:
Cox Castle & Nicholson, LLP
50 California Street, Suite 3200
San Francisco, California 94111
Attention: Christian D. Dubois, Esq.
Facsimile: (415) 262-5143
Email: [email protected]
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17 and:
Cohen Liuzzo PLLC
88 Pine Street, Suite 1430
New York, New York 10005
Attention: Eleor Cohen, Esq.
Email: [email protected]
Limited Partner:
U.S. Bancorp Community Development Corporation
USB Project No: 36071
505 N 7th Street
Mail Code: SL-MO-T10M
St. Louis, MO 63101
Attn.: Asset Manager
Applegate & Thorne-Thomsen, P.C.
425 South Financial Place, Suite 1900
Chicago, IL 60605
Attention: Bennett P. Applegate
City: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: City Manager
And to: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: Stefan Heisler
Email: [email protected]
Phone: 916.851.8757
And to: City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, CA 95670
Attention: Anthony Amara
Email: [email protected]
Phone: 916.556.1531
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this ITEM 9.13.
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18 Section. Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable) except that any electronic mail received after 5:00 p.m. shall be deemed to have been received on the next business day.
Section 8.4 Successors and Joint Trustors.
Where an obligation created herein is binding upon Trustor, the obligation shall also apply to and bind any transferee or successors in interest. Where the terms of the Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than one entity or person, all obligations of Trustor shall be deemed to be a joint and several obligation of each and every entity and person comprising Trustor.
Section 8.5 Captions.
The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust.
Section 8.6 Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust.
Section 8.7 Governing Law.
This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California.
Section 8.8 Gender and Number.
In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires.
Section 8.9 Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and any reference to a deed of trust shall also refer to a mortgage.
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19 Section 8.10 Actions.
Trustor agrees to appear in and defend any action or proceeding purporting to affect the Security.
Section 8.11 Substitution of Trustee.
Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the Property is situated, shall be conclusive proof of proper appointment of the successor trustee.
Section 8.12 Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law.
Section 8.13 Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
Section 8.14 Tax Credit Provisions.
Notwithstanding anything to the contrary contained herein or in any documents secured by this Deed of Trust or contained in any subordination agreement, the Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the Security encumbered by this Deed of Trust, the following rule contained in Section 42(h)(6)(E)(ii) of the Internal Revenue Code of 1986 (26 USC 42 (h)(6)(E)(ii)), as amended, shall apply:
For a period of three (3) years from the date of Foreclosure, with respect to any unit that had been regulated by a Regulatory Agreement with the California Tax Credit Allocation Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be increased except as otherwise permitted under Section 42 of the Code.
Notwithstanding anything to the contrary in the Loan Documents, the Trustor shall be permitted to refinance any indebtedness secured by the Property under any superior deed of trust in an amount equal to the then outstanding principal balance of such superior loan plus the costs of such refinancing (the “Refinanced Loan”), and the Trustee and Beneficiary agree that this Deed ITEM 9.13.
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20 of Trust and other documents evidencing and/or securing the City Loan shall remain subordinate to any such Refinanced Loan.
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21 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written.
TRUSTOR:
RANCHO CORDOVA OWNER LP,
a California limited partnership
By: Rancho Cordova AGP LLC,
a Delaware limited liability company,
its administrative general partner
By: _____________________________
Name: Russell Condas
Title: Vice President
By: PacH Rancho Cordova Holdings, LLC,
a California limited liability company,
its Managing General Partner
By: Pacific Housing, Inc.,
a California nonprofit public benefit corporation,
its manager
By:
_____________________________
Mark A. Wiese, President
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared Russell Condas, 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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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared Mark A. Wiese, 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
EXHIBIT A
LEGAL DESCRIPTION
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rancho Cordova
2729 Prospect Park Drive
Rancho Cordova, California 95670
Attention: City Clerk
________________________________________________________________________ APN 067-0430-018-0000
No fee for recording pursuant to
Government code Section 27383
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Asteria Flats)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made and entered into as of June __, 2026, by and between the City of Rancho Cordova, a California municipal corporation (the "City"), and Rancho Cordova Owner LP, a California limited partnership (the "Owner").
RECITALS
A. The City and Owner have entered into that certain unrecorded Loan Agreement (the “Loan Agreement”), dated as of June __, 2026, which is incorporated by this reference as if fully set forth herein.
B. Pursuant to the Loan Agreement , City has made a loan to Owner for the construction of an affordable housing development (the "Project") on a site located at the southeast corner of Sunrise Boulevard and Chrysanthy Boulevard, APN 067-0430-018-0000, Rancho Cordova, California, which is comprised of an approximately 11.13 acre parcel which Owner has acquired (the “Property”). The Property is more fully described in Exhibit A attached hereto and incorporated by reference.
C. The Project upon the Completion Date will consist of two hundred thirty six (236) apartment units, together with all associated landscaping, parking and associated improvements, including a clubhouse, fitness center, leasing office, and swimming pool. Sixty (60) of the apartment units will be 1-bedroom units, sixty (60) of the apartment units will be two-bedroom units, fifty-eight (58) of the apartment units will be three-bedroom units, and fifty-eight (58) will be 4-bedroom units.
D. All of the apartment units in the Project, except for two manager’s units , will be restricted for occupancy by eligible households with incomes at or below 70% area median ITEM 9.13.
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income (AMI), 60% AMI, 50% of AMI and 30% of AMI for a period of fifty-five (55) years from issuance of a final certificate of occupancy for the Project.
E. The Loan Agreement requires the Owner to place specified restrictions upon the use and transfer of the Property in order to ensure continued Project affordability.
F. The Parties intend that the covenants set forth in this Agreement shall run with the land and be binding upon Owner and Owner's successors and assigns as further provided herein.
THEREFORE, City and Owner hereby agree as follows.
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1. (a) "60% Low Income Household" shall mean a household with a Household Income that does not exceed sixty percent (60%) of Area Median Income applicable to Sacramento County, adjusted for family size, as published and periodically updated by HUD . (b) "60% Low Income Unit" shall mean the Units which pursuant to Section
2.1(c) below, are required to be occupied by 60% Low Income Households. (c) “70% Low Income Household” shall mean a household with a Household Income which does not exceed seventy percent (70%) of the Area Median Income applicable to Sacramento County, adjusted for family size, as published and periodically updated by HUD as of the date of initial occupancy.
(d) “70% Low Income Unit" shall mean each of the Units which pursuant to Section 2.1(d) below, are required to be occupied by 70% Low Income Households. (e) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants.
(f) "Affiliate" means any person or entity directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with Owner which, if Owner is a partnership or limited liability company, shall include each of the constituent members or partners, respectively thereof. The term "control" as used in the immediately preceding sentence, means, with respect to a person that is a corporation, the right to the exercise, directly or indirectly, of more than fifty percent (50%) of the voting rights attributable to the shares of the controlled corporation, and, with respect to a person that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled person.
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(g) "Area Median Income" shall mean the median gross yearly income adjusted for Assumed Household Size as specified herein, in Sacramento County, California, as determined by HUD. In the event that such income determinations are no longer published or are not updated for a period of at least eighteen (18) months, City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD.
(h) "Assumed Household Size" means the household size "adjusted for family size appropriate to the unit" in accordance with the California Tax Credit Allocation Committee rules and regulations.
(i) "City" shall mean the City of Rancho Cordova, a California municipal corporation.
(j) "City Loan" shall mean all funds loaned to Owner pursuant to the Loan Agreement.
(k) "Completion Date" means the date a final certificate of occupancy, or equivalent document is issued by the City to certify that the construction of the Project is complete and the Project may be legally occupied.
(l) "Loan Agreement" shall mean the Loan Agreement entered into by and among the City and Owner and dated of the date hereof.
(m) "Deed of Trust" shall mean the Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing of even date herewith by and among Owner, as Trustor, Old Republic Title Company, as trustee, and the City as beneficiary, that encumbers Owner's interest in the Property to secure repayment of the City Loan and Owner's performance of the Loan Documents.
(n) “Extremely Low Income Household” shall mean a household with a Household Income which does not exceed thirty percent (30%) of the Area Median Income applicable to Sacramento County, adjusted for family size, as published and periodically updated by HUD at the time of initial occupancy.
(o) “Extremely Low Income Unit" shall mean each of the Units which pursuant to Section 2.1(a) below, are required to be occupied by Extremely Low Income Households. (p) "Fifteen Year Compliance Period" means the fifteen (15) year compliance period as described in Section 42(i)(1) of the Internal Revenue Code of 1986, as amended. (q) "Household Income" shall mean the total anticipated annual income of all persons in a household, as calculated in accordance with the California Tax Credit Allocation Committee rules and regulations or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income. In the event that no such program exists, City shall provide the Owner with a reasonably similar method of calculation of gross income as provided in 25 California Code of Regulations Section 6914.
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(r) “HUD” means the United States Department of Housing and Urban Development.
(s) "Investor Limited Partner" means U.S. Bancorp Community Development Corporation, a Minnesota corporation, and its successors and assigns. (t) "Loan Documents" shall mean this Agreement, the Loan Agreement, the Note, and the Deed of Trust.
(u) "Note" shall mean the promissory note from the Owner to City evidencing all or any part of the City Loan.
(v) "Owner" shall mean Rancho Cordova Owner LP, a California limited partnership, and its successors and assigns to the Project. (w) "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of the Owner, dated as of June 1, 2026 hereof with this Agreement, as amended from time to time.
(x) "Project" shall mean the Property and the two hundred thirty-six (236) units (inclusive of two (2) managers’ 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.
(y) "Property" shall mean the real property described in Exhibit A attached hereto and incorporated herein.
(z) "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 be determined by use of the utility allowance published by the local public housing authority or the California Utility Allowance Calculator ("CUAC") model allowed by the California Tax Credit Allocation Committee regulations, if the Property qualifies.
(aa) "Tenant" shall mean a household occupying a Unit.
(bb) "Term" means the term of this Regulatory Agreement, which commences as of the date of this Regulatory Agreement and shall remain in effect until fifty-five (55) years after the final certificate of occupancy for the Project is issued . (cc) "Units" shall mean the two hundred thirty-six (236) rental units (inclusive of 2 managers’ units) to be constructed by the Owner on the Property.
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(dd) "Very Low Income Household" shall mean a household with a Household Income that does not exceed fifty percent (50%) of Area Median Income applicable to Sacramento County, adjusted for family size, as published and periodically updated by HUD as of the time of initial occupancy.
(ee) "Very Low Income Units" shall mean the Units which, pursuant to Section
2.1(b) below, are required to be occupied by Very Low Income Households.
ARTICLE 2.
AFFORDABILITY COVENANTS
Section 2.1 Occupancy Requirements.
(a) Extremely Low Income Units. Twenty-nine (29) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by Extremely Low Income Households. (b) Very Low Income Units. Twenty-nine (29) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by Very Low Income Households. (c) 60% Low Income Units. Sixty-four (64) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by 60% Low Income Households. (d) 70% Low Income Units. One hundred twelve (112) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by 70% Low Income Households.
(e) Manager's Unit. Two (2) Units shall be reserved for an on-site manager and shall not be subject to affordability or occupancy restrictions. (f) Intermingling of Units. All Units shall be intermingled and of comparable quality. Tenants in all Units shall have equal access to and enjoyment of all common facilities of the Project.
(g) Disabled Persons Occupancy.
(1) Owner shall cause the Project to be operated at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) the United States Fair Housing Act, as amended, (iv) the Americans With Disabilities Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations, which relate to disabled persons access (collectively, the "Accessibility Requirements").
(2) Owner shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the City) the City, and its city council, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out ITEM 9.13.
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of Owner's failure to comply with the Accessibility Requirements. This obligation to indemnify survives termination of this Regulatory Agreement, repayment of the City Loan, cancellation of the Promissory Note, and the reconveyance of the Deed of Trust.
Section 2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to the provisions of Section 2.3 below, the monthly Rent payable by Tenants of Extremely Low Income Units shall not exceed one- twelfth (1/12
th) of thirty percent (30%) of thirty percent (30%) of the Area Median Income applicable to Sacramento County, adjusted for Assumed Household Size. (b) Very Low Income Rent. Subject to the provisions of Section 2.3 below, the monthly Rent payable by Tenants of the Very Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of fifty percent (50%) of Area Median Income applicable to Sacramento County, adjusted for Assumed Household Size. (c) 60% Low Income Rent. Subject to the provisions of Section 2.3 below, the monthly Rent payable by Tenants of the 60% Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of sixty percent (60%) of Area Median Income applicable to Sacramento County, adjusted for Assumed Household Size
(d) 70% Low Income Rent. Subject to the provisions of Section 2.3 below, the monthly Rent payable by Tenants of 70% Low Income Units shall not exceed one-twelfth (1/12th) of thirty percent (30%) of seventy percent (70%) of the Area Median Income applicable to Sacramento County, adjusted for Assumed Household Size.
Section 2.3 Notice of Rent Amounts. Owner will provide City with a schedule of maximum permissible Rents for the Units prior to the expected date for receipt of a temporary certificate of occupancy and annually thereafter.
Section 2.4 Increased Income of Occupying Households.
(a) Increased Income. In the event that, upon recertification of an occupant household's income, the income of a tenant increases above the qualifying limit for such household, Owner may increase the rent of such household to the extent permitted by applicable law, the Project Regulatory Documents (as defined below) and the regulations promulgated by the California Tax Credit Allocation Committee.
(b) Termination of Occupancy. Upon termination of occupancy of a Unit by a Tenant, such Unit shall be deemed to be continuously occupied by a household of the same income level (e.g., Extremely Low Income Household, Very Low Income Household, 60% Low Income Household, or 70% Low Income Household) as the initial income level of the vacating Tenant, until such Unit is reoccupied, at which time the income character of the Unit (e.g., Extremely Low Income Unit, Very Low Income Unit, 60% Low Income Unit, or 70% Low Income Unit) shall be redetermined.
(c) Continued Compliance. If the income of the occupants of a qualifying unit increases to more than 140% of the applicable income limitation, the unit may continue to be ITEM 9.13.
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