July 15, 2025
WHEREAS, on December 19, 2023 , the Authority and Developer further amended the Original DDA (“Third Amendment”) and extended the Due Diligence Period for up to two (2) years, to allow Devel oper to continue pursuit of for tax credit financing which was ultimately successful.
WHEREAS, the Developer agrees with the terms of Amendment No. 4 to the DDA.
WHEREAS, the Authority finds that this Project is in the best and vital interests of Authority and the City of Suisun City, and the health, safety and welfare of the existing tenants, who will be relocated into newly built units, the residents and taxpayers in the City, and is in accord with the public purposes and provisions of applicable state and local laws. Construction of the Project will provide additional jobs and will provide affordable housing in accordance with the purposes and goals of the Authority. The Authority further finds that Amendment No. 4 to the DDA is consistent with the purposes of the DDA and will further the development of the Project.
WHEREAS, on July 15, 2025 , the Housing Authority of the City of Suisun City considered the testimony of the Developer and the public, the staff report and all accompanying documents, and all other relevant evidence provided, and adopted Resolution No. HA 2025-__, approving Amendment No. 4 to the DDA.
NOW, THEREFORE, the Housing Authority of the City of Suisun City does resolve as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. Amendment No. 4 to t he Disposition and Development Agreement (“Fourth Amended DDA”)between the Housing Authority of the City of Suisun City and Harbor Park LLC, dated November 21, 2021, is approved, subject to and conditioned upon the following: (i) Amendment No. 4 to the DDA must be in final form approved by the Authority Director and Authority Counsel; and (ii) within five (5) days of adoption of this Resolution, the Developer must execute three (3) copies of Amendment No. 4, and deliver same to the Housing Authority.
3. The proceeds from the sale of the Property, net of the cost of sale, shall be set aside in a separate fund and used directly to assist a housing project for persons of low income.
4. The Housing Authority Board finds that pursuant to the Class 32 “in -fill” categorical exemption (CEQA Guideline Section 153 32), this Project is exempt from environmental review, because the project is defined as an in-fill development project, located on no more than five acres, has no native vegetation or watercourses present on site, can be adequately served by all required utilities and public services, and the existing street network has adequate capacity to accommodate the anticipated traffic from the proposed Project.
5. The Executive Director of the Housing Authority is empowered to execute the agreement in substantially the form attached hereto. The Executive Director, in consultation with the Housing Authority Counsel, may make changes to the documents as may be needed to ensure 741
Resolution No. HA 2025-
July 15, 2025
internal consistency and to reflect the Housing Authority’s approval herein. The Chair of the Authority is hereby authorized to execute the Agreement, including related exhibits and attachments on behalf of the Authority. A copy of the final Fourth Amended DDA when executed by the Authority Chair shall be placed on file in the Office of the Secretary of the Authority.
6. The Executive Director of the Authority (or his designee) is hereby authorized, on behalf of the Authority, to take all actions necessary and appropriate to carry out and implement the Fourth Amended DDA and to administer the Housing Authority’s obligations, responsibilities, and duties to be performed under the Fourth Amended DDA and related do cuments, including, but not limited to the Deed of Trust, Regulatory Agreement, Subordination Agreement, acceptances, escrow instructions, certificates of completion and such other implementing agreements and documents as contemplated or described in the Fourth Amended DDA.
7. The Secretary of the Authority shall certify the adoption of this Resolution.
PASSED AND ADOPTED at the Regular Meeting of the Housing Authority of the City of Suisun City duly held on Tuesday, the 15th day of July 2025, by the following vote:
AYES: Commissioners:
NOES: Commissioners:
ABSENT: Commissioners:
ABSTAIN: Commissioners:
WITNESS my hand and the seal of said Authority this 15th day of July 2025.
Anita Skinner
Housing Authority Secretary
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FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT This Fourth Amendment to Disposition and Development Agreement ( “Fourth Amendment”) is entered into on _________________, 2025 (“Fourth Amendment Effective Date”), by and between the SUISUN CITY HOUSING AUTHORITY, a public body, corporate and politic ( “Authority”), and HARBOR PARK, LLC, a California l imited liability company (“Developer”).
RECITALS
A. Pursuant to Housing Authority Resolution No. 2021-03, Authority and Developer entered into a Disposition and Development Agreement dated November 2, 2021 ( “Original DDA”), for the sale and development of Authority ’s real property located at 707 -815 Almond Street in the City of Suisun City constituting Assessor’s Parcel Numbers 0032-101-420 and 0032- 102-160 (“Site”) to Developer.
B. On August 16, 2022, the Authority and Developer entered into that certain First Amendment to Disposition and Development Agreement (“First Amendment”) which increased the total number of Units to a minimum of ninety -nine (99) with fifty -two (52) Restricted Units and the remaining forty-seven (47) Units being Unrestricted Units and incorporated a new site plan and other revisions to the Original DDA. The parties also updated a number of other provisions in the Original DDA including clarifying the transfer restrictions, Developer ’s relocation obligations, and certain other matters as set forth therein. Additionally, the First Amendment extended the due diligence period to December 15, 2022.
C. On November 29, 2022, the Authority and Developer entered into that certain Second Amendment to Disposition and Development Agreement (“Second Amendment”), which extended the Due Diligence Period for up to two (2) years, to allow Developer to apply for tax credit financing, in conjunction with an affordable housing developer.
D. On December 19, 2023, the Authority and Developer entered into that certain Third Amendment (“Third Amendment”) to extend the due diligence period for up to one (1) additional year under certain circumstances, to amend the Scope of Development, and to amend the Schedule of Performance.
E. Developer now wishes to amend the Original DDA to clarify the total number of Units shall be ninety -seven (97) with ninety-six (96) Restricted Units and the remaining one (1) Unit being an Unrestricted Unit reserved for the on-site manager.
F. Developer will assign its interest under this agreement to Almond Gardens LP , a California limited partnership by a separate agreement following the execution of this Agreement.
NOW, THEREFORE , based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, the parties hereto agree as follows:
1. Recitals. The foregoing recitals ar e true and correct and incorporated herein by reference.
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2. Defined Terms. Defined terms shall have the same meaning as set forth in the Original DDA as modified by the First, Second, and Third Amendments ( “Existing DDA”). In the event of a conflict, the definition in this Fourth Amendment control.
3. Modifications/Amendment. As of the Fourth Amendment Effective Date, the Existing DDA is amended and modified as follows:
A. Section 100 Purpose of the Agreement. Section 100 of the Existing DDA is deleted and replaced with the following in its place and stead:
Developer proposes to purchase the Site, demolish the Existing Facilities in phases, commit to relocate the thirty-eight (38) existing tenants ( “Existing Tenants ”), and prepare the Site to elevate it above the flood plain appropriately to permit construction of six (6) new buildings on the Site ( “New Facilities ”) (collectively the “Project”).
The New Facilities will consist of six (6) new buildings consisting of: (i) four (4) apartment buildings each containing twenty-one (21) residential apartment units, one (1) apartment building containing thirteen (13) residential apartment units, and (ii) one (1) building which will contain the management office , community laundry facility, and a community hall. The New F acilities will contain ninety-seven (97) residential apartment units (individually a “Unit” and collectively “Units”), of which one (1) two -bedroom unit will be for the on -site property manager . The New Facilities will also include appropriate parking, common areas and landscaping, as generally depicted in the concept site plan set forth in Attachment A-1 attached hereto.
As material inducement and consideration for Authority to enter into this Agreement, Developer shall execute and acknowledge a covenant agreement to restrict the rental of ninety -six (96) Units to qualified family households for a period of fifty-five (55) years. The affordability restrictions are material consideration to Auth ority entering into this Agreement and Authority would not enter into this Agreement or otherwise provide some financial assistance without the affordability restrictions. The remaining one (1) unit shall not be restricted but shall be reserved for the on-site manager.
This Project is in the best and vital interests of Authority and the City of Suisun City (“City”), and the health, safety and welfare of the Existing Tenants, the residents and taxpayers in the City, and is in accord with the public purposes and provisions of applicable state and local laws. Construction of the New Project will provide additional jo bs and will provide affordable housing in accordance with the purposes and goals of Authority. 744
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B. Section 200 Definitions . Section 203 is amended to substitute the following term and delete the prior definition:
The term “Affordable Restricted Unit” shall mean ninety-six (96) residential Units in the Project, each of which is restricted to occupancy by this Agreement and the Regulatory Agreement to a Qualified Affordable Tenant. “Affordable Restricted Units” shall mean and refer collectively to the Affordabl e Restricted Units located on the Site.
C. Permitted Transfers . Section 303(3) is amended to add the new subsection (i) as set forth below:
(i) Any transfer of the limited partnership interests in Almond Gardens LP, a California limited partnership (“Successor Owner”), a contemplated successor in interest to Developer , any removal of the Successor Owner’s general partner by its investor limited partner, as permitted under the Owner’s Amended and Restated Agreement of Limited Partnership (as amended, the “ Partnership Agreement”), the exercise of the purchase option or right of first refusal as permitted under the Partnership.
D. Rights of Holders.
Section 512(1) (Definitions) is amended to add the following sentence:
The term “investor” means any limited partner o r investor limited partner of Developer or Owner.
Section 512(5) (Notice of Default) is amended to add the following sentences:
Simultaneously with delivery of any notice or
demand to Developer, Authority shall deliver a copy of such notice to investor at the following address:
R4 AGACA Acquisition LP
c/o R4 Capital LLC
780 Third Avenue, 16th Floor
New York, New York 10017.
Section 512(6) (Right to Cure) is amended to add the following sentences:
Investor shall have the right, but not the obligation, to cure any default of Developer under this Agreement, within 90 days of receipt of notice of default by Developer. Any cure made or tendered by investor shall be accepted as if made by Developer.
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E. Estoppels. Section 514 is amended to add that investor ma y request an estoppel of the Authority on the same terms as such right is granted to a holder.
F. Project Based Vouchers. Section 406(1)(h) is amended to substitute the following and delete the prior language:
“Authority shall have allocated ‘Section 8’ project based vouchers to all ninety-six (96) of the Affordable Restricted Units.” G. Right of Reverter. Section 805 is amended to add the following sentence at the end of the section: I nvestor or holder shall be entitled to a n additional sixty (60) day cure period above any cure period in this Section 805 prior to the exercise by Authority of Authority’s right to reenter and take possession of the Authority Parcel or any portion thereof with all improvements thereon and to terminate and re-vest in Authority the estate conveyed to Developer.
H. Notice. Section 901 is amended to (i) provide a copy of notice sent to the investor at the following address:
R4 AGACA Acquisition LP
c/o R4 Capital LLC
780 Third Avenue, 16th Floor
New York, New York 10017
Attn: Marc Schnitzer
and (ii) to update the “copy to” address for the Authority to:
Richards, Watson & Gershon
2300 “N” Street, Suite 3
Sacramento, CA 95816
Attn: Patrick Enright
I. Attachment No. 1 -- Legal Description of Site. The Legal Description of Site attached as Attachment No. 1 is deleted in its entirety and Exhibit A hereto is substituted in its place and stead.
J. Attachment No. 3 - Scope of Development . The text of Section A of Attachment No. 3 is deleted in its entirety and the following is substituted in its place and stead:
The term “Project” shall mean residential improvements required to be constructed by Developer on the Site including, but not limited to, the construction of buildings, glass and concrete work, landscaping, parking areas, and related imp rovements for an apartment community. Developer will construct: (i) four (4) 2-story buildings each containing twenty-one (21) Units, and one (1) 3-story building containing thirteen (13) residential units, one of which will be the on -site manager’s resi dence, and (ii) one (1) story building containing the management office , laundry facility, and a community hall.
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The Project shall initially consist of ninety -seven (97) Units.
Ninety-six (96) of the Units shall be restricted as Affordable Units.
The location of the respective Affordable Units will be designated in writing by Developer, delivered to the Authority and subject to Authority’s reasonable approval.
The one (1) Unrestricted Units shall be a manager’s unit and may be rented by Developer for fair market rent.
The Project will be constructed in one (1) phase as approved by Authority.
During the Feasibility Period, Developer and Authority shall discuss the availability of “Section 8 ” project based housing vouchers available for the Affordable Units.
During the construction, Developer shall relocate the Existing Tenants in phases to the New Facilities once constructed. Developer shall have no obligation to relocate all Existing Tenants at one time.
Developer shall pay any applicable Relocation Costs.
K. Attachment No. 9 -- Regulatory Agreement. The Regulatory Agreement Attached as Attachment No. 9 is deleted in its entirety and Exhibit B hereto is substituted in its place and stead.
4. Authority to Execute. The person(s) executing this Fourth Amendment on behalf of Developer represent and warrant that: (i) Developer is duly organized and existing under the laws of California; (ii) they are duly authorized to execute and deliver this Fourth Amendment on behalf of Developer; (iii) upon execution, this Fourth Amendment is binding upon Developer; and (iv) entering into of this Fourth Amendment does not violate any provision of any other agreement to which Developer is bound.
5. Separate Entities. Developer acknowledges that the Authority is a separate entity from the City and approvals by one entity does not bind the other entity.
6. Full Force and Effect. Except as specifically provided in this Fourth Amendment, the terms of the Original DDA shall remain unchanged and in full force and effect.
[Remainder of this page intentionally left blank]
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first written above.
DEVELOPER:
HARBOR PARK, LLC,
a California limited liability company
By:
Name: Camran Nojoomi
Title: Manager
AUTHORITY:
SUISUN CITY HOUSING AUTHORITY,
a public body, corporate and politic
By:
Name: Alma Hernandez
Title: Chair
ATTEST:
By:
Anita Skinner, Agency Secretary
APPROVED AS TO FORM:
RICHARDS, WATSON & GERSHON
By:
Patrick Enright, Agency Counsel
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EXHIBIT A
LEGAL DESCRIPTION OF SITE
ATTACHMENT NO. 1
The land described herein is situated in the State of California, County of Solano, City of Suisun City, described as follows:
Parcel One:
Parcel 2, as shown on that certain Map filed June 14, 1993 in the Office of the County Recorder of Solano County, State of California in Book 38 of Parcel Maps, at Page 15, as Amended by Certificate of Correction Recorded September 5, 1995, Series No. 1995-00054204.
Parcel Two:
A non-exclusive easement for driveway, vehicular ingress and egress and pedestrians, over that portion of Parcel 1, as shown on that certain Parcel Map filed June 14, 1993 in the Office of the County Recorder of Solano County, State of California in Book 38 of Parcel Maps, at Page 15, more particularly described as follows:
Beginning at a point that bears North 89 degrees 45' 10" West a distance of 10.00 feet and North 00 degrees 37'00" East a distance of 5.00 feet from the Southeasterly corner of Lot 1 as shown on that certain Map filed for record in Book 22 of Record Maps at Page 53, Solano County Records; thence North 89 degrees 45' 10" West a distance of 13.37 feet to the beginning of a non-tangent curve having a radius of 10.00 feet concave to the Southwest, a radial to said beginning bears North 60 degrees 14' 50" East; thence North Westerly along said curve, through a central angle of 60 degrees 00' 00" an arc distance of 10.47 feet; thence non-tangent to said curve North 00 degrees 37' 00" East a distance of
24.14 feet; thence South 89 degrees 23' 00" East a distance of 29.00 feet to the point of beginning.
Parcel Three:
Parcel 4, as shown on that certain Parcel Map filed June 14, 1993 in Book 38 of Parcel Maps, Page 15, Solano County Records, as Amended by Certificate of Correction Recorded September 5, 1995, Instrument No. 1995-0054204, Solano County Records.
Parcel Four:
An easement (not to be exclusive) for pedestrian and vehicular access, over and across the following described property:
Beginning at the Northwest corner of Parcel 4, as shown on said Map of "Parcel Map for Almond Gardens"; thence South 89 degrees 45' 10" East, 12.00 feet; thence South 00 degrees 37' 00" West, 5.00 feet to the beginning of a 10.00 foot tangent curve, concave to the Northeast; thence Southeasterly along said curve, through a central angle of 90 degrees 00' 00" an arc distance of 15.71 feet; thence non- tangent to said curve, South 00 degrees 37' 00" West, 24.24 feet; thence North 89 degrees 46' 00" West,
44.00 feet; thence North 00 degrees 37' 00" East, 24.38 feet to the beginning of a 10.00 foot non- tangent curve concave to the Northwest, a radial to said beginning bears South 00 degrees 37' 00" West; 750
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thence Northeasterly along said curve through a central angle of 90 degrees 00' 00" an arc distance of
15.71 feet; thence non-tangent to said curve, South 89 degrees 45' 10" East, 12.00 feet; thence North 00 degrees 37' 00" East, 5.00 feet to the point of beginning.
Excepting therefrom that portion lying within Parcel One above.
APN: 0032-101-420, 0032-102-160
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EXHIBIT B
REGULATORY AGREEMENT
ATTACHMENT NO. 9
FREE RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Suisun City Housing Authority
701 Civic Center Blvd.
Suisun City, CA 94585
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Regulatory Agreement is recorded for the benefit of the Suisun City Housing Authority and is exempt from Recording Fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
REGULATORY AGREEMENT AND DECLARATION OF
COVENANTS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS (“Agreement”) is made and entered into this ____ day of _______________, 202_, by and among the SUISUN CITY HOUSING AUTHORITY, a public body, corporate and politic ( “Authority”) and HARBOR PARK, LLC, a California limited liability company (“Owner”). The City of Suisun City ( “City”) is a third party beneficiary of this Agreement. [NTD: This needs to be granted by Almond Gardens LP as fee owner of the site. Revise globally as needed.]
R E C I T A L S:
A. Pursuant to that certain Dispositio n and Development Agreement between Owner and Authority dated _________, 202 _ (as amended, “DDA”), Authority sold Owner that certain apartment project commonly known as “Almond Gardens” located at 707-815 Almond Street in the City of Suisun City, County of Solano, State of California, more particularly described in Exhibit A attached hereto and incorporated herein by reference (“Site”).
B. As material consideration for the sale of the Site to Owner, Owner has agreed to (i) demolish the existing improvements; and (ii) construct six (6) new buildings consisting of: a) four (4) apartment buildings each containing twenty-one (21) residential apartment units, one (1) apartment building containing thirteen (13) residential apartment units, (collectively, “Units”) and (b) one (1) building which will contain the management office, community laundry facility, and a community hall (“Project”). Ninety -six (96) of the Units will be restricted for leasing to low income households and moderate income households pursuant to the terms of this Agreement. The balance of the Units in the Project shall not be restricted and may be rented for fair market rent, as reserved for a manager.
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A G R E E M E N T:
NOW, THEREFORE, the Owner and Authority declare, covenant and agree, by an d for themselves, their heirs, executors, administrators and assigns, and all persons claiming under or through them, that the Site shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied for the Term, subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of a common plan for the improvement and sale of the Site, and are established expressly and exclusively for the use and benefit of Authority, the citizens of the City of Suisun City, and every person renting a dwelling unit on the Site.
A. DEFINITIONS.
The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary:
1. Affordable Rent. The term “Affordable Rent” shall be the maximum rent and other charges permitted by the Authority for “Section 8” project based voucher units. The Affordable Rent (assuming a tenant only pays for gas and electricity and no other services) as of October 2021 for a one (1) bedroom is $1,563.00 and for a two (2) bedroom is $1,786.00.
2. Affordable Restricted Unit. The term “Affordable Restricted Unit” shall mean ninety-six (96) residential Units in the Project, each of which is restricted to occupancy by a Qualified Affordable Tenant. “Affordable Restricted Units” shall mean and refer collectively to the Affordable Restricted Units located on the Site.
3. Effective Date. The term “Effective Date” shall mean _________.
4. Existing Lease Agreements . The term “ Existing Lease Agreements ” shall mean all the lease agreements for all Existing Tenants which will be assigned to and assumed by Owner as of the Effective Date.
5. Existing Tenants . The term “ Existing Tenants” shall mean all tenants occupying the Existing Facilities at the Site as of the Effective Date.
6. [Intentionally Omitted].
7. Manager’s Unit. The term “ Manager’s Unit” shall mean the resi dential housing unit within the building designated by Owner as the management office and residence for the Qualified Manager. The Manager’s Unit shall not be a restricted Affordable Restricted Unit.
8. [Intentionally Omitted].
9. Project. The term “Project” shall have the meaning set forth in Recital B.
10. Qualified Manager . The term “ Qualified Manager ” shall mean the resident manager of the Project who is selected and retained by Owner pursuant to the Regulatory Agreement. The Qualified Manager shall reside in the Manager’s Unit within the Project as designated by Owner.
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11. Qualified Affordable Tenant. The term “Qualified Affordable Tenant” shall mean those households seeking to rent an Affordable Restricted Unit who qualify to receive a “Section 8” project based housing voucher by the Authority.
12. Relocation Expenses . The term “ Relocation Expenses ” shall mean all expenses necessary to relocate the Existing Tenants in phases during the construction process to either existing facilities or new facilities within the Project.
13. Term. “Term” is the period that commences the date a certificate of occupancy is issued for the Project and that terminates on the earlier of: (i) fifty -five (55) years after the date a certificate of occupancy is issued for the Project, or (ii) t he earlier termination of this Agreement.
14. Units. The term “ Units” shall mean all the residential apartment units in the Project including both the Affordable Restricted Units and the Unrestricted Units.
15. Unrestricted Unit. The term “Unrestricted Unit” shall mean and refer to the one (1) residential units in the Project which is not Affordable Restricted Unit, which is the on- site manager unit. “Unrestricted Units” shall mean and refer collectively to all the Units on the Site which are not restricted as Affordable Restricted Units located on the Site.
B. RESIDENTIAL RENTAL PROPERTY. Owner agrees that the Project is to be owned, managed, and operated as an apartment project consisting of ninety-seven (97) residential Units of which ninety-six (96) Units are restricted to Affordable Restricted Units during the Term.
The Unrestricted Units are not restricted or limited in any way under this Agreement. Owner hereby represents, covenants, warrants and agrees as follows:
1. Purpose. The Site is being acquired and the Project constructed for the purpose of providing only ninety -six (96) Units as Affordable Restricted Units for Qualified Affordable Tenants. The balance of the Units are Unrestricted Units.
2. Residential Use. None of the Units in the Project will at any time be utilized on a transient basis or used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, or trailer court or park without Authority’s prior consent which consent may be given or withheld in its sole and absolute discretion.
3. Conversion of Project . No part of the Project will at any time be owned by a cooperative housing corporation, nor shall the Owner take any steps in connection with the conversion to such ownership or uses to condominiums, or to any other form of ownership, without the prior written approval of Authority which approval may be given or withheld in its sole and absolute discretion.
4. Preference to Qualified Affordable Tenants . All of the Affordable Restricted Units will be available for rental to Qualified Affordable Tenants in accordance with the terms of this Agreement, and the Owner shall not give preference to any particular class or group in renting the Affordable Restricted Units.
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5. Resident Manager. The Unit in the building with the management office shall be occupied by a Resident Manager as their residence.
6. Liability of Owner . Owner and Resident Manager shall not incur any liability under this Agreement as a result of fraud or intentional misrepresentation by a Qualified Affordable Tenant as to the Affordable Restricted Unit.
C. OCCUPANCY OF AFFORDABLE RESTRICTED UNITS BY QUALIFIED AFFORDABLE TENANTS. Owner hereby represents, warrants, and covenants as follows with respect to the Affordable Restricted Units only:
1. Occupancy. Except as expressly p rovided herein, throughout the T erm of this Agreement the occupancy of all of the Affordable Restricted Units in the Project shall be restricted to Qualified Affordable Tenants and qualified members of the Qualified Afford able Tenant ’s household.
2. Occupancy of Affordable Restricted Units . In addition to the occupancy restrictions in Section C.1 and subject to Section B.5, (i) fifty-six (56) of the Affordable Restricted Units shall be two (2) bedroom Units; (ii) thirty (30) of the Affordable Restricted Units shall be three (3) bedroom Units ; and (iii) ten (10) of the Affordable Restricted Units shall be four (4) bedroom units.
3. Expiration of Occupancy and Rent Restrictions . The Affordable Restricted Units shall be subject to the restrictions contained in this Section C for the Term of this Agreement.
All tenants residing in the Affordable Restricted Units during the final two (2) years of the Term shall be given notice of the expiration of the Term at least once every six (6) months during the final two (2) years. After the expiration of the Term, the rents payable on the Affordable Restricted Units may be raised to market rates.
4. Rental Rates. Owner agrees to rent the Affordable Restricted Units occupied by Qualified Affordable Tenants at no greater than the applicable Affordable Rent during the Term.
5. Occupancy By Qualified Affordable Tenant . An Affordable Restricted Unit occupied by a Qualified Affordable Tenant shall be treated as occupied by a Qualified Affordable Tenant until the Authority no longer deems such tenant a Qualified Affordable Tenant.
6. [Intentionally Omitted].
7. Rental Priority. During the Term of this Agreement, and to the extent allowed under applicable Affordable Housing Program restrictions, Owner shall use its best efforts to lease vacant Affordable Restricted Units to Qualified Affordable Tenants, subject to reasonable screening criteria implemented by Owner, such as criminal background and credit verifications.
8. Renting Vacant Units. When an Affordable Restricted Unit becomes available as a result of a tenant vacation, Owner shall rent the Affordable Restricted Unit to a Qualified Affordable Tenant.
9. [Intentionally Omitted].
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10. Terminating Ineligible Tenant. Upon recertification by Authority, if a Qualified Affordable Tenant has become ineligible, the ineligible tenant’s lease shall not be renewed and such tenant shall be required to vacate the Affordable Restricted Unit.
11. Certificate of Continuing Program Compliance . Upon the issuance of the Release of Construction Covenants and annually by January 31 of each year, or at any time upon the written request of Authority, Owner shall advise Authority of the occupancy of the Project by delivering a Certificate of Continuing Program Compliance in the form attached hereto as Exhibit C, certifying: (i) the number of Affordable Restricted Units of the Project which were occupied or deemed occupied pursuant to Section C.1 by a Qualified Affordable Tenant during such period, and (ii) to the knowledge of Owner either (a) n o unremedied default has occurred under this Agreement, or (b) a default has occurred, in which event the Certificate shall describe the nature of the default and set forth the measures being taken by the Owner to remedy such default. Owner agrees to pay A uthority a fee pursuant to Health and Safety Code Section 33418(c) to offset Authority’s cost of monitoring the affordable housing at the Site, which shall not exceed Five Hundred Dollars ($500) per year.
12. Maintenance of Records. Owner shall maintain materially complete and accurate records pertaining to the Affordable Restricted Units, and shall permit any duly authorized representative of Authority to inspect the books and records of Owner pertaining to the Project including, but not limited to, those records pertaining to the occupancy of the Affordable Restricted Units.
13. [Intentionally Omitted].
14. Authority Remedy for Excessive Rent Charge.
a. It shall constitute a default for Owner to charge or accept for an Affordable Restricted Unit rent amounts in excess o f the amount provided for in Section C.4 of this Agreement. In the event that Owner charges or receives such higher rental amounts, in addition to any other remedy Authority shall have for such default, Owner shall be required to pay to Authority the enti re amount of rent received in excess of the amount permitted pursuant to this Agreement.
b. It shall constitute a default for Owner to knowingly rent or continue to rent any Affordable Restricted Unit to a tenant who is not a Qualified Affordable Tenant for t he particular Affordable Restricted Unit pursuant to the rental rate requirements set forth in Section C.4 of this Agreement. In the event Owner knowingly rents or continues to rent an Affordable Restricted Unit to an ineligible tenant, in addition to any other equitable remedy Authority shall have for such default, Owner, for each separate violation shall be required to pay to Authority an amount equal to (i) two times the greater of (A) the total rent Owner received from such ineligible tenant, during the period of the violation, or (B) the total rent Owner was entitled to receive for renting that Affordable Restricted Unit during the period of the violation, plus (ii) any relocation expenses incurred by Authority or City as a result of Owner having rented to such ineligible person. c. It shall constitute a default for Owner to knowingly rent or continue to rent any of the Affordable Restricted Units in violation of the leasing preference requirements of 756
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Section C of this Agreement. In the event Owner rents a n Affordable Restricted Unit in violation of the leasing preference requirements and such violation has not been cured after notice and the applicable cure period set forth in Section 801 of the DDA, in addition to any other equitable remedy Authority shall have for such default, Owner, for each separate violation shall be required to pay Authority an amount equal to two (2) months of rental charges for the Affordable Restricted Unit with the highest rent. The terms of this Section C.14 shall not apply if Owner rents to an ineligible person as a result of such person’s fraud or misrepresentation.
THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN
SUBPARAGRAPHS (a) THROUGH (c) OF THIS SECTION C.14 ( “DAMAGE AMOUNTS”)
CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT
AUTHORITY WOULD SUFFER DUE TO THE DEFAULTS BY OWNER SET FORTH IN SUBPARAGRAPHS (a) THROUGH (c), CONSIDERING ALL OF THE CIRCUMSTANCES
EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT, INCLUDING THE
RELATIONSHIP OF THE DAMAGE AMOUN TS TO THE RANGE OF HARM TO AUTHORITY AND ACCOMPLISHMENT OF AUTHORITY’S PURPOSE OF ASSISTING IN
THE PROVISION OF AFFORDABLE HOUSING TO QUALIFIED AFFORDABLE TENANTS
THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION C.14 SHALL BE THE SOLE MONETARY DAMAGES REMEDY FOR THE DEFAULTS SET FORTH IN THIS SECTION C.14, BUT NOTHING IN THIS SECTION C.14 SHALL BE INTERPRETED TO LIMIT AUTHORITY ’S REMEDY FOR SUCH DEF AULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS
INITIAL AT THE PLACES PROVIDED BELOW, EACH PARTY SPECIFICALLY
CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT
THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED
SAME AND THE CONS EQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT.
OWNER’S INITIALS: ______ AUTHORITY’S INITIALS: ______
15. Section 8 Tenants . Owner shall accept as tenants on the same basis as all other Qualified Affordable Tenants, persons who are Grant Recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. Owner shall not apply selection criteria to Section 8 certificate holders that are more burdensome than criteria applied to all other Qualified Affordable Tenants.
D. MAINTENANCE.
1. [Intentionally Omitted].
E. MANAGEMENT.
1. Designation of Resident Manager. Owner shall at all times during the operation of the Project retain a project management firm to perform the management and/or supervisory functions (“Project Manager”) with respect to the operation of the Project including day -to-day administration, maintenance and repair. Owne r shall promptly notify Authority of the Project 757
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Manager and any change in the Project Manager. Notwithstanding anything to the contrary in this Section, the Project may be self-managed by Owner with the prior written consent of Authority’s Executive Director which approval shall not be unreasonably withheld, conditioned or delayed.
In addition to the Project Manager, one (1) Resident Manager shall be designated as necessary by Owner or Project Manager, with written notice to Authority of the Resident Manager’s name, address and telephone number.
F. COMPLIANCE WITH LAWS.
1. State and Local Laws . Owner shall comply with all ordinances, regulations and standards of the City and Authority applicable to the Site. Owner shall comply with all rules and regulations of any assessment district of the City with jurisdiction over the Site.
2. Lease Approval. Authority shall have the right, but is not required, to approve any lease forms, revisions, amendments or modification made to same, used by the Project Manager or Resident Managers for leasing Units within the Site.
G. INSURANCE.
1. Duty to Procure Insurance. Owner covenants and agrees for itself, and its assigns and successors-in-interest in the Site that from completion of the Project as evidenced by City ’s issuance of a certificate of occupancy, and continuing thereafter until the expiration of the Term of this Agreement, Owner or such successors and assigns shall procure and keep in full force and effect or cause to be procured and kept in full force and effect for the mutual benefit of Owner and Authority, and shall provide Authority evidence reasonably acceptable to Executive Director, insurance policies meeting the minimum requirements set forth below:
a. Commercial General Liability insurance with respect to the Site and the operations of or on behalf of Owner, in an amount not less than Two Million Dollars ($2,000,000.00) per occurrence combined single limit including products, completed operations, incidental, contractual, bodily injury, personal injury, death and prope rty damage liability per occurrence, subject to such increases in amount as Authority may reasonably require from time to time. The insurance to be provided by Owner may provide for a deductible or self -insured retention of not more than Twenty -Five Thous and Dollars ($25,000 .00), with such maximum amount to increase at the same rate as the periodic increases in the minimum amount of total insurance coverage set forth above. The amounts of coverage and deductible under this paragraph may be increased by Au thority upon written notice to Owner provided such increase is based on such insurance as required for similar projects.
b. With respect to the improvements and any fixtures and furnishings to be owned by Owner on the Site, All Risk Property insurance against fire, extended coverage, vandalism, and malicious mischief, and such other additional perils, hazards, and risks as now are or may be included in the standard “all risk” form in general use in Solano County, California, with the standard form fire insurance coverage in an amount equal to full actual replacement cost thereof, as the same may change from time to time. The above insurance policy or policies shall include coverage for earthquake to the extent generally and commercially available at 758
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commercially reasonable rates as reasonably determined by Owner. Such insurance shall contain a replacement cost endorsement.
c. All policies of insurance required to be carried by Owner shall be written by responsible and solvent insurance companies licensed or authorized to do business in the State of California and having a policy -holder’s rating of A or better, in the most recent addition of “Best’s Key Rating Guide -- Property and Casualty.” A copy of each paid -up policy evidencing such insurance (appropriately authenticated by the insurer) or a certificate of the insurer, certifying that such policy has been issued, providing the coverage required herein, and containing the provisions specified herein, shall be delivered to Authority prior to its issuance of the R elease of Construction Covenants for the Project and thereafter, upon renewals, not less than thirty (30) days prior to the expiration of coverage. Authority may, at any time, and from time to time, inspect and/or copy any and all insurance policies requi red to be procured by Owner hereunder. In no event shall the limits of any policy be considered as limiting the liability of Owner hereunder. d. Each insurance policy required to be carried by Owner pursuant to this Agreement shall contain the following endorsements, provisions or clauses:
(1) The insurer will not cancel or materially alter the coverage provided by such policy in a manner adverse to the interest of the insured without first giving Authority a minimum of thirty (30) days prior written notice by certified mail, return receipt requested. (2) A waiver by the insurer of any right to subrogation against Authority, its agents, employees, or representatives, which arises or might arise by reason of any payment under such policy or policies or by reason of any act or omission of Authority, its agents, officers, members, officials, employees, or representatives. (3) The City, Authority, their respective agents, officers, members, officials, employees, volunteers, and representatives shall be additional insureds on the Commercial General Liability policies.
(4) Developer and Developer’s lender shall be loss payees on the All Risk Property insurance policies.
(5) Coverage provided by these policies shall be primary and non - contributory to any insurance carried by the City, A uthority, their officers, officials, employees, volunteers, agents, or representatives.
(6) Failure to comply with reporting provisions shall not affect coverage provided to City, Authority, their officers, employees, volunteers, agents, or representatives. e. Authority’s Executive Director may require an increase in the minimum limits of the insurance policies required by this Section as such increases are reasonably determined necessary to provide for changes in cost of living, liability exposure, the market for insurance, or the use of the Site. Such increases in insurance coverage shall be effective upon receipt of written notice from the Executive Director, provided that Owner shall have the right to appeal a determination of increased coverage by the Executi ve Director to Authority Board of Directors within thirty (30) days of receipt of notice from the Executive Director. 759
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f. Authority’s Executive Director may waive or modify the insurance requirements set forth herein if such insurance is determined by the Exec utive Director not to be commercially available. Owner shall submit such evidence of commercial availability as is reasonably required by the Executive Director. At least annually, Owner shall review the availability of any insurance requirement waived o r modified pursuant to this section, and shall meet any such insurance requirement as such insurance becomes commercially available.
2. Failure to Procure Insurance. If Owner fails to procure and maintain the above- required insurance despite its commercial a vailability, then Authority, in addition to any other remedy which Authority may have hereunder for Owner’s failure to procure, maintain, and/or pay for the insurance required herein, may (but without any obligation to do so) at any time or from time to ti me, after thirty (30) days written notice to Owner, procure such insurance and pay the premiums therefor, in which event Owner shall immediately repay Authority all sums so paid by Authority together with interest thereon at the maximum legal rate.
H. OBLIGATIONS TO REPAIR.
1. Obligation to Repair and Restore Damage Due to Casualty Covered by Insurance. Subject to Section H.3 below, if the Project shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Owner, Owner shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacem ent of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement or restoration and Owner shall complete the same as soon as possible thereafter so that the Project can continue to be operated and occupied as an affordable housing project in accordance with this Agreement.
However, in the event of catastrophic damage not covered by insurance, O wner shall be excused from the obligation to rebuild but shall be obligated to ensure that the property is in a safe condition. Subject to extensions of time for Enforced Delay events described in the DDA, in no event shall the repair, replacement, or restoration period exceed one (1) year from the date Owner obtains insurance proceeds unless Authority’s Executive Director, in his or her sole and absolute discretion, approves a longer period of time. Authority shall cooperate with Owner, at no expense to Authority, in obtaining any governmental permits required for the repair, replacement, or restoration. If, however, the then -existing laws of any other governmental agencies with jurisdiction over the Property or any Project lenders do not permit the repa ir, replacement, or restoration, Owner may elect not to repair, replace, or restore the Project by giving notice to Authority (in which event Owner shall be entitled to all insurance proceeds but Owner shall be required to remove all debris from the Site) or Owner may reconstruct such other improvements on the Site as are consistent with applicable land use regulations and approved by the City, Authority, and the other governmental agency or agencies with jurisdiction.
If Owner fails to obtain insurance as required by the DDA or this Agreement (and Authority has not procured such insurance and charged Owner for the cost), Owner shall be obligated to reconstruct and repair any partial or total damage to the Project and improvements located on the site in accordance with this Section H.1.
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2. Continued Operations . During any period of repair, Owner shall continue, or cause the continuation of, the operation of the Project to the extent reasonably practicable from the standpoint of prudent business management.
3. Damage or Destruction Due to Cause Not Required to be Covered by Insurance. If the improvements comprising the Project are completely destroyed or substantially damaged by a casualty for which Owner is not required to (and has not) insure against, then Owner shall not be required to repair, replace, or restore such improvements and may elect not to do so by providing Authority with written notice of election not to repair, replace, or restore within ninety (90) days after such substantial damage or destructio n. In such event, Owner shall remove all debris from the Property. As used in this Section H.3, “substantial damage” caused by a casualty not required to be (and not) covered by insurance shall mean damage or destruction which is ten percent (10%) or more of the replacement cost of the improvements comprising the Project.
In the event Owner does not timely elect not to repair, replace, or restore the improvements as set forth in the first sentence of this Section H.3, Owner shall be conclusively deemed to have waived its right not to repair, replace, or restore the improvements and thereafter Owner shall promptly commence and complete the repair, replacement, or restoration of the damaged or destroyed improvements in accordance with Section H.1 above and co ntinue operation of the apartment complex during the period of repair (if practicable) in accordance with Section H.2 above.
I. LIMITATIONS ON TRANSFERS.
Owner covenants that Owner shall not transfer the Site or any of its interests therein except as provided in this Section.
1. Transfer Defined. As used in this Section, and subject to Section 3 below, the term “Transfer” shall include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of this Agreement, the Site, or the improvements the reon. A Transfer shall also include the transfer to any person or group of persons acting in concert of more than twenty -five percent (25%) (in the aggregate) of the present ownership and/or control of any person or entity constituting Owner or its general partners, taking all transfers into account on a cumulative basis, except transfers of such ownership or control interest between members of the same immediate family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries are limi ted to members of the transferor’s immediate family, or among the entities constituting Owner or its general partners or their respective shareholders. In the event any entity constituting Owner, its successor or the constituent partners of Owner or any successor of Owner, is a corporation or trust, such transfer shall refer to the transfer of the issued and outstanding capital stock of such corporation, of beneficial interests of such trust; in the event that any entity constituting Owner, its successor or the constituent general partners of Owner or any successor of Owner is a limited or general partnership, such transfer shall refer to the transfer of more than twenty -five percent (25%) of such limited or general partnership interest; in the event that an y entity constituting Owner, its successor or the constituent general partners of Owner or any successor of Owner is a joint venture, such transfer shall refer to the transfer of more than twenty -five percent (25%) of the ownership and/or control of any such joint venture partner, taking all transfers into account on a cumulative basis.
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2. Authority Approval of Transfer Required . Prior to issuance of the Release of Construction Covenants, Owner shall not Transfer the Site or any of Owner’s rights hereunder, or any interest in the Site or in the improvements thereon, directly or indirectly, voluntarily or by operation of law, except as provided below, without the prior written approval of Authority, and if so purported to be Transferred, the same shall be null and void. In considering whether it will grant approval of any Transfer by Owner of its interest in the Site, Authority shall consider factors such as (i) whether the completion of the Project is jeopardized; (ii) the financial credit, strength, and capabi lity of the proposed transferee to perform Authority’s obligations hereunder; and (iii) the proposed transferee’s experience and expertise in the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific wri tten agreement by Authority, no transfer by Owner of all or any portion of its interest in the Site (including without limitation a transfer not requiring Authority approval hereunder) shall be deemed to relieve it or any successor party from the obligatio n to complete the Project or any other obligations under this Regulatory Agreement. In addition, no attempted transfer of any of Owner’s obligations hereunder shall be effective unless and until the successor party executes and delivers to Authority an ass umption agreement in a form approved by Authority assuming such obligations.
3. Exceptions. The foregoing prohibition shall not apply to any of the following:
a. Any mortgage, deed of trust, sale/lease -back, or other form of conveyance for financing, but Owner shall notify Authority in advance of any such mortgage, deed of trust, or other form of conveyance for financing pertaining to the Site. b. Any mortgage, deed of trust, sale/lease -back, or other form of conveyance for restructuring or refinancing of any amoun t of indebtedness described in subsection a. above, provided that the amount of indebtedness incurred in the restructuring or refinancing does not exceed the outstanding balance on the debt incurred to finance the acquisition of the Site and construction o f improvements on the Site, including any additional costs for completion of construction, whether direct or indirect, based upon the estimates of architects and/or contractors. c. After recordation of the Release of Construction Covenants, any mortgage, deed of trust, sale/lease-back, or other form of conveyance for financing provided that the principal amount of the loan does not exceed eighty percent (80%) of the value of the land and improvements thereon.
d. The granting of easements to any appropriate govern mental agency or utility to facilitate the development of the Site.
e. A sale or transfer resulting from or in connection with a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are assigned directly or by operation of law to a person or persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation. f. A transfer of ownership interests to a member of the transferor’s immediate family, a trust, testamentary or otherwise, in which immediate family members of the transferor 762
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are the sole beneficiaries, or a corporation or partnership in which the immediate family members or shareholders of the transferor have controlling majority interest of more than fifty percent (50%).
g. A change in the respective percentage ownership interests exclusively of the present owners of Owner (as of the date of this Agreement), but this shall not authorize the transfer of any interest to any person or entity who is not a present owner of Owner, except as otherwise provided herein.
h. The admission of a California nonprofit corporation (or an limited liability company wholly owned b y a California nonprofit corporation) as a managing general partner of Owner, or the permitted successor thereof.
i. Transfer of the Project or Limited Liability Company or limited partnership interests in Owner’s Limited Liability Company or limited partnership to a general partner, general partners or affiliates thereof of Owner, at the end of the fifteen year Tax Credit initial compliance period.
j. Transfers in the board of a nonprofit acting as the general partner of sole member of a general partner of the Owner;
k. A Transfer of the interest in a general partner resulting from the death or disability of its member;
l. Execution of residential leases for the Units in the ordinary course of operations of the Site.
m. A transfer in connection with a foreclosure or deed -in-lieu of foreclosure under any mortgage, deed of trust, or other form of conveyance permitted hereunder. n. (a) The direct or indirect transfer of any limited partnership interests in Owner or its successors or assigns; (b) the removal of Owner’s general p artner(s) by Owner’s investor limited partner, as provided in the Owner’s Amended and Restated Agreement of Limited Partnership (as amended, the “ Partnership Agreement”); and (c) the exercise of the purchase option or right of first refusal as permitted under the Partnership Agreement.
4. Release of Transfer Restrictions . Upon recordation of the Release of Construction Covenants pursuant to the DDA, this Section I shall automati cally terminate in its entirety.
J. ENFORCEMENT. In the event Owner defaults in the performance or observance of any covenant, agreement or obligation of Owner pursuant to this Agreement, and if such default remains uncured for a period of thirty (30) days after written notice thereof shall have been given by Authority, or, in the event said default cannot be cured within said time period, Owner has failed to commence to cure such default within said thirty (30) days and thereafter fails to diligently prosecute said cure to completion, then Authority shall declare an “Event of Default ” to have occurred hereunder, and, at its option, may take one or more of the following steps:
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1. By mandamus or other suit, action or proceeding at law or in equity, require Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of this Agreement; or
2. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
3. Enter the Site and cure the Event of Default as provided in Section E hereof.
4. Impose, through Authority’s Executive Director, an administrative fine for each day the violation continues. The amount of the fine shall be Twenty-Five dollars ($25.00) per day, unless the violation is deemed a major violation, in which case the fine shall be Seventy -Five dollars ($75.00) per day. The amounts of the foregoing fines shall be automatically increased by Five Dollars ($5.00) every five (5) years during the Term of this Agreement. A “major” violation shall be one which affects adjacent property or the health and safety of persons. Owner may appeal the assessment of any fine to the City Council who may reverse, modify or uphold the decision of the Executive Director. In making this decision, the City Counc il shall determine whether the violation exists and whether the amount of the fine is appropriate under the circumstances.
Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by another party.
Owner’s investor limited partner shall recei ve a copy of any notice of default under this Agreement and shall have the right, but not the obligation, to cure any such default. Any cure made or tendered by Owner’s investor limited partner shall be accepted as if made by Owner.
K. NON-DISCRIMINATION. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or 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 of the Site, or any part thereof (except as permitted by this Agreement).
L. COVENANTS TO RUN WITH THE LAND. Owner hereby subjects the Site to the covenants, reservations, and restrictions set forth in this Ag reement. Authority and Owner hereby declare their express intent that all such covenants, reservations, and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon the Owner’s successors in title to the Site for the Term; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. All covenants without regard to technical classification or designation shall be binding for the benefit of Authority, and s uch covenants shall run in favor of Authority for the Term of this Agreement, without regard to whether Authority is or remains an owner of any land or interest therein to which such covenants relate.
Each and every contract, deed or other instrument herea fter executed covering or conveying the Site or any portion thereof shall conclusively be held to have been executed, delivered and accepted 764
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subject to such covenants, reservations, and restrictions, regardless of whether such covenants, reservations, and restrictions are set forth in such contract, deed or other instrument.
Authority and Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that Owner ’s legal interest in the Site is rendered less valuable thereby. Authority and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by Qualified Afford able Tenants, the intended beneficiaries of such covenants, reservations, and restrictions, and by furthering the public purposes for which Authority was formed.
Owner, in exchange for Authority entering into the DDA, hereby agrees to hold, sell, and convey the Site subject to the terms of this Agreement. Owner also grants to Authority and the City the right and power to enforce the terms of this Agreement against the Owner and all persons having any right, title or interest in the Site or any part thereof, their heirs, successive owners and assigns.
M. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to indemnify, defend, and hold harmless Authority, City, and their respective officers, members, officials, employees, agents, volunteers, and representatives from and against any loss, liability, claim, or judgment relating in any manner to the Project excepting only any such loss, liability, claim, or judgment arising out of the intentional wrongdoing or gross negligence of Authority, City, or their respective officers, officials, employees, members, agents, volunteers, or representatives. Owner, while in possession of the Site, and each successor or assign of Owner while in possession of the Site, shall remain fully obligated for the payment of property taxes and assessments in connection with the Site. The foregoing indemnification, defense, and hold harmless agreement shall only be applicable to and binding upon the party then owning the Site or applicable portion thereof.
N. ATTORNEYS’ FEES. In the event that a party to this Agreement brings an action against the other party hereto by reason of the breach of any condition, covenant, representation or warranty in this Agreement, or otherwise arising out of this Agreement, the prevailing pa rty in such action shall be entitled to recover from the other reasonable expert witness fees, and its attorney’s fees and costs. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition a party entitled to attorneys’ fees shall be ent itled to all other reasonable costs for investigating such action, including the conducting of discovery.
O. AMENDMENTS. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly record ed in the real property records of the County of Solano.
P. NOTICE. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the ad dresses specified below, or at such other addresses as may be specified in writing by the parties hereto:
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Authority: Suisun City Housing Authority
701 Civic Center Blvd.
Suisun City, CA 94585
Attn: Executive Director
With a copy to: Richards, Watson & Gershon
2300 “N” Street, Suite 3
Sacramento, CA 95816
Attn: Patrick Enright
Owner: Harbor Park, LLC
9700 Village Center Drive, Suite 120
Granite Bay, CA 95746
Attn: Camran Nojoomi
With a copy to: Matthew Ellis
Downey Brand
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
and to: R4 AGACA Acquisition LP
c/o R4 Capital LLC
780 Third Avenue, 16th Floor
New York, New York 10017
Attn: Marc Schnitzer
The notice shall be deemed given three (3) business days after the date of mailing, or, if personally delivered, when received.
Q. SEVERABILITY; WAIVER; INTEGRATION.
1. Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.
2. Waiver. A waiver by either party of the performance of any covenant or condition herein shall not invalidate this Agreement nor shall it be considered a waiver of any other covenants or conditions, nor shall the delay or forbearance by either party in exercising any remedy or right be considered a waiver of, or an estoppel against, the later exercise of such remedy or right.
3. Integration. This Agreement contains the entire Agreement between the parties and neither party relies on any warranty or representation not contained in this Agreement. 766
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R. FUTURE ENFORCEMENT . The parties hereby agree that should Authority cease to exist as an entity at any time during the Term of this Agreement, the City of Suisun City shall have the ri ght to enforce all of the terms and conditions herein, unless Authority had previously specified another entity to enforce this Agreement.
S. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California.
T. CONFLICT WITH TAX CREDIT REQ UIREMENTS. Notwithstanding anything to the contrary set forth in the Agreement, to the extent that any provision of this Agreement conflicts with any provision of Section 42 of the Internal Revenue Code of 1986 (as amended) and/or any rules or requirement s of the California Tax Credit Allocation Committee (collectively, the “Tax Credit Requirements”), Owner shall notify Authority in writing and the parties shall make appropriate and reasonable revisions to this Agreement to prevent any violation of the Tax Credit Requirements while still protecting the rights and obligations of Authority. Any modifications must be in writing executed and acknowledged by both parties and recorded in the Official Records of Solano County.
U. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall constitute one original and all of which shall be one and the same instrument.
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[Signatures appear on next page]
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IN WITNESS WHEREOF , Auth ority and Owner have executed this Regulatory Agreement and Declaration of Covenants and Restrictions by duly authorized representatives on the date first written hereinabove.
OWNER:
HARBOR PARK, LLC,
a California limited liability company
By:
Name: Camran Nojoomi
Title: Manager
Date: , 202__
AUTHORITY:
SUISUN CITY HOUSING AUTHORITY,
a public agency, corporate and politic
By:
Name: Alma Hernandez
Title: Chair
Date: , 202__
ATTEST:
By:
Anita Skinner, Agency Secretary
APPROVED AS TO FORM:
RICHARDS, WATSON & GERSHON
By:
Patrick Enright, Agency Counsel
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1 Almond Gardens – Harbor Park LLC. Disposition and Development Agreement Amendment No. 4C I T Y O F S U IS UN C I T Y, H O US ING AU THOR ITYJ U LY 1 5 , 2 0 2 5 Background•Almond Gardens Existing Condition•Harbor Park LLC. Selected•Disposition and Development Agreement1 2 769
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2 DDA Amendments•Second Amendment – Due Diligence•Third Amendment – Due Diligence•Tax Credit Financing•HUD Vouchers•Final Amendments to Close Escrow Housing Authority Board Action Recommended that the Housing Authority Board adopt the Resolution authorizing the Executive Director to execute the Fourth Amendment to the Disposition and Development Agreement with Harbor Park LLC.3 4 770