Staff recommends accepting the Citywide Slurry Seal Project (PW9745), performed by Pavement Coatings Co., of Jurupa Valley, California, as complete and authorizing the City Clerk to file a Notice of Completion with the Solano County Recorder’s Office.
FISCAL IMPACT
This project was funded with Gas Tax, Measure P, and Glen Cove Landscape Maintenance District Funds.
The Project was included in the City’s Fiscal Year 2024-25 budget adopted by the City Council on June 27, 2023. The funding / budget for PW9745: Citywide Slurry Seal Project is listed below.
SOURCES BUDGET EXPENDITURES
Fund 219 - Gas Tax $436,301.00
Fund 201 - Measure P $2,000,000.00
Fund 185 - Glen Cove Landscape
Maintenance District Fund
$108,642.24
Design ($39,340.21)
Construction Contract ($1,814,834.25)
Construction / Project
Management
($39,372.86)
Construction Contract Change
Orders
($360,923.09)
Construction Management &
Inspection (Staff)
($28,502.10)
Miscellaneous ($2,347.32)
TOTAL $2,544,943.24 ($2,285,319.83)
There is no remaining Measure P or Glen Cove Landscape Maintenance District Funds in this project. Any remaining budget in the Gas Tax Fund within this project will be moved to the next project in need of funding as deemed by the City Engineer and approved by the City Manager after all invoices have been paid.
ENVIRONMENTAL REVIEW
The Citywide Slurry Seal Project is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15301(c), because it consists of the repair and maintenance of existing streets and does not result in additional automobile lanes.
ATTACHMENTS
1. Attachment A - Location Map
2. Attachment B - List of Streets
Date: April 22, 2025
Subject: ACCEPT THE CITYWIDE SLURRY SEAL PROJECT (PW9745), PERFORMED BY PAVEMENT COATINGS CO., AS COMPLETE, AND AUTHORIZE THE CITY CLERK
TO FILE A NOTICE OF COMPLETION WITH THE SOLANO COUNTY
RECORDER’S OFFICE
CONTACT
Melissa Tigbao, P.E., Public Works Director, (707) 648-4433 [email protected]
ATTACHMENT A
LOCATION MAP
LOCATI
ON MAP
CITYWIDE SLURRY SEAL PROJECT
PROJECT NO. PW9745
N
O
R
T
H
ATTACHMENT A
ATTACHMENT B
LIST OF STREETS
STREET NAME BEGINNING END PCI AREA (SF)
DISTRICT 1
HALE STREET HENRY STREET SKYLINE DRIVE 56 60,327
PLAZA DRIVE ADMIRAL CALLAGHAN TURNER PARKWAY 63 108,510 ROLLINGWOOD DRIVE TENNESSEE STREET GEORGIA STREET 60 131,361 TERRACE BEACH DRIVE CLEAR COAST COURT HEADWATER DRIVE 62 70,422 TROTTER DRIVE REDWOOD PARKWAY DARLEY DRIVE 60 64,034
WOODRIDGE DRIVE OAKWOOD AVENUE WOODSON WAY 61 57,927
DISTRICT 2
CAROUSEL DRIVE CUL DE SAC SOUZA WAY 59 24,396
CIMARRON DRIVE BORGES LANE NICOLE WAY 57 62,119
GONZAGA AVENUE WHITNEY AVENUE STANFORD DRIVE 59 25,395
JACK LONDON DRIVE LAINEY COURT DONNER PASS ROAD 62 79,420 SONORA PASS ROAD TOBIN DRIVE BIDWELL WAY 64 16,463
VANESSA STREET BORGES LANE END 63 2,8791
DISTRICT 3
ANTIGUA WAY GLEN COVE PARKWAY END 56 34,572
GLEN COVE MARINA ROAD GLEN COVE PARKWAY END 63 20,113
GLEN COVE PARKWAY 134' W/O SEA LION PL END 64 2,5086
JAMES RIVER ROAD GLEN COVE PARKWAY END 57 5,5849
RIVERMOUTH LANE MISTRAL WAY END 56 18,290
ROBLES DRIVE GLEN COVE ROAD 502 'E/O GLEN COVE PKWY 67 25,177 SHADOW RIDGE PLACE OUTRIGGER DRIVE CUL DE SAC 67 33,352 SHADY LANE ROBLES WAY APPLENUT LANE 65 54,829
WATERVIEW TERRACE WEST END EAST END 62 67,980
LIST OF STREETS (DISTRICTS 1-3)
2024 CITYWIDE SLURRY SEAL PROJECT
PROJECT NO. PW9745
ATTACHMENT BHME
STREET NAME BEGINNING END PCI AREA SF
DISTRICT 4
BRANCIFORTE STREET TENNESSEE STREET KENTUCKY STREET 61 69,330 COACH LANE FAIRGROUNDS DRIVE END 67 18,707
HOBBS AVENUE ALMOND AVENUE END 59 25,073
HOSPITAL DRIVE TUOLUMNE STREET 236' E/O TUOLUMNE ST 62 8,242 LAKESIDE DRIVE ANTIOCH DRIVE END 57 23,378
OHIO STREET BUTTE STREET BRANCLIFORTE ST 65 16,294
PARKVIEW TERRACE TUOLUMNE STREET (N) LUANN COURT 55 34,717 POWER DRIVE NORTH CAMINO ALTO RIVERVIEW DRIVE 64 39,319 SANTA CLARA STREET MAINE STREET CAROLINA STREET 59 61,936 DISTRICT 5
CALAVERAS WAY FLEMING AVENUE NEBRASKA STREET 57 15,540
EL DORADO STREET GEORGIA STREET FLORIDA STREET 56 54,977 INDIANA STREET AMADOR STREET COLUSA STREET 56 12,405
MONTEREY STREET NEVADA STREET DEAD END SOUTH 61 4,955
RICE STREET NINTH STREET BENICIA ROAD 64 20,364
SERRA DRIVE EL CAMINO REAL CULDESAC WEST 63 34,125
SHASTA STREET NEBRASKA STREET INDIANA STREET 61 33,761
SHASTA STREET TENNESSEE STREET ALABAMA STREET 62 1,2547 TUOLUMNE STREET LOS SANTOS COURT GREENFIELD AVENUE 60 38,880 WASHINGTON STREET NORTH CAMINO ALTO RINCON WAY 59 38,336 DISTRICT 6
ANNETTE AVENUE BUSS AVENUE BENICIA ROAD 56 51,186
CAROLINA STREET WEST END MILLER AVENUE 63 5,101
CEDAR STREET WEBB STREET GEORGIA STREET 56 24,717
CEDAR STREET BENICIA ROAD REIS AVENUE 62 32,192
LAUREL STREET MAGAZINE STREET ALHAMBRA AVENUE 57 35,341 LAUREL STREET REIS AVENUE BENCIA ROAD 55 40,413
MAGAZINE STREET SR 29 PORTER STREET 58 17,876
MARITIME ACADEMY DRIVE SR 29 750' SOUTH OF SR 29 63 20,866 PACHECO DRIVE CABRILLO DRIVE LADERA DRIVE 64 17,388
SHERIDAN STREET CHERRY STREET MAGAZINE STREET 61 37,839 THELMA AVENUE SPRINGS ROAD CONCORD STREET 64 40,129
LIST OF STREETS (DISTRICTS 4-6)
2024 CITYWIDE SLURRY SEAL PROJECT
PROJECT NO. PW9745
ATTACHMENT B
CONSENT CALENDAR 8.F.
DATE: April 22, 2025
TO: Mayor and Members of the City Council
FROM: Arthur Gonzales, Interim Fire Chief
SUBJECT: ADOPT A RESOLUTION FOR THE CITY COUNCIL TO AUTHORIZE A 10-YEAR LEASE AGREEMENT WITH ZOLL ONE FOR 10 ZOLL X SERIES CARDIAC
MONITORS/DEFIBRILLATORS FOR FIRE DEPARTMENT APPARATUS IN THE AMOUNT OF $935,415.79 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAME.
RECOMMENDATION
Adopt the resolution approving the Zoll One Program Master Agreement between the City and Zoll Medical Corporation for a 10-year lease and service of cardiac monitors and associated medical equipment, in the amount of $935,415.79 ($500,000 down payment and $43,541.58 annual payment), and authorizing the City Manager to execute the same.
REASONS FOR RECOMMENDATION
The industry standard for the service life of this equipment is five to seven years, our current cardiac monitor/defibrillators are eleven years old at the end of their life. It is recommended that the City Council approve a 10-year lease agreement for the acquisition of Zoll X-Series Defibrillators to support the Vallejo Fire Department’s emergency medical services (EMS) operations. The lease agreement will ensure that the fire department’s EMS personnel have access to state-of-the-art life-saving technology, enhance patient care, and maintain compliance with current medical equipment standards.
BACKGROUND AND DISCUSSION
The Vallejo Fire Department (VFD) provides emergency medical services to residents of Vallejo and surrounding areas. One of the most critical tools that paramedics and emergency responders rely on is the automatic external defibrillator (AED), which is essential in treating patients experiencing cardiac arrest.
The department's current fleet of defibrillators is aging and no longer meets the latest performance standards or technological requirements. With the rapid advancement of medical technology, especially in the field of emergency care, it has become increasingly important to upgrade the department’s EMS equipment to ensure optimal patient outcomes.
After extensive research and consultation with EMS staff and medical professionals, the Zoll X-Series Defibrillator has been identified as the most suitable and cost-effective solution for the fire department’s needs.
This model is recognized for its superior performance, ease of use, and robust features such as:
• Real-time CPR feedback: Provides paramedics with real-time data to improve CPR quality, increasing survival rates.
• Integrated Wi-Fi: Allows for immediate device status monitoring and real-time transmission of patient data to the hospital.
• Advanced ECG capabilities: Provides clear, high-quality ECG waveforms for better decision-making in the field.
Date: April 22, 2025
Subject: ADOPT A RESOLUTION FOR THE CITY COUNCIL TO AUTHORIZE A 10-YEAR LEASE AGREEMENT WITH ZOLL ONE FOR 10 ZOLL X SERIES CARDIAC
MONITORS/DEFIBRILLATORS FOR FIRE DEPARTMENT APPARATUS IN THE AMOUNT OF $935,415.79 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAME.
• Compact and durable design: The X-Series are lightweight and rugged, ideal for use in diverse emergency situations.
The Zoll X-Series has been designed with a focus on improving patient outcomes and ensuring that emergency responders have the best tools available in life-threatening situations.
The proposal is for a 10-year lease from Zoll X-Series Defibrillators to replace the current aging units used by the Vallejo Fire Department’s EMS team. This lease option was selected based on its financial benefits, flexibility, and the ability to upgrade equipment over the lease term without a significant initial capital outlay.
Lease Terms and Financial Considerations:
• Total Lease Term: 10 years
• Number of Units: 10 Zoll X Series monitors/defibrillators • Lease Payment Structure: $500,000 down and $43,541.58 annually • Maintenance and Support: The lease includes full maintenance and support for the duration of the agreement, ensuring that the devices remain in optimal working conditions.
The Zoll Master Lease is a standard Zoll form. Amendments specific to Vallejo insurance, indemnity and choice of law provisions have been transmitted to Zoll to conform to the City's standard contractual requirements. Such modifications have not yet been incorporated into the Master Agreement by Zoll. Based thereon, the action before the Council provides for changes to be incorporated into the Master Agreement in a form approved by the City Manager and City Attorney.
The $500,000 down payment is to be paid by Measure P funds which were recommended for approval by the Measure P Committee on July 16, 2024. The remainder of the funding will be paid in annual payments from the Fire Department regular budget.
Compared to outright purchase, leasing offers a more predictable and manageable financial commitment, with lower upfront costs and continued support throughout the term.
1. Advantages of Leasing Over Purchasing: Financial Flexibility: Leasing allows the city to preserve capital by spreading the cost of the defibrillators over a decade. This can be particularly beneficial in managing the budget without the immediate burden of a large capital expenditure.
2. Technological Advancements: By leasing, the city has the option to upgrade to newer technology at the end of the lease term, ensuring that VFD always has the latest, most efficient life-saving devices.
3. Ongoing Support and Maintenance: The lease includes service, maintenance, and troubleshooting, which reduces the risk of equipment failure and ensures optimal functionality over the term of the lease.
4. Consistent Budgeting: Leasing provides a predictable, fixed expense structure, which helps with long- term financial planning for the Vallejo Fire Department.
Date: April 22, 2025
Subject: ADOPT A RESOLUTION FOR THE CITY COUNCIL TO AUTHORIZE A 10-YEAR LEASE AGREEMENT WITH ZOLL ONE FOR 10 ZOLL X SERIES CARDIAC
MONITORS/DEFIBRILLATORS FOR FIRE DEPARTMENT APPARATUS IN THE AMOUNT OF $935,415.79 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAME.
Payment
Principal
Balance
Interest
Rate
Interest Principal Payment Payment
Date
336,216.53
1 $ 336.216.53 5.00% $ 16,810.83 $26,730.75 $43,541.58 Aug-25 2 $ 309.485.78 5.00% $ 15,474.29 $28.067.29 $43,541.58 Aug-26 3 $ 281.418.49 5.00% $ 14,070.92 $29.470.65 $43,541.58 Aug-27 4 $ 251.947.83 5.00% $ 12,597.39 $30,944.19 $43,541.58 Aug-28 5 $ 221,003.65 5.00% $ 11,050.18 $32.491.40 $43,541.58 Aug-29 6 $ 188.512.25 5.00% $ 9.425.61 $34.115.97 $43,541.58 Auo-30 7 $ 154,396.28 5.00% $ 7,719.81 $35,821.76 $43,541.58 Auq-31 8 $ 118.574.52 5.00% $ 5,928.73 $37,612.85 $43,541.58 Aug-32 9 $ 80.961.67 5.00% $ 4.048.08 $39.493.50 $43,541.58 Aug-33 10 $ 41,468.17 5.00% $ 2,073.41 $41.468.17 $43,541.58 Aug--34 TOTAL $ 99,199.26 $ 336,216.53 $
435,415.79
$
500,000.00
$935,415.79
FISCAL IMPACT
The total cost for leasing the Zoll X-Series Defibrillators for 10 years is approximately 935,415.79. After the $500,000 appropriated from Measure P and the remaining annual liability of $43,541.58 funding for this annual lease will be allocated from the Vallejo Fire Department's budget under 0012306-5006001, Other Professional Services. It is anticipated that the ongoing costs for maintenance and operational support will be covered within the department's annual budget
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378.
ATTACHMENTS
1. Zoll Resolution CAO Stamp
2. Vallejo Fire Dept_ZOLL ONE Master Agreement_1-27-2025
CONTACT
Arthur Gonzales, Interim Fire Chief
[email protected]
Approved as to form:
By: for
Veronica Nebb, City Attorney
RESOLUTION NO. 25- ______________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VALLEJO APPROVING A 10-YEAR LEASE AGREEMENT WITH ZOLL ONE FOR THE ACQUISITION OF 10 ZOLL X-SERIES CARDIAC MONITORS/DEFIBRILLATORS IN THE AMOUNT OF $935,415.79 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE CITY
WHEREAS, the Vallejo Fire Department (VFD) provides critical emergency medical services (EMS) to the residents of Vallejo and surrounding areas, and one of the most vital tools utilized by EMS personnel is the automatic external defibrillator (AED); and WHEREAS, the current fleet of AEDs used by the VFD is outdated, with the equipment reaching the end of its service life after over eleven years of usage, and does not meet current technological standards required for optimal patient care; and WHEREAS, the industry standard for the service life of such equipment is typically between five to seven years, and the existing equipment is no longer sufficient to meet the needs of the department; and
WHEREAS, after careful evaluation of available options, the Zoll X-Series Defibrillators have been identified as the most suitable and cost-effective solution to meet the VFD’s needs, providing superior performance, enhanced features, and advanced capabilities; and WHEREAS, the Zoll X-Series Defibrillators include advanced features such as real-time CPR feedback, integrated Wi-Fi for patient data transmission, advanced ECG capabilities, and a compact, durable design, all of which will enhance patient care, improve EMS operations, and contribute to higher survival rates; and
WHEREAS, the City of Vallejo has determined that a 10-year lease with Zoll One for the acquisition of these state-of-the-art defibrillators provides significant financial flexibility, operational benefits, and ensures ongoing maintenance and support; and WHEREAS, the lease terms include a down payment of $500,000 appropriated from Measure P funds, which was recommended for approval on July 16, 2024 by the Measure P Committee.
Thereafter, annual payments of $43,541.58, to be paid from the regular fire department budget on an annual basis for a total lease amount of $935,415.79 over the term of the agreement, with full maintenance and support for the duration of the lease; and WHEREAS, leasing this equipment provides financial flexibility by spreading the cost of the defibrillators over a decade, while maintaining the ability to upgrade to newer technology at the end of the lease term, without the immediate burden of a large capital expenditure.
NOW THEREFORE BE IT RESOLVED that the City Council authorizes the City Manager to execute a 10-year lease agreement with Zoll One for the lease of 10 Zoll X-Series Cardiac Monitors/Defibrillators, with a total lease cost of $935,415.79, including down payment and annual payments, to support the Vallejo Fire Department’s emergency medical services operations.
BE IT FURTHER RESOLVED that the City Council does hereby authorize the City Manager to execute said Agreement, with any modifications recommended by the City Attorney and the City Manager.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF VALLEJO at a regular meeting held on April 22, 2025, with the following vote:
AYES:
NOES:
ABSENT:
____________________________________
ANDREA SORCE, MAYOR
ATTEST: _____________________________________
DAWN G. ABRAHAMSON, CITY CLERK
V3.2 (02-23-2024)-FMV Page 1 of 17
Agreement ZO02351598
ZOLL ONE PROGRAM
MASTER AGREEMENT
This ZOLL ONE PROGRAM MASTER AGREEMENT, including all attachments attached hereto and hereby made a part hereof (“Master Agreement”), is entered into by and between ZOLL Medical Corporation, a Massachusetts corporation with its principal place of business at 269 Mill Road, Chelmsford, MA 01824 (“Lessor”), and Vallejo Fire Dept with offices at 970 Nimitz Ave Vallejo, CA 94592 (“Lessee”).
This agreement will be effective upon the date of last signature (“Effective Date”).
1. MASTER AGREEMENT; SCHEDULES. Lessor hereby leases to Lessee and Lessee leases from Lessor the equipment (“Equipment”) described in any Equipment Schedule executed from time to time by Lessor and Lessee, the form of which is attached as Exhibit A hereto (the “Schedule” or “Schedules”), upon the terms and conditions set forth in this Master Agreement and the Schedules. In addition to leasing the Equipment, (i) if RescueNet® CaseReview is included in the applicable quote, then Lessor will also provide Lessee with RescueNet® CaseReview pursuant to the terms and conditions of the ALS/BLS Software Solutions Master Application Service Provider Agreement attached as Exhibit B hereto (the “ASP Agreement”), otherwise Exhibit B does not apply to this Master Agreement, and (ii) if the Worry Free Service Plan (“Service Plan”) is included in the associated quote, then Lessor will also provide Lessee with Service Plan pursuant to the terms and conditions of the Service Plan attached as Exhibit C hereto, otherwise, the Exhibit C does not apply to this Master Agreement.
In the event of any conflict between the terms and conditions contained in this Master Agreement and the ter ms and conditions contained in the ASP Agreement, the terms and conditions in Exhibit B shall control.
2. TERM. The term is this Master Agreement (“Term”) begins on the effective date of the first Schedule incorporating this Master Agreement and continues until terminated. The term of each Schedule begins on the effective date of such Schedule and ends on the termination date of such Schedule. (“Rental Term ”). However, no termination by the Lessee of this Master Agreement shall be effective with respect to any Schedule until the expiration or termination of such S chedule and the satisfaction by Lessee of all of its obligations hereunder with respect thereto.
3. RENT; LATE CHARGES. As rent for the Equipment, Lessee agrees to pay the amounts specified in the applicable Schedule on the due dates specified therein (“Rent”). If any part of any Rent payment or other amount due under this Master Agreement is not paid within five (5) days of its due date, Lessee agrees to pay Lessor a charge for every month after the first month in which the amount is late to compensate Lessor for the inability to reinvest the amount, which charge is stipulated and liquidated at 1.5% of t he delayed amount per month (or the lesser rate that is the maximum rate allowable under applicable law) in addition to the unpaid amount.
4. NON-CANCELABLE; WAIVER OF DEFENSES TO PAYMENT. Lessee acknowledges that it is receiving special pricing on the Equipment in exchange for its commitment to pay Rent for the entire Rental Term of each Schedule. Lessee agrees that it has an absolute and unconditional obligation to pay all Rent and other amounts when due. Lessee is not entitled to abate, reduce or recoup Rent or any other amount due, or to set off any charge against any such amount for any reason whatsoever. Lessee hereby waives any recoupment, crossclaim, counterclaim, or any other defense at law or in equity to any Rent payment, whether any such defense arises out of this Master Agreement. There is no “test period” for Equipment that would delay acceptance or the commencement of any Schedule term.
5. EQUIPMENT RETURN REQUIREMENTS. Upon expiration o r earlier termination of this Master Agreement or an applicable Schedule, Lessee shall either (a) return the Equipment in accordance with this Section or (b) purchase the Equipment at the Fair Market Value as set forth in Section 8 , in which case right, title and interest shall transfer to Lessee upon payment . In the event Lessee elects to return the Equipment to Lessor, such return must be made within sixty (60) days of the end of the applicable Rental Term or promptly upon Lessee receiving replacement Equipment, whichever occurs first. If Lessee fails to return Equipment to Lessor under the terms set forth in this section, then Lessee shall pay two times (2x) the monthly fee until the Equipment is received by Lessor. For all Equipment returned to Lessor, Lessee shall (a) remove any Lessee labels, tags or other non -factory markings on the Equipment and wipe clean or permanently delete all data contained on the Equipment, including, any data contained on internal or external drives, discs, or accompanying media, (b) pack the Equipment in accordance with the Lessor’s guidelines, and (c) deliver such Equipment to Lessor at any destination within the continental United States designated by Lessor. All dismantling, packaging, transportation, in-transit insurance and shipping charges shall be borne by Lessee. All Equipment shall be returned to Lessor in the same condition and working order as when delivered to Lessee, reasonable wear and tear excepted. The return of the Equipment shall constitute a full release by Lessee of any leasehold rights or possessory interest in the Equipment.
6. EQUIPMENT USE; MAINTENANCE AND ADDITIONS. Lessee shall, at all times during the applicable Rental Term (a) operate and maintain the Equipment in good working order, repair and condition, and in accordance with the manufacturer’s specifications and recommendations and, all applicable laws and regulations, and (b) purchase and use only accessories provided by Lessor for use with the Equipment. Lessee shall make no alterations or additions to the Equipment, except those that will not result in the creation of any security interest, lien or encumbrance on the Equipment or impair the value or use of the Equipment either at the time made or at the e nd of the Rental Term of the applicable Schedule, and that are readily removable without damage to the Equipment. Any such alterations or additions may void the Worry-Free Service Plan. Additionally, Lessor shall not be responsible for any Equipment defect or failure of the Equipment to perform any specified function, or any other nonconformance of the Equipment caused by or attributable to (i) any modifica tion of the Equipment by the Lessee without prior written approval of Lessor; (ii) the use of the Equipment with any associated or complementary equipment accessory or software not specified by Lessor; (iii) any misuse or abuse of the Equipment: (iv) exposure of the Equ ipment to conditions beyond the environmental, power or operating constraints specified by Lessor; or (v) installation or wiring of the Equipment other than in accordance with Lessor’s instructions. LESSOR’S OBLIGATIONS DURING THE TERM WITH RESPECT TO THE
V3.2 (02-23-2024)-FMV Page 2 of 17
Agreement ZO02351598
EQUIPMENT ARE LIMITED TO THOSE DESCRIBED IN THE SERVICE PLAN. LESSOR EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EQUIPMENT.
7. EQUIPMENT OWNERSHIP; LOCATION. Lessor is the sole owner of the Equipment and has sole title thereto. Lessee may not relocate any Equipment from the Equipment location specified in the applicable Schedule without the prior written consent of Lessor.
8. RISK OF LOSS AND INSURANCE. Subject to Lessor’s obligations under the Service Plan, Lessee assumes any and all risk of loss or damage to the Equipment until such Equipment is returned to and received by Lessor in accordance with the terms and conditions of this Master Agreement. Lessee agrees to keep the Equipment insured at Lessee’s expense against all risks of loss from any cause wh atsoever, including, without limitation, loss by fire (including extended coverage) , theft and damage, in an amount not less than (a) the sum of all Rent and other amounts due and owing with respect to such Equipment for the duration of the applicable Rental Term, plus the estimated total retail price that would be paid for such Equipment in an arm’s length transaction (“Fair Market Value”) as of the actual date the Schedule expires or is terminated, as applicable (“Stipulated Loss Value”) or (b) with respect to any other Equipment , the replacement value thereof. Lessee also agrees that it shall carry commercial general liability insurance in an amount not less than $5,000,000 total liability per occurrence. Lessee shall cause Lessor and its affiliates, and its and their successors and assigns, to be named loss payees with respect to property insurance and additional insureds with respect to commercial general liability insurance. Each policy shall provide that the insurance cannot be canceled without at least thirty ( 30) days’ prior written notice to Lessor. In the event of loss or claim, L essee will be responsible for all deductibles and/or retentions. All insurance required by this Master Agreement shall include a waiver of rights of recovery against Lessor and its insurers by the Lessee and its insurers, as well as a waiver of subrogation against Lessor and its insurers.
All insurance required by this Master Agreement is primary and non-contributory to any other insurance maintained by Lessor. Lessee shall provide to Lessor (i) on or prior to the delivery date for each Schedule (“Delivery Date”), and from time to time thereafter throughout the Rental Term of each Schedule, certificates of insurance evidencing such insurance coverage, and (ii) upon Lessor’s request, copies of the insurance policies. If Lessee fails to provide Lessor with such evidence, then Lessor will have the right, but not the obligation, to purchase such insurance protecting Lessor at Lessee’s expense. Lessee’s expense shall include the full premium paid for such insurance and any customary charges, costs or fees of Lessor, including but not limited to deductibles and retentions in the event of loss. Lessee agrees to pay such amounts in substantially equal installments allocated to each Rent payment.
9. CASUALTY LOSS. Lessee shall notify Lessor of any condemnation, taking, loss, destruction, theft or damage beyond repair of Equipment (“Casualty Loss”) or repairable damage to any Equipment not later than five (5) days following the date of any such occurrence.
In the event any Casualty Loss shall occur, on the next Rent payment date Lessee shall pay Lessor the Stipulated Loss Value of the Equipment suffering the Casualty Loss. In the event of any repairable damage to any Equipment, the Rental Term shall continue with respect to such Equipment without any abatement of Rent and Lessee shall at its expense cause such Equipment to be repaired t o the condition it is required to be maintained in pursuant to Section 5 not later than thirty (30) days from the date of the occurrence.
10. INSPECTION. Lessor and Lessor’s agents shall have the right, from time to time, with prior notice to Lessee, during Lessee’s normal business hours, and without disruption to Lessee’s operations, to enter the premises where the Equipment is located for the purpose of inspecting the Equipment.
11. TAXES. Lessor shall report and pay all license and registration fees and all taxes, fees, levies, imposts, duties, assessments, char ges and withholdings of any similar nature, however designated (including, any value added, transfer, sales, use, gross receipts, business, occupation, excise, personal property, real property, stamp or other taxes) (“Taxes”) now or hereafter imposed or assessed by governmental body, agency or taxing authority upon the purchase, ownership, delivery, installation, leasing, rental, use or sale of the Equipment, the Rent or other charges payable hereunder, or otherwise upon or in connection with any Schedule, whether assessed on Lessor or Lessee, other than any such Taxes required by law to be reported and paid by Lessee (“Lessee Taxes”). Lessee shall within ten (10) days of receipt of invoice reimburse Lessor for all such Lessee Taxes paid by Lessor, together with any penalties or interest in connection therewith attributable to Lessee’s acts or failure to act, excluding: (a) Lessee Taxes on or measured by the overall gross or net income of Lessor, (b) as to any Schedule or the related Equipment, Lessee Taxes attributable to the period after the return of such Equipment to Lessor, and (c) Lessee Taxes imposed as a result of a sale or other transfer by Lessor of any portion of its interest in any Schedule or in any Equipment, except for a sale or other transfer to Lessee or a sale or other transfer occurring after and during the continuance of any Lessee Default.
12. GENERAL INDEMNITY. To the extent permitted by applicable law, Lessee shall indemnify, defend, and hold harmless Lessor, its employees, officers, directors, agents and assignees from and against any and all c laims arising out of or in connection the use of the Equipment (except to the extent that such claims are caused by a defect in the Equipment).
13. TAX BENEFIT INDEMNITY. Lessor and Lessee agree that Lessor is entitled to certain federal, state and local tax benefits available to an owner of Equipment (collectively, “Tax Benefits”). Lessee represents, warrants, and covenants to Lessor that (a) all Eq uipment will be used solely within the United States; and ( b) Lessee will take no position inconsistent with the assumption that Lessor is the owner of the Equipment for federal, state, and local tax purposes. If, due to any act or omission of Lessee or any party acting through Lessee, or the breach or inaccuracy of any representation, warranty or covenant of Lessee contained the Master Agreement, Lessor reasonably determines that it cannot claim, is not allowed to claim, loses or must recapture any or all of the Tax Benefits otherwise available wit h respect to the Equipment subject to any Schedule (a “Tax Loss”), then Lessee shall, promptly upon demand pay to Lessor an amount sufficient to provide Lessor the same after -tax rate of return and aggregate after -tax cash flow through the end of the then-applicable Rental Term of such Schedule that Lessor would have realized but for such Tax Loss except where the Lessor would not be entitled to such Tax Benefits.
14. LIMITATION OF LIABILITY. LESSEE EXPRESSLY AGREES THAT LESSOR SHALL NOT BE LIABLE UNDER ANY
THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY),
UNDER WARRANTY, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR
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Agreement ZO02351598
DAMAGE WHATSOEVER; DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF LESSEE'S MATERIAL, EQUIPMENT OR SYSTEMS; INCREASED COSTS OF ANY KIND, INCLUDING BUT NOT LIMITED TO CAPITAL COST, OR CLAIMS OF CUSTOMERS OF LESSEE. LES SEE EXPRESSLY AGREES THAT THE
REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND THAT UNDER NO CIRCUMSTANCES SHALL THE TOTAL
AGGREGATE LIABILITY OF LESSOR UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LESSOR UNDER THIS MASTER AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISIONS SET FORTH ELSEWHERE IN THIS MASTER AGREEMENT.
15. LESSEE REPRESENTATIONS AND COVENANTS. Lessee represents, warrants and covenants to Lessor that as of the date of this Master Agreement and for so long as this Master Agreement shall remain in effect: (a) all Equipment will be used by properly trained representatives of Lessee; (b) Lessee is duly organized and validly existing under applicable law in its jurisdiction of formation; (c) Lessee has the power and authority to enter into this Master Agreement; (d) the execution, delivery and performance of the Master Agreement by Lessee have been duly authorized; (e) the execution, delivery and performance of the Master Agreement by Lessee do not (1) conflict with any of Lessee’s organizational documents, ( 2) contravene, conflict with, constitute a default under or violate any laws applicable to the Lessee, ( 3) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any governmental authority by which Lessee or any of its subsidiaries or any of their property or assets may be bound or affected or (4) require any action by, filing, registration, or qualification with, or governmental approval from, any governmental authority not already obtained or completed; (f) the Master Agreement is enforceable against Lessee in accordance with its terms and such terms do not violate or create a default under any instrument or agreement binding on Lessee; (g) as of the date of its execution of this Master Agreement and as of the Delivery Date of any Equipment, there are no pending or threatened actions or proceedings before any court, administrative agency or other governmental authority related to this Master Agreement or the power or authority of Lessee to enter into this Master Agreement; (h) Lessee shall comply with the requirements of all applicable laws and regulations; (i) the Master Agreement shall be effective against all creditors of Lessee under applicable law, including fraudulent conveyance and bulk transfer laws, and shall raise no presumption of fra ud; (j) all financial statements and other related information furnished by Lessee shall fairly present Lessee’s financial position as of the dates given on such statements; (k) Lessee’s name set forth in the signature block below is Lessee’s full and accurate legal name; (l) Lessee’s form and jurisdiction of organization, “location” (within the meaning of UCC Section 9-307), organization number and federal tax identification number are as set forth on Exhibit D hereto. Lessee agrees to provide Lessor advance written notice of any change in any of the representations and covenants set forth in clauses (g) through (l) of this Section 15.
16. FORCE MAJEURE. If the performance of any obligation under this Agreement by Lessor is prevented, restricted, or interfered with by reason of war, civil commotion, disruption in the supply chain, acts of public enemies, blockade, embargo, strikes, any la w, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, which is beyond the reasonable control of the Lessor, then the Lessor shall, upo n giving prior written notice to the Lessee, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the Lessor shall use reasonable commercial efforts to avoid or remove such causes of non -performance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. The Lessor shall not be in default if any delay or failure to perform any obligation hereunder is caused by events beyond such party’s control.
17. LESSEE DEFAULT. Any of the following shall constitute a default by Lessee under this Master Agreement and all Schedules : (a) Lessee fails to pay any Rent payment or any other amount payable to Lessor under this Master Agreement or any Schedule on the date due; or (b) Lessee defaults on or breaches any of the other terms and conditions of the Master Agreement or any Schedules ; or (c) any representation or warranty made by Lessee in the Master Agreement proves to be incorrect, false or misleading when made or deemed made; or (d) any change occurs in relation to the business, management, ownership or financial condition of Lessee or any guarantor of all or any portion of Lessee’s obligations under the Master Agreement or any Schedule (“Guarantor”) that would have a material adverse effect on Lessee’s ability to perform its obligations under this Master Agreement or any Schedule or Guarantor’s ability to perform its obligations under its guaranty; or (e) Lessee or Guarantor dissolves or otherwise ter minates its existence, ceases to do business or becomes insolvent or fails generally to pay its debts as they become due; or (f) any Equipment is levied against, seized or attached; or (g) Lessee or Guarantor makes an assignment for the benefit of creditors; or (h) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency or receivership law is filed by or against Lessee or Guarantor (and, if such proceeding is involuntary, it is not dismissed within sixty ( 60) days after the filing thereof) or Lessee or Guarantor takes any action to authorize any of the foregoing matters; or (i) any letter of credit or guaranty issued in support of a Schedule is revoked, breached, cancelled or terminated (unless consented to in advance in writing by Lessor); or (j) any Guarantor fails to fulfill its obligations in favor of Lessor pursuant to its guaranty; or (k) Lessee merges or consolidates with any other corporation or entity, or sells, rents or disposes of all or substantially all of its assets without the prior written consent of Lessor (each a “Lessee Default”).
18. LESSOR REMEDIES. If a Lessee Default occurs, Lessor may, in its sole discretion, exercise one or more of the following remedies:
(a) declare all amounts due and to become due in the current year under any or all Schedules to be immediately due and payable; (b) terminate this Master Agreement or any Schedule; (c) take possession of, or render unusable, any Equipment wherever such Equipment may be located, without demand or notice and without any court order or other process of law, and no such action shall consti tute a termination of any Schedule; (d) require Lessee to deliver the Equipment to a location specified by Lessor or allow Lessor access to retrieve such Equipment; (e) terminate any other agreement that Lessor may have with Lessee; or ( f) exercise any other right or remedy available to Lessor at law or in equity. To the extent permitted by law, Lessee shall pay Lessor all costs and expenses that Lessor may incur to maintain, safeguard or preserve the Equipment, and other expenses incurred by Lessor in enforcing any of the terms, conditions or provisions of this Master Agreement (including legal fees and collection agency costs). Upon repossession or surrender of any Equipment, Lessor may rent, sell or otherwise dispose of the Equipment in a commercially reasonable manner, with or without notice and at public or
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private sale, and apply the net proceeds thereof to the amounts owed to Lessor hereunder . Any proceeds of any sale or rent of such Equipment in excess of the amounts owed to Lessor hereunder shall be retained by Lessor. Lessee agrees that with respect to any notice of a sale required by law to be given, ten ( 10) days’ notice shall constitute reasonable notice. Upon payment of all past due Rent and the Stipulated Loss Value together with interest at the rate of 1.5% per month (or such lesser rate as is the m aximum rate allowable under applicable law) from the date declared due until paid, Lessor will transfer to Lessee all of Lessor’s interest in the Equipment for which such Rent and Stipulated Loss Value has been paid, which transfer shall be on an “AS IS, W HERE IS” basis, without any warranty, express or implied, from Lessor, other than the absence of any liens or claims by or through Lessor. With respect to any exercise by Lessor of its right to recover and/or dispose of any Equipment, Lessee acknowledges and agrees as follows: (1) Lessor shall have no obligation, subject to the requirements of commercial reasonableness, to clean-up or otherwise prepare the Equipment for disposition, ( 2) Lessor may comply with any applicable state or Federal law requirements in connection with any disposition of the Equipment, and any actions taken in connection therewith shall not be deemed to have adversely affected the commercial reasonableness of any such disposition, and (3) Lessor may convey the Equipment on an “AS IS, WHERE IS” basis, and without limiting the generality of the foregoing, may specifically exclude or disclaim any and all warranties, including any warranty of title or the like with respect to the disposition of the Equipment, and no such conveyance or such exclusion or such disclaimer of any warranty shall be deemed to have adversely affected the commercial reasonableness of any such disposition. These remedies are cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise and may be enforced concurrently or separately from time to time.
19. TRUE LEASE; SECURITY INTEREST. LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES OTHERWISE GRANTED TO LESSEE BY UCC §§2A -508 THROUGH 2A-522 AS DEEMED APPLICABLE. If and to the extent that this Master Agreement is deemed a security agreement, Lessee hereby grants to Lessor, its successors and assigns, a security interest in all of Lessee’s rights under and interest in the Equipment, all additions to the Equipment, and all proceeds of the foregoing. Such security interest secures all obligations owing by Lessee to Lessor. Lessee authorizes Lessor and any assignee of all or any portion of Lessor’s interest in the Master Agreement (“Assignee”) to file UCC financing statements disclosing Lessor’s or Assignee’s interest in the Equipment and in an y “Additional Collateral” set forth in any Schedule. Lessee shall provide Lessor with at least forty-five (45) days’ prior written notice of any change to Lessee’s principal place of business, organization or incorporation.
20. ASSIGNMENT. Lessee shall not transfer, sublease, or assign any of its rights or obligations under the Master Agreement or any schedule.
21. TERMINATION. The Lessor may terminate this Agreement or any Schedule with thirty (30) days’ prior written notice, if the Lessee fails to meet its obligations under this Agreement or any Schedule, such as failure to make payments when due. The thirty (30) day period following the written notice shall serve as cure period and if such failure of Lessee to meet its obligations is not cured during this time, then this Agreement or any applicable Schedule shall be immediately terminated pursuant to Sections 4 and 5 of this Agreement.
22. NOTICES. All notices required or permitted to be given under this Master Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed via certified mail or a nationally recognized overnight courier service to the respective addresses set forth on Exhibit D hereto (or such other address or fax number as either party shall so notify the other).
23. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. This Master Agreement and each Schedule shall be governed by the internal laws (as opposed to conflicts of law provisions) of the Commonwealth of Massachusetts. Lessor and Lessee consent to the jurisdiction of any local, state or Federal court located within the Commonwealth of Massachusetts and waive any objection relating to improper venue or forum non-conveniens to the conduct of any proceeding in any such court. Lessee and lessor hereby expressly waive its right to a jury trial with respect to any action in connection with this Master Agreement.
24. CREDIT REVIEW AND ASSURANCES. Lessee consents to credit reviews by Lessor. Lessee agrees to promptly execute and deliver to Lessor such further documents and take such further action as Lessor may reasonably request in order to carry out the intent and purpose of this Master Agreement more effectively . Without limiting the generality of the foregoing, Lessee agrees (i) to furnish to Lessor from time to time, its certified financial statements, officer’s certificates and appropriate resolutions, opinions of counsel and such other information and documents as Lessor may reasonably request, and (ii) to execute and timely deliver to Lessor any documents that Lessor deems reasonably necessary under applicable law to perfect or protect Lessor’s security interest in the Equipment or to evidence Lessor’s ownership interest therein as the case may be; provided, however, that Lessee authorizes Lessor to file any such financing statement or any amendment or continuation thereof or other document without Lessee’s authentication to the extent permitted by applicable law; provided, however, Lessor agrees to file a release or termination of any such financing statement within thirty (30) days after the end of the total term for such Equipment. It is also agreed that Lessor or Lessor’s agent may, and is hereby authorized to, file as a financing statement, any rent document (or copy thereof, where permit ted by law) that Lessor deems appropriate to perfect or protect Lessor’s security interest in the Equipment or to evidence Lessor’s ownership interest therein, at Lessor’s cost and expense; provided, however, Lessor agrees to file a release or termination with respect to such financing statement or rent document within thirty (30) days after the end of the total term for such Equipment.
25. ENTIRE AGREEMENT; AMENDMENTS. This Master Agreement and all attachments including all Schedules together constitute the entire agreement between Lessor and Lessee relating to the leasing of the Equipment, and supersedes all prior agreements relating thereto, whether written or oral, and may not be amended or modified except in a writing signed by the parties hereto.
26. NO WAIVER. Any failure of Lessor to require strict performance by Lessee, or any written waiver by Lessor of any provision hereof, shall not constitute consent or waiver of any other breach of the same or any other provision hereof.
27. INVALIDITY. If any provision of this Master Agreement shall be prohibited by or invalid under law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Master Agreement and any such Schedule.
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28. COUNTERPARTS. This Master Agreement may be executed in counterparts, and, when so executed, each counterpart shall be deemed to be an original and such counterparts together shall constitute one and same instrument. The original of each Schedule shall constitute chattel paper for purposes of the UCC. If there are multiple originals of a Schedule, the one marked “Lessor’s Copy” or words of similar import shall constitute the only chattel paper.
29. SURVIVAL. All obligations of Lessee to make payments to, or to indemnify, Lessor and all rights of Lessor shall survive the cancellation or termination of this Master Agreement.
30. NON-APPROPRIATION. If Lessee is a state and/or a local government, Lessee represents that it has funds available to pay Rent until the end of it s then-current appropriation period, and that Lessee intends to request funds to make payments in each appropriation period from now until the end of the Rental Term. If either sufficient funds are not appropriated to make payments or any other amounts due under a Schedule (to the extent required by applicable law) is not renewed either automatically or by mutual ratification, the Schedule shall terminate and Lessee shall not be obligated to make payments under this Master Agreement or the Lease beyond the then -current fiscal year for which funds have been appropriated. Upon such an event, Lessee shall, no later than the end of the fiscal yea r for which payments have been appropriated or the term of this Lease has been renewed, deliver possession of the Equipment to Lessor in accordance with the provisions set forth in Section 5 of this Agreement with the exception that Equipment shall be returned within fourteen (14) days.
IN WITNESS WHEREOF, Lessee and Lessor have executed this Master Agreement on the dates specified below.
LESSEE: VALLEJO FIRE DEPT LESSOR: ZOLL MEDICAL CORPORATION
By:
By:
Name:
Title:
Name:
Title:
Date: Date:
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Agreement ZO02351598
EXHIBIT A
FORM OF EQUIPMENT SCHEDULE
Internal Reference Number: Q-99792 Version: 2
MASTER AGREEMENT SCHEDULE – No. 1
ZOLL Medical Corporation (“Lessor”) and Vallejo Fire Dept (“Lessee”) are parties to the Master Agreement. This Master Agreement Schedule (which shall be identified by the Counterpart Number specified above) and the Master Agreement together comprise a separate Lease between the parties. The terms and conditions of the Master Agreement are hereby incorporated by reference into this Schedule. All capitalized terms used in this Schedule without definition have the meanings ascribed to them in the Master Agreement.
1. LEASE SCHEDULE.
A. Description of Items of Leased Equipment are listed in Exhibit 1 hereto.
B. Rental Term: 120 Months
2. Rent Amount: $43,541.58 / Annually starting Net 30 days (excluding any applicable taxes) - Customer providing $500,000.00 down payment
Amount is payable: Annually
Lessee shall pay Lessor the Rent payment specified above for the length of the Rental Term within thirty (30) days after the delivery of the Equipment and monthly, quarterly or annually as set forth above, thereafter on the same date or on the last day of the calendar month if the month does not contain the same Delivery Date.
As used herein, “Replacement Period” shall mean the first 60 months of the Rental Term. Prior to the expiration of the Replacement Period, Lessee shall have the option to elect a one -time replacement of all the Equipment in a category. The replacement devices will be of the same configuration, in new condition and will be the same or newer platform. For example, if Lessee has leased ten defibrillators and ten ventilators, Lessee may elect to replace all ten defibrillators and all ten ventilators, all ten defibrillators and no ventilators or no defibrillators and all ten ventilators, but Lessee shall not be permitted to replace five defibrillators and/or five ventilators. If Lessee replaces Equipment, a second allotment of accessories and disposables will be provided, in the same quantity as the original Schedule , within ninety (90) days of the end of the Replacement Period . If accessories or disposables are not on the original quote and applicable Schedule, then the Lessee shall be financially responsible for new accessories and/or disposables.
For subsequent Equipment Schedules placed for new orders under the Master Agreement (“Subsequent Schedules”), the Replacement Period for such Subsequent Schedules will be adjusted to align with the end of the Replacement Period for the first Master Agreeme nt Schedule. For example, if the Rental Term of the first Schedule is from 01/2025 to 12/2034, then the Replacement Period for such Schedule would expire on 12/2029. If a Subsequent Schedule is entered into with a Rental Term from 05/2027 to 12/2034 because it would be coterminous with the Master Agreement and the Replacement Period for such Subsequent Schedule would still expire on 12/2029 (i.e., the Replacement Period expiration date aligns with the first Schedule) . No Subsequent Schedules shall be granted under the Master Agreement after the Replacement Period ends.
3. LEASE PACKAGE:
Lessee will return the Equipment under this program as set forth in Section 5 of the Master Agreement at the expiration or earlier termination of the Rental Term, whichever occurs first.
4. EQUIPMENT LOCATION(S):
1. _______________________________
2. _______________________________
3. _______________________________
4. _______________________________
5. LESSEE’S END-OF-LEASE-TERM.
Fair Market Value. This program package is structured as a Fair Market Value agreement. Upon expiration of the Rental Term, provided that the associated Schedule has not been terminated early by Lessor or Lessee is in accordance with the terms set forth in the Master Agreement, Lessee may purchase all (but not less than all) of the Equipment, for the Fair Market Value as set forth in Section 8 of the Master Agreement (plus all applicable Taxes), which amount shall be due and payable on or before the last day of the applicable Rental Term. If the Lessee fails to return the Equipment, Lessee shall be liable to return the Equipment in accordance with Section 5 of the Master Agreement. In the event Lessor and Lessee are unable to agree on the Fair Market Value of any Equipment, Lessor may (a) select an independent appraiser in its sole discretion to conclusively determine such amount with the cost of the appraiser paid by Lessor or (b) terminate the Schedule and request Lessee to return Equipment in accordance with Section 5 of the Master Agreement.
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6. ADDITIONAL SCHEDULE INSTRUCTIONS.
• Down Payment Amount - $500,000.00
LESSOR AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE EQUIPMENT DESCRIBED IN ATTACHMENT 1 OF THIS SCHEDULE. SUCH LEASE WILL BE GOVERNED BY THE MASTER AGREEMENT AND THIS SCHEDULE, INCLUDING THE TERMS AND CONDITIONS SET FORTH ABOVE. IN THE EVENT OF ANY CONFLICT
BETWEEN THE TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
IN WITNESS WHEREOF, Lessee and Lessor have executed this Master Agreement Schedule on the dates specified below.
LESSEE: VALLEJO FIRE DEPT LESSOR: ZOLL MEDICAL CORPORATION
By:
By:
Name:
Title:
Name:
Title:
Date: Date:
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ATTACHMENT 1 OF SCHEDULE
EQUIPMENT LIST
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Agreement ZO02351598
EXHIBIT B
ALS/BLS Software Solutions Master Application Service Provider Agreement (This EXHIBIT B only applies if RescueNet® CaseReview is included in the applicable quote)
1. Schedules. Lessor shall provide to Lessee the ASP Services, Implementation Services and Support Services identified in any Schedule under the ZOLL One Program Master Agreement (“Master Agreement”) in accordance with the terms of this ALS/BLS Software Solutions Master Application ( “ASP Agreement”). ASP Services are further defined in Section 2. Implementation Services are further defined in Section 3. Support Services are further defined in Section 4. The ASP Services, Implementation Services, and Support Services are each, and are collectively, “Services.” The terms and conditions set forth in this ASP Agreement shall only apply to Equipment leased under the associated Schedule and the Master Agreement . For the sake of clarity, these terms and conditions do not apply to any Lessor patient care reporting software, which would be purchased under a separate agreement.
2. ASP Services. “ASP Services” means the hosting and maintenance of Lessor software, as modified, updated, and enhanced (the “Underlying Software”), for remote electronic access and use by Registered Users on the website with a unique URL to be provided by Lessor to Lessee (the “Lessor Site”) in substantial conformity with the instructions for use, documentation and users manuals from time -to-time provided by Lessor (the “Documentation”), as listed in any Schedule for such services and before that Schedule has expired or been terminated in accordance with the Master Agreement. Lessee acknowledges that the ASP Services are only compatible with Lessor equipment that has been enabled and configured for use with the ASP Services in accordance with t he Documentation and only with the browser and other technical environment that supports the use of the ASP Services in accordance with the Documentation.
2.1. Provision of ASP Services. Subject to the terms and conditions of the Master Agreement, Lessor will use commercially reasonable efforts to make the ASP Services available to Lessee and Lessee’s employees, directors, principals, partners, consultants and agents authorized to use ASP Services on behalf of Lessee and registered through the Lessor Site for such use (“Registered Users”) through the Lessor Site over normal network connections in accordance with the Documentation, excepting downtime due to necessary maintenance and troubleshooting. Lessee, not Lessor, shall be responsible for controlling Registered Users and protection of confidentiality of its login identifications and passwords. Lessee acknowledges that (i) it is responsible for maintaining its interface and connectivity to the ASP Services and (ii) any facilities used for provision of the ASP Services may be owned or operated by Lessor , or a Lessor affiliate or a third party, or any combination of such facilities, as determined by Lessor. Lessee acknowledges that Lessor may modify and upgrade the ASP Services, on an ongoing basis, to improve or adapt the ASP Services. Without limiting the foregoing, Lessor will have the right, in its sole discretion, to develop, provide and market new, upgraded or modified ASP Services to Lessee, including adding, removing or modifying the functionality or features of the ASP Services accessible by Registered Users. Lessor will use commercially reasonable efforts to notify Lessee within a reasonable period of time prior to the implementation of such changes so that Lessee is reasonably informed of alterations to the ASP Services that will affect the ASP Services and Lessee’s use of them. Notwithstanding anything to the contrary in the Master Lessor may cease providing any ASP Services upon at least six months advance notice to Lessee.
2.2. Access Software. Subject to the terms and conditions of this ASP Agreement, Lessor grants to Lessee, during the Term, a non-exclusive, non-transferable, non-sublicensable license for Registered Users to access and use the ASP Services using the Lessor software that Registered Users may download at the Lessor Site to access the ASP Services, as modified, updated and enhanced (the “Access Software”), each as made available to Lessee through the Lessor Site, solely for Lessee’s internal business purposes and solely in accordance with the Documentation. Access Software and Underlying Software are, collectively, the “Software.”
2.3. Restrictions. Lessee shall not, and shall not permit any third party to: (a) use, reproduce, modify, adapt, alter, translate or create derivative works from the ASP Services, Software or Documentation ; (b) merge the ASP Services, Software or Documentation with other software or services; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer or allow access to the ASP Services, S oftware or the Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to alter or derive the Source Code for the ASP Services or Software; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices i ncluded in the ASP Services, Software or Documentation; or (f) otherwise use or copy the ASP Services, Software or Documentation in any manner not expressly permitted by the Master Agreement. Lessee agrees not to use the ASP Services in excess of its authorized login protocols. Lessee shall immediately notify Lessor of any unauthorized use of Lessee’s login ID, password or account or other breach of security. If Lessee becomes aware of any actual or threatened activity contemplated by the restrictions on use set forth in this section, Lessee will, and will cause Registered Users to, immediately take all reasonable measures necessary to stop the activity or threatened activity and to mitigate the effect of such activity including: (i) discontinuing and limiting any improper access to any data; (ii) preventing any use and disclosure of improperly obtained data; (iii) destroying any copies of improperly obtained data that may have been made on their systems; ( iv) otherwise attempting to mitigate any harm from s uch events; and (v) immediately notifying Lessor of any such event so that Lessor may also attempt to remedy the problem and prevent its future occurrence.
2.4. Service Level Targets.
2.4.1. Downtime. “Downtime,” expressed in minutes, is any time the ASP Services are not accessible to Registered Users.
2.4.2. Planned Downtime. “Planned Downtime” is Downtime during which ASP Services may not be available in order for Lessor to continue to provide commercially reasonable services, features and performance to its customers. Planned Downtime includes, but not limited to: (a) Standard Maintenance; and (b) Emergency Maintenance. “Standard Maintenance” is performed when upgrades or system updates are desirable. “Emergency Maintenance” is performed when a critical system update must be applied quickly to avoid significant Downtime . Standard Maintenance may be performed weekly on Monday and Wednesday between the hours of 7 p.m. to 11 p.m. in Broomfield, Colorado . Lessor will provide Lessee with notice at least 24 hours in advance of Standard Maintenance.
2.4.3. Excused Downtime. “Excused Downtime” time is Downtime caused by: (a) services, software or hardware provided by anyone or any entity other than Lessor, (b) software, services or systems operating outside of a Lessor Site, including any software or systems operating on a Lessee’s premises (including Lessor software); (c) a Force Majeure Event or (d) Lessee's failure to comply with its obligations under the Master Agreement or use of the ASP Services in ways that were not intended.
2.4.4. U nplanned Downtime . Unplanned Downtime in a calendar month is expressed as a percentage calculated as follows:
(Downtime - (Planned Downtime + Excused Downtime)) x 100 = x %, where “x” is Unplanned Downtime. Total number of minutes in the calendar month
2.4.5. Unplanned Downtime Goal. Lessor endeavors to provide the ASP Services such that there is less than 1% of Unplanned Downtime in a calendar month (the “Unplanned Downtime Goal”). The ASP Services covered by the Unplanned Downtime Goal are those for which Lessee has paid all Fees when due and is using in the course of carrying out its normal business operations in accordance with this ASP Agreement and the Master Agreement.
2.4.6. Revocation of Administrative Rights. Notwithstanding anything to the contrary in th is ASP Agreement, Lessor may revoke administrative rights, including database access rights, if the use of any such rights results in Downtime.
2.4.7. Lessee Content; Security.
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2.4.7.1. Lessee Content. As between Lessor and Lessee, Lessee will retain all right, title and interest in and to all data, information or other content provided by Lessee in its use of the ASP Services (“Lessee Content”); provided, however, that Lessor may de-identify Lessee Content and use it for any lawful purpose not prohibited by HIPAA.
2.4.7.2. Security. Subject to Lessee’s obligations under this ASP Agreement, Lessor will implement commercially reasonable security measures within the ASP Services in an attempt to prevent unlawful access to Lessee Content by third parties . Such measures may include, where appropriate, use of updated firewalls, commercially available virus screening software, logon identification and passwords, encryption, intrusion detecti on systems, logging of incidents, periodic reporting, and prompt application of current security patches and virus definitions.
2.4.7.3. Retention of Lessee Content. Although Lessor will use commercially reasonable efforts to maintain the integrity of the Lessee Content, to back up the Lessee Content, and to provide full and ongoing access to the ASP Services, loss of access to the ASP Services and loss of Lessee Content may occur.
Lessee will be responsible for compliance with all records retention requirements applicable to Lessee. Lessor will not be responsible for any loss, corruption of or inaccessibility of the Lessee Content due to interruption in the ASP Services or otherwise arising out of circumstances not within Lessor’s control.
2.4.7.4. Availability of Lessee Content. It is Lessee’s responsibility to maintain any Lessee Content that it requires for archival purposes, ongoing management of its operations and compliance with applicable records retention requirements. Unless specified otherwise in the Master Agreement, Lessor will store Lessee Content, other than Inactive Lessee Content as defined below (the “ Active Lessee Content”), in Lessor’s working data set until the earlier of (i) five years (calculated from the date of creation of such Lessee Content, or Lessor’s receipt of such Lessee Content, whichever is later) or (ii) the expiration or termination of this ASP Agreement or the Schedule under which such Active Lessee Content was stored (the “ Active Retention Period”). Upon the expiration of the Active Retention Period, Lessor will notify Lessee in writing and will provide Lessee the option, which Lessee shall exercise by informing Lessor in writing, within 30 days of receiving the notice, that either (a) Lessee wishes to receive Active Lessee Content in a database determined by Lessor in its sole and absolute discretion (a “Database”), or (b) Lessee will pay Lessor, at Lessor’s then-current storage rates and upon Lessor’s then-current terms and conditions, to continue to store the Active Lessee Content. If Lessee fails to exercise one of the foregoing options within such 30-day period, Lessor will have the right to destroy the Active Lessee Content. During the time Lessor stores Lessee Content for Lessee hereunder, Lessor may periodically identify Lessee Content that has had no activity associated with it for at least 180 days (“Inactive Lessee Content”) and will notify Lessee in writing of its intent to remove the Inactive Lessee Content from Lessor’s working data set and destroy such data, unless Lessee requests, in writing, within 30 days of receiving the notice from Lessor, that either (z) Lessee wishes to receive the Inactive Lessee Content in a Database, or (y) Lessee will pay Lessor, at Lessor’s then-current storage rates and upon Lessor’s then-current terms and conditions, to continue to store such Inactive Lessee Content. If Lessee fails to exercise one of the foregoing options within such 30 - day period, Lessor will have the right to destroy the applicable Inactive Lessee Content in its possession or under its control . Except for this Section 3.4.7.4, the terms of Section 3.4 (including, without limitation, the Unplanned Downtime Goal) do not apply to Lessee’s access of Inactive Lessee Content. Lessee represents, warrants and agrees that it (A) is solely responsible for determining the retention period applicable to it with respect to Lessee Content maintained by Lessor; (B) has consulted with or has had the opportunity to consult with legal, information governance or records management profe ssionals; and (C) is not relying upon Lessor to assist with determining the records maintenance or retention requirements applicable to it.
2.4.8. M odifications. Changes to this Section 2.4 may be made from time to time at Lessor’s sole discretion. Lessee will be notified of any such changes that are material.
3. Implementation Services . Lessor shall provide ASP Service s implementation, training and any related services identified in a Schedule (the “Implementation Services”). Lessee shall, in a timely manner and at its own expense, cooperate and provide or make available to Lessor access to the Lessee’s premises, systems, telephone, terminals and facsimile machines and all relevant information, documentation and staff reasonably required by Lessor to enable Lessor to perform the Implementation Services. Lessee acknowledges that any time frames or dates for completion of the Implementation Services set out in a Schedule are estimates only and the ability to meet them is influenced by a range of factors including, without limitation, response times and level of cooperation of Lessee. Any obligations as to time are therefore on a “reasonable efforts” basis only and Lessor shall not be liable for failure to meet time frames or completion dates unless solely due to Lessor’s gross negligence.
4. Support Services. Lessor shall provide the following Support Services for ASP Services , except that Lessor will have no obligation to provide such Support Services if any payments are past due.
4.1. Support.
4.1.1. Emergency Support. Lessor shall provide telephone support to Lessee for 24 hours a day, 7 days a week, to address Errors that prevent Lessee from using Supported ASP Services for a purpose for which Lessee has an immediate and material need. “Supported ASP Services” means the ASP Services for which Lessee has paid the then-current Fees. “Supported Environment” means a browser and other technical environment that supports the use of the ASP Services in accordance with the Documentation. “Error” means a reproducible defect in the Supported ASP Services when operated in accordance with the Documentation in a Supported Environment that causes the Supported ASP Services not to operate substantially in accordance with such Documentation.
4.1.2. Technical Support. Lessor shall provide telephone support to Lessee during 6 a.m. to 6 p.m. Eastern Time, Monday to Friday, excluding Lessor holidays (“Business Hours”) to address all other Errors relating to any Supported ASP Services. Such telephone support will include (i) clarification of functions and features of the Supported ASP Services; (ii) clarification of the Documentation; (iii) guidance in operation of the Supported ASP Services; (iv) assistance in identifying and verifying the causes of suspected Errors in the Supported ASP Services ; and (v) advice on bypassing identified Errors in the Supported ASP Services, if reasonably possible. Responses to such reporting shall be provided at a minimum within twenty-four (24) hours during Business Hours.
4.1.3. Resolution. Lessor shall use commercially reasonable efforts to provide a modification or workaround to Supported ASP Services that resolves an Error in all material respects (“Resolution”).
4.1.4. Expenses. Support Services provided hereunder shall be provided from Chelmsford, Massachusetts or Broomfield, Colorado, as determined in Lessor’s sole discretion. Should Lessee request that Lessor send personnel to Lessee’s location to resolve any Error in the Supported ASP Services, Lessor may charge Lessee a fee of $2,500 for each day Lessor personnel is at Lessee’s location.
4.1.5. Exceptions. Lessor shall have no responsibility under this ASP Agreement to fix any Errors arising out of or related to the following causes: (a) Lessee’s modification or combination of the Access Software (in whole or in part), (b) use of the Supported ASP Services in an environment other than a Supported Environment; or (c) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished b y Lessor; excessive heating; fire and smoke damage; operation of the Supported ASP Services with other media and hardware, software or telecommunication interfaces; or causes other than ordinary use. Any corrections performed by Lessor for such Errors shall be made, in Lessor ’s reasonable discretion, at Lessor ’s then-current time and material charges. Lessor will provide the Support Services only for the most current release and the one immediately preceding major release of any Access Software. Notwithstanding anything to the contrary in the Master Agreement, (i) Lessor may cease providing Support Services for any ASP Services upon at least six (6) months advance notice to Lessee of such cessation and (ii) Support Services do not cover Third Party Products or Services (defined below).
4.2. Conditions and Limitations. Lessee shall provide Lessor with access to Lessee’s personnel and its equipment. This access must include the ability to remotely access the equipment on which the Supported ASP Services are operating and to obtain the same access to the equipment as those of Lessee ’s employees having the highest privilege or clearance level. Lessor will inform Lessee of the specifications of the remote access methods available and associated software needed, and Lessee will be responsible for the costs and use of said equipment. Fees for third party software and services are set by the owner of such software.
5. Warranties.
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5.1. Implementation Services and Support Services. Subject to Lessee being current with its payments under the Master Agreement, any Implementation Services or Support Services provided to Lessee will be performed with due care in a professional and workmanlike manner. Lessor shall perform the Implementation Services or Support Services again if Lessor was unsuccessfully in completing the Implementation Services and/or Support Services. Lessee shall notify the Lessor in writing within thirty (30) days following performance of the unsuccessful Implementation Services or Support Services, specifying the nature of the unsuccessful services in reasonable detail.
5.2. ASP Services and Access Software. Subject to the Lessee being current with payments under the Master Agreement, Lessor states with respect to any ASP Services that (i) Lessor has the right to license the Access Software and Documentation and make the ASP Services available to Lessee pursuant to this ASP Agreement and (ii) the ASP Services, when used as permitted and in accordance with the Documentation, will materially conform to the Documentation.
Lessor does not warrant that Lessee’s use of the ASP Services will be error free or uninterrupted. Lessee will notify Lessor in writing of operating issues with respect to any ASP Services prior to the expiration or termination of the associated Schedule for such ASP Services. If Lessor is unable to provide a correction or workaround pursuant to the terms governing the provision of the ASP Services after using commercially reasonable efforts, Lessor may terminate such Schedule upon written notice to Lessee. Any such correction or workaround shall not extend the term of such Schedule. This Section 5.2 sets forth Lessee’s exclusive remedy, and Lessor’s entire liability, for operating issues for the ASP Services contained herein.
5.3. W arranty Disclaimers. The remedies for the Software and Services are solely and expressly as set forth in Section 5.1 and Section 5.2 and are expressly qualified, in their entirety, by this Section 5.3. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 AND SECTION 5.2, (A) THE SOFTWARE AND SERVICES ARE PROVIDED STRICTLY “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, WRITTEN OR ORAL; (B) LESSOR DOES NOT PROMISE THAT THE SOFTWARE OR SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT THEY ARE SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER, REGISTERED USERS OR ANY THIRD PARTY;
AND (C) LESSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE IN TRADE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO
WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS ASP AGREEMENT, AND THAT NO WARRANTIES ARE MADE BY ANY OF LESSOR’S LICENSORS OR SUPPLIERS WITH RESPECT TO THIRD PARTY PRODUCTS OR SERVICES. Lessee acknowledges and agrees that, in entering into this ASP Agreement, it has not relied upon the future availability of any new or enhanced feature or functionality, or any new or enhanced product or service, including, without limitation, updates or upgrades to Lessor’s existing products and services. Lessor’s performance obligations hereunder are limited to those expressly enumerated herein, and payment for Lessor’s performance obligations shall be due as described herein.
6. C onfidentiality. Neither party will use any trade secrets, information, or other material, tangible or intangible, that relates to the business or technology of the other party and is marked or identified as confidential or is disclosed in circumstances that would lead a reasonable person to believe such information is confidential (“ Confidential Information”) for any purpose not expressly permitted by this ASP Agreement, and will further disclose the Confidential Information of the party disclosing it (“Disclosing Party”) only to the employees or contractors of the party receiving it (“Receiving Party”) who have a need to know such Confidential Information for purposes of this ASP Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized us e, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The ASP Services, Software and Documentation shall be Lessor ’s Confidential Information (including without limitation any routines, subroutines, directories, t ools, programs, or any other technology included in the Software), notwithstanding any failure to mark or identify it as such. The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate when and to the extent the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under this ASP Agreement in connection with a legal proceeding; or (ii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such disclosure.
7. Indemnification.
7.1. By LESSOR. Lessor will defend, at its own expense, any action against Lessee or its or any of its agents, officers, director, or employees (“ Lessee Parties”) brought by a third party alleging that any Software or Services infringe any U.S. patents or any copyrights or misappropriate any trade secrets of a third party, and Lessor will pay those costs and damages finally awarded against the Lessee Parties in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Lessee: (a) notifying Lessor promptly in writing of such claim or action; (b) giving Lessor sole control of the defense thereof and any related settlement negotiations; and (c) cooperating with Lessor and, at Lessor’s request and expense, assisting in such defense. If any of the Software or Services become, or in Lessor ’s opinion is likely to become, the subject of an infringement claim, Lessor may, at its sole option and expense, either: (i) procure for Lessee the right to continue using such Software or Services; (ii) modify or replace such Software or Services with substantially similar software or services so that such Software or Services becomes non- infringing; or (iii) terminate this ASP Agreement, in whole or in part. Notwithstanding the foregoing, Lessor will have no obligation under this Section 7.1 or otherwise with respect to any infringement claim based upon: (1) use of any of the Software or Services not in accordance with this ASP Agreement; (2) any use of any Software or Services in combination with products equipment, software, services or data not supplied by Lessor if such infringement would have been avoided but for the combination with other products, equipment, software, services or data; (3) the failure of Lessee to implement any replacements, corrections or modifications made available by Lessor for any Software or Services including, but not limited to, any use of any release of the Software other than the most current release made commercially available by Lessor ; (4) any Lessee Content; or (5) any modification of any Software or Services or use thereof by any person other than Lessor or its authorized agents or subcontractors. This Section 8 states Lessor’s entire liability and the exclusive remedy for any claims of infringement.
7.2. By Lessee. Lessee shall indemnify, defend and hold Lessor and its agents, officers, directors and employees (the “Lessor Parties”) harmless from and against any and all liabilities, losses, expenses, damages and claims (collectively, “Claims”) that arise out of the following except to the extent the Claims are due to the gross negligence, intentional misconduct or breach of this ASP Agreement by the Lessor Parties: (i) information provided to any of the Lessor Parties by any of the Lessee Parties; (ii) any of the Lessee Parties’ use or misuse of any of the Software or Services, including without limitation in combination with Lessee’s software or services or third party software or services; (iii) any modifications made by any of the Lessee Parties to any of the Software or Services; (iv) infringement by any of the Lessee Parties of any third party intellectual property right; (v) Taxes (other than taxes based on Lessor’s net income) and any related penalties and interest, arising from the payment of the Fees or the delivery of the Software and Services to Lessee; and (ix) any violation of laws or regulations, including without limitation applicable export and import control laws and regulations in the use of any of the Software or Services, by any of the Lessee Parties.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL LESSOR OR ITS AFFILIATES,
SUBCONTRACTORS OR SUPPLIERS, OR ANY OF THEIR OFFICERS OR DIRECTORS, BE LIABLE, EVEN IF ADVISED OF THE POSSIBILITY, FOR: (i) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), (ii) LOSS OF PROFIT, DATA, BUSINESS OR
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GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR (iii) ANY LOSSES, COSTS OR DAMAGES ASSOCIATED WITH CUSTOMER’S PRODUCTS OR OTHER ELEMENTS INCORPORATED OR USED THEREWITH WHICH WERE NOT PROVIDED BY LESSOR OR WITH RESPECT TO ANY MODIFICATIONS MADE TO THE SOFTWARE OR SERVICES OR MISUSE OF THE SOFTWARE OR SERVICES.
LESSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, WILL NOT EXCEED THE PRO -RATED PORTION AMOUNT PAID TO LESSOR BY CUSTOMER FOR THE SOFTWARE AND SERVICES PROVIDED UNDER THIS ASP AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. Lessee acknowledges that these limitations reflect the allocation of risk set forth in this ASP Agreement and that Lessor would not enter into this ASP Agreement without these limitations on its liability. Lessee agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The remedies in this ASP Agreement are Lessee’s sole and exclusive remedies. In addition, Lessor disclaims all liability of any kind of Lessor’s licensors and suppliers, for third party products or services, and for the actions or omissions of Lessee’s representatives.
9. Ownership. All right, title and interest, including but not limited to all existing or future copyrights, trademarks, service marks, tra de secrets, patents, patent applications, know how, moral rights, contract rights, and proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing, in and to the following are the exclusive property of Lessor (or, as the case may be, its subsidiaries, licensors and suppliers): (i) ASP Services, Software, Documentation, and all proprietary technology used by Lessor to perform its obligations under this ASP Agreement; (ii) all software, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that Lessor makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services; (iii) the fully compiled version of any of the forego ing software programs that can be executed by a computer and used witho ut further compilation (the “ Executable Code”); (iv) the human readable version of any of the foregoing software programs that can be compiled into Executable Code (the “ Source Code”); and (v) all enhancements, modifications, improvements and derivative works of each and any of the foregoing (the “Lessor Property”). If any derivative work is created by Lessee from the Software or Services, Lessor shall own all right, title and interest in and to such derivative work. Any rights not expressly granted to Lessee hereunder are reserved by Lessor.
10. Term and Termination.
10.1. Term. The term of this ASP Agreement (“Term”) begins on the effective date of the associated Schedule incorporating this ASP Agreement and continues until it is terminated. The term of each associated Schedule begins on the effective date of such Schedule and continues until it expires or is terminated.
10.2. Termination. Either party may terminate this ASP Agreement without cause upon thirty (30) days’ prior written notice to the other party. Either party may terminate this ASP Agreement if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure suc h default within twenty (20) days after written notice from the non-defaulting party. This ASP Agreement may not extend beyond the term of the associated Schedule.
10.3. Effects of Termination. Upon expiration or termination of this ASP Agreement for any reason: (a) all amounts, if any, owed to Lessor for ASP Service or the associated Schedule that has expired or been terminated (the “Expired or Terminated Document”) before such termination or expiration will become immediately due and payable; (b) Lessee’s right to access the ASP Services, and all licensed rights granted, in the Expired or Terminated Document will immediately terminate and cease to exist; and (c) Lessee must (i) promptly discontinue all use of any ASP Services provided under the Expired or Terminated Document (ii) erase all copies of Access Software, if any, from Lessee’s computers and the computers of its customers and return to Lessor or destroy all copies of such Access Software and related Documentation on tangible media in Lessee’s possession and (iii) return or destroy all copies of the Documentation in Lessee’s possession or control; (d) each party shall promptly discontinue all use of the other party’s Confidential Information disclosed in connection with the Expired or Terminated Document and return to the other party or, at the other party’s option, destroy, all copies of any such Confidential Information in tangible or electronic form.
11. General Provisions.
11.1. Compliance with Laws. Lessee shall comply with all applicable laws and regulations, and obtain required authorizations, concerning its use of the ASP Services, including without limitation if applicable all export and import control laws and regulations. Lessee will not use any ASP Services for any purpose in violation of any applicable laws. Lessor may suspend performance if Lessee violated applicable laws or regulations.
11.2. Audits and Inspections. Upon written request from Lessor, Lessee shall furnish Lessor with a certificate signed by, at least, Vice President level executive of Lessee stating that the ASP Services are being used strictly in accordance with the terms and conditions of this ASP Agreement. During the Term and for a period of six months following the termination or expiration of this ASP Agreement, upon prior written notice, Lessor will have the right, during normal business hours, to inspect, or have an independent audit firm inspect, Lessee’s records relating to Lessee’s use of the ASP Services to ensure it is in compliance with the terms of this ASP Agreement.
11.3. Assignments. Assignment terms are set forth in the Master Agreement and shall also apply to this ASP Agreement.
11.4. U.S. Government End Users. If Lessee is a branch or agency of the United States Government, the following provision applies. The Software and Documentation are composed of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R.
12.212 (SEPT 1995) and are (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202 1 (JUN 1995) and 227.7202 3 (JUN 1995).
11.5. Notices. All notices, consents, and approvals under this ASP Agreement shall be the same terms as set forth in the Master Agreement.
11.6. Governing Law and Venue; Waiver of Jury Trial . This ASP Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this ASP Agreement. Any action or proceeding arising from or relating to this ASP Agreement shall be brought in a federal or state court in the Commonwealth of Massachusetts, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
Each party hereby knowingly, voluntarily, and intentionally waives any right it may have to a trial by jury in respect of any litigation arising out of or in connection with this agreement.
11.7. Remedies. Except as otherwise expressly provided in this ASP Agreement, the parties’ rights and remedies under this ASP Agreement are cumulative.
Lessee acknowledges that the Software and Services are built on valuable trade secrets and proprietary information of Lessor , that any actual or threatened breach hereof will constitute immediate, irreparable harm to Lessor for which monetary damages would be an inadequate remedy, and that Lessor will be entitled to injunctive relief for such breach or threatened breach. Lessee further agrees to waive and hereby waives any requirement for the security or the posting of any bond in connection with such remedies. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach but shall be in addition to all other remedies available at law or equity to Lessor.
11.8. Waivers. Any waiver or failure to enforce any provision of this ASP Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.9. Severability. If any provision of this ASP Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the r emaining provisions of this ASP Agreement will continue in full force and effect. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this ASP Agreement, and this ASP Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
11.10. Independent Contractors. The parties are entering into, and will perform, this ASP Agreement as independent contractors. Nothing in this ASP Agreement will be construed to make either party the agent of the other for any purpose whatsoever, to authorize either party to enter into any contract or assume any obligation on behalf of the other or to establish a partnership, franchise or joint venture between the parties.
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11.11. Third Parties. If Lessee engages a third-party provider (“Third Party Provider”) to deliver products or services, including without limitation software, integrated into or receiving data from or accessing the ASP Services (“Third Party Products or Services”), Lessee represents, warrants and agrees that: (i) Lessee is solely responsible for any amounts owed to Third Parties Provider, (ii) Lessor shall have no liability, and makes no representation, with respect to such Third Party Products or Services; and (iii) the Third Party Provider shall not be an agent of Lessor. To the extent the ASP Services or Software contains software owned by a third party for which Lessor has a license agreement with a third party, the ASP Services and Software and all rights granted hereunder are expressly limited by and subject to any license agreements Lessor may have for such software.
11.12. Force Majeure. Neither party shall be liable for failure of performance hereunder arising out of causes beyond such party’s reasonable contr ol and without such party’s fault or negligence, including, but not limited to, failure of its suppliers to timely deliver acceptable parts or services, any act or omission of Lessee that interferes with or impedes Lessor’s performance hereunder, acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures (a “Force Majeure Event”).
11.13. Amendment; No Third-Party Beneficiaries; Survival. This ASP Agreement may not be amended or changed, or any provision hereof waived except in writing signed by both parties. Any different or additional terms in any purchase order, confirmation or similar form issued or otherwise provided by Lessee but not signed by an authorized representative of Lessor shall have no force or effect. There are no third -party beneficiaries of this ASP Agreement. Those provisions of this ASP Agreement that may be reasonably interpreted as surviving termination of this ASP Agreement or the survival of which is necessary for the interpretation or enforcement of this ASP Agreement shall continue in full force and effect in accordance with their terms notwithstanding the termination hereof including, but not limited to, Section 6 (Confidentiality), Section 7 (Indemnification), Section 8 (Limitation on Liability), Section 9 (Ownership), Section
10.3 (Effects of Termination) and Section 11 (General Provisions). This ASP Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
12. H IPAA. This Section 12 applies if and to the extent that Lessor creates, receives, maintains or transmits, directly or indirectly, any protected health information of Lessee (“PHI”) in the course of providing Software or Services to Lessee. Capitalized terms used but not defined in this Section 12 have the meanings assigned to them elsewhere in the ASP Agreement or, if not defined therein, as defined in the Health Insurance Portability and Accountability Act of 1996 (P.L. 104 191), 42 U.S.C. Section 1320d, et seq. , and regulations promulgated thereunder, as amended from time to time (such statute and regulations collectively referred to as “HIPAA”). “Covered Entity” as used herein means Lessee. “Business Associate” as used herein means Lessor. The purpose of this Section 12 is to comply with 45 C.F.R. §164.502(e) and §164.504(e), governing PHI and business associates under HIPAA
12.1. Applicability. This Section 12 applies if and to the extent that Business Associate creates, receives, maintains or transmits, directly or indirectly, any PHI in the course of providing Software or Services to Covered Entity.
12.2. C ompliance and Agents. Business Associate agrees that, to the extent it has access to PHI, Business Associate will fully comply with the requirements of this Section 12 with respect to such PHI. Business Associate will ensure that every agent, including a subcontractor, of Business Associate to whom it provides PHI received from, or created or received by Business Associate on behalf of, Covered Entity will comply with the same restrictions and conditions as set forth herein.
12.3. Use and Disclosure; Rights. Business Associate agrees that it shall not use or disclose PHI except as permitted under this ASP Agreement, and in compliance with each applicable requirement of 45 CFR Section 164.504(e). Business Associate may use or disclose the PHI rece ived or created by it, (a) to perform its obligations under this ASP Agreement, (b) to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Master Agreement, or (c) to provide data aggregation functions to Covered Entity as permitted by HIPAA. Further, Business Associate may use the PHI received by it in its capacity as Business Associate, if necessary, to properly manage and administer its business or to carry out its legal responsibilities. Business Associate may disclose the PHI received by it in its capacity as Business Associate to properly manage and administer its business or to carry out its legal responsibilities if: (a) the disclosure is required by law, or (b) the Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it is disclosed to the person and the person notifies Business Associate of any instances of which it is aware that the confidentiality of the information has been breached. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity.
12.4. Safeguards. Business Associate agrees to develop, document, use, and keep current appropriate procedural, physical, and electronic safegu ards, as required in 45 C.F.R. §§164.308 - 164.312, sufficient to prevent any use or disclosure of electronic PHI other than as pe rmitted or required by this ASP Agreement.
12.5. Minimum Necessary. Business Associate will limit any use, disclosure, or request for use or disclosure to the minimum amount necessary to accomplish the intended purpose of the use, disclosure, or request.
12.6. Report of Improper Use or Disclosure. Business Associate shall report to Covered Entity any information of which it becomes aware concerning any use or disclosure of PHI that is not permitted by this ASP Agreement and any security incident of which it becomes aware. Business Associate will, following the discovery of a breach of “unsecured protected health information,” as defined in 45 C.F.R. § 164.402, notify Covered Entity of such breach within 15 days. The notice shall include the identification of each individual whose unsecured protected health information has been or is reasonably believed by Business Associate to have been, accessed, acquired, or disclosed during such breach. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of this ASP Agreement.
12.7. Individual Access. In accordance with an individual’s right to access to his or her own PHI in a designated record set under 45 CFR §164.524 and the individual’s right to copy or amend such records under 45 CFR §164.524 and §164.526, Business Associate shall make available all PHI in a designated record set to Covered Entity to enable the Covered Entity to provide access to the individual to whom that information pertains or such individual’s representative.
12.8. Amendment of and Access to PHI. Business Associate shall make available for amendment PHI in a designated record set and shall incorporate any amendments to PHI in a designated record set in accordance with 45 CFR §164.526 and in accordance with any process mutually agreed to by the parties.
12.9. Accounting. Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to an individual’s request for an accounting of disclosures of their PHI in accordance with 45 CFR §164.528. Business Associate agrees to make available to Covered Entity the information needed to enable Covered Entity to provide the individual with an accounting of disclosures as set forth in 45 CFR §164.528.
12.10. DHHS Access to Books, Records, and Other Information. Business Associate shall make available to the U.S. Department of Health and Human Services (“DHHS”), its internal practices, books, and records relating to the use and disclosure of PHI received from or created or received by Business Associate on behalf of, Covered Entity for purposes of determining the Covered Entity’s compliance with HIPAA.
12.11. Individual Authorizations; Restrictions. Covered Entity will notify Business Associate of any limitation in its notice of privacy practices, any restriction to the use or disclosure of PHI that Covered Entity has agreed to with an individual and of any changes in or revocation of an authorization or other permission by an individual, to the extent that such limitation, restriction, change, or revocation may affect Business Associate’s use or disclosure of PHI.
12.12. HITECH Act Compliance. Covered Entity and Business Associate agree to comply with the amendments to HIPAA included in the Health Information Technology for Economic and Clinical Health Act (the “ HITECH Act”), including all privacy and security regulations issued under the HITECH Act that apply to Business Associate.
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Agreement ZO02351598
12.13. Breach; Termination; Mitigation. If Covered Entity knows of a pattern of activity or practice of Business Associate that constitutes a material breach or violation of Business Associate’s obligations under this Section 12, Covered Entity and Business Associate shall take any steps reasonably necessary to cure such breach and make Business Associate comply, and, if such steps are unsuccessful, Covered Entity may terminate this ASP Agreement. Business Associate shall take reasonable actions available to it to mitigate any detrimental effects of such violation or failure to comply.
12.14. R eturn of PHI. Business Associate agrees that upon termination of this ASP Agreement, and if feasible, Business Associate shall (a) return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, that Business Associate has continued to maintain in any form or manner and retain no copies of such information or, (b) if such return or destruction is not feasible, immediately notify Covered Entity of the reasons return or destruction are not feasible, and extend indefinitely the protection of this Section 12 to such PHI and limit further uses and disclosures to those purposes that make the return or destruction of the PHI not feasible.
12.15. De-identified Health Information. Business Associate may de-identify any and all PHI and may create a “Limited Data Set ” in accordance with 45 C.F.R. § 164.514(b) & (e). Covered Entity acknowledges and agrees that de -identified information is not PHI and that Business Associate may use such de - identified information for any purpose not prohibited by HIPAA. Use or disclosure of a Limited Data Set must comply with 45 CFR 164.514(e).
12.16. Survival. All representations, covenants, and agreements in or under this Section 12 shall survive the execution, delivery, and performance of this ASP Agreement.
12.17. F urther Assurances; Conflicts. Each party shall in good faith execute, acknowledge or verify, and deliver any and all documents which may from time to time be reasonably requested by the other party to carry out the purpose and intent of this Section 12. The terms and conditions of this Section 12 will override and control any expressly conflicting term or condition of the Master Agreement. All non-conflicting terms and conditions of the Master Agreement shall remain in full force and effect. Any ambiguity shall be resolved in a manner that will permit Covered Entity to comply with HIPAA. For the avoidance of doubt, a limitation on liability in the Master Agreement does not conflict with this Section 12.
12.18. Applicable Law. The parties acknowledge and agree that HIPAA may be amended and additional guidance or regulations implementing HIPAA may be issued after the date of the execution of this ASP Agreement and may affect the parties’ obligations hereunder. The parties agree to take such action as is necessary to amend this ASP Agreement from time in order as is necessary for Covered Entity to comply with HIPAA.
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Agreement ZO02351598
EXHIBIT C
Worry-Free Service Plan
(This EXHIBIT C only applies if Worry-Free Service Plan is included in the applicable quote)
WORRY-FREE SERVICE PLAN
The following repair services are included under the Worry-Free Service Plan (“Worry-Free”). Should Equipment be deemed unrepairable, based on Lessor’s generally accepted technical support practices, replacement of such Equipment shall be the responsibility of Lessee.
1. Field Preventive Maintenance at Lessee’s facility, including:
• Provide documentation for regulatory agencies
• Manage and track Lessee’s Preventive Maintenance (“PM”) schedule • Test all device parameters
• Identify and/or troubleshoot potential issues and make recommendations • Troubleshoot device(s) and/or accessories under contract • Inspect battery chargers and review battery management as required
2. Telephone Support 24/7
3. General software updates
4. Free loaner equipment as determined by Lessor
5. Technical support for Equipment as described on the ZOLL website (https://www.zoll.com/contact/technical-support)
6. Waiver of shipping and handling fees
7. Waiver of Minimum Service Fee
8. Repair or replacement of parts within the charger that are subject to normal wear and burnout during normal use, including but not limited to, lamps, fuses, batteries, patient cables and accessories.
9. Repair or replacement, at Lessor’s sole option, at no charge to the Lessee, of the charger if it is affecting the integrity of the device.
10. SurePower chargers (parts and labor covered for normal wear and tear as determined by Lessor)
11. ECG 12-lead cable replacement upon failure, excluding physical damage, with one replacement per unit per year.
12. On-site device deployment when repaired unit is returned
13. Battery Replacement Program:
• Only batteries identified as part of the Master Agreement will be replaced under this program • Batteries must be maintained in accordance with ZOLL’s battery maintenance program • Up to three (3) batteries for each device will be replaced upon failure annually, throughout the term of the Master Agreement in the event the SurePower battery or SurePower Charger displays a fault. • Battery failures must be evaluated and confirmed by ZOLL Technical Support or by a ZOLL on -site field service technician before a battery can be replaced.
14. Accidental damage coverage. Includes one device outer housing replacement per year per device. Catastrophic damage beyond rep air will not be covered. Lessor’s regular service charges shall apply if device is in need of a second outer housing replacement within twelve (12) months of previous outer housing replacement, providing device is still under this Worry-Free plan.
ON-SITE SUPPORT OPTION
15. On-site Support, including evaluation and packing of device for return to Lessor’s service depot • On-site Support – 48–72-hour response. Includes authorized on-site device repairs for all capital equipment included in Exhibit A, evaluation, packing of device for return to Lessor’s service depot.
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Agreement ZO02351598
• In the event of a reported device malfunction, the device should be made available to the Lessor’s Field Service Engineer (“F SE”) during the scheduled visit at one of the two centrally located stations. • A primary and back-up contact must be provided to the FSE for all communication. • Routine service inspections will be conducted on Lessee’s site during normal working hours (8.30am – 5.30pm EST, Monday – Friday).
• Outside of normal business hours, arrangements are available by request only. Lessor reserves the right to charge additional fees for such services, to be agreed between Lessor and Lessee.
16. The postponement of a routine service inspection shall not diminish Lessee’s responsibility for the continued proper use and upkeep of the equipment, in accordance with the applicable user manuals.
17. ECG 12-lead cable replacement upon failure, excluding physical damage, one replacement per unit per year
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Agreement ZO02351598
EXHIBIT D
Notice Information:
If to Lessor by mail to: If to Lessee:
ZOLL Medical Corporation
269 Mill Road
Chelmsford, MA 01824-4105
Attn: Contracts Department 214
If to Lessor by email to both:
All notices of a legal nature should also
be sent to:
By mailto:
ZOLL Medical Corporation
269 Mill Road
Chelmsford, MA 01824-4105
Attn: Office of General Counsel
By email to:
[email protected]
Vallejo Fire Dept
970 Nimitz Ave
Vallejo, CA 94592
Attn: James Rustice
CONSENT CALENDAR 8.G.
DATE: April 22, 2025
TO: Mayor and Members of the City Council
FROM: Alicia M. Jones, Housing Director
SUBJECT: ADOPT A RESOLUTION APPROVING THE FIRST AMENDMENT TO PARTICIPATION AGREEMENT; THE FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS PROGRAM REGULATORY AGREEMENT; THE FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT; AND AN ESTOPPEL CERTIFICATE, CONSENT
TO ENCUMBER AND AGREEMENT TO PROVIDE NOTICE WHICH WILL ENABLE THE
OWNER, MARINA TOWER INVESTMENTS, LP, TO REFINANCE THE MARINA TOWER
APARTMENTS, AN AFFORDABLE HOUSING PROJECT FOR SENIORS, AND PROVIDE
REHABILITATION TO THE APARTMENTS
RECOMMENDATION
Staff recommends adopting the resolution to agree to the subordination of the amendments and HUD rider for Marina Towers LP. 1. Affordable Housing Covenant 2. Loan for the Participation Agreement 3. Estoppel certificate for the parking lease, and 4. HOME regulatory agreement with HUD rider.
REASONS FOR RECOMMENDATION
Marina Tower Apartments is a housing development that provides low-income housing for seniors. The Marina Towers LP (Owner) has applied for a refinance loan with the U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) which will allow the Owner to provide significant project upgrades. To obtain the Loan and upgrade the units, the Owner requests that the City execute the four agreements described herein. The current 55-year affordability period will remain in effect until the expiration date of the agreement.
BACKGROUND AND DISCUSSION
Marina Towers Investments, LP, a Delaware limited partnership (the "Owner"), is the Owner of the multifamily affordable apartment complex commonly known as Marina Towers (the "Project"), located at 601 Sacramento St. in the City of Vallejo, California (the "City"). The Marina Tower Apartments consists of 155 units which provides low-income housing for seniors 62 and older. The Owner desires to refinance the property through the U.S. Department of Housing and Urban Development ("HUD") insured loan pursuant to the National Housing Act, 12 U.S.C. § 223(f) (the "223(f) Loan"). This refinancing will allow the Owner to provide needed rehabilitation work to Marina Tower Apartments further improving the quality of life at the site.
In order to refinance, HUD requires that the City execute several agreements. These documents require the City to subordinate its interest in the Marina Tower Apartments which consists primarily of an affordability covenant. The City is not subordinating any financial interest it may have in the project and there is no financial risk to the City. The Owner requests that the City Council approve the following agreements and authorize the City Manager to execute them on behalf of the City:
1. Amendment to Affordable Housing Covenant
The Project is subject to an Affordable Housing Covenant recorded on August 31, 2005, by and between the City's predecessor-in-interest, the Redevelopment Agency of the City of Vallejo, and the Owner's predecessor-
Date: April 22, 2025
Subject: ADOPT A RESOLUTION APPROVING THE FIRST AMENDMENT TO PARTICIPATION AGREEMENT; THE FIRST AMENDMENT TO CITY OF VALLEJO HOME
INVESTMENT OWNERS PROGRAM REGULATORY AGREEMENT; THE FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT; AND AN ESTOPPEL
CERTIFICATE, CONSENT TO ENCUMBER AND AGREEMENT TO PROVIDE
NOTICE WHICH WILL ENABLE THE OWNER, MARINA TOWER INVESTMENTS,
LP, TO REFINANCE THE MARINA TOWER APARTMENTS, AN AFFORDABLE
HOUSING PROJECT FOR SENIORS, AND PROVIDE REHABILITATION TO THE
APARTMENTS
in-interest, Marina Tower Associates, a California limited partnership (the "Affordable Housing Covenant"). The Owner requests that the City execute an amendment to the Affordable Housing Covenant to include the standard HUD Subordination Agreement which subordinates the City's interest to HUD in the event of a default on the HUD loan. The City's affordability covenant, while subordinated to HUD, remains in place and enforceable.
2. Amendment to Participation Agreement
The Project is subject to a Participation Agreement dated as of August 1, 2005, and corresponding Memorandum of Participation Agreement recorded on August 31, 2005, by and between the City's predecessor-in-interest, the Redevelopment Agency of the City of Vallejo, and the Owner's predecessor-in- interest Marina Tower Associates, a California limited partnership (collectively, the "Participation Agreement").
The owner requests that the City execute an amendment to the Participation Agreement to include the standard HUD Subordination Agreement which subordinates the City's interest to HUD in the event of a default on the HUD loan. The City's affordability covenant, while subordinated to HUD, remains in place and enforceable.
3. Amendment to HOME Regulatory Agreement
The Project is subject to a HOME Investment Program Regulatory Agreement dated and recorded on August 31, 2005, by and between the City and Marina Tower Associates which is subject to an Assignment and Assumption of the HOME Investment Program Regulatory Agreement dated as of September 18, 2024, and recorded on September 19, 2024 (collectively, the "HOME Regulatory Agreement"). The Owner requests that the City agree to include the HUD rider in the HOME Regulatory Agreement with no subordination of the 223(f) loan from the City.
4. Estoppel / Acknowledgment for Parking Lease
The Project is subject to a Lease of Automobile Parking Spaces Adjacent to the Premises. HUD requests an Estoppel Certificate, consent to encumber, and agreement to provide notice (the "Estoppel") for the parking lease. There will be no change in the terms of the parking lease with the Estoppel Certificate.
In August 2005, two loans were executed between the Marina Towers Project and the City of Vallejo under the HOME program for $750,000 and $500,000. Each loan agreement has an affordability period of fifty-five years with an expiration date of September 2060. Those loans have been paid in full.
FISCAL IMPACT
No Fiscal Impact to the City General Fund as all loans owed to the City have been paid in full.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable Date: April 22, 2025
Subject: ADOPT A RESOLUTION APPROVING THE FIRST AMENDMENT TO PARTICIPATION AGREEMENT; THE FIRST AMENDMENT TO CITY OF VALLEJO HOME
INVESTMENT OWNERS PROGRAM REGULATORY AGREEMENT; THE FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT; AND AN ESTOPPEL
CERTIFICATE, CONSENT TO ENCUMBER AND AGREEMENT TO PROVIDE
NOTICE WHICH WILL ENABLE THE OWNER, MARINA TOWER INVESTMENTS,
LP, TO REFINANCE THE MARINA TOWER APARTMENTS, AN AFFORDABLE
HOUSING PROJECT FOR SENIORS, AND PROVIDE REHABILITATION TO THE
APARTMENTS
indirect physical change in the environment, pursuant to CEQA Guideline section 15378.
ATTACHMENTS
1. RESOLUTION APPROVING PROPOSED AMENDMENTS TO REFINANCE MARINA TOWERS. CAO STAMP
2. Amendment to Participation Agmt (with HUD RIder) - Marina Towers CAO STAMP
3. Amendment to Aff Housing Agmt (with HUD RIder) - Marina Towers CAO STAMP
4. First Amendment Home Investment Owners Program Reg Agree CAO Stamp
5. Estoppel Certificate Consent to Encumber CAO Stamp
6. City of Vallejo - Memorandum of Restrictive Covenants - Marina Towers
7. HOME Reg Agmt and Amendment
8. Participation Agreement and Amendment
CONTACT
Alicia Jones, Housing Director(707) 648-4408
[email protected]
Approved as to form:
By: for
Veronica Nebb, City Attorney
RESOLUTION NO._______________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VALLEJO
APPROVING THE PROPOSED AMENDMENTS TO THE
AFFORDABLE HOUSING COVENANT, PARTICIPATION
AGREEMENT, AND HOME INVESTMENT OWNERS PROGRAM
REGULATORY AGREEMENT AND AUTHORIZING THE
EXECUTION OF THE ESTOPPEL CERTIFICATE, CONSENT TO
ENCUMBER, AND AGREEMENT TO PROVIDE NOTICE TO ALLOW
FOR THE REFINANCING AND REHABILITATION OF MARINA
TOWERS, A SENIOR HOUSING PROJECT
WHEREAS, Marina Towers Investments, LP, a Delaware partnership (the "Owner") owns the multifamily affordable apartment complex commonly known as Marina Tower Apartments (the "Project"); and
WHEREAS, The Marina Tower Apartments, located at 601 Sacramento Street, provides low-income housing for seniors 62 years and older; and
WHEREAS, Pursuant to the National Housing Act, 12 U.S.C. § 223(f) (the "223(f) Loan"), the Owner intends to refinance the property through the U.S. Department of Housing and Urban Development ("HUD"); and
WHEREAS, the Project is subject to an Affordable Housing Covenant recorded on August 31, 2005, by and between the city’s predecessor in interest, the Redevelopment Agency of the City of Vallejo, and the Owner's predecessor in interest, Marina Tower Associates, a California limited partnership (the "Affordable Housing Covenant"); and
WHEREAS, the Owner has requested an amendment to the Affordable Housing Covenant to include the standard HUD Subordination Agreement; and WHEREAS, the Project is subject to a Participation Agreement dated as of August 1, 2005, and a corresponding Memorandum of Participation Agreement recorded on August 31, 2005, by and between the City’s predecessor in interest, the Redevelopment Agency of the City of Vallejo, and the Owner's predecessor in interest, Marina Tower Associates, a California limited partnership (collectively, the "Participation Agreement"); and WHEREAS, the Owner has requested an amendment to the Participation Agreement to include the standard HUD Subordination Agreement; and
WHEREAS, the Project is subject to a HOME Investment Program Regulatory Agreement dated and recorded on August 31, 2005, by and between the City of Vallejo and Marina Tower Associates, as assigned and assumed by the Owner pursuant to certain assignment and assumption agreements dated as of September 18, 2024, and recorded on September 19, 2024 (collectively, the "HOME Regulatory Agreement"); and
WHEREAS, the Owner has requested an amendment to the HOME Regulatory Agreement to include the HUD rider, with no subordination to the 223(f) Loan; and WHEREAS, the Project is subject to a Lease of Automobile Parking Spaces Adjacent to the premises, for which HUD has requested an Estoppel Certificate, Consent to Encumber, and Agreement to Provide Notice (the "Estoppel"); and
WHEREAS, the terms of the parking lease will remain unchanged with the Estoppel; and WHEREAS, in August 2005, two loans were executed between the Marina Towers Project and the City of Vallejo under the HOME program for $750,000 and $500,000, each with an affordability period of fifty-five years expiring in September 2060, both of which have been paid in full.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Vallejo as follows:
1.The City Council hereby approves the First Amendment to the Affordable Housing Covenant to include the standard HUD Subordination Agreement. Said First Amendment to Affordable Housing Covenant is attached hereto as Exhibit A and incorporated herein by reference.
2.The City Council hereby approves the First Amendment to Participation Agreement to include the standard HUD Subordination Agreement. Said First Amendment to Participation Agreement is attached hereto as Exhibit B and incorporated herein by reference.
3.The City Council hereby approves the First Amendment to the HOME Investment Owners Program Regulatory Agreement to include the HUD rider, with no subordination to the 223(f) Loan. Said First Amendment to City of Vallejo HOME Investment Owners Program Regulatory Agreement is attached hereto as Exhibit C and incorporated herein by reference.
4.The City Council hereby authorizes the execution of the Estoppel Certificate, Consent to Encumber, and Agreement to Provide Notice for the parking lease. Said Estoppel Certificate, Consent to Encumber, and Agreement to Provide Notice is attached hereto as Exhibit D and incorporated herein by reference.
BE IT FURTHER RESOLVED, The City Manager is hereby authorized to execute any and all documents necessary to effectuate the foregoing.
PASSED AND ADOPTED by the City Council of the City of Vallejo this 22nd day of April 2025.
AYES:
NOES:
ABSTAIN:
ABSENT:
Attest:
By:__________________________
City Clerk
1 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
Approved as to form:
By: for
Veronica Nebb, City Attorney
RECORDING REQUESTED BY
and WHEN RECORDED RETURN TO:
City of Vallejo
555 Santa Clara Street
Vallejo, CA 94590
ATTN: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT (this
“Amendment”), is made and entered into as of _____________ __, 202_, by and among the CITY OF VALLEJO, CALIFORNIA (“City”), and MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Participant”).
W I T N E S S E T H:
WHEREAS, Marina Towers Associates, a California limited partnership (“Previous Participant”), and the Redevelopment Agency of the City of Vallejo (“RDA”) entered into that certain Participation Agreement dated as of August 1, 2005 (the “Agreement”), a memorandum of which was recorded on August 31, 2005, as Document No. 200500134045, in the Official Records of Solano County, California (the “Official Records”) relating to a multifamily rental housing project known as Marina Towers, located on the real property described in Exhibit “A” attached hereto (the “Project”) in consideration for RDA’s contribution to the acquisition, construction, and rehabilitation of the Project.
WHEREAS, Participant is the successor-in-interest of the Previous Participant, and City is the successor-in-interest of RDA;
2 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
WHEREAS, Participant is obtaining a mortgage loan (the “FHA Loan”) in the amount of _______________[TBD]___________________ and 00/100 Dollars ($___[tbd]__) from Lument Real Estate Capital, LLC, a Delaware limited liability company (“Lender”), to be secured by a Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement (the “Deed of Trust”), which FHA Loan shall be insured by the U.S. Department of Housing and Urban Development Federal Housing Administration (“HUD”) pursuant to Section 207, pursuant to Section 223(f) of the National Housing Act of 1934, as amended; and WHEREAS, as a condition of insuring the FHA Loan, HUD requires that the Agreement be amended to made subordinate to the Deed of Trust;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. All references to “Agency” in the Agreement are hereby deleted and replaced with “City”, as this term is defined in this Amendment. Unless otherwise defined, all other capitalized terms used herein shall have the meanings assigned to them in the Agreement.
Section 2. HUD Requirements. The Agreement is hereby amended to add a new Section 900 as follows:
“IX. [§900] HUD Requirements. The HUD Rider to Participation Agreement attached hereto as Exhibit K, is incorporated by reference into this Agreement for such time as the Project is subject to a mortgage, deed of trust or security instrument insured or held by the U.S. Department of Housing and Urban Development by and through the Secretary, his or her successors, assigns or designates (“HUD”). For the avoidance of doubt, the terms of the HUD Rider shall not in any way prevent the City from enforcing its building code or pursuing claims against Owner unrelated to the Covenant.” Section 3. HUD Rider to Participation Agreement. Exhibit “B” to this Amendment is hereby added to the Agreement as Exhibit “K” and shall be incorporated by reference into the Agreement.
Section 4. The Agreement is hereby amended, ratified, approved, and is in full force and effect. To the extent of any inconsistency between the provisions of the Agreement and the provisions of the HUD Rider to Participation Agreement, the provisions of the HUD Rider to Participation Agreement shall control.
Section 5. Reaffirmation of Agreement. City and Participant each hereby reaffirms each of the provisions of the Agreement and confirms that the Agreement, as amended, and each of the terms and provisions thereof shall remain in full force and effect for the term thereof.
Section 6. Execution of Counterparts. This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
3 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
[Signatures on following pages]
4 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
IN WITNESS WHEREOF, City and Participant have executed this First Amendment to Participation Agreement, by duly authorized representatives, all as of the date first above written.
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
CITY:
CITY OF VALLEJO
By: ___________________________
Name:___________________________
Title: ___________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
) SS
County of Solana)
On ____________________________, before me, _____________________________, personally appeared ____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ____________________________[Seal]
[Signatures continued on the following page]
5 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
PARTICIPANT:
MARINA TOWERS INVESTMENTS, LP,
a Delaware limited partnership
By: Marina Towers Investments LLC,
a California limited liability company,
its Co-General Partner
By:Marina Towers Acquisition LLC,
a California limited liability company,
its Manager
By:LPSF IV, LLC,
a Maine limited liability company,
its Manager
By: _____________________________
Charles P. Gendron, Manager
By:IH Marina Towers Vallejo LLC,
a California limited liability company,
its Managing General Partner
By: Affordable Housing Alliance II, Inc.,
a Colorado nonprofit corporation d/b/a Integrity Housing, its Sole Member
By: _____________________________
Philip Wood, President
6 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
STATE OF _______ )
) ss:
COUNTY OF __________ )
On _____________________, 2024, before me, ______________________________, a notary public, personally appeared ________________________, known to me to be the person whose name is subscribed in the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________
NOTARY PUBLIC in and for the _________
7 – FIRST AMENDMENT TO PARTICIPATION AGREEMENT
143484\288062\46798558.v3
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 truthfulnes s, accuracy, or
validity of that document.
State of California )
) SS
County of _______________)
On ____________________________, before me, _____________________________, personally appeared ____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal] 8 – EXHIBIT A
143484\288062\46798558.v3
EXHIBIT A TO AMENDMENT
Description of Real Property
9 – EXHIBIT B
143484\288062\46798558.v3
EXHIBIT B TO AMENDMENT
Hud Rider to Participation Agreement
EXHIBIT C
HUD RIDER TO PARTICIPATION AGREEMENT
This Rider to Participation Agreement (“Rider”), made as of ______________, 202_, by MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Participant”), and the CITY OF VALLEJO CALIFORNIA (“City”).
WHEREAS, Participant has obtained financing from Lument Real Estate Capital, LLC, a Delaware limited liability company (the “Lender”), for the benefit of the project known as Marina Towers (the “Project”), which loan is secured by a Multifamily Deed of Trust, Assignment of Leases and Rents, and Security Agreement (“Security Instrument”) dated as of _________________, 1, 2025, and recorded in the official records of Solano County, California (the “Records”) on even date concurrently herewith and is insured by the United States Department of Housing and Urban Development (“HUD”);
WHEREAS, Participant’s predecessor-in-interest, Marina Tower Associates, a California limited partnership, received a contribution from City’s predecessor-in-interest for the acquisition, construction, and rehabilitation of the Project pursuant to certain restrictions were recorded against the Project;
WHEREAS, Participant’s predecessor-in-interest entered into that certain Participation Agreement with respect to the Project dated as of August 1, 2005, a memorandum of which was recorded on August 31, 2005, in the Records as Document No. 200500134045 (the “Restrictive Covenants”).
WHEREAS, HUD requires as a condition of its insuring Lender’s financing to the Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien, covenants, and enforcement of the Security Instrument; and WHEREAS, City has agreed to subordinate the Restrictive Covenants to the lien of the Mortgage Loan in accordance with the terms of this Rider.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the Restrictive Covenants and any provision contained in this Rider, the provisions contained in this Rider shall govern and be controlling in all respects as set forth more fully herein. (b) The following terms shall have the following definitions:
10 – EXHIBIT B
143484\288062\46798558.v3
“Code” means the Internal Revenue Code of 1986, as amended. “HUD” means the United States Department of Housing and Urban Development.
“HUD Regulatory Agreement” means the Regulatory Agreement between Participant and HUD with respect to the Project, as the same may be supplemented, amended or modified from time to time.
“Lender” means Lument Real Estate Capital, LLC, a Delaware limited liability company, its successors and assigns.
“Mortgage Loan” means the mortgage loan made by Lender to Participant pursuant to the Mortgage Loan Documents with respect to the Project. “Mortgage Loan Documents” means the Security Instrument, the HUD Regulatory Agreement and all other documents required by HUD or Lender in connection with the Mortgage Loan.
“National Housing Act” means the National Housing Act, 12 USC § 1701 et seq., as amended.
“Program Obligations” has the meaning set forth in the Security Instrument. “Residual Receipts” has the meaning specified in the HUD Regulatory Agreement.
“Security Instrument” means the Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement from Participant in favor of Lender, as the same may be supplemented, amended or modified.
“Surplus Cash” has the meaning specified in the HUD Regulatory Agreement. (c) Notwithstanding anything in the Restrictive Covenants to the contrary, the provisions hereof are expressly subordinate to (i) the Mortgage Loan Documents, including without limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan Documents and Program Obligations are collectively referred to herein as the “HUD Requirements”). Participant covenants that it will not take or permit any action that would result in a violation of the Code, HUD Requirements or the Restrictive Covenants. In the event of any conflict between the provisions of the Restrictive Covenants and the provisions of the HUD Requirements, HUD shall be and remains entitled to enforce the HUD Requirements.
Notwithstanding the foregoing, nothing herein limits City’s ability to enforce the terms of the Restrictive Covenants, provided such terms do not conflict with statutory provisions of the National Housing Act or the regulations related thereto. Participant represents and warrants that to the best of Participant’s knowledge the Restrictive Covenants impose no terms or requirements that conflict with the National Housing Act and related regulations. 11 – EXHIBIT B
143484\288062\46798558.v3
(d) [Intentionally deleted].
(e) Participant and City acknowledge that Participant’s failure to comply with the covenants provided in the Restrictive Covenants does not and will not serve as a basis for default under the HUD Requirements, unless a separate default also arises under the HUD Requirements.
(f) Except for City’s reporting requirement, in enforcing the Restrictive Covenants City will not file any claim against the Project, the Mortgage Loan proceeds, any reserve or deposit required by HUD in connection with the Security Instrument or HUD Regulatory Agreement, or the rents or other income from the property other than a claim against:
i. Available Surplus Cash, if Participant is a for-profit entity; ii. Available distributions of Surplus Cash and Residual Receipts authorized for release by HUD, if Participant is a limited distribution entity; iii. Available Residual Receipts authorized for release by HUD, if Participant is a non-profit entity; or
iv. A HUD-approved collateral assignment of any HAP contract. (g) For so long as the Mortgage Loan is outstanding, Participant and City shall not further amend the Restrictive Covenants, with the exception of clerical errors or administrative correction of non-substantive matters, without HUD’s prior written consent. (h) Subject to the HUD Regulatory Agreement, City may require Participant to indemnify and hold City harmless from all loss, cost, damage and expense arising from any claim or proceeding instituted against City relating to the subordination and covenants set forth in the Restrictive Covenants, provided, however, that Participant’s obligation to indemnify and hold City harmless shall be limited to available Surplus Cash and/or Residual Receipts of Participant.
(i) [Intentionally omitted].
The statements and representations contained in this rider and all supporting documentation thereto are true, accurate, and complete. This certification has been made, presented, and delivered for the purpose of influencing an official action of HUD in insuring a multifamily loan, and may be relied upon by HUD as a true statement of the facts contained therein.
Warning: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to, 18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802, 24 C.F.R. Parts 25, 28 and 30, and 2 C.F.R. Parts 180 and 2424.
1 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
Approved as to form:
By: for
Veronica Nebb, City Attorney
RECORDING REQUESTED BY
and WHEN RECORDED RETURN TO:
City of Vallejo
555 Santa Clara Street
Vallejo, CA 94590
ATTN: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE
FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
THIS FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT (this “Amendment”), is made and entered into as of _____________ __, 202_, by and among the CITY OF VALLEJO, CALIFORNIA (“City”), and MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Owner”).
W I T N E S S E T H:
WHEREAS, Marina Towers Associates, a California limited partnership (“Previous Owner”), and the Redevelopment Agency of the City of Vallejo (“RDA”) entered into that certain Affordable Housing Covenant dated as of August 1, 2005 (the “Covenant”), and recorded on August 31, 2005, as Document No. 200500134047, in the Official Records of Solano County, California (the “Official Records”) relating to a multifamily rental housing project known as Marina Towers, located on the real property described in Exhibit “A” attached hereto (the “Project”) in consideration for RDA’s contribution to the acquisition, construction, and rehabilitation of the Project.
WHEREAS, Owner is the successor-in-interest of Previous Owner, and City is the successor-in-interest of RDA;
2 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
WHEREAS, Owner is obtaining a mortgage loan (the “FHA Loan”) in the amount of _______________[TBD]___________________ and 00/100 Dollars ($___[tbd]__) from Lument Real Estate Capital, LLC, a Delaware limited liability company (“Lender”), to be secured by a Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement (the “Deed of Trust”), which FHA Loan shall be insured by the U.S. Department of Housing and Urban Development Federal Housing Administration (“HUD”) pursuant to Section 207, pursuant to Section 223(f), of the National Housing Act of 1934, as amended; and WHEREAS, as a condition of insuring the FHA Loan, HUD requires that the Covenant be amended to be made subordinate to the Deed of Trust;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. All references to “Agency” in the Covenant are hereby deleted and replaced with “City”, as this term is defined in this Amendment. Unless otherwise defined, all other capitalized terms used herein shall have the meanings assigned to them in the Covenant.
Section 2. HUD Requirements. The Covenant is hereby amended to add a new Section 12 as follows:
“Section 12. HUD Requirements. The HUD Rider to Affordable Housing Covenant attached hereto as Exhibit C, is incorporated by reference into this Covenant for such time as the Project is subject to a mortgage, deed of trust, or security instrument insured or held by the U.S. Department of Housing and Urban Development by and through the Secretary, his or her successors, assigns or designates (“HUD”).” Section 3. HUD Rider to Affordable Housing Covenant. Exhibit “B” to this Amendment is hereby added to the Covenant as Exhibit
“C” and shall be incorporated by reference into the Covenant.
Section 4. The Covenant is hereby amended, ratified, approved, and is in full force and effect. To the extent of any inconsistency between the provisions of the Covenant and the provisions of the HUD Rider to Affordable Housing Covenant, the provisions of the HUD Rider to Affordable Housing Covenant shall control.
Section 5. Reaffirmation of Covenant. City and Owner each hereby reaffirms each of the provisions of the Covenant and confirms that the Covenant, as amended, and each of the terms and provisions thereof shall remain in full force and effect for the term thereof.
Section 6. Execution of Counterparts. This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
[Signatures on following pages]
3 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
IN WITNESS WHEREOF, City and Owner have executed this First Amendment to Affordable Housing Covenant, by duly authorized representatives, all as of the date first above written.
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
CITY:
CITY OF VALLEJO
By: ___________________________
Name: ___________________________
Title: ___________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
) SS
County of Solano )
On ____________________________, before me, _____________________________, personally appeared ____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal] [Signatures continued on the following page]
4 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
OWNER:
MARINA TOWERS INVESTMENTS, LP,
a Delaware limited partnership
By: Marina Towers Investments LLC,
a California limited liability company,
its Co-General Partner
By:Vitus Investments, LLC,
a Delaware limited liability company,
its Manager
By: _____________________________
Stephen R. Whyte, President
By:Marina Towers Acquisitions LLC,
a California limited liability company,
its Manager
By:LPSF IV, LLC,
a Maine limited liability company,
its Manager
By: _____________________________
Charles P. Gendron, Manager
By:IH Marina Towers Vallejo LLC,
a California limited liability company,
its Managing General Partner
By: Affordable Housing Alliance II, Inc.,
a Colorado nonprofit corporation d/b/a Integrity Housing, its Sole Member
By: _____________________________
Philip Wood, President
5 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
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 ________________ )
) SS
County of _______________)
On ____________________________, before me, _____________________________, personally appeared Stephen R. Whyte, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal] 2 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
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 ______________ )
) SS
County of _______________)
On ____________________________, before me, _____________________________, personally appeared Charles P. Gendron, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal] 2 – FIRST AMENDMENT TO AFFORDABLE HOUSING COVENANT
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 _____________ )
) SS
County of _______________)
On ____________________________, before me, _____________________________, personally appeared Philip Wood, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal] 3 – EXHIBIT A
EXHIBIT A TO AMENDMENT
Description of Real Property
4 – EXHIBIT B
EXHIBIT B TO AMENDMENT
HUD Rider To Affordable Housing Covenant
Exhibit C
HUD RIDER TO AFFORDABLE HOUSING COVENANT
This Rider to Affordable Housing Covenant (“Rider”), made as of _____________, 202_, by MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Owner”), and the CITY OF VALLEJO CALIFORNIA (“City”).
WHEREAS, Owner has obtained financing from Lument Real Estate Capital, LLC, a Delaware limited liability company (the “Lender”), for the benefit of the project known as Marina Towers (the “Project”), which loan is secured by a Multifamily Deed of Trust, Assignment of Leases and Rents, and Security Agreement (“Security Instrument”) dated as of _________________, 1, 2025, and recorded in the official records of Solano County, California (the “Records”) on even date concurrently herewith and is insured by the United States Department of Housing and Urban Development (“HUD”);
WHEREAS, Owner’s predecessor-in-interest, Marina Towers Associates, a California limited partnership, received a contribution from City’s predecessor-in-interest for the acquisition, construction, and rehabilitation of the Project pursuant to which certain restrictions were recorded against the Project;
WHEREAS, Owner’s predecessor-in-interest entered into that certain Affordable Housing Covenant with respect to the Project, dated as of August 1, 2005, and recorded on August 31, 2005, in the Records as Document No. 200500134047 (the “Restrictive Covenants”).
WHEREAS, HUD requires as a condition of its insuring Lender’s financing to the Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien, covenants, and enforcement of the Security Instrument; and
WHEREAS, City has agreed to subordinate the Restrictive Covenants to the lien of the Mortgage Loan in accordance with the terms of this Rider.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the Restrictive Covenants and any provision contained in this Rider, the provisions contained in this Rider shall govern and be controlling in all respects as set forth more fully herein. (b) The following terms shall have the following definitions:
“Code” means the Internal Revenue Code of 1986, as amended. 5 – EXHIBIT B
“HUD” means the United States Department of Housing and Urban Development. “HUD Regulatory Agreement” means the Regulatory Agreement between Owner and HUD with respect to the Project, as the same may be supplemented, amended or modified from time to time.
“Lender” means Lument Real Estate Capital, LLC, a Delaware limited liability company, its successors and assigns.
“Mortgage Loan” means the mortgage loan made by Lender to the Owner pursuant to the Mortgage Loan Documents with respect to the Project. “Mortgage Loan Documents” means the Security Instrument, the HUD Regulatory Agreement and all other documents required by HUD or Lender in connection with the Mortgage Loan.
“National Housing Act” means the National Housing Act, 12 USC § 1701 et seq., as amended.
“Program Obligations” has the meaning set forth in the Security Instrument. “Residual Receipts” has the meaning specified in the HUD Regulatory Agreement.
“Security Instrument” means the Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement from Owner in favor of Lender, as the same may be supplemented, amended or modified.
“Surplus Cash” has the meaning specified in the HUD Regulatory Agreement. (c) Notwithstanding anything in the Restrictive Covenants to the contrary, the provisions hereof are expressly subordinate to (i) the Mortgage Loan Documents, including without limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan Documents and Program Obligations are collectively referred to herein as the “HUD Requirements”). Owner covenants that it will not take or permit any action that would result in a violation of the Code, HUD Requirements, or the Restrictive Covenants. In the event of any conflict between the provisions of the Restrictive Covenants and the provisions of the HUD Requirements, HUD shall be and remains entitled to enforce the HUD Requirements.
Notwithstanding the foregoing, nothing herein limits City’s ability to enforce the terms of the Restrictive Covenants, provided such terms do not conflict with statutory provisions of the National Housing Act or the regulations related thereto. The Owner represents and warrants that to the best of Owner’s knowledge the Restrictive Covenants impose no terms or requirements that conflict with the National Housing Act and related regulations.
Commented [RR1]: The City will not agree to this especially since HUD is only restricting 11 units.
6 – EXHIBIT B
(e) Owner and City acknowledge that Owner’s failure to comply with the covenants provided in the Restrictive Covenants does not and will not serve as a basis for default under the HUD Requirements, unless a separate default also arises under the HUD Requirements. (f) Except for City’s reporting requirement, in enforcing the Restrictive Covenants City will not file any claim related to the financing against the Project, the Mortgage Loan proceeds, any reserve or deposit required by HUD in connection with the Security Instrument or HUD Regulatory Agreement, or the rents or other income from the property other than a claim against:
i. Available Surplus Cash, if the Owner is a for-profit entity; ii. Available distributions of Surplus Cash and Residual Receipts authorized for release by HUD, if the Owner is a limited distribution entity; iii. Available Residual Receipts authorized for release by HUD, if the Owner is a non-profit entity; or
iv. A HUD-approved collateral assignment of any HAP contract. (g) For so long as the Mortgage Loan is outstanding, Owner and City shall not further amend the Restrictive Covenants, with the exception of clerical errors or administrative correction of non-substantive matters, without HUD’s prior written consent. (h) Subject to the HUD Regulatory Agreement, City may require the Owner to indemnify and hold City harmless from all loss, cost, damage and expense arising from any claim or proceeding instituted against City relating to the subordination and covenants set forth in the Restrictive Covenants, provided, however, that Owner’s obligation to indemnify and hold City harmless shall be limited to available Surplus Cash and/or Residual Receipts of the Owner. (i) [Intentionally omitted].
The statements and representations contained in this rider and all supporting documentation thereto are true, accurate, and complete. This certification has been made, presented, and delivered for the purpose of influencing an official action of HUD in insuring a multifamily loan, and may be relied upon by HUD as a true statement of the facts contained therein.
Warning: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to, 18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802, 24 C.F.R. Parts 25, 28 and 30, and 2 C.F.R. Parts 180 and 2424.
30812109v2
Commented [RR2]: This is too broad and should be narrowed.
For example, if the City has a claim against the Owner for tort negligence we should be able to file an abstract of judgment against the property if we are successful in obtaining a judgment.
Commented [RR3]: Why do we have to globally restrict our ability to amend the covenant when HUD is only restricting 11 units? This is unfair.
MEMORANDUM
TO: City of Vallejo, California
FROM: Paul K. Manda
CC: Marci Booth & Libby Leighton
DATE: January 3, 2025
RE: Marina Towers Restrictive Covenants
I. Introduction
Marina Towers Investments, LP, a Delaware limited partnership (the “Owner”) is the owner of the multifamily affordable apartment complex commonly known as Marina Towers (the “Project”), located in the City of Vallejo, California (the “City”). In order to complete several upgrades to the Project and to continue to provide quality affordable housing to the City’s residents, the Owner is obtaining a U.S. Department of Housing and Urban Development (“HUD”) insured loan pursuant to the National Housing Act, 12 U.S.C. § 223(f) (the “223(f) Loan”). In order to obtain the 223(f) Loan, we are asking the City to execute the following documents with respect to the following four agreements (collectively, the “Restrictive Covenants” and each a “Restrictive Covenant”):
(i) Proposed amendment with subordination to 223(f) Loan for the Affordable Housing Covenant (as defined below) and copy of the recorded covenant; (ii) Proposed amendment with subordination to 223(f) Loan for the Participation Agreement (as defined below) and copy of underlying documents; (iii) Proposed amendment to the HOME Regulatory Agreement (as defined below) and copy of recorded documents; and
(iv) Proposed Estoppel (as defined below) for the Parking Lot Lease (as defined below) and underlying documents.
Overall, we have done our best to anticipate HUD’s requirements and preferences with respect to these Restrictive Covenants, including working with the HUD Lender’s outside counsel. Given what the Restrictive Covenants provide for and what is being requested, we are hopeful that we can accomplish these items as an administrative process as opposed to a City Council meeting. A breakdown of each Restrictive Covenant and a summary of what is being requested is provided below. As a reminder there are no outstanding loans from the City to the Owner or Project and we are only asking for the above requested items with respect to the Restrictive Covenants and Parking Lot Lease. As always, we thank you for your time, consideration and continued partnership. - 2 -
II. Amendment to Affordable Housing Covenant
The Project is subject to that certain Affordable Housing Covenant recorded on August 31, 2005 as document number 200500134037 by and between the Redevelopment Agency of the City of Vallejo and the Owner’s predecessor in interest Marina Tower Associates, a California limited partnership (the “Affordable Housing Covenant”). Section 10 of the Affordable Housing Covenants states that the City will subordinate upon written request. As such, we are asking for an amendment to the Affordable Housing Covenant that will attach the standard HUD Subordination Agreement to the Affordable Housing Covenant in order to obtain the 223(f) Loan. Unfortunately, HUD is not amenable to comments on their form Subordination Agreement outside of those such comments that are factually accurate.
III. Amendment to Participation Agreement
The Project is subject to that certain Participation Agreement dated as of August 1, 2005 and corresponding Memorandum of Participation Agreement recorded on August 31, 2005 as document number 200500134045 by and between the Redevelopment Agency of the City of Vallejo and the Owner’s predecessor in interest Marina Tower Associates, a California limited partnership (collectively, the “Participation Agreement”). Section 303 of the Participation Agreement states that the City will subordinate upon written request. As such, we are asking for an amendment to attach the standard HUD Subordination Agreement.
IV. Amendment to HOME Regulatory Agreement
The Project is subject to that certain HOME Investment Owners Program Regulatory Agreement dated and recorded on August 31, 2005 as document number 200500134049 by and between the City and Marina Tower Associates, a California limited partnership, as assigned to the Owner pursuant to that certain Assignment and Assumption of HOME Investment Owners Program Regulatory Agreement dated as of September 18, 2024 and recorded on September 19, 2024 as document number 202400041313 (collectively, the “HOME Regulatory Agreement”).
HUD is requiring a First Amendment to City of Vallejo HOME Investment Owners Program Regulatory Agreement to the HOME Regulatory Agreement to include the HUD Rider. Provided; however, unlike the Affordable Housing Covenant and the Participation Agreement, HUD is not requiring a subordination to the 223(f) Loan. As you can see in Section (d) of the Rider, the standard HUD subordination language is marked: “[Intentionally omitted.]”. Similar to the Affordable Housing Covenant and Participation Agreement, HUD is not amenable to comments on their form amendment and rider outside of those such comments that are factually accurate.
V. Estoppel / Acknowledgement for Parking Lease
The Project is subject to that certain Lease of Automobile Parking Spaces for Apartment House Adjacent to Demised Premises, dated July 6, 1971, and recorded in the Official Records of the County of Solano on September 7, 1971, as Document No. 18063, in Book 1705, Page 179, as amended by that certain Amendment to Lease, dated September 6, 1972, and recorded in the Official Records of the County of Solano on October 12, 1972, as Document No. 23567, in Book 1781, Page 557, as amended and assigned by that certain Assignment of and Amendment to Lease - 3 -
of Automobile Parking Spaces for Apartment House Adjacent to Demised Premises, dated August 31, 2005, and recorded in the Official Records of the County of Solano on August 31, 2005, as Document No. 200500134041, as assigned and amendment to the Owner pursuant to that certain Assignment and Amendment of Lease of Automobile Parking Spaces for Apartment House Adjacent to Demised Property dated as of September 18, 2024 and recorded on September 19, 2024 as document number 202400041312 (collectively, the “Parking Lease”). HUD is requesting an Estoppel Certificate, Consent to Encumber, and Agreement to Provide Notice (the “Estoppel”) for this Parking Lease. This Estoppel is simply asking that the City make factually accurate statements with respect to the Parking Lease. No change of terms to the Parking Lease will be required in this Estoppel. Unlike the subordination agreements requested in Sections (II), (III) & (IV) above, we may have some latitude to provide comment to this document. Further, this document is the one that is most subject to further HUD review. Regardless, we wanted to present you with all the requests at once.
30545262v2
,X> RECORDING REQUESTED BY
•••• AND WHEN RECORDED MAIL TO:
CITY OF VALLEJO
555 SANTA *CLARA STREET
VALLEJO, CA 94105
ATTN: City Manager
Recorded in Official Records, Solano Counly
Skip Thomson Assessor/Recorder
01 Chicago Title Co
Doc#: 200500134049 Tittes: 1
Fees
Taxes
Other
PAID
CITY OF VALLEJO
HOME INVESTMENT OWNERS PROGRAM
REGULATORY AGREEMENT
This Regulatory Agreement (the "Regulatory Agreement"), is made as of the 31st day of August, 2005, by and between CITY OF VALLEJO (the "City") and MARINA TOWER ASSOCIATES, a California limited partnership (the "Owner").
RECITALS
A. The Owner has acquired that certain property described in Exhibit A, attached hereto and incorporated herein by reference, and is rehabilitating the multi-family rental housing development located on said property, in the City of Vallejo, a portion of which will be operated as housing affordable to senior citizens whose income is 50 percent or less of the area median income as determined by the Department of Housing and Urban Development (HUD) ("Very Low-Income Persons") (the "Development").
B. The Owner has applied to the City for a Loan (the "Loan") to assist the Owner in the rehabilitation of the Assisted Units (as defined below).
C. The Loan will be provided by the City under the HOME Investment Owners Program (the "HOME Program") administered by the City as set forth in 24 CFR Part 92 of the federal regulations governing the HOME Program.
D. The Owner and the City have entered into a HOME Program Loan Agreement, dated for reference purposes as of August 1, 2005, pursuant to which the City will loan up to a maximum of Five Hundred Thousand Dollars ($500,000) to the Owner (the "Loan Agreement").
E. As a condition to the Loan, the City will require the Owner to execute this Regulatory Agreement which will regulate eleven (11) residential units of the Development to insure that the 1 829095v6 05137/0042
8/31/2005 2:00 PM AR23
03 Pages: 12
4 0 . 0
0.00 0.00
$40.00
units are occupied by and affordable to Very-Low Income Persons for the term of this Regulatory Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are a part of this Regulatory Agreement.
2. Definitions. For the purpose of this Regulatory Agreement the following definitions shall apply:
a. "Assisted Unit" means one of the eleven (11) dwelling units, the rehabilitation of which was assisted with funds provided through the HOME Program. b. "HOME Rents" means rents calculated annually by HUD and are:
(1) the lesser of the fair market rents or 30 percent of 60 percent of area median income (high HOME rents); and
(2) 30 percent of 50 percent of area median income (low HOME rents). c. "HUD" means the United States Department of Housing & Urban Development.
d. "Rent" means all charges, other than deposits, paid by the tenant for the use and occupancy of an assisted unit and any mandatory charge for direct or supportive tenant services in a rental housing development, including a utility allowance in an amount determined by HUD.
e. "Very Low-Income Household" means households whose income is 50 percent or less of the area median income as determined by HUD.
3. Compliance with Program Requirements. The Owner agrees that at all times its acts regarding the Development and the use of funds provided herein shall be in conformity with all provisions of the HOME Program including the statutes, rules and regulations and such policies and procedures of the City and of HUD pertaining thereto. The Owner acknowledges that it is familiar with such applicable provisions and has been professionally advised to the extent necessary for the purpose of enabling the Owner to comply fully with such provisions.
4. Term of Regulatory Agreement. The term of this Regulatory Agreement shall commence upon recordation by the County Recorder of this Regulatory Agreement and shall remain in full force and effect through and including the date which is fifty-five (55) years thereafter.
5. [INTENTIONALLY OMITTED.]
2 829095v6 05137/0042
6. Tenant' Selection Standards. The Owner shall cause all Assisted Units in the Development to be rented only to senior citizens, Very Low Income Households.
7. Rents.
a. HOME Rents shall be used for determining the rents for the Assisted Units.
The HOME Rents shall be provided annually by the City.
b. All of the Assisted Units must be occupied by Very Low-Income Households paying rent that is no greater than the low HOME rents. c. Any household certified as an eligible household upon occupancy but whose income increases above the eligibility level must pay as rent the lesser of the amount payable by the tenant under State or local law or 30 percent of the family's adjusted monthly income; provided, however, when units are being assisted by HOME funds and funds made available through low-income housing tax credits or other affordable housing programs, the rules for tax credit projects or such other affordable housing programs shall apply.
S. Certification of Tenant Income and Household Size.
a. The income and household size of all households occupying Assisted Units shall be certified by the Owner prior to occupancy and re-certified annually thereafter. b. If the income of a tenant upon re-certification exceeds the upper limit for Very Low-Income Households, and there are no other requirements statutorily imposed by another federal source or tax credit program, that tenant shall be allowed to remain in occupancy, but shall be charged rents as provided in Section 7(c) above.
9. Assisted Unit Substitutions.
a. If, upon re-certification, a household occupying an Assisted Unit reserved for occupancy by a Very Low-Income Household no longer qualifies as a Very Low-Income Household, the Owner may designate this Very Low-Income Household's unit as non-assisted, provided that all of the following conditions are satisfied:
(1) Not later than the date the Owner designates the unit as non-assisted, the Owner shall cause to be made available a comparable vacant unit previously designated as non-assisted to be designated as an Assisted Unit, or designates a previously non-assisted unit occupied by a Very Low-Income Household as an Assisted Unit, or agrees to occupy the next available unit with a Very Low-Income Household; and
(2) The rent charged for the newly designated Assisted Unit will not exceed the low HOME rent.
10. Nondiscrimination. The Owner shall not discriminate against any prospective tenant in the use, enjoyment, occupancy, conveyance, lease, sublease, or rental of any part of the 3 829095v6 05137/0042
Development on the basis of race, color, ancestry, national origin, religion, sex, sexual preference, marital status, family status, source of income, physical or mental disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), or any other arbitrary basis. The Owner shall otherwise comply with all applicable local, state and federal laws concerning discrimination in housing.
11. Restrictions on Sale. Encumbrance, and Other Acts.
a. Except for a transfer to an affiliate of Owner or BRIDGE Housing Corporation, and leases to tenants in the ordinary Course of business, the Owner shall not make, or allow, any sale, encumbrance, hypothecation, assignment, pledge, conveyance, or transfer of the Development, except with the prior written approval of the City. b. The City may approve a sale, transfer or conveyance provided that all of the following conditions are met:
(1) the Owner is in compliance with this Regulatory Agreement or the sale, transfer or conveyance will result in the cure of any existing violations of the Regulatory Agreement;
(2) the successor-in-interest to the Owner agrees to assume all obligations of the Owner pursuant to this Regulatory Agreement and the HOME Program; (3) the successor-in-interest demonstrates to the City's satisfaction that it can own and operate the Development in full compliance with all HOME Program requirements; and
(4) any terms of the sale, transfer or conveyance shall not threaten the City's security or the successor's ability to comply with all HOME Program requirements. c. The City shall grant its approval for a sale, transfer or conveyance subject to such terms and conditions as may be necessary to ensure compliance with Program requirements. d. The Owner may refinance the Development upon the approval of the City.
12. Violation of Regulatory Agreement by the Owner. Any material breach by the Owner of any representation, warranty or covenant hereunder, which is not cured within thirty (30) days after notice thereof given by the City or, where cure is not possible within thirty days, whose cure is not commenced within thirty (30) days and diligently prosecuted to completion shall constitute an Event of Default.
13. Amendment. This Regulatory Agreement shall not be altered or amended except in writing, executed by the parties hereto.
4 829095v6 05137/0042
14. Partial Invalidity. If any portion of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
15. Binding on Successors. This Regulatory Agreement shall bind, and benefits thereof shall inure to, the respective parties hereto, their legal representatives, executors, administrators, successors in interest, and assigns, provided, however, that the Owner may not assign this Regulatory Agreement or any of its obligations hereunder, voluntarily or by operation of law, without the prior written approval of the City.
16. Recording Regulatory Agreement. This Regulatory Agreement, and all amendments thereto, shall be executed by each of the parties. This Regulatory Agreement, or memorandum thereof, shall be recorded against the Development in the official records of the County of Solano.
17. Hold Harmless. Absent the negligence or willful misconduct of the City, the Owner and its successors in interest agree to indemnify, defend, and hold harmless the City and its respective agents, employees and officers from any and all claims, losses, liabilities or causes of action (including reasonable attorneys' fees) arising from or in connection with the Owner's development, management, maintenance or operation of the Development.
18. Waiver. No waiver by the City of any breach of or default under this Regulatory Agreement shall be deemed to be a waiver of any other or subsequent breach or default hereunder.
19. Captions. The captions used in this Regulatory Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or the intent of this Regulatory Agreement.
20. Governing Law. This Regulatory Agreement shall be construed in accordance with and governed by the laws of the State of California.
21. Notice. Written notices and other written communications by and between the parties hereto shall be addressed as set forth below unless and until a party hereto has, in writing, communicated a different address to the other party hereto:
City:
Borrower:
529095v6 05137/0042
City of Vallejo
555 Santa Clara Street, 3rd Floor
Vallejo, CA 94590
Attn: City Manager
Marina Tower Associates
345 Spear Street, Suite 700
San Francisco, CA 94105
Attn: President
5 22 Attorney's Fees. The prevailing party in any action to enforce this Regulatory Agreement shall be entitled to reasonable attorney's fees as determined by the trier of facts in that forum.
CITY OF VALLEJO
ROGR L. KEMP
City Manager
ROVE? AS TO FORM:
„Ro
FREDERICK G. SOLEY
City Attorney
ATTEST:
N VILLARANTE
Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
WILLIAM R. VENSKI
Risk Manager, City of Vallejo
MARINA TOWER ASSOCIATES,
a California limited partnership
By: BRIDGE TOWER, LLC,
a California limited liability company
(Its Managing General Partner)
By: NORTHPOINT HOUSING, INC.,
a California nonprofit public
benefit corporation
(Its Member/Manager)
By:
Its: t/r 1,k,\Aucl-0-11
By: JSCO TOWER, LLC,
a California limited liability company
(Its Co-General Partner)
By: THE JOHN STEWART COMPANY,
a California corporation
(Its Member/Manager)
By:
Its: iCes
&Gk._
6 829095v6 05137/0042
STATE OF CALIFORNIA
) ss.
COUNTY OF SOLANO
On August 26, 2005 , before me, ALLISON VILLARANTE , Notary Public, personally appeared ROGER L. KEMP
personally known to me filif)PWANZIWC&XIMIXIMEMIXEirtat,KM40152Mato be the person(K) whose name( is subscribed to the within instrument and acknowledged to me that heinentEty executed the same in histhwitte authorized capacityM), and that by histlexzetr signature) on the instrument the person(3) or the entity upon behalf of which the person( Q acted, executed the instrument.
Witness my hand and official seal.
blic
[SEAL] a.
La
ALLISON 1/1
COMM. #156838 co NOTARY PUBLIC. CALIFORNIA ? SOLANO COUNTY My Comm. Expires AprI111. 2009
STATE OF CALIF RNIA )
. ) ss.
COUNTY 0 d'ill' )
On 4?: —_.. 9— -2 e 2 ii , before •me .7/# ./-/ Notary . Public, personally appeared ...: ,
personally known to me (or proved to me on the basis satisfacto 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.
Witness my hand and official seal.
[SEAL]
JOHN FASESKY
CC COMM. #1407301 3%) C/)
(/) 13 NOTARY PUBLIC- CALIFORNIA (j) SAN FRANCISCO COUNTY My Comm .Expires Mar. 26, 407 2093/014742-0309
625682.05 a08/24/05
STATE OF CALIFORNIA
) ss.
COUNTY OF SOLANO
On August 26, 2005 , before me, ALLISON VILLARANTE , Notary Public, personally appeared ROGER L. KEMP
personally known to me ItiPZUOIMMNECNNERYGIWEilataffilettAkalaltitnto be the person(X) whose name( 10 isltiff subscribed to the within instrument and acknowledged to me that he/Ktigitla executed the same in his/M=0 authorized capacityM), and that by hisitletter signature) on the instrument the person(% or the entity upon behalf of which the person(K) acted, execute the instrument. [SEAL]
Witness my hand and official seal.
ALLISON V1L a. COMM. #15683; .4 NOTARY PUBLIC - CALIFORNLA -0 my SOLAN 40 COUNTY Comm. eVres Am 11, 2009
STATE OF CALIF RNIA
) ss.
COUNTY 0 )
On bef
personally appeared
personally known to me (or prove o 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.
Notary Public,
Witness my hand and official seal.
[SEAL]
2093/014742-0309
825682.05 a08124/05
,10161CY
COMM. #1407301 7:1 NOTARY PUBLIC- CALIFORNIA cn
SAN FRANCISCO COUNTY
My Comm Expires Mar. 26, 407
Government Code 27361.7
I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows:
Name of Notary 1;tceSkc,1
Commission Number 140 5t))
Commissioned in Q11,44 4-12141C14-Zo
Date Commission Expires
Vendor ID number 1
Date: (F-Y.0--0, X
By: •
Firm N me (if any)
Government Code 27361.7
I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as
follows:
Name of Notary (ea 070 Ltt
Commission Number )5 LOY(7
Lim/ Lt
Commissioned in
Date Commission Expires
Vendor ID number G5
Date: x Wao),t5/'
By:
014A,
Firm N
1,1f1V
(if any)
EXHIBIT A
PROPERTY DESCRIPTION
/0
7 829095v6 05137/0042
EXHIBIT A
CITY OF VALLEJO
PARCEL A:
A PORTION OF BLOCK 200, AS SHOWN ON A MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967, IN BOOK 23 OF MAPS, AT PAGE 51, ET SEQ IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AS INSTRUMENT NO. 1907, BEING PARCEL 202, AS SHOWN ON 'A PARCEL MAP FILED SEPTEMBER 15, 1969, IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 16313, MORE PARTICULARLY DESCRIBED AS FOLLOWS;
BEGINNING AT A POINT ON THE EAST LINE OF SAID BLOCK 200, SAID EAST LINE BEING THE WESTERLY LINE OF SACRAMENTO STREET, 80 FEET WIDE, FROM WHICH THE SOUTHEAST CORNER OF SAID BLOCK BEARS SOUTH 02° 07' 42" WEST 349.44 FEET; THENCE FROM SAID POINT OF BEGINNING ALONG SAID EAST LINE OF BLOCK 200, NORTH 02° 07' 42" EAST, 151..00 FEET TO THE MOST EASTERLY SOUTHEAST CORNER OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED MARCH 13, 1967, IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 4323; THENCE ALONG THE SOUTHERLY AND EASTERLY BOUNDARY OF SAID PARCEL 201 NORTH 87° 52' 18" WEST 183.34 FEET AND SOUTH 02° 07' 42" WEST 151.00 FEET TO THE NORTHWEST CORNER OF PARCEL 203, AS SHOWN ON SAID PARCEL MAP FILED IN B00K'3 OF PARCEL MAPS, AT PAGE 67; THENCE ALONG THE NORTHERLY BOUNDARY LINE OF SAID PARCEL 203 SOUTH 87° 52' 18" EAST 183.34 FEET TO THE POINT OF BEGINNING.
ASSESSOR'S PARCEL NUMBER: 0055-160-180
PARCEL Bs (LEASEHOLD INTEREST)
A PORTION OF BLOCK 200, AS SHOWN ON THE MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967 IN BOOK 23 OF MAPS, AT PAGE 51, ET SEQ, IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, AS INSTRUMENT NO. 1907, BEING A PORTION OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED MARCH 13, 1967 IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE SOLANO COUNTY, RECORDER AS INSTRUMENT NO. 1323, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER 0F SAID BLOCK 200, SAID CORNER BEING THE INTERSECTION OF THE SOUTHERLY LINE. OF CAPITOL. STREET AND 'THE WESTERLY LINE OF SACRAMENTO STREET; THENCE ALONG* THE EASTERLY LINE OF SAID BLOCK 200, BEING THE' WESTERLY LINE OF SACRAMENTO- STREET, SOUTH 2° 07' 42" WEST, 150.00 FEET TO THE NORTHEASTERLY CORNER OF PARCEL 202, AS SHOWN ON A. PARCEL MAP FILED 'SEPTEMBER 15, 1969 IN BOOK 3 OF PARCEL MAPS, AT PACE 67, IN THE OFFICE OF THE COUNTY. RECORDER OF SAID COUNTY, AZ INSTRUMENT NO. 16313; THENCE ON THE NORTHERLY LINE OF SAID PARCEL 202, NORTH 87° 52' 18" WEST, 183:34 FEET TO THE NORTHWESTERLY CORNER THEREOF; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 202 AND ALONG THE WESTERLY, LINE OF PARCEL 203, AS. SHOWN. ON SAID PARCEL. MAP FILED IN BOOK 3.OF PARCEL MAPS, AT PAGE 67, SOLANO COUNTY RECORDS, SOUTH 2° 07' 42" WEST, 186.00 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 203; THENCE. ALONG THE NORTHERLY LINE. OF PARCEL. 205 AND ALONG THE NORTHERLY LINE. OF PARCEL 204B, AS SAID PARCELS ARE SHOWN ON SAID PARCEL MAP FILED IN BOOK 3 OF PARCEL MAPS,- AT PAGE 67, SOLANO COUNTY RECORDS, NORTH•87° 52' 18" WEST, 100.50 FEET; THENCE NORTH 2° 07' 42" EAST, 336.00 FEET TO A POINT ON THE NORTHERLY LINE OF SAID impoc 200; THENCE ALONG SAID NORTHERLY LINE OF SAID BLOCK 200, BEING THE SOUTHERLY LINE OF SAID CAPITOL STREET, SOUTH 87° 52' 18" EAST, 283.84 FEET TO THE POINT OF BEGINNING.
PORTION OF ASSESSOR'S PARCEL NUMBER: 0055-160-170
Recorded at the Request of
Old Republic Title Company -
Oakland
\l11021vv'1.)
Free recording in accordance with
California Government Code
Section 27383 <A.n tA '2.. 7 3~ 'f). I
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Vallejo
555 Santa Clara Street
Vallejo, CA 94590
ATTN: City Manager
Electronically Recorded in Official Records~ Solano County Glenn Zook
Assessor/Recorder
ES-EPN
Doc# 202400041313
I I I I I I
Titles:2
I
Fees
Taxes
SB2 Fee
Other
Paid
ASSIGNMENT AND ASSUMPTION OF HOME INVESTMENT OWNERS PROGRAM
REGULATORY AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF HOME INVESTMENT OWNERS PROGRAM REGULATORY AGREEMENT ("Assignment"), made as of the 18\i-l day of September, 2024 by and among MARINA TOWER ASSOCIATES, a California limited partnership ("Assignor"), MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership ("Assignee"), and the CITY OF VALLEJO, CALIFORNIA ("City").
RECITALS
A. Concurrently herewith, Assignor is selling to Assignee that certain real property located in 601 Sacramento Street, Vallejo, County of Solano, State of California (the "Property"), as more particularly described on Exhibit A hereto, and more commonly known as "Marina Towers".
B. This Assignment is being made as required under Section 11 of that certain HOME Investment Owners Program Regulatory Agreement, dated as of August 31, 2005, and identified in City records, by and between Assignor, and City recorded August 31, 2005 in the Solano County Recorder's Office as Document Number 200500134049 (the "Regulatory Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor, Assignee and City agree as follows:
1. Assignment of Regulatory Agreement. Assignor hereby assigns to Assignee the Regulatory Agreement and all of the rights, interests, benefits and privileges of the Assignor thereunder, and Assignee hereby accepts such assignment.
2. Assumption of Obligations. By acceptance of this Assignment, Assignee hereby assumes and agrees to perform and to be bound by all of the terms, covenants, conditions and obligations of Assignor under the Regulatory Agreement for the benefit of City. This assumption shall have application only to those obligations under the Regulatory Agreement arising after the transfer of the Property to Assignee.
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3. Consent. City hereby acknowledges and consents to the transfer of the Property to Assignee and the assignment and assumption of the obligations of Assignor under the Regulatory Agreement. City hereby releases, acquits and discharges Assignor from any and all obligations, claims, causes of action, damages, liabilities and costs and expenses arising from acts occurring after the Property has been transferred to Assignee.
4. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the successors, assigns, personal representatives, heirs and legatees of the respective parties hereto.
5. Notice. All correspondence and notices given or required to be given to the Owner under the Regulatory Agreement, from and after the Effective Date, shall be provided to the Assignee and shall be addressed as follows:
c/o Marina Towers Investments LLC
One Portland Square, Suite 6A
Portland, ME 04101
Atten: Charles P. Gendron
6. Effective Date. The "Effective Date" of this Assignment shall be the date it is recorded in the Official Records of Solano County.
7. Counterparts. This Assignment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
8. Governing Law. This Assignment shall be governed by, interpreted under, and construed and enforceable with, the laws of the State of California.
9. City Consent. City hereby acknowledges and consents to the transfer of the Project to Transferee and the foregoing assignment and assumption of the obligations of Transferor under the Regulatory Agreement, and releases Transferor from any obligations arising under the Regulatory Agreement after the Effective Date. City further agrees pursuant to Section 11 of the Regulatory Agreement that the Regulatory Agreement is hereby amended by this written instrument which has been executed and acknowledged by each of the parties hereto and duly recorded in the official records of the county in which the Regulatory Agreement is recorded. [DOCUMENT EXECUTION OCCURS ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, all of the Assignee, Assignor and City have executed this Assignment effective as of the date first written above.
ASSIGNEE:
MARINA TOWERS INVESTMENTS, LP,
a Delaware limited partnership
By: Marina Towers Investments LLC,
a California limited liability company,
its Co-General Partner
By: Marina Towers Acquisitions LLC, a California limited liability company, its Manager
By: LPSF IV, LLC, a Maine limited liability company,
By:
By: IH Marina Towers Vallejo LLC,
a California limited liability company,
its Managing General Partner
By:
By:
Affordable Housing Alliance II, Inc.,
a Colorado nonprofit corporation d/b/a Integrity Housing, its Sole Member
executed in counterpart
Philip Wood, President
ACKNOWLEDGMENT
On this __ _.____ , 2024, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared Charles P. Gendron, to me known to be the Manager of LPSF IV, LLC, a Maine limited liability company, the Manager of Marina Towers Acquisitions LLC, a California limited liability company the manager of Marina Towers Investments LLC, a California limited liability company, the Co-General Partner of MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said party for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
Witness my hand and seal the day and year first above written.
My Commission Expires:
,.-~~¾;-. CATHERINE MOSCHETTO
i.:~x ~~ •l Notary Public· State of Flonda
\:"->~./i CommfssJon II HH 489024
··---.9.~.~---·· My Comm. Expires Feb 5, 2028
Bonded through National 1'0tary .~ssn,
IN WITNESS WHEREOF, all of the Assignee, Assignor and City have executed this Assignment effective as of the date first written above.
ASSIGNEE:
MARINA TOWERS INVESTMENTS, LP,
a Delaware limited partnership
By: Marina Towers Investments LLC,
a California limited liability company,
its Co-General Partner
By: Marina Towers Acquisitions LLC, a California limited liability company, its Manager
By:
By:
LPSF IV, LLC, a Maine limited liability company,
its Manager
executed in counterpart
Charles P. Gendron, Manager
By: IH Marina Towers Vallejo LLC,
a California limited liability company,
its Managing General Partner
By: Affordable Housing Alliance II, Inc.,
a Colorado nonprofit corporation d/b/a Integrity Housing, its Sole Member
By: p~~ 1 1p oo , res1 ent
CERTIFICATE OF ACKNOWLEDGMENT
The State of Texas
County of~(=~o=l\'~v'.\ __ _
Before me, ):,tdlt\ U., S•".,, f\0~ 21'=, pvll'c(,, (insert the name and character of the officer),
1 ' 1 1
on this day personally appeared ~r~~\_l\ ...... y ~~-!)~~f-(_\=,,,__=1=o=,\ ________ , known to me (or proved to me on the oath of __________ or through \"- J)(tt4 (,~(,""~:e. (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed.
(Seal)
Given under my hand and seal of office this lL:_ day of ~~0
JORDAN WYSONG
Notary Public, State of Texas
Ci)n,rn. Expires 08-25-2025
ID 131260801
, 20 24' .
Notary Public, State of Texas
Page l of I
ASSIGNOR:
MARINA TOWER ASSOCIATES
By: BRIDGE Tower, LLC, a California
limited liability company
Its: Managing General Partner
By: NORTHPOINT HOUSING,
INC., a California nonprofit public
benefit corporation
Its: Manager/Member
J,
By: ;..J 4'1JV:!., .1 ~ ~
Its: J>N...,.$ \
ACKNOWLEDGEMENT
ACKNOWLEDGEMENT
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 Vallejo
On ______ , 2024, before me, ~-----~' Notary Public, persona.Uy appeared ~------'' who proved to me on the basis of satisfactory evidenc~ 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 capaciJy{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 9f"th; State of California that the foregoing paragraph is true and correct. .///
f
WITNESS my hand and official seal. /"
Signature_____________ [NOTARY SEAL]
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Alameda
On September 09, 2024 before me, K. OKeefe Notary Public, personally appeared James D. Mather, 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 PENAL1Y OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Name: K. OKeefe
(Typed or Printed) (Seal)
JM/ko
K. OKEEFE
COMM. #2406698 :z
Notary Public • California ~
Alameda County .....
M Comm. Ex ires June 2, 2026
City:
CITY OF VALLEJO
By:
Its:
ACKNOWLEDGEMENT
ACKNOWLEDGEMENT
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 Vallejo
On ______ , 2024, before me, [0\..\~•;);U~ \.. ¥6r~i"~ Notary Public, personally appeared rt¼.~l'.)J.11.1) t<:UQ~J~·1 j, 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 behalfof which the pcrson(s) acted, executed the instrument.
I ce1iify under penalty of petjury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
i·••=••······ ELINORE L. REG~ESAOO
- • Not.ary Public • California J i Solano County I
Commission II Z.57513 -
My Comm. ExJiro, Aut ~. 2027
[NOTARY SEAL]
Exhibit A - Legal Description
PARCEL ONE:
A portion of Block 200, as shown on a Map of the Marina Vista Project, filed February 1, 1967, in Book 23 of Maps, at Page 51, et seq in the Office of the County Recorder of said County as Instrument No. 1907, being Parcel 202, as shown on a Parcel Map filed September 15, 1969, in Book 3 of Parcel Maps, at Page 67, in the Office of the County Recorder of said County, as Instrument No. 16313, more particularly described as follows:
BEGINNING at a point on the East line of said Block 200, said East line being the Westerly line of Sacramento Street, 80 feet wide, from which the Southeast comer of said Block bears South 02° 07' 42" West 349.44 feet; THENCE from said POINT OF BEGINNING along said East line of Block 200, North 02° 07' 42" East, 151.00 feet to the most Easterly Southeast comer of Parcel 201, as shown on a Parcel Map filed March 13, 1967, in Book 1 of Parcel Maps, at Page 55, in the Office of the County Recorder of said County, as Instrument No. 4323; THENCE along the Southerly and Easterly boundary of said Parcel 201 North 87° 52' 18" West 183.34 feet and South 02° 07' 42" West 151.00 feet to the Northwest corner of Parcel 203, as shown on said Parcel Map filed in Book 3 of Parcel Maps, at Page 67; THENCE along the Northerly boundary line of said Parcel 203 South 87°52' 18" East 183.34 feet to the POINT OF BEGINNING.
ASSESSOR'S PARCEL NUMBER: 0055-160-180
PARCEL TWO: (LEASEHOLD INTEREST)
Leasehold estate as created by that certain lease dated July 6, 1971, made by and between Redevelopment Agency of the City of Vallejo, a Public Body Corporate and Politic, as lessor, and Jack Baskin, as lessee, for the term of and upon the terms and conditions contained in said lease, "Lease of Automobile Parking Spaces for Apartment House Adjacent to Demised Premises", thereof recorded September 7, 1971 in Book 1705 of Official Records, at Page 179, described as follows:
A portion of Block 200, as shown on the Map of the Marina Vista Project, filed February 1, 1967 in Book 23 of Maps, at Page 51, et seq, in the Office of the County Recorder of Solano County, as Instrument No. 1907, being a portion of Parcel 201, as shown on a Parcel Map filed March 13, 1967 in Book 1 of Parcel Maps, at Page 55, in the Office of the Solano County Recorder as Instrument No. 4323, more particularly described as follows:
BEGINNING at the Northeasterly corner of said Block 200, said corner being the intersection of the Southerly line of Capitol Street and the Westerly line of Sacramento Street; THENCE along the Easterly line of said Block 200, being the Westerly line of Sacramento Street, South 2° 07' 42" West, 150.00 feet to the Northeasterly corner of Parcel 202, as shown on a Parcel Map filed September 15, 1969 in Book 3 of Parcel Maps, at Page 67, in the Office of the County Recorder of said County, as Instrument No. 16313; THENCE on the Northerly line of said Parcel 202, North 87° 52' 18" West, 183.34 feet to the Northwesterly corner thereof; THENCE along the Westerly line of said Parcel 202 and along the Westerly line of Parcel 203, as shown on said Parcel Map filed in Book 3 of Parcel Maps, at Page 67, Solano County Records, South 2° 07' 42" West, 186.00 feet to the Southwesterly comer of said Parcel 203; THENCE along the Northerly line of Parcel 205 and along the Northerly line of Parcel 204b, as said Parcels are shown on said Parcel Map filed in Book 3 of Parcel Maps, at Page 67, Solano County Records, North 87° 52' 18" West, 100.50 feet; THENCE North 2° 07' 42" East, 336.00 feet to a point on the Northerly line of said Block 200; THENCE along said Northerly line of said Block 200, being the Southerly line of said Capitol Street, South 87° 52' 18" East, 283.64 feet to the POINT OF BEGINNING.
PORTION OF ASSESSOR'S PARCEL NUMBER: 0055-160-170
28802411 v3
1 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
RECORDING REQUESTED BY
and WHEN RECORDED RETURN TO:
City of Vallejo
555 Santa Clara Street
Vallejo, CA 94590
ATTN: City Manager
SPACE ABOVE THIS LINE FOR RECORDER’S USE
FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
THIS FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS PROGRAM REGULATORY AGREEMENT (this “Amendment”), is made and entered into as of _____________ __, 202_, by and among the CITY OF VALLEJO, CALIFORNIA (“City”), and MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Owner”).
W I T N E S S E T H:
WHEREAS, Marina Towers Associates, a California limited partnership (“Previous Owner”), and the City entered into that certain Home Investment Owners Program Regulatory Agreement dated as of August 31, 2005 (the “ Covenant”), and recorded on August 31, 2005, as Document No. 200500134049, in the Official Records of Solano County, California (the “Official Records”) relating to a multifamily rental housing project known as Marina Towers, located on the real property described in Exhibit “A” attached hereto (the “Project ”) in consideration for the City’s contribution to the acquisition, construction, and rehabilitation of the Project.
WHEREAS, the Covenants were a condition of a loan provided by the City under the HOME Investment Owners Program administered by the U.S. Department of Housing and Urban Development (“HUD”), which loan has since been satisfied.
WHEREAS, Owner is the successor-in-interest of Previous Owner; 2 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
WHEREAS, Owner is obtaining a mortgage loan (the “FHA Loan ”) in the amount of _______________[TBD]___________________ and 00/100 Dollars ($___[tbd]__) from Lument Real Estate Capital, LLC , a Delaware limited liability company (“Lender”), to be secured by a Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement (the “Deed of Trust ”), which FHA Loan shall be insured by HUD pursuant to Section 207, pursuant to Section 223(f), of the National Housing Act of 1934, as amended; and WHEREAS, as a condition of insuring the FHA Loan, HUD requires that the Covenant be amended to be made subordinate to the Deed of Trust; NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Unless otherwise defined, all other capitalized terms used herein shall have the meanings assigned to them in the Covenant.
Section 2. HUD Requirements . The Covenant is hereby amended to add a new Section 23 as follows:
“Section 23. HUD Requirements. The HUD Rider to City of Vallejo Home Investment Owners Program Regulatory Agreement attached hereto as Exhibit B, is incorporated by reference into this Regulatory Agreement for such time as the Development is subject to a mortgage, deed of trust , or security instrument insured or held by the U.S. Department of Housing and Urban Development by and through the Secretary, his or her successors, assigns or designates (“HUD”).” Section 3. HUD Rider to City of Vallejo Home Investment Owners Program Regulatory Agreement. Exhibit “B” to this Amendment is hereby added to the Covenant as Exhibit “B” and shall be incorporated by reference into the Covenant.
Section 4. The Covenant is hereby amended, ratified, approved, and is in full force and effect. To the extent of any inconsistency between the provisions of the Covenant and the provisions of the HUD Rider to City of Vallejo Home Investment Owners Program Regulatory Agreement, the provisions of the HUD Rider to City of Vallejo Home Investment Owners Program Regulatory Agreement shall control.
Section 5. Reaffirmation of Covenant . City and Owner each hereby reaffirms each of the provisions of the Covenant and confirms that the Covenant , as amended, and each of the terms and provisions thereof shall remain in full force and effect for the term thereof.
Section 6. Execution of Counterparts . This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
[Signatures on following pages]
3 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
IN WITNESS WHEREOF, City and Owner have executed this First Amendment to City of Vallejo Home Investment Owners Program Regulatory Agreement, by duly authorized representatives, all as of the date first above written.
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
CITY:
CITY OF VALLEJO
By: ___________________________
Name:___________________________
Title: ___________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
) SS
County of Solana )
On ____________________________, before me, _____________________________, personally appeared ____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal]
4 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
[Signatures continued on the following page]
WARNING: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to: 18 USC 1001, 1010, 1012; 13 USC 3729, 3802; 24 CFR Parts 25, 28 and 30; and 2 CFR Parts 180 and 2424.
OWNER:
MARINA TOWERS INVESTMENTS, LP,
a Delaware limited partnership
By: Marina Towers Investments LLC,
a California limited liability company,
its Co-General Partner
By: Marina Towers Acquisition LLC,
a California limited liability company,
its Manager
By: LPSF IV, LLC,
a Maine limited liability company,
its Manager
By: _____________________________
Charles P. Gendron, Manager
By: IH Marina Towers Vallejo LLC,
a California limited liability company,
its Managing General Partner
By: Affordable Housing Alliance II, Inc.,
a Colorado nonprofit corporation d/b/a Integrity Housing, its Sole Member
By: _____________________________
Philip Wood, President
5 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
STATE OF _______ )
) ss:
COUNTY OF __________ )
On _____________________, 2024, before me, ______________________________, a notary public, personally appeared ________________________, known to me to be the person whose name is subscribed in the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________________
NOTARY PUBLIC in and for the _________
6 – FIRST AMENDMENT TO CITY OF VALLEJO HOME INVESTMENT OWNERS
PROGRAM REGULATORY AGREEMENT
Error! Unknown document property name.
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California )
) SS
County of _______________ )
On ____________________________, before me, _____________________________, personally appeared ____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _______________________________________ [Seal]
7 – EXHIBIT A
Error! Unknown document property name.
EXHIBIT A TO AMENDMENT
Description of Real Property
8 – EXHIBIT B
Error! Unknown document property name.
EXHIBIT B TO AMENDMENT
HUD Rider To City of Vallejo Home Investment Owners Program Regulatory Agreement
Exhibit B
HUD RIDER TO CITY OF VALLEJO HOME INVESTMENT OWNERS PROGRAM
REGULATORY AGREEMENT
This Rider to City of Vallejo Home Investment Owners Program Regulatory Agreement (“Rider”), made as of _____________, 202_, by MARINA TOWERS INVESTMENTS, LP, a Delaware limited partnership (“Owner”), and the CITY OF VALLEJO CALIFORNIA (“City”).
WHEREAS, Owner has obtained financing from Lument Real Estate Capital, LLC , a Delaware limited liability company (the “Lender”), for the benefit of the project known as Marina Towers (the “Project”), which loan is secured by a Multifamily Deed of Trust, Assignment of Leases and Rents, and Security Agreement ( “Security Instrument”) dated as of _________________, 1, 2025, and recorded in the official records of Solano County, California (the “Records”) on even date concurrently herewith and is insured by the United States Department of Housing and Urban Development (“HUD”);
WHEREAS, Owner ’s predecessor-in-interest, Marina Towers Associates, a California limited partnership, received a contribution from City for the acquisition, construction, and rehabilitation of the Project pursuant to certain restrictions were recorded against the Project; WHEREAS, Owner ’s predecessor-in-interest entered into that certain City of Vallejo Home Investment Owners Program Regulatory Agreement with respect to the Project, dated as of August 31, 2005, and recorded on August 31, 2005, in the Records as Document No. 200500134049 (the “Restrictive Covenants”).
WHEREAS, HUD requires as a condition of its insuring Lender ’s financing to the Project, that the lien and covenants of the Restrictive Covenants be amended; and
WHEREAS, City has agreed to amend the Restrictive Covenants in accordance with the terms of this Rider.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the Restrictive Covenants and any provision contained in this Rider, the provisions contained in this Rider shall govern and be controlling in all respects as set forth more fully herein. (b) The following terms shall have the following definitions:
“Code” means the Internal Revenue Code of 1986, as amended. 9 – EXHIBIT B
Error! Unknown document property name.
“HUD” means the United States Department of Housing and Urban Development.
“HUD Regulatory Agreement ” means the Regulatory Agreement between Owner and HUD with respect to the Project, as the same may be supplemented, amended or modified from time to time.
“HUD Requirements ” means (i) the Mortgage Loan Documents, including without limitation, the Security Instrument, the HUD Regulatory Agreement , and (ii) Program Obligations.
“Lender” means Lument Real Estate Capital, LLC, a Delaware limited liability company, its successors and assigns.
“Mortgage Loan ” means the mortgage loan made by Lender to the Owner pursuant to the Mortgage Loan Documents with respect to the Project.
“Mortgage Loan Documents ” means the Security Instrument, the HUD Regulatory Agreement and all other documents required by HUD or Lender in connection with the Mortgage Loan.
“National Housing Act ” means the National Housing Act , 12 USC § 1701 et seq., as amended.
“Program Obligations” has the meaning set forth in the Security Instrument.
“Residual Receipts ” has the meaning specified in the HUD Regulatory Agreement.
“Security Instrument ” means the Multifamily Deed of Trust, Assignment of Leases and Rents and Security Agreement from Owner in favor of Lender, as the same may be supplemented, amended or modified.
“Surplus Cash” has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Restrictive Covenants to the contrary, Owner covenants that it will not take or permit any action that would result in a violation of the Code, HUD Requirements , or the Restrictive Covenants. In the event of any conflict between the provisions of the Restrictive Covenants and the provisions of the HUD Requirements, HUD shall be and remains entitled to enforce the HUD Requirements. Notwithstanding the foregoing, nothing herein limits City ’s ability to enforce the terms of the Restrictive Covenants, provided such terms do not conflict with statutory provisions of the National Housing Act or the regulations related thereto. The Owner represents and warrants that to the best of Owner ’s knowledge the Restrictive Covenants impose no terms or requirements that conflict with the National Housing Act and related regulations.
10 – EXHIBIT B
Error! Unknown document property name.
(d) [Intentionally omitted].
(e) Owner and C ity acknowledge that Owner ’s failure to comply with the covenants provided in the Restrictive Covenants does not and will not serve as a basis for default under the HUD Requirements, unless a separate default also arises under the HUD Requirements.
(f) Except for C ity’s reporting requirement, in enforcing the Restrictive Covenants City will not file any claim against the Project, the Mortgage Loan proceeds, any reserve or deposit required by HUD in connection with the Security Instrument or HUD Regulatory Agreement, or the rents or other income from the property other than a claim against:
i. Available Surplus Cash, if the Owner is a for-profit entity; ii. Available distributions of S urplus Cash and R esidual Receipts authorized for release by HUD, if the Owner is a limited distribution entity; iii. Available Residual Receipts authorized for release by HUD, if the Owner is a non-profit entity; or
iv. A HUD-approved collateral assignment of any HAP contract.
(g) For so long as the Mortgage Loan is outstanding, Owner and City shall not further amend the Restrictive Covenants, with the exception of clerical errors or administrative correction of non-substantive matters, without HUD’s prior written consent.
(h) Subject to the HUD Regulatory Agreement, C ity may require the Owner to indemnify and hold C ity harmless from all loss, cost, damage and expense arising from any claim or proceeding instituted against C ity relating to the subordination and covenants set forth in the Restrictive Covenants, provided, however, that Owner ’s obligation to indemnify and hold City harmless shall be limited to available Surplus Cash and/or Residual Receipts of the Owner.
(i) [Intentionally omitted].
The statements and representations contained in this rider and all supporting documentation thereto are true, accurate, and complete. This certification has been made, presented, and delivered for the purpose of influencing an official action of HUD in insuring a multifamily loan, and may be relied upon by HUD as a true statement of the facts contained therein.
Warning: Federal law provides that anyone who knowingly or willfully submits (or causes to submit) a document containing any false, fictitious, misleading, or fraudulent statement/certification or entry may be criminally prosecuted and may incur civil administrative liability. Penalties upon conviction can include a fine and imprisonment, as provided pursuant to applicable law, which includes, but is not limited to, 18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802, 24 C.F.R. Parts 25, 28 and 30, and 2 C.F.R. Parts 180 and 2424.
RECORDING REQUESTED BY AND
AFTER RECORDATION, MAIL TO:
The Redevelopment Agency of
the City of Vallejo
555 Santa Clara Street
Vallejo, CA 94590
Attn: Executive Director
EXEMPT FROM RECORDING FEES
PURSUANT TO GOV'T CODE § 27383
Recorded in Official Records, Solano County
Skip Thomson
Assessor/Recorder
01 Chicago Title Co
Doe 200500134045
II IIII 11 1111 III
8/31/2005
2:00 PM
AR23
03 Titles: 1 Pages: 7
Fees 25 . 00 Taxes 0.00 Other 0.00
PAID $25.00
MEMORANDUM OF
PARTICIPATION AGREEMENT
This Memorandum of Participation Agreement (the "Memorandum") is dated for reference purposes as of August 1, 2005, by and between REDEVELOPMENT AGENCY OF THE CITY OF VALLEJO, a public body, corporate and politic (the "Agency") and MARINA TOWER ASSOCIATES, a California limited partnership ("Participant").
1. Agency and Participant entered into that certain Participation Agreement (the "PA") dated for reference purposes as of August 1, 2005, with respect to certain real property, including without limitation all improvements now or hereafter located thereon, situated in the City of Vallejo, County of Solano, State of California, as more particularly described on Exhibit A attached hereto (the "Site"). Pursuant to the PA, the Participant shall acquire and rehabilitate the Site, and operate the Site as a multi -family residential housing complex for affordable housing purposes (the "Project").
2. This Memorandum is made upon all the terms and conditions in the PA and all of said terms and conditions are incorporated by reference herein. This Memorandum is prepared for the purpose of recordation only and shall not be construed to alter, modify, amend or supplement the PA of which this is a memorandum.
' 3. Acquisition and rehabilitation of the Site is governed by the terms and conditions of the PA.
Page I
852605v1 05137/0042
IN WITNESS WHEREOF, the Agency and Participant have caused this instrument to be executed on their behalf by their resp ective officers thereunto duly authorized, as of the day and year set forth above.
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY OF
VALLEJO
By:
Approved as to form:
Frederick G. Soley
Agency Counsel
852605v1 05137/0042
-AND-
Loger L. KemPp
Executive Director
PARTICIPANT:
MARINA TOWER ASSOCIATES, a California Limited
Partnership
BY: BRIDGE TOWER, LLC. a California limited
liability company (Its Managing General Partner),
By: NORTHPUNT HOUSING, INC.,
a California nonprofit public benefit
corporation (its Member/Manager)
By:
Name:
Its:
_
BY: JSCO TOWER, LLC, a California limited liability
company (Its Co-General Partner)
By: THE JOHN STEWART COMPANY,
a California corporation
(Its Member/Manager)
852605v105137/0042
By:
Name:
Its:
o-eic-4i:fr•.4.411.4..e.k.—
Actf- 'D . chAiLtu4 et_
??-esuleN r
STATE OF CALIFORNIA
) ss.
COUNTY OF SOLANO
On August 261 2005 , before me, ALLISON VILLARANTE , Notary Public, personally appeared ROGER L. KEMP
personally known to me itelfaUXOtillierAXICKEKIYag4MMTEMEVIDIMill to be the person(K) whose name( 0 isitni subscribed to the within instrument and acknowledged to me that he/XlEelttle executed the same in hisMilgtteI authorized capacitytn), and that by hisltextZetr signature) on the instrument the person(s;) or the entity upon behalf of which the person(N) acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
blic
STATE OF CALIFORNIA
COUNTY 0
ALLISON VIL
COMM. #15613 7 tx, NOTARY PUBUC CALIFORNLA "1:1 SOLANO COUNTY My Comm. EXplras AprIJ 11, 2009 ) ss.
On , befo Notary Public,
personally appeared
personally known to me (a.- proved,to me Qat e basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and aCknowledge71 to iii 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.
Witness my hand and official seal.
JOHN FASESKY
0 ...,.., --ov--rk..,. COMM. #1407301 cn a) cc ,.r. ,,,,, ej • NOTARY PUBLIC - CALIFORNIA u) (f) a p SAN FRANCISCO COUNTY
My Comm.Expires Mar. 26, 2007
S A ]
20931014742-0309
625682.05 a08/24/05
STATE OF CALIFORNIA
COUNTY OF SOLANO
On August 26, 2005 , before me, ALLISON VILLARANTE , Notary Public, personally appeared ROGER L. KEMP ,
personally known to me e be the person(ä) whose
name(ä) isleni subscribed to the within instrument and acknowledged to me that hefälIentf« executed the same in hisM(.ttrea authorized capacityee and that by hisftetter signature) on the instrument the person* or the entity upon behalf of which the person(ä) acted, executed the instrument.
Witness my hand and official seal.
[SEAL] Pd
C.7
ALLISON VIL COMM. #156838 NOTARY PUBLIC - CALIFORNIA SOLANO COUNTY My Comm. e<plres Apt 11, 2009
STATE OF CALIFORNIA )
COUNTY OF • e 71Z/0 4 2 7 )
, re e, ,,,----- Notary Public, On --9--249befo
personally appeared ..
personally known to me (ror2Loved to tfThtffe basis glsatisfactoryze) to be the person(s) whose name(s) is/are subscribed to the within instrument and ackr—TOrd aged 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.
C)
IC
hand and official seal.
JOHN FASES«
COMM. #1407301 Cf)
CC : . (/) tir NOTARY PUBLIC • GALIFORMA (1) i/
It;22r SAN FRANCISCO COUNTY ...ä. 1 ... . .
xpires )..ieriv....e.....e My Comm.Erj6.42w
[SEAL]
2093i014742-0309
825682.05 a06/24/05
Government Code 27361.7
I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows:
Name of Notary 01A,n 1-7zteskt1
Commission Number )4750
Commissioned in QIA/A. 10/14C4()
Date Commission Expires
Vendor ID number .KS-
Date:<'Z- X
By: j
rk
•
,At 2/'"-
Firm me (if any)
EXHIBIT A
CITY OF VALLEJO
PARCEL A:
A PORTION OF BLOCK 200, AS SHOWN ON A MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967, IN BOOK 23. OF MAPS, AT PAGE 51, ET SEQ TN• THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AS INSTRUMENT NO. 1907, BEING PARCEL 202, AS SHOWN ON-A PARCEL MAP FILED SEPTEMBER 15, 1969, IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 16313, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING. AT A POINT ON THE EAST LINE OF SAID BLOCK 200, SAID EAST LINE BEING THE WESTERLY LINE OF SACRAMENTO STREET, 80 FEET WIDE, FROM WHICH THE SOUTHEAST CORNER OF SAID BLOCK BEARS SOUTH 02° 07' 42" WEST 349.44 FEET; THENCE FROM SAID POINT OF BEGINNING ALONG SAID EAST LINE OF BLOCK 200, NORTH 02'2'07' 42" EAST, 151..00 FEET TO THE MOST EASTERLY SOUTHEAST CORNER OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED •MARCH 13, 1967, IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 4323; THENCE ALONG THE SOUTHERLY AND EASTERLY 'BOUNDARY OF SAID PARCEL 201 NORTH 87! 52' 18" WEST 183.34 FEET AND SOUTH 02° 07' 42" WEST 151.00 'FEET TO THE NORTHWEST CORNER OF PARCEL 203, AS SHOWN ON SAID PARCEL MAP FILED IN BOOK 3 OF PARCEL MAPS, AT PAGE 67; THENCE ALONG THE NORTHERLY BOUNDARY LINE' OF SAID PARCEL 203 SOUTH 870 52' lb" EAST 183.34 FEET TO THE. POINT OF •BEGINNING'..
ASSESSOR'S PARCEL NUMBER: 0055-160-180
PARCEL B: (LEASEHOLD INTEREST)
A PORTION OF BLOCK 200, AS SHOWN ON THE MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967.IN BOOK 23 OF MAPS, AT PAGE 51, ET SEQ, IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, AS INSTRUMENT NO. 1907, BEING A PORTION OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED MARCH 13, 1967 IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE SOLANO COUNTY, RECORDER AS INSTRUMENT NO.. 4323, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID BLOCK 200, SAID CORNER BEING THE INTERSECTION OF THE SOUTHERLY LINE OF CAPITOL STREET AND 'THE. WESTERLY LINE OF SACRAMENTO STREET;•THENCE.ALONG THE EASTERLY LINE' OF SAID BLOCK 2.00, BEING THE WESTERLY LINE OF SACRAMENTO STREET, SOUTH 2* 07' 42" WEST, 150.00 FEET TO THE NORTHEASTERLY CORNER OF PARCEL 202, AS SHOWN ON A PARCEL MAP FILED 'SEPTEMBER 15, 1969 IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, IN THE OkFICE OF THE COUNTY. RECORDER OF SAID COUNTY, AS INSTRUMENT NO. It313; THENCE ON THE NORTHERLY LINE OF ;SAID PARCEL 202, NORTH 87° 52' 18" WEST', 183134 FEET TO THE NORTHWESTERLY CORNER THEREOF; THENCE ALONG THE WESTERLY LINE OF .SAID PARCEL 202 AND ALONG THE 'WESTERLY LINE OF PARCEL 203, AS. SHOWN ON SAID PARCEL, MAP FILED IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, SOLANO COUNTY RECORDS, SOUTH 2° 07' 42" WEST, 186.00 .
FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 203; THENCE ALONG THE NORTHERLY LINE. OF PARCEL 205 AND ALONG THE NORTHERLY LINE. OF PARCEL 204B, AS SAID PARCELS ARE SHOWN ON SAID PARCEL MAP FILED IN BOOK 3 OF PARCEL MAPS,. AT PAGE. 67, SOLANO COUNTY RECORDS, NORTH. 87° 52' 18" WEST, .100.50 FEET; THENCE NORTH 2° 07' 42" • EAST, 336.00 FEET,TO A POINT ON THE NORTHERLY LINE OF SAID BLOCK 200; THENCE ALONG SAID NORTHERLY LINE OF SAID BLOCK 200, BEING THE SOUTHERLY LINE OF SAID CAPITOL STREET, SOUTH 87° 52' 18" EAST, 283.84 FEET TO THE POINT OF BEGINNING.
PORTION OF ASSESSOR'S PARCEL NUMBER: 0055-160-170
PARTICIPATION AGREEMENT
BY AND BETWEEN
THE REDEVELOPMENT AGENCY
OF THE CITY OF VALLEJO
AND
MARINA TOWER ASSOCIATES,
A California Limited Partnership
(MARINA TOWER PROJECT)
8/23/05
748904vl2 05137/0042
PARTICIPATION AGREEMENT
TABLE OF CONTENTS
I. [§100] SUBJECT OF AGREEMENT
A. [§101] Purpose of this Agreement
B. [§102] Parties to this Agreement
1. [§103] The Agency
2. [§104] The Participant
C. [§105] The Site
II. [§200] IMPROVEMENT OF THE SITE
A. [§201] Improvement of the Site
1. [§202] Scope of Development
2. [§203] Project Financing
3. [§204] Development Review
4. [§205] Schedule of Performance
5. [§206] Bodily Injury and Property Damage Insurance;
Indemnification
6. [§207] City and Other Governmental Agency Permits
7. [§208] Rights of Access During Construction
8. [§209] Anti-Discrimination During Construction
B. [§210] Prohibition Against Transfer and Assignment of Agreement
C. [§211] Security Financing; Rights of Holders
1. [§212] Holder Not Obligated to Construct
2. [§213] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure
D. [§214] Certificate of Completion
E. [§215] Records; Reporting Requirements
F. [§216] Notification of Housing Opportunities
III. [§300] AGENCY ASSISTANCE
A. [§301] Agency Loan
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B. [§302] Affordable Housing Covenant
C. [§303] Subordination of Agency Loan
IV. [§400] USE OF THE SITE
A. [§401] Affordable Units
B. [§402] Management; Maintenance
C. [§403] Obligation to Refrain from Discrimination
D. [§404] Form of Nondiscrimination and Nonsegregation Clause E. [§405] Rights of Access
F. [§406] Effect and Duration of Covenants
V. [§500] DEFAULTS AND REMEDIES
A. [§501] Defaults
B. [§502] Legal Actions
C. [§503] Applicable Law
D. [§504] Rights and Remedies are Cumulative
E. [§505] Damages
F. [§506] Specific Performance
VI. [§600] GENERAL PROVISIONS
A. [§601] Conflicts of Interest
B. [§602] Nonliability of Agency Officials and Employees VII. [§700] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
VIII [§800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
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EXHIBITS
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBITJ
Map of the Site
Legal Description of the Site
Scope of Development
Schedule of Performance
Form of Certificate of Completion
Form of Agency Note
Form of Agency Deed of Trust
Affordable Housing Covenant
Memorandum of Participation Agreement
Leasing Guidelines
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT, dated for reference purposes as of August 1, 2005, is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF VALLEJO (the "Agency") and MARINA TOWER ASSOCIATES, a California Limited Partnership (the "Participant"). The Agency and the Participant agree as follows:
I. [§100] SUBJECT OF AGREEMENT
A. [§101] Purpose of this Agreement
Pursuant to Section 33334.2 of the California Health and Safety Code, the Agency has set aside twenty percent (20%) of tax increment revenues it has received to improve and increase the supply of affordable housing in the City of Vallejo ("City").
The Agency desires to use a portion of these monies to provide loans to the Participant to assist in the acquisition and rehabilitation of certain real property, including without limitation all improvements now or hereafter located thereon (the "Site"), located within the City of Vallejo, California, including a multi-family residential apartment complex for affordable housing purposes (the "Project").
The Project will benefit very-low income senior households in the City of Vallejo. The acquisition of the Project by the Participant, the provision of the Agency assistance provided for hereunder, and the fulfillment generally of this Agreement, are in the best interests of the City of Vallejo and the welfare of its residents, and in accordance with the public purposes and provisions of applicable Federal, State and local laws and requirements.
Pursuant to Health and Safety Code Section 33490, the Agency adopted for each of its redevelopment project areas a five-year Implementation Plan (collectively, the "Implementation Flan") which included a section addressing the Agency's housing obligations and expenditures of the Housing Fund monies throughout the community for programs and projects to increase, improve and preserve the community's supply of housing affordable to low and moderate income households.
As stated in the Implementation Plan, "The goal during the Implementation Plan Period will be to comply with the Settlement Agreement executed in July 1999 as a result of litigation. This goal was re-enforced by the Agency Resolution 99-16 establishing criteria for the use of Affordable Housing Funds. The Agency will expend funds in a manner that secures 30-year affordability covenants on properties." The Settlement Agreement referenced above (the "Settlement Agreement") was executed by the parties in the action of Muntu Buchongo, et al, v. City of Vallejo, et al -I- 8/23/05
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(Solano Superior Court, Case No. L006935). This Agreement is intended to comply with tiie terms of the Settlement Agreement, and will further the Agency's goals and objectives set out in the Implementation Plan.
B. [§102] Parties to this Agreement
1. [§103] The Agency
The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 etseq.). The principal office of the Agency is located at 555 Santa Clara Street, 3rd Floor, Vallejo, California 94590. The term "Agency" shall mean any assignee or successor in interest to the Agency.
2. [§104] The Participant
The Participant is Marina Tower Associates, a California Limited Partnership, whose managing general partner is BRIDGE Tower LLC, a California limited liability company whose member/manager is Northpoint Housing, Inc., a California nonprofit public benefit corporation; and whose co-general partner is JSCO Tower, LLC, a California limited liability company whose member/manager is The John Stewart Company, a California corporation. The principal address of the Participant is 345 Spear Street, Suite 700, San Francisco, California 94105.
Whenever the term "Participant" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided.
The qualifications and identity of the Participant are of particular concern to the Agency, and it is because of such qualifications and identity that the Agency has entered into this Agreement. Prior to the issuance of the Certificate of Completion for the Project, as set forth in Section 214 hereof, no voluntary or involuntary successor in interest of the Participant shall acquire any rights or powers under this Agreement, and the Participant shall not assign all or any part of this Agreement without the prior written approval of the Agency, which approval will not be unreasonably withheld. Participant shall be in default hereunder if there is any material change (voluntary or involuntary) in the managing general partner of the Participant prior to the completion of development of the Project as evidenced by the issuance of a Certificate of Completion therefor.
Notwithstanding the foregoing, the Agency hereby approves the following transfers of interest in the Participant ("Approved Transferees"): the addition of tax credit investors as limited partners; transfer to an affiliate or non-profit corporation, partnership or other entity created by Participant of which BRIDGE -2- 8/23/05
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Housing Corporation or an affiliate of BRIDGE Housing Corporation is the sole owner, managing general partner or otherwise has a controlling interest; and the acquisition of a limited partner's interest in the Participant. Participant shall provide Agency with a copy of any documents evidencing a transfer of interest to an Approved Transferee.
C. [§105] The Site; Parking Lease
The Site is shown on the "Map of the Site," attached to this Agreement as Exhibit A and incorporated herein by reference, and as more particularly described in the "Legal Description of the Site," attached hereto as Exhibit B and incorporated herein by reference. The Site is currently developed with a 155-unit multi-family apartment complex, currently owned by a third party, which will be acquired by the Participant as provided for hereunder.
Parking for the tenants of the apartment complex located on the Site is provided on certain property owned by the Agency and located adjacent to the Site (the "Parking Lot Property"), pursuant to that certain Lease of Automobile Parking Spaces for Apartment House Adjacent to Demised Premises, dated July 6, 1971, entered into between Agency, as Lessor, and Jack Baskin (the current owner of the Site) ("Baskin"), as Lessee, recorded in the Official Records of the County of Solano on September 7,1971, as Document No. 18063, in Book 1705, Page 179, as amended by that certain Amendment to Lease, dated September 6,1972, recorded in the Official Records of the County of Solano on October 12,1972, as Document No. 23507, in Book 1781, Page 557 (collectively, the "Parking Lease"). Upon acquisition of the Site by the Participant, all obligations of Lessor under the Parking Lease shall be assigned to and assumed by Participant, and the Parking Lease shall be concurrently amended pursuant to an Assignment of and Amendment to Lease of Automobile Parking Spaces for Apartment House Adjacent to Demised Premises, between Agency, Baskin and Participant, the form and content of which have been approved by the parties prior to or concurrently with execution of this Agreement.
II. [§200] IMPROVEMENT OF THE SITE
A. [§201] Improvement of the Site
1. [§202] Scope of Development
The Site, including the 155 dwelling units currently located on the Site (referred to herein as "Units", and each a "Unit"), shall be rehabilitated pursuant to the terms of this Agreement and the "Scope of Development" attached hereto as Exhibit C and incorporated herein by reference. The Units shall be rented to and affordable to senior citizens (as defined in Section 401) who are qualified as Eligible Households, as provided in Section 401 of this Agreement. Participant shall diligently pursue the acquisition of the Site and development of the Project in accordance with the -3- 8/23/05
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Scope of Development (Exhibit C) and in accordance with the "Schedule of Performance" attached hereto as Exhibit D and incorporated herein by reference.
Participant's failure to comply with any of the terms set forth in the Scope of Development (Exhibit C) or the Schedule of Performance (Exhibit D), following notice to Participant and expiration of any applicable cure period provided for hereunder, shall be a default hereunder.
2. [§203] Project Financing
In addition to the Agency assistance provided for in Section 301, the Participant may seek approval of one or more loans from a private lender and/or federal and/or state Low Income Housing Tax Credits and/or a loan from the City of HOME funds (collectively, the "Participant's Financing") for the acquisition and rehabilitation of the Project or assume the existing HUD loan on the Site. Participant's Financing shall be subject to the approval of the Agency. The Participant shall complete all actions necessary to secure all approvals and commitments necessary to effectuate the Participant's Financing, or other alternative funding, as the case may be, in an amount satisfactory to undertake and complete the acquisition and rehabilitation of the Project.
Subject to the Agency assistance provided for hereunder, the cost of acquiring the Site and rehabilitating the improvements thereon shall be borne solely by the Participant.
3. [§204] Development Review
Within the time established in the Schedule of Performance (Exhibit D), the Participant shall submit to the City all construction plans, drawings and related documents if such are required for the rehabilitation of the Units on the Site.
Participant shall obtain all approvals and permits that may be required under the City's normal plan check, development review and approval process for the construction work to be completed on the Site.
During the preparation of any drawings and plans for the rehabilitation of the Site, the Agency staff and the Participant shall meet with City staff and communicate and consult informally and as frequently as is necessary to ensure that the formal submittal of any documents to the City pursuant to this Section 204 can receive prompt consideration.
The Participant shall submit for City's review copies of all contracts for the construction, engineering, architect, marketing, sales and any other technical consultants for the Project, provided the City shall not have the right to approve or disapprove such agreements except to ensure compliance with the provisions of this Agreement. Participant shall use its best efforts to use local contractors and consultants -4- 8/23/05
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whenever possible. "Local" shall be defined as within the City of Vallejo.
Notwithstanding the foregoing, the Agency approves Portrait Homes, Inc., as the general contractor for the Project. Agency shall have the right to review any bid process that may be employed by Participant to ensure compliance with all of the foregoing.
Participant shall provide Agency with all information Agency requests regarding any such bid process.
4. [§205] Schedule of Performance
Participant shall promptly begin and thereafter diligently prosecute to completion the acquisition of the Project and rehabilitation of the improvements on the Site, as provided in the Scope of Development (Exhibit C), within the times specified in the Schedule of Performance (Exhibit D) with such reasonable extensions of said times as may be granted by the Agency. The Schedule of Performance (Exhibit D) is subject to revision from time to time as mutually agreed upon in writing between the Participant and the Agency. The Agency's Executive Director shall have the authority to approve, on behalf of the Agency, any such extensions of time he or she deems reasonable and appropriate.
5. [§206] Bodily Injury and Property Damage
Insurance; Indemnification
During the periods of construction on the Site and until such time as the final Certificate of Completion has been issued by the Agency indicating completion of the construction and rehabilitation work required by this Agreement, the Participant agrees to and shall indemnify, protect, defend and hold the Agency and the City and their officers, directors, employees and agents harmless from and against all liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Site and which shall be caused by any acts done thereon or any errors or omissions of the Participant or its agents, servants, employees or contractors; provided, however, that such indemnification shall not apply to any liability, loss, damage, costs or expenses caused by the gross or active negligence or willful misconduct of the Agency or the City, or their respective agents, servants, employees or contractors. The Agency and the City shall not be responsible for any acts, errors or omissions of any person or entity except the Agency and the City and their respective agents, servants, employees or contractors.
Prior to the commencement of any work on the Site, the Participant shall furnish, or cause to be furnished, to the Agency duplicate originals or appropriate certificates of insurance evidencing commercial general liability insurance on an occurrence basis insuring against bodily injury and property damage in a combined single limit of liability per occurrence in the amount of $5,000,000.00, general aggregate -5- 8/23/05
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limit of $10,000,000.00, naming the Agency and the City as additional insureds.
Participant shall further provide evidence of automobile liability insurance on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than $1,000,000 per occurrence, covering owned, non-owned and hired automobiles. Participant shall also provide evidence of worker's compensation insurance in the statutory amount required by law.
Participant's contractor, and subcontractors if any, shall also submit evidence of liability insurance in the same form and amount as required by Participant, unless otherwise approved by the Agency's Executive Director based on review by the City's Risk Manager.
All insurance policies and renewals thereof shall be issued by carriers and under forms of policies satisfactory in all respects to Agency and shall provide that notice must be given to Agency at least thirty (30) days prior to cancellation or material change. The policies shall stipulate that this insurance will operate as primary insurance and that no insurance effected by Agency will be called upon to contribute to a loss suffered by Participant hereunder. Participant agrees to furnish any certificates of insurance evidencing the above-described policies as requested by the Agency. Such certificates must be approved by the Agency before any funds will be advanced pursuant to this Agreement. Upon notification of receipt by Agency of a notice of cancellation or major change in coverage, Participant shall file with Agency a certified copy of the required new or renewal policy, and certificates for such policy.
If, at any time Participant fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately and all payments due or that become due to Participant shall be withheld until notice is received by Agency that the required insurance has been restored to full force and effect and that the premiums therefor have been paid for a period satisfactory to Agency.
Any failure to maintain the required insurance will be sufficient cause for Agency to seek any remedy available to Agency pursuant to this Agreement, including without limitation termination of this Agreement.
6. [§207] City and Other Governmental Agency
Permits
Prior to the commencement of construction (or any work related thereto) upon the Site, the Participant shall secure, or cause to be secured, any and all permits which may be required by the City or any other governmental agency affected by such construction.
7. [§208] Rights of Access During Construction
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charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements.
8. [§209] Anti-piscrimination During Construction
The Participant, for itself and its successors and assigns, agrees that in the construction and renovation of improvements on the Site provided for in this Agreement, the Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry or national origin.
B. [§210] Prohibition Against Transfer and Assignment
of Agreement
Prior to the completion of the development and construction work to be performed on the Site and the issuance of a Certificate of Completion therefor, the Participant shall not, except as permitted by Sections 104 and 211 of this Agreement, assign or attempt to assign this Agreement or any rights herein, nor make any total or partial sale, transfer, conveyance, assignment or lease of the whole or any part of the Site or the improvements thereon, without the prior written approval of the Agency.
This prohibition shall not apply subsequent to the completion of the development and construction as evidenced by a Certificate of Completion. This prohibition shall not be deemed to prevent the granting of easements, dedications or permits to facilitate the construction and development of the Site. This prohibition further shall not be deemed to prevent the rental of the apartment units to tenants and Eligible Households, subject to the affordability and use restrictions provided for herein.
Following transfer of the Site, or any portion thereof, with the Agency's consent, Participant shall be relieved of all of its obligations hereunder with respect to such portion of the Site transferred; provided any such buyer, transferee, conveyee, assignee or lessee of any portion of the Site for which a Certificate of Completion has not been issued, by instrument in writing satisfactory to the Agency and in form recordable among the land records, for itself and its successors and assigns, and for the benefit of the Agency, shall expressly assume all of the obligations of the Participant under this Agreement and agree to be subject to all conditions and restrictions to which the Participant is subject with respect to that portion of the Site so transferred. In the absence of specific written agreement of any proposed buyer, transferee, conveyee, assignee or lessee approved by the Agency as referred to above, no such sale, transfer, conveyance, assignment or lease, or the approval thereof by the Agency, shall be deemed to relieve the Participant or Approved Transferees, or any other party, from any obligations under this Agreement.
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C. [§211] Security Financing; Rights of Holders
1- [§212] Holder Not Obligated to Construct
The holder of any mortgage, deed of trust or other security interest providing construction financing for the Project shall in no way be obligated by the provisions of this Agreement to construct or renovate, or complete construction or renovation of, the improvements, or to guarantee such construction or renovation or completion.
2. [§213] Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure
Whenever the Agency shall deliver any notice or demand to the Participant with respect to any breach or default by the Participant of this Agreement, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement (provided such mortgagee has previously made a written request therefor) a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, and if Participant has failed to cure the breach or default, at its option within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction of the improvements, or the completion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Participant's obligations to the Agency by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the construction of the improvements to which the lien or title of such holder relates.
D. f§214] Certificate of Completion
As more fully described in Article IV of this Agreement and the Scope of Development (Exhibit C hereto), the improvements located on the Site shall be rehabilitated and used for an affordable rental housing complex. Upon the satisfactory completion of the construction and rehabilitation work to be completed on the Site, the Participant shall send a written request to the Agency and the Agency shall furnish the Participant with a Certificate of Completion for such work, in a form suitable for recording in the Official Records of Solano County, California, and substantially similar to that set forth in Exhibit E to this Agreement. The Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction of the Project as required by this Agreement. -8- 8/23/05
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A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation by the Participant to any holder of a mortgage or any insurer of a mortgage securing money loaned to finance the improvements or any part thereof. A Certificate of Completion is not notice of completion as referred to in California Civil Code Section 3093. The Certificate of Completion provided for in this Section 214 is not a Certificate of Occupancy issued by the City.
E. [§215] Records; Reporting Requirements
Upon acquisition of the Project/ the Participant shall submit to the Agency air information required by the Agency regarding the use and occupancy of the units, including without limitation, address of the Units, initial rent level, the income level of the Eligible Household and number of persons in the Eligible Household, whether the Unit is restricted to seniors or the elderly, by the number of bedrooms, and any other information requested by the Agency.
Thereafter, the Participant shall submit to the Agency annual reports during the term of the Affordable Housing Covenant, together with supporting evidence, identifying the Eligible Household(s) occupying the Unit(s), the income and family size of the new Eligible Households occupying the Unit(s), and the rental rate for each Eligible Household occupying the Unit(s). Such annual reports shall be due by February 15 of each year, covering the immediately preceding January 1 through December 31 reporting year. Such information shall be reported to the Agency pursuant to Health and Safety Code Section 33418, in substantially the form attached as Exhibit B to the Affordable Housing Covenant (Exhibit H hereto), or in a substantially equivalent format acceptable to the Agency.
The Participant shall maintain in accordance with generally accepted accounting principles, complete books and records relating to the acquisition, construction and development of the Project and the rental of the Units within the Project. The Participant shall maintain such books and records for a period of five (5) years after the year to which such books and records pertain. Upon written request for examination by the Agency with a minimum of two (2) business days prior notice, the Participant at any time during normal business hours, shall make available all of its records with respect to all matters covered by this Agreement, including records relating to the Eligible Households. Participant shall permit the Agency to audit, examine and make excerpts or transcripts from these records.
F. [§216] Notification of Housing Opportunities
The Participant acknowledges that it is. aware of, fully understands and agrees to cooperate with the Agency to comply with the noticing requirements and preferences set forth in Section V of the Settlement Agreement referenced in Section 101, above, to the extent such noticing and preference requirements are in effect. The -9- 8/23/05
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Participant shall cooperate with the Agency to provide all information and schedules as referenced under said Section V in sufficient time to enable the Agency to comply with the noticing requirements of said Section V.
G. [§217] Prevailing Wages
When improvements which are considered to be public works under State law .are constructed, the Participant shall and shall cause the contractor and subcontractors to pay prevailing wages in the construction of the improvements as those wages are determined pursuant to Labor Code Sections 1720 et seq. ^and implementing regulations of. the Department of Industrial Relations and comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations. The Participant shall and shall cause its contractor and subcontractors to keep and retain such records as are necessary to determine that prevailing wages have been paid as required by law. Copies of the currently applicable per diem prevailing wages are available from the City of Vallejo Public Works Department, 555 Santa Clara Street, Vallejo, California 94590. During the construction of the improvements, Participant shall or shall cause its contractor to post at the Site the applicable prevailing rates of per diem wages. Participant shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the Agency and the City) the Agency and the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Participant, its contractors and subcontractors) to pay prevailing wages as required by law or to comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations in connection with construction of the improvements or any other work undertaken or in connection with the Site. The foregoing indemnity shall survive any termination of this Agreement.
III. [§300] AGENCY ASSISTANCE
A. [§301] Agency Loan
Subject to the conditions set forth herein, the Agency agrees to loan to the Participant an amount equal to SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) (the "Agency Loan"), to pay a portion of the costs to acquire the Project and such other costs related to the rehabilitation of the Project as approved by Agency.
The Agency Loan shall be evidenced by a non-recourse promissory note (the "Agency Note"), reflecting the amount of the Agency Loan. The Agency Note shall be executed and delivered by the Participant to the Agency in substantially the form attached hereto as Exhibit F and incorporated herein by reference. As security for the Agency Note, the Participant shall grant to the Agency a deed of trust (the "Agency -10- 8/23/05
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Peed of Trust") creating a valid lien upon the Site in substantially the form attached hereto as Exhibit G and incorporated herein by reference.
The Agency shall deliver the proceeds of the Agency Loan to the Participant, upon satisfactory completion of all of the following:
(a) The Participant shall deliver to the Agency evidence that the Participant has equity capital or mortgage financing in an amount sufficient to pay all costs necessary to acquire the Site;
(b) The Participant shall deliver to the Agency evidence that the Participant is diligently proceeding with the preparation of all construction plans, drawings and related documents, and obtaining approvals of all permits and any environmental review and documentation that may be required for the rehabilitation of the Project;
(c) The Participant shall deliver to the Agency a copy of the purchase agreement between Participant and the third-party owner of the Site, together with evidence satisfactory to Agency that all actions have been taken (with the exception of deposit of funds) and all necessary documents have been executed by the appropriate parties and deposited with the escrow agent, and escrow is ready to close for conveyance of fee title to the Site from the third party owner to the Participant; (d) The Participant shall execute and deliver to the Agency (or to the escrow agent for the benefit of the Agency) the Agency Note and Agency Deed of Trust (in recordable form) evidencing the Agency Loan;
(e) The Participant shall execute in recordable form and deliver to the Agency (or the escrow agent for the benefit of the Agency) the Memorandum of Participation Agreement in substantially the form set forth in Exhibit I hereto, and the Affordable Housing Covenant provided for under Section 302, below; (f) The Participant shall furnish to Agency certificates of insurance in accordance with Section 206; and
(f) The Participant shall deliver to the Agency a binding commitment by a title insurance company acceptable to the Agency to issue an ALTA lender' s policy of titie insurance ("Title Policy") in form and substance acceptable to Agency and with any endorsement the Agency may reasonably require, insuring the Agency in the principal amount of the Agency Loan, of the validity and the priority of the Agency Deed of Trust and Affordable Housing Covenant as a lien upon the Site or applicable portion thereof, subject only to matters of record approved by the Agency in writing -11- 8/23/05
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and the Participant's construction and permanent financing as set forth herein, and showing fee simple title to the Site in the name of the Participant.
The Agency Loan shall be repaid pursuant to the terms and conditions set forth in the Agency Note. Notwithstanding anything in this Agreement to the contrary, in the event Maker fails, for any reason, to. close escrow to acquire the Site and commence rehabilitation of the Site pursuant to this Agreement by December 1, 2005, then the Agency shall have sole discretion to terminate this Participation Agreement and accelerate repayment of the Agency Note.
B. [§302] Affordable Housing Covenant
Concurrently with execution of the Agency Note, and prior to and as a condition precedent to funding of any portion of the Agency Loan, the Participant shall also execute and deliver an affordable housing covenant (the "Affordable Housing Covenant") to the Agency in the form substantially as set forth in Exhibit H hereto and incorporated herein by reference. The Affordable Housing Covenant shall be recorded against the entire Site.
C. [§303] Subordination of Agency Loan
The Agency agrees to subordinate the Agency Deed x>f Trust provided for in Section 301, above, to financing obtained by Participant through the Participant's Financing, or alternative financing obtained by Participant pursuant to the terms of the subordination agreements and/or other intercreditor agreements that may be entered into by Agency; provided the total aggregate amount of permanent long-term financing secured by the Participant, together with the Agency Loan, shall not exceed the appraised value of the completed Project, unless otherwise approved by the Agency; and provided, further, that any such subordination shall be subject to the provisions set forth in this Section 303 and paragraph 3 of the Addendum to Agency Deed of Trust (Exhibit G). The Agency shall have the right to review and approve the terms and conditions of any such senior financing, which approval shall not be unreasonably withheld. The Agency shall have the right to record a request that the Agency receive notice of any default by the Participant under the Participant's Financing or other financing obtained by the Participant with respect to the Project. To implement any such subordination, the Agency agrees to cooperate with the Participant and the Executive Director of the Agency shall have the authority to execute such subordination agreements and/or intercreditor agreements that may be reasonably required, in form and content approved by Agency counsel. Notwithstanding the foregoing, the Agency hereby approves construction and permanent financing obtained by Participant from Union Bank of California, N.A. and the California Municipal Finance Authority from the issuance of up to $16,100,000 of Multifamily Housing Revenue Bonds. -12- 8/23/05
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IV. [§400] USE OF THE SITE
A. [§401] Affordable Units
The Site is currently developed with a multi-family complex consisting of 155 rental dwelling units (collectively referred to herein as "Units", and each a "Unit").
Participant intends that all of the Units shall be rented to senior citizens and affordable to Eligible Households (as defined below). The Units located on the Site shall be rehabilitated by the Participant pursuant to plans approved by the City and pursuant to the Scope of Development.
The Participant covenants and agrees for itself, its successors, its assigns and every successor in interest, that all of the Units located on the Site shall be rented to qualified very-low and low income persons and families who qualify as senior citizens under California Qvil Code Section 51.3, as the same may be amended from time to time, and whose income does not exceed the limits set forth below ("Eligible Households") in compliance with the Affordable Housing Covenant:
1. Not less than eighty (80) of the Unit shall be available to Eligible Households whose income does not exceed fifty percent (50%) of the area median income; and
2. The remaining not more than seventy-five (75) Units shall be available to Eligible Households whose income does not exceed sixty percent (60%) of the area median income; and
3. Notwithstanding the foregoing, Participant may, in its sole reasonable judgment, elect to have a property manager residing on - the Site, in which event one (1) of the Units may be used as a resident manager's unit, and such Unit shall not be subject to the above affordability restrictions so long as such Unit is made available to and occupied by an on-site manager for the Project.
Notwithstanding the foregoing, the parties acknowledge that four (4) of the Units are currently occupied by existing tenants whose income exceeds the qualifying limits specified above, and twenty-two (22) of the Units are occupied by existing tenants who do not qualify as senior citizens. The parties agree that said existing tenants who do not meet the qualifications for Eligible Households set forth above (each a "Prior Tenant") shall not be required to relocate from the Project so long as the Prior Tenant continues to occupy its current Unit. In such event, any Unit occupied by a Prior Tenant shall not be subject to the above affordability restrictions so long as the Prior Tenant continues to occupy such Unit. Following vacation of any such Unit by a Prior Tenant, such Unit shall thereafter be subject to the above affordability restrictions. -13- 8/23/05
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The maximum rent for the Eligible Households for each of the income levels set forth above must comply with Health and Safely Code Section 50053 and the regulations promulgated by the California Department of Housing and Community Development Sections 6910-6932 in Title 25 of the California Code of Regulations, governing the Agency's set aside housing fund; provided however that such requirements may be superseded by the eligibility requirements established by the Participant's Financing or the regulatory agreement relating to any other federally or state administered program providing financing for the Project.
Rental restrictions establishing the criteria for rental of the Units to Eligible Households are contained in the Affordable Housing Covenant to be recorded against the Site and applicable to the Units. The Units shall remain affordable for the longer of: (a) fifty-five (55) years from the date of recordation of the Affordable Housing Covenant, or (b) until payment in full of all amounts owed to the Agency under the Agency Note.
The Agency and Participant acknowledge that there is an ongoing need in the Vallejo community for housing at the affordable rent levels specified above. Prior to the expiration of the affordability period set forth in the preceding paragraph and in the Affordable Housing Covenant, the Participant shall make good faith efforts to obtain funding or otherwise provide a way to continue to operate the Units on the Site as affordable Units, at the specified rent levels, for an additional fifteen (15) years from the expiration of the Affordable Housing Covenant. Good faith efforts shall include, but are not limited to, applying for financial assistance, available housing subsidies, or refinancing, as needed. The Participant shall work with the Agency to identify potential funding sources for the aforementioned financial assistance.
B. [§402] Property Management; Maintenance of the Project Within the time set forth in the Schedule of Performance (Exhibit D), the Participant shall prepare and enter into an agreement with a property management company (the "Property Management Company") preapproved by the Agency to manage the Project. The Participant shall submit a copy of such agreement to the Agency, provided the Agency shall not have the right to approve or disapprove such agreement except to ensure compliance of such agreement with the provisions of this Agreement and the Affordable Housing Covenant. The property management agreement shall name the Agency as a third-party beneficiary permitting the Agency the right to enforce the Agreement upon the default (after expiration of all notice and cure periods) of the Property Management Company.
For purposes of this Section 402, the Agency hereby approves of John Stewart Company as an approved Property Management Company. The Participant shall promptly notify the Agency in the event there is any change in the Property Management Company managing the Project. The Agency shall have the right to -14- 8/23/05
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approve any new Property Management Company, which approval shall not be unreasonably withheld. In the event that the Property Management Company changes, Participant shall prepare and enter into an agreement with another property management company and submit such agreement to the Agency to ensure compliance as stated above.
The Participant further covenants, and the property management agreement shall require, that the Project shall be operated and Eligible Households shall be qualified and selected for tenancy in strict compliance with the Property Management Company's Leasing Guidelines for the Project approved by the Agency, a copy of which is attached hereto as Exhibit J and incorporated herein by reference.
Any modifications or amendments to the Leasing Guidelines shall require prior written approval of the Agency, which approval shall not be unreasonably withheld or delayed.
The Agency's Executive Director shall have the authority to approve any such modifications or amendments on behalf of the Agency.
The Participant covenants that it shall maintain, or cause to be maintained, the Site and the improvements to be rehabilitated thereon, in a manner consistent with the provisions set forth therefor in the Vallejo Municipal Code, and shall keep the Site reasonably free from any accumulation of debris or waste materials prior to and after completion of the Project.
If, at any time, Participant fails to maintain and operate the Site in accordance with this Agreement, the Agency shall have the right to take necessary corrective action pursuant to the provisions set forth in the Agency Note and the Affordable Housing Covenant.
Failure by Participant to maintain, or cause to be maintained, the Site in the condition provided in this Section 402 shall, following expiration of all applicable notice and cure periods, constitute a default hereunder and under the Agency Note, the Agency Deed of Trust and the Affordable Housing Covenant; provided, however, that nothing herein or in the Agency Note, the Agency Deed of Trust, or the Affordable Housing Covenant shall be deemed to provide Participant with more than one notice and cure period for each event of default.
The foregoing covenants shall remain in effect for a period of fifty-five (55) years from the date the Affordable Housing Covenant is recorded against the Site.
C. [§403] Obligation to Refrain from Discrimination
The Participant covenants and agrees for itself, its successors, its assigns and every successor in interest to the Site, the Units or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on -15- 8/23/05
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account of race, color, creed, sexual orientation, physical handicap, medical condition, source of income, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Participant or any person claiming under or through the Participant 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 Units. The foregoing covenants shall run with the land in accordance with Section 33438 of the Health and Safety Code and shall remain in effect in perpetuity.
D. [§404] Form of Nondiscrimination and Nonsegregation
Clause
The Participant shall refrain from restricting the rental, sale or lease of any portion of the Site on the basis of race, color, creed, sexual orientation, physical handicap, medical condition, source of income, religion, sex, marital status, ancestry or national origin of any person. Pursuant to Sections 33337 and 33436 of the Health and Safety Code or any successor statute, all such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for himself or herself, his or her 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, color, creed, sexual orientation, physical handicap, medical condition, source of income, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any person claiming under or through him or her, 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 land herein conveyed. The foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, sexual orientation, physical handicap, medical condition, source of income, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, -16- 8/23/05
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number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased."
3. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, sexual orientation, physical handicap, medical condition, source of income, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee , or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." E. [§405] Rights of Access
For the purposes of assuring compliance with this Agreement, representatives of the Agency and the City shall have the reasonable right of access to the Site, with reasonable notice to Participant and subject to the rights of the tenants, and without charges or fees for the purpose of inspection of the Site.
F. [§406] Effect and Duration of Covenants
The covenants contained in Sections 401 and 402 of this Agreement shall be deemed to run with the land in accordance with Section 33334.3(f) of the Health and Safety Code or any successor statute and shall remain in effect for the longer of: (a) a period of not less than fifty-five (55) years) from the date of recordation of the Affordable Housing Covenant against the Site, or (b) until payment in full of all amounts owed to the Agency under the Agency Note. The covenants against discrimination contained in Sections 403 and 404 of this Agreement shall be deemed to run with the land in accordance with Section 33438 of the Health and Safety Code or any successor statute and shall remain in effect in perpetuity. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the part of the Participant and any successors and assigns to the Site or any part thereof, and the tenants, lessees, sublessees and occupants of the Site, for the benefit of and in favor of the Agency, the City and their successors or assigns and may be enforced by the Agency, the City and their successors and assigns.
V. [§500] DEFAULTS AND REMEDIES
A. [§501] Defaults
Failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The nondefaulting party shall notify the defaulting party that a default exists and that the defaulting party must cure monetary defaults within twenty (20) days of receipt of the notice of default and all other defaults within forty-five (45) days of receipt of the notice of default or, where -17- 8/23/05
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cure is not possible within said forty-five (45) days, that cure must be commenced within forty-five (45) days and diligently prosecuted to completion. The party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default.
B. [§502] Legal Actions
In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Solano, State of California, in any other appropriate court in that county, or in the Federal District Court in the Northern District of California.
C. [§503] Applicable Law %.
The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
D. [§504] Rights and Remedies are Cumulative
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 time or different times, of any other rights or remedies for the same default or any other default by the other party.
E. [§505] Damages
If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured within twenty (20) days, with respect to monetary defaults, and within forty-five (45) days for all other defaults, after service of the notice of default, or if Participant is not diligently prosecuting to completion the cure, the defaulting party shall be liable to the non-defaulting party for damages caused by such default.
F. [§506] Specific Performance
If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured within twenty (20) days after service of notice of default, with respect to monetary defaults, or not cured or commenced to be cured within forty-five (45) days of service of the notice of default, with respect to all -18- 8/23/05
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other defaults, and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the non-defaulting party, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default.
VI. [§600] GENERAL PROVISIONS
A. [§601] Conflicts of Interest
No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested.
The Participant warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement.
B. [§602] Nonliability of Agency Officials and Employees No member, official or employee of the Agency or the City shall be personally liable to the Participant in the event of any default or breach by the Agency or for any amount which may become due to the Participant or on any obligations under the terms of this Agreement.
C. [§603] Notices
Formal notices, demands, and communications between the Agency and the Participant shall be sufficiently given if, and shall not be deemed given unless, secured personally, or dispatched by certified mail, return receipt requested, or by facsimile transmission or reputable overnight delivery service with a receipt showing date of delivery, to the principal offices of the Agency and the Participant as follows:
Agency: Redevelopment Agency
oftheCityofVallejo
555 Santa Clara Street, 3rd Floor
Vallejo, CA 94590
Attn: Executive Director
With a copy to:: Redevelopment Agency
oftheCityofVallejo
555 Santa Clara Street, 3rd Floor
Vallejo, CA 94590
Attn: Agency Counsel
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And a copy to: City of Vallejo
555 Santa Clara Street, 3rd Floor
Vallejo, CA 94590
Attn: Community Development Director
Participant: Marina Tower Associates
345 Spear Street, Suite 700
San Francisco, CA 94105
Attn: Vice President, Northpoint Housing, Inc.
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this section. Delivery shall be deemed to have occurred at the time indicated on the receipt for delivery or refusal of delivery.
VII. [§700] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement is executed in three (3) duplicate originals each of which is deemed to be an original. This Agreement comprises pages 1 through 21, inclusive, and Exhibits A through J which constitute the entire understanding and agreement of the parties with respect to the Project.
This Agreement may be executed in counterparts, each of which, when taken together, shall constitute an original.
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and the Participant, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Participant.
VIII. [§800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY This Agreement, when executed by the Participant and delivered to the Agency, must be authorized, executed and delivered by the Agency within thirty (30) days after the date of signature by the Participant or this Agreement shall be void, except to the extent that the Participant may consent in writing to further extensions of time for the authorization, execution and delivery of this Agreement. The effective date of this Agreement shall be the date first set forth above.
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REDEVELOPMENT AGENCY
OF THE CITY OF VALLEJO
By:
ROGER L.KEMP
Executive Director
APPROVED AS TO FORM:
E.LpCX^TJ »'
L
FREDERICK G. SOLEY
Agency Counsel
ATTEST:
•NVILLARANTE
fcy Secretary
APPROVED AS TO INSURANCE
REQUIREMENTS:
WILLIAM R.VENSKI
Risk Manager, City of Vallejo
MARINA TOWER ASSOCIATES,
a California limited partnership
By: BRIDGE TOWER, LLC,
a California limited liability company
(Its Managing General Partner)
By: NORTHPOINT HOUSING, INC.,
a California nonprofit public
benefit corporation
(Its Member/Manas;
Its:
By: JSCO TOWER, LLC,
a California limited liability company
(Its Co-General Partner)
By: THE JOHN STEWART COMPANY,
a California corporation
(Its Member/Manager)
By;
its:
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8/23/05
EXHIBIT A
MAP OF THE SITE
[To Be Inserted.]
Exhibit A 8/23/05
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CITY OF VALLEJO
PARCEL As
EXHIBITS
LEGAL DESCRIPTION OF THE SITE
A PORTION OF BLOCK 200, AS SHOWN ON A MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967, IN BOOK 23 OF MAPS, AT PAGE 51, ET SEQ IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AS INSTRUMENT NO. 1907, BEING PARCEL 202, AS SHOWN ON A PARCEL .MAP FILED SEPTEMBER 15, 1969, IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 16313, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EAST LINE OF SAID BLOCK 200, SAID EAST LINE BEING THE WESTERLY LINE OF SACRAMENTO STREET, 80 FEET WIDE, FROM WHICH THE SOUTHEAST CORNER OF SAID BLOCK BEARS.SOUTH 02° 07' 42" WEST 349.44 FEET; THENCE FROM SAID POINT OF BEGINNING ALONG SAID EAST LINE OF BLOCK 200, NORTH 02° 07' 42" EAST, 151.00 FEET TO THE MOST EASTERLY SOUTHEAST CORNER OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED MARCH 13, 1967, IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 4323; THENCE ALONG THE SOUTHERLY AND EASTERLY BOUNDARY OF SAID PARCEL 201 NORTH 87° 52' 18" WEST 183.34 FEET AND SOUTH 02° 07' 42" WEST 151.00 FEET TO THE NORTHWEST CORNER OF PARCEL 203, AS SHOWN ON SAID PARCEL MAP FILED IN BOOK 3 OF PARCEL MAPS, AT PAGE 67; THENCE ALONG THE NORTHERLY BOUNDARY LINE OF SAID PARCEL 203 SOUTH 87° . 52' 18" EAST 183.34 FEET TO THE POINT OF BEGINNING.
ASSESSOR'S PARCEL NUMBER: 0055-160-180
PARCEL B: (LEASEHOLD INTEREST)
A PORTION. OF BLOCK 200, AS SHOWN ON THE MAP OF THE MARINA VISTA PROJECT, FILED FEBRUARY 1, 1967-IN BOOK 23 OF MAPS, AT PAGE 51, ET SEQ, .IN THE OFFICE OF THE COUNTY RECORDER OF SOLANO COUNTY, AS INSTRUMENT NO. 1907, BEING A PORTION OF PARCEL 201, AS SHOWN ON A PARCEL MAP FILED MARCH 13, 1967 IN BOOK 1 OF PARCEL MAPS, AT PAGE 55, IN THE OFFICE OF THE SOLANO COUNTY, RECORDER AS INSTRUMENT NO. 4323, MORE PARTICULARLY DESCRIBED AS FOLLOWS: .
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID BLOCK 200, SAID CORNER BEING THE INTERSECTION OF THE SOUTHERLY LINE OF CAPITOL. STREET AND THE WESTERLY LINE OF SACRAMENTO STREET; THENCE ALONG THE EASTERLY LINE OF SAID BLOCK 200, BEING THE WESTERLY LINE OF SACRAMENTO STREET, SOUTH 2° 07' 42" WEST, 150.00 FEET TO THE NORTHEASTERLY CORNER OF PARCEL 202, AS SHOWN ON A PARCEL MAP FILED SEPTEMBER 15, 1969 IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, IN THE OFFICE OF THE COUNTY. RECORDER OF SAID COUNTY, AS INSTRUMENT NO. 16313; THENCE ON THE NORTHERLY LINE OF ;SAID PARCEL 202, NORTH 87° 52' 18" WEST, 183.34 FEET TO THE NORTHWESTERLY CORNER THEREOF; THENCE ALONG THE WESTERLY LINE OF .SAID PARCEL 202 AND ALONG THE WESTERLY LINE OF PARCEL 203, AS SHOWN ON SAID PARCEL. MAP FILED IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, SOLANO COUNTY RECORDS, SOUTH 2° 07' 42" WEST, 186.00 .
FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 203; .THENCE ALONG THE NORTHERLY LINE OF PARCEL 205 AND ALONG THE NORTHERLY LINE OF PARCEL 204B, AS SAID PARCELS ARE SHOWN ON SAID PARCEL MAP FILED IN BOOK 3 OF PARCEL MAPS, AT PAGE 67, SOLANO COUNTY RECORDS, NORTH 87° 52' 18" WEST, 100.SO FEET; THENCE NORTH 2° 07' 42" EAST, 336.00 FEET,TO A POINT ON THE NpRTHERLY LINE OF SAID BLOCK 200; THENCE ALONG SAID NORTHERLY LINE OF SAID BLOCK 200, BEING THE SOUTHERLY LINE OF SAID CAPITOL STREET, SOUTH 87e 52' 18" EAST, 283.84 FEET TO THE POINT OF BEGINNING.
PORTION OF ASSESSOR'S PARCEL NUMBER: OOS5-160-170
EXHIBIT C
SCOPE OF DEVELOPMENT
I. . PRIVATE DEVELOPMENT
A. General
The Participant agrees that the improvements located on the Site shall be rehabilitated and improved in accordance with the provisions of this Agreement and the normal requirements of the City Building Division. The Participant, its engineer and contractors, shall work with Agency or City staff to coordinate the rehabilitation work to be undertaken on the Site.
B. Rehabilitation of the Improvements
The Site is currently developed with a multi-family residential apartment complex, consisting of 155 one-bedroom units, together with appurtenant parking and landscaping improvements. Marina Tower is currently in very good condition and will require some rehabilitation to raise the level of the building to an excellent standard.
The building's entry lobby and hallways will also undergo an aesthetic upgrade as necessary. Some Units will receive an upgraded kitchen including, as needed, new cabinets, new laminate plastic countertops, with a laminated plastic pass- through to the living/dining area. A new sink and faucet set will also be installed and the entire kitchen will be patched where necessary and completely repainted, as needed. All kitchen rehabilitation work will also consist of new fluorescent ceiling lights and a new disposal (as necessary). Some Units will have an upgraded bathroom.
This construction will consist of a new medicine cabinet, with new mirror above the sink. The entire bathroom will be repainted and a new wall mounted fluorescent light will be installed. The bathroom rehabilitation work will include installing new vanities and low-flow toilets, as needed. All walls in the bathrooms will be patched where necessary and repainted. General improvements to the building's common areas include, installation of a new sprinkler system: (sprinkler lines and heads in the common hall corridors with one sprinkler head inserted above the unit entry door inside the unit), general upgrades to the fire alarm system and some accessibility upgrades. The rehabilitation work will also include seismic upgrades to the building. 748904vl2 05137/0042
Exhibit C 8/23/05