1 DRAFT ENCAMPMENT RESOLUTION FUNDING AGREEMENT BETWEEN THE
CITY OF VISALIA AND MOONEY SEQUOIA LP
THIS AGREEMENT ("Agreement") dated as of __________, 2025, is entered into by and between the CITY OF VISALIA, a Charter Law city of the State of California ("City"), and MOONEY SEQUOIA, LP, a California limited partnership (hereinafter “Owner”).
RECITALS
The following recitals are a substantive part of this Agreement:
A. Owner desires to develop a 50-unit multi-family affordable housing project, located at 1400 S. Mooney Blvd. in the City of Visalia, and more particularly described and identified in "Exhibit A," attached hereto and incorporated herein (the "Property"); and
B. Owner is a California Limited Partnership (general partners include RHCB Visalia LLC, HOM XXXIV LLC, and UP Visalia LLC) that, among other things, rehabilitates and develops affordable housing projects that, upon completion, are typically managed by RH Community Builders LP (RHCB) and its affiliates; and
C. The Encampment Resolution Funding (ERF) Program provides funding for person-centered projects that resolve unsheltered homelessness in encampments. ERF projects should address safety and wellness in encampments, resolve critical encampment concerns, and transition people into interim shelter or permanent housing. ERF projects should strengthen existing, successful models and/or support new approaches that provide safe, stable, and permanent housing for people in encampments. ERF funds may only be used for projects that connect people experiencing homelessness in encampments to interim shelter with clear pathways to permanent housing or place people directly into permanent housing to be used in accordance with applicable provisions under the authority of Chapter 7 of Part 1 of Division 31 of the California Health and Safety Code (HSC) (sections 50250 et seq.), the Encampment Resolution Funding Program (Program) was established to increase collaboration between the California Interagency Council on Homelessness (Cal ICH) local jurisdictions, and Continuums of Care; and
D. Owner proposes to develop a multifamily affordable housing complex with 50 units, composed of one manager’s unit and 41 units committed to “Limited Clientele”, strictly to only those who are homeless with priority entry for those currently residing in targeted encampments, target encampments are identified in Exhibit C – Targeted Visalia Encampments in accordance with EFR-3-R regulations as set forth herein (the “Project”) and the terms and conditions set forth herein, so that the Property will be utilized for affordable housing for the longest feasible period; and
E. City and Owner desire to enter into this Agreement to set the terms and conditions under which City can loan to Owner a portion of the City's available Encampment Resolution Funding Round 3 (ERF-3-R) for the Project.
NOW, THEREFORE, City and Owner hereby agree as follows:
2 1. CITY LOAN
a. Loan Terms. In consideration of Owner’s obligations hereunder, and to ensure the Project remains affordable in accordance with the Rental Restriction (provided for under Section 3 hereof), and subject to the terms and conditions of this Agreement, the City will provide financial assistance to Owner for the Project in an amount up to Six Hundred and Forty-Four Thousand, and Four Hundred Dollars ($644,400.00) in ERF-3-R funds to assist in acquisition and construction of the Project. As evidence of the City Loan, Owner shall execute and deliver a promissory note to City in the form acceptable to City, which Note shall be in the initial principal amount of the City Loan. The Note shall be secured by a standard form Deed of Trust from a title company acceptable to the City, to be recorded against the Property.
b. Disbursement of City Loan. City shall provide to Owner up to Six Hundred and Forty-Four Thousand, and Four Hundred Dollars ($644,400.00) in ERF-3-R funds for the actual cost of acquisition and construction of the Project. Funding shall be disbursed on a reimbursement basis for Project costs actually incurred. Owner shall submit invoices, as well as any other documentation required by the City necessary to support reimbursement for Project expenditures.
c. Requirements of Owner The City loan shall be an annual forgivable loan used for acquisition and construction of the dwelling units on the Property in substantial conformance with the line items identified in the “Project Budget,” attached hereto as Exhibit “B-1” and Loan Forgiveness” attached hereto as Exhibit “B-2” incorporated herein by this reference. The City loan shall be a for a term of fifty-five (55) years from final disbursement of loan proceeds, and shall be a an annual forgivable, zero interest, principal only loan, by Owner and its successors and assigns, in accord with the terms and conditions contained in this Agreement, and in the Note and the amortization schedule attached thereto. Should Owner, its successors, or assigns sell the Property or fail to satisfy any of the terms and conditions herein, and as stated in the Rental Restriction required in Section 3, which are not otherwise waived by the City or otherwise cured by Owner, Owner shall be obligated to repay the City Loan in full within 30 days of written notification by the City.
i. Subject to the expiration of any applicable cure period, Owner shall not be in default of any of its obligations under the terms of this Agreement. ii. Recordation of Resale Restriction. Prior to the initial disbursement of funds from City to Owner, Owner shall execute and record the Rental Restriction required herein.
iii. Within 30 days of the execution of this Agreement, Owner shall have furnished City with evidence of the insurance coverage required under Section 2.
iv. Owner shall assist City with and shall provide all documentation necessary for all reporting requirements and obligations required by the State and local law.
2. DEVELOPMENT OF THE PROPERTY
3 a. Scope of Development. Owner shall acquire all of the parcels comprising the Property, and shall develop a 50-unit multifamily affordable housing complex, that will be committed to multifamily affordable housing on the Property in accordance with the Project Plans, Schedule and Budget attached hereto as "Exhibit B."
b. Insurance and Indemnification. Owner shall at all times cause the Project to be insured against loss by fire, flood, and such other hazards, casualties, liabilities and contingencies, in an amount not less than the full insurable value of the Project on a replacement cost basis and shall furnish or cause to be furnished to the City evidence satisfactory to City that Owner and any contractor with whom it has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. All insurance policies and renewals thereof shall be issued by a carrier and in a form acceptable to the City. Property insurance policies shall name the City as an additional insured, as approved by the City.
Owner and its successors in interest agree to indemnify, defend, and hold harmless the City and its agents, employees, volunteers and officers from any and all claims, losses, liabilities or causes of action (including reasonable attorney's fees) arising from or in connection with Owner's development, management, maintenance or operation of the Project; provided, however, Owner's obligations to indemnify and hold harmless shall not apply in the event and to the extent of the City's willful misconduct or gross negligence.
c. City and Other Governmental Agency Permits Owner shall secure and maintain, or cause to be secured and maintained, any and all permits or entitlements that may be required by City or any other governmental agency affected, or which has jurisdiction over the construction of the Project.
d. Antidiscrimination during Construction. Owner, for itself, and its successors and assigns, agrees that in the construction of Project on the property, Owner shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry, or national origin. e. Compliance with Laws. Owner shall carry out the construction and development of the Project in conformity with all applicable laws; City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City's Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 7260, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
f. Prevailing Wages. To the extent applicable, Owner shall comply with all requirements of the Department of Industrial Relations in accordance with the California Labor Code, and all other applicable federal, state, and local laws and regulations pertaining to labor standards and payment of prevailing wages (collectively, "Prevailing Wage Laws"). As applicable, Owner shall (i) require its contractors and subcontractors to submit certified copies of payroll records to Owner; (ii) maintain complete copies of such certified payroll records; and (iii)
4 make such records available to City and its designees for inspection and copying during regular business hours at the Property or at another location within the City of Visalia.
Owner shall defend, indemnify and hold harmless City and its officers, employees, volunteers, agents and representatives from and against any and all present and future causes of action, claims, liabilities, obligations, damages, fines, penalties, judgments, actions or expenses (including attorney fees) (collectively, the "Claims"), arising out of or in any way connected with Owner’s obligation to comply with all governmental requirements, including all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781, as amended and added by Senate Bill 966.
Owner hereby waives, releases and discharges forever City, and its employees, officers, volunteers, agents and representatives, from any and all present and future Claims arising out of or in any way connected with Owner’s obligation to comply with all Prevailing Wage Laws in connection with the work of the Improvements.
Owner is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
As such relates to this Section 2, Owner hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. g. Taxes and Assessments. Owner shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Property, subject to Owner’s right to contest in good faith any such taxes. Owner shall remove or have removed any levy or attachment made on the Property or any part thereof or assure the satisfaction thereof within thirty (30) days following the date of attachment or levy.
h. Condition of the Property. Owner shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials (as defined below) that are located in, on or under the Property. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Owner shall install and utilize such equipment and implement and adhere to such procedures as are consistent with the standards prevailing in the industry, to the extent such standards exceed applicable Governmental Requirements, as respects the disclosure, storage, use, removal, and disposal of Hazardous Materials. Owner shall cause each release of Hazardous Materials in, on or under the Property to be remediated in accordance with all Governmental Requirements.
Owner agrees to indemnify, defend and hold City, City and their officers, employees, volunteers, agents and representatives harmless from and against any and all Claims, resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or
5 disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Property, caused by Owner or any of Mooney Sequoia's predecessors in interest. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost, or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic or consequential loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effects on the environment but shall exclude any claims resulting from the gross negligence and/or willful misconduct of the City.
"Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is: (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended. Hazardous Materials excludes any materials that are used in the ordinary, customary, and lawful cleaning of and business operations on the Property. Said permitted Hazardous Materials shall be stored in a suitable, safe location and shall be disposed of in a manner provided by law.
3. COVENANTS, RESTRICTIONS AND AGREEMENTS
a. Use Covenants; Rental Restrictions. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest that, the Property shall be used for affordable housing purposes and that the Project to be constructed on the Property shall be rented to qualified low-income households ("Qualified Household"), in accordance with the terms of the Rental Restriction Agreement to be provided by City (the "Rental Restriction"). The foregoing covenant shall run with the land. Failure to maintain the use of the Property and the Project in accordance with this Section shall be a material default of this Agreement.
6 b. Maintenance Covenants. Owner shall maintain the Project in accordance with the custom and practice generally applicable to multifamily residential units in the City of Visalia, the Project and associated landscaping on the Property. Said maintenance shall include, but not be limited to, the building, sidewalks, lighting, landscaping, irrigation of landscaping, and any and all other improvements on the Property. Residential illegal activity will not be tolerated, and Owner and its successors must enforce property standards and implement eviction when necessary. Owner agrees to serve as the Property manager/Project operator for the Project.
Owner shall obtain City’s approval, which shall not be unreasonably withheld, if Owner arranges for a third party to serve as the Property manager/Project operator. Owner and its agents or assigns will comply with or otherwise implement the following Property management/Project operation activities:
i. Owner shall comply with all development standards, city codes, and ordinances. Buildings and premises, including paint/siding, roofs, windows, fences, parking lots, landscaping, and electrical systems shall be kept in good repair. Premises shall be kept free of junk and debris.
ii. Owner shall provide a regular program for the control of infestation by insects, rodents, and other pests.
iii. Where conditions are attributable to normal wear and tear, Owners hall make repairs and arrangements necessary to put and keep the premises in as good condition as required by law.
iv. Owner shall maintain all electrical, plumbing, heating, and other facilities in good working order.
v. Owner shall maintain the Property in reasonably weather tight condition and good exterior appearance.
vi. Owner shall remove graffiti within forty-eight (48) hours of it having been observed and/or reported.
vii. Owner hall provide overnight access for the Visalia Police Department to Owner’s maintenance and management staff in person, by telephone, or email. Such numbers shall be provided to the Visalia Police Department dispatch center and updated promptly as changed.
viii. Owner shall establish and conduct a regular program of routine maintenance for the facility. Such program shall include, but not necessarily be limited to, regular inspections of common areas, restrooms, and other similar activities that typically require attention at periodic intervals, but not necessarily continuously. ix. The name and phone number of Owner or Mooney Sequoia’s contracted Property management/Project operator shall be posted in a prominent location at the front of the property.
x. Owner shall maintain decorative planting in a manner that does not obstruct or diminish lighting and visibility throughout the complex and common areas.
7 xi. Owner shall manage the complex in a manner that does not permit inoperative vehicles, boats, trucks (one-ton capacity and over), trailers and/or recreational vehicles to be parked in the facility.
c. Obligation to Refrain from Discrimination. Owner covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual preference, source of income, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Owner itself or any person claiming under or through them 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 Property. The foregoing covenants shall run with the land.
d. Form of Nondiscrimination and Nonsegregation Covenants. All deeds, leases or contracts for the rental, sale or lease of the Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
i. 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, religion, sex, sexual preference, source of income, 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." ii. 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, religion, sex, sexual preference, source of income, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises 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, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." iii. In contracts. "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, sexual preference, source of income, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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
8 reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
e. Rights of Access. For purposes of assuring compliance with this Agreement, representatives of the City shall have the right of access to the Property, without charges or fees, at normal business hours. The City (or its representatives) shall, except in emergency situations, notify Owner at least 48 hours prior to exercising its rights pursuant to this Section. Nothing herein shall be deemed to limit the ability of the City to conduct code enforcement and other administrative inspections of the Property in accordance with applicable law. f. Effect of Violation of the Terms and Provisions of this Agreement after Completion of Rehabilitation. City is deemed to be the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided, without regard to whether the City has been, remains or is an owner of any land or interest therein in the Property. City shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Unless otherwise specifically provided, the covenants contained in this Agreement shall remain in effect until the issuance by the City of a certificate of occupancy for the Project, except for the following:
i. The covenants pertaining to the use and maintenance of the Property and all improvements thereon, shall remain in effect for fifty-five (55) years from the date of recordation of the Rental Restriction.
ii. The covenants against discrimination shall remain in effect in perpetuity.
4. DEFAULTS AND REMEDIES
a. Default Remedies. Subject to the permitted extensions of time as provided in Section 5 of this Agreement, failure by any party to perform any action or covenant required by this Agreement within the time periods provided herein following Notice and expiration of any applicable cure period, shall constitute a "Default" under this Agreement. A party claiming a Default shall give written Notice of Default to the defaulting party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and no other party shall be in Default if such party within thirty (30) days following receipt of such Notice of Default immediately, with due diligence, commences to cure, correct, or remedy such failure or delay and completes such cure, correction, or remedy with diligence.
b. Institution of Legal Actions. Except as otherwise specifically provided herein, upon the occurrence of a Default, the party or parties claiming a Default shall have the right, in addition to any other rights or remedies, to institute any action at law or in equity to cure, correct, prevent, or remedy any Default, or 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 Tulare, State of California, in an appropriate superior court
9 in that County or in the Federal District Court for the Central District of the State of California.
Notwithstanding anything herein to the contrary, Owner’s right to recover damages in the event of a Default by City shall be limited to recovery of actual damages and shall exclude consequential damages.
c. Acceptance of Service of Process. In the event that any legal action is commenced by Owner against the City, service of process on the City shall be made by personal service upon the City Clerk of the City or in such other manner as may be provided by law. In the event that any legal action is commenced by the City against Owner, service of process on Owner shall be made by personal service upon a Director of Owner, or in such other manner as may be provided by law.
d. Rights and Remedies Are Cumulative. The rights and remedies of the parties are cumulative, and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party, except as otherwise expressly provided herein or in the limited recourse provisions in the Note. e. Inaction Not a Waiver of Default. Any failures or delays by any party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
5. GENERAL PROVISIONS
a. Notices, Demands and Communications between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which any party may desire to give to the other parties under this Agreement must be in writing and may be given by any commercially acceptable means, including, but not limited to, via overnight courier, to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice.
To City: City of Visalia
Attention: Finance Department - Housing
707 W. Acequia Avenue
Visalia, CA 93291
Email: [email protected]
Phone: (559) 713-4460
To Owner: Mooney Sequoia LP
c/o RHCB Development LP
3040 N. Fresno Street
Fresno, CA 93703
Attn: Wayne Rutledge, Chief Executive Officer
Email: [email protected]
Phone: (559) 213-7373
10 Any written notice, demand or communication shall be deemed received immediately if delivered by hand, on the third day from the date it is postmarked if delivered by first-class mail, postage prepaid, upon receipt of verification of transmission if sent via facsimile provided a copy is sent the same day via first-class mail, and on the next business day if sent via nationally recognized overnight courier. Notices sent by a party's attorney on behalf of such party shall be deemed delivered by such party.
b. Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, performance by any party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental City or entity (other than the acts or failures to act of the City under this Agreement which shall not excuse performance by the City). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause (but in any event shall not exceed a cumulative total of one hundred twenty (120) days), if Notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Owner.
Owner expressly agrees that adverse changes in economic conditions, either of Owner specifically or the economy generally, changes in market conditions or demand, and/or Owner’sinability to obtain financing or other lack of funding to complete the Project shall not constitute grounds of enforced delay pursuant to this Section 5. Owner expressly assumes the risk of such adverse economic or market changes and/or inability to obtain financing, whether or not foreseeable as of the date of this Agreement.
c. Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon Owner and its permitted successors and assigns. Whenever the term "Owner" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided.
d. Relationship between City and Owner It is hereby acknowledged that the relationship between City and Owner is not that of a partnership or joint venture and that the City and Owner shall not be deemed or construed for any purpose to be the agent of the other.
Accordingly, except as expressly provided herein or in the Attachments hereto, the City shall have no rights, powers, duties, or obligations with respect to the development, operation, maintenance or management of the Property or the Project. Owner agrees to indemnify, hold harmless and defend the City from any claim made against the City arising from a claimed relationship of partnership or joint venture between the City and Owner with respect to the development, operation, maintenance or management of the Property or the Project unless due to the gross negligence or willful misconduct of City.
e. City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the City, the City Manager of the City or his or her designee is
11 authorized to act on behalf of the City unless specifically provided otherwise or the context should require otherwise.
f. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. g. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe, or limit the scope or the intent of this Agreement or of any of its terms.
References to section numbers are to sections in this Agreement, unless expressly stated otherwise.
h. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by all parties. i. No Waiver. A waiver by any party of a breach of any of the covenants, conditions, or agreements under this Agreement to be performed by another party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions, or conditions of this Agreement. j. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party.
k. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
l. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
m. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
12 n. Time of Essence. Time is of the essence with respect to the performance by City and Owner of each and every obligation and condition of this Agreement. o. Cooperation. Each party agrees to cooperate with the other parties in this transaction and, in that regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. p. Conflicts of Interest. No member, official or employee of the City or Owner 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 the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested.
q. Owner’s Indemnity. Owner shall defend (with counsel reasonably acceptable to the City), indemnify, assume all responsibility for, and hold the City and its officers, employees, volunteers, agents and representatives, harmless from any and all Claims of any kind or nature relating to the subject matter of this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death (including reasonable attorney’s fees and costs), which may be caused by any of Owner’s activities under this Agreement, whether such activities or performance thereof be by Owner or by anyone directly or indirectly employed or contracted with by Owner and whether such damage shall accrue or be discovered before or after termination of this Agreement. Owner’s indemnity obligations under this Section 618 shall not extend to Claims occasioned by the gross negligence or willful misconduct of City or its designated agents or employees. r. Nonliability of Officials and Employees of City and Owner No member, official or employee of City shall be personally liable to Owner, or any successor in interest, in the event of any Default or breach by City or for any amount which may become due to Owner or its successors, or on any obligations under the terms of this Agreement. No member, official or employee of Owner shall be personally liable to City, or any successor in interest, in the event of any Default or breach by Owner or for any amount which may become due to City or its successors, or on any obligations under the terms of this Agreement. City and Owner each hereby waive and releases any claim it may have against the members, officials, or employees of the other with respect to any Default or breach by the other or for any amount which may become due to it or its successors, or on any obligations under the terms of this Agreement. City and Owner each make such release with full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
13 As such relates to this Section, City and Owner each hereby waives and relinquishes all rights and benefits that it may have under Section 1542 of the California Civil Code. s. Assignment by City. City may assign or transfer any of its rights or obligations under this Agreement with the approval of Owner, which approval shall not be unreasonably withheld; provided, however, that the City may assign or transfer any of its interests hereunder to the City, or any public or private entity controlled by the City at any time without the consent of Owner.
t. Assignment by Owner. Owner shall not transfer or assign this Agreement, the Note, the Deed of Trust, or its interest in the Property or the Project or any portion thereof without prior written approval by the City, which approval shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, City hereby expressly approves of a transfer of the Project to an affiliate of RHCB.
u. Applicable Law. The laws of the State of California, without regard to conflict of laws principles, shall govern the interpretation and enforcement of this Agreement.
IN WITNESS WHEREOF, City and Owner have executed this Agreement on the respective dates set forth below.
THE CITY OF VISALIA, a public body,
corporate and politic
Dated: _________________ By: ___________________________________ Leslie Caviglia, City Manager
APPROVED AS TO FORM:
______________________________________
Attorney for City
14 MOONEY SEQUOIA LP,
a California limited partnership
By: HOM XXXIV LLC,
a Delaware limited liability company,
its Managing General Partner
By: Housing on Merit,
a California nonprofit public benefit corporation,
its Manager
By:
Jaymie Beckett
Chief Executive Officer
By: RHCB VISALIA LLC,
a California limited liability company,
its Co-General Partner
By: RHCB Development LP,
a California limited partnership,
its Sole Member
By: WRBH LLC,
a California limited liability company,
its General Partner
By:
Wayne Rutledge
Manager
By: UP VISALIA LLC,
a California limited liability company,
its Co-General Partner
By: UP Holdings California, LLC,
an Illinois limited liability company registered
to do business in the State of California,
its Sole Member
By:
Cullen J. Davis
Manager
15 Exhibit “A”
Legal Description of the Property
For APN/Parcel ID(s): 096-321-013-000
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF VISALIA, COUNTY OF TULARE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
That portion of Lot 12 of Oak View Colony, in the City of Visalia, County of Tulare, State of California, according to the Map thereof recorded in Book 4,
Beginning at the Southwest corner of said Lot 12; thence North along the West line thereof 209.04 feet; thence East 272 feet parallel with the South line of said lot; thence South 209.04 feet to the South line of said lot; thence West to the point of beginning.
Excepting therefrom the West 55 feet thereof.
Also excepting therefrom the Northerly 68 feet thereof.
PARCEL 2:
The West 63 feet of that portion of Lot 12 of Oak View Colony, in the City of Visalia, County of Tulare, State of California, according to the Map thereof recorded in Book 4, Page 31 of Maps, Tulare County Records, described as follows:
Beginning at a point in the South line of said Lot, 272 feet East of the Southwest corner thereof, said point of beginning being also the Southeast corner of the land conveyed to Henry Snyder by Deed dated April 19, 1929 and recorded in Book 316, Page 455 of Official Records; thence running North along the East line of said land so conveyed to said Snyder, 162 feet, more or less, to the Southwest corner of the land conveyed to J. T. Moore by Deed dated April 19, 1929 and recorded in Book 316, Page 456 of Of ficial Records; thence East along the South line of the land so conveyed to said Moore, 268.57 feet, more or less, to the center of the County Road; thence South along the center of said County Road, 162 feel more or less, to the Easterly prolongation of the South line of said Lot 12; thence West along said South line of said Lot 12 to the point of beginning.
Excepting therefrom the North 75 feet thereof.
PARCEL 3:
A non-exclusive easement for driveway purposes recorded in Book 4312, Page 986 of Official Records over the South 16 feet of that portion of Lot 12 of Oak View Colony, in the City of Visalia, County of Tulare, State of California, according to the Map ther eof recorded in Book 4, Page 31 of Maps, Tulare County Records, described as follows:
Beginning at a point in the South line of said lot, 272 feet East of the Southwest corner thereof, said point of beginning being also the Southeast corner of the land conveyed to Henry Snyder by Deed dated April 19, 1929 and recorded in Book 316, Page 455 of Official Records; thence running North along the East line of
16 said land so conveyed to said Snyder, 162 feet, more or less, to the Southwest corner of the land conveyed to J. T. Moore by Deed dated April 19, 1929 and recorded in Book 316, Page 456 of Official Records; thence East along the South line of the land so c onveyed to said Moore, 268.57 feet, more or less, to the center of the County Road; thence South along the center of said County Road, 162 feet, more or less, to the Easterly prolongation of the South line of said Lot 12; thence West along said South line of said Lot 12 to the point of beginning.
Excepting therefrom the West 63 feet thereof.
Also excepting therefrom that portion thereof included within the boundaries of Central Avenue.
PARCEL 4:
A perpetual, appurtenant, non-exclusive easement for the purposes of parking seven (7) passenger vehicles and for the installation and maintenance of the parking spaces, associated driveways, curbing and sidewalks over the following described property:
Being a portion of Lot II of Oak View Colony, in the City of Visalia, County of Tulare, State of California, according to the Map thereof recorded in Book 4, Page 31 of Maps, Tulare County Records, described as follows:
The South 36.00 feet of the West 81.00 feet of that certain parcel of land conveyed by Anil Chagan and Jyoti Chagan by Quitclaim Deed unto Anil Chagan and Jyoti Chagan, as trustees of the Chagan Family Trust, U.D.T. ("Under Declaration of Trust'), recorded March 4, 1994 as Document No. 94 -016935 of Official Records of Tulare County.
APN: 096-321-013-000
17 Exhibit B – Budget
Exhibit B-1: Sequoia Village ERF-3-R Capital Budget
Sequoia Village ERF-3-R Capital Budget
Item Amount
Total $ 644,400.00
Exhibit B-2: City Loan Annual Forgiveness
City's Loan's Annual Forgiveness
Activity Amount
Term in
Years
Annual
Forgiveness
Encampment Resolution Funding Round 3 $ 644,400.00 55 $ 11,716.36 Subtotal Development $ 644,400.00 $ 11,716.36
18 Exhibit C – Targeted Visalia Encampments
Encampment Resolution Funding Round 3
1. State Hwy 198 Ben Maddox on ramp and State Hwy 198 between Burke Street and Santa Fe Street (4,031 ft), and the Demaree on ramp (785 ft).
19 2. State Route 63 at Riverway Sports Park, N. Dinuba Blvd between West Riggin Avenue and East Houston Avenue, and Lincoln Oval Park.